' MAQBOOL BAQAR, .J.---Through the above petition, the Federal Government, through Secretary Interior, Government of Pakistan, had sought to impugn the judgment dated 10.1.2017, whereby the High Court of Sindh has struck down the Notification/Memorandum dated 15.6.2016, issued by the Petitioner, placing the name of Respondent No,1 on the Exit Control List (ECL), and inter alia directed the Petitioner to immediately remove the name of the Respondent No,1 from the ECL.
2. The aforesaid Notification/Memorandum was third in the series against the Respondent No,1, the first two having been struck off by the Sindh High Court in its constitutional jurisdiction earlier, which judgments/ orders were upheld by this Court, to which aspect of the matter we would revert back in the latter part of this judgment. However, since the two learned members of the Division Bench, of the High Court of Sindh, who heard the petition filed by Respondent No,1 for quashment of the aforesaid Notification/Memorandum, had differed in their views in the matter, in as much as Mr. Ahmed Ali M. Shaikh, J., held that, in view of the fact that the impugned Notification/ Memorandum was issued in pursuance of an order passed by the Lahore High Court, whereby the Lahore High Court directed the present Petitioner to decide a certain application of the Petitioner before it after hearing the latter in accordance with law, and was also based on the recommendation of the Home Department, Government of Punjab, the High Court of Sindh has no territorial jurisdiction to entertain the petition, whereas the other learned member of the Bench, Mr. Mohammed Karim Khan Agha, J. Found the petition to be maintainable and allowed the same with directions, inter alia, as noted earlier. Because of the above conflicting views, the learned Chief Justice of the Sindh High Court nominated Mr. Naimatullah Phulpoto, J. As a Referee Judge, who through the impugned judgment concurred with the views expressed by Mr. Mohammed Karim Khan Agha, J. And proceeded to allow the petition in terms it was allowed by the latter.
3. Mr. Sajid Ilyas Bhatti, the learned DAG, submitted that since the subject Notification/Memorandum was issued by the Petitioner as mandated by an order passed by the learned Lahore High Court, and as per the recommendations of the Home Department, Government of Punjab, the High Court of Sindh had no jurisdiction in the matter, and was thus not competent to entertain and decide the Respondent No,1 's petition in that regard. He urged that since the impugned judgment has been rendered without jurisdiction, the same be therefore, set aside, as being void. He further contended that the Petitioner has issued the subject Notification/Memorandum in discharge of its official duties/obligations and therefore, no mala fides could have been justly and lawfully attributed to their above act.
4. As regards the question of territorial jurisdiction, it hardly need any emphasis that the impugned Notification/Memorandum has been issued by the Federal Government, which functions all over the country, and since the respondent No,1 resides in Karachi, and has a right and choice to proceed abroad through Jinnah International Airport, Karachi, and in fact atleast twice earlier she had proceeded to go abroad through Jinnah International Airport, Karachi, though she was stopped owing to the earlier Notifications/Memorandums, and therefore the embargo placed on her leaving the country has in fact taken place at Karachi, which prevention in all likelihood, was to be repeated at Karachi in pursuance of the third Notification/Memorandum, and thus giving rise to a cause of action against the third Notification/Memorandum at Karachi because of its taking effect there. It is now well settled that the Federal Government, though may have exclusive residence or location at Islamabad, would still be deemed to function all over the country. In this regard the case of LPG Association of Pakistan through its Chairman v. Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources Islamabad and 8 others (2009 CLD 1498), may be referred to, whereby the Lahore High Court, after meticulously analyzing the judgments rendered by this Court, as well as of the High Courts on the question of territorial jurisdiction, with regard to the acts, deeds and the legislative instruments of/by the Federal Government, has deduced the jurisprudential principles as follows:- "(A) The Federal Government or any body politic or a corporation or a statutory authority having exclusive residence or location at Islamabad with no office at any other place in any of the Province, shall still be deemed to function all over the country.
(B) If such Government, body or authority passes any order or initiates an action at Islamabad, but it affects the "aggrieved party" at the place other than the Federal capital, such party shall have a cause of action to agitate about his grievance within the territorial jurisdiction of the High Court in which said order/action has affected him.
(C) This shall be moreso in the cases where a party is aggrieved by a legislative instrument (including any rules, etc.) on the ground of it being ultra vires, because the cause to sue against that law shall accrue to a person at the place where his rights have been affected. For example, if a law is challenged on the ground that it is confiscatory in nature, violative of the fundamental rights to property; profession; association etc. And any curb has been placed upon such a right by a law enforced at Islamabad, besides there, it can also be challenged within the jurisdiction of the High Court, where the right is likely to be affected.
' In this context, illustrations can be given, that if some duty/tax has been imposed upon the withdrawal of the amounts by the account holders from their bank account and the aggrieved party is, maintaining the account at Lahore though the Act/law has been passed at Islamabad, yet his right being affected where lie maintained the account (Lahore), he also can competently initiate a writ petition in Lahore besides Islamabad; this shall also be true for the violation of any right to profession, if being conducted by a person at Lahore, obviously in the situation, he shall have a right to seek the enforcement of his right in any of the two High Courts."
' And thus whether or not the subject Notification/Memorandum was issued on the recommendation of the Punjab Government has no relevance to the question of the Court's jurisdiction in the matter. Furthermore it is also factually incorrect to claim that the Notification/ Memorandum has been issued in pursuance of an order passed by the learned Lahore High Court as the learned High Court's order dated 17.5.2016, being referred to in this regard, contain only a direction to the petitioner to decide a certain application submitted by the petitioner before it, in accordance with law. Absolutely no direction or order was passed by the learned Lahore High Court for issuance of any Notification/Memorandum. Even otherwise such order of the learned High Court cannot be successfully used to plead lack of jurisdiction of the learned High Court of Sindh in the matter, because brought under challenge before the High Court of Sindh was the Notification/ Memorandum issued by the petitioner and not any act or deed of the Government of Punjab.
Furthermore as noted hereinbefore, the earlier two Notifications/Memorandums have been successfully challenged before the learned High Court of Sindh as the said Court in view of the above principle, has entertained those petitions.
5. During the hearing of the above petition, we have perused the impugned judgment and have gone through the record of the case as made available by the Petitioner and have noted that the first Notification/Memorandum placing the Respondent No, 1's name on the ECL was issued by the Petitioner on 20.11.2015, on the recommendations of the Federal Board of Revenue (FBR), purportedly on the ground of money laundering, although in the trial, that the respondent No,1 is facing with regard to the relevant incident, she seemingly has not been charged for the said offence. She was also not informed of the said Notification/Memorandum (nor of the subsequent two), as required in terms of section 3 of Exit from Pakistan (Control) Rules, 2010 (the Rules), and thus was deprived of an opportunity to challenge the same instantly. She was not informed of the Notification/Memorandum even when she applied to the Customs Court for return of her passport to enable her to travel abroad, so that she may not be able to seek her remedy before being stopped at the Airport.
6. In their comments filed by the Petitioner in the proceedings before the Sindh High Court in relation to the first Notification/ Memorandum, it was submitted that Respondent No, 1 's name has been placed on the ECL for her involvement in the smuggling of foreign currency, which was clearly inconsistent with the ground of money laundering as disclosed in the said Notification/Memorandum. It was however, subsequently contended that the Customs did not act under the provisions of the Money Laundering Act since the department is not vested with any power under the said Act. However, ironically neither the policy formulated by the Ministry of Interior in respect of the Exit Control, nor in terms of the Rules, the offence/allegation of smuggling provides a valid ground for placing a citizen's name on the ECL. It was in view of the foregoing and the Petitioner's utter failure to justify the first Notification/Memorandum that through, its judgment dated 07.3.2016, a Division Bench of the High Court of Sindh had struck down the first Notification/Memorandum, as having been passed without lawful authority, and directed the Petitioner to remove the name of Respondent No,1 immediately and to allow her to travel abroad.
The learned High Court also directed the petitioner to place on its website the names of all who have been placed on the ECL, and to continue to so display the names which may be added to the said list within three days of such addition, along with their CNIC numbers etc. And the information regarding the procedure for filing an appeal/review there-against, and also to serve the effectees, hard copies of the Notification/ Memorandum along with the order elaborately disclosing the reasons for his/her name being placed on the ECL within seven days. The Court further directed that the said review/appeal be heard and decided within thirty days. The High Court's judgment was upheld by this Court vide judgment dated 13.4.2016. It was held that mere pendency of a criminal case cannot furnish a justification for restricting the movement of respondent No,
1. This Court also noted that the respondent No,1 has not even alleged that the respondent No,1 is involved in any of the cases listed in Rule (2) of the Rules and particularly under rule 2(1)(b), inasmuch as, she has not been charged for embezzlement of large government funds or to have committed institutional fraud.
7. However, on 15.4.2016, the Respondent No,1 was stopped from proceeding abroad, as her name, despite the above judgments, has not been removed from the ECL, and it was only on 18.4.2016, after a passage of five days of this Court's judgment, that her name was taken off the list, but within a few hours thereafter her name was put back on the ECL, through a second Notification/Memorandum dated 19.4.2016, on the ground of her inability to discharge her tax liability. The Respondent No,1 was not informed about the second Notification/ Memorandum also, despite the earlier noted clear directions of the High Court. The Respondent No,1 was thus constrained to file contempt proceedings before this Court. This Court found that the proceedings were to be filed before the High Court. It was however observed that in view of the circumstances of the case it would be appreciated if the High Court dispose of the matter as expeditiously as possible, and preferably within a period of ten (10) days.
8. The Respondent No,1 thus went before the High Court. The High Court, after thoroughly analyzing the case and recording the chronology of events, held that the Petitioner, as well as the FBR "were bent upon keeping the Respondent No,1 on the ECL at any cost for ulterior/extraneous reasons best known to themselves. When the first memo was struck down for not falling within the ECL policy, Respondent No,6 (FBR) immediately moved to put the Petitioner in a money laundering case which fell within the ECL policy in order to defeat the High Court's judgment. However, when this failed, Respondent No,6 (FBR) moved to use outstanding dues to the Government to place the Petitioner's name on the ECL, which as per Para 5 of the Supreme Court order cited above may not even qualify to place the name of the Petitioner on the ECL." It was further observed that "the Respondent No,1 deliberately and malafidely, did not take the respondent No,1 's name off the ECL for 5 long days after the passing of the order by this Court, of which the petitioner, was well aware, and within that time illegally and malafidely stopped the Respondent No,1 from leaving the country to perform her professional commitments, and as can be seen from the chronology, the Respondent No,1 kept her name on the ECL until they had, in connivance with the FBR maneuvered a new reason to place her on the ECL which they hoped would come within the ECL policy". The Court further noted that the respondent No,1, the present petitioner, almost immediately replaced the second for the first Notification/Memorandum, and proceeded to strike down the second Notification/Memorandum, as the same did not qualify the test of fairness and bona fide, and inter alia directed that the respondent No,1 's name should not be placed on the ECL without prior permission of the High Court. As regards the conduct of the petitioner, it also may be relevant to note that although it was during the pendency of the contempt petition before this Court that the petitioner were on their way to issuing the third notification/memorandum but they did not inform either this Court or the High Court that the third notification/memorandum was in the offing. The Court, however showed grace and did not proceed against the Petitioner for contempt, but made it clear that such restraint may not be so forthcoming in case the alleged contemnors continued to violate the Court orders. The alleged contemnors were once again directed to comply with the directions as contained in Paras 61 and 62 of the judgment dated 07.3.2016 as reproduced herein earlier. The High Court however, at the request of the petitioner suspended the said order for a period of seven (07) days to enable them to appeal the same. But when the matter came up before the High Court for compliance, though it was conceded that no appeal was filed by the present Petitioner and only one day was left to do so, however, at the request of the learned Additional Attorney General time was granted for compliance of the order and as an indulgence the matter was adjourned to the next day, but with a caution that if the order is not complied in letter and spirit, the Secretary Ministry of Interior shall be in attendance and shall explain as to why proceedings for contempt of Court's order may not be initiated against him.
9. On the next day, the learned Additional Attorney General informed the Court that the Respondent No, l's name has not been deleted from the ECL and that the alleged contemnors were making efforts to obtain some interim orders from this Court. The High Court after recording its displeasure over the conduct of the Petitioner directed the Secretary Ministry of Interior to appear in person on 14.6.2016 and to explain his position as to why the orders of the High Court as well as of this Court have not been complied with, and as to why contempt of Court proceedings may not be initiated against him for defiance of the Court's orders. Such was done with a caution that if the needful is' not done before the next of hearing the Court shall be constrained to proceed against the Secretary and the other alleged contemnors, and that no further opportunity in that regard will be extended to them. It seems that on 14.6.2016, the Secretary Ministry of Interior appeared before the High Court, with an explanation that the order dated 02.6.2016 has not been complied, as the government is pursuing for a suspension order from this Court, whereupon the High Court in its order, dated 14.6.2016, noted that the Secretary Ministry of Interior, faced with a definite prospect of being issued a Show Cause Notice for his persistent defiance of the Court order, has requested one day's time, to further enable him to obtain some restraining order from this Court, failing which the order dated 02.6.2016 shall be complied in letter and spirit, and thus by way of indulgence and as a last chance adjourned the hearing to 15.6.2016, with a caution that if the alleged contemnor(s) fails to comply with the above, he/they shall expose himself/themselves to the contempt of Court proceedings without any further opportunity.
10. On 15.6.2016, a memo of even date, deleting the name of the Respondent No,1 from the ECL was placed before the High Court. In its order of the said date, the High Court, whilst, recording the' statement of the Secretary Ministry of Interior, present before the Court, that the name of the Respondent No,1, has been deleted from the ECL, and that there is no legal impediment in her traveling abroad, condoned the delay but with a caution to the contemnors to be careful in future in dealing with the Court matters, and to ensure compliance of the orders passed by the Court in letter and spirit promptly.
11. However, the petitioner on the very day the second Notification/ Memorandum was struck down, issued the third Notification/ Memorandum, for her being nominated in a case of murder of a custom officer while she was confined in jail in connection with a case of foreign currency smuggling, which smuggling case has lead to the issuance of the first Notification/Memorandum.
12. It may be noted that in the meanwhile the petitioner as well as respondent No,1 has approached this Court with their petitions challenging the High Court's order dated 02.6.2016. Respondent No,1' s contention was that the learned High Court ought to have proceeded against the petitioner for contempt rather than showing judicial restraint, whereas the petitioner was aggrieved with the directions contained in the said order. It seems that due to the pendency of the said petitions before this Court, the respondent No,1 's constitutional petition challenging the third Notification/Memorandum was not proceeding, and therefore this Court through order dated 30.6.2016, observed that this Court expect that the learned High Court of Sindh shall proceed with the said petition expeditiously and decide the same, if possible, within two weeks, and by order dated 21.9.2016, observed that "we expect that on 03.10.2016 the matter will be finally heard and concluded before the High Court of Sindh and it will be disposed of in accordance with law". It was through the impugned judgment that the petition has been disposed of.
13. Reverting to the third Notification/Memorandum it is crucial to note that like the earlier two Notifications/Memorandums, the third Notification/Memorandum was issued purportedly for the reasons which do not conform to the criteria as laid down in the relevant rules and the exit control policy. It was not only in the case of Wajid Shamsul Hassan v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad (PLD 1997 Lahore 617), where it was held that the liberty of a citizen cannot be curtailed by mere registering a criminal case, and that mere registration of FIR would not be a ground for depriving a citizen of the exercise of his constitutional right and further that registration of a criminal case has no nexus with and is extraneous to the object of the Exit from Pakistan (Control) Ordinance 1981, but even in the case of respondent No,1, in relation to the second Notification/Memorandum, this Court, while dismissing the petitioner's petition for leave, through judgment dated 13.4.2016, has held as follows:- "5. Respondent No,1, no doubt, has been charged in a case mentioned above which is still pending adjudication in the competent Court of law. But mere pendency of a criminal case cannot furnish a justification for prohibiting her movement. It has never been the case of the petitioners that the respondent is involved in any of the cases listed in Rule 2 of the Exit from Pakistan (Control) Rules, 2010 in general or Rule 2(1)(b) in particular, inasmuch as she has not been charged to have embezzled a large government's fraud or committed institutional fraud."
However, as noted above the third Notification/Memorandum was issued on the ground clearly not falling within the parameters as prescribed by the relevant law, rules, and the above unequivocal pronouncement of this Court.
14. In issuing the third Notification/Memorandum, the petitioner has also not complied with the various directions as contained in the judgments/orders of the High Court in relation to the earlier two Notifications/Memorandums. Furthermore while issuing the third Notification/Memorandum the petitioner has also overlooked the order dated 02.6.2016, whereby the High Court restrained the petitioner from placing the respondent No,1 's name on the ECL without the prior approval of the High Court.
15. The High Court has therefore rightly and justly struck off the third Notification/Memorandum. The impugned judgment does not call for any interference. The petition is accordingly dismissed.