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Pervez Musharraf (Petitioner)

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1 [C.P. No. D-2072 of 2014] IN THE HIGH COURT OF SINDH, KARACHI C.P. No. D-2072 of 2014 Present: Mr.Justice Muhammad Ali Mazhar Mr.Justice Shahnawaz Tariq General (Retd.) Pervez Musharraf….………….Petitioner versus Pakistan & others……..……………………….Respondents Date of hearings: 7th, 13th, 20th & 29th May, 2014 Dr.Muhammad Farogh Naseem, Ms.Pooja Kalpana, Munawar Hussain, Obaid-ur-Rehman Khan, Nasir Latif, Irfan Aziz and Arsalan Wahid Advocates for the petitioner. Mr.Salman Butt, Attorney General for Pakistan, Khawaja Saeed-uz-Zaman, Additional Attorney General & Mr.Ainuddin Khan, Deputy Attorney General. Moulvi Iqbal Haider, Advocate. (Intervener). Mr.S.Irfan Ali Additional Director FIA & Ch. Mubarak Ali, Joint Secretary, Ministry of Interior. ------------------------ 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 2 [C.P. No. D-2072 of 2014] be implemented forthwith by the respondents and all functionaries superior or sub-ordinate 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. 9682/2014, filed by the petitioner under Order 39 Rule 1 & 2 C.P.C. M.A NO.11212/2014, 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. 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 Application 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 3 [C.P. No. D-2072 of 2014] 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 preempt 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.2255/2010 & Constitution Petition Nos.14,16 and 18/2013 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 respondent 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 4 [C.P. No. D-2072 of 2014] 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 3.7.13, reported in 2013 SCMR 1683. In this regard, he contended that the order of the Hon'ble Supreme Court dated 8.4.13 was only an interim order and the said directions were not retained in the final order dated 3.7.13 which was passed on the undertaking submitted by the Attorney General on 26.6.13. 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 finally dispose 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 263/2013 rejected the present Petitioner's contention of taking 5 [C.P. No. D-2072 of 2014] 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 263/2013. 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. 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 l0-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. 6 [C.P. No. D-2072 of 2014] 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 i.e. 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 31.3.14 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.
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