The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Ajmal Mian, C.J.

(a) Constitution of Pakistan (1973), Art. 14

r/w Anti-Terrorism Act (XXVII of 1997)

Power to enter or search—Inviolability of dignity of man—Provision of S.10 of Anti-Terrorism Act. 1997, in its present form being direct in conflict with Art.14 of the Constitution, is not valid; the same requires to be suitably amended as to provide that before entering upon a premises which is suspected to have material or a recording in contravention of S.8 of the said Act, the concerned Officer of Police, Armed Forces or Civil Armed Forces shall record in writing his reasons for such belief and serve on the person of premises concerned a copy of such reasons before conducting such search—Such declaration by Supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order.

Section 10 of the Anti-Terrorism Act, 1997, in its present from is not valid; the same requires to be suitably amended as to provide that before entering upon a premises which is suspected to have material or a recording in contravention of section 8 of the Act, the concerned officer of Police, armed forces, shall record in writing his reasons for such belief and serve on the person or premises concerned a copy of such reasons, before conducting such search. [p. 1462] B

Section 10 of the Anti-Terrorism Act, 1997 empowers and officer of the police, armed forces or civil armed forces on his being satisfied that there are reasonable grounds for suspecting that a person has in his possession some written material or recording in contravention of section 8, he may enter and search the premises where it is suspected that the material or recording is situated and may take possession of the same. This directly in conflict with Article 14 of the Constitution, which confers a fundamental right as to the dignity of man by, inter alia, lying down that the dignity of man and, subject to law, the privacy of home shall be inviolable. No doubt, that the above right of privacy is subject to law, the privacy of home shall be inviolable.No doubt, that the above right of privacy is subject to law but such law is supposed to be reasonable and in conformity with the constitutional mandate. In this regard, reference may be made to section 165, Cr.P.C., which authorises an officer in charge of a police station or a police officer making an investigation, if he is satisfied that reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence, which he is authorised to investigate, may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot, in his opinion, be otherwise obtained without undue delay, he may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search or cause search to be made, for such thing in any place within the limits of such station. The above provision is in consonance with Article 14 of the Constitution and, therefore, section 10 of the Act, in its present form, is not in accordance with law. The same should be suitably amended in order to provide that the concerned officer of police, armed forces or civil armed forces shall record and serve on the person of the premises concerned a copy of such reasons before conducting such search. [p. 1488] R

Such declaration by the Supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to as above. [p. 1462] I

(b) Constitution of Pakistan (1973) Art. 10

r/w. Anti-Terrorism Act (XXVII of 1997)

Procedure and powers of Special Court—Security of person—Safeguard as to arrest and detention—Provision of S.19(10)(b), Anti-Terrorism Act, 1997, which provides for trail of an accused in absentia on account of his misbehaviour in the Court, is violative of Art. 10 of the Constitution of Pakistan (1973) and thus invalid—Such declaration by supreme Court, however, will not affect the trials already conducted and conviction recorded under the act and the pending trial make continue subject to this order.

Section 19(10)(b) of the Anti-Terrorism Act, 1997, which provides for trial of an accused in absentia on account of his misbehaviour in the Court, is violative of Article 10 of the Constitution and, therefore, is declared as invalid. [p. 1462] C

Only clause (b) of subsection (10) of section 19 of the Anti-Terrorism Act, 1997 is violative of the fundamental right of access to justice. The above clause (b) of subsection (10) of section 19 authorises a Special Court to order the removal of an accused person from the Court if his behaviour is such as to impede the course of justice and then to proceed with the case in absentia. An accused person for his misbehaviour in Court can be convicted for contempt of Court and punished, but on no principle of law, he can be denied the right to be present and to defend himself in a criminal matte. The right of access to justice is a well recognised and inviolable right enshrined in Article 9 of the Constitution, which lays down that no person shall be deprived of life or liberty save in accordance with law. If an accused person is removed from the Court on account of his misbehaviour land in his absence the trial is concluded and he sentenced to death, he will be deprived of his life without due course of law. Secondly, under clause (1) of Article 10 of the Constitutional an accused person has the right to consult and be defended by a legal practitioner of his choice, in case he is arrested and detained.

The above provision is violative of the above Constitutional provision having no legal effect. [p. 1488] S

Such declaration by the Supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to as above. [p. 1462] I

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

r/w. Anti-Terrorism Act (XXVII of 1997)

Use of armed forces and civil armed forces to prevent terrorism—Security of person—Provision of S.5(2)(i), Anti-Terrorism Act, 1997 is violative of Art.9 of the Constitution of Pakistan—Such declaration by Supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order.

Subsection (1)of section 5 of the Anti-Terrorism Act, 1997 provides that any police officer, or member of the armed forces, or civil armed forces, who is present or deployed in any area may, after giving sufficient warning use the necessary force to prevent the commission of terrorist acts or scheduled offences, and in so doing shall, in the case of an officer of the armed forces or civil armed forces, exercise all the powers of a police officer under the Code. There is nothing wrong with the above provision. However, clause (i) of subsection (2) thereof empowers a police officer or member of the above forces, after giving prior warning, to use such force as may be deemed necessary or appropriate, bearing in mind all the facts and circumstances of the situation, against any person, who is committing, or in all probability is likely to commit a terrorist act or a scheduled offence. It also provides that it shall be lawful for any such officer, or any superior officer to use force, or to order the firing upon any person or persons against whom he is authorised to use force in terms thereof. The above provision is violative of Article 9 of the Constitution which guarantees that no person shall be deprived of life or liberty save in accordance with law. [p. 1487] P

Declarations is respect of the provisions of the Act referred to hereinabove will not affect the trials already conducted and conviction recorded under the At and the pending trials may continue subject to above as ordered by the Court in the short order [p. 1495] GG

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

r/w. Anti-Terrorism Act (XXVII of 1997)

Use of armed forces and civil armed forces to prevent terrorism—Security of person—Conferment of power on the officers referred to in S.5(2)(i), Anti-Terrorism Act, 1997 without being fired upon by the accused is not justifiable—Provision of S.5(2)(i), Anti-Terrorism Act, 1997 being not sustainable in its present from, supreme Court directed that said provisions may be amended providing that the officer can fire upon an accused person if he has been himself fired upon by him—Such declaration by supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order.

The conferment of power on the officers referred to in clause (i) of subsection (2) of section 5 without being fired upon by the accused, is not justifiable. An officer of any of the above forces under the present provision can kill any person, if he considers that in all probability the former is likely to commit a terrorist act or scheduled offence. The formation of opinion as to the probability or likelihood of commission of offence will vary form person to person as it depends on subjective satisfaction. There is no check or guideline provided for the exercise of the above power conferred by the above provision. The aforesaid provision in its present form is not sustainable. The same may be amended and it may be provided that the officer can fire upon an accused person if he has been himself fired upon by him. [p. 1487] Q

Declarations in respect of the provisions of the Act referred to hereinabove will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to the above as order by the Court in the short order. [pp. 1495, 1462] GG & I

PER: Irshad Hassan Khan,

(e) Constitution of Pakistan (1973) Art.37(d)

r/w. Anti-Terrorism Act (XXVII of 1997)

Promotion of social justice and eradication of social evils—No objection can be taken to the establishment of Special Courts for speedy Trials and prevention of terrorist acts/heinous offences under the Anti-Terrorism Act, 1997—Such Courts being validly constituted Courts are subordinate to the High Court and have to perform judicial functions under the Constitution and provisions contained in the Act (except which have been declared ultra vires).

“Efficiency in the Courts’ is serious national problem, an expression of greater public concern than even the threat of war. Article 37(d) of the Constitution of Islamic republic of Pakistan, 1973, enjoins upon the State to ensure ‘inexpensive’ and ‘expeditious justice’. Thus visualized, speedy resolution of civil and criminal cases, is an important Constitutional goal, as envisaged by the principles of policy enshrined in the constitution. It is, therefore, not undesirable to create Special Courts for operation with speed but expeditious disposition of cases of terrorist activities/heinous offences have to be subject to Constitution and law. Viewed in this perspective, no objection can be taken to the establishment of Special Courts for speedy trials and prevention of terrorist acts/heinous offences under the Anti-Terrorism Act, 1997. [p. 1497] KK

The Special Courts are, therefore, validly constituted Courts but they have to perform judicial functions under the Constitution and the provisions contained in the Act except those which have been declared ultra vires. [p. 1498] LL

A special Court is a Court subordinate to the High Court. It has to act under its supervision and control. [p. 1499] NN