Anwaar Hussain, J. The petitioner has laid challenge to order dated 29.11.2024 through which the decision of the Home Department, Government of Punjab to retain the name of the petitioner on Passport Control List ("PCL") was maintained and his review application was dismissed.
2. Learned counsel for the petitioner submits that the order dated 29.11.2024 passed in review application of the petitioner is in contravention of the rights guaranteed to the petitioner under the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution") as the petitioner was not served with any notice prior to the placement of his name on the PCL. Adds that merely because a criminal case is registered does not empower the relevant authority to place name of the petitioner on the PCL.
3. Learned Addl. Attorney General alongwith Mr. Khurram Agha, Secretary Interior, Government of Pakistan submits that Home Department, Government of Punjab, recommended to the respondent-Director General Immigration and Passports, Islamabad that the petitioner is wanted in a criminal matter and is not joining the investigation; therefore, his name be placed on PCL in terms of Rule 22(2)(b) of the Passports Rules, 2021 ("Rules"). The recommendation of the Home Department was acted upon.
4. Mr. Noor-ul-Amin Mengal, Secretary Home Department, Government of Punjab has entered appearance and submits that it is a routine matter in which Police Department as also Home Department recommend the placing of names of individuals in PCL who are involved in criminal cases and avoid their apprehension by the Police Authorities and in present case the recommendations were made because the petitioner was not joining the investigation in the criminal case registered against him.
5. Confronted with this situation, learned counsel for the petitioner submits that it is wrong that the petitioner is absconding rather he appeared before the Court of competent jurisdiction and has been granted bail. This fact has not been refuted by the officials of the Punjab Government. On a query from this Court as to what justification was left for retaining the name of the petitioner on PCL if the petitioner has appeared before the Court of competent jurisdiction, which has granted bail to the petitioner, Secretary Home Department, Punjab submits that it is for Punjab Police to explain, since trial is underway. There was no plausible explanation with the Police officials in attendance, except to aver that the petitioner's presence during the trial is required and it is likely that the petitioner will abscond.
6. Arguments heard. Record perused.
7. The nub of the matter is to examine whether mere registration of a criminal case empowers the authorities to place name of a citizen on the PCL more so, when such citizen is admitted to bail?
Rule 22(2)(b) of the Rules has been relied upon by the respondents to justify the impugned action, which reads as under: "(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;"
Officials who appeared before the Court have conceded that the petitioner is, in fact, on confirmed bail granted by the Court. Secretary Home, Government of the Punjab further admitted that the letter recommending the placement of name of the petitioner on the PCL, was issued at the request of the Punjab Police. When asked whether this was part of a regular practice in all situations when criminal cases are registered, the officials of the Punjab Government failed to refer any guideline, or data indicating how often such letters are sent by Home Department, Government of the Punjab or in what categories of cases this step is taken, more particularly, when the underlaying reasoning i.e., the petitioner not being apprehended is incorrect on account of his confirmed pre-arrest bail. The inability to justify the selective application of such a restrictive measure points toward arbitrariness in the executive action. Even assuming, for the sake of argument, that the impugned action was routine matter, the fact remains that the inclusion of incorrect information in the official request that the petitioner is evading investigation and the Court proceedings renders the entire process suspicious. The petitioner is on pre-arrest bail, and this legal status carries the presumption that he is cooperating with the investigation and trial.
8. Suffice to hold that the right to freedom of movement is a fundamental right enshrined in the Constitution, and any restriction on liberty must satisfy the test of procedural fairness. The inclusion of a citizen's name on the PCL, particularly, under Rule 22(2)(b) of the Rules, constitutes a serious interference with this right and cannot be left to the unstructured and unchecked discretion of the executive authorities. While the above referred Rule permits the government agencies and departments to recommend placement of the name of a citizen on the PCL, the absence of an intelligible framework, objective criteria, or any obligation to provide a hearing to the affected person renders the entire mechanism susceptible to arbitrariness. When such discretion is exercised without a clear legislative standard or procedural safeguards, it offends the constitutional guarantee under Article 15 of the Constitution, which secures the right of every citizen to move freely that includes the liberty to travel abroad. The power to curtail a citizen's mobility cannot rest solely with the administrative machinery or law enforcement agencies, and any such action must be rooted in legal authority exercised in accordance with principles of fairness and accountability. The presumption of innocence remains intact unless and until a finding of guilt is recorded by a Court of law. To allow recommendations, based on unverified suspicions or incomplete investigations, to serve as the sole basis for denying a citizen the right to travel would not only be constitutionally impermissible but would also elevate executive opinion to the status of conclusive proof. Therefore, this Court is of the opinion that mere involvement in a criminal case is insufficient to justify a restriction on international travel, especially when the accused is admitted to bail by a Competent Court.
9. Moreover, the blanket assertion that a person may not join investigation or appear during the trial without testing such apprehensions through notice or hearing cannot be accepted as a valid ground for restricting the constitutional liberties.
Unsubstantiated fear of flight risk, does not suffice unless there is a demonstrated pattern of evasion or misconduct, on part of a citizen, justifying such limitations. Rule 22(2)(b), to the extent that it confers unstructured discretion, must be interpreted narrowly so as to avoid constitutional invalidity. It is, therefore, imperative that the decision to curtail a citizen's right to travel abroad be based on a well-reasoned and transparent process, endorsed at the highest level of the executive through proper application of mind, and accompanied by adequate notice and opportunity of hearing. Any deviation from this standard renders the executive action vulnerable and liable to be set aside for being contrary to the law, and in derogation of the fundamental rights.
10. The contention raised by the officials of the Punjab Police that the trial is underway and the petitioner may not appear on dates of hearing before the Trial Court, therefore, his name must remain on the PCL, is inherently flawed inasmuch as such reasoning undermines the entire concept of bail. Once a person has been granted bail, the legal presumption is that he is not fleeing justice.
In addition, the Trial Court is vested with certain powers under the Code of Criminal Procedure, 1898 ("Code") to ensure presence of an under-trial accused who is on bail. Similarly, the Trial Court retains full authority under the Code to grant exemption from the personal appearance whenever necessary and in case the said exemption is misused, the power vests with the Courts to withdraw/cancel the bail. Therefore, the concern that the petitioner's non-appearance may jeopardize trial proceedings is both premature and legally unfounded. In essence, the continued retention of the petitioner's name on the PCL, despite being on bail reflects a disregard of the judicial discretion and undermines the principle that bail is granted to ensure liberty unless compelling reasons exist to deny it. Where liberty is curtailed on the basis of misrepresentation and vague administrative routine, judicial correction becomes imperative.
11. In view of above discussion, this petition is allowed and the impugned order is set aside with the direction to respondents to remove the name of the petitioner from the PCL.