The Constitution of Pakistan, 1973 Developed by Zain Sheikh

(a) Constitution of Pakistan (1973), Art. 9

We are inclined to agree that the provisions of section 5(2)(i) of the Act were not suitably amended as expressly mandated by this Court. If the provisions of section 5(2)(i)of the Anti-Terrorism Act, 1997 were not suitably amended as expressly mandated by Supreme Court,. If the provisions of section 5 of the Act in their present form are given effect to, it will create horrible and far-reaching consequences, inasmuch as, the law enforcing agencies cannot be given a licence to kill indiscriminately any persons who are allegedly involved in committing terrorist acts as defined under the Act or any of the scheduled offences. Clearly, such a right is to be exercised as a preventive measure and not made basis for launching an attack for retaliation, lest it would tantamount to legalising alleged police encounters/extra-judicial killings in the grab of exercise of power by a Police Officer vesting in him under section 5(2)(i) of the Act.

Such a course can never be countenanced in a civilised society, particularly, in Pakistan, where Islam is the State religion. It would also militate against the Objectives Resolution forming substantive part of the Constitution under Article 2A thereof, wherein it is, inter alia, provided that the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur’an and Sunnah. [p. 148] B

Furthermore, all the offences mentioned in the Act are not punishable with death, but are also punishable with imprisonment for life, or with rigorous imprisonment for various terms. [p. 149] C

It is incumbent upon the police force to act so as to enforce Article 9 of the Constitution, given in Chapter 1 thereof, which provides that no person shall be deprived of life or liberty save in accordance with law rather than to violate the same and expose himself to criminal prosecution. In this regard the principles enshrined in sections 99 to 106 of the Pakistan Penal Code are also instructive, which contemplate that police personnel cannot exercise the right of private self-defence more than what has been directed in the above sections. [p. 150] D

The Government should have kept in view the law declared by this Court in the case of Ch. Yaqoob (1992 SCMR 1983) and Mehram Ali (PLD 1998 SC 1445), therefore, section 5(2)(i) of Anti-Terrorism Act, 1997 as introduced by Ordinance XIII of 1999 to the extent, the same authorised the officer of Police, Armed Forces and Civil Armed Forces charged with the duty of preventing terrorism, to open fire order for opening of fire against person who in his opinion in all probability was likely to commit a terrorist act or any scheduled offence without being fired upon, was violative of Article 9 of the Constitution as well as the guidelines provided in the case of Mehram Ali and the same is held to be invalid to the above extent and required to be suitably amended. [p. 154] E

Section 5(2)(i) of the Act as introduced by Ordinance (XIII of 1999) to the extent indicated above is violative of Article 9 of the Constitution as well as the guide-lines provided in the case of Meharam Ali PLD 1998 SC 1445 and the same was held to be invalid to the above extent and required to be suitably amended. [p. 164] V

The judgment rendered in these petitions shall not affect the trials already concluded not convictions recorded in the Act as amended through Ordinances IV and XIII of 1999 and pending trail may continue subject to the above. [p. 164] Z

(b) Constitution of Pakistan (1973), Art. 4
r/w S. 7_A [as amended by Anti-Terrorism (Second Amendment) Ordinance (XIII of 1999].

Mr.Akram Sheikh, learned A.S.C. for the petitioners, was right in contending that Article 4 of the Constitution relating to the rights of individual to be dealt with in accordance with law, is in the nature of “due process” clause. To enjoy protection of law and to be treated in accordance with law is the inalienable right of every citizen and no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. No person shall be prevented from or be hindered in doing that which is not prohibited by law and no person shall be compelled to do that which the law does not require him to do. Every citizen has the inalienable right under the Constitution to know what is prohibited by law and what the law does not require him to do. It is, therefore, incumbent upon the State to express in clear terms susceptible of being understood by an ordinary citizen of what is prohibited and to provide definite standards to guide discretionary actions of police officers so as to prevent arbitrary guide discretionary actions of police officers so as to prevent arbitrary and discriminatory operations of section 7-A of the Anti-Terrorism Act, 1997. In other words, it must be spelt out from a bare reading of section 7-A as to what constitutes “internal disturbances”, “illegal strikes”, “go-slows” and “lock-outs” in terms of section 7-A of the said Act. [p. 157] P

(c) Constitution of Pakistan (1973), Arts. 4, 9, 14, 16, 19, 27 & 184(3)

In the instant case the offences of “illegal strike”, “lock-out” and “go-slow” have not been used with reference to dispute between workmen and employers, but were intended to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected with them and incidental thereto, as is apparent from a bare reading of the Preamble to the Act, It is, therefore, difficult to hold that the words “illegal strike”, lock-out” and “go-slow” have been used in the sense as defined in the Industrial Relations Ordinance. 1969, or in other labour or industrial laws. The words “illegal strike”, “lock-out” and “go-show” are wide open terms which include, apart from employer and employees engaged in commerce, trade and industry, other persons irrespective of their trade and calling. These terms, therefore, cannot be restricted merely to Labour Laws. Clearly, it would not be a fair or desirable interpretation to restrict the meaning of the above terms in the context of Labour Laws alone.

The meaning of “illegal strikes” are since doubtful the same may be asscertained by a reference to the words associated with it by applying the rule of Noscitur a socials. The rule that a word is known by the company it keeps, is not and ineluctable rule. It is applied wisely only where a word is capable of many meanings so that giving an unintended breadth to a statute may be avoided. Refer “interpretation of Statutes” by Vepa P. Sarathi.

It is well-settled rule of construction of statutes that if the words used are ambiguous and admit of two constructions and one of them leads to a manifest absurdity or to a clear risk of injustice and the other leads to no such consequence, the second interpretation must be adopted. Thus, for the smooth operation of the law and the purposes for which it has been enacted i.e. to provide for the prevention of terrorism, sectarian violation and for speedy trial of heinous offences, we are inclined to hold that the above terms have not been used in the restrictive sense but in a broader sense.

When faced with this Mr. Aziz A. Munshi, learned Attorney General did not dispute the above proposition of law but submitted that the terms “illegal strike”, “go-slows” and lock-outs” are to be read as ejusdem generic with the term “internal disturbances” in the context of “civil commotion” as envisaged by section 7-A of the Act.

The doctrine of enjusdem generic is well-settled. It means that where general words follow an enumeration of persons or things, by words of a particular and specific meaning such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. The application of doctrine of enjusdem generic was examined in Don Basic High School v. The Assistant Director, E.O.B.I. and others PLD 1989 SC 128, relevant passages thereof read as under :-

“However, the doctrine will apply when there is nothing in the provision or Act to show a wider sense was not intended or the intention to give to the general term a broader meaning than the doctrine requires was not manifested.

According to ‘Maxwell on the Interpretation of Statute, 12th Edition, page 297, it is well-established rule in the construction of statutes that general terms following particular ones apply only to such persons or things as are ejusdem generic with those comprehended in the language of the Legislature, R. v. Cleworth (1864) 4 B. & S. 927 per Cockburn C.J. at 932. In other words, the general expression is to be read as comprehending only things of the same kind as that designated by the preceding particular expression, unless there is something to show that a wider sense was intended (emphasis supplied). Reference is made by the author to R.v. Edwardson (1859) 28 L.J.M.C. 213).

According to Corpus Juris Secundum, Volume 82, page 658, the rule of doctrine of ‘ejusdem generic’ will apply unless intention to the contrary is clearly shown. The relevant passage may be quoted here. It reads:

‘Where general words follow the enumeration of particular classes of persons or things, the general words, under the rule or maxim of construction known as ‘ejusdem generic’, will be construed as applicable only to persons or things of the same general nature or class as those enumerated, unless an intention to the contrary is clearly shown.’

J.G. Sutherland, in his book “Statutes and Statutory Construction (Third Edition) in section 4910, at page 400 has stated that the doctrine applies when the following five conditions exist–

1- The statute contains an enumeration by specific words;
2- The members of the enumeration constitute a class;
3- A general term follows the enumeration; and
4- There is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires.”

The question still remains to be solved that in the absence of clear, certain and definite expression of the phrase “internal disturbances” not susceptible of being understood in terms of the language employed therein, an ordinary citizen will have no notice of what disturbances are prohibited which tantamount to “internal disturbances” in the context of “civil commotion” as defined in section 7-A of the Act. It is difficult to given an exhaustive definition of the term “internal disturbances”. It may be understood in the context of run down of the law and order situation in the country. Disturbances resulting in loss of life and property, disturbances resulting from large scale clashes between various factions of the problem, or where a Government finds it difficult to maintain law and order, to run the ordinary administration of the country, to keep open educational institutions and to ensure normal economic activity and functioning of the various State institutions could be termed as internal disturbance, depending upon the language in a statute. It is essential to define in clear and definite terms as to what constitutes and act of civil commotion in unambiguous words without derogation to the rights of the citizens to the enjoyment of rights guaranteed under Article 4 (right of individuals to be dealt with in accordance with law). Article 9 (security of person), Article 14 (inviolability of dignity of man), Article 16 (freedom of assembly) and Article 27 (equality of citizens) and Article 19 (freedom of speech and expression) and there shall be freedom of the press, subject to any reasonable restriction imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, commission of or incitement to an offence.

We are not persuaded to accept that the terms “illegal strike”, “lock-out” and “go-slow” are to be read in the context of Labour Laws, as argued by the learned Deputy Attorney-General. The learned Attorney-General was right in arguing that the above words are to be read ejusdem generic with the word “internal disturbances”. However, the difficult is that the words “internal disturbances” used in section 7-A are vague. The term “internal disturbance” may have various meaning depending upon the context in which it is used. The words “internal disturbance” and “civil commotion” connote temporary outbreak of unlawful violence, whereby the ordinary business of the community is, more or less, interrupted and it has the effect of uprising among the masses which occasion a serious and prolonged disturbance and insurrection. Civil disorder not attainting the situation of war or an armed insurrection, is a wild and irregular action with many persons assembled together. “Internal disturbance” is disturbance occurring in any part of the country which wrongfully interferes with the general tranquility in social and ordinary life of the people under the Constitution and the law. The meaning of the term “internal disturbances”, illegal strike”, lock-out” and “go-slow” must be expressed in definite terms for the purpose of section 7-A of the Act, in that, it would not be in the interest of justice to leave it to a Police Officer to apply the law which is vague and unintelligible. Constitutional guarantee of the Fundamental Right to have a trial is spelt out from Article 9 of the Constitution. An accused is not only entitled to pre-trial disclosure by the prosecution to the defence of relevant material specially the statement of witnesses under 161, CR.P.C but also pre-commission disclosure of the offence before being tried. It is the duty of the State to disclose in the law as to what constitutes an offence. Viewed from that angle section 7-A of the impugned Act to the extent indicated above is unconstitutional, in that, it infringes the presumption of innocence and does not meet the condition of reasonableness due to vagueness. Every citizen has a constitutional right to lead life in accordance with law and what is not prohibited by law. The vaugue definition of the words “internal disturbances”, illegal strike”. “lock-out and go-slow”, if allowed to continue in the statute in their”, “lock-out” and “go-slow”, if allowed to continue in the statute in their present form, could lead to imbalance in individual and community rights.