2012 PLP 186 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.

These petitions have been filed for leave to appeal against the judgment dated 20-1-2010 passed by Lahore High Court, Rawalpindi Bench in Writ Petitions Nos. 3680 and 3681 of 2009.

2. The respondents were selected for Master Studies under the Scheme M.S. Level Training in Korea University/Industry for the award of scholarship. They completed their education and returned back to Pakistan but despite waiting for considerable period they could not get a suitable job as such, in order to try their luck outside the country they were about to leave Islamabad Airport for Korea where they had been studying. It is stated that one of them, namely, Sajid Anwar had some assurance of getting the job whereas Shereen Khan had not succeeded in getting the job outside the country. Both of them were off-loaded from the plane by FIA at Islamabad Airport and were kept in FIA lockup for several hours. Reason disclosed to them for offering such treatment was that their names had been put on the watch list by the FIA at the behest of Higher Education Commission.

3. At this juncture it is not out of context to note that on getting scholarship for Masters programme in a South Korean University they had entered into an agreement relevant clauses therefrom are reproduced herein below:-- "

5. During two years of Master Program the Scholar shall not undertake employment whether paid or otherwise without approval of the HEC. After completion of MS Programme, the six months training at Korean Industries is not the subject of this clause." "8. after the completion of master programme (in approved field) and on the job training in one of the leading Korean Industry. The Scholar shall serve public sector universities/R&D Organization in Pakistan for two years." "

10. If an awardee after completion of masters programme, gets a Ph.D. Scholarship from sources other than HEC, he may do so, getting approval from HEC, subject to the undertaking given by him in writing and HEC prescribed format, that after completion of doctorate Programme, he/she will return to Pakistan and serve any University/R&D Organization for 2 years."

4. As the respondents were not permitted to leave the country in pursuance of the directions for the reason that their names were put on the watch list/Exit Control List, they approached the Lahore High Court, Rawalpindi Bench by filing writ petitions praying therein for following relief:-- CP 574 of 2010 "In view of the above circumstances, it is, therefore, most respectfully prayed that the instant writ petition may kindly be accepted and the acts of the respondents vis-a-vis putting name of petitioner on the watch list/Exit control list, restraining him from travelling abroad and confiscating his passport and I.D. may kindly be declared as void, without lawful authority and of no legal effect. It is further prayed that the petitioners' name be ordered to be removed from Watch List/Exit Control list immediately and the petitioner may kindly be allowed to proceed abroad for his PHD education. The agreement between the petitioner and respondent No.3 may also be declared as null and void, his I.D., passport and ticket be ordered to be handed over to him." CP 575 of 2010 "In view of the above circumstances, it is, therefore, most respectfully prayed that the instant writ petition may kindly be accepted and the acts of the respondents vis-a-vis putting name of petitioner on the watch list/Exit control list, restraining him from travelling abroad is void, without lawful authority and of no legal effect. It is further prayed that the petitioners' name be ordered to be removed from Watch List/Exit Control list immediately and the petitioner may kindly be allowed to proceed abroad for his PHD education. The agreement between the petitioner and respondent No.3 may also be declared as null & void, and the passport and ticket of the petitioner may also graciously be ordered to hand over to him. Any other relief which this Hon'ble court deems fit and proper may also be awarded" Learned Single Bench of the High Court examined the case of the respondents and confined itself only to the extent of first part of the prayer, reproduced herein above and on having taken into consideration section 2(1) of the Exit from Pakistan (Control) Ordinance, 1981 concluded as under:-- (A) A reference to the Exit from Pakistan (Control) Ordinance, 1981, would be necessary to see in what circumstances, the authorities have the power to stop a person from leaving the country. Section 2(1) of the Ordinance empowers the Federal Government to prohibit any person from proceeding abroad. As per list published by the Ministry of Interior, the following categories of persons can be placed in Exit Control List. (a) Persons involved in mass corruption and misuse of power/authority causing loss to the Government funds/property. (b) Government employees involved in economic crime where large government funds have been embezzled or institutional funds committed. (c) Hardened criminals involved in acts of terrorism/conspiracy, heinous crimes and threatening natural security. (d) Key directors of firms having tax default/liabilities of Rs.10 Million or more. (e) Only 2-3 Key directors of firms having more than Rs.100 Million loan default/liabilities. (f) Names of persons if recommended by the Registrar, High Court/Supreme Court of Pakistan and Banking Courts only." (B) So far as the facts of the present case are concerned, the inclusion of the petitioner's name in the Watch List/Stop List was done secretively as the petitioner was never served with any notice that his name was included in the Watch List/Stop List let along providing him an opportunity of hearing before placing him in the Watch List/Stop List. On these grounds alone, the acts of Ministry of Interior/FIA culminating in the off loading of the petitioner from the plane is without unlawful authority. (C) The subject list includes drug smugglers, persons associated with terrorism or engaged in human smuggling or trafficking or travellers or deportees with fake documents, but no where dos the list provide for preventing students from proceeding abroad even when they have acted in breach of their contract with HEC or are leaving the country in breach of the condition, which obliges them to stay in Pakistan for a certain period of time. (D) It may be stated here that along with the Deed of Agreement, the petitioner also submitted a bond to the HEC on the prescribed pro forma, which was to the effect that in case the petitioner failed to serve in Pakistan as directed by HEC for a period of two years, the money spent on the petitioner by HEC for a period of two years, the money spent on the petitioner by HEC for his education in Korea, would become payable. As such even it, if is presumed that the petitioner acted in breach of agreement with HEC the maximum that the HEC could do so was to enforce the bond to recover the amount spent on him by availing the civil remedy of damages. However, HEC had no right or authority to take or initiate any coercive or criminal proceedings against the petitioner by arresting him and preventing him from leaving Pakistan. It is also to be kept in view that admittedly, the petitioner could not find a job in Pakistan nor one was found for him by HEC. In the circumstances, HEC could not reasonable have any objection to let the petitioner go abroad to improve his qualifications by acquiring a Ph.D degree instead of sitting idle in Pakistan. (E) Therefore, the acts of placement of the petitioner in the Watch List/Exit Control List to disallow the petitioner to proceed to South Korea are declared to be unlawful and without lawful authority. The respondents are directed to remove the name of the petitioner from the Watch List/Stop and to allow him to proceed abroad without any let or hindrance and are also directed to return to the petitioner his CNIC, passport and air ticket without any delay."

5. Learned counsel for petitioner contends that above order has been passed by the High Court without hearing the petitioners HEC. However, on our queries in view of the findings of the High Court, relevant portions wherefrom have been reproduced hereinabove, whether he could argue the case before us to substantiate the action of HEC restraining them from leaving Pakistan by putting their names on Exit Control List, he candidly conceded that he is not in a position to support the action, therefore, permission be accorded to him to withdraw the petitions. Normally, we would have conceded to this request but in view of the facts and circumstances noted herein above and the treatment which has been meted out by the FIA authorities at the instance of HEC, we have decided not to grant permission to withdraw the petitions and have decided to proceed with the same on merits.

6. It is to be observed that in pursuance of an agreement supported by a bond, the competent authority, who awarded scholarship to respondents for higher education outside the country subject to the conditions laid down therein, at the best it could have enforced the agreement or bond but had no jurisdiction to deny fundamental right of the respondents enshrined in Articles 14 and 15 of the Constitution which are reproduced herein below:-- "14. (1) The dignity of man and, subject to law, the privacy of home, shall be inviolable. (2) No person shall be subjected to torture for the purpose of extracting evidence.

15. 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."

7. So far as Article 15 is concerned this Court had an occasion to examine the same in the case of Pakistan Muslim League (N) through Kh. Asif and others v. Federation of Pakistan through Secretary, Ministry of Interior and others (PLD 2007 SC 642) relevant para therefrom is reproduced herein below:-- "Be that as it may, the petitioners being citizens of Pakistan can return to their country as no restraint can be placed on a Pakistani citizen to return to his country and the undertaking given by the petitioners had no Constitutional legitimacy as such the petitioners cannot be prohibited from coming to Pakistan. Every citizen has undeniable right vested in him as conferred under Article 15 of the Constitution to go abroad and return back to Pakistan without any hindrance and restraint but it must be kept in view that it is neither absolute nor unqualified as is indicative from the language employed in Article 15 of the Constitution as a specific mention has been made "subject to any reasonable restriction imposed by law in the public interest", meaning thereby that such right is subject to the relevant law which is in existence at relevant time but "an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Therefore, action taken upon no ground at all or without proper application of the mind of an authority would also not qualify as an action in accordance with law and would, therefore, have to be struck down as being taken in an unlawful manner." (PLD 1973 SC 49, PLD 1969 SC 14, 21 DLR [SC]1). It is well settled by now that every citizen has an inalienable right to enjoy the protection of law and to be treated in accordance with law and in particular no action detrimental to the life, liberty, body reputation or property of any person shall be taken except in accordance with law. No action detrimental to such fundamental Rights can be initiated except in due course of law. In this regard we are fortified by the dictum laid down in the following authorities:- (PLD 1990 Lah. 432 = NLR 1990 AC 812, 1990 MLD 1468 = PLJ 1990 Lah. 380 = 1990 ALD 442, NLR 1990 Civ. 485, PLD 1989 Lah. 175, 1988 CLC 545 = PLJ 1988 Lah. 189 = NLR 1988 civ. 203 = 1988 Law Notes 247, 1985 PCr.LJ 360)"

8. No doubt aforesaid fundamental rights are subject to law and reasonable restrictions imposed by law. 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 Articles 14 and 15 the petitioners have acted illegally and denied constitutional rights of the respondents. However, if at all they had any grievance, as it has been observed hereinabove, they could have, before Court of law, enforced the agreement of the bond or claim any relief under the civil litigation, but no criminal action torturing the educated persons, in this case, the respondents to have them off loaded at their instance and allegedly keep them in lockup for several hours, could be justified. Surprisingly, despite knowing that their action is illegal, these petitions have been filed for relief to grant leave to appeal.

9. The circumstances obtaining in the matter reflect, ex facie, that the respondents have been disgraced, degraded and their fundamental rights have been denied to them, therefore, the department HEC is directed to immediately withdraw the letters sent to the FIA and initiate action against the officials/officers who are responsible for issuance of such letters to the FIA authorities and communicate the result of the same to the Registrar of this Court for our perusal in chambers within a period of four weeks. Needless to observe that so far as the respondents are concerned they shall be free to take any criminal or civil action independently for the mental agony, torture, etc., if so advised and desired by them. In these circumstances, these petitions are dismissed and leave declined. M.H./H-12/SC Petition dismisse