MUNAWAR ALI. SHERAZI vs FEDERATION OF PAKISTAN through Ministry of Interior, Government of Pakistan, Islamabad and 3 others

' The petitioner is a retired Professor of Aitchison College, Lahore, he wanted to proceed abroad to attend to his ailing daughter but cannot do so as his name has been placed on Exit Control List by respondent Government. He has, therefore, challenged the placing of his name on the Exit Control List.

2. Respondents Nos.3 and 4 have filed their reply/comments wherein it is stated that the petitioner was at one time the Administrator of Aitchison College Staff Cooperative Housing Society Limited and as such Administrator was responsible for causing huge losses to the Society inasmuch as he was instrumental in purchasing land which was not purchasable under the Land Reforms Regulation/Act. It is claimed that at one time a sum of Rs.30,00,00,000 approximately was held to be due from the petitioner but this amount was later on reduced to about Rs.4,00,00,000. This order was challenged and the Secretary Cooperative Societies has remanded the case back to the Registrar. It is claimed that in these circumstances and at the behest of respondents Nos.3 & 4, respondent No.1 has placed the name of the petitioner on the Exit Control List. In the rejoinder, the assertion made in the parawise comments are denied.

3. It is asserted both by learned Deputy Attorney-General for Pakistan as well as learned counsel for respondents Nos.3 and 4 that the action taken is in public interest as huge amount may be found due against the petitioner and if he is let out of country, he is not likely to return. Reliance has been placed on the case of Miss Naheed Khan v. Government of Pakistan and another (PLD 1997 Karachi 513). The contention is sought to be negative by Mr. Amir Ali Shah, Advocate, learned counsel for the petitioner by relying on number of cases including the cases of PLD 1981 Lahore 181, Wajid Shamas-ul-Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad (PLD 1997 Lahore 617) and Government of Pakistan and another v. Dada Amir Haider Khan (PLD 1987 SC 504).

4. The Federal Government derives the power to prohibit a citizen from travelling abroad from the Exit From Pakistan (Control) Ordinance, 1981, Ordinance No, XLVI of 1981 promulgated on 31-12-1981.

Section 2 of the Ordinance states that 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. Subsection

(2) states that it shall not be necessary to afford an opportunity of showing cause against the order. In subsection (3) of section 2 the Federal Government can withhold disclosure of reasons if "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." Under section 3 a person aggrieved can file a review before the Federal Government within a period of 15 days and this review petition has to be disposed of after giving the person an opportunity of being heard. Under section 4 any person contravening any order made under subsection (1) of section 2 is liable to be punished for terms which may extend to five years. Section 5 enables the Federal Government to make rules for carrying out the purposes of the Ordinance. It is, however, stated by the Deputy Attorney-General for Pakistan that rules have not been framed so far.

5. It is clear that the Ordinance does not provide any basis or reasons or guidelines for passing the adverse order. As it is, the power to restrict a citizen from travelling abroad is unguided. As has been held in the case of Miss Naheed Khan v. Government of Pakistan and another PLD 1997 Karachi 513, "public interest" can provide the necessary guideline. However, the expression "public interest" is itself undefined and can be a subject-matter of subjective interpretation. Whether pendency of an enquiry whereby the petitioner may be held liable to pay some amount is a ground covered by expression "public expression" need not be decided in this case, since it is admitted before me that so far no reason whatsoever has been communicated to the petitioner for justifying impugned action. In my view this non-communication itself is enough to justify intervention by this Court.

6. As noted, subsection (2) of section 2 excludes the right of prior hearing or an opportunity of showing cause. In subsection (3) the Federal Government can withhold disclosure of grounds which in its opinion will not be in public interest to disclose. In my view, exclusion of prior hearing or of show-cause notice does not absolve the Federal Government from stating and conveying the reason, after the action has been taken. This is necessary to enable the affected person to avail the right of review under section 3. It is common sense that without knowing the case of the Federal Government, the exercise of right of review would be rendered nugatory. After all, it is the reasons prevailing with the Federal Government which have to be met and if the reasons are not disclosed.

The petitioner has nothing to meet against. Impliedly, therefore, it is obligatory on the Federal Government to communicate the reasons in support of its action as soon as the action has been taken. Of course the Federal Government can withhold disclosure of those grounds which in its opinion would adversely affect the public interest. This also shows that all other grounds will have to be disclosed. This interpretation is logical as the right to travel is part of fundamental right of liberty and free movement laid down in Constitution which are so jealously guarded by the superior Courts.

7. Undisputedly, the reasons for placing the name of the petitioner on the Exit Control List, have not been communicated to the petitioner. This non-communication renders the impugned action as illegal and without lawful authority. I hereby declare it so. I further declare that the above action is of no legal effect. This petition is allowed without any order as to costs.

8. It is, however, clarified that this judgment will not debar fresh action against the petitioner in accordance with law.