SHAMS MEHMOOD MIRZA, J. This order shall decide present writ petition as well as connected Writ Petition bearing W.P.No.40193 of 2024 titled Zahara Ali Elahi v. Federation of Pakistan and others on account of common questions of law and fact involved in both the petitions.
2. The names of both the writ petitioners have been placed in Exit Control List (ECL) in view of their involvement in criminal cases on the recommendations of Federal Investigation Agency (FIA) as per the report submitted by respondent No.5. It is furthermore stated in the report filed by the Secretary interior, Islamabad that the Federal Cabinet approved the action for placing the names of the writ petitioners on the ECL.
3. Learned counsel submits that the petitioners have been granted bail in all the criminal cases which orders are appended with the writ petitions. It is stated that the petitioners wish to perform Umrah and that they have already booked their return tickets. It is also the case of the petitioners that the action of the respondents in placing their names in ECL violates their fundamental right to travel guaranteed under the Constitution.
4. The submission made by the learned counsel for the petitioners is supported by respectable authority which states that the right of a citizen to travel abroad is guaranteed by the Constitution which cannot be curtailed by administrative measures. In a judgment reported as Wajid Shamas- ul-Hassan v. Federation of Pakistan through Secretary PLD 1997 Lahore 617, this Court held as follows: 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 exercise 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.
Similarly, it was held in Messrs Zurash Industries (Pvt.) Ltd through Director and 4 others v.
Federation of Pakistan through Secretary Ministry of Interior Islamabad and 3 others (2011 CLD 511) that "...Pending of a criminal case does not ipso facto disentitle a person from travelling abroad." It was further held that "In any case, where allegation if ultimately proved would result in order of recovery of the amount if the petitioner is able to provide sufficient security, it would be more appropriate that such security be obtained rather than the person be barred from exercising his fundamental right." Likewise, in Mian Munir Ahmad v. Federation of Pakistan and others 2008 YLR 508, the position was enunciated as follows: It would be seen that as per settled law mere pendency of civil/criminal cases against a citizen is no ground to deny him fundamental right of freedom to travel within or without Pakistan. Similarly, it would be seen that no reasons have been given in the notification whereby the petitioner's name was put in the Exit Control List, which would mean that petitioner had been condemned unheard.
Although Government could in exercise of powers available under section 2 of the Exit from Pakistan (Control) Ordinance, 1981 place the name of a citizen on the Exit Control List. However, such power could not be exercised arbitrarily or without giving right of a fair hearing to a citizen against whom action is proposed to be taken.
5. The learned Islamabad High Court in the case of Tabish Badar v. Pakistan through Secretary, Ministry of Interior, and others 2023 CLC 1457 has made the following pertinent observations which are fully applicable to the present case.
14. While subsections (2) and (3) of section 2 authorize the Federal Government to pass an order to place someone on the ECL without affording such a person an opportunity to be heard, such statutory provisions have been read down and it is now settled that in view of Section 24-A of the General Clauses Act, 1897, read together with Article 10-A of the Constitution that it is mandatory for the Federal Government to issue notice and grant a hearing to a person whose right and liberty to travel guaranteed by Articles 9 read together with Articles 4, 15 and 25 of the Constitution. A person whose fundamental rights are to be fettered must be given an opportunity to be heard and the order placing his name on ECL must record reasons, which are then justiciable."
6. In view of the law laid down in the aforementioned judgments, this writ petition and the connected writ petition are allowed and the actions of the respondents in placing the names of both the writ petitioners on ECL is declared to be without lawful authority and of no legal effect. The respondents are directed to immediately remove the names of the petitioners from ECL and allow them to proceed abroad for performance of Umrah without any hindrance.