The National Accountability Bureau (NAB) has said that the government may take any decision on its discretion with respect to removal of Nawaz Sharif's from exit control list (ECL) but it should evolve a mechanism to ensure that if Sharif is permitted to travel abroad, he will make himself available if and when required by the concerned forums.
According to final recommendations of the cabinet sub-committee on ECL headed by Federal Minister for Law and Justice Farogh Naseem, the NAB through a letter stated that the government may take any decision on its discretion as it was fully empowered under the law to do so after fulfilling all the legal and codal formalities. In the said letter NAB has clearly stated "that the government may exercise its discretion in a judicious manner keeping in view the humanitarian grounds, the law, specially the ECL Ordinance, the Prison Rules, etc, in which NAB has no statutory role to play."
However, in para 3 of the said letter the NAB has stated "that the federal government [may] evolve a mechanism to ensure that if Nawaz Sharif is permitted to travel abroad, he will make himself available, if and when required by the concerned forums". In view of the contents of para 3 of the said letter, NAB's representatives Umer Randhawa and Qamar Shehzad Phaphra were confronted by the sub-committee as to what "specific mechanism" would be available to the government to ensure Nawaz Sharif's return to Pakistan after his successful medical treatment. The latter conceded that there was no mechanism except that an indemnity bond may be secured and that only a one-time permission be given. The NAB representatives were directed by the sub-committee to submit a clarificatory reply. In their reply, the NAB authorities have stated that "as per the media source/reports, the proposed mechanism stipulated by the government for dealing with the ECL issue of the Nawaz Sharif is most appropriate and workable." In the media on 12.11.2019 it was widely broadcast that the federal government is agreeable to a one-time permission to Nawaz Sharif for four weeks, subject to him or Shehbaz Sharif submitting an indemnity bond of the amounts determined by accountability courts. This being so, the NAB authorities appear to be agreeable to latter.
The recommendation says that in the case of Rauf B Kadri vs FOP 2007 YLR 560 a learned Division Bench of the Sindh High Court was pleased to grant a one-time permission to a convicted person to perform Umrah. So it is incorrect to suggest that a one-time permission to travel abroad cannot be given to a convicted person.
It says that the law on ECL has very ably been laid down by Aamer Farooq J, while sitting in a Division Bench of the Islamabad High Court in Dr. Joseph Wilson vs FOP 2017 PCrLJ 1569. In this case at PP.1583 and 1584B the Court was pleased to hold that mere pendency of a criminal case/proceedings, including proceedings before an Accountability Court (without an order or a request from the Court for the curtailment of an accused's freedom to travel abroad) is not considered a sufficient ground to place a citizen's name on ECL. It was further observed, in this case, that each case was to be examined on its own merits, according to the obtaining peculiar facts. This means that the totality of facts is to be considered in deciding ECL cases.
In matters of Exit Control, there exist two independent jurisdictions. Firstly, the Courts ceased of the criminal cases have the jurisdiction to regulate the custody of the accused and secondly, it is the federal government which has the jurisdiction in terms of the ECL Law and Rules i.e. the Exit from Pakistan (Control) Ordinance 1981 (hereafter: "the 1981 Ordinance") read with the Exit from Pakistan (Control) Rules, 2010 (hereafter: "the 2010 Rules"). The availability of independent jurisdictions in the context of Exit Control has been fully endorsed by a larger bench of the Supreme Court comprising five learned Judges in FOP vs Pervez Musharraf PLD 2016 SC 570 wherein at P. 578 it has been observed as follows:-
"In due course, all matters relating to the custody of an accused, restricting his liberty or freedom of movement are to be dealt with by the Courts ceased of the criminal cases against him or by the Federal Government in terms of the Exit from Pakistan (Control) Ordinance, 1981 and the rules framed thereunder."
The existence of these two independent jurisdictions is again noted by the Supreme Court in the same judgment at pp.579 and 580, the relevant excerpt reading as follows:-
"It will be pertinent to mention here that in the shape of Exit from Pakistan (Control) Ordinance, 1981, read with Exit from Pakistan (Control), Rules, 2010, a complete mechanism is provided for the situation, which needs to restrict the movement of any person from going abroad, where there is lawful and valid justification for this purpose. But in the instant matter such option has not been exercised as yet by the Federal Government upon independent application of mind to the case of respondent No.1 or by the Special Court constituted under Article 6 of the Constitution or the other Courts of law where respondent No.1 is facing proceedings relating to different criminal cases registered against him."
While exercising the jurisdiction under the Exit Control Laws if the federal government errs, the same is subject to correction by way of judicial review by the court but in doing so the courts have exercised due caution. In this regard one can usefully cite another judgment from Aamer Farooq J in Muhammad Idrees vs Colonel Joseph Emmanuel PLD 2018 Islamabad 355 wherein it was held that the Courts encourage and direct the Federal Government to take a reasoned decision upon a due application of mind before exercising its jurisdiction of judicial review. The relevant portion of the judgment at p.371D reads as follows:-
"32. The courts generally refrain from entering the domain of Executive and take decisions on its behalf. In exercise of jurisdiction under Article 199 of the Constitution, the courts can examine the validity of executive decision on touchstone of accepted parameters. Though under the Rules of 2010, the Federal Government can place the name of any person on Exit Control List on the orders of a High Court, however, since the matter is already pending before the competent authority i.e. the Federal Government, hence, it just and proper that the issue of placement of name of respondent No.1 be decided by it. Respondent No.6 is, therefore, directed to decide the application for placement of name of respondent No.1 on ECL in accordance with law, especially in light of observations made hereinabove expeditiously preferably within a period of two weeks from the date of this order. The compliance of this order shall be intimated to Deputy Registrar (Judicial) of this Court. In case, the needful is not done as directed, or the petitioners are, in any way, aggrieved of decision, they may seek appropriate remedy. The compliance of this order shall be intimated to Deputy Registrar (Judicial) of this Court. In case, the needful is not done as directed, or the petitioners are, in any way, aggrieved of decision, they may seek appropriate remedy."
The Islamabad High Court in WP No.2839/2018 suspended the sentence of the trial court in the Avenfield Apartments case; while the Islamabad High Court also in WP No.3716/2019 granted bail/suspended the sentence on medical grounds for a period of six weeks; and the Lahore High Court in WP No.63511/2019 granted bail to Nawaz Sharif on medical grounds in the Chaudhry Sugar Mills case. But in none of these orders the learned Islamabad High Court or the Lahore High Court has annulled, set aside or modified the order whereby Nawaz Sharif's name was placed on the ECL. And it is for this very reason that the Applicant has moved the subject application, seeking removal of Nawaz Sharif's name from the ECL. If the two exit control jurisdictions were not independent, there would have been no need for the applicant to have moved the subject application in the first place.
Having looked into the medical record this sub-committee is of the considered view that Nawaz Sharif may be permitted to pursue medical treatment abroad, subject to his own cost and risk. "However, we are mindful that in terms of rule 3(c) of 2010 Rules a person who has been convicted by a court of law for any offence shall remain on the ECL so long as the said order of placing him on ECL is in force and till his conviction attains finality." The convictions of Nawaz Sharif have not attained finality. Therefore, the federal government is not in a position to lift the name of Nawaz Sharif from the ECL but having said so, looking to the gravity of his medical condition and the past practice of the government, he could be granted a one-time permission, which does not amount to lifting his name from the ECL.
The instant application is essentially an application of review within the meaning of section 3 of 1981 Ordinance; and according to section 3(2) of the said Ordinance the federal government can pass any order as deemed fit. There is nothing in the law or the rules which prohibit any conditionalities which may be attached to the grant of a one-time permission. As held in the Dr Joseph case (cited supra) the totality of facts has to be seen. In the Al-Azizia Reference Nawaz Sharif has been saddled with a financial liability of Rs 1.5 billion and US $25 million, respectively, while in the Avenfield reference the financial burden on him is £8 million. These convictions have been suspended by way of interim orders only. In other words, the finality in these matters has yet to be reached. This is not a matter where criminal trials have not been finalized but rather there are convictions which have been handed down by the courts of competent jurisdiction. It would thus be both just and germane if the federal government imposes certain conditions to the grant of the one-time permission for four weeks.
There is nothing in the 1981 Ordinance or the 2010 Rules which prohibits the imposition of conditions such as the execution of an indemnity bond. It is a settled principle of law whatever is not prohibited is deemed to be permitted. If there is any authority needed for this proposition one may look into the judgment of the Supreme Court reported as Islamia University vs Muhammad Hameed Bhatti 2004 SCMR 649 at P.655D. It may not be out of place to state that in the past also the federal government/Ministry of Interior, while granting one-time permissions to travel abroad, has imposed conditionalities such as execution of bonds. And such practice has been duly accepted or recorded in a judgment of the Lahore High Court reported as Jehangir Badar vs Federation 2004 PCrLJ 1285, the relevant extract wherefrom at p.1287 reads as follows:-
"There is thus no question of passing of any contradictory order. If the petitioner has such a pious desire to go for Umra in the days, left for the Holy month of Ramazan, he deserves to be granted permission for that purpose subject to undertaking by him to return. There are numerous instances where either the Government itself has granted permissions to persons on the Exit Control List of the Court by making orders subject to certain conditions, (as mentioned in the preceding paragraph). When enquired. The learned counsel for the petitioner has stated that 15 days' would be enough for the performance of Umra. I am, therefore, inclined to grant him one time permission to go abroad i.e. the Holy cities of Mecca and Medina, for a period of 15 days subject to his furnishing bond in the sum of Rs.2,00,000 to the satisfaction of the Deputy Registrar (Judicial) of this Court ensuring and undertaking his return to the Country. The respondent will facilitate the due documentation for this purpose."
Accordingly, in the facts and circumstances of the case if the cabinet deems fit it may grant a one-time permission to Nawaz Sharif for four weeks to travel abroad for his medical treatment/tests, subject to either him or the applicant submitting an indemnity bond for an amount equal to the determined liability by the trial courts mentioned above, to the satisfaction of the Additional Secretary, Ministry of Interior.
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