1999 PLP 111 (YLR)

(4) That he lives in his own house on Plot No.104/M in Defence, Lahore. This house has been built upon two Kanals in L.C.C.H.S. Lahore Eastern side of this house is a vacant plot of 4 Kanals which is said to be owned by him. It is maintained that an enquiry ensued and the Enquiry Officer came to the conclusion that allegations against the petitioner had not been proved. The Authorised Officer also agreed with the findings of the Enquiry Officer and recommended that the charges against the petitioner be dropped. The Authority, however, did not agree with the views of the Enquiry Officer as also the findings of the Authorised Officer and in turn appointed Mr. Jivan Khan, Secretary, Interior Division, Ministry of Interior and Narcotics Control, Government of Pakistan as Authorised Officer to proceed further in the matter, resultantly, a show‑cause notice was issued to the petitioner calling upon him to show‑cause as to why major penalty of dismissal from service should not be imposed upon him. Charge No.4 as originally framed was, however, dropped. Another show‑cause notice was received by the petitioner from Major (Retd.) Muhammad Ashraf Nasir, Additional Secretary, Interior Division, Ministry of Interior and Narcotic Control, Government of Pakistan, who had been appointed as the Authorised Officer. The petitioner challenged the continuance of departmental proceedings against him before the Lahore High Court in Writ Petition No.16019‑98, which is still pending.

3. It is asserted that from the time of having been placed under suspension on 10‑4‑1997 till date, no proceedings of any nature other than departmental proceedings mentioned above have been initiated against the petitioner in any forum and since the petitioner intended to obtain ex Pakistan leave for performing Umra, as well as for going to United Kingdom for his wife's medic check‑up, therefore, he made inquiries and came to know that his name has actually been placed on the Exit Control List issued by the respondent on 11‑4‑1997 regarding which the petitioner had no official information. The petitioner represented against the inclusion of his name in the Exit Control List under section 3 of the Exit from Pakistan (Control) Ordinance, 1981 on 1st October, 1998 and asked for personal hearing as also for removal of his name from the said Exit Control List. The said representation was, however, not attended to by the competent authority with the result that the petitioner approached this Court with the prayer that inclusion of his name in the Exit Control List be declared to be illegal and without lawful authority and the petitioner be allowed to proceed abroad in accordance with law.

4. In support of the petition it is argued that the petitioner had been condemned unheard and has not been informed of the reasons prevailing with the respondent for putting his name on the Exit Control List and that he has also not been given a personal hearing. It was contended that the proceedings against the petitioner are departmental in nature entailing the maximum penalty of dismissal from service, therefore, the inclusion of petitioner's name in the Exit Control List cannot be termed in public interest and is not justified. It was then argued that the petitioner has inalienable right to be dealt with in the accordance with law while the action complained of is obviously discriminatory for it is not shown that such an action is backed by sanction of law and in the bona fide exercise of the same. The plea of violation of fundamental rights was also raised and in that regard it was submitted that the respondent's action is violative of constitutional guarantees as contained in Articles 2‑A, 4, 9, 15 and 25 of the Constitution of Islamic Republic of Pakistan. It was lastly urged that in the absence of reasons the liberty of the petitioner has been curtailed which cannot be justified on any ground and that in any case inclusion of petitioner's name in the Exit Control List is unreasonable and unjustified for the pendency of departmental proceedings, in which the petitioner has once been exonerated, is no ground to disallow the petitioner to proceed abroad. Learned counsel for the petitioner relied on the following cases available on the subject:‑‑‑ (i) Wajid Shamas‑ul‑Hassan v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad (PLD 1997 Lah. 617). (ii) Miss Naheed Khan v. Government of Pakistan and others (PLD 1997 Kar. 513). (iii) Anwar Saifullah Khan v. The Passport and Immigration Officer, Government of Pakistan, University Town Peshawar and three others (PLD 1998 Pesh. 82). (iv) Anwar Saifullah Khan Ex‑Senator v. Passport and Immigration Officer, Government of Pakistan and three others (1998 SCMR 1343). He also relied on section 24‑A of the General Clauses Act, whereby it is provided that any authority vested with the power to make any order or to give any direction shall exercise such power reasonably, fairly, justly and for the advancement of purposes of the enactment. It further ordained that the authority, office or person making any order or issuing any direction under the power conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be for issuing the direction and shall provide a copy of the order or the direction to the person effected prejudicially.

5. The learned Deputy Attorney?-General, on the other hand, argued that as per the law it was not necessary to hear the petitioner before placing his name on the Exit Control List nor the Federal Government was obliged to specify the grounds on which the name of the petitioner was so included. He, however, submitted that the representation of the petitioner is under consideration and that in connection therewith an opportunity of hearing had been granted to the petitioner. It was, however, admitted that the charges levelled against the petitioner do not contain any charge as to embezzlement but at the same time contended that it is on the recommendation of the "Ehtesab Bureau" that the name of the petitioner has been placed on the Exit Control List. The learned Deputy Attorney‑General also took advantage of the proclamation of emergency to submit that the order placing the name of the petitioner on Exit Control list is an executive order of the Federal Government and is protected under Article 233(1) of the Constitution of Islamic Republic of Pakistan, 1973. Reliance was also placed on "Mrs. Habiba Jillani v. The Federation of Pakistan through the Secretary, Ministry of Interior, Government of Pakistan, Islamabad" (PLD 1974 Lah. 153 & 168), "M/s. Iqbal & Co., Jhang v. Government of Punjab and 2 others" (PLD 1977 Lah. 1426) and "Sardar Farooq Ahmad Khan Leghari and others v. Federation of Pakistan and others" (1998 SCMR 1616).

6. The law as to any person proceeding from Pakistan to a destination outside Pakistan is by and large enumerated in sections 2 and 3 of the Exit from Pakistan (Control) Ordinance, 1997, which reads as follows:‑‑‑ "

2. Power to prohibit exit from Pakistan.‑‑‑(1) The Federal Government may, by order, prohibit any person or class of persons from proceeding from Pakistan to a destination outside Pakistan, notwithstanding the fact that such person is in possession of valid travel documents. (2) Before making an order under subsection (1) it shall not be necessary to afford an opportunity of showing cause against the order. (3) If, while making an order under subsection (1) it appears to the Federal Government that it will not be in the public interest to specify the grounds on which the order is proposed to be made, it shall not be necessary for the Federal Government to specify such grounds. (3) Review.‑‑‑(1) Any person aggrieved by an order of the Federal Government under subsection (1) of section 2 may, within fifteen days of the making of the order, making a representation to the Federal Government for a review of the order, setting out in the representation the grounds on which he seeks the review". It would be seen that under section 2, Federal Government is vested with the power to prohibit any person or class of persons from proceeding abroad notwithstanding that such persons is/are in possession of valid travel documents. Sub‑clause 2 lays down that before making such an order as is enumerated in subsection (1), it shall not be necessary to afford to such persons an opportunity of showing cause against the order. Subsection 3 lays down that while making an order under subsection (1), it appears to the Federal Government that it shall not be in the public interest to specify the grounds on which the order is proposed to be made, it shall not be necessary for the Federal Government to specify such grounds. The order passed restricting travel abroad by the various persons were considered by the various High Courts in the cases of Wajid Shams‑ul?-Hassan, Miss Naheed Khan and Anwar Saifullah Khan. Lahore High Court proceeded to strike down the order in Wajid Shamsul Hassan's case, while the Sindh High Court in the case of Miss Naheed Khan and Peshawar in the case of Anwar Saifullah Khan, noted supra declined to interfere with the order passed under the provisions of above said act. Any way, the matter was taken to the Supreme Court in the case of "Anwar Saifullah Khan, Ex‑Senator v. Passport and Immigration Officer, Government of Pakistan and three others" (1998 SCMR 1343) wherein the leave was granted on the ground that there being lack of unanimity in the views expressed by the learned judges of the High Courts which need to be resolved through an authoritative pronouncement of the Supreme Court. The above said controversy apart, the order impugned herein has special features of its own and has been passed in a background special in its nature. It would be noted that in the order preventing the petitioner to travel abroad no reasons were given. The petitioner filed a representation against the above said order which too was not decided till such time that he filed a Constitutional petition in that regard. Although, the Government in its comments pleaded that the petitioner has been prevented from travelling abroad on the recommendations of "Ehtesab Bureau" with the rider that since the matter regarding deletion of name of the petitioner from the Exit Control List is under process in consultation with Ehtesab Bureau, therefore, the petition is not maintainable yet not an iota of even a prima facie evidence was placed on record to show that Ehtesab Bureau had started some kind of proceedings against the petitioner. Interestingly enough, the representations of the petitioner had not been decided by that time and the learned Deputy Attorney‑General appearing on behalf of Central Government did make a request that decision thereof be awaited in the light of averments made above. The requisite time was granted whereafter a copy of letter was placed on the record addressed to the petitioner whereby he was informed that his request has been considered by the Ministry but has not been acceded to. The intimation carried in the said letter is absolutely silent as to any proceedings pending against the petitioner in Ehtesab Bureau. The liberty of a person cannot be curtailed at the whim of the Government and for that matter functionaries of the State. Similarly, it is inalienable right of every citizen to be treated in accordance with law and since the power is to be exercised in the public interest, the functionaries of the State were obliged under the law to disclose some evidence thereby establishing that they had reasonable ground for putting the name of the petitioner on the Exit Control List. At least such an opportunity was available to them at the time of hearing of the case but it seems that they had no reason and for that matter they did not disclose any. Simple assertion that it is because of the recommendations of the Ehtesab Bureau that the name of the petitioner has been brought on the Exit Control List cannot be countenanced in the days of democratic concepts where the state is answerable to its citizens. The only inquiry pending against the petitioner is a departmental inquiry wherein no charge of embezzlement, espionage or spying has been levelled against the petitioner and the maximum penalty provided in the Efficiency and Discipline Rules is that of dismissal from service. It may also be stated here at the cost of repetition that once the petitioner had been exonerated from the charges levelled against him but it seems that the Government is adamant to accept the findings which have also been approved by the Authorised Officer and has thereby instituted a fresh inquiry and if such a course is continued to be adopted by the Government, the petitioner may never be able to travel abroad. In the case of Miss Naheed Khan, the grounds furnished in the counter affidavit filed by the Government were taken to be enough and then there was evidence that the Ehtesab process, which was proposed to be initiated against the writ petitioner could have been delayed because of her departure. The case of "Anwar Saifullah Khan v. The Passport and Immigration Officer, Government of Pakistan University Town, Peshawar and 3 others" (PLD 1998 Peshawar 82) was on stronger footing because a reference to Ehtesab Bench had already been made against the writ petitioner while number of other cases were under scrutiny. No such situation is available in the instant case. The total record being silent about any case worth the name initiated or pending against the petitioner or proposed to be initiated or pending against the petitioner, it is neither fair nor just nor reasonable to curtail his liberty by refusing to allow him to travel abroad.

7. As far the plea that it is an executive order passed by the Government, therefore, it is protected by Article 231(1) of the Constitution of Islamic Republic of Pakistan, suffice it to say that the name of the petitioner was brought on the Exit Control List in April, 1997 while emergency was proclaimed in the country in May, 1998. It is not the case of the Government that afresh order has been passed after the proclamation of emergency and the fact that the name of the petitioner was placed on the Exit Control List in April, 1997 is not only owned by the Federal Government but also being pressed for the purposes of the case, therefore, the reliance of learned counsel on the cases of Mrs. Habib Jillani, M/s. Iqbal and Co. as also Sardar Farooq Ahmad Khan Leghari, noted supra is absolutely inapt.

8. In result, the impugned order of the Federal Government prohibiting the petitioner from proceeding abroad by placing his name on the Exit Control List as also the order conveyed to the petitioner vide letter, No.12 of 1986 Passport, Government of Pakistan, Interior Division, Islamabad, dated 22‑12‑1998 are declared to be without lawful authority and of no legal effect, resultantly, the petitioner shall be allowed to proceed abroad without any hindrance by the Federal Government or any of its agency or authority. There shall, however, be no order as to costs. Petition allowed. Q.M.H./M.A.K./M‑1026/L