Placement of Name on Exit Control List

PLJ 2011 Lahore 552
[Rawalpindi Bench Rawalpindi]

Present: Asad Munir, J.

ZIA MOHYUDDIN--Petitioner

versus

ADDL. DIRECTOR (EMIGRATION FEDERAL INVESTIGATING AGENCY AIRPORT, KARACHI etc.--Respondents

W.P. No. 3273 of 2009, decided on 4.12.2009.

Exit from Pakistan (Control) Ordinance, 1981--

----S. 2(1)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Power of Federal Government to prohibit any person from proceeding abroad--Petitioner was selected and awarded a scholarship by HEC for pursuing a master degree programme in South Korean University--Agreement deed was executed between the parties--Surety bond was also executed to effect that all the expenses incurred on his education shall be repaid to HEC if after successful completion of office studies training he did not return to Pakistan and served within Pakistan for a minimum period of two years as may be directed by HEC and sough employment outside Pakistan without prior approval of HEC--Grievance in breach of agreement failed to pay him the last two month stipend US Dollar and forced him to return to Pakistan without letting him undergo the training in a South Korea which was necessary after obtaining the degree as per deed of agreement--After successful completing the degree, petitioner informed HEC about his return to Pakistan and waited for a job placement by HEC but no effort was made by HEC to find a job for him in a public sector--Petitioner challenged his inclusion in watch list for being arbitrary and violative of his fundamental rights of movement and education and also in breach of deed of agreement--Validity--Power to prohibit any person from leaving Pakistan must be exercised by means of an order which would be communicated to affected person as soon as the order was passed u/S. 2(1) of Ordinance--If any order was passed by same was not communicated to the person, it would be a case of arbitrary exercise of power if the order was kept secret only to surprise the person later the moment he was leaving the country--Held: High Court had occasion to go through the SOP issued by FIA which includes a list of person who can be kept on the watch list and stopped from leaving Pakistan--List includes drug smugglers, persons associated with terrorism or engaged in human smuggling or trafficking or travelers or deportees with fake documents, but no where does the list provide for preventing students from proceeding abroad even when they had acted in breach of their contrast with HEC or were leaving the country in breach of the condition which obliges them to stay in Pakistan for a period of time--Further held: High Court was unable to understand as to what lawful authority or lawful reason HEC had to have the name of petitioner placed in watch list which led to off-leading of the petitioner from the plane when he was on his way to South Korea--HEC as well as FIA had no lawful authority to place the petitioner in the watch list and stop him from proceeding to korea--Acts of placement of the petitioner in the watch list/E.C.L and disallowing petitioner to proceed to south korea were declared to be unlawful and without lawful authority--Respondents were directed to remove the name of petitioner from watch list and to allow him to proceed abroad without any let or hindrance and without any delay.          [Pp. 554, 555, 556 & 557] A, B, C, D, G, H & J

Watch List--

----Words and Phrases--Watch list is a mere euphemism for E.C.L. as in either case FIA exercises its authority to ensure that the person in-question does not leave the country.            [P. 556] E

Exit Control List--

----Placement of a person on watch list or E.C.L. curtails the freedom of movement of a citizen--Held: A person cannot be placed in watch list/E.C.L. unless a show-cause notice and opportunity of hearing is provided to him before the adverse action is taken against him.      [P. 556] F

Higher Education Commission--

----Agreement deed between petitioner and H.E.C.--Civil remedy of damages--In case petitioner failed to serve in Pakistan as directed by HEC for a period of two years--Money spent on the petitioner by HEC for education would become payable--Even if, it is presumed that the petitioner acted in breach of agreement with HEC the maximum that HEC could do so was to enforce the bond to recover the amount spent on him by availing the civil remedy of damages--HEC had no right or authority to take or initiate any coercive or criminal proceedings against the petitioner by arresting him and preventing him from leaving Pakistan.            [P. 557] I

Mrs. Raila Sabohi, Advocate for Petitioner.

Mr. Attiq-ur-Rehman Kiani, Advocate for (Standing Counsel).

Malik Anwar Mukhtar, Advocate for Respondent No. 3 alongwith Mr. Asif Kaleem (Project Manager).

Date of hearing: 4.12.2009.

Order

Brief facts giving rise to this petition are that the petitioner, Zia Mohyuddin vide letter dated 23.6.2006 was selected and awarded a Scholarship by Higher Education Commission, Respondent No. 3, for pursuing a Masters Degree Programme in a South Korean University. After the award of Scholarship to the petitioner, a deed of agreement dated 21.7.2006 was executed between the petitioner and Respondent No. 3.

2.  Clauses 5, 8 and 10 of the said agreement, being relevant, are reproduced below:-

5.  "During two years of Master Programme the Scholar shall not undertake employment whether paid or otherwise without approval of the HEC. After completion of MS Programme, the six months training at Korean Industries is not the subject of this clause."

8.  "after the completion of master programme (in approved filed) and on the job training in one of the leading Korean Industry. The Scholar shall serve public sector Universities/R & D Organization inPakistan for two years."

10.  "If an awardee after completion of masters programme, gets a Ph.D. Scholarship from sources other then HEC, he may do so, getting approval from HEC, subject to the undertaking given by him in writing and HEC prescribed format, that after completion of Doctorate Programme, he/she will return to Pakistan and serve any University/R & D Organization from 2 years.

3.  Simultaneously, a surety bond was also executed by the petitioner to the effect that all the expenses incurred on his education in South Korea shall be re-paid to the Higher Education Commission if after successful completion of office studies/training, he did not return to Pakistan and served within Pakistan for a minimum period of two years as may be directed by the Higher Education Commission and sought employment outside Pakistan without prior approval of Higher Education Commission.

4.  The petitioner did go to Korea for the two years Masters course but his grievance is that the Respondent No. 3 in breach of the agreement failed to pay him the last two months stipend i.e. 1400 US Dollars and forced him to return to Pakistan without letting him undergo the training in a South Korea Industry, which was necessary after obtaining the degree as per clause 5 of the deed of agreement. Aftersuccessfully  competing  the  Masters degree, in a Korean University, the petitioner informed HEC about his return to Pakistan and waited for a job placement by HEC, but no effort was made by HEC to find a job for him in a Public Sector University or R & D Organization in the country.

5.  Having found no job on his own or through Respondent No. 3, the petitioner felt frustrated till he was offered a scholarship by a South Korean University for Ph.D. in the field of Bio Medical Engineering. The petitioner joined the Ph.D. Programme in South Korea and came back to Pakistan to meet his parents but on 19.8.09 when he took the flight to return to South Korea, he was off loaded by FIA, who arrested him and put him in FIA Jail, Saddar Karachi. As it transpired later, the petitioner was off-loaded because he was put on the watch list by FIA at the behest of HEC. After getting released from FIA Jail, the petitioner requested the Chairman HEC to allow him to proceed abroad for completion of his Ph.D. but there has been no response.

6.  Through the present writ petition, the petitioner has challenged his inclusion in the Watch List for being arbitrary and violative of his fundamental rights of movement and education and also in breach of the Deed of Agreement between the parties.

7.  Learned Standing Counsel as well as Mr. Asif Kaleem (Project Manager), Malik Anwar Mukhtar (Law Officer) of HEC, have opposed the petition on the ground that the petitioner must not leave in the country as under clause 8 of the Deed of Agreement and the Surety Bond he is bound to serve in Pakistan for two years even if no job is available for him.

8.  A reference to the Exist from Pakistan (Control) Ordinance, 1981, would be necessary to see in what circumstances, the authorities have the power to stop a person from leaving the country. Section 2(1) of the Ordinance empowers the Federal Government to prohibit any person from proceeding abroad. As per list published by the Ministry of Interior, the following categories of persons can be placed in Exit Control List:--

a.         Persons involved in mass corruption and misuse of power/authority causing loss to the Government funds/property.

b.         Government employees involved in economic crime where large Government funds have been embezzled or institutional funds committed.

c.         Hardened criminals involved in acts of terrorism/conspiracy, heinous crimes and threatening natural security.

d.         Key directors of firms having tax default/liabilities of Rs. 10 Million or more.

e.         Only 2-3 Key directors of firms having more than Rs. 100 Million loan default/liabilities.

f.          Names of persons if recommended by the Registrar, High Courts/Supreme Court of Pakistan and Banking Courts only.

However, the power to prohibit any person from leaving Pakistan must be exercised by means of an order which should be communicated to the affected person as soon as the order is passed under Section 2(1) of the Ordinance. This means that if any order is passed but the same is not communicated to the person concerned, it would be a case of arbitrary exercise of power if the order is kept secret only to surprise the person later the moment he is leaving the country. It appears that the phrase "Watch List" is a mere euphemism for Exit Control List as in either case the FIA exercises its authority to ensure that the person in question does not leave the country. Since the placement of a person on the Watch List or Exist Control List curtails the freedom of movement of a citizens, it is settled law that a person cannot be placed in the said list unless, a show cause notice, and opportunity of hearing is provided to him before the adverse action is taken against him. In this regard, reference can be made 2008 CLD 1607. So far as the facts of the present case are concerned, the inclusion of the petitioner's name in the watch list was done secretively as the petitioner was never served with any notice that his name was included in the watch list let alone providing him an opportunity of hearing before placing him in the Watch List. On these grounds alone, the acts of Ministry of Interior/FIA culminating in the off loading of the petitioner from the plane is without unlawful authority.

9.  I have also had occasion to go through the SOP issued by FIA, which includes a list of persons, who can be kept on the Watch List and stopped from leaving Pakistan. The subject list includes drug smugglers, persons associated with terrorism or engaged in human smuggling or trafficking or travelers or deportees with fake documents, but no where does the list provide for preventing students from proceeding abroad even when they have acted in breach of their contract with HEC or are leaving the country in breach of the condition, which obliges them to stay in Pakistan for a certain period of time.

10.  I am unable to understand as to what lawful authority or lawful reason HEC had to have the name of the petitioner placed in the watch list which led to the off-loading of the petitioner from the plane when he was on his way to South Korea. It may be stated here that along with the Deed of Agreement, the petitioner also submitted a bond to the HEC on the prescribed performa, which was to the effect that in case the petitioner failed to serve in Pakistan as directed by HEC for a period of two years, the money spent on the petitioner by HEC for his education in Korea, would become payable. As such even if, it is presumed that the petitioner acted in breach of agreement with HEC the maximum that the HEC could do so was to enforce the bond to recover the amount spent on him by availing the civil remedy of damages. However, HEC had no right or authority to take or initiate any coercive or criminal proceedings against the petitioner by arresting him and preventing him from leaving Pakistan. It is also to be kept in view that admittedly, the petitioner could not find a job in Pakistan nor one was found for him by HEC. In the circumstances, HEC could not reasonably have any objection to let the petitioner go abroad to improve his qualifications by acquiring a Ph.D. Degree instead of sitting idle in Pakistan.

11. In view of the aforesaid discussion, HEC as well as Ministry of Interior/FIA had no lawful authority to place the petitioner in the watch list and stop him from proceeding to Korea. Therefore, the acts of placement of the petitioner in the Watch List/Exist Control List and disallowing the petitioner to proceed to South Korea are declared to be unlawful and without lawful authority. The respondents are directed to remove the name of the petitioner from the Watch List and to allow him to proceed abroad without any let or hindrance and without any delay.

(R.A.)  Petition allowed.