' ANWAR ZAHEER JAMALI, CJ.---This civil appeal, with leave of the Court, arises out of the judgment dated 12.6.2014, passed by learned Division Bench of the High Court of Sindh, Karachi, in C.P No. 2072/2014, whereby the said petition filed by respondent No. 1 was disposed of in the ring manner:-- - "(a) The Memorandum No. 12/74/2013-ECL, dated 5th April 2013, placing the name of General (retired) Pervez Musharraf on Exit Control List is struck down (b)Since the direction contained in this judgment is self-executory, therefore, the operation of this judgment is suspended only for fifteen days, during which the respondents, if so desire, may file appeal in the honorable Supreme Court.
(c)Pending applications are also disposed of accordingly."
2. Brief facts leading to this litigation are that on 21.4.2014, respondent No. 1 had instituted the above-referred Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (in short "the Constitution") before the High Court of Sindh, Karachi, with the following prayer:-- "(a) declare the memorandum bearing No. 12/74/2013- ECL dated 5.4.2013 (Annex D) and the letter No. ECL/12/74/2013-ECL dated 2.4.14 (Annex-L) to be completely without jurisdiction, unconstitutional, illegal, void ab initio and of no legal effect, while quashing the same and clarifying that the petitioner is free to travel within, without or outside Pakistan and any order of the Court is self-executory and is to be implemented forthwith by the Respondents and all functionaries superior or sub-ordinate to them; (b)permanently and pending disposal of the main petition suspend the operation of the memorandum bearing No. 12/74/2013-ECL, dated 5.4.2013 (Annex D) and the letter No. ECL/12/74/2013ECL, dated 2.4.2014(Annex L) while restraining the Respondents, their officers, agents and cronies and all functionaries superior or subordinate to them from hampering, hindering and stopping the Petitioner's movement within, without or outside Pakistan in any manner whatsoever, while further mandating them not to take any adverse action against the Petitioner; (c)award costs and special costs; (d)award any other relief deemed fit."
3. In a nutshell, the grievance of respondent No. 1 was that inclusion/placement of his name in the Exit Control List (ECL) and refusal to withdraw his name from it was without jurisdiction, illegal and, inter alia, violative of Articles 3, 4, 9, 10A, 14 and 15 of the Constitution, thus, liable to be struck down.
4.The appellant and the proforma respondents No. I to 3, in their comments, challenged the maintainability of the petition before the High Court of Sindh and contended that inclusion of name of respondent No. 1 in the ECL on 5.4.2013 was in compliance of the observation of the High Court of Sindh, contained in its order dated 29.3.2013, and further directions issued by the Supreme Court of Pakistan in this regard vide order dated 8.4.2013 to the Federal Government. Thus, there was no justification for its removal, unless such directions were withdrawn.
5.The High Court in its impugned judgment had taken note of all these relevant aspects of the case; the case-law cited at the bar, and came to the conclusion that once the petition before the apex Court, wherein the interim order directing the Federal Government to include the name of respondent No. 1 in ECL was finally disposed of vide order dated 3.7.2013, for all intent and purposes the interim order dated 8.4.2013 ceased to operate. Moreso, as by this order, no protection was provided to it and it was clear legal position that on passing a final order or judgment in the proceedings, all interim orders will merge into it and will stand vacated, unless so protected by the Court, which is not the position in the instant case. At leave stage, this Court, while taking note of the relevant facts, has formulated following points for consideration:---
3. After hearing the learned Attorney General for Pakistan and the learned ASC representing respondent No. 1, we grant leave to consider, inter alia, whether:--- (i)The order of this Court dated 8.4.2013 was not an interim order that merged into the final order of 3.7.2013 but an independent and final as regards the restriction on the respondent's travel abroad, and thus the principle of merger was not attracted?
(ii)The High Court could have struck down the Office Memorandum of 5.4.2013, issued expressly in compliance with the order of the High Court dated 29.3.2013 duly re-affirmed by this Court on 8.4.2013?
(iii)Without modification or reversal of the order of this Court of 8.4.2013 the Respondent can be permitted to leave the country?
(iv)The said Memorandum having been passed in compliance with the order of the High Court was not covered by clause (f) of Rule 2 of the Exit from Pakistan (Control) Rules, 2010?
' C.M.A. No. 3565 of 2014
4. This C.M.A. is allowed and operation of the impugned judgment is suspended. However, the appeal, arising out of this petition, be fixed for hearing within one month, subject of availability of Bench."
6. We have heard the arguments of learned Attorney General for Pakistan on behalf of the appellant. His sole contention is that inclusion of name of respondent No. 1 in the ECL vide letter No. 12/74/2013 ECL, dated 5.4.2013 issued by the Ministry of Interior, was solely on the basis of such direction contained in the order dated 8.4.2012, which despite final disposal of the petition vide judgment dated 3.7.2013, still holds the field. His further submission is that the interim order passed in the proceedings, issuing direction to the Federal Government for placement of name of respondent No. 1 in the ECL, will not, ipso facto, stand vacated upon final disposal of the petition, unless specifically so ordered by the Court.
7.Responding to the arguments of learned Attorney General for Pakistan, learned ASC for respondent No. 1 strongly contended that the submissions of learned Attorney General that despite final disposal of the petitions, the interim order passed therein will remain operative is entirely misconceived and ill-founded inasmuch as if the intention of the Court at the time of final disposal of the petition had been to protect or keep intact the arrangements made under the interim order passed in the proceedings, there could have been a specific reference in this regard in the final order, which is admittedly not the position in case in hand. In support of his arguments that interim order passed during the proceedings of a case will stand merged/vacated, unless so protected in the final order, he placed reliance upon plethora of case-law, which has been already intelligently scanned, summarized and discussed in the impugned judgment. Concluding his submissions, learned ASC strongly urged for the dismissal of this appeal, being devoid of merits.
8.We have perused the material placed on record and carefully considered the submissions of learned Attorney General and the learned ASC. As their whole arguments revolve around the applicability of ad-interim order dated 8.4.2013, in the wake of final order dated 3.7.2013, therefore, before discussing their respective contentions, it will be useful to reproduce hereunder the operative part of these two orders respectively, which read as under:--- Order dated 8.4.2013 "8. The Counsel representing the petitioners particularly Mr. A.K. Dogar and Mr. Hamid Khan, have submitted that the respondent General Rtd. Pervaiz Musharraf be taken into custody to ensure that he remains available within the country for the purpose of trial under Article 6 of the Constitution read with the provision High Treason (Punishment) Act, 1973. We, however, of the opinion that in the first instance, notice of these petitions be served on the said respondent for tomorrow. The inspector General of Police, Islamabad and, if necessary, the Inspectors General of Police in the Provinces, shall ensure service on the aforesaid respondent. The Secretary, Interior shall also make sure that if the name of the aforesaid respondent General Rtd. Pervaiz Musharraf is not already on the Exit Control List, this shall be done forthwith and a compliance report of this order shall be submitted in Court during the course of the day. The Federation and all its functionaries shall also ensure that the respondent does not move out of the jurisdiction of Pakistan until this order is varied/modified."
Order dated 3.7.2013 "3. We are consciously, deliberately and as submitted by Mr. Muhammad Ibrahim Satti, learned Senior Advocate Supreme Court for the respondent, not touching the question of "abrogation" or "subversion" or "holding in abeyance the Constitution" or "any conspiracy in that behalf" or indeed the question of suspending or holding the Constitution in abeyance or the issue as to abetment or collaboration in the acts mentioned in Article 6 of the Constitution. This is so because any finding/ observation or view expressed by us may potentially result in prejudice to the Inquiry/Investigation or subsequent trial should that take place as a result of such investigation.
4. The Federal Government has, as noted above, proceeded in furtherance of its constitutional obligation envisioned in Article 6 of the Constitution and for the present this suffices in terms of the said Article and the reliefs respectively sought by the petitioners in these petitions. We, therefore, dispose of these petitions in the above terms with the observation that the Federal Government shall proceed as per undertaking dated 26.6.2013, reproduced above without unnecessary delay."