' RANA BHAGWAN DAS, J.---Petitioner who is engaged in the business of construction industry in the name of Glaxy Construction (Pvt.) Limited through this Constitutional Petition seeks to impugn the orders of the respondent Federation of Pakistan placing his name on the Exit Control List in the following circumstances:
2. It is the case of the petitioner that he is a law abiding citizen of Pakistan, has never been in default and pays income-tax in the range of about Rs,10 to 12 lakhs to the Government of Pakistan every year. Out of his hard earning, he claims to have invested millions of rupees in raising construction of Hotel Glaxy on Main Shahrae Faisal, Karachi. According to him his whole stake is in Pakistan and all his earnings invested within the country. His younger brother Shahid Hassan living at 42-35 South Custer, Avelyonsillinois60535, Chicago, U.S.A. Developed some serious problems of health and he intended to proceed to U.S.A. To look after his ailing brother, when some of his friends told him that his name had been put in the Exit Control List as reported in daily "Dawn" dated 8-7- 1998. He, therefore, approached the office of respondent No,2 and came to know that the Ministry of Interior had included his name and two others and issued such letters dated 13-6-1998 to the passport issuing authorities in Pakistan and Director-General, F.I.A. To distribute copies thereof to all check posts of Pakistan. Contents of the letter dated 13-6-1998 tend to indicate that it had been decided by the Ministry of Interior to include the names of the petitioner and two others in the E.C.L.
With immediate effect. Since the petitioner was not served with any notice or letter and he was not served with the impugned order nor supplied any grounds for filing a review application, he has impugned the aforesaid action as violative of Article 4 of the Constitution, against the principles of natural justice and in contravention of the spirit of section 2(3) of the Exit Control Ordinance, 1981.
3. Alongwith the petition, he moved a miscellaneous application for suspending the operation of the impugned order which was heard by a Division Bench consisting of Amanullah Abbasi and Sarmad Jalal Osmany, JJ. Who vide order dated 30-9-1998 permitted the petitioner to proceed abroad subject to furnishing security for his return to Pakistan within thirty days from the date of order.
4. In the parawise comments submitted under the signature of Director (S.Z.) Immigration and Passports, Government of Pakistan, Karachi, the grounds agitated are that the petition is not maintainable under section 3 of the Ordinance XLVI of 1981; that the name of the petitioner was placed on E.C.L. On receipt of information in the Ehtesab Bureau, that he was a front person of Asif Ali Zardari owning/managing properties as benamidar on behalf of Asif Ali Zardari and that the Federation of Pakistan is not obliged to issue a notice before passing an order placing the name of any person on E.C.L. Parawise comments are followed by an affidavit in rejoinder by the petitioner seriously controverting the position taken in the parawise comments. It is urged that neither the petitioner is the front man of Asif Ali Zardari nor owning/managing properties as his benamidar.
Moreover, there was no information with regard to this allegation otherwise he would have been involved in multiple litigations and references but not a single case is pending against him nor any instance cited to this effect. Petitioner reiterated that placing his name on E.C.L. Is mala fide, without jurisdiction, void and liable to be struck down.
5. At the hearing learned counsel for the petitioner urged that the petitioner is a law abiding citizen of Pakistan engaged in the construction industry for, quite a long time having invested huge amounts in the project known as Glaxy Construction (Pvt.) Limited Company and paying considerable amount by way of income-tax. Learned counsel submitted that there is not an iota of evidence to connect the petitioner with Asif Ali Zardari. He has neither been involved in any F.I.R. Nor interrogated by any agency including Ehtesab Bureau and that the entire exercise appeared to be the result of some misinformation without any concrete material and legal justification. It is for this reason that no reason was assigned by the respondents while placing his name on E.C.L. And no notice or intimation was given to him. Even uptil now not a single case has been registered against the petitioner to reflect that he was in any way concerned with unlawful activities attributed to the spouse of the former Prime Minister of Pakistan.
6. Preamble of Ordinance XLVI of 1981 tends to show that this legislation was made as it was found expedient to provide for the control of exit of certain persons from Pakistan, therefore, this Ordinance was promulgated in pursuance of the proclamation of the 5th day of July, 1977 read with Provisional Constitution Order, 1981. Ordinance itself is quite short and vests unfettered power in the Federal Government who may by order prohibit any person from proceeding from Pakistan to a destination outside Pakistan, notwithstanding the fact that such person is in possession of valid travel documents. Subsection (2) of section 2 stipulates that it shall not be necessary to afford an opportunity of showing cause against the order before making such order. Subsection
(3) lays down that if while making an order as aforesaid, it appears to the Federal Government that it will not be in the public interest to specify the ground on which the order is proposed to be made, it shall not be necessary to specify such grounds. Remedy to any person aggrieved by an order is provided in section 3 providing for an application for review within 15 days of the making of such order to the Federal Government setting out the grounds on which review of the order is, sought and the Federal Government may after giving person concerned an opportunity of being heard make such order as deemed fit which shall be final and not to be called in question before any Court or other Authority.
7. Indeed the power purportedly vested in the Federal Government is apparently unfettered and.
Unrestricted, it is well-settled that the discretion vested in Executive must be exercised fairly, reasonably, justly and in accordance with law and the Constitution. In absence of any incriminating material available with the respondent Government against the petitioner tending to show that he was involved in any serious kind of nefarious activities or acting prejudicial to the security and solidarity of the State, impugned order cannot be sustained in law inasmuch as not a single instance of involvement of the petitioner in any serious crime is shown to exist. By restricting the movement of the petitioner, respondents appear to have violated the provisions of Articles 4, 9 and 15 of the Constitution. Articles 4, 9 and 15 may be reproduced hereunder for the sake of convenience and proper appreciation of the point under consideration: "4.--(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 very 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 require him to do."
"9. No person shall be deprived of life or liberty save in accordance with law."
"15. 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."
8. It appears that no action detrimental to the life, liberty, body, reputation or property of any person can be taken except in due course of law and the Constitution guarantees that no person shall be deprived of life or liberty save in accordance with law. Article 15 reproduced hereinabove guarantees to every citizen his right to remain in, enter and move freely throughout Pakistan. Such right to enter the country if he is leaving it or he has gone abroad and is allowed to step out and step in, the country, may be subject to reasonable restriction imposed by law in the public interest.
In the case in hand, there is nothing on record and indeed none is pointed out by the learned State Counsel to reflect whether the petitioner was going abroad to hatch any conspiracy against the national interest or his visit abroad could endanger the security of the State or was contrary to public interest. A bald allegation that he is reportedly front man of Asif Ali Zardari, in our view, is neither adequate nor convincing to support the view that the petitioner may be restricted in his movements out of country. It may be observed that pursuant to the interim order, petitioner has been to the United States and returned home within the time permitted by this Court which prima facie manifests his bona fides. Indeed we are supported by the cases reported as Government of Pakistan v. Dada Amir Haider Khan PLD 1987 SC 504, Abdul Hafeez Pirzada v. Government of Pakistan, a Division Bench decision consisting of Ajmal Mian and Haider Ai Pirzada, JJ. (as their Lordships then were) reported in 1989 CLC 79 and Wajid Shamsul Hassan v. Federation of Pakistan PLD 1997 Lahore 617.
9. For the aforesaid facts and reasons even the learned State Counsel was not in a position to find any justification for supporting the impugned order which is declared to be bad in law, invalid and without lawful authority and is accordingly struck down. At the conclusion of the hearing, we had allowed this petition with a further direction that the title documents may be returned to the petitioner. Aforesaid are the detailed reasons for the short order. 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.