JAVED IQBAL, J. - This judgment will dispose of. The above-captioned petitions preferred under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (herein after referred to as the Constitution) on behalf of petitioners against their alleged forced exile to Saudi Arabia as similar questions of fact and law are involved.
2. The following relief has been claimed:-
(i) Declare that the Petitioner No. 2 and his family members including his brother Mian Shahbaz Sharif have the inalienable, unqualified fundamental right to remain in Pakistan and participate in and contest the forthcoming general elections;
(ii) Order that the Respondents may not directly or indirectly obstruct, hamper or resist the return of the petitioner No. 2 and his family members, including his brother Mian Shahbaz Sharif to their country Pakistan or to force them to live in continued. Exile; and
(iii) Grant such other relief as this Hon'ble Court may deem fit and proper in the interest of justice."
Identical relief has been sought in Constitutional Petition No. 49 of 2007 hence reproduction whereof would be of no use).
3. Mr. Fakhr-ud-Din G. Ebrahim, learned Sr. ASC entered appearance on behalf of petitioners and after mentioning the background, achievements and performance- of Pakistan Muslim League (N) urged with vehemence that every citizen of Pakistan has a right to enter and move freely' throughout the country and to reside and settle in any part whereof, without any embargo or restriction which cannot be imposed as the right conferred upon a citizen under Article 15 of the Constitution is inalienable, it is next contended that the petitioners were deported from Pakistan by force and in fact it was a forced exile. Mr. Fakhr-ud-Din G. Ebrahim, learned Sr. ASC has referred Article 19 of the Indian Constitution and also relied upon various judgments from Indian jurisdiction in order to support his esteemed view, as mentioned herein above, such as Ebrahim Vazir v. State pf Bombay (AIR 1954 SC 229). Besides that heavy reliance has been placed on the dictum laid down in case of Mian Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583) whereby a declaration was given- in an unequivocal term that the right to enter in .The country cannot be denied but a citizen can be restrained from going out of the country and Mian Muhammad Shahbaz Sharif being a citizen of Pakistan has a Constitutional right to enter and remain in the country, it is also contended- with vehemence that no agreement whatsoever was executed with the Government of Pakistan and all the allegations levelled and published in different newspapers are baseless, it is admitted that the undertaking produced by the Government is signed by the petitioners and its authenticity and genuineness was not controverted with the submission that such undertaking cannot be equated to that of an agreement and therefore, it cannot be enforced, it is also contended that no contract could have been executed in violation of the provisions as contemplated in Article 15 of the Constitution and besides. That no Fundamental Rights could be surrendered or waived. it is also contended that such undertaking would have no- legal sanctity and thus deserves little consideration, in order to substantiate his view-point reference has been made to the case-law enunciated in Benazir Bhutto v, Federation of Pakistan (PLD 1988 SC 416), Benazir Bhutto v. Federation of Pakistan (PLD 1989 SC 66), Ghulam Sarwar v. Pakistan (PLD 1962 SC 142), Govt, of Pakistan v. Akhlaque Hussain (PLD 1965 SC 527). it is contended firmly that no restriction whatsoever can be imposed on the Fundamental Rights guaranteed to the petitioners as it would be in violative of the provisions as contemplated in Article 15 of the Constitution.
4. Sahibzada Ahmad Raza Qasuri, learned Sr. ASC entered appearance on behalf of the Federation of Pakistan and vehemently objected the petitions on the ground of maintainability, it is also pointed out that the petitioners should have invoked the Constitutional jurisdiction under Article 199 of the Constitution as no such petition could have been filed by invoking Article 184(3) of the Constitution, because no point of public importance is. Involved in the matter, it is -next contended that it is an individual grievance which could have been redressed by the learned High- Court in exercise of its powers as conferred upon it under Article 199 of the-Constitution, it is also pointed out that no prohibitory order has been passed imposing any restriction on the movement of.
Petitioners' and their apprehension is based on speculations and conjectural presumptions on the basis whereof no relief can be granted. Sahibzada Ahmad Raza Qasuri, learned Sr. ASC has contended that in fact no cause of action is available to the petitioners. Learned Sr. ASC invited our attention to the conviction and sentence awarded to petitioner Mian Muhammad Nawaz Sharif in different cases, it is also' pointed out that it is not a case of forced exile but on the contrary the petitioner had left the country with his own consent and that too to the choice of his country where he remained for more than six years and no attempt whatsoever was made to come to Pakistan.
Had it been a forced exile the petitioner must have approached the forum concerned for the redressal of his grievances which could not be done for the reasons best known to the petitioner on the basis whereof it can be safely inferred that it was not a forced exile, in order to substantiate his view point reference has been made to Zulfiqar Mehdi v. Pakistan International Airlines Corporation (1998 SCMR 793), Wasey Zafar v. Government of Pakistan (PLD 1994 SC 621), Muhammad Hassan v.
Govt, of Sind (1980 SCMR 400). it is urged with vehemence that the Constitution petitions are liable -to be dismissed in limine for the reason that the petitioners have not approached this Court with clean hands and have concealed and suppressed the relevant and material facts and failed to mention that earlier petition on the same subject was dismissed being not maintainable under the provisions as contemplated under Article 184(3) of the Constitution as it pertained to the individual grievance and no question of public importance was involved.
5. Raja Muhammad Ibrahim Satti, learned ASC entered appearance on behalf of Federation of Pakistan and heavily relied upon the case of Mian Muhammad Shahbaz Sharif (supra) and contended that the petitions are not maintainable under Article 184(3) of the Constitution and the petitioners should have invoked the Constitutional jurisdiction under Article 199 of the Constitution as conferred upon learned High Court, it is also pointed out that the petitions are hit by laches as the petitioners got up from a deep slumber after a long period and on this score alone the petitions deserve dismissal, it is also pointed out that, the petitioners had not approached this Court with clean hands and suppressed the real facts by concealing that no agreement whatsoever was made while the fact is that they had proceeded Saudi Arabia as a result of deal arid the undertaking furnished in this regard has not been controverted, in the beginning of his arguments Raja Muhammad Ibrahim Satti, learned ASC contended that as per judgment of Liaquat AH.
Ghanghro v. Province of Sind (2007 CLC 923) emergency is still enforced in the country but later on did not press this point.
6. Malik Muhammad Qayyum, learned Attorney General at the outset supported the dictum as laid down in case of Mian Muhammad Shahbaz Sharif (supra) with the further submission that it is an inalienable right of a citizen of Pakistan to enter into Pakistan and move freely subject to. Any reasonable restriction, it is, however, contended that the petitioners had gone abroad at their own and as a result of agreement executed by the petitioners and Saudi Arabia was their own choice where they remained for a considerable long time and as such their voluntary migration cannot be termed as forced exile, it is argued that had it been forced exile the petitioners would have approached this Court for the redressal of their grievances which, was not done, it is also pointed out that the petitioners specially Mian Muhammad Nawaz Sharif had never made any attempt to enter into Pakistan and besides that no prohibitory order has ever been passed restricting the entry of the petitioner in Pakistan; The learned Attorney General has referred case of Benazir Bhutto v.
President of Pakistan (PLD 1998 SC 388), Nargis Shaheen v. Federation of Pakistan (PLD 1993 Lah.
732), Nasrullah Khan Henjra v. Govt. Of Pakistan (PLD 1994 SC 23), Govt, of Pakistan v. Dada Amir Haider Khan (PLD 1987 SC 504) to substantiate his view-point, it is also argued that the. Petitioners have failed to honour their commitment- and are responsible for the breach Of agreement executed to migrate Saudi Arabia so that conviction and sentence awarded in different cases could be avoided. The learned Attorney General remained critical of their conduct and requested that notice of the same may be taken by the Court as the petitioners have not approached this Court with clean hands. The learned Attorney General has stressed that the petitioners had made a deal with the Government after giving an undertaking that they would not return to Pakistan for a period of ten years and moreso they would not participate in the political activities. The learned Attorney General has relied heavily on the undertaking given by the. Petitioners that they would not return to Pakistan and participate in politics for ten years, it is also contended that since no restriction order was passed the petitioners could have come and no invitation was to be extended by the Government but on their return they will be dealt with in accordance with law. The learned Attorney General has also drawn the attention of this Court towards the dismissal of earlier Constitution Petition bearing No. 55 of 2003 filed by Mian Muhammad Shahbaz Sharif which was dismissed by this Court on 7.4.2004 being not maintainable and according to learned Attorney General no direction was given for the return of Mian Muhammad Shahbaz Sharif and hence the question of. Creating any hurdle or implementation of the order which was never passed does not arise, it is also pointed out that the grievances as canvassed on behalf of petitioners would not affect the public-at-large being personal grievance and as such the jurisdiction as conferred upon this Court under Article- 184(3) of the Constitution cannot be exercised, it is stressed time and again that no question of public importance with reference to the enforcement of Fundamental Rights is involved hence the jurisdiction under Article 184(3) of the Constitution cannot be invoked.
7. The learned Attorney General also mentioned that the sentence of Mian Muhammad Nawaz Sharif was remitted in 2000 but pardon was not granted in hijacking and helicopter cases and the order of fine, disqualification and property confiscation still holds the field.
8. We have carefully examined the respective contentions in the light of the provisions as enumerated in Article 15 of the Constitution and case-law enunciated in different cases. First of all we intend to dilate upon the pivotal question qua the maintainability of the above- captioned petitions under Article 184(3) of the Constitution. The prime objection of the respondents seems to be that jurisdiction as conferred upon this Court under Article 184(3) of the Constitution cannot be invoked as no question of public importance is involved and therefore, the petitioners should have approached the learned High Court by invoking Constitutional jurisdiction as conferred upon it under Article 199 of the Constitution, it is also the case of the respondents that in cases of individual grievances the question of invocation of the provisions as enumerated in Article 184(3) of the Constitution does not arise, it is not-the first occasion when the question regarding interpretation of Articles 184(3). And 199 of the Constitution has been raised but on different occasion^ and in various cases the above Articles were dilated upon, discussed, considered and interpreted, in case of Muhammad Nawaz Sharif v. President of Pakistan (PLD- 1993 SC 473) while interpreting the provisions as contemplated under Article 184(3) of the Constitution it was observed follows:- "3. In order to appreciate the above controversy, it may be advantageous to quote above clause
(3) of Article 184 of the Constitution, which reads as follows:- "184(3) - Without prejudice to the provisions of Article 199, the Supreme Court shall, if if considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
A perusal of the above-quoted clause indicates that without prejudice the provisions of Article 199 of the Constitution, which confers a Constitutional jurisdiction on the. High Courts, the Supreme Court has been empowered to make an order of the nature mentioned in the above Article 199 provided the following two conditions are fulfilled:-
(i) question of public importance is involved;
(ii) with reference to the enforcement of any' of the Fundamental Rights guaranteed by Chapter I, Part II of the Constitution,. i.e. Articles 8 to 28."
9. It was also observed that:- "Article 184(3) of the Constitution of Pakistan pertains to original jurisdiction of the Supreme Court and its object is to ensure the enforcement .Of fundamental rights referred to therein. This provision is an edifice of democratic way of life and manifestation of responsibility casts on this Court as a protector and guardian of the Constitution. The jurisdiction conferred by it is fairly wide and the Court can make an order of the nature envisaged by Article 199, in a case where a question of public importance, with reference to enforcement of any fundamental right conferred by Chapter I of Part II of the Constitution is involved. Article 184(3) is remedial in character and is conditioned by three prerequisites, namely:-
(i) There is a question of public importance.
(ii) Such a question involves enforcement of fundamental right, and
(iii) The fundamental right sought to be enforced is conferred by Chapter I, Part II of the Constitution."
10. It was further observed in the above-mentioned case while interpreting the provision's as contemplated under Article 184(3) of the Constitution as under:- "3. First, we may understand the nature of Article 184(3). This provision confers power on the Supreme Court to consider questions of public importance which are- referable to the enforcement of any Fundamental Rights guaranteed by the Constitution and enumerated in Chapter I of Part II. This power is without prejudice to the provisions of Article 199 which confer similar power with certain restrictions on the High Court. The power conferred depends upon two questions: one, that the case sought to be heard involves question of public importance and two, the question of public importance relates to the enforcement of Fundamental Rights, it is not every question of public importance which can be entertained by this Court, but such- question should relate to the enforcement of Fundamental Rights. This provision confers a further safety and security to the fundamental rights conferred and guaranteed by the Constitution. This shows the importance which Fundamental Rights have in the scheme of the Constitution. They cannot be curtailed or abridged and any provision of law or action taken which violates. Fundamental Rights conferred by the Constitution shall be void. The nature of jurisdiction and the relief which can be granted under this Article is much wider than Article 199. it confers a power to make an order of the nature mentioned in Article 199. The word nature' is not restrictive in meaning but extends the jurisdiction to pass an order which may not be strictly in conformity with Article 199 but it may have the same colour and the same scheme without any restrictions imposed under it. Article 184 is an effective weapon provided to secure and guarantee the fundamental rights, it. Can be exercised where the Fundamental Right exists and a breach has been committed or, is threatened. The attributes of Article 199 of being an aggrieved person or of having an alternate remedy and depending upon the facts and circumstances even laches cannot restrain the power or non-suit a petitioner from filing a petition under Article 184 and seeking relief under it. The relief being in the nature mentioned in Article 199 can be modified and also consequential reliefs carr be granted which may ensure effective protection and implementation of the Fundamental Rights. Even disputed questions of facts which do not require voluminous evidence 1 can be looked into where Fundamental Right has been breached. Flowerer, in case where intricate disputed questions of facts involving voluminous evidence are involved -the Court will desist from entering into such controversies. Primarily, the questions involved are decided on admitted or prima facie established facts which can be determined by. Filing affidavits. Evidence in support of allegations can be taken orally in very exceptional cases where the breach is of a very serious nature affecting large section of the country and is of great general importance." (Emphasis provided)
11. In case of Syed Wasey Zafar v. Government of Pakistan (PLD 1994 SC 621), the provisions as enshrined under Article 184(3) of the Constitution were interpreted in a comprehensive manner after having a comparison between Articles 184(3) and 199 of the Constitution, relevant portion whereof is reproduced herein below:- "3. The above petitions haye been flied under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution. The- above provision reads as follows:- "(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
A perusal of the above-quoted provision of the Constitution indicates that without prejudice to the provisions of Article 199, the Supreme .Court .Has been conferred with the power to entertain a petition under the above provision directly if the following two conditions are fulfilled:-
(i) The case involves a question of public importance: and
(ii) The question so involved pertains to the enforcement of any of the Fundamental Rights contained in Chapter I of Part II of the Constitution.
4. It may further be noticed that if the above two conditions are met, the above provision *of the Constitution confers power on the Supreme Court to make an order of the nature mentioned in above Article 199 of the Constitution, it may be pertinent to point out that the scope of Article 199.
Which confers jurisdiction on the High Courts, is much wider than the jurisdiction conferred on the Supreme Court under the above-quoted provision of the Constitution inasmuch as a High Court not only can enforce a Fundamental Right under clause (21 of the above Article, but can also pass an appropriate order in the matters covered by sub-clauses (a), (b) of clause (1) of Article 199 of the Constitution, which provide as follows:- "199" (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law:-
(a) on the application of any aggrieved party, mode an order--
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs' of the Federation, a Province or, a local authority, to refrain from doing anything he is not permitted by law. To do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceedings taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order:-
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without- lawful authority or in an unlawful manner, or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office." (Emphasis provided)
5. A High Court, while passing an appropriate order for the enforcement of Fundamental Rights or under the above sub-clauses (a) and (b) of clause (1) of Article 199 of the Constitution, is not required to go into the question, whether the case involves, a question of public importance and, secondly, under the above sub-clauses- (a) and (b) of clause (1) of Article 199, it is not necessary that the impugned action must be relatable to the enforcement of Fundamental Rights "
12. In case of Shahida Zahir Abhasi v,. President of Pakistan (PLD 1996 SC 632) the provisions enumerated under Articles 184(3) and 199 of the Constitution were examined and it was observed as under:- "From the above discussion it is quite clear that the use of the expression without prejudice to the provisions of Article 199 in the opening part of Article 184(3) merely indicated that the power of the High Court under Article 199 ibid was left intact and has not been affected by conferment of jurisdiction on this Court to deal directly under Article 184(3) of the Constitution with a case which involved a question of Public importance relating to enforcement of Fundamental rights guaranteed under Chapter I of Part II of the Constitution. The language of Article 184(3) does not admit of the interpretation that provisions of Article 199 stood incorporated in Article 184(3) of the Constitution. Therefore, this Court while dealing with a case under Article 184(3) of the Constitution is neither bound by the procedural trappings of Article 199 ibid, nor by the limitations mentioned in that Article for exercise of power by the High Court in a case. The provisions of Article 184(3) of the Constitution are self-contained and they regulate the jurisdiction of this Court on its own terminology. The exercise of jurisdiction by this Court under Article 184(3) of the Constitution is not controlled by the provisions of Article 199 of. The Constitution. I am, therefore, unable to agree with the contention of the learned Attorney-General that provisions of Article 199 ibid are to be read as part of Article 184(3) of the Constitution and therefore, exercise of power by this Court under the latter mentioned Article of Constitution is subject to limitation mentioned in Article 99 ibid The jurisdiction of this Court under Article 84(3) of the Constitution is not affected in any manner either by the provisions of Section 133 of the Act or by the conditions contained in Article 199(3) of the Constitution. The jurisdiction of this Court in a case under Article 184(3) of the Constitution arises' on existence of two conditions mentioned in this Article. Firstly, that the Court considers that the matter brought before it involves a question of* public importance, and secondly, that it relates to enforcement of any of the Fundamental Rights guaranteed under Chapter I, Part II of the Constitution: Apart from these two jurisdictional requirements, no other consideration are relevant for exercise of power by this Court under Article 184(3) of the Constitution." (Emphasis provided)
12. The element of public importance was also discussed at length and it was observed in case of Shahida Zaheer Abbhsi (supra) as under:- "...... It is quite clear that whether a particular case involved the element of "public importance" is a question which is to be determined by this Court with reference to the facts and circumstances of each case. There is no hard and fast rule that an individual grievance' can never be treated as a matter involving question of public importance. Similarly it cannot be said that a case brought by a large number of people should always be considered as a case of "public importance" because a large body of persons is interested in the case. The public importance of, a case is determined as observed by this Court fn Manzoor Ellahi's ease, ' supra, by decision on questions affecting the legal rights and liberties of the people at large, even though the individual who may have brought the matter before the Court is of no significance. Similarly, it was observed in Benazir Bhutto's case, supra, that public importance should be viewed with reference to freedom and liberties guaranteed under Constitution, their Proteus and invasion of these rights in a manner which raises a serious question regarding their enforcement, irrespective of the fact whether such infraction of right, freedom or liberty is alleged by an individual or a group of individuals, in the. Case of Employees of Pakistan Law Commission v. Ministry of Works (1994 SCMR 1548),' Saleem Akhtar, J., relying on the observations in Benazir Bhutto's case, supra,, on the scope of Article 184(3) of the Constitution observed as follows:- "In Benazir Bhutto's case it was observed as follows:- The plain language of Article 184(3) shows that it is open-ended. The Article does not say as to Who shall have the right to move the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved or whether it. Is defined to the enforcement of the . Fundamental Rights of an individual which are infracted or extends to the enforcement of the rights of a group of a class of persons whose rights are violated.
It was further observed that the inquiry into law and life cannot, in my view, be confined to the narrow limits of the rule of law in context of constitutionalism which makes a greater demand on judicial functions. Therefore, while construing Article 184(3), the interpretative approach should not be ceremonious observance of the rules or usages of interpretation, but regard should be had to the object and the purpose for which this Article is enacted, that is, this interpretative approach, must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution, namely the Objectives Resolution (Article 2A), the Fundamental Rights, and the directive principles of State Policy so. As to achieve democracy tolerance, equality and social justice according to Islam" (Emphasis provided)
13. The question of public importance was also discussed in case Zulfiqar Mehdi y.-Pakistan International Airlines Corporation (1998 SCMR 793) with the following observations:- "8. In order to confer-jurisdiction on this Court to entertain a petition under Article 184(3) Of the Constitution, it is necessary that two jurisdictional requirements must be established. Firstly, that the question raised in the petition is a question of public importance and secondly, it relates to the enforcement of a fundamental right guaranteed under Chapter I, Part II of the Constitution (see Wasey Zafar v: Government of Pakistan (PLD 1994 SC 621); and Shahida Zaheer Abbasi v. President of Pakistan (PLD 1996 SC 632). The expression 'public importance' was interpreted' in the case of Manzoor Elahi Federation of Pakistan (PLD 1975 SC 66) as follows:- "Now, what is meant by a question of pubic importance The term 'public' is mvariat , employed in contradistinction to the ternib 'private or individual and connotes, as an adjective, something pertaining to, or belonging to the people; relating to a nation, State or community in other words, it refers to something which ts to be shared or participated in or enjoyed by the public-at-large, and is not limited or restricted to any particular class of the community. As observed by the Judicial Committee of the Privy Council in Hamabai Framjee Petit y. Secretary for India-in-Council (ILR 39 Bom. 279) while construing the words 'public purpose' such a phrase, whatever else it may mean must include a purpose, that is an object or aim, in which the general interest of the community as opposed to the particular interest of Individuals is directly and vitally concerned. This definition appears to me to be equally applicable to the phrase 'public importance.
The learned Attorney-General is clearly right in saying that a case does not involve a question of public importance merely because . It concerns the arrest and detention of an important person like a Member of Parliament. in order to acquire public importance, the case must, obviously raise a question which is of interest to; or affects the whole body of people or an entire community, in other words, the case must be such as gives rise to questions affecting the legal rights or liabilities of the public or the community at large, even though the individual, who is the subject-matter of the case may be of no particular consequence. (Emphasis provided)
Seen in this light, there can be little doubt as to the public importance of the questions arising in this. Case. I think I will not be far wrong in saying that it is not often that a single case raises so many questions of public importance touching the liberty of the citizen, in all systems of law which cherish individual freedom and liberty, and which provide Constitutional safeguards and guarantees in this behalf, any . Invasion of such freedom in circumstances which raise serious questions regarding the effectiveness and availability of those safeguards, must be regarded as a matter of great public importance."
15. The provisions as contemplated in Article 184(3) of the Constitution were also interpreted in case of Benazir Bhutto (supra) and it was observed that "Article 184(3) of the Constitution empowers a Supreme Court to enforce the Fundamental Rights where the question of public importance arises in relation thereto. And if looked at from this angle it is hardly of any importance whether the Executive has passed a. Prejudicial order or mot when the infraction of the Fundamental Rights takes place by the operation of the law itself, in this context what, would be relevant would be the language of the provisions of the impugned Act itself, it will then not be a question of the Court merely granting a declaration as to the validity or invalidity of law in the abstract. An enactment may immediately on its coming into force take away or abridge the Fundamental Rights of a person by its very-terms and without any further overt act being done, in such a case the infringement of the Fundamental Right is complete co instant the passing of the enactment and, therefore, there can be no reason why the. Person so prejudicially affected by the law should not be entitled immediately to avail himself of the Constitutional remedy. To say that a person, whose Fundamental Right has been infringed- by the mere operation of an enactment, is not entitled to invoke the jurisdiction of Supreme Court for title enforcement of his right, will be to deny him the benefit of a salutary Constitutional remedy which is itself his Fundamental Right. The infractions alleged cannot be regarded as. Seeking a declaration in the air or asking the Court to decide, in abstract, and for that matter hypothetical or contingent questions."
15. It was further observed in case of Banazir Bhutto (supra) while discussing Article 184(3) of the Constitution as follows:- "Another important question mooted for consideration is as to whether the requirement of an "aggrieved party" is spelt out from Article 184(3) of the Constitution. The submission of the learned counsel, for the petitioner was that the word "aggrieved" does not find mention in this Sub-Article, and, therefore, it cannot be read into it while that of the learned Attorney-General was that the jurisdiction conferred on the Supreme Court under Article 184(3) is co terminus with that of Article 199 which, by its Sub- Article 1(a) and '1(c) envisaged the application to be made by an "aggrieved party" and that this, requirement should also be read into Article 184(3). in support, of his contention, the learned Attorney- General relied on Ch. Manzoor Elahi v. Federation of Pakistan, PLD 1975 SC 66, Begum Nusrat Bhutto v.- Chief of Army Staff and Federation of Pakistan PLD 1977 SC 657 and Charanjit Lai Chowdhury v. The' Union of India and others AIR 1951 SC.41"
17. In the same wake of events it was also observed in case of Benazir Bhutto (supra) that "the plain language of Article 184(3) shows that it is open-ended. The Article does not say as to. Who shall have the right to move the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved or whether it is confined to the enforcement of the Fundamental Rights of an individual which are infracted or extends to the enforcement of the rights of a group or a class or a class of persons whose rights are violated, in this context, the question arises whether apart from the lion-incorporation of sub-Articles 1(a) and 1(c) of Article 199; the rigid notion of an "aggrieved person" is implicit in Article 184(3) as because of the traditional litigation which, of course, is of an adversary character where there is a tis between the two contending, parties, one claiming relief against the other and the other resisting the claim. This rule of standing is an essential outgrowth of Anglo-Saxon jurisprudence in which only the person wronged Can initiate proceedings of a judicial nature for redress against the wrong-order. However, in contrast to it this procedure is not followed in the civil law system in vogue in some countries. The rationale of this procedure is to limit it to the parties concerned and to make the rule of law selective to give protection to the affluent dr to serve in aid for maintaining the status quo of the vested interests. This is destructive of the rule of law which is so worded in Article 4 of the Constitution as to give protection to all citizens. The inquiry into law and life cannot be confined to the narrow limits of the rule of law in the context of constitutionalism which makes a greater demand on judicial functions. Therefore, while construing Article 184(3) the interpretative approach should not be ceremonious observance of the rules or usages of interpretation, but regard should be had to the object and the purpose for which this Article is enacted, that is, this interpretative approach must receive inspiration' from the triad of provisions which saturate and invigorate the entire Constitution, namely, the- Objectives Resolution (Article 2-A h the Fundamental Rights and the Directive Principles of State Policy so as to achieve democracy, tolerance, equality and social justice according to Islam.
18. The rule of stare decisis was also discussed in case of Benazir Bhutto (supra) with the following observations:- " As to the choice of the forum, it is no doubt correct that ordinarily the forum of the Court in the lower hierarchy should be invoked but that principle is not inviolable and genuine exceptions can exist to take it out from that practice such as in the case where there was a denial of justice as a result of the proceedings being dilatory.
As the human right norm is higher than the law then - any violation and its consequent enforcement. Can only be controlled by an in-built limitation in the provision itself. A rule of practice which has received, recognition as a principle of law is not higher than the norm and the machinery for its enforcement, and, therefore, it cannot control judicial power so as to stultify it until, of course, the petitioner has herself, in the strict sense, elected to seek her remedy from a Court of lower hierarchy exercising concurrent jurisdiction. The reason is salutary that at one and the same time the petitioner cannot be allowed to invoke the two forums in regard to the same relief. She has to choose one or the other. However, there can also be an abuse of this practice if there is an indiscriminate filing of petitions by persons motivated to stultify the exercise of judicial power under Article 184(3) of the Constitution. How then the practice can be strictly adhered to deny to the citizen the remedy under this Article for seeking the enforcement of his Fundamental Rights. The, measure of applicability of the practice has to be judged in the light of the particular facts and circumstances pf each case.
In spite of a Judge's fondness for the written word and his normal inclination to adhere to prior precedents one cannot fail to recognise that it is equally important to remember that there is need for flexibility in the application of this rule, for, law cannot stand still nor can the Judges become mere slaves of precedents. The rule of stare decisis does not apply with the same strictness in criminal, fiscal and Constitutional matters where the liberty of the subject is involved or some other grave injustice is likely to occur by strict, adherence to the rule.
Too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict' the proper development of the law."
19. It was observed in case of Benazir Bhutto (supra) by per Abdul Kadir Sheikh, J. That "it is evident from the language of Article 184(3) that it provides a direct access, to the highest judicial forum in the country for the enforcement of Fundamental Rights, it caters an expeditious and inexpensive remedy for the protection of Fundamental Rights from Legislative and Executive interference it gives the Court very wide discretion in the matter of providing , an appropriate order or Jr action I including declaratory order to suit the, exigencies of particular situations. There .Can be no doubt, th. It, declaration of Fundamental Rights is meaningless unless there is an effective machinery for the enforcement of the rights, it is-the remedy1 that makes the right real, it is often said that without' remedy' there is -no right, it is for this reason that Constitution-makers provided a long list of Fundamental Rights and the machinery for their enforcement. That machinery is the superior Courts, namely, the High Courts so far as the Provincial territory is concerned, and the Supreme Court at the apex having jurisdiction over the entire length and breadth of-Pakistan. Unlike in- Article 199, the Framers of the Constitution placed no limitation nor prescribed any condition or stipulation for obtaining relief and redress under Article 184(3). No strait-jacket formula was prescribed for the enforcement of the Rights. The obvious reason that can be spelled out is that in case the Supreme Court was itself of the view in a given case that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, it should directly interfere, and any rigid formula or strait-jacket formula prescribed for enforcement of the Rights would be self-defeating. The language of Article 184(3) is "open ended", and the Framers of the Constitution did not intend any rigid or ceremonious observance of the rules or usage for the enforcement of the Fundamental Rights, by an individual or a group of class of persons."
20. After having discussed the law laid down in the above-mentioned cases the judicial consensus seems to be. As follows:-
(i) That while interpreting Article 184(3) of the Constitution the interpretative approach should not be ceremonious observance of the rules or usages of the interpretation but regard should be had to the object and purpose for which this Article is enacted i.e. The interpretative approach must receive inspiration from the. Triad of provisions which saturate and invigorate the entire Constitution namely the Objectives Resolution (Article 2-A), the fundamental rights and the directive principles of State policy so as to achieve democracy, tolerance, equity and social justice according to Islam.
(ii) That the exercise of powers of Supreme Court under Article 184(3) is not dependent only at the instance of the "aggrieved party" in the context of adversary proceedings. Traditional rule of locus standi can be dispensed with and' procedure available in public interest litigation can be made use of, if it is brought to the Court by a person acting bona fide.
(iii) That the provisions of Article 184(3), provide abundant scope for the enforcement of the Fundamental Rights, of an individual or a group or class of persons in the event of their infraction and it would be for the Supreme Court to lay down the contours generally in order to regulate the proceedings of group or class actions from case to case.
(iv) That under Article 184(3) there is no.1 requirement that only an aggrieved party can press into service this provision. Supreme Court can entertain a petition under Article 184(3) at the behest of any person.
(v) That the Article 184(3) is remedial in character, and is conditioned' by three prerequisites, namely:- There is a question of public importance.
Such a question involves enforcement of fundamental right, and The fundamental right sought to be enforced is conferred by Chapter I, Part II of the Constitution.
(vi) That it is not every question of public importance which can be entertained by this Court, but such question should relate to the enforcement of Fundamental Rights.
(vii) That even the disputed question of facts which do not require voluminous evidence can be looked into where Fundamental Rights has been breached. However, in case where intricate disputed questions of facts involving voluminous evidence are involved the court will desist fromn entering into such controversies.
(viii) That the. Language of Article 184(3) does not admit of the interpretation that provisions of Article 199 stood incorporated in Article 184(3) of the Constitution. Therefore, this Court while dealing with a case under Article 184(3) of the Constitution is neither bound by. The procedural.
Trappings of Arti. De 199 ibid, nor. By the limitations mentioned in that Article for exercise, of power by the High Court in a case.
(McGabe v. Atchison (1914) 285 U S 151, S.P. Gupta and others v. President of India and others AIR 1982 SC 149, Standard Vacuum Oil Company v. Trustees of the Port of Chittagong PLD 1961 Dacca 289, Saeed Khan v. Chairman, District Council of Bannu PLD 1967 Pesh. 347, Asma Jilani v.
Government of the Punjab PLD 1972 SC 139, Muhammad Boota and 77 others v. Commissioner.
Sargodha Division PLD 1973 Lah. 580, Hakim Muhammad Anwar Babri v. Pakistan PLD 1973 Lah. 817, National Steel Rolling Mills v. Province of West Pakistan 1968 SC.MR 317, Fauji Foundation v.
Shamimur Rehman PLD 1983 SC 457, Abanindra Kumar Maity v. A.K.Majumdar AIR 1956 Cal. 273, Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223, K.K. Kochunm v. State of Madras AIR 1959 SC 725, Jibendra Kishore v Province of East Pakistan PLD 1957; SC 9: Messrs East and West Steamship Company v. Pakistan PLD 1958 SC. (Pak.) 41 and Waris Meah v. The State PLD 1957 SC [Pak.l 157, PLD *1988 SC 413. PLJ 1988 SC 304. PLD 1990 SC 513, Plii 1990 SC 216, NLR 1990 SCJ 309, 1990 RLC 61. PLD 1988 SC 416, PLJ 1988 SC 306, KLR 1988 SC 423, 1988 PSC 809, NLR 1988 CLJ 450).
21. On the touchstone of the criterion as mentioned herein above the case of petitioners has been examined. There is no denying the fact that Mian Muhammad Nawaz Sharif was elected twice as Prime Minister of Pakistan by securing a heavy mandate and Mian Muhammad Shahbaz Sharif remained as Chief Minister of Punjab, it is also an admitted fact that during the General Election held in 1997 Pakistan Muslim League (N) obtained, about 8.8 million votes and thus it can be inferred safely that Pakistan Muslim League (N) is one- of the biggest parties of Pakistan. According to Mr. Fakhr-ud-Din G. Ebrahim, learned Sr. ASC the number of its members is more than four millions but authenticity whereof cannot be determined by this Court, it is, however, also, not disputed that Mian Muhammad Nawaz Sharif remained as Prime Minister of Pakistan till 12th October, 1999. Mr. Fakhr-ud-Din G. Ebrahim, learned Sr. ASC in. The case oi Mian Muhammad Shahbaz Sharif has referred the order dated 7.4.2004 passed by this Court in Constitutional Petition No. 55 of 2003 which was dismissed with the observation that "it is not denied by learned Attorney General for Pakistan and Advocate General Punjab nor so could be denied that Article 15 of the Constitution bestows a right on every citizen of Pakistan to enter or move freely throughout the country and to reside and settle in any part thereof, it is a settled. Proposition of law that the right to enter in the country cannot be denied but a citizen can be restrained from going out of- the country The petitioner is a citizen of Pakistan and has a constitutional right to enter and remain in the country." it is an admitted fact that the present Provincial and National Assemblies would complete their term on or about 15th of November. 2007 and General Elections are to be scheduled to be held during the course of this year and therefore, the petitioners as leaders of a national political party elected twice by the people of Pakistan has every right to return to organize their party and to. Participate in the General Elections subject to all legal exceptions. We are in agreement with the view of Mr Fakhr-ud-Din G. Ebrahim, learned Sr. ASC that the party workers of Pakistan Muslim League (N) are eagerly and anxiously waiting for their leaders namely Mian Muhammad .Nawaz Sharif and Mian Muhammad Shahbaz Sharif, in the above-mentioned' scenario if these petitions are examined the only inescapable conclusion would be that the same are maintainable under Article 184(3) of the Constitution, it is, however, to be kept in view that the earlier petition preferred on behalf of Mian Muhammad Shahbaz Sharif was dismissed being non- maintainable as it was filed in his individual capacity and for the redressal of his individual grievances and the element of public importance which is sine qua non for the invocation of Article 184(3) of the Constitution was missing and it is well-established by now that the issues arising in a case, cannot be considered as a question of public importance,, if the decision of issues affects only the rights of an individual or a group of individuals. The issue in order to assume the character of public importance must be such that its decision affects the rights and liberties of people at large. The adjective 'public' necessarily implies a thing belonging to people at large, the nation, the State or a community as a whole. Therefore, if. Controversy is raised in which only, a particular group of people is interested and the body of the people as a whole or the entire community has no interest, it cannot? Be treated as a case of public importance. Now the position has been .Changed altogether and the above captioned petitions have been preferred by the Central Working Committee on behalf of Pakistan Muslim League (N) which has got its own import, significance and it has assumed a character of public importance which also involves the question of enforcement of Fundamental Rights. As mentioned herein above while construing Article 184(3) of the Constitution the interpretative approach should not be ceremonious observance of the rules or-usages of interpretation, but regard should be had to the object and the purpose for which this Article to enacted, that is, this interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution, namely the-Objectives Resolution (Article 2A), the Fundamental Rights, and the directive principles of State Policy so as to achieve democracy tolerance, equality and social justice according to Islam.
22. The concept of "political rights" and "political justice" cannot be ignored in such-like cases. At a cursory glance one may not find the element of "political justice" in all the Fundamental Rights guaranteed by the Constitution but an in-depth scrutiny would reveal that the concept of "political justice" is floating in Chapter-1 of the Constitution concerning "Fundamental Rights" even otherwise the "political justice" is not a new phenomena and it was observed more than a decade by Mr Justice Zaffar Hussain Mirza (as his lordship then was) that "the expression "political justice" is very significant and it has been placed in the category of fundamental rights. Political parties have, become a subject matter of a fundamental right in consonance With the said. Provision in the Objectives Resolution. Even otherwise, speaking broadly on the. Model' of Parliamentary form of representative Government prevalent in United Kingdom, it is also clear from the Objectives Resolution that principles of democracy as enunciated by Islam are to be fully observed." (Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416). The concept of "political justice" deserves consideration in suchlike cases and therefore, it would be an\additional factor on the basis whereof the jurisdiction as conferred upon this Court under - Article 184(3) Of the Constitution can be exercised.
23. We have also adverted to the main stance of learned Attorney General that petitioners had proceeded abroad as a result of an agreement pursuant whereof an undertaking was given that the petitioners would remain in Saudi Arabia, the country of their own choice, and would not participate in the politics for ten years, in order to substantiate the said stance heavy reliance has been placed on the undertaking furnished by the petitioners which is reproduced herein below for ready reference:- "I, the undersigned, Muhammad Nawaz Sharif, hereby acknowledge that I approved the gentleman's assistance to negotiate on my behalf for my release from incarceration in Pakistan. I, the undersigned, further acknowledge that I am thoroughly satisfied with the course and results of the negotiations on my behalf that I have been kept fully advised on the negotiations: that I have been in full agreement with the negotiations and that I fully agree with and accept the result.
(Emphasis provided)
Upon my arrival in, the country, I have approved to go to, I, the undersigned, hereby covenants and agree that I will not engage in any business or political activities or other activities of any nature whatsoever against the interests of Pakistan or relating to my incarceration in Pakistan for a period of 10 years. (Emphasis provided)
Further, I, the undersigned, agree to stay out of Pakistan for 10 years where my residence will be in the country I approved but I will be able to travel on the condition I will come back to my residence for stay. (Emphasis provided)
I, the undersigned, further agree that I will not, disclose to any party either the gentleman or the country involved in my release from Pakistan and relocation to in the approved location except with their prior written consent. "
Also, I, the undersigned, hereby specifically release all parties involved from any claim of any nature whatsoever I have or may have had relating to the gentleman negotiating on my behalf and my release from Pakistan and relocation to the country approved by myself."
(Signed this 2nd day of December, 2000 Both the undertakings made by the Sharif brothers are having the same text).
24. A bare perusal of the undertaking would reveal that certain assurances had been given such as residing in Saudi Arabia and non-participation in political activities in Pakistan for ten years, it is worth mentioning that the authenticity and genuineness of the undertaking duly signed by the petitioners has not been questioned by Mr. Fakhr-ud- Din G. Ebrahim, learned Sr. ASC on behalf of petitioners, however, its evidentiary value and admissibility was objected to seriously, it is to be noted that an undertaking cannot be equated to that of an agreement which has its own peculiar characteristics, connotations, import and significance. The striking difference between the two would be the element of enforcement. The agreement can be enforced legally but an undertaking cannot because it has got no legal sanctity behind it. For the sake of argument if it is admitted that an agreement was executed by the petitioners even then the question would. Be as to whether it can be enforced by invocation of Constitution jurisdiction the Answer would be in negative for the simple reason that Constitutional jurisdiction is not available to enforce the "contractual rights and obligations of the parties as it squarely falls within the jurisdictional domain of ordinary Courts and no relief can be granted while exercising the Constitutional jurisdiction. The High Court in exercising its writ jurisdiction will be loath to interfere in matters arising out of contractual obligations merely for the purpose of enforcing contractual obligations notwithstanding the very extensive nature of the power of the High Court under that Article." (1990 MLD 563 (DB), PLD 1992 Lah. 68 (DB), 1990 CLC 2007, 1990 CLC 560 (DB), PLD 1987 Lah. 262, PLJ 1987 Lah. 227 NLR 1987 Civ 371, PLD 1986 Quetta 187, PLJ 1986 Quetta 187 (DB), PLD 1973 Kar. 878 (DB), 1971 DLC 250 (DB). PLD 14966 Dacca 576 (DB), 1990 CLC 2007, 1985 CLC 2805, NLR 1985 Civ. 69, NLR 1978 Civ. 1114 (DB), PLD 1969 Dacca 779 (DB), PLD 1969 Lah. 823 (DB), 1968 SCMR 1136, 1969 DLC 449, 21 DLR 394 (DB), 1970 DLC 387, 22 DLR 235 (DB), PLD 1962 SC. 108, 1962 (2)P.S.C.R 87, 14-DLR(SC) 102, PLD 1958 SC 267. PLR 1958 (2) WP 1369, PLD 1959 SC 147, PLR 1959 (2) WP 501, 1959 (1) P.S.C.R. 34, 11 DLR (SC) 260, AIR 1953 Punj. 239, AIR 1952 Raj. 151, ILR (1951) 1 Raj.
755(DB), AIR 1952 Vindh Pra 13, ILR (1951)1 Raj. 496 (DB).
25. Be as it may, the petitioners being citizens of Pakistan can return to their country as no restraint can be placed on a Pakistani citizen to return to his country and the undertaking given by the petitioners had no Constitutional legitimacy as such, the petitioners cannot be prohibited from coming to Pakistan. Evefy citizen has undeniable right vested in him as conferred under Article 15 of the Constitution to go abroad and return back to Pakistan without any hindrance and-restrain but it must be kept in view that it is neither absolute nor unqualified as is indicative from the language employed in Article 15 of the Constitution as a specific mention has been made "subject to any reasonable restriction imposed by law in the public interest", meaning thereby that such right is subject to the relevant law which is inexistence at relevant time but "an action which is mala ' fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Therefore action taken upon no ground at all or without proper application of the mind, of an authority would also not qualify as an action in accordance with law and would, therefore, have to be struck down as being taken in an unlawful manner." (PLD 1973 SC 49, PLD 1969 SC 14, 21 DLR [SC] 1): it is well-settled by now that every citizen has an inalienable right to enjoy the protection of law and to be treated in accordance with law 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. No action detrimental to such Fundamental' Rights can be initiated except in due course of law. 1h this regard we are fortified by th edictum laid down in the following authorities:-- (PLD 1990 Lah. 432, NLR 1990 ACy812, 1990 MLD 1468, PLJ 1990 Lah. 380, NLR 1990 Civ. 485, PLD. 1989 Lah, 175, 1988 CLC 545, PLJ. 1988 Lah. 189, NLR 1988 Civ. 203, 1988 Law Notes 247, 1985 PCrLJ 360)
26. It may not be out of place to mention here that there is no inherent power in the executive, except what has been vested in it by law, and that law is the source of power and duty. The structure of the machinery of government, and the regulation of the powers and duties which belong to. The different parts of this structure are defined by the law, which also prescribes, to so me extent the mode in which these powers are to be exercised or those duties performed. From the all-pervading presence of law, as the sole source of governmental powers and duties, there follows the> consequence that the existence or non-existence of a power or duty is a matter of law and not of fact, and so must be determined by reference to some enactment or reported case.
Consequently there are no powers or duties inseparably annexed to the executive Government, it cannot- be argued that a vague, indefinite and wide, power has been vested in the executive to invade upon the proprietary rights of citizens and that such invasion cannot be subjected to judicial scrutiny if it is claimed that it is a mere executive order. This is not the position in law. Any invasion upon the rights of citizens by anybody no matter whether by a private, individual or by a public official or body, must be justified With reference to some law of the country. Therefore, executive action would necessarily have to be such that it could not possibly violate a Fundamental Right. Th6 only power of the executive to take action would have to be derived from law and the law itself would not be able to confer upon the . Executive any power to deal with a citizen. Or other persons in Pakistan in contravention of a Fundamental Right Functionaries of State, are to. .Function strictly within the sphere allotted to them and in accordance with law. No Court or Authority is entitled to exercise power-not vested in it and a citizens have an inalienable right lo be treated in accordance with law- Therefore, an action of an Authority admitted to be derogatory to law and Constitution, Pliable to be struck down." (PLD.1976 Kar. 1257 (DB), PLD 1967 Dacca 607 (DB), 19 DLR 689, 1990 CLC 1772, PLJ 1990 Lah. 369, NLR 1990 Civ. 694, 1990 MLD 1468, PLJ 1990 Lah 380. NLR 1990 Civ.485).
27. It is bounden duty of the Executive to respect an ordinary legal right of a subject in the same way as a Fundamental Right. For it is an established principle of British Jurisprudence which rainy be treated as constituting a part of the Pakistan law also, that no member of-the executive can interfere with the liberty or a property of a subject except on the condition that he can support the legality of his action before a Court of Justice. (AIR 193T P.C. 248, A.K. Gulbalan v. State of Madras MR 1950 SC 27, (1952)
61. Yale Law Journal 171 [203], Kent v. Dulles 357 U S .11.6. Apeervzatbam v.
Permanent Secretary, Ministry of Defence and External Affairs and others Journal of the International Commission of Jurists, Vol. VI, No. 2, p. 319, Winter (1965 Part) and Satwant Singh Sawhney v. The Government of India Journal of the International Commission of Jurists, Vol. VHI, No. 2, p. 134 (December 1967 Part).
28. The Fundamental Rights can neither be treated lightly nor interpreted in a casual or cursory manner but while "interpreting Fundamental Rights guaranteed by the Constitution, a cardinal principle has always to be borne in mind that these guarantees to individuals are subject to the overriding necessity or interest of community. A balance has to be struck between these rights of individuals and the interests of the community. If in serving the interests of the. Community, an individual or-number of individuals have to be put to some inconvenience and loss by placing restrictions. On some of their rights guaranteed by the Constitution, the restrictions can never be considered to be unreasonable." (Nasirabad Properties Ltd. v. Chittagong Development Authority PLD 1966 Dacca 472).
29. No infringement or curtailment in? Any Fundamental Right can be made unless it is in the public interest and in accordance with valid law. No doubt that reasonable restriction can be imposed but it does, not mean arbitrary exercise of power or unfettered or unbridled powers which surely would be outside the scope of "reasonable restriction" and it must be in the public interest. The concept of "reasonable restriction" was discussed in case East and' West Steamship Co. v. Pakistan (PLD 1958 SC [Pak.] 41) as follows:- "A reasonable restriction" in the sense of Article 11 is one which is imposed with due regard to the public requirement which it is designed to meet. Anything which is arbitrary or excessive will of course be outside the bounds of reasons in the relevant regard, but in considering the disadvantage imposed upon the subject in relation to the advantage which the public derives, it is necessary that the Court should have a clear appreciation of the public need which is to be metad where the statute prescribes a restraint upon the individual, the Court should consider whether it is a reasonable restraint, in the sense of not bearing excessively on the subject and at the same time being the minimum that is required to preserve the public. Interest."
30. It, however, cannot be lost sight of that the Fundamental Rights guaranteed by the Constitution are not meant merely to be pious enunciations of certain principles supposed to be the basis of the Constitution. The characteristic of a Fundamental Right is its paramount by to ordinary State- made laws. They are immune from the pale of legislative enactments and executive* actions. They constitute express Constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law settled by. The deliberate wisdom of the nation. The sanctity of the Fundamental Rights is protected by Article 8(2) which prohibits the State which includes the Legislature not to- make any law by which any Fundamental Right may be curtailed or taken away and if any law is made to this effect then to the extent of such contravention it shall be void, it is not liable to be abridged by any legislative or executive orders except to the extent .Provided in Art. 233. Fundamental rights cannot be waived. No right which is based on public policy can be waived. Citizens of Pakistan cannot themselves out of the various fundamental rights which the Constitution grants them. The fundamental rights are not to be read as if they, included the words subject to a contract to the contrary," (AIR 1952 Punj. 309, ILR 1952 Punj.
381 (FB), AIR 1950 S.C. 27, 1950 S.C.R. 88, PLD 1989 Kar. 404 (DB), AIR 1950 S.C. 27, AIR 1951 Hyd. 1 (FB), PLD 1989 Kar. 404 (FB), AIR 1951 S.C. 41, 1950 S.C.R. 869, PLD 1965 SC 527).
31. It is worth mentioning that no fundamental right can be surrendered or waived by means of any agreement or an undertaking as argued by Raja Muhammad Ibrahim. Satti,-Learned ASC and Malik Muhammad Qayyum, teamed Attorney General for Pakistan because "the idea behind the concept of Fundamental Rights is that the. Preservation of certain basic human rights against State interference is an indispensable condition of free society. The paramountcy to State-made laws is the hallmark of a Fundamental Right, it follows that the aim of having a declaration of Fundamental Rights is that certain elementary rights of the individual such as his right to life, liberty freedom of speech, freedom of faith and so on, should be regarded as inviolable under all conditions and that he shifting majorities in the Legislatures of the country should not be able to temper with them. Absolute and unrestricted individual rights do not exist in any modem State and there is no such thing as absolute and uncontrolled liberty. The collective interests of the society peace and security of the State and the maintenance of public order are of vital importance in any organized society Fundamental Rights have no real meaning if the State itself is in danger and disorganized. If the State is in danger, the liberties of the subjects are themselves in danger, it is for these reasons of State that an equilibrium has to be maintained between the two contending interest, at stake; one, the individual liberties and the positive rights of the citizen which are declared. By the Constitution to be Fundamental, and the other, the need to impose social control and reasonable limitations on the enjoyment of those rights in the interest of the collective good of the Society." (AIR 1951 All. 257, ILR (195.1)1 All. 269 (FB), (AIR 1950 S.C. 27, 1950 SCR.88), AIR 1952 Mad.613 (DB), PLD 1-965 Lah. 642 (FB).
32. Now we intend to discuss the provisions as. Contemplated in Article 15 of the constitution for the purpose of interpretation which is reproduced herein below for ready reference:- "Art. 15:- Freedom of movement, etc. Every citizen shall have the right to remain in, and, subject to any reasonable restriction imposed by law in the public interest, enter sand move freely throughout Pakistan and to reside and settle in any part thereof."
33. The language employed in Article 15 of the Constitution is free from any ambiguity and no scholarly interpretation would be needed, "in interpreting a provision of a Constitution the widest construction possible in its context, should be. Given according to the ordinary meaning of the words used, and the general words should be held to extend to all ancillary and subsidiary matters.
A Constitution is not to be interpreted in a narrow or technical manner, and a construction which leads to a legal vacuum is to be avoided." (PLD 1959 Supreme Court 470, PLR 1960(1) W.P. 253, 11- DLR
(SC) 423/1959 (2) P.S.C.R. 275. PLD 1974 Kar. 345, PLJ 1974 Kar. 258 (FB).
34. It is, however, to be noted that right conferred upon a citizen is neither absolute nor unlimited but subject to "reasonable restriction" imposed by law in the public interest which means that this right can be restricted by .Imposing "reasonable restriction of law in the public interest, in other words "the State has power to impose reasonable restrictions on the right of freedom of movement of a free citizen where such restriction is necessary in the interests of the general public. Thus the law restricting the movement of prostitutes in a part of the town, or restriction movements of a person under Goonda Act or reasonable restrictions. A restriction is unreasonable if it is for an indefinite or an unlimited period Or a disproportionate to the mischief sought to be prevented or if the law imposing the restrictions has not provided any safeguard at all against arbitrary exercise of power." (AIR 1953 Assam 77, ILR (1.942) 4 Assam126, 1953 Cri L Jour 657, AIR 1953 Punj. 52, ILR 1952 Punj. 362,1953 Cri L Jour 421(DB), PLD 1958 Lah. 929, PLR 1959 (1) W.P. 528, AIR 1964 SC 416, PLD 1957 Lah. 388, PLR 1957 (1) W.P. 1062 (QB). For contrary decision see AIR 1961 SC 294, 17 DLR 553).
35. The prime Contention of Mr. Fakhr-ud-Din G. Ebrahim, learned Sr. ASC is that Article 15 of the Constitution confers a right on every citizen, of Pakistan to enter or move freely throughout the country and to reside and settle in any part thereof without any restrain or hindrance. Before the said contention could be discussed it is noticeable that in case of Muhammad Shahbaz Sharif v: Federation of Pakistan (PLD 2004 SC 583) the provisions as contemplated under Article 184(3) and Articles 15 and 4 of the Constitution were discussed at length with the following observations:- "16. Clause (3) of Article 184 and sub-clause (c) of clause (1) of Article 199 of the Constitution are for the enforcement of any of the fundamental rights conferred by Chapter I of Part II. For their proper appreciation, they are reproduced below:- "Article 184(3): Without prejudice to the ^provisions of Article 199, the Supreme Court, shall, if it considers that a question of public importance with reference to the enforcement Of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
"Article 199(1): Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law.
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may. Be appropriate for the enforcement of any. Of the Fundamental Rights conferred by Chapter of Part II.
17. Articles 199 and 184(3) regulate the jurisdiction of the superior Courts and do not oust it. Perusal of clause (3) of Article 184 unequivocally postulates That two conditions are precedent for invoking said clause. Firstly, the petition must clearly demonstrate that the grievance relates. To violation of fundamental rights. Secondly, the violation is of nature of public importance, which has been interpreted to mean any invasion of individual freedom, liberty, fundamental rights, including effectiveness and safeguard for their implementation. Therefore, .Having-, regard to the connotation of the words "public importance", the facts and circumstances of the each case would have to be scrutinized on its own merits."
36. While discussing article 15 of the Constitution it was affirmed that it bestows a right on every citizen of- Pakistan to enter or move freely throughout the country and to reside and settle any part thereof, it, is a settled principle of law that the- right to fenter in the country cannot be denied but a citizen can be restrained from going out of the country. ' The petitioners are citizens of Pakistan and have a Constitutional right and a sacred prerogative to enter and remain in Pakistan.
37. It is, however, to be noted that where a fundamental right is sought to be restricted by any law care should be taken that they provide sufficient safeguards1 against casual, capricious or even malicious exercise of the powers conferred by them, in this respect it must be remembered that though a law may not in terms restrict the exercise of certain right under this article yet if it has the effect of doing so, it will be open to challenge (AIR 1961 S.C. 293; AIR 1952 S.C.115, 1952 S.C.R. 572). Be, as it may in "the case of citizens of Pakistan, there is a fundamental right to enter Pakistan from outside and, therefore, any restriction of such right will be an invasion of this Article. The imposition of restrictions by requirement of permits, etc. is justified as a reasonable restriction in the public interest. But a law which subjects a citizen to the extreme penalty of a virtual forfeiture- of a citizenship upon conviction for a mere breach of the permit regulations or upon a reasonable suspicion of having- committed such a breach can hardly be justified upon the ground that it imposes a reasonable restriction upon the fundamental right to reside and settle in the country, in the interests of the public." (PLD 1969 Lah. 908, PLR 1969 (2) W.P. 298, 22 DLR (W.P.) 57 (DB), AIR 1952 All. 257, ILR (1952) 1 All 513 (DB), AIR 1952 Cal. 837, 1952 Cri L Jour 1683 (DB), AIR 1953 Nag. 185, ILR 1951 Nag. 328 (DB), The Supreme Court speaks by Leo Pfeffer, P 238, AIR 1954 S.C. 229. 1954 S.C.R. 933).
38. We have also adverted to the contention of Raja Muhammad Ibrahim Satti, learned ASC that the. Petitions are hit by laches and deserve dismissal on this score alone. We are not persuaded to agree with Raja Muhammad Ibrahim Satti, learned .ASC because Fundamental Rights cannot be denied or infringed or curtailed on the ground of laches, it depends upon a citizen to exercise such right when he so wishes and no time limit can be prescribed for claiming such right because the Fundamental Rights enshrined in the Constitution are always considered paramount and cannot be curtailed, usurped or infringed by any legislative device, or executive measurement, however, it is subject to any reasonable restriction that may be imposed by. Law in the public interest. No such reasonable restriction could be pointed out by the learned Attorney General for Pakistan imposed on the petitioners by law in the public interest. The undertaking as mentioned herein above cannot be equated to that of "legal restrictions imposed in the public interest". "The fundamental right granted by Article 15 of the Constitution is backed by international norms. Article 9 of the Universal Declaration of human Rights declares: "No one shall be subjected to arbitrary arrest, detention or exile." Furthermore, Article 13 states: "Everyone has the right to leave any country, including his own, and to return to his country." The Human Rights Declaration itself draws its inspiration in this regard from the Magna Carta, which, as early as 1215, proclaimed: "No ... Man shall be outlawed or exiled ...
Except by the lawful judgment of his equals or by the law of the land". Although the Human Rights Declaration is not a legally binding treaty, its provisions are considered' customary international law and binding, as such, on all member states of the United Nations and therefore on Pakistan,.
Although the International. Covenant on Civil and Political Rights (ICCPR), the treaty that gives legal force to many of the rights proclaimed in the Human Rights Declaration, does not expressly prohibit exile, it codifies; the right to return. It's Article 12(4) states that "no one shall be arbitrarily deprived of the right to enter his own country". The substance of Article 12(4) implicitly prohibits forcible exile, since an order that would force a person to leave his country would in effect restrict his return to the country and therefore: would be in violation of this Article, it, is evident that both national and international law forbid forcible exile. For whatever reason, a government cannot force individuals to leave their own country or prohibit their return. Notwithstanding national and international efforts to outlaw political exile, the practice persists in authoritarian and/ politically under- developed societies as arr undesirable legacy of ancient times. (The natives' right to return by-Dr. Tariq Hassan). "
39. The upshot of the above-mentioned discussion is that no restricting can be imposed on the right of the petitioners to enter into Pakistan and they can come to. Pakistan whenever they so desire. These are the reasons for our short order dated 23.8.2007 which is reproduced herein below for ready reference:- "For reasons to be recorded separately, both the captioned petitions, being maintainable, are accepted.
2. It is declared that Mian Muhammad Nawaz Sharif and Mian Muhammad Shahbaz Sharif, under Article 15 of the Constitution of Islamic Republic of Pakistan, 1973 have an inalienable right to enter and remain in country, as citizens of Pakistan. Their return/entry-country shall not be restrained, hampered or obstructed by the Federal or Provincial Government Agencies, in any manner.