KHUDA BAKHSH MARRI, J.-Through this petition the legality of an order of Assistant Director, Immigration and Passports, Government of Pakistan, Karachi, respondent No. 1 dated 7-2-1970 has been challenged, by which order the validity of petitioner's passport has been curtailed from 20th October 1973 to 6th May 1970.
2. The facts leading to this petition are that according to petitioner he was "for the last time" granted a passport bearing No. AC414349 on 21st October 1968 valid for a period of five years ending on 20th October 1973, by the Deputy Assistant Director, Immigration and Passport, Hyderabad, which was valid for several countries with an endorsement that it was not valid for Saudi Arabia during Haj season.
3. It is the case of petitioner that in the beginning February 1970, he approached respondent No. 1 with a request for relaxation of condition with regards to Saudi Arabia, as he wanted to proceed on Haj, he was asked to produce the passport. On production of passport instead of relaxing the required condition, respondent No. 1 not only scored out the entry relating to Saudi Arabia during Haj season but reduced the period of validity of the passport to 6th May 1970.
4. The petitioner's main grievances are that the order of restricting his passport to 6th May 1970 amounts to its cancellation and confiscation after the date of expiry i.e. 6th May 1970. As no show- cause notice was given to him prior to this order by the respondent No. 1, his action offends principles of natural justice and he cannot under the law be deprived of a legal right to possess the passport duly issued to him. It is next contended on behalf of the petitioner that Pakistan Passport Act, 1920 does not prescribe any norms for the grant or refusal to issue passports. However, it is argued that Pakistan Passport and Visa Manual, 1957 laid down 8 conditions under which a passport may be refused, which are reproduced as under "(1) Minors suspected of being taken out of Pakistan against an order of the Court or against the wishes of the legal guardian.
(ii) Persons believed on good evidence to be fleeing from Pakistan to avoid prosecution for a criminal or other offence.
(iii) Persons whose presence in a foreign country would be a danger or their visits to a particular country would render them dangerous on return to Pakistan.
(iv) Persons who are likely to become destitute and their repatriation would be a charge on public funds.
(v) Persons suffering from mental or moral deficiency.
(vi) Persons previously deported from abroad on account of their undesirable activities.
(vii) Suspected of being habitual smugglers and purveyors of contraband.
(viii) Suspected to be smugglers of Foreign exchange."
The petitioner, it is claimed does not, come under any of these conditions so as to be refused the passport. It is further contended that powers to confiscate, return, restrict or impound a passport, vest with respondent No. 2, the Secretary, Ministry of Interior Government of Pakistan under section 6 of Passport Act, 1920, which is as under "6. Power to impound to confiscate.-(1) Every passport issued by or on behalf of the Central Government shall be the property of the Government and the Central Government shall have power to impound or confiscate the same or require its return.
(2) The Central Government shall have the like power in respect of every passport, held by a citizen of Pakistan or by a subject of any Acceding State or by native of any area included in the Federation under clause (bb) of subsection (1) of section 5 of the Government of India Act, 1935, or of a territory included in Pakistan under sub-clause (d) of cl. (2) of Art. 1 of the Constitution of 1956, or a State or territory included in Pakistan under para. (b) of cl. (2) of Art. 1 of the Constitution of 1962.
(3) The power conferred by this section shall not be exercis--ed save by an order under the hand of a Secretary to the Government of Pakistan."
It is contended that in the present case this power has been illegally exercised by respondent No. 1 which is without lawful authority. In the alternative it was argued by Mr. Abdul Hayee Qureshi, learned counsel for the petitioner that even granted for the sake of argument that respondent No. 2 as provided by section 6 has the power to confiscate or impound or restrict the petitioner's passport, still this power cannot be used by him without prior show-cause notice, as no show- cause notice has been given to petitioner, the impugned order is wholly without jurisdiction, having no legal sanctity, may be declared as null and void and without lawful authority.
5. Mr. Muzaffar Hassan, Advocate, who represented respon--dents Nos. 1 and 2 (Government of Pakistan) from the outset drew our attention to certain salient and material facts, which go to the very root of this petition and according to him these facts were concealed by the petitioner from this Court. He therefore, argued that only on this ground this petition deserves dismissal as the petitioner did not come with clean hands before this Court to deserve its sympathy in its equitable jurisdiction. It will be with some advantage, we may reproduce these facts which appear in the counter-affidavit filed on behalf of Govern--ment, dated 29th January 1971; the same remain uncontroverted: "Paragraph No. 2 -According to this para. Of his counter---affidavit, 'The petitioner was black-listed for undesirable activities and his passport was impounded in 1962. It is further claimed that petitioner's political and other activities were considered prejudicial to the public interest and he was even refused Domicile Certificate of Karachi in 1967.
(5) On 14th February 1963, the petitioner was given a restricted passport No. AC 016974 for one year only on the recommendations of the Political Agent, Khyber and Commis--sioner of Peshawar, where he promised that he would not indulge in any undesirable or objectionable activities outside the country. On a further recommendation by the Commissioner of Peshawar, the validity was extended to 2J years from 14-2-1963. His passport was not valid for European countries U. K., U. S. A.
In fact the passport was issued to facilitate the petitioner to perform Umra etc.
(6) On the expiry of 2-- years, the said passport No. AC 016974 lapsed and renewal was refused and communi--cated to the petitioner under No. 8/14/66-Pass II, dated 5th October 1967. The issuance of this passport of a restricted nature was a facility granted to the petitioner as a special case by the Immigration and Passport Office and was not a legal act in view of Annexure 'R'.
(7) When the petitioner found that this Passport No. AC 016974 issued at Karachi had expired on 14- 8-1965, he started correspondence on the subject with various officials in Karachi and surreptitiously applied for a fresh passport at Hyderabad on 31-10-1966 showing his residence at Taluka Matli, Hyderabad District and writing his name as S. A. Hannan, Thus he failed intentionally and deliberately to disclose in his declaration that he previously held a Passport, and thereby committed an offence under section 3 of the Passport (Offences) Act LVI of 1952. The Hyderabad Regional Passport Office issued him a Passport No. AC 414349 on 21st October 1968, which is the subject-matter of this Petition.
(8) Having obtained the Passport in that manner, the petitioner made the sad mistake of applying to the Karachi Passport Office for removal of Haj restriction stamp and the Karachi Office recognised the identity of the petitioner and withheld his passport. The petitioner thereupon sought interview at Karachi with respondent No. 2 and in this interview the respondent No. 2 told the Director of Immigration and Passport, Karachi to allow the petitioner to perform Haj and restrict the passport for a period of three months. This order was made as an act of grace only although the passport was liable to be confiscated at once as it was obtained in violation of the provision of section 3 of the Passport (Offences) Act, 1952."
6. From the averments made in the counter-affidavit it is very clear that the petitioner concealed the material facts and obtained a passport from the relevant authorities by mis--statement of facts. Under section 3 of the Passport (Offences) Act, 1952, he was bound to state all the material facts which necessitate the requirements for obtaining the passport. Section 3 is as under "Penalties for certain offences relating to passport.-(1) Any person who,--
(a) makes, attests or verifies any statement which he does not know or believe to be true in any document which he knows or has reason to think will be used for obtaining a passport ; or
(b) makes use of any statement which he knows or has reason to think to be untrue in any document for obtaining a passport ; or
(c) wilfully conceals any fact which under the circumstances he ought to disclose for the purpose of obtaining a passport for another person ; or
(d) forges, alters or tempers with any passport or with any document which he knows or has reason to believe will be used for obtaining a passport ; or
(e) uses a passport which he knows or has reason to believe to be forged, altered, or tempered with ; or
(f) is in wrongful possession for any purpose prejudicial to the interests of the state of a passport not lawfully issued to him ; or
(g) traffics in passports ; shall be punished with imprisonment which may extend to two years or with fine, or with both.
Explanation.-A person who bona fide works for an applicant though it may be for gain does not traffic in passports within the meaning of this section.
(2) No Court shall take cognizance of any offence under this section, except with the previous sanction in writing of the Central Government or of the Government of the province or the State within which the offence is committed."
There is a clear violence of section 3, subsections (b) (c) and (d) which is a punishable offence. It is on record that the petitioner obtained the first passport from Karachi which was impounded by Government vide its order dated 15th November 1962 Annexure 'R', this passport was issued in the name of Sahibzada Abdul Hannan. There was no necessity for the petitioner had he been honest in his dealings to change his nomenclature from Sahibzada Abdul Hannan to S. A. Hannan to obtain a fresh passport and that also not from Karachi Office but from Hyderabad Office which is a separate jurisdic--tion than Karachi. Under the existing rules stated above it was petitioner's bounden duty to disclose, while applying to the Hyderabad Office for issuance of a passport, that his previous passport has been impounded and further the reason that why from Sahibzada Abdul Hannan he has changed his name to S. A. Hannan, as this has now been done, we have no alternative but to believe the facts stated in the counter-affidavit of the respondents that petitioner was blacklisted and being conscious of this, he tried to and in fact succeeded by obtaining the passport by deceitful means, therefore, he did not come with clean hands before this Court. It has been repeatedly held by this Court as well as their Lordships of the Supreme Court that to successfully invoke the equitable jurisdiction under the constitutional proceedings it is a pre- condition that the petitioner should come with clean hands if otherwise, the relief is not, to be granted. We are supported in our view by the following decisions.
Firstly be Tufail Mohammad v. Raja Mohammad Zia Ullah Khan (PLD 1965 SC 269) wherein their Lordships were pleased to observe as follows : "The writ jurisdiction is not to be exercised in aid of injustice. We have little doubt that Khalil-ur- Rehman was putting forward an untrue case before the Settlement Authori--ties when he claimed the whole house."
Next case is of Ch. Altaf Hussain v. The Chief Settlement Commissioner (PLD 1965 SC 68) wherein their Lordships of the Supreme Court were pleased to hold that- "if the appellant had however asked for quashing of the review order by the High Court on the plea of illegality, in certiorari jurisdiction, he could have been met with the plea that a writ of certiorari does not issue as of course but that though discretionary, it could be granted ex debito justitlae provided that the conduct of the aggrieved party who seeks to challenge it has not been such as to disentitle him to relief."
Lastly is the case of Mohammed Juran Mondal alias Mohammad Juran Ali Mondal v. A. H.
Chowdhury, District Judge, Jessore (PLD 1969 Dacca 416) wherein it was laid down by a Division Bench that- "the jurisdiction under Article 98 of the Constitution (1962) is not one which can be invoked by one who is guilty of bad faith and unconscionable conduct. The right is in the nature of ex debito justitiae, but will only be granted if the petitioner can show that his conduct has not been such as to disentitle him of such a relief. This jurisdiction of High Court should not be exercised if it leads ultimately to a patent injustice."
We are further supported in our view by a decision of the Supreme Court reported as Abdur Rashid v. Pakistan (1969 SCMR 141).
7. It was contended by the learned counsel for the petitioner that the order of restricting petitioner's passport by the respon--dent No. 1 from 20th October 1973 to 6th May 1970, is in fact indirect cancellation, confiscation or impounding of the passport which power can only be exercised by respondent No. 2 i.e. Secretary to the Government of Pakistan under section 6 of the Passport Act, 1920. We are afraid we cannot accede to this interpretation sought to be put by the learned counsel for the petitioner for the reason that petitioner's passport admittedly is still in his possession. It is not confiscated or impounded or otherwise ordered to be returned to the respon-- dents. Had that been the position then, orders under section 6 of the respondent No. 2 were necessary but that is not the case, curtailment of validity of a passport does not ipso facto amount to confiscation or impounding of a passport. After the expiry of the requisite date petitioner is not debarred under the law to approach the respondents for issuance of a fresh passport, therefore, it cannot be said that his passport has been confiscated. In our opinion the respondent No. 1 validly used a discretionary power in view of the background of petitioner's behaviour as stated in the counter-affidavit and the facts known to the respondents.
8. Mr. Muzaffar Hassan the learned counsel for the respondents drew our attention to a Division Bench judgment of Peshawar High Court in the case of Manzoor Khan v. Govern--ment of Pakistan through The Home Secretary, Rawalpindi and others (PLD 1966 Pesh. 29). In this well-considered judgment their Lordships have discussed thoroughly the question of issuance of passport and consulted standard law books of international repute as well after discussing cases of English and Indian jurisdiction involv--ing issuance or refusal of passports and they were pleased to hold that- "A passport is not a document under which a citizen is authorised to leave the country but it is a document issued by sovereign State requesting the other sovereign State or its functionary to give certain facilities to one of its citizens. The rights to issue passport to a citizen are recognised in a sovereign State under the well-established rule of International law and finally the issuing of passport is a part of the State Department's Foreign Affairs function, which is not justifiable. In other words, Pakistani citizen has no legal right, much less Constitutional right, to be issued a passport."
This was a case where petitioner Manzoor Khan was issued a passport valid for five years, not being able to avail the passport within the prescribed time it expired and he thereupon moved an application for its renewal which was refused by the Government of Pakistan without showing any cause. He filed a writ petition before the High Court which was dismissed for the reason given above.
9. Reliance was placed by the learned counsel for the petitioner on certain decision of Indian jurisdiction that once a passport is issued it cannot be confiscated or impounded without show- cause notice. As we are going to dismiss this petition on the ground that the petitioner has not come before this Court with clean hands by concealment of material facts, we therefore find no necessity to discuss the cases or otherwise embark upon a discussion on the question whether show-cause notice is necessary before a passport can be confiscated.
10. For the reasons shown, we are of the opinion that this is not a fit case where equitable relief in these constitutional proceedings may be given to petitioner because he has not come with clean hands before this Court. The result is we dismiss this Writ Petition with costs.
K. B. A.