ZAFFAR HUSSAIN MIRZA, J.--This constitutional petition is directed against the refusal by the Deputy Assistant Director of Passports & Immigra--petition, Karachi, respondent No. 4 herein, to issue a passport to the petitioner and the alleged secret orders to the State Bank of Pakistan, respon--dent No. 3 herein, by the Government of Pakistan not to allow the petitioner to proceed abroad.
The petitioner is admittedly a: citizen of Pakistan and has held high public office to the past as Governor, Provincial Chief Minister and Federal Minister in the Government of Pakistan. He held a number of passports in the past issued by the Government and has travelled abroad extensively.
On 22-4-71 the petitioner was issued an ordinary passport which was subsequently lost and necessary information with regard to the loss of the said passport was conveyed to the relevant authorities. Admittedly during his tenure as holder of a representative office he was issued a diplomatic passport for travel abroad which was apparently cancelled on his ceasing to hold that office. On 13-9-77' the petitioner applied for the grant of passport on payment of urgent fee and deposited Rs. 600 with the National Bank of Pakistan. The petitioner applied in the prescribed form with the receipt for the payment of fee to respondent No. 2, the Director of Immigration & Passports, Islamabad. According to the petitioner he was arrested three days later and detained at the Central Prison, Karachi under Martial Law Order No. 12. He was subsequently released on 4-2-79 as a result of two judgments of this Court dated 14-1-79 and 4-2-79 in constitutional petitions filed by him. In the course of correspondence pertaining to this application for passport h;, was directed by the Government of Sind to return his diplomatic passport, but he refused, to do so on the plea that he was entitled to an ordinary passport and asserted that he would return the diplomatic passport provided he was issued an ordinary passport. While he was in detention the petitioner was asked on 2-3-78 by the Superintendent, Central Prison, Karachi to fill in the form for ordinary passport so that the same could be passed on to Government of Sind, for further action in the matter. The petitioner complied and forwarded the form duly filled in as required. Subsequently after some further correspondence the Home Department informed the petitioner in October, 1978, that his application was under consideration with the Government of Pakistan. However, no further action was communicated to him until August, 1979, when he addressed a letter to the Minister for Interior, Government of Pakistan requesting for issuance of a passport and permission to travel abroad alongwith the sanction of requisite foreign exchange.
3. The ,petitioner alleges that he has come to know that instructions have been issued by the Government to blacklist turn for the purpose of travel ,abroad. The petitioner has given detailed account and particulars of various serious ailments of which he is suffering. He has also contended that his wife suffers from an "incurable disease" and has been under constant medical treatment in the United States of America since April, 1977, for which the Federal Government has from time to time through the State Bank of Pakistan sanctioned foreign exchange to meet the expenses of her medical treatment abroad. It is his allegation that on a number of occasions the doctors in the United States have required his presence for further consultations. The petitioner himself also desires to proceed abroad in connection with his cardiac condition ;facilities which are not available in Pakistan. Since his request for issue of passport was not being disposed of, he filed the present petition seeking the directions of this Court to the relevant authorities for issue of pass port to him and for allowing him to proceed abroad with the sanction of, requisite foreign exchange. In their counter-affidavit dated 28-5-80 respondents Nos. 1 and 2 asserted that the petitioner's request for issuance of, an ordinary passport could not be considered on account of his refusal to return his diplomatic passport as normally a citizen is not issued more than one passport at a time.
In view of this assertion this Court passed a consent order dated 2-6-80 that the diplomatic passport of the petitioner shall be surrendered by him and within a week thereof, the application of the petitioner for grant of passport shall be considered and disposed of. In pursuance of this order on the same day the petitioner's counsel handed 'over the passport to the respondents' counsel in presence of the Court. On 14-6-80 the respondents' counsel placed a copy of a Memorandum dated 7-6-80 of the Deputy Assistant Director from the Regional Passport Office, Karachi on the record which reads as follows:-- "Karachi, the 7th June, 1980.
MEMORANDUM '
With reference to his application -for the grant of a Pakistan Passport, Mr. Mumtaz A.I Bhutto son of Nabi Bakhsh Bhutto is informed that his request for grant of passport cannot be acceded to.
He may, if he wishes, prefer an appeal to the Director, Immigration & Passports, Islamabad.
(Sd.)
Deputy Assistant Director."
4. Until the hearing of the main petition was commenced on 27-7-80 and the arguments of the petitioner's counsel were concluded on 29-7-80 no further counter affidavit was filed on behalf of the respondents to the amended petition. It may be observed here that one of the arguments advanced on behalf of the petitioner was that no material has been placed before the Court by the respondents justifying the order refusing to issue the passport to the petitioner. Before the learned Deputy Attorney-General commenced his arguments, on 2-8-80, however, counter affidavit to the amended petition on behalf of respondents Nos. 1, 2 and 4 was filed by one Mr. Sher Muhammad Khan, Deputy Assistant Director, Regional Passport Office, Karachi in which detailed reasons were disclosed on which the application of the petitioner was allegedly rejected. At the subsequent hearing the learned counsel for the petitioner objected to the said counter affidavit on the ground that it was not filed within time and was filed particularly after the close of his arguments. We, however, considered this objection technical and overruled it permitting the petitioner to file rejoinder affidavit if he so desired. However, no rejoinder affidavit was filed.
5. In the further counter affidavit the reasons for the rejection of the petitioner's application for issue of passport were stated as follows: "(a) Petitioner had been detained under M. L. O. No. 12 for a consider--able period on account of activities prejudicial to the security of Pakistan, and from the security point of view he is not considered to be a fit person for issuance of passport. His political associates Ghulam Mustafa Khar, Jam Sadiqali and his close relative Mir Murtaza Bhutto, who fled the country are engaged in activities prejudicial to the interest of Pakistan, and the petitioner is most likely to join them.
(b) Petitioner is believed to be wanting to flee from Pakistan to avoid prosecution in the following cases:-
(i) F.
1. A. Crime, Karachi registered case No. F.
1. R. No. 50 of 1979, against the petitioner under Article 3(1), read with sub-Article 2(e) of Holders of Representative Offices (Punishment for Misconduct)
Order, 1977. Investigation has been completed by F.
1. R. And challan is ready to be submitted in Court.
(ii) F.
1. A. Crime, Karachi registered another Case No. F. I. R. 51 of 1979, against the petitioner under Article 3(1) read with sub---Article 2(e) of Holders of Representative Offices (Punishment for Misconduct) Order, 1977. Investigation has been completed by F.
1. R. And challan is ready to be submitted in Court.
(iii) F. I. A. Is presently conducting inquiries into 3 other cases for which they will require the presence of the petitioner.
(iv) A reference under the provisions of M. L. O. 31 was made against the petitioner to the Disqualification Tribunal, and due to difference of opinion among the members of the Tribunal, the matter has been referred to a Judge of the Supreme Court under paragraph 5(7) of M. L. O. 31 and is pending. In the event of any charge of misconduct being established, the petitioner is liable to be prosecuted.
(v) The petitioner's family is residing outside the country i. e. In U. S. A. Since early 1977, and has not returned. There is all the more reason for the petitioner not to return to Pakistan in view of the impending criminal prosecutions mentioned above."
6. In support of the petition Mr. Abdul Hafeez Pirzada, learned counsel appearing for the petitioner contended that every citizen of Pakistan has a right to travel outside Pakistan and, therefore, to have a passport. Alternatively, he urged that even if under the law it is a matter of discretion with the Government to grant or refuse a passport applied for, the order of refusal must be based on material reasonably justifying the same. For the first contention reliance was placed on Article 4 of the Constitution and it was submitted that the said Article preserves the inalienable right of every citizen of Pakistan, inter alia, to be treated in accordance with law and in particular not to be prevented from or be hindered in doing that which is not prohibited by law. On the other hand, the learned Deputy Attorney-General took up issue with the contention raised on behalf of the petitioner and submitted that the grant of a passport is a privilege to be conferred by the Government at its own discretion and no citizen of Pakistan is entitled to the issue of a passport as a matter of right. He vehemently contended that there is no legal or constitutional right granted to the citizens of Pakistan to travel outside the country.
7. Mr. Pirzada elaborating his submission that no absolute discretion can be conceded to the Government in its actions dealing with its citizens, invited our attention to the observation made in the case of Nazir Muhammad v. A. Briganza (1), which reads as follows:- "No doubt a passport is primarily a document enabling a citizen to proceed abroad under the protection of the State but it is also a document which enables the holder thereof to return to his land. We have, therefore, come to the conclusion that there is no force in the contention of the respondents that the Passports Act, 1920, did not apply to citizens of Pakistan. With a written Constitution in force it is futile to talk of prerogative of the Head of the State. The rights and privileges of the Head of the State and other "function--aries of the Government have been fully laid down in the Constitu--petition and no body howsoever high can claim a right or privilege which is not conceded to him by the provisions of the Constitution. Rule of law would be more easily established in this land if the false notion of any prerogative is buried deep."
On the other hand, the learned Deputy Attorney-General referred us to the weighty observations made by the Supreme Court in Superintendent of Police v. Abubaker (2), which read as under:- "It is, no doubt, for the State in its discretion to decide, in the absence of any fundamental right to free travel, as to whether a passport should be issued or not, but once the State has in the exercise of its discretion issued a passport, can it arbitrarily confiscate it without assigning any reason and without giving any opportunity to the holder of the passport to represent his point of view.
(1) PLD 1957 Kar. 907(2) 1972 SCMR 154 Different considerations, in our view, apply to the grant of a privilege and the withdrawal of the same after it had been granted. The grantee acquires a right to the enjoyment of the privilege in accordance with and Subject to the terms and conditions of the grant and this right cannot be taken away during the term of grant save for a cause. Hence the necessity for giving the grantee a notice to show cause and an opportunity of being heard in order to prevent an arbitrary or capricious withdrawal of the privilege. The grantee has a right to insist that the withdrawal even of a privilege is made in accordance with law.
Ever since the decision of this Court in the case of Fareed Sons v. Pakistan it has been consistently held by this Court in a series of decisions that even in the case of administrative acts, by which the right of a citizen is sought to be taken away or affected, the principles of natural justice have to be followed."
The petitioner cannot rely upon any fundamental right contained in the Constitution in support of his right to travel abroad, for obviously the fundamental rights stand suspended by virtue of Article 2(3) of the Laws (Continuance in Force) Order, 1977. But Mr. Pirzada vehemently contended that Article 4 of the Constitution enshrines the right of every citizen of Pakistan to "liberty" and no action detrimental, inter alia, to liberty of any person can be taken except in accordance with law. As to the connotation of term "liberty" he referred to the exposition of the term as it occurred in Article 6 of the Constitution of Pakistan, 1962, by Muhammad Akram, J. (as he then was) in Abul A'la Maududi v. State Bank of Pakistan (1), where the learned Judge gave a wider interpretation to the term calling it "the freedom of locomotion" and holding that the right to step out of this country is a part of liberty of the people. However, the other Member of the Bench Muhammad Gul, J. (as he then was) dissented from this view and held that the word "liberty" cannot be understood in its generic sense so as to comprehend within its connotation, freedom of "universal locomotion" in any part of the world. A learned Single Judge of the Lahore High Court in Zahoor Ellahi v. Secretary to Government of Pakistan (2), was inclined to accept the wider interpretation of the term "liberty" as it occurs in Article 4 of the Constitution agreeing with the exposition made by Muhammad Akram, J.
And held the view that travelling abroad is a part of the personal liberty of a citizen and in the absence of the law imposing reasonable restric--tions, he has a right to leave the country and re- enter it. Our attention was, however, drawn by the learned Deputy Attorney-General to a Full Bench decision of this Court in Syed Sharjuddin Pirzada v. Federation of Pakistan (3), where Tufail A.I A.
Rehman, C. J., who wrote the opinion for the majority view while comparing the wording of Articles 3 and 8 of the Interim Constitution of Pakistan, 1972 (equivalent to Articles 4 and 9 of the present Constitution) held the opinion that the word "liberty" as it occurs in Article 3 cannot be given the meaning in such wide conception of liberty as expressed by Muhammad Akram, J. And agreed with the restricted meaning given to the term by Muhammad Gul, J. That the term refers to personal liberty and not freedom of locomotion extending to the right of exit from the country.
(1) PLD 1969 Lah. 908(2) PLD 1975 Lah. 499
8. After considering these cases we, however, find that the cases of Abul A'la Maududi and Syed Sharifuddin Pirzada really related to the action of the Government preventing persons from proceeding abroad although holding valid passports on the basis of restrictions imposed under the statutory provisions of the existing laws. In the present case, the limited question before us is of the interpretation of the relevant provisions of the Passports Act, 1974, and the right of the petitioner to the grant of a passport or in other words the legality of the action refusing to grant a passport to him. The larger question as to the content and scope of the term "liberty" as it occurs in Article 4 of the Constitution, as will appear hereinafter, need not be gone into. In this context we may refer to the contention advanced on behalf of the petitioner on the basis of clause (b) of sub-Article (2) of Article 4 of the Constitution which 'reads as under: "(2) In particular-
(a) no action detrimental to the life, liberty, body, reputation, or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented or be hindered in doing that which is not prohibited by law ; and
(c) . ------------------------------------------."
Now there is no provision in the Passports Act as to the powers of the relevant authorities to grant or refuse the issue of a passport and the Act is totally silent in this regard. The contention on behalf of the petitioner is, therefore, that every citizen of Pakistan has to be issued a passport as a matter of course on an application in proper form being submitted for the purpose and then under section 8 it is for the authorities to cancel, impound or confiscate the passport by an order under the hand of Secretary to Government of Pakistan for valid grounds. On the other hand, it is contended on behalf of the respondents that the grant of passport is a privilege within the absolute discretion of the Government and is a part of the executive function of the Government to be exercised without assigning reasons on the subjective satisfaction of the competent authorities. It is accordingly vehemently urged by the learned Deputy Attorney-General that no mandamus can be issued for issue of a passport as there is total absence of provisions to that effect in the Passports Act to create any obligation on the authorities in the matter. Learned Deputy Attorney --General relied upon a Single Judge decision of the Lahore High Court reported as Abdul Rauf Malik v. Government of Pakistan (1), in which it was held that issuance of a passport is neither a legal nor a constitutional right and it is a purely executive function dependent upon the subjective satisfaction of the Executive and not amenable to judicial review nor are the authorities under obligation to assign any reason for refusal to issue a passport. On the other hand, our attention was drawn to a later Single Judge decision of the Lahore High Court in Habib Jalib v. State Bank of Pakistan (2), a case of impounding of the passport where the view held in the case of Abdul Rauf was not approved but the question was left open. Thus we find that there is no direct authority on the question whether in the present state of law a citizen of Pakistan has a statutory right to hold a passport except the observations of their Lordships of the Supreme Court in the case of Superintendent of Police v. Abubaker already referred to above, but we may point out that even that case was decided under the Passports Act, 1920, in which there was no statutory bar on a citizen of Pakistan to hold a passport in order to go out of the country although it was necessary for the purpose of re-entry. In the present Passports Act, 1974, for the first time the law has created a prohibition in that respect under section 3 in the following words:-
(1) PLD 1978 Lab. 410(2) PLD 1980 Lab. 561 "No citizen of Pakistan shall--
(a) depart from Pakistan by any means whatever unless he is in possession of a passport, nor otherwise than from such port or place, by such route and in accordance with such conditions, as may be prescribed; or
(b) visit a foreign country unless his passport is valid for such country."
9. It was forcefully contended by Mr. Pirzada that on account of this prohibition the refusal to issue a passport creates an effective hindrance on the free movements of a citizen outside the boundaries of Pakistan and the Passports Act was not enacted to provide additional power beyond what existing laws vest in the relevant authorities for restricting the movement of citizens as such power will be totally extraneous to the objects underlying the Passports Act. Counsel contended that in the present case from the reasons subsequently disclosed for the refusal of the passport it is clear that the power has been used for extreneous purposes and objects, as these grounds may at the most be used to invoke the other laws imposing restric--tions on the movement of the petitioner, but cannot be pressed into service for refusing a passport. Alternatively, it was urged that this is not a case of refusal of initial request for issue of passport. In this connection it was pointed out that admittedly the petitioner held an ordinary passport issued on 22-4-71 which was renewable until 21-4-81 but it was lost and the petitioner held a valid diplomatic passport until it was surrendered during the proceedings of this petition. Therefore, the argument was that this is really a case of cancellation of a passport and depriving the petitioner of the right to hold one already accrued to him. In reply it was argued by the learned Deputy Attorney-General that reading the petition as a whole and the correspondence carried on by the petitioner it is apparent that he had applied for the issue of a new passport.
10. Be that as it may, as observed by their Lordships of the Supreme Court in the case of Abubaker even in the case of administrative acts, by which the rights of a citizen are sought to be taken away , or affected, the principles of natural justice have to be followed. From the reading of section 3 of the Passports Act it is clear to us that an order refusing to issue passport is an order very adversely affecting a citizen inasmuch as h R suffers the restrictions imposed therein on his ability to travel abroad which he would not suffer if his request is allowed. As pointed out by Muhammad Akram, J.
In the case of Abul A'la Maududi "the freedom to leave ones country temporarily for travel abroad is important to individual, national and international well-being. But today this right of exit depends, for the great majority of world's people, on ability to secure passports. An individual denied a passport may be unable either to leave his nation or to enter others." Thus even if issue of a passport is a privilege conferred by the Government and not the right of the citizen, the refusal to confer the privilege: applied for by the citizen does result in adversely affecting him as,, compared to those to whom the privilege is granted. It-may be pointed out that the exercise of the power to grant or refuse the issue of a passport is the exercise of a public power and it is well settled that the public power cannot be arbitrarily exercised to the disadvantage of the citizens. It is in this context that the real import of clause (b) of sub-Article (2) of Article 4 of the Constitution has `to be considered. Public power granted to the functionaries of the State has to be exercised fairly and reasonably in consonance with the objects of law under Which it is granted and not for C extraneous purposes which will be tantamount to fraud on the statute. In University of Dacca v.
Zakir Ahmed (1), the rule was laid down that wherever any person or body of persons is empowered to take decision after ex post facto investigation into facts which would result in consequences affecting the person, property or other right of another person, then in the absence of any express words in the enactment giving such power excluding the application of the principles of natural justice, the Courts of law are inclined to imply that the power so given is coupled with duty to act in accordance with such principles of natural justice as may be applicable in the facts and circum--stances of a given case. In this case their Lordships emphasized that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting the person or property or other right of the parties concerned. We are, therefore, of the opinion that in refusing to grant the privilege in exercise of public power rules of natural justice will be attracted unless they are excluded by express provisions.
11. Learned Deputy Attorney-General referring to the meaning of the term "passport" as enunciated in Manzoor Khan v. Government. Of Pakistan (2), a case on Passports Act, 1920, contended that the grant of a passport is in the nature of the grant of a licence in the absolute discretion of the Executive. He referred to Government of Pakistan v. Zamir Ahmed (3), a case of licence under the Import Policy Order, 1972, in which their Lordships expressed the view that "in the generality of cases, licence (simpliciter) is a privilege and not a legal right; much less there is a legal duty for its grant.
Therefore, exceptional cases apart, mandamus would not issue in such cases". Having regard to the restrictive provisions of section 3 of the - Passports Act we are unable to stretch the analogy to compare the grant of a passport to licence simpliciter. In any case the proposition laid down by their Lordships is not couched in absolute terms and admits of exceptions. Be that as it may, it is different thing to say that a matter lies within the discretion of the public authorities and the application of the principles of natural justice to the exercise of such public power.
12. In view of what we have stated, we feel that before a person I finally refused the grant of a passport on certain grounds based on material in the possession of the relevant authorities, the affected person has to be given opportunity of hearing. There is no provision in the Passports Ac for an appeal against the order of refusal of a passport by a subordinate functionary. However, in the impugned order, it has been clearly stated that the petitioner will be at liberty to prefer an appeal to the Director, Immigration & Passports, Islamabad. The relevant authority, therefore, is willing to afford an opportunity of hearing and contesting the grounds on which the request of the petitioner has been turned down. It has been held in Collector, Sahiwal v. Muhammad Akhtar 1971 SCMR 681 that where there is no express provision for notice in the statute itself and reliance is only placed on the principles of natural justice, there if at some stage or other the person aggrieved has been given a fair opportunity of representing this point of view then the defect, if any, in the initial order may be deemed to have been cured. In the Passports Act, there is no provision for a prior notice in case of G refusal of application for passport, consequently, the case is covered by the principles laid down in the cited case. The requirement of the rules of natural justice will be satisfied if the petitioner avails opportunity of filing appeal and is given a fair and reasonable opportunity of hearing. We, therefore, feel that at this stage no interference is called for.
(1) P I; D 1965 SC 90 (2) PLD 1966 Pesh. 29
(3) PLD 1975 SC 667
13. It was, however, urged before us that the application of the petitioner has been pending since March, 1978, and for reasons disclosed in the petition the petitioner is required to proceed abroad urgently. Apparently out of these considerations this Court had directed by an interlocutory order with the consent of the parties that upon the surrender of the. Diplomatic passport of the petitioner his application shall be considered and disposed of within a week. We will also, therefore, observe similarly that upon an appeal being preferred by the petitioner his appeal shall be considered and disposed of within one month.
14. For the foregoing reasons, we dismiss this petition with the aforesaid observations, with no order as to costs.
2.