P L D 1999 Karachi 402 (PLP)

NAZIM HUSSAIN SIDDIQUI, C.J.

This judgment will dispose of Constitutional Petitions Nos. D-251 and 252 of 1999 in which common questions of facts and law are involved. The petitioners have impugned the orders of the respondents, whereby their names were placed, on the Exit Control List (ECL) maintained under Ordinance XLVI of 1981, hereinafter called the Ordinance. Its sections 2 and 3_ are 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, make a representation to the Federal Government for a review of the order, seting out in the representation the grounds on which he seeks the review. (2) The Federal Government may, after giving the person making a representation an opportunity of being heard, make such order as it may. deem fit. (3) Subject to the order of the Federal Government in review, an order under subsection (1) of section 2 shall be final and shall not be called in question before any Court or other authority. The petitioners have claimed that they are committed and affiliated with Haq Parast Group of Muttahida Qaumi Movement (MQM) in the National Assembly and are sitting Members of the current National Assembly of Pakistan. Petitioner Babar Khan Ghori has stated that he holds valid Passport No. A977242 and on said Passport, on so many occasions, had travelled abroad and following are a few dates, showing exit and arrival in Pakistan: Date of Exit???????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Date of Arrival 20-3-1997???????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? 26-3-1997 23-4-1997????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? r????????????????? 26-4-1997 23-5-1997???????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? 1-6-1997 31-7-1997?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? _?????????????????????????????????????????????????? 7-8-1997 ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? 24-9-1997Full Bench decision of this Court C.E. Gibbon and others v. Pakistan and others PLD 1957 (W.P.) Karachi 956 at 972 it was observed by Wahiduddin, J. (as his Lordship then was), that 'preponderance of authority states that 'or' prima facie has only an alternative significance". In case, any further reference is needed, see Salehon and others v. The State PLD 1969 SC 267; Ebrahim Brothers Ltd. v. Wealth Tax Officer, Circle III, Karachi and another PLD 1985 Kar. 407 and Abdul Razzak v. Karachi Building Control Authority and others PLD 1994 SC 512 at 525 where a Full Bench of Hon'ble Supreme Court held, inter alia, as follows:- "

15. From the above-quoted passages from the above celebrated treatises on the Interpretation of Statutes, it is evident that the words 'and' and 'or' are interchangeable. However, in ordinary usage the word 'and' is conjunctive and the word 'or' is disjunctive. But to implement the legislative intent, it may become imperative to read 'and' in place of conjunction 'or' and vice versa. This cannot be done if the meaning of the relevant provision of the statute is clear or if the above construction,will operate to change the meaning of the law."

8. It was then argued by Mr. .Habibur Rehman that no appeal was filed by the petitioner against the decision of Registrar dated 1-9-1979 as provided in section 76 of the Act 1940 read with Rule 84 of the Trade Marks Rules, 1963. It was submitted by Mr. Khawaja Mansoor that since no notice was issued to the petitioner by the Registrar, it was not aware of the order passed by the Registrar, granting mark 'Impala' in favour of the respondent. I have examined the provisions of sections 46 and 76 of the Act 1940. Provision of appeal would lie where an order is passed by the Registrar under any provision of Act or the Rules, which may include any decision made by the Registrar in respect of granting mark or refusing to grant a trade mark or where a petition for rectification is granted or disallowed by the Registrar, Trade Marks. The provision of section 46 is independent of section

76. The earlier provision deals with the matter of rectification of a registered mark. In case, a petitioner invokes the jurisdiction of High Court under section 46 of the Act 1940 for rectification, then the remedy of appeal under section 76 will not be available to him. But if the Registrar is approached by an aggrieved person, then in case if a decision is not acceptable to him, he would be entitled to invoke section 76 by filing appeal before the High Court.

9. The question as to who is an aggrieved person to maintain a petition for rectification of a trade mark was earlier considered by the House of Lords in England in the famous case "In the matter of Powell's Trade Mark" ((1894) 11 R P C 4 ) where it was held that the applicant is in the same trade as the person who has registered the trade mark and whenever the trade mark, if remaining on the Register, would, or might, limit the legal rights of such applicant, so that by reason of the existence of the entry on the Register he could not lawfully do that which, but for the existence of the mark upon the Register, he could lawfully ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? -????????????????? ..,~~~,: ??????????????? ~-???????????? 8-10-1997??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ,????????????????????????????????? . ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? 1-12-1997???????????????????????????? ..?????????????? 3-12-1997 ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? 3-1-1998????????????????????????????????????????????????? 5-1-1998 ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? 9-5-1998????????????? '????????????????? ....??????????? 24-5-1998 ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? 10-7-1998?????? ...????????????????? :;~:????????? 22-8-1998 ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? 26-8-1998?????????????????????????????????????????????? 21-9-1998 Likewise, petitioner Muhammad Farrukh Naeem Siddiqui holds Passport No. S022898 and following are dates of his exit and arrival. Date of Exit????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Date of Arrival and ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? country visited 9th July, 1997??????????????????????????? ???????????????????????????????????2nd October, 1997 USA 7th November, 1997???????????????????????????????????????????????? 12th November, 1997 USA 18th March, 1997????????????????????????????????????????????????????? 1st April, 1998 USA & UK 27th May, 1997??????????????????????????????????????????????????????? 17th June, 1998 USA & UK The petitioners have maintained that MQM and Muslim League (ML), Nawaz Group, had formed a coalition Government, both at Province and Federal level, but when MQM declined to support ML on the Issue of 15th Amendment of the Constitution, a compaign was launched by M.L. against MQM and as a result of it, the petitioners and other members of MQM were harassed and coerced for withdrawing their opposition to said 15th Amendment in the Constitution. The petitioners have challenged the vires of said Ordinance and prayed for the following reliefs:-- ' "(A) To declare the impugned Ordinance No.XLVI of 1981, entitled "The Exit from Pakistan (Control) Ordinance, 1981 " is ultra vires the Constitution being in conflict with Articles 2A, 4, 9, 15 and 25 of the Constitution of Islamic Republic of Pakistan; (B) Direct the respondents to delete all prohibitions imposed upon the petitioner under the provisions of the impugned Ordinance No.XLVI of 1981, entitled 'The Exit from Pakistan (Control) Ordinance, 1981' by quashing the Exit Control List, as against the petitioners and permitting them to proceed abroad; (C) Direct the respondents to pay compensation of Rs.1,00,000 (Rupees One Lac only) to the petitioners for depriving them of their legitimate right to travel; (D) Costs of the petition; and (E) Any other and/or better relief which this Hon'ble Court may deem fit under the circumstances to grant. " The case of the respondents, in brief, is that petitioner E3abar Khan Ghori is involved in as many as 7 criminal cases, which are pending in various Courts. Likewise, Muhammad Farrukh Naeem Sidliqui is involved in two criminal cases, which are also pending before concerned Court for decision It is contended on behalf of petitioners that the Ordinance is ultra vires of the Constitution, being in conflict with its Articles 2A, 4, 9, 15 and 25 and it being so is hit by its Article 8(1) and (2) read with Article 227, as such, is liable to be struck down. Learned counsel for the, petitioners also argued that right to travel abroad. and to return back to Pakistan is guaranteed ' by different provisions of he Fundamental Rights enshrined in the Constitution and also in the Universal Declaration of Human Rights to which Pakistan is a signatory Learned counsel also argued that placing the names of the petitioners on the ECL in terms of section 2 of said Ordinance is also violative of the principles of Natural Justice, which are integral part of every statutes. As against above, Mr. Naimur Rehman, Dy. A.-G. and Mr. 1qbal Raad, A.-G. have strenuously argued that the provisions of the Ordinance art not violative of the Constitution and the object of promulgation of said Ordinance is to control exit of certain persons from Pakistan, keeping in view the larger interest of the country and also to have control over them, who being criminals would make attempts to flee from the country in order to avoid to face the prosecution. They have challenged maintainability of these petitions and argued that the Ordinance was promulgated in the year 1981 and it being a statute covered by the period commencing from 5th day of July, 1977 to 30th December, 1985, its validity could not be challenged in view, of Article 270-A, which is as follows:- "270-A.--(1) The Proclamation of the fifth day of July, 1977, all President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, including the Referendum Order, 1984 (P.O. No. l l of 1984). under which, in consequence of the result of the referendum held on the nineteenth day of December, 1984, General Muhammad Zia-ul-Haq became the President of Pakistan on the day of the first meeting of the Majlis-e-Shoora (Parliament) in joint sitting for the term specified in clause (7) of Article 41, the Revival of the Constitution of 1973 Order, 1985 (P.O.No. f4 of 1985), the Constitution (Second Amendment) Order, 1985 (P.O. No.20 of 1985), the Constitution (Third Amendment) Order, 1985, (P.O. No.24 of 1985), and all other laws made between the fifth day of July; 1977, and the date on which this,," Article comes into force are hereby affirmed, adopted and declared notwithstanding any judgment of any Court, to have been validly made` by competent Authority and, notwithstanding anything contained in the Constitution, shall not be called in question in any Court on any ground whatsoever: Provided that a President's Order, Martial Law Regulation or Martial Law Order made after the thirtieth day of September, 1985, shall he confined only to making such provisions as facilitate, or are incidental to, the revocation of the Proclamation of the fifth day of July, 1977. (2) All orders made, proceedings taken and acts done by any authority or by any person, which were made, taken or done, or purported to have been made; taken or done, between the fifth day of July, 1977, and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation, President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders, or bye-la

416. At page 566, about above Article, the following was observed by Mr. Justice Nasim Hasan Shah, as he then was: "On a careful consideration of the various provisions of Article 270-A I have reached the conclusion that none of them has the effect of giving immunity to all the laws made , between 5th June, 1977 to 30th December, 1985, from being tested on the touchstone of their inconsistency with the Fundamental Rights." Mr. Shafi-ur-Rehrnan, J., as he then was, at pages 574/575, observed as follows:- "(2) "(2) The affirmance, the adoption, the declaration and the validation of laws specified in Article 270-A(11 of the Constitution coupled with the clause ousting sweepingly the jurisdiction of all the Courts has not the effect of either effacing, eclipsing or of subordinating the Fundamental Rights guaranteed by the Constitution to the citizens of the country. It is an admitted position that the Ordinance is not included in the 7th Schedule of the Constitution and is an ordinary law amenable to the amendments or repeal by Legislature, as provided in sub-Article (6) of Article 270-A and it A being so these petitions are maintainable and validity of the Ordinance is to be tested on the touchstone of its alleged inconsistency with the Fundamental Rights. Mr. K. M. Nadeem, learned counsel for petitioners, contends that. ex facie, the provisions of the Ordinance are in conflict with Articles 2A, 4, 9. 15 and 25 of the Constitution. Article 2A by which the principles and provisions set out in the Objectives Resolution were made substantive part of the Constitution, is not a supra-Constitutional provisions nor it is self-executing. Although, the Principles of Islamic Law and Injunctions of Islam have to be kept in view and applied while interpreting the statutes, but the superior Courts did not strike down such laws, rules and regulations on the touchstone of this Article. Article 4 speaks about right of individuals, which are to be dealt, with in F accordance with law. No action adversely affecting the life, liberty, body, reputation or property of any person is to be taken except in accordance with law. The proceedings or act, ex facie, which suffers from excess rn lack of jurisdiction. or are corum non judice or mala fide, are the examples, which cannot be termed as "in accordance with law". It is an inviolable right. Article 9 speaks about security of person. According to this Article, no person shall be deprived of life or liberty save in accordance with law. Article 15 deals with freedom of movement of the citizens. Article 25 mentions about equality of Pakistan (Nazim Hussain Siddiqui, C J) citizens. According to it, all citizens are equal before law and are entitled to equal protection of law. It discards discrimination on the basis of sex alone. It is noted !hat expression "Equal protection of law", in this Article does not prohibit classification, which is reasonable and sets out substantial difference. , Learned counsel for the petitioners, however, was not able to satisfy us that in what manner the provisions of the Ordinance were violative of any of the aforesaid Articles. It would be shown in the succeeding paragraphs that the) Ordinance, besides being not in conflict with the provisions of the Constitution, is in public interest. . In the case of Miss Benazir Bhutto cited above, it was held by the Supreme Court that the vires of an Act could be challenged if its provisions were, ex facie, discriminatory in which case actual proof of discriminatory treatment was not required to be shown. Further, it was held that if the Act was not, ex facie, discriminatory, but was capable of being administered discriminately then the party challenging it has a right to show that it has actually been administered in a partial, unjust and oppressive manner. Bare reading of the Ordinance shows that its prime object is to provide control on exit of certain persons from Pakistan. No good reason has been assigned to challenge its propriety. Public interest is above the individual. Since, it is not possible to provide all the grounds, which may differ from person to person or group to group, it is left to the discretion of the Federal Government to prohibit such person or persons from proceeding abroad and to check the proper exercise of this discretionary power, a provision of review is provided in the Ordinance. In the case reported as Miss Naheed Khan v. Government of Pakistan and others PLD 1997 Kar. 513, the vires of the Ordinance were challenged as being discriminatory and violative of the provisions of Articles 4, 9 and 15 of the Constitution. At page 518, the following was observed: "There is no controversy in regard to the fact that under Exit from Pakistan (Control) Ordinance, 1981 freedom of a person to proceed abroad can be restricted, if it is found to be in public interest. The Preamble to the Ordinance itself suggests that the object behind the Ordinance was to provide for control on exit of certain persons from Pakistan. Although the expression, 'public interest' has not been defined in law, but in Ashiq Ali Bhutto v. President, Summary Military Court, PLD 1979 Kar. 814, it was observed that, although, it was not possible to lay down any yardstick by which 'public interest' could be measured, but it was a matter which could be left to the subjective satisfaction of the authority concerned." It is noted that the expression "public interest" means an act, which is basically meant for the benefit of general public and it differs from case to case. Accordingly, we hold that the Ordinance is not in violation of any provisions of the Constitution. This brings us to the merits of the case. The objections filed by respondents Nos. 1 and 2 are scanty. It appears that, both the respondents, viz. Federation of Pakistan and Government of Sindh, have remained evasive with reference to the facts and grounds mentioned and raised in these petitions. Learned counsel for the petitioners has specifically argued that, these petitioners, on several occasions both, prior to and after registration of cases against them, had gone abroad and had come back. We had specifically asked learned Dy. A.-G. that if said criminal cases were the ground for prohibiting them from going abroad as to why they were permitted on earlier occasion to go abroad, when those cases were already registered against them, he simply replied that he could say nothing about it. In fact, he has no reply for it. We are of the view? that the names of the petitioners ought not to have been placed on the Exit Control List (ECL). In such circumstances, they are entitled to proceed abroad. Accordingly, we allow these petitions in terms of relief 'B' only, quoted above. M.B.A./B-48/K Petitions allowed.