The petitioner clairaing himself to be a prominent businessman and a law abiding citizen of this country has preferred this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the prayer of seeking declaration that placement of his name, on the Exit Control List (ECL) is arbitrary, without any lawful authority and of no legal effect.
2. The petitioner has averred that all his family members are settled in U.S.A. and he, being suffering from various ailments, is also undertaking his treatment in U.S.A. since January, 1999, as per advise of his Doctor, wherefrom he has returned to Pakistan on 13-8-2007. The petitioner when learnt about the placement of his name on ECL made correspondence with the respondents but to no avail. Further case of the petitioner is that the placement of his name on ECL is in violation of terms of Gazette of Pakistan Extraordinary dated 31-12-1981 Ordinance No, XLVI of 1981, which lays down the criteria for this purpose.
3. On notice of this petition, parawise comments have been filed by Respondents Nos, 1 and 2 and Respondent No, 3 separately. In their comments, Respondents Nos, 1 and 2 have admitted that on 27-6-1996 name of the petitioner was placed on ECL on the recommendation of the Corporate Law Authority (now Securities and Exchange Commission of Pakistan), as there were allegations against him about his involvement in the misappropriation of Mudarba funds and Certificate holders money. The Respondent No, 3 in their comments have confirmed the fact that the name of the petitioner was placed on ECL under the direction of the Corporate Law Authority.
4. Mr. Z.U. Mujahid, learned counsel for the petitioner, has made reference to the pending proceedings against the petitioner before the Banking Court/Mudarba Tribunal to show that even on the basis of charge framed against the petitioner, it is not covered by the criteria laid down by the Interior Division, Government of Pakistan for placement of name on ECL. He further contended that the conduct of the petitioner is so fair and honest that he himself returned from U.S.A. to Pakistan and immediately appeared before the Banking Court and got interim pre-arrest bail, which shows that he has no intention to avoid proceedings before the Banking Court, in the criminal case registered against him. He made reference to Paragraph 6 of the petition to show that uptil filing of the petition the petitioner has missed four appointments with his doctors/consultants in U.S.A. due to enlistment of his name on ECL. He, therefore, urged that the liberty of the petitioner as guaranteed under Article 15 of the Constitution cannot be curtailed by placing his name on ECL for a long period of over 12 years.
5. Mr. Aamir Raza Naqvi, learned D.A.-G. has candidly stated that placement of name of the petitioner on ECL for such a long period seems to be somewhat unreasonable. Further in response to query made by this Court vide its orders dated 22-9-2008 and 16-10-2008 learned D.A.-G. has filed a statement on behalf of the Ministry of Interior, Government of Pakistan, confirming the authenticity of documents placed on record by learned counsel for the petitioner, which shows the criteria laid down by the Government of Pakistan for the purpose of placing the name of a citizen on ECL for convenience sake, contents of this document are reproduced as under:- GOVERNMENT OF PAKISTAN INTERIOR DIVISION SUBJECT: CRITERIA FOR PLACEMENT ON ECL.
The following criteria for placement of a person of ECL, or otherwise has been drawn in consultation with the agencies concerned:
(a) For Placement of ECL (0 Persons involved in mass corruption and misuse of power/authority causing loss to the Government funds/property.
(ii) Government employee involved in economic crime where large Government funds have been embezzled or institutional frauds committed.
(iii)Hardened criminals involved in acts of terrorism/conspiracy, heinous crimes and threatening national security.
(iv)Key directors of firms having tax default/liabilities of Rs,10 million or above.
(v)Only 2.3 key/main directors of firms having more than Rs,100 million loan default/liabilities.
(vi)Names of persons forwarded by the Registrars of the High Courts/Supreme Court of Pakistan or Banking Courts only.
(vii) Drug traffickere.
(b) Not to place on ECL.
(i) Names of persons involved in private disputes where Government interest is not at stake, except cases of fraud against foreign banks and reputable companies with significant foreign investment.
(ii) Private individuals involved in crime like murder and dacoity etc. unless special grounds are furnished by the Home Departments concerned.
(iii) Names of Directors who are representing foreign investment in business.
(iv) Names of ladies/children undergoing education who are appearing as directors merely due to their family relationship with major shareholders.
(v) Deserters from duty of civil/armed forces.
(vi) Cases/requests for placement on ECL, without full identifying particulars, detailed reasons/grounds [as specified in the pro forma] may not be considered/ entertained.
(c) Policy for retention/deletion in respect of the following categories of persons already placed on ECL Points Proposed policy Who have gone abroad/ abscondedTheir names may be retained on ECL to apprehend them on return In judicial custodySince they can be released on bail by the Courts any time, their names should be retained on ECL Convicted Names of such persons should be retained on ECL till conviction attains finality.
6. We have carefully considered the submissions of the learned counsel and also gone through the material placed on record keeping in view the criteria laid down by the Ministry of Interior, Government of Pakistan for placing the name of a citizen of this country on ECL or otherwise. We have no doubt in our mind that in the case of the petitioner this criteria has not been met and thus the placement of his name on ECL is, prima facie, unjustified, and amounts to denial of his right guaranteed under Article 15 of the Constitution. This Court has time and again observed that any arbitrary action of the Government functionaries depriving a citizen from his legitimate rights cannot be sustained unless sufficient material is produced before the Court for examination to justify, that such, action is in accordance with law. To fortify this view reference can be made to the following cases:--
(a) Government of Pakistan and another v. DADA Amin' Haider Khan PLD 1987 SC 504.
(b) Wajid Shamsul Hasan v. Federation of Pakistan PLD 1997 Lah. 617.
(c) Khan Muhammad Mehar v; Federation of Pakistan PLD 2005 Kar. 252.
(d) Hashmat Ali Chawla v. Federation of Pakistan PLD 2007 Kar. 705.
7. For the foregoing reasons, this Petition is allowed in the terms that the respondents are directed to immediately remove the name of the petitioner from the ECL.