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P L D 1998 LAHORE 347

MEHRAM ALI alias YAWAR ALI
V/S
FEDERATION OF PAKISTAN

Per Malik Muhammad Qayyum, J.(a) Constitution of Pakistan (1973) Art. 5

While it is true that to be treated in accordance with law and law alone is the right of every citizen, but it is equally true that thee is no right in absolute terms without a corresponding obligation. Every person who claims to have a fundamental right must also show that he has performed his obligation towards the State as required by Article 5 of the Constitution of Islamic Republic of Pakistan, 1973. While interpreting a law like, Anti- Terrorism Act, 1997, this aspect and the purpose for which the Act has been enforced must be kept in mind. To protect the life and liberty of every citizen is the fundamental duty of the State and efforts made by it in discharge of this obligation for curbing terrorism should not be hampered with by the Judiciary, whose role is only to see that the Legislature while enacting law does not over-step its Constitutional limits. In view of the circumstances prevailing in the county, no legitimate exception can be taken to the creation of Special Courts with a view to provide speedy justice in cases of terrorism.

The contention, that as Courts constitution under the Suppression of Terrorist Activities (Special Courts) Act, 1975 already exist, Special Courts could not be created, loses sight of the fact that the Courts constituted under the Anti-Terrorism Act, 1997 have limited jurisdiction and are meant for trial of persons charged with commission of Terrorist Acts and that too only in areas where declaration of intent has been issued by the Federal Government under section 3 of the said Act. There is no bar under the Constitution or the law for setting up more than one Special |Courts and if the competent Legislature has so enacted, Court cannot question its wisdom as jurisdiction of the Court is limited only to finding out as to whether any provision of the Constitution or the Islamic Injunctions has been violated by enacting this law.

There is nothing in the Anti-Terrorism Act, 1997 which goes against the Islamic Principles of administration of justice which are not only sacred but are also very dear. While interpreting any law on the subject, the same has to be given due consideration as ordained by the Constitution itself especially the principles of public policy. [p. 356] C

(b) Administration of Justice—

It is a trite law that forum is matter of procedure and no one can claim any vested right in it. Consequently, the mere fact that the petitioners were liable to be tried bny the Special Court constituted under the Suppression of Terrorist Activities Act, 1975 and after the promulgation of the present Act, by the Special Court under the provisions stated therein, does not militate or offend against the Constitutional provisions especially when no prejudice has been shoen to have been caused to the accused. All this discussion appears to be academic inasmuch as section 38 itself provides that the punishment for the offences committed before the promulgation of the Act would be the same as authorised by law at the time when the offence was committed.

(c) Constitution of Pakistan (1973), Art. 12
r/w Anti-Terrorism Act (XXVII of 1997)

Retrospective punishment, protection against—Acts of which accused were found or alleged to have committed were offences at the time of commission of those offences and carried the same punishment which had been awarded to them by the Special Court/Appellate Tribunal under anti-Terrorism Act, 1997—Mere fact that accused were liable to he tried by the Special Court/Appellate Tribunal under Anti-Terrorism Act, 1997—Mere fact that accused were liable to be tried by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 and after the promulgation of Anti-Terrorism Act, 1997, by the Special Courts under the said Act, would not militate or offend against Art.12 of the Constitution of Pakistan especially when no prejudice had been shown to have been caused to the accused. [pp. 358, 359]

(d) Constitution of Pakistan (1973) Art. 14 & 199
r/w. Anti-Terrorism Act (XXVII of 1997)

Use of Armed Forces and Civil Armed Forces to prevent terrorism— Inviolability of dignity of man—Fundamental Right as guaranteed under Art. 14 of the Constitution of Pakistan is subject to law and must yield to ground realities—Use of powers by Armed Forces and Civil Armed Forces to prevent terrorism effectively upheld by High Court with a note of warning to all concerned that in case S.5 of the Anti- Terrorism Act, 1997 is misused for ulterior purpose or even otherwise is abused, person responsible for the same would have to face the consequences; if in a given case it is demonstrated that the power has been exceeded those responsible for the same can be taken to task—Legislation of Anti-Terrorism Act, 1997 cannot be struck known on the mere apprehension that same may be misused specially when nothing had been placed on record to show the misuse of power. [p. 359]

Dissenting Note :

Per Karamat Nazir Bhandari J.

The power contained in section 5(2)(iii)(of the Anti-Terrorism Act, 1997) to enter and search without warrant any premises is absolute, unqualified and unguided and, therefore violative of Article 14 of the Constitution. The Legislature has to lay down necessary conditions such as contained in Criminal Procedure Code, 1898, to place check on the powers of the Police Officer. The power in the present form is liable to be misused Similarly power under section 10 of the Act to enter and search the premises merely on subjective satisfaction of the Officer of the Police etc, as to existence of reasonable grounds for suspicion is unbridled, arbitrary and unguided and, therefore, in violation of Article 14 of the Constitution. This power to enter and search the premises for recovery of arterial or record has to be checked and made dependent upon conditions such as laid down in section 98 of the Criminal Procedure Code, 1898. [p. 361 & 362 V & W]

Making confession before Deputy Superintendent of Police admissible under section 26 of the Act is departure from the age old provisions and accepted position as laid down in the Evidence Act, 1872, as well as Qunun-e-Shahadat Order, 1984. But I am inclined to agree with the submission of the Attorney-General that the provisions only makes the confession of the Attorney-General that the provision only makes the confession admissible and does not bind the Special Court to act upon it. Forever the Legislature may consider the advisability of magisterial presence at the time of making of confession before the Deputy Superintendent of Police or some other measure so as to obviate the fear of extracting confessions by use of third degree methods or torture, a course prohibited by Article 13 and 14(2) of the Constitution. Till then, it is hoped the Special Court will be extremely slow in relying upon such a confession.

Power to amend the Schedule given in section 34 of the Act, to me seems to be a case of conferment of legislative power on the Government, which cannot be done. The Legislature cannot efface itself. In any case, it seems to be a case of excessive delegation as the section does not lay down the guidelines for the Government.

Section 38 to the extent that it makes an offence covered by section 6 of the Act, committed prior to the enforcement of the Act, triable under the Act, is unconstitutional and violative of Article 12.

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