' SYED HASAN AZHAR RIZVI, J.---Through this Constitutional Petition the petitioner has prayed as under:--
(1) Declare that the petitioner has a lawful ,right of freedom movement as guaranteed under the Constitution of Islamic Republic of Pakistan;
(ii) Declare that the action of the respondent to include the name of the petitioner in the Exit Control List is illegal, mala fide and without lawful authority and is prejudicial to the rights of the petitioner enshrined under the Constitution of Islamic Republic of Pakistan 1973;
(iii) Direct the respondent to delete the name of the petitioner from the Exit Control List with immediate effect;
(iv) Any other better relief that this Hon'ble Court deem it proper under the circumstances of the case.
2. Brief facts as narrated by the petitioner in the memo of petition, are that on 30-5-2009 he received news about a serious car accident of his son abroad, due to which he wanted to rush there. When the petitioner reached the Airport, he was intercepted by Anti-Narcotic Force staff and after detention for quite some time his Passport, Air Ticket and NIC were taken into custody.
However, the petitioner filed C.P. No, D-1121 of 2009 before this Court for return of his Passport, CNIC and the Air Ticket, which were in possession of the Anti Narcotic Force. Vide order dated 26-6-2009, this Court directed the learned Special Prosecutor-General for ANF to hand over Passport, Air Ticket and NIC before this Court to the petitioner, consequent thereupon on 30-6-2009, learned Special Prosecutor-General for ANF brought the Passport, Air Ticket and NIC and handed over the same to the petitioner in Court to which the petitioner being satisfied did not press the C.P. No, D-1121 of 2009, and the same was disposed of as not pressed. Upon receipt of said documents, the petitioner went abroad to see his ailing son. However, the petitioner came to know that his name has been placed on ECL. Hence this petition.
3. It is, inter alia, contended by the learned counsel for the petitioner that placing the name of the petitioner on ECL is illegal, without lawful authority and violation of Article 15 of the Constitution, as according to the learned counsel, under the Constitution the petitioner has a lawful right to travel anywhere with freedom of movement and. In absence of any lawful reason, the petitioner cannot be restrained to move/travel freely. It is further argued by the learned counsel that admittedly there were some fabricated and concocted criminal cases, in which the petitioner has been involved by the Anti-Narcotic Force, but most of them have been disposed of and the petitioner has been acquitted from the charges levelled against him and perhaps only one case is pending in which the petitioner has been regularly attending each every date and even pendency of said case, is no fault of the petitioner, even otherwise there is no justification for placing the name of the petitioner on ECL.
4. On the other hand, Mr. S. Ashfaque Hussain Rizvi, learned Special Prosecutor for ANF has disclosed that initially the petitioner worked with ANF Force as informer, however, owing to his unreliability and involvement in drug business under the shelter of ANF his services as informer were terminated. He further contended that the ANF Force did not arrest the petitioner in any false case.
He referred to F.I.Rs, Nos.7 of 1998, 13 of 1998 and 24 of 2007 lodged at Police Station ANF Clifton, Karachi. According to him, the petitioner has been acquitted in case F.I.R. No,13 of 1998 and is on bail in case F.I.R. No,7 of 1998. He further contended that besides these, the petitioner is involved in several other cases lodged by different Law Enforcing Agencies against the petitioner as well as there are several intelligence reports against the petitioner indicating that the petitioner has been involved in drug trafficking at international level. Learned Special Prosecutor for ANF next argued that, as per record available with him, the petitioner was sentenced in 1986 by Netherlands Court on the charges of drug trafficking from where he managed to escape. Even in 1997 the petitioner was involved in a conspiracy to distribute heroin in excess of 1.00 KG in USA and on 13-10-1997, the German Drug Liaison Officer also alleged that the petitioner was involved in 6000 KG of hashish seized at the Antwerp, Belgium.
5. Mr. Ashraf Ali Mughal, learned D.A.-G. Filed comments on behalf of the Federation of Pakistan and contended that the name of the petitioner has been placed on ECL on recommendations of Narcotics Control Division, as according to the Anti-Narcotic Force the petitioner has been involved in the drug smuggling having links with the global drug mafia. In this regard, learned D.A.-G. Has referred to a letter dated 27-5-2009 issued by the Ministry of Interior, Government of Pakistan, available at Page 33 of the Comments of Federation of Pakistan.
6. We have heard the learned counsel for the petitioner, learned Special Prosecutor for ANF and the learned D.A.-G. And perused the entire record with their assistance.
7. It appears from the record that the petitioner had filed earlier a Constitutional Petition bearing No, D-1121 of 2009 for return of his Passport, Air Ticket and NIC, which were in the custody of the Anti- Narcotic Force. The said petition was disposed of as not pressed after being returned back the Passport, Air Ticket and NIC to the petitioner.
8. The instant petition has been filed on 21-7-2009 and immediately after filing of this petition, the petitioner moved an application for permission to visit abroad, which was allowed vide order dated 4-9-2009 passed by this Court upon furnishing solvent surety in the sum of Rupees One Million and deposit of personal bond in the like amount with the Nazir of this Court together with Passport of wife of the petitioner. The petitioner was allowed one time permission to travel abroad for 30 days.
Thereafter upon an application moved by the petitioner, the said surety was discharged vide order dated 16-10-2009, as according to the learned counsel the petitioner could not go abroad.
9. On 17-12-2009, learned Special Prosecutor-General for ANF filed his comments, according to which there is one case pending in Karachi against the petitioner being F.I.R. No,24 of 2007 of Police Station ANF, Clifton Karachi. This Court vide its order dated 17-12-2009 directed the Registrar, of this Court to write a letter to Royal Netherlands Embassy at Islamabad to confirm whether letter dated 6-11-1998 written by one Gary Thiry, CRL Liaison Officer of Embassy is genuine or not.
10. Again, vide order dated 13-1-2010, upon an application moved by the petitioner, he was allowed to visit abroad upon furnishing a solvent surety in the sum of Rupees Five Million, as in compliance of the order dated 17-12-2009, the Registrar of this Court written a letter to the Dutch Embassy, but no reply was received.
11. Again on 18-3-2010, the petitioner was allowed to visit abroad, as according to the learned counsel, the petitioner could not arrange the required surety due to which the petitioner failed to go abroad.
12. Again on 13-5-2010, the petitioner sought permission to visit abroad. Finally vide order dated 25- 5-2010, the petitioner was permitted to go abroad upon furnishing a solvent surety in the sum of Rupees Five Million, as ordered earlier.
13. On 2-11-2010, learned counsel for the petitioner filed statement along with copies of acquittal orders passed by the different Courts of law in various cases lodged against the petitioner.
According to learned counsel, only one case i,e, F.I.R. No,24 of 2007 of Police Station ANF, Karachi is pending and the same is at the stage of recording of defence evidence. This Court on 2-11-2010 directed the learned trial Court to conclude the said case within one month and send a copy of the judgment to this Court. In response thereto, the learned Special Judge-I, (CNS), Karachi sent a letter dated 6-12-201.0, which reads as under:-- "With reference to above, I have the honour to submit as under:-- ' That vide order dated 2-11-2010 this Court was directed to conclude the case of petitioner Syed Akbar Ali Shah within one month and compliance report be submitted before the Hon'ble High Court of Sindh.
' That the abovementioned order was dispatched from your office on 1-12-2010 and received in this Office on 2-12-2010 at 03-06 p.m. The case was fixed on 13-12-2010, therefore, the matter was antedated and fixed on 8-12-2010 for recording defence evidence.
' That the accused Syed Akbar Ali Shah has requested for examination of Ex-Force Commander/Brigadier Faiz W. Karim Berki, Major Arshad and Major Tariq as defence witnesses by issuing summon. The Brigadier Mr. Berki has been retired, whereas the Major Arshad and Major Tariq are posted outside the Sindh Province and serving at the different stations. This Court is taking best efforts to procure their attendance for the purpose as requested by the accused.
' It is therefore, requested that suitable time may kindly be granted for conclusion the trial."
14. From the entire discussions made above and perusal of the available record, it appears that the petitioner has all along been making several requests for permission to visit aboard and he was permitted the same but he did not seem to be interested to conclude his case i,e, F.I.R. No,24 of 2007 of Police Station ANF, Karachi which is pending, though according to learned counsel, the same is at the stage. Of defence evidence and at the edge of conclusion.
15. Although this court vide its order dated 17-12-2009, directed the Registrar of this court to call report from the Dutch Embassy, Islamabad regarding sentencing of the petitioner on drug charges, but no reply has still been received. Even the learned trial Court was also directed to conclude the case of the petitioner pending before it, but the record shows that the case of the petitioner pending before the learned trial Court i,e, F.I.R. No,24 of 2007 of Police Station ANF, Karachi is pending as no judgment has been placed on record by the learned counsel for the petitioner.
16. Here it is pertinent to observe that the learned counsel for the petitioner placed on record several acquittal judgments/orders in which the petitioner has been acquitted from the charges levelled against him and the petitioner has also been getting permission to visit abroad by taking different pleas from time to time. Though it is an admitted position that whenever the petitioner sought permission to go abroad, he was permitted upon furnishing solvent sureties and he returned back to Pakistan and even he did not flout the concession of bail, (according to the learned counsel, the petitioner was on bail in one case) and regularly attending the learned trial Court, as no complaint has ever been received, but it does not mean that the petitioner cannot escape and make himself as fugitive of law, as there is a compulsion upon the petitioner by placing his name on ECL to get permission to go abroad from this Court.
17. In view of the above discussions, we are of the considered opinion that this petition has no merits and is dismissed accordingly. However, the petitioner should keep himself vigilant to pursue his case/ cases pending before the learned trial Court for its conclusion, as during the pendency of a criminal case. Pending against the petitioner, as B admitted by him, the name of the petitioner cannot be ordered to be deleted from the ECL. Insofar as the permission to visit abroad due to his personal affairs and business are concerned, it appears from the record that whenever the petitioner sought permission to visit aboard he was permitted by this Court upon furnishing sureties.
18. However, the learned trial Court is also directed to conclude the case of the petitioner pending before it in F.I.R. No,24 of 2007 of Police period of one month from the date of announcement of this judgment. If Station ANF, Clifton, Karachi as soon as possible preferably within a the petitioner succeeds to get an order in his favour from the learned trial Court, he is at liberty to avail the remedy available to him under the law by seeking deletion of his name from ECL.