' IJAZ UL AHSAN, J.---The petitioners, who were honourary members of the Evacuee Trust Property Board (ETPB), seek a direction to respondent No,1 to remove their names from the Exit Control List (ECL).
2. The brief facts of the case are that on the basis of a news item published in various daily newspapers and letters sent by the Sikh Community, the then Hon'ble Chief Justice of Pakistan took Suo Motu notice in case No,9 of 2011 against the irregularities committed by Mr.Asif Akhtar Hashmi, Former Chairman ETPB regarding sale/transfer transactions with Defence Housing Authority, Lahore involving property owned by ETPB. Respondent No,2 Federal Investigating Agency ("FIA") submitted a report before the Hon'ble Supreme Court of Pakistan, pursuant to which vide order dated 25-7- 2013, the Hon'ble Supreme Court of Pakistan inter alia directed initiation of civil and criminal proceedings against the Former Chairman, Mr. Asif Akhtar Hashmi and all others, who were directly or indirectly responsible for the illegalities committed in relation to property belonging to ETPB.
Respondent No,2 was also directed to expedite the inquiry and send a report to the Hon'ble Supreme Court of Pakistan. On the request of respondent No,2, the names of the petitioners were placed by respondent No,1 on the Exit Control List.
3. The learned counsel for the petitioners submits that neither any show-cause notice nor intimation regarding placement of the names of the petitioners on the ECL was given to them. He maintains that the acts of the respondents are in clear violation of Article 9 of the Constitution of Islamic Republic of Pakistan, 1973, which prohibits any action depriving or restricting liberty of a citizen without sufficient cause. He maintains that in these circumstances, a representation/review under section 3 of the Exit From Pakistan (Control) Ordinance, 1981 (the Ordinance) has become redundant. The learned counsel for the petitioner further submits that the judgment of the Hon'ble Supreme Court of Pakistan speaks of initiation of an inquiry against people who were responsible.
He points out that names of the petitioners were placed on the ECL before determining or ascertaining responsibility. The learned counsel argues that there is not an iota of evidence against the petitioners and the challan submitted by respondent No,2 before the learned Special Judge (Central), Lahore finds no mention of any evidence against the petitioners. He further maintains that the challan expressly mentions the fact that no harm/wrong has been caused to the public exchequer and whatever wrong may have been caused has been remedied. The learned counsel further submits that it is prima facie evident that there is neither any possibility nor probability of the petitioners absconding from Pakistan. The actions of the respondents constitute violation of due process rights of the petitioners and the impugned actions militate against fundamental rights guaranteed to the petitioners by the Constitution of Islamic Republic of Pakistan, 1973.
4. Parawise comments were sought from the respondents, which have been filed and perused. The stance taken by respondent No,I is that the names of the petitioners were placed on the ECL on 7- 6-2013 on the recommendation of respondent No,2. A progress report of the inquiry initiated by the FIA Zonal Office, Lahore, was to be submitted before the Hon'ble Supreme Court of Pakistan in Suo Motu case No,9 of 2011 and the action was necessary to prevent the petitioners from leaving the country to avoid their possible arrest due to their alleged involvement in a property scam, which was the subject matter of proceedings before the Hon'ble Supreme Court of Pakistan. In the report and parawise comments filed on behalf of respondent No,2 FIA, it has categorically been stated that, the total loss caused to ETPB has been recovered as the DHA has unconditionally agreed in writing to accept ,the decision of ETPB taken in its 263rd meeting held on 23-7-2007 and the said letter has been placed before the Hon'ble Supreme Court of Pakistan. It is further stated that at the relevant time in view of the fact that there was apprehension that the petitioners would leave the country in order to avoid inquiry and investigation, their names were rightly placed on the ECL.
' The learned Deputy Attorney General for Pakistan has reiterated the stance taken in the parawise comments.
5. Mr. Jamil Ahmad Khan, Assistant Director/Investigating Officer is present in Court. He has stated that a supplementary challan has already been submitted before the learned Special Judge (Central), Lahore, a copy whereof has also been placed on record. He has also stated that the petitioners are appearing before the learned trial Court in the main case and are, no longer required for further inquiry/investigation by respondent No,2. He has also pointed out that the loss caused to ETPB stands recovered in its entirety. However, the matter before the learned Special Judge (Central), Lahore has yet to be decided. He has also confirmed that the petitioners were admitted to pre-arrest bail, which was subsequently confirmed by the learned Special Judge (Central), Lahore.
6. Heard. Record perused.
7. The only question requiring determination at this stage is whether there is any lawful reason or justification to retain the names of the petitioners on the ECL. On hearing the learned counsel for the parties and examining the record, my answer to the above question is in the negative for the following reasons:-- I. Admittedly, the names of the petitioners were placed on the ECL on the request of respondent No,2 FIA. Mr. Jamil Ahmad Khan, Assistant Director/Investigation Officer, who is present in person before this Court has categorically stated that challan has been submitted before the learned trial Court. The petitioners are appearing in the case and the loss of ETPB also stands recovered in its entirety. He has not specifically denied the assertion that so far, no incriminating material has been found against the petitioners that may show that they were beneficiaries of the alleged offence that may have been committed by other members of the Board and/or its Ex-Chairman. He further submits that the petitioners are no longer required by him in any further inquiry or any investigation.
II. It has categorically been stated in the parawise comments filed on behalf of the FIA that the Defence Housing Authority vide its letter dated 2-11-2013 has expressed its willingness to implement the order of the honourable Supreme Court of Pakistan dated 2-10-2013 and has accepted the decision of the Board of ETPB taken in its 263rd meeting held on 23-7-2007 in its totality.
Consequently, DHA has agreed to handover 33% plots to ETPB as against 25%, as agreed in the subsequent 272nd meeting of the said Board, which prompted the afore noted proceedings. This has resulted in recovery of loss of Rs,972 million against 108 plots of I-Kanal each. Further, in view of the fact that the honourable Supreme Court of Pakistan had ordered that DHA shall not be entitled to recover any compensation, if it had paid any to obtain possession, or on development of the land. Therefore, loss of ETPB on account of expenditure earlier claimed by DHA from ETPB for vacation of Dera Chahal land i,e, Rs,18 million also stands recovered. Likewise, compensation of 657.77 million allegedly paid by DHA to private investors for taking possession of ETPB land will also not be claimed by DHA from ETPB nor development charges of Rs,287 million will be recovered. The parawise comments also concede that the total loss caused to ETPB has been recovered as DHA has agreed vide its letters dated 11-11-2013 and 8-4-2014, conveying its unconditional and unqualified acceptance of decision of ETPB Board 263rd meeting held on 23-7-2007. The said letters have also been produced before the honourable Supreme Court of Pakistan.
III. Perusal of the challan indicates that the investigating agency during the course of investigation obtained financial analysis report from technical/banking experts, which revealed that all transactions relating to the accounts of the petitioners were found in order and no abnormal transactions were found. The challan further categorically states that receipt of kickbacks/commission could not be established through banking channels. The investigating agency in the supplementary challan has also stated that if any incriminating material comes forth against any of the petitioners or others, a supplementary report will be submitted. I have specifically asked the investigating officer, if any incriminating material has been discovered against the petitioners and/or placed before the trial Court, he has responded in the negative.
IV. The material placed before this Court indicates that presently there is no incriminating material available with the investigating agency. The matter is pending before the trial Court, where the petitioners are appearing and have also been admitted to pre-arrest bail. The specific facts and circumstances of this case narrated above do not furnish sufficient basis to deny the petitioners the benefit of fundamental rights guaranteed to them under the Constitution.
V. Admittedly, no notice was served on any of the petitioners before placing their names on the ECL.
On receipt of request from the Federal Investigating Agency, respondent No,1 mechanically and without due application of mind placed the names of the petitioners on the ECL. All actions were taken against the petitioners behind their back, without giving them any opportunity of being heard or adhering to the principles of natural justice and due process. An action as drastic as taking away a fundamental right cannot, be allowed to be taken without adhering to the principles of law, natural justice and due process.
VI. In "Munir Ahmad Bhatti v. Government of Pakistan, Ministry of Interior" (PLD 2010 Lahore 697), this Court has examined similar questions of law and has held as follows:- "It is established law that the involvement of a person in litigation civil/criminal is no ground to put his name on ECL unless the ,court where the matter is subjudice passes specific order in this regard. Needless to say that the only ground which the bank has for placement of name on ECL is an alleged claim for recovery for which the bank has filed a suit under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, which is pending before this court and has not been decided yet. Only the court where suit is pending has the jurisdiction to determine whether the claim of the bank is true and whether the customer has defaulted in fulfillment of his obligations. Even otherwise the bank cannot become a judge of its own cause and cannot declare the petitioner as defaulter without any verdict from the court in this regard.
' It is an admitted fact that neither the trial Court nor any other Court of competent jurisdiction has so far passed any order directing the Federal Government to place the names of the petitioners on the Exit Control List.
VII. The honourable. Supreme Court of Pakistan in various judgments has stressed upon holding fundamental rights with specific reference to dignity of man and right of movement. In the case reported as "Higher Education Commission through Project Manager v. Sajid Anwar and others"
(2012 SCM R 186), the Apex Court held as follows:- "In pursuance of an agreement supported by a bond, the competent authority, who awarded scholarships to respondents for higher education outside the country subject to the conditions laid down therein, at the best could have enforced the agreement or bond but had no jurisdiction to deny fundamental rights of respondents enshrined under Articles 14 and 15 of the Constitution In absence of any restriction imposed by law as it had been envisaged under Articles 14 and 15 of the Constitution, the Authorities had acted illegally and denied constitutional rights of respondents.... If Authorities had any grievance, they could have approached Court of law and enforced the agreements of bond or could claim any relief under civil litigation.... No criminal action torturing educated persons, to have them off loaded at the instance of Higher Education Commission and allegedly keeping them in lockup for several hours, could be justified.... Despite knowing that their action was illegal, authorities had assailed the judgment passed by High Court for relief of leave to appeal."
VIII. In "Messrs Zurash Industries (Pvt.) Ltd. Through Director and 4 others v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and 3 others" (2001 CLD 511), another learned Division Bench of the Sindh High Court in similar circumstances held as follows:-- "Petitioner was Director of company which had obtained financial facility from respondent-bank which had filed recovery suit and criminal complaint against the petitioner and his company....
Petitioner challenged inclusion of his name in the Exit Control List without any notice or information to him.... Right to travel abroad was an important feature of citizen sliberty Provision of notice must be read as an integral part of each statute unless specifically excluded.... Person concerned must be heard before passing an adverse order against him.... Show cause notice must follow the order which should disclose reasons for the action taken against a person.... Order barring a person from going abroad , without reasons was liable to be set aside If there was provision in the substantive law under which a person was being proceeded against (that his name be placed on exit control list) it would not be permissible to put his name in the exit control list.... Pendency of criminal cases did not, ipso facto, disentitles a person from travelling abroad.... Petitioner's leave to defend in recovery suit had yet to be decided.... Placement of petitioner's name on the Exit Control List was clumsy exercise of power in circumstances ...."
' Similar view was taken by this Court in two unreported judgments rendered in W. P. No 30730-2010 and W.P. No,7713-2010.
IX. The learned counsel for the respondents have also frankly conceded that all the petitioners have already been admitted to F pre-arrest bail by the learned trial Court,. Which stands confirmed. The petitioners have also furnished bail bonds to the satisfaction of the learned trial Court as per its orders. Further, in case respondent No,2 finds any material against the petitioners and apprehends that they would abscond from the country, it can move an appropriate application with the learned trial Court for such, orders as may, be necessary. In that eventuality, the learned trial Court may exercise jurisdiction vested in it by law and pass such orders as may be appropriate.
X As far as the remedy of review is concerned, in the facts and circumstances of the present case, the same has become illusory and redundant. A review application would be an exercise in futility considering that the petitioners have been deprived of fundamental rights guaranteed in Chapter- II of the Constitution of Islamic Republic of Pakistan, 1973. It is well settled that any action without sufficient cause depriving or restricting liberty of a citizen cannot be taken and the State must jealously safeguard the liberty of its individuals. Therefore, the petitioners are not debarred from approaching this Court in exercise of its constitutional jurisdiction for enforcement of their fundamental rights. Even otherwise, the questions raised in this petition involve interpretation of the Constitution and enforcement of fundamental rights of the petitioners in the context of section 2 of the Exit from Pakistan (Control) Ordinance, 1981 and the Exit from Pakistan (Control) Rules, 2010. In these circumstances, the remedy of review does not constitute adequate remedy for the purpose of Article 199 of the Constitution. As such, the petition is held to be maintainable. Reference in this regard may usefully be made to a judgment of this Court reported as "Mian Ayaz Anwar, v.
Federation of Pakistan through Secretary Interior and 3 others" (PLD 2010 Lahore 230).
XI. In the case reported as "Wajid Shamas ul Hasan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad" (PLD 1997 Lahore 617), the provisions of Section 2 of the Exit from Pakistan (Control) Ordinance, 1981 were examined with reference to Articles 199, 2-A, 4, 9, 15 and 25.
In the said case, this Court held as follows:- "Right of a citizen to travel abroad, being a fundamental right guaranteed by Articles 2-A, 4, 9, 15 and 25 of the Constitution of Pakistan, 1973, abridgment of such right by the State through legislative measures has to be tested on the touchstone of the constitutional provisions....
Provisions of section 2, Exit from Pakistan (Control) Ordinance, 1981, failing to provide any guidelines or reasonable classification for taking action against a person prohibiting him from travelling abroad and denying him valuable right of being heard and of knowing the reasons for such an action, was ex facie discriminatory as also capable of being administered in a discriminatory manner."
XII. Even otherwise, in view of the stance taken in the parawise comments, the facts narrated in challan and the statement made by Mr. Jamil Ahmad Khan, Assistant Director FIA/Investigating Officer, it is clear and obvious that there is no lawful reason, justification or ground available at this stage to retain the names of the petitioners on the ECL or to deny them their fundamental right of freedom of movement.
' During the course of proceedings before this Court C.M. No,3 of 2014 was moved on behalf of Mr. Ezra Bulbul (Ezra B. Shujat) son of Ch. S. Fateh Jang on the ground that he was also an honourary member of the Board of Directors of ETPB, his name was initially not placed on the ECL, but subsequently while he was to travel abroad to participate in a conference, he was informed that his name had also been placed in the ECL. He, therefore, sought permission to be impleaded as a party in view of the fact that his case was at par with that of the other petitioners. None of the parties has any objection if C.M. No,3 of 2014 is allowed. The same is accordingly allowed and the applicant is impleaded as a party. He would, therefore, also be entitled to the benefit of this judgment.
9. For the reasons recorded above, I find that there is no lawful reason or justification at this stage to retain the names of the petitioners in the ECL maintained by respondent No,
1. This petition is accordingly allowed. Respondent No,1 is directed to remove the names of the petitioners from the ECL forthwith. It is, however, clarified that the observations made and findings recorded in this judgment are based on a tentative assessment of the material placed before this Court only for the purpose of deciding the issue of retention of names of the petitioners on the ECL. The learned trial Court, which is seized of the matter shall not be influenced by any observation made or findings recorded herein and shall proceed with the trial on the basis of material and evidence before it through independent application of mind to the merits of the case.