MUHAMMAD ANW AR KHAN KASI, C J.--- This W rit Petition has been filed with the following prayer:- "Writ may kindly be issued and respondent No.1 and 2 may kindly be directed to remove the name of the petitioner from Black list, and respondeat No.3 may gracioiusly be directed to return the documents i.e. Passport and identity card of the petitioner in the best interest of justice."
2. Facts of the case, mentioned in the petition, are that petitioner on his return from China at Islamabad Airport was arrested by the FIA/Immigration Authorities and his passport as well as the identification documents were impounded. Subsequently it was informed that he had been placed in the blacklist by Director General, FIA because he was previously convicted and sentenced to undergo one year R.I vide order dated 7.7.2012 passed by learned Special Court [Control of Narcotic Substances], Karachi in case FIR No. 51/2012 under Section 6/9-B CNSA registered at PS, ANF-II Gulshan-e-lqbal, Karachi.
3. Learned counsel submitted that name of petitioner has been placed in black list without any lawful justification as he has already undergone the sentence in the aforementioned Narcotics case while the concept of blacklisting itself is alien to the known jurisprudence. He added that petitioner's business is extended across the world and in that connection he frequently travels abroad, but due to the impugned illegal and arbitrary act of respondents, liberty of petitioner has been put in jeopardy which is violation of Articles 4, 9, 13 and 15 of the Constitution of Pakistan.
4. It is next submitted that petitioner moved several applications to the respondents for removing his name from blacklist, but they did not pay any heed instead he has been punished perpetually without any period attached with the moratorium upon his freedom of movement. Learned counsel concluded that respondents are taking penal action without any jurisdiction or justification. His conviction has become past and closed while curtailing his liberty on the basis of earlier conviction amounts to double jeopardy which is not only violative of the laws in Pakistan, but also against the international conventions.
5. On the other hand, learned Standing Counsel vehemently opposed the above contentions by submitting that right to travel abroad may be a fundamen tal right, but the same is a qualified right which can be restricted by the government in accordance with law , rules and policies laid down from time to time.
6. He next submitted that petitioner is previous convict of an offence pertaining to drug trafficking and he was caught red hand along with the contraband heroin powder at Karachi Airport while he was trying to transport the same abroad as international passenger of airway flight. He added that under para 51 read with para 21 of passport and visa manual, Director General Immigration and Passport is competent to place a person in the black list.
7. Learned counsel further submitted that a person traveling abroad for nefarious trade of narcotics defames the name of country and blemishes the image of nation across the globe due to which it is the prerogative of the state functionaries to restrict movement of such notorious people for curtailing narcotics offences and to extend cooperation under anti-narcotics treatise.
8. Heard and record perused.
9. Petitioner has assailed the impugned action of placing his name in black list mainly on two grounds. His first assertion pertains to inviolability of the freedom of movement in the context of fundamental rights guaranteed in the Constitution. This contention does not seem tenable as the right of movement is not absolute rather a qualified right in the manner that in public interest reaso nable restriction can be imposed by law. In this reference Article 15 of the Constitution is reproduced hereunder;- "Freedom of movement, etc.--Every citizen shall have the right to remain in, and, (subject to any reasonable restrictions imposed by law in the pubic interest), enter and move freely throughout Pakistan and to reside and settle in any part thereof."
10. Perusal of above provision shows that lawful curtailment of the freedom of movement has been acknowledged under the Constitution. The guiding principle for such restriction is set by the Const itution by making 'public interest' as a steerage factor . Public interest connotes interest of a large group or segment of society and is contraindicative of an interest which vests in an individual or a smaller group of persons. This term in its literal sense has been defined by the Black's Law Dictionary 8th Edition as following;- "The general welfare of the public that warrants recognition and protection. Something in which the public as a whole has a stake; esp., an interest that justifies governmental regulation."
Safeguarding commission of an act which is apprehended to blemish the repute of nation inevitably relates to public interest and a policy which places reasonable restriction upon movement of a person who remained involved in certain category of of fences cannot be termed derogatory to spirit of Article 15 of the Constitution.
11. The second aspect of petitioner's case is that blacklisting has no legal backing and this act has been done by the authorities in suppression of law and rules. This argument lacks merit because under Section 13 of Passport Act, 1974 the authorities are empowered to make rules through a notification in the official gazette and such rules being a ,subordinate legislation carry the force of law. In the same manner , Federal Government issued time to time directions through gazette notification which have been compiled in Passpo rt and Visa Manual [hereinafter referred to as 'the Manual]. Para 51 of the Manual and exhaustively deal with the phenomena of blacklisting and limiting an individual's right to travel abroad, perusal whereof dispels the contention that such act has been done over and above the law . Para 51 of the Manual is reproduced hereunder:- "51. Procedure for blacklisting.
(A) If any Passport issuing Authority finds that a certain citizen of Pakistan is fit to be blacklisted for Passport facilities, it would refer the matter to the Director General, Immigration and Passports giving such person's full particulars and reasons for his blacklisting. The Director General, Immigration and Passports will obtain the orders of the Ministry of Interior in the matter , where necessary . B) Federal Government is vested with powers to regulate the departure from Pakistan and visit abroad of its citizens under the provisions of "Passport Act, 1974" and "The Exit from Pakistan (Control) Ordinance, 1981". In order to check the exit of individuals from Pakistan, Blacklist/Exit Control List are maintained. The inclusion into and deletion from Exit Control List is the sole prerogative of the Ministry of Interior . Brief description of Black List categories 'A' & 'B' is as under:-
(i) Category 'A': Under this category the names of those persons are placed who are believed to be involved in anti State activities or whose visit to foreign countries is considered to be prejudicial to the State interest, or, whose visit abroad is banned from security point of view. The names in this list are included or removed by the Ministry of Interior .
(ii) Category 'B': Under this category , the names of those persons are placed who are involved in the offences punishable under Section 6 of Passport Act, 1974 or those who were refused passport under Para 21 of Passport and Visa Manual. The names of persons are also included in this list on the recommendations of government agencies/departments as well as those who are deported/repatriated from abroad . Director General, Immigration and Passports is competent to place and remove names in this list.
(C) Normal period of retaining a person on the blacklist is five years. However , a person can be kept on blacklist even beyond five years provided the referring department recommends for further retention having full justification in this regard. The competent authority viz. Additional Secretary , Ministry of Interior in case of category 'A' and Director General, Immigration and Passports in case of category 'B' may consider deletion of any person from such list on his appeal even before the normal period of five years. Both the blacklist categories 'A' & 'B' are subject to periodical review in consultation with he relevant agency/department on whos e instance the individual was blacklisted.
(C) The above lists are reviewed periodically by the Review Committees categories 'A' & 'B'. The composition of these committees is as under:-- I. Catagory 'A'
1. Additional Secretary , Ministry of Interior Chairman
2. Director General, Immigration and Member PassportsMember
3. Representative of Security Agency Member
4. Deputy Secretary (IP & N) Ministry of Interior Member/Secretary II. Category 'B'
1. Director General Immigration and Passports Chairman
2. Representative of DIB Member
3. Deputy Secretary (IP & N) Ministry of Interior Member
4. Representatives of Security Agencies Member
5. An Of ficer of Director General, Immigration and Passports.Member/Secretary
12. Adverting to merits of the impugned it is observed that on basis of procedure set in the Visa Manual, para 51(B) authorized the Federal Government to put names of persons in blacklist/Exit Control List either in category 'A' or category 'W. Placement of name in category 'IV is done inter alia, on the recommendations of Government agencies or where the grounds for refusal of Passport under para 21 of Manual are available. In the present case, admittedly petitioner was prosecuted by Anti narcotics case (sic) on charge of attempt to transport the heroin powder abroad, it is pertinent to mention that he was caught red handed at the Air-Port while trying to proceed, abroad along with the contraband material. The prosecution culminated upon conviction which was ordered by the learned Competent Court of law on the basis of guilty plea of the accused/petitioner . This leaves no doubt that petitioner remained involved in smuggling of contraband goods thus his case falls within Clause "g" of para 21 and his name was recommended by ANF for placement in Black List. Conseque ntly there were sufficient and reasonable grounds to place his name in blacklist.
13. Moreover , it has been incorrectly averred that impugned restriction has been imposed for indefinite period because Clause "C" of para 51 in the Manual lays down five years normal period of retention in Black List. Said period has not elapsed and petitioners' request has already been declined, therefore, no scope for interference is available. Similarly , determination of petitioner's conduct on the basis of previous conviction cannot be presumed to be hit by doctrine of double jeopardy as it is not a separate punishment rather falls within the preventive measures to curtail probability of the repetition of offence. Such phenomenon has been incorporated in penal laws of country where under more severe punishments are set for of fenders who are previous convicts.
14. Petitioner has not approached the authorities designated by rules and as such it could not be said that he has availed the remedy of review at appropriate level, therefore, the impugned action which has been based upon an established previous conviction cannot be interfered straight away in Constitutional jurisdiction. Mere assertion that impugned action has been taken without prior notice cannot in itself be a valid ground for setting aside the same as in the peculiar circumstances of case, it was a matter of public interest making it permissible for the authorities to take preventive action. In this reference guidance is sought from case of "Naheed Khan v. Government of Pakistan"
[PLD 1997 Karachi 513 ] wherein it was held as follows: "Reference to the cases cited on behalf of the petitioner no doubt indicates that the Federal Government while placing the name of any person on Exit Control List is obliged to state grounds for the same, but grounds have now been furnished in the counter-af fidavit which has been filed on behalf of the respondents. As was indicated earlier , restrictions can be placed on the movement of a person from Pakistan to a destin ation outside Pakistan in public interest, but as was held by the Supreme Court in Dada Amir Haider Khan's case , such action must be based on reasonable grounds. None of the cases referred by Mr. Naek indicates that the action taken therein by the respondents was reasonable. Therefore, the action was struck down. In the present case, it can be clearly spelt out that if permission had been granted to the petitioner to leave Pakistan, the Ehtesab process which was proposed to be initiated against the petitioner would be delayed. Therefore, it cannot be said that the action.T aken against the petitioner in the present case was either unreasonable or that the same was not in public interest. No doubt, the grounds for placing the petitioner's name on Exit Control List were not supplied to the petitioner , but nevertheless if there was any technical flaw, in the impugned action, no real prejudice was cause d to the petitioner because the petitioner could yet hive applied for a review, after she had been informed about placing of her name on Exit Control List. However , the impugned action neither being unreasonable nor in violation of any fundamental right and the same being taken in public interest, is not liable to be struck down merely for the reason that grounds for the same had not been supplied to the petitioner , therefore, the petition has no force."
15. In view of above, impugned action has been done reasonably under authority of law. Proper course for petitioner would be to approach the review committee after reasonable interval.
16. Petition stands dismissed. No order as to Costs.