Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Qari Muhammad Arif VS Respondent: Secretary Home Department and others
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh, Anwaarul Haq Pannun Title: Qari Muhammad Arif vs Secretary Home Department and others Case No.: Writ Petition No. 1735 of 2020 Date of Judgment:2020-12-15 Reported As: PLJ 2021 Lahore 886, PLD 2021 Lahore 499 Result: Petition allowed
JUDGMENT
JUDGMENT TARIQ SALEEM SHEIKH, J.---The Petitioner is a teacher by profession having settled in Tehsil Shujabad, District Multan. He is in -government service for the last 22 years and is presently posted at the Government Elementary School, Railway Station, Shujabad. On 02.12.2014, vide Notification No. SO(IS-I)4-10/201 1 (Multan), Respondent No.1 (the Secretary , Home Department, Punjab) notified his name for inclusion in the list maintained under the Fourth Schedule of the Anti-T errorism Act, 1997 (the "Act"), for three years. The Petitioner filed a review application in terms of section 11-EE(3) of the Act but that was dismissed vide Order dated 25-11-2016. After that period expired Respondent No.1 issued the impugned order dated 30-01-2018 for retention of his name on the aforesaid list for another three years. The Petitioner moved a review application against that order but the Proscription Review Committee did not decide it. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution "), he seeks judicial review of the Government's action and deletion of his name from the infamous list. 2. The Petitioner's case is that Respondent No.1 has no jurisdiction to notify anybody's name for the purposes of the Fourth Schedule as that power vests exclusively in the Federal Government. On facts, he submits that he is a law abiding citizen and has never been engaged in any sectarian or anti-State activity . He has no criminal history except case FIR No. 521/2018 dated 22-07-2018 registered at Police Station Shujabad for an offence under section 11-EE of the Act but even that has no legal consequence because he was found innocent during investigation. The Petitioner maintains that Respondent No.1 has no material against him which may justify the impugned order . Lastly , relying upon Hafiz Bilal Ahmad v. Station House Officer , Police Station 18-Hazari, Tehsil and District Jhang and 3 others (PLD 2011 Lah. 145), Khawaja Mureed Hussain v. Government of the Punjab, Home Department, Lahore and 6 others (2013 PCr.LJ 312) and Javed lqbal v. Government of the Punjab through
---
## Page 2
Home Secretary and another (2014 MLD 1308 ), he contends that the maximum period for which a person may be proscribed under section 1 1-EE of the Act is three years. The impugned order is illegal as it seeks to extend it for another three years. 3. We requisitioned report from Respondent No.4 (City Police Officer, Multan) which was received vide Diary No. 1694 dated 21.02.2020. According to him, the Petitioner is an activist of Lashkar-e-Jhangvi (LeJ), a proscribed organization, and has been involved in three cases under section 11-EE of the Act (including FIR No. 521/2018 which the Petitioner has mentioned in his constitutional petition). The Home Department has issued the impugned order dated 30.1.2018 on the recommend ation of the District Intelligence Committe e (DIC), Multan, which is based on the reports of the law enforcement agencies. 4. We summoned Respondent No.2 (Dep uty Commissioner/ Convener DIC, Multan) with a direction to produce the record of the DIC's relevant meeting to satisfy ourselves that its recommendation against the Petitioner is well- founded. On 6.10.2020, after hearing Respondent No.2 and going through the said record, we observed that this case involves substantial question as to interpretation of constitutional law so we issued notices to the Attorney General for Pakistan and the Advocate General, Punjab, in terms of Order XXVII-A, C . P . C . 5. The learned Deputy Attorney Gener al, Mehr Zameer Hussain, has veheme ntly opposed this petition. He contends that the Federal Government has delegated its powers and functions under section 11-EE of the Act to the respective Provincial Home Secretaries and the Chief Commissioner , Islamaba d. As such, the objection relating to the jurisdiction of Respondent No.1 to proscribe the Petitioner is misconceived. He further contends that the Act is a valid legislation and the restrictions that it imposes on exercise of certain fundamental rights are reasonable and constitutional. He also controverts the Petitioner's contention that his name could not be notified again for the purpose of the list under the Fourth Schedule to the Act after the expiry of initial three years. 6. The learned Assistant Advocate General; Mr. Muhammad Ayub Buzdar , has also defended the impugned order . He contends that this constitutional petitio n is not maintainable as the Petitioner has an alternate remedy by way of a review application under section 11-EE(3) of the Act. On merits he contends that the Petitioner has no case in the light of the report of Respondent No.4 and the record submitted by Respondent No.2. 7. Rana Muhammad Arif Kamal Noon, Prosecutor General, Punjab, has entered appearance with his team and argued on the same lines as the other two law of ficers. 8. Arguments heard. Record perused. 9. We first take up the objection relating to the jurisdiction of Respondent No.l. Subsections (1) and (1A) of section 11-EE of the Act are relevant to the issue so we reproduce them for ready reference: 11-EE. Proscription of person.---( 1) The Federal Government may, be order published in the official Gazette, list a person as a proscribed person in the Fourth Schedule on an ex-parte basis, if there are reasonable grounds to believe that such person is--- (a) concerned in terrorism; (b) an activist, office bearer or an associate of an organization kept under observation under section 11D or proscribed under section 1 1B; and (c) in any way concerned or suspected to be concerned with such organization or affiliated with any group or organization suspected to be involved in terrorism or sectarianism or acting on behalf of, or at the direction of, any person or organization proscribed under this Act. Explanation--- The opinion concerning reasonable grounds to believe may be formed on the basis of information received from any credible source, wheth er domestic or foreign including governm ental and regulatory authorities, law enforcement agencies, financial intelligence units, banks and non-banking companies, and international institutions. (1A) The grounds shall be communicated to the proscribed persons within three days of the passing of the order of proscription. 10. Under section 11-EE the power to proscribe a person vests in the Feder al Government but section 33 authorizes it to delegate the same to such authority as it may deem fit. Section 33 reads as follows:
---
## Page 3
33. Delegation--- The Government may, by notification, delegate, subject to such conditions as may be specified therein, all or any of the powers exercisable by it unddr this Act. Clause (i) of section 2 of the Act defines "Government" as: (i) "Government " means the Federal Government or , as the case may be, the Provincial Government. 11. In exercise of the above-mentioned powers, vide SRO dated 29th October 2014, the Federal Government delegated the powers and functions under section 11-EE of the Act to respective Provincial Home Secretaries and the Chief Commissioner , Islamabad. Though another notification dated 24th August 2020 it authorized these functionaries, inter alia, to constitute Proscription Review Committees contemplated in the Act within their respective jurisdictions. These notifications are added to this judgment as Appendix I and II respectively . 12. In view of the foregoing, we hold that Respondent No.1 was competent to pass the impugned order dated 30- 01-2018. The contention of the Petitione r's learned counsel that he was not empowered is misconceived and, therefore, repelled. 13. The learned Assistant Advocate Gene ral's objection to the maintainability . of this constitutional petition is also not tenable. The Petitioner had a right of review under section 11-EE(3) of the Act. He filed an application before the Proscription Review Committee but it did not decide it. He could not be left without a. remedy and was competent to approach this Court. Reference may usefully be made to the following observations of the Hon'ble Supreme Court of Pakistan in Faridsons Ltd. v . Government of Pakistan (PLD 1961 SC 537 ): "Nevertheless, the argument was raised before us in bar of the issue of a writ, that an alternate remedy was possible by way of appeal, and that an appeal had been filed. An appeal was actually filed four years ago in each case, and no action has yet been taken on it. There is a limit to the patience the subject must exercise before he seeks alternative relief." 14, Even otherwise, in cases involving enforcement of fundamental rights courts do not insist on strict adherence to the principle of alternate statutory remed y. Reliance is placed on Abu Bakar Muhammad Reza v. Secretary to Government of Punjab, Home Department and others (PLD 2005 Lah. 370), Hafiz Bilal Ahmad v. Station House officer , Police Station 18-Hazari, Tehsil and District Jhanfl and 3 others (PLD 2011 Lah. 145), Muhammad Mohsin Kulachi alias Gomi v. Government of Punjab and others (2020 YLR 1327 ) and Muhammad Irshad v. Government of the Punjab and others (2020 PCr .LJ 206). 15. Here, we are also tempted to quote Justice Cornelius who said: "The writ jurisdiction of this Court has always been there and shall continue to come at the rescue of those citizens of this country who have no alternate and efficacious remedy available to them. It is one of the flowers of paradise .... God fulfills Himself in many ways and that we (Judges) are the humble instrum ents of His fulfillment. The writ jurisdiction is the modern manifestation of God's pleasure and that God's pleasure dwells in the High Court." 16. An order of proscription entails serious consequences. Under section 11-EE(2) of the Act, the Government may require the person whose name has been listed in the Fourth Schedule to: (a) execute a bond with one or more sureties to the satisfaction of the District Police Officer concerned for his good behaviour and undertaking that he shall neither involve in any act of terrorism nor advance the objectives of any organization banned or kept under observation; (b) restrict his movements to any. place or area and/or report to a designated officer at certain times or places; (c) refrain from visiting or going to certain public places. The Government may also direct probe into the assets of such person and his immediate family and monitor his activities for a period upto three years. Inasmuch as a proscription order syncopates a person's fundamental rights guaranteed under Articles 9 and 15 of the Constitution, it can stand only if it meets the requisite criteria. 17. According to Wade and Forsyth, "administrative law needs consistent working definitions of the three primary constitutional functions, legislative, administrative and, judicial; and also of the hybrid 'quasi-judicial' function which has a part of its own to play ." They state: "The one distinction which would seem to be workable is that between judicial and administrative functions. A judicial decision is made according to rules. An administrative decision is made according to administrative policy . A judge attempts to find what is the correct solution according to legal rules and principles. An administrator attempts to find what is the most expedient and desirable solution in the public interest. It is true, of course, that many2 3
---
## Page 4
decisions of the courts can be said to be made on grounds of legal policy and that the courts sometimes have to choose between alternative solutions with little else than the public interest to guide them. There will always be grey areas. Nevertheless the mental exercises of judge and administrator are fundamentally different. The judge's approach is objective, guided by his idea of the law. The administrator's approach is empirical, guided by expediency . Under this analysis, based on the nature of the functions, many so-called administrative tribunals, such as social security and employment tribunals, have judicial rather than administrative functions, since their sole task is to find facts and apply law objectively . "A quasi-judicial function is an administrative function which the law requires to be exercised in some respects as if it were judicial. A typical example is a minister deciding whether or not to confirm a compulsory purchase order or to allow a planning appeal after a public inquiry . The decision itself is administrative, dictated by policy and expediency . But the procedure is subject to the principles of natural justice, which required the minister to act fairly towards the objectors and not (for example) to take fresh evidence without disclosing it to them. A quasi-judicial decision is therefore an administrative decision which is subject to some measure of judicial procedure. Since nowadays the great majority of administrative decisions which affect the rights or legal position of individuals are subject to the principles of natural justice in any case, the term, quasi-judicial is now little used." 18. De Smith explains quasi-judicial function as follows: "In administrative law this term may have any one of three meanings. It may describe a function that is partly judicial and partly administrative, e.g. the making of a compulsory purchase order (a discretionary or administrative act) preceded by the holding of a judicial-type local inquiry and the consideration of objections. It may, alternatively , describe the 'judicial' element in a composite function; holding an inquiry and considering objections in respect of a compulsory purchase order are thus 'quasi-judicial' acts. Or it may describe the nature of a discretionary act itself where the actor's discretion is not unfettered. Seldom is it essential to use this ambiguous term, and it will be avoided here as far as possible." 19. Although it is sometimes difficult to make a distinction between an administrative authority's purely administrative and quasi-judicial acts, the "duty to act judicially" is the real test. But when does that duty arise? In R. v. Manchester LeRal Aid Committee , (1952) 1 All ER 480 (489), Parker J. observed: "the duty to act judicially may arise in widely different circumstances which it would be impossible and, indeed, inadvisable to attempt to define exhaustively ." Nevertheless, where the statute itself requires the administrative authority to act judicially , there would be no doubt that its function is quasi-judicial . 20. The courts in England trace the development of the law on the subject from Cooper v. Wandsworth Brand of Works (1863) 14 CB (NS) 180, but R. v. Electricity Commissioners and others [(1924) 1 KB 171], is considered to be the lodestar case in which Atkin, L.J. observed: "The operation of the writs [of prohibition and certiorari] has extended to control the proceedings of bodies which do not claim to be, and would not be reorganized as Courts of Justice. Whenever anybody of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal duty , they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs." 21. In R. v. Legislative Committee of the Church Assembly (1928) 1 KB 411 at 415, Lord Hewart CJ after quoting the above passage stated: "In order that a body may satisfy the required test it is not enough that it should have legal authority to determine questions affecting the rights of subjects; there must be superadded to that characteristic the further characteristic that the body has the duty to act judicially ." 22. Scrutton L.J. observed in R. v . The London County Council (1931) 2 KB 215: "There has been a great deal of discussio n and a large number of cases extendin g the meaning of 'court'. It is not necessary that it should be a court in the sense in which this court is a court; it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposed and an opposition; and it is not necessary to be strictly a court; if it is a tribunal which has to decide rights after hearing evidence and opposition, it is amenable to the writ of certiorari..." 23. Their Lordships of the Privy Council laid down in Nakkuda All v. M. F. De S. Jayaratne (PLD 1950 PC 102) that the only relevant criterion to determine whether an act is a judicial act "is not the general status of the person or4 5
---
## Page 5
body of persons by whom the impugned decision is made but the nature of the process by which he or they are empowered to arrive at their decision. When it is a judicial process or a process analogous to the judicial, certiorari can be granted." 24. The House of Lords considered the above-mentioned cases and a host of others in Ridge v. Baldwin 1964 AC 40, and held that the process which affects the rights of people, including their right to property , should be exercised judicially and not ministerially and Atkin L.J. did not intend to "superadd" anything to it as Hewart CJ understood. Lord Reid pointed that "when ever a statutory authority is given power to determine questions affecting the rights of subjects, the duty to act judicial need not be expressly superimposed on that authority . It may be implied from the nature of the power conferred or the nature of the decision to be reached by the statutory authority ." Ridge v. Baldwin also extended the doctrine of natural justice (procedural fairness in judicial heari ngs) into the realm of administrative decision making. 25. In India, the seminal case on the subject is Province of Bombay v. Kusaldas S. Advani and others (AIR 1950 SC 222). Kania C.J. observed: "The word 'quasi-judicial' itself necessarily implies the existence of the judicial elem ent in the process leading to the decision... [E]very decision of the executive generally is a decision of fact and in most cases affects the rights of someone or the other . Because an executive authority has to determine certain objective facts as a preliminary step to the discharge of an executive function, it does not follow that it must determine those facts judicially . When the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it, the determination of the objective fact and the exercise of the power based thereon are alike matters of an administrative character and are not amenable to the writ of certiorari. " In his opinion Das, J. further explained: "(i) if a statute empowers an authority , not being a court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other there is a lis and prima fade, and in the absence of anything in the statute to the contrary , it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and (ii) if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determinatio n of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially ." 26. Subha Rao J. of the Indian Supreme Court in his opinion in Gullapalli Nageswara Rao and others v. Andhra Pradesh State Road T ransport Corporation and another (AIR 1959 SC 308) wrote: "The concept of a quasi-judicial act implies that the act is not wholly judicial; it describes only a duty cast on the executive body or authority to conform to norms of judicial procedure in performing some acts in exercise of its executive power ." 27. In Anglo-American Direct Tea Trading Co. Ltd. v. Their Workmen and another (AIR 1963 SC 874) the Supreme Court of India held: "Where an authority is required to act judicially either by an express provision of the statute under which it acts or by necessary implication of the said statute, the decisions of such an authority generally amount to quasi-judicial decisions. Where, however , the executive or administrative bodies are not required to act judicially and are competent to deal with issues referred to them administratively , their conclusion s cannot be treated as quasi- judicial conclusions. No doubt, even while acting administratively , the authorities must act bona fide; but that is different from saying that they must act judicially ." 28. In State of Orissa v . Dr. Binawni Dei and others (AIR 1967 SC 1269) the Supreme Court of India held: "Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed; it need not be shown to be superadded. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power ." 29. In A.K. Kraipak and others v . Union of India and others (AIR 1970 SC 150) the Indian Supreme Court observed:6
---
## Page 6
"The dividing line between an administrative power and a quasi-judicial power is quite thin and being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is confe rred, the framework of the law conferring that power , the consequences ensuing from the exercise of that powe r and the manner in which that power is expected to be exercised." 30. The following principles have been settled in India on the law of quasi-judicial administrative acts: i) Quasi-judicial act has trappings of judicial functions. ii) A quasi-judicial decision involves the following three elements: (a) It is in substance a determination, upon investigation, of a question by the application of objective standards to facts found in the light of pre-existing legal rules; (b) It declares rights or imposes upon parties obligations af fecting their civil right; and (c) The investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party , ascertainment of facts by means of material if a dispute be on question of fact, and if the dispute be on question of law, on the presentation of legal argument, and a decision resulting in the disposal of the matter on landings based upon those questions of law and fact. iii) The question as to whether an act is a judicial or a quasi-judicial one or a purely executive act depends on the terms of the particular rules and the nature, scope and effect of the particular powers in exercise of which the act may be done and would, therefore, depend on the facts and circumstances of each case. iv) Where (a) a statutory authority empowered under a statute to do any act (b) which would prejudicially affect the subject (c) although there is no lis or two contending parties and the contest is between the authority and the subject and (d) the statutory authority is required to act judicially under the statute, the decision of the said authority is quasi-judicial . Where the statute in question is silent as to the manner in which the power conferred should be exercised by the authority acting under it, the exercise of power will depend on the express provisions of the statute read along with the nature of rights affected, the manner of disposal provided, the objective criteria, if any, to be adopted, the effect of the decision on the persons affected and other indicia afforded by the statute. It would, therefore, be seen that where a statutory authority is given power to make a decision or perform an act which effects the rights of individuals or imposes obligations on them, the duty to act judicially need not be expressly super-imposed on the statutory authority: it may be inferred from the nature of the Power conferred, its impact on the rights of citizens and such other relevant circumstances. vi) The duty to act judicially may not be expressly conferred but may be inferred from the provisions of the statute. It may be gathered from the cumulative effect of the nature of the rights affected, the manner of the disposal provided, the objective criterion to be adopted, the phraseology used, the nature of the power conferred, of the duty imposed on the authority and other indicia af forded by the statute. vii) A decision would be quasi-judicial…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.