' The petitioner, a citizen of Pakistan has invoked constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for seeking following reliefs in the matter:---
(a) That this Honourable Court may graciously be pleased to declare that the black-listing of the passport of the petitioner by the FIA is illegal, unlawful and void and liable to be set aside.
(b) That this Honourable Court may graciously be pleased to declare that the petitioner being free citizen of this country has every right to move freely by going abroad and returning back without any hindrance whatsoever.
(c) Monetary compensation in the sum of Rs,2 million (Rs,20,00,000) be awarded to the petitioner for violation of his fundamental rights.
(d) Any other additional relief as this Honourable Court may deem fit and proper in the circumstances of the case.
(e) Cost of the proceedings."
2. In brief, case of the petitioner is that on his arrival at Jinnah International Airport, Karachi on 10-3- 2008 at 4-30 p.m. Through Oman Airline Plane, he was illegally and unlawfully detained by the FIA officials, whereafter his Passport was retained and an endorsement "Hit is Pisces", was made on it, meaning thereby as blacklist passport on the complaint dated 12-11-2007 of Embassy of Pakistan at Muscat. On failure of the petitioner to get back his passport from the FIA official, despite hectic efforts, as detailed in paragraphs six and seven of the petition, he filed petition bearing No,D-1287 of 2008, before this Court wherein status-quo order was passed on 24-6-2008. Getting knowledge of such order, next day, the delivery of said passport was made with reference to the letter dated 27th June, 2008 issued from the office of the Directorate General, Immigration and Passports, (BL. Cell), Government of Pakistan, Islamabad, wherein petitioner was informed about blacklisting of his passport. According to the further case of the petitioner such action was taken by the Official Respondents at the behest of respondents Nos.4 and 5, due to some family dispute as detailed in paragraphs 7, 8 and 9 of the petition, which in turn had resulted in the issuance of letter dated 12- 11-2007 by the Embassy of Pakistan at Muscat. The petitioner has challenged the action of respondents, interalia, on the following grounds:---
(A) That the passport of the petitioner has been blacklisted illegally, unauthorizedly and without lawful reason and in clear violation of the Constitution of Pakistan, (1973), hence the letter dated 27-6-2008 is liable to be set aside by this Honourable Court.
(B) That the impugned letter dated 27-6-2008 issued by the respondent No,3 is motivated with and mala fide and the petitioner has been made a victim of conspiracy and intrigues by respondents Nos.5 to 7.
(C) That the acts and deeds of, respondents are in excess of their authority and are liable to be struck down.
(D) That the fundamental rights as guaranteed to the petitioner under Articles 2-A, 4, 9 and 15 of the Constitution, 1973 have been violated by the respondents thus the impugned action is unlawful and illegal.
(E) That the respondents have violated the order dated 24-6-2008 (Annexure "H") passed by this Honourable Court in C.P.No,1207 of 2008 which clearly shows that the respondents gave no respect and sanctity to the order of this Honourable Court and blacklisted the petitioner by abusing the powers and process of law."
4. On notice of this petition, reply has been submitted on behalf of respondent No,2, justifying their action against the petitioner on the plea that the action taken against him is based on the complaint of the Embassy of Pakistan at Muscat dated 12-11-2007.
5. On behalf of respondent No,5, also reply/objections to this petition have been submitted wherein, reference of some custody dispute of children, which has taken place in Oman has been made and further action taken against the petitioner has been justified on that account.
6. At the outset Mr. Rasheed A Rizvi learned counsel for the petitioner has made reference to the provisions of Articles 4, 9 and 15 of the Constitution, and contended that such fundamental rights guaranteed under the Constitution have been violated by the official respondents for no valid reason whatsoever and even no opportunity of hearing was afforded to the petitioner before taking such drastic action against him, at the behest of respondents Nos.4 and 5, who are retired senior bureaucrat in the Pakistan Government. In support of his submissions that in such circumstances, action taken by the official respondents in blacklisting his passport is unconstitutional and illegal, learned counsel placed his reliance upon the cases of Government of Pakistan and another v.
Dada Amir Haider Khan PLD 1987 SC 504 and Pakistan Muslim League (N) through Khawaja Muhammad Asif, MNA and others v. Federation of Pakistan through Secretary Ministry of Interior and others PLD 2007 SC 642.
7. In the first case examining the provisions of Passports Act (Act XX of 1974) vis-a-vis, the scope of Articles 4, 9 and 15 of the Constitution, it was held that every citizen has liberty of free movement subject to law and in case some public authority exercises its discretion to restrict such movement, based on the statute, such exercise must be made fairly, reasonably and in good faith. After detailed discussion of case-law, Appeal preferred by the Government was dismissed with costs with the observation that the declaration granted by the High Court to the effect that the refusal to issue a passport to respondent is without lawful authority and of no legal effect is upheld, inter alia, because respondent was neither heard before refusing the issuance of passport nor any ground was communicated to him for not doing so nor even told that the reasons for not issuing it were of such sensitivity that their disclosure was not in the public interest. In other case a Larger Bench of the Honourable Supreme Court had examined in detail the scope of Article 15 of the Constitution and held that no' infringement or curtailment in any fundamental right can be made unless it is in the public interest and in accordance with law. The reasonableness of such action was also emphasized with further observation that no fundamental right can be surrendered or waived even by means of any agreement of undertaking.
8. Mr. Rasheed Rizvi also made reference to section 8 of Passports Act, 1974, to further strengthen his submission that no powers were vested with the official respondents to take action against the petitioner in the manner as highlighted in the petition. According to him this provision of law only empowers cancellation, impoundment, and/or confiscation of passport in a prescribed manner and procedure as detailed in it. For convenience sake section 8 (ibid) is reproduced as under:-- "8. Power to cancel, impound or confiscate passport.--- (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, be required to be returned and shall also be liable to be cancelled, impounded or confiscated by like order.
(2) Subjects 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 if it is necessary in the opinion of the Secretary or such other officer to take immediate action, but an opportunity to show cause against the making of order shall be afforded to the person to whom the order relates, within two weeks from the making of the order.
(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 Pakistan's relations with any foreign power, it shall not be necessary to give to such person the notice provided for in subsection
(2) or to afford him 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.
9. A bare reading of subsection (1) of the above provision of law goes to show that passport, even after its issuance, remains the property of Federal Government; it empowers Secretary to the Government of Pakistan to seek its return or to pass an order for its cancellation, impounding or confiscation. Subsection (2) makes it mandatory upon the Federal Government that before taking any such action, a Show-cause notice is to be issued to such holder of passport, which can, however, be dispensed with under the proviso to subsection (2), if it is necessary in the opinion of the Secretary or such other officer of the Government to take immediate action, in such situation, the opportunity of hearing is to be afforded within two weeks of making such order. Subsection (3) to section 8 is an exception to the general rule of an opportunity of hearing to the passport holder, and visualizes a situation where the holder of passport is engaged in subversive activities or in activities which are prejudicial to the interest of Pakistan or Pakistan's relations with any foreign power, in such situation, the condition of show-cause notice or affording of an opportunity of hearing provided under subsection (2) can be dispensed with subject to fulfilment of such condition. Subsection (4) further prescribes a period of 30 days to the aggrieved person for filing of the review application to the Federal Government, if an adverse order is passed under subsection
(1) or (3) above.
10. In reply to the submissions of Mr. Rasheed Rizvi, Deputy Attorney General Mr. Umer Hayat Sandhu has strongly opposed grant of any relief to the petitioner on the plea that action taken by the officials of FIA is based on the compliant of Embassy of Pakistan at Muscat, dated 12-11-2007, which shows that during his stay at Muscat, the petitioner not only entangled himself in a dispute with the family members of respondent No,5, but he also misbehaved with the staff of Pakistan Embassy and filed a false complaint against them, which was later on dismissed by the Court at. Muscat. He also placed reliance upon the provisions of section 8 of the Passports Act, 1974 to justify the action of blacklisting of passport by the FIA authorities. However, from the record, he could not show that such action was in conformity with the said provision of law, which mandates an opportunity of hearing to the concerned person. To meet this situation he specifically relied upon B subsection (3) to section 8 (ibid) to show that in a situation covered by subsection (3) no opportunity of hearing was to be extended to a person who was found involved in subversive activities or in activities which are prejudicial to the interest of Pakistan or Pakistan's relations with any foreign power. In our view subsection (3) also does not come to the rescue of official respondents as regards their illegal action against the petitioner, as admittedly the petitioner was not involved in any subversive activities or in activities which are prejudicial to the interest of Pakistan or Pakistan's relations with any foreign power. Mere fact that the petitioner or his son has filed some complaint at Muscat Court wherein he had also impleaded some of the members of the Embassy of Pakistan at Muscat, would not mean that the petitioner is a person involved in subversive activities etc. Even the letter of the Embassy of Pakistan at Muscat, which makes reference of some dispute between the family of respondent No,5 and the petitioner does not contain any allegation, which can be termed to be subversive activities against the country or covered by any other situation visualized under subsection (3) to section 8 of the Passport Act, 1974. Over and above, there is no denial of the fact that no opportunity of hearing was afforded to the petitioner at the time when such punitive action was taken against him on 10-3-2008 on his arrival at Karachi, or even thereafter.
11. This being the position, we have no hesitation to observe that the action taken by the official respondents against the petitioner on 10-3-2008 and their subsequent action of black listing his passport is not only in violation of the fundamental rights guaranteed to him under Article 15 of the Constitution, but also against the fundamental principles of natural justice (Audi Alteram Partem), which is to be read as part and parcel of every statute, even if not specially provided in it. Though in the instant case section 8 of Passport Act, 1974, referred by Mr. Umer Hayat Sandhu, specifically contemplates for an opportunity of hearing to the concerned party in a like situation. The case-law referred at the Bar, as discussed above, also fortify our view.
12. This being the position, ,we allow this petition in terms of prayers (A) and (B) of the petition and with the observation that in future the official respondents shall be careful in taking such arbitrary action against any citizen of this country, else they will be liable for penal action, which may entail, inter alia, consequences of imposition of heavy, costs.