' SHAHID ANWAR BAJWA, J.---With the consent of learned counsel this constitutional petition was finally heard at Katcha Peshi stage and is being decided accordingly. Vide Letter No,12/85/2009- ECL, dated April 25, 2009 Ministry of Interior, Government of Pakistan placed name of petitioner No,2 on the Exit Control List under section 2 of Exit from Pakistan (Control) Ordinance, 1.981. Petitioners Nos.2 to 5 were Directors qf petitioner No,1 which is a Private Limited Company and which had obtained certain financial facility from respondent No,3 which is a Banking Company. Civil Suit No,B-104 of 2008 for recovery of an amount in excess of Rs,145 million has been filed by respondent No,3 against the petitioners and that suit is still pending in this Court. It is stated in the petition that the respondent No,3 Bank also filed Criminal Complaint No,2 of 2009 against the petitioner alleging that they were guilty of removing heavy machinery under hypothecation. The petitioners Nos.2 and 3 filed Criminal Miscellaneous Application No,66 of 2009 for quashment of the Criminal Complaint.
A single Judge of this Court on April 10, 2009 suspended bailable warrants issued against the petitioners. Nazir was appointed as Commissioner to inspect Plot Nos.96 and 97, Korangi Industrial Area, Karachi and submit his report after comparing the machinery, if any, available at the premises with the inventory prepared and deposited with the Bank.
2. Learned counsel for the petitioners submitted that although the petitioners' names were placed on ECL on April 25, 2009 but no information or communication was sent to the petitioners either by the Ministry of Interior or by respondent No,3 Bank in this regard and the petitioners came to know for the first time when they were offloaded from a flight. Learned counsel submitted that a suit has been filed and the liability of the petitioners has not yet been determined. He further submitted that in Criminal Miscellaneous Application proceedings have been suspended but the miscellaneous application is still pending. Learned counsel referred to the comments filed on behalf of respondent No,3 where it is stated that recovery suit and Criminal Complaint have only been filed to recover outstanding amount that the petitioners owed towards the Bank. Learned counsel for the petitioner referred to a download from the website of Interior Division, where the criteria for placing a name on the ECL has been specified as under:- "(1) Exit from Pakistan (Control) Ordinance, 1981 empowers the Federal Government to prohibit from proceeding abroad. Ordinarily following categories of persons are placed.
(a) Persons involved in mass corruption and misuse of power/authority qua government funds/property.
(b) Government employees involved in economic crime where large government funds been embezzled or institutional frauds committed.
(c) Hardened criminals involved in acts of terrorism/conspiracy, heinous crimes, national security.
(d) Key directors of firms having tax default/liabilities of Rs,10 million or more.
(e) Only 203 key directors of firms having more than Rs,100 million loan default.
(f) Names of persons if recommended by the Registrar, High Courts/State Bank of Pakistan and Banking Courts only.
(g) Drug traffickers.
(2) The On-Line System is operational at the Ministry linked with international airport Lahore, Peshawar, Islamabad and Faisalabad.
(3) Any person aggrieved by the order of Federal Government regarding placement on ECL, can under the law, file a Review Petition giving justifications for review and personal hearing with the competent authority.
(4) ECL is reviewed periodically to assess the need for further retention of a person otherwise."
3. Learned counsel for the petitioners further submitted that the Legislature has not provided in Banking Institutions (Recovery of Finances) Ordinance, 2001 that the name of the defaulter be placed on. ECL. Learned counsel relied upon Re-Passport Act, 1974, PLD 1989 FSC 39; Ashfaq Yousuf Tola v. Federation of Pakistan through Secretary, Ministry of Interior and Narcotics Control, Islamabad, PLD 2006 Karachi 193, Wajid Shams-ul-Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad, PLD 1997 Lahore 617, Mirza Muhammad Iqbal Baig v.
Federation of Pakistan and others, 2006 YLR 2797 and Sohail Latif and 2 others v. Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and 2 others, PLD 2008 Lahore 341.
4. Mr. Malik Khushhal Khan, learned counsel for respondent No,3 referred to a letter written by the petitioner-Company to the Bank on or about May 30, 2008 where, according to the learned counsel, liability of 141 million is admitted. Learned counsel submitted that the case-law cited by the respondent is not at all relevant to the point in issue and it will be a huge loss to the respondent No,3 if petitioner escapes from Pakistan. He submitted that the name was placed on ECL after taking into account all standards and norms.
5. Mr. Hassan Akbar, learned counsel for respondent No,2 submitted that it is not necessary that liability be finally determined for the purpose of taking action to prevent a defaulter from escaping from country. He further submitted that idea is to prevent the person from escaping his liability and the Court has to delineate a line between protecting interest of the Bank and right of the petitioners.
6. Mr. Shahab Serki, learned standing counsel referred to letter dated 7-12-2001 issued by the State Bank of Pakistan to all the banks on the subject of "Exit Control List". He submitted that only the key person i,e, a person who directly or through his family members holds a controlling position in .The management and or ownership of the company which is in default should be proposed for placement on ECL and not more than one key person should be proposed. He further submitted that it is only in case default of 100 million or above that name should be so placed. He submitted that chain of action is with the Bank who writes to the State Bank of Pakistan who in turn writes to the Ministry of Interior. Regarding submission of the learned counsel for the petitioners that when the petitioner was off-loaded he wrote letter on May 8, 2009 which letter had not yet been responded by the Government of Pakistan. Learned Standing Counsel submitted that the Ministry of Interior should have responded to this letter.
7. While exercising his right of reply Mr. Khawaja Shamsul Islam submitted that the guidelines relied upon by the respondents pre-date Financial Institutions (Recovery of Finances) Ordinance. He further submitted that petitioner is running concern and no running concern can at the drop of a hat liquidate its liability.
8. We have considered the submissions made by the learned counsel and have also gone through the case law relied by the learned counsel.
9. Since the facts are not in dispute between the parties this case turns on Interpretation of Article 15 of the Constitution in the context of Exit from Pakistan (Control) Ordinance, 1981. Case-law may be noted at this stage. In Wajid. Shams-ul-Hassan's case (supra) petitioner was appointed as Pakistan's High Commissioner to the United Kingdom and his service was terminated by the Federal Government on 8-11-1996. His name was placed on ECL on 14-11-1996. Such placement was challenged through a writ petition which was disposed of on 14-12-1996 by Lahore High Court with a direction to the petitioner to avail remedy of review as provided under section 3 of the Exit from Pakistan (Control) Ordinance, 1981 by making a representation to the Federal Government.
Representation was made and was rejected. The matter again came up to the High Court. It was contended by the Standing Counsel that no reasons were required to be recorded or assigned nor was there any such requirement spelt out by sections 2 and 3 of the Exit from Pakistan (Control)
Ordinance, 1981. The High Court referred to Article 2A of the Constitution as well as Articles 4, 9, 15 and 25 thereof. After referring to case law the. High Court observed as under:-- "14. In view of the above discussion, I have no doubt in my mind that the right of citizen to travel abroad is a fundamental right guaranteed by Articles 2A, 4, 9, 15 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. Abridgment 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 the 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 becomes 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 Islamic. Republic of Pakistan, 1973. Under this law, there is a scope for the executive to adopt a policy of pick and choose in any case without there being any justifiable grounds. 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. The same would be examined in some other appropriate case where a specific challenge to the validity of the said Ordinance is made. 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 tide order. The same is a nullity in the eye of the Constitution and the law. In the absence of any valid reasons, the validity of the impugned order dated 14-11-1996 cannot be adjudged and the same has, therefore, to be struck down as without lawful authority. Similar is the position of impugned order dated 19-1- 1997 whereby the representation of the petitioner was rejected without informing him of any grounds or reasons for its rejection."
' Court went on to observe as under:-- "No discretion vested in an executive officer, is an absolute and arbitrary discretion. The discretion is vested in him for a public purpose and must be exercised for the attainment of that purpose.
Even though there are no express words in the relevant legal provision to that effect, the discretion is always circumscribed by the scope and object of the law that creates it and has at the same time to be exercised justly, fairly and reasonably. Whenever an enactment empowers a public officer to pass orders, that benefit or harm a citizen, the citizen gets a right that, in a, matter in which he is concerned an order be passed in accordance with the law."
10, In Ashfaq Yousuf Tola's case (supra), name of the petitioner was placed on ECL on account of certain allegations against him which formed subject matter of a reference filed before the NAB.
The Bench observed that placement of petitioner's name on ECL amounted to serious inroad on his liberty. It was further observed that normally a person is bound to be heard before passing of the order unless it is considered in the public interest not to specify grounds. In the present case there appear no such declaration that failure to assign grounds was based on any consideration of public interest.
11. In "Re-Passport Act 1974, PLD 1989 FSC 39, the questioned proviso contained in section 8(2) of the Passport Act. It was held to be violative of injunctions of Islam as it did not provide a due notice. The Federal Shariat Court laid down as under:-- "(5). It is now well-settled that the principle of natural justice required that every statute should be read as incorporating in itself the requirement to give a notice to show cause against any action intended to be taken against the person unless the statute expressly or by necessary implication excludes such a Rule. The denial or withholding of Passport to a citizen has been considered throughout one of the principle instruments of intimidation since in that manner the individual concerned is virtually imprisoned at home without a passport. Thus looked at from whatever an angle the existence of the said proviso in the relevant section of the Passport Act is in a way denial of free movement to a citizen as well as the right of hearing."
12. In Sohail Latifs case (supra), name of the petitioner was placed on ECL on the ground that investigation/prosecution against the petitioner was in progress. The allegation was that being a part of management of OGDCL, in connivance with others, the petitioner awarded contracts in violation of rules and regulations and without approval of the Board of OGDCL thus, causing huge loss to the exchequer. Amount involved was approximately US $ 15 millions. The Bench referred to the observations of the Supreme Court in the case of Government of Pakistan and another v. Dada Amir Haider Khan PLD 1987 SC 504 which were in the following words:-- "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 Government 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."
' Writ petition was allowed.
13. Last case relied upon by the learned counsel was Mirza Muhammad Iqbal Baig's case (supra).
Name of petitioner was placed on ECL because a criminal case had been registered against him under the Control of Narcotic Substances Act, 1997. It was contended by the petitioner as far as recovery is concerned it could have been recovered from his property. The case had been pending for 10 years. In any case, it was contended that there is no bar under the Control of Narcotic Substances Act, 1997 on petitioner's travelling outside the country. High Court relied upon Dada Amir Haider Khan's and Wajid Shamsul Hassan's cases and allowed the petition.
14. While on the subject we may also refer to a seminal judgment of the Supreme Court in the case of Collector, Sahiwal and 2 others v. Muhammad Akhtar, 1971 SCMR 681. Mr. Justice Hamoodur Rehman, writing for a tour members bench of Supreme Court laid down the law in ringing words as under:-- "The Courts in Pakistan have, however, taken the view that where the giving of a notice is provided for by the statute itself, then the failure to give such a notice is fatal and cannot be cured. But where there is no specific statutory provision and reliance is only placed on the principles of natural justice and audi alteram partem, there if at some stage or other the person aggrieved has been given a fair opportunity of representing his point of view, then the defect, if any, in the initial order may be deemed to have beat cured. Thus, in the case of Muhammad Ishaq v. Dr. Saiduddin Swaleh (PLD 1959 Kar. 669) it was pointed out that each case will have to be determined on its own facts. If the statutory provision for notice be of a mandatory nature, then an order without any notice would be wholly void; but if there be no such provision or if the provision be merely of a directory nature, then, wherever a violation of this principle of natural justice is alleged, the court may call upon the party alleging the same to approve prejudice before it sets aside the order. Such prejudice would obviously not be there if it is found that the party had been actually given a full hearing by the appellate or revisional authority and afforded every opportunity of showing cause against the allegations made. To the same effect is the view of the Peshawar High Court in the case of. Charsaddah Sugar Mills Ltd. v. Government of Pakistan (PLD 1971 Pesh. 210).
' This Court, too, has consistently taken the same view vide; The Commissioner of Income Tax, East Pakistan v. Fazlur Rahman (PLD 1964 SC 410), Abdul Latif Niazi v. Government of West Pakistan (PLD 1967 SC 62) and Mansab Ali v, Amir"(PLD 1971 SC 124).
' The Court has gone to the extent of pointing out that the mere absence of a provision in a statute as to notice cannot override the principle of natural justice that an order affecting the rights of a party cannot be passed without an opportunity of hearing and also held that where the giving of a notice is a necessary condition for the proper exercise of jurisdiction then failure to comply with this requirement renders the order void and the entire proceedings which follow also become illegal."
15. Above case-law indicates the position in law to be as under:--
(1) Right to travel abroad is an important aspect of citizen's liberty and is closely related to rights of free speech and association.
(2) Placement of name on ECL amounts to serious inroad on liberty of the citizen.
Principles of natural justice require that in every statute requirement to give notice or show cause must be read as an integral part unless specifically or by necessary intendment excluded.
Normally a person must be heard before an order adverse to him is passed. However, in emergent situations, prior hearing may be dispensed with.
(5) However in such cases show-cause notice should follow the order with a reasonable period.
(6) Reasons for the action taken must be disclosed and normally spelt out in the order. However, if it is considered in the public interest not to specify the grounds, they may not be disclosed.
However there must be specific statement in the order itself regarding reasons because of which reasons for action taken have not been disclosed.
(7) If the order by which a person is barred from going abroad does not contain any reason the order is most likely to be set aside.
(8) If there is no provision in the substantive law under which a person is being proceeded against that his name be placed on ECL it would normally, be not permissible to the authorities to place name on ECL.
(9) Pending of a criminal case does not ipso facto disentitle a person from travelling abroad.
(10) In any case, where allegation if ultimately proved would result in order of recovery of the amount if the petitioner is able to provide sufficient security, it would be more appropriate that such security be obtained rather than the person be barred from exercising his fundamental right.
16. In the present case, the only question involved is that it is alleged that the company of which the petitioner No,2 is stated to be Chief Executive has liability in excess of Rupees 145 millions towards respondent No,3 Bank. Question of that liability is sub judice before this Court on its original side being Suit No B-100412008. Application for leave to defend has been filed and it was stated at the bar that it is yet to be decided. Therefore we refrain from going into this aspect of the matterIt is however trite that name of the. Petitioner No,2 was placed on the ECL vide memorandum dated 25- 4-2009 and he was not informed. He came to know of it when he was offloaded from a flight. This is a clumsy way of exercising power, to say the least about it. The petitioner immediately on 8-4-2009 wrote a letter through his counsel to the Section Officer with the copy to the Ministry of Interior, Government of Pakistan and respondent No,3 Bank. Learned counsel for the petitioner stated that no response to it has been received so far and learned Standing Counsel admitted that the Ministry of Interior should have responded to this letter.
17. Memorandum dated 25-4-2009 is in the following words:-- "It has been decided to place the name of Mr. Aziz A Rehman Gullani son of Abdul Rehman (CNIC No,42301-0895550-3), r/o House No, A1-1, Baverly Hill Villas 98, Bath Island, Clifton, Karachi, on Exit Control List under section 2 of Exit from Pakistan (Control) Ordinance, 1981.
(2) All concerned are requested to take immediate action in the matter."
This memorandum does not contain any reason whatsoever as to why his name was placed on ECL. Consequently this writ petition is allowed and impugned memorandum dated 25-4-2009 is set aside. It shall however be available to the authorities to pass a speaking order in respect of the petitioner in accordance with the principle stated above.
' The writ petition is disposed of along with the listed application.