The petitioner, through the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has challenged notification dated 23.01.2023, issued by Director, F.I.A.
Islamabad, whereby his name has been placed on the Passport Control List ("PCL").
2. Succinctly stated facts of the matter are that respondent No.2, conducted an inquiry and registered a case against the petitioner vide F.I.R. No.38 of 2022, dated 06.10.2022, under sections 420, 468, 471, 477-A, 109, P.P.C. r/w 5, 23 FER Act, 1947, Police Station FIA, CBC, Islamabad; bail before arrest of the petitioner was confirmed by the learned Special Judge Central, Islamabad but later on respondents placed his name on PCL, hence the instant writ petition.
3. Learned counsel for the petitioner, inter alia, contends that impugned action of respondents is discriminatory and violative of the provisions of the Constitution, fundamental rights of the petitioner have been jeopardized; impugned action of respondents restricting the movement of the petitioner is unwarranted, unlawful and illegal, hence is liable to be set aside.
4. Conversely, learned Assistant Attorney General assisted by learned Special Prosecutor, F.I.A. has controverted the arguments advanced by learned counsel for the petitioner and has stated that petitioner was on bail before arrest and in order to restrain him from fleeing abroad his name was placed on PCL just to ensure his presence for completion of investigation; fundamental rights of the petitioner have not been infringed and has prayed for dismissal of instant writ petition.
5. Arguments advanced by learned counsel for the parties have been heard and record has been perused with their able assistance.
6. F.I.A. has filed report / parawise comments, wherein it is mentioned that after enquiry No. 105/2022, dated 05.08.2022, a case was registered by Police Station, F.I.A. Commercial Banking Circle, Islamabad vide F.I.R. No.38, dated 06.10.2022, under Sections 420, 468, 471, 477-A, 109 PPC r/w 5, 23 FER Act, 1947; the petitioner is nominated accused; he was cosignatory in Merchant account / Commercial account No.074188300400 titled "Naya Pakistan" opened by Pakistan Tehreek-e-Insaf at United Bank Limited, Jinnah Avenue Branch, Islamabad, he has signed 30 Debit Authorities for transfer of funds from said account for the period 07.03.2013 to 10.06.2015.
07. Pre-arrest bail of the petitioner was confirmed; he joined the investigation; as the petitioner is nominated accused in the abovementioned case / FIR and in order to restrain him from fleeing abroad his name was placed on BL / Passport Control List vide Notification dated 23.01.2023, which is reproduced as under:
08. The Passport Rules, 2021, are issued vide S.R.O of Ministry of Interior, Islamabad dated 13.02.2022; section 22 of the rules ibid deals with the passport control list which is reproduced as under: "22. Passport control list. (1) Federal Government is vested with the powers to regulate the departure from and entry into Pakistan and also visit to foreign countries of its citizens under the Act.
(2) The Division concerned and Directorate General shall prepare and maintain a PCL for placement of names and other record of individuals who have been refused passport facilities under these rules under Category 'A and 'B respectively with the following description, namely:-
(a) under category 'A , the names of those persons are placed who are involved in anti-state activities or whose visit to foreign countries is considered to be prejudicial to the State interest, or, whose visit abroad is banned from security point of view. The names in this list shall be placed and removed by the Additional Secretary of the Division concerned.
(b) under category 'B , the names of those persons are placed who have been refused passport under these rules other than anti-state activities specified in clause (a). The names of persons included in the category under this clause may also be placed on the recommendations of government agencies or departments;
(c) ---------------------- (d)---------------------- (emphasis added)"
9. In the aforementioned section, placing of names on the Passport Control List is the domain of the Federal Government, whereas the Division Concerned and Directorate General has to prepare and maintain PCL.
10. The criteria for placing of names is provided in category A' & B'. According to category A', names of those persons are placed who are involved in taking part in anti-state activities and under category B' names of persons are placed who have been refused passport under the rules other than anti-state activities specified in clause (a).
11. In the instant case there is no allegation that the petitioner was ever involved in anti-state activities or his visit to foreign countries has considered to be prejudicial to the State interest. The petitioner has never been refused the issuance of passport, so his case does not fall under the criteria mentioned in Rule 22 ibid.
12. It is mentioned in Rule 22(1) that the Federal Government is vested with the powers to regulate the departure from and entry into Pakistan and also visit to foreign countries under the Act but in the instant case no approval of the Federal government has been obtained.
13. According to principle of law laid down by the Hon ble Supreme Court of Pakistan in a case titled as "Messrs Mustafa Impex, Karachi and others vs. The Government of Pakistan through Secretary Finance, Islamabad and others", (PLD 2016 SC 808), whenever a power is coferred on the Federal Government it is construed as a power given to the Prime Minister and the Federal Ministers / Cabinet to be exercised in the name of Federal Government. Reliance in this regard is also placed on the law laid down by the Hon ble Supreme Court of Pakistan in following cases: i. "Controller General of Accounts vs. Fazal Ahmad, DAO EC (C&W Division Hangu) and others", (2021 SCMR 800) ii. "Government of Sindh through Secretary Health Department and others vs. Dr. Nadeem Rizvi and others", (2020 SCMR 1)
14. Nothing has been placed on record that may indicate that the Federal Government has given approval regarding placing of name of the petitioner on Passport Control List (PCL) as provided in Rule 22 (1) of the Passport Rules, 2021.
15. In Rule 22(2), it is mentioned that the Division Concerned and Directorate General shall prepare and maintain PCL. "Directorate General" is defined in section 2(2) of the rules, which is as under: "2(e). "Directorate General" means the Directorate General of Immigration and Passports established to regulate the matters relating to immigration and passports and matters ancillary thereto; Whereas, Division concerned is defined in Rule 2(f) which is as under: "2(f). "Division concerned" means the Division of the Federal Government to which business of the Directorate General stands allocated; In the instant case no list for placing the name of the petitioner on PCL has been issued by the "Division Concerned" or "Directorate General".
16. Main objection taken by the respondents was that as per section 8(a) of Banks Ordinance, 1984, accused cannot depart from Pakistan or be employed by any person after a Special Court has taken cognizance of a scheduled offence alleged to have been committed by an accused person, and such person shall not, without the permission of the Special Court, depart from Pakistan until the case has been finally decided by the Special Court.
17. But in the case in hand, the police has not submitted challan, so learned trial Court has not taken cognizance of the matter. Regarding taking of cognizance of the case, principle of law has been laid down in a case titled as "Ali Gohar and others vs. Pervaiz Ahmed and others", (PLD 2020 Supreme Court 427) that: "Given the above discussed, ordinary meaning of "cognizance of the case" and the judicial opinion rendered thereon, it can plainly be stated that ATC would be said to take "cognizance of the case" when on the receipt of the challan along with the material placed therewith by the prosecution, it takes judicial notice thereon by the conscious application of mind and takes positive steps to indicate that the trial of the case is to follow. These steps need not necessarily be recorded as judicial orders. What is essential is that the orders so passed or steps taken reflect that ATC is to proceed with the trial." (emphasis added)
18. In a case titled as "Muhammad Umer Mangrio vs. The State", (2014 MLD 1813) it has also been held that "taking of cognizance means that after submission of challan alongwith material submitted, the Court decides to proceed in the matter in accordance with law". Reliance is also placed on a case titled as "Haq Nawaz and others vs. The State and others", (2000 SCMR 785).
19. Special Prosecutor appearing on behalf of F.I.A. has apprised that challan / report under section 173 Cr.PC has not yet been submitted. It is provided in Section 173 Cr.PC that challan be submitted within a period of fourteen (14) days from the date of recording of first information report but in the instant case challan has not been submitted after the delay of one year. Section 173 Cr.PC is reproduced here for ready reference: "173. Report of police officer: (1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer incharge of the police-station shall [through the Public Prosecutor]--
(a) forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given: [provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under Section 154, the officer incharge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence],
(2) Where a superior officer of police has been appointed under Section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer incharge of the police-station to make further investigation.
(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial: Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost.
[(5) Where the officer incharge of a police station forwards a report under sub-section (1), he shall along with the report produce the witnesses in the case, except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other Court on the date fixed for trial.]" (emphasis added)
In the instant matter liberties of a senior citizen has been curtailed on the ground of registration of FIR but challan / report u/s 173 Cr.PC has not been submitted since last one year; non-submission of challan within stipulated period has highly been deprecated by the Superior Courts. In this regard, law has been laid down by the Hon ble Supreme Court of Pakistan in a case titled as "Adnan Prince vs. The State through P.G., Punjab and another", (PLD 2017 Supreme Court 147) that: "Thus even today charge sheets and submission of the challans before the competent courts in criminal cases are delayed beyond the mandatory statutory period for no reason much less plausible. Even interim challans as required under the law are not submitted within the statutory period. This conduct and attitude as well as performance of investigating, prosecution and detective agencies are absolutely un-acceptable and un-condonable because on the one hand, the law is disregarded while on the other hand, with the passage of time and long delay in the submission of challans, trial in each case is delayed and some of the witnesses including star witness either vanish being killed by the opponents, meet natural death or abandon their permanent abode/place of official duties due to transfer to another place or district making it a cumbersome job for the trial court to procure their attendance. This is one of the major contributory factor in the backlog, crisis/pendency of criminal cases. Such type of un-condonable delay in many cases becomes a cause of frustration both for the accused, the aggrieved complainant party and in some cases, the aggrieved party ordinarily takes the law into hands indulging in revengeful acts.
11. Accordingly, copy of this judgment be sent to the Attorney General of Pakistan, all the Prosecutor Generals of the Provinces and Islamabad Capital Territory-ICT, Advocate Generals of the four Provinces, DIGs/Addl. IGPs who are the Incharges of the Investigation Wings, Ministry of Interior, Govt. of Pakistan and all the Chief Secretaries of the four Provinces, all the Home Secretaries of the provinces, IGP-Islamabad, Chief Commissioner-ICT with the direction to hold deliberations and consultations and after giving deep thought to the subject matter, they should collectively and individually devise a proper strategy/policy to arrest this grave menace of delay and causes thereof and to immediately redress the same within the possible minimum time so that compliance is made with the mandatory provision of law and the relevant article of the Constitution in its true letter and spirit and to make accountable each and every officer who is found responsible for such delay and to show a visible and efficient performance in all three fields, failing which the public would be justified to protest that their money is going waste without any fruitful result even after introduction of the new system.
12. Copy of the actions taken along with minutes of each and every action taken, in view of above guidelines be submitted periodically to the Registrar of this Court with detailed information about the cases pending investigation before the Investigating Agency, the Prosecution Branch and to explain the delay in the submission of challans to the trial court".
(emphasis added)
20. In another case titled as "Hakim Mumtaz Ahmed and another vs. The State", (PLD 2002 Supreme Court 590) it has been held by the august Supreme Court of Pakistan that: "9. Delay in submission of challan/police report under section 173, Cr.P.C. has been noticed invariably in the criminal cases, despite the fact that section 173 of the Code of Criminal Procedure has been amended by Act XXV of 1992 whereby a facility has been extended to the Investigating Agency for submitting interim report the period of 3 days from the completion of period of 14 days of the police remand but instead of deriving benefit from this provision of law, the Police Authorities including S.H.Os. and high-ups up to the rank of Senior Superintendent of Police never bothered to comply with this mandatory provision of law.
10. Undoubtedly section 173, Cr.P.C. was amended vide Act XXV of 1992 with a view to improve performance of the Police Department and simultaneously to stop the police from adopting protracted investigation process for one of the other pretext but the police authorities had in fact rendered the provisions of section 173, Cr.P.C. ineffective by not following its spirit." (emphasis added The Inspector General of Police was directed to take action against the S.S.P, who failed to supervise investigation of the case effectively, as a result whereof submission of challan was delayed. Reliance is also placed on a case reported as 2006 SCMR 1547.
21. The name of the Petitioner has been placed the PCL only on the ground that he is an accused in the FIR No. 38/2022. Particularly when the challan/report under section 173 of CrPC 1898 has yet to be submitted in the court despite lapse of more than one year. The retention of Petitioner s name on PCL is violative of his fundamental rights to due process, liberty, life, and freedom of movement which are guaranteed by the Constitution of Islamic Republic of Pakistan, 1973. The relevant Articles are reproduced herein below for ready reference: "ARTICLE 4. Right of individuals to be dealt with in accordance with law, etc.
(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen. Wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular--
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not required him to do."
"ARTICLE 9. Security of Person. No person shall be deprived of life or liberty save in accordance with law."
"ARTICLE 10A. Right to Fair Trial. "For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process."
"ARTICLE 15. Freedom of Movement, etc. Every citizen shall have the right to remain in, and, subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof."
Guidance in this regard is obtained from the laws and principles laid down by the superior courts of the country which are as under:
(i) Government of Pakistan & another v. Dada Amir Haider Khan, PLD 1987 SC 504 "...As there is not much difference between Article 9 and Article 4(2)(a) and the former appears merely to be a deduction from the latter, Article 9, therefore, does not take the matter any further.
However, Article 15, which confers upon every citizen, inter-alia, the right to enter and move freely throughout Pakistan, is of greater relevance. Article 15 guarantees to every citizen the right to remain in, enter and move freely throughout Pakistan. But his right to enter the country if he is leaving it or has gone abroad and his right to step out and step in the country are subject to reasonable restrictions imposed by law in the public interest. By reading the provisions of Articles 4, 9 and 15, it is manifest that every citizen) has the liberty to go abroad and to re-enter Pakistan unless he is, precluded from doing so under some law made in the public interest. The Passport Act, 1974, is one such law. Indeed its preamble itself recites that it has been enacted to regulate the departure from and entry into Pakistan and visits to foreign countries of citizens of Pakistan..."
"It is now established law that a discretion vested in a public authority must be exercised fairly, reasonably and in good faith."
"This Court in Messrs East and West Steamship Company v. Pakistan PLD 1958 SC 41 took a similar view Muhammad Munir, C.J. observing that "where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party."
"...Undoubtedly, to travel abroad could be barred if it was shown that the applicant was going abroad to meet the enemies of the country and his foreign visit could endanger the security of the State or was against the public interest. Nothing of the kind has been stated and the only reason given while refusing the passport to the respondent is that he was a person of "communist thought"."
"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."(emphasis added)
(ii) Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. & others v.
Federation of Pakistan through Secretary, Ministry of Interior & others, PLD 2007 SC 642 "Every citizen has undeniable right vested in him as conferred under Article 15 of the Constitution to go abroad and return back to Pakistan without any hindrance and restraint but it must be kept in view that it is neither absolute nor unqualified as is indicative from the language employed in Article 15 of the Constitution as a specific mention has been made "subject to any reasonable restriction imposed by law in the public interest", meaning thereby that such right is subject to the relevant law which is in existence at relevant time but an action which is mala fide or 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" (emphasis added)
(iii) Federation of Pakistan through Secretary, Ministry of Interior v. General (R) Pervez Musharraf and others, PLD 2016 SC 570 "12. Apart from the above discussion, considering the question of inclusion or retaining the name of respondent No. 1 in the ECL, thereby, restricting his freedom of movement, we also cannot lose sight of the fact that under Article 15 of the Constitution freedom of movement is one of the fundamental rights guaranteed to every citizen of the Country, which cannot be abridged or denied arbitrarily on mere liking or disliking, without any lawful justification for this purpose.
More so, when Article 4 of the Constitution further guarantees right to every individual, to be dealt with in accordance with law..." (emphasis added)
(iv) The Federal Government through Secretary Interior, Government of Pakistan v. Ms. Ayyan Ali & others, 2017 SCMR 1179 "6....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...."
"13....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...."
(emphasis added)
(v) Sheikh Shan Ilahi v. Federation of Pakistan through Secretary Interior, Ministry of Interior, Islamabad & 6 others, PLD 2023 Lahore 359 "25. From the above discussion it follows that the right to travel and to go abroad is an integral part of the fundamental rights to life and liberty and can be restricted only under a law made in the public interest. Here, the "law" means "enacted law", a law that is valid and non- discriminatory....And, in Pakistan Muslim League (N) and others v. Federation of Pakistan and others (PLD 2007 SC 642) the Supreme Court of Pakistan held that it should not be for an indefinite period or disproportionate to the mischief sought to be prevented. The Executive has no inherent power except what is conferred on it by law. An action which is mala fide or colourable or taken upon extraneous or irrelevant considerations is not regarded as action in accordance with law. Similarly, an action taken by an authority on no ground or without application of mind is unlawful and liable to be struck down."
"45. Administrative authorities are obliged to exercise the discretion vested in them in the public interest justly, fairly and reasonably...."
"48. There is no denying the fact that it is in the public interest that offenders should be brought to justice. It is more true in respect of the fugitives from law. Nevertheless, every case has its own facts and the Federal Government cannot cancel, impound, confiscate or for that matter blacklist a person mechanically. It must thoroughly examine each case before taking any action...."
"49. In Writ Petition No.5734/2021, the name of Petitioner Syed Anwar Shah was placed on the blacklist on the recommendation of FIA as he was a proclaimed offender in case FIR No. 107/2013.
He has surrendered and the competent court has admitted him to bail. It is true that the case against him has not been decided so far but that cannot be a ground to deprive him of the right to travel abroad. The Deputy Attorney General stated at the bar that he would recommend removal of his name from the blacklist."
"50. In view of the above, these petitions are accepted. The blacklisting of both the Petitioners is declared to be without lawful authority and of no legal effect."
(emphasis added)
(vi) Farah Mazhar & 3 others v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad & 2 others, PLD 2022 Lahore 119 "12. None of the Petitioners are accused in any criminal case. It is trite law that even registration of a case or pendency of a criminal case is not sufficient to include or place one's name on the Exit Control List."
"24. The analysis of the facts of the instant case, the law of Pakistan developed and interpreted by the superior Courts of Pakistan and the international jurisprudence evolved on the subject leaves no doubt that the freedom and liberty are basic instinct of a human being. The very essence and existence of life is felt, acknowledged, recognized and endured with the act of movement. The act of movement starts in the womb of mother and ends with pronouncement of death. It is movement that distinguishes life from death and as such, the right to movement is cherished, protected and guarded from times immemorial....The discretion exercised by the executive is subject to judicial review. Article 15 of the Constitution is no exception. It recognizes the right to movement as a fundamental right subject to restrictions imposed by law in the public interest. This right is not limited to movement within Pakistan but extends and includes the right to leave and enter Pakistan. Right to movement is an inseparable part of right to life. The exercise of executive authority is subject to judicial review. The state must come forward with legitimate and lawful cogent, reasonable, justifiable and substantive reasons to clog the right to movement of a citizen. Conversely, if the impugned action speaks of malice or is based on mala fide or is otherwise taken arbitrarily and capriciously or without hearing or is unreasonable or without any substantive reason or is based on irrelevant, extraneous and presumptive considerations, the same is liable to be struck down."
(emphasis added)
(vii) Sadaf Sharjeel & another v. National Accountability Bureau (Sindh) through Director General & another, 2022 YLR 2441 [Sindh] "16. In the case of Rafique v. Federation of Pakistan (2018 MLD 597) it was held as under; "It is now settled law by the Hon'ble Supreme Court that an accused right to travel abroad as guaranteed under Article 15 of the Constitution cannot be lightly trifled with even if he is an accused in a criminal case. In this respect, reliance is placed on the cases of Wajid Shams- ulHassan v. Federation of Pakistan (PLD 1997 Lahore P.617) Federal Government v. Ms. Ayan Ali (2017 SCMR 1179) and more recently unreported Supreme Court case of Dr. Asian Hussain v.
Federation of Pakistan dated 29.08.2018."
"18. In this case the charge has not been framed despite a delay of over one year due to no fault of the petitioners, there are 12 accused and 56 PW's each of which will be subject to 12 separate cross-examinations by each counsel for the accused which would in effect mean that if we kept the names of the petitioners on the ECL until conclusion of the trial the petitioners would realistically have to remain in Pakistan for at least 3 years more as it is quite apparent that the trial is extremely unlikely to be completed within the next 3 years which in our view would be violative of the above mentioned fundamental rights of the petitioners especially as the petitioners have demonstrated when in the past they have been allowed to travel abroad they have always returned on time."
(emphasis added)
(viii) Ali Muhammad Turab v. Federation of Pakistan & 2 others, PLD 2020 Islamabad 454 "The right of free movement whether within the country or across its frontiers, either in going out or in coming in, is a personal liberty within the meaning of Article 9 of the Constitution, which says that, "No person shall be deprived of life or liberty save in accordance with law." Freedom of movement is stated to be the essence of personal liberty. A citizen cannot be deprived of his fundamental right to travel abroad except according to the procedure established by law." (emphasis added)
(ix) Sayed Zulfikar Abbas Bukhari v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad & others, PLD 2019 Islamabad 316 "4. Learned counsel further contended that mere pendency of inquiry does not entitle the National Accountability Bureau to place name of any person on ECL...."
"10. Admittedly, when name of an individual is placed on ECL, his freedom of movement is curbed and the same tantamount to violation of fundamental rights and in such state of affairs, the power/authority is to be exercised by the executive sparingly after taking into account relevant facts and circumstances. The referred recommendation is not to be followed by respondent No.1 i.e. Federation of Pakistan, in a mechanical fashion. In case reported as Government of Pakistan and another versus Dada Amir Haider Khan (PLD 1987 SC 504), the august Apex Court observed that discretion vested in a public authority must be exercised fairly, reasonably and in good faith. The case law relied upon by the learned counsel for the petitioner is instructive in the present facts and circumstances. In Mst. Nasreen Begum and another versus Ministry of Interior, Government of Pakistan through its Secretary and 2 others (PLD 2012 Islamabad 17), this Court observed that mere pendency of inquiry would not justify denial of fundamental right of traveling abroad guaranteed to a citizen by the Constitution. Similar observation was made by the Hon'ble Lahore High Court in case reported as Inam Akbar versus Federation of Pakistan through Secretary, Ministry of Interior and others (PLD 2016 Lahore 553).... The upshot of the above case law is that respondent No.1 while placing name of the petitioner on Exit Control List did not apply mind and acted mechanically on the recommendation of National Accountability Bureau. Even respondent No.2 does not seem to be earnest in the recommendation it made inasmuch as it has granted one time unconditional permission to the petitioner to travel abroad, whereas in the original recommendation, it is provided that it is apprehended that he might abscond. Even otherwise, there is nothing on record to show that the petitioner has not cooperated with respondent No.2. Moreover, as noted above, Respondent No.1 while issuing the impugned memorandum acted without application of mind." (emphasis added)
(x) Shabana Noor Ahmed v. Director-General Immigration & Passport, Islamabad & others, PLD 2019 Sindh 456 "11. Therefore, Clauses 51(B) and 21(b) of the Passport and Visa Manual 2006 could only have been invoked had Junaid been in Pakistan and wanting to leave Pakistan. Even in that case, it has been consistently held by the Superior Courts of this country in cases arising from the Exit From Pakistan (Control) Ordinance, 1981 that mere pendency of a criminal case is not sufficient justification for prohibiting a citizen from exiting Pakistan and for interfering with his Fundamental Right of freedom of movement enshrined in Article 15 of the Constitution of the Islamic Republic of Pakistan, 1973...."
"12. The pronouncement of law by the aforesaid case-law is that a citizen's Fundamental Right of freedom of movement under Article 15 of the Constitution cannot be impeded merely due to pendency of a criminal case against him...." (emphasis added)
(xi) Dr. Joseph Wilson v. Federation of Pakistan through Secretary Ministry of Interior & others, 2017 PCrLJ 1569 "29. There appears to be consensus of judicial opinion on the point that the mere fact that an inquiry or an investigation was being conducted by NAB or any other agency against the petitioner was not by itself a sufficient reason to place his name on E.C.L. Even the pendency of criminal proceedings, including proceedings before an Accountability Court (without an order or a request from the Court for the curtailment of an accused's freedom to travel abroad) is not considered a sufficient ground to place a citizen's name on E.C.L. While this has been the general trend of judicial pronouncements, yet each case has to be examined on its own merits, and the peculiar facts of a case may cause a Court of Constitutional causes to decline relief to a petitioner seeking to have his name removed from the E.C.L. (emphasis added)
(xii) Tanveer Hussain Manji & 3 others v. Federation of Pakistan through Secretary Interior & 3 others, 2016 CLC 1534 "There is no doubt that freedom of movement or right to travel is fundamental right of a citizen as enshrined under Articles 4 and 9 of Constitution of Islamic Republic of Pakistan, 1973. Every citizen of Pakistan has the liberty to go abroad and return to Pakistan unless precluded from doing so, in the public interest..." (emphasis added)
(xiii) Yusuf J. Ansari v. Government of Pakistan through Secretary Ministry of Interior, Islamabad & another, PLD 2016 Sindh 388 "Mr. Naek has rightly referred to the case-law developed by the superior Courts whereby a consistent view is taken that right of free movement which indeed includes the right of travelling abroad subject to reasonable restriction has been guaranteed under Article 15 of the Constitution of Islamic Republic of Pakistan and in case such right is to be curtailed by applying reasonable restriction then such power must be exercised fairly, reasonably and in good faith and the order whereby such restriction is imposed should not be passed mechanically on the request of any ministry or department and unless against the public interest such order must detail reason and should reflect application of mind"
(emphasis added)
(xiv) Gen. (Retd.) Pervez Musharraf through Attorney v. Pakistan through Secretary Interior and others, PLD 2014 Sindh 389 "29....It is quite clear that registration of a criminal case or institution of criminal proceedings does not automatically imply that the accused should be disallowed to move outside Pakistan and or to put his name on E.C.L. Had it been the intention of legislature then it would have made the corresponding provisions in the Cr.P.C. or any other special enactments made for the trial of offences. Mere registration of FIR does not permit nor warrant the automatic inclusion of any such accused person on E.C.L. but once bail is granted, it is the province of that court to regulate the custody of that particular accused...."
"36....Let us remind to the learned Attorney General that according to the prosecution story the petitioner is also involved in four other criminal cases in which extradition would not be denied in any treaty with any foreign country. If in any case, the accused is absconded, the law is not helpless but a procedure to deal such situation is already provided under the Criminal Procedure Code and other relevant laws...." (emphasis added)
(xv) Riaz Ahmed v. Government of Pakistan & others, PLD 2014 Islamabad 29 "7. Right to movement/travel is a fundamental right of every citizen guaranteed under Articles 4, 9 and 15 of the Constitution. It is universally recognized right enshrined in Article 12(4)
"Everyone shall be free to leave any country, including his own" of the Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on 16th December, 1966 and enforced with effect from 23rd March, 1976. Therefore, no one could be allowed to deprive a citizen from his/her fundamental rights, save in accordance with due process of law..."
"9. The authorities are under obligation to solve the problems of the general public in a fair and just manner and to decide their applications within a reasonable time. They are not supposed to sit over the issues for indefinite period without any decision."
"10. In the instant case the act of respondents is sheer violation of fundamental rights, where the respondents have neither conducted any trial against petitioner in connection with his alleged involvement in terrorist activities nor has he been exonerated of the charges. The government authorities are the patrons of the citizen and they have to adhere to law for resolving the genuine issues of the aggrieved persons." (emphasis added)
(xvi) Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior & 3 others, PLD 2010 Lahore 230 "26. The jurisprudence discussed above establishes that right to travel is part of human liberty as travel signifies freedom and liberty. Therefore, the right to travel outside the country is a fundamental right and an intrinsic part of right to liberty which is guaranteed under Article 9 of our Constitution."
"27. Taking this further, there is little doubt in saying that the world today has shrunk due to online connectivity, internet, media and faster means of travel. People today travel across the globe to pursue higher education, to seek more challenging and rewarding employment, to carry out academic research or to discover and expand their business into new markets of the world.
Travel, therefore, has become an integral part of modern life. Right to education, right to livelihood and right to carry out lawful. profession are incomplete without having access and the right to travel to any part of the world and in particular to the educational or business centres of the world. To me right to travel, especially international travel, besides being right to liberty is also an integral part of right to life or right to a meaningful, challenging, satisfying and purposeful life. Therefore, I hold right to international travel to be a right to life in addition to right to liberty...."
"32. Article 4 of the constitution also echoes the same right and further buttresses the procedural due process required when dealing with fundamental rights of a citizen. Articles 4 and 9 provide that a person shall not be deprived of life or liberty save in accordance with law.
"Save in accordance with law" has a substantive and a procedural part. First, the Law must substantively qualify the test of being a "Law" made in the collective public interest and for common good, fully satisfying the basic fundamentals of law and having passed the test of fundamental rights provided in the Constitution. Second, the "law" or the action thereunder must also provide for procedural due process i.e., must abide by all the fundamental principles of law e.g., natural justice, right of hearing, lawful exercise of discretion, fairness, etc."
"33. The right to life and liberty of a citizen can only be restricted or abridged if it is in "accordance with law." `Law' here means Law that caters to larger collective public interest. Therefore, the fundamental right of an individual guaranteed under the constitution can only surrender and succumb to a lawful collective interest of the community or the society. Public Interest or collective community interest is a basket of various public interests including public morality, public order, public health, national security and foreign policy of the country besides fundamental rights of the others. Public interest is an essential ingredient of any law that proposes to take away, abridge or interfere with the fundamental rights of an individual...."
(emphasis added)
(xvii) Wajid Shams-ul-Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, PLD 1997 Lahore 617 "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....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." (emphasis added)
22. It is settled principle of law that if law required a particular thing to be done in a particular manner, it had to be done accordingly, otherwise it would be non-compliance with the legislative intent. In this regard, reliance is placed on a case titled as "Zia ur Rehman vs, Syed Ahmed Hussain and others", (2014 SCMR 1015).
23. In another case titled as "Federation of Pakistan and another vs, E-Movers (pvt) Ltd and another", (2022 SCMR 1021), it is held by the Hon ble Supreme Court of Pakistan that: "24. The Constitution of the Islamic Republic of Pakistan ('Constitution') is the fountainhead of the rule of law in Pakistan.'To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen. The rule of law constitutes the bedrock of governance.
When the law stipulates that something has to be done in a particular manner that is how it should be done. And any person who exercises authority must do so in accordance with law.
The right to be treated in accordance with law was invigorated and bolstered when the Constitution was amended to provide an additional Fundamental Right by adding Article 10A to the Constitution stipulating that, 'For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process. The due process requirement must be met in the determination of rights and obligations. The Constitution does not define due process. Therefore, it would not be appropriate to limit its scope by defining it. But this does not mean that the due process requirement is a meaningless concept.
Rather due process incorporates universally accepted standards of justice and is not dependent upon any law or laws. It is an all encompassing expression which may not be curtailed with reference to particular laws. Due process is to be understood holistically by keeping in mind the entire Constitution, which excludes arbitrary power, authoritarianism and autocratic rule."
(emphasis added)
Reliance is also placed on the cases reported as PLD 2016 SC 995, 2017 SCMR 713, 2017 SCMR 1427, PLD 2018 SC 189 & PLD 2017 Islamabad 64.
24. In view of above discussion, instant writ petition is allowed, placing of name of the petitioner on PCL is declared to be without lawful authority and of no legal effect.
25. These were the reasons of my short order dated 20.07.2023 which is reproduced as under: "For the reasons to be recorded later instant writ petition is accepted. The petitioner is allowed to travel abroad subject to furnishing surety bonds in the sum of Rs.50,00,000/- (Rupees Five Million Only) to the satisfaction of Deputy Registrar (Judicial) of this Court." revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.