Sohail Latif son of Abdul Latif and two other petitioners through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 assails the order dated 16-2-2008 of respondent No,1 (Federation of Pakistan) on the behest of respondent No,2 (National Accountability Bureau) of placing the names of the petitioners on the Exit Control List.
2. The brief facts of the case are that vide letters No,F.7 (277)/2008/R/Addl. Dir E.C.L, dated 6-2-2008 and 7-2-2008 from respondent No,2 to respondent No,1, the names of the petitioners have been conveyed to be placed on Exit Control list on the ground that investigation/prosecution against the petitioners is in progress. The allegations levelled by respondents No,2 against each of the petitioners were as under:-- "He, as part of management of the company in connivance with others awarded contracts in violation of the rules and regulations and without approval of the Board of OGDCL, causing huge loss to the exchequer."
3. The contract for Dehydration plant was awarded on the recommendation of Chairman OGDCL in favour of Petrosin in November, 1996 and this matter was investigated. Reference No,87/2003 was filed by the Chairman NAB against the following persons:-- (i). Jaffar Mohamand, Ex-Executive Director (Procurement & Sales), OGDC, Islamabad.
(ii). Khalid Rahim Ex-Acting Manager (Production), OGDC, Islamabad.
(iii). Raheel J. Qureshi, Ex-Acting Manager (Production & Facilities), OGDC, Islamabad.
(iv). Khalid Su Islamabad. Bhani, Ex-Acting Manager (Processing), OGDC, #TBS Islamabad. #TBE #TBS Najmul Has san, Ex-Principal Officer (Uch), OGDC, Islamabad.
(vii) Mr. Muha mmad Ishaque, Ex-Chief (Internal Audit), OGDC, #TBE #TBS Islamabad. #TBE #TBS Cap (R.) Nazir Ahmed, Ex-Chief (Procurement), OGDC, #TBE (viii). Mr. Muzaffar-ul-Hassan, Assistant Manager (Finance), OGDC, Islamabad.
(ix). Cap. (R.) Naseer Ahmed, Ex-Secretary, Ministry of Petroleum & Natural Resources, Islamabad (x). Shahid Ahmed, Ex-Director General, (Petroleum Concessions), Exh-Director, Board of Directors, Ministry of Petroleum & Natural Resources, Islamabad.
4. All the aforesaid accused were tried and acquitted by the Judge, Accountability Court No, IV, Rawalpindi/Islamabad vide his order dated 1-6-2007. Messrs Petrosin was placed in Column No, 2 of the report under section 173 Cr.P.C.
5. Notice had been issued to respondents. Messrs Nadeem-ud-Din Khan, Deputy Attorney General and Khalid Tipu, Special Prosecutor-General of NAB appeared before this Court on 9-4-2008 and sought time to seek instructions. The adjournment was opposed by the learned counsel for the petitioner on the ground that wife of petitioner No,1 has undergone Neuro Surgery in Singapore. The right of a citizen to move freely in the country and go abroad cannot be curtailed. So in the interest of justice, one last opportunity was granted to respondents to obtain instructions.
6. Today, the learned D.A.-G. As well as Special Prosecutors for NAB do not have any objection if one time opportunity as granted to petitioners to visit abroad subject to furnishing sufficient security.
7. When confronted with this position, learned counsel for the petitioners does not agree to it and states that names of the petitioners have been placed in Exit Control List without any reason. The discretion has not been exercised in a legal manner. There was no material before respondents to deprive the petitioners from their right of free movement and to curtail their liberty. The facts of the case have not been correctly narrated in the impugned order. He contends that the order of placing the names of the petitioners on the Exit Control List, through the impugned order be declared to have been passed without lawful authority. In support of his contention he adds that inclusion of the names of the petitioner in the ECL through the impugned letter dated 16-2-2008 has been done at the behest and instructions of NAB/respondent No,2 in order to harass and intimidate the petitioners. Further contends that no reason or ground has been communicated to the petitioner as well as no good or valid ground exists. The impugned order is unwarranted, unfounded and against the fundamental rights guaranteed by the Constitution of Islamic Republic of Pakistan, 1973. Adds that the impugned order is based on wrong facts. The Exit from Pakistan (Control) Ordinance, 1981, empowers the Federal Government of 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, but respondent No,1 has included the names of the petitioners in the ECL on the instructions of respondent No,2, which has no lawful authority to do so.
8. Learned counsel for respondents contend that the investigation against the petitioners is in progress and there was material available with them to place names of petitioners in the Exit Control List.
9. We have heard learned counsel for the parties and with their assistance, the record has been perused by us.
10. Through two separated letters dated 6-2-2008 and 7-2-2008, Abdullah Siddique. Lt. Col. (R.), the Additional Director, (ECL) of National Accountability Bureau, Islamabad asked Mr. Imtiaz Qazi, Additional Secretary, Ministry of Interior Islamabad to place names of the petitioners on the Exit Control List for the following allegation or reason, given against them:- "He, as part of management of the company, in connivance with others awarded contracts in violation of the rules and regulations and without approval of the Board of OGDCL, causing huge loss to the exchequer. The amount involved is approx. US $ 15 millions."
' On the basis of the aforesaid letters, the Directorate General Immigration and Passports, Government of Pakistan had decided with the approval of Interior Secretary to place the names of petitioners and four other on the Exit Control List.
11. Now, section 2 of The Exit from Pakistan, (Control) Ordinance, 1981, empowers the Federal Government to 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. Subsection (3) of section 2 says that, "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."
12. The learned Deputy Attorney-General as well as learned Special Prosecutors of NAB have conceded that petitioners did not award any contract of Petrosin. It has also been admitted by them that Reference filed against the above said officers/accused including Cap. (R.) Naseer Ahmed, Ex-Secretary, Minister of Petroleum and Natural Resources, Islamabad were acquitted.
13. The question whether the right to travel abroad is part of the fundamental right of liberty, has engaged the attention of the apex Court, of the country as well as this Court. In Government of Pakistan and another v. Dada ,Amir Haider Khan (PLD 1987 SC 504), at page 509, it was held as under:-- "Moreover a citizen's right to travel abroad is an important aspect of the citizen's liberty and is closely related to the rights of free speech and association. As nations in the world become politically and commercially more dependent upon one and another and foreign policy decisions have come to have greater impact upon the lives of the citizen, the right to travel has become correspondingly more important. Though travel, by private citizens as well as by journalists and Governmental officials, information necessary to the making of informed decision can be obtained.
And, under our constitutional system ultimate responsibility for the making of informed decisions rests in the hands of the peoples."
14. Learned counsel for respondents have raised two objections. Firstly, that the discretion lies with the Federal Government to put the name of any citizen on the Exit Control List without disclosing any ground and secondly, the remedy of review under section 3 of the Ordinance by making a representation in available to the aggrieved persons.. Both the questions have been answered by a celebrated judgment of his lordship Faqir Muhammad Khokhar, now the honourable Judge of the Supreme Court of Pakistan, in the case of Wajid Shamsul Hassan v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad (PLD 1997 Lahore 617), it was held as under:-- "In view of the above discussion, I have no doubt in my mind that the right of a citizen travel abroad is a fundamental right guaranteed by Articles 2-A, 4,9, 15 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. Abridgement of this fundamental right by the State through the legislative or an executive measure has to be tested on the touchstone of the constitutional provisions. The life, liberty or property of a citizen cannot be taken away or adversely affected except in accordance with law. However, the "law", I mean, a valid law which does not come in conflict with any of the provisions of the Constitution and should not be a law which is ex facie discriminatory. Section 2 of the Exit from Pakistan (Control) Ordinance, 1981, does not provide any guidelines or reasonable classification for taking the action against a person prohibiting him from travelling abroad. Even the valuable rights of citizens of being heard and of knowing the reasons for such an action have been denied. The provisions of law are therefore, ex facie discriminatory as also capable of being administered In a discriminatory manner. If no reasons are assigned to an aggrieved person the remedy of review under section 3 of the Ordinance by making a representation beconies redundant. A citizen would not be in a position to make any effective representation in the absence of any reason or a speaking order. Prima facie, it may be difficult to sustain the validity of the Ordinance on the touchstone of Articles 2A, 4, 9 and 25 of the Constitution of Islamig-Republic of Pakistan, 1973."
' The Hon'ble Supreme Court in the case reported as Superintendent of Police v. Abubakar (1972 SCMR 154) has ruled as follows:-- "that the true point which arises, in the circumstances of this case, really is whether while refusing to issue the passport to the respondent, the discretion vested in the authorities to issue or refuse to issue a passport was properly exercised? It is now established law that a discretion vested in a public authority must be exercised fairly, reasonably and in good faith."
15. This Court has further fortified its view by a judgment of the Lahore High Court reported in Malik Mushtaq Awan v. Government of Pakistan and others (PLD 1999 Lahore 372), wherein the question of right to go abroad and placement of petitioner's name (therein) on the Exit Control List was discussed in depth and the impugned order, whereby his name was brought on the Exit Control List, was set aside.
16. Viewing above, relying on the above referred judgment i,e, Government of Pakistan and another v. Dada Amir Haider Khan (PLD 1987 SC 504), and Wajid Shamsul Hassan v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad (PLD 1997 Lahore 617), this petition is allowed and the impugned action of respondent No,1 (Federation of Pakistan) regarding placing the names of the petitioners in the Exit Control List is declared to have been taken without lawful authority and of no legal effect. Petitioner's name be, now removed from the Exit Control List.
17. Disposed of.