' MAIN CASE C.M. No,3 of 2012 ' C.M. No,2951 of 2012 ' MAMOON RASHID SHEIKH, J.--- The brief facts giving rise to the filing of the main petition and C.Ms. No,3 and 2951 of 2012 are that the petitioner is a director of the companies known as Messrs First National Equities Limited and Messrs First Pakistan Securities Limited. His business, inter alia, relates to consultancy in stock related services. On 29-4-2011 the petitioner filed an application before respondent No,1 for grant of a new passport. The passport at that time was, however, not issued and the petitioner was orally informed by respondent No,1 that the name of the petitioner has been placed on the Exit Control List ("ECL"), under the provisions of the Exit from Pakistan (Control)
Ordinance, 1981, upon the request of respondent No,2 (the Bank of Punjab) as the petitioner is a loan defaulter. The petitioner (allegedly) did not receive any notice nor any order was served upon him in respect of his name having been placed on the ECL. The petitioner was therefore, constrained to file the main petition praying thereby that the action of respondent No,3 of placing the name of the petitioner on the ECL may be declared illegal, without lawful authority and of no legal effect. As consequential relief respondents Nos.2 and 3 may be directed to remove the petitioner's name from the ECL and the petitioner may be allowed to travel abroad freely. The petition was filed on 1-10-2011 and has been pending since then for filing of the report and parawise comments and/or replies of the respondents. In the meantime, the petitioner moved C.M.No,3 of 2012 and thereafter C.M.No, 2951 of 2012 praying through the former that the petitioner's passport may be issued to him whereas through the latter he submitted that his son namely Umar Ali aged about 16 years is suffering from lung disease and has been admitted for treatment in a hospital at Manchester in the U.K. As the petitioner's son is seriously ill the petitioner would like to be at his son's bedside, especially during the Eid holidays. It has, therefore, been prayed that the petitioner may be granted a onetime permission to travel abroad. The petitioner undertakes to return as soon as his son's treatment is over. The petitioner is ready to furnish adequate security to ensure his return.
2. On 8-8-2012 notice was issued in C.M.No,2951 of 2012 and the main petition was also directed to be fixed for 10-8-2012. On the latter date the learned counsel for respondent No,2 vehemently opposed acceptance of C.M.No,2951 of 2012 and submitted-that the main petition itself is liable to be dismissed as the same has been filed by concealment of material facts: He prayed for time to file parawise comments. The learned Standing Counsel submitted that the matter has been referred to the Ministry of Interior, Government of Pakistan who in turn has referred the matter to the Ministry of Finance and their advice is awaited. He submitted a letter to this effect which was placed on the record. The learned counsel for the petitioner opposed the adjournment on the ground that due to the serious illness of the petitioner's son the petitioner has to travel on an emergent basis, therefore, C.M. No,2951 of 2012 may be heard and decided. The learned counsel in support of his contention submitted photocopies of the medical record of the petitioner's son which were placed on the record. However, in the interest of justice time was granted to the respondents and the matter was adjourned for today.
3. The matter has been taken up today. The learned counsel for the petitioner whilst repeating the above facts contends that the right to travel is part of human liberty as the ability to travel signifies freedom and liberty. The right to travel abroad is, therefore, a fundamental right guaranteed by Articles 2-A, 4, 9, 15 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973. This fundamental right cannot be abridged through a legislative or executive measure. Relies on the judgments reported as Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others (PLD 2010 Lahore 230), Mian Tahir Jahangir v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and another (2008 YLR 1857) and Muhammad Khyzer Yousuf Dada v.
Federation of Pakistan through Secretary, Ministry of Interior and 5 others (PLD 2011 Karachi 546).
4. Further submits that the petitioner was neither informed nor a notice was served upon him regarding placing of his name on the ECL by respondent No,3 at the request of respondent No,2.
The petitioner was, therefore, denied the right of filing a review petition under section 3 of the Exit from Pakistan (Control) Ordinance, 1981. It was only in the year 2011 when the petitioner applied for his passport that he came to know that his name has been placed on the ECL. The petitioner, therefore, filed the main petition challenging the actions of the respondents, however, the petition could not progress due to non-filing of replies and/or parawise comments. Repeated adjournments were obtained by the respondents in this respect but to-date the needful has not been done.
5. Contends that the petitioner's son is seriously ill. The petitioner being his father has a right to be at his bedside. Prays that the petitioner may be granted a onetime permission to travel abroad i,e, to the U.K. The petitioner shall return to Pakistan within 3 to 4 weeks. The petitioner is ready to provide adequate security in this behalf. Further submits that the passport of the petitioner has since been issued to him.
6. The learned counsel for respondent No,2 has submitted comments on behalf of respondent No,2 which are placed on the record.
7. The learned counsel for respondent No,2 has vehemently resisted acceptance of C.M.No,2951 of 2012. The main thrust of his arguments has been directed towards the maintainability of the petition, inter alia, on the grounds that the petition has been filed by concealment of material facts.
It is contended that the petitioner and his companies are defaulters of respondent No,2. The total amount due as at 31-7-2012 from Messrs First National Equities Limited is Rs,188.585 million; from Messrs First Pakistan Securities Limited is Rs,329.521 million; and from the petitioner it is Rs,432.811 million. Respondent No,2's two suits entitled "BOP v. Ali Aslam Malik" and "BOP v. Messrs First National Equities Limited" have been decreed against the petitioner and his companies. The above amounts are not secured by any tangible security. Indeed the petitioner's and his companies' total liability is Rs,950.917 million whereas the securities held by respondent No,2 are in the amount of Rs,30 million approximately. The petitioner obtained the financing on the basis of insufficient securities in connivance with the ex-management of respondent No,2 who misused their authority for benefiting the petitioner thereby causing loss to respondent No,2. A complaint has been filed by respondent. No,2 under section 9 of the National Accountability Ordinance, 1999, against the petitioner and others on the allegations of corruption and corrupt practices. The matter is pending before the National Accountability Bureau ("NAB"). Further submits that the name of the petitioner was placed on the ECL in the year 2009 on the directions of the State Bank of Pakistan who through letter dated 7-12-2001 had directed all banks that the names of defaulters of Rs,100 million and above should be placed on the ECL. As the petitioner and his companies fell afoul of the directions of the State Bank of Pakistan, therefore, respondent No,2 requested respondent No,3 to place the name of the petitioner on the ECL. Also relies upon the provisions of the Ordinance, ibid, and Rule 2(e) of the Exit from Pakistan (Control) Rules, 2010. Further contends that the petitioner has not exhausted the statutory remedy before approaching this Court. The petition is even otherwise not maintainable as the State Bank of Pakistan has not been impleaded.
8. On the basis of the above the learned counsel for respondent No,2 prays that the petitioner's C.M.No,2951 of 2012 for one time permission to travel abroad may be dismissed along with the main petition.
9. The learned Standing Counsel whilst opposing C.M.No,2951 of 2012 submits that the petitioner is not entitled to the relief he is seeking. Prays for time to make further submissions as he has yet to receive instructions in the matter.
10. The learned counsel for the petitioner in rebuttal does not deny availing of the finance facilities by the petitioner and his companies from respondent No,2. He, however, submits that all facilities were fully secured through pledge of stocks and shares which were mainly shares in various cement companies including Pioneer Cement and D.G. Khan Cement. However, due to the crash in the stock market there was diminution in value of the pledged stockes/shares. Respondent No,2 was negligent 'in the matter and did not liquidate the stocks/shares in time and waited till the value of the pledged stocks/shares reached rock bottom. As the stocks/shares were pledged with respondent No,2 the petitioner could not sell the same at the relevant time. It, therefore, does not lie in the mouth of respondent No,2 to contend that the petitioner provided inadequate security for availing of finance facilities. Also does not deny that respondent No,2's two suits have been decreed against the petitioner and his companies. He, however, submits that the petitioner has challenged the decrees by filing appeals. Further contends that the petitioner is involved in the business of consultancy in stock related services. His companies are doing good business and he pays several million rupees towards income tax and sales tax etc. The learned counsel has shown paid invoices in support of his contention which after examination have been returned to the learned counsel. Contends that C.M.No,2951 of 2012 has been moved as the petitioner's son is seriously ill. The petitioner shall return within 3 to 4 weeks. Reiterates that it is the fundamental right of the petitioner to travel abroad. The main petition in these circumstances is liable to be accepted.
However, in view of the medical emergency vis-a-vis his son the petitioner for the time being is only praying for being granted one time permission to travel abroad. Further submits that the petitioner is willing to furnish third party security supported by immovable property in the value of Rs,10 million to ensure his return.
11. The learned counsel for respondent No,2 despite having been given opportunity has been unable to satisfy the Court regarding the alleged inaction of respondent No,2 in selling the pledged stocks/shares at the relevant time.
12. Arguments heard. Record perused.
13. Admittedly the petition was filed on 1-10-2011. The petition has been fixed on a number of dates, however, the petition could not proceed for want of replies and/or parawise comments having been filed by the respondents and/or lack of instructions. Even today during the course of the arguments the respondents could not produce ' a copy of the instructions received from the State Bank relied upon by respondent No,2 nor a copy of the request made by respondent No,2 to respondent No,3 for placing the name of the petitioner on the ECL. Indeed, a copy of the order whereby the petitioner's name was placed on the ECL in the year 2009 has also not been produced.
The learned counsel for respondent No,2 besides relying on the instructions of the State Bank has also relied upon the Ordinance and Rules, ibid. He was, however, been unable to justify the applicability of Rule 2(e) of the Rules, ibid, as the name of the petitioner was admittedly placed on the ECL in the year 2009 and the Rules, ibid, came into force in the year 2010. The learned counsel for respondent No,2 tried to place reliance on the Exit from Pakistan (Control) Rules, 1984, which, however, do not contain any such provision.
14. On the basis of the judgments cited by the learned counsel for the petitioner at the bar it is evident that the right to travel abroad of a citizen of Pakistan is his fundamental right. The petitioner in the instant case is being denied that right ostensibly on the ground of his being a loan defaulter. The respondents have, however, been unable to place any material on the record to substantiate their stand. Indeed, the parawise comments filed today by the learned counsel for Respondent No,2 neither address the issue comprehensively nor are they supported by any document.
15. There are several instances where the Courts during pendency of the main petition have allowed the petitioner permission to travel abroad subject to furnishing of surety. Reliance in this regard is placed on .An unreported judgment of my learned brother Muhammad Khalid Mahmood Khan, J., passed. In Crl. Org. No,1200-W of 2012 titled "Syed Haseeb Azhar v. Mr. K.M. Siddiq Akbar and 2 others".
16. The distinguishing feature, however, in the above case and instant case is that in the former the defaulted amount said to be fully secured whereas in the latter it is alleged that the security furnished by the petitioner and his companies is inadequate vis-a-vis the finance facilities availed of by them. The reason therefor according to respondent No,2 is the connivance of the petitioner with the ex-management of respondent No,2. The petitioner, however, contends that he had fully secured the finance facilities by way of pledge of stocks/shares, however, upon the crash of the stock market these stocks/shares were not sold in time by respondent No,2. If the same had been done the petitioner would not have been in the position he is today. As mentioned above the learned counsel for respondent No,2 has been unable to satisfy the Court on this score.
17. As the respondents despite repeated opportunities are yet to file' an appropriate defence and/or documents in support of their contentions including but not limited to a copy of the order whereby the name of the petitioner has been placed on the ECL an adjudication of the main petition at this stage would not serve the ends of justice. I, therefore, propose to keep the main petition pending.
18. However, in view of the serious illness of the petitioner's son a onetime permission is granted to the petitioner to travel to the U.K. Subject to furnishing of a third party surety within a fortnight in the sum B of Rs,10 million supported by immovable property to the satisfaction of the Deputy Registrar (Judicial) of this Court. This one time permission is for the period of four weeks from the date of furnishing the surety. The petitioner, as undertaken by him, to return to Pakistan within the stipulated period.
19. C.M.No,2951 of 2012 is disposed of accordingly.
20. C.M.No,3 of 2012 has become infructuous as the petitioner's passport is stated to have been issued to him.
21. In view of the substantial questions of law raised by the learned counsel for the parties the main petition is admitted to regular hearing. However, in view of the nature of the dispute the petition is directed to be listed out in the 4th week of October, 2012.
22. The respondents are directed to file their respective written statements before the next date.