' NAIMATULLAH PHULPOTO, J.---Constitution Petition. No,D-3708/2016 was heard by a Division Bench of this Court, composed of by my learned brothers Ahmed Ali M. Shaikh, J. And Muhammad Karim Khan Agha, J., who vide their judgments dated 25.11.2016 being divided in opinion as to the decision of the petition on the issue of territorial jurisdiction of this Court to hear this constitution petition.
' Case was placed before the honourable Chief Justice, who ordered that the matter may be heard by me as a Referee Judge.
2. The facts of the case have been mentioned in detail by my learned brothers in the judgment and, therefore, the same may not bb reproduced here so as to avoid duplication and unnecessary repetition.
3. I have had the privilege of reading the judgment prepared by my esteemed brother Mr. Justice Ahmed Ali M. Shaikh. View expressed by my learned brother in paras 10 to 12 is reproduced as under: "10. We have heard the learned counsel for the petitioner, Additional Attorney General of Pakistan and perused the material available on record. It is a matter of record and not disputed by either side that the impugned notification placing petitioner's name on ECL was issued after the order dated 17.5.2016 passed by the Lahore High Court, Rawalpindi Bench in writ petition No,1398 of 2016, which is reproduced hereunder:- "After arguing the case at some length, learned counsel for the petitioners feel satisfied if a direction is given to the respondent No,1 i,e, Secretary, Ministry of Interior, Islamabad to decide the application dated 12.5.2016 filed by the petitioner No,2 expeditiously and in accordance with law.
The request is tenable.
2. The respondent No,1 is directed to decide the above-referred application of the petitioner No,2, if pending before him, after giving an opportunity of hearing to the petitioner and any other concerned person, strictly in accordance with law. Needful shall be done within ten days from the date of receipt of certified copy of this order. Learned Deputy Attorney General for Pakistan on court's call is directed to ensure the compliance of the order of this order."
3. With these observations, this writ petition stands disposed of. Copy dasti on the payment of usual charges."
11. Thereafter, on the recommendation of Home Department, Government of Punjab, which has decided application of Mst. Saima Ejaz, widow of Ejaz Mehmood, slain Customs Inspector/I0 of the FIR registered against petitioner, who was implicated as co-accused in the FIR No,550/2015 registered at PS Waris Khan, Rawalpindi, impugned memorandum was issued by the Federal Government.
12. No doubt, this Court in the earlier round had twice struck down the memorandums controlling the petitioner's exit from the country, however, in wake of the fact that the Ministry of Interior, Government of Pakistan has issued impugned notification after the order of the Lahore High Court and on the recommendation of Government of Punjab, we are clear in our mind that this Court has no territorial jurisdiction to entertain instant petition.
For the foregoing reasons, we do not find any merit in the instant petition, which is accordingly dismissed."
4. I have now had the chance of reading the judgment of my learned brother Mr. Justice Mohammed Karim Khan Agha. After lengthy discussion, he came to following conclusion on the issue of territorial jurisdiction of this Court.
"7. (Page 37), In my view since the filing of an FIR and the opening of an inquiry by NAB under the NAO have some similarities as in effect they both get the ball rolling in a criminal case and may or may not lead to the case going to trial depending on the evidence collected they should be given the same treatment vis-a-vis territorial jurisdiction.
8. In any event as the Memorandum placing the petitioner's name on the ECL has been issued by the Ministry of Interior the matter is a Federal issue4and I remain of the view as found in the Judgment that the "take effect" test will apply and in the instant case as discussed above the third memo will take effect/have -effect at the Jinnah International Airport Karachi and thus I find this petition maintainable in terms of territorial jurisdiction and can be taken by this Court notwithstanding the fact that the Islamabad High Court and the Lahore High Court may also have concurrent jurisdiction.
9. Learned AAGP also contended that the petition was not maintainable as it had not been signed by the petitioner rather by an advocate instructed by her on her behalf and as such it warranted dismissal on this count alone. In this respect he placed reliance on the Indian case of Smt.
Svitramma v. Cicil Naronha (1989 MLD 1133 Supreme Court of India). As is well known the Indian cases are only of persuasive authority and not binding on us. He did not produce any Pakistani authority on this point. Even in the Indian case, which concerned a contempt petition as opposed to a Constitution petition, it was held that although the petition was rejected the defect was in effect curable by the petitioners filing their own affidavits.
10. The question therefore emerges whether in our constitutional jurisdiction, bearing in mind the history of this case as alluded to above, we are bound to reject the petition because the affidavit had not been filed by the petitioner when in fact that petitioner, who is based in Karachi could very easily cure the defect within days. In my view this would only serve to further delay the matter especially keeping in view the honourable Supreme Court order to decide the matter expeditiously on 03.10.2016. Furthermore, I view this defect as a technicality and the law has always preferred a matter not to be defeated by technicalities but decided on merits. I have also kept in view the chronology of events which have been meted out to the petitioner as narrated earlier in this order in her attempts to leave the Country and travel abroad in order to carry out her profession, her constitutional rights guaranteed by the Constitution in this respect and the requirement that we must do complete justice in our constitutional jurisdiction where often the might of the State is pitted against the individual. In such situation, is the Court supposed to close its eyes and ears to this matter and wash its hands of the matter as opposed to doing complete justice under the discretionary constitutional jurisdiction? Neither do I think so nor do I consider that the citizens of the State would expect us to do so. As it. Is we are under Oath to protect the rights of the citizens as guaranteed under the Constitution. We also cannot ignore the mala fide which was found against the respondent towards the petitioner in the Order which amongst other reasons lead to us striking down the second memo by the Order (and directing that the name of the petitioner should not again be put on the ECL without the permission of this Court so as to avoid any further mala fide conduct on the part of the respondent which direction was completely ignored by the respondent despite him having full knowledge of it) and as it would appear once again the potential mala tide conduct on behalf of both the respondent and Government of Punjab in respect of third memo which I shall turn to shortly in this order. As such for the reasons mentioned above I hold this petition to be maintainable on this score as well."
5. At the very outset, learned counsel for the petitioner contended that this Court does have the territorial jurisdiction to entertain the petition as cause of action arose to petitioner to agitate her grievance within the territorial jurisdiction of this Court. It is also contended that the petitioner resides at Karachi, she wanted to go abroad from Karachi Airport to fulfill her contractual obligations and to see her ailing mother at Dubai but she was not allowed as her name has been placed on Exit Control List (ECL). Learned counsel for the petitioner further argued that prior to the filing of the instant petition name of petitioner Ayyan Ali was placed on ECL, two times. She filed petition before this Court, the same was allowed. Federation of Pakistan filed appeal and judgment of this Court was maintained by the honourable Supreme Court of Pakistan. Mr. Khosa further argued that Miss Ayyan Ali has appeared before this Court in the petition and owned its contents.
In support of his contention, he has also referred to the application under section 151, C.P.C. Dated 02.01.2017 filed by Miss Ayyan Ali. It is also argued that the petitioner cannot be deprived of her fundamental rights on technicalities. Lastly, it is argued that name of petitioner has been placed on ECL for third time by Ministry of Interior, for mala fide reasons. In support of his contentions, he has relied upon the following cases:
1. Wajid Shamsul Hassan v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad (PLD 1997 Lahore 617)
2. Khan Muhammad Mahar v. Federation of Pakistan (PLD 2005 Karachi 252)
3 Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others (PLD 2010 Lahore 230)
4. Nazir Adenwala v. Islamic Republic of Pakistan through Secretary, Ministry of Interior, Islamabad and 2 others (PLD 2013 Sindh 186)
5. Farrukh Niaz v. Federal. Government of Pakistan (PLD 2006 Karachi 530)
6. Mirza Muhammad labal Baig v. Federation of Pakistan and others (2006 YLR 2797)
7. Higher Education Commission through Project Manager v. Sajid Anwar and others (2012 SCMR 186)
8. Jehangir Mehmood Cheema v. Government of Pakistan, Ministry of Interior through Secretary and 2 others (PLD 2015 Lahore 301)
(9) Gen. (Reid.) Parvez Musharaf through Attorney v. Pakistan through Secretary Interior and others (PLD 2014 Sindh 389)
10. Muhammad Aslam Khan and 9 others v. Federal Land Commission through its Chairman, Central Secretariat, Islamabad and 3 others (PLD 1976 Pesh. 66)