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National Cyber Security in Pakistan

(Under the Provisions of Pakistan Protection Act 2014 and Investigation of Fair Trial Act 2013)

Preface Cyber security is basically a concept that emphasis to secure electronic information systems or interconnected information systems, electronic hardware, software, installations and online infrastructure. All over the world, every country has much concern to protect their national cyber security infrastructure through enacting various new laws. In US the wiretap act, the computer fraud and abuse act, the economic espionage act and identity theft laws provide passable mechanism which ensure to secure the national cyber security infrastructure. In Pakistan exiting electronic laws provide plentiful strong rationale as cyber security securing all communication over the internet and all national online infrastructures. Electronic Transaction Ordinance 2002, the section 36, 37 and 38 and Payment System Electronic Funds Transfer Act 2007, Investigation for Fair Trial Act 2013 and Schedule provided in Pakistan Protection Act 2014 offer a deterrent against cyber crimes and breach of online social norms. Pakistan Protection Act 2014 The section 2(i) provides a schedule, wherein subsection (ix) destruction of or attack on communication and interaction lines, devices, grids, stations, or systems etc, (xiv) crimes against computers including cybercrimes, internet offenses and other offences related to information technology etc. The aforesaid enactment is first and foremost to provide legal mechanism to secure national cyber security infrastructure. This book along with comprehensive relevant up to date case laws commentary of law is perfect description that presents clear explanations of the legal principles, practice and procedure under governing the rights, duties, and liabilities. The commentary of this book is utmost beneficial for lawyer, judges, bankers and law students. It is currently the only book with extensive up to date commentary published in Pakistan. All copy rights are reserved to the Author of this book. Shahid Jamal Tubrazy Edition 2013-2014

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Pakistan Protection Act 2014

Historical Background

Though the history of crimes against the state clearly can be traced back to the early Germanic law of

treason, the beginnings of the modem law can be found in the forms imposed by Rome on the defeated

Germanic peoples. The more complex and absolutist Roman law, or crimen laesue majestalis was

adopted once the Roman Republic had degenerated into the autocratic Roman Empire. The concept of

crimen Iaesae majesralis corresponded to the requirements of the imperial state, effectively established

by the anointment of Augustus as the first emperor (initially known as Princeps or first citizen‟) in 27

BC.

The Roman law of treason developed into abroad doctrine, protecting both the person and authority of

the Emperor. It included major offences such as taking up arms against the state, delivering provinces

or towns from Roman rule, sedition or insurrection, plotting against the life of the Emperor or his

principal officers, and lesser acts such as destroying the statutes of the Emperor or insulting the

memory of a deceased Emperor.

After the fall of Rome, crimen Iaesae majesralis was vanished to the West for hundreds of years.

Treason re-emerged primarily in feudal clothes, focused on feudal notions of responsibility. Early Germanic treasons of assisting the enemies of one‟s tribe and betraying one‟s lord were rejuvenated

and modified to cover serious breaches of the vassal‟s pledge of fealty. The terms „treason‟ and

„sedition‟ were used interchangeably, and mere treasonable or seditious words were considered

sufficient for punishment. In the feudal system, treason could be committed against one‟s lord,

regardless of whether he was king, but feudal law also recognized an entitlement of vassals to rebel if

the lord persistently denied justice to them.

Roman legal doctrines were reawakened in Western Europe after the eleventh century as power was

consolidated in the hands of absolute or near-absolute monarchs. These kings adapted the Roman

concept of crimen Iaesae majeslalic for their offences against the state, and in France the outcome was

the broad crime of lèse-majesté, which was employed until the French Revolution of 1789. This

consolidation of socio-cconomic power found reflections in the writings of the Dominican, St Thomas

Aquinas, who contended that subjects obliged to obey even unjust laws if disobedience would create

civil disorder.

The English law developed to protect the king only, not the lesser lords, and included not just acts

against him hut also striving, plotting or compassing such acts (the general law categories of attempt and

conspiracy had not yet developed; in fact they have their origins in the early law of treason, in

compassing the king‟s death). To assassinate the monarch was considered so serious that even an intent

or attempt to kill the king was itself treason. While traces of Germanic, feudal and Roman law can be

detected in the 1351 Statute ofTreasons „the first English codification‟ it consolidated the transformation

of the crime of treason into one against the person and authority of the sovereign who embodied the

state, and abolished the feudal right of the vassal to wage war on an unjust lord. The Statute contained

three main offences:

(1) Compassing the death of the monarch;

(2) Lying war against the king in his realm; and

(3) Adhering to the king‟s enemies in his realm or elsewhere.

The enactment also established various ancillary crimes, such as violating the king‟s companion, counterfeiting the king‟s seal and killing the chancellor or the king‟s justices.

Over the subsequent centuries, at times of crisis, English monarchs added more detailed and

oppressive laws to the Statute. Judicial interpretations also enlarged the legislation. Thus compassing

the king‟s death‟ was held to apply where the king was in no actual physical danger and included

plotting to depose him, conspiring with a foreign prince to levy war on the realm

and intending anything that might expose the king to personal danger or deprivation of any authority

„Levying war‟ was interpreted to cover any amount of violence with a political object, from riot to

revolution.

As the struggle between the emerging capitalist class and the monarchy began to develop in the lead up

to the English Revolution of the seventeenth century, sedition arose as a crime distinct from treason.

Although a 1275 statute had already codified the offence of defaming public figures through the

dissemination of b false news, the invention of the printing press drove the monarchy‟s interest in

prohibiting the expression and dissemination of critical ideas. On behalf of the monarchy, the Star

Chamber fashioned the seditious libel as a terrible weapon against the rising parliamentarians, with

punishments that could, according to the 1606 case of De Libe/lis Farnosis ((1606) 77 ER 250) include

pillory and loss of ears. The notorious Star Chamber asserted its jurisdiction at the expense of the

ordinary courts, which resisted the conviction of individuals for disrespectful utterances against the king.

Following the abolition of the Star Chamber by the Long Parliament in 164I. however, the ordinary

courts developed the offence further. A turning point came during the politically fragile years after the

Glorious Revolution. Anxious to secure its position, the new regime under William III and Mary

adopted a harsh policy toward political dissent, and the courts followed suit in 1704 by holding that it

was a crime to defame the government, as well as to libel an individual figure associated with the

establishment. In effect, in the case of Tutchin ((1704) 91 Eng Rep 1224; 14 St Tr (OS) 1096), the

judges reversed a century of common law precedents that confined seditious libel to the defamation of

some particular person.

The Sedition Act of 1798

A brief historical review discloses a pattern of resort to criminal prosecutions or other repressive

measures in every period of political chaos. The 1776 Declaration of Independence proclaimed the right

to revolution and the inalienable rights to life, liberty and the pursuit of happiness. Just two decades

later, however, the US Congress passed the Sedition Act of 1798, citing a potential war with France.

The Act prohibited any person from writing, publishing or uttering anything of a „false, scandalous and

malicious‟ nature against the US government, the Congress or the President with intent to defame them or bring them into „contempt or disrepute‟. A congressman, Matthew Lyon was indicted for accusing President Adam‟s administration of a

continual grasp for power -- an unbounded thirst for ridiculous pomp, foolish adulation and selfish

avarice‟. Lyon was jailed for four months, but successfully campaigned for re-election from his prison

cell. The administration had argued that the legislation liberalized the common law by requiring

malicious intent, making truth a defence and specifying that juries must decide whether an utterance had

a seditious effect. These reforms, however, proved illusory. By 1801, when the Act expired, 25 well-

known Republicans had been arrested under it. Ten cases went to trial, all resulting in convictions, and

some ended in jail terms of up to nine months. In addition, the majority Federalists initiated several

common law prosecutions for seditious libel. Under the Sedition Act, the most severe sentence was

imposed on David Brown, a vagabond radical who agitated in the name of liberty against the Sedition

Act and other legislation, such as the Stamp Act and the Aliens Bill. The presiding judge, Justice Samuel Chase, branded Brown a „wandering apostle

of sedition‟ and sentenced him to a fine of $450 and IX months in prison (Brown served 20 months

because he could not pay the fine).

It is true that in 1801, the incoming President Thomas Jefferson pardoned all those who had been

convicted under the Sedition Act, and 40 years later Congress repaid all the tines imposed under it. More

than 150 years further on, the Supreme Court declared, in New York Times y. Sullivan (376 US 254

(1964)). That the lesson to be drawn from the debate over the 1 798 Sedition Act was that debate on

public issues should be „uninhibited, robust and wide-open‟. The judges suggested that although the Act

was never tested in the court, it had been held invalid by „the court of history‟. Nonetheless, belated

declarations of commitments to free speech do not alter the record of what actually happened, and

constitute no guarantee against similar practices in the future.

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Pakistan Protection Act 2014 Sedition and Mutiny: Anti- National Activities bail rejected:

Criminal Procedure Code (Cr.P.C) . S.497--Suppression of Terrorist Activities (Special

Courts) Act (XV of 1975), S.5(6)--Penal Code (XLV of 1860), S.124-A--Prevention of

Anti-National Activities Act (VII of 1974), S.13--Bail--sedition -Anti-national activities--

Provisions of 5.497, Cr.P.C. are to be read subject to restrictions imposed by S.5(6) of Act

of 197 which is a special law and its provisions have precedence over those of Cr.P.C.-

Material available on record showing that applicants did actively participate in Jalsa

organised by one of applicants and, therefore, in order to constitute a prima facie case

against applicants it was not necessary to establish at this stage as to what was exactly said

by them in their speeches or that who was principal offender and who was abetter as

determination of such questions would tantamount to prejudging the case at a stage when

trial of accused was still to begin--Station diary maintained by Police although did not

specifically refer to some of applicants as persons who had made speeches at the function

but it was difficult to ignore Press cuttings as no enmity had been alleged between

applicants and 1 Press Reporters and consequently it could be said at this stage that there

were no reasonable grounds to believe that the applicants had committed offences alleged

against them--Bail applications rejected. 1987 MLD 2181 KARACHI

Sedition meanings:

Defence of Pakistan Rules, 1971, rr. 42, 49 do 210 and Penal Code (XLV of 1860), S.

124-A-Sedition Language of impugned statement, though, upon proper construction and in

fact, not so meaning, yet capable of meaning that Army Officers have been unfairly dealt

with, that letters of some officers have been utilized by Government for malicious political

ends, etc. and in their context tending to excite dissatisfaction among members of Armed

Forces etc.-Cannot be said, in circumstances, that no reasonable grounds exist to believe in

guilt of accused-Bail accordingly refused. It was argued that there was nothing in the

statement which could come under section 124-A of the Penal Code or in the definition of

`prejudicial act'. It was stated that this was a mere comment upon what was being done and

although some of the references were clearly to Government, Government was not as such

named. Held : There is language used in the statement which is capable of meaning that

officers of the Army have been unfairly dealt with, that letters of certain top ranting

military officers have been utilized by the Government for a malicious political end.

Moreover the word 'we' could be construed as referring to the body of men of which the

accused himself has been a very senior officer; indeed a little earlier the expression is 'we

soldiers'. It can very well be that this word tended to excite dissatisfaction among members

of the Armed Forces, or to bring into hatred or contempt or to excite dissatisfaction

towards the Government or to excite similar feeling against the Armed Forces : all matters

which come within the three clauses of rule 42(6). The Court for obvious reasons felt

disinclined to hold that they in fact and on a proper construction do come within these

clauses. It was enough to say that they can be so construed and if it is so then clearly the

Court could not be satisfied within the meaning of rule 210 that there were no reasonable

grounds to believe in the guilt of the accused. In conclusion bail was refused and the

application was accordingly dismissed. 1973 P Cc. L J 935 [Karachi]

The dissemination of sedition:

Frontier Crimes Regulation 1901 S. 40. Applicability of section-Constitution of Pakistan,

Art. 170. Criminal Procedure Code (V of 1898), S. 107. Action under section 40 of the

Frontier Crimes Regulation can be taken against a person only, if it is necessary for the

purpose of preventing murder or culpable homicide not amounting to murder, or the

dissemination of sedition , and not otherwise. 1957 PLD 147 PESHAWAR

Speech falling under offence of sedition:

Charge Charge-Same speech falling under offence of sedition as well as under that of

effecting a public mischief-Alternative charges, whether could be made into separate

substantive charges-- Criminal Procedure Code (V of 1898), Ss. 233, 235 & 236. 1956

PLD 61 PRIVY-COUNCIL

The essence of the crime of sedition consists in the intention:

S. 124 A "Sedition" ¬Essence of Intention of writer Article to be read as a whole. The

essence of the crime of sedition consists in the intention with which the language is used

and such intention has to be judged primarily by the language used. In arriving at its

conclusions as to the intention of the accused the Court must have regard to the occasion

on which and the circumstances in which the writing was published or representation

made. Criticisms or condemnation of measures taken or policies pursued by the

government with a view to their withdrawal or alteration cannot per se be seditious. It is

not every kind of disaffection, hatred or contempt which would constitute sedition. It is

that degree of disaffection, hatred or contempt which induces" people to refuse to

recognize the government at all and leads them to un constitutional methods which is

essential before a charge of sedition can be held to be established. The writing or

representation has to be read as a whole and in a fair, free and liberal spirit. 1954 PLD 80

SINDH-CHIEF-COURT

Calling government as enemy if Islam:

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Press (Emergency Powers) Act 1931 . -Ss. 3, 4, 7 and 23-sedition -To call Pakistan

Government as "enemy of Islam" and to stigmatise it as "irreligious" and fostering spirit

of "indifference to God and Prophet" is to inflame popular mind and ignorant people in

particular in revolt against State itself--This is gist of offence of sedition. 1952 PLD 573

LAHOREAbetting Mutiny or attempting to seduce a solider from duty was not

disclosed:Ss. 124-A, 131/109, 505(a), 468, 471, 500 & 469. Criminal Procedure Code (V

of 1898), S. 196. Sedition, abetting Mutiny , statement conducing to public mischief,

forgery for purpose of cheating, using as genuine a forged document, defamation,

forgery for purpose of harming reputation. Appreciation of evidence. Section 124-A,

P.P.C. was not only non-cognizable, but there was no concept of registration of case

thereunder by local police. Cognizance of the case under S. 124-A, P.P.C. could only be

taken on the complaint instituted by the Federal Government, which was lacking in the

case. Federal Government had not either specifically examined the case or taken a

decision to file a complaint regarding the commission of the alleged offence. Despite all

this, police had taken cognizance of the offence, investigated the case and filed the

challan against the accused in which ultimately he had been convicted and sentenced.

Entire proceedings started from the registration of the case, investigation, submission of

challan in the court, proceedings before the court and culminating into the impugned

conviction, were not sustainable in the eyes of law. Non-compliance of the mandatory

provisions of S. 196, Cr.P.C. couched in the negative language, had also vitiated the

entire proceedings. In the absence of the order by the Government as required by S. 196,

Cr.P.C. Trial Court had no jurisdiction to hold a judicial inquiry and trial. Mandatory

provisions of the Code of Criminal Procedure, inter alia, the registration of the case,

investigation, recording of statement under S. 164, Cr.P.C. and S. 196, Cr.P.C. had been

violated. Rules of procedure were meant to ensure the right to liberty of the accused and

due dispensation of justice. Moreover, case against the accused could have not been

registered by any one of an incident taken place within the precincts of the National

Assembly, except by the speaker who was designated as "Custodian of the House". No

person, whosoever, except the speaker was competent to take notice that case against the

accused was registered at the behest of the State Functionaries after nine days of the

alleged commission of the offence in the Cafeteria of the National Assembly (Parliament

House), which was an integral part of the (Parliament House). Parliament House was not

confined to the Chamber of sitting of the National Assembly, but the precincts of the

House were also part and parcel of the House. Complainant in the case was a retired

Army Officer and this fact has not only been suppressed at the time of lodging the F.LR.,

but also during investigation and even before the Trial Court. Another prosecution

witness was a serving captain of Pakistan Army posted at GHQ. Trial court had failed

to dilate upon the essential elements to prove the criminal charges and the requisite

mens rea without which there could be no criminal offences. Basic element of S. 131,

P.P.C. of abetting Mutiny or attempting to seduce a solider from duty was not disclosed

from the prosecution evidence. Accused was acquitted in circumstances. 2010 PCrLJ

1809 LAHORE

Principle of double jeopardy:

Criminal Procedure Code (V of 1898), S.403. Constitution of Pakistan (1973), Art.13.

Field General Court Martial of civilian. Mutiny . Scope. Offence of theft. Mala fide in law.

Separate trials. Principle of double jeopardy. Applicability. Civilian contractors and Air

Force officials were involved in theft of jet petroleum. Authorities conducted separate trial

of Air Force officials who were convicted for theft only whereas civilian contractors were

put to Field General Court Martial on the charges of Mutiny and endeavoring to seduce

officers of Air Force from their duty or allegiance to government. Validity. Offence

committed by accused persons was theft simpliciter as defined by S.52 of Pakistan Air

Force Act, 1953, read with S.34, P.P.C. for which civilians could not be tried by Field

General Court Martial. Offence was proved to be theft by Field General Court Martial

which tired its won officers for the offence of theft, therefore, trial of civilians by Field

General Court martial was coram non judice, without jurisdiction and mala fide in law,

where provisions of S.2(dd)(i) of Pakistan Air Force Act, 1953, read with S.37(e) of the

Act, were remotely attracted so as to bring civilian accused within their jurisdiction.

Civilian accused were subject to normal law of land and the same was recognized by

Pakistan Air Force Act, 1953 as well except when they were guilty of commission or

attempt to commit offence of sedition or Mutiny . Mala-fide in law was apparent from the

fact that Pakistan Air Force Officers accused were not only tried for much smaller offence

as compared to civilian accused but punishment awarded to such accused officers were

more than four times lesser than that awarded to civilian accused. In service, officers of

highly disciplined force should have been punished more severely as compared to civilian

contractors. Pakistan Air Force officers should also have been booked for corruption and

corrupt practices. Such disparity in punishment was merely referred by Supreme Court

only to highlight mala fide in law, otherwise it was irrelevant when trial of accused

happened to be without jurisdiction and without lawful authority by unlawfully attracting

provisions of Ss.2(dd)(i) and 37(e) of Pakistan Air Force Act, 1953, in order only, to hook

civilian contractors. Such trial of civilian accused was male fide in law thereby rendering

trial as coram non judice and without jurisdiction, thus conviction as 'well as' sentence

awarded to civilian accused were void and unlawful. Supreme Court found it amazing

rather stunning situation as same evidence in same set of circumstances in one trial against

Air Force Officers was treated as theft while against civilian accused it was treated as

Mutiny . If civilian accused had seduced Air Force Officers from their duty or allegiance

to government and hence Mutiny , then Air Force officers must also have been tried for

Mutiny and then it would have sounded to be based on' equality but still unreasonable

because under no stretch of imagination, theft could be transformed into Mutiny . Even if

one civilian instigated military officer for any insubordination etc. it could not fall under

S.37(e) of Pakistan Air Force Act, 1937, because not an individual but collective act of

insubordination could be dubbed as Mutiny . As accused have already remained in jail for

a period longer than the sentence of Air Force Officers, their fresh trial by regular Courts

of country would be nothing but a double jeopardy and violative of Art.13 of the

Constitution read with S.403, Cr.P.C.. Conviction and sentence awarded to civilian

accused by Field General Court Martial were set aside and they were acquitted of the

charge under S.37(e) of Pakistan Air Force Act, 1937. Appeal was allowed. 2009 PLD 866

SUPREME-COURT

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Disobedience of superior officers

Pakistan Air Force Act 1953 S. 35-Air Force Act (VI of 1953), S. 37-Mutiny -"Living-

in" airmen's disobedience of superior officer's order to dine in Air Force mess-

Punishable. Order "lawful" as being not against any law though not passed under any

specific law. 1959 PLD 482 LAHORE

Sedition embraces all those practices, whether by word, deed or writing:

The language of clause (d) is precisely the same as is used in section 124-A of the

Indian Penal Code known as "sedition". "Sedition embraces all those practices,

whether by word, deed or writing, which are calculated to disturb the tranquility of the

State and lead ignorant persons to subvert the Government. The objects of sedition

generally are to induce discontent and insurrec¬tion, to stir up opposition to the

Government and to bring the administration of justice into contempt; and the very

tendency of sedition is to incite the people to insurrection and rebellion: Sedition has

been described as disloyalty in action, and the law considers as sedition all those

practices which have for their object to excite discontent or disaffection, to create

public disturbance, or to lead to civil war, to bring into hatred or contempt the

soveregin or Government, the laws or the constitution of the realm and generally all

endeavours to promote public disorder." P. L. D. 1950 Lahore 234

Treason: Aiders and abettors:

Provisional Constitution Order [1 of 2007], Preamble. Oath of Office (Judges) Order,

2007, Preamble. Criminal Law Amendment (Special Courts) Act (XVII of 1976), S.

6(1)(g). Constitution of Pakistan, Art. 6. Penal Code (XLV of 1860), S. 107. Trial for High

treason . Proclamation of State of Emergency, putting of Constitution in abeyance, and

removal of Judges of the Superior Courts by the accused (the then President of Pakistan

and Chief of the Army Staff). Aiders and abettors of such actions. Scope. Plea of accused

that Governors of all four Provinces, Chairman Joint Chief of Staff Committee, Chiefs of

the Armed Forces and Vice-Chief of Army Staff, Corps Commanders of the Pakistan

Army, also participated in the decision making process which culminated in the

Proclamation of State of Emergency; that the then members of the Cabinet and National

Assembly endorsed the Proclamation of Emergency and passed a resolution in its favour;

that all said officials were abettors of the alleged offence and should be joined as co-

accused in the present trial for High treason . Validity. Active complicity i.e. participation

in the commission of a crime was an essential ingredient of "abetment" as defined in S.

107, P.P.C., which made a person accessory to a crime. Mere endorsement was not active

complicity in the commission of a crime to make a person an accessory for the crime.

Governors of the four Provinces at that time, the then Chairman Joint Chief of Staff

Committee, the then Chiefs of the Armed Forces, the then Vice-Chief of Army Staff and

the then Corps Commanders of the Army though at the relevant time held responsible

positions and were serving the nation by playing their assigned roles, but except for

engaging in a briefing, nothing else was attributed to them. Record of the present trial

showed that none of the said officials had any constitutional role to play in the imposition

of Emergency in any manner. Mere endorsement of the acts of accused by members of the

Cabinet and National Assembly could not be treated as an act of abetment. At best those

who endorsed the actions of accused without contributing towards commission of the

offence, could be regarded as 'accessory after the fact'. Plea of accused for implicating said

officials in the present trial was not sustainable. Application was disposed of accordingly.

2015 PCrLJ 1 SPECIAL-COURT-ISLAMABAD

Discretion to direct trial for High treason: Art. 6. Criminal Law Amendment (Special Courts) Act (XVII 1976), Preamble. High

treason , offence of. Discretion to direct trial for High treason . Such discretion laid

with the Executive. Violation of Art. 6 of the Constitution had two

aspects/consequences i.e. constitutional and criminal. 2014 PLD 585 SUPREME-

COURT

Discussion on sub judice matters on electronic and print media

Ss. 20(n) & 30A. Criminal Law Amendment (Special Court) Act (XVII of 1976), S.6(2).

Constitution of Pakistan, Arts. 204(2)(c) & 199. Constitutional petition. Alternate

remedy. Discussion on sub judice matters on electronic and print media. Contempt of

court. Petitioner referred to various statement in the press and media in relation to

treason trial conducted by Special Court constituted under Criminal Law Amendment

(Special Court) Act, 1976. Contention of the petitioner was that such discussions and

statements under Art.204(2) were punishable as contempt of court. Validity. Contentions

of the petitioner had an element of force, however his propositions should be examined

after the same had been confronted to the concerned regulatory authority, PEMRA.

Petitioner's apprehensions need not constitute a crystallized case for contempt of court in

order for remedy before the Special Court under S.6(2) of the Criminal Law Amendment

(Special Court) Act, 1976 to be invoked. High Court directed that petitioner first ought

to avail his remedy before the concerned regulatory authority, PEMRA, and thereafter

could challenge any act of commission or omission by PEMRA within the parameters of

Art.199 of the Constitution. Constitutional petition was disposed of, accordingly. 2014

PLD 210 LAHORE

Complaint of High Treason:

S. 3. Criminal Law Amendment (Special Court) Act (XVII of 1976), S. 4(1). Constitution

of Pakistan, Arts. 90 & 99(3). Complaint for high treason . Maintainability. Procedure.

Person authorized to make a complaint for high treason . Scope. Consultation between

Prime Minister and Federal Ministers. Plea of accused that Federal Government as defined

in Art. 90(1) of the Constitution consisted of the Prime Minister and the Federal Ministers,

hence there had to be a collective decision on their part, but in contravention thereof the

decision to file the present complaint was taken solely by the Prime Minister without

consulting the Federal Ministers. Validity. Accepting said plea of accused would make

provisions of Art. 99(3) of the Constitution redundant and any business of the Federation,

if not placed before the Prime Minister and the Federal Ministers for their approval, would

be regarded as invalid. Such an interpretation of Art.90(1) of the Constitution would

hamper the entire functioning of the Federal Government. Article 90(1) of the

Constitution was not incorporated with such an intent. Complaint was held to be

maintainable accordingly. 2014 PCrLJ 684 ISLAMABAD

High Treason, Retrospective punishment:

Art.12. Protection against. Retrospective punishment. Scope. Legislature has unfettered

powers to make laws with retrospective effect which include substantive law and law of

procedure. Restriction under Art.12 of the Constitution has been imposed on the powers of

legislature to the effect that it cannot make laws to punish acts or omissions of the past

which by then were neither declared offences by law nor any punishment was provided

therefore. Only exception created under. Art.12(2) of the Constitution, covers the offence

of high treason . Giving retrospective effect to any new enactment which enhanced

punishment for offence from one which was provided for the same offence under law

prevailing at the time when the offence was committed, has been prohibited under Art.12

of the Constitution. 2007 PLD 179 PESHAWAR

World treason would not synonymous with word high treason:

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Constitution of Pakistan 1973 Art. 6--High treason (Punishment) Act (LXVIII of 1973),

S.2--Penal Code (XLV of 1860), Ss. 120-A to 130--Houses of Parliament and Provincial

Assemblies (Election) Order (5 of 1977), Art. 10--Word "treason ", connotation of--

Word "treason " having not been used in Ss. 120-A to 130 of Penal Code, 1860 word

"high treason " though used in High treason Act, 1973 would not be synonymous with

word "treason "-While dealing with proceedings under Art. 10 of President's Order 5 of

1.977, dictionary meaning of word "treason " would have no relevance-"treason " being

not one of offences made punishable by Penal Code, 1860, non-traversing of same

specifically could not be made basis for culling out admission.--[Words and phrases].

1986 CLC 1464 LAHORE

Rebellion: Publishing sectarian hatred among youth and provoking terrorist attacks S. 497. Propagating, publishing religious/sectarian hatred among youth, provoking terrorist

attacks and militancy, recovery of books containing contemptuous, sacrilegious material.

Bail, grant of. Heinousness or seriousness of an offence meant little unless same

(allegation) was backed by cogent and believable evidence which lacked in the present

case. 'rebel lious conduct' of accused had been highlighted in F.I.R. by using different

adjectives without hinting at any incriminating circumstance against him. No evidence

existed to show that accused possessed books in question to stir up religious, sectarian or

ethnic differences. Contents of books recovered from accused were blown out of

proposition. Books in question contained no mutinous material. Accused wrote books in

accord with his understanding of Islam seeking guidance from the Holy Quran. Whether

possession of said books constituted alleged offence would be determined at trial.

Allegations against accused were not backed by connecting evidence. Offences did not fall

under the prohibitory clause of S.497(1), Cr.P.C.. Accused had been behind bars for last

one month and was no more required for the purpose of recovery. Bail application was

accepted. 2015 YLR 397 LAHORE

Rebel against government:

Criminal Procedure Code (Cr.P.C) . -Ss. 196 & 497. Penal Code (XLV of 1860), S.124-A.

Bail, grant of--Accused persons who were leaders of a big political party held indoor

meeting in connection with Pakistan Day and before holding said meeting the organizers

of the party obtained due permission from the concerned Authorities. Allegation against

the accused was that they had delivered seditious speeches in front of a gathering of

approximately ninety person--F.I.R. had disclosed that in the opinion of the complainant

the speeches delivered by the accused were seditious in nature within the meaning of

S.124-A, P.P.C. but the F.I.R. did not contain either whole text or the salient features of

the speeches delivered by the accused. Merely subjective opinion of the complainant

lacking the objective criteria would show that case was of further inquiry and it was for

the Court to determine as to whether the words spoken by the accused were seditious or

not and could not be left to the judgment of the witnesses. Court had to consider speeches,

in fair, free and liberal spirit and not in a narrow-minded or sectarian way-- Passing

reference was made to the diary maintained by the police and no portion of said diary

containing alleged offending speeches were read in the Court. Whether there was a refusal

to recognize the Government or a call to rebel against Government or to resort to un-

Constitutional measures by use of force as to disturb the public peace, was yet to be

determined through evidence by the Court. Case against the accused being of further

inquiry, they were entitled to grant of bail. 2001 PCRLJ 1199 LAHORE

Unlawful assembly: The unlawful assembly having actively participated in the crime:

S. 497. Penal Code (XLV of 1860), Ss. 302, 148 & 149. Qatl-i-amd, rioting, common

object. Bail, refusal of. Incident was a daylight occurrence. Accused along with his co-

accused had severely thrashed the deceased with kicks, fists, sticks and handle of hatchet

and the deceased succumbed to injuries within three hours. Four eye-witnesses in their

statements recorded under S.164, Cr.P.C., had supported the prosecution version in

respects of mode, manner and the number of assailants. Role of each accused in such-like

cases, could not be segregated for the purpose of conviction and sentence. Each one of the

unlawful assembly having actively participated in the crime in prosecution of their

common object, they all including the accused were burdened with constructive liability.

In view of the direct charge made in F.I.R., supported by medical evidence, statements of

eye-witnesses and noticeable abscondence of accused, which on principle of res gestae,

being immediate conduct of accused, corroborated the prosecution case as a circumstantial

evidence. Case of accused did not fall within the purview of S.497(2), Cr.P.C.. Accused

after occurrence, remained absconder for a period of six months without any explanation

for such abscondence. Fugitive from law would lose his normal rights, and bail could be

refused on the sole ground of abscondence regardless of the merits of the case. In view of

direct and primary ocular account of eye-witnesses, supported by medical evidence, and unexplained noticeable abscondence accused prima facie, was connected with offence entailing capital punishment. Bail application was dismissed, in circumstances. 2015 PCrLJ 402 PESHAWAR

Unlawful assembly armed with deadly weapons:

S. 497. Penal Code (XLV of 1860), Ss. 302, 147, 148 & 149. Qatl-i-amd, rioting, rioting

armed with deadly weapons, unlawful assembly . Bail, refusal of. Prosecution failing to

comply with direction of High Court regarding conclusion of trial within a certain time

period. Few prosecution witnesses remaining to be examined. Effect. Earlier bail

application of accused was refused by the High Court with a direction to prosecution to

conclude trial within two months, however trial did not conclude within such time period.

All prosecution witnesses had been examined except two whose evidence was to be

recorded within a couple of days. When two or three witnesses were left to be examined,

in such an eventuality court should neither grant nor cancel bail to an accused. Although

prosecution had not concluded the trial within the time given by the High Court but the

defence side too was equally responsible for non-conclusion of trial as it also got the case

adjourned on two or three occasions. Accused was refused bail in circumstances with a

direction to Trial Court to conclude the trial within one month. 2015 MLD 181

PESHAWAR

Unlawful assembly and common object:

Ss. 497. Penal Code (XLV of 1860), Ss.302, 324, 337, 147, 148 & 149. Qatl-e-amd,

attempt to commit Qatl-e-amd, causing Shajjah, rioting, unlawful assembly and common

object. Bail, refusal of. While deciding bail application of accused alleged to have

committed murder and was a member of an unlawful assembly ; and the offence was

committed in the prosecution of common object the bail would be refused. Where in such

circumstances, no role was attributed to accused, same would not be sufficient to bring his

case within the ambit of further inquiry. Claim of bail by accused alleged for committing

the offence under S.149, P.P.C. on the ground of individual role played by him in the

occurrence, could only be taken into consideration, where there appeared that the

allegation of forming unlawful assembly and committing the offence in the prosecution of

common object was doubtful. In the present case, allegation against accused was supported

by Medico-legal Reports pertaining to the victims. Prima facie, presence of accused

persons at the spot at relevant time and participation in the occurrence was established.

Inference, in circumstances, could be drawn that accused were members of the unlawful

assembly , which committed the offence in the prosecution of common object. Court

below had not committed any error while refusing bail. Impugned order whereby accused

were refused bail, being correct and in accordance with law, warranted no interference.

2014 YLR 1020 SHARIAT-COURT-AZAD-KASHMIR

~ 13 ~

Accused was a member of an unlawful assembly:

Member of unlawful assembly committing offence in prosecution of common object.

Section 149, P.P.C. did not create a new offence, but dealt with the crime committed in the

prosecution of common object. To establish the allegation of committing the offence under

S.149, P.P.C., it must be proved that accused was a member of an unlawful assembly ; and

the offence was committed in the prosecution of common object. To be a member of an

unlawful assembly having common object, was the necessary ingredient to bring the case

of accused within the purview of S.149, P.P.C. 2014 PCrLJ 414 SHARIAT-COURT-

AZAD-KASHMIR

Accused of unlawful assembly remained fugitive:

S. 497(5) . Penal Code (XLV of 1860), Ss. 302, 109, 148 & 149. Constitution of Pakistan,

Art. 185(3). Qatl-e-amd, abetment, rioting armed with deadly weapons, unlawful assembly

. Bail, cancellation of. Conduct of accused. Abscondment for a lengthy period. Probability

of absconsion. Promptly lodged F.I.R.. Specific nomination in the F.I.R.. Effect. Accused

along with his co-accused was alleged to have fired at and murdered the deceased. High

Court allowed bail to accused. Validity. F.I.R. was recorded within one hour of the

incident, wherein accused was specifically nominated for firing at and killing the

deceased. Accused and one of the co-accused were the main accused who were allegedly

responsible for the murder. Accused remained a fugitive from law for 1-1/2 years and was

arrested at the airport trying to leave the country. Accused due to his conduct, had

disentitled himself from bail as there were chances of his absconsion. During the period of

his abscondment accused was also nominated in another F.I.R.. Co-accused, who had been

attributed the fatal injury was still a proclaimed offender. Prima facie case was made out

against the accused and he had failed to make out a case for further inquiry. Petition for

leave to appeal was converted into appeal and allowed, and bail granted to accused by the

High Court was cancelled. 2014 SCMR 1591 SUPREME-COURT

Ss. 324, 337-A(i), 337-F(iii)(vi)(v), 337-L(2), 149 & 337-N(2). Attempt to commit qatl-e-

amd, causing Shajjah-i-Khafifah, Mutalahimah, Madihah, Hashimah, hurt, payment of

Arsh, awarding tazir. Common intention. Objections, raised that Trial Court did not frame

the charge in accordance with law; and conviction was recorded without alteration of

charge, were not supported by law. Contention about non-reading and mis-reading of

evidence, was not impressive; and conclusion drawn by the Trial Court was according to

principles of appreciation of evidence. Number of persons were nominated towards the

commission of offence, but role of firearm injury sustained by one injured prosecution

witness was attributed to one accused only. Role of inflicting a dagger blow sustained by

the injured witness, was assigned to absconding accused. Injuries sustained by

complainant and two prosecution witnesses, to the extent of abrasion and pain, except

naming all accused persons, no role was assigned to any one of them. Allegation of

constituting unlawful assembly in furtherance of their common object, was levelled against

accused and absconding accused. Role causing fracture of 'tibia'/shinbone, could not be

attributed to any one as the witness himself was silent about the injury. Absconding

accused, who was alleged to have caused injuries, was not arrested. Injuries caused under

Ss.337-A(1), 337-L(2) and 337-F(v), P.P.C., were proved to be caused by accused.

Accused after constituting an unlawful assembly in furtherance of their common object

having made a violent attack upon the complainant party, they were rightly held

responsible towards the commission of offence. Offender who had travelled beyond the

object of unlawful assembly , would be dealt separately. Case of accused persons was

covered by subsection (2) of S.337-N, P.P.C.. Accused persons, were not previous

convicts, hardened or habitual, desperate or dangerous criminals. Sentence of rigorous

imprisonment of two years under S.337-F(iii) and 4 years under S.337-F(v), P.P.C., was

set aside. One of accused persons remained convicted under S.337-F(v), P.P.C.. Three

accused persons, who were convicted under Ss.337-A(i) & 149, P.P.C. were sentenced to

pay Daman. 2014 YLR 1473 QUETTA

Commission of offence by any member of unlawful assembly:

S. 149. Commission of offence by any member of unlawful assembly in prosecution of

common object of the assembly . Liability. Person was liable for what he himself had

done, and not for what was done by some other persons. Section 149, P.P.C., was an

exception to said general rule. Every member of an unlawful assembly in the described

circumstances, was vicariously liable for an offence committed by another member of the

assembly. 2014 PCrLJ 571 QUETTA

Probability of false implication:

S. 497(2). Penal Code (XLV of 1860), Ss. 302, 201, 202, 148, 149. Qatl-e-amd, causing

disappearance of evidence of offence, intentional omission to give information of offence

by a person bound to inform, rioting armed with deadly weapons, unlawful assembly .

Bail, grant of. Further inquiry. Probability of false implication. No independent witnesses.

Different versions of the same occurrence. Rule of consistency. Effect. Dead body of

deceased-lady was found from the house of the accused, who was her real uncle. Two

sisters of deceased were already residing with the accused. Deceased had allegedly also

received firearm injuries but no one from the locality neighborhood came forward to

depose about the occurrence, thus there was no independent witness. Inimical terms

between the parties were admitted, hence false implication of accused could not be ruled

out. Three versions of the occurrence were put forward, one by the accused side, one by

the complainant side and one by the investigation officer. Question as to which version

was correct was to be answered by the Trial Court. Co-accused had already been released

on bail, and she was alleged the same role as the accused. Case was one of further inquiry.

Accused was admitted to bail in circumstances. 2014 YLR 2284 PESHAWAR

Accused was member of unlawful assembly:

S. 497. Penal Code (XLV of 1860), Ss.34 & 149. Common intention, common object.

Consideration for deciding bail applications in offence under Ss.34 & 149, P.P.C..

Paramount considerations, while deciding bail application in offence under Ss.34 & 149,

P.P.C. were the determination, as to whether accused was a member of an unlawful

assembly ; and whether the offence had been committed in furtherance of common

intention. If accused appeared to be knowing that the offence would be committed in

furtherance of common object of the unlawful assembly , then every member of the said

assembly , would be responsible for the act committed by anyone of them; and if the

offence committed would fall within the prohibitory clause of S.497, Cr.P.C., bail would

be refused to each of them. Main ingredients of S.34, P.P.C., were that a criminal act must

be done by several persons; that criminal acts must be done in furtherance of common

intention of all; and that there must be participation of all persons in furthering the

common intention. Common intention, generally involved element of common motive,

pre-planned preparation, and actual pursue of such plan. Sometimes common intention

was developed at the spur of the moment, or during commission of offence. Section 34,

P.P.C., was applicable to sharing of knowledge as well as intention. Intention was a

mental condition and was to be determined from the facts and surrounding circumstances

of the case. Direct evidence in that respect, could not be expected in each case; and in

order to determine the common intention, regard must be given to all the acts done by

accused. Court on the basis of material placed, such as F.I.R. and statements recorded by

the Police, even at bail stage, could consider the question, whether the case of constructive

liability was made out or not. 2014 YLR 1595 PESHAWAR

Participation in unlawful assembly:

S. 149. unlawful assembly. Participation of an accused person. Burden of proof.

Duty of prosecution to prove the participation of each and every accused in the

commission of the offence. 2014 YLR 896 PESHAWAR

~ 15 ~

Every member of unlawful assembly guilty of offence:

Ss.302, 148 & 149. Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 23. Qatl-e-amd,

rioting armed with deadly weapon, every member of unlawful assembly guilty of offence

committed in prosecution of common object. Cognizance of cases by Anti-Terrorism

Court. Determining factors. Demanding Bhatta. Transfer of accused's case from Anti-

Terrorism Court to court of ordinary jurisdiction. Validity. Accused demanded Bhatta

from deceased and on refusal murdered his father thereby conveying message to

complainant and people living in the area that if anyone refused accused's demand would

suffer the fate of deceased. Occurrence was bound to spread panic and feeling of

insecurity. Under S.6(k) of the Anti-Terrorism Act, 1997 demanding Bhatta was offence

punishable under S.7 of the Anti-Terrorism Act, 1997. Demanding Bhatta constituted a

scheduled offence which was triable by Anti-Terrorism Court constituted under Anti-

Terrorism Act, 1997. Cumulative effect of the contents of F.I.R., attending circumstances

and record of case would determine whether alleged offence fell within purview of any of

the provisions of Anti-Terrorism Act, 1997. Act done by accused created a sense of

insecurity among people and was covered by Ss.6 & 7 of the Anti-Terrorism Act, 1997.

Trial Court's order transferring accused's case to regular court having no cogent and

plausible reasons, was set aside. 2014 YLR 2534 LAHORE

Offence of unlawful assembly in trial of Juvenile:

S. 497. Penal Code (XLV of 1860), Ss.302, 148, 149 & 109. Juvenile Justice System

Ordinance (XXII of 2000), S.10(7)--Qatl-e-amd, rioting armed with deadly weapons,

unlawful assembly , abetment. Bail, grant of. Juvenile-accused. Delay in conclusion of

trial within the statutory period. Effect. Although accused was named in the F.I.R. with

specific allegation of killing the deceased, but he was a juvenile and was behind bars for

more than 3 ½ years. Accused had committed the alleged offence by way of instant

reaction, which was not serious, heinous, gruesome, brutal or shocking to public morality.

No motive was attributed to accused. Accused was granted bail in circumstances. 2014

YLR 422 LAHORE

Probability of false implication:

S. 498. Penal Code (XLV of 1860), Ss. 302, 324, 109, 148 & 149. Qatl-e-amd, attempt to

commit qatl-e-amd, abetment, rioting armed with deadly weapons, unlawful assembly .

Ad-interim pre-arrest bail, confirmation of. Female accused. Non-attribution of any overt

act or fire shot. Mala fides of complainant. Probability of false implication. Effect.

Accused, who was a female, was alleged to have participated in a murderous attack. Only

allegation against accused was that she was present in the car at the time of occurrence.

Accused was not attributed any weapon or fire shot in the F.I.R.. Mala fide of complainant

was obvious due to the fact that complainant had launched an F.I.R. for the murder of her

parents against one of the injured of the present case. Detailed investigation was

conducted in the present case, wherein it was found that accused had not participated in

the occurrence in any manner, and such findings of the investigating agency had not been

challenged by the complainant before any higher forum. Possibility could not be ruled out

that prosecution had thrown a wider net to involve many male members of the family of

the accused. Investigation of the case was complete and nothing was to be recovered from

the accused. Ad-interim pre-arrest bail already granted to accused was confirmed in

circumstances. 2014 PCrLJ 1211 LAHORE

Unlawful assembly bail withdrawn: S. 497(5). Penal Code (XLV of 1860), Ss. 302, 148 & 149. Qatl-e-amd, rioting armed

with deadly weapons, unlawful assembly . Cancellation of bail. Accused and co-accused

persons allegedly inflicted a beating on the deceased, whereafter accused fired at and

killed the deceased. Complainant had stated that fire was made by accused, which fact

was authenticated by prosecution witnesses in their statements under S.161, Cr.P.C..

Weapon with live bullets was also recovered at the instance of accused. Sufficient

material was available on record to connect accused with the charge of murder of

deceased. Bail granted to accused by Trial Court was withdrawn in circumstances. 2013

PCrLJ 938 LAHORE

Espionage and sabotage: Offence of spying:

Pakistan Army Act (XXXIX of 1952), Ss.2, 59 & 135. Official Secrets Act (XIX of 1923),

S.3. Passports Act (XX of 1974), S.4. Committing civil offence, spying, departure from

Pakistan without passport. Claim of benefit of S. 382-B, Cr.P.C.. Accused who was

convicted under Pakistan Army Act, 1952 claimed benefit as provided under S.382-B,

Cr.P.C.. Validity. Accused was subject to Pakistan Army Act, 1952, which was a Special

Law, and he was tried by Field General Court Martial for offence under S.59 of said Act,

whereas S. 382-B, Criminal Procedure Code was a general law. Section 135 of Pakistan

Army Act, 1952, which had declared that sentence awarded to a person under said Act,

would commence on the date on which the original proceedings were signed by the

President, or in the case of Summary Court Martial by the court, had eliminated any

misconception regarding applicability of benefit of S.382-B, Cr.P.C.. Trials under the

Pakistan Army Act, 1952 and punishment of crimes and sentence thereunder was not for

ordinary offences, but were restricted only to the offences relating to or under said Act,

which had its own policy and scheme of punishment. Accused being involved in anti-

State/Espionage activities, he could not claim any right under the inherent jurisdiction of

High Court, and non-granting him the benefit of S.382-B, Cr.P.C., was justified.

Provisions of S.382-B, Cr.P.C. being not applicable to accused, his petition was dismissed,

in circumstances. 2014 PCrLJ 1387 LAHORE

Convicted for Espionage and anti-State activities:

S. 2(1)(d). Official Secrets Act (XIX of 1923), S. 3. Pakistan Prisons Rules, 1978, Rr. 114,

201-A & 212. Constitution of Pakistan, Art.199. Constitutional petition. Remissions.

Petitioner who was convicted for Espionage and anti-State activities, sought remissions

under S.212 of Pakistan Prisons Rules, 1978, for donating blood. Validity. Even if

anything was contained in Pakistan Prisons Rules, 1978, even then provisions of rule 201

of Pakistan Prisons Rules, 1978, would prevail. Person convicted under the charge of

Espionage and anti-State activities would not be entitled to ordinary and special remission

unless Federal Government or Provincial Government or competent authorities made a

specific order in writing in that behalf and provisions of rule 212 of Pakistan Prisons

Rules, 1978, were excluded. In view of special embargo contained in Rule 201-A of

Pakistan Prisons Rules, 1978, petitioner was not entitled for remissions as contained in

Rule 212 of Pakistan Prisons Rules, 1978. Petition was dismissed in circumstances. 2013

PCrLJ 386 LAHORE

~ 17 ~

Prisoners involved in the subversive, Espionage or anti-State acts:

Ss. 60 & 71. Official Secrets Act (XIX of 1923), S.3(1)(c). Pakistan Prison Rules, 1978,

R.243. Government of Punjab Notification No.SO(R&P)4-24/10(Part I), dated 5-4-2011.

Constitution of Pakistan, Art.199. Constitutional petition. Claim for class "A" in civil

prison. Petitioner, a Group Captain was convicted under Ss.60, 71 of Pakistan Air Force

Act, read with S.3(1)(c) of Official Secrets Act, 1923 to undergo one year R.I. and he was

also dismissed from service. Petitioner had claimed that as he was classified as 'A' class

prisoner in warrants of commitment, he was entitled for 'A' class in the prison. Petitioner

had prayed that a direction in that respect be issued. Validity. Discretion lay with the

concerned court under R.243 of Pakistan Prison Rules, 1978 to classify prisoners for

keeping/detaining in jail in a specific class, but the final authority in that respect was with

the concerned government. Punjab Government Notification No.SO(R&P)4-24/10 (Part I)

dated 5-4-2011, provided that prisoners involved in the subversive, Espionage or anti-State

acts under Pakistan Army Act, 1952, Pakistan Air Force Act, 1953 and Pakistan Navy

Ordinance, 1961, were not entitled for superior class facilities in jail. Petitioner in

circumstances, was not entitled for any such facility to be treated as 'A' class prisoner.

Constitutional petition was dismissed. 2012 PLD 47 LAHORE

Conviction awarded to petitioner by General Court Martial of Pakistan Navy:

Official Secrets Act (VIII of 1923), Ss. 5 & 6. Pakistan Prison Rules 1978, R. 201-A.

Constitution of Pakistan, Art. 199(3). Constitutional petition. Steward in Pakistan Navy.

Conviction and sentence awarded to petitioner by General Court Martial of Pakistan Navy.

Dismissal of petitioner's appeal by Court of Appeal of Pakistan Navy. Petitioner's plea that

conviction and sentence awarded to him was on basis of charges totally different from

charges shown to him during proceedings before Court of Appeals. Validity. Petitioner

under orders of High Court had availed remedy of appeal through his counsel. Petitioner's

counsel was shown proceedings of General Court Martial and afforded sufficient time to

argue appeal, but had failed to point out any infirmity in evidence or in proceedings of

General Court Martial. Sentence was awarded to petitioner on charge of Espionage

activities, thus, he was not entitled to any ordinary or special remission under R. 201-A of

Pakistan Prison Rules. Petitioner had pleaded guilty on all charges and accepted same as

true and correct. High Court being not an appellate court in the matter, could not

reappraise entire evidence on record to conclude the same to be a case of no evidence and

render such conviction to be without jurisdiction. High Court as per provision of Art.

199(3) of the Constitution could not enter into matters relating to Armed Forces.

Petitioners could make mercy petition to Chief of Naval Staff. High Court dismissed

constitutional petition for not being maintainable. 2011 MLD 1521 KARACHI

Grant of Presidential special remissions to accused: West Pakistan Arms Ordinance 1965 . -S. 13-B. Presidential (Special Remission) Order, 1998. Constitution of Pakistan (1973), Art. 199. Constitutional petition. Grant of Presidential special remissions to accused. Special remissions granted to the prisoners by the President were not admissible to prisoners convicted for an act of Espionage , subversion, gang-rape, terrorism or under the Foreigners Act, 1946 and to condemned prisoners. Accused had been sentenced to imprisonment under S.13-B of the West Pakistan Arms Ordinance, 1965 by the Special Court on account of having been found in possession of an unlicensed klashnikov with two magazines thereof. Mere possession of the fire-arm without licence, in absence of any other evidence suggesting such retention amounting to a "Terrorist Act" or "Terrorism", was not enough per se to deprive the accused of the benefit of Presidential special remissions made admissible to a prisoner, provided he did not fall within any of the aforesaid specified categories of prisoners debarred to earn the said benefit. Impugned decision of the Superintendent Jail concerned finding the accused not entitled to the said remissions on account of his having been convicted and sentenced by the Special Court was consequently set aside being of no legal effect and the accused was declared entitled to the benefit of Presidential special remissions granted on the eve of Eid-ul-Fitr and Pakistan Day, 1998. Constitutional petition was accepted accordingly. 1999 PCRLJ 35 QUETTA

Accused have close links with a banned sectarian organization:

Ss. 3(1) & 26. Constitution of Pakistan, Art.199. Constitutional petition. Detention of

petitioner for being criminal minded involved in criminal cases, having close links with a

banned sectarian organization, providing shelter and financial assistance to desperate

criminals including terrorists involved in sectarian and Sabotage activities. Validity. Power

of DCO to issue detention order was not absolute. Detention order would amount to

curtailing fundamentally guaranteed right of liberty of a person. DCO had issued

impugned detention order on the basis of reports of agencies without considering worth of

material made available to him. Nothing on record to establish that petitioner was an active

member of banned sectarian organization or having close links thereto. Petitioner had not

been convicted in criminal cases registered against him, rather their trial was pending.

Press clippings, alleged press releases or some writings on letter pads could not be used

against petitioner to connect him with such charges. Providing financial assistance or

shelter to desperate criminals was an offence, for which no criminal case had been

registered against petitioner. Registration of one or two criminal cases with regard to

providing financial assistance or shelter to desperate criminals would not be a valid ground

for passing a detention order, unless such culprit was not only found repeatedly involved,

but was also convicted for such misdeeds and his activities were found prejudicial to

public peace and tranquility. Grounds of detention mentioned in impugned detention order

were vague and based upon presumption and speculations. High Court had opted to burden

DCO to pay from his pocket an amount of Rs.50,000 as fine, but on request of Law Officer

and undertaking of Counsel of DCO that in future his client would not act in such inhuman

manner, High Court abstained itself from imposing such fine. High Court set aside

impugned detention order in circumstances. 2012 PLD 336 LAHORE

Nothing was available on record to attribute to accuse any act of Sabotage:

Explosive Substances Act (VI of 1908), Ss. 3, 4 & 7. Penal Code (XLV of 1860),

Ss.337-F(i), 427 & 147. Bail, grant of. Further inquiry. Nothing was available on record

to attribute to accused any act of subversion or Sabotage . Even reports of Experts were

not available on record to demonstrate that damage caused to the glasses of Bus was in

consequence of an explosive substance or some other material or whether substance

applied for causing such damage as alleged in F.I.R. was serviceable or not. All such

aspects would render case of accused to fall within scope of further inquiry as

contemplated by subsection (2) of S. 497 Cr. P. C. . Accused were admitted to bail, in

circumstances. 2004 YLR 1562 KARACHI

Suppression of Terrorist Activities:

Suppression of Terrorist Activities (Special Court) Act 1975 Preamble. Anti-Terrorism

Act (XXVII of 1997), Preamble---Applicability. Object, nature and purpose of both the

Acts. Suppression of Terrorist Activities (Special Courts) Act (XV of 1975) not impliedly

repealed by Anti-Terrorism Act (XXVII of 1997). Purpose of the Suppression of Terrorist

Activities (Special Courts) Act, 1975 is of suppressing acts of Sabotage , subversion and

terrorism and to provide for speedy trial of offences committed in furtherance of or in

conviction with such acts. Object of Anti-Terrorism Act, 1997 primarily is to prevent

terrorism, sectarian violence and speedy trial of heinous offences and although this Act to

some extent contains the substantive law, but primarily it is procedural in nature. 2001

PLD 169 SUPREME-COURT

Transfer of case from Special Court to ordinary Sessions Court:

~ 19 ~

Pakistan Penal Code . -S.302. Suppression of Terrorist Activities (Special Courts) Act

(XV of 1975), Preamble & Ss. 3, 6, 7 & 8. Constitution of Pakistan (1973), Art.199.

Constitutional petition-- Transfer of case from Special Court to ordinary Sessions Court.

Accused was hauled up after his alleged extra judicial confession to the effect that he

killed the deceased by using his .222 bore rifle . Rifle was found unworkable as per report

of Forensic Science Laboratory and F.I.R. in the case was reported against unknown

persons. Prayer of accused for transfer of In case front Special Court to ordinary Sessions

Court was rejected on the ground that mere ruse of kind of weapon mentioned in the

Schedule to Suppression of Terrorist Activities (Special Courts) Act, 1975 was sufficient

to attract the jurisdiction of Special Court-- Validity. Offence to be tried by Special Court

roust have a nexus with Preamble of the Suppression of Terrorist Activities, (Special

Courts) Act, 1975 which had provided that it must he an act of Sabotage , subversion or

terrorism. Mere allegation in F.I.R.. of effective or ineffective use of weapon listed in the

Schedule to the said Act it-as not sufficient t to attract jurisdiction of Special Court.

Reported offence of murder against accused which otherwise was a blind murder against

.unknown persons herd absolutely no nexus with Preamble of Suppression of Terrorist

Activities (Special Courts) Act, 1975. Offence against accused being not an act of,

Sabotage , subversion or terrorism, jurisdiction of Special Court was not at all attracted.

High Court transferred the trial pending against petitioner/accused before Special Court to

art ordinary, Court of Session in circumstances. : 2000 YLR 2531 LAHORE

Speedy trial of offence of terrorism:

Suppression of Terrorist Activities (Special Court) Act 1975 . Preamble & S.5-A(1).

Object of Act. Intention of Legislature in promulgating Suppression of Terrorist

Activities (Special Courts) Act, 1975 was suppression of acts of Sabotage , subversion,

terrorism and to provide for speedy trial of offence" committed in furtherance or in

connection with such acts. Special Court would proceed with trial from day to day and

would decide case speedily. Special Court would not adjourn any trial for any purpose,

unless the adjournment was, in its opinion, necessary in the interest of justice and no

adjournment would be granted for more than two days. 2000 PCRLJ 1635 KARACHI

No offence of sabotage:

Explosive Substances Act 1908 . -S. 5. Arms Act (XI of 1878), S.19-F. Presidential

(Special) Remission Order, 1998. Extension of remissions granted by Federal and

Provincial Governments to the accused. Accused had only been convicted and sentenced

to imprisonment, in addition to the forfeiture of their entire property, for having been

found in possession of arms, ammunition and explosive substance which accusation

simpliciter could not bring their case within purview of an act of Sabotage , subversion

or terrorism as used in the Presidential (Special) Remission Order, 1998. No allegation

was made against the accused, that the explosive substance recovered at their instance,

was meant or intended to be used in any manner for committing or abetting an act of

Sabotage , subversion, anti-State activities or terrorism, so as to disentitle them of the

benefit of the said Presidential (Special) Remission Order, 1998. Accused were,

consequently, allowed the special remissions granted to the prisoners by the President of

Pakistan. on the occasion of Eid-ul-Fitr and Pakistan Day, 1998 and the remissions

granted by the Provincial Government, provided that their case fell under any of the

categories of the prisoners to which the remissions were extended. 1999 PCRLJ 53

QUETTA

Offence of sabotage and Hijacking:

Pakistan Penal Code . -Ss. 402-B & 402-A. Explosive Substances Act (XI of 1908), S.4. Appreciation of evidence. Confessional statement of accused despite retraction being confidence inspiring did not lose its evidentiary value, and the same was corroborated by independent evidence, recovery of letters of threats having his signatures, his identification by independent witnesses and the recovery of bomb etc. from the unclaimed bag at the Airport. Accused, thus, was directly linked with the commission of the offence. Actual happening of some event was not necessary for the purpose of commission of an offence under S. 402-B, P. P. C. and S.4 of the Explosive Substances Act, 1908. Aircraft with about three hundred passengers on board had been put under the fear of blast and if the material placed therein, had exploded the aircraft would have blown to pieces . Undescribable mental anguish of the passengers at that time with no hope of lives in the aeroplane was the most heinous situation and the act creating a sense of insecurity among them was sufficient to attract the provisions of S.4 of the Explosive Substances Act, 1908. Ransom had been demanded with threat of destruction of the aeroplane and after departure of fight undoubtedly there was no physical control of the accused on the aeroplane, but by placing the explosive material thereon he had brought it under his control, which was not only an act of Sabotage but also of hijacking as defined under S.402-A, P. P.C. . Convictions and sentences of accused awarded by Trial Court were upheld in circumstances. Both the sentences were, however, directed to run concurrently. 1999 YLR 533 LAHORE Special Court constituted to curb the acts of Sabotage, subversion and terrorism:

Suppression of Terrorist Activities (Special Court) Act 1975 . -Preamble, Ss. 3(l)(b), 5-A

& 6. Criminal Procedure Code (V of 1898), Ss.374 & 31. Penal Code (XLV of 1860),

5.302. Murder reference to High Court. Competency. Special Court under Suppression of

Terrorist Activities (Special Courts) Act, 1975 was primarily constituted to curb the acts of

Sabotage, subversion and terrorism and to provide speedy trial of offences committed in

furtherance of or in connection with such acts. Death sentence passed by Special Court

was not required to be confirmed by High Court because it would frustrate rather than

advance the object of Suppression of Terrorist Activities (Special Courts) Act, 1975 for

speedy disposal of cases in respect of scheduled offences. If procedure in respect of

confirmation of death sentence as provided in S.374, Cr.P.C. was to be followed, it would

render the object of Special law as redundant and superfluous. Even otherwise, a Criminal

Court constituted under Criminal Procedure Code, 1898 would make murder reference for

confirmation to High Court under 5.374, Cr.P.C. because that Criminal Court was

subordinate to the High Court, but Special Court constituted under Suppression of

Terrorist Activities (Special Courts) Act, 1975, being not subordinate to High Court, was

not bound to make such reference to High Court. Reference under S.374, Cr.P.C. in

circumstances, would not be competent before High Court if sentence of death had been

awarded by Special Court. 1998 PCRLJ 426 QUETTA

Political Motivated Violence: Inciting people to violence:

Constitution of Pakistan 1973 . Nos. 18(7)(b) & 13--Constitution of Pakistan (1973) Art.

199-Accused was found guilty by the President Summary Military Court of inciting people

to Violence by delivering a speech and for attempting to excite disaffection among Armed

Forces by said speech--Accused invoked Constitutional jurisdiction of High Court alleging

that orders of Summary Military Court were mala fide, coram non judice, without

jurisdiction and without lawful authority--Record showed that speech was evidently

propagating the cause of a politician and was nothing but a Political speech; just a claptrap

that would not inevitably mean that Violence was advocated; words of speech would also

bear the interpretation that accused was having a non-violent resistance in view and speech

could be construed as an exhortation to accused's partisans to step up their Political

activities. 1989 PLD 215 PESHAWAR

~ 21 ~

Official Secrets: Accused being involved in anti-State/espionage activities:

Pakistan Army Act (XXXIX of 1952), Ss.2, 59 & 135. Official Secrets Act (XIX of 1923),

S.3. Passports Act (XX of 1974), S.4. Committing civil offence, spying, departure from

Pakistan without passport. Claim of benefit of S. 382-B, Cr.P.C.. Accused who was

convicted under Pakistan Army Act, 1952 claimed benefit as provided under S.382-B,

Cr.P.C.. Validity. Accused was subject to Pakistan Army Act, 1952, which was a Special

Law, and he was tried by Field General Court Martial for offence under S.59 of said Act,

whereas S. 382-B, Criminal Procedure Code was a general law. Section 135 of Pakistan

Army Act, 1952, which had declared that sentence awarded to a person under said Act,

would commence on the date on which the original proceedings were signed by the

President, or in the case of Summary Court Martial by the court, had eliminated any

misconception regarding applicability of benefit of S.382-B, Cr.P.C.. Trials under the

Pakistan Army Act, 1952 and punishment of crimes and sentence thereunder was not for

ordinary offences, but were restricted only to the offences relating to or under said Act,

which had its own policy and scheme of punishment. Accused being involved in anti-

State/espionage activities, he could not claim any right under the inherent jurisdiction of

High Court, and non-granting him the benefit of S.382-B, Cr.P.C., was justified.

Provisions of S.382-B, Cr.P.C. being not applicable to accused, his petition was dismissed,

in circumstances. : 2014 PCrLJ 1387 LAHORE-

Person convicted under the charge of espionage would not be entitled to remission:

S. 2(1)(d). Official Secrets Act (XIX of 1923), S. 3. Pakistan Prisons Rules, 1978, Rr. 114,

201-A & 212. Constitution of Pakistan, Art.199. Constitutional petition. Remissions.

Petitioner who was convicted for espionage and anti-State activities, sought remissions

under S.212 of Pakistan Prisons Rules, 1978, for donating blood. Validity. Even if

anything was contained in Pakistan Prisons Rules, 1978, even then provisions of rule 201

of Pakistan Prisons Rules, 1978, would prevail. Person convicted under the charge of

espionage and anti-State activities would not be entitled to ordinary and special remission

unless Federal Government or Provincial Government or competent authorities made a

specific order in writing in that behalf and provisions of rule 212 of Pakistan Prisons

Rules, 1978, were excluded. In view of special embargo contained in Rule 201-A of

Pakistan Prisons Rules, 1978, petitioner was not entitled for remissions as contained in

Rule 212 of Pakistan Prisons Rules, 1978. Petition was dismissed in circumstances. 2013

PCrLJ 386 LAHORE

Offence of official secret act: Pakistan Prison Rules, 1978, R.243. Government of Punjab Notification No.SO(R&P)4-

24/10(Part I), dated 5-4-2011. Constitution of Pakistan, Art.199. Constitutional petition.

Claim for class "A" in civil prison. Petitioner, a Group Captain was convicted under Ss.60,

71 of Pakistan Air Force Act, read with S.3(1)(c) of Official Secrets Act, 1923 to undergo

one year R.I. and he was also dismissed from service. Petitioner had claimed that as he

was classified as 'A' class prisoner in warrants of commitment, he was entitled for 'A' class

in the prison. Petitioner had prayed that a direction in that respect be issued. Discretion lay

with the concerned court under R.243 of Pakistan Prison Rules, 1978 to classify prisoners

for keeping/detaining in jail in a specific class, but the final authority in that respect was

with the concerned government. Punjab Government Notification No.SO(R&P)4-24/10

(Part I) dated 5-4-2011, provided that prisoners involved in the subversive, espionage or

anti-State acts under Pakistan Army Act, 1952, Pakistan Air Force Act, 1953 and Pakistan

Navy Ordinance, 1961, were not entitled for superior class facilities in jail. Petitioner in

circumstances, was not entitled for any such facility to be treated as 'A' class prisoner.

Constitutional petition was dismissed. 2012 PLD 47 LAHORE

Charge of espionage activities:

Official Secrets Act (VIII of 1923), Ss. 5 & 6. Pakistan Prison Rules 1978, R. 201-A.

Constitution of Pakistan, Art. 199(3). Constitutional petition. Steward in Pakistan Navy.

Conviction and sentence awarded to petitioner by General Court Martial of Pakistan

Navy. Dismissal of petitioner's appeal by Court of Appeal of Pakistan Navy. Petitioner's

plea that conviction and sentence awarded to him was on basis of charges totally different

from charges shown to him during proceedings before Court of Appeals. Petitioner under

orders of High Court had availed remedy of appeal through his counsel. Petitioner's

counsel was shown proceedings of General Court Martial and afforded sufficient time to

argue appeal, but had failed to point out any infirmity in evidence or in proceedings of

General Court Martial. Sentence was awarded to petitioner on charge of espionage

activities, thus, he was not entitled to any ordinary or special remission under R. 201-A of

Pakistan Prison Rules. Petitioner had pleaded guilty on all charges and accepted same as

true and correct. High Court being not an appellate court in the matter, could not

reappraise entire evidence on record to conclude the same to be a case of no evidence and

render such conviction to be without jurisdiction. High Court as per provision of Art.

199(3) of the Constitution could not enter into matters relating to Armed Forces.

Petitioners could make mercy petition to Chief of Naval Staff. High Court dismissed

constitutional petition for not being maintainable. 2011 MLD 1521 KARACHI

Civilian Could br tried under Pakistan Army Act:

Official Secrets Act (XIX of 1923), S.3-Constitution of Pakistan (1973), Arts.185(3) &

199. Detention of civilian under Official Secrets Act, 1923 read with S.2(1)(d)(ii) of

Pakistan Army Act, 1952. High Court disposed of Constitutional petition of detenu with

observations that civilian could be tried under the Pakistan Army Act, 1952, if he was

accused of seducing or attempting to seduce any person subject to the said Act from his

duty or allegiance to Government . Validity. Paras.(i) & (ii) of clause (d) of subsection (2)

of S.2 of Pakistan Army Act, 1952 were disjunctive. 2004 SCMR 1761 SUPREME-

COURT

Accused communicated Secrets pertaining to the defence to foreign intelligence agencies: Constitution of Pakistan 1973 . -Ss. 3, 4 & 5. Pakistan Army Act (XXI of 1952), Ss. 132,

133, 133-A & 133-B (as amended by Pakistan Army (Amendment) Act (XXVIII of

1992)]. Constitution of Pakistan (1973), Art.199. Constitutional petition--Maintainability.

Conviction by Field General Court Martial. Petitioner/accused who allegedly had

communicated Secrets pertaining to the defence to foreign intelligence agencies, was

arrested under Official Secrets Act, 1923 and was convicted and sentenced by Field

General Court Martial. Petitioner challenged his conviction and sentence through

Constitutional petition. When the petitioner was, convicted and sentenced, the remedy of

appeal was not available to him under Pakistan Army Act, 1952 i.e. that the conviction

aced sentence awarded to the petitioner were not applicable at the relevant time. Non-

availability of, appeal would not mean that conviction of the petitioner would be

challengeable through Constitutional petition as of right--Contention of the petitioner that

in absence of statutory right of appeal against his conviction at relevant time, same could

be challenged before High Court under general law, was repelled because the petitioner

neither could avail the right of appeal under the statute nor any appellate forum was

available or provided at the relevant time-- Subsequent availability of right of appeal as

Provided through Pakistan Army (Amendment) Act, 1992 would not create right of appeal

in favour of the petitioner who sustained conviction before the provision of appeal was

introduced in the relevant law--Petitioner could not challenge his conviction on merits

either through appeal or Constitutional petition. Petitioner instead of agitating the matter

before High Court, could approach the concerned forum under 5.132 of Pakistan Army

Act, 1952 for an appropriate relief. 2001 YLR 1329 LAHORE

~ 23 ~

Pakistan Army Act (XXI of 1952), Ss. 132, 133, 133-A & 133-B (as amended by Pakistan

Army (Amendment) Act (XXVIII of 1992)]. Constitution of Pakistan (1973), Art.199.

Constitutional petition--Maintainability. Conviction by Field General Court Martial.

Petitioner/accused who allegedly had communicated Secrets pertaining to the defence to

foreign intelligence agencies, was arrested under Official Secrets Act, 1923 and was

convicted and sentenced by Field General Court Martial. Petitioner challenged his

conviction and sentence through Constitutional petition. When the petitioner was,

convicted and sentenced, the remedy of appeal was not available to him under Pakistan

Army Act, 1952 i.e. that the conviction aced sentence awarded to the petitioner were not

applicable at the relevant time. Non-availability of, appeal would not mean that conviction

of the petitioner would be challengeable through Constitutional petition as of right--

Contention of the petitioner that in absence of statutory right of appeal against his

conviction at relevant time, same could be challenged before High Court under general

law, was repelled because the petitioner neither could avail the right of appeal under the

statute nor any appellate forum was available or provided at the relevant time--Subsequent

availability of right of appeal as Provided through Pakistan Army (Amendment) Act, 1992

would not create right of appeal in favour of the petitioner who sustained conviction

before the provision of appeal was introduced in the relevant law--Petitioner could not

challenge his conviction on merits either through appeal or Constitutional petition.

Petitioner instead of agitating the matter before High Court, could approach the concerned

forum under 5.132 of Pakistan Army Act, 1952 for an appropriate relief. 2001 YLR 1329

LAHORE

Disclosing information regarding military matters:

Criminal Procedure Code (Cr.P.C) -- S. 491 read with Army Act (XXXIX of 1952), Ss.

2, 59 8t 73. Habeas Corpus-Petitioner, a civilian, charged under Official Secrets Act, for

having written a note in answer to a questionnaire disclosing information regarding

military matters-Offences under Official Secrets Act having been made triable by a court-

martial and a courtmartial for bail of petitioner having been properly constituted in

accordance with law, petitioner, held, no longer detained in an unlawful manner or

without a lawful authority-Detention of petitioner for intervening period without

obtaining remand from Magistrate, held further, not covered by law and hence illegal, in

circumstance.-[Habeas corpus]. 1982 PCRLJ 907 SUPREME-COURT-AZAD-

KASHMIR

Photostats of a highly top secret:

Official Secrets Act 1923 S. 5. Photostats of a highly top secret and confidential Official

correspondence filed to prove Judge's attempt to influence members of Full Bench.

Documents not allowed to be produced by authorised authority nor such privilege waived.

-Persons in possession of such copies either thieves or receivers of secret material.

Wrongful "delivery" and "receipt" of secret Official instruments an offence-Photostat

copies, held, could not be received in evidence. No cause of action could be based upon

top secret and highly confidential correspondence obtained through underhand means-

Evidence Act (I of 1872), Ss. 123 & 124. 1973 PLD 778 LAHORE

Civilian accused violated law of official secret act:

Pakistan Army Act 1952 Ss. 2 (1)(d) (ii), 59(4), 73, 74 & 75 read with Official Secrets Act

(XIX of 1923), S. 3Combined effect of Ss. 73, 74 & 75 read with enlarged Ss. 2 & 59 of

Pakistan Army Act, 1952-Civilian accused of offence punishable under S. 3, Official

Secrets Act, 1923, in relation to military affairs of Pakistan-Can be arrested and detained

by Military Authorities-M apprehended by personnel of Border Police while found talking

to an Indian Sentry at Border Circumstanees, held, raised prima facie case under S. 3(1)(c)

of Official Secrets Act, 1923-Whether evidence available would suffice for conviction-

Question to be determined by Court or Tribunal called upon to try M-Writ petition for

release of detenu dismissed-Constitution of Pakistan (1962), Art. 98. 1968 PLD 1061

LAHORE

Terrorism: Accused previous criminal record:

Petitioner not accused of offence punishable with death, had been detained for a

continuous period exceeding two years; and trial had not concluded, could be released on

bail; if such delay in the trial of accused, had not been occasioned by an act or omission of

accused; or any other person, acted on his behalf. If accused was a convicted offender for

an offence punishable with death or imprisonment for life, and was a hardened, desperate

and dangerous criminal; or was accused of an act of Terrorism , was not entitled to get

concession of bail on ground of statutory delay in conclusion of the trial. Element of

hardened, desperate and dangerous criminal, could be ascertained from the previous

record of accused, or by manner of occurrence committed by him; and the allegations

levelled against him in the F.I.R.. Factors to be considered for determination of an accused

as desparate and dangerous criminal were. Previous record of accused, which could

include his earlier prosecution; nature of accusation and conduct of accused at the time of

alleged occurrence, which had been committed in a heinous manner; element of brutality

indicated that accused were hardened, desperate and dangerous criminal; and such act of

accused amounted to Terrorism ; and such act of accused created a sense of fear or

insecurity among the public at large. 2015 PCrLJ 134 SUPREME-COURT-AZAD-

KASHMIR

~ 25 ~

Careless dispensation of justice: Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & (c). Pakistan Arms Ordinance (XX of 1965), S. 13. Criminal Procedure Code (V of 1898), S. 342. Qatl-i-amd, attempt to commit qatl-i-amd, house-trespass after preparation for hurt, acts of Terrorism , possession of illegal weapon. Reappraisal of evidence. Benefit of doubt. Doubt regarding free will in admission of guilt. Effect. Death sentence reduced to imprisonment for life. Apparently accused persons were servants/employees of the acquitted co-accused persons, and might have been influenced to become scapegoats for the incident. Court in such circumstances had to see as to what was the compelling reason, which drove the accused persons to admit to the crime at the end of the trial, and whether such admission was given voluntarily with free will or it was contrived by someone. Accused persons had admitted their guilt when they were questioned by the Court under S. 342, Cr.P.C., but they were illiterate and the answers given on their behalf were in English. As soon as accused persons made an admission, the Trial Court was required to have had administered warning to them that such admission could be used against them and might ensue grave consequences, while also probing into the factors as to whether such admission was made with their free will, consent and understanding or it was otherwise. Trial Court had acted carelessly in the dispensation of justice and did not fulfill its legal obligation. When the majority of the co-accused in the present case, had been acquitted then, statements of the accused persons containing admission could not be construed as a strong corroboratory evidence to infuse credibility into their testimony, when they had told lies qua the acquitted co-accused. Electric bulbs, in the light of which the witnesses identified the culprits, were neither taken into possession nor the same had been indicated in the site plans by the draftsman. Question was as to how in a remote village the electric bulb was kept lit at night time, and as to why the complainant and the other two witnesses were chatting when the rest of the inmates were sleeping, being midnight time. When the person who was the target of accused persons was not present at the spot, then question was as to why they resorted to indiscriminate firing. Further question was as to why the complainant and the two witnesses escaped without getting a scratch of bullet or pellet on their bodies while the sleeping inmates became the victims. During the occurrence complainant showed unnatural conduct because instead of attending to his own victims, he allegedly regained courage to chase the accused persons empty handed. Question was as to why the injured witness who had sustained three bullet injuries was not quickly moved to the hospital to save her life. Postmortem was conducted with a delay. Some of the empties recovered from accused persons did not match with the weapons recovered from accused persons. Crime empties were allegedly recovered on the night of occurrence from the two crime spots however, they were kept by the police and only sent to the expert along with the weapons after a delay of 15 days. True motive for the incident was not clear. Death sentence awarded to accused persons was reduced to life imprisonment in such circumstances. Appeal was disposed of accordingly. 2015 SCMR 423 SUPREME-COURT Sufficient material available to connect accused with the commission of the crime:

Ss. 302, 324 & 452. Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & (c). Pakistan Arms Ordinance (XX of 1965), S. 13. Criminal Procedure Code (V of 1898), S. 342. Qatl-i-amd, attempt to commit qatl-i-amd, house-trespass after preparation for hurt, acts of Terrorism, possession of illegal weapon. Reappraisal of evidence. Death sentence, confirmation of. Accused persons admitting guilt in their statements under S. 342, Cr.P.C.. Effect. Accused persons in their statements under S. 342, Cr.P.C. admitted their participation in the occurrence but only claimed that the person they intended to murder by firing escaped and in the process deceased persons got killed. Statements of accused recorded under S. 342, Cr.P.C. if believed in entirety also found support from the prosecution evidence. Accused persons were afforded full opportunity to get recorded their statements under S. 342, Cr.P.C. without any duress or coercion. Even at trial when accused persons were duly represented no question of duress or coercion arose. Accused persons did not deny the occurrence in which six persons lost their lives but had pleaded that the incident had not taken place in the manner narrated by the prosecution. Prosecution story also found support from the statements of doctors, who had examined the deceased persons. Crime empties recovered from the spot matched with the weapon recovered from the accused and not with any other weapon recovered from the co-accused persons. Injured witness, who was a natural witness of the incident also implicated accused persons in her statement under S. 161, Cr.P.C.. Accused persons had made repeated fires. Sufficient material was available to connect accused persons with the commission of the crime. Courts below had rightly sentenced accused persons to death and explanation put forward by accused persons that they had no intention to kill the deceased persons did not warrant reduction/leniency in their sentence. Appeal was dismissed accordingly. 2015 SCMR 423 SUPREME-COURT Sectarian Killing is terrorism:

Ss. 6 & 12. Sectarian killing. Anti-Terrorism Court, jurisdiction of. Scope. Sectarian

killings were also included in the definition of 'Terrorism ' contained in S.6 of the Anti-

Terrorism Act, 1997 and, thus, an Anti-Terrorism Court was possessed of the requisite

jurisdiction to try a case of sectarian killing. 2015 PLD 145 SUPREME-COURT

Cognizance of anti-terrorism court:

Ss. 302(b), 34 & 337-F(i). Anti-Terrorism Act (XXVII of 1997), S.7. Qatl-i-amd, common

intention, causing damiyah, act of Terrorism . Appreciation of evidence. Record had

established that, both accused persons, while sharing common intention made firing upon

the deceased and were injured. All the witnesses were firm in their deposition.

Complainant fully reiterated the contents of Fard-e-Bayan and F.I.R.. One of the

prosecution witnesses, stated the date, time and the manner of occurrence. Said witness

identified both accused persons in the court being the assailants and ascribed the role

played by them. Other prosecution witness had corroborated the statement of said witness

on all counts. Some minor discrepancies in the evidence of prosecution witnesses were not

substantive enough to justify or create reasonable doubt in the case of prosecution about

the involvement and the guilt of accused persons. Fire-arm Expert's Report showed that

recovered arms were in working condition. Anti-Terrorism Court had rightly taken the

cognizance of offence, as committing murder by accused of a person in daylight and

injuring other by making firing, had created sense of fear and insecurity among the people

at large; as offence was committed in a barbaric and gruesome manner. Accused persons,

had failed to prove defence plea taken by them. Mere bald words of accused persons were

not enough to disbelieve and discredit the confidence-inspiring evidence of prosecution

witnesses. Trial Court after proper appraisal of evidence available on record had rightly

awarded conviction and sentence to accused persons. Accused persons could not point out

any material contradictions and discrepancy which could benefit the defence and failed to

point out any error of law, misreading or non-reading of evidence by the Trial Court

calling for interference of High Court. Appeal against impugned judgment being devoid of

merits, was dismissed, in circumstances. 2015 YLR 366 QUETTA

~ 27 ~

Benefit of doubt:

Ss. 365-A & 34. Anti-Terrorism Act (XXVII of 1997), Ss. 6(e) & 7(e). Kidnapping for

ransom, common intention, act of Terrorism . Appreciation of evidence. Benefit of doubt.

Accused persons being with muffled faces at the time of alleged occurrence, neither

complainant nor anybody else could identify them. F.I.R., was lodged on the next day of

occurrence, despite levies check Post, was nearby the place of alleged occurrence.

Statement of complainant had shown that F.I.R. was lodged with consultation and was an

afterthought. Such delay in lodging F.I.R., could not be taken lightly, as it cast serious

doubt in the case of the prosecution. No explanation was on record with respect to

inordinately lodging F.I.R.. Names of accused persons came in picture through the

supplementary statements of the complainant for the first time. Neither the Fard-e-Bayan,

was reliable nor the supplementary statement was worth credence, as the same had not

been filed promptly. False implication of accused persons could not be ruled out of

consideration in circumstances. Prosecution story as narrated by the complainant, did not

appeal to logic. Statement of prosecution witness was not worth credence, and it appeared

that said witness had concealed the actual dispute between the parties. All prosecution

witnesses were closely related to each other, and one of them was closely related to

alleged abductee. Prosecution had failed to produce any independent witness to

corroborate the prosecution case. Accused persons could not be assumed to be culprits

solely on the statements of witnesses who were interested and were closely related to the

alleged abductee. Recovery of abductee was neither effected from possession of accused

persons, nor on their pointation. No ransom amount was paid for release of the abductee.

Alleged abductee recorded his statement before the Investigating Officer after

considerable delay after his alleged release/recovery without any explanation, which

created serious doubt about his abduction by accused persons. Identification parade

conducted by the prosecution was also of no avail to the case of prosecution, as the

complainant in the supplementary statement, had failed to give the description of accused

persons. While conducting the identification parade, the legal formalities, were not

complied with and followed by Judicial Magistrate. Statement of witnesses were not free

from doubt as same suffered from sufficient infirmities, dishonest improvements and

contradictions. Prosecution had failed to prove the charge against accused persons beyond

any shadow of doubt. Trial Court while delivering the impugned judgment, had failed to

consider evidence available on record. Impugned judgment passed by Special Court, was

set aside and accused were acquitted and released extending them benefit of doubt in

circumstances. 2015 MLD 313 QUETTA

Threatening telephonic calls are terrorism:

Anti-Terrorism Act (XXVII of 1997), S.7. Putting person in fear of death or of grievous

hurt in order to commit extortion, criminal intimidation, act of Terrorism . Bail, grant of.

Further inquiry. Complainant allegedly received calls from various telephone numbers on

his Cell Phone, whereby monetary demand was made from him; and even life threats were

hurled to him and his family. No material was available on file whereby it could be

ascertained that either calls were made from the mobile phones of accused persons to the

complainant or the SIM's from which threatening calls were made to the complainant were

used from the mobile sets of accused persons. Said factor alone took the matter to one of

further enquiry. Accused were directed to be released on bail, in circumstances. 2015 YLR

364 PESHAWAR

Kidnapping of the victim for ransom:

S. 497. Penal Code (XLV of 1860), Ss.365-A & 34. Anti-Terrorism Act (XXVII of 1997),

S.7. Kidnapping for ransom, common intention, act of Terrorism . Bail, refusal of.

Accused was directly charged in the promptly lodged F.I.R. for kidnapping of the victim

for ransom. Victim, after his

release from the clutches of accused, in his statement recorded under S.164, Cr.P.C.

before the Magistrate, had charged accused along with his co-accused for his kidnapping.

Statement of (minor) victim boy had clearly suggested that accused had a clear-cut, hand

in the commission of the offence in question. Father of the victim, had also stated that he

had paid Rs. Five lac as ransom for release of his son. Reasonable grounds were available

for believing that accused was connected with the offence charged with punishment,

which fell within the prohibitory clause of S.497, Cr.P.C.. No case for grant of bail

having been made out, bail application of accused, was dismissed, in circumstances. 2015

PCrLJ 453 PESHAWAR

Transfer case for trial to Court of plenary jurisdiction:

Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 12. Constitutional petition. Hurt caused by

corrosive substance. Anti-Terrorism Court. Jurisdiction. Grievance of petitioner was that

Anti-Terrorism Court declined to transfer case for trial to Court of plenary jurisdiction.

Ingredients of offence under S. 336-A, P.P.C., punishable under S. 336-B, P.P.C. were

fully attracted, which were exclusively triable by Anti-Terrorism Court. Order passed by

Anti-Terrorism Court was reasonable and proceeded on cogent grounds. Petitioner failed

to point out any infirmity legal or factual in the order passed by Anti-Terrorism Court.

Petition was dismissed in circumstances. 2015 PCrLJ 456 LAHORE

Case should be dispose of within time:

S. 29. Intent behind enactment of S.29, Anti-Terrorism Act, l997. Under provisions of

S.29 of Anti-Terrorism Act, 1997, not only the trial of case pending adjudication before

the Anti-Terrorism Court would have precedence over all other trials pending adjudication

in other Trial Courts, rather except original jurisdiction of the High Court, it would have

precedence over other cases. Rationale of the legislature while inserting S.29 of the Act,

reflected that the only intent behind it was to speed up the adjudication of such like cases.

If the matters were not disposed of within shortest possible time, the wisdom behind the

very establishment of such courts would dash to ground. Trial Court was directed by the

High Court to conduct the trial on day to day basis and conclude the same preferably

within a period of three months of the receipt of the present order. : 2015 PLD 63

LAHORE

Terrorism is schedule offence: Penal Code (XLV of 1860), Ss.302, 324 & 34. Pakistan Arms Ordinance (XX of 1965),

S.13(d). Criminal Procedure Code (V of 1898), S.345, Sched. Third, item No.4(iii). Act of

Terrorism , qatl-i-amd, attempt to commit qatl-i-amd, common intention, possessing

unlicensed arms. Appreciation of evidence. Transfer of case from Anti-Terrorism Court to

Court of Session. Compromise, effect of. Application of accused filed under S.23 of Anti-

Terrorism Act, 1997, for transfer of his case from the Anti-Terrorism Court to the Court of

Session, was dismissed. Accused had committed murder of his real sister with fire-arm

inside the court room, which under item No.4(iii), of the Third Schedule, annexed to Anti-

Terrorism Act, 1997 was Scheduled Offence, exclusively triable by Anti-Terrorism Court.

Contention was that complainant/husband of the deceased having entered into a

compromise with the family of accused, by consent, matter could be transferred to the

Court of Session; and parties be allowed to settle the matter in accordance with law.

Accused was charged inter alia with an offence under Ss.6 & 7 of the Anti-Terrorism Act,

1997, which did not find place in any of the columns of the Table appended to the

provisions of S.345, Cr.P.C., detailing the compoundable offences. Allowing prayer to

transfer case from Anti-Terrorism Court on ground of compromise would literally mean

converting a non-compoundable offence into a compoundable offence, which was a total

novel concept; and not recognized by the law. Law had clearly limited the cases which

could be compoundable/ compromised and did not provide any scope for converting a

non-compoundable offence into a compoundable, merely because the

~ 29 ~

parties had entered into a compromise. Such an action would not only frustrate the

provisions of S.345, Cr.P.C., but would make all offences as compoundable which would

be against the public policy and beyond the competence of court, and could not be

allowed. Neither jurisdiction could be conferred on a court which had no jurisdiction to

adjudicate an issue, nor a court could be deprived of its jurisdiction for the convenience or

at the request of the parties. Accused had killed his sister on account of her free will

marriage in the court room, where justice was dispensed and people had confidence to be

treated in accordance with law. Anti-Terrorism Court, had rightly rejected request for

transferring the case to the Court of Session, in circumstances. 2015 PCrLJ 438

KARACHI

Corroboration not necessary:

S. 365-A. Anti-Terrorism Act (XXVII of 1997), S. 7(e). Kidnapping or abducting for

ransom, act of Terrorism . Appreciation of evidence. Evidence of prosecution witnesses,

was steadfast with each other in respect of all material aspects i.e., place of interception,

arrival of three persons on motorcycle; taking possession by person, while third one

followed the car, and place of dropping of alleged abductee. Evidence of said witnesses

was natural and confidence inspiring, and they had corroborated each other in respect of

all material aspects. Said witnesses remained under captive for a considerable period in

separate rooms, their claim to have seen accused persons during such period was quite

logical and reasonable one. Passing of ransom amount to accused persons had been

proved. Abductee had no enmity or annoyance against accused persons nor accused

persons had alleged or suggested any motive against witnesses. Trial Court had

committed no illegality in believing the evidence of witnesses. Defence had not brought

any material contradiction to cause any dent in the evidence of witnesses. In presence of

direct, natural and confidence inspiring evidence of abductee, other corroboration was not

needed nor any dent in other corroborative pieces of evidence, would help the defence.

Impugned judgment of conviction being well reasoned, was maintained, in circumstances.

2015 PCrLJ 391 KARACHI

Kidnaping for ransom may be a part of terrorism:

Ss. 365 & 365-A. "Kidnapping" and "kidnapping for ransom". Scope. Case of kidnapping

or kidnapping for ransom, were two different crimes. Since the legislature had provided

different punishments, kidnapping for ransom was considered to be more heinous than

kidnapping. Kidnapping for ransom, created fear, terror and insecurity in the society,

same, therefore, had been made a part of Anti-Terrorism Act, 1997 vide S.7(e) of said

Act. 2015 PCrLJ 316 KARACHI

Prosecution had proved its case against accused persons beyond any shadow:

Anti-Terrorism Act (XXVII of 1997), S.7(e). Kidnapping or abduction for extorting

property, valuable security, common intention, act of Terrorism . Appreciation of

evidence. Evidence of the complainant and his brother was trustworthy and reliable for the

reasons that they had no motive to falsely implicate accused person in a heinous crime.

Payment of ransom was also established by cogent and confidence inspiring evidence.

Both accused persons were identified by complainant and his brother in the identification

parade. No inherent defect in the evidence of the prosecution witnesses or in the

identification parade had been pointed out. Despite lengthy cross-examination, not a single

major contradiction had come on record. Delay in lodging of F.I.R. had been fully

explained. Approach of the court in the matter like the present case, should always be

dynamic and, if the court was satisfied that offence had been committed in the manner in

which it had been alleged by the prosecution and the same was proved, the technicalities

should be overlooked without causing miscarriage of justice. Plea of accused persons that

Police demanded bribe from them and on their refusal they had been challaned in the

present case,

appeared to be without substance and afterthought; and same had also not been

substantiated by producing the defence. Child witness/victim having not understood the

questions of the Trial Court, no benefit could be extended to accused persons on the basis

of evidence of child witness. Prosecution had proved its case against accused persons

beyond any shadow of doubt, and Trial Court had rightly appreciated the evidence

according to the settled principles of law. Finding of conviction recorded by the Trial

Court against accused persons, required no interference in circumstances. : 2015 PCrLJ

119 KARACHI

Offence of terrorism and Harabaah:

Explosive Substances Act (VI of 1908), S.5. Anti-Terrorism Act (XXVII of 1997), S.7.

Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4).

Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant

from discharge of his duty, rioting, common object, possessing unlicensed arms,

explosion, act of Terrorism , and Haraabah-- Refusal of bail to a person not in custody, in

court or against whom no case was registered etc.. Nobody had been nominated as

accused, directly by the complainant. During investigation five persons were found

involved in the case, out of whom, two were tried after their arrest, and acquitted by the

Judge Anti-Terrorism Court; while rest of the three were fugitive from law. Accused's

name was not mentioned in the record as accused; and he was not arrested by the Police in

the present case; he was behind bars in certain other cases, but in the present case, he had

neither been nominated/charged nor arrested. Prayer of said accused for his release on bail,

would not be entertainable. Judge Anti-Terrorism Court, in circumstances had not

dismissed bail petition of accused on merits. Section 498-A, Cr.P.C., was a disabling

section, whereby the court had been unauthorized to release a person on bail or direct him

to be admitted to bail, who was not in custody, or was not present in court; or against

whom no case stood registered for the time being-Order for the release of a person on bail,

or such direction, would be effective only in respect of the case that stood register& and

specified in bail granting order. Nothing in Ss.496, 497 and 498; Cr.P.C., had authorized

the court to release on bail or direct admission to bail of any person, who was not in

custody or against whom, no case was registered. In the present case, counsel for accused

had failed to show the implication of accused or his arrest, or detention in the case. No

question of release of accused on bail, would arise, in circumstances. Any decision on the

application of accused, in absence of his arrest, would be a step not justified in law. Bail

petition of accused, was dismissed, in circumstances. 2014 YLR 2305 PESHAWAR

Act of Terrorism and kidnapping: Anti-Terrorism Act (XXVII of 1997), S. 7. Criminal Procedure Code (V of 1898), S.164. Qanun-e-Shahadat (10 of 1984), Art. 129(a). Act of Terrorism and kidnapping or abduction with intent secretly or wrongfully to confine a person. Appreciation of evidence. Charge, alteration of. Sentence, reduction of. Confession. Scope. No admission of guilt or conspiracy or intention to abduct any person was on record. No demand made or receipt of ransom by the accused or on his behalf was available. Prosecution witnesses had admitted that abduction took place while accused was driving vehicle. Statement of accused recorded under S. 164, Cr.P.C. was in fact an admission of facts. Accused had witnessed abduction in the same transaction and allowed abductee to be seated in the vehicle while accused was driving the said vehicle. Such admission of facts by the accused were relevant facts which would constitute the offence of abduction chargeable under S. 365, P.P.C.. Statement of accused recorded under S. 164, Cr.P.C. was retracted by him. Retracted confession should be voluntary, inculpatory and truthful. Defence was unable to point out any striking evidence to damage or diminish the effect of retracted confession with regard to voluntariness and inculpatory of the same. Statement of accused recorded under S. 164, Cr.P.C. was also corroborated by other direct or circumstantial evidence on material particulars and same could be relied upon. Time and place of arrest of accused along with vehicle which was identified by the eye witness of the crime and recorded in the 'Murasila' would lead to an adverse presumption against the accused when he was unable to explain his

~ 31 ~ presence in the vehicle at the time of his arrest. Prosecution had failed to prove that any

ransom was demanded by the accused party and same was paid for release of abductee.

Prosecution had been unable to prove a case against the accused committing the offence

carrying capital punishment under S. 365-A, P.P.C.. Prosecution evidence was clear with

regard to factum of abduction of abductee by the accused party corroborated by the

statement of accused recorded under S.164, Cr.P.C and his arrest while driving vehicle

soon after commission of offence. Offence of kidnapping had been committed by the

accused punishable under S. 365, P.P.C.. Punishment for kidnapping as provided under

S.365 P.P.C. was imprisonment which might extend to seven years but same would be

rather harsh and disproportionate to sentence accused for maximum period of seven years.

Accused had been behind the bars for the last more than two years and such period was

proportionate to the criminal culpability of the accused. Charge was altered for the

commission of offence under S. 365-A, P.P.C. to that of S. 365, P.P.C. and while

maintaining the conviction of accused sentence awarded to him was reduced from life

imprisonment under S. 365-A, P.P.C. to that already undergone and also burden with a

fine of Rs. 5000 and in case of failure to pay the same to undergo six months rigorous

imprisonment under S.365, P.P.C.. Appeal was partially accepted in circumstances. 2014

YLR 2109 PESHAWAR

Sentenced by the Anti-Terrorism Court for his defective investigation:

S. 27. Defective investigation. Appreciation of evidence. Accused, who was Investigating

Officer in a criminal case, was convicted and sentenced by the Anti-Terrorism Court for

his defective investigation which constituted offence under S.27 of Anti-Terrorism Act,

1997. Court in its impugned judgment had observed that accused had committed certain

lapses, and when those lapses were pointed out to accused, he was unable to properly

answer the same. Lapses in the investigation so referred by the Trial Court, could not be

attributed to accused alone. Record of the case was silent with regard to the fact that

lapses referred to, were the result of bad faith, or for any extraneous consideration.

Nothing was available to the effect that accused being Investigating Officer, had acted

intentionally and improperly, without due diligence; and had acted in breach of his duties.

All the details had been given by the accused in statement before the court. Reply given

and the statement of accused along with all the documents, had not been considered and

appreciated by the court, and findings of court appeared to be presumptive. Charge against

accused, in circumstances, had become doubtful. Accused could not be convicted and

sentenced, in circumstances. 2014 PCrLJ 1262 PESHAWAR

Volunteer promptitude action:

Act of Terrorism , causing explosive or making or keeping explosive. Appreciation of

evidence. Confession. Promptitude with which the confessional statement was recorded,

depicted volunteerness; and had eliminated the possibility of use of coercion or

inducement. All the necessary formalities as enumerated in S.164, Cr.P.C., were duly

complied with prior to recording statement of accused under S.164, Cr.P.C.. Confessional

statement of accused was not the result of maltreatment and coercive measures. Accused,

while being examined under S.342, Cr.P.C., gave affirmative answer to the question of

confession. When accused would retract or resile from confession, onus would lie on him,

to prove that he did not record any confession. Conviction could be based on the sole

confessional statement, provided same was voluntary; and true and there was no basic

difference between the confession already recorded or the retracted confession, if the

element of truth was not missing. Occurrence in the present case was result of the reason

as stated by accused in his confessional statement. Such like cases should be dealt with

iron hands and no leniency should be shown to a heinous crime. Schools were blown-up

and the Government property was damaged by miscreants. Life of the inhabitants of the

area, had become miserable due to the activities of which accused had been involved.

Such terrorist activities had created a sense of fear in society. Prosecution had proved its

case against accused

beyond shadow of doubt. Conviction of accused was maintained and his appeal was dismissed, in circumstances. 2014 PCrLJ 1036 PESHAWAR Attempt to cause explosion: Anti-Terrorism Act (XXVII of 1997), S. 7. Attempt to cause explosion, possessing

explosives under suspicious circumstances, act of Terrorism . Appreciation of evidence.

No eye-witness was available and the case of prosecution rested entirely on circumstantial

evidence. Confessional statement made by accused was exculpatory in nature, as neither it

contained any admission nor confession; and had remained uncorroborated. Trial Court

should not have accepted the same as a weak type of evidence. Evidence of C.C. TV

recording, was neither clear nor compelling, rather was shrouded in mystery as to how the

law-enforcing agencies had reached to accused through the same. Not a single

circumstance had been proved by the prosecution wherefrom inference regarding guilt of

accused could be drawn, as the evidence fell far short of the prescribed standards.

Prosecution version, was not in consonance with the statements of prosecution witnesses.

Trial Court was not justified to ignore the material discrepancies and infirmities in the

prosecution evidence. Conviction and sentence of accused persons, were set aside and

they were acquitted of the charges levelled against them and were set at liberty, in

circumstances. 2014 PCrLJ 732 PESHAWAR

Juvenile accused involve in terrorism:

S. 9(c). Juvenile Justice System Ordinance (XXII of 2000), S.11. Juvenile Justice Rules,

2001, R.6. Possessing and trafficking of narcotics. Minority of accused. Effect. Release of

minor accused on probation. Contention of counsel for accused was that accused who at

the time of incident was below the age of 18 years, being a juvenile, was entitled to be

dealt with under S.11 of the Juvenile Justice System Ordinance, 2000. Accused though at

the time of commission of offence was a juvenile, but at the time of arrest and conclusion

of his trial, and passing the impugned judgment of conviction, he had attained the age of

19/20 years. Mere minority or juvenile-ship of accused was not the criteria for grant of

relief under S.11 of Juvenile Justice System Ordinance, 2000, in matter of conviction.

There could be some minor offences, in which sentence could be normally short, and if the

court passed an order of conviction, the beneficial provisions could be exercised in his

favour. If, however, accused was charged for a heinous offence and sentenced to life

imprisonment, his case could not be treated at par with minor offences. Age, seriousness of

the offence, and past record of criminal activities of accused, at the time of conviction,

would also be a relevant factor; which would also be adhered to. Juvenile Justice System,

which was meant to treat a child accused with care and sensitivity, offering him a chance

to reform and settle into the mainstream of society, same could not be allowed to be used

as a ploy to dupe the course of justice, while conducting trial; and treatment of heinous

offences. Court must be sensitive in dealing with the juveniles, who were involved in cases

of serious natures like druglord, murder, gang rape, Terrorism , sexual molestation, and

host of other offences. Minor/Juvenile accused could never be allowed to abuse the

statutory protection and concession/rather involvement in a flagitious crime, must be

meted out stringent punishment to discourage the involvement of minors by the people for

settling their score through them (Juveniles). 2014 PLD 69 PESHAWAR

~ 33 ~

Transfer of case from Anti-Terrorism Court to regular court: Anti-Terrorism Court dismissed applications of accused involved in different offences

namely murder by firing, acid throwing and injury caused by firing in mosque, for transfer

of their cases to regular courts. Purpose of Anti-Terrorism Act, 1997 was to prevent

Terrorism , sectarian violence and conducting speedy trial of heinous offences. In order to

decide whether an offence was triable under the Anti-Terrorism Act, 1997 or not, the

courts had to see whether the act had tendency to create sense of fear and insecurity in the

mind of people or a section of society. Such act might not necessarily have taken place

within the view of general public. Schedule annexed to a statute was as important as the

statute itself. Schedule could be used to construe the provisions of the body of the Act.

Third Schedule to the Anti-Terrorism Act, 1997 had to be given its due importance and,

first three paragraphs of the same were general in nature while the fourth paragraph

specifically described offences. In order to bring an offence within ambit of Anti-

Terrorism Act, 1997 and the jurisdiction of the Anti-Terrorism Court, nexus of such

offence with S.6 of the Anti-Terrorism Act, 1997 was a pre-requisite. Paragraph 4 of the

Schedule to the Anti-Terrorism Act, 1997 categorically mentioned the offences which

would be tried only by the Anti-Terrorism Court. Offences in question were within the

purview/ambit of the paragraph 4 of the Third Schedule to the Anti-Terrorism Act, 1997

and were triable by the Anti-Terrorism Court. Petitions were dismissed.2014 PLD 644

LAHORE

Lawyer being accused of terrorism:

Anti-Terrorism Act (XXVII of 1997), S.7. Qatl-e-amd, abetment and Terrorism . Pre-

arrest bail, grant of. Conspiracy/abetment. Proof. Abscondence of co-accused. No details

of alleged conspiracy/abetment such as day, time and place were mentioned in F.I.R..

Effect. Petitioner was a practising lawyer and had joined investigation and was no more

required for the same. On account of propinquity with co-accused, who allegedly

physically participated in occurrence, chances of false implication of accused could not

be ruled out, as the accused did not participate in occurrence. Life and liberty of a subject

of State is more precious to a jewel and just to quench the thrust the law does not permit

sending a person behind bars, and the law stands as a wall of glass to shield and save

innocent persons from humiliation and from sending them behind bars. Abscondence of

co-accused could not be attributed to accused. Pre-arrest bail was confirmed in

circumstances. 2014 PCrLJ 940 LAHORE

Bogus medical legal certificate:

Anti-Terrorism Act (XXVII of 1997), S. 7. Constitution of Pakistan, Art. 199.

Constitutional petition. Attempt to commit qatl-e-amd, acts of Terrorism . Mala fides

alleged against doctor/medical officer who had examined injuries of victim. Proof.

Accused filing application before Trial Court seeking constitution of a Medical Board to

medically examine injuries of victim. Accused contended that doctor who medically

examined the complainant issued a bogus medico-legal certificate in order to help the

complainant in lodging of F.I.R.. Trial Court dismissed application of accused.

Application filed by accused for constitution of Medical Board did not mention the

particular mala fides, which were attributable to the doctor/medical officer who medically

examined the complainant. For establishing a case of mala fides some specific allegations

were necessary and they must be supported by some prima facie proof to set aside the

impugned order of Trial Court. Accused had made a bald assertion stating that medical

officer had been won-over by the complainant, and in the absence of specific allegations,

no inquiry could be held in the present matter and no direction could be given for the

constitution of a Medical Board. Application filed by accused before Trial Court was

delayed by about 22 days and no plausible explanation was offered for such delay.

Constitutional petition was dismissed in circumstances. 2014 PCrLJ 850 LAHORE

Maltreatment and mobile phone snatching could not be termed as an act of Terrorism:

Criminal Procedure Code (V of 1898), S. 265-D. Constitution of Pakistan, Art.199.

Constitutional petition. Act of Terrorism . Return of case to Regular Court.

Petitioner/complainant was aggrieved of the order passed by Anti-Terrorism Court,

whereby case was transferred to the court of regular jurisdiction. Complainant was

working as maid under an agreement in the house of accused and allegedly she was

maltreated and her mobile phone was also snatched. Such act could not be termed as an act

of "Terrorism ". Before framing of charge Judge, Anti-Terrorism Court after having

considered that facts of the case did not satisfy ingredients of S.365-A, P.P.C. rightly

passed the order of transfer of the case. Petitioner failed to point out any

illegality/infirmity in the order passed by Anti-Terrorism Court. Petition was dismissed in

circumstances. 2014 PCrLJ 754 LAHORE

Liberty of a man could not be curtailed on lame excuses:

S. 11EE & Fourth Schedule. Penal Code (XLV of 1860), S.188. Constitution of Pakistan,

Art.199. Constitutional petition. Petitioner's name was listed to the Fourth Schedule to the

Anti-Terrorism Act, 1997 once again, after High Court had directed the authorities to

delete his name after the expiry of previous enlistment. Validity. Prosecution produced a

copy of F.I.R. under S.188, P.P.C. alleging that petitioner was still an activist of a banned

organization since his mother's last rites were attended by some other activists.

Allegations in the said F.I.R. could not impose any liability on petitioner under S.188,

P.P.C.. No fresh material was available against petitioner to necessitate relisting his name

to the Fourth Schedule. Liberty of a man could not be curtailed on lame excuses. Courts

being custodians of law, had to jealously guard the fundamental rights of citizens.

Relisting of petitioner to the Fourth Schedule to the Anti-Terrorism Act, 1997 was illegal

in circumstances. Petition was allowed. 2014 MLD 1308 LAHORE

Right of defend:

Ss. 302, 365-A, 343, 440 & 34. Anti-Terrorism Act (XXVII of 1997), S.7(e). Constitution

of Pakistan, Arts.10 & 10-A. Qatl-e-amd, kidnapping for ransom, wrongful confinement,

mischief, common intention. Trial in absentia. Effect. Both accused were tried and

convicted in absentia. No person arrested, would be denied the right to consult and defend

by a legal practitioner of his choice, and could be deprived from the right of fair trial.

Accused, in the present case, were absconding at the relevant point of time; they, in

circumstances, were denied the right to defend themselves and deprived the right to

consult or defend by a legal practitioner. Trial in absentia was a violative of Arts.10(1) &

10-A of the Constitution. Accused had not been afforded an opportunity of being heard,

and they were condemned unheard which was contrary to the principles of natural justice

as well. Case was remanded to the extent of said absconded accused, in circumstances.

2013 MLD 1331 KARACHI

Prosecution failed to prove its case:

Ss. 302, 324, 337-H(2) & 34. Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7. Qatl-e-

amd, attempt to commit qatl-e-amd, causing hurt by rash or negligent act, act of

Terrorism , common intention. Appreciation of evidence. Complainant had clearly stated

that accused present in the court was not the same. Prosecution witness had stated that

S.H.O. had fired from his Kalashnikov at the deceased, who died at the spot. Accused

did not make any fire at the time of incident. Another

~ 35 ~

prosecution witness had also not implicated accused in the commission of the offence.

Remaining evidence was formal in nature and nothing incriminating was recovered from

the possession of accused. Eye-witnesses of the incident had not implicated accused in the

commission of the offence. Trial Court had failed to appreciate the evidence in accordance

with the principle of law. Burden to prove its case beyond reasonable doubt rested on the

prosecution, but it had failed to discharge the same. Prosecution having failed to establish

its case against accused, conviction and sentence awarded to them by the Trial Court, was

set aside and they were acquitted and released, in circumstances. 2013 MLD 1315

KARACHI

Bhatta demanding:

Extortion of money (bhatta). Appreciation of evidence. Accused was alleged to have

demanded bhatta from the complainant. Accused was arrested when he came to the house

of complainant to collect the bhatta amount. Trial Court convicted and sentenced accused

under Ss. 6(2)(k) & 7(h) of Anti-Terrorism Act, 1997. Complainant was not acquainted

with the accused, therefore, it could not be said that accused had come to the house of

complainant for a social visit. Record showed that there was no enmity between the

complainant and accused. Complainant clearly deposed that accused was constantly

calling him and arranged a date and time to collect the bhatta amount from house of

complainant. Accused went to the house of complainant on the specific date and time to

collect the bhatta amount, as there was no other purpose or reason available with the

accused to visit the house of complainant. Due to intervention of people of the locality

accused did not succeed in getting the bhatta amount and was apprehended from the spot.

Appeal of accused was dismissed in circumstances. 2013 MLD 1072 KARACHI

Bail declined of accused:

S. 498. Penal Code (XLV of 1860), Ss. 344/34. Anti-Terrorism Act (XXVII of 1997). Ss.

6(1)(b), 6(2)(b), (g), (i), (m) & 7. Wrongful confinement for ten or more days, common

intention, acts of Terrorism . Pre-arrest bail, cancellation of. Confinement of Judges of

superior Courts. Allegation against the accused, who was a former President of Pakistan

and Chief of Army Staff, was that he suspended the Chief Justice of Pakistan and 60 other

Judges of superior Courts from their positions and placed them under house arrest for a

period of five and half months due to which they were unable to perform their judicial

functions. Perusal of F.I.R. clearly suggested that police did not insert the sections of

relevant law which were made out from the contents of the F.I.R.. Confining Judges of

Superior Courts and stopping them from performance of their duties was an act of

Terrorism . Prima facie offence under S.7 of Anti-Terrorism Act, 1997 was attracted to the

present case. Police was bound under the law to insert the sections of relevant law which

contents of F.I.R. suggested. According to investigating officer accused did not join the

investigation, rather a telephonic message was conveyed (by him) that material would be

provided to court. Such act of accused was defiance of court order and misuse of

concession of bail. Accused failed to point out any mala fide on part of police or

complainant. Offence alleged fell within the prohibitory clause of S.497(1), Cr.P.C.

Accused was also a proclaimed offender and as such could not claim his normal rights.

Accused was specifically nominated in the F.I.R. and was also required for further

investigation. Act of accused through which Judges of Superior Court(s) were confined to

their residencies shocked the entire nation more particularly community of lawyers. Such

act of accused spread fear in the society, insecurity amongst judicial officers, alarm in the

lawyers community and terror throughout the country. Pre-arrest bail of accused was

declined accordingly. 2013 PLD 66 ISLAMABAD

Sectarian motive behind terrorism:

Ss. 302, 324, 337-D & 34. Anti-Terrorism Act (XXVII of 1997), S.7. Pakistan Arms

Ordinance (XX of 1965), S.13(e). Qatl-e-amd, attempt to commit qatl-e-amd, Jaifa,

common intention, act of Terrorism , possessing unlicensed arms. Appreciation of

evidence. Statements of the witnesses

and injured in the incident, were un-rebuttedly confidence-inspiring. No material had been

placed on record for the false involvement of accused in the case. No doubt the weapon of

offence (Kalashnikov) had not been directly recovered on the pointation of accused, but

evidence on record had shown that same was the property of accused and was owned by

accused in the presence of Magistrate. Positive result of the empty shells which had been

recovered and proved to have been fired from the recovered weapon of offence, pointed

the guilt against accused for being used by him. In view of sectarian motive for the

murder, along with the other material placed on record, it could be said that death sentence

awarded to accused by the Trial Court had rightly been awarded, which could not be

interfered with. Murder reference made by Judge Anti-Terrorism was answered in

affirmative to the extent of accused and death sentence awarded to him, was confirmed, in

circumstances. 2013 PCrLJ 1129 Gilgit-Baltistan Chief Court

Probability of conviction:

Anti-Terrorism Act (XXVII of 1997), S. 7. Criminal Procedure Code (V of 1898), Ss.249-

A & 265-K. Abduction, harbouring offender and act of Terrorism. Judge Anti-Terrorism

Court, passed impugned order without considering the material available on record

including the statement of one of the abductees and statements of relatives of another

abductee. Application filed under S.249-A, Cr.P.C. was dismissed by the court with

observation that the report of re-investigation was not binding upon the court; and the

Police Officials recorded their statements under S.161, Cr.P.C., in which they implicated

accused and their names appeared in the F.I.R.. If the Judge, Anti-Terrorism Court, was of

the view that at that stage, acquittal was not possible, then he should have considered the

entire material available on record; and should have discussed with rationale as to why

acquittal at that stage was not possible, but neither the Judge considered the effect and

implication of statements recorded under S.164, Cr.P.C. in which abductee and their

relatives did not implicate accused, nor any exact findings had been incorporated in the

order warranting the dismissal of application of acquittal. Trial Court, while deciding

application under S.249-A, Cr.P.C. had failed to consider and appreciate material on

record and decided the application in a manner which was contrary to the very spirit and

scope of S.249-A, Cr.P.C.. Whether charge was groundless or not or probability of

conviction was there or not, same could only be decided once the Trial Court considered

the entire material available on record. Report of Crime Branch, was not normal or routine

report submitted under S.173, Cr.P.C., but it was a report based on re-investigation of

entire matter which was not binding. Impugned order was set aside and application moved

under S.249-A, Cr.P.C. would be deemed pending. Judge Anti-Terrorism Court was

directed to deicide the application afresh, after hearing the applicants/accused and

prosecution and pass a speaking order, within a period of one month on the basis of entire

material available on record. 2012 PCrLJ 999 KARACHI

Delay in lodging F.I.R. was not sufficient ground per se to grant bail in terrorism offence:

West Pakistan Arms Ordinance (XX of 1965), S 13-D. Explosive Substances Act (VI of

1908), Ss. 3 & 4. Anti-Terrorism Act (XXVII of 1997), S.7. Qatl-e-amd, attempt to

commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his

duty, rioting armed with deadly weapons, possession of illegal weapons, causing

explosion likely to endanger life or property, attempt to cause explosion or for making or

keeping explosive with intent to endanger life or property, acts of Terrorism . Bail, refusal

of. Gang of dacoits. Police encounter. Both accused were found in injured condition after

police had an encounter with the gang of armed dacoits. No mala fide or any enmity had

been alleged against the police officials to involve the accused in the case and both the

accused were arrested on the spot and weapons were also recovered from them. Police

encounter was genuine as record showed that nine dacoits and one police official lost their

lives during the encounter. Delay in lodging F.I.R. was not sufficient ground per se to

grant bail to accused without attending all other relevant circumstances. No reasonable

grounds existed to

~ 37 ~ believe that the accused were not guilty of non-bailable offence. Bail application of accused was dismissed in circumstances. 2012 PCrLJ 786 KARACHI Attempting to cause explosion:

Explosive Substances Act (VI of 1908), Ss.3, 4 & 5. Anti-Terrorism Act (XXVII of 1997),

S. 7. Causing and attempting to cause explosives and making or possessing explosives and

act of Terrorism . Bail, grant of. Further inquiry. Medical report, heavily relied upon by

the prosecution, showed that accused had sustained injuries due to blast, but said report

was not produced. Even if said report was produced, at bail stage, same could not be

attributed to accused for the reason that he was not arrested on the spot and was arrested

subsequently far away from the place of blast; and that too upon pointing out by other

accused. Injuries on the body of accused could be for any reason and tentatively could not

be joined with the explosion of the house. Connection of accused with the explosion at the

time, when the evidence (at bail stage) was not required to be looked into and/or

appreciated preferably, prima facie, ?lid not hook-up accused with the offence and made

out a case of further inquiry as demanded by subsection (2) of S.497, Cr. P. C.. Provisions

of Ss.3, 4 & 5 of Explosive Substances Act, 1908, would show that any person found

associated in causing explosion and/or keeping explosive item with intent to endanger life

or property and/or making explosives, would be punished for such offences. Accused was

neither found possessing the explosive substances nor making such explosive substance

and he was not even arrested from the place of explosion to show that he was busy making

explosive substances and because of explosion, suffered injuries-Case being of further

inquiry, accused was enlarged on bail, in circumstances. 2012 PCrLJ 653 KARACHI

Inconsistencies were found as to the number of sims recovered:

S. 497(2). Penal Code (XLV of 1860), S.386/34. Anti-Terrorism Act (XXVII of 1997),

S.7. Extortion by putting a person in fear of death or grievous hurt, act of Terrorism . Bail,

grant of. Further inquiry. Allegation of the complainant was that he received calls from

two mobile phones from the accused who demanded amount and in failing to make such

payment threats of dire consequences were extended. Complainant in his statement under

S.161, Cr.P.C. had come forth verbatim as in his complaint and added that he gave tainted

currency notes to his servant. Mention of said part of the statement was missing in F.I.R..

Amount in question though was pre-arranged, but numericals of the currency notes were

not noted that could enable the complainant or the Police to connect accused with the same

in the event of the recovery; however recovery was stated to have been made from

accused. Statement by the servant of the complainant had shown that the complainant was

receiving calls from accused on regular basis. Such state of affairs was neither patent from

the contents of the F.I.R. nor from the statement of the complainant. Record showed that

two numbers from which the complainant had received calls belonged to accused, but it

was not yet clear that such two numbers were part of those five sims allegedly recovered

from accused. Inconsistencies were found as to the number of sims recovered. Recovery of

sims by itself created doubts, which needed further inquiry and same was the position with

the recovery of currency notes. Case of accused requiring further inquiry, he was enlarged

on bail, in circumstances. 2012 PCrLJ 70 KARACHI

No further investigation required:

S. 497. Penal Code (XLV of 1860), Ss. 365-A & 34. Anti-Terrorism Act (XXVII of 1997),

Ss. 6 & 7. Kidnapping or abduction for extorting property, valuable security etc., common

intention, acts of Terrorism . Bail, grant of. Accused and co-accused persons allegedly

abducted the complainant's son (abductee) for ransom. Abductee was voluntarily released

and recorded his statements under Ss.161 & 164, Cr.P.0 on basis of which accused was

arrested. Name of accused did not transpire in the F.LR.. Abductee did not disclose the

name of accused in his statements under Ss. 161 & 164, Cr.P.C. No identification parade

was conducted. No incriminating article was recovered from

possession of accused- No ransom had been paid to anyone. Only piece of evidence

against accused was statements of prosecution witnesses under S. 161, Cr. P. C whereby

they implicated the accused. Said statements under S. 161, Cr. P. C could be considered at

time of trial as they had no evidentiary value at bail stage. Challan against accused had

been submitted and he was no more required for further investigation. Accused was

allowed bail in circumstances. 2012 MLD 1986 KARACHI

Evidence of police officials was also corroborated by the abductees:

West Pakistan Arms Ordinance (XX of 1965), S. 13-D. Anti-Terrorism Act (XXVII of

1997), S. 7. Attempt to commit qatl-e-amd, assault or criminal forces to deter public

servant from discharge of his duty, rioting armed with deadly weapons, possession of

illegal weapons, acts of Terrorism . Bail, refusal of. Accused persons belonging to gang of

kidnappers. Police encounter. Hostages (abductees) freed. Co-accused apprehended and

disclosing names of the accused persons, implicating them in the offence. Contentions of

accused persons was that they had been involved in the case on the statement of the co-

accused, which was not admissible under the law; that alleged police encounter took place

for 30 minutes but no one from either side received any injury, and that statements of

alleged abductees were recorded after a delay of 10 days without any plausible

explanation. Act of the accused persons showed that they fired upon the police party and

obstructed them from performing their lawful duties. Number of witnesses had witnessed

the incident which included police officials and the abductees. Evidence of police officials

was also corroborated by the abductees. Accused persons were facing trial in a number of

heinous offences. Bail application of the accused persons was dismissed, in

circumstances. 2012 MLD 1809 KARACHI

Court directed to delete the name of accused from fourth Schedule:

Constitutional petition. Security for good behaviour. Prerequisites. Period beyond three

years. Legality. Grievance of petitioners was that their names were included in Fourth

schedule and security for good behaviour was sought from them for period beyond

three years. Validity. Prerequisites for inclusion of the name of a person in a list prepared according to Fourth

Schedule of Anti-Terrorism Act, 1997, were concrete material and cogent reason to prima

facie establish that the person was an activist, office bearer or an associate of a proscribed

organization or an organization suspected to be involved in Terrorism or sectarianism. It

was also necessary that material or information placed before concerned government

should be of such nature, which could satisfy a reasonable person for making necessary

entry in Fourth Schedule of Anti-Terrorism Act, 1997 and foremost requirement was that

the competent authority must prove legality of the order. Names of petitioners stood in list

prepared according to Fourth Schedule of Anti-Terrorism Act, 1997, for a period

exceeding three years, which was violative of restriction imposed on the concerned

government as provided in S.11-EE(2)(a) of Anti-Terrorism Act, 1997. Inclusion of name

of a person in Fourth Schedule for an indefinite period was not only against relevant

provisions of law but also a flagrant violation of inalienable right of a citizen to enjoy

protection of law and to be treated in accordance with law, as enshrined in Art. 4 of the

Constitution. Retaining names of petitioners in a list as mentioned in Fourth Schedule of

Anti-Terrorism Act, 1997, prepared more than three years earlier was not in accordance

with law and the same could not be sustained. High Court directed the authorities to delete

the names of petitioners from the Fourth Schedule of Anti-Terrorism Act, 1997. Petition

was allowed accordingly. 2011 PLD 145 LAHORE

Alleged demand of "Bhatta" made by accused from the complainant on Mobile Phone:

Anti-Terrorism Act (XXVII of 1997), S. 6(1)(k)-Extortion and Terrorism . Names of

Mashirs did not appear in the very F.I.R. in which the complainant was shown to have

proceeded from Police Station to the place of alleged incident as per the directions of the

Police. No Mashirnama was prepared at the spot in respect of the recovery of the cash

allegedly received by accused and recovered from his possession. Mashirnama in

question had shown that accused was first taken from the spot towards the Police Station

where such Mashirnama was prepared. Complainant also admitted on a query that both

Mashirs were his subordinates. Alleged demand of "Bhatta" made by accused from the

complainant on Mobile Phone, also needed further inquiry. Accused being entitled to the

concession of bail, was admitted to bail, in circumstances. 2011 YLR 2300 KARACHI

Doubtful case:

Kidnapping for ransom and act of Terrorism . Contradictions were found in the deposition

of prosecution witnesses with regard to material facts. Statements of prosecution witnesses

under S.161, Cr. P. C. were recorded by the Investigating Officer after arrest of accused

persons and after the recovery of allegedly kidnapped child, which had cast doubts. Case,

in circumstances was not free from doubts. Private witnesses, appeared to have been

arranged by the Police and whole story was prepared at the Police Station. In case of

doubt, no conviction could be made and accused must be given benefit of doubt, not as a

matter of grace, but as a matter of right. Anything going in favour of accused, must be

taken into consideration and benefit of doubt, if any, be extended to accused. Many

circumstances creating doubt were not required to give benefit of doubt to accused; a

single circumstance creating reasonable doubt in .a prudent mind was enough to acquit

accused. Complainant party had not paid any ransom amount to accused directly or

through some of their agents. In a case of abduction, the court had to see the purpose of

kidnapping; was the same made for extorting money or property or to compel a person

related with abductee to gain some benefit from him. Role assigned to co-accused who

was wife of the complainant, for kidnapping and demanding the ransom amount, cast

heavy doubt in that regard. Prosecution had to prove its case beyond reasonable doubt; and

accused was presumed to be innocent until the case was fully proved against him or her.

Prosecution had failed to prove its case against accused beyond any reasonable doubt,

benefit of the same had to be given to accused. Prosecution having failed to make out a

prima facie case against accused persons, impugned judgment of Trial Court, was set aside

and accused were directed to be released, in circumstances. 2011 YLR 2238 KARACHI

The occurrence having taken place in a populated area:

Accused had allegedly abducted the minor child, nephew of the complainant. Despite the

occurrence having taken place in a populated area, no eye-witness or any other witness

from the locality had been joined in investigation by the police. Accused had, according to

complainant, contacted him on phone for ransom amount, when father of the child was

also with him, but neither the father nor the mother of the child went to the police station

with him. Prosecution witnesses had only a fleeting glimpse of the accused and that too

after sunset and they had never met the accused previously, hence the possibility of

erroneous identification of accused in the identification parade could not be ruled out,

which even otherwise was not held in accordance with law. Statement of the abducted

child did not inspire confidence, as admittedly he had been tutored by the complainant

before making the same. Prosecution case was full of doubts, benefit whereof would go to

accused. Accused was acquitted in circumstances. 2011 YLR 1899 KARACHI

Anti-terrorist court gone beyond its jurisdiction:

Kidnapping, dacoity, robbery and mischief causing damage. Appreciation of evidence.

None of the offences against accused came within the ambit of scheduled offences of Anti-

Terrorism Act, 1997. Trial Court, even had not charged accused under S.302, P.P.C. for

the commission of murder of deceased. Anti-Terrorism Court which had no jurisdiction to

try the case and pass judgment, had travelled beyond its jurisdiction. Case was remanded

with the direction to the Anti-Terrorism Court to remit the same to the Court of Session

having jurisdiction for trial of the case, in accordance with law. 2011 YLR 1509

KARACHI

Cyber Security and Cybercrimes:

Synopsis Brief Note A. Execution of Search and Seizure of Computerized Information The search and seizure must be reasonable Scope of search Comments B. The Basic Steps Two Steps may be taken Warrant of search not support search of computer contents Scope of consent is limited Warrant search of computer is limited Government may attempt to justify a broad search Establishing probable cause C. The Search of the Contents Computer Search The seizure be completed at that moment Comments D. The Search Procedure Filed may be mislabeled

Comments Cabinet file search Consent to search Searching beyond the scope of warrant Private search Flagrant Disregard of the Warrant Blanket suppression A warrant may be executed only once Inventory of items What it seized before and after the deadline New search warrant conditions Wholesale removal of documents is prohibit E. Privileged Materials Utmost care needed in search computer items F. Challenging Summons Over breadth Doctrine Preventing destruction of evidence Obtaining a warrant in more than one district The search powers of the police are extremely wide and discretionary

Unreasonable intrusions into the homes of persons Searches must be subject to the doctrine of proportionality Reasonable grounds for suspicion Searches of digital evidence has less to do with public and private location The Court cannot speculate on the existence of personal information on the computers Where interference is legitimate The defendants were entitled to claim privilege Which material can be seized and which cannot Brief Note: The computers invite repeated search targets in criminal investigations of every kind. The technical means exist to search computers for particular information without hunting through private information not described in a search warrant. For example, in a typical white-collar crime case, relevant files can be isolated and irrelevant ones avoided through keyword searches. In a child pornography case, the state can search for picture files without the need to look at any text file. Therefore, a search of a computer hard drive can and therefore should be confined to files with characteristics tied to probable cause. Soon after an order or search warrant is served, hire a forensic computer examiner to instruct you about the technology at issue in the case. An expert will be requisite in framing and justifying discovery requests, reforming the state‟s search. An expert with rich experience executing government search warrants can be mostly helpful in recognizing what the government s examiner actually did and why it violated any provision of relevant substantive law. A. Execution of Search and Seizure of Computerized Information The search and seizure must be reasonable: The provisions of law that apply to other kinds of searches apply to computer searches. The search and seizure must not only be reasonable, but must be performed pursuant to a warrant, issued on probable cause and particularly describing the place to be searched and the things to be seized. E.g., Mincey v. Arizona, 437 U.S. 385, 390 (1987). Scope of search: The scope of the search may not exceed the scope of the warrant or the applicable exception to the warrant requirement, or, in any case, the bounds of probable cause. Maryland v. Garrison, 480 U.S. 79, 84 (1987); Walter v. United States, 447 U.S. 649, 656-57 (1980). Comments” The fact that a suspicious uses a computer along with an expert law enforcement attitude that this type of offender uses computers to store or communicate incriminating information does not amount to probable cause. Just like other searches, the application of provisions of FTA 2013 to a computer search depends on the particular facts of the search. What is different about a computer search is that the facts are unfamiliar and difficult to visualize. The challenge is to make the judge understand the technical facts and how the relevant applies to them. Similarities to more traditional search settings are helpful but proceed with caution. B. The Basic Steps Two Steps must be taken:

At the best common level, there are two steps in a search and seizure of computerized information, each of which must comply with the provisions of 16 and 17 IFTA 2013: (1) the search for and (possible) seizure of the hardware or other media (e.g., floppy disks) upon which the information described in the warrant is believed to be stored, and (2) the search for and seizure of the particular files or data specified in the warrant. See United States v. Upham, 168 F.3d 532, 535-36 (1st Cir.), cert. denied, 527 U.S. 1011 (1999). Warrant of search not support search of computer contents: A computer may be seized because it is itself evidence, fruits or contraband, e.g., one used by a hacker or to create child pornography. However, because there is an expectation of privacy in the contents separate from that in the computer itself, a warrant or an exception to the warrant requirement that authorizes the seizure of a computer will not support a search of its contents. See United States v. Carey, 172 F.3d 1268, 1274 (10th Cir.) Scope of consent is limited: Consent to seize computer did not permit the officer to open files contained in the computer; United States v. Kow, 58 F.3d 423, 427 (9th Cir. 1995) Warrant search of computer is limited: Warrant for computers and diskettes with no probable cause limitation on which files could be seized was a general warrant. Conversely, a warrant authorizing a search for certain computer files does not permit the seizure of the computer itself or its entire contents, any more than a warrant authorizing a search of a house for a murder weapon would permit the police to cart off the entire contents of the house.3 See Upham, 168 F.3d at 535-36 & n.1; Kreman v. United States, 353 U.S. 346 (1957). Government may attempt to justify a broad search: Be aware that the government may attempt to justify a broad search and seizure by claiming that authorization to make and restore an image of a hard drive permitted it to search for and seize anything and everything on the hard drive. United States v. Habershaw, No. Cr. 01-10195-PBS, 2001 WL 1867803 Establishing probable cause: Necessary logistical measures like making a mirror image or removing hardware for off-site review, however, do not expand the theoretical basis of probable cause. Given the wide variety of information stored on almost any computer or network, it is highly unlikely if not impossible that the government can establish probable cause to believe the entire computer media is filled with evidence of criminal activity. United States v. Hunter, 13 F. Supp.2d 574, 584 (D. Vt. 1998) C. The Search of the Contents: A criminal defense lawyer s goal may be to suppress information seized from within the computer rather than the computer itself. The law still remains undeveloped covering this area, but interesting and successful challenges can be mounted. Computer Search: Any technical process used to locate, review, extract, or enhance information is a search when it allows the state to view and seize information that is not exposed to public view, Like any other type of intangible information, computer files and data should be considered seized for fulfill the legal requirement when the government copies, extracts, records, saves, writes or prints it from its existing location to another medium. See Berger v. New York, 388 U.S. 41, 59-60 (1967) The seizure be completed at that moment:

The seizure should be considered complete at that moment, whether or not it will then be reviewed by a third party for privilege, passed on to the prosecution team, or used by the prosecution team, since the provisions of law protection is triggered without regard to the use made of the things seized. Indeed, courts routinely refer to government copying of computer data as a seizure. See United States v. Longo, 70 F. Supp. 2d 225, 247 (W.D.N.Y.) Comments: A seizure, of course, must be pursuant to a warrant or an exception to the warrant requirement and supported by probable cause. A copying process that merely serves a necessary forensic purpose should be described in the search warrant affidavit as such, but is supported by the same probable cause as that for the hardware itself, i.e., probable cause to believe that the information to be seized is located somewhere on the hard drive or other media. This typically consists of making a mirror image, which is an automated process that gets all the data into a searchable form and does not involve even viewing of data. Or the government may copy a universe of files directly from the computer on-site for a later off-site search without making a mirror image. Be aware, however, that wholesale copying onto CDs or magnetic optical disks does not serve a necessary forensic purpose when it is done in addition to making a mirror image, because the image both preserves the original evidence and gets the data into searchable form. Indeed, where any forensic need to make a mirror image then copy the same data onto disks. Since CDs are read-only and magnetic optical disks can be write-protected, this procedure lends itself to being used for the illegitimate purpose of conducting an overbroad search without leaving a trace. D. The Search Procedure: A developing challenge to computer searches is the claim that a technical search methodology that minimizes unwarranted intrusions required as by law. Responsible officials, including judicial officials, must take care to assure that [searches and seizures of a person s papers] are conducted in a manner that minimizes unwarranted intrusions on individual privacy.); Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457, 463 (5th Cir. 1994) Filed may be mislabeled: The general claim that files can be encrypted or mislabeled, or that criminals do not keep records of their criminal transactions in files labeled crime, a notion that originated in paper search cases. See, e.g., United States v. Riley, 906 F.2d 841, 845 (2d Cir. 1990). Comments: Though a hacker may be expert at hiding computerized information but the average user is not that sophisticated. It is almost never the case that reading through every file is the way to find hidden information. For example, an encrypted file cannot be read unless it is first identified and then decrypted if possible, neither of which is accomplished by reading through all the files. If files are intentionally mislabeled, a keyword search will produce a hit in most areas of the drive and is more effective and more efficient than reading through all of the files. In any event, if searching agents have reason to believe that a narrow approach will be technically impossible, for example, because the targeted files may be written using code words to escape detection by means of a key word or other narrowing search methodology, the agent should inform the judge of these issues in the affidavit. If it seeks to justify a broad search after the fact, it must support the need for having done so with facts particular to the case. Cabinet file search:

The state is likely to analogize a computer search to a search of documents in a file cabinet, claiming that computer records searches are no less constitutional than searches of physical records, where innocuous documents may be scanned to ascertain their relevancy. In fact, a search for data in a computer is like a search for documents in a file cabinet only insofar as both contain records for which there is probable cause intermingled with irrelevant ones. There the similarity ends, because a search for information on a computer can be accomplished through keyword searches and other technological means without unnecessary review of material for which there is no probable cause. The court held that a portion of the warrant for computers and related equipment was insufficiently particular in that it did not contain or reference search instructions designed to minimize intrusions on irrelevant and privileged material. Thus, the statement in Hunter about the constitutionality of scanning all documents in a computer was simply dicta contrary to its actual holding. United States v. Hunter, 13 F. Supp.2d 574, 584 (D. Vt. 1998) Consent to search: The consent to seize computer did not permit opening of individual files in the computer, which required a warrant specifying the type of files sought); United States v. Walser, 275 F.3d 981, 986 (10th Cir. 2001) Searching beyond the scope of warrant: Officers must be clear as to what it is they are seeking on the computer and conduct the search in a way that avoids searching files of types not identified in the warrant. The court, however, views the container to which the expectation of privacy attaches as the entire hardware and not the individual files. United States v. Runyan, 275 F.3d 449, 464 (5th Cir. 2001) Private search: Private search of some files on a computer disk permitted law enforcement to open additional files on the same disk. United States v. Slanina, 283 F.3d 670, 680 (5th Cir. 2002) Flagrant Disregard of the Warrant: To obtain extensive suppression of all of the evidence seized, whether or not within the scope of the warrant, the defense must establish that the search was conducted in “flagrant disregard: of the terms of the warrant. The rationale for this remedy is to make the government pay a price for what amounts to a general search. In order to make the necessary showing, you will need all of the evidence seized by the computer specialist and complete documentation of the manner of the search, or a lack thereof. United States v. Liu, 239 F.3d 138, 140-41 (2d Cir. 2000). Blanket suppression: An essential requirement for blanket suppression is that a substantial quantity of the material seized is outside the scope of the warrant, see, e.g., United States v. Liu, 239 F.3d 138, 140 (2d Cir. 2000); United States v. Squillacote, 221 F.3d 542, 556-57 (4th Cir. 2000); United States v. Heldt, 668 F.2d 1238, 1262 (D.C. Cir. 1981), whether it relates to the crime under investigation, some other crime, or is completely innocuous. A failure to follow a narrow and systematic search methodology, whether or not such a methodology was attached to the warrant, often is important in seeking blanket suppression of the fruits of a computer search. See United States v. Foster, 100 F.3d 846 (10th Cir. 1996). An interesting approach for blanket suppression of evidence seized in a computer search would be to show that the lawful and unlawful parts of the search are inextricably intertwined and cannot be unraveled after the fact. See United States v. Young, 877 F.2d 1099, 1105 (1st Cir. 1989). A warrant may be executed only once: For a search to be reasonable under the law a warrant may be executed only once and once the authorized search has been completed the police must promptly depart the premises. Sgro v. United States, 287 U.S. 206, 210 (1932.

Inventory of items: The filing of a search warrant return by definition signifies the end of a search because the inventory of the items seized enables the magistrate to assure herself of the legality of the search. United States v. Hillyard, 677 F.2d 1336, 1340 (9th Cir. 1982). What it seized before and after the deadline: Whether that analogy applies to the search at issue depends on what the warrant authorized the government to seize and what it seized before and after the deadline. For example, if the warrant authorized the seizure of a list of files, and the agent copied all or some of them from an image of the original medium to another medium (e.g., a disk) after the warrant expired, he was seizing new evidence, not merely analyzing evidence already seized. If the agent returned to a mirror image, even to analyze data he had already copied to another medium, this arguably is no different than returning to a house after a warrant expires to conduct further tests on fingerprints or bloodstains. The warrant authorizing seizure of all computers was not justified by probable cause. United States v. Kow, 58 F.3d 423, 427 (9th Cir. 1995) New search warrant conditions: If the government needs to search for new information after the required time limitations, it must seek permission to do so. While it is true that probable cause is unlikely to dissipate in computer data already in the government s possession, limits on the duration of a search also serve the purpose of ensuring adequate judicial supervision of the reasonableness and scope of the search. United States v. Bedford, 519 F.2d 650, 655 (3d Cir. 1975). Wholesale removal of documents is prohibit: The agents took thousands of pages of documents, the court held that the essential safeguard required is that wholesale removal must be monitored by the judgment of a neutral, detached magistrate and that the government s retention of all the documents for six months may have been convenient but was an unreasonable and therefore unconstitutional manner of executing the warrant. In United States v. Tamura, 694 F.2d 591 (9th Cir. 1982). E. Privileged Materials: If the computer is likely to contain privileged communications to or from an attorney, steps to ensure that no member of the prosecution team comes in contact with such communications must be described in the warrant, approved by the magistrate, and followed. At minimum, potentially privileged materials should be reviewed by a neutral and independent third party. This can be done in several ways, including by a magistrate judge, a special master composed of government lawyers and agents. Utmost care needed in search computer items: Though the case law recognizes the unfairness and unworkability of government taint teams, magistrates regularly approve them in the ex parte application for the warrant. The typical procedure is to have a government computer specialist conduct the search then hand the seized materials over to a prosecutor (not involved in the investigation but usually in the same office as the prosecutor handling the case), who then reviews them for privilege, passes on to the prosecution team those materials that she deems not to be privileged, and submits materials that may or may not be privileged to a magistrate judge for decision. in order to shield privileged material from any government agent, including the computer specialist, that person would have to review all of the files and fragments of files on the hard drive for privilege before turning it over to the computer specialist to perform the actual search. A better option in a computer search is to have the defense team, with the aid of its own expert, screen all of the data the government computer specialist wishes to search before he searches it, and to have a judicial officer make the final determination as to anything in dispute. Support for such a procedure can be found in cases recognizing the advisability of permitting the defendant and his counsel to be present when a search of papers may encroach upon privileged information. National City Trading Corp. v. United States, 635 F.2d 1020, 1026 (2d Cir. 1980);

F. Challenging Summons Over breadth Doctrine: The government may attempt to avoid the probable cause and particularity requirements by summoning a computer or computer disks. The over breadth doctrine applies to summons under Due Process analysis. the court held that a subpoena for a central processing unit, hard drive, and all computer-accessible data was unconstitutionally overbroad since the hardware contained documents having nothing to do with the grand jury investigation, reasoning that the expanded investigation does not justify a summons which encompasses documents completely irrelevant to its scope, particularly because the government has acknowledged that relevant documents can be isolated through key-word searching. If the government summons a computer, use a motion to quash or narrow the summons to seek court-ordered limits on the items seized and a search methodology designed to avoid irrelevant items. Grand Jury Subpoena Duces Tecum Dated November 15, 1993, 846 F. Supp. 11 (S.D.N.Y. 1994), Preventing destruction of evidence: The government may issue a forthwith summons for a computer if there are exigent circumstances, e.g., to prevent the destruction of evidence. Since this can effectively deprive the recipient of the ability to move to quash, a forthwith subpoena amounts to a warrantless seizure in violation of the Fourth Amendment if it was issued without sufficiently exigent circumstances. See United States v. Lartey, 716 F.2d 955, 961-62 (2d Cir. 1983); Obtaining a warrant in more than one district: If the government uses a forthwith summon to obtain possession of a portable computer because it is unsure of its location, this is not a valid use of a forthwith subpoena because it circumvents the requirement of probable cause to believe that evidence of a crime exists in a particular location. The inconvenience of further investigation, or of obtaining a warrant in more than one district, should not excuse a failure to comply with the warrant requirement. United States v. Nafzger, 965 F.2d 213, 216 (7th Cir. 1992).

The search powers of the police are extremely wide and discretionary: Section 93 provides for the general procedure of search. Section 93 allows for a magistrate to issue a warrant for the search of any “document or thing”, including a warrant for general search of an area, where it believes it is required for the purpose of investigation. The particularity of the search warrant is not a requirement under S. 93(2), and hence a warrant may be for general or roving search of a place. Section 100, which further provides for the search of a closed place, includes certain safeguards such as the presence of witnesses and the requirement of a warrant before a police officer may be allowed ingress into the closed place. However, under S. 165 and S. 51 of the code, the requirements of a search warrant are exempted. S. 165 dispenses with the warrant requirement and provides for an officer in charge of a police station, or any other officer duly authorized by him, to conduct the search of any place as long as he has reasonable grounds to believe that such search would be for the purpose of an investigation and a belief that a search warrant cannot be obtained without undue delay. Further, the officer conducting such search must as far as possible note down the reasons for such belief in writing prior to conducting the search. Section 51 provides another express exception to the requirement of search warrants, by allowing the search of a person arrested lawfully provided that the arrested person may not or cannot be admitted to bail, and requires any such seized items to be written in a search memo. As long as these conditions are fulfilled, the police has an unqualified authority to search a person upon arrest. Therefore, where the arrestee can be admitted to bail as per the warrant, or, in cases of warrantless arrest, as per the law, the search and seizure of such person may not be regular, and the evidence so collected would be subject to greater scrutiny by the court. However, besides these minimal protections, there is no additional procedural protection of individual privacy, and the search powers of the police are extremely wide and discretionary. In fact, there is a specific absence of the exclusionary rule as a protection as well, which means that, unlike under the Fourth Amendment, the non-compliance with the procedural requirements of search would not by itself vitiate the proceedings or suppress the evidence so found, but would only amount to an irregularity which must be simply another factor considered in evaluating the evidence.[10] State Of Maharashtra v. Natwarlal Damodardas Soni, AIR 1980 SC 593; Radhakrishnan v State of UP, 1963 Supp. 1 S.C.R. 408 Unreasonable intrusions into the homes of persons: Though the allusions to the Fourth Amendment have mostly been invoked on facts where unreasonable intrusions into the homes of persons were challenged, the indirect imputation of the right to privacy into the right under Article 21 of the Constitution, invoking the right to privacy as a right to non-interference and a right to live with dignity, would suggest that the considerations for privacy under the Constitution are not merely objective, or physical, but depend on the subjective facts of the situation, i.e. its effect on the right to live with dignity (analogous to the reasonable expectation of privacy test laid down in Katz).[12] Kharak Singh v State of UP, (1964) 1 SCR 332; Gobind v State of Madhya Pradesh, 1975 AIR 1378. Searches must be subject to the doctrine of proportionality: Further, the court has specifically struck down provisions for search and seizure which confer particularly wide and discretionary powers on the executive without judicial scrutiny, holding that searches must be subject to the doctrine of proportionality, and that a provision probable cause to effect any search.[13] District Registrar and Collector v. Canara Bank, AIR 2005 SC 186, which related to S.73 of the Andhra Pradesh Stamps Act which allowed „any person‟ to enter into „any premises‟ for the purpose of conducting a search. Reasonable grounds for suspicion: The Judicial Committee of the Privy Council emphasized that the judge or magistrate who issues a search warrant must be satisfied that the applicant for such a warrant has reasonable grounds for suspicion. The magistrates must satisfy the appropriate legal threshold prior to the issue of a search warrant. Further evidence obtained in pursuit of the specified. AG v Williams (1997) 51 WIR 264.

Searches of digital evidence has less to do with public and private location: By contrast, searches and seizures of digital evidence has less to do with public and private location but rather the purpose of the information. In the case of 3817 W. West End, First Floor Chicago, Illinois 60621, 9 Magistrate Judge Schenkier refused the government‟s request for the unchartered search of a home computer. The law enforcement authorities were required to undertake to follow a pre-approved protocol in a tax fraud case. The court reasoned that the absence of such approval would confer a license to roam through everything on the computer without limitation and appropriate standards. The need for a pre-approved protocol was justified on the basis of four conditions:10 321 F.Supp.2d 953 (N.D. Ill. 2004), at 958-959 The Court cannot speculate on the existence of personal information on the computers: The Court cannot speculate on the existence of personal information on the computers but notes that on no occasion did the domestic authorities take account of the applicants‟ complaint in this connection. The court that approved the measure did not consider the scope of the operation and did not make a distinction between information which had been necessary for the investigation and information which had not been relevant; during the investigation the applicants requested the return of the computers, arguing that they contained personal information, but neither the prosecutor nor the relevant courts scrutinised that assertion. While the Court accepts that, as a matter of principle, the retention of the computers for the duration of the criminal proceedings pursues the legitimate aim of securing physical evidence in an ongoing criminal investigation (see, mutatis mutandis, Atanasov and Ovcharov v. Bulgaria, no. 61596/00, § 70, 17 January 2008), the lack of any consideration of the relevance of the seized information for the investigation and of the applicants‟ complaint regarding the personal character of some of the information stored on the computers rendered the judicial review formalistic and deprived the applicants of sufficient safeguards against abuse. PREZHDAROVI v. BULGARIA - 8429/05 [2014] ECHR 1011 (30 September 2014) URL: http://www.bailii.org/eu/cases/ECHR/2014/1011.html Cite as: [2014] ECHR 1011 Where interference is legitimate: The Government went on to argue that the interference had the legitimate aim of prevention of crime and maintenance of fair competition. They claimed that the interference was also proportionate: the officers who had carried out the search and seizure had known where to search and what to search for, and the operation had been conducted in the presence of the applicants, a technician and two certifying witnesses. Also, the authorities had carefully listed the seized computers in the search-and-seizure record, retained the computers in accordance with the law and in connection with the ongoing criminal proceedings, and the content of the computers had not been made public. Furthermore, the approval of the record by the court had been an important safeguard and had served as a guarantee for the justification of the measure. Lastly, the Government pointed out that unlike the cases of Iliya Stefanov v. Bulgaria (no. 65755/01, 22 May 2008), Kopp v. Switzerland (25 March 1998, Reports of Judgments and Decisions 1998-II) and Heino v. Finland (no. 56720/09, 15 February 2011), the search-and-seizure operation had not touched upon any privileged material. PREZHDAROVI v. BULGARIA - 8429/05 [2014] ECHR 1011 (30 September 2014) URL: http://www.bailii.org/eu/cases/ECHR/2014/1011.html; Cite as: [2014] ECHR 1011. The defendants were entitled to claim privilege: The Anton Piller orders required the alleged video pirates (1) to supply information; (2) to allow access for the purpose of looking for illicit copy films and allow them to be removed for safe custody; and (3) to disclose and produce documents. It was held that there was no privilege in relation to the films, for the reason given by the Court of Appeal, namely that Rank was simply vindicating its proprietary rights in the films themselves, and its right to recover its own property could not be defeated by a claim of privilege. The House of Lords held that the defendants were entitled to claim privilege in respect of the orders for provision of information and production of documents. Rank Film Distributors Ltd v Video Information Centre [1982] AC 380

Which material can be seized and which cannot: The principle applies to the powers of seizure given to a range of law enforcement agencies. The difficulty facing the police and these other law enforcement agencies is that there are circumstances where it is not practicable to establish on the premises subject to the search which material can be seized and which cannot. This may be because of the simple bulk of the material. It may be because relevant material is contained within the same document or set of documents as material which is protected from seizure. The most difficult circumstances relate to material held on computer media. It may be impossible to establish which material is relevant and seizable without processing the data forensically. That may involve removing the computer and/or imaging the entire contents of its hard disk and/or removing CD Roms or floppy disks." R v Chesterfield Justices and Chief Constable of Derbyshire ex-parte Bramley [2000] QB 576.

INVESTIGATION FOR FAIR TRIAL ACT, 2013

An Act to provide for investigation for collection of evidence

by means of modern techniques and devices to prevent and effectively

deal with scheduled offences and to regulate the powers of the law

enforcement and intelligence agencies and for matters connected

therewith or ancillary thereto

[Gazette of Pakistan, Extraordinary, Part I,

22nd February, 2013] No. F. 9(21)/2012-Legis, dated 22-3-2013.---The following Act ofMajlis-e-Shoora (Parliament) received the assent of the President on 20th February, 2013, is hereby published for general information:-- Whereas in order to prevent the law enforcement and intelligence agencies from using their powers arbitrarily it is necessary to regulate the said powers and provide for their permissible and fair uses in accordance with law and under proper executive and judicial oversight; And whereas further being mindful that the existing laws neither comprehensively provide for nor specifically regulate advance and modern investigative techniques such as covert surveillance and human intelligence, property interference, wiretapping and communication interception that are used extensively in other jurisdictions to successfully prevent the offences and as an indispensable aid to the law enforcement and administration of justice; And whereas in order to neutralize and prevent the threat or any attempt to carry out scheduled offenses it is necessary that the law enforcement and other agencies be given certain specific authorizations to obtain evidence in time and only in accordance with law; And whereas it is also in order to declare the admissibility and use of the material obtained during lawful investigation under the present law, in judicial proceedings and all other legal proceedings or processes to ensure fair trial; It is hereby enacted as follows: - 1. Short title, extent and commencement.---(1) This Act may be called the Investigation for Fair Trial Act, 2013. (2) It extends to the whole of Pakistan. (3) It shall come into force at once. 2. Application.---(1) The provisions of this Act shall apply to - (a) all citizens of Pakistan within or outside Pakistan; (b) all persons within Pakistan or on board on any ship or aircraft registered in Pakistan wherever it may be; and (c) all transactions or communications originated or concluded within Pakistan or originated or concluded outside Pakistan by any person.

(2) Any person liable for investigation under the provisions of this Act for a scheduled offence committed partly or fully outside Pakistan shall be dealt with according to the provisions of this Act in the same manner as if such an offence had been committed within Pakistan. CHAPTER-1 DEFINITIONS 3. Definitions.---In this Act, unless there is anything repugnant in the subject or context,- (a) 'applicant' means, Directorate-General Inter Services Intelligence, the three Services Intelligence Agencies, Intelligence Bureau and Police; (b) 'authorized officer', means any officer, not below the rank of BPS-20 or equivalent who is working with the applicant and is notified under section 4 to represent the applicant when making application or taking up any proceedings under this Act; (c) 'competent authority' includes the Judge; (d) 'Court' means the High Court; (e) 'Designated Agency or Body' means any one or more Agency or Body designated by the Federal Government through notification for the purposes of this Act, having capability for implementing warrant of interception; (f) 'expert', means a person qualified or trained or experienced in conducting surveillance or interception who is nominated by the applicant or the Federal Government as an expert for analysis of the intercepted material; (g) `Intercepted material' means evidence collected under section 7 and will refer,- (i) for the purposes of `Surveillance' to include,-- (a) data, information or material in any documented form, whether written, through audio visual device, CCTV, still photography, observation or any other mode of modern devices or techniques obtained under this Act; and (b) documents, papers, pamphlets, booklets; and (ii) for the purposes of 'Interception' to include e-mails, SMS, IPDR (internet protocol detail record) or CDR (call detail record) and any form of computer based or cell phone based communication and voice analysis. It also includes any means of communication using wired or wireless or IP (internet protocol) based media or gadgetry; (h) 'Judge' means a Judge of the High Court; (i) `Minister' means the Federal Minister for Interior; (j) `register' means the register maintained under subsection (2) of section 9 by the Judge, containing the serial number of the file received by the Judge in Chambers which has been returned to the applicant for safe custody, and the register shall also contain name, contact, address of the authorized person and the applicant; (k) 'suspect' means a person in respect of whom there is a suspicion that he may be involved in any scheduled offence and includes foreigners and groups as well as organizations; (l) "Schedule" means schedule to this Act; (m) `scheduled offence' means an offence specified in Schedule I;

(n) 'service provider' means any person, entity or company related to any equipment, technology, data, circumstances that gives it ability or power or control to implement the warrants issued under sections 11 and 21; and (o) 'warrant' means warrant of surveillance or interception and includes warrant issued under section 11 whereby the applicant is allowed by the Judge to collect evidence through interception, recording through audio or video or any means of Communication or surveillance of movements and actions through minimum interference in property and privacy of any person including human intelligence. CHAPTER-2 APPLICATION FOR WARRANT 4. Notification of authorized officer.---The applicant shall, before making an application, first notify an appropriate officer not below BPS-20 or equivalent, duly authorized by him to represent the said applicant for making an application under this Act. 5. Record of suspicious conduct.---In case where any official of an applicant has reasons to believe that any person is likely to be associated with or is beginning to get associated with, any act leading to a scheduled offence, or is in the process of beginning to plan such an act, or is indulging in such a conduct or activity that arises suspicion that he is likely to plan or attempt to commit any scheduled offence and, therefore, it may be necessary to obtain warrant of surveillance or interception, he shall prepare a report thereof with supporting material. 6. Material to be placed before the Minister.---An official of the applicant who has prepared the report under section 5 shall present the same through the Head of the Department to the Minister for permission to make application to the Judge for issuance of the warrant of surveillance or interception. 7. Action by the Minister on the material presented to him.---(1) The Minister shall examine the report with supporting material and through a written order may either decline the permission sought or grant permission fully or partly. (2) No application shall be made to the Judge except with prior written permission of the Minister. 8. Application for issuance of warrant.---After permission from the Minister, application for issuance of warrant shall be made by the authorized officer to the Judge,-- (a) preferably in the manner prescribed in Schedule II; (b) in case, the nature of warrant requested to be issued requires different description, then the application shall be made in writing on the letter head of the applicant justifying the issuance of warrant by mentioning all necessary details with supporting material along with proposed draft for warrant; and (c) the application for the issuance of warrant shall be accompanied by,- (i) a signed statement and affidavit of the authorized officer that the contents of the report and application are true and correct to the best of his information, knowledge and belief, and that the warrant shall be used only and exclusively for preventing or lawfully investigating a scheduled offence or to collect evidence in respect thereof and the same shall neither be misused in any manner, nor shall the approval of the warrant be abused to interfere or intervene in the privacy of any person; and (ii) details of all warrants obtained previously in respect of the person against whom the warrant is sought. CHAPTER 3 ISSUE OF WARRANTS

9. Judge to issue warrant in Chambers.--(l) The warrant of surveillance or interception shall be issued by the Judge in chamber. (2) The authorized officer shall personally present the application in chambers of the concerned Judge who after considering the same shall pass appropriate orders under section 11. The file on which the orders shall be passed, shall be returned to the authorized officer for safe-custody who shall be duty bound to bring the same on any subsequent related hearings. The Judge shall cause to be maintained a register as provided for in section 3(j). 10. Considerations for issuance of warrant.---(1) The Judge while passing an order for issuance of warrant shall consider the following namely:-- (a) the issuance of requested warrant will enable the applicant to collect evidence; and (b) the material or statement of the authorized officer whether indicates a reasonable threat or possibility of an attempt to commit a scheduled offence. (2) The Judge while passing an order for the issuance of warrant shall ensure that-- (a) the authorized officer is properly authorized to represent the applicant; and (b) the issuance of warrant shall not unduly interfere in the privacy of any person or property. 11. Issuance of warrant of surveillance or interception.---After considering the matters specified in section 10, the Judge shall,-- (a) pass an order allowing the issuance of warrant in the manner prescribed in Schedule IV or as presented before him in a proposed draft form; (b) pass an order allowing the issuance of warrant with some modifications; (c) pass an order allowing the issuance of warrant, but may make any observations regarding the manner and method of its implementation; (d) restrict requested duration of any existing warrant; and (e) decline to issue the warrant, if the Judge has reasons to believe that warrant is being procured with mala fide intention and the process under the Act is being abused. l2. Form of the warrant.---(1)The warrant shall be issued ordinarily in the manner prescribed in Schedule IV: Provided that the warrant may also be issued in a manner proposed by the authorized officer under section 8(b) with or without modifications by the Judge. (2) The warrant shall be signed by the Judge and a seal of the Court shall be affixed. 13. Record of the orders.---(1) While issuing the warrant, the Judge shall make a formal order indicating reasons for accepting the request of the applicant. The original copy of the formal order shall be given to the applicant for safe custody. (2) The formal order and its record shall not be made public and shall be kept in safe custody. 14. Duration of warrant of interception.---Warrant shall be issued for a period of not longer than sixty days:

Provided that it may be re-issued after the said period by the Judge upon the request of the authorized officer of the applicant, if, after examining the gist of the intelligence and evidence collected by the applicant thus far, he is satisfied that as a consequence of issuance of warrant, suitable progress is being made and there is sound justification for re-issuance of warrant for another period not exceeding sixty days. Thereafter, the same considerations shall apply for every request for reissue of warrant for further periods not exceeding sixty day at a time. 15. Sanction in case of arbitrary request for warrant.---Where the Judge is of the view that any request for the issuance of warrant is based on insufficient or irrelevant considerations or it has resulted in undue and inappropriate interference in the privacy of any person or that the material and information collected or received within the period mentioned in section 14 demonstrates that the officer concerned did not apply himself fully while making an application for the warrant, then he may recommend departmental action against the officer concerned. CHAPTER-4 EXECUTION OF WARRANTS 16. Authorization under the warrant.---(1) The warrant of surveillance or interception to be issued by the Judge may authorize and allow the lawful doing of any or all of the following acts; namely:-- (a) interception and recording of telephonic communication of the suspect with any person; (b) video recording of any person, persons, premises, event, situation etc; (c) interception or recording or obtaining of any electronic transaction including but not limited to e-mails, SMS etc; (d) interception and taking over of any equipment used in the communication in respect of which the warrant is issued, including but not limited to telephone, cell phone, mobile sims, electronic database, demonstrating linking of electronic communication with the database belonging to the person in respect of whom the warrant has been issued: Provided that the Judge shall authorize take-over of equipment only where the material or statement of the authorized officer discloses a substantial threat or possibility of an attempt to commit a scheduled offence; (e) collection of evidence through any modern devices in addition to the ones mentioned above; (f) use of human intelligence; (g) covert surveillance and property interference; and (h) access to any information or data in any form related to a transaction, communication or its content. (2) Any other form of surveillance or interception that the Federal Government may notify in this behalf. 17. Method of executing the warrant.---(1) Where the warrant is issued, the applicant in case of the warrant of interception, shall approach the designated agency or body, for serving the same on service provider in the manner provided for in Schedule III and the designated agency or body shall duly serve the said warrant on the service provider or give effect to it within seven days.

(2) The service provider shall not extend technical facilities of interception to any person or organization other than the Designated Agency or Body. (3) Where nature of surveillance or interception is such that it is not necessary to serve the warrant on anyone, then the same shall not be served and its issuance alone shall be sufficient basis to collect evidence. (4) While executing the warrants each applicant shall act within the mandate provided for it under the law. 18. Indemnity for service provider.---Access granted by the service provider in accordance with this law shall not be called in question under any law by any person who may have been prejudiced by such access. 19. Immunity to service provider.---The service provider shall have immunity in any civil or criminal legal proceedings that any person may commence against his corporate entity or against his office bearers or employees, for having complied with the warrant issued under this Act. 20. Service provider to cooperate.---In the event the service provider declines, fails or interferes in any manner in the execution of warrant then he shall be liable to have committed an offence under this Act for obstructing investigation and justice and shall be punished with fine upto ten million rupees. 21. Service provider to ensure confidentiality.---The service provider shall also be responsible for ensuring the confidentiality of the execution or warrant from his staff members except those necessary to execute the warrant and in case of unauthorized disclosure or misuse of data by any of his staff member, the officials of the service provider and the concerned staff shall be punished with imprisonment which may extend to one year or with fine which may extend to ten million rupees. CHAPTER-5 ADMISSIBILITY OF MATERIAL OBTAINED UNDER THE WARRANT 22. Registration of case.---(1) The evidence including data, information and material collected or received pursuant to the warrant shall be examined by the officer authorized by the applicant in this behalf and if he is satisfied that the same discloses elements of commission,harbouring, abetting or conspiring or attempting to commit any scheduled offence, he may immediately cause registration of a report (F.I.R.) under section 154 of the Code of Criminal Procedure, 1898 (Act V of 1898) and in that event he shall hand over all the evidence including material, information, and data to the concerned investigating officer so that it forms part of his record for the purposes of investigation and prosecution: Provided that before the evidence is handed over to the Investigating Officer, the authorized officer shall certify that it has been collected strictly in accordance with the warrant and has not been tampered with or altered in any manner whatsoever. (2) If the evidence which has been collected or received in respect of scheduled offence is insufficient to justify registration of a report (F.I.R.) under section 154 of the Code of Criminal Procedure, 1898 (Act V of 1898), such evidence including data, information and material collected or received shall be kept confidential in safe custody and shall not be used without the permission of the Court. 23. Admissibility of warrant based information.---(1) Notwith-standing anything contained in the Qanun-e-Shahadat, 1984 (P.O.10 of 1984) or any other law for the time being in force, the evidence including data, information, documents or any other material collected or received under this Act shall be admissible as evidence in the legal proceedings. (2) Nothing contained in subsection (1), shall debar the admissibility of evidence collected or

received, prior to the coming into force or this Act, under the provisions of any other law for the time being in force. 24. Presumption of validity of warrant.---(1) The warrant of surveillance or interception whenever presented in the trial court or any other court, shall be presumed to have been validly and lawfully issued. (2) The intercepted material collected or received pursuant to the warrant of surveillance or interception under this Act and the material based on which the warrant of surveillance or interception was applied for by the applicant shall be admissible in evidence. 25. Report of expert.---In case where an analysis of the intercepted material collected pursuant to the warrant of surveillance or interception is required, then the same shall be carried out by a person referred to in section 3(f) being suitably qualified, trained or experienced, who shall be deemed to be an expert as described under section 510 of the Code of Criminal Procedure, 1898 (Act V of 1898) and his report shall have the same effect as given to the report of the experts of different fields mentioned in the said section. 26. Non-disclosure.---Any person performing any functions under this Act who fails to secure complete secrecy of the process or makes any disclosure which may compromise future capabilities of intelligence gathering shall, in addition to any other punishment to which he may be liable under applicable law and rules, be punished with imprisonment of up to five years or with fine of up to ten million rupees or with both. CHAPTER-6 REVIEW AND OVERSIGHT 27. Oversight by Review Committee.---(1) A Review Committee comprising Ministers of Defence, Interior and Law shall on a six monthly basis call for reports from all the applicants about the warrants obtained by them and assess administrative aspects including if the evidence collected pursuant to the warrants of surveillance or interception has been helpful in prevention of offences and of aid to prosecution or has been able to achieve the object and purposes of this Act. (2) The Committee, based on the said assessment, may issue appropriate orders or instructions in respect of working of any applicant for compliance or guidance. 28. Representation.---(1) In case the applicant is not satisfied with the declining of the request for the issuance of the warrant of surveillance or interception, it may prefer a representation to the Chief Justice of the High Court concerned, for constitution of a Division Bench of two Judges for hearing in chambers. (2) The Division Bench to whom the representation is entrusted may either set aside the decision of the Judge and issue the warrant or uphold the view taken by the Judge. (3) Nothing in this Act shall bar the applicant to approach the Judge again for issue of warrant in respect of the same person on the basis of fresh grounds or new material. 29. Complaints against misuse of warrant.---(1) The Judge shall also be competent to hear a complaint from any person including the Designated Agency or Body who claims that the warrant is being misused or that the applicant is conducting surveillance or interception beyond the scope of the warrant. (2) If the complaint under subsection (1) after hearing both the parties is proved to be true the Judge may direct the applicant to transfer the investigation to some other investigating officer and also initiate departmental proceedings against the officer against whom the complaint was filed and report the result of the departmental proceedings to the Judge within such period as the Judge may deem fit: Provided that for sufficient reasons shown the Judge may extend the period for submission of the report.

(3) A person aggrieved by decision of a Judge under subsection (2) may file a representation to the Chief Justice of the High Court concerned within thirty days, for constitution of a Division Bench for hearing and deciding the representation in chambers. 30. Powers of the Judge.---The Judge shall have powers under the Act to make any changes, modification, extensions, date of applicability of the warrants already issued etc., only upon the request of the applicant, who may approach the concerned Judge to further clarify any ambiguity or to seek advice or request the required changes in view of the changing or unique circumstances. CHAPTER 7 MUTUAL LEGAL ASSISTANCE 31. Warrants to be served outside Pakistan.---(1) Warrants obtained under the Act shall be executable outside Pakistan as well as in foreign jurisdictions, either directly on the concerned service providers or through mutual legal assistance mechanism as agreed between Pakistan and the concerned foreign State as provided under the law, treaty or agreement. (2) The warrant issued under this Act shall be processed for execution outside Pakistan through the Designated Agency or Body. 32. Warrants received from outside Pakistan.---Warrants received from outside Pakistan may be executed by the Designated Agency or Body in the light of mutual legal assistance mechanism as agreed between Pakistan and the concerned foreign State as provided under the law, treaty or agreement. CHAPTER 8 CONFIDENTIALITY OF PROCEEDINGS 33. Confidentiality of proceedings.---The Judge shall ensure that during any proceedings under this Act, no disclosure of any source or information or proceedings is made that may compromise the future capability of the applicant's intelligence gathering in any manner whatsoever. 34. Prohibition of misuse of intercepted material.---(1) The material intercepted pursuant to the warrant of surveillance or interception shall not be used by any official of the applicant or of the Court or any other person associated with any function under this Act other than in accordance with the provisions of this Act. (2) Any person who violates the provisions of subsection (1), shall be punished with imprisonment of up to five years or with fine up to ten million rupees or with both. 35. Unauthorized surveillance or interception.---Any person who carries out any surveillance or interception except in accordance with the provision of this Act shall in addition to any other punishment to which he may be liable under any other law for the time being in force be punished with imprisonment for up to three years and shall also be liable to fine. CHAPTER-9 MISCELLANEOUS 36. Power to make rules, issue guidelines and orders.---The Federal Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act, and issue guidelines or orders in pursuance of this Act and the rules made thereunder. 37. Power to amend the Schedule.---The Federal Government may, by notification in the Official Gazette amend Schedules II, III and IV by adding any entry therein, omitting any entry therefrom or modifying any entry therein.

38. Act to have effect notwithstanding existing laws.---The provisions of this Act shall have effect, notwithstanding anything contained in any other law for the time being in force including the Code of Criminal Procedure, 1898 (Act V of 1898) and the Qanun-e-Shahadat, 1984 (P.O.10 of 1984). 39. Removal of difficulty.---If any difficulty arises in giving effect to any provision of this Act, for a period of one year from its coming into force the Federal Government may, by Order not inconsistent with the provisions of the Act, remove the difficulty. SCHEDULE-I [See Section 3(1)] 1. The Private Military Organizations Abolition and Prohibition Act, 1974 (IV of 1974) to the extent of terrorist activities; 2. offences under the Prevention of Anti-National Activities Act, 1974 (VII of 1974) to the extent of terrorist activities; 3. offences under the Anti Terrorism Act, 1997 (XXVII of 1997); 4. offences under the Pakistan Nuclear Regulatory Authority Ordinance, 2001 (III of 2001) to the extent of terrorist activities; and 5. offences under the National Command Authority Act, 2010 (V of 2010) to the extent of Anti-Terrorism Act, 1997 (XXVII of 1997) only. SCHEDULE-II [See Section 8] Application for issuance of warrant of surveillance or interception To, ______________________ Sir, The applicant makes a request to this Court that it may consider appropriate to allow to be collected and later produced (in case of prosecution) evidence including material, data, information, electronic transactions etc that may become available because of modem devices or techniques, by allowing the issuance of warrant of surveillance and interception under sections 9 to 12 of Investigation for Fair Trial Act, 2012 and submits the following particulars; Name of applicant ___________________________ Address _______________________ Name of officer authorized under section 4 of the Act __________________________________ (enclose copy of authorization) Rank/grade ______________________ Contact address of officer ______________________ Date of order by applicant's concerned authority____________ (enclose copy).

Name or particulars or address of suspect or that of premises or both (to the extent necessary to identify the suspect). ___________________________________________________ ___________________________________________________ Nature of evidence to be collected through surveillance or interception requested under warrant; (For example, recording of cell phone, interception of sms or emails, human intelligence, property interference, collection of material, data, video making, concealed camera, recording equipment etc.) ___________________________________________________ ___________________________________________________ ___________________________________________________ ___________________________________________________ Supporting material and Statement of belief about suspect's likely involvement in crime [accompanied by affidavit as per section 8(c)(i) 1]. ___________________________________________________ ___________________________________________________ Signature of authorized officer _____________________ Seal of the authorized officer __________________________ Attested copy to be forwarded to Designated Agency or Body for Interception of:- (1) ___________________________________________________ (2) ___________________________________________________ (3) ___________________________________________________ (4) ___________________________________________________ SCHEDULE-III [See Section 17] Summary of warrant under section 17 of the Investigation for Fair Trial Act, 2013 It is affirmed that warrant of interception pursuant to sections 9 to 12 of the Investigation for Fair Trial Act, 2013 is issued on -------- day of ------------ and attested copy of the same has been received and is retained in our record. It is further affirmed that the said warrant authorizes the lawful interception of 1. ___________________________________________________ 2. ___________________________________________________

3. ___________________________________________________ 4. ___________________________________________________ To: ________________________(Service Provider) Please ensure compliance. Designated Agency or Body [under Section 3(e) of the Act]. Through Official __________________________ Address _____________________________ Contact ____________________________ Signature of Head of Designated Agency or Body Official seal of Designated Agency or Body with date SCHEDULE-IV [See Section 11] PART I (to be filled by the applicant) 1. This warrant of surveillance or interception is issued under sections 9 to 12 of 'the Investigation for Fair Trial Act, 2012', to enable the applicant to collect evidence through surveillance or interception of: (Provide briefly nature of evidence being allowed to be collected by the concerned Court under the present warrant). ___________________________________________________ ___________________________________________________ ___________________________________________________ ___________________________________________________ ___________________________________________________

For an initial period of _________ days starting with effect from ____________ (Date if request made in retrospect). 2. Where applicable, the warrant allowed to be served on; Mr. / Entity/ ________________ ______________________________ to extend fullest cooperation to the holder or applicant of the warrant and facilitate in its execution technically and logistically and through any other appropriate means and also ensure full confidentiality of implementing of the warrants and not to misuse evidence so collected PART II (For official use only) After examining the request of the applicant, the Court is satisfied that requirements prescribed under the Investigation for Fair Trial Act, 2013 for the issuance of the warrants have been fulfilled and accordingly, the warrant is allowed to be issued in terms expressed above.

INVESTIGATION FOR FAIR TRIAL RULES, 2013

[Gazette of Pakistan, Extraordinary, Part-II, 31st May, 2013] S.R.O. 472(I)/2013.—In exercise of powers conferred by Section 36 of the Investigation for Fair Trial Act, 2013 (I of 2013), the Federal Government is pleased to make the following rules, namely:— 1. Short title and commencement.—(1) These rules may be called as the Investigation for Fair Trial Rules, 2013. (2) They shall come into force at once. 2. Definitions.—(1) In these rules unless the context otherwise requires,— (a) "Act" means the Investigation of the Fair Trial Act, 2013 (I of 2013); (b) "person" means any natural person and includes a non-state actor, business man, employee of a private company etc., or a natural person or entity that may approach any applicant to seek issuance of warrant or may provide sufficient information for the processing and issuance of the warrant but does not mean and include the official of the applicant or a Designated Agency; (c) "supporting material" means any material collected by the applicant in his normal functions of intelligence gathering and includes reference to material referred to in the Act; (d) "material" means any intercept during intelligence gathering, source report, photographs, recordings, report of activity of the suspect by any official of the applicant, the statement of belief of the officer of the applicant, information on the background or narration of past history of the suspect, comment or statement of any person in respect of the suspect, statement of circumstances in which the suspect is found etc; (e) "report" means a report prepared in a narrative form by the official of the applicant. (2) The terms used but not defined herein shall have the same meanings as are assigned to them under the Act. 3. Report of suspicious conduct.—(1) Any official of an applicant may prepare a report regarding suspicious conduct of a suspect in consequence of his prescribed duties. Such suspicious conduct shall be detected through the normal intelligence gathering activities of the official of the applicant. (2) While preparing the report mentioned in sub-rule (1), the said official shall annex all the relevant the supporting material with the report. The supporting material may comprise of,— (a) a statement of belief by the said official based on his monitoring of the suspicious conduct of the said suspect; or (b) any source report; or (c) any intercepts of communications; or (d) any intercepts of electronic communication including email, sms; or (e) any video recording; or (f) any other action giving rise to the suspicious conduct.

(3) The report shall identify the suspect with sufficient details. The report shall also provide details about the suspect's background, their affiliations, and their past record. It shall document the possible offence that the suspect is beginning to get associated with along with some material indicating the suspicion. It shall also mention the apprehensions of the official about the plans and moves likely to be made by the suspect. The report shall identify the nature of surveillance or interception necessary especially with reference to the premises where the surveillance is required and the nature of surveillance itself. (4) In case of any interception, the technical identity and all the connected technical or other identities, which has been gathered or found during the intelligence gathering activities and which either constitutes or contains the supporting material. (5) The report shall indicate need for obtaining warrant in respect of the other persons with whom the suspect is or may be interacting. (6) The official shall also provide any additional information or assessment in respect of the suspect or provide any further particulars of the suspicious conduct that the official may have identified during intelligence gathering which will constitute the supporting material for the report in his point of view. 4. Report to be presented to the Minister.—(1) After preparing the report, the same shall be presented before the Head of the applicant or an officer duly authorized by the said Head. The Head of the organization shall approve the report for submission before the Minister for permission to make an application to the Judge. (2) The Minister or an official designated by the Minster shall examine the same report along with the supporting material. (3) If the Minister is not satisfied with the report or the supporting material, he may decline the same and return it to the Head of the applicant agency with appropriate recommendations or if he is satisfied with it the Minister may grant the permission fully or partially as the case may be. 5. Application for the Court.—After permission from the Minister under Rule 4, the authorized officer shall prepare an application in the manner prescribed in Schedule II of the Act except as provided in sub-rule (2). The authorized officer may provide any information along with the application if he so feels necessary. (2) In case the nature of warrant requested to be issued requires different description then the application shall be made in writing on the letter-head of the applicant justifying the issuance of warrant by mentioning all necessary details with supporting material along with the proposed draft for warrant. (3) The application shall also be accompanied by,— (a) a signed statement and affidavit of the authorized officer that the contents of the report and application are true to the best of his information, knowledge and belief and that the warrant shall be used only and exclusively for preventing or lawfully investigating a scheduled offence or to collect evidence in respect thereof and the same shall neither be misused in any manner, nor shall the approval of the warrant be abused; and (b) details of all warrants obtained previously in respect of the person against whom the warrant is sought. 6. Hearing in Chambers.—(1) The applicant shall present the application to a Judge of the concerned High Court who has been nominated by the Chief Justice of the said High Court to issue warrants under the Act. The name of the nominated Judge shall be intimated only to the applicant and the notification of the judge shall not be made public. (2) The officer shall approach the secretary of the Judge concerned and request him to arrange hearing on the same day in the chambers.

(3) The authorized officer shall carry with him the following two files, namely:— (a) File No. 1 containing the application with the supporting material obtained during the routine intelligence gathering functions; and (b) File No. 2 shall contain sheets for the Judge to write an order either under his own hand or otherwise. (4) The hearing shall be conducted in chambers exclusively in the presence of the authorized officer only. The Judge may ask questions from the authorized officers in respect of the application and its contents and may view the supporting material and the order passed by the Minister. (5) The Judge may consider the material contained in the report as sufficient to indicate reasonable threat or possibility of an attempt to commit the scheduled offence or the Judge may rely on the statement of the authorized officer as an indication of the reasonable threat or possibility of an attempt to commit the scheduled offence. (6) The Judge may ask the authorized official to provide,— (a) the authorization letter issued to him under Section 4; and (b) his official identification. (7) The Judge shall hereafter pass an order on File No 2 preferably in his own hand simply allowing the issuance of the warrant in the manner requested from him in the prescribed manner or in a proposed draft form. The Judge shall sign the warrant and the seal of the Court shall be affixed there. After signing the warrant both the files shall be returned to the authorized official for safe custody. (8) The Judge shall cause to be maintained a register of the requests received from an applicant. The said register shall contain the name of the applicant and the serial number of the files received by the Judge in his chambers and will not contain the name of the suspect or any other particular. The Judge shall keep the register in safe custody. 7. Role of Designated Agency.—(1) After the issuance of the warrant it will be lawful for Designated Agency to do all or any of the actions under Section 16 of the Act. (2) The authorized officer shall then approach the designated agency and the designated agency shall designate an officer in this regard. The officer of the Designated Agency shall serve the warrant on the service provider to give effect to it within seven days of receiving it from the applicant. (3) In case where the applicant is also the Designated Agency under the Act, then the authorized officer who has obtained the warrant from the Judge shall himself be competent to serve the said warrant on the service provider and the Designated Agency shall nominate him accordingly. (4) In case where the applicant, Designated Agency and the service provider are same, then the authorized officer shall document the same facts and sign the same as evidence of service upon itself as a service provide. (5) In order to stream-line its functional relationship with the service provider the Designated Agency may issue appropriate instructions from time to time. 8. Execution of warrants.—(1) The warrant shall permit the applicant to carry out any form of surveillance or interception authorized under the Act. The surveillance or interception permitted under the warrant shall be carried on for period up to sixty days. (iii) That the applicant shall direct a responsible and relevant officer to maintain the record and a daily account of surveillance activity. The intercepts that are collected shall form part of the file of the given case or its Annexures, as the case may be.

(iv) The authorized officer shall at least once every fifteen days examine the materials collected through interception. 9. Registration of Case.—Anytime before the sixtieth day, the authorized officer shall inform the head of the Designated Agency about the status of the evidence collected. If the head of the Designated Agency is of the opinion that the evidence collected is sufficient and constitutes attempt, commission, harbouring, abetting or conspiracy of a scheduled offence or any offence, he shall order the authorized officer to hand over the said material to the concerned authority for registration of the case. (2) While handing over the evidence, the authorized officer shall certify that the same has been collected as per the warrant and has not been tempered or altered in any manner whatsoever. 10. Re-issuance of warrant.—(1) In case the authorized officer is of the view that some evidence has been collected in sixty days but it is not sufficient for the purpose of registration of the case and there is every possibility of gathering further material, he may approach the Judge in a manner prescribed above to seek reissuance of the warrant. For this purpose he shall show to the Judge the evidence and material collected so far as justification for the reissuance of the warrant. (2) The extension and reissuance of the warrants shall be deemed to have been done under Section 14 read with Section 30 of the Act. 11. Insufficient evidence.—(1) In case the evidence gathered in consequence of the warrant is insufficient to justify registration of a report, the said material, information or data shall be kept in safe custody by the applicant. (2) Collection of insufficient evidence or information or refusal of issuance of warrant shall not be construed as restricting the applicant from its ongoing intelligence gathering activities and to collect supporting or new material on fresh grounds against the suspect during its normal course of function. 12. Review Committee.—(1) The review committee shall meet in camera and shall interact with the representative of each applicant one by one. The applicants shall bring to the review committee the all the relevant record of warrants and show the same to the Committee. The proceedings of the committee shall not be documented or committed and shall not be public. (2) The orders and the instructions of the committee under sub-section (2) of Section 27 of the Act shall be in general terms and have extremely restricted circulation. 13. Unauthorized surveillance.—Any person, company or entity other than the applicant who carries out interception or surveillance on his own or through unauthorized equipment or through any other means whatsoever, is strictly prohibited from doing so. The applicant shall also report any such incidence, through the Designated Agency, to the Minister or the Judge for appropriate action under the Act. 14. Scope of the rules.—The Act and the rules shall be interpreted for the sake of collection of evidence and are not in any manner to restrict the duties and functions of the applicant or the Designated Agency which they are required to perform for counter-terrorism, internal security, sabotage, sedition, counter intelligence, anti-corruption and security of strategic assets as well as the functions ascribed to them under applicable laws.

The Protection of Pakistan Act, 2014

Passed By NA on 2nd July 2014 and Senate

A Bill to provide for protection against waging of war or insurrection against Pakistan and the prevention of acts threatening the security of Pakistan

WHEREAS it is expedient to provide for protection against waging of war or insurrection against Pakistan, prevention of acts threatening the security of Pakistan and for speedy

trial of offences falling in the Schedule and for matters connected therewith or incidental thereto;

It is hereby enacted as follows:--- 1. Short title, extent and commencement (1) This Act may be called the Protection of Pakistan Act, 2014. (2) It extends to the whole of Pakistan. (3) It shall come into force at once: Provided that this Act shall remain in force for a period of two years from the date it comes into force. 2. Definitions.--In this Act, unless there is anything repugnant in the subject or context,--- (a) “armed forces” means the Military, Naval and Air Forces of Pakistan and the Reserves of such Forces; (b) civil armed forces” means Police, Frontier Constabulary, Frontier Corps, Pakistan Coast Guards, Pakistan Rangers or any other civil armed force notified by the Government as such; (c)”Code” means the Code of Criminal Procedure, 1898 (Act V of 1898); (d) “enemy alien” means a militant (a) whose identity is unascertainable as a Pakistani, in the locality where he has been arrested or in the locality where he claims to be residing, whether by documentary or oral evidence; or (b) who has been deprived of his citizenship, under the Pakistan Citizenship Act, 1951 (II of 1951), acquired by naturalization; (e) “Government” means the Federal Government; (f) “militant” means any person who: (a) wages war or insurrection against Pakistan, or (b) raises arms against Pakistan, its citizens, the armed forces or civil armed forces: or (c) takes up, advocates or encourages or aids or abets the raising of arms or waging of war or a violent struggle against Pakistan; or (d) threatens or acts or attempts to act in a manner prejudicial to the security, integrity or defence of Pakistan; or (e) commits or threatens to commit any scheduled offence; (i) a person who commits any act outside the territory of Pakistan for which he has used the soil of Pakistan for preparing to commit such act that constitutes scheduled offence under this Act and the laws of the State where such offence has been committed, including an act of aiding or abetting such offence; or (ii) any person against whom there are reasonable grounds that he acts under the directions or in concert or conspiracy with or in furtherance of the designs of an enemy alien; (g) “Police” includes all police forces established by the Provincial Governments or the Federal Government; (h) “Preparing to commit a scheduled offence” means any act, prior to an attempt, whereby a person equips or adorns himself with the means and instruments necessary for the commission of such offence and includes the possession, storage, fabrication or transport of explosives‟, firearms, instruments, articles, suicide jackets or vehicles designed to be used in such commission; (i) “Prosecuting agency” means a prosecuting agency established by the Government for the prosecution of offences falling under this Act; (j) “Prosecutor General” means the person appointed as Prosecutor General by the Government under section 12 of this Act; (k) “Schedule” means a Schedule annexed to this Act; (l) “Scheduled offence” means an offence as set out in the Schedule; (m) “security of Pakistan” shall have the same meaning as is assigned to it in Article 260 of the Constitution; (n) „Special Court” means the Special Court established under section 8 of this Act; and

(o) “Special Judicial Magistrate” means the Special Judicial Magistrate appointed under section 8 of this Act. 3. Use of armed forces and civil armed forces to prevent scheduled offences.--(1) Any police officer not below BS-15 or member of the armed forces, or civil armed forces who is present or deployed in any area may, on reasonable apprehension of commission of a scheduled offence after giving sufficient warning, use the necessary force to prevent the commission of a scheduled offence, 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. (2) In particular and without prejudice to generality of sub-section (1), an officer of the police not below BS-15 or member of the armed forces or civil armed forces in the above situation may,--- (a) after giving prior warning use such force as may be deemed necessary or appropriate, keeping in view all the facts and circumstances of the situation, against any person who is committing or in all probability is likely to commit a scheduled offence, it shall be lawful for any such officer after forming reasonable apprehension that death, grievous hurt may be caused by such act, to fire, or order the firing upon any person or persons against whom he is authorized to use force in terms hereof; Provided that the decision to fire or order firing shall be taken only by way of last resort, and shall in no case extend to the inflicting of more harm than is necessary to prevent the scheduled offence which has given rise to the reasonable apprehension of death or grievous hurt: Provided further that all cases of firing which have resulted in death or grievous hurt shall be reviewed in an internal inquiry conducted by a person appointed by the head of the concerned law enforcement agency: Provided further that all cases of firing which have resulted in death may, if the facts and circumstances so warrant, be also reviewed in a judicial inquiry conducted by a person appointed by the Federal Government. Explanation.-Reasonable apprehension that death or grievous hurt may be caused, may, inter alia, be based on the following grounds, namely:--- (i) credible prior information about a person, who is identified on site or is suspected to be that person and such person either attempts to resist arrest by force or refuses a command to surrender and his action may lead to grievous hurt or death; (ii) prior information but without any clear identification of individual(s) in an area who may have been or are going to be involved in the planning, commission or financing of a scheduled offence to carry out action as mentioned in paragraph (i) above: (iii) appreciation of circumstances on the scene that a person can cause harm and the situation may lead to grievous hurt or, a judgment based on event(s) on site; (iv) threatening movement of a person who is in possession of a firearm or reaching for a firearm, to target law enforcing personnel or a member of the public which may lead to grevious hurt or death; or (v) prior information or a judgment on the site that the person may cause to signal or personally trigger an explosion which can cause harm or a person assisting in commission of such a crime that may lead to grievous hurt or death. (b) arrest, without warrant, any person who has committed a a scheduled offence or against whom a reasonable suspicion or credible information exists that he has committed, or is about to commit any such act or offence; and (c) enter and search, without warrant any premises to make any arrest or to take possession of any fire-arm, explosives, weapon vehicle, instrument or article used, or likely to be used, in the commission of any scheduled offence: Provided that after the search, the circumstances justifying it and the items recovered shall be reported within two days to Special Judicial Magistrate for the area by the officer conducting the search. (3) Nothing contained in sub-section (1) or sub-section (2) shall affect the provisions of Chapter IX of the Code and the provisions of Section 132 of the Code shall apply to any person acting under this section. 4. Application of Code.--The provisions of the Code, insofar as these are not inconsistent with this Act shall be applicable thereto. 5. Investigations.--(1) All the scheduled offences shall be cognizable and non-bailable.

(2) All scheduled offences, where armed forces/civil armed forces are acting in aid of civil authority, shall be inquired into and investigated by a Joint Investigation Team comprising of one gazzetted police officer and two officers from the armed forces/civil armed forces. The joint Investigating Team shall be headed by the Police Officer as armed forces. The Joint Investigation Team shall be headed by the Police Officer as aforesaid. (3) Whenever a person is arrested or detained in custody under clause (b) or clause (c) of sub-section (2) of Section 3 and it appears that the inquiry or investigation cannot be completed within the period of twenty-four hours, the head of Joint Investigation Team or any other officer acting under him, excluding the time necessary for journey from the place of arrest or detention to the Court shall produce him before a Special Judicial Magistrate and may apply for remand of the accused to the custody of the police or custody of any other investigating agency. (4) A Special Judicial Magistrate may remand the accused, from time to time, in such custody as such Special Judicial Magistrate thinks fit for a term not exceeding sixty days:--- Provided that the Special Judicial Magistrate shall not remand an accused person to custody under this section for a period exceeding fifteen days at a time,--- Provided further that all such reports requesting for further custody of the accused shall be submitted through the Public Prosecutor. (5) A person arrested or detained under this Act who falls within the meaning of clause (d) of section 2 of this Act shall be considered an enemy alien and subject to provisions of section 15 presumed to have joined waging war or insurrection against Pakistan. 6. Preventive Detention.—(1) The Government may by an order in writing authorize the detention of a person for a period specified in the order shall not exceed ninety days if the Government has reasonable grounds to believe that such person is acting in a manner prejudicial to the integrity, security, defense of Pakistan or any part thereof or external affairs of Pakistan or public order or maintenance of supplies and service:--- Provided that detention of such person shall ne in accordance with the provisions of Article 10 of the Constitution:--- Provided further that without prejudice to the above, an enemy alien may be detained by the Government to prevent him from acting as aforesaid for such period as may be determined by it from time to time in accordance with Article 10 of the Constitution. Explanation: A person connected or reasonably believed to be connected with the preparation, attempt or commission of a scheduled offence or a person acting in concert or under direction of an enemy alien, or a person falling under sub-section (5) of Section 5 shall be deemed to be a person acting in the manner stated above. (2) In areas where the Federal Government or the Provincial Government has called Armed forces in aid of civil power under Article 245 of the Constitution or where any civil armed force has been called by the Federal Government or Provincial Government ib aid of civil power under the Anti-terrorism Act. 1997 (XXVII of 1997), the said requisitioned force may detain any enemy alien or militant, in designated internment camps after a notification to that effect:--- Provided that detention of such person shall be in accordance with the provisions of Article 10 of the Constitution. (3) At any time during the said notification or upon its withdrawal, such interne may be handed over to Police or any other investigating agency for formal investigation and prosecution. (4) The Federal Government shall make Regulations to regulate the internment orders, internment camps, mechanisms for representation against the internment orders and judicial oversight of such camps, subject to the provisions of sub-section (2) of section 9. (5) Any person, arrested or detained by the armed forces or civil armed forces kept under arrest or detention before the coming into force of the Prevention of Pakistan (Amendment) Ordinance, 2014 (Ordinance I of 2014) shall be deemed to have been arrested or detained pursuant to the provisions of this Act if the offence in respect of which such arrest or detention was made also constitutes an offence under this Act. 7. Report.--Upon completion of investigation, the Joint Investigation Team shall, through the Public Prosecutor, submit a report before the Special Court:--- Provided further that notwithstanding anything contained in the Qanun-e-Shahadat, 1984 (P.O. 10 of 1984), such report shall be admissible in evidence within the meaning of section 173 of the Code. 8. Establishment of Special Courts etc.--(1) The Government may establish as many Special Courts under this Act as determined by it.

(2) The Government, after consultation with the Chief Justice of the concerned High Court, may appoint any person as judge of the Special Court constituted under this Act who is or has been a Sessions Judge in any province of Pakistan or has been an Advocate of the High Court for a period of not less than ten years, and is not ore than seventy years of age. (3) A judge Special Court shall have all the powers of a Sessions Court as provided under the Code. (4) The Government may provide security of tenure to a judge of the Special Court appointed under this Act as may be prescribed by the rules. (5) The Government may, after consultation with the Chief Justice of the concerned High Court, appoint any Magistrate of the First Class serving as a member of the subordinate judiciary under any High Court or any other officer of not less than BPS-18 of the Pakistan Administrative Service or Provincial Management Service of any Province or any person who is or has been an advocate of the High Court for a period not less than five years, as Special Judicial Magistrate. (6) The Special Judicial Magistrate shall have all the powers of Magistrate First Class provided under the Code, unless these they are inconsistent with this Act. (7) No Special Court shall take cognizance of a scheduled offence except on a report submitted under Section 7. 9. Place of inquiries, investigations and trials etc.--(1) The Government, on the report of a prosecuting agency, may determine the place of custody, inquiry, investigation and trial of a scheduled offence anywhere in Pakistan. (2) Subject to the Constitution,--- (a) the Government, Joint Investigation Team, armed forces or civil armed forces may, in the interest of the security of its personnel or for the safety of the detainee or accused or intern, as the case may be, or for any other reasonable cause withhold the information except from a High Court or the Supreme Court regarding the location of the detainee or accused or intern or internment centre established or information with respect to any detainee or accused or interne or his whereabouts:--- Provided that the judge or judges to whom disclosure is made may decide to treat it as privileged information in the public interest; and (b) the Government may not in the interest of the security of Pakistan disclose the grounds for detention or divulge any information relating to a detainee, accused or interne who is an enemy alien or a militant. (3) A person convicted of a scheduled offence subject to direction of the Government may be confined at any place in Pakistan including the prisons established by the Provincial and Federal Governments. 10. Exclusion of public from proceedings of Special Court. ---In addition, and without prejudice, to any powers which a Special Court may have by virtue of any law for time being in force to order the exclusion of thepublic from any proceedings, if at any stage in the course of the trial of any person before a Special Court, an application is made by the prosecution on the ground that the publication of any evidence to be given or of any statement to be made in the in the course of the trial would be prejudicial to the public safety, and that, for that reason, all or any segment of the public should be excluded during any part of the hearing, the Special Court may make an order to that effect, but the passing of sentence shall in any case take place in open court. 11. Establishment of Prosecuting Agency.--The Government shall establish an independent Prosecuting Agency headed by a Prosecutor General in order to provide consultation and legal guidance to the investigating agency and to conduct the prosecution of scheduled offences. 12. Prosecutor General.--(1) The Government may appoint any person as Prosecutor General who is not less than forty-five years of age and has been an Advocate of the High Court for a period of not less than ten years. (2) The Prosecutor General may issue instructions and guidelines for the competent investigation and effective prosecution of the cases of scheduled offences.

(3) The Prosecutor General may, with prior approval of the Government, withdraw from the prosecution of any accused in a case pending before any Special Court and on submission of such request the Court shall discharge or acquit the accused from the case as it may deem fit. 13. Protection of judges, prosecutors and witnesses etc.--The Government shall take appropriate measures to provide adequate security to the prosecution witnesses, investigating officers, prosecutors, Special Judicial Magistrates and Judges of the Special Courts and for this purpose may establish, anywhere in Pakistan, high security prisons with Court rooms. 14. Joint trial.--(1) While trying any offence under this Act, a Special Court may also try any other offence, which an accused may, under the Code of Criminal Procedure, 1898, be charged, at the same trial if the offence is connected with such other offence. (2) If, in the course of any trial under this Act of any scheduled offence it is found that the accused person has committed, in addition any other offence connected with schedule offence, the Special Court may convict an accused for such other offence also and pass any sentence authorized by this Act or, as the case may be, such other law. 15. Burden of proof.—(1) An enemy alien or a militant financing the charge of a scheduled offence on existence of reasonable evidence against him, or a person arrested in preparation to commit or while attempting to commit such an offence shall e presumed to be engaged in waging war or insurrection against Pakistan unless establishes his non-involvement in the offence. (2) Any person apprehended in course of preparation, attempts or commission of a scheduled offence and from whom any weapon, material, vehicle, article or instrument designed for or capable of being used to commit or to facilitate the commission of the offence of bombing, suicide bombing or target killing or grievous hurt shall be presumed to be guilty of preparation, attempt or commission, as the case may be, of a scheduled offence. Explanation: A cell phone or other instrument that contains logs or evidence of calls or messages made or received that facilitates the preparation, attempt or commission of such an offence, shall be deemed to be such an instrument and any record thereon or therein shall be admissible in evidence. 16. Punishments.--Notwithstanding anything contained in the Pakistan Penal Code or any other law for the time being in force, a scheduled offence shall be punishable with imprisonment which may extend to twenty years, with fine and confiscation of property unless the scheduled offence already provides a higher punishment and the Special Court convicting the accused may also deprive him of the citizenship acquired by him by naturalization. 17. Transfer of cases.--(1) Where, after taking cognizance of an offence, a Special Court is of opinion that the offence is not a scheduled offence, it shall, notwithstanding that it has no jurisdiction to try such offence, return the ease to the prosecuting agency for its submission before a Court of competent ordinary jurisdiction. (2) The Prosecutor General may, with the approval of the Government and for reasons to be recorded, withdraw a case at any stage of the proceedings from one Special Court with its permission and submit the same before another Special Court constituted under this Act. (3) Notwithstanding anything contained in any other law for the time being in force, the Government may apply to any court of law or tribunal that any case involving any scheduled offence punishable under this Act, pending before such court or tribunal be transferred to a Special Court, then such other court or tribunal shall transfer the said case to Special Court and it shall not be necessary for the Special Court to recall any witness or again record any evidence that may have been recorded. 18. Certain provisions of the Code not applicable.--The provisions of Sections 374, 426, 435, 439, 439-A, 491, 496, 497, 498 and 561-A of the Code shall not be applicable to the scheduled offences. 19. Appeal.--(1) An appeal against the final judgment of a Special Court shall lie to the High Court. (2) Copy of the judgment of a Special Court shall be supplied to the accused and public prosecutor on the day the judgment is pronounced.

(3) Any aggrieved person or the Government may file an appeal against the final judgment of a Special Court within a period of thirty days from the pronouncement of judgment. 20. Savings.--No member of the police, armed forces or civil armed forces acting in aid of civil authority, Prosecutor General, a prosecutor, Special Judicial Magistrates or the Judge of a Special Court shall be liable to any action for the acts done in good faith during the performance of their duties. 21. Power to make rules.—(1) The Government may make rules to carry out the purposes of this Act. (2) In particular and without prejudice to the generality of foregoing power such rules may include guidelines for police and members of armed force/civil armed forces acting in aid of civil authority while using force to prevent scheduled offences. (3) On the notification, the rules shall be laid before both Houses of Parliament 22. Amendment to Schedule.-- The Government may, by notification in the official gazette, amend the Schedule by adding or modifying any entry therein or omitting any entry therefrom. 23. Authorization. ---The Federal Government may, by notification in the official gazette, authorize a Provincial Government to perform such functions and exercise such powers under this Act or the rules made thereunder as the Federal Government may deem fit. 24. Overriding effect. ---(1) Subject to such conditions as the Government may specify by notification in the Official Gazette, the provisions of this Act shall have effect notwithstanding anything contained in any law for the time being in force. (2) In case there is any conflict between the provisions of this Act and any other law for the time being in force the provisions of this Act shall prevail to the extent of inconsistency. 25. Removal of difficulties. ---(1) If any difficulty arises in giving effect to any provision of this Act, the President may make such order, not inconsistent with the provisions of this Act, as may appear to him to be necessary for the purpose of removing such difficulty. (2) An order under sub-section (1) shall be laid before each House of the Parliament in its first sitting after the order is made. 26. Validation. ---All inquiries, investigations and proceedings initiated and conducted, anything done, actions taken, sentences or orders passed, rules or regulations made, notifications issued, powers conferred, assumed or exercised by any person or authority or forum between the 6th day of June 2014 and the date this Act comes into force (both days inclusive) shall be deemed to have been validly initiated, conducted, done, taken, passed, made, issued, conferred, assumed or exercised under this Act and shall have effect accordingly.

SCHEDULE [See Section 2(i)] Scheduled Offences.--(1) The following acts, if committed with the purpose of waging war or insurrection against Pakistan or threatening the security of Pakistan shall be the scheduled offences and includes other offences relating to:--- (i) crimes against ethnic, religious and political groups or minorities including offences based on discrimination, hatred, creed and race; (ii) use of arson, fire-bombs, suicide bombs, biological weapons, chemical weapons, nuclear arms, plastic explosives and other materials capable of exploding or creating bombs employed to kill or cause hurt to persons or destroy property; (iii) use of arson and bombs on public places, government premises, sites of worship, historical places, business concerns, or other places, and risking or causing death or hurt to any person therein; (iv) Killing, kidnapping, extortion, assault or attack of members of the Parliament, Judiciary, Executive, Media, and other important personalities; (v) Killing, kidnapping, extortion, assault or attack on officers and employees of Pakistan including armed forces and law enforcement agencies; (vii) Killing, kidnapping, extortion, assault or attack on foreign officials, official guests, tourists, foreign visitors, or internationally protected persons etc; (vii) Killing, kidnapping, extortion, assault or attack on foreign officials, official guests, tourists, foreign visitors, or internationally protected persons etc.; (viii) destruction of or attack on communication and interaction lines, devices, grids of stations, or systems etc; (ix) destruction of or attack on energy facilities including dams, power generating and distributing systems including stations, lines and poles; (x) destruction of or attack on aircrafts and airports, attack on flight crew with any weapon or endangering human life by means of weapons on aircrafts; (xi) destruction of or attack on gas or oil pipelines and liquid or natural gas facilities and other means of their transport including tankers; (xii) destruction of or attack on of national defense materials, premises, utilities, and installations including check posts, prisons and other fixtures; (xiii) destruction of or attack on educational institutions, police stations and security organizations etc. (xiv) cyber-crimes, internet offences and other offences related to information technology which facilitates any offence under this Act; (xv) wrecking, disrupting or attacking mass transport systems including trains, buses, cars and their stations and ports; (xvi) violence or attack against maritime navigation, maritime fixed platforms, shipping and port installations and other maritime fixtures; (xvii) violence against nuclear arms, sites or any other related installations; (xviii)hostage taking, or attempting to lake hostage any person; (xix) violence against nationals occurring outside of Pakistan; (xx) illegallycrossing national boundaries in connection with scheduled offences. (2) Offences Punishable under Sections 121, 121-A, 122, 123, 123-A, 123-B, 124, 124-A, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139 and 140 of the Pakistan Penal Code (3) preparation, abetment, attempt or conspiracy to commit any of offences specified in this schedule.