2017 P Cr (PLP)

MOHAMMED KARIM KHAN AGHA, J.

The brief facts of the case are that the Petitioner is an actress/model who on the night 13/14 March 2015 was proceeding to the Rawal Lounge of the Benazir Bhutto International Airport in Rawalpindi/Islamabad when she was intercepted by the Airport Security Force and found to have in her possession over US$500,000.This lead to her being booked in FIR No.10/15 dated 14-3-15 for offenses under the Customs Act, 1969, the Foreign Exchange Regulation Act, 1947 and the ICT 1950 and taken into custody on 14-3-15. The case is now pending before the Special Judge Customs Rawalpindi for adjudication.

2. On 14-07-2015 the Petitioner was granted post arrest bail by a Division Bench of the Hon'ble Lahore High Court. On 25-11-2015 the Special Judge Customs Rawalpindi on an application by the Petitioner on account of her need to travel for business purposes and to see her ailing mother in Dubai allowed her passport to be returned to her. The Petitioner however apparently through electronic media came to know that her name was on the Exit Control List (ECL) which would have prevented her from traveling abroad. The Petitioner has therefore moved this Court for the removal of her name from the ECL.

3. Learned Counsel for the Petitioner on the point of maintainability and territorial jurisdiction of this Court submitted that the Memorandum dated 20-11 -2015 (the Memorandum) placing the Petitioner on the ECL applied and had effect throughout Pakistan i.e. it would be applicable to all airports, ports and border crossing in any part of Pakistan including the Province of Sindh.

4. The Petitioner had a permanent residence in Karachi and she had every right to travel abroad via the Quaid-e-Azam international airport in Karachi if she so desired. Hence this Court, since the Memorandum also had effect in Sindh, had the territorial jurisdiction to hear this matter despite the Memorandum emanating from the Ministry of Interior based in Islamabad. It was a case of concurrent jurisdiction whereby the case could either be heard before the Sindh High Court or the Islamabad High Court.

5. In support of his contention learned Counsel placed reliance on Muhammad Aslam Khan and 9 others v. Federal Land Commission through its Chairman Central Secretariat Islamabad and 3 others (PLD 1976 Pesh. P.66), LPG Association of Pakistan through its Chairman v. Federation of Pakistan through Secretary Ministry of Petroleum and National Resources Islamabad and 8 others (2009 CLD 1498), Trading Corporation of Pakistan (Private) Limited v. Pakistan Agro Forestry Corporation (Private) Limited and another (2000 SCMR 1703), Messrs Al-Iblagh Limited, Lahore v. The Copyright Board, Karachi and others (1985 SCMR 758) and Bakhat Ali and another v. Shahnawaz and 15 others (PLD 2006 Kar. 497).

6. At the outset he stressed that the action of placing the Petitioner on the ECL was mala fide as were the whole proceedings against her. She needed to travel abroad to perform her professional engagements in order to financially support herself and to visit her ailing mother and as such her freedom of movement could not be denied to her in an arbitrary manner.

7. With regard to the Memorandum dated 20-11-2015 which placed the Petitioner on the ECL he submitted that section 2(b) of Exit from Pakistan (Control) Ordinance, 1981 (the Ordinance) did not exist and this made the Memorandum ineffective.

8. More importantly, he submitted that the Memorandum which placed the Petitioner on the ECL specifically stated that the Petitioners name had been placed on the ECL on the recommendations of the Federal Board of Revenue (FBR) on charges of money laundering when in fact the Petitioner had not been charged with money laundering and as such the Memorandum had been passed without lawful authority and was liable to be struck down.

9. He further submitted that the Petitioner had been given no notice of her name being placed on the ECL, no reasons through a speaking order had been given by the Ministry of Interior for placing her name on the ECL as was required by section 24(A) of the General Clauses Act, 1897 and she had been denied her right of being heard before her name was placed on the ECL all of which justified the Memorandum being struck down as unlawful. In this context he placed reliance on Higher Education Commission through Project Manager v. Sajid Anwar and others (2012 SCMR 186) and Wajid Shamas-ul-Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad (PLD 1997 Lahore 617).

10. He further submitted that the placement of the name of the Petitioner on the ECL was in violation of Articles 2(A), 4, 5, 9, 10(A), 14, 15, 18 and 25 of the Constitution so on this count as well the Memorandum placing the Petitioners name on the ECL was also required to be struck down as being unlawful.

11. On the other hand learned Additional Attorney General for Pakistan submitted that this Court had no territorial jurisdiction since the Petitioner had committed the offense in Rawalapindi, the case against her was proceeding in Rawalpindi, the Memorandum under challenge had been issued from Islamabad and as such either the Lahore High Court or the Islamabad High Court was the appropriate forum to decide this issue.

12. He submitted that there as no mala fide in the actions of placing the Petitioner on the ECL who had been charged with a very serious crime and if she was allowed to leave the Country there was a strong chance of her absconding. Although when asked by the Court whether the Petitioner had been charged with the offense of money laundering the learned AAG candidly conceded that she had not been learned counsel for the Customs Collectorate informed the Court that an application to proceed against the Petitioner in this respect had been very recently made.

13. Learned AAG stressed that in determining the question of whether the Petitioner's name should remain on the ECL the Court needed to be guided by the facts of the case which indicated that her defense story was implausible and that under the circumstances it was not particularly necessary for her to travel abroad as she could continue her occupation and earn her livelihood whilst in Pakistan for the time being. Furthermore, she had not produced any evidence of any contractual obligations which she had abroad or any medical certificates concerning the illness of her mother. She had a residence in Dubai and in his submission the Petitioner's intention was to abscond and avoid her trial for which there was strong evidence against her.

14. He contended that there was nothing arbitrary in the placement of the Petitioner's name of the ECL and that as was clearly mentioned in the Memorandum which placed the Petitioners name on the ECL this was in accordance with Para 3 notification of ECL Policy, 2015 notified on 16-9-2015. He produced a copy of the Notification in support of his contention that the placement of the name of the Petitioner on the ECL was in line with a well thought out transparent policy. In fact the policy clearly indicated that any one aggrieved with the decision of being placed on the ECL could apply to have the decision reviewed which was extremely transparent and fair. In this respect he submitted that the Petition was not maintainable as the Petitioner should have first sought a remedy under the review mechanism under the ECL policy which provided an alternate remedy.

15. Learned Counsel for the Customs Collectorate fully supported the submissions of the learned AAG and emphasized the need to consider the strength of the case against the Petitioner whereby her section 265K, Cr.P.C. application had already been rejected by the trial Court and the fact that an application had now been made to proceed against her for the offense of money laundering which would fall under the ECL Policy.

16. We have carefully perused the record, considered the arguments of learned counsel and the relevant law and cases cited by them at the bar.

17. At the outset we would like to observe that we are not concerned with the merits or demerits of the case against the Petitioner which will be decided by the trial court based on the evidence before it. Our prime consideration in this case is whether the Petitioner's name has been legally placed on the ECL through the Memorandum and whether if in so doing any of her fundamental rights as guaranteed by the Constitution have been violated. Turning firstly to the question of territorial jurisdiction and maintainability.

18. The question of territorial Jurisdiction has been the subject of a plethora of Judgments both by the Hon'ble Supreme Court and the High Courts where the position of the Courts seems to have shifted on a number of occasions.

19. In the case of Al-Iblagh Limited v. The Copyright Board Karachi (1985 SCMR 758) the so-called "take affect test was adopted at P.762 where it was held as under: "While dealing with a somewhat similar situation, this Court was called upon to examine the terms of Article 98 of the 1962 Constitution (which are similar in the relevant regard to those of Article 9 of the Provincial Constitution Order, 1981 in Asghar Hussain v. Election Commissioner, Pakistan and others PLD 1968 SC 387). In this case, the East Pakistan High Court had held that the said High Court could not exercise jurisdiction with regard to the decisions of the Election Commission of Pakistan as the said body was not located in nor performed its functions in the Province of East Pakistan and, therefore, the East Pakistan High Court was precluded on account of territorial limitations, from exercising jurisdiction in connection with orders passed by it While rejecting this contention it was observed by this Court that: "The plain meaning of the words: "a person performing in the Province functions in connection with the affairs of the Centre" excludes territorial limitations, such as, that the person or authority to whom the High Court is empowered to issue writs must be amenable to its jurisdiction either by residence or location within those territories." (Underlining is ours) (bold added) It explained that:- "The Central Ministries as well as many Departments of the Central Government are located in Islamabad or at Rawalpindi. Nevertheless they perform functions in both the Provinces in connection with the affairs of the Centre, as such, Defence of Pakistan, External Affairs, Insurance, COPYRIGHT, Patent, Design......... (Underlining is ours) and found that the orders made or proceedings taken by the said Departments in connection with the affairs of the Central Government but having effect on parties in East Pakistan would be subject to the writ jurisdiction, of the High Court of that Province. (bold added) The rule laid down in the said case would, we think, be applicable also in the circumstances of this case. The Central Government has set up a Copyright Board for the whole of Pakistan and it performs functions in relation to the affairs of the Federation in all the Provinces. Hence, any order passed by it or proceedings taken by it in relation to any person in any of the four Provinces of Pakistan would give the High Court of the Province, in whose territory the order would affect such a person, jurisdiction to hear the case. (bold added)

20. This case however was not followed in the later case of Sandalbar Enterprise (Pvt.) v. CBR (PLD 1997 SC 338) which seemed to replace the "take effect" test with the so-called "dominant object" test at P.339 by holding as under: "We may observe that it has become a common practice to file a writ petition either at Peshawar, or Lahore, or Rawalpindi or Multan etc, to challenge the order of assessment passed at Karachi by adding a ground for impugning the Notification under which a particular levy is imposed. This practice is to be depreciated. The Court is to see, what is the dominate object of filing of the writ petition. In the present case, the dominant subject was not to pay the regulatory duty assessed by a Customs official at Karachi." (bold added)

21. In Trading Corporation of Pakistan v. Pak Ago Forestry Corporation (2000 SCMR P.1703) it seemed that the Sandalbar Judgment was distinguished and the Al-Iblagh (Supra) Judgment was again endorsed at P.1707 in the following terms: The learned Single Judge of the High Court in Chambers has elaborately dealt with this aspect of the matter in the judgment in writ petition and has held that the respondent No.1 having cause of action against Federal Government could bring the Constitution petition either at Karachi or at Rawalpindi Bench of Lahore High Court. The learned Single Judge rejected the objection of maintainability of the writ petition on the ground that affairs of Trading Corporation of Pakistan are being controlled by the Ministry of Commerce at Islamabad. Before the High Court the relief was not only claimed against the petitioner but was also claimed against the respondent No.2, the Ministry of Commerce, Government of Pakistan at Islamabad as such the petition was competently filed. Similar aspect of the case came up for consideration before this Court in the case Flying Kraft Paper Mills (Pvt.) Limited (supra). An objection was raised by the learned Deputy Attorney-General that the Rawalpindi Bench, Lahore High Court had no jurisdiction in the case as the order impugned in the writ petition was passed by Collector of Customs and Central Excise functioning at Peshawar. It was contended that relief was claimed against the Central Board of Revenue which functions at Islamabad, therefore, the High Court at Peshawar and Rawalpindi Bench of Lahore High Court had concurrent jurisdiction in the matter. Contention was found convincing and it was held that both Courts had concurrent jurisdiction in the matter. (bold added) From what has been discussed above, we are of the considered opinion that both Courts at Karachi as well as Rawalpindi have the jurisdiction in the matter and remedy can be resorted in either them. Thus, Lahore High Court, Rawalpindi Bench had concurrent jurisdiction to decide the matter. Accordingly we find no reason to interfere with the judgment of the High Court. Consequently leave to appeal was refused and the petition is dismissed."

22. Further case law flowed under the bridge but in the case of LPG Association of Pakistan v. Federation of Pakistan (2009 CLD 1498) after considering and exhaustively analyzing nearly all the relevant case law on territorial jurisdiction (both Supreme Court and High Court) and including Sandalbar (Supra), Al-Iblagh (Supra), Trading Corporation of Pakistan (Supra) and Flying Kraft Paper Mills (Pvt.) Limited (supra) the following ratio was deduced from the authorities in relation to territorial jurisdiction at P.1514 "

6. From the judgments cited at the Bar on both the sides, the portions whereof have been extensively reproduced, the following ratio is deducible:-- (A) The Federal Government or any body politic or a corporation or a statutory authority having exclusive residence or location at Islamabad with no office at any other place in any of the Provinces, shall still be deemed to function all over the country. (B) If such Government, body or authority passes any order or initiates an action at Islamabad, but it affects the aggrieved party at the place other than the Federal capital, such party shall have a cause of action to agitate about his grievance within the territorial jurisdiction of the High Court in which said order/action has affected him. (bold added) (C) This shall be moreso in the cases where a party is aggrieved by a legislative instrument (including any rules, etc.) on the ground of it being ultra vires, because the cause to sue against that law shall accrue to a person at the place where his rights have been affected. For example, if a law is challenged on the ground that it is confiscatory in nature, violative of the fundamental rights to property; profession, association etc. and any curb has been placed upon such a right by a law enforced at Islamabad, besides there, it can also be challenged within the jurisdiction of the High Court, where the right is likely to be affected. In this context, illustrations can be given, that if some duty/tax has been imposed upon the withdrawal of the amounts by the account holders from their bank account and the aggrieved party is maintaining the account at Lahore, though the Act/law has been passed at Islamabad, yet his right being affected where he maintained the account (Lahore), he also can competently initiate a writ petition in Lahore besides Islamabad; this shall also be true for the violation of any right to profession, if being conducted by a person at Lahore, obviously in the situation, he shall have a right to seek the enforcement of his right in any of the two High Courts. (D) On account of the above, both the Islamabad and Lahore High Courts shall have the concurrent jurisdiction in certain matters and it shall not be legally sound or valid to hold that as the Federal Government etc. resides in Islamabad, and operates from there; the assailed order/action has also emanated from Islamabad, therefore, it is only the Capital High Court which shall possess the jurisdiction. The dominant purpose in such a situation shall be irrelevant, rather on account of the rule of choice, the plaintiff/petitioner shall have the right to choose the forum of his convenience." (bold added)

23. Thus, it would seem that the old Sandalbar (Supra) test of dominant purpose has now finally been superseded by the "take effect" test. Namely if a Government, body or authority passes any order or initiates an action at Islamabad, but it affects the "aggrieved party" at the place other then the Federal capital, such party shall have a cause of action to agitate about his grievance within the territorial jurisdiction of the High Court in which said order/action has affected him.

24. The above reasoning and ratio in the LPG case was followed in the case of Pervez Musharaff v. Pakistan (PLD 2014 Kar 389) which was specifically addressing the question of a person's name being placed on the ECL which in addition at P.424 stated as under:

37. Now we would like to take the issue of territorial jurisdiction, learned Attorney General argued that this court lacks territorial jurisdiction. At present the petitioner is residing at Karachi though temporarily but it is also a fact that if he wants exit from Karachi, he would not be allowed to move due to his name on E.C.L. The respondents Nos.3 and 4 are the Director and Additional Director FIA (Immigration) posted at Karachi. It is also a matter of record that it is not the first time or the first case which this court or we are entertaining on the question of E.C.L. but this court in number of cases not only entertained the Petitions but also passed order for the removal, of the name from E.C.L. In this case also, the orders were passed by the Ministry of Interior at Islamabad like other cases but since it is a matter of liberty of a person and infringement of his fundamental right, no austere or rigid view can be taken as to the territorial jurisdiction of this court, Clause (a) of Sub-Article (1) of Article 199 of the Constitution lucidly envisages that on the application of any aggrieved party, the High Court may direct a person performing within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do. The High Court can also declare that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect. If a stringent or inflexible view is taken on the question of E.C.L. that only the High Court at Islamabad is competent to take cognizance, then it would mean that no other High Court in the country can taken up any issue against the Federation on the plea that Federation is located at Islamabad. It is not the case that order passed under the Exit from Pakistan (Control) Ordinance, 1981 does not apply in the Province of Sindh or this is not the case that if the petitioner wants exit from the territorial jurisdiction of this court, he would not be stopped." (bold added)

25. It then considered the Sandalbar s case (Supra) and found as under at P.426. "

39. The learned Attorney General quoted the case of Sandalbar Enterprises (Pvt.) Ltd. which was referred to by the hon'ble Supreme Court in the case of Khurram Shahzad, (unreported case). In the case of Sandalbar Enterprises, Hon'ble Supreme Court had observed that against the assessment order passed at Karachi, petitions are filed at Peshawar or Lahore or Rawalpindi or Multan by adding a ground for impugning a notification under which particular levy is imposed and this practice was deprecated. It was held that the court has to see what is the dominant object of filing the writ petition and in the Sandalbar case the dominant object was not to pay regulatory duty assessed at Karachi so leave was refused. Even in the case of Sandalbar guiding principle was to see the dominant object. In the case in hand, the dominant object is not to challenge any levy or the assessment order passed against the petitioner but the dominant object is to get free from the clutches of E.C.L. and naturally if the petitioner wants to exit from the territorial jurisdiction of this court he will not be allowed until his name is removed from ECL. Due to petitioner s abode at Karachi, the partial cause of action is also accrued at Karachi where the respondents Nos. 3 and 4 are performing their duties while Federation of Pakistan is performing its functions all over Pakistan, hence the High Courts at Karachi and Islamabad both have concurrent jurisdiction in this matter. The objection of the learned Attorney General to the territorial jurisdiction of this court is misconceived." (bold added)

26. It would therefore seem that the test for territorial jurisdiction has now been established as the "take effect" test. In this case the Petitioner has a permanent residence in Karachi and would like to leave Pakistan via the Quaid-e- Azam International Airport at Karachi which is the most convenient for her being the closest airport to her residence. If she attempts to leave Pakistan via the Quaid-e-Azam International Airport Karachi however she will not be able to leave as her name has been placed on the ECL and the effect of the ECL Memorandum will take effect on her at Karachi at the Quaid-e-Azam International Airport Karachi in addition to any other airport in Pakistan.

27. In considering this aspect of territorial jurisdiction we must also take into account the concept of access to justice which is enshrined in our law and A.4 of the Constitution. Access to Justice means exactly what it says. Not only must a person have access to inexpensive affordable justice but also access to justice at their doorstep. If a person resides in Karachi is it fair on that person to have to travel all the way to Islamabad in order to challenge an order against them considering the cost (travel and accommodation) time and inconvenience (perhaps necessitating days off work or needing someone to look after young children) which that would cause when they can have access to justice closer to home where the order which they are subject to takes effect? We do not think it would be fair. As enumerated in numerous Judgments of the Hon'ble Supreme Court access to Justice is also a key component to the rule of law and the effective and good administration of Justice in contributing to inexpensive justice at the doorstep and enhancing due process of the law.

28. The superior Judiciary has in fact gone out of its way to ensure access to justice for its citizens. For instance, in the case of Muhammed Ismail v. Superintendent District Jail Sheikhupura (2007 CLC 128) it was observed as under at P.131 "

6. Family Courts Act, 1964 has created a special procedure for decision of family matters and C.P.C. and Evidence Act are not applicable to a case before the Family Court for the reasons that the Family Courts are given inquisition jurisdiction through special procedure provided under the Act for regulating family matters. The reason for exclusion of the provision of C.P.C. and Evidence Act is that the spouse may have easy access to justice. The Family Courts are special Tribunals which regulates and supervise the rights of the parties under the provisions of the Family Courts Act. Reliance is placed on the cases of Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 and Malik Khizar Hayat Khan Tiwana and another v. Zainab Begum and others PLD 1967 SC 402. (bold added)

29. Therefore on the current law on territorial jurisdiction which is based upon where the order "takes affect" test, the principle of access to justice and the fact that this Court regularly hears and decides cases relating to the names of citizens being placed on the ECL with such orders emanating from the Ministry of Interior based at Islamabad (without any challenge being made to the jurisdiction of this Court in such cases) we hold that this Court does have territorial jurisdiction to hear this petition which is maintainable. Turning to the question of violation of Certain Articles of the Constitution some of which are fundamental rights.

30. It had been submitted that the placement of the name of the Petitioner on the ECL was in violation of Articles 2(A), 4, 5, 9, 10(A), 14, 15, 18 and 25 of the Constitution.

31. Although all the above cited Articles are relevant for the present purposes based on the facts and circumstances of the case i.e. placement of the Petitioners name on the ECL we consider that the potential violation of A.15, 18 and 9 are the most relevant. Potential violations of Articles 4, 10(A) and 25 will be discussed later in this Judgment.

32. A.15 provides as under: "Article

15. Freedom of movement, etc. Every citizen shall have the right to remain in, and, subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof".

33. Although Article 15 on a plain reading seems to apply to movement within Pakistan from which the Petitioner is not restricted it has been held by the Superior Judiciary that it also applies to blocking someone from entering or leaving Pakistan through their name being placed on the ECL. Reliance is placed on Higher Education Commission v. Sajid Anwar (SCMR 2012 P.186 which

cited the case of Pakistan Muslim League (N) v. Federation of Pakistan (PLD 2007 SC 642) in further support of this proposition.

34. At present the Petitioner is restricted from leaving Pakistan by reason of her name being on the ECL on account of her being under trial for a criminal offense. This restriction in this particular case as the petitioner needs to travel abroad in order to earn her livelihood additionally ties in with A.18

35. A. 18 provides as under: Article

18. Freedom of trade, business or profession. Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business: Provided that nothing in this Article shall prevent

(a) the regulation of any trade or profession by licensing system; or (b) the regulation of trade, commerce or industry in the interest of free competition therein; or (c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, or any trade, business, industry or service, to the exclusion, complete or partial of other persons".

36. Based on the facts of this particular case namely the Petitioner to a certain extent needing to earn her livelihood by working abroad both Articles 15 and 18 would be relevant considerations in determining whether the Petitioner should remain on the ECL or not and if so for how long. We are also of the view that Article 9 would also be relevant.

37. Article 9 provides as under: "

9. Security of person. No person shall be deprived of life or liberty except in accordance with Law."

38. As has been held, in Chief Justice of Pakistan v. President of Pakistan (PLD 2010 SC P.61), the right to life is all encompassing and also includes a person's ability to move abroad in order to earn their livelihood and visit family as such this would usually be a relevant consideration based on the facts and circumstances of this case. Reliance also is placed on Suo Moto Case No.13 of 2009 (PLD SC 2011 P.619) which at P.464 as under: "Right to life has been explained and interpreted by the Superior Courts in a large number of cases. It includes right to livelihood, right to acquire, hold and dispose of property, and right to acquire suitable accommodation, which could not hang on to fancies of individuals in authority, and includes all those aspects of life which got to make a man's life meaningful, complete and worth living. It implies the right to food, water, decent environment, education, medical care and shelter."

39. Likewise in Mian Ayaz Anwar v. Federation of Pakistan (PLD 2010 Lahore P.230) concerning the right to travel forming a part of A.9 it was held as under after a review of relevant case law at P.241 "

26. The jurisprudence discussed above establishes that right to travel is part of human liberty as travel signifies freedom and liberty. Therefore, the right to travel outside the country is a fundamental right and an intrinsic part of right to liberty which is guaranteed under Article 9 of our Constitution.

27. Taking this further, there is little doubt in saying that the world today has shrunk due to online connectivity, internet, media and faster means of travel. People today travel across the globe to pursue higher education, to seek more challenging and rewarding employment, to carry out academic research or to discover and expand their business into new markets of the world. Travel, therefore, has become in integral part of modern life. Right to education, right to livelihood and right to carry out lawful profession are incomplete without having access and the right to travel to any part of the world and in particular to the educational or business centres of the world. To me right to travel, especially international travel, besides being right to liberty is also an integral part of right to life or right to a meaningful, challenging, satisfying and purposeful life. Therefore, I hold right to international travel to be a right to life in addition to right to liberty." (bold added)

40. If we were to consider the violation of such Articles we would in our view based on the facts and circumstances of this particular case also need to consider very deeply other factors such as the chances of the Petitioner absconding since she is facing trial for a serious offense, how long the trial was likely to take to conclude and for how long the Petitioner has already been prevented from traveling abroad etc. which deep consideration would in our view be beyond the scope of a Constitutional Petition under A.199 whereby the Court is precluded from examining in detail factual matters. These considerations would need to be weighed and carefully balanced. Though we make it clear that the strength of the evidence against the accused would not be considered since this is for the Court to do at trial or on a tentative basis during the stage of bail.

41. We are of the view however that for the reasons discussed below we do not for the purposes of determining this Petition need to undertake such a balancing act since in our view it is the legality of the Memorandum which is primarily at issue in this Petition and must be decided on its own merits before turning to violations of the Constitution if deemed necessary.

42. As such we will only very briefly and tentatively later deal with the issue of absonsion, which is not the main issue at stake in this Petition, which is the legality of the Memorandum and such issue of absconsion will in part need to be viewed by way of a tentative consideration of the Articles of the Constitution discussed above; hence the need to refer to them.

43. The primary purpose of briefly dwelling on the above Constitutional provisions is to emphasize the importance of those Articles in a citizen's life and the need for the Federal Government or any other body to act cautiously and strictly in accordance with law before making decisions which may impinge on such Articles and in particular with respect to placing a citizens name on the ECL. Turning to the notice of the Memorandum, the right to be heard and the need for speaking orders.

44. The Memorandum which restricts the Petitioner from leaving Pakistan is set out below for ease of reference: (Computer # 15934) GOVERNMENT OF PAKISTAN MINISTRY OF INTERIOR ******** No.12/208/20150ECL Islamabad, the Nov 20, 2015 MEMORANDUM Subject:- PLACEMENT OF NAME ON EXIT CONTROL LIST. It has been decided to place the name of Ms. Ayyan D/o Muhammad Hafeez (CNIC # 35201-9421952-6, 95201-9421952-6) Passport # AA 1109523 resident of Flat No.804- Creek Vista. DHA Phase VIII, Karachi, on Exit Control List under section 2 (b) of Exit from Pakistan (Control) Ordinance, 1981, read with Para 3 notification of ECL policy 2015, notified on 16.09.2015, on the recommendation of FBR, on charges of money laundering. (bold added)

2. All concerned are requested to take immediate action in the matter. Sd/- (R. Waqar Maqsood) Section Officer (ECL) Tel: 9201535 Federal Investigation Agency (HQ), Director General/&AHS, Islamabad. Dte. Gen Immigration and Passport Director General, Islamabad. Federal Investigation Agency (HQ), Project Director /PISCES, Islamabad. Federal Investigation Agency (HQ), Assistant Director /PISCES, Islamabad. Copy forwarded for information to person concerned. Under notified review mechanism any person aggrieved by this order may file a representation within fifteen days to the Federal Government for a review of the order, setting out in the representation the grounds on which he seeks the review. (bold added) Sd/- Section Officer (ECL)

45. As can be seen the Petitioner was placed on the ECL on 20-11-2015 on charges of money laundering under section 2(b) of Exit from Pakistan (Control) Ordinance, 1981, read with Para 3 notification of ECL Policy, 2015, notified on 16.09.2015, on the recommendation of the FBR. We agree with the AAG that reference in the Memorandum to section 2(b) as opposed to section 2(2) and (3) are typo's and clerical errors and will not lead in and of themselves to the Memorandum being passed without lawful authority.

46. We do however observe that section 2(1) allows the power to prohibit a person from leaving Pakistan and section 2(2) states that before making an order under section 2(1) it shall not be necessary to afford an opportunity of showing cause against the order.

47. Although the Exit from Pakistan (Control) Ordinance, 1981 is not under challenge it is to be observed that a person can be placed on the ECL without first being given a right to be heard. This may be on account of the need to move quickly in order to enable certain categories of persons as indicated in the Exit From Pakistan (Control) Rules, 2010 (the Rules) or the Policy which we will come to later leaving the Country and escaping justice but the fact that a person can be put on the ECL without notice to them and before being given a right to be heard makes it even more important that such a person who is placed on the ECL is informed immediately that he has been placed on the ECL, why he has been so placed and how he may challenge such order placing them on the ECL.

48. It is important to note that the Rules at S.3 state as under: "

3. Service of order:- An order made under subsection (1) of section 2 of the said Ordinance shall be served on the person concerned either through the local authorities or the staff of the immigration check-post or by registered post and a copy thereof shall be forwarded to the Provincial Government, the Federal Investigation Agency and the Directorate of Immigration and Passport for immediate compliance. (bold added) Provided that an omission, for any reason, to serve the order on any person in the matter aforesaid shall not be deemed to affect the powers of the authorities at an immigration check-post to prevent departure of the said person from Pakistan on the authority of the copy in their possession."

49. Likewise the Memorandum also states in small print as under: "Copy forwarded for information to person concerned. Under notified review mechanism any person aggrieved by this order may file a representation within fifteen days to the Federal Government for a review of the order, setting out in the representation the grounds on which he seeks the review".

50. It has not been disputed that the Petitioner was not served with the Memorandum either by the Ministry of Interior or under Rule 3 of the Rules despite her whereabouts being well known nor was she informed of any right which she may have to appeal the Memorandum or the reasons why she was placed on the ECL. In fact there was no way of her knowing that she was on the ECL or that she had any right of appeal which is of particular significance as her name was placed on the ECL without notice to her.

51. This could have been rectified by placing details of those on the ECL on the Ministry of Interior's website along with any appellant procedure which must be carried out in an expeditious manner as the person placed on the ECL is being penalized without the right of even being heard which is contrary to the settled principle of audi alteram partem.

52. In fact it is interesting to note that even when the Petitioner applied for the return of her passport she was not informed about her name being placed on the ECL and her ability to challenge it. Her application for the return of her passport made it absolutely clear that she intended to travel for business purposes and to see her ailing mother. Such a situation raises doubts about the bona fides of the Respondents especially as learned counsel for the Customs Collectorate state that they have only very recently applied for the Petitioner to be proceeded against on money laundering charges for reasons which it seems will become clearer later in this Judgment.

53. The failure to inform the Petitioner that she was on the ECL not only took away her right to appeal the same and denied her the right to be heard but could also have had other negative consequences for the person so affected. For example, a husband is planning to take his wife and three children on a visit abroad to the USA in order to attend his brother's daughter's wedding and he has purchased his tickets in advance and made all necessary travel arrangements (or perhaps even to perform Hajj or Umrah). He then arrives at the airport with his family and is told that he is on the ECL and cannot leave. In such a scenario both he and his family are likely to be put to a great deal of inconvenience and mental agony not to mention financial loss and personal embarrassment and shame.

54. In fact it has been held that not only must the person whose name is placed on the ECL be informed of such placement but also be informed of the reasons for such placement otherwise the appellant proceedings itself would only be illusionary. Reliance is placed on Wajid Shamas-ul Hassan v. Federation of Pakistan (PLD1997 Lahore P.617) which held at P.630. "If no reasons are assigned to an aggrieved person the remedy of review under section 3 of the Ordinance by making a representation becomes redundant. A citizen would not be able to make any effective representation in the absence of any reason or speaking order"

55. Likewise in the case of Mir Khalid Langov v. Secretary Ministry of Interior (PLD 2007 Quetta P.41) it was held at P.43 as under: "Adverting to the contention of the learned Standing Counsel regarding non-maintainability of petition without availing remedy of review available under section 3 of 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 report 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 reasons, after the action has been taken. Thus 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."

56. Section 19(A) of the Constitution provides as under: "19(A) Right of Information. Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law."

57. As was held in New Jubilee Insurance Company v. National Bank of Pakistan (1999 PLD SC 1126) there are certain norms of justice (due process) which must be observed at P.1136 "It may be observed that there are certain basic norms of justice. One of the cardinal principles of above basic norms is that one cannot be a judge in his own cause. The breach of the above cardinal principle of jurisprudence will in fact be violative of the right of "access to justice to all" which is well-recognized inviolable right enshrined in Article 4 of the Constitution. This right is equally founded in the doctrine of "due process of law". The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and the right to have an impartial Court or Tribunal. The term "due process of law" can be summarized as follows as held by this Court in the case of Aftab Shahban Mirani v. President of Pakistan (1998 SCMR 1863):-- (1) A person shall have notice of proceedings which affect his rights. (2) He shall be given reasonable opportunity to defend. (3) That the Tribunal or Court before which his right are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and (4) That it is a Court of competent jurisdiction. Above are the basic requirements of the doctrine "due process of law" which is enshrined, inter alia, in Article 4 of the Constitution. It is intrinsically linked with the right to have access to justice which is fundamental right. This right, inter alia, includes the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. A person cannot be said to have been given a fair and proper trial unless he is provided a reasonable opportunity to defend the allegation made against him." (bold added)

58. Such due process norms were largely reflected in A.4 of the Constitution but have now after the 18th Amendment to the Constitution been made a specific part of the Constitution under Article 10(A) which provides as under:

59. Articles 4, 10(A) and 25 are set out below for ease of reference: "

4. Right of individuals to be dealt with in accordance with law. etc. (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. (2) In particular

(a) no action shall be detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not require him to do." "10A. Right to fair trial. For the determination of his civil right and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process". "A.25. Equality of citizen. All citizens are equal before law and are entitled to equal protection of law. (2) There shall be no discrimination on the basis of sex. (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children."

60. It would appear that the lack of notice, the lack of reasons, the lack of a right to be heard before placing a person on the ECL may lead to a violation of Articles 4, 10(A) and 25 in addition to the inconvenience to the affectee which we have discussed in Para 53 above.

61. Therefore in order to prevent such a scenario as envisaged above and affectees such as the Petitioner having to move the Courts at first instance we hereby direct the Ministry of Interior to place on its website all those persons who are currently on the ECL and who are thereafter added to the ECL within 3 days of their addition along with details of their CNIC, address, father's name and information as to what steps may be taken by them to appeal/review such decision.

62. In addition the Ministry of Interior is further directed to ensure that each and every offence within 7 days of his name being placed on the ECL is served with a hard copy of the Memorandum together with a speaking order as to why he/she have been placed on the ECL and the procedure for appeal/review and to ensure that any such review or appeal through a speaking order is heard with a right of personal hearing and decided within 30 days of such an appeal/review being received by the Ministry of Interior so that the right of review/appeal is meaningful and effective rather than illusionary or rendered redundant.

63. Such directions we consider will to a certain extent strike a balance between the need to expeditiously stop people from leaving the country who may be wanted or on trial for very serious offenses as per Ministry of Interior ECL Policy without being heard whilst retaining the right to be heard through a review within the shortest possible time which may at least limit/reduce potential violations of Articles 4, 10(A) and 25 and other rights of due process.

64. In making such a balance we were mindful of the fact that if a person could not be immediately placed on the ECL to stop him evading justice on account of the need to give prior notice this may compel the concerned authorities to arrest the concerned person as they may fear that once on notice and awaiting a hearing to determine whether or not he should be placed on the ECL the concerned person may abscond: Thus, by arresting him this may give the concerned authorities comfort about his non absconsion. This would especially apply to cases where the concerned person was not on bail. We did not consider that it would be fair to the citizen to encourage such approach by the concerned authorities due to the importance of a person's liberty when no criminal offense had been proved against them.

65. On making our balance we considered that depriving the person of his right to travel outside Pakistan (which he may not have been intending to do anyway) without hearing for the shortest possible time would be preferable to that person being arrested and being deprived of his liberty. In fact a person can be arrested under the law without being given a prior right to be heard once an FIR is registered. Hence, there was a need to balance a person's right to movement/travel abroad and right to be heard before being placed on the ECL with the need to ensure that wanted persons did not escape justice and thereby defeat the effective administration of Justice.

66. In this case the Petitioner had not been informed that she was on the ECL and what right of appeal she may have. Thus, the AAG's submission that she had an alternate remedy is not sustainable in circumstances where the concerned person is not aware of that remedy and even otherwise due to a lack of reasons for her inclusion in the ECL cannot meaningfully challenge that inclusion.

67. Section 2(3) of the Exit from Pakistan (Control) Ordinance, 1981 provides as under: "(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 provide the grounds on which the order is proposed to be made it shall not be necessary for the Federal Government to specify such grounds."

68. The respondents have not claimed public interest under section 2(3) above, as such, before placing the Petitioner on the ECL the concerned authority had to pass a speaking order justifying the Memorandum which is a requirement under section 24(A) of the General Clauses Act, 1897. It appears that the Ministry of Interior decided to place the name of the Petitioner on the ECL based on a request sent by Model Customs Collectorate Islamabad containing a proforma, details of the offense committed by the Petitioner as per FIR and apparently information that her trial was proceeding and that she may abscond if she was not placed on the ECL.

69. There is however no speaking order on record as to why the Ministry of Interior placed the Petitioner on the ECL. In fact the Memorandum states that the Petitioner has been placed on the ECL on the recommendation of the FBR on the charges of "money laundering" however no where in the proforma or in any other information provided by the FBR to the Ministry of Interior which the respondents have placed before us has money laundering been mentioned.

70. The importance of a speaking order is to enable the Petitioner to be in a better position to challenge its reasoning which should be communicated to her at the time when she is placed on the ECL and to ascertain whether the concerned authorities have exercised their discretion in a reasonable manner through a proper application of mind or have passed a whimsical and arbitrary order which would not be sustainable in the eyes of the law.

71. No such speaking order has been placed before us as to why the Petitioner was placed on the ECL. Furthermore, the reasons given in the Memorandum as we will come to later appear to have no nexus with the information provided by the Customs authorities as alluded to earlier. With regard to the need for a speaking order we rely on Government of Pakistan v. Dada, Amir Haider Khan (PLD 1987 SC P.504) which concerned the non issue of a passport and therefore effected the ability to travel as in this case which held at P.507 "In the present case, no reasons whatsoever were given by appellant No.2 to indicate why the applicant could not be issued a passport. Such an order is not a proper order as without disclosing the reasons as to why the discretion has been exercised against the applicant it is not possible to say whether the discretion has been exercised properly or arbitrarily." "Before the High Court, no doubt, the reason for non-issuance of the passport was given namely that the respondent was an old political worker having "communist thought". This was the sole reason indicated. We do not think this reason was a reasonable ground on which a citizen's liberty to travel abroad could be curtailed. Undoubtedly, to travel abroad could be barred if it was shown that the applicant was going abroad to meet the enemies of the country and his foreign visit could endanger the security of the State or was against the public interest. Nothing of the kind has been stated and the only reason given while refusing the passport to the respondent is that he was a person of "communist thought". The world, however, is filled with "communist thought" and communist regimes are existing on more than one continent. They are part of the world spectrum and if we are to know them and understand them we must mingle with them. Keeping alive intellectual intercourse between opposing groups is important and this should not be curbed unless in so doing some interest of the State is imperiled."

72. Furthermore, in the case of Wajid Shamas ul Hassan (Supra) which extensively examined the application of the Exit From Pakistan (Control) Ordinance it was held as under at P.631. "In case the of Ch. Zahur Ilahi (supra) and Shahid Afzal v. Government of Pakistan PLD 1977 Lahore 117, it has been held that a duty is cast on every Tribunal to give reasons for their decision. The rule is that the record must show that the Tribunal did consider the questions of law and fact arising in the case before it gave its decision. It means that the order of the Tribunal must be a speaking order and it should hold out that its maker was conscious of the questions to be considered and decided and that he did apply his mind to them. It was, therefore, held that a Tribunal empowered to pass orders which may deprive a person of his liberty, property, status or livelihood or impose a penalty or cause a slur on his reputation, must give its reasons for the order. The Hon'ble Supreme Court of Pakistan has also taken the same view in the case of Dada Amir Haider Khan (supra). In the absence of any mention of reasons in the impugned orders, I should legitimately take the view that there was no reason at all available with the Federal Government to pass the impugned order. It did not bother even to file the written statement to the writ petition. Mere oral assertions on behalf of the Government apart from being extraneous and invalid are not worthy of any credit. (bold added)

73. These cases were also followed in the recent case of Wasatullah Jaffery v. Ministry of interior (PLD 2014 Sindh 28) by a Divisional Bench of this Court.

74. Since the Petitioner had no notice of the Memorandum, which was not based on a speaking order which is a requirement under section 24(A) of the General Clauses Act, 1897 and she was deprived of her right to effectively appeal the same the Memorandum is hereby set aside as being passed without lawful authority. Turning to the ECL Policy and the Legality of the Memorandum.

75. Learned AAG was of the view that the placement of the Petitioner on the ECL was justified and entirely legal based on the Memorandum which specifically stated that it had been passed pursuant to section 2(b) of the Exit from Pakistan (Control) Ordinance, 1981 read with Para 3 notification of ECL Policy, 2015 notified on 16-9-15 on recommendation of the FBR.

76. It is not denied that the Petitioner was placed on the ECL on the recommendations of the FBR. We have already considered section 2(b) or 2(2) of the Exit from Pakistan (Control) Ordinance 1981. We now need to address Para 3 of the notification of ECL Policy, 2015 notified on 16-9-15. For ease of reference the full Notification is set out below: (TO PUBLISHED IN THE EXTRAORDINARY GAZETTE OF PAKISTAN (PART-II) F. No. 1/1/2009-ECL-(PT) GOVERNMENT OF PAKSITAN MINISTRY OF INTERIOR **** Islamabad the 16th September 2015. NOTIFICATION The Federal Government is pleased to delete 4987 names from Exit Control List (ECL). Only those persons have been retained on ECL whose period of placement is less than 3 years and or those involved in Anti-State Activities/Terrorism or related to proscribed organizations, 4th schedulers and placed on the orders of superior courts.

2. In addition to above, 59603 persons placed on ECL have been removed as per the following details:- Deleted Deportees:- 17741 Placed on grounds other than Passport offences: 4750 22,491 Shifted to Passport Control List (PCL) Deportees:- 5139 Passport related offences: 4521 9660 Placed on Visa Control List (VCL) Foreigner / non-nationals to whom visa Facility is denied under Visa Control Act. 6931 Obtaining Pakistani Passport illegally 20521 59,603

3. In future following parameters shall be followed for placement on ECL, on the recommendation of Supreme Court, High Courts, tribunals having equivalent status, Defence Headquarters Intelligence agencies, NAB, FIA, Federal Government, a) Espionage, subversion, acts of terrorism, conspiracy against state, b) Any act pre-judicial to the integrity, security or Defence of Pakistan, c) Drug trafficking / Human trafficking / money laundering, d) persons belonging to proscribed organizations, e) deserter from a Defence of security force or strategic organization, f) economic crimes involving public funds and institutional frauds, g) Tax/loan default or other state liability of more than Rs.50 Million or Fraud in a public corporate entity (office holder as Director) subject to certificate by referring authority that the fraud amount is Rs. 100 Million or more subject to satisfaction by a Committee constituted for the purpose. (bold added)

4. The placement on ECL shall be regulated as per following policy guidelines:- i. In case where investigation is underway, the period of placement shall be one year, which shall be subject to reviews by a Committee in the Ministry of Interior or the recommendations of relevant department/agency. ii. In other cases, the placement period on ECL shall be three years excluding Terrorism, Espionage, Subversion, ATA 4th Schedulers, Anti-state, Narcotics and Human trafficking cases.

5. The review mechanism and appeal shall be as follows:- a. Any person aggrieved by an order of the Federal Government may prefer a representation within fifteen days to the Federal Government for a review of the order, setting out in the representation the grounds on which he seeks the review. b. The Federal Government shall decide the representation made within sixty (60) days thereof. c. A quarterly review, would be undertaken by a committee of Ministry of Interior, in consultation with referring authorities, for fresh decisions in cases where the period of placement on ECL is about to expire. The review shall be made by the following committee of Ministry of Interior: i. Additional Secretary-III ii. Joint Secretary (Law) iii. Joint Secretary, Political / FIA iv. Representative of the concerned Department / Agency. v. Section Officer (ECL) (Secretary of the Committee). Sd/- (Dr. Waqar Maqsood) Section Officer (ECL) CC to:-

1. Secretary to the President

2. Secretary to the Prime Minister.

3. Attorney General of Pakistan

4. Director to Minister

5. PS to Secretary.

77. The policy has not been challenged in this Petition and at the outset we would like to observe that it is laudable that the Ministry of Interior has set out a policy for dealing with persons who are proposed to be placed on the ECL. Such a step adds to the transparency of the process and curtails the arbitrary exercise of powers. As can be observed from Para's 1 and 2 of the Policy a conscious effort seems to have been made to closely monitor the ECL and ensure that no person is unnecessarily placed on it or allowed to remain on it for years on end without good cause. A mechanism for the review of a decision to place a person's name on the ECL has also been provided. Although of course, as discussed earlier, this mechanism of review is rendered meaningless unless the person to whom it affects is made aware of it and hence our earlier directions.

78. For the purposes of this Petition it is Para 3 of the Notification which is of most significance. According to the Memorandum the Petitioner had been placed on the ECL under section 2(b) of the Ordinance read with Para

3. Para 3 lists the offenses from 16-9-2015 which would justify a person being placed on the ECL.

79. The offenses for which the Petitioner has been charged with as per FIR relate to smuggling. In the comments filed by the Federation it is stated that; "the name of the Petitioner has been placed on ECL on 20 11-2015 under section 2 of the Exit from Pakistan (Control) Ordinance, 1981 on the recommendation of the Federal Board of Revenue due to her involvement in smuggling of foreign currency US$506,800". (bold added)

80. The learned AAG has also candidly conceded that the Petitioner has been placed on the ECL for smuggling.

81. Para 3 of the Collector of Customs comments states that the instant case against the Petitioner is of smuggling a huge amount of foreign currency abroad. At Para (b) of the grounds it is specifically stated that the Customs did not act under the provisions of the Money laundering Act since the Department is not vested with powers under the Money Laundering Act, 2010.

82. The question is therefore whether under the Ministry of Interiors own Policy it had the power to place a person on the ECL for smuggling.

83. In the case of Higher Education Commission v. Sajid Ali (Supra) at P.191 which also concerned the placement of names on the ECL it was held as under: "Admittedly, no law has been cited on basis of which the authorities of HEC could have the names of respondents placed on Watch List/Stop List (Exit Control List). Learned Single Judge of High Court having taken into consideration the relevant material has reproduced the list published by the Ministry of Interior pointing out categories of the persons whose names could be placed on the Exit Control List. It is not the case of the petitioners that the cases of respondents are covered by any of the above categories, therefore, in absence of any restriction imposed by law as it has been envisaged under Article 14 and 15 the petitioners have acted illegally and denied constitutional rights of the respondents." (bold added)

84. In the case of Habibullah Niazi v. Federation of Pakistan (PLD 2009 Kar. 242) a Divisional Bench of this Court while dealing with the placement of a citizen's name on the ECL held as under at P.246 "

6. We have carefully considered the submissions of the learned counsel and also gone through the material placed on record keeping in view the criteria laid down by the Ministry of Interior, Government of Pakistan for placing the name of a citizen of this country on ECL or otherwise. We have no doubt in our mind that in the case of the petitioner this criteria has not been met and thus the placement of the name on ECL is, prima facie, unjustified, and amounts to denial of his right guaranteed under Article 15 of the Constitution. This Court has time and again observed that any arbitrary action of the Government functionaries depriving a citizen from his legitimate rights cannot be sustained unless sufficient material is produced before the Court for examination to justify, that such action is in accordance with law.

85. A review of para 3 of the Policy reproduced above indicates that the Ministry of Interior had no such powers to place the Petitioner on the ECL as smuggling is not an offense included in para

3. The offense of smuggling is also not included in section 2 of the Rules. As such the Memorandum has been passed without lawful authority and the same is set aside. Mala fides

86. Although we have not addressed the question of mala fides in any detail as put forward by the learned counsel for the Petitioner, we observe that the Federal Board of Revenue/Customs Authorities appear now to be keen to press for a case of money laundering against the Petitioner. The reason to us seems apparent. Namely, that money laundering is covered under para 3 of the policy referred to above and would entitle the Ministry of Interior to place the Petitioners name on the ECL if satisfied with the reasoning of any such recommendation.

87. Since almost a year has elapsed since the FIR and facts of the case came to light and no case has so far been registered against the Petitioner for money laundering we would expect that the concerned authorities act in a bona fide manner strictly in accordance with the law and in particular the Constitution in this respect. Absconsion.

88. The question of absconsion had weighed heavily on our minds whilst deciding this case however we were of the view that this issue should have been pursued at the time when the Petitioner sought bail and again at the time when she sought the return of her passport rather than at this stage. We note that on neither occasion did the respondents deem it appropriate to appeal these decisions all the way to the Supreme Court in respect of either the grant of bail or the return of the passport despite knowing that the object of its return was for traveling for business and to see her ailing mother. The respondents have also so far as we are aware not sought the Petitioner s cancellation of bail on the grounds that there is a serious risk of her absconding.

89. We have also in reaching our decision in light of the question of absconsion considered the potential violations of the Constitution by the Respondents as discussed above, the fact that the trial is not likely to conclude in the near future which we understand is at the very initial stages, the fact that the Petitioner has already been prevented from leaving Pakistan for approx one year and cannot be prevented indefinitely from leaving the Country whilst on bail and having not been convicted of any crimes (in this respect a number of other citizens on the ECL have been allowed to travel abroad whilst facing trial) and that her detention in Pakistan may hinder her professional career, her need to see her ailing mother (a contention which has not been rebutted) and the principles laid down in Wajid Shamas ul Hasan's case (Supra) where it was held at P.631 as under: "Moreover, the petitioner has already been granted bail on 21.12.1996 in the said criminal case by order of the Sindh High Court, Karachi. The liberty of the petitioner could not be curtailed by mere registering a criminal case for which he may or may not be criminally liable. Mere registration of F.I.R. in a criminal case cannot be a ground for depriving a citizen of the exercise of all fundamental and other Constitutional rights. The registration of a criminal case has no nexus with and is extraneous to the object of the Statute. (bold added). Summary/conclusion. Based on the above discussion

90. We find that this Court does have the territorial jurisdiction to hear this Petition.

91. We direct the Ministry of Interior to comply with the directions as set out in Para's 61 and 62 of this Judgment which are set out below for ease of reference: (a) We hereby direct the Ministry of Interior to place on its website all those persons who are currently on the ECL and who are thereafter added to the ECL within 3 days of their addition along with details of their CNIC, address, father's name and information as to what steps may be taken by them to appeal/review such decision. (b) In addition the Ministry of Interior is further directed to ensure that each and every effectee within 7 days of his/her name being placed on the ECL is served with a hard copy of the Memorandum together with a speaking order as to why he/she have been placed on the ECL and the procedure for appeal/review and to ensure that any such review or appeal through a speaking order is heard with a right of personal hearing and decided within 30 days of such an appeal/review being received by the Ministry of Interior so that the right of review/appeal is meaningful and effective rather than illusionary or rendered redundant.

19. We also based on the facts and circumstances of this particular case, set aside and strike down the Memorandum as being passed without lawful authority and therefore being of no legal effect on the following grounds: (a) The Petitioner had no notice of the Memorandum, which was not based on a speaking order which is a requirement under section 24(A) of the General Clauses Act, 1897 and she was deprived of her right to effectively appeal the same and (b) The Memorandum was passed contrary to the ECL Policy relied upon by the Federal Government which did not include the offense of smuggling.

93. We therefore direct the Ministry of Interior to immediately remove the name of the Petitioner from the ECL and allow her to travel abroad if she so desires.

94. This Petition stands disposed of in the above terms.

95. A copy of this Judgment shall be forwarded by the Registrar of this Court to the Secretary Ministry of Interior for immediate compliance which shall report compliance with the directions contained in this Judgment through MIT II of this Court within 14 days of the announcement of this Judgment. Sd/- Judge Dated: 07-03-2016 Learned Standing Counsel verbally submits that since the Federation of Pakistan intends to assail the above judgment before Hon'ble Supreme Court of Pakistan, therefore, operation of the said judgment may be suspended for a period of fifteen (15) days from today. In the interest of justice request is allowed and the operation of the above judgment is suspended for a period of ten (10) days from today. Sd/- Acting Chief Justice Sd/- Judge MH/A-41/Sindh Petition allowed.