1. KHILJI ARIF HUSSAIN, J.---The petitioners filed this petition seeking declaration that the Memorandum bearing No.12/116 of 2001-ECL dated 29-5-2001, placing the names of the petitioners on Exit Control List (`ECL') has been issued without lawful authority.
2. ' Brief facts of the case are that the petitioner No.1 joined Prudential Commercial Bank Ltd. (`PCBL')as a Director vide Board of Director's meeting held on 11-11-2000 and remained on the Board till 24-8- 2001, when she received information from the State Bank of Pakistan that she has been removed as a Director. The petitioner No.2 was appointed as a Senior Vice-President/Company Secretary in the PCBL on 1-3-2002 and dispensed with from his service on 11-8-2001, some time in the year 2001 shares of PCBL were purchased by Messrs Saudi Pak Commercial Bank Ltd. (`SPCBL') and they became majority share-holder, whereafter the name of the Bank was changed from Prudential Commercial Bank Ltd. To Saudi Pak Commercial Bank Ltd. The petitioner No.1 served the Bank for a period of nine months only. On 20-10-2002, petitioner No. (sic) was arrested by the Assistant Director, CBC, FIA, Karachi in Reference No.33 of 2001 on the warrant of arrest issued by Chairman, NAB and was produced before the Accountability Court No.1 Sindh, Karachi on 22-10-2001. The petitioner No.2 remained in jail for about more than 2-1/2 months and on 5-1-2002, the Prosecutor, FIA filed an application before the Accountability Court No.1, Sindh, Karachi mentioning therein that no act of omission and commission was found during the investigation against petitioner No.2 and that the final report submitted to the Chairman, NAB for release of petitioner No.2 was accepted by him. The application under section 169, Cr.P.C., filed on behalf of the prosecution, was granted by the Accountability Court No.
1. The petitioners through their counsel made representations to respondent No.1 for deletion of their names from the ECL and further asked to furnish reasons and grounds for placing their names on the ECL, The respondent No.1 vide letter dated 23-12-2002 informed that the name of petitioner No.1 was placed on ECL on the recommendation of State Bank of Pakistan along with other Directors of PCBL till completion of the investigation.
3. ' Heard Mr. Rasheed A. Razvi, learned counsel for the petitioner, Mr. S. Zaki Muhammad, Deputy Attorney General and Mr. Sajid Latif, Advocate, holding brief for Mr. Muhammad Anwar Tariq, Deputy Prosecutor General, NAB.
4. ' Mr. Rasheed A. Razvi, learned counsel for the petitioner, argued that no case has been registered against the petitioners from last about three years except that petitioner No.2 was nominated in a case which was subsequently withdrawn against him. The learned Advocate further argued that even the allegation, on which basis names of the petitioners were placed on the ECL, has not been disclosed to them. The learned counsel in support of his arguments heavily relied on the principle laid down in the case of Hashmat Ali Chawla v. Federation of Pakistan and others PLD 2003 Karachi 705 and Sikandar Hayat Khan and 4 others v. Government of Pakistan and 5 others PLD .2003 Peshawar 102.
5. ' On the other hand, the learned Deputy Attorney General in reply argued that the matter pertaining to the PCBL and Prudential Investment Co. Ltd. Is under investigation of NAB Authorities and till the time the said investigation is not concluded, it is not advisable to delete the names of the petitioners from the ECL. The learned Advocate argued that huge funds have been misappropriated by the said Bank and the general public has been deprived of their investment and Government exchequer has also suffered loss on account of it. The learned counsel for the respondent argued that the petitioner No.1 is the daughter of Rasheedullah Yagoob, the then Chairman of the Bank, who has absconded and petitioner No.2 is son-in-law of the said Rasheedullah Yaqoob.
6. ' We have taken into consideration respective arguments advanced by the learned counsel for the parties and gone through the record. It appears from the record that some proceedings were initiated by the NAB and PCBL and at one point of time petitioner No.2 was arrested, but subsequently on an application filed by the Prosecutor, FIA, with due approval of Chairman, NAB, the case was dropped against him under section 169, Cr.P.C. The learned counsel for the respondent admit that no case has been registered against the petitioners so far. The alleged investigation was started sometime in the year 2001 and till date admittedly no case has been registered against the petitioners. 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. The learned counsel for the respondent failed to demonstrate any cogent reason for taken a contrary view to the view taken in the case of Hashmat Ali Chawla (supra) the judgment delivered by a Division Bench of this Court. It was held in the case of Hashmat Ali Chawla (supra) that:-- "It is now well-settled that every citizen shall have the right to remain in enter and move freely throughout Pakistan and 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 well-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 Plot and Construction of Buildings) Ordinance, 2002.
7. ' We do not think this reason was a reasonable ground on which a citizen's liberty to travel abroad could be curtailed. No doubt, to travel abroad could be barred if it was shown that the petitioner was going abroad to meet the enemies of the country and his foreign visit could endanger the security of the State and was against the public interest.
8. ' The next question in the instant case is whether the impugned order is within the authority conferred by section 2(3) of the Ordinance. The order purportedly to be made in the public interest, therefore, its validity must be judged on the principle of fair, just and reasonableness.
9. ' It was not disputed by the learned Federal Counsel that in view of subsection (3) read with section 3 that except in case of , public interest, the Federal Government is bound to disclose the grounds for making orders prohibiting the persons from proceeding abroad. In the present case, no reason has been assigned, in other words, the order is groundless. The non-furnishing of the grounds for the impugned action is sufficient ground to declare it without lawful authority."
10. ' In another case of Sikandar Hayat Khan (supra), a Division Bench of Peshawar High Court held as under:- "The comprehensive reading of section 2 of the Ordinance with the well-recognized and established principal of audi alteram partem, section 8(2) of the Passports Act, 1974 and section 24-A of the General Clauses Act would reveal that in normal course before taking an action or passing an order under section 2(2) the Authority acting on behalf of Federal Government shall afford an opportunity of hearing to the person concerned but only in a case where disclosure of reasons/ grounds for the action is found against public interest it shall not be communicated. If an action taken under the Ordinance is questioned by the person concerned the Federal Government shall satisfy the Court regarding bona fide of the action and the protection of public interest failing which the impugned action could be competently struck down being ultra vires of the Constitution and prevailing law."
11. The respondent has failed to inform the petitioner about the reasons of the grounds placing their names on exit control list and further failed to bring on record document that any case has been registered against the petitioners.
12. ' For the foregoing reasons, the petition is allowed as prayed. These are the reasons of our short order dated 5-5-2004.