' HAFIZ SHAHID NADEEM KAHLOON, J.---Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has made the following prayer:-- ' This writ petition be accepted and policy by which the name of the petitioner has been blacklisted may be declared ultra vires to the Constitution of Islamic Republic of Pakistan 1973 and consequently the memorandum dated 02.03.2015 be declared illegal, unlawful and against the fundamental rights of the petitioner guaranteed by the Constitution and respondents be ordered to remove the name of the petitioner from the list of Exit Control List immediately without any delay so the petitioner can go back to Italy for his legal stay over there."
2. The brief facts of the case are that the petitioner along with his family i.e. Wife and minor children was settled at Italy since long, who is driver by profession there. In the year 2011 the petitioner was going back to Italy, when he was involved in a false case FIR No.24-2011 dated 10.05.2011 registered under Section 9(b) of Control of Narcotic Substances Act, 1997 on the alleged recovery of heroin weighing 135-grams. The petitioner had faced trial and convicted by trial Court and resultantly convicted and sentenced for two months with a fine of Rs.15,000/- vide order dated 03.03.2012. The petitioner had undergone the sentence and after depositing of fine Rs.15,000/- he was released from the Jail. After the release from jail, the petitioner went back to Italy. After two years, the petitioner came back to Pakistan at Lahore Airport when the officials of Director General, Immigration. And Passport, Headquarter, Islamabad (respondent No.2) held the passport of petitioner No.AX-6172242 and told the petitioner that he had been placed under the blacklist category under ID No 40481 vide letter dated 20.03.2014. The petitioner made an application to respondent No.3 (Ministry of Interior & Narcotic Control Division), Lahore for the removal of his name from Exit Control List and for the release of his passport, but his request was turned down vide letter dated 11.04.2014 and respondent No.3 forwarded the matter of the petitioner to respondent No.2, who vide letter dated 01.12.2014 declined the request of the petitioner by observing "Not Recommended" and refused to remove the name of petitioner from ECL before completion of stipulated term of 5 years. Hence, this writ petition.
3. The learned counsel for the petitioner submits that earlier, the petitioner filed writ petition No.29633-2014 for the redressal of his grievance, which was disposed of by this Court on 20.01,2015 with the direction to respondent No.2 to decide the matter of the petitioner within ten days positively after the receipt of order of this Court, but respondent No.2 did not comply with order and the petitioner was constrained to file Criminal Original No.292-W-2015 before this Court, wherein respondent No.2 was summoned, who appeared on 27.02.2015 and undertook to decide the matter of the petitioner in compliance of order dated 20.01.2015, but he declined the request of the petitioner. He further submits that the family of the petitioner including the minor children is at the high risk and their legitimate stay at Italy is under question. The visa of the petitioner is about to expire. The petitioner was falsely involved in a fake case and just to save his future, he was forced to confess for what he never done so. He served entire sentence and deposited the fine. He further contended that inclusion of name of the petitioner in ECL amounts to double jeopardy which is prohibited under Article 13 of the Constitution, which is against the fundamental rights of the petitioner guaranteed by the Constitution of Pakistan. Consequently, prayed to exclude the name of the petitioner from the Exit Control List as he has no relations with International Drug Trafficking Organization and National Gang/group. In support of his contention, he relied upon case reported as "Sh. Muhammad Manson, v. Government of Pakistan through Secretary, Ministry of Interior and 3 others" (2008 MLD 955), "Sohail Latif and 2 others v. Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan and 2 others" (PLD 2008 Lahore 341), "Dr. Rukhshanda Parveen v. Federation of Pakistan and others" (PLD 2008 Islamabad 5) and "Naveed Zaheer v.
Federal Government of Pakistan, etc. "(2008 CLC 1607).
4. The learned law officer has opposed the submission of the petitioner and stated that he was involved in narcotic case, therefore, the petitioner is not entitled to the relief as prayed for.
5. Arguments heard and record.
6. It is admitted fact that the petitioner was intercepted by the Narcotics' force having contraband material (heroin) weighing 135-grams in his possession. There-after, the petitioner was sent-up for trial. According to the learned counsel for the petitioner, due to pressure of his minor children at Italy and other domestic circumstances, in order to manage them, the petitioner had no option but to confess what he never done so. Whereupon he was convicted and awarded sentence of two months with a fine of Rs.15,000/- by the learned Judge, Special Court for Control of Narcotic Substances. The petitioner after serving out his entire sentence imposed by the Court of Control of Narcotic Substances Act, 1997 went abroad. During this period, the Director General Immigration never initiated any proceeding to include the name of the petitioner in the Exit Control List and surprisingly after elapse of considerable time of his release, the Ministry of Interior inserted the name of the petitioner in Exit Control List despite the fact that there is no any adverse material qua the activities of the petitioner. The petitioner was never remained member of any International Gang or group Smugglers in respect of narcotic. The learned law officer appeared on behalf of the respondents could not point out any such activity pending against the petitioner.
7. According to Section 2(3)(C) of the Exit from Pakistan (Control) Rules 2010, the ingredient of insertion in Exit Control List is only that the petitioner has been convicted by the competent Court of law. In this case the petitioner has been served out entire sentence awarded to him by the competent Court of law. According to above said Section 2(3)(C) of the Exit from Pakistan (Control)
Rules, 2010, it reveals that the Federal Government may insert the name of the petitioner for a period which it thinks fit, who were convicted for drug trafficking.
8. The learned Special Prosecutor for A.N.F. When confronted with the query by this Court, whether the Federal Government owe any history of the present petitioner in drug trafficking, he could not produce any history thereof.
9. Be that as it may, without commenting upon the insertion of the name of the petitioner in the Exit Control List for 5-years, the punishment imposed is so harsh. Therefore, keeping in view the quantity of narcotic recovered from the petitioner, which marginally exceeds the upper limit of Section 9(a) Control of Narcotic Substances Act, 1997, the period already under gone will meet the end of justice.
10. As a sequel and crux of my aforesaid findings is that I am inclined to direct the Federal Government of Pakistan (respondent) to exclude/remove the name of the present petitioner from Exit Control List forthwith and hand over the travelling documents to the petitioner immediately under intimation to this Court through the Deputy Registrar (Judicial)
Resultantly, the instant writ petition is partially allowed.