1. NASIM HASAN SHAH, J.--This appeal, by leave of this Court, is directed against the judgment dated 20-5-1979 passed by a learned Single Judge of the Lahore High Court, Lahore whereby he accepted the writ petition filed by the respondent herein challenging the action of the Assistant Director, Regional Passport Office, Rawalpindi (appellant No.2 herein) refusing to issue a passport in his favour. It was further held that the respondent was entitled to the issue of a passport and the appellant No.2 was directed accordingly.
2. The relevant facts are that the respondent Dada Amir Haider Khan is an "old political worker" of "Communist Thought". He applied for the issuance of a passport in December, 1974, but this was refused vide letter dated 30-6-1975 addressed by appellant No.2 to him. The respondent submitted a representation against this refusal to the then Home Minister, Khan Abdul 4ayyum Khan, but he was not favoured with any reply. Hence, he moved the Lahore High Court by a writ petition (W.P.
3. No.178 of 1976) to challenge the action of appellant No.2 refusing to issue a passport in his favour. It was contended in the writ petition that the said action was mala fide, arbitrary, contrary to the principles of natural justice and also untenable for the reason that there was no - law empowering the Government to refuse to issue a passport to a citizen. The writ petition was opposed by the appellants herein but the learned Judge in the High Court who heard the case was pleased to accept it vide his order dated 20-5-1979. According to the learned Judge, it was nowhere provided that the Federal Government has a discretion to issue or to refuse to. Issue a passport when applied for. He also referred to Article 4 of the Constitution of 197.3 which provides:-
(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
4. (2)In particular.
5. (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 from or be hindered in doing that which is not prohibited by law; and (c)no person shall be compelled to do that which the law does not require him to do. and went on to say "the petitioner has a right to enjoy the protection of law and he is to be treated in accordance with law. This is his inalienable right and it cannot be taken away. His liberty to go abroad cannot be taken away unless it is prohibited under the law. In case, it had been provided under the Passport Act or the Rules that the Federal Government shall be competent to refuse to issue a passport, the petitioner could have no cause of grievance. In the absence of such a law, the petitioner has a right to the issue of passport."
6. Leave was granted by this Court against the judgment of the High Court as the case raised questions of general public importance, and meanwhile the operation of the High Court's judgment was suspended.
7. We have heard Mr. Munir A. Shaikh, Deputy Attorney General in support of this appeal and Mr. Sadiq Abbasi, learned counsel for the respondent, reply thereto.'
8. The learned Judge in the High Court, we observe, in granting the writ principally relied on Article 4 of the Constitution, as the chapter relating to fundamental rights stood suspended when he delivered judgment on 20-5-1979. Since then, with the Revival of the Constitution with effect from 30th December, 1985, the fundamental rights too have been restored. Thus, in addition to Article 4, Articles 9 and 15 also become relevant. Article 9 lays down:- "No person shall be deprived of life or liberty save in accordance with law."
9. While Article 15 provides:- "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."
10. The learned Judge in the High Court, while allowing the writ petition, relied on the provisions of sub- article 2(a) of Article 4, according to which "no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law". As there is not much difference between Article 9 and Article 4(2)(a) and the former appears merely to be a deduction from the latter, Article 9, therefore, does not take the matter any further. However, Article 15, which confers upon every citizen, inter-alia, the right to enter and move freely throughout Pakistan, is of greater relevance. 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 , IA The Passport Act, 1974, is one such law. Indeed its preamble itself recites that it has been enacted to regulate the departure from and entry into Pakistan and visits to foreign countries of citizens of Pakistan. Section 3 of this Act is relevant in this behalf and provides:- "3.Prohibition of departure from Pakistan without passport, etc 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.
11. Section 4 provides "punishment for contravention of section 3, etc." A passport is defined in clause
(a) of section 2 to mean:- "2.Definitions.--In this Act, unless there is anything repugnant in the subject or context, (a)"Passport" means a passport which is for the time being valid, and includes any such permit, or other travel document authorising the holder thereof to travel from Pakistan to any other country, issued by or under the authority of the Federal Government."
12. Thus, the departure from Pakistan in order to visit a foreign country and entry into Pakistan thereafter is regulated by the Passport Act of 1974 with the result that no person can depart from or re-enter Pakistan without a passport. The Federal Government, moreover under section 13 of the Act, is empowered to make rules for carrying out the purposes of the Act. In the Passport Rules so framed it is laid down that an application must be made for issuance of a passport and the opening line of Form 'A' (the prescribed application form for issuance of a passport) is: "I, the undersigned, hereby apply for an international passport for travel abroad and give the required information below."
13. This Passport Act, 1974 being a law made in the public interest regulating the right of a citizen of Pakistan to travel abroad. And return back home has to be construed in the light of its object and purpose. If so construed, the view taken by the High Court that as neither the provisions of the Act nor the Rules framed thereunder contain any provision empowering the Federal Government to issue or to refuse to issue a passport when applied for, hence the applicant (the respondent herein) had a right to the issue of a passport, does) not appear to be correct because the issuance of a passport is incidental to the power to regulate the exit of any person out of Pakistan and his return thereto thereafter. This Court in the case of Superintendent of Police, Special Branch, Karachi and others v. Abubakar and another 1.972 SCMR 154 which was, no doubt, decided before the promulgation of the Passport Act, 1974 observed that no citizen can go out of the country without a valid passport. This observation stands re-inforced by the provisions of the Passport Act, 1974. In this judgment, it was also observed "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, it cannot arbitrarily confiscate it without assigning any reason and without. Giving any opportunity to the holder of the passport to represent his point of view."
14. The true point which arises, in the circumstances of this case, really is whether while refusing to issue the passport to the respondent, the discretion vested in the authorities to issue or refuse to issue a passport was properly exercised? It is now established law that a discretion vested in a public authority must be exercised fairly, reasonably and in good faith. In the Montgomery Flour and General Mills Ltd., Montgomery v. The Director, Food Purchases West Pakistan and others PLD 1957 Lah. 914 B. Z. Kaikaus, J. While dealing with the question of the power of the Director of Food to withhold a quota of sugar to an applicant observed that although the grant of quota or withholding it was in the discretion of the Director of Food Purchases under the Sugar and Product Control Act, 1948 but this discretion had to be exercised justly, fairly and reasonably. Elaborating, he said that "no discretion vested in an executive officer is an absolute and arbitrary discretion. The discretion is vested in him for a public purpose and must be exercised for the attainment of that purpose. Even though there be no express words in the relevant legal provision to that effect, the discretion is always circumscribed by the scope and object of the law that creates it and has at the same time to be exercised justly, fairly and reasonably". He went on to add that "whenever an enactment empowers a public officer to pass orders that benefit or harm a citizen, the citizen gets a right that, in a matter in which he is concerned, an order be passed in accordance with law. This too is a right that can be enforced by the Court in the exercise of its jurisdiction under Article 170 of the Constitution of Pakistan (1956)."
15. This Court in Messrs East and West Steamship Company v. Pakistan PLD 1958 SC 41 took a similar view Muhammad Munir, C.J. Observing that "where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party." And the dictum of B.Z. Kaikaus, J. In the Montgomery Flour Mills case PLD 1957 Lah. 914 was expressly approved by this Court in Ikram Bus Service and others v. Board of Revenue, West Pakistan and others PLD 1963 SC 564 where S.A. Rehman, J.
16. Speaking on behalf of the Court, observed that "even an administrative body such as an R . T . A . Is under legal obligation to deal with all applicants before it fairly, justly and equitably and an applicant has a legal right to demand that the administrative body should determine the matter with whose decision it is charged, in accordance with the law."
17. In the present case, no reasons whatever were given by appellant No.2 to indicate why the applicant could not be issued a passport. Such an order is not a proper order as without disclosing 1 the reasons why the discretion had been exercised against the applicant it is not possible to say whether the discretion exercised has been exercised properly or arbitrarily.
18. Before the High Court, no doubt, the reason for non-issuance of the passport was given namely that the respondent was an old political worker having "communist thought". This was the sole reason indicated.
19. We do not think this reason was a reasonable ground on which a citizen's liberty to travel abroad could be curtailed. Undoubtedly, to travel abroad could be barred if it was shown that the applicant was going abroad to meet the enemies of the country and his foreign visit could endanger the security of the State or was against the F public interest. Nothing of the kind has been stated and the only reason given while refusing the passport to the respondent is that he was a person of "communist thought". The world, however, is filled with "communist thought" and communist regimes are existing on more than one continent. They are part of the world spectrum and if we are to know them and understand them we must mingle with them. Keeping alive intellectual intercourse between opposing groups is important and this should not be curbed unless in so doing some interest of the State is imperiled.
20. 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 one and another and foreign policy decisions have come to have greater impact upon the lives of the citizens, the right to travel has become correspondingly more important. Through travel, by private citizens as well as by journalists and governmental officials, information necessary to the making of informed decisions can be obtained. And, under our constitutional system ultimate responsibility for the making of informed decisions rests in the hands of the people. Thus, the reason given, even before the Court, was not a proper reason on which the passport could have been refused to the respondent.
21. However, we are here concerned with the validity of the order of the Passport authorities refusing issuance of a passport to an applicant in exercise of the power conferred upon them under section 3 of the Passport Act, 1974, without giving any reason whatever. The import of section 3 has been examined by a Division Bench of the Sind High Court recently in Mumtaz Ali Bhutto v. The Government of Pakistan through Secretary Ministry of Interior and others PLD 1981 Karachi 98 in which Zaffar Hussain Mirza, J. (now a Judge of this Court) speaking for the Court said:- "From the reading of section 3 of the Passports Act it is clear to us that an order refusing to issue a passport is an order very adversely affecting a citizen inasmuch as he 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 PLD 1969 Lah. 908 "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 extraneous purposes which will be tantamount to fraud on the statute".
22. The conclusion reached by the learned Judges after a full discussion of the matter was expressed thus:- "In view of what we have stated, we feel that before a person is finally refused the grant of a passport on certain grounds based on materials in the possession of the relevant authorities, the affected person has to be given opportunity of hearing."
23. One of us (Nasim Hasan Shah, J.) while still in the High Court deciding the case of Muhammad Noor-ud-Din V . The Government of Pakistan (Writ Petition No.550 of 1975) on 14-1-1976 observed:- "The further claim made on behalf of the respondents that there is no legal requirement for hearing a person before refusing him passport facility and further in some cases it may not be desirable to convey to an applicant the reasons for denial of passport facilities may now be taken up. The law on this point has been recently re-stated in the case of Zahur-Illahi v Secretary to Government of Pakistan PLD 1975 Lahore 499 to be that the person affected by an action of the executive has a right to know the reason for the action and to get an opportunity to put his side of the case before the authority concerned before an adverse decision is taken against him. It is, therefore, now settled law that an executive authority must exercise its discretion bona fide and reasonably and should give reasons for the decision taken by itIn the end, it was observed:- "In conclusion it may be observed that the petitioner has a legal and constitutional right to be issued a passport, save that this may be refused to him in accordance with law ...In case it is felt that he is not entitled to the issuance of the passport under some law, the petitioner may be allowed an opportunity to place his case before the relevant authority and a decision then taken on the question after a fair and reasonable inquiry into the matter in which the petitioner has got an opportunity to present his point of view".
24. We are inclined to agree with the enunciation of the law made in the above two cases. It may be added that cases can be conceived' where it may not be in public interest to disclose the full reasons for refusal to issue a passport to an applicant, but in such cases while refusing to issue the passport it should be stated that in view of the sensitivity of the matter the disclosure of detailed reasons for refusal of the passport was not in the public interest. This was not the situation in the present case.
25. Accordingly, at the conclusion of the hearing, of the appeal the following short order was announced.
26. "This appeal, for reasons to be recorded separately, fails and is dismissed with costs. The declaration granted by the High Court to the effect that the refusal to issue a passport to the respondent is without lawful authority and of no legal effect I is upheld, inter-alia, because the respondent was neither heard before refusing the issuance of the passport nor any ground communicated to him for not doing so nor even told that the reasons for not issuing it were of such sensitivity that their disclosure was not in the public interest".
27. The above are our reasons for the short order made by us at the conclusion of the hearing of the appeal.