' SYED MUHAMMAD FAROOQ SHAH, J.---Being aggrieved by and dissatisfied with the order pertaining to placement of his name on the Exit Control List and prohibiting him from travelling abroad, the petitioner invoked the extraordinary jurisdiction of this court and has sought prayer that respondents be directed to remove his name from ECL as their act is illegal, unlawful, unconstitutional, arbitrary, discriminatory and in violation of natural justice, equity and fairness.
2. Precisely, facts as narrated in the captioned petition are that a Criminal Case bearing No,16 of 2011 was registered against the petitioner and at the behest of Allied Bank Limited, his name was placed on ECL. The Criminal proceedings were culminated in acquittal of petitioner under section 249-A, Cr.P.C. And despite transmitting the copy of acquittal order to the respondents, name of petitioner has not been deleted from the ECL, hence he approached this court with the prayer as mentioned above.
3. On presentation of the captioned petition, notice was duly issued to the respondents through Deputy Attorney-General and it appears that comments have not been filed on behalf of the State.
On 24-9-2013, final notice was issued to the learned DAG as well as to the respondents including the Secretary Ministry of Interior, Government of Pakistan, to submit written explanation within ten days as to why petitioner's name has not been removed from the ECL despite his acquittal by the learned trial Court. The Secretary, Ministry of Interior, Government of Pakistan. Was also cautioned and put on notice that heavy cost shall be imposed upon him in case he still chose not to respond the notice of this court. Nothing has been placed on record by all respondents including Secretary Ministry of Interior, Government of Pakistan to substantiate that there existed any valid or genuine ground for placing, the name of the petitioner on exit control list.
4. We have considered the arguments advanced from both sides and record has also been perused.
5. It needs to emphasis that the Hon'ble apex Courts have time and again disapproved such actions contrary to the fundamental rights of a citizen guaranteed by the Constitution. Reliance in this respect may conveniently be placed on the ease of Government of Pakistan v. Dada Amir Haider Khan (PLD 1987 SC 504), wherein the Hon'ble Supreme Court was pleased to hold that a discretion vested in a public authority must be exercised fairly, reasonably and in good faith. In Habibullah Niazi v. Federation of Pakistan through Federal Secretary, Ministry of Interior, and 2 others (PLD 2009 Karachi 243), a Division Bench of this Court held that placing the name of a citizen on ECL is prima facie unjustified and amounts to denial of his fundamental right, guaranteed under Article 15 of the Constitution and that any arbitrary action of the Government functionaries depriving a citizen from his legitimate right cannot be sustained unless sufficient material is produced before the Court for examination, to justify that such action was taken in accordance with law. Consequently, concerned authorities were directed to remove the name of petitioner from ECL. In Mir Khalid Langov v. Secretary, Ministry of Interior, Government of Pakistan, Islamabad, PLD 2007 Quetta 41, a Division Bench of the Balochistan High Court held that the Federal Government was legally bound to place on record material that prompted it to place the name on the ECL in order to satisfy the Court and to show that such exercise was not colourful and therefore the Notification without any reason was declared to be bad in law, invalid, without jurisdiction, and was struck down.
6. In another reported case of Wajid Shamas-ul-Hassan v. Federation of Pakistan, (PLD 1997 Lahore 617 at 630), it was held that right to travel is one of the most valued and cherished fundamental human right in all civilized societies, perhaps -next only in importance to the right to life and personal liberty. The light of a citizen to travel abroad is a fundamental right guaranteed by Articles, 2-A, 4, 9, 15 and 25 of the Constitution. Abridgement 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. 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. In the case of Rafi Ahmed and another v. Special Judge, Central, Lahore and another (PLD 2010 Lahore 693), it was held that while issuing an order under section 2 of the Exit from Pakistan (Control) Ordinance. 1981, the Federal Government has to apply its own mind. The exercise must not be mechanical in nature and must not be carried out on the mere request of an agency/authority. The Lahore High Court in the case of Mian Ayaz Anwar v.
Federation of Pakistan, (PLD 2010 Lahore 230), held that right to travel outside country is a fundamental right and an intrinsic part of the right to liberty which is guaranteed under Article 19 of the Constitution, therefore, the discre tion exercised under dictation, without reasons was held to be not lawful.
7. Perusal of the material available on the record transpires that the name of petitioner was placed on ECL by Ministry of Interior in an arbitrary and mechanical manner without applying its own mind and despite repeated directions and orders of this court nothing has been placed on the record by respondents to substantiate that there existed any valid or justiciable ground for placing the name of petitioner on ECL or for prohibiting him from travelling abroad. If at all, the petitioner was involved in the offence of connivance/abatement and wrongful loss to Allied Bank Ltd. And corresponding wrongful gain to him, in which case the petitioner has already been acquitted under section 249-A, Cr.P.C. By the Presiding Officer, Special Court (Offences in Banks) Sindh at Karachi. According to learned counsel for the petitioner, complainant party did not file appeal against the acquittal of petitioner, hence the acquittal order has attained finality. In plethora of reported judgments of this court and even by the apex Court it has been held that the Ministry of Interior and/or Immigration authorities cannot place the name of a person on ECL and cannot restrict freedom of his movement without applying their mind and without assigning any reason. In such view of the matter, the arbitrary act in mechanical manner, without passing any speaking order by the Ministry of Interior cannot be considered to be passed fairly, reasonably or in good faith and certainly such an act of the respondents infringed the valuable fundamental rights of the petitioner, guaranteed under Articles 4, 9 and 15 of the Constitution of Pakistan.
8. It is not out of context to mention here that in identical circumstances, this court by passing orders recently on 11-9-2013 in Constitutional Petition No, D-1782 of 2013 (Farhan Saeed v. Federation of Pakistan and others) and order dated 27-5-2013, in Constitutional Petition No, D-3608 of 2013 (Wasatullah Jaffery v. Federation of Pakistan and others), cost amounting to Rs, 50,000 and Rs, 100,000 respectively was imposed on the Secretary, Ministry of Interior, Government of Pakistan and in the Constitutional Petition No, D-1782 of 2013 the cost of Rs,50,000 was ordered to be recovered from personal account of Secretary, Ministry of Interior and shall be paid to the petitioner within thirty days because of inaction and lack of assistance on his part and placement of names on ECL in a mechanical manner without application of mind and consequently directions were conveyed to the Secretary Ministry of Interior, Government of Pakistan to remove the name of petitioner from the ECL forthwith.
9. In view of whatever mentioned above, more particularly in light of the case-law discussed ante, suffice is it to say, that action on the part of respondents in placing the name of petitioner on ECL, prohibiting him from travelling abroad was/is an arbitrary, action, void ab initio and without jurisdiction. The mental agony and shock caused to the reputation and free movement of petitioner cannot be compensated in term of money, however, keeping in view the irresponsible duty and illegal act on the part of respondent No, 1, by a short order dated 9-10-2013 the petition was allowed as prayed, along with listed application and respondents were directed to remove the name of petitioner from the ECL forthwith. The respondent No,1, Secretary, Ministry of Interior, Government of Pakistan was directed to pay a sum of Rs,50,000 as compensation to the petitioner for illegally and wrongfully placing his name on the ECL. The said amount shall be paid to the petitioner by respondent No,1 from his own account and not from the National Exchequer, within thirty days.
' Foregoing are the reasons for the said short order.