P L D 2007 Quetta 41 (PLP)

AKHTAR ZAMAN MALGHANI, J.

The petitioner has challenged validity of notification dated 8th June, 2006 whereby; his name was placed on the Exit Control List by invoking constitutional jurisdiction of this Court with following relief:-- "It is, therefore, respectfully prayed that keeping into consideration the facts and circumstances, the impugned notification dated 8th June, 2006 passed by respondent may kindly be set aside and the placement of the name of petitioner in ECL, may kindly be removed, in the interest of justice."

2. We have heard the learned counsel for the petitioner who vehemently argued that in the impugned notification no reasons have been mentioned for placing name of the petitioner on Exit Control List. He further contended that the petitioner is a law abiding citizen of Pakistan and his liberty could not be curtailed without justification, lacking in the instant case. The learned counsel next argued that the impugned notification was issued without affording opportunity of hearing to the petitioner. According to him the Constitutional Petition was maintainable without resorting to the remedy available under the Exit from Pakistan (Control) Ordinance, 1981 as on account of non-mention of grounds in the impugned notification right of review could not be exercised. In support of his contentions the learned counsel referred to the judgments reported in PLD 1999 Lahore 59, PLD 2003 Karachi 705, PLD 1997 Lahore 61 and 2003 CLC 246.

3. On the other hand the learned standing counsel vehemently contended that it was not necessary for the Government to have specified the grounds on which order was made as it would not have been in the public interest. He further contended that the petition without availing remedy of review under the relevant law was not maintainable.

4. We have carefully considered the contentions put forth by the parties' learned counsel. Before dilating upon the respective contentions we find it appropriate to reproduce the impugned notification which reads as under:-- "It has been decided to place the name of Mr. Khalid Lango son of Abdul Khaliq Lango, r/o Railway Housing Society, Joint Road, Quetta, on Exit Control List under section 2 of Exit from Pakistan (Control) Ordinance, 1981.

2. All concerned are requested to take further action in the matter accordingly". (Sd.) (Maqsood Ahmed) Section Officer It is evident from the said notification that no reasons whatsoever have been mentioned in the said notification for placing name of the petitioner on Exit Control List. Though; under subsection (3) of section 2 it is not necessary for the Federal Government to specify grounds, if it will not be in the public interest, yet as liberty of a citizen guaranteed by the Constitution is being curtailed, the Federal Government is under legal obligation to have at least shown the basis of its intention of exercising power under subsection (3) of section 2 of Ordinance, 1981 but the impugned notification is silent about such reasons. Similarly the Federal Government on demand of Court is legally bound to place on record the material which prompted it to place name on Exit Control List in order to satisfy conscience of the Court and to show that such exercise was not a colourful one. In the instant case on our demand Standing Counsel placed on record documents consisting of a note with heading of "Brief" and copies of three F.I.Rs. The "Brief" about which privilege has been claimed, is without any signature and it is not ascertainable from it as to who had issued it and on what basis. No other material was placed before us in support of allegations made in the said "Brief", therefore; in our considered view such unauthenticated information/report is not sufficient to curtail liberty and free movement of petitioner guaranteed by the Constitution which is supreme law of the country. As regards F.I.Rs. registered against the petitioner, suffice to observe that impugned notification was issued on the 8th June, 2006, whereas; F.I.R. Nos. 107/06 of P.S., Sariab, 183/06 of P.S Civil line and 221/06 of P.S Saddar were registered on 30-8-2006 and 29-8-2006, therefore; validity of notification could not be adjudged on the touchstone of events which were non-existent at the time of issuance of notification. Adverting to the contention of the learned Standing Counsel regarding non-maintainability of petition without availing remedy of to review available under section 3 or the Exit from Pakistan (Control) Ordinance, 1981, it may be observed that reasons for placing name of the petitioner on Exit Control List have neither been communicated to the petitioner nor disclosed in the impugned notification which was necessary to enable the petitioner to avail remedy of review and in absence thereof it was neither appropriate nor possible for him to have availed such remedy, therefore; the constitutional Petition was maintainable. In this regard we are fortified by the judgment reported in PLD 1999 Lahore 459 wherein it was observed as under:

"As noted, subsection (2) of section 2 excludes the right of prior hearing or an opportunity of showing cause. In subsection (3) the Federal Government can 'withhold disclosure of grounds which in its opinion will not be in public interest to disclose. In my view, exclusion of prior hearing or of show-cause notice does not absolve the Federal Government from stating and conveying the reason, after the action has been taken. This is necessary to enable the affected person to avail the right of review under section

3. It is common sense that without knowing the case of the Federal Government, the exercise of right of review would be rendered nugatory." In view of above discussion, we are inclined to declare notification dated 8th June, 2006 whereby; name of the petitioner has been placed on Exit Control List to be bad in law, invalid and without lawful authority which is accordingly struck down. H.B.T./4/Quetta Petition allowed.