In the Supreme Court of Pakistan 
(Appellate Jurisdiction) 
 
Present: 
Mr. Justice Anwar Zaheer Jamali, HCJ 
Mr. Justice Mian Saqib Nisar 
Mr. Justice Amir Hani Muslim 
Mr. Justice Iqbal Hameedur Rahman 
Mr. Justice Khilji Arif Hussain 
 
Civil Appeal No.870/2014  
(On appeal from judgment of High Court of Sindh, Karachi  
dated 12.6.2014, passed in CP No.B-2072/2014) 
 
and 
C.M.A. No.1099 of 2016  
(Application by respondent No.1 to grant  
one-time permission to go abroad) 
and 
C.M.As No. 3545, 3557 and 5173 of 2014 
(applications for impleadment) 
 
Federation of Pakistan through Secretary, M/o Interior. 
Appellant 
 
Vs.  
General (R) Pervez Musharraf and others 
Respondents 
 
 
 
For the appellants 
 
: Mr. Salman Aslam Butt, Attorney 
General for Pakistan  
 
For the applicants 
: Mr. Tariq Asad, ASC (CMA-3545/14) 
 
: Mr. Inam-ur-Rahim, ASC (CMA-5173/14)  
 
: Sh. Ahsan-ud-din, ASC(CMA-3557/14) 
 
 
 
For respondent No.1 
: Dr. Muhammad Farough Naseem, ASC 
Assisted by Faisal Fareed Hussain, Adv 
 
For FIA 
 
: Mr. Qaiser Masood, Addl. Dir. Law. 
Malik Javed, Asst. Dir. Law. 
 
Date of hearing 
: 16-03-2016 
 
JUDGMENT 
 
 
Anwar Zaheer Jamali, C.J.- This civil appeal, with leave 
of the Court, arises out the judgment dated 12.6.2014, passed by 
C.A No.870/2014, etc 
2 
learned Division Bench of the High Court of Sindh, Karachi, in C.P No. 
2072/2014, whereby the said petition filed by respondent No.1 was 
disposed of in the following manner:- 
“(a) 
The Memorandum No.12/74/2013-ECL, dated 5th April 
2013, placing the name of General (retired) Pervez 
Musharraf on Exit Control List is struck down. 
(b) 
Since the direction contained in this judgment is self-
executory, therefore, the operation of this judgment is 
suspended only for fifteen days, during which the 
respondents, if so desire, may file appeal in the honorable 
Supreme Court. 
(c) 
Pending applications are also disposed of accordingly.” 
2. 
Brief facts leading to this litigation are that on 21.4.2014, 
respondent No.1 had instituted the above referred Constitutional 
Petition under Article 199 of the Constitution of Islamic Republic of 
Pakistan, 1973 (in short “the Constitution”) before the High Court of 
Sindh, Karachi, with the following prayer:- 
“a) 
declare the memorandum bearing No.12/74/2013-ECL 
dated 5.4.13 (Annex D) and the letter No.ECL/12/74/2013-
ECL dated 2.4.14 (Annex-L) 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 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 5.4.13 (Annex D) and the letter 
No.ECL/12/74/2013-ECL dated 2.4.14(Annex L) while 
C.A No.870/2014, etc 
3 
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 costs and special costs; 
d) 
award any other relief deemed fit.” 
3. 
In a nutshell, the grievance of respondent No.1 was that 
inclusion/placement of his name in the Exit Control List (ECL) and 
refusal to withdraw his name from it was without jurisdiction, illegal 
and, inter alia, violative of Articles 3, 4, 9, 10A, 14 and 15 of the 
Constitution, thus, liable to be struck down.  
4. 
The appellant and the proforma respondents No.1 to 3, 
in their comments, challenged the maintainability of the petition 
before the High Court of Sindh and contended that inclusion of name 
of respondent No.1 in the ECL on 05.4.2013 was in compliance of the 
observation of the High Court of Sindh, contained in its order dated 
29.03.2013, and further directions issued by the Supreme Court of 
Pakistan in this regard vide order dated 08.04.2013 to the Federal 
Government. Thus, there was no justification for its removal, unless 
such directions were withdrawn.  
5. 
The High Court in its impugned judgment had taken note 
of all these relevant aspects of the case; the case-law cited at the bar, 
and came to the conclusion that once the petition before the Apex 
Court, wherein the interim order directing the Federal Government 
C.A No.870/2014, etc 
4 
to include the name of respondent No.1 in ECL was finally disposed 
of vide order dated 03.7.2013, for all intent and purposes the interim 
order dated 08.4.2013 ceased to operate. More so, as by this order, 
no protection was provided to it and it was clear legal position that 
on passing a final order or judgment in the proceedings, all interim 
orders will merge into it and will stand vacated, unless so protected 
by the Court, which is not the position in the instant case. At leave 
stage, this Court, while taking note of the relevant facts, has 
formulated following points for consideration:- 
3. After hearing the learned Attorney General for Pakistan and 
the learned ASC representing respondent No. 1, we grant leave to 
consider, inter alia, whether:- 
 
(i) 
The order of this Court dated 8.4.2013 was not an 
interim order that merged into the final order of 
3.7.2013 but an independent and final as regards the 
restriction on the respondent’s travel abroad, and thus 
the principle of merger was not attracted? 
(ii) 
The High Court could have struck down the Office 
Memorandum 
of 
5.4.2013, 
issued 
expressly 
in 
compliance with the order of the High Court dated 
29.3.2013 duly re-affirmed by this Court on 8.4.2013?  
(iii) 
Without modification or reversal of the order of this 
Court of 8.4.2013 the Respondent can be permitted to 
leave the country? 
(iv) 
The said Memorandum having been passed in 
compliance with the order of the High Court was not 
covered by clause (f) of Rule 2 of the Exit from Pakistan 
(Control) Rules, 2010? 
 
C.M.A. No. 3565 of 2014 
 
4. 
This C.M.A. is allowed and operation of the impugned 
judgment is suspended. However, the appeal, arising 
out of this petition, be fixed for hearing within one 
month, subject of availability of Bench.”  
 
6. 
We have heard the arguments of learned Attorney 
General for Pakistan on behalf of the appellant. His sole contention is 
that inclusion of name of respondent No.1 in the ECL vide letter 
C.A No.870/2014, etc 
5 
No.12/74/2013 ECL, dated 05.4.2013 issued by the Ministry of 
Interior, was solely on the basis of such direction contained in the 
order dated 08.4.2012, which despite final disposal of the petition 
vide judgment dated 03.7.2013, still holds the field. His further 
submission is that the interim order passed in the proceedings, 
issuing direction to the Federal Government for placement of name 
of respondent No.1 in the ECL, will not, ipso facto, stand vacated 
upon final disposal of the petition, unless specifically so ordered by 
the Court. 
7. 
Responding to the arguments of learned Attorney 
General for Pakistan, learned ASC for respondent No.1 strongly 
contended that the submissions of learned Attorney General that 
despite final disposal of the petitions, the interim order passed 
therein will remain operative is entirely misconceived and ill-founded 
inasmuch as if the intention of the Court at the time of final disposal 
of the petition had been to protect or keep intact the arrangements 
made under the interim order passed in the proceedings, there could 
have been a specific reference in this regard in the final order, which 
is admittedly not the position in case in hand. In support of his 
arguments that interim order passed during the proceedings of a 
case will stand merged/vacated, unless so protected in the final 
order, he placed reliance upon plethora of case-law, which has been 
already intelligently scanned, summarized and discussed in the 
impugned judgment. Concluding his submissions, learned ASC 
C.A No.870/2014, etc 
6 
strongly urged for the dismissal of this appeal, being devoid of 
merits.  
8. 
We have perused the material placed on record and 
carefully considered the submissions of learned Attorney General 
and the learned ASC. As their whole arguments revolve around the 
applicability of ad-interim order dated 08.04.2013, in the wake of 
final order dated 03.07.2013, therefore, before discussing their 
respective contentions, it will be useful to reproduce hereunder the 
operative part of these two orders respectively, which read as 
under:- 
Order dated 08.04.2013 
“8. 
The Counsel representing the petitioners particularly 
Mr. A.K. Dogar and Mr. Hamid Khan, have submitted that 
the respondent General Rtd. Pervaiz Musharraf be taken into 
custody to ensure that he remains available within the 
country for the purpose of trial under Article 6 of the 
Constitution read with the provisions of High Treason 
(Punishment) Act, 1973. We, however, of the opinion that in 
the first instance, notice of these petitions be served on the 
said respondent for tomorrow. The inspector General of 
Police, Islamabad and, if necessary, the Inspectors General 
of Police in the Provinces, shall ensure service on the 
aforesaid respondent. The Secretary, Interior shall also 
make sure that if the name of the aforesaid respondent 
General Rtd. Pervaiz 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. The Federation and all its functionaries 
shall also ensure that the respondent does not move out of 
the 
jurisdiction 
of 
Pakistan 
until 
this 
order 
is 
varied/modified.” 
C.A No.870/2014, etc 
7 
 
Order dated 03.7.2013 
“3. 
We are consciously, deliberately and as submitted by 
Mr. Muhammad Ibrahim Satti, learned Senior Advocate 
Supreme Court for the respondent, not touching the question 
of “abrogation” or “subversion” or “holding in abeyance 
the Constitution” or “any conspiracy in that behalf” or 
indeed the question of suspending or holding the 
Constitution in abeyance  or the issue as to abetment or 
collaboration in the acts mentioned in Article 6 of the 
Constitution. This is so because any finding/observation or 
view expressed by us may potentially result in prejudice to 
the Inquiry/Investigation or subsequent trial should that take 
place as a result of such investigation. 
4. 
The Federal Government has, as noted above, 
proceeded in furtherance of its constitutional obligation 
envisioned in Article 6 of the Constitution and for the present 
this suffices in terms of the said Article and the reliefs 
respectively sought by the petitioners in these petitions. We, 
therefore, dispose of these petitions in the above terms with 
the observation that the Federal Government shall proceed 
as per undertaking dated 26.06.2013, reproduced above 
without unnecessary delay.” 
 
9. 
The perusal of order dated 08.4.2013, reveals that it was 
passed in Civil Petition No.2255/2010 and four other connected 
petitions No.14, 16, 17 and 18 of 2013, filed by different parties 
against respondent No.1, as an ad-interim arrangement before even 
issuing notices of such proceedings to him. As could be seen from its 
language and tenor, the purpose of this order was to ensure the 
name of respondent No.1 in the ECL forthwith as an interim 
arrangement during the course of the day. Thereafter, the 
proceedings were held on several dates of hearing after due notice to 
C.A No.870/2014, etc 
8 
respondent No.1 and as a result, upon the statement of learned 
Attorney General for Pakistan dated 26.06.2013, reproduced in the 
opening paragraph of the order dated 03.7.2013, the petition was 
disposed of in terms of the undertaking given by the Federal 
Government, without any further directions to keep the ad-interim 
order dated 08.4.2013 alive/intact. The submission of the learned 
Attorney General that letter dated 05.4.2013, issued by the Ministry 
of Interior, cannot be withdrawn unless the interim order dated 
08.4.2013 was modified or withdrawn is on the face of it totally ill-
founded, as the letter placing the name of respondent No.1 in the 
ECL was issued three days prior to the said order on the basis of 
some observations contained in the order dated 29.03.2013, passed 
by the High Court of Sindh in Criminal Bail Application No.262 and 
263 of 2013, whereby respondent No.1 was granted transitory bail 
for a limited period of 21 days with the condition that till such time 
he would not leave the country without permission from the Trial 
Court. Thus, it cannot be said that it was the interim order dated 
08.4.2013, which formed basis of such action from the appellant 
against respondent No.1 or the appellant needed any further 
instruction, in this regard form the Apex Court. 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 
C.A No.870/2014, etc 
9 
rules framed thereunder. The superior Courts are, therefore, 
normally reluctant in passing orders of such nature, except in some 
exceptional circumstances, which is not the position here at this 
stage, as understandably the Respondent No.1 is facing trial before 
different criminal Courts/Special Court for the charged offences, 
which are competent to regulate all issues as regards his custody. 
10. 
During the hearing of this appeal, we have more than once 
enquired from the learned Attorney General for Pakistan the stance of 
the Federal Government as to whether they intend to retain the name 
of respondent No.1 in the ECL for any valid reason in terms of the Exit 
from Pakistan (Control) Ordinance, 1981, and the  rules framed 
thereunder, as reportedly several criminal cases against him are sub 
judice before different Courts/Special Court, but he was unable to come 
out with any specific instructions from the Federal Government in this 
regard, except that the inclusion of name of respondent No.1 in the ECL 
vide Ministry of Interior letter dated 05.4.2013 is solely on account of 
directions issued by the Court and for no other reason. In order to 
appreciate such arguments of learned Attorney General for Pakistan, 
we have also perused the said letter of the Ministry of Interior available 
in the Court file at Page-92, which reads thus:- 
“GOVERNMENT OF PAKISTAN 
MINISTRY OF INTERIOR 
**** 
No.12/74/2013-ECL 
 
 
Islamabad, the April 5, 2013 
 
MEMORANDUM 
 
Subject: 
PLACEMENT OF EXIT CONTROL LIST. 
 
C.A No.870/2014, etc 
10 
It has been decided to place the name of General 
(Rtd) 
Pervez 
Musharaf 
(Passport 
# 
AJ0848364-
Diplomatic) , on Exit Control List under Section 2 of Exit 
from Pakistan (Control) Ordinance, 1981. 
 
2. 
All concerned are requested to take immediate 
action in the matter. 
 
(Mazhar Javed Rana) 
Section Officer (ECL) 
Tel:9208179” 
 
 
11. 
A plain reading of this letter reveals that it was issued on 
05.4.2013 i.e. three days before the ad-interim order referred to by 
the learned Attorney General for Pakistan without disclosing any 
reason and it also does not contain reference of any order or 
directions of the High Court or the Apex Court in this regard. Thus, 
looking to the legal position, as elaborately discussed by the High 
Court in the impugned judgment with reference to the case-law from 
Pakistani and Indian jurisdiction, and having analyzed peculiar facts 
and circumstances of the case, we have no hesitation to hold that the 
moment final order dated 03.7.2013, disposing of all the five 
connected petitions, was passed by this Court without extending any 
protection to the ad-interim order dated 08.4.2013, the same stood 
merged into the final order and lost its efficacy and operation 
forthwith.  
12. 
Apart from the above discussion, considering the 
question of inclusion or retaining the name of respondent No.1 in the 
ECL, thereby restricting his freedom of movement, we also cannot 
C.A No.870/2014, etc 
11 
lose sight of the fact that under Article 15 of the Constitution 
freedom of movement is one of the fundamental rights guaranteed 
to every citizen of the Country, which cannot be abridged or denied 
arbitrarily on mere liking or disliking, without any lawful justification 
for this purpose. More so, when Article 4 of the Constitution further 
guarantees right to every individual, to be dealt with in accordance 
with law. 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. 
13. 
Admittedly, order dated 08.04.2013 was passed before 
issuing notice of the petitions to Respondent No.1 and it was ad-
interim or to say it interim or temporary in nature. The words ‘ad-
interim’ and ‘interim’ have been defined in Black’s Law Dictionary (9th 
Edition) as under: 
“ad interim: In the meantime; temporarily.” 
C.A No.870/2014, etc 
12 
“interim: Done, made, or occurring for an intervening 
time; temporary or provisional.” 
 
From the above connotation of these two words, it is safely 
deducible that the above referred order, for all intent and purposes, 
was a temporary order, which stood merged/vacated in terms of the 
final order dated 03.07.2013.  
14. 
The perusal of impugned judgment reveals that the 
learned Division Bench of the High Court of Sindh Karachi, has 
correctly appreciated the relevant facts of the case, aptly taken into 
consideration the case-law cited at the bar, and recorded valid and 
cogent reasons for granting requisite relief to the Respondent No.1, 
thereby striking down the memorandum No.12/74/2013-ECL dated 
05.4.2013, issued by the Ministry of Interior. Not only this, but 
mindful of the sensitive nature and political hype of the issue, as an 
abundant precaution, it had also suspended the operation of 
impugned judgment for a period of 15 days to enable the appellant 
and proforma respondents to avail any other appropriate remedy, 
including their right to challenge the impugned judgment before the 
Apex Court. Still the appellant took no independent stance/decision 
in the matter, except following the remedy of challenging the said 
judgment in this appeal, which, as discussed above, is devoid of 
merits. 
15. 
Foregoing are the reason for our short order dated 
16.3.2016, which read as under:- 
C.A No.870/2014, etc 
13 
 
“We have heard the arguments of learned Attorney 
General for Pakistan on behalf of the Appellant and  Dr. Farough 
Naseem, learned ASC for Respondent General (R) Parvez 
Musharraf. For the reasons to be recorded separately, this appeal 
is dismissed. However, this order will not preclude the Federation 
of Pakistan or the Special Court, seized of the proceedings under 
Article 6 of the Constitution against Respondent General (R) 
Parvez Musharraf, from passing any legal order for regulating his 
custody or restricting his movement.  
2. 
 
The Misc. Applications for impleadment as party 
are dismissed, having become infructuous. CMA No.1099/2016, is 
not pressed by the learned ASC for the respondent, which is 
dismissed accordingly.” 
 
 
 
 
 
 
 
Islamabad, 
16th March, 2016. 
Not approved for reporting. 
تقادص 
Chief Justice 
 
 
Judge  
 
Judge 
 
 
Judge  
 
Judge 
 
