Mian AYAZ ANWAR vs FEDERATION OF PAKISTAN through Secretary Interior

' SYED MANSOOR ALI SHAH, J.---Brief facts are that the name of the petitioner has been placed on the Exit Control List ("ECL") vide Memorandum dated 26-11-2009 titled Placement on Exit Control List.

The name of the petitioner appears at Serial No,2 of the said Memorandum.

2. Counsel for the petitioner contends that the name of the petitioner has been placed on the ECL without notice and without giving any reasons to the petitioner. The only reason, now discernable from the reply filed by respondent No,1 is:--- "The name of the petitioner was placed on ECL on the recommendation of Finance Division/State Bank of Pakistan being loan defaulter of Bank of Punjab to the tune of Rs131.146 million."

3. The counsel submits that banking recovery suits (COS Nos.34 and 35 of 2009) have been filed by the Bank of Punjab against M/s. Delta Constructions (Pvt.) Limited and inter alia, the petitioner as a guarantor. He further adds that the petitioner and one Ms. Sabiha Enam have already deposited COIs/CODs (Certificate of Investments/Deposits) drawn on M/s. Innovative Investment Bank to the tune of MRs,149 million to BOP which have been pledged with the Bank against a total outstanding liability of Rs,131 million of the Bank.

4. Counsel for the petitioner contends that the alleged bank default does not in any way offend "public interest" which is essential for placing the name of the petitioner on Exit Control List under the provisions of Exit from Pakistan (Control) Ordinance, 1981 (Ordinance XLVI of 1981) ("Ordinance").

He further submitted that no default has taken place as the matter is sub judice before the courts and the word "default" mentioned in Policy/Criteria of Placement on ECL issued by the Interior Division, Ministry of Interior, Government of Pakistan does not apply to the case of the petitioner.

5. He further submits that under section 2 of the Ordinance, the Federal Government has to apply its own mind before placing the name of the petitioner on ECL, which means Interior Division of the Ministry of Interior, under the Rules of Business of the Federal Government. However, according to the comments filed by the respondent No,1 (Ministry of Interior) it is clearly stated in paragraph 2 that the name of the petitioner has been placed on the ECL on the recommendations of the Finance Division/State bank of Pakistan, therefore it is evident that there is no application of mind on the part of the Federal Government in placing the name of the petitioner on the ECL which is in violation of the Ordinance itself.

6. The counsel contended that the ground of review under section 3 is not available to the petitioner as no reason was provided to the petitioner. He relied upon PLD 1997 Lahore 617 and PLD 1999 Lahore 459 to support his contention. He also referred to an unreported Judgment dated 6- 12-2006 of this Court passed in W.P. No,6807/2006, wherein a person was allowed to travel in spite of the fact that a suit for recovery of loan was pending against him.

7. Referring to the CRITERIA FOR PLACING ON ECL placed on the record by the Ministry of Interior, counsel submits that these guidelines cannot take away the constitutional guarantees, especially the right of travel under Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973. He further submits that the guidelines have no foundation as under section 5 of the Ordinance the Federal Government could only notify rules. The Criteria have no legal foundation and, therefore, are not binding and cannot take away the fundamental rights of the petitioner.

8. Mr. Amir Rehman, the learned Deputy Attorney General submits that the bank default per se constitutes public interest as per section 2 of the Ordinance. He further submits that the public interest depends on the subjective evaluation and satisfaction of the Federal Government and is not, therefore, justiciable. He relies on PLD 1997 Karachi 513. He further submits that the statutory remedy for review is available to the petitioner which could have been invoked being an efficacious and effective remedy available to the petitioner and relied on PLD 2004 Lahore 478. He further submits that the Criteria for Placing on ECL has been prepared by the executive as it has the prerogative to lay down policies and guidelines in order to effectively implement the statute. He has further submitted that W.P. No,6807/2006 titled Mian Tahir Jahansir v. Federation of Pakistan is distinguishable inasmuch as in the said case the petitioner was already granted permission to travel abroad on more than 13 occasions. He finally placed reliance on 2003 YLR 3104 where the petitioner was allowed to travel subject to furnishing a guarantee.

9. Arguments heard. Record perused.

10. The petitioner is admittedly a businessman and according to the contents of the petition has to travel outside Pakistan for his business. He also holds valid travel documents and has fulfilled other documents relating to his travel abroad.

11. Let me first take up the question of alternate remedy of Review under section 3 of the Ordinance.

Section 3 envisages filing of a representation for the review of order passed under section 2(1) of the Ordinance. An Order under section 2(1) of the Ordinance means a speaking order giving reasons. The Order must also sufficiently explain the element of "public interest" that would stand offended if the prohibitory order is not passed under the said subsection. Impugned Memorandum does not constitute an Order for the purposes of review, therefore, the remedy Of review under the Ordinance is illusory and meaningless. A series of judgments have held that in the absence of reasons the statutory remedy of review cannot be invoked. Reliance is placed on Munawar Ali Sherazi v. Federation of Pakistan etc (PLD 1999 Lah. 459), Wajid Shamas-ul-Hassan v. Federation of Pakistan (PLD 1997 Lah. 617) and Sikandar Hayat Khan & 4 others v. Government of Pakistan (PLD 2003 Pesh. 102). Further, the present case involves the interpretation of fundamental rights of the petitioner and of section 2 of the Ordinance. Therefore, this writ is maintainable as the remedy of Review under section 3 of the Ordinance does not constitute an adequate remedy for the purposes of Article 199 of the Constitution in the present circumstances of the case.

12. In order to examine impugned Memorandum dated 26-11-2009 whereby the name of the petitioner has been placed on the Exit Control List and has been stopped from proceeding out of Pakistan, it is important to first assess the importance and the constitutional foundations of the right to travel outside Pakistan.

13. Historical and constitutional development of human mobility, right to movement and right to travel needs to be reviewed. In England in 1215, the right to travel was enshrined in Article 42 of the Magna Carta:--- ' It shall be lawful to any person, for the future, to go out of our kingdom, and to return, safely and securely, by land or by water, saving his allegiance to us, unless it be in time of war, for some short space, for the common good of the kingdom: excepting prisoners and outlaws, according to the laws of the land, and of the people of the nation at war against us, and Merchants who shall be treated as it is said above.

14. In U.K. It is now acknowledged by common law that the personal liberty of an Englishman includes his freedom of locomotion from any part of the realm to another and any interference with this freedom would be wrongful, unless done 'in due course of law.' (Commentary on the Constitution of India by Durga Das Basu 8th Edition 2007, Page 2793).

15. After World War II, the United Nations was established. The new international organization recognized the importance of freedom of movement through documents such as the Universal Declaration of Human Rights (1948) and: the International Covenant on Civil and Political Rights (1966). Article 13 of the Universal Declaration of Human Rights, adopted by the U.N. General Assembly, reads:---

(1) Everyone has the right to freedom of movement and residence within the borders of each State.

(2) Everyone has the right to leave any country, including his own, and to return to his country.

(Emphasis supplied).

16. Article 12 of the International Covenant on Civil and Political Rights incorporates this right into treaty law:---

(3) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

(4) Everyone shall be free to leave any country, including his own.

(5) The above-mentioned rights shall not be subject to any restrictions except those, which are provided by law, are necessary to protect national security, public order (order public), public health or morals or the rights and freedoms of others, arid are consistent with the other rights recognized in the present Covenant.

(6) No one shall be arbitrarily deprived of the right to enter his own country, (emphasis supplied).

17. In Kent v. Dulles, 357 U.S. 116 (1958), the United States Secretary of State had refused to issue a passport to an American citizen based on the suspicion that the plaintiff was going abroad to promote communism. Kent v. Dulles is the first case in which the US Supreme Court ruled that:--- ' The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without the due process of law of the Fifth Amendment... Freedom of movement across frontiers in either direction....Was a part of our heritage. Travel abroad may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.

18. Kent v. Dulles did not rule on the constitutionality of the law because the only law which Congress had passed expressly curtailing the movement of Communists across US borders had not yet become effective. Six years later the Court ruled on constitutionality in Aptheker v. Secretary of State, finding the law unconstitutional for First Amendment concerns, leaving unsettled the extent to which this liberty right to travel can be curtailed.

19. Aptheker v. Secretary of State 378 US 500 (1964) is a landmark case on the right to travel and passport restrictions. It is the first case in which the US Supreme Court considered the constitutionality of personal & restrictions on the right to travel abroad. In Aptheker, an attack on top ranking leaders of the communist party on section 6 of the Subversive Activities Control Act, 1950, which denied passport to members of an organization with the knowledge or notice that it was required to register as a communist organization. The Court per Goldberg, J struck down section 6 as unconstitutional on its face because it too broadly and indiscriminately restricts the right to travel and thereby abridges the liberty guaranteed by the Fifth Amendment. Douglas, J.

Joined the Court's opinion, adding that "The right to move freely from State to State is a privilege and an immunity of national citizenship...Absent war, I see no way to keep a citizen from travelling within or without country unless he has been convicted of a crime or there is probable cause for issuing a warrant to arrest him. Freedom of movement is the very essence of our free society, setting us apart. Like the right of assembly and the right of association, it often makes all other rights meaningful - knowing, studying, arguing, exploring, conversing, observing and even thinking." "America is of course sovereign, but sovereignty is woven in an international web that makes her one of the families of nations. The ties with all the continents are close commercially as well as culturally. Our concerns are planetary, beyond sunrise and sunsets. Citizenship implicates us in those problems and perplexities, as well as in domestic ones. We cannot exercise and enjoy citizenship in word perspective without the right to travel abroad." (Constitutional Rights and Liberties by Lockhart, Kamisar, Choper and Shiffrin, Seventh Edition, West. Pages 294-295 and Wikipedia.Org).

20. The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada and forms the first part of the Constitution Act, 1982. Section 6 of the Canadian Charter of Rights and Freedoms protects the mobility rights of Canadian citizens. By mobility rights, the section refers to the individual practice of entering and exiting Canada, and moving within its boundaries. Under the heading "Mobility Rights," section 6 reads:---

6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right

(a) to move to and take up residence in any province; and

(b) to pursue the gaining of a livelihood in any province.

(3) The rights specified in subsection (2) are subject to

(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and

(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

21. Article 11 of the West German Constitution (1949) provides:---

7. All Germans shall enjoy freedom of movement throughout the federal territory.

8. This right may be restricted only by or pursuant to a law only in cases on which an adequate basis of existence is lacking a special burden would arise to the community as a result thereof, or in which such restriction is necessary to avert an imminent danger to the existence or the free democratic basic order of the Federal or a land, to combat the danger of epidemics, to deal with natural disasters or particularly grave accidents, to protect young people from neglect or to prevent crime.

22. Supreme Court of India in Satwant's case (AIR 1967 SC 1836) held that the right to travel abroad was included in the 'guarantee of personal liberty' in Article 21, and that unless there is any valid legislation barring such right, a passport could not be refused for leaving the country on any ground (page 2818 Durga Das Basu in Commentary on the Constitution of India 8th Edition).

23. Our Supreme Court in Government of Pakistan v. Dada Amir Haider Khan (PLD 1987 SC 504) dealt with the right to travel. In Dada, Dada Amir Haider Khan an old political worker was refused passport 'due to his "Communist Thought" under the Passport Act, 1974 and the question under consideration was whether discretion vested in the public authority was exercised fairly, reasonably and in good faith. However, Nasim Hasan Shah. J writing the opinion of the court observed:--- "By reading the provisions of Articles 4, 9 and 15, it is manifest that every citizen has the liberty to go abroad and to re-enter Pakistan unless he is precluded from doing so under some law made in the public interest. The Passport Act, 1974 is one such law.... We do not think this reason was a reasonable ground on which a citizen's liberty to travel abroad could be curtailed. Undoubtedly, to travel abroad could be barred if it was shown that the applicant was going abroad to meet the enemies of the country and his foreign visit could endanger the security of the State or was against the public interest.... 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 citizens, the right to travel has become correspondingly more important."

24. In Wajid Shamas-ul-Hassan v. Federation of Pakistan (PLD 1997 Lahore 617) where the services of the High Commissioner of Pakistan in UK in 1994 employed on contract basis were terminated without any reason arid his name placed on the ECL. An F.I.R. Was registered against the said petitioner accusing him of embezzlement and misappropriation. Sind High Court has however granted bail to the petitioner in the said criminal case. In Wajid Shamas-ul-Hassan, Fakir Muhammad Khokhar, J observed:--- "The right to travel is one of the most valued and cherished fundamental human rights in all civilized societies perhaps next only in importance to the rights to life and person liberty. Denial of the right to travel, like the deprivation of the right to personal liberty, would put an end to or substantially abridge several of the other rights of the individual. Consequently, the need for the guarantee of the right to travel has been recognized from early times. Indeed, the discovery of the new world in the Fifteenth, Sixteenth and Seventeenth centuries would not have been possible but for the exercise and enjoyment of the right to travel: again, the creation of the United States of America, Canada, Australia and other countries would not have been possible but for the exercise and enjoyment of the right to migration."

25. Faqir Muhammed Khokhar. J primarily decided the case on the ground that the petitioner was condemned unheard. He held:--- "In view of the above discussion, I have no doubt in my mind that the 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, 1973. Abridgement of this fundamental right by the State through legislative or an executive measure has to be tested on the touchstone of the constitutional provisions 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.....The provisions of law are, therefore, ex-facie discriminatory and also capable of being administered in a discriminatory manner 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 the Islamic Republic of Pakistan, 1973.... I, however, refrain from expressing any final opinion in this regard for the reason that the vires of the Ordinance have not been specifically challenged in the writ petition....

However, in the present case, the impugned order dated 14-11-1996 does not contain any reasons in support thereof. It is an arbitrary and a mala fide order. The same is a nullity in the eye of the Constitution and the law....I, therefore, find that in the present case the petitioner was condemned unheard by the respondent, The impugned actions are therefore liable to be struck down on this ground also." (Emphasis supplied).

' Reliance has also been placed on Hashmat Ali Chawla v. Federation of Pakistan etc. (PLD 2003 KAR 705), Munawar All Sherazi v. Federation of Pakistan etc. (PLD 1999 Lah. 459), Babar Khan Ghauri and another v. Federation of Pakistan and others (PLD 1999 Kar. 402), Major (Retd.) Mir Mazhar Qayyum v. Federation of Pakistan (1999 YLR 111), Miss Naheed Khan v. Government of Pakistan and others (PLD 1997 Kar. 513), Abdul Hafiz Pirzada and another v. Government of Pakistan (1989 CLC 79), State of the Islamic Republic of Pakistan v. Zulfiqar Ahmad (2005 SCMR 1469), Kishwar Jabeen and another v. Federal Government of Ptakistan and others (2005 YLR 2438), Khan Muhammad Mahar v. Federation of Pakistan (PLD 2005 Kar. 252), Sikandar Hayat Khan & 4 others v. Government of Pakistan (PLD 2003 Peshawar 102) and Mehtab Ahmed v. Federation of Pakistan and 3 others (2003 CLC 246).

26. The jurisprudence discussed above establishes that right to travel is part of human liberty as travel signifies freedom and liberty. Therefore, the right to travel outside the country is a fundamental right and an intrinsic part of right to liberty which is guaranteed under Article 9 of our Constitution.

27. Taking this further, there is little doubt in saying that the world today has shrunk due to online connectivity, internet, media and faster means of travel. People today travel across the globe to pursue higher education, to seek more challenging and rewarding employment, to carry out academic research or to discover and expand their business into new markets of the world. Travel, therefore, has become an integral part of modern life. Right to education, right to livelihood and right to carry out lawful. Profession are incomplete without having access and the right to travel to any part of the world and in particular to the educational or business centres of the world. To me right to travel, especially international travel, besides being right to liberty is also an integral part of right to life or right to a meaningful, challenging, satisfying and purposeful life. Therefore, I hold right to international travel to be a right to life in addition to right to liberty. Right to life has already received a robust and a dynamic interpretation. I, with advantage, place reliance on Chief Justice of Pakistan, Mr. Justice Iftikhar Muhammad Chaudhry v. The President of Pakistan through the Secretary and others. (PLD 2010 SC 61) where Khalil ur Rehman Ramday, J. Observed:--- ' The above-mentioned Article 9 of the Constitution guarantees protection of one's life. All the judges and jurists in different ages and from different jurisdictions have been one in saying that the word "LIFE" protected and assured by various constitutions could never be understood to have been used in a limited or a restricted sense and therefore, did not mean just the vegetative and the animal life of a man or his mere existence from conception to death. This word had, in fact, to be understood in its widest and fullest context to include all such rights, amenities and facilities which were necessary and essential for the enjoyment of a free, proper, comfortable, clean and peaceful life. When confronted with concrete situations, it was held through various judgments from various countries that the right to live meant the right to live with dignity and honour and included rights such as the right to proper health-care, the right to proper food and nutrition, the right to proper clothing, the right to education, the right to shelter, the right to earn one's livelihood and even a right to a clean atmosphere and an unpolluted environment. And in some other cases, the nuisance created by municipal sewage, industrial effluents and the hazards caused by a magnetic field produced by high tension electricity wires, were found to be an interference with the enjoyment of one's right to life. In yet another case from Indian jurisdiction, even access to proper roads for people living in hilly areas was held to be an essential part of the right to life. In more than one cases from our own jurisdiction, it was also declared that since right to live in peace in a just and a fair environment was inherent in the right to life, therefore, the right of access to justice was a well recognized and an inviolable Fundamental Right enshrined in Article 9 of the Constitution and its denial, an infringement of the said right. As a necessary consequence, it was further held that since access to justice was in-conceivable and would be a mere farce and a mirage in the absence of an independent judiciary guaranteeing impartial, fair and a just adjudicatory mechanism, therefore, the demand for a judiciary which was free of executive influence and pressures; was not manipulatable and which was not a subservient judiciary, was also an integral part and an indispensable ingredient of the said Fundamental Right of access to justice and in re.

Olga Tellis and others, v. Bombay Municipal Corporation and others, (AIR 1986 SC 180), re. M.C.Mehta and another v. Union of India and others, (1986) 2 SCC 176), re. State of Maharashtra v.

Chandrabhan, (AIR 1983 SC 803), re. Air India Statutory Corporation, etc, v. United Labour Union and others, etc. (AIR 1997 SC 645), CJP CASE, re. Government of Balochistan through Additional Chief Secretary v. Azizuliah Memon and 16 others, (PLD 1993 SC 341), re. Mehram AH and others v.

Federation of Pakistan and others, (PLD 1998 SC 1445) and re. Ms. Shehla Zia and others v. Wapda, (PLD 1994 SC 693).

28. For the above interpretational expansion of the fundamental rights (Article 9) reliance is placed on Nawaz Sharif case (PLD 1993 SC 473) wherein Nasim Hasan Shah CJ held that the basic right to form or be a member of a political party conferred by Article 17(2): "comprises the right of that political party not only to form the political party, contest elections under its banner but also, after successfully contesting the elections, the right to form the goverment of its members, elected to that body, are in possession of the requisite majority. The Government of the political party so formed must implement the programme of a political party which the electorate has mandated to carry into effect. Any unlawful order which results in frustrating this activity, by removing it from office before the completion of its formal tenure would, therefore, constitute an infringement of this fundamental right."

29. In the same case Nasim Hasan Shah CJ further held: "Moreover, basic or fundamental rights of individuals which presently stand formally incorporated in the modern constitutional documents derived their lineage from and are traceable to the ancient natural law. With the passage of time and the evolution of civil society great changes occur in the political, social and economic conditions of the society. There is, therefore, the corresponding need to re-evaluate the essence and soul of the fundamental rights as originally provided in the Constitution. They are required to be construed in consonance with the changed conditions of the society and must be viewed and interpreted with the vision to the future."

30. In the words of Justice Frankfurter in Sweezy v. New Hampshire (354 US 234); "While the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed yield a new and fuller import to its meaning."

31. In Farooq Ahmed Khan Leghari v. Federation of Pakistan (PLD 1999 SC 57) Ajmal Mian CJ said: "all efforts should be made to preserve and enlarge the scope of the fundamental rights while interpreting constitutional provisions." Justice (Retd.) Fazal Karim writes in his book Judicial Review of Public Actions (Chapter 4 on interpretation of fundamental rights): "This approach to not only preserve but to so enlarge and expand the scope of the fundamental rights that even peripheral rights, or rights of penumbra i,e,, rights closely associated to the basic right which is specifically given in the Constitution, are also enforceable as basic rights, is traceable to the American case of Griswold v. Connecticut (381 US 479) in which Connecticut statute forbidding the use of contraceptive for birth control was held to have unconstitutionally intruded upon the right of marital privacy: This gave birth to the right of privacy as a penumbra of the right to liberty. Justice Douglas in this case observed: "Previous cases suggest that specific guarantees in the bill of rights have penumbras formed by emanation from those guarantees that help give them life and substance." To quote from Maneka Gandhi's case (AIR 1978. SC 597) even if a right is not specifically named it may still be a fundamental right if it is an integral part of a named fundamental right or partakes of the same basic nature and character of that fundamental right."

32. Article 4 of the constitution also echoes the same right and further buttresses the procedural due process required when dealing with fundamental rights of a citizen. Articles 4 and 9 provide that a person shall not be deprived of life or liberty save in accordance with law. "Save in accordance with law" has a substantive and a procedural part. First, the Law must substantively qualify the test of being a "Law" made in the collective public interest and for common good, fully satisfying the basic fundamentals of law and having passed the test of fundamental rights provided in the Constitution. Second, the "law" or the action thereunder must also provide for procedural due process i,e,, must abide by all the fundamental principles of law e.g., natural justice, right of hearing, lawful exercise of discretion, fairness, etc.

33. The right to life and liberty of a citizen can only be restricted or abridged if it is in "accordance with law." 'Law' here means Law that caters to larger collective public interest. Therefore, the fundamental right of an individual guaranteed under the constitution can only surrender and succumb to a lawful collective interest of the community or the society. Public Interest or collective community interest is a basket of various public interests including public morality, public order, public health, national security and foreign policy of the country besides fundamental rights of the others. Public interest is an essential ingredient of any law that proposes to take away, abridge or interfere with the fundamental rights of an individual. In Pakistan Muslim League (N) v. Federation of Pakistan (PLD 2007 SC 642) the Supreme Court of Pakistan has held:--- "It is worth mentioning that no fundamental right can be surrendered or waived by means of any agreement or an undertaking....Because "the idea behind the concept of fundamental rights is that the preservation of certain basic human rights against State interference is an indispensible condition of a free society. The paramountcy to State-made laws is the hallmark of a fundamental right. It follows that the aim of having a declaration of Fundamental Rights is that certain elementary rights of the individual such as his right to life, liberty, freedom of speech, freedom of faith and so on, should be regarded as inviolable under all conditions and that the shifting majorities in the Legislatures of the country should not be able to tamper with them. Absolute and unrestricted individual rights do not exist in any modern state and there is no such thing as absolute and uncontrolled liberty. The collective interest of the society, peace and security of the State and the maintenance of public order are of vital importance in any organized society.

Fundamental rights have no real meaning if the State itself is in danger and disorganized. If the State is in danger, the liberties of the subjects are themselves in danger. It is for these reasons of State that an equilibrium has to be maintained between the two contending interest at stake; one, the individual liberties and the positive rights of a citizen which are declared by the Constitution to be fundamental, and the other, the need to impose social control and reasonable limitations on the enjoyment of those rights in the interest of the collective good of the society."

34. With this background it is now important to review the provisions of the Ordinance to see if it passes the public interest test on both substantive and procedural due process levels.

35. It is, therefore, important to reproduce section 2 of the Exit from Pakistan (Control) Ordinance, 1981 (Ordinance XLVI of 1981): ' Power to prohibit exit from Pakistan.--(1) The Federal Government may, by order, 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.

(2) Before making an order under subsection (1), it shall not be necessary to afford an opportunity of showing cause against the order.

(3) If, while making an order under sub-section(1) it appears to the Federal Government that it will not be 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, (emphasis supplied).

36. This section fails to lay down guideline(s) for prohibiting a person. From proceeding outside Pakistan. The element of "public interest" appears for the first time in sub-section (3) of section 2 which simply states that the Federal Government will not specify the grounds on which the order prohibiting a person from going outside Pakistan has been passed if it is not in the public interest to do so. The element of public interest in the above section is to see whether the grounds of prohibition should be disclosed or not. Public Interest is not employed to test the reasons/grounds of prohibition for travelling abroad. Under the law, as it stands, the requirement of public interest need not be fulfilled while placing the name of the petitioner on the Exit Control List. This makes the constitutionality of section 2 of the Ordinance suspect as it can be used discriminatorily resulting in an arbitrary pick and choose by the Federal Government.

37. The theory of reading down is a rule of interpretation, which is resorted to by the courts where a provision, read literally, seems to offend a fundamental right, or falls outside the competence of the particular legislature. In interpreting the provision of a statute the courts presume that the legislation was intended to be inter vires and also reasonable. The rule followed is that the enactment is interpreted consistent with the presumption which imputes to the legislature an intention of limiting the direct operation of its enactment to the extent that is permissible. If certain provisions of law construed in one way would make them consistent with the constitution an another interpretation would render then unconstitutional the court would lean in favour of the former construction. (reliance is placed on Taxmann's Interpretation of Taxing Statute referring to: All Saints High School v. Govt. Of AP (AIR 1980 SC 1042), Maharao Sahib Shri Bhim Singh Ji v. Union of India (AIR 1981 SC 234); Kedar Singh v. State of Bihar (AIR 1962 SC 955). Reliance is also placed on Elahi Cotton Mills Ltd v. Federation of Pakistan (PLD 1997 SC 582) and Delhi Transport Corporation v.

D. T. C. Mazdoor Congress (AIR 1991 SC 101).

38. Constitutionality of section 2(1) of the Ordinance can be saved, if the said sub-section is read down to include the requirement of "public interest" into it. This would mean that the Federal Government would prohibit the person from traveling outside Pakistan only if it is in the "public interest" to do so. This takes care of the substantive due process in "accordance with law" under Articles 4 and 9 of the Constitution.

39. The other aspect is the procedural due process. Was the requirement of "Public Interest" satisfied by the Federal Government in this case? Evidence of "public interest" must be convincingly demonstrated before the court. Anything short of convincing evidence will not be sufficient to abridge or takeaway the fundamental rights of an individual and would defeat the procedural due process thereby rendering the decision not to be in "accordance with law" in terms of Articles 4 and 9 of the Constitution.

40. The fundamental right to travel and the element of public interest now needs to be considered in the context of bank or financial default. It is established that bank lending (finance or loan) is always against sufficient security and banks are bound under the law to ensure that their exposure is covered against security in the shape of mortgage or pledge of property in favour of the bank before a finance/loan is sanctioned. State Bank of Pakistan monitors this through enabling laws including the Prudential Regulations. Exposure of the Bank is therefore primarily covered against the assets of the borrower. The "person" of a borrower is not relevant. Death or disability or illness of an individual borrower is of little consequence for a bank and especially in a case where the principal debtor is a company and the individuals are defaulters by virtue of being guarantors, as are the facts in the present case. The entire recovery proceedings under the Financial Institutions (Recovery of Finances) Ordinance, 2001 are security specific and only under section 20 of the said law criminal proceedings can be initiated against the person of the defaulter which is not the case here.

41. Public interest can also be measured and assessed by referring to the primary law of the land under which proceedings have been initiated against the petitioner. Laws framed under the Constitution are supposed to be in the Public Interest. In this case the primary proceedings against the petitioner have been initiated under the banking law by filing a recovery suit. The primary law (i,e, the banking law) does not prohibit the movement of the petitioner. The concerned bank has not initiated any other criminal proceedings or any other proceedings, which would require the detention of the "person" of the petitioner. In Wajid Shams ul Hassan (supra) F.I.R. Was registered against the petitioner concerned who was on bail and was allowed to travel.

42. Unless there are judicial proceedings restraining the movement of the 'person' of the defaulter, being mere defaulter is no threat to the public interest. No evidence has been placed on the record that shows that the petitioner is required in a bank fraud case or that criminal proceedings have been initiated against the petitioner under the banking laws. It is therefore not established that the "person" of the petitioner is required in the public interest. There is no evidence whatsoever that could satisfy this Court that the person of the petitioner required to be detained in Pakistan for public interest or conversely that petitioner travelling abroad will undermine and compromise public interest.

43. In the present case Federal Government had to show that it is in the public interest to restrict the petitioner from leaving Pakistan or in other words if petitioner were allowed to leave Pakistan it would be against public interest. As per the comments filed by the Federal Government, the name of the petitioner has been placed on the ECL on the direction of the Finance Division/State Bank of Pakistan. No other reason is given. This I am afraid is not good enough to deprive a citizen of his fundamental rights.

44. Additionally, it is clear from the comments, that the Ministry of Interior never applied its mind before placing the name of the petitioner on the ECL as the impugned order is a result of dictation from the Finance Division/State Bank of Pakistan. Discretion exercised under dictation, without reasons, based on irrelevant facts is not lawful exercise of discretion and therefore placing the name of the petitioner on the ECL in the present case shows that he has not been dealt with in accordance with law as provided in Articles 4 and 9 of the Constitution. Not to furnish reason for the decision violates the principle of fairness, procedural propriety and natural justice besides section 24A of the General Clauses Act, 1897. The impugned Memorandum fails to meet the requirement of procedural due process.

45. Coming to the CRITERIA FOR PLACEMENT ON ECL developed by the Interior Division of the Government of Pakistan. The learned Deputy Attorney General could not refer to any provision of law under which the said criteria has been framed. Therefore, at best it is an internal document of the Ministry concerned and is no .More than an internal guideline for the concerned Ministry. As it is not under any provision of law it cannot be pressed against the petitioner, as it carries no statutory or obligatory force. As the Federal Government relies on the said Criteria to justify the impugned order and action, the said criteria also has to pass the test of public interest. The relevant portion of the Criteria is as under:--- ' The following criteria for placement of a person on ECL or otherwise has been drawn in consultation with the agencies concerned:--- a. For Placement on ECL iii. __________ iv. v. vi. Only 2-3 key/main directors of firms having more than Rs,100 million loan default/liabilities. vii. viii.

46. Once again default of more than Rs,100 million alone does not constitute a threat to public interest unless it can be established that criminal proceedings have been initiated against the borrower and he is required not to leave the country. Clause a(vi) (supra) as it stands, fails to pass the test of public interest unless further details are provided, The above Criteria to the extent of the petitioner does not constitute public interest so as to deprive the petitioner of his fundamental right to travel.

47. In view of above submissions, the placement of the name of, the petitioner on the Exit Control List (Memorandum dated 26-11-2009) is hereby declared to be unconstitutional, lacking public interest and therefore unlawful and without lawful authority and of no legal effect. For the above reasons this writ petition is allowed.