KARACHI:
The Sindh High Court on Thursday struck down former president General
(retd) Pervez Musharraf’s name from the Exit Control List (ECL),
observing that mere pendency of civil or criminal cases against a
citizen was no ground to deny him the fundamental right of travelling
within or outside the country.
However, the court suspended the operation of judgment for 15 days observing that since the court order was self-executory, therefore the respondents, if they so desire, may file an appeal with the Supreme Court.
A division bench of the court headed by Justice Mohammad Ali Mazhar observed in his detailed judgment on the former president’s petition that it was the fundamental right of a citizen to travel abroad and the abridgement of that right be tested on the touchstone of guaranteed under Article 2-A, 4, 9, 15 and 25 of the Constitution.
The court observed that no reason was communicated to the petitioner as to why his name had been placed on the ECL whereas a plethora of judgments were available in which such type of actions were considered arbitrary, unjust and violative of fundamental rights.
The court observed that it was also a well-settled law that mere pendency of civil or criminal cases against a citizen was no ground to deny him the fundamental right of traveling within or outside Pakistan. And after granting bail by the competent court the custody is regulated by such court of law, it further observed.
“Merely on apprehension that the petitioner will not return to Pakistan is no ground for depriving him of exercising his fundamental right,” the court observed in judgment.“No plea was taken that the reasons were not assigned in the public interest rather we are of the view that in the cases of high treason the public interest at large is involved to know the reasons for prosecuting the accused of high treason,” the court observed.
Brushing aside the apprehension of Attorney General for Pakistan who argued that if Musharraf was allowed to leave the country he will not return like Husain Haqqani, the court observed that the courts of the country were not helpless even in past and there were various examples in which the apex court of the country passed orders to ensure the custody of accused persons so that they may be tried such as the cases of Sharukh Jatoi and Tauqir Sadiq etc.
The court observed that the attorney general although quoted the case of Husain Haqqani, he did not point out any efforts made by the federation to ensure his presence in the country.The court observed that the petitioner was also involved in four other criminal cases in which extradition would not be denied in any treaty with any foreign country.
“If in any case, the accused has absconded, the law is not helpless but a procedure to deal with such situation is already provided under the Criminal Procedure Code and other relevant laws,” the court observed.
Regarding the Supreme Court’s interim order for placement of Musharraf’s name on the ECL, the court observed that the order containing the direction for putting the name of General (R) Pervez Musharraf on the ECL was of an interim nature which was merged in the final order and it does not survive after the final adjudication.
The court observed that the Supreme Court did not extend or continue the placement of Musharraf’s name on the ECL may be for the reasons that the federal government had already placed his name on ECL prior to the court direction on April 5, 2013.
The court observed that it was a well-settled principle that once a final order was passed, all earlier interim orders merge into the final order and the interims orders cease to exist.Attorney General for Pakistan Salman Butt had earlier argued before the court that the government could not take the risk by allowing Musharraf, who is facing high treason charges, to travel abroad unless the Supreme Court’s order regarding embargo on its traveling outside the country was modified or vacated. The AGP submitted that high treason was a political crime and once Musharraf was allowed to travel abroad he could not be brought back due to relaxed extradition laws in the other countries on such crime. He said if Musharraf moved abroad high treason proceedings would come to a standstill for an indefinite period.
Musharraf’s counsel Farogh Naseem submitted that the Special Court had not placed any restriction on the petitioner’s traveling abroad and his client should be allowed to travel abroad on medical grounds as the federal law officer had not filed any rebuttal on the medical report of the petitioner in which it stated that the petitioner had fracture in the vertebra and recommended that either surgery be performed in Dubai, North America or in Europe.
He said the attorney general himself admitted that high treason was a political crime and thus mala fide on part of the government could not be ruled out. He submitted that equal treatment may be given to every citizen either he is a petitioner or any other person while deciding the cases pertaining to restriction on traveling abroad.
Musharraf through his attorney Brigadier (R) Akhtar Zamin submitted in the petition that the federal government imposed ban on his traveling abroad on April 5, 2013 without giving any justified reason for placement of his name on the ECL.
However, the court suspended the operation of judgment for 15 days observing that since the court order was self-executory, therefore the respondents, if they so desire, may file an appeal with the Supreme Court.
A division bench of the court headed by Justice Mohammad Ali Mazhar observed in his detailed judgment on the former president’s petition that it was the fundamental right of a citizen to travel abroad and the abridgement of that right be tested on the touchstone of guaranteed under Article 2-A, 4, 9, 15 and 25 of the Constitution.
The court observed that no reason was communicated to the petitioner as to why his name had been placed on the ECL whereas a plethora of judgments were available in which such type of actions were considered arbitrary, unjust and violative of fundamental rights.
The court observed that it was also a well-settled law that mere pendency of civil or criminal cases against a citizen was no ground to deny him the fundamental right of traveling within or outside Pakistan. And after granting bail by the competent court the custody is regulated by such court of law, it further observed.
“Merely on apprehension that the petitioner will not return to Pakistan is no ground for depriving him of exercising his fundamental right,” the court observed in judgment.“No plea was taken that the reasons were not assigned in the public interest rather we are of the view that in the cases of high treason the public interest at large is involved to know the reasons for prosecuting the accused of high treason,” the court observed.
Brushing aside the apprehension of Attorney General for Pakistan who argued that if Musharraf was allowed to leave the country he will not return like Husain Haqqani, the court observed that the courts of the country were not helpless even in past and there were various examples in which the apex court of the country passed orders to ensure the custody of accused persons so that they may be tried such as the cases of Sharukh Jatoi and Tauqir Sadiq etc.
The court observed that the attorney general although quoted the case of Husain Haqqani, he did not point out any efforts made by the federation to ensure his presence in the country.The court observed that the petitioner was also involved in four other criminal cases in which extradition would not be denied in any treaty with any foreign country.
“If in any case, the accused has absconded, the law is not helpless but a procedure to deal with such situation is already provided under the Criminal Procedure Code and other relevant laws,” the court observed.
Regarding the Supreme Court’s interim order for placement of Musharraf’s name on the ECL, the court observed that the order containing the direction for putting the name of General (R) Pervez Musharraf on the ECL was of an interim nature which was merged in the final order and it does not survive after the final adjudication.
The court observed that the Supreme Court did not extend or continue the placement of Musharraf’s name on the ECL may be for the reasons that the federal government had already placed his name on ECL prior to the court direction on April 5, 2013.
The court observed that it was a well-settled principle that once a final order was passed, all earlier interim orders merge into the final order and the interims orders cease to exist.Attorney General for Pakistan Salman Butt had earlier argued before the court that the government could not take the risk by allowing Musharraf, who is facing high treason charges, to travel abroad unless the Supreme Court’s order regarding embargo on its traveling outside the country was modified or vacated. The AGP submitted that high treason was a political crime and once Musharraf was allowed to travel abroad he could not be brought back due to relaxed extradition laws in the other countries on such crime. He said if Musharraf moved abroad high treason proceedings would come to a standstill for an indefinite period.
Musharraf’s counsel Farogh Naseem submitted that the Special Court had not placed any restriction on the petitioner’s traveling abroad and his client should be allowed to travel abroad on medical grounds as the federal law officer had not filed any rebuttal on the medical report of the petitioner in which it stated that the petitioner had fracture in the vertebra and recommended that either surgery be performed in Dubai, North America or in Europe.
He said the attorney general himself admitted that high treason was a political crime and thus mala fide on part of the government could not be ruled out. He submitted that equal treatment may be given to every citizen either he is a petitioner or any other person while deciding the cases pertaining to restriction on traveling abroad.
Musharraf through his attorney Brigadier (R) Akhtar Zamin submitted in the petition that the federal government imposed ban on his traveling abroad on April 5, 2013 without giving any justified reason for placement of his name on the ECL.
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