' ABDUL MAALIK GADDI, J.--Through the instant Constitutional Petition filed under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks deletion of his name from the Exit Control List (hereinafter abbreviated as ECL).
2. Brief facts revealing from petition, as mentioned by the petitioner are that the petitioner is an importer of General Items and runs his business under the name and style of M/s. "Global Royal Group" and he is also paying the Income Tax as well as Wealth Tax to Government of Pakistan. In the year 2014, during the course of his business, the petitioner was threatened by the custom official to fulfill their illegal demands else implicating him in false cases of smuggling and when he failed to fulfill the illegal demands of the Custom officials, the Directorate General of Intelligence and Investigation FBR in connivance of Custom officials have registered two FIRs bearing Nos.M- 1961/DC1/Seize/2014 and M-1963/DC1/Seize/2014 against him on the allegation that he stored the huge quantities of smuggle items (Cigarettes and Naswar) in the Godown without paying any duty/tax to 'the custom department. The aforesaid cases have been disposed of by the learned Special Judge vide judgment dated 16-09-2014 by convicting the petitioner till rising of the Court and fine of Rs,50,000/- and in default the petitioner shall suffer S.I. for two months more. Fine imposed has been deposited by the petitioner in Government Treasury. On 23-11-2014, when petitioner intends to leave abroad for his business trip and it was shocking to know when reached at the Jinnah International Airport Immigration Counter that under the letter issued by the Ministry of Interiors, his name has been placed on the ECL.
3.Parawise comments have been filed by the Respondent No,1 wherein it is stated that the name of the petitioner was placed in ECL on 19-08-2014 on the recommendation of FBR, as an FIR No,M- 1961/DC1/Seize/2014 has been lodged against him due to seizer of huge quantities of smuggled goods.
4.Mr. Aamir Mansoob Qureshi Advocate has appeared on behalf of the petitioner has contended that the name of the petitioner has been placed on ECL unlawfully and malafidely in as much as the petitioner has neither been put on notice before placing his name on ECL nor he was informed about the restriction imposed upon him. He has further argued that mere registration of criminal cases do not give the right to the respondent to place the name of the petitioner on ECL. He has further added that both the criminal cases registered against petitioner have been disposed of and ended in conviction of the petitioner. The sentenced awarded to the petitioner by the learned trial Court has been served out and the amount of fine has been deposited in Government Treasury. In support of this limb of argument he has submitted certified copies of judgments announced on 16-09-2014 by the learned trial Court whereby the petitioner has been awarded punishment of simple imprisonment till rising of court and fine of Rs,50,000/-. However, as per petitioner's counsel no appeal so far has been filed against these judgments.
5.Learned DAG has relied upon the comments filed by Respondent No,1 and'submits that the petitioner is a convict in the FIRs bearing Nos. M-1961/DC1/Seize/2014 and M-1963/DC1/Seize/2014 by the competent *court of law, therefore, the petitioner is not entitled for relief as claimed. He however, submits that he has no record to show that any government liability or due lies against the petitioner.
6.Argument of learned counsel for the petitioner as well as learned Deputy Attorney General heard.
Material made available on the file perused.
7. Before discussing the merit of the case, it would be appropriate to reproduce Section 2 of the Exit from Pakistan (Control) Ordinance, 1981 (Ordinance XLVI of 1981) which reads as under:- 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 (I) it appears to the Federal Government that it will not be in the public interest to specify the grounds on which the order is proposed to be made, it shall not be necessary for the Federal Government to specify such grounds.
8. After going through the above provision, we are of the considered view that the cause assigned for placing the name of the petitioner on ECL was not a reasonable for curtailing the liberty of a citizen to travel abroad. However, this liberty can be curtailed if it was shown that foreign visit of the petitioner could endanger the security of the state and/or was against the public interest. No such material available on record to justify the action of the respondents. Articles 4, 9, 15 and 25 of the Constitution have made it vivid that every citizen has the liberty to travel abroad and enter into Pakistan unless he is precluded A under the law made in the public interest. The restraining order passed by the respondents under Section 2(3) of Exit from Pakistan (Control) Ordinance XLVI, 1981 was thus to be made in public interest and validity must be judged on the touchstone of reasonableness and fairness. It is well settled that mere pendency of criminal or civil litigation against .a citizen is no ground to deny the freedom as guaranteed by the Constitution to travel within or out of Pakistan. To fortify the above view, reference can be made to the following cases:- 1.State of the Islamic Republic' of Pakistan v. Zulfiqar Ahmed reported in 2005 SCMR 1469.
2.Khan Muhammad Mahar v. Federation of Pakistan reported in PLD 2005 Karachi 252.
9.We have also gone through the case of Messrs United Bank Ltd. v. Federation of Pakistan and others reported in 2014 SCMR 856, Habibullah Niazi v. Federation of Pakistan through Federal Secretary, Ministry of Interior, Pakistan Secretariat, Islamabd and 2 others reported in PLD 2009 Karachi 243 and Saleem Akhtar v. Federation of Pakistan and another reported in PLD 1999 Karachi 177.
' In these case laws it has been held that although the power purportedly vested in the Federal Government has apparently unfettered and unrestricted, to place the name of a citizen whose activity is endanger to the state, yet the same must be exercised fairly, reasonably, justly and in accordance with the law and the Constitution but herein this case admittedly the petitioner was not informed by authorities regarding placing his name on ECL and the entire episode has been kept secret. The reason advanced for placing the name of the petitioner on ECL (pendency of two criminal cases against him) though not justified, has vanished as both the cases have been disposed of, in view of the certified copies of the judgments of the trial Court on record resulting in conviction of petitioner as such there was no occasion to keep his name on the ECL. When confronted with learned DAG whether there is any government liability or due lies against the petitioner, he had no answer.
10.Even otherwise we have gone through the reason for placing the name of the petitioner on ECL, it appears that the same has been placed on ECL in a mechanical manner by the Ministry of Interior without applying its mind and without giving any plausible reason for such decision. This is a bald order and is also hit by Section 24-A of General Clauses Act, 1897 as such cannot be sustained. Under the given circumstances, we are, therefore, clear in our mind that the action of the respondents in placing the name of the petitioner on ECL in the given circumstances is wholly arbitrary, unjust and without any valid reason.
11. In view of the above discussion, we while allowing this petition, direct the Ministry of Interior to remove the name of petitioner from ECL. Copy of this order be faxed to the Ministry of Interior for compliance.
12.This petition was allowed in Court by our short order dated 28-05-2015 and these are the detailed reasons for the same.