In The Lahore High Court Judicial Department: Judgment
In The Lahore High Court Judicial Department: Judgment
In The Lahore High Court Judicial Department: Judgment
Judgment Sheet
IN THE LAHORE HIGH COURT
JUDICIAL DEPARTMENT
….
W.P.No.12312 of 2019
JUDGMENT
Date of hearing 26.03.2019
3. Mr. Azam Nazeer Tarar, learned counsel for the petitioner, while
reiterating the contents of petition, submitted that the petitioner is renowned
politician and at present he is Opposition Leader in the National Assembly.
Learned counsel contended that the petitioner has been victimized on the basis of
W.P.No.12312 of 2019
political rivalry. He added that initially the petitioner was arrested on 5th
October, 2018 in a matter relating to Ramzan Sugar Mills case and Aashiana
Iqbal Housing Scheme, Lahore. It is emphasized that the petitioner was,
however, released on bail by way of order dated 14th February, 2019. Learned
counsel argued that in order to frustrate the orders of this Court, name of the
petitioner was placed on “ECL” with malafide intent. Learned counsel
emphatically argued that right of movement of the petitioner is guaranteed under
the “Constitution”, which cannot be curtailed in an illegal and unlawful manner.
It is submitted that though remedy of review is available but said remedy is
neither adequate nor efficacious. In support of his contentions, learned counsel
places reliance on “The FEDERAL GOVERNMENT through Secretary Interior,
Government of Pakistan v. Ms. AYYAN ALI and others” (2017 SCMR 1179) and
“Messrs UNITED BANK LTD. v. FEDERATION OF PAKISTAN and others”
(2014 SCMR 856).
reasons for its rejection. In the cases of Ch.Zahur Ilahi (supra) and
Shahid Afzal v. Government of Pakistan PLD 1977 Lahore 117, it has
been held that a duty is cast on every Tribunal to give reasons for their
decision. The rule is that the record must show that the Tribunal did
consider the questions of law and fact arising in the case before it gave
its decision. It means that the order of the Tribunal must be a speaking
order and it should hold out that its maker was conscious of the
questions to be considered and decided and that he did apply his mind to
them. It was, therefore, held that a Tribunal empowered to pass orders
which may deprive a person of his liberty, property, status or livelihood
or impose a penalty or cause a slur on his reputation, must give its
reasons for the order. The Hon'ble Supreme Court of Pakistan has also
taken the same view in the case of Dada Amir Haider Khan (supra). In
the absence of any mention of reasons in the impugned orders, I should
legitimately take the view that there was no reason at all available with
the Federal Government to pass the impugned orders. It did not bother
even to file the written statement to the writ petition. Mere oral
assertions on behalf of the Government apart from being extraneous and
invalid are not worthy of any credit. The impugned order was passed on
14-11-1996 whereas the case F. I. R. No. 13 of 1996 was registered by
the F.I.A. Karachi, on 26-11-1996. It is not possible to take into
consideration the subsequent F.I.R. for the purpose of examining the
validity of the impugned order dated 14-11-1996. Moreover, the
petitioner has already been granted bail on 21-12-1996 in the said
criminal case by order of the Sindh High Court, Karachi. The liberty of
the petitioner could not be curtailed by mere registering a criminal case
for which he may or may not be criminally liable. Mere registration of
F.I.R. in a criminal case cannot be a ground for depriving a citizen of
the exercise of all fundamental and other Constitutional rights. The
registration of a criminal case has no nexus with and is extraneous to
the object of the Statute. In taking this view, I find the support from the
judgments in the cases of M. Younis Malik and A. Ghani (supra) from
the foreign jurisdiction. In Montgomery Flour and General Mills Ltd. v.
The Director, Food Purchases, West Pakistan PLD 1957 Lahore 914,
late B.Z. Kaikaus, J. said: No discretion vested in an executive officer, is
an absolute and arbitrary discretion. The discretion is vested in him for
a public purpose and must be exercised for the attainment of that
purpose. Even though there are no express words in the relevant legal
provision to that effect, the discretion is always circumscribed by the
scope and object of the law that creates it and has at the same time to be
exercised justly, fairly and reasonably--Whenever an enactment
empowers a public officer to pass orders that benefit or harm a citizen,
the citizen gets a right that, in a matter in which he is concerned an
order be passed in accordance with the law. This too is a right that can
be enforced by the Court in the exercise of its writ jurisdiction under
Article 170 of the Constitution of Pakistan, 1956". In the case of
Independent Newspapers Corporation v. Chairman, Fourth Wage Board
1993 SCMR 1533, the Hon'ble Supreme Court has held that the
expressed Statutory powers of public functionary is not to be pushed too
far as conferment implies restraint so as to exercise the same justly and
reasonably and that excessive use of lawful powers is to be unlawful. In
the case of Sh. Zahur Ilahi v. The State PLD 1977 SC 273 at page 298, it
was held that if an executive act was done with the intention to misuse
powers the same was to be set aside by the Courts.”
The above view was further reiterated in “TAYYAB HUSSAIN RIZVI and others
v. FOP and others” (PLD 2015 Lahore 353). Guidance in this respect can also
W.P.No.12312 of 2019
(3) Name of any person placed on the exit control list maintained by
the Federal Government in pursuance of an order made under
subsection (1) of section 2 of the said Ordinance and who:
(a) has proceeded from Pakistan, shall remain on such list, so long as
the said order is in force, for taking legal action against him on return
to Pakistan.
(b) is in judicial custody likely to be released on bail by a competent
court of law, shall remain on such list so long as the said order is in
force; and
(c) has been convicted by a competent court of law for any offence shall
remain on such list so long as the said order is in force and till his
conviction attains finality.
After going through the above said rule, it can safely be inferred that the
impugned memorandum was issued by invoking Sub-Rule-1 (a) and (b) of
Rule-2.
7. :
interest”, meaning thereby that such right is subject to the relevant law
which is in existence at relevant time but “an action which is mala fide
or colourable is not regarded as action in accordance with law.
Similarly, action taken upon extraneous or irrelevant considerations is
also not action in accordance with law. Therefore, action taken upon no
ground at all or without proper application of the mind of an authority
would also not qualify as an action in accordance with law and would,
therefore, have to be struck down as being taken in an unlawful
manner.” (PLD 1973 SC 49, PLD 1969 SC 14, 21 DLR [SC]1). It is well
settled by now that every citizen has an inalienable right to enjoy the
protection of law and to be treated in accordance with law and in
particular no action detrimental to the life, liberty, body reputation or
property of any person shall be taken except in accordance with law. No
action detrimental to such fundamental Rights can be initiated except in
due course of law. In this regard we are fortified by the dictum laid
down in the following authorities: -
(PLD 1990 Lah. 432 =NLR 1990 AC 812, 1990 MLD 1468= PLJ
1990 Lah. 380 = 1990 ALD 442, NLR 1990 Civ. 485, PLD 1989
Lah. 175, 1988 CLC 545 = PLJ 1988 Lah. 189 = NLR 1988 civ.
203= 1988 Law Notes 247, 1985 PCr.LJ 360)”
The principles laid down in the above referred case were followed in a latest
judgment of the Hon’ble Apex Court in the case of “HIGHER EDUCATION
COMMISSION through Project Manager v. SAJID ANWAR and others” (2012
SCMR 186). Reference in this respect can also be made to “The FEDERAL
GOVERNMENT through Secretary Interior, Government of Pakistan v. Ms.
AYYAN ALI and others” (2017 SCMR 1179) as well as “Messrs UNITED
BANK LTD. v. FEDERATION OF PAKISTAN and others” (2014 SCMR 856).
thereof he was released from jail. The inquiry in the instant matter was
authorized on 23rd October, 2018, which is still in process. We when confronted
learned Law Officer as well as learned Special Prosecutor for “NAB” as to how
much time is required for completion of the proceedings, they were unable to
give any specific time to this effect. Mere pendency of an inquiry with the
“NAB” does not provide sufficient material or justification for keeping the name
of the petitioner in the “ECL”. Apparently, no plausible reasons have been
assigned by the respondents while placing the name of petitioner on “ECL”. It
appears that the impugned order is passed in haste and in mechanical manner on
the instructions of “NAB”. In recent past, there is a consistent view of this Court
as well as learned High Courts of other provinces that mere pendency of an
inquiry or investigation would be no ground for justifying the placement of name
of an accused on “ECL”. It is well entrenched principle of law that merely
pendency of an inquiry or investigation with the “NAB” Authorities, which
seemed to be going on for a considerable long time, would not be a ground for
depriving a citizen of his constitutional right of living as a free citizen of
Pakistan. We see no reasonable ground on the basis of which petitioner could be
deprived of travelling abroad. The view formed hereinabove is further fortified
by a judgment of this Court in case of “SOHAIL LATIF and 2 others V.
FEDERATION OF PAKISTAN through Secretary, Ministry of Interior,
Government of Pakistan, Islamabad and 2 others” (PLD 2008 Lahore 341). In
“MUHAMMAD KHYZER YOUSUF DADA v. FEDERATION OF PAKISTAN
through Secretary, Ministry of Interior and 5 others” (PLD 2011 Karachi 546)
learned Sindh High Court, while dealing with the similar proposition, observed
as under: -
The above laid principles have also been adopted by the learned Peshawar High
Court in the case of “JAVED KHAN v. PAKISTAN through Secretary Interior
and 6 others” (2017 YLR 2109) wherein it is held that: -
W.P.No.12312 of 2019
13. For what has been discussed above, instant writ petition is
allowed. As a result thereof, order dated 21st February, 2019 is set aside and the
respondents are directed to remove the name of petitioner from the “ECL”
forthwith.
JUDGE JUDGE
Zeeshan.