The petitioner who, claims to be an exporter of hand made woollen carpets, of the value of crores of rupees to various foreign countries, for the last about 15 years, applied to the State Bank of Pakistan for form 'p' vide his application dated 6th November, 1979, alongwith an undertaking to return the unspent foreign exchange. As. No permission was granted within the usual time, the petitioner sent two reminders informing the State Bank that delay of each day was causing him huge loss, as carpets worth about 20 lacs of rupees, exported by him, were lying in the godowns of various foreign countries and that he was required to be present there to attend to their sales. The State Bank, despite reminders, did not favourably respond. The petitioner, therefore, filed the present writ petition. It transpired on a notice to the Deputy Attorney-General that the Government had impounded for four months the petitioner's passport under the proviso to section 8 (2) of the Passport Act vide order dated 10th April, 1980. Consequently, the petitioner submitted an amended petition to challenge that order as well.
2. The learned counsel for the petitioner argued that as the passport is a valuable document facilitating petitioner's journey abroad, for his business. It could not have been impounded without applying mind and giving valid reasons even though the respondents may claim a power of doing so without a notice. He relied on a recent judgment of this Court in Habib Jalib v.
State Bank of Pakistan (PLD 1980 Lah. 561) in support, Reference was also made to the case of Syed Abul Ala Maudoodi (PLD 1969 Lah. 908 ) wherein Akram, J. Held that an individual in Pakistan enjoys an undeniable right to go abroad for travel and to return again in accordance with law under Fundamental Right No. 1 Gul, J., however, thought this right was conferred under Article 5 of the Constitution for locomotion within Pakistan. The learned counsel also referred to section 8 (2) of the Passports Act where it is specifically provided that the Federal Government shall give notice in writing upon the holder of the passport to show cause why the passport should not be cancelled, impounded or confiscated. Section 8,i2) according to the learned counsel, is not applicable to the case in hand as that was attracted only if the petitioner had engaged in subversive activities which were prejudicial to the interest of Pakistan. The learned Deputy Attorney-General relied on Manzoor Khan v. Government of Pakistan (PLD 1966 Pesh. 29) and argued that no citizen can claim, as a matter of right, the issuance or retention of a passport and that it being State property, the Government can cancel, confiscate or impound it at any time. Reference was made to the case of Syed Sharif-ud-Din Pirzada (PLD 1973 Kar.132 ) wherein rule 31 of the Defence of Pakistan Rules, 1971, was considered. The Court did not accept the plea that an individual had the right to go abroad or that he should be allowed an opportunity to show-cause if the permission was not to be granted.
He also went through the proviso to section 8 (2) which empowers the Government to impound the passport for a period not exceeding four months without notice. It is to be noted that neither in the case of Syed Abul Ala Maudoodi nor in Syed Sharifuddin Pirzada was the passport impounded.
3. It is to be noted that the necessity of passport and other travel documents is well established in the practice which governs the movements of persons across frontiers. A passport,in its current sense, has come to mean a document, to establish identity and nationality, which is said to be generally required by alien travellers to have in their possession to seek admission to a State. There is more or less universal compliance with the recommendations of the 1920. League of Nations Conference as to the format of the international style passport, though it is for the municipal law of the State, in which the traveller seeks a passport, to determine its form or a visa that it requires. In any case, the contents. Of any passport show that its principal purpose is to establish the identity nd nationality of those who seek admission to enter a State, as also held by the. House of Lords in Joyce v. D. P. P. (1946 A C 347) The second purpose is emphasised by those provisions in the passport about returnability which is of cruzial importance as indicatin the destination to which the alien may be removed on his exclusion or subsequent deportation.
4. The travel is also not only for pleasure or sightseeing but it has assumed a paramount importance in the international trade and commerce, The rights of individual to freedom of movement and trade, business or profession is not only recognised but guaranteed by the Constitution of this country in Articles 9, 15 and 18. Again Article 25 guarantees that all citizens are equal before law and are entitled to equal protection. Thus the question to be answered is can such important rights be curtailed or denied by the executive authority and if so, to what extent and can they be judicially reviewed by the superior Courts ?
5. It is to be noted that the above right also finds expression in Article 13 (2) of the Universal Declaration of Human Rights and Article 12 (2) of the International Covenant on Civil and Political Rights. It is so acknowledged in the free world generally and particularly in those countries which have written Constitutions and have guaranteed to its nationals the Fundamental Rights. Again, given the almost universal acceptance of the passport for aliens it is clear that a refusal by the national State to issue or to subsequently impound or cancel such a document may hamper seriously the individual in his exercise of right to travel for business or pleasure. The question came up to- be considered before the Indian Supreme Court in Sawhney v. Assistant Passport Officer (AIR 1967 SC 1876. ). The Court held that the individual has, right to travel abroad and that the refusal by the Government to issue him with a passport is a denial of the right to travel abroad and equality before the law which are guaranteed by the Constitution. The Court referred to the decisions of the United States Courts which have accepted the right to travel and observed that the said right was also recognised by Magna Carta and under the Common Law of England. The Court went on to say that the power claimed by the Government to issue passports at its discretion patently violated the doctrine of equality for the differential in the persons rested solely on arbitrary selection of the executive and such arbitrary power violated Article 14 of the Constitution.
6. In the United States the issue of passport is governed by Passports Act, 1926, and Regulations made thereunder. The Courts of the United States have declared that the right to travel, and hence the right to a passport, was a right guaranteed by the Constitution and so it could only be restricted in accordance with the fundamental principles of due process of law laid down in the Fifth Amendment. It in interesting to note that the Regulations of the United States also provide that a passport may be refused where the applicant has not paid a repatriation loan and where the Secretary of State determines that the national's activities abroad are causing or arc likely to cause serious damage to the security or foreign policy of the State. However, appeals are provided against any adverse decision regarding the issue, revocation or restriction of a passport to any individual under the administrative system.
7. The discretionary and political nature of the passport had been recognised in the United States as early as 1835 in the case of Urtedqul v. D'Arbel ((1835) 34 U S (9 Pet.) 692). By 1939, however, the discretionary authority of the Secretary of State was shown to be subject to the 'scrutiny of the Courts as held in Perkins v. Elg ((1939) 307 U S 325). Subsequently on the enactment of Internal Security Act, 1950, the Subversive Activities Control Act, 1930, and the Emigrants and Nationality Act, 1952, the executive was given more powers giving rise to further controversy.
8. A case Bauer.v. Acheson ((1952) 106 U S 445) came up thereafter before the Federal Court of the District of Columbia where the Court held inter alla that denial of an American passport has a direct bearing on the applicant's personal liberty to travel outside the United States. The rule laid down was that the discretion of the executive in such matters, although political, must be exercised with due regard to the constitutional rights of the citizens and that the freedom to travel abroad like other principles guaranteed by the Constitution is subject to reasonable regulation and control in the interest of the public welfare. The requirements of due process and equal protection of laws in the exercise of their control was emphasised.
9. It may be noted that the Secretary of State in that case as well had revoked a passport during the period for which it was valid without notice or opportunity for hearing and on the bald statement that the citizen's activities were contrary to the best interest of the United States. The above decision was followed by the Federal Court in a number of other cases. The observations made, however, were that as a matter of principle a passport is not simply a political document and so its issue is not to be a purely political matter within the rule that the purely political matters are not justiciable.
10. The above approach was affirmed by the Supreme Court in 1958 in its decision in Kent v. Dulles ((108) 357 U S 116) to hold that the pertinent statutes did not authorise the Secretary of State to withhold a passport for the reason that the petitioners had refused to file an affidavit concerning their member--ship of the Communist Party. The Court felt that the Congress had not intended to give the Secretary of the State an unbridled discretionary power. They were also of the opinion that the primary function of the passport today was control over Exit and the right of Exit was a personal right included within the word 'liberty' in the Fifth Amendment. The implications of an intention to extend diplomatic protection to the bearer, as contained in the passport, was considered but one subordinate function. It was further observed that while passport policy in general may involve a foreign affairs judgment, It would appear that a refusal in an individual case has very little to do with foreign policy.
11. In yet another case Aptheker v. Secretary of State ((1964) 378 U S 500) the Supreme Court held that section 6 of the Subversive Activities Control Act, 1950, which made it unlawful for members of any Communist organization to apply for or attempt to use a passport, was unconstitutional in that it restricted the right to travel too broadly and indiscriminately. It may, however, be added that the individual petitions did not succeed against the refusal on the part of the Government to issue passports for countries which were not recognised by the United States or with which it had armed conflict or with whom diplomatic relations were not maintained. Reference be made to Worthy v.
Herter and Frank v. Heter ((1959) 361 U S 918) which were dismissed by the United States' Supreme Court by the jddgment and also Zemel v. Rusk ((1965) 381 U S 1).
12. In the United Kingdom there is no law either declaring the right to a passport or regulating its issue. Technically, a citizen of the United Kingdom is under no obligation to carry a passport for the purpose of international travel and return to his own country. For the purpose of travel abroad, however, there will be considerable practical difficulties both in entering foreign countries and finding a transport company which is willing to take the passenger without a passport. The matter of issuance of passport has, therefore, been regulated by executive instructions. The grounds for refusal were set out last in 1958 in a statement in the House of Lords and they included the case of minors suspected of being taken illegally out of jurisdiction, fugitive from justice, persons whose activities are notoriously undesirable or dangerous and those who have not paid repatriation loans.
13. The few decided cases, however, go to support the view that even in this area of prerogative and discretionary control the Courts have occasionally been called upon to consider the effect of possession of a passport. Reference is made to R. v. Brallsford ((1905) 2 K B 730). The House of Lords in Joyce v. D. P. P. Held in 1946 that an alien abroad who holds a British passport enjoys the protection of the Crown and so long as he has not denounced that he is guilty of treason if he adheres to the King's enemies.
14. In another case of impounding a passport Ghani v. Jones ((1969) 3 A E R 1700 ) the reason advanced was that the police wanted to prevent the petitioner from leaving the country pending investigation in a murder case. The detective who took away the passports had refused to return the same on demand as be ' hoped to find evidence connecting the petitioners with the offence.
The Court deciding that case held that I cannot help feeling that the real reason why the passports have not been returned is because the officers wish to prevent the plaintiffs from leaving this country pending police enquiries. That is not a legitimate ground for holding them. Either they have grounds for arresting them, or they have not. If they have not, the plaintiffs should be allowed to leave--even if it means they are fleeing from the reach of justice. As man's liberty of movement is regarded so highly by the law of England that it is not to be hindered or prevented except on the surest grounds. It must not be taken away on a suspicion which is not grave enough to warrant his arrest."
15. The sum and substance of the above discussion is as under :-
(a) A passport is meant to establish identity and nationality and is necessary for travel abroad and return ability to one's own country.
The primary function of passport today is to have control over exit and the right of exit was a personal right included within the word `liberty'. The diplomatic protection is its subordinate function ;
(b) An individual has a right to travel abroad and that refusal by Government to issue him a passport is a denial of that right a well as violation of the right of equality before law ;
(c) The right is not absolute and can be fettered by the executiv authority's discretion which must be exercised with due regard to individual's constitutional rights and other guarantees subject to reasonable regulation and control in the interest of public ;
(d) The police cannot impound a passport unless it has the right to arrest even though it means that the petitioner will flee from the reach of justice. The movements of a person can be hindered or prevented only on the surest ground."
16. A comparison of the Fundamental Rights, relevant to the present case, as in Indian, American and Pakistani Constitutions, would show that their concept and extent is more or less the same. The interpretation and scope of these Fundamental Rights as determined by the superior Courts of those countries can, therefore, be of great help to us. I have already referred to the case-law of those countries and summed up the conclusions in para. 15 above. The case-law of Courts has also been given in para. 2 above. It will be seen that though there is an apparent conflict in their interpretation of the Fundamental Rights that now occur as Articles 9 and 15 in the 1973 Constitution but the same can be sorted out. Article 15 confers the right of movement within Pakistan. Article 9, on the other hand, provides that 'No person shall be deprived of life or liberty save in accordance with law.' No limitation of space is involved in it. The Peshawar case of Manzoor Khan had been decided almost on the basis of foreign judgments including Indian, American and English. I have now given their latest views which are different from those followed in that case. Further, the learned Judges without discussing the scope of the relevant Fundamental Rights in that case concluded that a Pakistani citizen bad no legal or constitutional right to get a passport. The decision was given under the Passports Act, 1920.
17. The Passports Act, 1920, was `an Act to take power to require passports of persons entering Pakistan'. Only section 6 was about Pakistan passports, laying down that `Even passport issued by or on behalf of the Central Government shall be the property of the Central Government and the Central Government shall have power to impound or confiscate the same or require its return . . '
The Passports Act, 1974, which now operates lays down in its section 3 that `No citizen of Pakistan shall (a) depart from Pakistan by any means whatever unless is in possession of a passport . . . . '
Section 8, as has been said above, confers power to cancel, impound etc. a passport. Thus a clear departure has been made in 1974. Act so that it is an offence to leave Pakistan without a passport.
Akram, J., held in the case of Syed Abul A'la Maudoodt that freedom of locomotion is a part of `liberty' including right to go out of country. Thus refusal of issuing a passport or its cancellation, impounding etc. Would mean denial of that right and going without passport an offence. In the case of Syed Sharifuddin Pirzada the main point involved was whether or not rule 31 of the Defence of Pakistan Rules was good law and even if good whether the order made thereunder was valid.
The majority of a Full Bench of three Judges in that case agreed with the view taken by Muhammad Gul, J., in the case of Syed Abul Ala Maudoodi that the Legislature used the word `liberty in the narrow sense and not the wider sense of Akram, J.
18. It may be pointed out that none of our Courts had to consider the above cases from foreign jurisdiction. They also did not take into consideration the Fundamental Rights 18 (freedom of trade, business or profession), 20 (freedom of profess religion and to manage religious institutions) and 25 (equality of citizens). Again, in these days of modern technology and development, interdependence, opportunities of work abroad with more attractive and better prospects and .Improved means of communication and transport, the travel abroad has become a necessary part of trade, business and profession. Pilgrimage for Haj is an essential duty cast on every Muslim who can afford to undertake that. The urge of pilgrimage to other places of religious importance and travel abroad for study and medical treatment also . Cannot be denied. Some people would like to see their friends and relations abroad. The State is also required to dispense equal treatment and equal protection of law to all the citizens.
19. In this view of the matter, I would venture to say that had all the above aspects been brought to the notice of the learned Judges, their decision might have been different. The prevalent view of this Court, as just recently taken in the case of Habib Jallb is the same as taken by Akram, J. It would mean that the injunction against deprivation of `liberty' in Article 9 of the Constitution gives out a wider concept and every citizen has the right to ask for and possess a passport, subject to sections 8(2) and 8(3) of the Passports Act. Further, that any action taken by the executive authority is justiciable and may be struck down, if it, unreasonably or arbitrarily, curtails `liberty' or lies beyond the scope of the regulatory provisions
20. The Legislature in Pakistan has laid down provisions to regulate the liberty of its citizens for travel abroad. It is contained in section 8 of the Passports Act, 1974. Section 8(1) provides that the passport shall be the property of the Government and shall be liable to be cancelled, impounded or confiscated and liable to be returned. Thus duty to issue a passport is presumed. Section 8(2) requires service of a notice to show-cause before taking an action under section 8(1). The proviso attached to this subsection says that no notice shall be necessary in case of an order impounding a passport for a period not exceeding four months.
21. Section 8(2) is subject to section 8(3) in respect of impounding a passport for a period of four months. The action can be taken only if a person is engaged "(1) In subversive activities ; or . _
(2) In activities which are prejudicial to ; L
(a) The interest of Pakistan ; or
(b) Pakistan's relations with any foreign power."
It is, therefore, quite clear that while a notice is a must under section 8(2 the extraordinary step of impounding a passport for a period of four months without notice can be taken only in the above three specific conditions and for no other.
22. In the case in hand, the reason given is that the petitioner was likely to be challenged for an offense of abetting payment of illegal gratifica--petition. The stand taken by the F. I. A., is that the petitioner obtained a sum of rupees one Lac from Nabi Qasim Industries Ltd., Karachi and delivered I to Dr. Nasir A. Sheikh, ex-Director-General Health and thus he is likely to face trial for abutment of the offense under Martial Law Regulation 31. It is to be noted that it is stated in the same letter that Mr. Nazir A. Sheikh has left the country. The plea taken by the petitioner is that as a competent Court has allowed him bail he will face the trial as and when called and that he is not likely to abscond in view of his huge property and large family that he will have left behind in this country. It is argued that the attempt of the respondents is rather to defeat the order of bail. In any case these allegations have nothing to do with section 8(3). Apart from the above it will be seen that according to the view taken in Ghani v. Jones the respondents had no justification to take that action. The impugned order, therefore, cannot be sustained on any account whatever.
23. The rules and the administrative instructions issued for the guidance of those who have to exercise powers under section 8 of the Passports Act, 1974, do also confirm the above conclusion.
These rules would show that the impugned order is not supported by any of those. It may be advantageous to reproduce sub-rules (3) and (4) as - given in section D of para. 82 of the Passport Rules and Procedure for issuing passports etc. And impounding, confiscation etc. :- "(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, withhold/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 prosecu--petition for a criminal or other offence ; or
(c) Is found to have indulged in racketeering and/or forgeries in passport; or .
(d) Has been convicted of a crime in the host 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."
The only provision that could come close to the facts of the case is 4(b) but that too could not have been relied upon as the petitioner is on bail. In any case, that provision and there was no need to anticipate that petitioner was fleeing from justice.
24. The above provisions were also' considered in the case of Habib Jalib referred to above. The learned Judge thoroughly analysed the same and while relying on Ex parte Smith ((1978) 3QBD 374), and Reg v. Sykes (I QDB 52), cases about licenses, held that reasons must be given for their cancellation. Reliance was also placed in that case on Article 4 of the Constitution to lay down that every citizen has an inalienable right to enjoy protection of law and to be dealt with in accordance with law and that no action detrimental to his life, liberty, reputation, body or property shall be taken except in accordance with law and that no person shall be prevented from or be hindered in doing that which is not prohibited by law. The learned Judge concluded from the above that the above provision negatives any claim by the Government that category of its acts in relation to citizens and other persons of Pakistan are not subject to law at all. He found that the actions of the State functionaries affecting the rights of citizens are subject to judicial review by superior Courts and, therefore, the constitutional jurisdiction of this Court under Article 199 could be invoked if any action taken by a State functionary is detrimental to his civic rights or the privileges granted.
25. The view taken above is fully supported by the law laid down by the Supreme Court in the case of Manzoor Rah! (PLD 1975 C 66). It will be useful to reproduce a passage from the judgment of my Lord Anwarul Haq (the present Chief Justice of Pakistan) which runs as under :- "While Article 4 embodies provisions of the utmost importance to the individual in the matter of his life, liberty, body, reputation and property, his right to freedom of action, and immunity from illegal restrict of any kind, yet it does not form part of Part II of the Constitution containing Fundamental Rights, and, for that reason, any violation of this Article would not bring the case within the four corners of the jurisdiction conferred on the Supreme Court by clause (PLD 1975 C 66) of Article 184 of the Constitution. That jurisdiction has reference only to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II of the Constitution. Nevertheless, it is clear at the same time that the High Court, acting under the various clauses of Article 199 of the Constitution, would be fully competent to deal with a case involving a violation of the provisions of Article 4 of the Constitution . . . . . "
I, therefore, agree with great respect to the broad principles enunciated in the case of Habib Jalib and say that an executive action which is based on a law which violates the Fundamental Rights can be struck down despite the facts that the Fundamental Rights cannot be enforced to day before the superior Courts.
26. Again this Court held in Shahid Afzal v. Government of Pakistan (PLD 1977 Lah. 117), that not only reasons must be given for any action but that they must be valid. The relevant portions are reproduced here :- " . . . . . No case has been brought to our notice wherein the Supreme Court may have in so many words laid down that statutory functionaries must give the reasons for their decision. However, the rule `conscious application of mind' laid down by the Supreme Court in so many cases does, to our mind, cast a duty on every tribunal to give reasons for their decision. The rule is that the record must show that the tribunal did consider the questions of law and fact arising in the case before it gave its decision. It means that the order of the tribunal must be a speaking order and it should hold out that its maker was conscious of the questions to be considered and decided and that he did apply his mind to them.
The conclusion that we draw from the law laid down by the Supreme Court in the cases referred to above is that all the Courts and Tribunals who are required to apply their mind to facts and law in order to reach a decision in cases before them, must give their reasons for the decision. All Courts and Tribunals are bound to follow the law laid down by the Supreme Court in view of Article 189 of the Constitution. We, therefore, hold that a Tribunal, empowered to pass orders, which may mean depriving a person of his liberty, property, status or livelihood or impose a penalty or cause a slur on his reputation, must give its reasons for the order . . . . ."
27. In the light of the above discussion, the reason given by respon--dent No. 2, is not at all valid. It is in violation of section 8(2) and the rules.