Abdul Ahad VS FOP, etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P. No.3495 of 2021 Abdul Ahad Versus Federation of Pakistan and others

Date of Hearing: 21.12.2022.

Petitioner by: Mr. Khurram Jamshed Chughtai and Sheikh Yasir Ali Jawad, Advocates.

Respondents by: Syed Ahsan Raza Kazmi, learned Deputy Attorney-General along with Mr. M. Azeem Akhtar, Section Officer (ECL), Ministry of Interior and Mr. M. Waqas Rasool, Deputy Director (Law), F.I.A.

MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition, the petitioner, Abdul Ahad, seeks a direction to the Ministry of Interior to remove his name from the Exit Control List

(“E.C.L.”).

2.The petitioner’s case is that he went to Saudi Arabia to earn livelihood. While the petitioner was in Saudi Arabia, his passport expired in 2019. He claims to have applied to the Pakistani Consulate in the Saudi Arabia for the issuance of a machine readable passport. Vide letter dated 01.08.2019, the Consulate General of Pakistan at Jeddah informed the Directorate General, Immigration and Passports that the petitioner had applied for the renewal of his passport, and during the scrutiny of his documents, it was found that the petitioner’s name had been placed on the E.C.L. The Consulate General of Pakistan requested the Directorate General, Immigration and Passports to advise whether passport facilities could be extended to the petitioner.

3.While the petitioner was abroad, he filed writ petition No.2411/2020 before this Court seeking the removal of his name from E.C.L. Apparently, the position taken by the Ministry of Interior was that an emergency travel document would be issued to the petitioner subject to the completion of all codal formalities so that he could travel from Saudi Arabia to Pakistan. On

07.09.2021, the petitioner came to Pakistan by using the emergency travel document issued to him. He was initially detained at the Airport in Karachi and subsequently released. The petitioner wants to go back to Saudi Arabia to earn livelihood and for this purpose he seeks the removal of his name from the E.C.L. The written comments filed by the Directorate General, Federal Investigation Agency (“F.I.A.”) shows that the petitioner’s name had been placed on the E.C.L. on the recommendations of the “Security Agencies.” In the written comments filed on behalf of Directorate General, Immigration and Passports, it has been pleaded that the placement and removal of an individual’s name from the E.C.L. is the sole prerogative of the Federal Government.

4.On 28.04.2022, the learned Assistant Attorney-General drew the attention of the Court to the para-wise comments filed on behalf of the Ministry of Interior and submitted that the petitioner’s case for the removal of his name from E.C.L. is likely to be considered in the next meeting of the Cabinet Sub- Committee on E.C.L. This Court gave a period of three weeks to the said Committee to decide the petitioner’s case. On 13.12.2022, the Section Officer from the Ministry of Interior tendered appearance before this Court and submitted that in the last meeting of the Cabinet Sub-Committee on E.C.L. held on 21.07.2022, the petitioner’s request for the removal of his name from the E.C.L. was considered but since the Ministry of Interior could not form contact with the petitioner or his counsel, a decision could not be taken. He further submitted that the next meeting of the Cabinet Sub-Committee was scheduled to be held on 14.12.2022. This Court ordered for the outcome of the meeting of the said Committee to be intimated to this Court on the next date of hearing. Today, the Section Officer from the Ministry of Interior tendered appearance and submitted that since the petitioner’s accent in Pashto language could not be comprehended, therefore, a decision on his request for the removal of his name from the E.C.L. could not be taken.

5.Memorandum dated 18.02.2015 issued by the Ministry of Interior shows that the names of number of persons, including that of the petitioner had been placed on the E.C.L. “on the recommendation of a security agency due to their involvement in miscreant activities inside Pakistan.” What miscreant activity the petitioner indulged in is not borne out from the record. The written comments filed by respondent No.3 show that the petitioner came to Karachi from Jeddah on 07.09.2021. There is nothing on the record to show that ever since the allegation of miscreant activities was made against the petitioner in the year 2015 any criminal complaint or criminal prosecution had been initiated against him.

6.To prevent a man from leaving the country or from entering it is akin to imposing a physical restraint on his person. It is to deprive him of a personal liberty. Freedom to travel, both within and outside the confines of the territory of the State, raises important issues of personal freedom. The right of free movement whether within the country or across its frontiers, either in going out or in coming in, is a personal liberty within the meaning of Article 9 of the Constitution, which says, “No person shall be deprived of life or liberty save in accordance with law.” Freedom of movement is said to be the essence of personal liberty. A citizen cannot be deprived of his right to travel abroad except according to the procedure established by law.

7.In order to place the name of a citizen of Pakistan on the E.C.L. and thereby deprive him of his fundamental right of travelling abroad, the order for the placement of his name on the E.C.L. ought to be a reasoned order. Even if a recommendation is made by a security agency to place the name of a citizen of Pakistan on E.C.L., such recommendation ought to contain specific grounds for such placement. The Ministry of Interior is expected to apply its mind before passing an order to curtail a citizen’s fundamental right and is not expected to mechanically act on the recommendations of any organization for the placement of a citizen’s name on the E.C.L.

8.Since in the case at hand, the essential requirements of due process have not been complied with by the respondents regarding the placement or the continuation of the placement of the petitioner’s name on the E.C.L., the instant writ petition is allowed and in consequence thereof, the Ministry of Interior is directed to remove his name from the E.C.L.

(MIANGUL HASSAN AURANGZEB)

JUDGE

ANNOUNCED IN AN OPEN COURT ON 26.12.2022.

(JUDGE)

Ahtesham*