' SYED MUHAMMAD FAROOQ SHAH, J.---The Petitioner named above being aggrieved and dissatisfied with the order pertaining to placement-of his name on Exit Control List and prohibiting him from travelling abroad, invoked the extra ordinary jurisdiction of this Court and has sought the prayer to declare that placing his name on the Exit Control List by the respondent No, 1 has been done without lawful authority and has no legal effect and-to further delete his name from Exit Control List and not to create any hindrance on the petitioner's right to travel freely to and from Pakistan.
2. The grievance of the petitioner as averred in the petition is that his name, being Chief Executive of Maqbool Associates, has been placed on ECL without any intimation to him, relating to any powers that warranted such action. According to petitioner, he is having largest contracting firms in Pakistan and has major Mega Civil Engineering Projects to his credit. His firm Maqbool Associates' along with a Turkish company by the name of "Siyahkalem Engineering Construction Industry and Trade Company Limited" entered into some construction and engineering projects in Pakistan in the year 2011 and due to dispute in between the firms, civil litigations were instituted in shape of many suits pending adjudication before this Court, whereas one of the Suit bearing No, 301/2013 was disposed of by compromise order dated 18-6-2013. It is next averred that the petitioner was summoned to the offices of the NAB and required to submit the documentary evidence in respect of sub-contractor agreement that Maqbool Construction had entered into with 'Siyahkalem', which was the subject matter of Suit No,310/2013, though the NAB had no jurisdiction whatsoever to interfere in a private dispute amongst two private parties. The petitioner has further stated that his name has wrongly been placed on ECL, which is grave violation of the provision of section 24(a) of General Clauses Act, 1897, which provides that an authority making the order or issuing any direction under the powers conferred or under any enactment shall so far as necessary and appropriate to give reasons for making the order or as the case may be for issuing the direction and shall provide a copy of the order or as the case may be direction to the person affected prejudicially. It is further stated that the said act is against the spirit of Article 19-A of the Constitution of Pakistan, more particularly, the dispute between 'Alagbool Associate' and 'Siyahkalem' are private in nature and are already pending adjudication, one of the suit had already been disposed of by this Court and, therefore, the private parties cannot be allowed to use the Ordinance 1981 as a tool to settle personal score; moreso, it is against the freedom of movement of Petitioner as enshrined under Article 15 of the Constitution as well as under Articles 2- A, 4, 9, 14, 15 and 25 of the Constitution of Pakistan, 1973.
3. On repeated directions/orders of this Court, the concerned of NAB authority have shown their appearance from Headquarter @ Islamabad and submitted that the name of the petitioner is placed on Exit Control List under Section 2 of Exit from Pakistan (Control), Ordinance, 1981, vide Memorandum No, 12/133/2013/ECL, Islamabad, the September, 2, 2013, on the basis of following allegations as contained in letter No, 1(681)/2013/DO (R)/NAB Asstt. Dir (ECL) dated 9th May, 2013:-- "The accused person in connivance with other government officials misused the name of Turkish government and illegally and unlawfully imported large number of custom duty and tax free construction machinery, equipment and vehicles under the garb of using the same for flood affectees of 2010. Furthermore the accused also committed a fraud of Rs, 30 million by way of forging a pay order of bank and misappropriating the same".
4. In their para wise comments, the respondent No, 1 has submitted that after seeking clarification from NAB, the name of the petitioner was placed on ECL on 2-9-2013, on the recommendation of NAB on the charges that accused in connivance with other Government Officials used the name of Turkish government and illegally/unlawfully imported large number of custom duties and tax free construction machinery, equipment and vehicles under the garb of using the same for flood affectees of 2010 and committed a fraud of Rs, 30 million and inquiry in this respect is pending before the NAB. Para wise comments have already been placed on the record by the NAB wherein it is stated that inquiry conducted by them reveals that the petitioner has caused huge loss to state exchequer amounting of Rs, 29 million (approximately) and there are strong chances that he may abscond, therefore, his name was recommended to be retained on ECL. It is further asserted that the petitioner fraudulently/illegally applied/availed duties and taxes exemption and caused huge loss, which is an offence in schedule-5 of NAO Ordinance 1999.
5. Arguments advanced from both sides have been considered and record has also been perused.
6. Section 2 of the EPO, 1981 reads as follows:-- "2. Power to prohibit exit from Pakistan.---(1) The Federal Government may, by order, 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.
(2)Before making an order under subsection (1), it shall not be necessary to afford an opportunity of showing cause against the order .
(3)If while making an order under subsection (1) it appear to the Federal Government that it will not be in the public interest to specify the ground on which the order is proposed to be made, it shall be necessary for the Federal Government to specify such grounds".
7. On perusal of the provision referred to above, subsection (3) indeed reserves the right of the Federal Government to withhold the grounds on which order is proposed to be passed. Such withholding of the grounds is subject to the condition that, where it is "in the interest of public". In case the Government proposed to place the name of any person on ECL and there are circumstances, which justify such grounds are not to be disclosed in the public interest then there has to be finding recorded giving justification for not disclosing the reasons in exercise of authority to withhold such grounds "in the public interest" . However, where there is no public interest, Government cannot exercise any power to withhold the ground. Therefore, it cannot be said that in terms of subsection (3) ibid the Government has unfettered or unbridled authority to withhold the reason or ground under any and every circumstance.
8. It is an admitted position that the petitioner has not been served with memorandum of Federal Government whereby his name was placed on ECL and the aforementioned memorandum along with letter (as described at paragraph 3, ante) was placed on the record after when the Additional Director and Deputy Director summoned from Headquarter (a Islamabad were required by this Court to place on the record the memorandum along with other material. A perusal of allegations on the basis of which the name of the petitioner was placed on ECL shows that the petitioner is a tax evader and no action whatsoever in nature has been taken by FBR or by Inland Revenue. It need not to re-emphasize that if a person submits false and forged documents to any officer of Sales Tax knowingly or fraudulently makes false statement, false declaration, false representation, false personification, gives any false information or issuing or uses a document, which is forged or false, such person shall pay a penalty and liable upon conviction by a Special Judge under the Custom or Sales Tax Act. Admittedly, name of the petitioner has not been placed on ECL on the recommendation of FRB; the parties have already filed proceedings in shape of Civil Suits pending for adjudication and one of them viz. Suit No, 301/2013 has already been settled by compromise, therefore, the action initiated by the respondent No, 1, which amounts to misuse of powers, cannot be overlooked or ignored by this Court being custodian of Constitution.
9. The apex Court has time and again disapproved such actions of placing the name of citizen on ECL and prohibiting him from travelling abroad and has held inter alia that such actions are violative of the fundamental rights of the citizen guaranteed by the Constitution, particularly under the criteria drawn for placing the name of a citizen of Pakistan on ECL has not been met, the placement of his name on ECL is prima fade unjustified and amounts to denial of his fundamental right guaranteed under Article 15 of the Constitution. Federal Government (Ministry of Interior/respondent No, 1) was legally bound to place on record the material that prompted it to place the name on ECL in order to show that such exercise was not colorful. The right of a citizen to travel abroad is a fundamental right and an intrinsic part of the right to liberty as guaranteed by Articles 2-A, 4, 9, 15, 19 and 25 of the Constitution of Pakistan. No sufficient reasons or plausible cause on the basis of its intention of exercising power under section 2(3) of the Exit from Pakistan (Control), Ordinance, 1981 have been shown, for taking the action against the petitioner prohibiting him from travelling abroad. It has repeatedly been held in plethora of judgments by our Superior Courts that the Federal Government has to apply its mind while placing the name of a person on ECL, the exercise must not be mechanical in nature and must not be carried out on mere request of an Agency/Authority including NAB as the case may be. Reliance in this regard may conveniently be placed on (1) Government of Pakistan v. Dada Amir Haider Khan, PLD 1987 SC 504 (2) Habibullah Niazi v. Federation of Pakistan through Federal Secretary, Ministry of Interior, and 2 others, PLD 2009 Karachi 243 (3) Mir Khalid Langov v. Secretary, Ministry of. Interior, Government of Pakistan, Islamabad, PLD 2007 Quetta 41 (4) Wajid Shamas-ul-Hassan v. Federation of Pakistan, PLD 1997 Lahore 617 at 630 (5) Mian Ayaz Anwar v. Federation of Pakistan, PLD 2010 Lahore 230 (6) Rafi Ahmed and another v. Special Judge, Central, Lahore, and another, PLD 2010 Lahore 693 and a recent judgment of this Court in the case of Wasatullah Jaffery v. Ministry of Interior and others reported as PLD 2014 Sindh 28.
10. The Ministry of Interior and/ or Immigration Authorities could not place the name of a person on ECL, which amounts to restrict the freedom of his movement.In a mechanical manner, without applying its own mind and without issuing any reason, the facts of this case and the admitted position discussed above are sufficient to establish that the name of the petitioner was placed on the ECL by the Ministry of Interior in an arbitrary and purely mechanical manner without applying its own mind and passing any speaking order and showing/disclosing the basis of its intention of exercising powers under section 2(3) of Exit from Pakistan (Control) Ordinance, 1981, which action indeed violated the valuable fundamental rights of the petitioner as guaranteed by the Constitution of Pakistan, hence could not be sustained. In the instant case, the representatives of NAB, present in Court, categorically stated that the FBR or its sub-ordinate office Inland Revenue department has not recommended for placing petitioner's name on ECL and all liabilities against the petitioner are pending before this Court. Consequently, we are clear in mind that action of the Respondents in placing the name of the petitioner in ECL is without any valid reason and in violation of fundamental rights.
11. In view of whatever mentioned above, more particularly, in light of the case law reproduced ante, suffice is to say that the action on the part of the respondents by placing the name of the 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 freely movement of the petitioner cannot be compensated in terms of money, however, keeping in view, the irreparable loss and injury caused to the petitioner due to irresponsible duty and illegal act on the part of the respondent No, 1, the petitioner may have to claim damages from the competent forum for illegally and wrongly placing his name on ECL, if so advised. Resultantly, the instant petition is allowed and the respondent is directed to remove/delete the name of the petitioner from ECL forthwith under intimation to concerned quarters and to this Court as well, through MIT-II, High Court of Sindh @ Karachi.
12. Foregoing are the reasons for short order, announced on 8-5-2014 Whereby the instant petition was allowed.