Principle of Merging of Orders – Ad Interim and Final Order

Principle of Merging of Orders - Ad Interim and Final Order Ad Interim Order Case Laws Constitutional Law Exit Control List Final Order Knowledge - Constitutional Law Litigation & Arbitration Solutions - Constitutional Law Supreme Court Mr. Justice Anwar Zaheer Jamali in his judgment has decided the issue regarding principle of merging of orders – ad interim and final order in Civil Appeals No. 870 of 2014 etc.

1. This civil appeal, with leave of the Court, arises out the judgment dated 12.6.2014, passed by 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; and (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 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 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?

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 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.

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