MALIK SHAHZAD AHMAD KHAN, J.---This petition has been filed on the ground that husband of Mrs. Ifra Murtaza petitioner No,1, namely , Murtaza Amjad/petitioner No,2 has illegally been detained in Dubai (U.A.E) by the Interpol on the basis of red notices/warrants of arrest issued against him on account of alleged illegal proceedings conducted against Murtaza Amjad by the N.A.B, Lahore, as well as, in pursuance of wrong decisions passed by the Accountability Court, Lahore.
2. As no power of attorney of Murtaza Amjad petitioner No,2 is available on the record and as this constitutional petition in the nature of habeas corpus has been filed by Mrs. Irfah Murtaza petitioner No,1 regarding stated illegal detention of her husband, namely , Murtaza Amjad (petitioner No,2) therefore, Mrs. lrfah Murtaza petitioner No,1 shall, hereinafter , be called as 'the petitioner' and Murtaza Amjad petitioner No. 2 shall hereinafter be called as 'the detenu'.
3. This constitutional petition under Article 199 of the constitution of Islamic Republic of Pakistan was filed when the detenu Murtaza Amjad was detained by the Interpol /C.I.D (Investigation), Dubai U.A.E and thereafter he was under restricted custody. It is claim of the petitioner that Murtaza Amjad detenu is absolutely innocent and he has falsely been implicated in the N.A.B inquiry which was subsequently upgraded to N.A.B Investigation i. e. , Investigation No, 1(9)HQ/1835- NAB-L. It is further averred in this petition that right from the beginning the proceedings of the N.A.B against Murtaza Amjad detenu were based on mala fides because the date for appearance of Murtaza Amjad before the N.A.B in the call up notice dated 18.04.2018, issued by the N.A.B under Section 19 of the National Accountability Ordinance, 1999, was fixed for 25.04.2018 but two days earlier to the above-mentioned date, the N.A.B issued warrant of arrest of the detenu on 23.04.2018 which speaks of mala fides of the N.A.B/respondent. Similarly, subsequent proceedings initiated against the detenu for issuance of proclamation and declaring the detenu a proclaimed offender, as well as, regarding the attachment of his property have also been carried out in violation of the law on the subject and as such, the same are not sustainable in the eye of law. It is further averred in this petition that the order regarding the placement of the name of Murtaza Amjad detenu in the Exit Control List (E.C.L) is also an illegal order, which has been passed by respondent No,1 in a mechanical manner therefore, order dated 12.09.2018 of the learned Accountability Court, Lahore, whereby Murtaza Amjad detenu has been declared a proclaimed offender, order dated 27.09.2018 of the learned Accountability Court, Lahore whereby perpetual warrant of arrest of the detenu were issued, order dated 14.11.2018 of the Accountability Court whereby application filed by the petitioner for recalling of the abovementioned orders dated 12.09.2018 and 27.09.2018 was dismissed and order/warrant of arrest dated 23.04.2018 issued by the Chairman N.A.B for the arrest of Murtaza Amjad detenu and memorandums issued by respondent No,1 dated 14.06.2018 and 20.11.2018 whereby the name of Murtaza Amjad detenu was placed on the E.C.L and proceedings initiated by the N.A.B through respondents Nos, 1, 4 and 5, Interpol Crime Police and Ministry of Interior for the execution of red notices and warrants of arrest dated 23.04.2018 and 12.09.2018, due to which, Murtaza Amjad detenu has been illegally detained in U.A.E and proceedings of extradition of the detenu, as well as, the above-mentioned order dated 14.11.2018 passed by the learned Accountability Court, Lahore may be declared to be illegal and void as the same have been passed without lawful authority, jurisdiction and of no legal consequences and resultantly, the same may be set aside.
4. On the other hand, as per case of the N.A.B, parents of Murtaza Amjad detenu were owners of various projects of Eden Housing and Developers Ltd. Murtaza Amjad detenu later on also became a Director of Eden Housing and Developers Ltd. On 11.01.2018, N.A.B initiated an inquiry against the owners/management of Eden Housing and Developers Ltd because statedly different complaints were received from the general public against the abovementioned Housing Schemes. Chairman N.A.B delegated powers to the D.G, N.A.B, Lahore to authorize inquiry . The N.A.B Lahore, statedly issued different Call Up Notices against Murtaza Amjad detenu under Section 19 of the N.A.B Ordinance, 1999 and on account of his non-appearance, his warrants of arrest were also issued.
As warrants of arrest of Murtaza Amjad detenu could not be executed at his local address, because he was residing in Canada therefore, proceedings under Section 87 of Cr.P.C were initiated against him. Proclamation as envisaged under Section 87 of Cr.P.C was issued against him by the Accountability Court, Lahore and as he did not appear before the said Court, therefore, he was declared a proclaimed offender . Proceedings for attachment of his moveable and immoveable properties were initiated. His name was put on the E.C.L. by respondent No. 1 and his red notices/warrants of arrest were also issued in order to arrest him through the Interpol. Consequently , Murtaza Amjad detenu was arrested in Dubai, U.A.E through Interpol/C.I.D, Dubai and he was kept under restrained custody in Dubai (U.A.E) due to the red notices/warrants of arrest issued against him, whereupon, wife of the detenu, namely , Mrs. Ifrah Murtaza (petitioner) has filed the instant constitutional petition before this Court which is not maintainable and the same is liable to be dismissed being meritless.
5. It is contended by learned counsel for the petitioner that Murtaza Amjad detenu is absolutely innocent and he has malafidely been implicated in this case by the N.A.B; that proceedings initiated by the N.A.B/respondent against Murtaza Amjad detenu are based upon ulterior motives; that mala fides of the N.A.B are apparent from the fact that vide Call Up Notice under Section 19 of N.A.O, 1999 dated 18.04.2018, Murtaza Amjad detenu was asked to appear before the N.A.B, Lahore on 25.04.2018 in order to produce document/evidence (in his defence) but before the said date i,e, 25.04.2018, the Chairman, N.A.B issued warrant of arrest of Murtaza Amjad detenu on 23.04.2018 meaning thereby that the N.A.B was out to arrest the detenu even before giving him an opportunity of hearing and to produce evidence in his defence; that mala fides against the detenu are also apparent from the fact that the respondent/N.A.B filed an application under Section 87 of Cr.P.C for issuance of proclamation against Murtaza Amjad detenu and the learned Accountability Court No, V, Lahore without recording any evidence as .envisaged under the above-mentioned provision of law (Section 87 of Cr.P.C), straightaway allowed the said application vide order dated 26.06.20.18; that the learned Accountability Court did not bother to pass order dated 26.06.2018 on any order sheet of the Court rather the said order was written on the last page of the application submitted by the N.A.B; that order dated 26.06.2018 of the learned Accountability Court No, V, Lahore is a non-speaking order and the same is not sustainable in the eye of law; that order for issuance of proclamation under Section 87 of Cr.P.C was passed against Murtaza Amjad detenu on 26.06.2018 but, the proclamation was issued on 13.07.2018 wherein the date of appearance of the detenu before the Accountability Court No, V, Lahore was fixed for 26.07.2018 and as such, period of thirty days has not been provided to the detenu as envisaged under Section 87 of Cr.P.C; that although the Accountability Court can dispense with any provision of the Code of Criminal Procedure, 1898, as provided under Section 17(c) of the N.A.O, 1999 but for this purpose, the Accountability Court was bound to record its reasons for doing so but no reason whatsoever has been mentioned in the impugned orders for dispensation of provisions of the Code ibid; that the petitioner filed an application before the Accountability Court No. V, Lahore for recalling of order dated 12.09.2018 whereby the detenu was declared a proclaimed offender and order dated 27.09.2018 whereby perpetual warrants of arrest of the detenu were issued, while pointing out the above-mentioned illegalities in the earlier orders of the Accountability Court but the said application of the petitioner has illegally been dismissed vide the impugned order dated 14.11.2018 of the learned Accountability Court, Lahore; that name of Murtaza Amjad detenu has been put on the E.C.L by the Ministry of Interior, Government of Pakistan, Islamabad (respondent No,1) without application of its own independent mind and merely on the recommendation of N.A.B, Lahore and the detenu was not given any opportunity of hearing before putting his name on the E.C.L and as such, the orders of putting the name of Murtaza Amjad detenu on the E.C.L are also not sustainable in the eye of law; that the impugned orders have been passed in clear violation of the law/rules on the subject and the same are tainted with mala fides therefore, the same may be declared as illegal and void and consequently, the said orders may be set-aside.
6. On the other hand, this petition has been opposed by the learned Deputy Attorney General for Pakistan, as well as, by the learned Special Prosecutor for N.A.B on the grounds that the instant petition is not maintainable because Mrs. Ifrah Murtaza (petitioner) cannot file the instant petition regarding the orders issued against her husband, namely, Murtaza Amjad because the detenu is not in Pakistan and the petitioner Mrs. Ifrah Murtaza is not an aggrieved person in this case; that initially Murtaza Amjad was arrested by the Interpol at Dubai, U.A.E, on account of red notices/warrants of arrest issued against him, in pursuance of the impugned orders but later on, Murtaza Amjad detenu has been released by the Interpol/authorities at Dubai therefore, on account of release of Murtaza Amjad detenu, this petition has become infructuous. Insofar as, the merits of the case are concerned, it is commended that Murtaza Amjad detenu has rightly been implicated in this case by the N.A.B as there was ample evidence against him which connects him with the alleged offence; that repeatedly Call Up Notices were issued against Murtaza Amjad detenu by the N.A.B, Lahore but he did not appear before the N.A.B authorities, whereupon, his warrants of arrest were also issued by the Chairman, N.A.B and thereafter, proceedings under Section 87 of Cr.P,C were initiated against him; that after completion of all codal formalities, Murtaza Amjad (detenu) was declared a proclaimed offender in this case by the Accountability Court No,V, Lahore .and proceedings for attachment of his moveable/ immoveable properties were initiated; that as Murtaza Amjad detenu is an accused in the above-mentioned case of N.A.B. therefore, the N.A.B. recommended for putting his name on E.C.L and the Ministry of Interior, Government of Pakistan, Islamabad (respondent No,1) has rightly put his name on the E.C.L and in this respect, the detenu has alternate remedy of filing a review petition under Section 3 of the Exit from Pakistan (Control) Ordinance, 1981 before respondent No,1; that there is no substance in this petition therefore, the same may be dismissed.
7. Arguments heard. Record perused.
8. First of all we take up the preliminary objection raised by learned Deputy Attorney General for Pakistan, as well as, by the learned Special Prosecutor for N.A.B regarding the maintainability of the instant constitutional petition on the ground that as Murtaza Amjad detenu was not in Pakistan at the time of his arrest in Dubai U.A.E, as well as, at the time of filing of this constitutional petition therefore, this petition is not maintainable and on the ground that as the impugned orders have been passed against Murtaza Amjad detenu therefore, the impugned orders can only be challenged by him and not by his wife (Mrs. Irfah Murtaza petitioner). The next objection regarding the maintainability of this petition is that as Murtaza Amjad detenu has subsequently , been released by the Interpol and authorities at Dubai (U.A.E) therefore, on account of his release from custody , this petition has become infructuous.
We have noted that this petition has been filed by Mrs. Irfah Murtaza petitioner on the ground that her husband, namely , Murtaza Amjad (detenu) has illegally been detained at Dubai, U.A.E by the Interpol on the basis of illegal orders and warrants of arrest issued against him by the N.A.B authorities, as well as, by the Accountability Court No, V, Lahore. At the time of filing of this petition, Murtaza Amjad detenu was admittedly hi restrained custody in Dubai on account of red notices/warrants of arrest issued against him (as this fact has been admitted by the respondents in their report and parawise comments) therefore, this petition has been filed by his wife, namely , Mrs. Ifrah Murtaza (petitioner). As the instant petition has been filed in the nature of habeas corpus therefore, we are of the view that this petition has validly been filed by the wife of Murtaza Amjad detenu. It is by now well settled that a constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, in a matter of habeas corpus, or petitions of writ of quo-warranto can be filed by any person and it is not necessary that the said person should be an aggrieved person. The Hon'ble Supreme Court of Pakistan in the case of 'Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan ' (PLD 1977 Supreme Court 657) at page No, 675 was pleased to observe as under:- "Clause (1) (c) of Article 199 does indeed contemplate that an application for the enforcement of Fundamental Rights has to be made by an aggrieved person. Now, it is true that in the case before us the petitioner is not alleging any contravention of her own Fundamental Rights, but she has moved the present petition in two capacities, as wife of one of the detenus and as Acting Chairman of the Pakistan People's Party , to which all the detenus belong. In the circumstances, it is difficult to agree with Mr. Brohi that Begum Nusrat Bhutto is not an aggrieved person within the meaning of Article 199. In more or less similar circumstances in Manzoor Elahi v.
State (1) this Court entertained, a petition unde r Article 184(3) of the Constitution although it was not moved by the detenu himself but by his brother . I consider , therefore, that both the preliminary objections raised as to the maintainability of the petition have no merit."
It is also true that subsquent to the filing of this constitutional petition, Murtaza Amjad detenu has been released from the custody by the Interpol/concerned authorities at Dubain, U.A.E, statedly on the ground that no convincing evidence/material was produced against him and this fact has been brought on the record by the learned counsel for the petitioner by placing on the record through C.M. No,01 of 2019, letter dated 26.12.2018, issued by the Technical Office of the Attorney General, Government of U.A.E. which is in Arabic language and English translation is attached therewith. This fact has also been frankly conceded by the learned Deputy Attorney General for Pakistan, as well as, by the learned Special Prosecutor for N.A.B that Murtaza Amjad detenu has subsequently been released from the custody by the concerned authorities in U.A.E. Now the question for determination before this Court is that as to whether this petition has become infructuous, merely , on account of release of the detenu from the custody and as to whether this Court cannot see the legality of the impugned orders on account of which the detenu was arrested and kept in confinement for several weeks. In this respect, in our humble view, this petition has not become infructuous merely on account of the release of the detenu from the custody and we can see that as to whether the impugned orders on the basis of which the detenue was kept in confinement were issued in accordance with the law or not. In this respect, the reliance is placed on the case of 'Malik Ghulam Jilani v. (1)
The Government of West Pakista n, through the Home Secretary , Lahore and (2) The Deputy Commissioner , Lahore' (PLD 1967 Supreme Court 373). In the said case, question regarding the illegality or otherwise of detention orders of three persons, namely , Malik Ghulam Jillani, Sardar Shaukat Hayat Khan and Nawabzada Nasrullah Khan came under discussion before the Hon'ble Supreme Court of Pakistan. The objection raised before the Hon'ble Supreme Court of Pakistan was that as the detenus had been released from the custody therefore, their appeals had become infructuous, The Hon'ble Supreme Court of Pakistan held that though the detenus were already released from the custody but even then the Court can determine the legality of the orders whereby they were kept in confinement. Relevant part of the said judgment at page 400 reads as under:- "It remains to mention that during the course of the hearing of these appeals all the three detenus were released by the Provincial Government. In the ordinar y course, such release would have had the effect of causing the appeals to abate, but in these cases, learned counsel urged that since in each case the detention had exceeded a period of nine months, the detenus had thereby incurred disqualification in respect of their right to stand for elections to representative offices, by the effect of section 53 of the Electoral College Act and section 106 of the National and Provincial Assemblies (Elections) Act. Each of them was a politician of standing and was gravely prejudiced by this result in respect of his future political career and each of them was therefore, interested to establish that his detention was illegal. The court was therefore asked to record a decision as to the legality of the detention order of the 16th February , 1966. ...................I would hold that the detention of Newahzada Nasrullah Khan under the Deputy Commissioner's order of the 16th February 1966, was illegal, but as to Sardar Shaukat Hayat Khan and Malik Ghulam Jilani, I would hold that the detentions were made in accordance with the law and under lawful authority . The two appeals relating to Nawabzada Nasrullah Khan should accordingly be allowed and since his detention was bad ab initio, he should have his costs in the appeal filed by himself. The appeals relating to Sardar Shaukat Hayat Khan and Malik Ghulam Jilani should he dismissed with no order as to costs."
Moreover , we daily appoint Bailif fs in different petitions of habeas corpus, for the recovery of the alleged detenus from the custody of the police and though in the case of illegal detention of any person by the police, Bailif f takes the custody of the said person and releas es him with the direction to appear befor e the Court on the next date but even then the Courts determine the question of legality of detention of a person by the police and if it is established that the detention of any person was illegal then orders of imposition of fines, departmental actions and even registration of FIRs are passed by the Courts against the delinquent police officials, inspite of the fact that the detenu had already been released from the custody . Reference in this context may also be made to the cases of 'Zafar lqbal v. The Province of Sindh and 2 others' (PLD 1973 Karachi 316) and Ali Ahmed v. Muhammad Yakoob Almani, Deputy Suprintendent of Police, Qasimabad, Hyderabad and 5 others' (PLD 1999 Karachi 134).
9. Now coming to the last objection regarding the maintainability of this petition that as Murtaza Amjad detenu was not in Pakistan at the time of filing of this petition therefore, this petition is not maintainable. In this respect, we have noted that the proceedings against the detenu, on account of which he was eventually arrested, were initiated by the D.G, NAB, Lahore. Different orders were passed against the detenu by the learned Accountability Court No, V, Lahore in execution whereof, the detenu was first declared a proclaimed offender then his perpetual warrants of arrest were issued on the basis of which his red notices were issued by the Interpo l and he was arrested in Dubai, U.A.E. It is therefore, evident that the cause of action has arisen in this case at Lahore, Pakistan, therefore, the instant petition is maintainable before this Court. We have noted that in different cases, the Hon'ble Supreme Court of Pakistan entertained petitions in the matter of habeas corpus, though the detenus of the said cases were out of the country . In the case of 'Human Right Case No, 1356 of 2009 decided on 8th October , 2010 PLD 2011 SC 17, the Hon'ble Supreme Court of Pakistan has categorically held that while exercising the jurisdiction under Article 199 the Constitution of Islamic Republic of Pakistan, 1973, the question of illegal/improper detention of a person in a foreign country can validly be decided by the High Courts in Pakistan. Relevant part of the said judgment at page No,107 reads as under:- "5. This Court do experience variety of the cases where violation of fundamental rights of the citizens are noticed and the efforts are made to grant them relief but the more painful cases in this behalf belong to the category where police authorities show their inability to extradite the minors from outside the country; may be for some strong reasons in exceptional cases but ordinarily the lower Courts enjoying equal jurisdiction for enforcing the orders i,e,, to make direction for bringing back the minors from outside the country either under section 491, P.P.C. or under Article 199 of the Constitution, if the matter is brought before learned Sessions Judges or the High Courts respectively , despite exercising jurisdiction the result are not achieved for not any other reason except that the law enforcing agencies abstain from involving itself fully with the commitment in ef fecting recovery of the minors.", Similarly in the case of 'Suo Motu Case for Recovery of Minor Kids of Mst.T ahira Jabeen' (2010 SCMR 1804 ), the question of illegal/improper detention of a minor was decided, though the said minor was in a foreign country at the relevant time and eventually he was brought back to Pakistan and handed over to his mother. It is therefore, clear that if the cause of action has arisen in Pakistan then inspite of the presence of the detenu in a foreign country, this Court can validly entertain and decide a constitutional petition filed in the matter of habeas corpus, in order to determine the legality or otherwise of his detention. Moreover, it is not understandable that when the N.A.B, Lahore can get arrested Murtaza Amjad detenu in a foreign county on the basis of orders issued from Lahore, Pakistan then why this constitutional petition in the nature of habeas corpus cannot be filed at Lahore, Pakistan. If the above-mentioned objection of the learned Law Officers is accepted to be correct then the N.A.B may get any person arrested in a foreign country through Interpol, on the basis of orders issued by the N.A.B/Courts in Pakistan and the said person may languish in the jail of foreign country for indefinite time or for several years or he may even die there, but this Court would be unable to see the legality of orders of his detention, issued by the N.A.B/Courts in Pakistan, merely on the ground that the detenu is not in Pakistan. We are therefore, of the view that there is no substance in the above-mentioned objections of the learned Law Officers and the instant petition is maintainable before this Court.
10. Now coming to the merits of this case, we have noted that first Call Up Notice under Section 19 of the N.A.O, 1999 was issued against Murtaza Amjad detenu on 04.04.2018.The last Call Up Notice under Section 19 of the Ordinance ibid was issued against Murtaza Amjad detenu on 18.04.2018. In the said second Call Up Notice, the date of appearance of the detenu before the N.A.B, Lahore was fixed for 25.04.2018 but two days prior to the above-mentioned date i,e, on 23.04.2018, the Chairman N.A.B issued warrants of arrest against Murtaza Amjad detenu. It is not understandable that when the N.A.B. itself issued Call Up Notice to the detenu to explain his position and provide information/evidence to the N.A.B in his defence and date for the said purpose was fixed for 25.04.2018, then as to why two days prior to the said date, the Chairman N.A.B issued warrants of arrest of the detenu on 23.04.2018. It is true that under Section 24(a) of the N.A.O, 1999, the N.A.B can arrest any person at any stage of the inquiry or investigation but in the instant case, as mentioned earlier, the D.G, Investigation N.A.B, Lahore, issued notice dated 18.04.2018 to the detenu for his appearance before the N.A.B, Lahore on 25.04.2018 along with relevant document in order to record his statement (in his defence) but two days prior to the above-mentioned date, the Chairman N.A.B, issued warrant of arrest of the detenu on 23.04.2018. This shows that the N.A.B was out to arrest the detenu right from the beginning without providing him opportunity of hearing and to produce evidence in his defence. The above-mentioned acts of the N.A.B/respondent speak volumes against the bona fides of the N.A.B because on the one hand, the detenu was called through Call Up Notice to appear before the N.A.B along with document/evidence (in his defence) on 25.04.2018 and on the other hand, despite the said date fixed by the N.A.B itself, warrant of arrest of the detenu was issued on 23.04.2018.
11. We have further noted that application for issuance of proclamation as envisaged under Section 87 of Cr.P.C was moved by the N.A.B before the Accountability Court No, V, Lahore and the said application was allowed on 26.06.2018 without recording of any evidence, as required under Section 87 of Cr.P.C. The said provision of the Code of Criminal Procedure, 1898 reads as under:- "Section 87. Proclamation for persons absconding . (1) If any Court is satisfied after taking evidence that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.
(2)...................................................................
(3) .................................................................
(Bold and underling is supplied for emphasis)
As mentioned earlier, no evidence was taken by the learned Accountability Court, Lahore to satisfy itself that Murtaza Amjad detenu has absconded and without taking any evidence in this respect, application under Section 87 of Cr.P.C, moved by the N.A.B, was allowed vide Order dated 26.06.2018. It is also noteworthy that the order dated 26.06.2018 regarding the acceptance of above-mentioned application of the N.A.B was not passed by the Accountability Court, Lahore on any order sheet of the Court rather the same was passed on the last page of the said application. The said order reads as under:- "Allowed on the grounds mentioned in the application."
Perusal of the abovementioned order shows that same is a non-speaking order . It also shows that the learned Accountability Court did not apply its own mind before passing the said order . No independent reasoning for accepting the abovementioned application has been mentioned by the learned Accountability Court. It is further noteworthy from the perusal of the words 'any person against whom a warrant has been issued by it' mentioned in Section 87 of Cr.P.C that before issuance of proclamation, the Court shall "itself " issue warrant against an absconding person, but in this case, proclamation under Section 87 of Cr.P.C has straightaway been issued by the Accountability Court No,V , Lahore without issuance of any warrant of arrest against the detenu by the Court itself and the same has purportedly been issued on the, basis of warrants issued by the Chairman, N.A.B.
Perusal of Section 87 of Cr.P.C further reveals that at least thirty days time shall be given in the proclamation for appearance of a person "from the date of publishing of such proclamation " but proclamation issued by the Accountability Court No. V, Lahore reveals that though order for issuance of proclamation against the detenu was passed on 26.06.2018 but the proclamati on was issued on 13.07.2018 as the said date of issue i,e, 13.07.2018 is written on the top of the proclamation itself. In the proclamation dated 13.07.2018, the detenu was asked to appear before the Accountability Court on 26.07.2 018 and as such the period of thirty days "from the date of publication of proclamation " as envisaged under Section 87 of Cr.P.C was not provided to the detenu which is another patent illegality committed in this case. Resultant ly, impugned order dated 26.06.2018 and proceeding under Section 87 of Cr.P.C of the learned Accountability Cour t No, V, Lahore are not sustainable in the eye of law. Reference in this context may be made to the cases of 'Rahim Bakhsh and another v. The State' (PLD 2018 Balochistan 8) and Nizam-ud-Din v . The State' (1991 PCr .LJ 2229).
It is true that under Section 17(c) of the N.A.O, 1999, the Accountability Court may dispense with the provisions of Code of Criminal Procedure, 1898 but before dispensing with the said provision s, the Accountability Court was obliged to give reasons for doing so but no such reason whatsoever , has been mentioned in the impugned orders by the learned Accountability Court. Section 17 (c) of the N.A.O, 1999 reads as under:- "17. Provisions of the Code to apply:-
(a) ..........................................................
(b) ..........................................................
(c) Notwithstanding anything contained in subsection (a) or subsection (b) or in any law for the time being in force, the Court may, for reasons to be recorded dispense with any provision of the Code and follow such procedure as it may deem fit in the circumstances of the case.
(d) (Bold and underling is supplied for emphasis)
It is therefore, clear that if the Accountability Court is of the view that any provision of the Code of Criminal Procedure, 1898, be dispensed with then before dispensing with the said provision of the Code ibid, the Accountability Court was obliged to recor d the reasons for doing so but as mentioned earlier , no such reason has been given in the impugned orders of the Accountability Court. It, is by now well settled that dispensation of any provision of the Code of Criminal Procedure, 1898 would not mean that capricious, illegal and arbitrary G procedure may be adopted by the Court. In this respect, we may refer here the cases of 'Noor Muhammad Khatti and others v. The State 2005 PCr.LJ 1889) and 'Sohail Zia Butt v. The State' (2011 PCr.LJ 2), wherein proceedings of the Accountability Courts under Section 87 of Cr.P.C were declared illegal and the same were set- aside on account of violation of the procedure provided under the said provision of law, as well as, due to the violation of Section 17(c) of N.A.O, 1999. In the case of 'Noor Muhammad Khatti and others v. The State' supra , at paras Nos,9 and 10, learned Sindh High Court at Karachi was pleased to observe as under:- "9................ Nevertheless section 17(c) of the Ordinance authorizes the Accounta bility Court to dispense with the procedure mentioned in the Cr.P.C. including its procedure; of Chapter XXII-A, It further authorises the Court to adopt any procedure as deems fit in the circumstances of the case on the conditio n that for dispensing with the said procedure the Accountability Court is required to record reasons for doing so. The section 17(c) reads as under:-- "(c) Notwithstanding anything contained in subsection (a) or subsection (b) or in any law for the time being in force, the Accountability Court may, for reasons to be recorded, dispense with any provision of the Code and allow such procedure as it may deem fit in the circumstances of the case."
10. Dispensation of provisions of Cr.P.C and following any procedure does not mean that the arbitrary and capricious or the procedure against the natural justice should be adopted. The Judge should keep in mind that the procedural law is not merely formalities because it affects the liberty of citizen. The Honourable Federal Court in the case of Abdul Sattar Molla v. Crown PLD 1953 FC 145, has held that the procedural requirements of Criminal Law are not mere formalities. Underlying the rules of procedure is an all pervading care to ensure, the liberty of the subject and due dipensation of justice. " '
(Bold and underlining supplied for emphasis)
We have further noted that the learned Accountability Court No,V , Lahore while issuing proclamation against Murtaza Amjad detenu has mentioned in the said proclamation that a reference has been made before the Accountability Court against the detenu, whereas, the learned Special Prosecutor for N.A.B has frankly conceded that no reference has so far been filed in this case against any person. The mentioning of the fact that a reference has been filed against the detenu before the Accountability Court shows the level of application. of mind by the Accountability Court while passing the impugned orders. It appears that the learned Accountability Court mechanically passed the impugned orders and completed the proceedings under Section 87 of Cr.P.C. against the detenu merely on the wishes of N.A.B and without application of its own independent mind.
12. We have further noted that in pursuance of the above-mentioned illegal order dated 26.06.2018, of the learned Accountability Court, Lahore Murtaza Amjad detenu was declared a proclaimed offender vide order dated 12.09.2018 and thereafter, his perpetual warrants of arrest were issued by the Accountability Court vide order dated 27.09.2018. As Murtaza Amjad detenu was in confinement/restricted custody, therefore, his wife Mrs. Ifrah Murtaza petitioner filed an application for recalling of the above-mentioned orders of the learned Accountability Court dated 12.09.2018 and 27.09.2018 but the said application has been dismissed by the learned Accountability Court vide the impugned order dated 14.11.2018 without looking into the legality of proceedings carried out against Murtaza Amjad detenu. We have further noted that no order regarding issuance of perpetual warrants of arrest of the detenu was passed by the Accountability Court on 12.09.2018 but the record shows that the perpetual warrant of arrest of the detenu was issued on 12.09.2018, without any order of the Court in this respect. The said illegality has been tried to be rectified later on, when on 27.09.2018, the Accountability Court No, V, Lahore passed an order for issuance of perpetual warrants of arrest of the detenu, whereas, his perpetual warrants were already issued on 12.09.2018. It is also noteworthy that as the basic order dated 26.06.2018 of the Accountability Court No,V Lahore, whereby application for issuance of proclamation under Section 87 of Cr.P.C against Murtaza Amjad detenu was accepted, is illegal because the said order was passed without taking any evidence and as the subsequent proceedings of the even date (26.06.2018), under Section 87 Cr.P.C of the Accountability Court, Lahore are also illegal on account of the reasons mentioned in para No,9 of this judgment therefore, all the superstructure built on the said order/proceedings, is liable to crumble. Reliance in this respect may be placed on the cases of 'Muhammad Younus Khan and 12 othe rs v.
Government of N. -W. F. P through Secretary , Forest and Agriculture, Peshawar and others' (1993 SCMR 618) and 'Faisal Jameel v. The State' (2007 MLD 355). Under the circumstances, the abovementioned orders dated 12.09.2018, 27.09.2018 and 14.11.2018 of the Administrative Judge/Judge Accountability Court No, V, Lahore and perpetual warrant of arrest of the detenu dated 12.09.2018 are not sustainable in the eye of law.
13. As mentioned earlier , the Chairman NAB issued warrants of arrest of Murtaza Amjad detenu dated 23.04.2018 and thereafter NAB vide letter No,3-1(1)(283)L-II/NAB/Dy .Dir (RN), dated 14.05.2018, asked Section Officer (FIA), Ministry of Interior , Islamabad for issuanc e of red notices against Murtaza Amjad detenu and others. In the said letter the NAB mentioned in paragraph No,2 that proclamation order and perpetual warrants of arrest of Murtaza Amjad could not be submitted instantly , however , the same would be furnished at later stage but keeping in view the urgency of the matter , red notices be issued against the detenu. It is, therefore, evident that request for issuance of red notices against the detenu was made by the NAB without obtaining an order of proclamation of the detenu and without obtaining his perpetual warrants of arrest from the concerned Court. The red notices were eventually issued by the Interpol on 20.09.2018 (as mentioned in the report and para-wise comments of the NAB- respondent). We have already declared that the proceedings of declaring Murtaza Amjad as proclaimed offender and issuance of his perpetual warrants of arrest are illegal and void due to the reasons mentioned in the preceding paragraphs Nos,1 1 and 12, of this judgment, therefore, the red notices dated 20.09.2018, which were issued on the basis of above-referred orders/proceedings are also not sustained in the eye of law .
14. Insofar as, the issue regarding putting the name of Murtaza Amjad detenu on the Exit Control List (E.C.L) is concerned, we have further noted that the Ministry of Interior, Government of Pakistan, Islamabad (respondent No,1) put the name of Murtaza Amjad detenu on the E.C.L vide impugned memorandum No, 12/146/2018-ECL dated 20.11.2018 merely on the recommendation of the N.A.B. We have also noted that initially the name of Murtaza Amjad detenu was put on the E.C.L. vide Memorandum No,12/146/2018-ECL, dated 14.06.2018. In the said memorandum, it was mentioned by respondent No,1 that the name of the detenu has been placed on the E.C.L in compliance of the Supreme Court's order dated 03.06.2018. Against the above-mentioned order of respondent No,1, the petitioner was of the view that no order regarding the placement of the name of the detenu was passed by the Hon'ble Supreme Court of Pakistan therefore, she approached the Hon'ble Supreme Court of Pakistan through C.M.A 8502/2018 in C.R.P.NIL/2018 in H.R.C. 18657-P/2018 for review/clarification of the order dated 03.06.2018 passed in HRC No, 18657-P/2018. The Hon'ble Supreme Court of Pakistan vide order dated 04.10.2018 clarified and observed that it was clear from order dated 03.06.2018 that initiation of proceedings for the issuance of red warrants of the persons mentioned therein was an independent action by the N.A.B and the Supreme Court did not direct the same vide the above-mentioned order. It was further clarified/observed that the Supreme Court was informed that N.A.B had requested the Interior Ministry to place the names of the owners/directors of the company on the E.C.L and if the names of the said persons mentioned in the order dated 03.06.2018 were placed on the E.C.L. pursuant to the order of the Supreme Court then it shall be deemed that no such order was passed independent of the request of N.A.B however, if the names were put on the E.C.L, on the independent instructions of the N.A.B, then the same shall continue to be effective. It was further made clear by the Hon'ble Supreme Court of Pakistan vide the above-mentioned order dated 04.10.2018 that the said Court (honourable Supreme Court) does not in any manner interfere in the proceedings/investigations and the modes and the manners in which the such investigations are conducted by the N.A.B. As the Hon'ble Supreme Court of Pakistan vide the above-mentioned order dated 04.10.2018 clarified the situation, as well as, clarified its earlier order dated 03.06.2018 by observing that initiation of proceedings for issuance of red warrants against the detenu and putting the name of the detenu on E.C.L were independent actions by the N.A.B and the said actions were taken by the concerned authorities on the recommendations of the N.A.B and the Supreme Court did not pass any direction for issuance of red warrants etc against the detenu and others because the Supreme Court does not in any manner interfere in the proceedings/investigations and modes and manners in which such investigations are conducted by the N.A.B therefore, after the above-mentioned clarification/observation by the Hon'ble Supreme Court of Pakistan vide order dated 04.10.2018, the Ministry of Interior (respdndent No,1) issued a fresh memorandum i,e, memorandum No,12/146/2018-ECL dated 20.11.2018, wherein it was mentioned that name of the detenue has been placed on the E.C.L on the recommendation of N.A.B. It is therefore, evident that respondent No,1 was itself not sure that on which ground the name of the detenu was to be put on the E.C.L because in first memorandum dated 14.06.2018. it was mentioned that name of the detenu has been put on the E.C.L in compliance of the Supreme Court's order dated 03.06.2018 but when the Hon'ble Supreme Court of Pakistan vide order dated 04.10.2018 clarified the situation in above-referred terms, then respondent No,1 issued a fresh memorandum dated 20.11.2018 wherein it was stated that name of the detenu has been put on the E.C.L on the recommendation of N.A.B. It is therefore, evident that respondent No,1 has itself superseded/set-aside its first memorandum dated 14.06.2018 through its second memorandum dated 20.11.2018. It is further noteworthy that the above-mentioned respondent did not bother to apply its own independent mind and memorandums dated 14.06.2018 and 20.11.2018 were mechanically issued against the detenu. No notice was issued by respondent No.1 to Murtaza Amjad detenu in order to provide him an opportunity of hearing before passing the above- mentioned impugned memorandums. Respondent No, 1 arbitrarily passed memorandums dated 14.06.2018 and 20.11.2018, whereby the name of Murtaza Amjad detenu was put on the E.C.L. The right of movement of a person, is his fundamental right which is guaranteed to him by the Constitution of the H Islamic Republic of Pakistan, 1973 but the said right has been infringed by respondent No,1 without any valid reason and purportedly on the ground that an inquiry is pending against him (Murtaza Amjad detenu) before the N.A.B.
Under the circumstances, the impugned memorandums issued by respondent No,1 for putting the name of Murtaza Amjad detenu on the E.C.L are not sustainable in the eye of law. Reliance in this respect may be placed on the cases 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) and Javed Khan v.
Pakistan through Secretary Interior and 6 others (2017 YLR 2109 ). In the case of Sohail Latif and 2 others v.
Federation of Pakistan through Secretary , Ministry of Interior , Government of Pakistan, Islamabad and 2 others supra , a learned Division Bench of this Court at paras Nos, 13 and 14 has made the following observations:- "
13. The question whether the right to travel abroad is part of the fundamental right of liberty , has engaged the attention of the apex Court, of the country as well as this Court. In Government of Pakistan and another v. Dada Amir Haider Khan ( PLD 1987 SC 504 ), at page 509, it was held as under:- "Moreover a citizen's right to travel abroad is an important aspect of the citizen's liberty , and is closely related to the rights of free speech and association. As nations in the world become politically and commercially more dependent upon one and another and foreign policy decisions have come to have greater impact upon the lives of the citizen, the right to travel has become correspondingly more important. Though travel, by private citizens as well as by journalists and Government officials, information necessary to the making of informed decision can be obtained.
And, under our constitutional system ultimate responsibility for the making of informed decisions rests in the hands of the peoples."
14. Learned counsel for respondents have raised two objections. Firstly , that the discretion lies with the Federal Government to put the name of any citizen on the Exit Control List without disclosing any ground and secondly , the remedy of review under section 3 of the Ordinance by making a representation is available to the aggrieved persons. Both the questions have been answered by a celebrated judgment of his lordship Faqir Muhammad Khokhar , now the honourable Judge of the Supreme Court of Pakistan, in the case of Wajid Shamsul Hassan v.
Federation of Pakistan through Secretary Ministry of Interior , Islamabad (PLD 1997 Lahore 617), it was held as under:-- "In view of the above discussion, 1 have no doubt in my mind that the right of a citizen travel abroad is a fundamental right guaranteed by Articles 2-A, 4, 9, 15 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. Abridgment 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 guideline 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."
Likewise, the Hon'ble Supreme Court of Pakistan in the case of The Federal Government through Secretary Interior , Government of Pakistan v. Ms. Ayyan Ali and others (2017 SCMR 1179) has held that merely this fact that a case stands registered against a person is no ground to put his name on the E.C.L. Similar view was taken in the case of Rafique v. Federation of Pakistan through Secretary , Ministry of Interior , Islamabad and 2 others (2018 MLD 579). Although it is argued by learned Deputy Attorney General for Pakistan that the detenu has the remedy of filing a review petition under Section 3 of the Exit from Pakistan (Control) Ordinance, 1981 before respondent No,1, against the abovementioned impugned memorandums therefore, this petition is not maintainable but it is by now well settled that where the order of putting the name of a person on the E.C.L is passed, without providing opportunity of hearing to him and without application of its own independent mind by the Ministry of Interior and the said order is a non-speaking order then the power of review under Section 3 of the Ordinance ibid is not available in such case. Reference in this context may be made to the case of 'Tanveer Hussain Manji and 3 others v.
Federation of Pakistan through Secretary Interior and 3 others (2016 CLC 1534 ), wherein at paras Nos, 9 and 10, this Court was pleased to lay emphasis as under:- 9 (i) ...........................................................
(ii) ...............................................................
(iii) .............................................................
(iv) In the case of Wajid Shamas-ul-Hassan v. Federation of Pakistan PLD 1997 Lahore 617 at 630, it was held inter alia by the learned Lahore High Court that right to travel is one of the most valued and cherished fundamental human right in all civilized societies, perhaps next only in importance to the right to life and personal liberty; the right of a citizen to travel abroad is a fundamental right guaranteed by Articles 2-A, 4, 9, 15 and 25 of the Constitution; abridgement of this fundamental right by the State through the legislative or an executive measure has been tested on the touchstone of the Constitutional provisions; 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.
(v) In Mian Ayaz Anwar v. Federation of Pakistan, PLD 2010 Lahore 230, it was held inter alia by the learned Lahore High Court that right to travel outside country is a fundamental right and an intrinsic part of the right to liberty which is granted under Article 19 of the Constitution; it was clear from the comments that the Ministry of Interior never applied its mind before placing the name of the petitioner in the cited case on the ECL as the impugned order was a result of the dictation from an agency/authority; and, the discretion exercises under dictation without reasons, was not lawful.
(vi) .........................................................
10. As far as alternative remedy of review under section 3 of the Ordinance is concerned, Section 3 envisages filing of representation for review of an order passed under Section 2(1) of the Ordinance. The order under section 2(1) of the Ordinance means a speaking order by giving reasons, however , the perusal of impugned memorandums shows that none of the aforesaid conditions and requirements are fulfilled, therefore, it does not amount to an order for the purpose of review under Ordinance. Even otherwise, the impugned order being passed without giving any prior notice or hearing to the petitioners and the same being also against the fundamental rights of the petitioner as enshrined under Articles 4 and 9 of the Constitution of Islamic Republic of Pakistan , 1973, remedy of review under the Ordinance is illusory and meaningless."
15. In the light of above discussion, this petition is allowed and the impugned orders/proceedings of the Accountability Court No, V, Lahore dated 26.06.2018, whereby application of the N.A.B for initiation of proceeding under Section 87 Cr.P.C against Murtaza Amjad detenu was accepted and proclamation against the detenu was ordered to be published, as well as order dated 12.09.2018 passed by the Accountability Court No,V, Lahore whereby Murtaza Amjad detenu has been declared a proclaimed offender and consequently proceedings for attachment of his moveable and immoveable properties were initiated, order dated 27.09.2018 of the Accountability Court, No,V, Lahore whereby perpetual warrant of arrest of Murtaza Amjad (detenu) has been issued, similarly perpetual warrants of arrest dated 12.09.2018 issued by the Accountability Court, Lahore against Murtaza Amjad detenue, order dated 14.11.2018 of the Accountability Court, Lahore whereby application for recalling of above-mentioned orders dated 12.09.2018 and 27.09.2018 was dismissed, Memorandum No, 12/146/2018-ECL dated 14.06.2018 and Memorandum No,12/146/2018-ECL dated 20.11.2018 whereby the name of Murtaza Amjad detenu was put on the Exit Control List (E.C.L) by respondent No,1, proceedings initiated by the N.A.B through respondents Nos, 1, 4 and 6 (D.G. FIA, Head of Central Bureau, Director of Interpol Criminal Police Organization and Ministry of Interior) for execution of red notices/warrants of arrest of Murtaza Amjad detenu dated 23.04.2018 issued by the Chairman N.A.B, and perpetual warrant of arrest dated 12.09.2018 issued by the Accountability Court No, V, Lahore against Murtaza Amjad detenu, as well as, red notices dated 20.09.2018 issued against Murtaza Amjad detenue on the basis of abovementioned orders/warrants and the consequent proceedings of Extradition of Murtaza Amjad detenue on the basis of aforementioned impugned orders/warrants, are hereby declared as illegal and void and consequently, the same are hereby set-aside. The name of Murtaza Amjad detenu is directed to be removed from the Exit Control List.