2017 PLP 240 (YLRN)

IBAD-UR-REHMAN LODHI, J.

The petitioner was in attempt to board on the Plane, scheduled to leave Lahore for Sweden on 20.12.2014, through Emirates Air Lines Flight No.EK-623 and during immigration process at Lahore Airport, the petitioner's particulars were hit in the Exit Control List (herein after referred to as ECL) category vide I.D.No.14446 and his matter was referred to Federal Investigation Agency (Anti Human Trafficking Circle), Lahore for further investigation, which resulted into registration of F.I.R.No.1057 of 2014, against the petitioner.

2. The petitioner after his release on bail in the referred criminal case probed as to the reasons for such incident at Airport, which disclosed that reportedly his name was put on the ECL by the Federal Government and, therefore, he was not allowed to board on the flight to Sweden.

3. Since, according to petitioner, he never received any intimation as to the fact of placing his name on the ECL, therefore, the impugned act on the part of the respondents, in placing his name reportedly on ECL was called in question through the present writ petition, without making any particular reference to any order passed in this regard.

4. The report and para-wise comments from the respondents were called for, in response whereto the Federal Government of Pakistan, has offered the following report:-- "It is submitted that the name of the petitioner was placed on ECL on 25.09.2013, on the recommendation of security agency, as he was exposed to a sensitive job and was likely to abscond abroad without obtaining formal approval from the competent authority. The Security Agency has been asked to provide the latest status of the case. The response is awaited."

5. The report from the Director General, Federal Investigating Agency has added no material fact as it was reported by the Director General that the Federal Investigating Agency is only the implementing agency of the orders passed by the competent Authority under the provisions of Exit from Pakistan (Control) Ordinance, 1981 (herein after referred to be as Ordinance).

6. Pakistan Space and Upper Atmosphere Research Commission-Respondent No.2, has given in detail the reasons, which resulted into placing the name of the petitioner on the ECL. The main and basic reason as was reported by the SUPARCO was that the petitioner, who has been an employee of the said Commission was not sincere in his commitments as were arrived at by means of surety bond, which bound the petitioner to serve compulsorily the Commission for a certain period and before expiry of such bond period, the petitioner attempted to proceed abroad.

7. The Federal Government, even along with the report and parawise comments, has never furnished the copy of the order, placing the name of the petitioner on ECL and for that reason at the time of the hearing of this petition, the official appearing from Ministry of Interior, Government of Pakistan was directed to provide copy of the said order, who from his Master File has produced the copy of Memorandum No.12/290/2013-ECL, dated 25.09.2013. Copy of the same was also directed to be handed over to the learned counsel for the petitioner.

8. Learned counsel for the parties as also the learned Deputy Attorney General have argued the matter at length.

9. After hearing the parties and going through the record, I am of the view that the act on the part of the Federal Government in Ministry of Interior, in placing the name of the petitioner on ECL was an act, which was performed without observing the requirements as have been made incumbent for such Authority, not only in view of the provisions of Exit From Pakistan (Control) Ordinance, 1981 but also the Exit from Pakistan (Control) Rules, 2010 and, thus, is not sustainable for the following reasons:- In the report furnished by the Federal Government, the basis for the impugned order has been shown, some recommendation of Security Agency on the apprehension that the petitioner was likely to abscond abroad, without obtaining formal approval from the competent Authority. On such recommendations of the Security Agency, the impugned order was passed on 25.09.2013, however, when report was furnished in this writ petition on 26.03.2015, it was reported that the Security Agency concerned was asked to provide the latest status of the matter, which was still awaited, even after lapse of a period of about two years. From the order impugned i.e. Memorandum No.12/290/2013-ECL, dated 25.09.2013, it does not borne out that what were the justifications before the Federal Government in placing the name of the petitioner on ECL. The impugned memorandum is completely silent in this regard. In view of Sub-Section 2(3) of the Act, it is the requirement that 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 passed, it shall not be necessary for the Federal Government to specify such grounds. By such provision, the Federal Government is not absolved of its duty at least to mention the reasons for not specifying the grounds for an action under Section 2(1) of the Act. * The impugned memorandum does contain an endorsement that copy of the memorandum was forwarded to the person concerned. Such simple endorsement is not a sufficient and strict compliance of Rule 3 of the Rules which provide that an order made under Section 2(1) of the Ordinance shall be served on the person concerned, either through local Authorities or the staff of the immigration check-post or by registered post. No such mode has been adopted in this case. * Although the impugned memorandum has not specified any reason for placing of the name of the petitioner on ECL but in view of Rule 2(1)(a to g), the circumstances and grounds are provided, which could be made basis for placing any body's name on the ECL and none of such consideration seems to have been considered by the Federal Government by placing the name of the petitioner on ECL. * Article 15 of The Constitution of Islamic Republic of Pakistan, 1973, has provided a fundamental right to every citizen of Pakistan to remain in, and, subject to any reasonable restriction imposed by the law in the public interest, enter and move freely. * The terms of the bond got furnished by the SUPARCO at the best could have been enforced but the authorities have no jurisdiction to deny such fundamental right of the petitioner enshrined under Articles 14 and 15 of the Constitution. In absence of any reasonable restriction imposed by law as it had been envisaged under such Articles of Constitution, the respondent authorities had in fact acted illegally by denying the Constitutional right of the petitioner. If at all, the parent department of the petitioner had any grievance, it could have approached the court of law and enforced the agreement of bond or claim any relief under civil litigation. * No criminal action torturing an educated person, like the petitioner, in not allowing him to be boarded on the Plane at the instance of SUPARCO and keeping him in lock up could be justified. * It is by now a settled position of law that where the Government proposed to place the name of any person on ECL and there were circumstances, which justified that such grounds were not to be disclosed in the public interest, then there had to be recorded findings giving justification for not disclosing reasons to withhold such grounds in public interest. * In absence of any public interest, Government could not exercise any power to withhold the grounds, therefore, it is not unbridled authority of the Government to withhold reasons and grounds under any circumstances. * From the tenor of the report furnished by the Federal Government, it is obvious that the name of the petitioner was placed on ECL by Ministry of Interior in an arbitrary and mechanical manner only on the basis of some recommendation by an unknown agency and there seems to be no independent application of mind by the competent Authority in Ministry of Interior. Such act on the part of the Federal Government is nothing but unfair and unreasonable, defeating the fundamental Constitutional rights of the petitioner.

10. The learned Deputy Attorney General as well as learned counsel representing SUPARCO, have mainly relied upon Section 3 of the Ordinance, providing a remedy by way of representation of review before the Federal Government and according to them, in presence of such remedy, the Constitutional petition directly filed, by challenging the order passed, under Section 2 of the Ordinance is not maintainable. Such arguments have no force, for, the review before the same authority, which passed the original order, is nothing but an illusion. It is settled position that no one is permitted to be Judge of his own cause, therefore, the petitioner is held entitled to challenge the placement of his name on ECL by the Federal Government, by directly filing Constitutional petition before this Court.

11. Another objection as has been raised by the respondents, as to the maintainability of the Constitutional petition before this Court, is on the touchstone of the second proviso to section 9(2) of the National Command Authority Act, 2010, as according to the respondents, the petitioner being employee of SUPARCO, is subject to the provisions of Pakistan Army Act, 1952. Here, the respondents are again mistaken, for, referred proviso made applicable, to the employees in the service of "Authority". The "Authority" as defined in Section 2(a) is the National Command Authority constituted under Section 3 of the Ordinance. The 'Strategic Organization', which include the SUPARCO has been defined in section 2(d) of the National Command Authority Act, 2010, and same have never been subject to the Pakistan Army Act, 1952. As such the barring clause of Article 199 would not be available to the respondents to attack on the maintainability of the Constitutional petition before this Court by an employee of a strategic organization.

12. If any judgment is required in support of the above contentions of the petitioner, Higher Education Commission through Project Manager v. Sajid Anwar and others (2012 SCMR 186), 'Nazir Adenwala v. Islamic Republic of Pakistan through Secretary Ministry of Interior, Islamabad and 2 others' (PLD 2013 Sindh 186), 'Riaz Ahmed v. Government of Pakistan and others' (PLD 2014 Islamabad 29) and 'Wasatullah Jaffery) v. Ministry of Interior through Secretary, Federal Government of Pakistan and 4 others' (PLD 2014 Sindh 28), can be referred.

13. For what has been discussed above, this petition is allowed and the order issued by means of Memorandum No.12/290/ 2013-ECL, dated 25.09.2013, is declared as having been issued without lawful authority and no legal effect. MH/S-83/L Petition allowed.