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Petitioner: Mst. Aziza Naeem VS Respondent: Government Of Sindh through Secretary, Home Department, Karachi and 2 others
Court Name: Sindh High Court Judge(s): Muhammad Karim Khan Agha, Amjad Ali Sahito Title:Mst. Aziza Naeem vs Government Of Sindh through Secretary, Home
Department, Karachi and 2 others Case No.: Constitutional Petition No. 3275 of 2020 Date of Judgment:2020-12-21 Reported As: PLD 2021 Sindh 178 Result: Order accordingly Judgment ORDER MOHAMMED KARIM KHAN AGHA, J.---The petitioner has challenged three separate preventive detention orders which have been issued by. the Government of Sindh for a period of three months each one after the other under various sections of law and in effect conte nded that such orders should be struck down as being illegal and issued without lawful authority on account of amongst other things mala fides and the fact that the Government of Sindh failed to satisfy itself of the need to issue these orders on an objective assessm ent on the material which was placed before it for consideration and that the petitioner was not an "enemy alien" within the purview of Article 10(9) of the Constitution. 2. The brief facts of the case are that petitioner Abdul Hameed Bugti son of Ali Murad Bugti was tried by learned Judge, Anti-T errorism Court No.II Karachi in Special Cases No. 37 of 2005 arising out of Crime No.145/2005 under sections 302/324/427/109/34, P.P.C. 3/4 Explosive Substances Act, 1908 read with section 7 Anti-T errorism Act, 1997 (ATA) registered at Police Station Artillery Maidan Karachi. After trial vide judgment dated 10.06.2014 the appellant Abdul Hameed Bugti son of Ali Murad Bugti was convicted and sentenced as under:- a) For causing death to four persons Sabz Ali, Iftikhar Ahmed, Jawed Iqbal and Noor Rehman, by bomb blast he was sentenced to death. b) For causing injuries to 20 persons he is sentenced to Rigorous Imprisonment for 10 (Ten) years and payment of a fine of Rs.50,000/- (Fifty Thousand) to each injured. c) For causing bomb blast punishable under section 3 of the Explosive Substances Act, 1908 to R.I for life and to forfeit his property to the Government under section 5-A of the Explosive Substances Act, 1908. d) For causing damage to the buildings of Muslim Commercial Bank and PIDC House under section 7(d) of Anti- Terrorism Act, 1997 to R.I. for 14 years.
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All the sentences were to run concurrently . The sentence of death awarded to the accused was subject to the confirmation by the Hon'ble High Court of Sindh, Karachi. 3. The offenses for which the petitioner was convicted essentially revolved around a car bomb explosion outside the Muslim Commercial Bank, PIDC House, Karachi which was an act of terrorism which resulted in the death of 4 people and serious injuries to many 'others which as mentioned above lead to the petitioner being sentenced to death. 4. Being aggrieved and dissatisfied by the judgment passed by learned Judge, Anti-T errorism Court No.II, Karachi the petitioner appealed the same before this court. 5. This Court vide Judgment dated 02.04.2020 allowed the appeal of the petitioner and set aside the impugned judgment and ordered his acquittal/release after he had served 14 years without remission. 6. Upon announcement of the Judgme nt referred to above the Government of Sindh immediately issued a preventive detention order hereinafter referred as (PDO's) under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 dated 02.04.2020 for a period of 3 months and on its expiry issued a second preventive detention order under section 11-EEE of the Anti Terrorism Act, 1997 (ATA) dated 01.07.2020 for a further period of 3 months and thereafter issued another preventive detention order under section 11EEE of the ATA read with Article 10 of the Constitution dated 28.09.2020 for yet another period of 3 months making a total of 9 continuous months of preventive detention. 7. Learned counsel for the petitioner has contended that all the preventive detention orders as (PDO's) were based on mala fide and they were issued for the sole purpose of keeping the petitioner behind bars after his acquittal by this court despite already having served 14 years behind bars without remission and in order to circumvent the acquittal judgment of this court; that with regard to the first PDO this was passed on 10.04.2020 immediately after his acquittal by this court for a period of 30 days and based as per the language of the order itself on material gathered by the police in a letter dated 10.04.2020 and from no other source e.g. intelligence agency and was under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 (MPO) which stated in effect that the presence of the petitioner at any public place is likely to pose grave threat to the public safety and breach of the peace and tranquility and that the material gathered by the police was not sufficient to satisfy the Government of Sindh on an objective assessment of the material that this would be the case or of having any reasonable grounds to form such an opinion when it issued its first PDO on the same day as receiving this information. That the mala fide of the Government of Sindh was further proved by the fact that as they feared that a further 'detention order under the MPO might be struck down by this court a few days before its expiry the petitioner was placed on the 4th Schedule of the ATA under section 11 (EE) ATA by the Government of Sindh. Once again this was done on the recommendation of the police and not any intelligence agency on the basis that he was affiliated with a terrorist organization and involved in terrorist acts despite there being no material to show that his addition on the IV Schedule of the ATA on these grounds was justified especially as he had been in jail for the last 14 years. Therefore prior to the expiry of his first PDO in order to keep him continuously in jail the Government of Sindh issued a Second PDO on 08.07.2020 this time under section llEEE of the ATA as opposed to the MPO for a further three months period on the basis of mate rial again provided by the police and not any intelligence agency or other body that he will be able to move around /establish/re-establish networks for the purpose of furthering any terrorist activity being affiliated in the past with such organizations as soon as he was released for which once again the Government of Sindh was satisfied that there existed apprehension of the above for which there was no legally justified material which could have satisfied the Government of Sindh about this based on an objective assessment of the material placed before it.; that even otherwise the wording of section UBE ATA only gave such powers to the Federal Government and not the Provincial Government and as such the second PDO was unlawful and without legal effect especially as the Federal Government had no legal power to delegate such power to a Provincial Government; that once again the mala fide of the Government of Sindh was shown by it issuing the third PDO on 06.10.2020 on the day on which the petiti oner's second PDO was due to expire so that the petitioner could be kept continuously in jail. The third PDO was issued under section 11EEE ATA read with Articles 10(5) and 10(9) of the Constitution and according to learned counsel for the petitioner is due to expire on 05.01.2020. Learned counsel for
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the petitioner submitted that he had challenged his detention under the first PDO and also under the second PDO under Article 10(4) of the Constitution but his representation was not successful under the first PDO and he had not received any decision regarding his representation under the second PDO. In particular he has stressed that under both the MPO and section 11EEE. of the ATA under which the Government of Sindh issued the successive PDO's there was not enough material which could possibly have satisfied the Government of Sindh based on an objective assessment of the material before it in issuing the three PDO's all of which have been issued on account of mala fide by the Government of Sindh and accordingly the three PDO's should be struck down as being without lawful authority . He contended that in another case he had been shown the material against the petitioner Which the Government of Sindh had used to justify the petitioners detention and in his view this material showed that the petitioner had no contact with the BLA and that he was not even a proscribed person under the. IV Schedule of the ATA in 06.07.2007 when he was arrested in the case which lead to his acquitta l after 14 years and yet almost immediately after his acquittal he was placed on the IV schedule of the ATA under section 11EE ATA as a mala fide pretext to enable him to be detailed for a further period under section 11EEE ATA within one day of his placement under section 11EE ATA despite thee being no new material justifying such placement within one day coming to the attention of the Government of Sindh. According to learned counsel the timing of the finding of the material which was used against the petitioner to detain him which came to light only after his acquittal it was evident that this material was false and fabricated for the sole purpose of keeping him in custody . With regard to the contention that he was an "enemy alien" under Article 10 (9) of the Constitution and as such the safe guards provided in Article 10 (4) would not apply to him he submitted that the petitioner was not an "enemy alien" and that this term might only apply to him if Pakistan was in a declared State of War (as opposed to the so called War on terror) against a Country of which he was a national and since in this case there was no declared State of War and the petitioner was a Pakistani national this term "enemy alien" as used in Article 9 of the Constitution did not apply to' him. In the alternative he submitted that if the petitioner was released subject to the restrictions imposed under section 11EE the petitioner under instructions had agreed to provide a surety bond, report to a PS at a given date and time and allow him to be monitored by any effective monitoring device, for example, mobile phone and other restrictions legally permissible under section llEE ATA. In support of his contentions he placed reliance on Federation of Pakistan v. Mr.Amatul Jalil Khawaja (PLD 2003 SC 442), Arab Akbar Dil v. Government of Sindh (PLD 2005 Kar. 538), Ghulam Qasim v. Government of Punjab (2020 MLD 166), Muhammad Irshad v. Government of the Punjab (2020 PCr.LJ 206), Allah Nawaz v. Government of Khyber Pakhtunkhwa (2019 MLD 1016 ), Safeer Shah v. The State (2016 MLD 986), Baram Khan v. Government of Balochistan (PLD 2019 Balochistan 120), Aurangzeb Khan v. Government of Khyber Pakhtunkhwa (2016 MLD 330), Waqas Hussain v. Government of Khyber Pakhtunkhwa (2016 PCr.LJ 972), Syed Mubbashar Raza v. Government of Punjab (PLD 2015 Lahore 20), Muhammad Nadeem v. Government of Punjab (PLD 2010 Lahore 371) Muhammad Din v. District Magistrate (1992 MLD 107), Muhammad Irshad v. Government of Punjab (2020 PCr.LJ 206), Ghulam Qasim v. Government of Punjab (2020 MLD 166), Allah Nawaz v. Government of Khyber Pakhtunkhwa (2019 MLD 1016 ), Baram Khan v. Government of Balochistan (PLD 2019 Balochistan 120), Rehmatullah alias Rehmatoli v. Government of Khybe r Pakhtunkhwa (PLD 2018 Peshawar 17), Mst. Sana Jamil v. Government of Punjab (2016 PCr.LJ 424), Waqas Hussain v. Government of Khyber Pakhtunkhwa (2016 PCr.LJ 972), Safeer Shah v. The State (2016 MLD 986), Aurangzeb Khan v. Government of Khyber Pakhtunkhwa (2016 MLD 330)(sic), Syed Mubbashar Raza v. Government of Punjab (PLD 2015 Lahore 20) (sic) Muhammad Nadeem v. Government of Punjab (PLD 2010 Lahore 371)(sic), Haji Muhammad Ishaq Shah v. District Magistrate, Lakki Marw at (1999 PCr.LJ 1558) and numerous definitions of "enemy alien " from various dictionaries. 8. Learned Advocate General Sindh has contended that the correct test for determining whether the material placed before the Home Secretary justifie s issuing a preventive detention order ought to be on a subjective basis although he has conceded that in Pakistan the current test is an objective one based on the Supreme Court case of Pakistan v. Mr. Amatul Jalil Khawaja . He has urged this court that on account of the changing times especially in terms of the war on terror which accord ing to him arose in Pakistan when the Army Public School (APS) was
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attacked in 2014 by militants that the appropriate test ought to be the subjective one which should be made on an assessment of the material made by an expert in assessing intelligence material which in this case was the Home Secretary rather than judges; that a hybrid test primarily based on expertise and. subjectivity be introduced to analyze the intelligence and determine whether a preventive detention order was justified especially as intelligence could never be precise and that was why it was better that it be determined by the competent authority instead of the courts especially as such issues were very sensitive and concerned national security and in this respect he placed reliance on a number of Judgments from India, Malaysia, Singapore, Nigeria and Zimbabwe in support of his contention. He also relied on certain Pakistani Judgments from Lahore and Quetta concerning the upholding of preventive detention orders. These judgments although being only of persuasive value nevertheless have been considered by us and we have observed that by and large they are distinguishable from the present case as they concerned detention under the MPO, concerned a first preventive detention order and even a second but not a third which has been issued and challenged in this case, they do not all relate to terrorism which the second and third preventive detention orders are related to in this case and a number of the persons against whom preventive dentition orders were made were already undergoing a trial although they may have been granted post arrest bail whereas the petitioner has been acquitted on appeal; even otherwise he conte nded that there was sufficient material to justify the preventive detention orders issued by the Government of Sindh based on the material which had been placed before the Home Secretary who had issued the preventive detention orders; he further contended that the petitioner fell within Article 10(9) of the Constitution and as such was an "enemy alien" and as such Article 10 of the Constitution did not apply to the petitioner as he owed no allegiance to Pakistan and was a part of the war on terror against Pakistan and therefore he had no right to a review board or to be released until determined by he competent authority . In support of his contentions he has placed reliance on Moulvi Farid Ahmad v. Government of Pakistan (PLD 19651 (W.P.) Lahore 135), State of Maharashtra v. Bhaurao Punjabrao Gawande (AIR 2008 Supreme Court 1705 ), Liversidge v. Anderson and another (All England Law Reports Annotated-3 38), Miraj Muhammad Khan v. Government of West Pakistan and Superintendent of Jail, Karachi (PLD 1966 (W.P.) Karachi 282), Syeda Shamim Akhtar v. Government of Pakistan and 3 others (1996 PCr.LJ 326), Aamna Bibi v. Government of Balochistan (2003 YLR 1460 ), Saadullah v. Secretary , Home Depart ment and another (PLD 1986 Quetta 270), Federation of Pakistan v. Mrs. Amatul Jalil Khawaja (PLD 2003 SC 442), Syed Muhammad Ali v. Government of Balochistan (1999 PCr.LJ 1490), Malik Mushtaq Anwar v. District Magistrate, Lahore (1979 PCr.LJ 658), Part Cargo v Steamship "Zamora " (Privy Council Appeal No.109 of 1915), R. v. Secretary of State for the Home Department, ex parte Hosenball (All England Law Reports-452), Secretary of State for the Home Department v. Rehman (2001 UKHL-47), Karpal Singh v. Minster for Home Affairs and others (1989 LRC (Const) Malaysia -648), Teo Soh Lung v. Minister for Home Affairs and others ((1990) LRC (const) Singapore 490), Chan Hiang Leng Colin and others v. Minister for Information and the Arts (1997) 1 LRC -107 Singapore), Wang and others v. Chief of Staff, Supreme Headquarters, Lagos and others (1986) LRC (Const) Nigeria 320), H. Shah v. State of W.B. (AIR 1974 SC 2154), Mohd. Subrati v. 'State of W.B. (AIR 1973 SC 207), Reference No.01 of 1965 decided on 8th February 1965 (PLD 1966 (W.P.) Karachi 160), Bull v. Minister of Home Affairs ((1987) LRC (Const) Zimbabwe 547), excerpt from The Judiciary and Emergency Powers Australia, Second Edition, Cambridge University Press and various Terrorism laws applicable in the UK which concern pre charge detention and scholarly articles on this issue. Learned Additional Attorney General produced a notification issued by the Ministry of Interior where by the Federal Government had delegated its powers through section 33 of the ATA to Home Secretaries to issue orders under section llEE and as such in this respect he contended that the preventive detention orders issued by the Government of Sindh under the ATA had been legally issued. Addl. Prosecutor General Sindh under instructions of the Prosecutor General Sindh adopted the arguments of learned Advocate General Sindh. 9. We have heard the parties at length, considered the record and the relevant law including that cited at the bar . 10. At the outset we would like to note that Pakistan is governed by the Constitution of 1973 as amended from time to time which is a blend of secular law and Islamic law as is made clear by both the preamble of the Constitution and the Objectives resolution at Article 2(A) which forms a part of the Constitution. When the Constitution is read in
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a holistic manner it is apparent that the form of Government in Pakistan is one of Parliamentary democracy based on the trichotomy of powers between the executive, legislature and the judiciary where checks and balances on each organs powers are ensured by the other organs of State. The Constitution through numerous of its Articles ensures the independence of the judiciary and the rule of law and the due process of law as would be expected in any civilized society and Islamic welfare State. 11. In our view one of the key attributes of our Constitution is that it seeks to protec t and safeguard the rights of the individual from misuse or abuse of executive powers and does so by enshrining a number of fundamental rights which are found in Chapter one of the Constitution. It also in our view aims to strike a fair, legal and legitimate balance in preventive detention in appro priate cases in the interest of the State based on sound reasons and prevent such detention from being misused for ulterior purposes by the executive. 12. We set out below a number of the Articles of the Constitution in material part which we consider are relevant in terms of this petition with the most important ones, in our view , being Articles 9 and 10. Article 4 of the constitution (although not a fundamental right as per Chapter One of the Constitution) reads as under:- 4. Right of individuals to be dealt with in accordance with law, etc.---( 1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be and of every other person for the time being within Pakistan. (2) In particular-- (a) no action detrimental to the life, liberty , body , reputation or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not require him to do. Chapter One of the Constitution creates certain fundamental rights. Those Articles of the Constitution which create fundamental rights and set out the consequences of their breach which we consider applicable to the petition in hand are set out as under in material part. 8. Laws inconsistent with or in derogation of Fundamental Rights to be void.---( 1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter , shall, to the extent of such inconsistency , be void. (2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this. clause shall, to the extent of such contravention, be void. (3) The provisions of this Article shall not apply to--(a) Any law relating to member s of the Armed Forces, or of the Police or of such other forces as are charged with the maintenance of public order , for the purpose of ensuring the proper discharge of, their duties or the maintenance of discipline among them; or 1[(b) any of the-- (i) laws specified in the First Schedule as in force immediately before the commencing day or as amended by any of the laws specified in that Schedule; (ii) other laws specified in, Part I of the First Schedule;] and no such law nor any provision thereof shall be void on the ground that such law or provision is inconsistent with, or repugnant to, any provision of this Chapter . (4) Notwithstanding anything contained in paragraph (b) of clause (3), within a period of two years from the commencing day, the appropriate Legislature shall bring the laws specified in 2[Part II of the First Schedule] into conformity with the rights conferred by this Chapter: Provided that the appropriate Legislature may by resolution extend the said period of two years by a period not exceeding six months. Explanation. ---If in respect of any law 3[Majlis-e-Shoora (Parliament)] is the appropriate Legislature, such resolution shall be a resolution of the National Assembly . (5) The rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution. 9.---Security of person. No person shall be deprived of life or liberty save in accordance with law .
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10. Safeguards as to arrest and detention.---( 1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced befor e a Magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. (3) Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity , security or defense of Pakistan or any part thereof, or external affairs of Pakistan, or public order , or the maintenance of supplies or services, and no such law shall authorize the detention of a person for a period exceeding 1[three months] unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention, and, if the detention is continued after the said period of 1[three months], unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, suf ficient cause for such detention. Explanation I.- In this Article, "the appropriate Review Board" means, (i) in the case of a person detained under a Federal Law, a Board appointed by the Chief Justice of Pakistan and consisting of a Chairman and two other persons, each of whom is or has been a Judge of the Supreme Court or a High Court: and (ii) in the case of a person detained under a Provincial Law, a Board appointed by the Chief Justice of the High Court concerned and consisting of a Chairman and two other persons, each of whom is or has been a Judge of a High Court. Explanation II.---The opinion of a Review Board shall be expressed in terms of the views of the majority of its members. (5) When any person is detained in pursu ance of an order made under any law providing for preventive detention, the authority making the order shall, 2[within fifteen days] from such detention, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order: provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose. (6) The authority making the order shall furnish to the appropriate Review Board all documents relevant to the case unless a certificate, signed by a Secretary to the Government…
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