' ABDUR REHMAN KHAN KAIF, J.--This Court undertook the Suo Moto examination of Passports Act, 1974 (Act No,XX of 1974) with a view to determine whether the provisions of the said statute were repugnant to the Injunctions of Islam as contained in the Holy Qur'an and the Sunnah of the Holy Prophet. It was found that while section 8 of the Act authorised the Federal Government to cancel, impound or confiscate a passport after giving notice in writing calling upon the holder thereof to show cause why the order should not be made, there were, however, two exceptions to the service of show cause notice. Proviso to subsection (2) of section 8 provides that no such notice shall be given if the order of impounding a Passpoit is for a period not exceeding four months. Similarly, subsection (3) provides that such notice would not be necessary if the Government had reason to believe that the person concerned holding the passport was involved in subversive activities or in activities which are prejudicial to the interest of Pakistan or to Pakistan's relations with any foreign powers. While disposing of SSM No,270/83 this Court observed that no objection could be taken to the exception in subsection. (3) but the exception in the proviso in subsection (2) to section 8 of the Act regarding four months period without notice was repugnant to the Injunctions of Islam and, therefore, it was directed that the said proviso be repealed. The relevant part of the Order SSM No,270/83 is reproduced as under:- "No objection can be taken to subsection (3) because it requires on the ground given in it an immediate order. The interest of the holder of the Passport is protected since that order can be cancelled in review to be filed by the person aggrieved within thirty days of the order. This provision itself amounts to exercise by the aggrieved person of a right to satisfy the Government that the charges against him are not correct but since immediate order may be necessary, no objection can be taken to this exception. However, the exception in the proviso in subsection (2) regarding four months period gives a handle to the Officers of the Federal Government to make arbitrary order for a period of four months and thus to cause sometime, irreparable damage or loss to the Passport holder. The proviso is directed to be repealed."
2. An appeal was preferred by the Federation of Pakistan under Article 203-F of the Constitution against the mentioned judgment. In support of the appeal it was submitted that no reason had been given in the impugned judgment to indicate as to how and why the mentioned proviso to subsection (2) of section 8 was repugnant to the Injunctions of Islam. The above appeal was heard alongwith four other similar appeals by the Supreme Court of Pakistan (Shariat Appellate Bench).
All the above appeals were disposed of by a single judgment dated 19-2-1986 and the cases were remanded to the Federal Shariat Court for fresh decisions in accordance with the Law. The concluding para of the judgment of the Appellate Court runs as under:- "In the light of the foregoing, on account of the omission by the Federal Shariat Court to give reasons by making references to the Holy Quran and Sunnah and their principles as discussed earlier, together with the directions for the enactment of certain laws, as also with the observations in the above paragraphs, these appeals are allowed; and, the cases are remanded to the Federal Shariat Court for fresh decisions in accordance with the Law."
3. The was heard afresh at length and is being disposed of in accordance with the directions given by the learned Appellate Court.
4. The Passports Act, 1974 was enacted on 7th of March, 1974 to regulate departure from and entry into Pakistan and visits to foreign countries of citizens of Pakistan and to provide for matters ancillary thereto as its preamble shows. Generally speaking the right of an A individual cannot be sacrificed on the mere assumption that it is in the public interest unless a proper opportunity of hearing is provided to such person. The proviso in question is admittedly harsh placing restrictions on the right of free movement. It becomes harsher when looked at from the angle that the action for the mentioned period can be taken even without any notice. A person may be in need of immediate departure on the ground of health, business, Hajj, Umrah or other urgent matters. Action in such circumstances taken without any notice and for such a long period in such cases is likely to cause irreparable loss to the person concerned.
5. It is now well settled that the principle of natural justice required that every statute should be read as incorporating in itself the requirement to give a notice to show cause against any action intended to be taken against the person unless the statute expressly or by necessary implication excludes such a Rule. The denial or withholding of Passport to a citizen has been considered throughout one of the principle instruments of intimidation since in that manner the individual concerned is virtually imprisoned at home without a passport. Thus looked at from whatever an angle the existence of the said proviso in the relevant section of the Passport Act is in a way denial of free movement to a citizen as well as the right of hearing.
6. Representative of the Government in the concerned Department appearing before us submitted that the impugned provision was necessary for the reason that in some cases time is required for collecting material needed for the service of notice on the basis of such material and the only purpose of the said proviso is to deal effectively in the situation occasionally arising in such like cases. We appreciate the background in which the impugned provision bias been enacted,' but would observe that all provisions of law wherein someone can be condemned unheard are against the Quranic command as supplemented and interpreted by the Sunnah of the Holy Prophet. It has been held by the Supreme Court in the case of Pakistan and others v. Public-at-Large and others (PLD 1987 SC 204 at 330/331) (Shariat Appellate Bench) that everyone whose rights are involved should be given an opportunity of hearing. In the circumstances, it is therefore, to be seen whether the said proviso is repugnant to the Injunctions of the Holy Qur'an and Sunnah of the Holy Prophet.
The right of free movement from one place to another to all human beings has been fully recognised in Islam. This right has not only been recognised by the Holy Qur'an, but in several verses a clear incentive has been given to undertake journey and to travel on the earth. Some of the verses are stated as under:- {{URDU TEXT}} "Systems have passed away before you. Do but travel in the land and see the nature of the consequence for those who did' deny (the messengers)" (3:137) {{URDU TEXT}} "Have they not travelled in the land, and have they hearts wherewith to feel and ears wherewith to hear? For indeed it is not the eyes that grow blind, but it is the hearts, which are within the bosome, that grow blind." (22:46). {{URDU TEXT}} "Say (0 Muhamamd): Travel in the land and see how He originated creation, then Allah bringeth forth the late growth. Lo! Allah is able to do all things." (29:20) {{URDU TEXT}} ' Was not the earth of God specious enough for you to move yourselves away." {{URDU TEXT}} "He who forsakes his home in the cause of God finds in the earth many refuge, wide and specious."
7. Coming to the next question concerning the right of hearing, there are number of instances in the Holy Qur'an of due notice. From numerous verses in the Holy Qur'an, it is evident that every individual will be confronted with the record of his deeds on the Day of Judgment and would be afforded opportunity of hearing before the decision is taken. Allah Almighty had bestowed the right on human being to be aware what he is being punished for. In this connection reference can be made to verses 13 and 14 of Surah 17 which read as under:- {{URDU TEXT}}
13. "Every man's fate ' We have fastened On his own neck: ' On the Day of Judgment ' We shall bring out For him a scroll, Which he will see Spread open." {{URDU TEXT}}
14. (It will be said to him:) "Read thine (own) record: Sufficient is thy soul ' This day to make out ' An account against thee."
8. The next instance is that of the story of Iblis in the Holy ' Qur'an. The relevant verses of the Holy Quran in that connection are verses 11 to 13 of Surah VII which read as under:- {{URDU TEXT}}
11. "It is We Who created you And gave you shape; Then We bade the angels Bow down to Adam, and they Bowed down; not so Iblis; He refused to be of those Who bow down." {{URDU TEXT}}
12. "(Allah) said: "What prevented ' Thee from bowing down ' When I commanded thee?
' He said: "I am better ' Than he: Thou didst create ' Me from fire and him from clay." {{URDU TEXT}}
13. "(Allah) said: "Get thee down ' From this: It is not ' For thee to be arrogant, ' Here getout, for thou ' Art of the meanest (of creatures)"
9. It is clear from the above verses that it was after hearing the explanation from Iblis which was not found tenable that he was condemned by the Almighty. In the story of "Hudhud" also it is clearly given that an opportunity of hearing before decision was necessary. Similarly, the decision in the case of 99 sheep by Hazrat Dawood was found defective by the Almighty Allah for the reason that the opposite party was not heard. The reading of each one of the aforequoted verses makes it clear that condemning someone without making proper enquiry has been prohibited. It is a common principle which governs the administration of justice in Islam that in case of liability with penal consequences or deprivation of basic right, a notice as well as an opportunity of hearing are of absolute necessity.
10. It is clear from the various Injunctions of the Holy Qur'an that for doing complete justice it requires not only equal treatment G between man and man but also protects the rights of one against unfair treatment. In this connection reference can be made to the following verses:- {{URDU TEXT}}
11. The above-mentioned Quranic commands are supplemented and interpreted by the Sunnah of the Holy Prophet (P.B.U.H.) in various traditions connected with the administration of justice.
Directions have been given that when a public authority is to be exercised for resolving a controversy regarding rights and liabilities, the decision could not H be rendered without proceedings in which the person affected is also afforded an opportunity of hearing:- "Ali reported: The Messenger of Allah sent me to Yemen as a judge. I said: 0 Messenger of Allah: you are sending me while I am young in years and I have no knowledge of judgeship. He said: Verily Allah will soon give guidance to your heart and make your tongue firm. When two persons come to you for decision, don't give decree in favour of the first till you hear the argument of the other, because that is more necessary that decision may become clear to you." (Tirmizi, Abu Daud, Ibn Majah).
12. To a similar effect is the following tradition:- {{URDU TEXT}} ' It is thus clear that in Islam a person cannot be condemned unheard.
13. From the above discussion, it becomes clear that the provisions of the proviso under challenge are repugnant to the Injunctions of Islam in so far as it does not provide for due notice of the action proposed to be taken and opportunity of showing cause against such action. However, we agree that in some cases of immediate nature difficulties may arise as it may not be possible to communicate all the grounds while serving a notice. Such difficulties in our opinion can be solved by modifying the proviso in a manner whereby the Injunctions of Islam are not violated and at the same time the object of law is achieved. In this connection the, following tradition of the Holy Prophet shall provide a basis for taking action without notice for a brief period:- {{URDU TEXT}} ' According to the above tradition of the Holy Prophet a person can be detained for 24 hours for the purposes of proper verification and investigation. On the above analogy necessary amendment can be made in the relevant provisions. If as an emergent measure immediate action is necessary a passport can be impounded for 24 hours and the notice for showing cause can be dispensed with, but such opportunity of showing cause and that of hearing shall be afforded to the affected passport-holder soon thereafter. In such a situation the onus shall always be on the concerned Department taking the action according to the following saying of the Holy Prophet:- {{URDU TEXT}}
14. Necessary modification/amendment in the law on the lines indicated above should be carried out by the 30th of September, L 1989, failing which the objectionable provision shall cease to have effect.
Modification/amendment ordered.