P L D 2012 Sindh 17 (PLP)

MUSHIR ALAM, C.J.

(1) Petitioner Hassan Raza presently residing at London has filed instant petition to impugn the action of the respondents (Ministry of Interior) for placing his name on E.C.L. since the year, 2003. It is stated that the petitioner is not returning back to the Pakistan for fear of his arrest and humiliation.

2. According to learned counsel for the petitioner there is no justification to place his name on E.C.L. No order was ever served on him nor any communication made, therefore, the petitioner could not avail the remedy of representation to impugn such action.

3. Notices were served, comments of the Ministry of Interior respondent No.1 shows that name of the petitioner was placed on E.C.L. on 23-10-2003 along with 54 other person on the recommendations of State Bank of Pakistan being loan defaulters. No further information has been placed on record despite directions. The Directorate of Immigration, respondent No.2 filed comments. It was denied that the name of the petitioner was placed on E.C.L on their recommendations. It is stated that they are responsible to execute the order passed by Ministry' of Interior, which they have executed in performance of their duty.

4. On 22-9-2011, this Court issued notice to the Additional Director, State Bank of Pakistan, respondent No.3 to appear in Court and assist as to the authority of the State Bank of Pakistan, to make any recommendation for placing name of any person on E.C.L.

5. Today, Mr. Mohammad Aslam, Additional Director, State Bank of Pakistan appeared along with instructions dated 7-12-2001, which were developed by the State Bank in the meeting with Ministry of Interior dated 30-6-2001. Said instructions were circulated to all the Banks, the instructions read as follows: (i).The bank shall propose the names of only such defaulters of Rs.100 million & above for placement on the E.C.L, in respect of whom the bank has reasonable grounds to conclude that the placement of their names on the E.C.L. will facilitate in the recovery of bank dues, and that such persons are considered by them as potential absconders. (ii).Only the key person (the person who directly or through his family members holds a controlling position in the management and / or ownership of the company) in each case of default shall be proposed for placement on E.C.L. Not more than one key person shall be proposed for the List. However, in case the director whose name is appearing in E.C.L. has a genuine need to go abroad, name of another key director of the same company may be placed on E.C.L. (iii) Minors and female directors/partners (except where a female is the only key person of the business) shall not be proposed. (iv) Persons who are on the Board of Directors merely by virtue of their technical/ professional expertise or are nominee Directors shall not be proposed unless they have committed a fraud. (v) Basic information like National Identity Card number and father's name, address, business concern, amount of default in respect of each name proposed for placement on E.C.L. must be provided as per the format enclosed. Any other information that the bank desires to include may be specified in remarks column. (vi) The list of persons proposed for placement on E.C.L. shall be furnished to the Director Banking Supervision Department under the seal and signature of the President of the bank who will ensure that the list has been prepared in accordance with the above guidelines."

6. It was urged that the State Bank only proposes the name of such persons who are defaulters of Banks of 100 Million and above and in cases of companies their directors or persons managing the affairs of the company are considered to be placed as noted above.

7. Mr. Mohammad Aslam, Additional Director, State Bank of Pakistan submits that role of State Bank is merely as a forwarding agency and pro forma containing requisite information as to quantum of default and name of key person as received from the concerned bank is forwarded by State Bank of Pakistan as a Regulatory Authority to Ministry of Interior. According to Mr. Aslam, it is for the Ministry of Interior to examine whether such recommendations are worth consideration or otherwise, State Bank of Pakistan has no other role to play. 7(sic) Mr. Muhammad Ashraf Khan Mughal, D.A.G contends that since the petitioner is stated to be a loan defaulter, therefore his name has been placed on E.C.L.

8. Learned counsel for the petitioner exercising right of rebuttal, has drawn our attention to the copy of plaint in Suit No. 06/1997 (New No.511/1998) filed by the Pak-Libya Holding Company (Pvt.) Limited against Northern Chemicals Limited and others, name of the petitioner appears as defendant No.3. From the contents of the plaint, the liability if any, shown against the defendant No.3 is to the extent of Rs.9.5 Million only, even, in the execution proceedings the assistance of the executing Court is sought by attachment and sale of the petitioner's property at Islamabad. 8(sic) He has further drawn our attention to the confirmation of the sale dated 25-1-2002 of principal borrowers mortgage property in the sum of Rs.60.86 Million in favour of the auction purchaser. Sale was confirmed on 25-1-2011. Learned counsel for the petitioner has made reliance on: a. Hashmat Ali Chawla v. Federation of Pakistan and others (PLD 2003 Karachi 705) b. Zia Mohyuddin v. Additional Director (Emigration) Federal Investigation Agency Airport, Karachi and others (PLD 2010 Lahore 128) c. Zurash Industries (Pvt.) Ltd. v. Federation of Pakistan and 3 others (2011 CLD 511).

9. It is urged that even as per State Bank's policy directive if at all dispute with the bank is of a private nature petitioner cannot be placed on E.C.L. The Deputy Director State Bank interjected to point out that Pak Libya Holding Company is a joint venture of Government of Pakistan with Government of Libya, therefore, it is the Bank with foreign investment covered by exception to Rule 2 of Exit from Pakistan (Control) Rules, 2010 and since name of the petitioner involved in bank default with a foreign bank, therefore, he has been rightly placed on E.C.L.

10. We have heard arguments and perused the record. It may be observed that Exit from Pakistan (Control) Ordinance promulgated in 1981, since promulgation, its provisions and scheme has been debated and in number of cases Superior Courts have provided guideline to the authority, the manner in which discretion vested in the authority under the Ordinance 1981 has to be exercised. It is indeed appreciable that through Exit from Pakistan (Control) Rules, 2010 certain parameters have been laid down to place a person on E.C.L. Exit From Pakistan (Control) Rules, 2010 were Gazetted on 2nd July, 2010, Rule 2(i)(a) furnishs grounds to place person on ECL irrespective of fact that such person possess valid travel document, it provides following criteria; "(a). corruption and misuse of power or authority causing loss to the government's funds or property; (b). economic crimes where large government's funds have been embezzled or institutional frauds committed. (c). acts of terrorism or its conspiracy, heinous crimes and threatening national security; (d). case of key directors of a firm, in default of tax or liabilities of not less than ten million rupees; (e). case of two or more key or main directors of a firm, in default of loan or liabilities exceeding one hundred million rupees; (f). any case and his name forwarded by the Registrar of a High Court, Supreme Court of Pakistan or Banking Court only; or (g). drug trafficking." Rule 2 provides exception to sub-rule (1) supra, in following manner:-- "

2. Nothing in sub-rule (1) shall apply to: (a). persons involved in private disputes where government interest is not at stake, except cases of fraud against foreign banks and reputable companies with significant foreign investments; (b). persons involved in crime like murder and dacoity, etc., unless special grounds are furnished by the relevant home departments; (c). directors who represent foreign investment in business; (d). women or children undergoing Education who are appearing as directors merely due to their family relationship with major shareholders;"

11. On examining the ECL Rule 2010 quoted, above rules, are not applicable in case where person is involved in a private dispute unless where the Government interest is at stake or where person is involved in fraud against foreign banks and reputable companies with significant foreign investment or if it is shown that person involved in heinous crime or in drug trafficking.

12. Even if Pak Libya Holding Company is a joint venture of Government of Pakistan and Government of Libya and is treated as foreign Bank as provided in clause (a) to Rule 2 ibid, then too it is only in cases where person has committed fraud against such Foreign Bank or reputable company with significant foreign Exchange, it is only then name of such person could be placed on E.C.L. There is nothing on record to show that petitioner has committed any fraud with Pak Libya Holding Company nor is there any such allegation against him of such nature. The suit relied upon by the respondents Nos.1 and 3 is simpliciter a case of financial liabilities, which was secured against tangible security, which has since been liquidated against principal borrower, the liability if any against the petitioner is shown to be less than Rs.100 Million, unless such a liability is shown against the petitioner, as per E.C.L. Rules 2010 petitioner name could not be placed on E.C.L.

13. In view of the foregoing, in our view, there is no justification to place the name of the petitioner on E.C.L., petition is accordingly allowed name of the petitioner be deleted from E.C.L. M.H./H-27/K Petition allowed.