SHAH JEHAN KHAN YOUSAFZAI, J.---The petitioners have filed the instant Constitutional petition seeking a declaration that the orders dated 14-3-2000 by respondent No,1 placing the petitioners on exit control list as illegal, violative of the Constitutional provision, against the Injunctions of Islam and natural justice being passed arbitrarily and based on mala fide. The petitioners are members of the family of Aftab Ahmad Khan Sherpao, the ex-Chief Minister of North-West Frontier Province.
Petitioner No,3 is his wife with, no political or official status and confined to the management of henhouse and bringing up of her children. Petitioner No,1 is his eldest son aged about 23 years and has obtained B.B.A. Degree from the Drake University, IOWA, U.S.A in 1999 and was intending to get admission and secured his master degree in the Business Administration from the said University.
Petitioner No,2 a minor is aged about 14 years and studying at O'level. Petitioners Nos.4 and 5 are his daughters and students of 4th class in Khyber Medical College,. Peshawar and 1st year in BDS, Khyber College of Dentistry, Peshawar respectively. It is alleged that all the four issues of Aftab Ahmad Khan Sherpao are fully devoted to their studies and educational career with no participation in political activities or possessing any official status. Also alleged that Aftab Ahrnad Khan Sherpao had been in political power, was victimized by the ousted regime of rival political party, Pakistan Muslim League and references in the context of, accountability were filed against him. He also remained under investigation by the present Government under the commitment to the nation for bringing anybody indulged in corrupt practices to the screen,
2. The petitioners received the impugned order of respondent No,1 dated 14-3-2000 whereby their names were placed on the exit control list issued under Exit from Pakistan (Control) Ordinance, 1981 (hereinafter to be called Ordinance) without disclosing any reason or affording an opportunity of hearing. Since no reasons for issuance of the impugned order was conveyed to the petitioners, they could not file review before the authority under section 3 of the Ordinance. The petitioners have also challenged the powers of the Federal Government purportedly under Ordinance being violative of fundamental rights guaranteed under Articles 2A, 4, 9, 15 and 25 of the Constitution and laws thus ultra vires and cannot be allowed to remain on the statute book.
3. The Federal Government through Secretary Interior, Islamabad (respondent No,1) was directed to file parawise comments of the writ petition which were submitted after repeated notices, issued by the Court. In, his parawise comments, respondent No,1 has furnished no comments on paras. 1 to 8, 10 and 12. However, it was admitted that the names of petitioners have been placed on exit control list and the reasons have not been communicated in view of section 2(3) of the Ordinance whereunder if it appears to the Federal Government that communication/disclosure of the reasons is against public interest shall not disclose the same. In view of the assertion made in the writ petition and comments filed by respondent No,1, the writ petition was admitted to full hearing and respondents were afforded an opportunity to file written statement.
4. Respondents Nos.1 to 3 filed their written statements. Certain preliminary objections to the maintainability of writ petition including the non-availing of adequate remedy by way of review under section 3(1) of the Ordinance were raised. On facts it was highlighted that the petitioners are directly involved in politics, malpractice, filtration and concealment of ill-gotten wealth and enquiry being initiated by the NAB. The Ex-Chief Minister of the N.-W.F.P. Was tried under Ehtesab Ordinance and convicted by Ehtesab Court on charges of corruption and malpractices but soon after his conviction, he absconded. The petitioners being -family members of Aftab Ahmad Khan Sherpao are trying to flee of the country and reunite abroad and live together. The petitioners being direct beneficiaries of the ill-gotten wealth and required for inquiry and investigation by the National Accountability Bureau have been restrained from leaving the country by placing their names on the exit control list. The reasons for impugned order were not disclosed to the petitioners as its disclosure was found by the Federal Government not in the public interest. The petitioners were stated to be required present in the country only till the investigation/inquiry in the references initiated against them. In the conclusion of inquiry/investigation if they are not found guilty they would be at liberty and be allowed to go wherever they want.
5. We afforded ample opportunity through repeated adjournments to the respondents to enlight this Court regarding the reasons behind the impugned order the disclosure of which were found not in the public interest. The Deputy Prosecutor-General, NAB put his appearance and informed the Court that the investigation against the petitioners is at the verge of completion and no reference has yet been submitted to Court against the petitioners (pertinent to mention here that about 13 months have been passed since impugned order). However, he produced detail of movable and immovable properties in the names of petitioners. Respondent No,1 produced a letter issued by General Headquarters General Staff Branch dated 14-3-2000 and submitted that the impugned order was issued the same day pursuant to the said letter.
6. The learned Deputy Attorney-General re-agitated his objection to the maintainability of the writ petition on the ground that adequate remedy was available to the petitioners by way of review under section 3(1) of the Ordinance and writ petition under Article 199 of the Constitution is not maintainable. The objection was replied by the learned counsel for the petitioners on two-fold grounds. Firstly, that no reasons were communicated to the petitioners and the right of review has become redundant as observed in Wajid Shamsul Hassan v. Government (PLD 1997 Lahore 617) and Munawar Ali Sherazi. v. Government (PLD 1999 Lahore 459) and secondly that the petitioners have also challenged the vires of section 2 of the Exit Control List being violative of fundamental rights guaranteed under the Constitution and the settled principle of law audi alteram partem that no one should be condemned unheard, being against the Injunctions of Islam. Sections 2 and 3(1) of the Ordinance read 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 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.
3. Review.--(1) Any person aggrieved by an order of the Federal Government under subsection (1) of section 2 may, within fifteen days of the making of the order, make a representation to the Federal Government for a review of the order, setting out in the representation the grounds on which he seeks the review."
' Section 2(1) empowers the Federal Government to prohibit any person from proceeding abroad the limits of Pakistan territory despite the fact that the person possessing valid documents for such departure under subsection (2) the right of audience or tendering any explanation or show cause prior than issuance of an order under subsection (1) has been taken away. The Federal Government or authority issuing an order under section 2(1) has also been relieved to furnish the grounds to the concerned person/persons under subsection (3) but subject to the fact that disclosure of grounds made basis for the action is found against public interest. The comprehensive reading of section 2 of the Ordinance with the well recognized and established principle of audi alteram partem, section 8(2) of the Passports Act, 1974 and section 24-A of the General Clauses Act would reveal that in normal course before taking an action or passing an order under section 2(1) the authority acting on behalf of Federal. Government shall afford an opportunity of hearing to the person concerned but only in a case where disclosure of reasons/grounds for the action is found against public interest it shall not be communicated. If an action taken under the Ordinance is questioned by the person concerned the Federal Government shall satisfy the Court regarding bona tide of the action and the protection of public interest failing which the impugned action could be competently struck down being ultra vires of the Constitution and prevailing law.
7. No doubt the statute has provided a remedy by way of making representation for review of the order passed under section 2(1) of the Ordinance., but such remedy could only be availed if the person concerned knows about the grounds behind the action taken. If neither an opportunity of hearing is provided before the action taken or disclosure of grounds in the order, the person concerned would not be able to ask for review in Wajid Shamsul Hassan's case reported in PLD 1997 Lahore,617 wherein it was observed as follows:- "If no reasons are assigned to an aggrieved person the remedy of review under section 3 of the Ordinance by making a representation becomes redundant. A citizen would not be in a position to make any effective representation in the absence of any reason or a speaking order." The same issue came before another Bench of Lahore High Court in Munawar Ali Sherazi's case (PLD 1999 Lahore 459) and the following conclusion was drawn:-- "Subsection (2) of section 2 excludes the right of prior hearing or an opportunity of showing cause.
In subsection (3) the Federal Government can withhold disclosure of grounds which in its opinion will not be in public interest to disclose. In my view, exclusion of prior hearing or of show-cause notice does .Not absolve the Federal Government from stating and conveying the reason, after the action has been taken. This is necessary to enable the affected person to avail the right of review under section 3. It is common sense that without knowing the case of the Federal Government, the exercise of right of review would be rendered nugatory. After all, it is the reasons prevailing with the. Federal Government which have to be met and if the reasons are not disclosed, the petitioner has nothing to meet against. Impliedly, therefore, it is obligatory on the Federal Government to communicate the reasons in support of its action as soon as the action has been taken. Of course the Federal Government can withhold disclosure of those grounds which in its opinion would adversely affect the public interest. This also shows that all other grounds will have to be disclosed. This interpretation is logical as the right to travel is part of fundamental right of liberty and free movement laid down in Constitution which are so jealously guarded by the superior Courts."
8. In view of the discussion made above we are clear in our mind that the objection regarding maintainability of writ petition raised by Deputy Attorney-General is not sustainable.
9. As stated earlier in this judgment it is the statutory right of Federal Government to prevent a person from travelling abroad notwithstanding the fact that the person against whom action is taken is possessing legal document for journey abroad. But the powers of Federal Government can be exercised by an authorized person subject to limitations imposed by law. In this context section 24-A inserted through Act XI of 1997 in the General Clauses Act, 1897 is reproduced below:-- "24-A. Exercise of power under enactments.--(1) Whereby or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment.
(2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or as the case may be, the direction to the person affected prejudicially."
It would be seen whether the impugned order dated 14-3-2000 was passed by the competent authority reasonably, fairly, justly and for the advancement of purposes of Ordinance. The impugned order issued by a Section Officer of E the Interior Division, Islamabad has disclosed no reasons whatsoever. The same is reproduced here:-- "It has been decided with the approval of competent authority to place the following family members of Mr. Aftab Ahmad Khan Sherpao, Ex-Chief Minister, N.-W.F.P. Resident of House No,282, E-7 Islamabad/University Town Peshawar, on Exit Control List, with immediate effect, under section 2 of Exit from Pakistan (Control) Ordinance, 1981:
(a) Nighat Ghayur, wife. (b)Mustafa Aftab Sherpao, son. (c) Sikandar Hayat Sherpao, son.(d)
Huzaima, daughter.
(e) Sadaf, daughter. All concerned are requested to take further action in the matter accordingly."
A bare reading of the aforesaid order will reveal that constitutionally guaranteed rights of petitioners enshrined in Articles 2A. 4, 9, 15 and 25 have been taken away simply for the reason that they are members of Aftab Ahmad Khan Sherpao's family. In their comments filed by respondents through Major (Rtd.) Umar Hayat Khan, Deputy Director Federal Control Room duly supported by an affidavit on 25-5-2000 very evasive, nonspeaking comments were furnished without any Annexures. Resultantly the writ petition was admitted to full hearing and respondents were afforded another opportunity to file written statement which was accordingly filed.
10. It is alleged in their written statement that all the petitioners are directly involved in politics, malpractice, filtration and concealment of ill-gotten wealth and are required for investigation and inquiry 'being initiated by NAB. Aftab Ahmad Khan Sherpao the head of petitioners' family was convicted by Ehtesab Court for corruption charges and has absconded and declared proclaimed offender. The petitioners are trying to flee away to reunite in a family abroad. They have also appended with a list of agricultural lands owned by Ex-Chief Minister Aftab Ahmad Khan Sherpao with the remarks that most of the land have been purchased during the period of political power and source of income is not known. The list also indicates that some of the properties are recorded in the names of petitioners in the Revenue Record. In their rejoinder the petitioners have stated on oath that except 25 Jarib of land purchased through sale proceeds of ancestral property and the rest is their ancestral property. The question as to whether the property list attached with the written statement is ill-gotten through corrupt practices or the ancestral and bonafidely purchased through legal sources cannot be commented upon in the instant petition as it is stated at the bar that all such properties have been frozen and proceedings whereof are in progress in the Ehtesab Court. Anyhow for the purposes of disposal of this writ petition it is sufficient to record that Deputy Prosecutor-General of the Province has stated at the bar that so far no reference has been tiled against the petitioners in the Accountability Court but denied that properties in the name of petitioners-have been frozen. However, a list of the properties in the name of petitioners has been furnished to Court.
11. Except the mere allegation that petitioners are directly involved in politics, malpractices, filtration and concealment of ill-gotten wealth, no document whatsoever has been brought on record.
Taking part in politics fairly is neither a sin nor a crime rather essential for a democratic set up in the country. Presuming that political process has been banned genuinely for the time being even then on this score alone no person can reasonably be deprived from guaranteed rights under the Constitution. We have not come across any press statement of petitioners except petitioner No,
1. In the prevailing feudal political culture of the country the wife or issues of a political personality having wide support of followers always fill in the lacuna under the pressure of supporters in absence of the widely recognized politicians. We have noticed that petitioner No,1 has indulged himself in political after disappearance of his father from political scene, but here is no evidence for arrival at the conclusion that respondents 2 to 5 are indulged in politics in any manner rather petitioner No,2 a minor and petitioners Nos.4 and 5 are involved in education while petitioner No,3 is a house wife looking after her children.
12. So far as the allegations of malpractices, filtration or concealment of wealth is concerned, we are unable to understand that why then they were not roped with the head of their family against whom a number of references were submitted to Ehtesab Courts. In normal course for malpractice or concealment of wealth or its filtration one can be proceeded 'under normal law of the land.
Nothing is brought on record or stated at the bar that petitioners have ever been prosecuted for such illegal activities. This is not disputed that petitioners had never remained in public office, of course they are members of a family headed by Aftab Ahmad Khan Sherpao who remained in the highest chair of political/administrative power of the Province of N.-W.F.P. Twice. The recent process of accountability carried through an extraordinary law known as National Accountability Bureau Ordinance (hereinafter to be referred as the NAB Ordinance) and its purpose has been elaborately given in its preamble which reads as under:- "An Ordinance to provide for the setting up of a National Accountability Bureau so as to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices and matters ancillary thereto; Whereas it is expedient and necessary to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse/abuse of power, misappropriation of property, kickbacks, commissions and for matters connected and ancillary or incidental thereto; And whereas there is an emergent need for the recovery of outstanding amounts from those persons who have committed default in the repayment of amounts to Banks. Financial Institutions, Government and other agencies; ' And whereas there is a grave and urgent need for the recovery of State money and other assets from those persons who have misappropriated or removed such assets through corruption, corrupt practices and misuse of power and/or authority; ' And whereas it is necessary that a National Accountability Bureau be set up so as to achieve the above aims;"
The said law can come into play against a person who has remained in political power, is or has been in public office or possessing administrative power or their associates or those who have looted the public funds or financial institutions by means of their status and power.
13. There is neither any allegation nor any cogent reason to hold that petitioners had ever been associated with the head of their family namely Aftab Ahmad Khan Sherpao in any deal. They cannot be denied their guaranteed right of freedom of movement inside the country or abroad merely on the ground that the head of their family is facing references filed by NAB in Ehtesab Court.
14. In case of Major (Rtd.) Mir Mazhar Qayyum (1999 YLR 1 1 1) where the prevention of petitioner therein froth proceeding abroad on the recommendations of Ehtesab Bureau came under discussion. The following passage is the crux of that discussion:- "The liberty of a person cannot be curtailed at the whim of the Government and for that matter functionaries of the State. Similarly, it is inalienable right of every citizen to be treated in accordance with law and since the power is to be exercised in the public interest, the functionaries of the State were obliged under the law to disclose some evidence thereby establishing that they had reasonable ground for putting the name of the petitioner on the Exit Control List. At least such an opportunity was available to them at the time of hearing of the case but it seems that they had no reasons and for that matter they did not disclose any. Simple assertion that it is because of the recommendations of the Ehtesab Bureau That the name of the petitioner has been brought on the Exit Control List cannot be countenanced in the days of democratic concepts where the State is answerable to its citizens."
15. The entry of landed properties in the name of petitioners if found conclusively by Courts of competent jurisdiction that those were ill-gotten and recorded in the names of petitioners as Benamidar, only those properties could be confiscated to State with no action against the persons of petitioner as there is no allegation against them of any corruption or corrupt practice. The liberty of petitioners could not be curtailed simply for the reasons that they are recorded owners of agriculture properties with no charge of criminal liability. This would also not be out of place to mention that despite lapse of about 13 months from issuance of impugned order no action whatsoever was taken against the petitioner any reference under the NAB Ordinance qua the properties in the name of petitioners have been tiled in the Accountability Court. It appears that the impugned order was issued by the Authorized Officer of the Federal Government to prevent them from their meeting with Aftab Ahmad Khan Sherpao abroad who has allegedly been declared proclaimed offender abroad and to reunite their family abroad. This apprehension has got no legal basis for the impugned action against the petitioners. The petitioners if claimed to be the lawful owner of the landed property recorded in their names in the Revenue Record they would never abandon to defend their title and if the property in the names of petitioners is in fact ill-gotten by means of corruption or corrupt practices by Aftab Ahmad Khan Sherpao while in the public office as Chief Minister and recorded in the names of petitioners as Benamidar the same would be confiscated subject to prevailing law of the land which includes the NAB Ordinance. Thus the aforesaid apprehension of the Federal Government is also found not justifiable for issuance of the impugned order. Pertinent to mention here that during pendency of instant writ petition some of the petitioners were allowed for a specific period to go abroad as interim relief and there is no complaint against those petitioners that they met Aftab Ahmad khan Sherpao abroad or decided to settle there with him but have come back and were present before the Court at the time of hearing of this writ petition. Except petitioner No.3 who is a house wife all other petitioners are engaged in their education as alleged in the writ petition duly supported by an affidavit with documents. Contrary to that nothing has been brought on record by the respondents that petitioners are personally required for any criminal liability. Even otherwise the learned Deputy Attorney-General and the representatives who appeared on behalf of respondents with record failed to show us any evidence to the effect that petitioners may indulge in any anti-national activities if allowed Constitutionally guaranteed right to go abroad Petitioner No.3 is suffering from some disease of backache radiating to the left leg and a responsible Medical Officer Incharge of the Neurosurgery Unit PGMI/HMC, Peshawar opined that she needs a MRI of the lumbar spine and possibly through surgical intervention which process is stated to be not available there and she was found required to proceed to USA or UK for investigation and further management.
16. The respondents in their written statement have also alleged that the head of petitioners' family namely Aftab Ahmad Khan Sherpao was convicted by Accountability Court, Peshawar and after his conviction he fled away and declared proclaimed offender. Though the said allegations have no bearing on the fate of instant writ petition but since the respondents have made a misstatement to misguide the Court a necessity are felt to discuss the same. The said Aftab Ahmad Khan Sherpao Ex-Chief Minister along with Zahir Shah, Director-General, PDA, Peshawar was tried as Accountability Case No.1 of 1999 by Accountability Court, Peshawar for committing corruption and corrupt practices in allotment of 100 plots of different sizes to various individuals in various phases of Hayat Abad Township, Peshawar. Both the accused therein faced the trial and the Judge Accountability Court arrived at the conclusion that the plots in question were allotted by Aftab Ahmad Khan Sherpao over and above his discretionary quota as Chief Minister at the reduced prices causing a loss of Rs,551,000 to the Government and thus held him guilty of corruption and corrupt practices within the mischief of section 3(1)(c) and (d) of Ehtesab Ordinance. Accordingly he was convicted under section 4 and sentenced only to pay a fine of Rs. 10,00,000 by each of the accused with a direction to deposit the same within seven days failing which the same shall be recovered in accordance with the provisions of sections 386/387, Cr.P.C. It was also ordered that till the payment the entire immovable property of the convicts shall remain attached and on the discharged of liability of payment their property shall stand released as there was no evidence led to prove that the convict has acquired any movable property or immovable property on account of offence of corruption and corrupt practices. Therefore, the property of Aftab Ahmad Khan Sherpao was not forfeited. The fine was paid under protest and the conviction was challenged through Ehtesab Appeal No,1 of 2000 which was heard by a Full Bench of this Court wherein one of us (Shah khan Khan Yousafzai, I.) was also a member. The appeal of convict appellant Aftab Ahmad Khan Sherpao was accepted and the Cross-Appeal filed by the Prosecutor-General bearing No,3 of 2000 was rejected. The conviction and fine of Rs,10,00,000 imposed on Aftab Ahmad Khan Sherpao was set aside and he was granted acquittal of the charges under sections 3/4 of the Ehtesab Ordinance, 1997. It was directed that the fine of Rs,10,00,000 be refunded to him. Since Aftab Ahmad Khan Sherpao failed to put his appearance before the full Court in his appeal against conviction he was declared proclaimed offender and perpetual warrant of arrest was issued against him on 28-3-2000 which was withdrawn as a result of granting acquittal to him.
17. Before parting with this judgment we would like to make it clear that the properties in the name of petitioners if found ill-gotten properties of the head of their family namely Aftab Ahmad Khan Sherpao could be proceeded in accordance with the provisions of NAB Ordinance and any other law having the force of law, subject to the right of a valid defence at the trial in the Court of competent jurisdiction.
18. The vires of sections 2 and 3 of the Ordinance though challenged in the writ petition but was not seriously argued at the bar, therefore, relief to that effect could not be granted being abandoned at the time of hearing.
19. In light of the above discussion we accept this writ petition, let aside the impugned order dated 14-3-2000 and allow the petitioners go abroad if they so desire and not forbidden by any other law on their own risk and cost and the proceedings against the properties in their names under the NAB Ordinance if any shall continue. No order as to costs. C.M.299 of 2001 has become infructuous.
Disposed of accordingly.