' NASIR-UL-MULK, J.--The petitioner was a Federal Minister in the Government that was dismissed by the President of Pakistan on 5-11-1996 in exercise of his power under Article 58(2)(b) of the Constitution. Though the National Assembly was also dissolved the petitioner, being a Senator, retained his position as a member of Parliament, which eventually came to an end on 20-3-1997 on completion of his six years term. On 14-11-1996, during the tenure of the Caretaker Government a list of names placed on the Exit Control List (E.C.L.) was published in the daily "The News" The list included the name of the petitioner. After having ceased to remain Federal Minister, the petitioner, on 18-2-1997, surrendered his diplomatic passport and applied to the Director-General, Passport and Immigration through the Ministry of Foreign Affairs for the issuance of an official passport instead on the basis of his being member of the Senate. The receipt of the letter dated 18-2-1997 was acknowledged by the Ministry of Foreign Affairs on 19-2-1997.
2. After the induction of the new Government in place of the Caretaker Government in consequence of the general elections held in February, 1997, the petitioner, on 7-3-1997, when he was still a Senator, wrote to the Ministry for Interior requesting for removal of his name from the E.C.L. And for issuance of a new Passport in lieu of the Diplomatic Passport already surrendered.
There was no response to this letter. A reminder letter was written on 19-5-1997. There was still no response. The petitioner, therefore, in June, 1997 filed the present Constitutional petition praying that the placement of the petitioner's name in the E.C.L. Be declared illegal and that the respondents be directed to issue a passport to the petitioner. The petitioner has also sought direction to be given to the respondents not to prevent the petitioner from travelling abroad.
3. The factual position and the stand of the parties that emerges from the pleadings and documents are that the petitioner was placed in yet another E.C.L. Issued by the Government of Pakistan on 30-4-1997 at the request of the Chief Ehtesab Commissioner due to pendency of criminal cases in the Ehtesab Benches against the listed persons. The respondents have also provided a list of 8 cases against the petitioner under investigation by the Chief Ehtesab Commissioner. The petitioner in his rejoinder to the comments filed by the respondent had conceded the pendency of only one such case before the Ehtesab Bench of Lahore High Court in which the petitioner's application for acquittal under section 265-K, Cr.P.C. Is still awaiting decision due to the challenge thrown by the petitioner to the proceedings in a writ petition before the same Court, in which the judgment has not been announced.
4. The learned counsel appearing for the petitioner made separate submissions on the legality of the refusal to issue a passport and inclusion of the name of the petitioner in the E.C.L. As regards passport, the learned counsel referring to section 3 of the Passport Act 1974 and the cases of Syed Abul A' ala Maududi v. The State Bank of Pakistan PLD 1969 Lah 908), Government of Pakistan and another v. Dada Amir Haider Khan PLD 1987 SC 504, Sobia Gianchandani v. Federation of Pakistan 1996 MLD 1569 and Ch Zahur Ilahi v. Secretary to Government of Pakistan PLD 1975 Lah. 499 and contended that non-issuance of passport amounted to curtailment of personal liberty of the individual and therefore, denial of a vested right of locomotion, which include travel abroad.
Restrictions on such right, it was contended, could only be placed if national security so demanded and not otherwise. It was pointed out that the respondent has not expressed any fear that the petitioner's travel abroad could entail any security risk. As for the inclusion of the petitioner's name in the E.C.L. The learned counsel contended that even though Ordinance No, XLVI of 1981 where under the Exit Control List is issued, empowers the Federal Government to pass an order of prohibiting a person's exit from Pakistan without affording him an opportunity of showing cause, yet the petitioner was wrongfully denied right of hearing in view of the principles laid down in the University of Dacca v. Zakir Ahmad PLD 1965 SC 90, Pakistan and others v. Public at Large PLD 1987 SC 304 and Mrs. Anisa Rehman v. P.I.A.C. And others 1994 SCMR 2232. Relying heavily upon the judgment of Single Bench of the Lahore High Court in the case of Wajid Sharnsul Hassan v.
Federation of Pakistan PLD 1997 Lahore 617, the learned counsel argued that the provision of the Ordinance are discriminatory and that an order passed under the Ordinance without disclosing the grounds therefor and affording the affected person opportunity of hearing is to be struck down being mala fide and arbitrary.
5. In response to the above contentions the learned counsel representing the respondents first of all pointed out that the petitioner had never submitted a proper application form to the Immigration and Passport Officer for the issuance of a passport. As regards the placing of the petitioner's name on the (E.C.L.) it was submitted that the action was necessitated due to the pendency before the Chief Ehtesab Commissioner of a number of cases relating to the petitioner's tenure of office as Federal Minister for Petroleum and Natural Resources. In this context reliance was placed on the unreported judgment of the -High Court of Sindh delivered in Constitutional Petition No,D-987 of 1997 on 29-5-1997. As to the right of hearing the learned counsel submitted that Ordinance XLVI of 1981 itself excludes such a list to the person against whom an order is passed under the Ordinance. The learned counsel further pointed out that the petitioner has not availed alternative remedy of review under the Ordinance before filing the present petition.
6. The facts of the case are simple and undisputed. The petitioner's name was first placed on the E.C.L. In November, 1996 by the Care-taker Government and then by the elected Government in April, 1997 on the recommendations dated 6-3-1997 of the Chief Ehtesab Commissioner. No notice, prior or post, of either of the orders was given to the petitioner. Nor were the letters by the petitioners for removal of his name from the E.C.L. Responded to by the Federal Government.
7. Adverting to the legal proposition involved it would be appropriate to first examine the legality of the order regarding E.C.L. As the non-issuance of the passport is a subsidiary issue. On the petitioner's placement on E.C.L. The attack was too pronged; firstly, that it was passed in violation of the rule of natural justice, and secondly, that the reasons advanced by the respondents do not justify the inclusion of the petitioner's name in the E.C.L.
8. The case-law cited by the learned counsel for the petitioner regarding right of hearing is to be read in the light of the provision of Ordinance No, XLVI of 1981, section 2 of which reads as under:-- "2. Power to prohibit exit from Pakistan.---(1) The Federal Government may by order, prohibit any person or class of persons from proceeding from Pakistan to a destination outside Pakistan, notwithstanding the fact that such person is in possession of valid travel documents.
(2) Before making an order under subsection (1), it shall not be necessary to afford an opportunity of showing cause against the orders.
(3) If, while making an order under subsection (1) it appears to the Federal Government that it will not be in the public interest to specify the grounds on which the order is proposed to be made, it shall not be necessary for the Federal Government to specify such grounds."
9. Subsection (2), therefore, clearly exempts the Federal Government from the requirement to hear the affected person before an order is passed against him. Such a right, however, is provided to the aggrieved person under section 3 when he files a review petition to the Federal Government against an order passed under section 2. The case of University of Dacca v. Zakir Ahmad (ibid) was cited for the rule that the principle of natural justice would apply even though there may be no positive requirement statute. Similarly in case of Mrs. Aneesa Rehman the august Supreme Court held that the maxim audi alteram partem, is to be read as a part of every statute even if the right of hearing has not been expressly provided therein. Now in both these cases the relevant provisions were silent on right of hearing, but there was also no express statutory exclusion of such a right. The rule, therefore, laid down in these cases cannot be applied to an order passed under section 2 of the Ordinance because it expressly excludes right of hearing. The case of Pakistan v. Public at Large, ibid can also not be pressed into service by the petitioner because the august Shariat Appellate Bench of the Supreme Court were only concerned with the repugnancy to the Injunctions of Islam the provisions in the Civil Servants Acts which had not provided a right of hearing to a civil servant before he could be sent on premature retirement. The judgment is limited to the specific statutory provisions under scrutiny and is not of general application as it was delivered under the special jurisdiction under Article 203-D of the Constitution, which provides for examining the validity of statutory provisions on the touchstone of Injunctions of Islam.
10. The only judgment which recognises the right of an aggrieved person to a hearing before an order is passed under section 2 of the Ordinance is that of a Single Bench of the Lahore High Court in Wajid Shamsul Hassan v. Federation, referred to above. With utmost respect to the views of the Honourable Judge, we I B are of the opinion that the Ordinance is a valid law which expressly permits the Federal Government to place the name of a person on the Exit Control List without a show cause or an opportunity of hearing, and so long as this provision of the Ordinance is not struck down as being ultra vires of any provision of the Constitution the Federal Government shall continue to be exempted from the application of the rule of natural justice when passing an order under section 2 of the Ordinance.
11. Though the order placing the petitioner's name on the Exit Control List does not disclose the grounds therefor, but the comments filed by the respondents have specified the reason for the action, namely the pendency of certain cases against the petitioner before the Chief Ehtesab Commissioner. One of the reference is pending before the Ehtesab Bench of the Lahore High Court whereas as many as 8 are stated to be in the pipeline, presently under scrutiny of the Chief Ehtesab Commissioner. A case with similar facts came up before the High Court of Sindh (referred to above) where Miss Naheed Khan, Political Secretary to the former Prime Minister had challenged the inclusion of her name in the E.C.L. After laying down that a person's exit from the country can be stopped under the Ordinance if public interest so required, the Division Bench held that initiation of the process of Ehtesab against the petitioner was a good ground for preventing her from leaving the country as otherwise the Ehtesab process would have been delayed. In that case till the filing of the counter-affidavit but the Federal Government no reference had been made to the Ehtesab Bench but such an action was under consideration. Eventually, the reference was filed before the judgment was pronounced. The case of the Federal Government against the present petition is on a stronger footing than in the afore stated case. Not only that a reference to Ehtesab Bench was already made before the writ petition was filed but a number of other cases are under scrutiny.
Following the principles laid down in Naheed Khan's case we hold that the ground on which the petitioner has been prevented from proceeding abroad under the Ordinance is not unreasonable .
12. The cases cited by the learned counsel for the petitioner relating to curtailment of personal liberty and right to travel abroad related to the non-issuance of passport and, therefore, not relevant to restrictions imposed under the Exit from Pakistan (Control) Ordinance, 1981 .
13. As regards the non-issuance of Passport, the stand of the respondent is the petitioner has never formally applied for the issuance of Passport to the Passport and Immigration Officer, University Town, Peshawar under the Passport Act, 1974. It was also stated at the Bar that such an application if made would be duly considered. Thus, the petitioner's grievance against the Immigration and Passport Officer is premature.
14. The result of the foregoing discussion is that the placing of petitioner 's name on the exit control list is not violative of any law. It may however be added that the petitioner cannot be indefinitely placed on the exit control list and if the process of Ehtesab against the petitioner is unduly and unreasonably delayed, the petitioner will be at liberty to approach the Court again. With these observations, the writ petition is dismissed with no order as to costs.