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Official Citation: 2025 IHC 239686
Court / Jurisdiction: Islamabad High Court
Parties: Abdul Qadir vs FOP etc.
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2025 IHC 239686. In this matter between Abdul Qadir and FOP etc., the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Islamabad High Court (Honourable Mr. Justice Babar Sattar) AUTHOR JUDGE: Honourable Mr. Justice Babar Sattar DECISION DATE: 26-AUG-2025 CASE NO: Writ Petition-834-2025 CITATION: 2025 IHC 239686 PARTIES: Abdul Qadir VS FOP etc. LAW / SECTION: - SUBJECT: Miscelleneous, Other REMARKS: Seeks removal of name from ECL, PCL and/or PNIL ============================================================ Form No: HCJD/C-121 ORDER SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD JUDICIAL DEPARTMENT Writ Petition No. 834/2025
Abdul Qadir Versus Federation of Pakistan through Cabinet Secretary & others
Petitioners By: Mr. Rehan Kayani and Barrister M. Usama Rauf, Advocates.
Respondents By: Mr. Fahad Khan Tareen, Assistant Attorney General. Mr. Hafiz Ahsaan Ahmed Khokhar, Advocate for FBR. Mr. Moazzam Habib, Advocate alongwith respondent No.3. Malik Abdur Rehman, State Counsel. Mr. Nawaz Khan, Director (Poli cy), Directorate General of Immigration & Passports, Islamabad. Mr. Muhammad Azeem Khan, Section Officer (ECL) M inistry of Interior, Islamabad. Mr. Muhammad Riaz , Assistant Director (Legal), FIA
DATE OF HEARING: 26.08.2025. ======================================= BABAR SATTAR, J. – The petitioner is aggrieved by placement of his name on the Exit Control List (“ECL”), on the Passport Control List (“PCL”) and on the Provisional National Identification List (“PNIL”). 2. The learned counsel for the petitio ner submitted that according to respondent No.4 the name of the petitioner has been placed on the aforementioned lists on the recommendation of respondent No.5. He submitted that the petitioner has been implicated in two cases of sales tax fraud. However, in both of the cases by orders dated 08.08.2024 and 17.10.2024 the petitioner has been acquitted. He submitted that notwithstanding the fact that no appeal has been filed or that criminal charges Writ Petition No. 834/2025 2
are otherwise pending adjudication against the petitioner, i t is settled law that merely on the basis of allegations of a criminal offence committed by a person, his name cannot be placed on the ECL. He submitted that the manner in which the petitioner‟s name has been placed on the aforementioned lists is tantamoun t to a colourable exercise of authority by the respondents. 3. The learned counsel for the petitioner argued that the right to travel into and out of Pakistan was a subset of personal liberty and to restrain exit or entry from the country was to impose a r estraint on the liberty of the person. The curtailment of movement under Articles 4, 9, 10-A, 15 and 25 must satisfy due process, be preceded by notice and reasons and reflect a demonstrable application of mind manifested in a speaking order as required by section 24 -A of the General Clauses Act . He submitted that placement of a citizen‟s name on the ECL was a power vested in the Federal Government (i.e. the Cabinet), and could not be exercised by Secretary Interior Division or another officer of the Federa l Government. Orders lacking Cabinet sanction were coram non judice and liable to be set aside . He submitted that the PCL regime could not be triggered unless and until passport facilities were lawfully refused through penal action under the Passports Act, 1974 (“Passport Act”) and the Passport Rules, 2021 (“Passport Rules”), and only the Federal Government could take such action after affording a citizen due process. T he Directorate General, Immigration and Passport, could not, suo motu , place names of cit izens on the PCL. He argued that the PNIL had no statutory parentage and rested only on an FIA Standing Order (No.02/2018) , issued in breach of the guarantee of Article 15 of the Constitution . Placement on the Writ Petition No. 834/2025 3
PNIL without a written order or application of mind constituted exercise of unfettered discretion, antithetical to rule of law. 4. The learned counsel for the petitioner, while relying on tax-jurisprudence, argued that mere allegations of tax default did not justify placement of fetter s on the petitio ner‟s right to travel. Absent determination of tax liability by an independent adjudicatory forum, branding a citizen a “defaulter” was unlawful. The case built by the Tax Department was against a separate juristic person (i.e., M.D. Industries (Pvt.) Ltd. ), and in such matter , injunctive relief had been granted by the ATIR remains against the demand generated and thus the recommendation to stop the petitioner from travel lacked legal footing. He argued that , the State could not suspend fundamental rights on a presumption of guilt. He submitted that the Directorate General of Immigration and Passport (“DG I&P”) had rubber -stamped the recommendations of the tax department to place the petitioner‟s name on the PCL without inquiry, which amounted to abdication of discretion and violated Articles 4, 10-A and 15 of the Constitution as well as section 24 - A of the General Clauses Act. He submitted that the High Court, in constitutional jurisdiction, was duty -bound to enforce fundamental rights and must grant effecti ve ancillary relief to do complete justice even when not expressly prayed for. He prayed that the placement of the petitioner‟s name on all stop -lists (ECL/PCL/PNIL) be annulled and his right to unhindered travel be restored. 5. Upon conclusion of hearings, the learned counsel for the petitioner also made written submissions. Appended along with such submissions was a judgment of the Appellate Tribunal Writ Petition No. 834/2025 4
Inland Revenue (“ATIR”) dated 05.08.2025, pursuant to which the ATIR had considered the appeal filed by MD Industries (Private) Limited against the tax demand generated for the tax period December 2021 to January 2024. It is on the basis of the tax liability of MD Industries (Private) Limited for the aforementioned period that a charge of tax fraud was brought against the petitioner, on which basis his name was placed on the ECL, the PCL and PNIL. The ATIR, in its judgment, held that, “we are of the considered opinion that the assessing officer has failed to establish any involvement of the applicant in tax fraud…” The learned counsel for the petitioner accordingly contended through his submissions that the foundational basis for bringing a charge of tax fraud against the petitioner no longer existed in view of the findings of the ATIR. 6. The learned Assistant Attorney General submitted that the name of the petitioner was placed on the ECL on the recommendation of the Federal Board of Revenue (“FBR”). He took the Court through the relevant statutory framework through which names were placed on the ECL and argued that the vires of any Rules had not been challenged in the instant petition. He contended that a citizen whose name was placed in the ECL had the remedy of filing an appropriate representation before the Federal Government. He submitted that the name of t he petitioner was recommended to be placed on the ECL after Secretary Revenue Division had approved such recommendation, as the petitioner was deemed a tax defaulter being a Director of MD Industries Private Limited. Such recommendation was made through letter dated 29.11.2024 and suffered from no illegality. Writ Petition No. 834/2025 5
7. The learned counsel for the FBR submitted that the petitioner was the D irector of MD Industries Private Limited. Proceedings were initiated against MD Industries Private Limited by RTO Quetta in exe rcise of authority under Section 11 (E) of the Sales Tax Act , 1990 (“ Sales Tax Act ”) and the tax department came to the conclusion that MD Industries Private Limited had illegally claimed sales tax input on the basis of fake and flying invoices. Consequentl y, it was recommended that the name of the petitioner be placed on the ECL pursuant to rule 2(d) of the Exit from Pakistan (Control) Rules, 2010 (“Exit Control Rules”), which provided for placement of the name of an individual on the ECL if he was the D irector of a firm in default of tax or liabilities in the amount of Rs.10 million or more. He submitted that MD Industries Private Limited had challenged the demand before the Balochistan High Court and the petition was dismissed by order dated 08.04.2025. He further submitted that the recommendation for placement of the petitioner's name on the ECL was initiated by the FBR and endorsed by the Ministry of Interior. On 18.01.2025 the Federal Cabinet approved the placement of such name on the ECL. Consequently, the reason for placement of the petitioner's name on the ECL and the process adopted for doing so was in accordance with the law . He further submitted that it was very infrequent that the power to recommend the placement of a tax defaulter‟s name on the ECL was exercised by FBR , and there were only two cases in which such power had been exercised in the year 2025. 8. The learned counsel, appearing on behalf of the Federal Investigation Agency (FIA), submitted that the name of the Writ Petition No. 834/2025 6
petitioner was placed on the PCL and the ECL on the recommendation of the FBR. FIA was an implementing agency in such matters and was vested neither with the power to place somebody‟s name on the ECL or the PCL nor with the power to remove a name placed on the ECL , as such power was vested in the Federal Government and fe ll within the domain of the Ministry of Interior. 9. Let us first consider the jurisprudence on the manner in which the right of a citizen to liberty and freedom of travel can be interfere d with before we consider th e facts of the instant case. There are at least five aspects of administrative and constitutional law that are relevant for our present purposes. The first relates to the manner in which discretion is to be exercised by the executive organ of the State, es pecially in relation to fundamental rights. It was held by the Lahore High Court in Montgomery Floor and General Mills Ltd. v. The Director, Food Purchase (PLD 1957 Lahore 914) that, “no discretion vested in an executive officer is an absolute and arbitrar y discretion. The discretion is vested for public purpose and must be exercised for the attainment of that purpose.” 10. In Zahur Ilahi v. The State (PLD 1977 Supreme Court 273) the Supreme Court emphasized that where an executive action was taken with the intent of misusing powers, the act would be struck down by the Court. The law on exercise of discretionary authority as a trust has further evolved since 1977 and it is now a settled principle that discretion must not only be structured but must also be e xercised in a just, fair and reasonable manner through a reasoned order in pursuit of the Writ Petition No. 834/2025 7
object of the statutory instrument, pursuant of which it is being exercised. 11. Within the domain of constitutional law, it was held by the Supreme Court in Farooq A hmed Khan Laghari v. Federation of Pakistan (PLD 1999 Supreme Court 57) that, “all efforts should be made to preserve and enlarge the scope of the Fundamental Rights while interpreting Constitutional provisions.” In the context of the right of a citizen to freedom of movement, it was held by the Supreme Court in Pakistan Muslim League (N) v. Federation of Pakistan (PLD 2007 Supreme Court 642) (when President Pervez Musharraf's government was seeking to prohibit Mian Nawaz Sharif, former Prime Minister of Pa kistan, from returning to Pakistan from exile), that fundamental rights place a constraint on both executive and legislative organs of the State and that a citizen's right to freedom of movement, especially when being exercised to return to the country fro m abroad, cannot be fettered. The Supreme Court in this case endorsed the concept of limited powers of the government where action by State authorities can only be taken within the four corners of the law empowering them to take such action and further tha t the action must be in pursuit of the objects of the statutory instrument under which power is being exercised. The Supreme Court held that in a case where the State was seen as restricting the fundamental rights of a citizen, the constitutional courts wo uld exercise strict scrutiny while subjecting such action to judicial review. Thus, within the domain of administrative and constitutional law, the exercise of discretionary authority, when impinging upon the fundamental rights of a citizen, is to be subje cted to strict Writ Petition No. 834/2025 8
scrutiny. And during such judicial review, it is for the state to satisfy a constitutional court that the exercise of discretionary authority was just, fair and reasonable and the impugned actions were a product of due process in pursuit of the objects of the law under which discretion was vested in the executive. 12. The Supreme Court considered the refusal of issuance of a passport to a citizen in the case of Government of Pakistan v. Dada Amir Haider Khan (PLD 1987 Supreme Court 504). It held that the refusal to issue a passport fell afoul Articles 4, 9 and 15 of the Constitution as the Constitution guaranteed, “the liberty to go abroad and to re -enter Pakistan unless he is precluded from doing so under some law made in the public interest …to travel abroad could be barred if it was shown that the applicant was going abroad to meet the enemies of the country and his foreign visit could endanger the security of the State or was against the public interest…”. 13. The right of a citizen to due process and to be heard forms a part of our constitutional jurisdiction. Such rights to natural justice have always been given effect by courts while interpreting statutory requirements and the said rights now form part of the fundamental rights of citizen s guaranteed by Article 10-A of the Constitution 1. How the right to due process is to be upheld and how the fundamental rights of citizens are not to be interfered with except in accordance with law in a manner that is least restrictive for the adjournment of such rights has been detailed in various judgments that have been reproduced in Dr. Shireen M. Mazari v. Federation of Pakistan (2024 MLD
1 Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457) , Chairman, NAB v. Nasar Ullah (PLD 2022 SC 497) , Federation of Pakistan v. E -movers Pvt. Ltd. (2022 SCMR 1021), CIR v. M/s Rose Food Industries (2023 SCMR 2070) Writ Petition No. 834/2025 9
1020) and need not be recapitulated here. What flows from the discussion above is that no one‟s name can be placed on PCL without the Federal Government or an officer authorized by the Federal Government in terms of section 8 of the Passport Act having passed a reasoned order that the passport of the petitioner is liable to be impounded, confiscated, cancelled or inactivated in terms of Rule 23 of the Passport Rules. Where such order has been passed without issuing the show cause notice to a citizen and affording him an opportunity to defend himself the action would fall foul of the requirements of section 8 of the Pas sport Act 2 read together with section 24A of the General Clauses Act, 1897, and Article 10 -A of the Constitution. The order for placement of a citizen on the PCL cannot be issued in a mechanical fashion without recording reasons and stating the grounds app licable to the circumstances of the citizen in terms of Rule 23(6) read with Rule 21 of the Passport Rules. Unless a penal order directing that the passport of a citizen be impounded, confiscated, cancelled or inactivated is passed while identifying the re levant grounds that mandate that the citizen‟s right to liberty and travel ought to be interfered with in accordance with law, such order would not be sustainable in the eyes of law. It is only where an order finding that a citizen‟s passport is liable to be impounded, confiscated, cancelled or inactivated has been so passed that can the relevant Division of the Federal Government and the Directorate General, Immigration and Passport discharge their ministerial function of placing the name of such individua l on the PCL in terms of Rule 22(2) of the Passport Rules.
2 Shabana Noor Ahmed v. D.G. Immigration and Passport (PLD 2019 Sindh 456) Writ Petition No. 834/2025 10
14. The second area within which jurisprudence has been produced in relation to the right to liberty and freedom of movement flows from the first aspect highlighted above and relates to substantive and procedural due process. In terms of Section 24-A of the General Clauses Act, all executive authorities are under an obligation to exercise authority in a just, fair and reasonable manner while documenting the reasons for exercise of authority. A reaso ned order is therefore a sine-qua-non for exercise of discretion, especially when it impinges on the fundamental rights of a citizen. The substance of the reasons then forms part of the inquiry undertaken by a Court while exercising judicial review powers, whereby the Court can satisfy itself that the reasons are just and proportionate to the legitimate State interest being pursued by executive authorities to pursue the objects of the law under which such authority is being exercised. The other aspect of du e process rights is the antiquated doctrine of natural justice. Every citizen has a right to be heard before any action is taken by the state that curtails his rights and liberties. The principles of natural justice have always been read into statutory ins truments and executive authorities have been required to uphold such principles imperative for enjoyment of fundamental rights guaranteed to the citizens by the Constitution. Notwithstanding settled law that such principles of natural justice were to be re ad into every statute, the legislature in its wisdom enacted Article 10A of the Constitution to give the right of due process constitutional standing. Much of the case law where citizens have challenged actions of the State curtailing their right to libert y and freedom of movement highlights the obligation of the State to uphold the due process Writ Petition No. 834/2025 11
right of citizens and the actions of placing citizens on ECL or NFL etc. have been struck down where the same had been passed without affording the affected citizen the right to be heard or otherwise in a mechanical fashion without recording valid reasons for such penal action. 15. The scheme of the Passport Act and the Passport Rules as discussed above makes it abundantly clear that a reasoned order declaring that th e passport of a citizen is liable to be impounded, confiscated, cancelled or inactivated is a precondition to the placement of a citizen‟s name on the PCL. No citizen can arbitrarily be prevented from exercising his fundamental right to liberty and his fun damental right to travel freely guaranteed by Articles 9 and 15 of the Constitution 3. Where such right is being curtailed, the same has to be done in accordance with law, and the penal action restricting the exercise of such fundamental rights is to be exe rcised in a manner that is least restrictive to such fundamental right 4. This constitutional scheme also underscores why it is imperative that a reasoned order be passed declaring that the passport of a citizen is liable to be impounded or confiscated or c ancelled or inactivated before the Federal Government seeks to interfere with the right of such citizen to liberty and/or to travel freely by placing the citizen‟s name in the PCL. The other commonsensible reason for why an order in terms of Rule 23 of the Passport Rules must precede the placement of a citizen‟s name on the PCL is that without such an order, the immigration officers or the officers within the DG I&P would have no basis to determine
3 PML(N) v. Fed. o f Pakistan (Ibid), Sheikh S han Ilahi v. Fed. Of Pakistan (PLD 2023 Lahore 359), Tabish Badar v. Ministry of Interior (2023 CLC 1457) 4 Sabir Iqbal v. Cantonment Board (PLD 2019 SC 189), Shehryar Afridi v. Fed. Of Pakistan (W.P. No.2491 of 2023 IHC) Writ Petition No. 834/2025 12
whose name is to be placed in the PCL. The various grounds for refusing the issuance of a passport mentioned in Rule 21 of the Passport Rules also reflect that there is need for the Federal Government to pass judgment in relation to a citizen that one of the grounds mentioned in Rule 21 of the Passport Rules is applicable to the citizen -in-question. In Rule 23(5) of the Passport Rules, where the Head of a Pakistan Mission abroad exercises its authority to impound the passport in terms of Rule 23(4) of the Passport Rules, the matter is to be forwarded to the Director General or the Additional Secretary of the Ministry of Foreign Affairs to consider whether the passport is to be confiscated, cancelled or inactivated, which determination is in turn to be made keeping in view the grounds mentioned in Rule 23(6) of the P assport Rules. The application of the grounds mentioned in Rule 23(6) or those mentioned in Rule 21 of the Passport Rules requires adjudication. And for purposes of such adjudication an appropriate notice is to be issued to the citizen - in-question in terms of section 8 of the Passport Act read together with Article 10 -A of the Constitution. And it is after the adjudicatory process that penal action can be taken in terms of impounding, cancelling, confiscating or inactivation of a passport of a citizen throu gh a reasoned order, after which the name of such citizen can be placed in the PCL depending on whether such order places the citizen in category „A‟ or category „B‟ listed under Rule 22(2)(a) and (b) respectively. 16. A seminal case where upholding the ri ght to liberty, freedom of movement and the prohibition against suspending such fundamental rights on the basis that a criminal case or inquiry was pending against the citizen came up in Wajid Writ Petition No. 834/2025 13
Shamas-ul-Hassan v. Federation of Pakistan (PLD 1997 Lahore 617), in which the Lahore High Court held that section 2 of EPC Ordinance provides no reasonable classification or guidance as to how discretion is to be exercised. It was held that, “if no reasons are assigned to an aggrieved person the remedy of review unde r section 3 of the [Exit from Pakistan Control Ordinance, 1981] by making a representation becomes redundant. A citizen would not be in a position to make any effective representation in the absence of any reason or speaking order…right of a citizen to tra vel abroad is a fundamental right guaranteed by Articles 2A, 4, 9, 15 and 25 of the Constitution…” In the said case, a criminal charge had been framed against the petitioner and he had been granted bail by the Sindh High Court, the Lahore High Court theref ore held that, “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 exer cise of all fundamental and other Constitutional rights.” 17. The law laid down in Wajid Shamas -ul-Hassan remains good law and was endorsed by the Supreme Court in Federal Government v. Miss Ayan Ali (2017 SCMR 1179) in which it was emphasized that, “registration of a criminal case has no nexus with and is extraneous to the object of the Exit from Pakistan (Control) Ordinance, 1981.”. Similarly, the Lahore High Court in Mian Ayaz Anwar v. The Federation (PLD 2010 Lahore 230) counseled that the right of freedom to travel in and out of the country had been…
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