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Petitioner: Gen. (Retd.) PERVEZ MUSHARRAF through Attorney VS Respondent: PAKISTAN through JUDGMENT
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar, Shahnawaz Tariq Title:Gen. (Retd.) PERVEZ MUSHARRAF through Attorney vs PAKISTAN through
JUDGMENT
Reported As: PLD 2014 Sindh 389 Result: Application allowed Judgment JUDGMENT ' MUHAMMAD ALI MAZHAR J.---This constitution petition is brought to claim the following relief(s):-- (a) declare the memorandum bearing No.12/74/2013-ECL dated 5-4-2013 and the letter No. ECL/12/74/2013-ECL dated 2-4-2014 to be completely without jurisdiction, unconstitutional, illegal, void ab initio and of no legal effect, while quashing the same and clarifying that the petitioner is free to travel within, without or outside Pakistan and any order of the Court is self-executory and is to be implemented forthwith by the respondents and all functionaries superior or subordinate to them. (b) Permanently and pending disposal of the main petition suspend the operation of the memorandum bearing No.12/74/2013- ECL dated 5-4-2013 and the letter No.ECL/12/74/2013-ECL dated 2-4-2014 while restraining the respondents, their officers, agents and cronies and all functionaries superior or subordinate to them from hampering, hindering and stopping the petitioner's movement within, without or outside Pakistan in any manner whatsoever, while further mandating them not to take any adverse action against the petitioner. (c) Award cost and special costs. (d) Award any other relief deemed fit. M.A., No. 9682 of 2014, filed by the petitioner under Order XXXIX, Rules 1 and 2, C.P.C. M.A No.11212 of 2014, filed by Intervener under Order 1, Rule 10, C.P.C. 2. The brief facts as narrated in the memo of petition are that while the petitioner was abroad, following criminal cases were registered against him: (a) murder of Mohtarma Benazir Bhutto. (b) murder of Mr.Akbar Bugti.
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(c) Lal Masjid episode. (d) Judges' confinement case. 3. According to the petitioner, he was falsely implicated in all above cases so he came back to Pakistan in March, 2013 with a view to clear his name in the above cases. The petitioner filed Criminal Bail Applications Nos.262 and 263 of 2013 in this court for obtaining protective bail. However, vide order dated 29-3-2013, 21 days protective bail was granted with the observation that the petitioner would not leave the country without permission from the trial courts. Meanwhile, some petitions were filed in the hon'ble Supreme Court with the prayer that criminal proceedings under Article 6 of the Constitution of Pakistan should be brought against the petitioner. To pre- empt the proceedings, the respondents issued memorandum bearing No.12/74/2013-ECL dated 5- 4-2013 whereby the name of the petitioner was placed on the ECL. On 8-4-2013, the hon'ble Supreme Court while hearing Civil Petition No.2255 of 2010 and Constitution Petitions Nos.14, 16 and 18 of 2013 was pleased to direct the Secretary Interior to make sure that if the name of the petitioner was not already on the ECL, this shall be done forthwith and a compliance report shall be submitted in the court during course of the day. 4. The respondents Nos.1 to 4 filed their comments in which it was inter alia contended that this court lacks territorial jurisdiction to entertain and adjudicate upon the instant petition which is liable to be dismissed with costs. The name of the petitioner was included in the Exit Control List (ECL) on 5-4-2013 by the Federal Government. On 8-4-2013, the hon'ble Supreme Court also issued directions to the Federal Government to place the name of the petitioner on ECL. The Federal Government on the same day informed the. Supreme Court that the petitioner's name had been placed on ECL. 5. Mr. Farogh Naseem, learned counsel for the petitioner argued that the foremost legal issue whether the order of the Hon'ble Supreme Court dated 8-4-2013 passed in the Civil Petition No. 2255 of 2010 and others still holds the field or whether the said order dated 8-4-2013 has lapsed in view of the final order of the hon'ble Supreme Court dated 3-7-2013, reported in 2013 SCMR 1683. In this regard, he contended that the order of the Hon'ble Supreme Court dated 8-4-2013 was only an interim order and the said directions were not retained in the final order dated 3-7-2013 which was passed on the undertaking submitted by the Attorney General on 26-6-2013. The text of undertaking is reproduced in the order. In para 2 of the final order, the Hon'ble Supreme Court was pleased to observe that the prayers in the petitions were effectively accepted by the Federal Government in view of the statement as aforesaid. 6. It was further averred that interim or interlocutory orders lapse upon passing of the final order/judgment. The basic test in this regard is that an order which does not finally dispose of the lis/case is only an interlocutory/interim order, whereas any order which filially disposed of the lis/case is a final order. The order of the apex Court dated 8-4-2013 did not finally dispose of the lis/petition. There is another facet in the expression of the principle that an interim order merges with the final order. The principle of merger implies that there is an absorption of the thing of lesser importance with the thing of greater importance, whereby the thing of lesser importance ceases to exist. 7. He further argued that order of another learned Division Bench of this Court dated 23-12-2013 in Criminal Bail Applications Nos.262 and 263 of 2013 rejected the present petitioner's contention of taking out his name from the ECL. The order dated 23-12-2013 only disposed of Applications seeking Review of the earlier order dated 29-3-2013 in Criminal Bail Applications 262 and 263 of 2013. The review sought was against the observation in the order dated 29-3-2013 which was to the effect that the present petitioner should not leave the country unless so permitted by the Trial Courts, therefore, the real controversy was only to that extent.
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8. The impugned memorandum, placing the present petitioner's name on the ECL dated 5-4-2013 is completely illegal, mala fide and without jurisdiction as the same does not disclose any reasons and it is also in violation of section 24-A of the General Clauses Act because the same has been issued without any prior show cause notice. It is also against Article 10-A of the Constitution. He further argued that right to travel abroad is a fundamental right enshrined under Article 15 of the Constitution which cannot be taken away unless and until the Government could show that the applicant was going abroad so as to meet the enemies of the country, which could endanger the security of the. State. It is also a settled principle of law that mere pendency of a civil or a criminal case cannot justify the placement of a person's name on the ECL. In fact Mr. Akram Sheikh, the learned Prosecutor in the Article 6 case on 31-3-2014 candidly stated before the Trial Court that the present petitioner was not being charged with disloyalty of the State but only for violation of the Constitution. 9. The learned counsel further argued that in all four criminal trials, the present petitioner is on bail. Also in the Article 6 case the surety of the present petitioner Le. Lt. Gen. (R) Rashid Qureshi has furnished security much more than the required amount of Rs.25 lacs, by furnishing his property papers. In fact in the Article 6 case, the learned Trial Court vide order dated 31-3-2014 has clearly held that the present petitioner is not being taken into custody, and there is no restriction on his movement. It was further observed in the said order that the present petitioner can go anywhere for his medical treatment or gainful activities. 10. To quote as precedent, the learned counsel referred to that the High Court of Zimbabwe permitted the international travel of two journalists i.e. Mark Chavunbuka and Ray Choto for medical treatment abroad. The Supreme Court of Philippines permitted ex-President Gloria Macapagal Arroyo and her husband to travel abroad. A Judge in Tripoli, Libya permitted a journalist i.e. Al-Khatabi to travel abroad. A law is being passed in Ukraine to permit a political rival to travel abroad for medical treatment. The Federal High Court in Lagos, Nigeria granted leave to a former governor Chimaroke Nanamani to travel abroad to attend to his medical needs. The Punjab and Haryana High Court at Chandigarh (India) permitted former Chief Minister of Punjab to travel abroad for medical treatment. Similarly, many other persons in Pakistan were permitted to go abroad. The apprehension of the respondents that if the petitioner is allowed to travel abroad, he will not return back is misconceived. 11. It was further contended that under Article 199(1) of the Constitution a writ can be issued by the High Court of a province if within its territorial jurisdiction functions are being performed by an authority in connection with the affairs of the Federation. The respondents Nos. 3 and 4 are the persons, who are present within the territorial jurisdiction of this Court and the said persons/respondents are denying the present petitioner opportunity to exit from the country from Karachi. In the Anoud Power case, it was held that the availability of territorial jurisdiction depends upon the nature of the relief which was sought. Reliance was also placed upon section 20 of C.P.C. As per Explanation 1 to section 20, C.P.C. It is clearly provided that temporary residence is deemed to be permanent residence for the purposes of territorial jurisdiction. The court will have jurisdiction if within its limits the cause of action wholly or partly arises. In all the cases of ECL, the Sindh High Court did not find any problem in exercising jurisdiction. The Federation of Pakistan exists on every inch of Pakistan, including Karachi. 12. The learned counsel also referred to Rule 2 of the Exit from Pakistan (Control) Rules, 2010 and argued that none of the grounds as per Rule 2 are mentioned in any of the two impugned orders, as such the impugned orders are extraneous to the statute and rules thereunder. In support of his arguments, he relied upon the following precedents: 1. PLD 1969 Karachi 546 (Roshan Din v. S.M.Badruddin). Interim order exhausts or becomes merged in final order made in case.
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2. AIR 1987 Madras 173 (C.Kamatchi Ammal v. Kattabomman Transport Corpn. Ltd.) "All interlocutory orders made in the course of a proceeding in the nature of a suit must necessarily lapse with the decision of the suit itself, unless, of course, the suit is one for permanent injunction and the interim injunction is made permanent as a part of the decretal order made by the Court. AIR 1985 Mad.295." Affirmed. 3. AIR 1995 Supreme Court (Delhi) 441 (Mrs.Kavita Trehan and another v. Balsara Hygiene Products Ltd.) Upon dismissal of the suit, the interlocutory order stood set aside and that whatever was done to upset the status quo, was required to be undone to the extent possible. 4. Civil Appeals Nos.1855-1856/2004. AIR 2004 SC 2093. (Shipping Corporation of India Ltd. v. Machado Brothers and others) (Manupatra-MANU/SC/0276/2004). No interlocutory order will survive after the original proceeding comes to an end. 5.AIR 2009 Supreme Court 2249 (Gauhati) (State of Assam' v. Barak Upatyaka D.U.Karmachari Sanstha). An interim order which does not finally and conclusively decide an issue cannot be a precedent. Any reasons assigned in support of such non-final interim order containing prima facie findings, are only tentative. 6. UW.P.NO.1002/2007.Madras High Court (Ramakrishnan v. Superintendent of Police and others) (ManupatraMANU/TN/ 3540/2010). It must be noted that an interim order does not survive after the final disposal of the Writ Petition and only on the strength of the interim order, the Court cannot grant any order. Further the interim order only survives till a final verdict in the main case and that by itself cannot become the final order. 7. High Court of Punjab and Haryana at Chandigarh (India). (Rakesh Kumar Garg v. Vipul Ltd.) (Manupatra-MANU/PH/ 0612/2009). The interim orders are made in the aid of the final orders that the Court may pass. An interlocutory order merges into the final order and does not survive after the final adjudication. 8. PLD 1983 Karachi 527 (Ali Muhammad Brohi v. Haji Muhammad Hashim). According to Concise Oxford Dictionary the word "interlocutory" means given in the course of legal action. A proceeding in an action is said to be interlocutory when it is incidental to the principal object of the action. 9. 1992 SCMR 613 (Abdul Qayyu m and another v. Niaz Muhammad and another). The word "interim" inter alia means one for the time being; one made in the meantime and until something is done; an interval of time between one event, process or period and another; belonging to or taking place during an interim; temporary; something done in the interim; a provisional arrangement adopted in the meanwhile; done, made, occurring etc. 10. 2006 CLC Karachi 1621 (Kashif Anwar v. Agha Khan University). Granting of temporary relief did not amount to grant of final relief as in case the suit was dismissed, the interim order would merge in the final order and no right could be claimed by plaintiff on the basis of interim order. 11. 1992 PTD 932 (Glaxo Laboratories Limited v. Inspecting Assistant Commissioner of Income Tax and others). In Corpus Juris Secundum, Volume 57, at page 1067 words `Merge' and 'Merger' have been defined as follows: The verb `to merge' has been defined as meaning to sink or disappear in something else, to be lost to view or absorbed into something else, to become absorbed or extinguished, to be combined or be swallowed up. 'Merger' is defined generally as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased, an absorption or swallowing up so as to involve a loss of identity and individuality." 12. 2009 3 AWC (Supp.) 2578SC. Supreme Court of India. (Prem Chandra Agarwal and another v. U.P. Financial Corp. And others). (Manupatra-MANU/SC/0662/2009). Since the final order has been passed by the High Court, obviously all interim orders passed by the High Court in the
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same Writ Petition, cease to exist automatically. Consequently, any direction given in the interim order dated 24-4-2004 also ceases to exist." 13. PLD 1997 Lahore 617 (Wajid Shamas-ul-Hassan v. Federation of Pakistan). The right of a citizen to travel abroad is a fundamental right guaranteed under Articles 2A, 4, 9, 15 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. Section 2 of the Exit from Pakistan (Control) Ordinance, 1981 does not provide any guidelines or reasonable classification for taking the action against a person prohibiting him from travelling abroad. 14. PLD 2005 Karachi 252 (Khan Muhammad Mahar v. Federation of Pakistan). Section 2. Constitution of Pakistan (1973). Articles 4, 9, 14, 15 and 199. Constitutional petition. Name of the petitioner though was placed in the exit control list but no reason for such action was disclosed or communicated to him. Action of Authorities in placing the name of the petitioner in the exit control list, in circumstances, was wholly arbitrary, unjust without any valid reason and violative of his fundamental rights. Order placing the name of petitioner in the exist control list was declared to be illegal, without lawful authority and of no legal effect by the High Court. 15. PLD 2006 Karachi 530 (Farrukh Niaz v. Federal Government of Pakistan). No reason was assigned by the Authorities, for placing name of the petitioner on Exit Control List, nor notice or intimation was served upon him. High Court in exercise of constitutional jurisdiction, directed the authorities to remove name of petitioner from Exist Control List. 16. 2006 YLR 2797 (Mirza Muhammad Iqbal Baig v. Federation of Pakistan and others). Right of a citizen to travel abroad is fundamental right guaranteed by Articles 2A, 4, 9, 15 and 25 of the Constitution. Abridgement of this fundamental right by the State through the Legislation or an executive measure has to be tested on the touchstone of the constitutional provisions. Life, liberty or property of a citizen cannot be taken away or adversely affected except in accordance with law. 17. 2008 YLR 1508 (Mian Munir Ahmed v. 'Federation of Pakistan and others). Name of petitioner was placed in the Exit Control List on the ground that certain criminal and civil cases were pending against him. Validity. Mere pendency of civil/criminal cases against a citizen was no ground to deny him fundamental right of freedom to travel within or outside Pakistan. 18. PLD 2010 Karachi 394 (Farooq Saleh Chohan and others v. Government of Pakistan and others). Exit from Pakistan (Control) Ordinance, 1981 being an extraordinary legislation had put fetter on fundamental constitutional right and freedom of a person to travel abroad. Non- providing copy of such restraint order would be violative of Articles 4, 10-A and 15 of the Constitution. High Court set aside impugned restraint order in circumstances. 19. PLD 2010 Lahore 230 (Mian Ayaz Anwar v. Federation of Pakistan and others). Not to furnish reason for decision violates principles of fairness, procedural propriety and natural justice besides Section 24-A of General Clauses Act, 1897. The element of "public interest" appears for the first time in subsection (3) of section 2 which simply states that the Federal Government will not specify the grounds on which the order prohibiting a person from going outside Pakistan has been passed if it is not in the public interest to do so. 20. PLD 2011 Karachi 546 (Muhammad Khyzer Yousuf Dada v. Federation of Pakistan). Section 2. Constitution of Pakistan, Article 199. Merely on the ground that there was apprehension that the petitioner could flee from Pakistan was not a ground for depriving him from exercising his fundamental right of travelling freely. Impugned memorandum putting the name of the petitioner on Exit Control List, was set aside. 21. 2012 SCMR 186 (Higher Education Commission v. Sajid Anwar and others). In absence of any restriction imposed by law as it had been envisaged under Articles 14 and 15 of the Constitution, the Authorities had acted illegally and denied constitutional rights of respondents.
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22. 2014 SCMR 856 (M/s.United Bank Ltd. v. Federation of Pakistan and others). Placing name of Director of a company on Exit Control List during pendency of recovery suit against company before the Banking Court. No appropriate order had been passed by the Banking Court regarding liability of Director and the matter was still pending so much so that leave to defend application filed by Director had not been disposed of. On perusal of the memorandum, we have reached to the conclusion that the order has been passed in a mechanical manner by the Ministry of Interior without applying its mind and without giving any reason for such decision. This is a bald order and is hit by section 24A of the General Clauses Act, 1897 and cannot be sustained. 23. PLD 1968 SC 387 (Asghar Hussain v. The Election Commission of Pakistan and others). The Election Commission is "a person" or "authority" which exercises in the Province of East Pakistan functions in connection with the affairs of the Centre, namely, elections to the office of the President, National Assembly and the Provincial Assemblies and for holding a referendum as provided for in the Constitution. In that the Commission is subject to the jurisdiction of the High Court under Article 98 (2)(a)(i) notwithstanding that its main office and Secretariat are located in the Province of West Pakistan. 24. PLD 1976 Peshawar 66 (Muhammad Aslam Khan and others v. Federal Land Commission). Article 199. Writ of prohibition. Jurisdiction. Federal Land Commission though located out of jurisdiction of High Court yet desiring to perform some function in area falling within territorial jurisdiction of such High Court. Functions thus desired to be performed held, amenable to jurisdiction of High Court. 25. 1985 SCMR 758 (M/s. Al-Iblagh Limited, Lahore v. The Copyright Board, Karachi and others). Article 199. Copyright Board having been set up by Central Government for whole of Pakistan performs functions in relation to affairs of Federation in all provinces. Any order passed by such Board or proceedings taken by it in relation to any person in any of four provinces of country would give High Court of Province, in whose territory order would affect such a person, jurisdiction to hear case. 26. 1995 CLC 1027 (Ghulam Haider Badini and others v. Government of Pakistan through Ministry of Information and Broadcasting, Islamabad and another) Article 199 of the Constitution. Pakistan Television Corporation was also performing its functions in Balochistan which is an integral part of its Network. By no stretch of imagination it could be urged that since the Head Quarter of Pakistan Television Corporation was located at Islamabad, therefore, it did not come within the purview of Constitutional jurisdiction of Balochistan High Court. 27. 2000 SCMR 1703 (Trading Corporation of Pakistan (Private) Limited v. Pakistan Agro Forestry Corporation). Article 199. Relief was not only claimed against the Corporation but was also claimed against the Government of Pakistan at Islamabad. Both, Courts at Karachi as well as Rawalpindi had the jurisdiction in the matter. 28. PLD 2001 Supreme Court 340 (Anoud Power Generation Limited and others v. Federation of Pakistan and others). As far as question of jurisdiction of the High Court under section 20, C.P.C. Is concerned it depends upon the nature of the relief which has been claimed. Undoubtedly the respondent-companies have not opened letter of credits nor they were contemplating to install power projects within the territorial jurisdiction of Lahore High Court but they challenged vires of amending Notification No.584(I)/95 dated 1st July, 1995 issued by Federal Government having its offices in Islamabad which falls within the territorial jurisdiction of Lahore High Court. 29. PLD 2006 Karachi 479 (M/s. Facto Belarus Tractors Limited Karachi and another v. Federation of Pakistan). All the High Courts in Pakistan were exercising jurisdiction under Article 199 of the Constitution in respect of decisions/orders made by the Federation and authorities/ officers functioning with the affairs of Federation. Sindh, Balochistan and Peshawar High Courts therefore, had the jurisdiction. Objection was repelled in circumstances.
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13. To start with the learned Attorney General for Pakistan quoted the case of Sindh High Court Bar Association v. Federation of Pakistan reported in PLD 2009 SC 879 in which the hon'ble Supreme Court held that the Constitution cannot be held in abeyance at the will or whims of the Chief of the Army Staff and to be revived after he has achieved his objectives which amounts to subversion of the Constitution and this constitutes the offence of high treason. Learned Attorney General argued that against this judgment a review petition was filed by the petitioner which was also dismissed which shows that the judgment dated 31-7-2009 is intact. He then referred to memo of Constitution Petition No.14 of 2013 filed by Lahore High Court Bar Association in the hon'ble Supreme Court with the prayer that the Federation of Pakistan may be directed to file complaint to prosecute the General (retired) Pervez Musharraf under the High Treason (Punishment), Act, 1973_ He further referred to the hon. Ble Supreme Court consolidated order dated 8-4-2013 passed in Civil Petitions Nos.2255/2010, 14/2013, 16/2013, 17/2013 and 18/2013. While issuing notice, the Secretary Interior was directed to make sure that if the name of General (retired) Pervez Musharraf is not already on the Exit Control List, this shall be done forthwith and a compliance report of this order shall be submitted in Court during the course of the day. 14. He further argued that though this petition was finally disposed of on 3-7-2013 by the hon'ble Supreme Court as reported in 2013 SCMR 1683 but he was of the view that despite final disposal of this petition, the order passed on 8-4-2013 is still in field and it is an independent order through which directions were issued to the Federation to ensure that the petitioner should not move out of Pakistan. However, he admitted that before passing order by the hon'ble Supreme Court, the name of petitioner was put on Exit Control List vide Memorandum dated 5-4-2013. He also referred to the final order dated 3-7-2013 which was disposed of on the undertaking of the learned Attorney General. The learned Attorney General contended that since the name of the petitioner was already on E.C.L. Hence, there was no need to mention anything in the final order and in the petition…
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