MIRZA VIQAS RAUF , J.---By way of memorandum dated 21st February , 2019, name of the petitioner namely Mian Muhammad Shahbaz Sharif was placed in the Exit Control List (hereinafter referred as "ECL") on the recommendation of National Accountabil ity Bureau (hereinafter referred as "NAB ") and through instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 (hereinafter referred as "Constitution"), he has questioned the said action of the respondents.
2. On this petition, we have issued notice to the respondents and in response thereof all the respondents have submitted their report and parawise comments wherein they tried to justify the act of placing the name of the petitioner on "ECL" and also raised an objection that this constitutional petition is not maintainable in view of availability of alternate remedy in the form of review .
3. Mr. Azam Nazeer Tarar, learned counsel for the petitioner , while reiterating the contents of petition, submitted that the petitioner is renowned politician and at present he is Opposition Leader' in. the National Assembly . Learned counsel contended that the petitioner has been victimized on the basis of political rivalry . He added that initially the petitioner was arrested on 5th October , 2018 in a matter relating to Ramzan Suga r Mills case and Aashiana Iqbal Housing Scheme, Lahore. It is emphasized that the petitioner was, however , released on bail by way of order dated 14th February , 2019. Learned counsel argued that order to frustrate the orders of this Court, name of the petitioner was placed on "ECL" with mala fide intent. Learned counsel emphatically argued that right of movement of the petitioner is guaranteed under the "Constitution", which cannot be curtailed in an illegal and unlawful manner . It is submitted that though remedy of review is available but said remedy is neither adequate nor efficacious. In support of his contentions, learned counsel places reliance on "The Federal Government through Secretary Interior - Government of Pakistan v. Ms. Ayyan Ali and others" (2017 SCMR 1179) and "Messrs United Bank Ltd. v.
Federation of Pakistan and others " (2014 SCMR 856 ).
4. Conversely , Mian Tariq Shafique Bhandara, learned Deputy Attorney General for Pakistan submitted that name of the petitioner was placed on "ECL" as per recommendation of "NAB" after obtaining approval from the Cabinet and as such no illegality is committed in this regard. He added that sufficient reasons have been assigned before placing the name in "ECL" and instant petition is not maintainable.
5. Mr. Faisal Raza Bukhari, learned Special Prosecutor for "NAB" also seriously resisted the instant petition. While making reference to the contents of report and parawise comments, learned Prosecutor submitted that inquiry is pending against the petitioner that he has accumulated assets beyond his known sources of income comprising of millions of rupees.
6. We have heard learned counsel for the petitioner , learned Deputy Attorney General as well as learned Special Prosecutor for "NAB" at considerable length and also perused the record.
7. Before adverting to the other questions involved in the instant petition, we would like to first attend the preliminary objection raised by the respondents with regard to maintainability of instant petition on the ground that remedy of review is available under section 3 of the Exit from Pakistan (Control) Ordinance, 1981 (hereinafter referred as "The Ordinance, 1981").
8. There is no cavil that in appropriate cases where an efficacious alternate remedy is available, this Court restrains itself to exercise the extraordinary jurisdiction in terms of Article 199 of the "Constitution" but this is not the rule of universal application. The constitutional jurisdiction cannot be regulated through a subservient law. Whenever life and liberty of a citizen is involved, the Court has to come forward' to protect the fundamental rights of the citizen.
The question of maintainability of a constitutional petition in view of availability of remedy of review under section 3 of "The Ordinance, 1981" has already come under discussion before this Court in the case of "Wajid Shamas-ul- Hassan v. Federation of Pakistan throu gh Secretary Ministry of Interior , Islama bad" (PLD 1997 Lahore 617) wherein it was held as under:-
14. In view of the above discussion, I have no doubt in my mind that the right of a citizen to travel abroad is a fundamental right guaranteed by Articles 2A, 4, 9, 15 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. Abridgement of this fundamental right by the State through the legislative or an executive measure has to be tested on the touchstone of the Constitutional provisions. The life, liberty or property of a citizen cannot be taken away or adversely affected except in accordance with law. However , the "law", I mean, a valid law which does not come in conflict with any of the provisions of the Constitution and should not be a law which is ex facie discriminatory . 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. Even the valuable rights of citizens of being heard and of knowing the reasons for such an action have been denied. The provisions of law are, therefore, ex facie discriminatory as also capable of being administered in a discriminatory manner . If no reasons are assigned to an aggrieved person the remedy of review under section 3 of the Ordinance by making a representation becomes redundant. A citizen would not be in a position to make any effective representation in the absence of any reason or a speaking order . Prima facie, it may be difficult to sustain the validity of the Ordinance on the touchstone of Articles 2A, 4, 9 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. Under this law, there is a scope for the executive to adopt a policy of pick and choose in any case without there being any justifiable grounds. I, however , refrain from expressing any final opinion in this regard for the reason that the vires of the Ordinance have not been specifically challenged in the writ petition. The same would be examined in some other appropriate case where a specific challenge to the validity of the said Ordinance is made. However , in the present case, the impugned order dated 14-11-1996 does not contain any reasons in support thereof. It is an arbitrary and a mala fide order . The same is a nullity in the eye of the Constitution and the law. In the absence of any valid reasons, the validity of the impugned order dated 14-11-1996 cannot be adjudged and the same has, therefore, to be struck down as without lawful authority . Similar is the position of impugned order dated 19-1-1997 whereby the representation of the petitioner was rejected without informing him of any grounds or reasons for its rejection. In the cases of Ch. Zahur Ilahi (supra) and Shahid Afzal v. Government of Pakistan PLD 1977 Lahore 117, it has been held that a duty is cast on every Tribunal to give reasons for their, decision. 'The rule is that the record must show that the Tribunal did consider the questions of law and fact arising in the case before it gave its decision. It means that the order of the Tribunal must be a speaking order and it should hold out that its maker was conscious of the questions to be considered and decided and that he did apply his mind to them. It was, therefore, held that a Tribunal empowered to pass orders which may deprive a person of his liberty , property , status or livelihood or impose a penalty or cause a slur on his reputation, must give its reasons for the order . The Hon'ble Supreme Court of Pakistan has also taken the same view in the case of Dada Amir Haider Khan (supra). In the absence of any mention of reasons in the impugned orders, I should legitimately take the view that there was no reason at all available with the Federal Government to pass the impugned orders. It did not bother even to file the written statement to the writ petition. Mere oral assertions on behalf of the Government apart from being extraneous and invalid are not worthy of any credit. The impugned order was passed on 14-11-1996 whereas the case FIR No, 13 of 1996 was registered by the FIA, Karachi, on 26-11-1996. It is not possible to take into consideration the subsequent FIR for the purpose of examining the validity of the impugned order dated 14-11- 1996. Moreover , the petitioner has alread y been granted bail on 21-12-1996 in the said criminal case by order of the Sindh High Court, Karachi. The liberty of the petitioner could not be curtailed by mere registering a criminal case for which he may or may not be criminally liable. Mere registration of FIR in a criminal case cannot be a ground for depriving a citizen of the exerc ise of all fundamental and other Constitutional rights. The registration of a criminal case has no nexus with and is extraneous to the object of the Statute. In taking this view, I find the support from the judgments in the cases of M. Younis Malik and A. Ghani (supra) from the foreign jurisdiction. In Montgomery Flour and General Mills Ltd. v. The Director , Food Purchases, West Pakistan PLD 1957 Lahore 914, late B.Z. Kaikaus, J said: No discretion vested in an executive officer , is an absol ute and arbitrary discretion. The discretion is vested in him for a public purpose and must be exercised for the attainment of that purpose. Even though there are no express words in the relevant legal provision to that effect, the discretion is always circumscribed by the scope and object of the law that creates it and has at the same time to be exercised justly , fairly and reasonably---Whenever an enactment empowers a public officer to pass orders that benefit or harm a citizen, the citizen gets a right that, in a matter in which he is concerted an order be passed in accordance with the law. This too is a right that can be enforced by the Court in the exercise of its writ jurisdiction under Article 170 of the Constitution of Pakistan, 1956". In the case of Independent Newspapers Corporation v. Chairman, Fourth Wage Board 1993 SCMR 1533 , the Hon'ble Supreme Court has held that the expressed Statutory powers of public functionary is not to be pushed too far as conferment implies restraint so as to exercise the same justly and reasonably and that excessive use of lawful powers is to be unlawful. In the case of Sh. Zahur Ilahi v. The State PLD 1977 SC 273 at page 298, it was held that if an executive act was done with the intention to misuse powers the same was to be set aside by the Courts."
The above view was further reiterated in "Tayyab Hussain Rizvi and others v. FOP and others" (PLD 2015 Lahore 353). Guidance in this respect can also be sought from the case of "Muslimabad Cooperative Housing Society Ltd. through Secretary v . Mrs. Siddiqa Faiz and others" (PLD 2008 Supreme Court 135).
9. There can be no second opinion that act of placing the name of a person on "ECL" amounts to restrict his/her movement. Section 2 of "The Ordinance, 1981"), however , bestows power upon the Federal Government to prohibit any person or class of persons from proceeding from Pakistan; to a destination outside Pakistan, notwithstanding the fact that such person is holding valid travel documents. By virtue of section 5 of the Ordinance ibid, Federal Government, by notification in the official gazette, can make rules for carrying out the purposes of "The Ordinance, 1981". In exercise of said powers, the Exit from Pakistan (Control) Rules, 2010 (hereinafter referred as "The Rules, 2010") were made. Rule-2 provides the grounds for prohibiting a person from proceeding from Pakistan to a destination outside Pakistan, which reads as under:-
2. Grounds to prohibit persons from proceeding from Pakistan to a destinat ion outside Pakistan.---(1) The Federation 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 governments 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 no 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.
(2) Nothing in sub-rule (1) shall apply to--
(a) persons involved in private disputes where government interest is not at stake, except cases of fraud against foreign banks and reputable companies with significant foreign investments;
(b) person involved in crime like murder and dacoity , etc., unless special grounds are furnished by the relevant home departments;
(c) directors who represent foreign investment in business;
(d) women or children undergoing education who are appearing as directors merely due to their family relationship with major shareholders; or
(3) Name of any person placed on the exit control list maintained by the Federal Government in pursuance of an order made under subsection (1) of section 2 of the said Ordinance and who:
(a) has proceeded from Pakistan, shall remain on such list, so long the said order is in force, for taking legal action against him on return to Pakistan.
(b) is in judicial custody likely to be released on bail by a competent court of law, shall remain on such list so long as the said order is in force; and
(c) has been convicted by a competent court of law for any offence shall remain on such list so long as the said order is in force and till his conviction attains finality .
After going through. the above said rule, it can safely be inferred that the impugn ed memorandum was issued by invoking Sub-Rule-1(a) and (b) of Rule-2.
10. The "Constitution" guarantees certain fundamental rights of the citizens. Right of movement is one of such recognized rights. In terms of Article 15 of the "Constitution", every citizen has a 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 scope and object of Article 15 of the "Constitution" was examined by the Hon'ble Supreme Court of Pakistan in the case of "Pakistan Muslim League (N) through Kh. Asif and others Federation of Pakistan through Secretary Ministry of Interior and others" (PLD 2007 Supreme Court 642) wherein it was held as under:-
7. Be that as it may, the petitioners being citizens of Pakistan can return to their country as no restraint can be placed on a Pakistani citizen to return to his country and the undertaking given by the petitioners had no Constitutional legitimacy as such the petitioners cannot be prohibited from coming to Pakistan. 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 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 colourable 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 ." (PLD 1973 SC 49, PLD 1969 SC 14, 21 DLR (SC) 1). It is well settled by now that every citizen has an inalienable right to enjoy the protection of law and to be treated in accordance with law and in particular , no action detrimental to the life, liberty , body reputation or property of any person shall be taken except in accordance with law. No action detrimental to such fundamental Rights can be initiated except in due course of law. In this regard we are fortified by the dictum laid down in the following authorities:- (PLD 1990'Lah. 432, 1990 MLD 1463 = PLJ 1990 Lah. 380 = 1990 ALD 442, 1990 MLD 1468 , PLD 1989 Lah.
175, 1988 CLC 545 , 1985 PCr .LJ 360)"
The principles laid down in the above referred case were followed in a latest judgment of the Hon'ble apex Court in the case of "Higher Education Commission through Project Manager v. Sajid Anwar and others" (2012 SCMR 186).
Reference in this respect can also be made to "The Federal Government through Secretary Interior , Government of Pakistan v. Ms. Ayyan Ali and others" (2017 SCMR 1179) as well as "Messrs United Bank Ltd. v. Federation of Pakistan and others" (2014 SCMR 856 ).
11. The above referred survey of law leads us to an irresistible conclusion that undoubtedly Federal Government, by virtue of section 2 of "The Ordinanc e, 1981", can prohibit a person from proceeding from Pakistan to a destination outside Pakistan, notwithstanding the fact that such person is holding valid travel documents but at the same time, it is incumbent upon the Federal Government that before exercising such powers, it shall apply its independent mind fairly and justifiably to the facts of the case. Such an order cannot be passed in a vacuum or mechanical manner as it tends to curtail the liberty of a person which resultantly tantamount to abridge his fundamental right guaranteed under the "Constitution".
12. It is an admitted fact that the petitioner was previously arrested 5th October , 2018 in two different scams. After his arrest he applied for his release on bail through W.P. No,4051 and W.P. 4052 of 2019, which were allowed by this Court vide order dated 14th February , 2019 and in pursuance thereof he was released from jail. The inquiry in the instant matter was authorized on 23rd October , 2018, which is still in process. We when confronted learned Law Officer as well as learned Special Prosecutor for "NAB" as to how much time is required for completion of the proceedings, they were unable to give any specific time to this ef fect.
Mere pendency of an inquiry with the "NAB" does not provide sufficient material or justification for keeping the name of the petitioner in the "ECL". Apparently , no plausible reasons have been assigned by the respondents while placing the name of petitioner on "ECL". It appears that the impugned order is passed in haste and in mechanical manner on the instructions of "NAB". In recent past, there is a consistent view of this Court as well as learned High Courts of other provinces that mere pendency of an inquiry or investigation would be no ground for justifying the placement of name of an accused on "ECL". It is well entrenched principle of law that merely pendency of an inquiry or investigation with the "NAB" Authorities, which seemed to be going on for a considerable long time, would not be a ground for depriving a citizen of his constitutional right of living as a free citizen of Pakistan. We see no reasonable ground on the basis of which petitioner could be deprived of travelling abroad. The view formed hereinabove is further fortified by a judgment of this Court in case of "Sohail Latif and 2 others v. Federation of Pakistan through Secretary , Ministry of Interior Government of Pakistan, Islamabad and 2 others" (PLD 2008 Lahore 341). In "Muhammad Khyzer Yousuf Dada v. Federation of Pakistan through Secretary , Ministry of Interior and 5 others" (PLD 2011 Karachi 546) learned Sindh High Court, while dealing with the similar proposition, observed as under:- "Keeping in view the rationale laid down in the above reported cases, there is no material on record to show that there is any pending case against the petitioner in any Court and merely investigation by the NAB Authorities, which seems to be going on for a considerable time, will not be a ground for depriving the petitioner of his constitutional right of living as a free citizen of Pakistan and there appears to be no reasonable ground on the basis of which he could be deprived from travelling abroad. "
The above laid principles have also been adopted by the learned Peshawar High Court in the case of "Javed Khan v. Pakistan through Secretary Interior and 6 others" ( 2017 YLR 2109 ) wherein it is held that:- "7. According to the record, the only reason, though not taken specifically , for passing the impugned order is that there are pending two References against the petitioner under the National Accountability Ordinance, 1999 but admittedly in both the References, the petitioner has been released on bail by this Court, which orders are still in the field.
8. When the petitioner has been released on bail in the two References filed against him by the NAB authorities and when no sufficient reason has been given for placing his name in the Exit Control list, then, on no count, the impugned order can be termed as a legal and valid order ."
13. For what has been discussed above. instant writ petition is allowed. As a result thereof, order dated 21st February , 2019 is set aside and the respondents are directed to remove the name of petitioner from the "ECL" forthwith.