Judgment Sheet
IN THE HIGH COURT OF SINDHAT KARACHI
Constitutional Petition No. D – 3608 of 2011
____________________________________________________________
Date Order with signature of Judge .
Present
1. Chief Justice
2. Mr. Justice Nadeem Akhtar
1. For KatchaPeshi :
2. For hearing of Misc. No.16687/2011 :
Petitioner : Wasatullah Jaffery through
Mr. Ejaz Ali Mangi, Advocate.
Respondents No.1, 3 & 4: Ministry of Interior, Director General, FIA, and Dy. Director FIA, Immigration, Jinnah International Airport, through Mr. Muhammad Ashraf Khan Mughal, DAG.
Respondent No.2 : Director General, NAB, Sindh, through
Mr. Noor Muhammad Dayo, Addl.
Prosecutor General, NAB a/w
Mr. NadeemShaikh, Dy. Director, IW-II.
Respondent No.5 : The Managing Director, PIA, called
absent.
Date of hearing : 07.05.2013.
J U D G M E N T
NADEEM AKHTAR, J. – The petitioner has filed this Constitutional Petition against the action taken by respondents 1 to 4 by placing his name on the Exit Control List (ECL), praying that such action be declared as illegal, unwarranted and unjustified, his name be deleted from the ECL, and the respondents be directed to allow him to travel outside Pakistan.
2. The relevant facts of the case are that the Petitioner is in the service of the Government since 1980, and when this petition was filed, he was serving as an Audit Officer, Inland Revenue, in BPS-16. In the year 2011, he applied for a Hajj visa, which was granted to him, whereafter he purchased a return air ticket for the said purpose. The petitioner was scheduled to leave for Saudi Arabia on 29.10.2011 through PIA flight No.PK-1057, and was to return to Pakistan on 08.12.2011 via PIA flight No.PK-2058. On the date of his departure (29.10.2011), he reached at the Jinnah International Airport, Karachi, and after clearance from the custom authorities, he was issued the boarding pass at the check-in counter of PIA to board his flight. It is the case of the petitioner that, when he went to the immigration wing, respondent No.4 / FIA Immigration as well as PIA did not allow him to leave the country on the pretext that his name was appearing on the ECL due to some case pending before NAB at Karachi. Resultantly, a letter was issued by PIA stating that the petitioner had been offloaded.
3. The petitioner has stated that prior to the above incident, when he was working in the Refund Section of the Sales Tax Department, he along with some other officials had filed Constitutional Petition No.D-1069/2009 before this Court as he was being harassed by NAB and there was an apprehension of his arrest. At that time, an inquiry was being conducted and some arrests had been made by NAB as some custom officials had misappropriated the tax amount. In the said petition, a statement was made before this Court by NAB that NAB had not decided to file a Reference against the present petitioner ; in case they decide to do so, they will intimate the petitioner two weeks in advance ; and NAB had no intention to arrest him before filing the Reference. The said petition filed by the present petitioner was disposed of by this Court on 24.06.2009 in view of the above statement made on behalf of NAB, which was duly recorded in the Order.
4. The petitioner has averred that no Reference has ever been filed nor any case has been registered against him by NAB, and despite the above statement made by NAB before this Court and without filing any Reference against him, his name was placed on the ECL. It has been further averred that the valuable fundamental right of the petitioner to perform Hajj was blatantly violated by the respondents, which caused him severe mental torture and humiliation. In the above background, this petition was filed with the prayers mentioned above.
5. In its comment, it was alleged by respondent No.2 / NAB that the petitioner was involved in the offence of corruption and corrupt practices cognizable under Section 9-A of the National Accountability Ordinance, 1999 (the Ordinance of 1999) ; the matter was under investigation of NAB, but the petitioner did not join the investigation ; the petitioner was instrumental in causing huge loss to the national exchequer in connivance with others ; and, the petitioner wanted to flee the country under the garb of performing Hajj. It was admitted by NAB that the name of the petitioner was placed on the ECL.
6. Respondents No.3 and 4 (Director General FIA and Deputy Director General FIA Immigration) in their comments submitted that they were merely the implementing authority of the orders passed by the Ministry of Interior. A statement dated 03.04.2011 was filed by the learned DAG along with a report issued by the Ministry of Interior and a letter dated 22.03.2013 issued by NAB to the Ministry of Interior. In the said report and the letter, it was categorically admitted that the name of the petitioner was placed on the ECL by the Ministry of Interior on the recommendation of NAB. Not only this, it was also mentioned therein that the petitioner’s name be retained on the ECL till the finalization of the case against him. On a query by the Court, the Additional Prosecutor General NAB as well as the learned DAG conceded that no Reference was either filed or was pending against the petitioner, nor did the NAB take any action against the petitioner under Section 12 of the Ordinance of 1999, which gives ample powers to the Chairman NAB inter alia to freeze the properties of the accused.
7. Regarding the placement of the name of the petitioner on the ECL and prohibiting him from traveling abroad, we would like to observe that the Superior Courts, including the Hon’ble Supreme Court, have time and again disapproved such actions in strong words, and have held that such actions are violative of the fundamental rights of the citizens guaranteed by the Constitution. Some of the reported cases are briefly discussed below :
I. In the case of Government of Pakistan V/S Dada Amir Haider Khan, PLD 1987 SC 504, the Hon'ble Supreme Court was pleased to hold inter alia that the citizen’s right to travel abroad is an important aspect of the citizen’s liberty ; a discretion vested in a public authority must be exercised fairly, reasonably and in good faith ; and, when no grounds were given such an order shall not be a proper order.
II. In Habibullah Niazi V/S Federation of Pakistan through Federal Secretary, Ministry of Interior, and 2 others, PLD 2009 Karachi 243, a learned Division Bench of this Court was pleased to hold that when the criteria drawn for placing the name of a citizen of Pakistan on ECL has not been met, the placement of his name on ECL is prima facie unjustified and amounts to denial of his fundamental right guaranteed under Article 15 of the Constitution ; and, this Court has time and again observed that any arbitrary action of the Government functionaries depriving a citizen from his legitimate right cannot be sustained unless sufficient material is produced before the Court for examination to justify that such action was taken in accordance with law. In the cited case, the petition was allowed and the name of the petitioner therein was directed to be removed from the ECL.
III. In Mir Khalid Langov V/S Secretary, Ministry of Interior, Government of Pakistan, Islamabad, PLD 2007 Quetta 41, it was held by a learned Division Bench of the Balochistan High Court that on the demand of the Court, the Federal Government was legally bound to place on record material that prompted it to place the name on the ECL in order to satisfy the Court, and to show that such exercise was not colourful. It was further held that the Federal Government was under legal obligation to have at least shown the basis of its intention of exercising power under Section 2(3) of the Exit from Pakistan (Control) Ordinance, 1981, but the notification impugned in the cited case was silent about such reasons. The notification whereby the name had been placed on the ECL was declared to be bad in law, invalid, without jurisdiction, and was struck down in the cited case.
IV. In the case of Wajid Shamas-ul-Hassan V/S Federation of Pakistan, PLD 1997 Lahore 617 at 630, it was held inter alia by the learned Lahore High Court that right to travel is one of the most valued and cherished fundamental human right in all civilized societies, perhaps next only in importance to the right to life and personal liberty ; the right of a citizen to travel abroad is a fundamental right guaranteed by Articles 2-A, 4, 9, 15 and 25 of the Constitution ; abridgement of this fundamental right by the State through the legislative or an executive measure has be tested on the touchstone of the Constitutional provisions ; Section 2 o f the Exit from Pakistan (Control) Ordinance, 1981, does not provide any guidelines or reasonable classification for taking the action against a person prohibiting him from traveling abroad.
V. In Mian Ayaz Anwar V/S Federation of Pakistan, PLD 2010 Lahore 230, it was held inter alia by the learned Lahore High Court that right to travel outside country is a fundamental right and an intrinsic part of the right to liberty which is granted under Article 19 of the Constitution ; it was clear from the comments that the Ministry of Interior never applied its mind before placing the name of the petitioner in the cited case on the ECL as the impugned order was a result of the dictation from an agency / authority ; and, the discretion exercised under dictation, without reasons, was not lawful.
VI. In the case of Rafi Ahmed and another V/S Special Judge, Central, Lahore, and another, PLD 2010 Lahore 693, it was held by the learned Lahore High Court that while issuing an order under Section 2 of the Exit from Pakistan (Control) Ordinance, 1981, the Federal Government has to apply it’s own mind, the exercise must not be mechanical in nature, and must not be carried out on the mere request of an agency / authority.
8. Vide Order dated 03.11.2011 passed in this petition, the learned DAG was directed to inform the Ministry concerned that, in case this Court concludes that the discretion of placing the name of the petitioner on the ECL and offloading him was exercised in violation of the law laid down by the Superior Courts, the entire cost of de-boarding / offloading the petitioner and other expenses incurred by him, will be imposed on respondent No.1 / the Federal Government, Ministry of Interior, to be recovered from the delinquent officer. On 17.11.2011 and 10.01.2013, respondent No.1 was again put on notice by this Court, as to why cost may not be imposed on it in case the petitioner succeeds. Vide Order dated 07.03.2013, it was observed by this Court that cost of not less than Rs.100,000.00 will be imposed in case it was found that the petitioner’s name was wrongly placed on the ECL without application of mind, and in such an event, the cost will be ordered to be recovered from the personal account of the officer concerned, and not from the national exchequer. On 16.04.2013, one last opportunity was reluctantly granted by the Court to the learned DAG at his request to place the material on record showing that the petitioner’s name was not placed on the ECL in a mechanical fashion, but was placed after application of independent mind.
9. Despite all the above observations, directions and Orders by this Court, nothing has been placed on record by the respondents to substantiate that there existed any valid or justiciable ground for placing the name of the petitioner on the ECL, or for prohibiting him from traveling abroad. It is an admitted position that, without filing any Reference against the petitioner and in the absence of any case pending against him, NAB instructed the Ministry of Interior to place the name of the petitioner on the ECL, and the Ministry of Interior simply acted upon such instructions of NAB. It is also an admitted position that the petitioner was informed only verbally that he was involved in a case. The petitioner was never called upon or summoned by NAB to join any investigation. Moreover, NAB never took any action against the petitioner under Section 12 of the Ordinance of 1999, whereby the Chairman NAB had ample powers inter alia to freeze the properties of the petitioner, if at all he was involved in corruption or any corrupt practice.
10. The facts of this case and the admitted position discussed above are sufficient to establish that the name of the petitioner was placed on the ECL by the Ministry of Interior in an arbitrary and purely mechanical manner only on the instructions of NAB, without applying its own mind, without passing any speaking order, and without disclosing the basis of its intention of exercising power under Section 2(3) of the Exit from Pakistan (Control) Ordinance, 1981. Such action on the part of the Ministry of Interior, which was not done fairly, reasonably or in good faith, indeed violated not only the valuable fundamental rights of the petitioner guaranteed under Articles 4, 9 and 15 of the Constitution, but also prohibited him from performing Hajj, which is one of the five fundamental religious obligations in Islam. The actions on the part of the respondents in placing the name of the petitioner on the ECL, prohibiting him from travelling abroad, and offloading him from the Hajj flight, are, therefore, declared as arbitrary, void ab initio and without jurisdiction.
11. As noted above, respondent No.1 / Ministry of Interior was put on notice a number of times by this Court to place on record the material that prompted it to place the name of the petitioner on the ECL in order to show that such decision was not taken in a mechanical manner, but was taken fairly, reasonably, in good faith and after proper application of mind. Respondent No.1 was also put on notice that in case such material and valid justification was not produced before the Court, cost of not less than Rs.100,000.00 will be imposed, which shall be recovered from the delinquent officer. For the reasons best known to it, Respondent No.1 did not place any material before the Court despite specific directions in this behalf. The loss caused to the petitioner, especially the mental shock and emotional setback, cannot be gauged in terms of money. However, in view of the facts and circumstances of this case, we are left with no other option, but to impose cost of Rs.100,000.00 on respondent No.1 / Ministry of Interior, Government of Pakistan. The said amount shall be recovered from the delinquent officer(s) out of his / their personal account and not from the National exchequer, and shall be paid to the petitioner as compensatory cost within thirty (30) days. This is without prejudice to the right of the petitioner to claim damages against the respondents, but subject to law.
Foregoing are the reasons for the short order announced by us on 07.05.2013, whereby this petition was allowed, and the name of the petitioner was ordered to be deleted from the ECL without prejudice to any inquiry and / or proceedings that may be pending against him.
Chief Justice
Judge
*CP D-3608-11 ECL.doc/Judgments DB/Court Work/ARK*