IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No.D-3798 of 2023

C.P. No.D-3797 of 2023

Present:

Mr. Justice Naimatullah Phulpoto

Justice Mrs. Kausar Sultana Hussain

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Petitioners: Mr. Muhammad Jibran Nasir, in person in C.P. No.D-3798/2023

M/s Faisal Siddiqui & Rafique Ahmed, advocates for petitioner in C.P. No.D-3797/2023

Respondents: Mr. Pir Riaz Muhammad Shah, D.A.G. along with Inspector Liaquat Mughal & SI Kamran Sharif, FIA Immigration JIAP Karachi

Mr. Hakim Ali Shaikh, Addl: Advocate General Sindh

Date of hearing : 28.08.2023

Date of announcement : 31.08.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J. – Through this judgment we propose to decide Constitution Petitions Nos.3797/2023 and 3798/2023, instituted under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”), as they involve similar questions of law and facts.

2. Brief facts leading to the filing of C.P. No.D-3798/2023 are that petitioner Muhammad Jibran Nasir is an advocate by profession and pleads human rights cases, including enforced disappearance, fake encounter, women and children rights cases. Petitioner has also contested General Elections for National and Provisional Assemblies and is also engaged in political activities. The petitioner and his wife Mst. Mansha Pasha having valid visas of UAE and Turkey were scheduled to travel on 27.06.2023 to Dubai via Emirates Flight EK601 to spend Eid holidays with members of immediate family of the petitioners who reside there and were scheduled to travel further to Istanbul and their return to Pakistan was scheduled on 05.07.2023. It is alleged that at the Airport, petitioner and his wife, after passing their security checks successfully checked in with the Emirates Airline were issued boarding passes and then proceeded to the immigration desk where they also cleared, immigration and exit stamps were affixed to the passports of the petitioner and his wife, thereafter, they proceeded towards departure lounge. When the petitioner and his wife were proceeding to the departure lounge they were stopped by FIA Immigration personnel, namely, Ahsan Khan, who called out the names of the petitioner and his wife. It is stated that at that time Ahsan Khan was talking on mobile with someone. Apparently, he was receiving instructions to stop the petitioner and his wife. Thereafter, Ahsan Khan took the passports of the petitioner and his wife and readout the names of both petitioner and his wife to whom he was talking on the phone. Thereafter, Ahsan Khan took the petitioner and his wife’s passports and boarding passes with him while instructed the petitioner and his wife to be seated outside his office behind the immigration desk at the Airport. The petitioner and his wife were made to sit between the immigration desk and the passage leading to the departure lounge like suspects. Petitioner and his wife inquired from Mr. Ahsan Khan and other FIA personnel present over there as to why they have been stopped but they could not explain. Petitioner Muhammad Jibran Nasir was under impression that there may be some unofficial restrictions placed upon him due to his human rights activism and asked the authorities that at least his wife may be allowed to travel but she was also not allowed. It is the case of the petitioner and his wife that they were offloaded from their flight on the same date along with their baggage. In this regard Airport Service Manager at JIAP, Karachi issued the Form having No.213 to the petitioner and his wife mentioning the reasons of offloading to be “immigration” and “offloaded” stamps where the exit stamps have been affixed before on the passports. The petitioner and his wife have claimed that such act of the respondents was illegal and unconstitutional as both petitioners had incurred a no show fine of USD 240 each on their tickets. In para 14 of the petition, petitioner Muhammad Jibran Nasir had referred earlier episode to the Court that on 01.06.2023 he was abducted from his car on gunpoint by 10/15 armed persons in presence of his wife and his wife was also harassed and FIR of the incident was lodged by her vide Crime No.238/2023 at Police Station Clifton, Karachi, final report has been submitted by the police under “A” class. Petitioners have mentioned that a legal notice dated 10.07.2023 was issued to the respondents, inquiring the justification of their actions to restrain the petitioner and his wife from leaving the country to which the respondents have yet not responded. Petitioner Muhammad Jibran Nasir has prayed for the following reliefs:

1. Declare that the act of the Respondents, their agents/subordinates/ employees, in willfully offloading the Petitioner and thereby restraining the Petitioner to board their flight EK 601 and travel abroad is illegal, unlawful and unconstitutional.

2. Permanently and during pendency of this Petition, Restrain the Respondents from disallowing/stopping the Petitioner from exiting Pakistan and travelling abroad and creating any hindrance in such travel except in accordance with law.

3. Direct an Inquiry against all those employees of Respondent No.5 who unlawfully restrained the Petitioner and his wife from boarding their flight without reasonable cause or justification.

4. Direct the Respondents to issue a letter in the name of the Petitioner vide the concerned authority admitting that the act of offloading him from Flight EK601 on 27.06.2023 was unlawful so that the Petitioner may have same for easy reference if facing any query or explanation regarding the offloading incident while applying for visa for seeking entry in another country.

5. Direct the Respondents to recompense the Petitioner against all charges/fines/penalties imposed on the Petitioner while seeking refund of his and his wife's Ticket No. EKETKT 176 9243769402 and EK/ETKT 176 9243769403 as per Emirates travel policy.

6. Direct the Respondents to pay general damages of Rs.1,000,000 (Rs. One Million) to the Petitioner for causing him and his wife mental agony, harassment, ridicule and embarrassment in public.

7. Direct the Respondents to pay Rs.1,000,000 (Rs. One Million) to the Petitioner under exemplary/punitive damages for infringing his and his wife's fundamental constitutional rights and freedoms.

8. Any other relief which this Honorable Court may deem fit and proper.

Mst. Mansha Pasha wife of petitioner Mr. Muhammad Jibran Nasir has separately filed Constitution Petition No.D-3797/2023 on same set of circumstances.

3. Notices were issued against the respondents as well as D.A.G. Comments are filed on behalf of respondents 1 and 3 in which it is mentioned that respondents 1 and 3 have been unnecessarily impleaded as parties. The names of the petitioners Muhammad Jibran Nasir and his wife Mst. Mansha Pasha have not been placed on E.C.L. and passport of petitioner Muhammad Jibran Nasir is valid upto 08.06.2033 whereas passport of petitioner Mst. Mansha Pasha is valid upto 28.06.2027. However, D.A.G. placed on record a copy of letter dated 23.06.2023 issued by Director General, ISI to the Deputy Director, FIA, JIAP, Karachi, showing that the names of the petitioners have been placed on watch list.

4. Petitioner Muhammad Jibran Nasir argued that he is an advocate of this Court and pleads human rights cases including enforced disappearances; that the petitioner has also contested general elections for National and Provincial Assemblies and is also engaged in political activities; that he was restrained along with his wife by the respondents from travelling abroad on the ground that his name was on the Watch List. It is submitted that his names has been placed on Watch List without inquiry and without issuance of show cause notice; that the petitioner has served a legal notice on FIA, no response has been received which, according to the petitioner, makes it clear that the respondents have no material against the petitioner.

5. Mr. Faisal Siddiqui, learned counsel for petitioner Mst. Mansha Pasha argued that the name of petitioner Mst. Mansha Pasha was placed on Watch List as she is wife of Muhammad Jibran Nasir; that the spouse cannot be restrained from travelling abroad simply because the State has any dispute with the husband. It is further submitted that the Constitution of Islamic Republic of Pakistan, 1973, protects the fundamental rights of the petitioner under Articles 4, 9, 10A, 14, 15 and 18 of the Constitution and fundamental rights of the petitioners have been violated by the respondents. It is also argued that the right of the citizen to travel abroad is a fundamental right and abridgement thereto be tested on the touchstone of the constitution provisions. Lastly argued that name of petitioner was placed on Watch List without issuance of show cause notice and without incriminating material. In support of contentions, reliance is placed on the following cases:

1. 2012 SCMR 186 High Education Commission vs Sajid Anwar & Others

2. 2014 SCMR 856 M/s United Bank Ltd. Vs. Federation of Pakistan and Others

3. 2017 SCMR 1179 Federal Government through Secretary Interior vs. Ms. Ayyan Ali and others

4. PLD 2013 Sindh 389 Gen. (Retd.) Pervez Musharaf through Attorney vs. Pakistan through Secretary Interior & Others

5. PLD 1999 Karachi 177 Saleem Akhtar vs. Federation of Pakistan & Others

6. 2022 PLD 119 Lahore Farah Mazhar & 3 Others vs. Federation of Pakistan & 2 Others

6. D.A.G. argued that the respondents 1 and 3 have been unnecessarily impleaded as parties in the captioned petitions; that the names of the petitioners are not placed on ECL and passports of the petitioners are valid. Learned D.A.G. submitted that the names of the petitioners have been placed on Watch List on the basis of letter of Director General ISI dated 23.06.2023, addressed to the Deputy Director, FIA Immigration, JIAP, Karachi. However, D.A.G. failed to produce any incriminating material against the petitioners, on basis of which the names of the petitioners were placed on Watch List.

7. Under the law to prohibit any person from leaving Pakistan must be exercised by means of an order which should be communicated to the affected person(s) as soon as the order is passed. This means that if any order is passed but the same is not communicated to the person concerned, it would be a case of arbitrary exercise of power if the order is kept secret only to surprise the person later the moment he is leaving the country. It appears that the phrase "Watch List" is a mere euphemism for Exit Control List as in either case the FIA exercises its authority to ensure that the person in question does not leave the country. Since the placement of a person on the Watch List or Exit Control List curtails the freedom of movement of a citizen, it is settled law that a person cannot be placed in the said list unless, a show-cause notice, and an opportunity of hearing is provided to him before the adverse action is taken against him/her. So far as the facts of the present cases are concerned, inclusion of petitioners’ names in the Watch List was done secretively as the petitioners were never served with any notice that their names were included in the Watch List let alone providing them an opportunity of hearing before placing them in the Watch List. On these grounds alone, the acts of the Ministry of Interior/FIA culminating in the off-loading of the petitioners, who are husband and wife, from the plane was without lawful authority.

8. While considering the question of inclusion or retaining the names of the petitioners on the Watch List, thereby restricting their freedom of moment, the Court could not lose sight of the fact that under Article 15 of the Constitution freedom of movement was one of the fundamental rights guaranteed to every citizen of the Country, which could not be abridged or denied arbitrarily on mere liking of disliking, without any lawful justification for such purpose.

9. In the case of Federation of Pakistan through Secretary, Ministry of Interior vs. General Pervez Musharraf & Others (PLD 2016 Supreme Court 570) it is held as under:

“12. Apart from the above discussion, considering the question of inclusion or retaining the name of respondent No.1 in the ECL, thereby restricting his freedom of movement, we also cannot lose sight of the fact that under Article 15 of the Constitution freedom of movement is one of the fundamental rights guaranteed to every citizen of the Country, which cannot be abridged or denied arbitrarily on mere liking or disliking, without any lawful justification for this purpose. More so, when Article 4 of the Constitution further guarantees right to every individual, to be dealt with in accordance with law. It will be pertinent to mention here that in the shape of Exit from Pakistan (Control) Ordinance, 1981, read with Exit from Pakistan (Control), Rules, 2010, a complete mechanism is provided for the situation, which needs to restrict the movement of any person from going abroad, where there is lawful and valid justification for this purpose.

But in the instant cases, admittedly, the names of the petitioners were not on E.C.L. but were on Watch List without providing fair opportunity of hearing to the petitioners.

10. We have examined letter dated 23.06.2023, issued by the Director General ISI to the Deputy Director Immigration, FIA, JIAP, Karachi which shows that the names and particulars of the petitioners were placed on Watch List for immediate information to the office of the FIA. In the said letter reasons are not assigned as to why the names of the petitioners have been placed on Watch List. Particulars of the individuals or petitioners that in which inquiry/matter they are required and cannot travel abroad are also not mentioned. Admittedly, the names of the petitioners are not on E.C.L. D.A.G. has also failed to produce any material or show cause notice issued against the petitioners for placing their names on Watch List. We have no hesitation to hold that the petitioner had right to travel abroad and it was their fundamental right guaranteed under Article 15 of the Constitution of Islamic Republic of Pakistan, 1973 and abridgement thereto was to be tested on touchstone of the constitutional provisions.

11. In the view of above, letter dated 23.06.2023, issued by the Director General ISI to the Deputy Director Immigration FIA, JIAP, Karachi is declared to have been issued without any lawful authority and of no legal effect.

12. For the foregoing reasons, we hold that the impugned letter dated 23.06.2023/actions on the part of the Federal Government prohibiting the petitioners from proceeding abroad by placing their names on the Watch List were without lawful authority and of no legal effect. Consequently, it is ordered that the petitioners shall be allowed to proceed abroad without any obstruction or hindrance by the Federal Government or any of its agencies or authorities.

13. Both petitions are disposed of in the above terms.

J U D G E

Gulsher/PS