TARIQ SALEEM SHEIKH, J. Through this judgment I propose to decide Writ Petitions Nos. 30013/2021 and 5734/2021 instituted under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), as they involve similar questions of law. Brief facts of these cases are as follows: Writ Petition No.30013/2021
2. Respondent No.7 (Asif Iqbal) lodged FIR No. C-189/2012 dated 7.3.2012 at Police Station FIA/AHTC, Lahore, against Petitioner Sheikh Shan Ilahi and his brother (Sheikh Irfan Ilahi) for offences under sections 17 and 22 of the Emigration Ordinance, 1979, alleging that they had received Rs.900,000/- for sending him abroad (England) on work visa but did not fulfil their promise. The Federal Investigating Agency (FIA) investigated the case and found that the Petitioner and Irfan Ilahi were innocent and prepared their discharge report. Respondent No.7 was not satisfied with the investigation so he filed a private complaint in the Court of the Special Judge (Central), Lahore, who declared the Petitioner and Irfan Ilahi proclaimed offenders as they had proceeded abroad in the meanwhile. Through a subsequent order dated 12.11.2014 the Special Court directed the Director General, FIA, to issue necessary caution at all the immigration points in Pakistan. Consequent thereupon the Deputy Director, FIA, vide Letter No. DDFIA/AHTC/LRH-6396 dated 4.10.2019 recommended that the Petitioner and Irfan Ilahi be blacklisted under Para 51 of the Passport and Visa Manual 2006 (the "Manual"). After some time Irfan Ilahi flew to Pakistan. He was arrested and produced before the Special Judge who admitted him to bail and presently he is facing trial. Later he requested the FIA authorities to remove his name from the blacklist which they did. Petitioner Shan Ilahi is still fugitive from law and is presently in Dubai. His passport expired on 6.4.2020 and could not be renewed owing to blacklisting. Hence, this petition.
Writ Petition No. 5734/2021
3. The Petitioner, Syed Anwar Shah, and his wife Farhat Anwar are overseas Pakistanis and stationed in Saudi Arabia. On 24.5.2016 Farhat Anwar came to Pakistan on a six-week visit and on 7.6.2016 when she went to the Allama lqbal International Airport to take a flight back to Saudi Arabia, the FIA authorities stopped and informed her that she and her husband were blacklisted for being proclaimed offenders in case FIR No. 107/2013 registered at Police Station FIA/ACC/LHR for offences under sections 420, 468, 471, P.P.C., section 6 of the Passport Act, 1974 and section 30 of the NADRA Act, 2002. Farhat Anwar was arrested but was admitted to bail by the Special Court.
Subsequently she filed Writ Petition No. 25415/2016 in this Court for removal of her name from the blacklist which was accepted vide order dated 31.8.2016.
4. In December 2020, the Petitioner also came to Pakistan to face the above-mentioned case and clear himself of the charge. The FIA authorities arrested him at the Islamabad International Airport but he was later admitted to bail by the competent court. The Petitioner also seeks delisting from the infamous blacklist.
Notice under Order XXVII-A, C.P.C.
5. The Respondents have submitted parawise comments in both the cases. Keeping in view the fact that these petitions involve important questions which require interpretation of various provisions of the Constitution and statutory law, notice was issued to the Attorney General for Pakistan under Order XXVII-A, C.P.C.
Arguments
6. Mr. Mehmood A. Sheikh, Advocate, the counsel for Petitioner Sheikh Shan Ilahi in W.P. No. 30013/2021, contended that it was the fundamental right of every citizen to travel within the country and go abroad. Passport was a sine qua non for the purpose of foreign travel and not a mere privilege. The said right could not syncopated without a duly enacted law. Para 51 of the Manual under which Respondent No.2 purported to exercise the power of blacklisting was ultra vires the Constitution and even otherwise had no legal sanction: On facts, the learned counsel submitted that there was no occasion for the FIA to blacklist Petitioner Shan Ilahi, and they had misconstrued the Special Court's order dated 12.11.2014. He added that they were punishing him for an accusation which they themselves had found to be false.
7. Syed Moazzam Ali Shah, Advocate, the counsel for Petitioner Syed Anwar Shah in W.P. No. 5734/2021, also assailed the vires of Para 51 of the Manual and in this respect adopted the arguments of Mr. Sheikh.. On facts he contended that the Petitioner had joined the investigation and was neither required by the FIA nor the local police for further probe. His case was at par with his wife Farhat Anwar (co-accused) whose name had been removed from the blacklist under order dated 31.8.2016 passed-by this Court in W.P. No.25415/2016. The learned counsel maintained that the Petitioner was entitled to the same relief on the basis of rule of consistency.
8. Mr. Asad Ali Bajwa, Deputy Attorney General, vehemently opposed these petitions. He emended that the Petitioners' objection to the blacklisting regime was Misconceived, Section 8 of the Passports Act, 1974, authorizes the Federal Government to cancel, impound or confiscate a passport and Para 52 further structures these powers. The blacklisting regime is governed by Para 51 of the Manual. He submitted that the concept of blacklisting was traceable to Paras 5, 39 and 191 of the Pakistan Passport and Visa Manual 1957 and Paras 25 and 26 of the Passport and Visa Manual 1974 and added that the Hon'ble Supreme Court also recognized it in Human Rights Case No. 26962/2017.
9. As regards the merits of W.P. No.30013/2021, Mr. Bajwa submitted that Petitioner Shan Ilahi was blacklisted under the order of the Special Judge (Central), Lahore, dated 12.11.2014 so no exception could be taken thereto.
10. In respect of W.P. No. 5734/2021 the learned Law Officer submitted that the object of placing the name of Petitioner Syed Anwar Shah on the blacklist was to make him surrender before the courts of Pakistan. Since that objective had been achieved, his case for delisting could be considered.
11. Mr. Mukhtar Ahmad Ranjha, Assistant Advocate General, Punjab, supported Mr. Bajwa.
12. In Writ Petition No. 30013/2021 Respondent No.7 (private party) opposed delisting of the Petitioner and prayed for dismissal of his petition.
Discussion
13. Article 4 of the Constitution enjoins that it is the inalienable right of every citizen, wherever he may be, and of every other person for the time being in Pakistan, to enjoy the protection of law and to be treated in accordance with law. Chapter I of Part-II enlists the fundamental rights guaranteed by the Constitution. In West Virginia State Board of Education and others v. Walter Barnette and others (1943) 319 US 624, Justice Jackson of the US Supreme Court observed that the purpose of the fundamental rights "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." In Moses Hinds and 3 others v. The Queen (1976) 1 All ER 353, 369, the Privy Council held that the fundamental rights "impose a fetter on the exercise by the legislature, the executive and the judiciary of the plentitude of their respective powers." In Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473) the Hon'ble Supreme Court of Pakistan held that "fundamental rights in essence are restraints on the arbitrary exercise of power by the State in relation to any activity that an individual can engage (in)." In Pakistan Muslim League (N) and others v. Federation of Pakistan and others (PLD 2007 SC 642) the apex Court said that the fundamental rights are based on the concept that certain basic human rights should be protected against State intervention in all eventualities for a free society.
14. It is now firmly established that the courts should have a progressive approach while interpreting the Constitution. Justice Frankfurter explained the raison d'etre therefor in Sweezy v.
New Hampshire (1957) 354 US 234, which was approved by the Supreme Court of Pakistan in Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473). He wrote: "... while the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed yield a new and fuller import to its meaning." In Al- Jehad Trust and others v. Federation of Pakistan and others (PLD 1996 SC 324) Ajmal Mian, J. of the Supreme Court of Pakistan said that "a written Constitution is an organic document designed and intended to cater the need for all times to come. It is like a living tree, it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people. Thus, the approach, while interpreting a constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation, which has arisen, effectively. The interpretation cannot be narrow and pedantic."
15. The above principle is applied more vigorously when it comes to constitutional provisions pertaining to fundamental rights. In The Minister of Home Affairs and the Minister of Education v.
Collins MacDonald Fisher and Eunice Carmeta Fisher (1979) 3 All ER 21, Lord Wilberforce held that fundamental rights "call for a generous interpretation avoiding what has been called 'the austerity of tabulated legalism', suitable to give to individuals the full measure of the fundamental rights and freedoms referred to." The courts in India and Pakistan are essentially of the same view. In Maneka Gandhi v. Union of India (AIR 1978 SC 597) the Supreme Court of India held that it is not imperative that every right should be enumerated as a fundamental right in the Constitution. It can be claimed even if it forms an integral part of a named fundamental right or is of the same nature or character or if its recognition is necessary to make the exercise of the named fundamental right meaningful and effective. In Jurist Foundation v. Federal Government through the Secretary Ministry of Defence and others (PLD 2020 SC 1) the Supreme Court of Pakistan held that "fundamental rights in a living Constitution are to be liberally interpreted so that they continue to embolden freedom, equality, tolerance and social justice." In Hafiz Junaid Mahmood v.
Government of Punjab and others (PLD 2017 Lahore 1) this Court held that "fundamental rights are the heart and soul of a living Constitution and must at all times be ready to embrace and protect the sensibilities and sensitivities of the people. They must be progressively and interpreted to advance the frontiers of freedom, individual autonomy and free choice. Such vibrance and vitality is the hallmark of a living Constitution in a democracy."
16. Generally speaking, the State Constitutions do not grant absolute fundamental rights and subject them to law. "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 that an equilibrium has to be maintained between the two contending interests 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. "[1]
17. The Constitution of Pakistan (1973) makes a clear distinction between fundamental rights that are absolute and others which are not. The non-absolute are those which are "subject to law" or "subject to reasonable restrictions imposed by law." No fundamental right can be surrendered or waived and limitations, if any, can be imposed only in public interest and in accordance with law.
2.
18. The right to travel is now globally recognized as one of the basic human rights. Article 13 of the Universal Declaration of Human Rights (1948) declares that everyone has the right to freedom of movement and residence within the borders of each State, to leave any country, including his own, and to return to his country. Similar provisions are found in Article 12 of the International Covenant on Civil and Political Rights (1966)[3] and some other international instruments. Historically, in England, it has its roots in Clause 42 of the Magna Carta (1215)[4] and the common law and in the United States the courts have considered it to be a part of "right to liberty" and held that it is enshrined in the Fifth Amendment to the US Constitution.[5] The Supreme Court of India has followed the American line of reasoning and held that the right to travel is included in the guarantee of personal liberty in Article 21 of Indian Constitution.[6]
19. The Constitution of Pakistan (1973) guarantees freedom of movement in Article 15. It says:
15. Freedom of movement:---Every citizen shall have the right to remain in, and, subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof.
20. The above Article confers three rights: (i) the right to remain in Pakistan; (ii) the right to enter and move freely throughout the country: and (iii) the right to settle and reside in any part of the country. These are incidents of citizenship and are available to Pakistanis only.
21. The right to travel abroad is not expressly guaranteed by Article 15 or any other provision in Chapter 1 of Part II of the Constitution but our courts have invoked Article 4 (right to be treated in accordance with law) and Article 9 (right to life and liberty) to support it.[7] In Government of Pakistan and another v. Dada Amir Haider Khan (PLD 1987 SC 504) the Hon'ble Supreme Court held: "Article 15 guarantees to every citizen the right to remain in, enter and move freely throughout Pakistan. But his right to enter the country if he is leaving it or has gone abroad and his right to step out and step in the country are subject to reasonable restrictions imposed by law in the public interest. By reading the provisions of Articles 4, 9 and 15, it is manifest that every citizen has the liberty to go abroad and to re-enter Pakistan unless he is precluded from doing so under some law made in the public interest ... Moreover, a citizen's right to travel abroad is an important aspect of the citizen's liberty and is closely related to the rights of free speech and association. As nations in the world become politically and commercially more dependent upon each other and foreign policy decisions have come to have greater impact upon the lives of citizens, the right to travel has become correspondingly more important."
22. Faqir Muhammad Khokhar J. of this Court (later elevated to the Supreme Court) considered the right to travel in Wajid Shamas-ul-Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad (PLD 1997 Lahore 617) and held: "The right of a citizen to travel abroad is a fundamental right guaranteed by Articles 2A, 4, 9, 15 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 ... The right to travel is one of the most valued and cherished fundamental human rights in all civilized societies perhaps next only in importance to the rights to life and personal liberty. Denial of the right to travel, like deprivation of the right to personal liberty, would put an end to or substantially abridge several other rights of the individual ... The right to travel, in its generic sense, comprehends not only the right to domestic travel but also the right to international travel which in turn is comprehensive enough to include the right to leave one's country, the right to visit foreign countries, and the right to return to one's own country. While the right to foreign countries is regulated by the rules of customary international law according to which the nations/States are under no obligation, in the absence of treaty stipulation, to admit aliens to their territories, the right to leave and return to one's own country may need a specific constitutional or legislative sanction."
23. In Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others (PLD 2010 Lahore 230) Syed Mansoor Ali Shah J. (now a Judge of the Supreme Court) surveyed the entire case-law on the subject and concluded as follows: "The jurisprudence discussed above establishes that right to travel is part of human liberty as travel signifies freedom and liberty. Therefore, the right to travel outside the country is a fundamental right and an intrinsic part of right to liberty which is guaranteed under Article 9 of our Constitution ... [The] world today has shrunk due to online connectivity, internet, media and faster means of travel. People today travel across the globe to pursue higher education, to seek more challenging and rewarding employment, to carry out academic research or to discover and expand their business into new markets of the world. Travel, therefore, has become an integral part of modern life. Right to education, right to livelihood and right to carry out awful profession are incomplete without having access and the right to travel to any part of the world and in particular to the educational or business centres of the world. To me right to travel, especially international travel, besides being right to liberty is also an integral part of right to life or right to a meaningful, challenging, satisfying and purposeful life. Therefore, I hold right to international travel to be a right to life in addition to right to liberty."
24. In Mian Muhammad Shahhaz Sharif v. Federation of Pakistan and others (PLD 2004 SC 583) the august Supreme Court held that under Article 15 of the Constitution a citizen of Pakistan cannot be stopped from entering the country. In Pakistan Muslim League (N) and others v. Federation of Pakistan and others (PLD 2007 SC 642) the apex Court ruled that the right to go abroad and return to Pakistan conferred by Article 15 is not absolute which is indicated by the expression "subject to any restrictions imposed by law in the public interest."
25. From the above discussion it follows that the right to travel and to go abroad is an integral part of the fundamental rights to life and liberty and can be restricted only under a law made in the public interest. Here, the "law" means "enacted law",[8] a law that is valid[9] and non- discriminatory.[10] According to Justice Fazal Karim, generally speaking, primary legislation (e.g. an Act of Parliament) cannot be assailed on the ground of unreasonableness but the validity of subordinate legislation such as rules, regulations etc. can be challenged on that score. However, this principle does not apply where the Constitution itself, as in the case of Article 15 (and Articles 16, 17, 19 and 23), makes a right subject to reasonable restrictions imposed by law. Thus, the question of reasonableness of a restriction imposed on the right to travel even if it is by primary legislation is justiciable.[11] In Maneka Gandhi v. Union of India (AIR 1978 SC 597) the Supreme Court of India held that a restriction would be reasonable only if it is "right and just and fair" and not arbitrary, fanciful or oppressive. And, in Pakistan Muslim League (N) and others v. Federation of Pakistan and others (PLD 2007 SC 642) the Supreme Court of Pakistan held that it should not be for an indefinite period or disproportionate to the mischief sought to be prevented. The Executive has no inherent power except what is conferred on it by law. An action which is mala fide or colourable or taken upon extraneous or irrelevant considerations is not regarded as action in accordance with law. Similarly, an action taken by an authority on no ground or without application of mind is unlawful and liable to be struck down.
26. Article 15 expressly states that the restriction should not only be reasonable but also in the public interest. Referring to Pakistan Muslim League (N) and others v. Federation of Pakistan and others (PLD 2007 SC 642) Justice Fazal Karim writes that the term " 'public' is invariably employed in contradistinction to the terms private or individual and connotes, as an adjective, something pertaining to, or belonging to the people; relating to a nation, State or community." [12]
27. The legislature as well as the courts purposely avoid defining the phrase "public interest" because any such attempt may be counter-productive. There is, however, a consensus on all hands that it has a broad meaning. In London Artists Limited v. Littler (1962) 2 All ER 193, 198, Lord Denning M.R. said: "Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on or what may happen to them or others, then it is a matter of public interest on which everyone is entitled to make fair comments." This definition was cited with approval in Reynolds v. Times Newspaper (1999) 4 All ER 609, 615.[13]In our country, in Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others (PLD 2010 Lahore 230) this Court ruled that public interest or collective community interest is "a basket of various public interests, including public morality, public order, public health, national security and foreign policy of the country, besides fundamental rights of the others ... The public interest test involves both Substantive and procedural due process."
28. At present the Passports Act, 1974, and the Exit from Pakistan (Control) Ordinance, 1981, are the principal statutes that regulate the right to travel abroad. Some special laws, e.g. the Offences in Respect of Banks (Special Courts) Ordinance, 1984, also contain provisions to restrict movement of certain persons but we need not go into them. In Malik Mustaq Awan v. Government of Pakistan and others (PLD 1999 Lahore 372) this Court observed that the main objective of the aforementioned two enactments is the same in that they regulate the exit of persons from Pakistan. However, the Passports Act is confined to the citizens holding passports while the Ordinance has a broader canvass and applies to all the persons intending to leave the country.
29. In Government of Pakistan and another v. Dada Amir Haider Khan (PLD 1987 SC 504), a case involving refusal of passport to an old political worker, while considering sections 3, 4, 2(a) and 13 of the Passports Act, 1974 (the "Passports Act"), the Hon'ble Supreme Court laid down the following principles: i) The Passports Act is a law made in the public interest to regulate the right of a citizen of Pakistan to travel abroad and return home. It has to be construed in the light of that object and purpose. ii) It cannot be said that a citizen has a right to the issuance of passport merely because the Act and the Rules framed thereunder do not provide that the Federal Government has the discretion to decline his application. The issuance of passport is incidental to the power to regulate the exit of a citizen from Pakistan and his return. iii) The power to grant or refuse issuance of a passport involves exercise of public power which cannot be exercised arbitrarily or to the disadvantage of the citizens. iv) Even an administrative authority is under an obligation to decide the matters placed before it fairly, justly and equitably. A person has a legal right to demand that the administrative body should decide his case in accordance with law. v) Where the authorities refuse a passport they must convey reasons to the person affected thereby and afford him an opportunity of hearing. In cases where it is not in the public interest to disclose full reasons, this fact should also be communicated to him. vi) Once the State has exercised its discretion and issued a passport, it cannot arbitrarily confiscate it without assigning any reason and without giving any opportunity to the holder of the passport to present his viewpoint.
30. For our present purposes section 8 of the Passports Act is relevant. Subsection (1) thereof stipulates that the passport is the property of the Federal Government and it may, by an order, require the citizen to return it or otherwise cancel, impound or confiscate it. Sub-section (2) enjoins that before making such order the Federal Government shall give a notice in writing to the person concerned to show cause against it unless, in the case of impounding, the matter is of such nature that immediate action is required. In such eventuality, an opportunity to show cause shall be afforded within two weeks from the making of the order. Subsection (3) of section 8 provides that if the Federal Government has reason to believe that the person whose passport is being cancelled, impounded or confiscated is engaged in subversive activities or working against the country's interest, show cause notice as aforesaid shall not be necessary. Nevertheless, under sub-section (4), such person may apply to the Federal Government for a review within thirty days of the order.
31. Admittedly, in the cases before me, the Federal Government has neither directed the Petitioners to return their passports nor has cancelled, impounded or confiscated them. It has rather proceeded against them under Para 51 of the Manual which reads as under:
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, Black List / 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 Passports 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 Passport is competent to place and remove names in this list.
(C) Normal period of retaining a person the blacklist is five years. However, a person can be kept on blacklist even beyond the 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 the relevant agency/department on whose instance the individual was blacklisted.
(D) The above lists are reviewed periodically by the Review Committees category 'A' & 'B'. The composition of these committees is as under:
32. The Passports Act does not contain any provision for blacklisting. As adumbrated, section 8 empowers the Federal Government only to cancel, impound or confiscate a passport. "Blacklisting" is a separate concept and has a different connotation. Meriam-Webster Online Dictionary defines "blacklist" as (a) a list of persons who are disapproved of or are to be punished or boycotted; (b) a list of banned or excluded things of disreputable character." According to the Oxford Advanced Learners' Dictionary, it is "a list of the names of people, companies, products or countries that an organization or a government considers unacceptable and that must be avoided."[14] Black's Law Dictionary states that the aforesaid term means "to put the name of (a person) on a list of those who are disfavoured and are therefore to be avoided or punished."[15] In this view of the matter, blacklisting cannot be equated with cancellation, impounding or confiscation.
33. Section 13 of the Passports Act stipulates that the Federal Government may, by notification in the official Gazette, make rules for carrying out the purposes of the said Act. In exercise of those powers the Federal Government framed Passports Rules, 1974, vide SRO No. 986(I)/74 dated 18.7.1974, published in the Gazette of Pakistan 1974, Ext. (Islamabad). Pt. II pp. 1409-1414. These Rules also do not contain any provision for blacklisting.
34. Now I advert to the Exit from Pakistan (Control) Ordinance, 1981 (the "Exit Control Ordinance").
Section 2(1) empowers the Federal Government to prohibit, by an order in writing, any person or class of persons from proceeding abroad notwithstanding the fact that such person has valid travel documents. The words "any person" in the said section means that it can be invoked not only for the citizens of Pakistan but for foreign nationals also who are in the country for the time being.
This dispensation envisages an Exit Control List (the "ECL") and the Exit from Pakistan (Control)
Rules, 2010, contain detailed guidelines for the exercise of the aforesaid power. In this regard Rule 2 is of vital importance inasmuch as it enumerates the grounds on which a person's name can be put on the ECL. This enumeration depicts that the Federal Government recognizes that curbs under section 2, supra, should be made only in extreme cases of public interest - as commanded by the Constitution. They cannot be applied to people involved in crimes against individuals (except where the offence is of heinous nature and the relevant home department furnishes special grounds) and private civil disputes except cases of fraud against foreign banks and reputable companies with significant foreign investments. No court is competent to forward the name of any person to the Federal Government for an order under section 2(1) except the Supreme Court of Pakistan, a High Court or a Banking Court. It is noteworthy that the Federal Government's orders are subject to judicial review. It must, inter alia, establish that: (a) it had not acted mechanically and applied its mind to the facts of the case, (b) the order is based on one or more of the grounds mentioned in Rule 2, and (c) the order is in the public interest and has no extraneous consideration.
35. The Ministry of Interior, Government of Pakistan, has issued the Manual to streamline passport and visa procedure. The question as to what is its legal status is quite contentious. In Tariq Mehmood v. Ministry of Interior, Government of Pakistan and others (PLD 2016 Islamabad 32) the Islamabad High Court held that section 13 of the Passports Act empowers the Federal Government to make rules through a notification in the official Gazette. The Manual is a compendium of directions issued by it from time to time through gazette notifications so it has the same standing as the statutory rules. It constitutes a valid law and is enforceable. On the other hand, in Sayed Zulfikar Abbas Bukhari v. Federation of Pakistan etc. [2018 (M) C.L.R. 1670] another Bench of the same High Court held that there is no statutory backing for blacklisting and added that the Manual having been created by the Executive Authority could at best be regarded as SOP.
36. It is by now well settled that the Government is competent to issue instructions and guidelines for the smooth running of its departments and offices and, more particularly, to structure the discretion of the officers which is imperative for good governance. Nevertheless, such instructions and guidelines should not be strident with the Constitution, the statutory law and the rules validly framed thereunder. In Khan Faizullah Khan v. Government of Pakistan through the Establishment Secretary, Cabinet Secretariat and another (PLD 1974 SC 291) the Hon'ble Supreme Court said: "This Court has stated on several occasions that even instructions contained in Memoranda issued by the appropriate Government could be regarded as being in the nature of statutory rules provided they are expressed with precision and yet possess generality so as to be capable of application to a large number of cases - see Pakistan v. Sheikh Abdul Hamid (PLD 1961 SC 105), Province of West Pakistan v. Din Muhammad (PLD 1964 SC 21), Government of West Pakistan v.
A. A. Aziz (PLD 1966 SC 188) and Habib-ur-Rehman v. West Pakistan Public Service Commission (PLD 1973 SC 144)."
37. This Court applied the above principle in Mst. Mumtaz Begum through Legal Heirs and others v. Muhammad Shafique and others (PLD 2009 Lahore 418) to hold that the Land Record Manual has statutory force and binding on all the revenue authorities. On the same premise I hold that the Passport and Visa Manual, 2006, has legal force. Nevertheless, validity of individual paragraphs can be questioned on the ground that they are in conflict with the Constitution or any statutory provision or a rule or otherwise on the basis of the doctrine of occupied field. In Messrs Sufi Steel Industries (Pvt.) Ltd. v. Federation of Pakistan and others (2018 PTD 378) this Court held: "[W]hat the government or the authority issues under the rule-making power conferred on it by a statutory provision or some specific constitutional provision will generally be characterized as a rule. On the other hand, directions are issued under the government's/authority's administrative and not legislative power. No doubt the scope for issuance of directions by the Administration is extremely broad, as a general proposition, it may be stated that the government can issue directions on any matter falling within the range of its administrative power, so long as the field is not occupied by any statutory provision or a rule. The statutory rules are on higher pedestal and administrative instructions/circulars/ orders can neither change the principle contained in the statutory rules nor rules can be amended through administrative jurisdiction."
38. It may not be out of place to mention here that even the rules enacted under a statute cannot widen its purpose or add new and different means for carrying out or to depart from and vary its terms. Reliance is placed on Khawaja Ahmad Hassaan v. Government of Punjab and others (PLD 2004 SC 694).
39. In these petitions the Petitioners have assailed the vires of Para 51 of the Manual. Admittedly, the Manual has been prepared to carry out the aims and objects of the Passports Act so that is the governing law. As already noted, section 8 of the Passports Act talks only about cancellation, impounding and confiscation of passport. It does not say anything about blacklisting which is a category apart. The Passports Rules, 1974, are equally silent on the issue. Para 51 goes beyond the legislative policy of the Passports Act and is, therefore, ultra vires.
40. It is trite that courts should make every effort to save a statutory provision so we may have recourse to the Exit Control Ordinance to find legitimacy for Para 51 of the Manual. Even otherwise, it is necessary because sub-para (B) of Para 51 specifically refers to the said Ordinance and the ECL which gives an impression that it also relies on the said enactment and the rules made thereunder for validity of the blacklisting regime. In my opinion, this exercise too does not help. The Exit Control Ordinance has its own swa y and the parameters for placement of a person's name on ECL which are prescribed by Rule 2 of the Exit from Pakistan (Control) Rules, 2010. Para 51 being administrative instructions is at a lower pedestal so it cannot change or add to that regime.
41. The learned Deputy Attorney General has brought to my notice HRC No. 26962/2017 that arose from a boat capsize incident near the territorial waters of Libya in which a number of illegal immigrants, including 32 Pakistanis, - were killed. The Hon'ble Supreme Court of Pakistan constituted a three-member committee comprising high government officials to make recommendations to avoid such happenings in the future. The committee's report was approved vide order dated 27.3.2018. Relevant excerpt is reproduced below: "On account of the order of this Court dated 6.2.2018; a three member; committee, comprising Mr. Arshad Mirza, Secretary Ministry of Interior, Ms. Tehmina Janjua, Secretary, Ministry of Foreign Affairs and Mrs. Bashir Memon, Director General FIA, has been constituted to resolve the issues involved in the matter. A report in this regard has been submitted which has been placed on the record. From the contents of the report, we find that certain steps have to be taken by the Federal Government as also the Provincial Governments in order to prevent such unfortunate incidents in the future. We make this report a part of the order and direct that all the recommendations made by the said committee be implemented in letter and spirit and the respective compliance reports be submitted to this Court within a period of one month."
42. Subsequently, in compliance with the above-mentioned order the Director General, FIA, issued Standing Orders Nos. 2/2018 and 3/2018 both dated 27.4.2018. The former provides for maintenance of a 30-day Provisional National Identification List ("PNIL") of the fugitives' nominated in the FIRs of heinous crimes who, as per certification of the requesting agency head, are likely to escape from the country before their cases are processed for placement on ECL etc. On the other hand, Standing Order No. 3/2018 (Re: SOP to blacklist migrant smugglers, human traffickers and deportees) makes the following provision for blacklisting: Passports of illegal migrants deported back to Pakistan from other countries to be cancelled and the violators themselves blacklisted: for a specified period of time.
ClassReason of DeportationPeriod of Passport Blacklist 1 Illegal overstay06 months to 01 year 2Cancellation of visa/residency due to violations of conditions of visa/residency01 year 3Cancellation of visa or any type of residency for obtaining visa/ residency through misdeclaration. 02 years 4 Blacklisted, held criminally liable or prosecuted by any Foreign Government 02 years 5 Illegal exit from Pakistan or illegal entry into any foreign country. 02 years 6Entry refused/deported or offloaded/intercepted in Pakistan on charges of using suspicious, counterfeit or forged travel documents or attempting to cross a border illegally without valid travel documents.03 years 7Entry refused/deported or offloaded/intercepted in Pakistan on charges of impersonation.03 years 8For involvement in any of the crime(s) related to migrant smuggling or human trafficking.5 years
43. The orders of the Hon'ble Supreme Court are binding on all judicial and executive authorities in the country under Article 187 of the Constitution.[16] Inasmuch as Standing Order No. 3/2018 has been issued in pursuance of the Committee's recommendation approved by the apex Court vide order dated 27.3.2018, it is valid and enforceable. No such legal sanction is available for Para 51 of the Manual. It is, therefore, struck down.
44. The learned Deputy Attorney General is apprehensive that striking down of Para 51 would have serious repercussions. It is trite that the courts have to decide cases in accordance with the law for the time being in force and if a situation arises due to any flaw or lacuna therein, the Parliament must play its role. Mr. Mehmood A. Sheikh, Advocate, has rightly pointed out that in appropriate cases the Federal Government can proceed under Standing Order No.2, supra. Further, it has the option to digitally impound the passport of a particular, person for which a mandate can be found in section 8 of the Passports Act. To that end, due process would however be required.
45. Administrative authorities are obliged to exercise the discretion vested in them in the public interest justly, fairly and reasonably. It is necessary to see whether the Respondents have done so in the cases in hand.
46. In Writ Petition No. 30013/2021 case FIR No. CF-189/2012 was recorded by the FIA authorities and after due investigation they found that the Petitioner was innocent and prepared his discharge report. The Petitioner went abroad to attend to his business after it. Admittedly, Respondent No.7 filed the private complaint when he was away. The FIA contends that the Petitioner's name was put on the blacklist on the order of the Special Judge (Central), Lahore. However, the court has recently clarified that it never issued such a direction.[17]
47. The trial in the above-mentioned private complaint qua co-accused Irfan Ilahi is in progress and evidence is being recorded. Mr. Mehmood A. Sheikh, Advocate, has placed on record certified copies of the depositions of Muhammad Nawab (PW-2) and Khalil Ahmad (PW-3) and pointed out that they have not supported the version of Respondent No.7. He maintains that this reinforces the contention of Petitioner Shan Ilahi that he is being maliciously prosecuted.
48. There is no denying the fact that it is in the public interest that offenders should be brought to justice. It is more true in respect of the fugitives from law. Nevertheless, every case has its own facts and the Federal Government cannot cancel, impound, confiscate or for that matter blacklist a person mechanically. It must thoroughly examine each case before taking any action. In Writ Petition No. 30013/2021 the circumstances were such that blacklisting of the Petitioner was not warranted.
49. In Writ Petition No.5734/2021, the name of Petitioner Syed Anwar Shah was placed on the blacklist on the recommendation of FIA as he was a proclaimed offender in case FIR No. 107/2013.
He has surrendered and the competent court has admitted him to bail. It is true that the case against him has not been decided so far but that cannot be a ground to deprive him of the right to travel abroad.[18] The Deputy Attorney General stated at the bar that he would recommend removal of his name from the blacklist.
50. In view of the above, these petitions are accepted. The blacklisting of both' the Petitioners is declared to be without lawful authority and of no legal effect.
1. Pakistan Muslim League (N) and others v. Federation of Pakistan and others (PLD 2007 SC 642)
2. See note 2.
3. Article 12 says:
1. Everyone lawfully within the territory of a State shall, within that territory have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those, which are provided by law, are necessary to protect national security, public order (order public), public health or morals or the rights and freedoms of others, arid are consistent with the other rights recognized in the present Covenant.
4. No one shall be arbitrarily deprived of the right to enter his own country.
4. Clause 42 read as under: It shall be lawful to any person, for the future, to go out of our kingdom, and to return, safely and securely, by land or by water, saving his allegiance to us, unless it be in time of war, for some short space. for the common good of the kingdom: excepting prisoners and outlaws, according to the laws of the and of the people of the nation at war against us, and Merchants who shall be treated as it is said above.
5. Bauer v. Acheson, Secretary of State 106 F. Supp. 445 (1952); Leonard B. Boudin v. John Foster Dulles, Secretary of State 136 F. Supp. 218 (1955); and Kent and others v. Dulles, Secretary of State 357 US 116 (1958) and Aptheker and others v. Secretary of State 378 US 500 (1964).
6. Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, Government of India (AIR 1967 SC 1836) and Maneka Gandhi v. Union of India (AIR 1978 SC 597).
7. Fazal Karim, Judicial Review of Public Actions, Second Edition, p.1117
8. Maneka Gandhi v. Union of India (AIR 1978 SC 597).
9. Pakistan Muslim League (N) and others v. Federation of Pakistan and others (PLD 2007 SC 642).
10. Wajid Shamas-ul-Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad (PLD 1997 Lahore 617).
11. Fazal Karim, Judicial Review of Public Actions, Second Edition, p.1117.
12. Ibid., p.1127
13. Ibid.
14. Oxford Advanced Learners' Dictionary, 8th Edition, p. 144.
15. Black's Law Dictionary, Tenth Edition, p. 203.
16. The State through Director General FIA, Islamabad v. Alif Rehman (2021 CLD 472) (Supreme Court).
17. Order dated 31.1.2020 passed by the Special Judge on the application of Petitioner's brother Sheikh Irfan Ilahi for removal of his name from the blacklist.
18. See: Federal of Pakistan v. General (Reid) Pervez Musharrof (PLD 2016 SC 570); Federation Government v. Ayya n Ali (2017 SCMR 1179); Shabana Noor Ahmed v. Director General Immigration and Passport, Islamabad, and others (PLD 2019 Sindh 456).