' GULZAR AHMED, J.---By this petition, petitioner has challenged the inclusion of his name in the Exit Control List (ECL) under section 2 of Exit from Pakistan (Control) Ordinance, 1981 (the Ordinance) vide Memorandum No,12/192/2011-ECL dated 6-4-2011 issued by Ministry of Interior, Government of Pakistan, Islamabad.
2. Learned counsel for the petitioner has contended that no case is pending against the petitioner and only an enquiry is being conducted by the NAB since the year 2003 and issuing of impugned memorandum placing the name of petitioner on ECL does not give ground for such action and that the impugned order be declared to be illegal and of no legal effect and the name of petitioner be removed from the ECL. In support of his submissions he has relied upon the cases of MASOOD AHMED v. FEDERATION OF PAKISTAN THROUGH SECRETARY, MINISTRY OF INTERIOR, ISLAMABAD AND ANOTHER (2010 YLR 28), MIAN MUNIR AHMED v. FEDERATION OF PAKISTAN AND OTHERS (2008 YLR 1508), HASHMAT ALI CHAWLA v. FEDERATION OF PAKISTAN AND OTHERS (PLD 2003 Karachi 705), FAROOQ SALEH CHOHAN v. GOVERNMENT OF PAKISTAN, MINISTRY INTERIOR THROUGH SECRETARY/ SECTION OFFICER, ISLAMABAD (PLD 2010 Karachi 394), ZURASH INDUSTRIES (PVT.) LTD. THROUGH DIRECTOR v. FEDERATION OF PAKISTAN THROUGH SECRETARY, MINISTRY OF INTERIOR, ISLAMABAD (2011 CLD 511) and SOHAIL LATIF v. FEDERATION OF PAKISTAN THROUGH SECRETARY, MINISTRY OF INTERIOR, GOVERNMENT OF PAKISTAN. ISLAMABAD (PLD 2008 Lahore 341).
3. On the other hand, Mr. Noor Ahmed Dayo, learned Senior Prosecutor, NAB has contended that there is no time period fixed for concluding enquiry by the NAB and there is sufficient material available with the NAB to have the name of petitioner put on ECL and such action of respondent is reasonable and Government may not give grounds in public interest. He has further contended that in case the name of petitioner is removed from the ECL, there is apprehension that he will abscond and that petitioner raises disputed and complicated questions of facts which cannot be decided in a Constitutional Petition. In support of his submissions he has relied upon the cases of I.
A. SHARWANI v. GOVERNMENT OF PAKISTAN AND OTHERS (1991 SCMR 1041), SAJID AHMED DADABHOY v.
THE FEDERATION OF PAKISTAN (SBLR 2011 Sindh 351) and NAHID KHAN v. GOVERNMENT OF PAKISTAN AND OTHERS (PLD 1997 Karachi 513).
4. Learned Standing Counsel has referred to letter dated 26-7-2011 of Joint Secretary (IP&N) Ministry of Interior, Government of Pakistan and report attached with it and opposed the petition contending that enquiry is pending against the petitioner.
5. We have considered the submissions made by learned counsel for the parties and have gone' through the record.
6. Facts of the matter are that petitioner was employed as Chairman of National Investment Trust.
The petitioner received from respondent No,2, the National Accountability Bureau, a letter dated 19- 4-2011 asking him to appear regarding sale of shares of Pakistan Engineering Company (PECO) in the year 2003. The petitioner appeared before the NAB and gave answers to all questions put to him. The enquiry regarding sale of PECO shares is being, carried out since long by the Public Accounts Committee (PAC) of National Assembly of Pakistan and petitioner has assisted the PAC in ascertaining the true facts. Privatization Commission and Security and Exchange Commission of Pakistan have also conducted enquiry and confirmed that no loss has been caused to the Government and ultimately the petitioner learnt that on 16-4-2011 name has been placed in the ECL by respondent No,1 on the recommendation of NAB which the petitioner has claimed, to be unlawful. Photocopy of unsigned report was submitted by D.A.-G. On 27-7-2011 with a. Photocopy of letter dated 26-7-2011 of Joint Secretary (IP&N) Ministry of Interior, Government of Pakistan. Para- wise comments have also been filed by respondent No,2.
7. Exit from Pakistan. (Control) Ordinance, 1981 gives power to Federal Government to 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. It is also provided in the same Ordinance that before making A such an order it shall not be necessary to afford an opportunity of showing cause and that if it appears to Federal Government that it will not be in the public interest to specify the grounds on which the order proposed to be made it shall not be necessary for the Federal Government to specify such grounds. The perusal of impugned memorandum dated 16-4-2011, issued by respondent No,1, shows that B the name of petitioner has been placed in ECL under section 2 of the said Ordinance. No reason or ground whatsoever has been assigned in the said memorandum as to why the name of petitioner has been placed in ECL nor is it' mentioned in the memorandum that Federal B Government does not consider it in the public interest to specify the grounds.
8. In the case of Mian Munir Ahmed (supra) a Division Bench of this Court held that as per settled law mere pendency of civil or criminal cases against a citizen will not be a ground to deny him fundamental right of freedom to travel within or without Pakistan and non-giving of reason in the memorandum of putting the name of petitioner in ECL would mean that petitioner has been condemned unheard. It was noted that though the Government was possessed of power of placing the name of a citizen in ECL but such power cannot be exercised arbitrarily, or without giving right of a fair hearing to a citizen and thus petition was allowed and petitioner in that case was also allowed to go abroad and travel freely.
9. In another case of Masood, Ahmed (Supra) a Division Bench of this Court, of which one of us (Gulzar Ahmed, J.) was the Author, it was again noted that no grounds were given in the impugned memorandum for putting the name of petitioner in the ECL and the only, reason given in the comments filed in that petition for putting the name of petitioner was that there was allegation of embezzlement of funds of Zarai Taraqiati Bank and that matter has been referred to the NAB..
Relying upon the case of HASHMAT ALI CHAWLA v. FEDERATION OF PAKISTAN AND OTHERS (PLD 2003 Karachi 705) and KHAN MUHAMMAD MEHAR v. FEDERATION OF PAKISTAN (PLD' 2005 Karachi 252) it was concluded that there being no case pending against, the petitioner in any Court and merely investigation by the NAB which was going on for a considerable time will not be a ground for depriving the petitioner of his constitutional right of living as a free citizen of Pakistan and there was no reasonable ground on the basis of which he could be deprived from travelling abroad.
10. It may be noted that in the cited judgments where all given Constitutional Petitions filed by the persons whose names were put on the ECL which were not only entertained but were maintained and allowed by the Court.
11. In the present case, the only ground against the petitioner that emerges from the reply filed by the respondent 'is that there is an allegation against petitioner of having sold the PECO shares at cheaper rate which has caused colossal loss to exchequer and it is being enquired C by the NAB and the enquiry against the petitioner apparently is pending, since long and so far no case has been registered either civil or criminal against the petitioner and no finding so far has been given by any of the authority that the petitioner has committed any crime of causing colossal loss to exchequer. No reason has been assigned in the impugned memorandum which will also render such memorandum, not only a non-speaking one but will also amount to depriving the petitioner of his legal right to know as to for what fault of his he ,has been restrained from travelling abroad and consequently depriving him of opportunity of being heard which is a fundamental right of every citizen to be dealt with in accordance with law.
12. That so far the arguments of learned Standing Counsel so also of Senior Prosecutor NAB, it is pertinent to note that the pendency of enquiry with the NAB in itself does not provide sufficient material or D justification for keeping the name of petitioner in ECL and also does not provide reasonable basis for maintaining the name of petitioner in ECL. Mere apprehension of ascension of the petitioner, without any cogent or reasonable material or ground to support it, will also not provide justification for maintaining the name of petitioner on ECL. No disputed or complicated questions of facts and law have either been raised or pointed out by the respondents' counsel, which could not have been decided in this Constitutional Petition. The case of I.A. Sherwani was relied upon to support the submission regarding reasonable classification. We may note that the very case lays down the principle that reasonable classification is permissible but it must be founded on reasonable' distinction and reasonable basis. No reasonable distinction or basis for classification in the present case between petitioner and other citizens of the country apparently is discernible on the record. The case of Miss Nahid Khan and Sajid Ahmed Dadabhoy are distinguishable inasmuch as in the earlier case reference was already filed and was pending in the Ehtesab Court and in the latter case recovery proceedings were also pending in the Court and petitioner was a Canadian national. These cases apparently are distinguishable from the facts and circumstances of present case and thus have no application.
13. For the foregoing reasons we are of the considered opinion that the impugned memorandum has no legs to stand on and the same, to the extent of petitioner, is declared to be without lawful authority and of no legal effect and same is therefore struck down and petitioner is allowed to travel within or outside the Pakistan as a free citizen. The petition in the above terms stands disposed of. Listed application is also disposed of.