ATHAR MINALLAH, J.---Through this single order I shall dispose of the instant petition along with W.P.
No, 2807 of 2016 (Lt. Col. (R) Muhammad Younis v. FOP), W.P. No, 2809 of 2016 (Col. (R) Jamil Ahmad v. FOP), W.P. No, 2811 of 2016 (Daniel Vincent v. FOP) and W.P. No, 4623 of 2016 (Aysha Shoaib Sheikh v. FOP).
2. The petitioners had invoked the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution") since they were aggrieved due to refusal on the part of the respondent No,1 to remove their names from the 'Exit Control List'. The names of the petitioners were placed on the Exit Control List vide Memorandum, dated 18.06.2015, issued by the respondent Ministry i,e,, the Ministry of Interior. Through a short order, the petitions were allowed and the same is reproduced as follows:- "The Ministry of Interior, Government of Pakistan was given several opportunities to satisfy this Court regarding any lawful or valid reason for refusing to remove the names of the petitioners from the Exit Control List. Admittedly, the petitioners have been acquitted from all the charges by a competent Court, The law relating to placement/inclusion of the name of a citizen on the Exit Control List was brought to the notice of the Secretary, Ministry of Interior vide order, dated 09-03- 2017. Dr. Sher Afgan, Additional Secretary, Ministry of Interior had appeared on 28-03-2017 and had requested for time so that he could seek instructions. The petitions were, therefore, fixed for hearing today.
The learned Additional Secretary has appeared along with the learned Assistant Attorney General.
They were asked yet again to satisfy this Court in the light of the Exit From Pakistan (Control) Rules, 2010, Notification, dated 16-09-2015, and the law enunciated by the august Supreme Court in the judgments rendered in the cases of 'Federation of Pakistan through Secretary, Mk) Interior v.
General (R) Pervez Musharraf and others' [PLD 2016 SC 5701 and 'Messrs United Bank Ltd. v.
Federation of Pakistan and others' [2014 SCMR 8561. They have not been able to show that a lawful and valid justification exists for depriving the petitioners from their fundamental right of travel or to restrict their right of free movement/liberty.
For detailed reasons to be recorded later, the instant petition and the connected petitions are allowed. The Secretary, Ministry of Interior is directed to ensure that the names of the petitioners are removed from the Exit Control List forthwith."
The detailed reasons are, therefore, recorded as follows:- 3.The facts, in brief, are that FIR No, 56/2015, dated 07-06-2015, was registered at the Police Station FIA (Cyber Crime Circle) Islamabad under sections 419, 420, 468, 471, 473, 109/34 of the Pakistan Penal Code, 1860 (hereinafter referred to as the "P.P.C.") read with sections 36 and 37, E.T.O. and section 4 of the Anti-Money Laundering (AML) Act, 2010 (hereinafter referred to as the "FIR"). The said FIR was registered pursuant to inquiry No,49/2015, dated 19-05-2015, which was in respect of allegations against a juridical person, namely, Messrs Exact Ltd. Islamabad (hereinafter referred to as the "Company"). Twenty six accused were proceeded against pursuant to registration of the FIR.
The FIA (Cyber Crime Circle) Islamabad, vide letter dated 18-06-2015, had recommended the placing of the names of five accused out of twenty six on the Exit Control List. The names of the said five accused (petitioners) were placed on the Exit Control List vide Memorandum, dated 18.06.2015.
The petitioners were either Directors of the Company or its employees. Likewise, another criminal case, FIR No,07/2015, was also registered by the regional office of the Federal Investigation Agency, Karachi, The latter had not recommended the names to be placed on the Exit Control List, as has been confirmed vide letter, dated 15-12-2016. Moreover, in the FIR registered at Karachi, only one of the petitioners, namely Ayesha Shoaib Sheikh wife of Shoaib Ahmed Sheikh, has been nominated as an accused while other five petitioners have not been nominated.
4.The twenty six accused nominated in the FIR registered at Islamabad, including the petitioners, faced trial and on conclusion thereof, have been acquitted by the learned Additional Sessions Judge-IV (West) Islamabad vide judgment dated 31-10-2016.
5.The Ministry of Interior was given several opportunities to satisfy this Court regarding the existence of any lawful and valid justification for depriving the petitioners of their fundamental right of travel or to restrict their right of free movement or liberty. The Secretary, Ministry of Interior was directed, vide order dated 21-02-2017, to submit an affidavit in order to justify the refusal to remove the names of the petitioners from the Exit Control List. The latter filed an affidavit, dated 08-03-2017, wherein it was stated that an appeal on behalf of the Federation of Pakistan was in the process of being filed so as to challenge the interim orders passed by this Court, dated 07-02-2017 and 21-02- 2017. Moreover, it was further stated that appeals against the judgment dated 31-10-2016, whereby the petitioner shave been acquitted, have also been filed and are pending before this Court. An officer of the rank of Additional Secretary of the Ministry of Interior had appeared on 28-03- 2017, pursuant to this Court's order, dated 09-03-2017, and had requested for time so as to enable him to take instructions. The latter appeared on 29-03-2017 and was asked yet again to justify placing the names of the petitioners on the Exit Control List. The learned officer conceded that the petitioners have been acquitted by a competent Court vide judgment dated 31.10.2016. However, he could only produce a copy of Memorandum, dated 08.02.2016, issued by the Office of the Legal Attach, United States Embassy, Islamabad, wherein reference has been made to some investigations being carried out against the Company in the United States of America. The learned officer was asked whether the names of the five petitioners, whose names have been placed on the Exit Control List vide Memorandum, dated 18.06.2015, are mentioned in the said document. The answer was in the negative. Perusal of the Memorandum, dated 08.02.2016, shows that the names of the five petitioners are not mentioned therein. The learned officer was repeatedly asked to justify keeping the names of the petitioners on the Exit Control List, inter alia, in the light of the grounds enumerated under Rule 2 of the Exit from Pakistan Control Rules, 2010 (hereinafter referred to as the "Rules of 2010") read with the provisions of the Exit from Pakistan (Control) Ordinance, 1981 (hereinafter referred to as the "Ordinance of 1981"). Neither the learned Assistant Attorney General nor the learned officer could show that the grounds mentioned in Rule 2 of the Rules of 2010 were attracted in the facts and circumstances of the instant case. The only reason given was to the effect that the matter is sensitive and that some investigations are pending against the Company in the United States.
6.The learned counsel for the petitioners has contended that; the refusal on the part of the respondents to remove the names from the Exit Control List is arbitrary and in violation of the Ordinance of 1981, read with the Rules of 2010; it is settled law that freedom of movement is a fundamental right guaranteed under the Constitution; the petitioners were falsely implicated in the FIR and have been acquitted by the competent Court; there were twenty six accused against whom proceedings were initiated and after concluding the trial, all of them have been acquitted by the competent Court; only five of the accused i,e, the present petitioners have been deprived of their fundamental right of liberty vide Memorandum dated 18.06.2015. Reliance has been placed on the cases reported as "State of the Islamic Republic of Pakistan v. Zulfiqar Ahmed" [2005 SCMR 1469] and "Wajid Shamas ul Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad" [PLD 1997 Lahore 617].
7.The learned counsel for the petitioners and the learned Assistant Attorney General have been heard at length and the record perused with their able assistance.
8.The admitted facts are that proceedings were initiated against the Directors and employees of the Company, which led to the registration of the FIR. Twenty six accused were nominated in the FIR, including the five petitioners, whose names were placed on the Exit Control List, All the twenty six accused faced trial and were ultimately acquitted by the competent Court vide judgment dated 31.10.2016. Appeals have been filed and are pending against the said judgment. Nothing has been placed on record to show as to why in the first place the petitioners, i,e, five out of the twenty six accused nominated in the FIR, were selected and their names placed on the Exit Control List, despite not being the main accused. The Memorandum, dated 18.06.2015, whereby the names of the five petitioners were placed on the Exit Control List, was issued pursuant to recommendations made by the Federal Investigation Agency, Cyber Crime Circle, Islamabad after the FIR was registered. The petitioners and all the other accused have been acquitted by the competent Court.
In the proceedings pending at Karachi, pursuant to the registration of FIR No, 07 of 2015, four petitioners, namely, Col. (R) Jamil Ahmed, Lt. (R) Muhammad Younis, Daniel Vincent and M. Amjad are not nominated therein. Only one petitioner before this Court, namely, Ayesha Shoaib Sheikh wife of Shoaib Ahmad Sheikh, is nominated in the said FIR, but she is neither the main accused nor has the Directorate of FIA in Karachi recommended that her name be included in the Exit Control List; as has been confirmed vide letter dated 15.12.2016. The questions which emerge for determination are, firstly, whether a valid and legal justification exists for denying the petitioners their fundamental right of freedom of movement by refusing to remove their names from the Exit Control List and, secondly, whether the refusal is based on a reasonable restriction imposed under the law.
9.It has been acknowledged by the august Supreme Court in the judgment rendered in the case "Government of Pakistan and another v. Dada Amir Haider Khan" [PLD 1987 SC 504] that Articles 4, 9 and 15 of the Constitution manifest that every citizen has the right to remain in and enter Pakistan unless prohibited from doing so under some law made in the public interest. The apex Court in the case titled "Federation of Pakistan through Secretary, M/O Interior v. General (R) Pervez Musharraf and others" [PLD 2016 SC 570] has observed and held that the fundamental right of freedom of movement cannot be abridged or denied arbitrarily on mere liking or disliking, without any lawful justification for such purpose. It has been held as follows:- "Apart from the above discussion, considering the question of inclusion or retaining the name of respondent No,) in the ECL thereby restricting his freedom of movement, we also cannot lose sight of the fact that under Article 15 of the Constitution freedom of movement is one of the fundamental rights guaranteed to every citizen of the Country, which cannot be abridged or denied arbitrarily on mere liking or disliking, without any lawful justification for this purpose.
Moreso, when Article 4 of the Constitution further guarantees right to every individual, to be dealt with in accordance with law. It will be pertinent to mention here that in the shape of Exit from Pakistan (Control) Ordinance, 1981, read with Exit from Pakistan (Control), Rules, 2010, a complete mechanism is provided for the situation, which needs to restrict the movement of any person from going abroad, where there is lawful and valid justification for this purpose".
10. Article 15 of the Constitution has unambiguously declared freedom of movement as a guaranteed fundamental right by providing that every citizen shall have the right to remain in and, subject to any reasonable restrictions imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof. The Lahore High Court in the case titled "Wajid Shamas ul Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad" [PLO 1997 Lahore 6171 has held that the life, liberty or property of a citizen cannot be taken away or be adversely affected except in accordance with the law. Elaborating the meaning of the expression 'law', the learned High Court has held that 'law' means a valid law which does not come in conflict with any of the provisions of the Constitution and that it ought not to be a law which is ex-facie discriminatory. The learned High Court held, therefore, that section 2 of the Ordinance of 1981 does not provide any guidelines or reasonable classification for taking action against a person prohibiting him or her from travelling abroad. It has been articulated that the liberty of a citizen cannot be curtailed by the mere registering of a criminal case for which he may or may not be criminally liable, and that the mere registration of an FIR cannot be a ground for depriving a citizen from exercising his/her fundamental and other constitutional rights. At the time when the judgment was rendered, grounds for placing the name in the Exit Control List described in the Rules of 2010, were not in existence. It is pertinent to refer to the law enunciated by the august Supreme Court in the judgment rendered in the case titled "Messrs United Bank Ltd. v. Federation of Pakistan and others" [2014 SCMR 8561, wherein it has been held that a claim pending in a competent Court against a citizen, which is yet to be adjudicated, cannot be made a ground to place the name of the Director of a juridical person on the Extra Control List and thus deprive such a person from the guaranteed fundamental right of travel abroad or to restrict free movement. The Lahore High Court, in the judgment titled "Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 03 others" [PLD 2010 Lahore 2301, has extensively examined the precedent law and has held that the constitutionality of section 2 of the Ordinance of 1981 is suspect, as it was susceptible to be used in a discriminatory manner resulting in an arbitrary pick and choose by the Federal Government. Moreover, it has been held that the said provision fails to lay down guidelines for prohibiting a person from proceeding outside Pakistan. The learned Lahore High Court, following the dictum of the apex Court, has held that the right to life and liberty of a citizen could only be restricted or abridged if it is in accordance with the law. The august Supreme Court, in the case titled "Pakistan Muslim League (N) through Khawaja Muhammad Asif, MNA and others v.
Federation of Pakistan through Secretary Ministry of Interior and others" [PLD 2007 SC 642] has observed and held as follows:- "Every citizen has undeniable right vested in him as conferred under Article 15 of the Constitution to go abroad and return back to Pakistan without any hindrance and restraint but it must be kept in view that it is neither absolute nor unqualified as is indicative from the language employed in Article 15 of the Constitution as a specific mention has been made 'subject to any reasonable restriction imposed by law in the public interest', meaning thereby that such right is subject to the relevant law which is in existence at relevant time but an action which is mala fide or color able is not regarded as action in accordance with law'. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Therefore, action taken upon no ground at all or without proper application of the mind of an authority would also not qualify as an action in accordance with law and would, therefore, have to be struck down as being taken in an unlawful manner".
11. As already noted above, the august Supreme Court in the case of General (R) Pervaiz Musharraf (supra) has held that the Ordinance of 1981, read with the Rules of 2010, provides for a complete mechanism to restrict the movement of any person from going abroad. The grounds described in Rule 2 of the Rules of 2010 are reproduced as follows.-
2. Grounds to prohibit persons from proceeding from Pakistan to a destination outside Pakistan:-
(1) The Federal Government may by an order in writing under subsection (1) of section 2 of the Exit from Pakistan (Control) Ordinance, 1981 (XLVI of 1981), prohibit any person from proceeding from Pakistan to a destination outside Pakistan notwithstanding the fact that any person is in possession of valid travel documents. If he is involved in:- (a)corruption and misuse of power or authority causing loss to the government's funds or property; (b)economic crimes where large government's funds have been embezzled or institutional frauds committed; (c)acts of terrorism or its conspiracy, heinous crimes and threatening national security; (d)case of key directors of a firm, in default of tax or liabilities of not less than ten million rupees: (e)case of two or more key or main directors of a firm in default of loan or liabilities exceeding one hundred million rupees; (f)any case and his name forwarded by the registrar of a High Court, Supreme Court of Pakistan or Banking Court only; or (g)drug trafficking.
12. It is obvious from the above that the Rules of 2010 were made and notified so as to meet the test laid down by the superior courts i,e,, as guidelines for prohibiting or restricting the free movement of a citizen and thus are to be read with section 2 of the Ordinance of 1981. The Ordinance of 1981 and the Rules of 2010 provide for the complete mechanism for abridging the fundamental rights guaranteed under Articles 9 and 15 of the Constitution. The phrase 'subject to reasonable restriction imposed by law in the public interest', expressly used by the makers of the Constitution, has to be tested on the touchstone of the grounds described under Rule 2 of the Rules of 2010. The authority inevitably has to justify placing of the name of a citizen on the Exit Control List by clearly demonstrating that valid and lawful cause exists on the basis of the grounds mentioned in Rule 2 of the Rules of 2010 to restrict or deprive a person of the fundamental right of freedom of movement.
In case an action of abridging the right to freedom of movement cannot be so justified then it would tantamount to be unconstitutional, arbitrary and without lawful authority. It is further noted that the Federal Government, vide Notification dated 16.09.2015, by way of a policy has prescribed parameters for placing the names on the Exit Control List.
13. In the instant case, the five positioned whose names were placed on the Exit Control List vide Memorandum dated 18.06.2015, were among st the twenty six accused nominated in the FIR. No plausible explanation has been given as to why their names were placed on the Exit Control List despite not being the main accused, while others were treated differently. All the accused, including the five petitioners, have been acquitted by the competent Court, vide judgment dated 31.10.2016. The copy of Memorandum, dated 08.02.2016 sent by a foreign Mission, submitted by the learned officer who appeared before this Court on behalf of the Ministry of Interior, can by no stretch of the imagination be treated as a valid or lawful justification for refusal to remove the names of the petitioners from the Exit Control List. The said Memorandum merely mentions that some investigations against the Company are being carried out in the United States. Moreover, the names of the petitioners are neither mentioned in the said Memorandum nor has any recommendation been made that their fundamental right guaranteed under Article 15 of the Constitution be curtailed. No other document whatsoever has been shown to exist so as to justify keeping the names of the petitioners on the Exit Control List on the touchstone of the grounds mentioned in Rule 2 of the Rules of 2010. Likewise, the fact that appeals have been preferred by the respondents against judgment, dated 31.10.2016, whereby the petitioners and all the other twenty one accused have been acquitted can also not be treated as a valid or lawful ground to justify refusal to remove the names from the Exit Control List and thus deprive the petitioners of the fundamental rights guaranteed under the Constitution. This Court is satisfied that valid and lawful justification does not exist to deny the fundamental rights guaranteed under Articles 4, 9 and 15 of the Constitution. The Memorandum, dated 18-06-2015, is declared as unconstitutional B and refusal on the part of the Ministry of Interior to remove the names of the petitioners as arbitrary, illegal and without lawful authority and jurisdiction.
14. The above are the detailed reasons for the short order, dated 29.03.2017. However, it is noted that the august Supreme Court in the judgment of ' General (R) Pervez Musharraf (supra) had approved the suspension of the order passed by the learned Sindh High Court so as to enable the Federal Government an opportunity to avail a remedy. Out of deference for the observations of the august.
Supreme Court in the said judgment, the operation of the short order, dated 29-03-2017, shall remain suspended for a period of ten days i,e, till 13.04.2017.