Miss NAHEED KHAN vs GOVERNMENT OF PAKISTAN and others

' MAMOON KAZI, C.J.--The petitioner's name has been placed on Exit Control List vide order passed by the respondent No,1, dated 30-4-1997. On 4-5-1997 the petitioner had accompanied Mohtarma Benazir Bhutto to Karachi Airport for travelling to New York U.S.A. By flight L.H.639 which was scheduled to leave Pakistan at 00-35 hours on 5-5-1997, but the petitioner was prohibited from travelling and it was then that the petitioner was informed by respondent No,2 that her name had been placed on Exit Control List. The petitioner has challenged such action as discriminatory and violative of the provisions of Articles 4, 9 and 15 of the Constitution.

2. So far the circumstances of the present case are concerned, no doubt, reasons were not recorded by the Federal Government for placing the petitioner's name on the Exit Control List. But in the counter-affidavit filed on behalf of the respondents it has been stated that, the name of the petitioner was placed on Exit Control List, because a reference was proposed to be made to the Chief Ehtesab Commissioner for conducting an inquiry into criminal charges against her.

Subsequently, such a reference was filed before the Ehtesab Bench at Karachi, wherein the petitioner has been charged with misappropriation of money to the tune of Rs,24,55,715, and misuse of funds amounting to Rs,3,34,95,000. F.I.R. No,26 of 1996 has also been registered against the petitioner under sections 409, 420 and 109, P.P.C., and section 5(2) of Prevention of Corruption Act, 1947. As such action was being contemplated against the petitioner, her name was placed on Exit Control List. Therefore, according to the learned Deputy Attorney-General, action has been taken against the petitioner bona fide and in public interest.

3. It has also been denied that the petitioner was not aware of such action being taken against her.

It has been pointed out that the name of the petitioner had initially been placed on Exit Control List on 7-11-1996 and again on 30-4-1992. She was, however, allowed to travel abroad on one time basis. The petitioner applied a second time on 19-4-1997 to go abroad, thus she was aware that she was on the Exit Control List.

4. The impugned order, including the name of the petitioner in the Exit Control List, was purportedly passed under section 2 of the Exit from Pakistan (Control) Ordinance, 1981. The said section provides as follows:-- "2. Power to prohibit exit from Pakistan.--(1) The Federal Government may, by order, prohibit any person or class of persons from proceeding from Pakistan to a destination outside Pakistan, notwithstanding the fact that such person is in possession of valid travel documents.

(2) Before making an order under subsection (1), it shall not be necessary to afford an opportunity of showing cause against the order.

(3) If, while making an order under subsection (1) it appears to the Federal Government that it will not be in the public interest to specify the grounds on which the order is proposed to be made, it shall not be necessary for the Federal Government to specify such grounds."

5. A plain reading of the said section indicates that the Federal Government has been empowered to prohibit by an order, any person or class of persons from proceeding from Pakistan to a destination outside Pakistan. Subsection (2) further indicates that before making an order under subsection (1) it would not be necessary to afford an opportunity to any person against whom such an order has been passed to show cause against the order. The said section further indicates that grounds on which the order is proposed to be made, may not be specified in public interest, if it so appears to the Federal Government. 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.

6. Mr. Farooq H. Naek, learned counsel for the petitioner has argued that the right of a person to liberty does not only mean a mere right to freedom, but it would also include a right of a person to travel outside Pakistan. Consequently, the entire action of the respondent was taken in violation of Articles 4, 9 and 15 of the Constitution. The first case cited by Mr. Farooq H. Naek in this behalf is the case of Ch. Zahoor Illahi v. Secretary to Government of Pakistan PLD 1975 Lah.

499. In this case it was observed by Ataullah Sajjad, J. (as he then was) as under:-- "12. The word 'liberty' does not only denote immunity of a person from incarceration, confinement, detention or restraint but also carries with it a wider meaning of a citizen following fully his course of action in matters of his private life including travel abroad. If the Constitution-givers intended to give a limited connotation to the word 'liberty' in clause (a) of sub-Article (2) of Article 4, the word 'body' would not have followed the word 'liberty'. Article 9 of the Constitution is headed 'Security of person' and says that no person shall be deprived of life and liberty save in accordance with law.

The presumption is that the Constitution-giving body ordinarily uses the same word at various places in the same sense. The word 'security' according to dictionary meanings, means the 'thing that guards and guarantees' The heading of this Article, therefore, does not circumscribe its operation to the safeguarding of the personal liberty from illegal attacks in a limited physical sense but on the other hand ensure the liberty of a person in the same large sense in which it is mentioned in Article 4. The American Supreme Court found by a majority in Kent v. Dulles 357 US 116 = 2L Ed. 1204 that travelling abroad was a part of the liberty of a citizen and right of exit was a personal right covered by the word 'liberty'. In my view, travelling abroad is a part of the personal liberty of a citizen and in the absence of a law imposing reasonable restrictions, he has a right to leave the country and re-enter it.

7. Reliance has also been placed by the learned counsel upon Abdul Hafiz Pirzada v. Government of Pakistan 1989 CLC 79. In this case it was held that although right to liberty, guaranteed under Article 9 of the Constitution could be restricted by law, however. Such law would be open to challenge, if it has imposed unreasonable restrictions. It was further held that the Government was obliged to furnish grounds of prohibition to the aggrieved person. While referring to Article 9 of the Constitution, the Court observed that even if a citizen had a right of free movement but such right could be subject to any reasonable restrictions. In Government of Pakistan v. Dada Amir Haider Khan PLD 1987 SC 504, no reasons were assigned by the concerned authorities to indicate why the applicant could not be issued a passport and such order was struck down as not a proper order by the High Court. The judgment of the High Court was upheld by the Supreme Court. Reliance was also placed by Mr. Farooq Naek on the case of M. Younus Malik v. State Bank of Pakistan PLD 1981 Lah. 181, but in this case also the question decided by the Court related to a citizen's right to obtain a passport for travelling abroad.

Article 4 of the Constitution upon which Mr. Farooq Naek has relied, provides that "to enjoy protection of law and to be treated in accordance with law is the inalienable right of every citizen".

It further provides that, "no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law". Similar right has been guaranteed by Article 9 of the Constitution, as according to the same. No person shall be deprived of life or liberty save in accordance with law. Article 15 of the Constitution also guarantees freedom of movement throughout Pakistan. However, such right is subject to any reasonable restrictions that may be imposed by law in the public interest. There is no controversy in regard to the fact that under Exit From Pakistan (Control) Ordinance, 1981 freedom of a person to-proceed abroad can be restricted, if it is found to be in public interest. The Preamble to the Ordinance itself suggests that the object behind the Ordinance was to provide for control on exit of certain persons from Pakistan. Although the expression. "public interest" has not been defined in law, but in Ashiq Ali Bhutto v. President Summary Military Court PLD 1979 Kar. 814 it was observed that, although, it was not possible to lay down any yardstick by which "public interest" could be measured, but it was a matter which could be left to the subjective satisfaction of the authority concerned.

9. Reference to the cases cited on behalf of the petitioner no doubt indicates that the Federal Government while placing the name of any person on Exit Control List is obliged to state grounds for the same, but grounds have now been furnished in the counter-affidavit which has been filed on behalf of the respondents. As was indicated earlier, restrictions can be placed on the movement of a person from Pakistan to a destination out side Pakistan in public interest, but as was held by the Supreme Court in Dada Amir Haider Khan's case, such action must be based on reasonable grounds. (see page No,509 of the report.) None of the cases referred by Mr. Naek indicates that the action taken therein by the respondents was reasonable. Therefore, the action was struck down. In the present case, it can be clearly spelt out that if permission had been granted to the petitioner to leave Pakistan, the Ehtesab process which was proposed to be initiated against the petitioner could be delayed. Therefore, it cannot be said that the action taken against the petitioner in the present case was either unreasonable or that the same was not in public interest. No doubt, the grounds for placing the petitioner's name on Exist Control List were not supplied to the petitioner, but nevertheless if there was any technical flaw, in the impugned action, no real prejudice was caused to the petitioner because the petitioner could yet have applied for a review, after she had been informed about placing of her name on Exit Control List. However, the impugned action neither being unreasonable nor in violation of any fundamental right and the same being taken in public interest, is not liable to be struck down merely for the reason that grounds for the same had not been supplied to the petitioner. Therefore, the petition has no force.

10. In the result, the petition is dismissed. There will, however, be no order as to costs.