Present
Mr. Justice Bin Yamin
Mr. Justice Malik Muhammad Aqil Awan
Abdul Qayoom Khan
Son of Abdul Ghafoor Khan,
Resident of 63/1,
Khayaban-e-Ghazi, Phase-V,
D.H.A. Karachi. -------- - - - - Petitioner
Versus
1. Federation of Pakistan,
Through Secretary,
Ministry of Interior, Interior Division,
Pakistan Secretariat,
Islamabad.
2. Section Officer (E.C.L)
Ministry of Interior,
Pakistan Secretariat,
Islamabad.
3. Director General,
Federal Investigation Agency (FIA),
Headquarter G-9, Markaz,
Islamabad. -------- - - - Respondents
Date of hearing: 30.04.2009.
Petitioner. Mr. Muhammad Aqil
J U D G E M E N T
MALIK M. AQIL AWAN, J- The petitioner has filed this petition on 12.05.2008 through his advocate Mr. Muhammad Aqil with the prayer that placement of his name on Exit Control List by Respondent Nos.1 & 2 is violative of fundamental rights guaranteed under Articles 4, 9 and 25 of the Constitution of Pakistan with the consequent prayer that he may be declared to be at liberty to travel abroad on valid passport/travel documents without any restriction. He has filed along with the petition copy of CNIC in Photostat and copy of the passport in Photostat and copy of the letter dated 11.04.2005 addressed to Secretary, Ministry of Interior, Government of Pakistan, Islamabad, signed by the petitioner. We would like to reproduce relevant contents of the letter of the petitioner dated 11.04.2005 wherein he has stated that he is retired senior executive banker of 70 years of age having no political, criminal or involvement in any religious fanatic activities. He claimed to have distinction for visiting since last almost 08 years. Aqama visas to Mecca and Medina for umrah and Hajj. He claimed that he planned to perform umra on 14.07.2004 but because of his name on ECL he could not do so. He requested the Ministry of Interior to inform him about the reasons justifying the placement of his name on ECL.
2. In reply to such petition we have perused the parawise comments filed on behalf of the Respondents No.1 & 2 signed by Section Officer namely Ch. Muhammad Akram. The main reason disclosed in these comments is that name of the petitioner was placed on ECL on the recommendation of Directorate General of ISI and in support of such reason he relied upon Section 2(1) of Exit from Pakistan (Control) Ordinance. The Ministry of Interior appears to have shown its helplessness as in reply to ground 4 & 5 it is stated “that name of petitioner may be removed on the recommendation of the concerned security agency".
3. From this state of affairs we are of the firm view that the competent officers of the Ministry authorized to place the name of the any citizen of Pakistan on ECL had abdicated their jurisdiction to the intelligence agencies and has acted as merely a rubber stamp showing their helplessness to remove the name of petitioner unless such recommendation is made by the intelligence agencies as mentioned in the comments. They have even not bothered to ask about the reasons from such Agency justifying placing the name of petitioner on E.C.L. Such type of subjugated civil bureaucracy may contribute nothing for shaping Pakistan into welfare Islamic State. It is very unfortunate that State functionaries themselves are found in many cases came before us, like the present one, as violators of fundamental rights of the citizens of Pakistan.
4. We have also perused the statement dated 06.11.2008 signed by the DAG Mr. Muhammad Ashraf Khan Mughal who produced through its statement letter bearing No.4015/NSA/1/Sec-60 dated 17.06.2004 issued by Riaz Ullah Khan Chib, Brigadier, Headquarters, ISI, Islamabad, along with memorandum dated 19.06.2004. We have perused the letter dated 17.06.2004 signed by the said Brigadier, which is addressed to Additional Secretary, Ministry of Interior& Narcotics Control, Islamabad, which merely contained the request that petitioner may please be placed on ECL with immediate effect without disclosing any reason for such purpose. We have also perused memorandum dated 19.06.2004 signed by the Section Officer Rana Kaiser Ishaque, Government of Pakistan, Ministry of Interior, which reads as under:-
" It has been decided with the approval of the Interior Secretary to place the name of Abdul Qayum Khan s/o Abdul Ghafoor Khan (NIC No.521-35-223459 CNIC 42301124425851) on Exit Control List under Section 2 of Exit from Pakistan (Control) Ordinance, 1981.
2. All concerned are requested to take further action in the matter accordingly."
5. Except the aforementioned material which shows that the Interior Ministry has acted merely as a rubber stamp abdicating its jurisdiction to intelligence agencies, no material whatsoever is produced before us which could satisfy High Court about valid reasons under which the name of the petitioner has been placed on ECL.
6. We have heard the learned counsel for petitioner as well as Ms. Cookie Rawat, Standing Counsel for respondent Nos.1 & 2. Except the material we have mentioned above, Ms. Cookie Rawat, could not add anything either in the shape of material justifying such impugned action or in the shape of law which could support such action. Against that the learned counsel for the petitioner Mr. Muhammad Aqil, has relied upon the case law reported in PLD 2003 Karachi 705, PLD 1999 Karachi 177, PLD 1997 Lahore 617 and SBLR 2006 Sindh 145.
7. In the case of Hashmat Ali Chawla vs. Federation of Pakistan reported in PLD 2003 Karachi 705, Division Bench of this Court had laid down the principle for taking action against any citizen of Pakistan under Exit from Pakistan (Control) Ordinance (XLVI of 1981). The Division Bench has stated in very clear terms that every citizen has the right that no action detrimental to his life and liberty shall be taken except in accordance with law and every citizen interalia has the right to enter and move freely throughout Pakistan and his right to go abroad is subject to restriction imposed by the law in the public interest under the Ordinance of 1981. While interpreting Section 2 both the Judges has taken the view that it empowers the Federal Government to prohibit any person or class of persons from proceeding from Pakistan to a destination outside Pakistan. Sub-clause 2 further indicates that before making any order under sub-section (1), it is not necessary to afford an opportunity to any person against whom such an order has been passed to show cause against the order. The said section further indicates that the ground on the basis of which order is proposed to be made, may not be specified in public interest, if it so appears to the Federal Government. Section 3 of the Ordinance provides for a right of review within 15 days of the making of the order under Section 2 by providing a right to an aggrieved person to make representation to the Federal Government setting out in the representation, the grounds on which he seeks the review. But if the very order passed against the affectee is bereft of reasons then the remedy of review becomes redundant and looses its efficacy and in such circumstances the aggrieved person can directly approach to the High Court under Article 199 of the Constitution. It was further held that it is within the power of the Federal Government to determine whether it was necessary to prohibit the person from proceeding to any destination outside Pakistan in the public interest but the same is subject to judicial review on the grounds to see whether such order was extraneous and had no relevance to the public interest. The learned D.B. has further classified the powers of the government by holding that travel abroad may be barred if it was shown that the person was going abroad to meet the enemies of the country and his foreign visit would endanger the security of the state and was against the public interest. Since no incriminating material was available with the authorities against the person tending to show that he was involved in any serious kind of nefarious activities or acting prejudicial to the security and solidarity of the state, order of the authorities could not be sustained in law in as much as not a single instance of involvement of person in any serious crime was shown to exist. In this case the reasons for placing the name of the person on ECL was on account of his illegal construction in violation of the approved plan which is subject to condonation/regularization under the law and such reason could not be reasonable ground on which the liberty of citizen to travel abroad could be curtailed. The last and important proposition laid down in the case of Hashmat Ali Chawla is that Federal Government, except in case of public interest, was bound to disclose the grounds for making order prohibiting the person from proceeding abroad. Since no reason in the present case has been assigned, therefore, the order was groundless. Non-furnishing of the ground for the impugned action was sufficient to declare the same without lawful authority.
8. Case of Hashmat Ali Chawla applies on all fours on the present case in as much as it has not been pleaded either in the parawise comments or in the order itself that bringing the name of the petitioner on exit control list was in public interest, therefore, in the light of the aforementioned decided case the order becomes completely groundless and as such not sustainable in law. The learned counsel has relied upon a case of Wajid Shams-ul-Hassan vs. Federation of Pakistan reported in PLD 1997 Lahore 617 wherein more or less the same proposition of law had been laid down with the rider that right of a citizen to travel
abroad is a fundamental right guaranteed by Articles 2-A, 4, 9, 15
and 25 of the Constitution of Islamic Republic of Pakistan. Since in
case of Wajid Shamsul Hassan it was found that the impugned order did not contain any reason in support thereof, therefore, it was held to be a arbitrary and malafide order. The third judgment in the line relied
upon by the learned counsel is the case of Saleem Akhter vs. Federation of Pakistan reported in PLD 1999 Karachi 177, this judgment also proceeds on the line of Chawla’s case in as much as their lordships of D.B. has held that no incriminating material against the petitioner was available with the Government tending to show that he was involved in any serious kind of nefarious activities or acting prejudicial to the security and solidarity of the state nor it was pointed out that he was going abroad to hatch any conspiracy against the national interest or his visit to endanger the security or interest or contrary to public interest. It was further held although the power purportedly vested in the Federal government was apparently unfettered and unrestricted yet the same must be exercised fairly, reasonably, justly and in accordance with law and the constitution. Order of the Federal government was accordingly set-aside.
9. In view of the aforementioned legal position, as stated above the Federal Government through its Ministry of Interior has merely acted as rubber stamp to the direction of the intelligence agencies and despite giving chance to them no incriminating material of any sort was produced or alleged against the petitioner, therefore, we declare that the memorandum dated 19.06.2004 based on the recommendation dated 17.06.2004 is absolutely void ab-initio, and without lawful authority. The petition is accordingly allowed in the terms of its prayer and henceforth petitioner would be at liberty to travel abroad for any lawful purpose on valid traveling documents.
These are our detailed reasons for the short order dated 30.04.2009.
Dated .05.2009. J U D G E
J U D G E
Nadeem