IN THE HIGH COURT OF SINDH AT KARACHI
C.P. NO. D-924 of 2009.
MR. JUSTICE GULZAR AHMED, AND
MR. JUSTICE IRFAN SAADAT KHAN
Respondent-ANF: through Mr. S. Ashfaq Hussain Rizvi, advocate.
IRFAN SAADAT KHAN, J:- The petitioner has filed this petition inter alia seeking directions to the respondents to delete his name from the Exit Control List ("ECL") and to declare the Memorandum bearing No.12/216/2007-ECL dated August 25, 2007, issued by respondent No.1, placing his name in the ECL, to be mala fide, illegal, unlawful and without any lawful authority and of no legal effect.
2. The brief facts of the case are that the petitioner, an MBA, is the sole proprietor of M/s. Raja Enterprises – dealing in export of seafood and is a frequent traveler abroad in connection with his business activities. The petitioner is also an income tax payee. Since, the petitioner is a frequent traveler in connection with his business as well as to visit his parents, who are settled in the United Kingdom, he has filed the present petition seeking inter alia the above prayer.
3. According to learned counsel Mr. Amir Mansoob Qureshi, previously the petitioner acted as an informer to the Anti Narcotic Force for some time and helped the government in arresting drug dealers and drug traffickers in a number of cases and recovery of huge quantity of contraband items. But, when due to some personal reasons he refused to act in such capacity, the ANF authorities turned against him and started causing harassment to him. It is alleged that the ANF authorities also threatened him with involvement in false cases. In this regard the petitioner filed C.P. No.S-310/07 which was disposed of vide judgment dated 9.8.2007 through which he came to know that he has been involved in two cases, being FIR No.2/2005 of Police Station ANF, Clifton and FIR No.367/06 of Police Station Boat Basin, respectively under sections 6/9(c) and 6/9(b) of the CNS Act. After obtaining bail after arrest in Crime No.2/2005 and bail before arrest in Crime No.367/2006, the petitioner filed an application under section 265-K, Cr.P.C. in Special Case No.6/2005, pertaining to FIR No.2/2005, which was allowed vide order dated 07.07.2008 and the petitioner was acquitted. The ANF authorities filed Criminal Appeal No.13/2009 challenging the above order before this Court. This criminal appeal, however, was dismissed vide order dated 24.2.2009 and the acquittal order of the trial Court was maintained. Against these concurrent orders the ANF has filed a civil petition for leave to appeal which is pending. The petitioner also filed an application under section 265-K, Cr.P.C. in Special Case No.170/2006 pertaining to FIR No.367/2006 of Police Station Boat Basin, which was also allowed by acquitting the petitioner vide order dated 14.10.2009. However, as per petitioner's counsel, no appeal so far has been filed against this order. The learned counsel also submits that the petitioner proposes to proceed to Saudi Arabia for performing Hajj with his family and in this regard has also placed before us certain documents including deposit slip of National Bank of Pakistan, Haj Application, etc.
4. Learned counsel for the petitioner further states that now when the petitioner has been acquitted in both the cases in which he was falsely involved and no restraining order has been obtained from the Hon'ble Supreme Court in the pending CPLA, placement of the name of the petitioner on the ECL is in violation of the Fundamental Rights guaranteed to every citizen of Pakistan under Articles 4, 9, 14, 15 and 25 of the Constitution of Isalmic Republic of Pakistan, 1973. Therefore, he prays that the petition may be allowed and the name of the petitioner may be removed from the ECL and he may be allowed to travel abroad.
5. In support of his contentions the learned counsel relied on the following reported judgments:
1. Saleem Akhtar v. Federation of Pakistan and another (PLD 1999 Kar. 177),
2. Hashmat Ali Chawla v. Federation of Pakistan and others (PLD 2003 Kar. 705),
3. Khan Muhammad Mahar v. Federation of Pakistan (PLD 2005 Kar. 252),
4. Abdul Qayum Khan v. Federal Government of Pakistan and others (PLD 2009 Kar. 361),
5. Kishwar Jabeen v. Federation of Pakistan and others (SBLR 2005 Sindh 703), and
6. Mirza Ashfaq Beg v. Federation of Pakistan and another (2005 MLD 1698).
6. Syed Ashfaq Hussain Rizvi, learned counsel appearing on behalf of ANF, submitted that against the acquittal order of the petitioner passed in Special Case No.6//2005 and affirmed by this Court in Criminal Appeal No.13 of 2009, a CPLA has been filed by the ANF before the Hon'ble Supreme Court, which is pending decision. In para 7 of the comments filed on behalf of ANF it is stated that "ANF has filed CPLA before the Honourable Supreme Court against impugned judgment." He also submits that so far as the decision of the trial Court dated 4.10.2009 in respect of FIR No.367/06 is concerned, there is every possibility that the department might file a criminal appeal before this Court against the same. Learned counsel also submitted, but without much vehemence, that the petitioner being an ex-informer of the ANF, in fact, had relations with international drug dealers/barons. He prayed that the decision on this petition may be deferred till decision of the appeal pending before the apex Court.
7. Ms. Cookie Rawat, learned standing counsel, appearing on behalf of the State, adopted the arguments of Mr. S. Ashfaq Hussain Rizvi, advocate but stated that the name of the petitioner was put on the ECL as two criminal cases were pending against him before the Special Court. According to her, since CPLA is pending against the petitioner before the Hon'ble Supreme Court, therefore, this petition is premature. She further submitted that the name of the petitioner may not be removed from the ECL as there is strong apprehension that once he goes out of the Country he might not come back. In the end she prayed that this petition may be dismissed.
8. We have heard the learned counsel for the parties and have gone through the record and the case law cited before us.
9. We have observed that the name of the petitioner was placed on the ECL on the ground that certain criminal cases were pending against him vide Memorandum No.12/216/2007-ECL dated August 25, 2007 under section 2 of Exit from Pakistan (Control) Ordinance 1981. As evident from the facts narrated above, the petitioner has been acquitted in both the cases lodged against him. Against one of the acquittal orders, passed in Special Case No.6/05, a criminal appeal was filed before this Court which was dismissed and against such order of dismissal a civil petition for leave to appeal has been filed before the Hon'ble Supreme Court. However, so far no appeal has been filed against the other order of acquittal passed in Special Case No.170/06. Thus, the only case now pending against the present petitioner is the CPLA before the Hon'ble Supreme Court. Now, we will proceed to examine the impact of such pendency on the fate of this petition.
10. In the case of Mirza Ashfaq Beg (supra), the name of the petitioner (Mirza Ashfaq Beg) was placed on ECL and counsel for NAB stated that "deletion of the petitioner's name from ECL is being opposed by his client on account of the fact that the petition for leave to appeal before the Honourbale Supreme Court is still pending. (emphasis supplied).
11. It would be seen that the petition in hand is identical to the above reported case inasmuch as in both the cases removal of the name of the petitioner from the ECL was resisted on the sole ground that a CPLA is pending before the Hon'ble Supreme Court. The learned Division Bench in this regard held as under:
"We regret we find no force in the above ground urged. Admittedly the order of acquittal passed by this Court has taken effect for all legal purposes and has not been suspended or modified by the Hon'ble Supreme Court. Even an interim restraint on the petitioner's right to travel abroad has not been obtained."
12. Thus, the contention of the learned counsel for ANF that the name of the petitioner cannot be removed from ECL on the ground that a CPLA is pending before the Hon'ble Supreme Court is not tenable.
13. In the case of Abdul Qayyum Khan, the learned Bench observed that in the Memorandum issued by the Ministry of Interior no reason whatsoever was given for placing the name of the petitioner in the ECL except acting as a rubber stamp abdicating its jurisdiction to intelligence agencies. The learned Bench thereafter declared the said Memorandum to be absolutely void, ab-initio and without lawful authority. In the instant petition also we have found that in the impugned Memorandum, dated 25.08.2007, issued by the Ministry of Interior no reason has been given by the said Ministry regarding placing the name of the petitioner in the ECL, except observing that “it has been decided to place the name of the following persons on ECL”.
14. Now we come to the question of the right of the petitioner to travel abroad. By reading the provisions of Articles 4, 9 and 15 of the Constitution it is clear that every citizen has the liberty to go abroad and to enter Pakistan unless he is precluded from doing so under some law made in the public interest. In this regard it would be advantageous to discuss the case law cited by the learned counsel for the petitioner in this regard.
15. In the case of Saleem Akhtar (supra), Rana Bhagwan Das, J (as he then was), held as under:
It appears that no action detrimental to the life, liberty, body, reputation or property of any person can be taken except in due course of law and the Constitution guarantees that no person shall be deprived of life or liberty save in accordance with law. Article 15 reproduced hereinabove guarantees to every citizen his right to remain in, enter and move freely throughout Pakistan. Such right to enter the country if he is leaving it or he has gone abroad and is allowed to step out and step in, the country, may be subject to restriction imposed by law in the public interest. In the case in hand there is nothing on record and indeed none is pointed by the learned State Counsel to reflect whether the petitioner was going abroad to hatch any conspiracy against the national interest or his visit abroad could endanger the security of the State or was contrary to public interest."
16. In the case of Hashmat Ali Chawla (supra), the learned Bench, comprising of Mr. Shabbir Ahmed and one of us namely Mr. Gulzar Ahmed J.J. observed as under:
"It is well-settled that every citizen shall have the right to remain in, enter and move freely throughout Pakistan and to reside and settle in any part thereof but this is subject to any reasonable restriction. Indeed the power purportedly vested in the federal Government is apparently unfettered and unrestricted, it is sell-settled that the discretion vested in Executive must be exercised fairly, reasonably, justly and in accordance with law and the Constitution. In absence of any incriminating material available with the respondent-Government against the petitioner 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, impugned order cannot be sustained in law inasmuch as not a single instance of involvement of the petitioner in any serious crime is shown to exist. The reasons for placing the name of the petitioner was on account of his illegal construction in violation of the approved plan, which is subject to condonation/regularization under the law i.e. Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002."
17. In the case of Kishwar Jabeen (supra), it was held that "The petitioners cannot be deprived from their constitutional rights for indefinite period and no action detrimental to life and liberty of a citizen can be taken except in accordance with law. In the same judgment the above quoted portion from the case of Hashmat Ali Chawla (supra) was quoted with approval.
18. In the case of Khan Muhammad Mahar (supra), referring to the cases relied upon by the learned counsel for the petitioner, it was held as under:
"In the cases referred by the learned counsel for petitioner, precisely, it has been held by the superior Courts that liberty of every citizen of this country is safeguarded/guaranteed under Articles 4, 9, 14 and 15 of the Constitution, thus, it is to be jealously safeguarded and any action without sufficient cause depriving/curtailing the liberty of a citizen is not warranted by law and liable to be struck down. Further, it has been held that an arbitrary action under section 2 of the Exit from Pakistan (Control) Ordinance 1981, is not immune from scrutiny by this Court in exercise of its powers under Article 199 of the Constitution.
6. In the instant case after going through the whole material placed on record we are clear in our mind that the action of the respondents in placing the name of the petitioner in the Exit Control List is wholly arbitrary, unjust, without any valid reason and violative of his fundamental rights."
19. In view of the above discussion we are of the considered view that after the acquittal of the petitioner in the two cases lodged against him there was no occasion to keep his name on the ECL solely on the ground that a CPLA is pending against one of the order of acquittal and, consequently, in view of the judgments cited before us and discussed above, there is no justification for depriving the petitioner from his this fundamental right to leave and enter the Country unless otherwise barred.
20. For the foregoing reasons, this petition was allowed by us by short order dated 29.10.2009 and these are the reasons for the same. The respondents are directed to remove the name of the petitioner from ECL and allow him to travel abroad for any lawful purpose on valid travel documents.
21. There shall however be no order as to cost.
Karachi, the ____ November, 2009. Judge