GULZ AR AHMED , J . --Petitioner has challenged the Memorandum dated 9-7-2008, issued by Section Officer, Ministry of Interior, Government of Pakistan by which his name has been placed in the Exit Control List under section 2 of Exit from Pakistan (Control) Ordinance, 1981.
2. Learned counsel for the petitioner has contended that the petitioner has received call notice dated 27-8-2008 issued by Banker/Financial Expert (Coord) FCIW HQ NAB, Islamabad under section 19 of Natoinal Accountability Bureau Ordinance, 1999 for taking evidence and information regarding fraudulent shipment of raw cotton from Pakistan to Hong Kong, which was replied by the petitioner through his letter dated 19-9-2008 where he has denied that he has anything to do with the said shipment. He has contended that there is no pending case against the petitioner and his name has unlawfully been placed on ECL. In support of his submission he has relied upon the cases of HASHMAT ALI CHAWLA v. FEDERATION OF PAKISTAN AND OTHERS (PLD 2003 Karachi 705), SYED SHUJAAT ALI QADRI, MUFTAKHIRUDDIN v. KAMAL MUSTAFA BOKHARY, ABDUR RAHMAN KHAN (PLD 1989 FSC 39), FARRUKH NIAZ v. FEDERAL GOVERNMENT OF PAKISTAN AND OTHERS (PLD 2006 Kar.
530), HABIBULLAH NIAZI v. FEDERATION OF PAKISTAN THROUGH FEDERAL SECRETARY, MINISTRY OF INTERIOR, PAKISTAN SECRETARIAT, ISLAMABAD AND 2 OTHERS (PLD 2009 Karachi 243), ABDUL QAYYUM KHAN v. FEDERAL GOVERNMENT OF PAKISTAN THROUGH FEDERAL SECRETARY MINISTRY OF INTERIOR, INTERIOR DIVISION, PAKISTAN SECRETARIAT AND 2 OTHERS (PLD 2009 Karachi 361) and BABER QAYYUM RAJA v. FEDERATION OF PAKISTAN THROUGH SECRETARY INTERIOR, MINISTRY OF INTERIOR AND 3 OTHERS (2010 CLC 373).
3. Learned Senior Prosecutor-General, NAB on the other hand has contended that shipment was made by Faiz Enterprises which belongs to the petitioner and the petitioner was also guarantor of shipment and that enquiry has been authorized to be converted into investigation and that petitioner's name is put on the ECL as precautionary measure so that petitioner may not flee from the Pakistan.
4. On the other hand, learned Standing Counsel has merely argued that the name of petitioner was placed on the ECL on the recommendations of NAB as the case is of fraud and cheating of Rs, 80 million.
5. We have considered the submission of learned counsel and have gone through the record.
6. Facts of the matter are that petitioner who is doing business of import and export received notice dated 27-8-2008 under section 19 of the NAB Ordinance in respect of fraudulent shipment of raw cotton from Pakistan to .Hong Kong. Another notice dated 10-9-2008 was issued by the petitioner noting that petitioner has joined enquiry on 6-9-2008 instead of 3-9-2008. Petitioner submitted reply dated 19-9-2008 in which he has denied export of cotton to Hong Kong and that he has no concern with the consignee Zaheer Abbas Lund Balouch. Another notice dated 28-11- 2008 was received which was replied by the petitioner vide letter dated 12-12-2008 and again notice under section 160, Cr.P.C. Dated 5-5-2009 was issued to the petitioner to which petitioner sent reply dated 9-5-2009 and petitioner counsel also gave reply dated 13-5-2009. In August 2009 petitioner desired to visit Saudi Arabia for Umrah when he learnt that his name is put up in ECL pursuant to which he has filed this petition for the relief as mentioned above.
7. Respondent No,1 has tiled its comments. Respondents Nos.2 and 3 have also filed comments. It has also filed brief of the case under the statement dated 1-6-2010.
8. In the brief of the case tiled by respondents Nos.2 and 3 it is mentioned that Messrs Tai Hing Cotton Mill Ltd. Of Hong Kong (the complainant) purchased raw cotton from Messrs Rchmoumer and Company, a Pakistani cotton supplier through an agent Messrs Kevcot Company Ltd. In Hong Kong and all communications were through the agent. The agent informed the importer that petitioner is a Director of Rehmoumer and Company and requested the sales of Pakistan cotton be amended to a company in the name of Messrs Faiz Enterprises due to taxation reason and that it is an associate company of Rehmoumer and Company who will stand as guarantor. The complainant trusted the agent and issued two contracts in favour of Messrs Faiz Enterprises for export of Pakistan raw cotton and it is alleged that while the documents were negotiated with the complainant bank, the container contents were found to be waste and dust instead of raw cotton.
The agent was not able to get feedback from Messrs Faiz Enterprises and petitioner and it is alleged that an amount of Rs, 51.351 million equal to US$ 0.73929 million has been paid by the complainant to HBL, foreign Exchange Branch, Karachi and that investigation is under progress.
9. It is apparent that enquiry and investigation against the petitioner is pending since August, 2008 and although more than two years have expired but so for no reference against the petitioner has been tiled by the NAB Authorities. In the case of Farrukh Niaz (supra) a Division Bench of this Court has observed as follows:-- 'Learned counsel has asserted that the inquiry before the National Accountability Bureau against the petitioner is pending adjudication since June, 2004, could not be a conceivable ground for placing fetters upon his right of movement. The petitioner having not been redressed has resorted to file the petition against the respondents, the comments filed ex facie revealed that the grounds of placement of the name of the petitioner in the Exit Control List were not divulged out, simultaneously it is stressed that the petitioner should have made representation setting out the grounds, on which he sought the review of the order. Petitioner was bound to be heard before passing any of the order by the Federal Government to prohibit him from leaving Pakistan, unless it was considered in the public interest not to specify the ground. In the instant case, the respondent had failed to specify ground for placing fetters upon the right of movement of the petitioner. There are certain allegations against the petitioner, the inquiry conducted, could not be concluded despite of the lapse of more than 2 years, therefore, no reason was assigned by respondent, for placing his name on E.C.L. Not notice or intimation was served upon him. In support of the above contention reliance is placed on the c ase of Ashfaq Yousuf Tola v. Federation of Pakistan (PLD 2006 Kar. 193; Wajid Shamsul Hassan v. Federation of Pakistan PLD 1997 Lah. 617 and Saleem Akhtar v.
Federation of Pakistan PLD 1999 Kar.
177.
' We are, therefore, of the view that the placement of the name of the petitioner on Exit Control List was not justified, tantamounts to restrict rights of his liberty, therefore, it is directed that his name should be removed from the Exit Control List forthwith. Petition is allowed accordingly."
10. The principle laid down in the above case has application to the present case on all fours for that neither any ground has been provided for putting the name of petitioner on ECL nor the enquiry/investigation which is going on for more than two years has concluded. Admittedly no case is pending against the petitioner nor was he given any opportunity of personal hearing nor any notice of intimation was served upon him. Merely on the ground that there is apprehension that petitioner may flee Pakistan is not a ground for depriving him from exercising his fundamental right of travelling freely.
11. On 17-5-2011, after hearing counsel for the parties by a short order the petition was allowed and the impugned memorandum putting the name of the petitioner on ECL was set aside. Above are the reasons for the same.