'ABID AZIZ SHEIKH, J.--- Through this constitutional petition, the petitioners are seeking direction against the respondents to remove their names from the Exit Control List (ECL) and they be permitted to travel abroad freely. Further declaration is sought that letters/memorandums dated 13.03.2012 and 23.01.2013 be declared without lawful authority and of no legal effect.
2. Brief facts are that petitioners as a family are acting through corporate entities namely M/s. Vita Pakistan Limited ("M/s. VPL") and M/s. EM5 Nutraceutical Private Limited ("M/s. EM5 NPL") and are inter alia engaged in the business of manufacturing, marketing and sales of various consumer products including fruit juices, dairy milk, breads, biscuits etc. The petitioners vide letters/memorandums dated 13.03.2012 and 23.01.2013 were informed that in view of decision taken by the Ministry of Interior, petitioners names have been placed on ECL in terms of section 2 of Exit from Pakistan (Control Ordinance), 1981 "("Ordinance"). Though no detail or reasoning for putting their names in the ECL was given in the impugned letters/memorandums, however, it is admitted position that the placement of petitioners' names on ECL was on account of alleged investigation/inquiry by the officials of NAB in respect of contract awarded by Ministry of Social Welfare and Special Education, Government of Pakistan under tawana Pakistan Project for supply of nutrition packages for schools to M/s. VPL and M/s. EMS NPL, being violative of PUblic Procurement Rules, 2004 (PPRA Rules, 2004). The petitioners Nos.1 and 2 being directors of M/s. VPL and petitioners Nos.3 and 4 being directors of M/s. EM5 NPL were placed on the ECL vide impugned memorandums. Subsequently petitioner No,1 was arrested and entered into a plea bargain with the NAB authorities. The said plea bargain was approved by the Chairman NAB and finally by the Accountability Court vide order dated 26.02.2013. According to the terms of the plea bargain, the petitioner No,1 being director of M/s. VPL and M/s EM5 NPL agreed to return total liability of .Rs,16,10,96,427/- along with 15% incidental charges of Rs,24,164,464/-. 34% of the amount was to be paid as down payment and remaining in two equal installments. In case of failure to deposit the balance amount within stipulated period, as per plea bargain, the NAB authorities could recover the same through sale of their properties and encashment of cheques deposited with the NAB as a collateral by the " Accused. The detail of properties and cheques was also given in the application for plea bargain. This fact is not disputed that in pursuance to the aforesaid plea bargain, the petitioner No,1 has already made payment of Rs, 12,41,55,480/- and remaining amount of Rs,6,10,05,420/- is yet to be recovered 'from the petitioners. However, till date neither properties retained as collateral are sold to recover the remaining amount nor any reference has been filed by the NAB authorities. The petitioners repeatedly approached the NAB authorities for removal of their names from the ECL, however, the said request was not acceded to by the respondents, hence this constitution petition has been filed by the petitioners.
3. The learned counsel for the petitioners argued that the names of petitioners were placed in the ECL without giving any prior notice, ,hearing or assigning any reasons or ground in the impugned letters/memorandums dated 13.03.2012 and 23.01.2013. Submits that after placing name on ECL, the petitioner No,1 had already entered into , plea bargain dated 26.2.2013 with the NAB authorities wherein it was agreed that amount of Rs,16,10,96,427/- plus 15% incidental charges of Rs,24164,464/- be paid in installments. Submits that admittedly out of aforesaid liability, an amount of Rs, 12,41,55,480/- has already been paid and only an amount of Rs,.6,10,05,420/- is payable.
Submits that under clause 8 of the Plea Bargain, in case of default of payment of balance amount, the NAB authorities have a right to recover the balance amount ' by way of selling the properties.
And encashment of cheques deposited with the NAB as collateral, therefore, not removing the names of the petitioners from the ECL after plea bargain dated 26.2.2013 is not only illegal but also against terms of plea bargain and will also serve no fruitful purpose for the NAB authorities. Further submits that ECL is not a vehicle to harass and make recovery from the petitioners which can be recovered by sale of properties in due course of law as agreed in the plea sbargain. Further argued that petitioners Nos.3 and 4 were already granted one time's permission to travel abroad by the Ministry of Interior in December, 2013 and they did not misuse the aforesaid concession, therefore, there is no reason to retain the petitioners' names on the ECL any further. Contends that the impugned orders are violative of petitioners' fundamental right of freedom of movement guaranteed 'under Articles 4 and 9 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"). Reliance is placed on Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others (PLD 2010 Lahore. 230), Higher Education Commission through Project Manager v. Sajid Anwar and others (2012 SCMR 186), Sheikh Muhammad Yousaf and another. v.
District Collector/District Registrar ,(DOR) Okara and 4 others (PLD 2010 Lahore 123), Habib Ullah Niazi v. Federation of Pakistan through Federal Secretary, Ministry of Interior, Pakistan Secretariat, Islamabad and 2 others (PLD 2009 Karachi 243), M/s. Zurash Industries (Pvt.) Ltd. Through Director and 4 others v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and 3 others (2011 CLD 511), Munir Ahmad Bhatti v. Govt. Of Pakistan, Ministry of Interior, through Secretary and others (PLD 2010 Lahore 697), Mian Munir Ahmed v. Federation of Pakistan and others (2008 YLR 1508), Wajid Shamas-ul-Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad (PLD 1997 Lahore 617), Sheikh Niaz Anjum v. Govt. Of Pakistan etc. (2012 CLD 1133), Sohail Lauf and 2 others v. FOP through Secretary, Ministry of Interior, Islamabad (PLD 2008 Lahore 341), Malik Mushtaq Awan v. Govt. Of Pakistan and others (PLD 1999 Lahore 372). Learned counsel for the petitioners in response to preliminary objections on maintainability of this petition, having alternative remedy of review and territorial jurisdiction with Islamabad High Court, argued that the review under the Ordinance is illusionary and is neither .An adequate and efficacious remedy in view of the facts and circumstances of this case. Further submits that as the petitioners are residents of Lahore and the impugned letters/memorandums were also served to the petitioners at Lahore, therefore, partial cause of action has arisen at Lahore, hence this Court has the jurisdiction in the matter. Adds that Federation being a party, the constitutional petition can be filed before this Court at Lahore.
4. Learned counsel for respondent-NAB raised a preliminary objection that all the respondents being based at Islamabad and the matter also pertain to NAB, Office at Islamabad, this Court has no jurisdiction in the matter and in view of provision of Section 20, C.P.C. And as per provisions of Islamabad High Court Act, 2010, only Islamabad High Court has exclusive jurisdiction. Reliance is placed on order dated 13.6.2013 in Writ Petition No,21042/2012, B.N. Alias and Co. Ltd. v. State of West Bengal AIR 1959 Cal. 247 and Achut Anant Pal v. Governor General in Council AIR 1955 Cal.
331. Further submits that the petitioners have not availed the alternative remedy of review under the Ordinance, therefore, this constitutional petition is not maintainable. Reliance is placed on Jahangir Badar v. Federation and others PLD 2004 Lahore 478 and Muhammad Younas Marwat v.
Govt. Of Pakistan through Secretary Ministry of Interior and three others 2010 YLR 1573. On merits, learned counsel for the respondent-NAB argued that the petitioner No,1 entered into a plea bargain which amounts to conviction under the law. Submits that under the plea bargain, the petitioners have already paid liability of Rs,12,41,55,480/- whereas remaining amount of Rs,6,10,05,420/- is yet to be recovered from the petitioners, therefore, their names cannot be removed from the ECL unless the aforesaid amount is paid by the petitioners.
5. Learned Deputy Attorney General aclopted the aforesaid arguments of learned counsel for the respondent-NAB.
6. Heard the arguments of the counsel for the parties and have also gone through the record through their able assistance.
7. Before touching merits of the case, I would like to dilate upon the question of territorial jurisdiction of this Court to entertain this petition. The petitioners have impleaded Federation of Pakistan, FIA, DG Immigration and Passport and NAB as respondents in this petition. No doubt the addresses of the respondents are of Islamabad, however, the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan is not contingent upon residence of respondents but it requires that a person/authority/functionary of State against whom the writ is sought to be issued shall be operating or be amenable to the jurisdiction of this Court. The ehments embodied in Section 20 of Civil Procedure Code, 1908 (C.P.C.) cannot be introduced in Article 199 of the Constitution. Applying this principle to facts and circumstances of the case in hand, it is quite clear that respondents are Federation and Federal Institutions who operates within the territories of whole of Pakistan and therefore, amenable to jurisdiction of this Court. In this context, reliance is placed on Sh. Abdul Sattar Lasi v. Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs, Islamabad and 6 others 2006 CLD 18, The Superintendent of Police Headquarter, Lahore and 2 others v. Muhammad Latif PLD 1988 SC 387, Muhammad Idress v. Govt.
Of Pakistan through Secretary Establishment Division, Islamabad and 5 others 1998 PLC (C.S.) 239, Trading Corporation of Pakistan (Private) Limited v. Pakistan Agro Forestry Corporation (Private)
Limited 2000 SCMR 1703 and Mst. Shahida Masood v. President of Pakistan and another 2005 SCMR 1746. As far as jurisdiction of Islamabad High Court is concerned, its jurisdiction is prescribed under Section 4 of the Islamabad High Court Act (XVII of 2010). This Court in Khalid Habib v. Pakistan Telecommunication Corporation Ltd. And others 2014 PLC (CS) 203 while interpreting provision of Section 4 ibid, held that Islamabad High Court and this Court have concurrent jurisdiction on Islamabad Capital Territory. It is expedient to reproduce the relevant extract of the aforesaid judgment as under:- 'The other argument of learned counsel for respondent is that under clause 4 of the Islamabad High Court Act, 2010, Islamabad High Court has the absolute jurisdiction in respect of Islamabad capital territory. The impugned order is passed at Islamabad and the Islamabad High Court is enjoying the jurisdiction; hence the jurisdiction of Lahore High Court is ousted. The perusal of section 4 of Islamabad High Court Act, 2010 will show that Islamabad High Court has the jurisdiction in respect to the Islamabad capital territory original, appellate, revisional and other jurisdiction as under the Constitution or the laws in force immediately before the commencement of the Act. Islamabad High Court is enjoying the jurisdiction in respect of said territory which was earlier enjoyed by the Lahore High Court. The words used in Section 4 are "as under the Constitution is exercisable in respect of the said territory by the Lahore High Court, Lahore" which shows that before promulgating of Islamabad High Court Act, 2010, the Lahore High Court was enjoying the jurisdiction on the Islamabad capital territory. The words used in this Section as "is exercisable in respect of the said territory of Lahore High Court" are clear in nature. The word has been used as "is meaning thereby in spite of promulgation of Islamabad High Court Act, 2010, the Lahore High Court has the jurisdiction on Islamabad capital territory; meaning thereby the Lahore High Court Lahore and Islamabad High Court are enjoying concurrent jurisdiction on Islamabad capital territory. "
I have also noted that petitioners are residents of Lahore and even the impugned letters and memorandums dated 13.3.2012 and 23.1.2013 were addressed to petitioners at Lahore. Therefore, part of cause of action arisen at Lahore, hence this Court at Lahore will have concurrent jurisdiction in the matter as held by this Court in LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary Ministry of Petroleum 'and Natural Resources, Islamabad and 8 others 2009 CLD 1498 as under:- "It is obvious from the above that the shotiv-cause notice in general and because of its peculiar nature in this case shall seriously effect the .Person to whom it is issued and the final order based thereupon can have far reaching adverse effects, therefore, the place where it is sent, communicated, served and received has the relevance for the purposes of the concurrent jurisdiction. In the above context, it is pertinent to specify the word "affect" which according to Black's Law Dictionary, Deluxe sixth Edition, means "to act upon" "influence" change 'enlarge or abridge' often used in the sense of acting injuriously upon persons and things. To lay hold of or attach (as a disease does); to act; or produce an effect or result upon; to impress or influence (the mind or feelings); to touch." Jam of the view that almost all the major traits of the meaning shall apply to the petitioner and both the Islamabad and Lahore High Courts have the concurrent jurisdiction in the matter, therefore, the writ petition at Lahore has been competently and validly filed with the consequences that C.M No,2202 has no merits and is hereby dismissed. "
'In view of above discussion, this Court has concurrent jurisdiction in the matter, hence writ petition is maintainable. The case law relied upon by respondents is inapt to the facts and circumstances of this case.
8. Now coming to the merits of the case. It is admitted position that petitioners Nos.1 to 3's names were placed on ECL on 13.3.2012 whereas the name of petitioner No,4 was placed on ECL on 23.1.2013.
After placing the name of petitioners on ECL through aforesaid letters/memorandums, the NAB entered into plea bargain with the petitioner No,1 in February, 2013, which was not only approved by the Chairman, NAB but the same was also placed before the Accountability Court, Islamabad for its approval, which was finally approved on 26.2.2013. According to the terms and conditions of plea bargain, the petitioner No,1 was required to make payment of Rs,161096427/- along with 15% incidental charges of Rs,24,164,464/-. 33% out of this payment was to be paid as down payment whereas remaining amount was to be paid in two quarterly installments. It was also agreed that in case the petitioner. No,1 failed to deposit the remaining amount with NAB within time stipulated, the recovery of balance amount will be made by NAB through sale of property and encashment of cheques deposited with NAB as collateral/security by the petitioner No,
1. Admittedly, petitioner No,1 out of aforesaid amount has already paid amount of Rs,124155480/- under the plea bargain and the remaining amount payable is Rs,61005420/-. The NAB authorities under the terms and conditions of the plea bargain have a right to recover the balance amount by sale of collateral properties, however, admittedly, till date, no step for the recovery of remaining amount including sale of collateral property has been taken by the NAB. The scrutiny of record shows that it was the petitioner No,1 who approached the Accountability Court for direction to NAB to recover balance amount by sale of property and it was on his application, the Accountability Court vide order dated .27.9.2013 allowed the NAB to recover balance amount under the Ordinance. Subsequently again vide order dated 17.2.2014, Accountability Court authorized Chairman NAB to refer the matter to EDO (Revenue) for recovery of balance amount, however, despite aforesaid orders, till date neither collateral properties are auctioned by .NAB to recover balance amount, nor petitioner name removed from ECL. There is no doubt that freedom of movement or right to travel is fundamental right of a citizen as enshrined under Articles 4 and 9 of Constitution of Islamic Republic of Pakistan, 1973. Every citizen of Pakistan has the liberty to go abroad and return to Pakistan unless precluded from doing so, in the public interest. Admittedly, no prior notice or hearing was given to the petitioners before placing their names on ECL vide memorandum dated 13.3.2012 and 23.1.2013.
Perusal of aforesaid memorandum also shows that no detail of allegations, particulars or speaking reasons were given in the aforesaid letters/ memorandums. The names of the petitioners was placed on ECL at the instance of NAB through aforesaid memorandums dated 13.3.2012 and .23.1.2013, however, subsequently, the NAB itself entered into a plea bargain with petitioners No,1 and also received substantial amount of Rs,124155480/- and remaining amount of Rs,61005420/- can be recovered through, sale of immoveable property kept as security and collateral by the NAB. In view of the subsequent development after placing the name of petitioners on ECL, and after recovery of Rs, I24155480/- from the petitioner No,1, there was no justification with the respondents to retain the name of petitioners on the ECL especially when NAB is fully secured for the recovery of balance amount/liability through sale of immoveable property available with NAB in shape of collateral. Once NAB itself accepted in plea bargain to recover balance amount through sale of immoveable property available with NAB as collateral, it cannot be imagined that petitioners visit abroad will jeopardize the recovery of balance amount payable to NAB. Further respondent could not justify that petitioners visit abroad will endanger the security of State or will be contrary to any public interest by any mean. I have also noticed that after placing the name of the petitioners .On ECL, the petitioners Nos.3 and 4 were granted one time permission by the respondent Ministry itself as interim arrangement to travel abroad which concession was not mis-used by the petitioners who returned Pakistan and did not abscond which proves the bona fide of the petitioners. On the face of it, without giving any notice or hearing, the Ministry of Interior, Government of Pakistan has erred to act .Mechanically on the request of NAB without applying its own independent mind in the exercise of discretion by placing name of the petitioners on ECL and also not removing it after plea bargain. On the question of prohibiting the citizen from travelling abroad by placing his name on ECL, the Superior Courts including Supreme Court of Pakistan have time and again disapproved such action being violative of fundamental rights of citizen under Articles 4 and 9 of the Constitution of Islamic. Republic of Pakistan. In this regard, reliance is placed on Wajid Sharnas-ul- Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad PLD 1997 Lahore 617, M/s. Zurash Industries (Pvt.) Ltd. Through Director and 4 others v. Federation of Pakistan through Secretary, Ministry of Interior, Islanzabad and 3 others 2011 CLD 511, Mian Munir Ahmad v. Federation of Pakistan and others 2008 YLIC 1508, Sheikh Niaz An/urn v. Govt. Of Pakistan Ministry of Interior, Islamabad through Secretary and two others 2012 CLD Lahore 1133, Mian Ayaz Anwar v. Federation of Pakistan Secretary Interior and three others PLD 2010 Lahore 230, Tanveer Shakoor v. Federation of Pakistan 2014 CLD 803.
9. The learned Division Bench of Sindh High Court in recent judgment cited as Wasatullah Jaffery v.
Ministry of Interior through Secretary Federal Govt. Of Pakistan and four others PLD 2014 Sindh 28 has also surveyed the entire case law on the aforesaid issue as under: "Regarding the placement of the name of the petitioner on the ECL and prohibiting him from travelling abroad, we would like to observe that the Superior Courts, including the Hon'ble Supreme Court, have time and against disapproved such actions in strong words, and have held that such actions are violative of the fundamental rights of the citizens guaranteed by the Constitution. Some of the reported cases are briefly discussed below: -
(1) In the case of Government of Pakistan v. Dada Amir Haider Khan, PLD 1987 SC 504, the Hon'ble Supreme Court was pleased to hold inter alia that the citizen'' right to travel abroad is an important aspect of the citizen's liberty; a discretion vested in a public authority must be exercised fairly, reasonably and in good faith; and, when no grounds were given such an order shall not be a proper order".
(ii) In Habibullah Niazi v. Federation of Pakistan through Federal Secretary, Ministry of Interior, and 2 others, PLD 2009 Karachi 243, a learned Division Bench of this Court was pleased to hold that when 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 facie unjustified and amounts to denial of his fundamental right guaranteed under Article 15 of the Constitution, and this Court has time and again observed 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. In the cited case, the petition was allowed and the name of the petitioner therein was directed to be removed from the ECL.
(iii) In Mir Khalid Langov v. Secretary Ministry of Interior, Government of Pakistan, Islamabad, PLD 2007 Quetta 41, it was held by a learned Division Bench of the .Balochistan High Court that on the demand of the Court, the Federal Government was legally bound to place on record material that promoted it to place the name on the ECL in order to satisfy the Court, and to show that such exercise was hot colourful. It was further held that the Federal Government was under legal obligation to have at least shown the basis of its intention of exercising power under section 2(3) of the Exit from Pakistan (Control) Ordinance, 1981, but the notification impugned in the cited case was silent about such reasons. The notification whereby the name had been placed on the ECL was declared to be bad in law, invalid, without jurisdiction, and was struck down in the cited case.
(iv) In the case of Wajid Shamas-ul-Hassan v. Federation of Pakistan, PLD 1997 Lahore 617 at 630, it was held inter alia by the learned Lahore High Court 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 right 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 been 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.
(v) In Mian Ayaz Anwar v. Federation of Pakistan, PLD 2010 Lahore 230, it was held inter alia by the learned Lahore High Court that right to travel outside country is a fundamental right and an intrinsic part of the right to liberty which is granted under Article 19 of the Constitution; it was clear from the comments that the Ministry of Interior never applied its mind before placing the name of the petitioner in the cited case on the ECL as the impugned order was a result of the dictation from an agency/authority; and, the discretion exercised under dictation, without reasons, was not lawful.
(vi) In the case of Rafi Ahmed and another v. Special Judge, Central, Lahore, and another PLD 2010 Lahore 693, it was held by the learned Lahore High Court that while issuing an order under section 2 of the Exit from Pakistan (Control) Ordinance, 1981, the Federal Government has to apply it's own mind, the exercise must not be mechanical in nature, and must not be carried out on the mere request of an agency/authority.
'In view of above discussion and the law laid down by this Court and august Supreme Court of Pakistan, I am not persuaded to hold that merely because some balance amount/liability under the plea bargain is recoverable from petitioners which is fully secured through immoveable property and cheques as collateral, the petitioners name should remain on the ECL. It is for the NAB to recover balance amount by selling collateral or through other. Mode of recovery available to them under the law, but for their own inaction to recover the amount through aforesaid mode of recovery, respondents cannot deprive the petitioners from their fundamental rights of movement by placing their name on ECL for indefinite period.
10. As far as alternative remedy of review under Section 3 of the Ordinance is concerned, Section 3 envisages filing of representation for review of an order passed under Section 2(1) of the Ordinance.
The order under section 2(1) of the Ordinance means a speaking order by .Giving reasons, however, the perusal of impugned memorandums shows that none of the afores21d conditions and requirements are fulfilled, therefore, it does not amount to an order for the purpose of review under Ordinance. Even otherwise, the impugned order being passed without giving any prior notice or hearing to the petitioners and same being also against the fundamental rights of the petitioner as enshrined under -Articles 4 and 9 of the Constitution of Islamic Republic of Pakistan, 1973, remedy of review under the Ordinance is illusory and meaningless. This Constitution Petition also involved interpretation of various provisions of law and Constitution, hence this petition is maintainable. In this context, reliance is placed on Mian Ayaz Anwar v. Federation of Pakistan Secretary Interior and three others PLD 2010 Lahore 230, Higher Education Commission othrough Projection Manager v.
Sajid Anwar and others 2012 SCMR 186, Sikandar Hayat Khan and 4 others v. Govt. Of Pakistan through Federal Secretary, Ministry of Interior, Islamabad and 5 others PLD 2003 Peshawar 102, Muhcimmad Ahmad bhatti v. Govt. Of Pakistan, Ministry of Interior through Secretary and others PLD 2016 Lahore 697 and Writ Petition No,16760/2012 order dated 27.9.2012. The case law relied upon by the respondents is not applicable to the facts and circumstances of this case.
11. For the foregoing facts and reasons, accept this petition with the consequence that impugned orders of placing the name of petitioner on the ECL are set aside being without lawful authority and of no legal effect. This petition is accepted in the terms articulated ibid.