The petitioner is serving as Special Secretary, Ministry of Foreign Affairs, Islamabad. He has been designated as an Ambassador to Mexico. His name was placed on the Exit Control List vide order of the Ministry of Interior dated 9-6-1997. This order was based on the proceedings in Writ Petition No, 1755 of 1997 which was pending between the parties over the custody of a child born from the wed- lock of the son of the petitioner namely Adnan Sami and his wife Ms. Zeba Bukhtiar. The aforesaid order was, however, withdrawn on 28-8-1997 which was brought to the notice of the Court during the hearing of the aforesaid writ petition on 29-8-1997. In view of the withdrawal of the order dated 9-6-1997, writ petition aforesaid was dismissed as having become infructuous.
2. It is alleged in this petition that the Ministry of Interior started fresh proceedings for bringing the name of the petitioner on Exit Control List immediately after the previous writ petition was dismissed. These proceedings were allegedly based on some complaint made by Yahya Bukhtiar, the father of aforesaid Ms. Zeba Bukhtiar, to the Chief Ehtesab Commissioner, which was allegedly sent for investigation to the Ehtesab Cell. Making basis the aforesaid complaint, Ministry of Interior, Government of Pakistan, issued a fresh order on 1-9-1997 whereby the name of the petitioner was once again placed on the Exit Control List.
3. The above order has been challenged in this writ petition on the ground that the complaint before the Ehtesab Cell is an outcome of the malice on the part of respondent No,4 i,e, Yahya Bukhtiar, as both the families are at daggers drawn being involved in a pitched legal battle against each other over the custody of a minor child as aforesaid; that on account of the family feud, the petitioner has been dragged in a totally false complaint; that the property mentioned therein consists of two houses which have been constructed by the petitioner from his bona fide income and have since been declared in the Income Tax Returns, that the other allegation in respect of his visit as Federal Secretary alongwith a Musical Group to Kazakistan wherein Ms. Zeba Bukhtiar was shown to have accompanied the group, but as a matter of fact she never accompanied either as a delegate or in any other capacity, but an amount of Rs,15,000 was charged which was later on misappropriated; that both these allegations are false; that no investigation or inquiry has so far been conducted by the Ehtesab Commissioner or by the Ehtesab Cell on the aforesaid issues, but the Ministry of Interior, Government of Pakistan, without application of mind passed the impugned order thereby infringing the right of freedom of movement as enshrined in the Constitution; that the petitioner was not treated in accordance with law while making the impugned order and as such, the provisions contained in Article 2-A of the Constitution of Islamic Republic of Pakistan, 1973 (herein after referred to be as Constitution) were grossly violated. Likewise, the fundamental rights contained in Articles 4, 9 and 25 of the Constitution were blatantly violated to deprive the petitioner of equal treatment before law and also to enjoy the freedom of movement within and outside the Country as a citizen of Pakistan. In this respect, it is added that the petitioner being a public servant, holds a responsible post in the Ministry of Foreign Affairs with unblemished record and in recognition of his merit, he has been designated as an Ambassador of the Government of Pakistan to Mexico. In view of the passing of the impugned order, he has been deprived of that appointment so far which is not only a_personal injury to the petitioner but also has damaged the image of the country in the outer World. Lastly, it is submitted that the petitioner has been suffering from carcinoma and had undergone surgery four years back and had to undergo periodical check-up for the maintenance of his health. Recently, he had some attack for which he was hospitalized and was advised to have check-up from abroad in connection with the post-operation care as advised to him during the surgery of carcinoma. It was, therefore, alleged that the impugned order was putting the petitioner in strait-jacket without any rhyme or reason and as based on mala fide and without application of conscious mind by the authorities concerned. Hence it is alleged that the same is not sustainable in the eyes of law. Lastly, it is submitted that if the embargo placed upon him is lifted, he would not transfer the property i,e, the two houses about which the complaint was made to the Ehtesab Cell for a period to be specified by the Court.
4. Learned Standing Counsel has opposed the petition on the ground that the verification of the complaint is yet to be made for which an inquiry will have to be held. However, no time-frame is given regarding the initiation or conclusion of the aforesaid inquiry. Instead a general statement is made that the allegations in the complaint are to be verified in an inquiry yet to be launched upon.
Learned Standing Counsel also pointed out that since the Reference was received from the Chief Ehtesab Commissioner vide letter No,Dy.506/PSO(CEC) dated 29-8-1997 issued by the Chief Ehtesab Commissioner Secretariat, therefore, no reason was required to be given while placing the petitioner's name on the Exit Control List. The review petition filed by the petitioner was also dismissed during the pendency of this writ petition on 17-10-1997 on the ground that the impugned action was neither unreasonable nor in violation of any fundamental right and that the same was taken in the public interest.
5. Learned counsel appearing for the Chief Ehtesab Commissioner Secretariat was not in a position to state clearly about the contents of the complaint as the relevant record was not in his possession. He was, therefore, of no assistance at the time of hearing of this petition.
6. I have considered the foregoing contentions raised at the Bar. It is to be seen, whether the impugned order is based within the frame-work of the existing law i,e, the Exit from Pakistan (Control) Ordinance, 1981. It is also to be seen, whether or not it comes into conflict with any fundamental right granted to the petitioner under the Constitution. The perusal of section 2 of the Ordinance ibid would be necessary to decide the matter in issues. The aforesaid section runs as follows:-- "S. 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 order.
(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."
The aforesaid section postulates that the Federal Government may make an order prohibiting a person from proceeding abroad to a destination outside Pakistan. It also provides that it shall not be necessary for the Government to afford an opportunity of show cause against such order and also not to specify the grounds on which the order is proposed to be made. The power granted to the Government in placing restrictions on the movement of a person from Pakistan to outside Pakistan are wide enough but the law does not intend that those should be exercised wildly, arbitrarily or capriciously. Admittedly, in any democratic polity, such powers are to be exercised in accordance with the Constitution and law and, of course, in attempted manner except in such cases where issuance of show-cause notice to an effected person, specifying the grounds regarding the proposed restrictions, are considered detrimental to the Country on the State itself.
Any step from any State Authority whereby the liberty of a citizen is adversely affected should be taken with extreme care and caution. A reasonable exercise of jurisdiction is sine qua non for the interpretation of a stringent law whereby a citizen is deprived of his normal lawful activity allowed to him under the Constitution. The phrases 'liberty', 'reasonableness' and 'public interest' qua restrictions have come up for interpretation at different times before the superior Courts of this Country. The land-mark judgments may be cited as Ch. Zahur Illahi v. Secretary to Government of Pakistan, Ministry of Home and Kashmir Affairs, Rawalpindi (PLD 1975 Lahore 499), Ashiq Ali Bhutto v.
President, Summary Military Court No,2, Karachi and 2 others (PLD 1979 Karachi 814), M. Younis Malik v. The State Bank of Pakistan through its Deputy Director, (Foreign Exchange), Lahore and 3 others (PLD 1981 Lahore 181), Government of Pakistan and another v. Dada Amir Haider Khan (PLD 1987 Supreme Court 504) and Abdul Hafiz Pirzada and another v. Government of Pakistan (1989 CLC 79 (Karachi).
7. The general principle, laid down in the above Authorities would obviously lead to a conclusion that the restrictive laws qua the liberty of a citizen in a democratic State should be put to qualitative tests in order to find out that the exercise of discretion by the Authority concerned was neither arbitrary nor capricious and that it was within the reasonable limits prescribed by the law under which the aforesaid Authority had acted. As such, making the aforesaid principle as touch- stone, each case shall have to be looked into on its own individual merits before coming to a positive conclusion, whether or not the order in dispute could be termed as either in excess of jurisdiction or bad in the eyes of law. Applying the same test to the facts of this case, it appears that the petitioner is a public servant and has been designated as an Ambassador by the Government to a foreign Country. This obviously means that his antecedents must have been cleared before such designation was ordered by the Government. Taking the other side of the picture, it appears that due to some domestic un-pleasant situation, the petitioner has been taken to task to deprive him of his legitimate liberty to move from Pakistan to outside Pakistan, of which he is in dire need on account of his health problem. The petitioner has appended the history of his operation which shows that he needed regular periodical tests for the maintenance of his health.
With the passing of the impugned order, he is deprived of that facility which any other intending citizen can avail without any let or hindrance. It further appears that respondent No,1 is making one order after the other without application of conscious mind. The first order was made on account of some litigation over a family matter whereas the subsequent order was made upon a complaint received from the Ehtesab Secretariat. Needless to say that the aforesaid complaint was forwarded to the Chief Ehtesab Commissioner by the adversary of the petitioner and that complaint has yet to be inquired into by the Ehtesab Cell for which no progress has, been made nor any inquiry has been initiated, though it was received some time back in September, 1997. It therefore, follows that the whole situation in respect of the allegations raised in the aforesaid complaint is in the state of incubation. Such a fluid situation cannot be made a ground to deprive a citizen of his liberty. Even otherwise, though the law requires that the order may be issued without show-cause notice and without stating the grounds upon which the action is to be taken but still it requires conscienciousness and transparency while taking action under section 2 of the Ordinance ibid. In the instant case, the competent Authority in the Ministry of Interior has acted like a post office to make the impugned order after receiving the alleged complaint from the Ehtesab Cell. Suffice it to say that this approach on the part of the competent Authority cannot be appreciated under the law. As already stated above, the order should be passed after application of conscious mind and should be transparent enough to justify its existence. But unfortunately, the competent Authority did not proceed on the afore-lined premises to make the order in dispute which, of course, is not good in the eyes of law and cannot be sustained.
8. The writ petition is, therefore, accepted. The impugned order is set aside with the observation that the Ehtesab Cell shall be at liberty to initiate/hold the inquiry against the petitioner on the complaint received against him and the same shall be finalized within two months. The petitioner is directed not to dispose of or alienate the two houses situated in Islamabad, and mentioned in the complaint before the Ehtesab Cell within that priod i,e, two months in any manner. The passport of the petitioner shall be released to him forthwith.