ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Constitutional Petition No.D-933 of 2009
Date Order with signature of Judge
Present:
Mr. Justice Gulzar Ahmed &
Mr. Justice Irfan Saadat Khan.
Date of hearing : 08th March, 2010.
Ms. Ismat Mehdi, Advocate for the petitioner.
Mr. Mian Khan Malik, D.A.G.
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GULZAR AHMED, J.:- By this petition, petitioner has challenged the inclusion of his name in the Exit Control List in the Memorandum No.12/258/2005-ECL dated 23.12.2005 issued by Ministry of Interior, Government of Pakistan, Islamabad. The respondent Nos.1 & 3 have filed their separate comments.
Learned counsel for the petitioner has contended that by the impugned memorandum name of four persons were put on ECL on account of enquiry being conducted in respect of collapse of Margalla Towers, Islamabad. She has further contended that name of three persons namely; Mr. Sabir Pervez Chohan Ex.M.D. NESPAK, Mr. Anwar Said Ex.DG (Design) CDA and Mr. Habib Fida Ali, Architect were removed from ECL but for no reason the name of the petitioner only is being kept on ECL. She has further contended that enquiry regarding collapse of Margalla Towers was finalized and submitted to Prime Minister of Pakistan as mentioned in the letter dated 19.12.2007 of Director Buildings, Capital Development Authority but no order whatsoever against the petitioner has been passed so far. She has further contended that petitioner was associated as vetting consultant for the said Margalla Towers for a very short duration. She has contended that continuance of the name of petitioner on ECL is contrary to law and has prayed that the name of the petitioner be removed from ECL.
On the other hand, learned D.A.G. stated that there is some case against the petitioner but he will have to ascertain about the same from the respondents. He was confronted with the comments filed by the respondents 1 & 3 and admitted that in these comments there is no mentioned of any case pending against the petitioner. He has admitted that names of three persons from the impugned memorandum have been removed and only the name of petitioner exists in the said memorandum.
Petitioner’s counsel has filed a photocopy of order dated 20.5.2009 passed in Writ Petition No. 6822 of 2009 by the Lahore High Court at Lahore by which the petition filed by Mr. Sabir Pervez Chohan, Ex.M.D.NESPAK for removal of his name from the ECL was accepted.
In the case of HASHMAT ALI CHAWLA V/S FEDERATION OF PAKISTAN AND OTHERS (PLD 2003 Karachi 705) a Division Bench of this Court, of which one of us (Gulzar Ahmed, J.) was also a Member, at page 720 has observed as follows:
“ It is now well‑settled that every citizen shall have the right to remain in, enter and move freely throughout Pakistan and to reside and settle in any part thereof but this is subject to any reasonable restriction. 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. The reasons for placing the name of the petitioner was on account of his illegal construction in violation of the approved plan, which is subject to condonation/regularization under the law i.e. Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002.
We do not think this reason was a reasonable ground on which a citizen's liberty to travel abroad could be curtailed. No doubt, to travel abroad could be bared if it was shown that the petitioner was going abroad to meet the enemies of the country and his foreign visit could endanger the security of the State and was against the public interest.”
It is admitted position that so for no case against the petitioner exists. Had there been any case against the petitioner, the same would surely be mentioned in the para-wise comments, which in this respect are altogether silent. The report of enquiry was sent to the Prime Minister of Pakistan in or about 2007 but so far the respondents have not been able to place on record any material to show that any action has been ordered to be initiated against the petitioner or on that account any case of any nature has been registered against the petitioner. To keep the name of petitioner on ECL there has to be some sufficient reason as provided in law. Not a single reason is given in support of the impugned memorandum. We, therefore, find no valid reason for keeping the name of the petitioner in the impugned memorandum; more so, when the names of three persons from the said list have already been dropped. No distinguishing features of the petitioner’s case from that of three persons were pointed out to us by D.A.G. for continuance the name of petitioner on ECL.
We, therefore, declare that inclusion of name of the petitioner in the impugned memorandum to be without lawful authority and of no legal effect and quash the same. The petition in the above terms stands allowed.
After hearing the learned counsel for the parties, by a short order passed today, this petition was allowed. Above are the reasons for the same.
J U D G E
J U D G E
Aamir/PS