Section 5 : Use of armed forces and civil armed forces to prevent terrorism
2014 YLR 201 LAHORE-HIGH-COURT-LAHORE
Syed GHULAM ABBAS BOKHARI VS Raja MUSHTAQ AHMAD
Sections 76, 79, 80 & 81—Anti-Terrorism Act (XXVII of 1997),Section 5—Protection available to law-enforcing agencies for using force in performing official duties—Scope—In order to maintain the law and order situation, law-enforcing agencies had been protected and Section 5 of the Anti-Terrorism Act, 1997 empowered forces to prevent acts of terrorism by applying force—Even otherwise, actions of forces in performing official duties were protected by the general exceptions available in Sections 76, 79, 80 and 81 of Penal Code, 1860, however interpretations of said legal provisions might not be permitted to be made liberally in favour of forces so that innocent people were not be killed by gun plays because forces were constitutionally and legally mandated to jealously safeguard the lives, liberty and property of the subjects.
2011 PLD 799 SUPREME-COURT
SUO MOTU CASE NO.10 OF 2011 VS Brutal Killing of a Youngman by Rangers
Sections 7 & 5(2)(i)—Constitution of Pakistan, Arts,184(3) & 9—Suo motu notice by Supreme Court—Pursuant to incident of murder of a person at the hands of Sindh Rangers, video clips were shown by most of the prominent television channels, same had been watched in the Supreme Court, which prima facie established that about 5/6 persons in uniform initially caught hold of the person (deceased) from his hair and thereafter one of them opened fire, due to which the said person sustained injuries and fell down, crying for his life, begging them that he should be removed to the hospital—None of the Police and Rangers officials present on the spot helped the deceased (then injured) as a result whereof he succumbed to injuries in their presence—Manner, in which the death of deceased had occurred, clearly indicated barbarism because once he had been overpowered, as it was evident from the video clips, he was not to be fired upon in any case and at the best the Rangers personnel could have handed him over to the police, if there was an allegation of his being involved in the commission of sonic offence, but Rangers had no authority to open fire upon him under Section 5(2)(i) of the Anti-Terrorism Act, 1997—State under the Constitution was responsible to provide protection and safety to the life of all citizens, but in the present incident facts were other way round i.e. negation of Art.9 of the Constitution—Present was a classical case of highhandedness of the law enforcing agencies—Senior functionaries of both the agencies instead of feeling sense of responsibility and showing uprightness and honesty, were concealing the facts while appearing before the court—Supreme Court in circumstances, apprehended that the investigation of the case would .not be conducted properly and impartially, in presence of said functionaries, as such through the Attorney-General for Pakistan, it was directed by the Supreme Court that said functionaries should be posted out within a period of three days and in the meantime some alternate arrangements should be made—Meanwhile Deputy Inspector-General of Police was directed to take over the charge of the investigation against all the culprits and complete the same within a period of seven days, by applying all appropriate provisions of law as the matter seemed to attract prima facie Section 7 of the Anti-Terrorism Act, 1997 and send up challan before the court of competent jurisdiction and submit progress report of his investigation to the Registrar of Supreme Court for court’s perusal in chambers—Court seized of the matter shall decide the case by conducting trial on day to day basis, by not taking more than 30 days, without being influenced in any manner from the present proceedings of the Supreme Court.
2000 PLD 111 SUPREME-COURT
JAMAT-I-ISLAMI PAKISTAN VS FEDERATION OF PAKISTAN
Anti-Terrorism Act 1997 —-Section 5(2)(i) Jas introduced by Anti-Terrorism (Second Amendment) Ordinance (XIII of 1999)1—Constitution of Pakistan (1973), Art.9–Security of persons—Provision of Section 5(2)(i), Anti-Terrorism Act, 1997 being violative of Art.9 of the Constitution as well as the guidelines provided in the case of Mehram Ali PLD 1998 SC 1445, was invalid to the extent same authorised the Officer of Police, Armed Forces and Civil Armed Forces charged with the duty of preventing terrorism, to open fire or order for opening of tire against person who in his opinion in all probability was likely to commit a terrorist act or any scheduled offence without being tired upon–Supreme Court, however, observed that judgment rendered in the present petition shall not affect the trials already concluded and convictions recorded under the Act as amended through Ordinances (IV) and (X111) of 1999 and pending trial may continue subject to the view expressed in the present case.
1999 MLD 3236 KARACHI-HIGH-COURT-SINDH
ABDUL KARIM VS STATE
Anti-Terrorism Act 1997 —-Sections 5, 6 & Sched—Criminal Procedure Code (V of 1898), 5.439—Terrorist act—Jurisdiction of Special Court—Cases had been sent for trial to the Special Court constituted under the Anti-Terrorism Act, 1997—Last lines of Section 6 of Anti-Terrorism Act, 1997 had to be read in conjunction with the earlier part of the said section and not disjunctively—Unless the act of accused was shown to have been covered by earlier part of the said Section 6, the last lines of the same would not; ipso facto, bring the alleged act within the scope of “Terrorist Act”—Earlier part of Section 6 admittedly was not attracted to the cases, nor these were the cases of preventing Armed Forces or Civil Armed Forces from performing their duties within the scope of Section 5 of the Act—Offences in question, thus, were neither scheduled offences, nor offences under the said Act—Impugned orders assigning the cases to Special Court for trial were, consequently, set aside and the same were directed to be tried by the Sessions Court.
1998 PLD 1445 SUPREME-COURT
MEHRAM ALI VS FEDERATION OF PAKISTAN
Anti-Terrorism Act 1997Section 5(2)(i)—Use of Armed Forces and Civil Armed Forces to prevent terrorism—Provision of Section 5(2)(i), Anti-Terrorism Act, 1997 is invalid to the extent it authorises the Officer of Police, Armed Forces and Civil Armed Forces charged with the duty of preventing terrorism, to open fire or order for opening of fire against person who, in his opinion, in all probability, is likely to commit a terrorist act or any scheduled offence, without being fired upon—Such declaration by Supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order.
1998 SCMR 1156 SUPREME-COURT
MEHRAM ALI VS FEDERATION OF PAKISTAN
Anti-Terrorism Act 1997 —-Section 5(2)(i)—Use of Armed Forces and Civil Armed Forces to prevent terrorism—Provision of Section 5(2)(i), Anti-Terrorism Act, 1997 is invalid to the extent it authorises the Officer of Police, Armed Forces and Civil Armed Forces charged with the duty of preventing terrorism, to open fire or order for opening of fire against person who, in his opinion, in all probability, is likely to commit a terrorist act or any scheduled offence, without being fired upon—Such declaration by Supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order.
1998 PLD 347 LAHORE-HIGH-COURT-LAHORE
MEHRAM ALI VS FEDERATION OF PAKISTAN
Section 5—Constitution of Pakistan (1973), Arts. 14 & 199—Use of Armed Forces and Civil Armed Forces to prevent terrorism—Inviolability of dignity of man—Fundamental Right as guaranteed under Art.14 of the Constitution of Pakistan is subject to law and must yield to ground realities—Use of powers by Armed Forces and Civil Armed Forces to prevent terrorism effectively upheld by High Court with a note of warning to all concerned that in case Section 5 of the Anti-Terrorism Act, 1997 is misused for ulterior purpose or even otherwise is abused, person responsible for the same would have to face the consequences; if in a given case it is demonstrated that the power has been exceeded those responsible for the same can be taken to task—Legislation of Anti-Terrorism Act, 1997 cannot be struck down on the mere apprehension that same may be misused specially when nothing had been placed on record to show the misuse of power ?
1998 MLD 1411 LAHORE-HIGH-COURT-LAHORE
MEHRAM ALI VS FEDERATION OF PAKISTAN
Anti-Terrorism Act 1997 —-Section 5—Constitution of Pakistan (1973), Art. 14—Use of Armed Forces and Civil Armed Forces to prevent terrorism—Inviolability of dignity of man–Fundamental Right as guaranteed under Art. 14 of the Constitution of Pakistan is subject to law and must yield to ground realities—Use of powers by Armed Forces and Civil Armed Forces to prevent terrorism effectively upheld by High Court with a note of warning to all concerned that in case Section 5 of the Anti-Terrorism Act, 1997 is misused for ulterior purpose or even otherwise is abused, person responsible for the same would have to face the consequences; if in a given case it is demonstrated that the power has been exceeded those responsible for the same can be taken lo task—Legislation of Anti-Terrorism Act, 1997 cannot be struck down on the mere apprehension that same may be misused specially when nothing had been placed on record to show the misuse of power.
1984 PLD 315 LAHORE-HIGH-COURT-LAHORE
THE STATE VS TAUQIR HUSSAIN
Sections 5(2) & 4-Penal Code (XLV of 1860),Section 161-Solitary statement of complainant on question of demand of illegal gratification by accused disbelieved by trial Court-Failure of prosecution to produce official who witnessed transaction of illegal gratification-Witnesses in whose presence accused alleged to have agreed to receive illegal gratification and in turn do undue favour to complainant also not produced-Held, solitary statement of complainant was rightly refused to be believed by trial Court-Failure to produce such witnesses was fatal to prosecution ease and gives rise to justifiable presumption in circumstances, that such witnesses, if produced, would not have supported prosecution.-[Witness].