' Petitioner, a poet in Urdu language, was invited in October, 1979, by the Secretary of the Literary Circle-a group organized by Immigrants from Pakistan residing in Norway, to visit the country. An amount of rupees eight thousand for journey expenses from Lahore to Auslo was also remitted to him.
' Petitioner being holder of Pakistani Passport, was granted Visa by the Nowegian Embassy which was valid upto 15th March, 1980. Petitioner then applied to the State Bank of Pakistan at Lahore for the necessary foreign exchange and the issuance of "P" Form. Necessary `P' Form was not issued till 19-1-1980 and the petitioner thus was obliged to write to the State Bank for completing the necessary formalities and the return of his passport without further delay. Petitioner, thereafter, statedly, approached the officials of the Ministry of Interior; Government of Pakistan, for help in the matter, but was put off on one pretext or the other. Ultimately, he on 27-1-1980, filed this constitutional petition praying that "a direction be issued to the respondents to issue necessary papers to the petitioner and to do all that is necessary to enable the petitioner to proceed to Norway".
2. On 11.2-1980 in the comments filed by the respondents, it was disclosed that the Government vide order dated 2-2-1980 had impounded the petitioner's passport for a period of four months, the question of issuance of any foreign exchange and the "P" Form, therefore, did not arise. Petitioner, therefore, sought permission of the Court to amend the petition and the amended petition was filed accordingly on 13-2-1980. Two reliefs- (i)that the order dated 2-2-1980 passed by the respondent Government directing, that the Passport of the petitioner be impounded be held to be of no legal consequence having been passed without lawful authority;
(ii) that the Respondent Bank be directed to expedite the grant of `P' Form as also the permissible Foreign Exchange to the petitioner, have been claimed.
3. Learned counsel for the petitioner raised three main contentions in support of this petition. Firstly, that the Government was obliged to give reasons for the action taken. It was emphasised that even though, as embodied in subsection (1) of section 8 of the Passport Act, 1974, the requirement of notice in case the passport is impounded for a period for more than four months, is dispensed with, it is evident on reading the section as a whole, that the Government is obliged to record reasons in the order impounding the passport. All actions of the Government detrimental to the privileges enjoyed by a person as a citizen of a civilised State, are open to judicial review. It would be difficult for the superior Courts to form the view as to the illegality_or otherwise of the action if order lacks reasons, Courts, ordinarily, do not investigate on their own to find out if adequate reasons. Exist for such a decision.- Reference was made to Article 4 of the Constitution and the case-law. In the -second place, it was contended that the action impounding the passport is mala fide on the face of it. Petitioner's case for the issuance of `P' Form and grant of necessary foreign exchange had been under consideration of the Government since 6-12-1979. He filed this petition in the first instance on 27-1-1980. The comments to the original petition were filed on 7-2-1980. The action therefore, was far from being in good faith. It was lastly contended that the right to visit other countries is an inviolable right of a citizen. This right is guaranteed to persons under the Charter of Human Rights. The State Bank, in the circumstances, could not refuse to issue necessary 'P' Form or the grant of foreign exchange permissible under the law.
4. Learned Deputy Attorney-General. On the other hand, argued that under proviso to subsection
(2) of section 8, the holder of the passport need not be given any notice in the case of an order impounding the passport for a period not exceeding four months. It is therefore, self-evident that the authority passing such an order is not required to give reasons for the actions taken. Such actions are taken on the subjective satisfaction of the authority and, therefore, only because these are open to judicial review, is not sufficient to hold that the order must contain reasons. The Court can in suitable cases look into the record to satisfy itself whether or not there was sufficient material for such an action. As a matter of fact, it is the duty of the Court to examine the entire record pertaining to the case before forming the view as to the legality or otherwise of the action taken. He then argued that the order impugned is passed in good faith.. There was sufficient material with the Government for such an action. The passport having been impounded the question of issuance of any 'P' Form or the grant of any foreign exchange did not arise.
5. I have considered the arguments raised and perused the relevant provisions of law. It would be advantageous at the outset to survey the relevant provisions of law and the rules applicable.
Section 8 of the Passport Act, reads thus:- "(1) A passport issued by or on behalf of the Federal Government shall be the property of the Federal Government and may, by an order under the hand of a Secretary to the Government of Pakistan or an Officer authorised by the Federal Government in this behalf, be required to be returned and shall also be liable to be cancelled, impounded or confiscated by a like order.
(2) Subject to subsection (3), before making an order under subsection (1) in respect of the passport issued to any person, the Federal Government shall give such person notice in writing calling upon him to show cause why the order should not be made: ' Provided that no such notice need be given in the case of an order impounding a passport for a period not exceeding four months and such order shall take effect as soon as it is made.
(3) If the Federal Government has reason to believe that the person in respect of whose passport it is proposed to make an order under subsection (1) is, or has been, engaged in subversive activities or in activities which are prejudicial to the interest of Pakistan or to Pakistan's relations with any foreign power, it shall not be necessary to such person the notice provided for in subsection (2) or to afford him give to an opportunity of being heard.
(4) Any person in respect of whose passport an order under subsection (1) has been made in the circumstances referred to in subsection (3) may, within thirty days of the date of the order, apply to the Federal Government for a review of the order; and the decision of the Federal Government in review shall be final."
' Section 'D' of para. 82 of the Passport Rules and Procedure for issuing Passports etc. Deals with the impounding, confiscation, cancellation, restriction of Passport. Sub-rules (3) and (4) which are relevant for the present discussion read thus:- "(3) Impounding or confiscation of a passport is a very serious matter, Such action may be taken only in the following cases:
(a) When the person belongs to one of the classes of persons to whom passports are generally refused;
(b) When a person is found to be in wrongful possession of a valid passport; and
(c) When a person is found to be involved in any undesirable conduct/ activities mentioned in sub- para. (4).
(4) The head of a Pakistan Mission abroad may, without prior approval of the Interior Division, with hold/take possession of the passport of a person, and issue to him in lieu thereof a single sheet emergency passport, valid only for return to Pakistan, who-
(a) is found involved in activities prejudicial to the interest of Pakistan involving disloyalty to, and security of the country, provided it is apprehended that it will be difficult to make the person concerned return to Pakistan if his passport is not withheld immediately without prior approval of the Interior Division; or
(b) is, on good evidence, found to have fled Pakistan to avoid prosecution for a criminal or other offence; (c)is found to have indulged in racketeering and/or forgeries in passport; Or
(d) has been convicted of a crime in the host of country; or (e)has been generally indulging in activities of a criminal nature; or
(f) has used physical violence against the personnel or property of the Mission concerned."
' As embodied in subsection (1) of section 8, a Passport issued by or on behalf of the Federal Government, is liable to be cancelled, impounded or confiscation. However, as provided under subsection (2), "subject to subsection (3), before making an order under subsection (1) in respect of the Passport issued to any person," the Federal Government is required to give notice in writing calling upon him to show cause against the proposed order. Under subsection (3) if the Federal Government has reason to believe that the person in respect of whose passport an order is proposed to be passed under subsection (1), is or has been engaged in subversive activities etc., notice need not be given to him as required in subsection (2). Proviso to subsection (2) similarly, lays down that in the case of an order impounding a passport for a period not exceeding four months, such notice need not be given. This 'proviso, however, does not indicate the grounds on which the order impounding a passport for a limited period can be made. Under section 13, Government can make rules for carrying out the purposes of the Act. The rules, therefore, have a statutory force. Under sub-pant. (3) of Para 82, reproduced above, action for impounding or confiscation of a passport is described to be "serious matter" and "may be taken only" in the given cases. Cases of persons enumerated in clause (a) and (b) of sub para (3), in my view, ordinarily would involve the confiscation of the passport. In such cases passport may be impounded till the order for confiscation is passed which precedes show-cause notice and inquiry. Under clause (c) action can be taken if the person is found to be involved in any undesirable conduct/ activities mentioned in sub-para. (4).
' Sub-para. (4) visualises six situations in which a Pakistan Mission abroad can pass an order withholding a passport. Something more than a personal satisfaction of the authority ordering withholding of the passport is indicated under sub-para (4). Survey of the above provisions of the Statute and the Rules made thereunder, would, manifestly, show that an order impounding a passport must disclose reasons for the action taken. Learned Deputy Attorney-General sought to rely on sub-para (8) of para.
82. This provides that in view of the provisions of the Passport Act, section 175 of the Pakistan Penal Code and the instructions contained in this Manual, an order for the impounding, confiscation and cancellation of the passport, should be in the form given below: "In exercise of the powers conferred by subsection (1) of section 8 of the Passport Act, 1974 (XX of 1974), the Federal Government is pleased to direct that Pakistan International Passport No dated issued by the , in favour of Mr./Mrs./Master/ Miss . . ...... Son of/wife of/daughter of whose address as given in the said passport is shall be impounded/ confiscated. The holder of the said passport is directed to deliver the passport to the person who is given a true copy of this order for execution so that the passport may be returned to the Federal Government."
' Note: Refusal or failure to deliver the passport on this requisition renders the person to whom it was issued liable to prosecution under section 175 of the Pakistan Penal Code.
' Secretary to the Government of Dated Pakistan ISLAMABAD 19 Interior Division."
' Close scrutiny of the pro forma however, would show that the same is not the pro forma of the order to be passed but for calling upon a person to deliver the passport for impounding/confiscation. It would therefore, be difficult to accept the contention of the learned Deputy Attorney-General that as no notice is required to be given for impounding a passport for a period not exceeding four months, the order need not contain reasons.
6. In Ex Parte Smith (1), by the provisions of Statute relating to the licensing, certain licences for the sale of intoxicating drinks not to be consumed. On the premises were not to be refused, except on one or more of four grounds specified. Justices on refusing to grant such a licence did not state any ground for such refusal. They were not, however, asked to state their ground for such refusal; and on an application for a mandamus against them to hear and determine the application for the licence, the chairman of the justices made an affidavit that they had in fact acted on one of the grounds on which they were empowered to refuse the licence. Relying on Reg v. Sykes (2), it was held that justices were bound to state their grounds at the time of refusing the application and the mandamus therefore, went
(1) (1870 3 Q B D 374 (2) 1 Q B D 52
7. There is yet another aspect of the case. Under Article 4 of the constitution to enjoy the protection and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be and of every other person for the time being within Pakistan and in particular no action detrimental to the life, liberty, body, reputation or property of any person, shall be taken except in accordance with law and no person shall be prevented from or a hindered in doing that which is not prohibited by law.
' It is thus intended to negative any claim by the Government that an category of its acts in relation to citizens and other persons in Pakistan are not subject to law at all. In this context, therefore, actions of the State functionaries affecting the rights of a citizen are subject to judicial review by the superior Courts. A citizen, therefore, is within his right to complain (Article 199 of the Constitution) that action of a State functionary detrimental to his civic rights or the privileges granted is without lawful authority. It is in this sense that State functionaries are expected to record reasons for the proposed action. There may be cases where even in the absence of a speaking order-for example sake, a jailor keeping a prisoner in custody under warrant of Court it can be presumed that the action taken is with lawful authority. The rule however, does not apply in cases where such an action is dependant o the existence of certain facts. In such cases the State functionaries are expecte to record reasons for the order. Theory of subjective satisfaction cannot be pleaded to justify actions. The rule, in my view, applies even in the case o impounding the passport for a short period as it is tantamount to depriving a person of the privilege once granted by the State, passport, as noticed above, can be impounded only in cases falling under sub-paras.
(3) and (4) of para.
82. The authority impounding the passport, therefore, was expected to state if th case in hand fell in any of the categories of cases. The legality or otherwise of the order cannot be examined by this Court as the order lacks reasons.
8. I am not impressed by the argument of the learned Deputy Attorney-General that as a citizen cannot as of right claim to be issued a passport, its impounding does not provide hint any ground for grievance. Abdur Rauf Malik and another v. Government of Pakistan and another (1) and Manzoor Khan v. Government of Pakistan through Home Secretary, Rawalpindi and others (2), were cited in support of the argument. The judgment cited are distinguishable as none of the cases deals with the confiscation or impounding of the passport. In this judgment, therefore, I may not be taken to have considered the proposition that to ask for the issuance of passport is not enforceable privilege of a citizen and its refusal not open to challenge in Courts. The impounding and confiscation of a passport once issued, as noticed above, is regulated by rules and therefore, any action in violation of the rules, evidently will be subject to correction under Article 199 of the Constitution.
9. In Syed Abu A'ala Maudoodi v. State Bank of Pakistan and another (3), as per Muhammad Akram, J. (as his Lordship then was) the freedom of locomotion was held to be part of "liberty" of the people as guaranteed under Fundamental Right No, 1 of the Constitution of Pakistan, 1962. Learned Deputy Attorney-General cited Syed Sharif-ud-Din Pirzada v. Federation of Pakistan and another (4), to contend that the expression `liberty' under Aricle 4 of the Constitution should not be given such a wide meaning so as to include freedom of locomotion. The interpretation given to
(1) PLD 1978 Lab. 410 (2) PLD 1966 Pesh. 29
(3) PLD 1969 Lah. 908 (4) PLD 1973 Kar. 132 this expression by Muhammad Akram, J. Was not only expressly disagreed by the other learned Judge (Muhammad Gul, J.) but has also not been followed in the Karachi case. I feel, I am not called upon to resolve the controversy regarding the construction of expression of 'liberty'. It were, I would have requested for the formation of a larger Bench. Fundamental Rights conferred by.
Chapter 1 of Part II of the Constitution, stand suspended by Laws (Continuance in Force) Order, 1977.
I need not make reference to Fundamental Right No, 9 guaranteeing that no person shall be deprived of life and liberty save as in accordance with law of Fundamental Right No, 15, conferring right of freedom of movement within the country subject to any reasonable restriction imposed by law. All that Article 4, provides is that a citizen of Pakistan is to be treated in accordance with law and law alone. No person shall be prevented from or be hindered from doing anything not prohibited by law. In fact, on the view I have taken it is not necessary for me to construe the expression 'liberty' envisaged in Article 4 as it obviously, follows from clause (b) of Sub-Article (1) that no person shall be prevented from or be hindered in doing that which is not prohibited by law.
In the instant case, therefore, the petitioner cannot be deprived of the passport validly issued to him unless the same is impounded in accordance with the rules applicable thereto, In so far as the order impounding the passport does not contain an reason, it is not possible to hold that the action taken is in accordance with the law.
10, For the foregoing reasons, this petition succeeds. Order impugned dated 2-2-1980 is declared to have been passed without lawful authority and of no legal effect. Resultantly the State Bank of Pakistan will proceed to decide the question of issuance of 'P' Form and the grant of Foreign Exchange, uninfluenced by the order of the. Central Government is thus quashed. This is however, without prejudice to the Central Government's right to pass fresh order giving reasons for the same.
11. In the circumstances of the case, there will be no order as to costs.