P L D 2010 Karachi 394 (PLP)

MUSHIR ALAM, ACTG. C.J.

Petitioners have impugned placement of their name on the Exit Control List (hereinafter abbreviated as ECL) vide memorandum dated 28-1-2010.

1. According to the learned counsel, the petitioner No.1, a professional engineer, is settled in Canada and frequently travel to Pakistan to look after and regulate his business interest through Petitioners Nos.2 and

3. It is the case of the petitioners that during course of his business in Pakistan some dispute arose between the petitioner No.1 and his business partners, which led to lodgment of an F.I.R. No.456/2008 for an alleged offence under section 406 P.P.C., at Police Station A-Division Okara. However the dispute was amicably settled and the case was allowed to be disposed of on 16-3-2010. It- was contended by the learned counsel that the alleged private complaint does not call for placing the name of the petitioners on ECL. It is further the case of the petitioner that despite representation dated 14-4-2010 no reply has been received, hence this petition.

2. Learned counsel for the petitioner has also placed on record order passed by the learned Additional Session Judge, Okara in Crime No.456/08 wherein the petitioner was initially admitted to pre-arrest bail, however, while disposing of bail application vide order dated 16-3-2010 statement of DDPP was recorded to the effect that petitioner was found innocent in the investigation.

3. In the comments filed by the respondent, it is disclosed that "name of the petitioner was placed on ECL on 28-1-2010 on the submission of application along with copies of F.I.R./Legal documents by Ch. Humanyun Rashid, Advocate".

4. Learned D.A.-G, though contends that Federal Government has unfetter authority to place name of any person on ECL in public interest. He fairly concedes that the private dispute between the parties irrespective of the fact that such private disputes even if pending in Court do not call for placing the name of any person on ECL unless of course it is in public interest, which depends on the nature of case.

5. We have heard the arguments and so also perused the impugned memorandum, whereby names of the petitioners were placed on ECL. No order was produced nor it is asserted in the comments that any order has been passed before placing the name of petitioners on ECL. Section 2, which empowers the Federal Government to put restrictions on right to travel abroad of a person, reads as follow:-

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.

6. On bare perusal of the above, it appears that Federal Government has wide authority to place name of any person on ECL. Such authority is not arbitrary but qualified firstly under Article 15 of the Constitution, 1973, which makes it obligatory on the Federal Government to exercise such authority in the "public interest". It means that the authority conferred under subsection (1) of section 2 ibid, is to be exercised not with charity but with utmost care and circumspection, as the exercise of authority impinges the fundamental right of movement of a citizen as guaranteed under Article 15 of the Constitution of Pakistan, 1973. To regulate and structure the discretion of the authority to place name of any person on ECL, "Criteria for placement on ECL" has been framed by the Interior Division, Government of Pakistan, and reproduced verbatim in the case of Habibullah Niaza v. Federation of Pakistan through Federal Secretary, Ministry of Interior, and 2 others PLD 2009 Karachi 243, and so also relied upon in the recent judgment in the case of Zia Mohiuddin v. Additional Director (Immigration) F.I.A., PLD 2010 Lah. 128 and Ayez Anwar v. Federation of Pakistan PLD 2010 Lah.

250. This Court in another unreported case of Majid Bashir v. Federation of Pakistan, decided on 16-7-2009 while relying on the Criteria for Placement on ECL as reproduced in the reported judgment of Habibullah Niaza supra, observed as follows: (7) The policy document referred and reproduced in the above cited judgment prescribe eight criteria for placement of a person on ECL, which inter alia provide that a person who(i)Either personally or as director of a firm/company is involved in any matter of corruption (ii) By misuse or abuse public office is involved in economic crime, causing loss to the Government fund or property. (iii) Is hardened criminal involved in heinous crime. (iv) Key/main director of a firm involved in tax evasion. (v) Key/main director of a firm involved bank default of over Rs.100 million. (vi) Name is recommended by the Supreme Court, High Court or Banking Court. (vii) Involved in cases of fraud against foreign Banks and reputable companies, with significant foreign investment and (viii) Special grounds as may be furnished by the concerned Home Departments. (8) The policy documents also provide category of involvement that do not warrant enlistment of a name of a person on ECL, which include persons (a) involved in a private dispute where government interest is not at stake. (b) Persons involved in crime like murder and dacoity etc. unless so recommended by Home Department concerned. (c) Persons representing foreign investment in business. (d) Ladies or children undergoing education and are namesake directors. (e) Deserters from duty of civil/armed forces. (f) cases/request for placement on ECL, without full identifying particular, detailed reasons/grounds (as specified in the pro forma) may not be considered/ entertained.

7. Petitioner's case do not fall in the negative list as referred in Mara. 7 of the case referred to above. His case falls in the category of cases as described in clause (a) of the policy documents as reproduced in para 8 above viz. a private dispute where government interest is not involved.

8. Any legislation that intrudes or impinges any of the fundamental rights of a' person, is to be strictly construed (one may refer to Abdul Qudoos Bilhari v. Chief Commissioner of Karachi PLD 1956 Kar 533). Exit from Pakistan Control Ordinance 1981, is an extraordinary legislation that put fetters on the fundamental constitutional right and freedom of person to travel abroad. Examining the scheme of Constitution and assorted fundamental rights as guaranteed, in Chapter 1 of the Constitution, 1973 many rights enshrined in the Constitution are intertwined; abridgment of one right may also infringe several other rights of a person. As for instance, abridgment on right to movement or travel abroad may also infringe right to life and liberty (Article 9), right to dignity (Article 14), right to lawful trade, business and profession, (Article 18). In the instant case putting fetters on petitioners right to travel abroad also infringes their right to life and liberty, right to dignity and right to pursue lawful trade, business and profession. Article 15 of the Constitution, 1973 guarantees 'right of movement' provides that such right to travel abroad could only be restricted in public interest in accordance with law. The law on the subject is 'Exit from Pakistan (Control) Ordinance, 1981. Under subsection (1) of section 2 of the Ordinance, 1981, Federal Government is empowered to prevent, by "an order", any person or class of persons to travel abroad irrespective of fact that such person or class of persons possesses valid travel documents. Article 15 of the Constitution, 1973 has made exercise of such authority subservient to public interest and in accordance with law. Indeed to meet the exigency extraordinary authority is conferred on the Federal Government to pass a restraint order, without affording an opportunity of being heard to a person, it does not by any stretch of imagination imply that a person whose fundamental right to movement has been impinged, should not be informed of such order no sooner it is made.

9. Invariably in all cases on the subject it is noted that such persons are taken by surprise, and invariably in all most all the reported cases on the subject, it appears that persons are informed at the immigration counter that they cannot travel being on restrictive list and or are offloaded unceremoniously causing grave humiliation, causing severe mental torture, anguish beside causing financial loss and loss of opportunity which at time may not be compensated in terms of money. All such humiliation, mental torture, anguish, financial loss or loss of opportunity that may be inflicted upon a person by inflicting brazen and reckless restrain on right to travel could easily be avoided by the Federal Government by using required due care, prudence and acting strictly in accordance with law. The restraint order indeed may be passed ex parte, section 24-A of the General Clauses Act 1897, has been made it obligatory for any person or authority to exercise such power "reasonably, fairly, justly and for the advancement of purpose of the enactment" it further necessitates "to give reasons, for making the order or as the case may be for issuing the direction and shall provide a copy of the order or, as the case may be, the directions to the person affected prejudicially". Only exception to withhold grounds or reason of restraint order is provided under subsection (3) of section 2 of Ordinance 1981 in a situation where it appears to the Federal Government that it will not be in the public interest to specify the grounds, on which the restraint order is proposed to be made.

10. Unless, the copy of restraint order is provided, the moment it is passed, to the person whose right to travel is curtailed, he cannot invoke. valuable right of review conferred under section 3 of the Ordinance 1981 within 15 days of such order, non-providing copy of restraint order is not only violative right to be treated in accordance with law as per Article 4 of the Constitution and Article 15 of the Constitution but now is also violative of one of the very important substantive constitutional and fundamental right of fair trial, which though recognized by precedent law has been recently embedded (Article 10-A) in the Constitution, 1973 through Eighteenth Constitutional Amendment. In the instant case no defence of subsection (3) of section 2 has been taken, even otherwise merely producing "Memorandum, Placement on Exit Control List" placing names of the petitioners on ECL is in negation of the very intent and purpose of Ordinance 1981, restrain order must precede "Memorandum, Placement on Exit Control List". The moment it is shown that "Memorandum, Placement on Exit Control List" has been issued without any speaking and reasoned restraint order, such impugned action is denuded of lawful authority and cannot be sustained in the eyes of law.

11. Examining the case of the petitioners, in the light of above, it is evident that their names were placed on ECL merely on the legal notice from the business rivals informing the respondents of lodging of some F.I.R. against the petitioner No.1 in relation of private business dispute. It seems that the respondent Authority, without application of mind in a usual careless and mechanical manner issued impugned memorandum placing petitioner's name on ECL. Placing name of any person on ECL without speaking order and without serving a copy of such order no sooner it is passed, on the person who may be prejudicially affected would be violative of Article 4, and now Article 10-A of the Constitution of Pakistan, sections 2 and 3 of Ordinance 1981 read with section 24-A of the General Clauses Act, 1897 and cannot be sustained in the eyes of law.

12. In this view of the matter, impugned order/office memorandum dated 28-1-2010, placing name of the petitioners on ECL is struck down. Petition stands allowed with cost. S. A.K./F-15/K Petition accepted.