KHAN MUHAMMAD MAHAR vs FEDERATION OF PAKISTAN

ORDER

1. Granted.

2. By this Constitutional petition, petitioner Khan Muhammad Mahar has impugned the action of respondents whereby having recourse to section 2 of Exit from Pakistan (Control) Ordinance, 1981 vide order dated 3-5-2000, his name has been placed in the Exit Control List.

2-A. Precisely, the case of the petitioner is that the respondents have no lawful justification for restricting his liberty by way of placing his name in the Exist Control List and such action on their part is in violation of his fundamental rights guaranteed under Articles 15, 18 and 25 of the Constitution. It has been stated in the petition that filing of reference by NAB before the Accountability Court or even his conviction therein cannot be considered as valid ground for retaining his name in the Exit Control List. More so, as the order or conviction passed by the Accountability Court, which is now subject-matter of a pending Accountability Appeal before this Court, has been suspended by the Hon'ble Supreme Court of Pakistan vide its order dated 3-10- 2002. Further case of the petitioner is that no reason has been assigned in the impugned order issued by the respondents for placing his name in the Exist Control List nor any reason has been communicated to him thereafter, thus, such action is not only arbitrary, unjust but also violative of fundamental rights of the petitioner.

3. Comments on behalf of respondents Nos. 1 and 2 have been filed wherein the factual assertions made by the petitioner in his petition have not been disputed. However, it has been stated that the name of the petitioner was placed in the Exit Control List by way of impugned order dated 3-5- 2000, for the reasons that at the relevant time reference/investigation was pending before the NAB Authorities against him.

4. Mr. Raja Qureshi, learned counsel for petitioner, vehemently contended that the impugned order contains no reason for enlisting the name of the petitioner in the Exit Control List. Several letters/applications addressed by the petitioner to the respondent No,1 seeking deletion of his name from the Exit Control List have remained unattended and till this date neither his name has been deleted from the Exit Control List nor any reasons has been disclosed to the petitioner in this regard. He further contended that placing of name of the petitioner in the Exit Control List without providing him any opportunity of hearing is glaring violation of principles of natural justice, section 24-A of the General Clauses Act as well as fundamental right of liberty of the petitioner guaranteed under the Constitution, thus, such arbitrary action of respondent No,1 is not sustainable in law and is liable to be struck down. In support of his submissions learned counsel has placed reliance on the following cases:--

(1) Wajid Shamasul Hassan v. Federation of Pakistan through Secretary Ministry of Interior Islamabad PLD 1997 Lah.

617.

(2) Arshad Sami Khan v. Federation of Pakistan through Ministry of Interior, Islamabnad and 3 others 1998 M LD 490.

(3) Sikandar Hayat Khan and 4 others v. Government of Pakistan through Federal Secretary Ministry of Interior, Islamabad and 5 others PLD 2003 Pesh.

102.

(4) Hashmat Ali Chawala v. Federation of Pakistan and others PLD 2003 Kar.

705.

(5) Mehtab Ahmed v. Federation of Pakistan through Secretary, Government of Pakistan, Islamabad and 3 others 2003 CLC 246.

5. With reference to the submissions made by the learned counsel for the petitioner we have carefully perused the case record and seen that although the name of the petitioner was placed in.

The Exit Control List on 3-5-2000 but neither said order disclosed any reason for such action against him nor even thereafter any reason has been communicated to the petitioner in this regard. The applications of the petitioner addressed to the respondent No,1 also did not receive any response even to the extent of communicating him the reason for placing his name in the Exit Control List. In the cases referred by the learned counsel for petitioner, precisely, it has been held by the superior Courts that liberty or every citizen of this country is safeguarded/guaranteed under Articles 4, 9, 14 and 15 of the Constitution, thus, it is to be jealously safeguarded and any action without sufficient cause depriving/curtailing the liberty of a citizen is not warranted by law and liable to be struck down. Further it has been held that an arbitrary action wider section 2 of the Exit from Pakistan (Control) Ordinance, 1981, is not immune from scrutiny by this Court in exercise of its powers under Article 199 of the Constitution.

6. In the instant case after going through the whole material placed on record we are clear in our mind that the action of the respondents in placing the name of the petitioner in the Exit Control List is wholly, arbitrary, unjust, without any valid reason and violative of his fundamental rights.

7. Learned counsel for respondents has not been able to controvert this position from the record therefore his mere word for opposing this petition will not serve any purpose.

8. For the foregoing reasons order dated 3-5-2000 placing the name of the petitioner in the Exit Control List is declared to be illegal without lawful authority and of no legal effect.

9. Petition stands disposed of accordingly.