Mirza MUHAMMAD IQBAL BAIG vs FEDERATION OF PAKISTAN and otherss

' KHAWAJA MUHAMAD SHARIF, J.---Through this constitutional petition, following prayer was made by the petitioner:- "It is, therefore, respectfully prayed that this Honourable Court may be pleased to issue an appropriate writ declaring that the placing of petitioner's name on Exit Control List and the refusal of respondent No,1 from deleting his name from the said list is illegal and without lawful authority and further that the respondents Nos.2 to 4 have no lawful authority to stop the petitioner from travelling abroad on visa merely on the basis of petitioner's name being placed on ECL."

2. Learned counsel for the, petitioner, in support of this writ petition, submits that mere registration of criminal cases or their pendency is no bar on the travel of the petitioner and to keep his name on the Exit Control List; that neither the Prohibition (Enforcement of Hadd) Order IV of 1979 nor the Control of Narcotic Substances Act, 1997 create any bar on the petitioner's travel outside the country; that both the cases are pending trial without any progress for the last ten years and that placement of petitioner's name on the Exit Control List is not tenable in law. In support of the above submissions, learned counsel for the petitioner has placed reliance on Wajid Shamsul Hassan v.

Federation of Pakistan' through Secretary Ministry of Interior, Islamabad (PLD 1997 Lahore 617).

' Learned counsel for the petitioner, while advancing his arguments, contends that it was liability of about rupees one crore against the petitioner, as alleged; that the petitioner was one of the Directors of the said company; that in spite of the fact that the litigation was pending before the Honourable Supreme Court of Pakistan, petitioner has paid rupees eighty six lacs to the concerned Department; that reply R.1 is on the record; that the person of the petitioner is not required; that the offence, if any, is proved against the petitioner, the Government can recover the money in question from the property which is worth of crores of rupees situated at Empress Road, Lahore in case the case is finally decided against the petitioner by the last forum.

3. On' the other hand, the learned Deputy Attorney-General for Pakistan Mr. Yawar Ali Khan submits that a divergent view has been taken by the Sindh High Court, Karachi in Miss Naheed Khan v.

Government of Pakistan and others (PLD 1997 Karachi 513) to contend that ".... Section 3 of the Ordinance provides for a right of review within 15 days of making of the order under section 2 by providing a right to an aggrieved person to make a representation to the Federal Government setting out in the representation the grounds on which he seeks the review".

4. I have heard learned counsel for the parties, have also given consideration to the submissions made at the bar and the relevant case-law.

5. This matter is pending betore this Court for the last about six years and could not be disposed of due to non-availability of either learned counsel for the petitioner or the Federal Government.

6. So far as recovery of amount is concerned, contention of the learned counsel for the petitioner that if ultimately the case is proved against the petitioner by the final authorities, the same can be realized by the Government from the property of the petitioner situated at Empress Road, Lahore, has force. As far as involvement of the petitioner in the criminal cases is concerned, those are pending for the last about ten years without any progress. Even there is no bar contained either in the Prohibition (Enforcement of Hadd) Order IV of 1979 or in the Control of Narcotic Substances Act, 1997 on petitioner's travel outside the country.

7. The question whether the right to travel abroad is part of the fundamental right of liberty has engaged the attention of the apex Court of the country. In Government of Pakistan and another v.

Dada Amir Haider Khan (PLD 1987 Supreme Court 504), at page 509, it was held as under:-- "Moreover a citizen's right to travel abroad is an important aspect of the citizen's liberty and is closely related to the rights of free speech and association. As nations in the world become politically and commercially more dependent upon one and another and foreign policy decisions have come to have greater impact upon the lives of the citizens, the right to travel has become correspondingly more important. Though travel, by private citizens as well as by journalists and governmental officials, information necessary to the making of informed decisions can be obtained. And, under our constitutional system ultimate responsibility for the making of informed decisions rests in the hands of the people."

' In Wajid. Shamsul Hassan v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad (PLD 1997 Lahore 617), at page 630, it was held as under:-- "In view of the above discussion, I have no doubt in my mind that the right of a citizen to travel abroad is a fundamental right guaranteed by Articles 2A, 4, 9, 15 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. Abridgement of this fundamental right by the State through the legislative or an executive measure has to be tested on the touchstone of the constitutional provisions. The life, liberty or property of a citizen cannot be taken away or adversely affected except in accordance with law."

8. This Court has further fortified its view by a judgment of the Lahore High Court reported in Malik Mushtaq Awan v. Government of Pakistan and others (PLD 1999 Lahore 372), wherein, the question of right to go abroad and placement of petitioner's name (therein) on the Exit Control List was discussed in depth and the impugned order, whereby his name was brought on the Exit Control List, was set aside.

9. The case-law cited by the learned Deputy Attorney General of Pakistan i.e, Miss Naheed Khan v.

Government of Pakistan and others (PLD 1997 Karachi 513), is distinguishable because in the case in hand the petitioner has already availed the remedy of review which was duly replied by the Government of Pakistan, Interior Division Letter No,12/127/98- Passport dated 28th October, 1998 which is Annexure-D with this petition.

10. In view of what has been discussed above and respectfully following the dictum laid down by the august Supreme Court of Pakistan in Government of Pakistan and another v. Dada Amir Haider Khan (PLD 1987 Supreme Court 504) and by this Court in Wajid Shamsul Hassan v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad (PLD 1997 Lahore 617), this petition is allowed and the impugned action of the Government regarding placing petitioner's name on the Exit Control List is declared to have been taken without lawful authority and his name is removed from the Exit Control List.