TUFAIL A.I A. RAHMAN, C. J.-Since this petition raised questions as to the vies of the Interim Constitution of Islamic Republic of Pakistan or at least some of the provisions thereof and since there were pending, at the same time, in this Court three other matters in which similar contentions had been taken up, I directed all these to be heard together by a Full Beach of three Judges. The first of these matters was Constitution Petitions Nos. 40/72 and 270/72 filed by Mrs. Zarina Gauhar challenging the validity of the detention of her husband. Altaf Gauhar, Editor-in-Chief of the 'Dawn', a daily newspaper published from Karachi. The second was Constitution Petition No. 288/72, directed against the order of the Central Govern--ment, purporting to cancel the declaration made in respect of the daily 'Sun', another newspaper published from Karachi and forfeiting all copies of the issue of the said newspaper dated the 17th July 1972, as also the press from which such copies were printed, which in effect meant the press used for the purpose of printing the said newspaper. Finally there was Cr. Miscellaneous Application No. 97/72 (Wazir All v. The State), which sought an order, to quash the proceedings pending against the petitioner in a criminal Court subordinate to this high Court. When the hearing of these cases commenced before the Full Bench, as it did on the 7th of August 1972, we intimated to counsel on both sides that we desired to hear first arguments as to the validity of the Constitution or any part thereof and thereafter take up each matter separately and to hear arguments upon the questions involved in each of those cases.
However, at that stage, Mr. Brohi, appearing for Altaf Gauhar, disclaimed any intention of attacking the validity of the Constitution or any part thereof and, therefore, stated that he would take no part in the debate on the common questions involved. Mr. Khalid Ishaque, appearing on behalf of Wazir A.I then requested that his case be adjourned on the ground that there was no particular urgency in it since his client was on bail and the proceeding pending against him in the criminal Court had been stayed by an order of this Court. Although we allowed the request, in order to safeguard the interests of his client and feeling that a decision by this Full Bench might possibly affect the case of Wazir A.I, we nevertheless heard Mr. Khalid Ishaque not strictly as counsel for Wazir A.I, whose case had been postponed, but more like an amicus curiae though we called upon him to address us because he was counsel for Wazir A.I. Again in the present case, Mr. Brohi made it plain that he would not attack the validity of the Constitution although he would of course canvass various provisions of the Constitution or their interpretation in order to attack the validity of the orders which he had challenged or the laws under which those orders purported to be made. On the common questions, therefore, Mr. A. A. Fazeel alone, appearing, in the Sun case and Mr. Khalid Ishaque, argued before us. Since it did not suit Mr. Brohi's personal convenience to attend this Court on Tuesday the 8th of August, at his request we agreed to take up this petition on Thursday the 10th and agreed also that we would interrupt arguments upon the common questions of law in order to enable him to finish his case as soon as possible. Accordingly when he appeared on the 10th although the debate upon the common questions of law was already over and Mr. Fazeel was addressing us upon the merits of the Sun case, with Mr. Fazeel's consent, we interrupted the hearing of that case and took up instead the present hearing which was concluded on the 11th. At the end of the arguments, conscious as we were of the urgency in this case since the impugned order was standing in tie way of the petitioner's travelling abroad to attend a Session of the Sub- Commission of Prevention of Discrimination and Protection of Minorities, due to commence in New York on the 14th of August and in view of the difficulty, even the practical y physical impossibility, of delivering a judgment In Wne for that purpose we invited Mr. Brohi's suggestion for the solution of the difficulty and intimated that, if he sc desired, we would depart from the normal practice and, after cotferring amongst ourselves, announce the decision leaving the r reasons to a recorded thereafter so that either party should be in a position, if it was so advised, to move the Supreme Court against our decision. We had already agreed to sit on the text day which was a Saturday so as to be able to conclude the hearing in the Sun Petition which also had its own features of urgency. Mr. Brohi, however, expressly refrained from making any such request and explained that the session in question at New York was only to commence on the 14th of August and not to conclude on that date and that besides it was only the first session to be held during a three --year term to which the petitioner had been elected. In the result, therefore this Judgment will govern Petition No. 296/72, only and we have decided to give judgment in the Scan Petition separately since there were no logger any questions of law involved fn the two matters In common.
2. The facts which have led up to the present petition are almost entirely admitted slid Indeed are not capable of any serious dispute ; even upon the slight variance between the parties the controversy is not really one of fact so much as of inference from undisputed facto. The petitioner is a senior Advocate of this Court as also of the supreme Court of Pakistan sod has held the office of Foreign Ministry in the Government of Pakistan and twice that of Attorney-General of Pakistan.
The period of his second tenure in the latter office terminated on the 21st of December 1971, and this particular date has some significance as will appear later in this Judgment. Sometimes before the 4th of April 1912, a seat on the Sub-Commission of Prevention of Discrimination and Protection of Minorities fell vacant. This Sub-Commission, we are informed, has been constituted by the Commission of Human Rights of the United Nations of which latter Organisation Pakistan is of course a member-country. Until the, vacancy arose, the seat in question had been held by a Pakistani, namely, Mr. Justice A. R. Cornelius, a firmer Chief Justice of the Supreme Court of Pakistan. The petitioner candidature for this seat was sponsored by the Government of Pakistan and he was in due course elected a member. Now although the petitioner admits that he was sponsored by the Government of Pakistan and indeed that, without sponsorship of the country which was a member of the membership of the Sub-Commission much less could he have been electric as a member, he claims that, once elected, he was no longer a representative of the Government of Pakistan but a member in his own right. The respondents on the other side claim that in the United Nations and In the Commission, it Is only nations who are represented and not individuals or voluntary organizations. They further claim that not only did the Government of Pakistan sponsor the petitioner's candidature but they submitted the nomination of the petitioner as its candidate to the Secretary-General of the United Nations and instructed its own Ambassador and permanent Representative to the United Nations in New York to canvass support for the petitioner without which, they imply, it would have been virtually impossible for the petitioner to have been elected. These facts the petitioner does not deny but insists nevertheless that, once elected, he was no longer the representative of Pakistan on the Sub-Commission and that neither would he be bound by any instructions given to him by Pakistan nor would he vacate his seat simply because the Government of Pakistan, at any time thereafter, chose to disown him as its own representative. This is that part of the controversy of facts to which I earlier alluded as being more in the nature of a controversy as to the inference from some facts than a real dispute on the facts themselves. The respondents have indeed alleged that they have received certain information recently of a serious nature in regard to the petitioner which information is being investigated by them. In the face of this information, even though not fully investigated and found to be true, it is the case of the respondents that they have now no confidence fn the petitioner and that in these circumstances they do not consider the petitioner's participation as a member sponsored by the Government of Pakistan in the Sub-Commission to be in the interest of this country. I shall of course deal with this contention at its proper place.
3. To revert to the narration of the facts, by a letter dated the 20th of April 1972, the Director, Division of Human Rights, informed the petitioner on behalf of the Secretary-General of the United Nations that he had been elected a member of the Sub-Commission and also conveyed the information that a session of the Sub-Commission would be held at New York from the 14th of August, till the Ist of September 1972; the petitioner in return duly conveyed to the Director that he would be glad to serve on the Sub-Commission. By a letter dated the 22nd of June 1972, Pakistan International Airlines Corpora--petition informed the petitioner that their New York Office had received payment for the petitioner's travel by Ist Class from Karachi to New York and back in connection with the session of the said Sub-Commission. The Airlines asked the petitioner to produce among other things, what was described as a "No --Objection Certificate" from the Home Ministry, Government of Sind. In response to this letter the petitioner wrote to the Secretary, Ministry of Interior, Government of Pakistan to issue necessary instructions to all concerned, specially the Home Ministry of the Government of Sind to do the needful to enable the petitioner proceed abroad.
Possibly even at this stage the petitioner had reason to fear that he would not be permitted by the Government to proceed to New York. But whether that be or be not the reason, this letter expressly says that the petitioner is advised that under law it is not necessary, to have 1975 any clearance and/or No-objection Certificate from the Central Ministry of Interior or the Sind Home Ministry specially for the purpose of participating in a session of the Sub-Commission of the United Nations.
Accordingly the letter expressly says that in so approaching the Ministry of Interior he is acting without prejudice to his rights and remedies and by way of caution. The petitioner was then informed by a Deputy Secretary of the Ministry of Interior that his letter had been passed on to the Ministry of Minority Affairs for further action. Although this letter has not been placed before us, a subsequent letter dated the 3rd of July 1972 does bear out the statement inasmuch as it refers to the endorsement said to be made by the Interior Division on the 29th of June 1972: this letter goes on to refer to the invitation to the petitioner to attend the session of the Sub-Commission at New York and the letter of the Pakistan International Airlines Corporation to which I have earlier referred and finally requests that the necessary No-Objection Certificate may be issued to the petitioner directly under intimation to this Ministry, that is, the Ministry of Minority Affairs & Tourism. The petitioner, not having meanwhile received any further communication, on the 17th of July 1972 addresses a letter to the Home Secretary, Government of Sind asking for a `N. O. C.' and referring to the office memorandum of the Ministry of Minority Affairs & Tourism. Finally on the 28th of July 1972 gathering from the Home Ministry of the Government of Sind that the Government of Pakistan had issued instructions to the Government of Sind not to issue such a certificate. The sent a telegram to the Secretary, Ministry of Interior demanding the necessary clearance to be issued within twenty- court hours failing which he would file a writ petition for appropriate relief. No further action thereafter seems to have been taken and accordingly the petitioner filed the petition in this Court on the 31st of July 1972, under Article 201 of the Interim Constitution.
4. It is desirable, I think, to dispose of first the controversy as to the position of a person elected to the Sub-Commission, that is, whether he represents his country or acts in his purely personal capacity once elected. The stand of the parties upon this question I have already reproduced above and both side: have tried to maintain their position by referring to various circumstances. On the one hand the Government claims than since, as is admitted, the Sub-Commission is set up under the Commission of Human Rights of the United Nations and that, the latter is an organisation of which only countries can be members it must follow that an individual serving on the Sub Commission also is the representative of his country. On the other hand, Mr. Brohi appearing before us for the petitioner referred to us to a pamphlet entitled "United Nations Work for Human Rights" in which at page 23 appears a paragraph:- "In 1946, the Commission on Human Rights established Sub-Commission on Prevention of Discrimination and Protection of Minorities to make studies and recommendations. The Sub- Commission is composed of 14 persona selected by the Commission, subject to the consent of their government Members serve In their capacity as individuals and not as representatives of their govern meets."
He also referred to us to a cutting from the issue of the 'Dawn' a daily newspaper published at Karachi, dated the 22nd of August 1970 in which a news report from New York was published in which Mr. A. R. Cornelius was quoted as having emphasised his capacity as an 'Individual Expert'. It would be recalled that Mr. Justice A. R. Cornelius was then a member of the Sub-Commission duly sponsored by the Government of Pakis--tan. Another passage in the news report is in the following words :- "Mr. Cornelius said it was wrong for the Indian observer to have identified him as Pakistan Minister.
He emphasised that he was attending in Lis personal capacity. In fact, he added, after he became Minister last year he had asked the United Nations Secretariat whether he should continue as Sub- Commission member. He lead teen told that his membership would continue to be in his personal capacity."
5. I am at least doubtful whether we could take judicial notice of the first of these documents: they certainly do not come under any of the various clauses of section 57 which enumerates the matters of which judicial notice is taken by our Courts. It is true that the pamphlet purports to be a publication of the United Nations but, though we are cognisant of the fact that that organi--sation is one set up by the governments of various countries which form for the greater part of the world, I do not think that what is after all merely a pamphlet, issued by the office of the public information of that organisation can be said to be an appropriate book or document of reference in relation to a matter of public history of which we may under section 57 take judicial notice.
6. As to that cutting from the "Dawn" I am even clearer in my mind shat we can take no notice, whatever, of it. Argument is hardly needed much less authority, for the proposition that newspaper report is no evidence at all of the facts which it seeks g to report. But even if the newspaper report can be used for such a purpose it only purports to report what Mr. Justice Cornelius said and that would at best be evidence of his opinion on the matter. Since he was a member of the Sub- Commission in question his view would no doubt be entitled to great respect more particularly because he 9s a former Chief Justice of the Supreme Court of this country. Even so that could hardly con--clude the master. Even his statement that he had been told that he would continue to be a member in his personal capacity although he had ceased to be a minister in the Government of Pakistan is evidence, if it is evidence at all, at second hand of the opinion of what has been described as the United Nations Secretariat, no particular person having been named. Besides the word 'personal' must be here understood in the context in which it appears; it underlines the fact be had ceased to hold an official position of the Government of Pakistan which he did when elected and not that he had ceased to be a representative of the Government of Pakistan. The petitioners in contrast, held no official position even when his candidature was sponsored or at any time thereafter. Clearly, therefore, it would have been difficult, if not impossible, to arrive at a finding on this issue on the evidence put forward by the two sides. I should have thought that it would be comparatively a simple matter for either of the parties to have produced before us a charter or official resolution creating the Sub-Commission which would resolve this controversy authoritatively and simply. I am particularly surprised that neither side was able to do so in view of the experience of learned counsel on both sides. Mr. Brohi has been a delegate to the United Nations and has a great deal of experience of international conferences while the Attorney- General, apart from the fact that he represents the Government also his been a delegate and has hid similar experience. The petitioner himself is a former Foreign Minister and Attorney-General and has attended a number of International conferences.
7. After the hearing of this case was ended and indeed, even after I had dictated this judgement though it had not yet been pronounced, on the 19th August, Mr. Zari, who had appeared with the Attorney-General, sent in to my Chambers a copy of the charter of the Unit-d Nations and the Statute of the Interna--tional Court of Justice. I do not know upon what particular chapter or article reliance is sought to be placed but can myself find nothing in the chapter relevant to the present purpose. It of course bears out the contention that countries alone can be memebers of the United Nations but this is, in any event, admitted. Neither the Sub-Commission nor its present body, the Commission on Human Rights appears, in terms, to be mentioned. Para. 2 of Article 7 in Chapter III does indeed provide for the establishment of "such subsidiary organs as may be found necessary".
What the membership of these organs is to be is a question on which the charter gives no guidance. No doubt there must be resolu--tions or other authoritative decisions upon the basis of which the Commission and the Sub-Commission are constituted but on these matters, as I have already said, no information.
8. Indeed if the issue had been so vital to this case that it was not possible to pronounce judgment without first deciding this issue also we should have been driven to the necessity of determining it on the principle that that party must fail upon whom the onus of proving a given fact lies. Clearly in this case, that party would be the petitioner and it would then have been our duty to find against the petitioner. Technically correct though this might have been, I confess it should have been a most unsatisfactory manner of dealing with this case. Happily, T think, it is quite possible to decide this case without coming to a conclusion upon this particular issue.
9. The main attack of learned counsel for the petitioner, Mr. A. K. Brohi, was upon the validity of an order purporting to be made under rule 31 of the Defence of Pakistan Rules. Even In the prayer clause of the petition the relief sought is not pri--marily that a "No-Objection Certificate" be ordered to be given to the petitioner but that the respond onto be restrained froze preventing the petitioner from going abroad and only in the alternative is it prayed that the respondents be directed to issue a "No Objection Certificate" to the petitioner in order to enable him to travel abroad. Government have purported to restrain the petitioner from going abroad by reasons of powers conferred under an order of the Central Government dated the 23rd of December 1971 which was duly notified in the official Gazette and which may, with advantage be reproduced: "S. R. O. No. 630 (I)/71.-In exercise of the power's referred by sub-rule (1) of rule 31 of the Defence of Pakistan Rules, and in supersession of this Ministry's Order No. 1/5/71-Pass (Int) II, dated 21st December 1971 the Central Government is pleas--ed to order that except the persons belonging to any of the categories mentioned below, no citizen of Pakistan or a person of Pakistan origin who holds British passport and is for the time being in Pakistan, shall proceed from Pakistan to any country, and that to India under any circumstances :-
(1) Members of official delegations.
(2) Students who are permitted to go abroad for education under usual conditions.
(3) Persons who have been successful in the ballot to go for Hajj.
(4) Persons who are settled or working abroad and their dependants who have come to Pakistan temporarily and arc going back to join their posts or duties abroad.
(5) Families of Returning residents holding clearance from the U. K. High Commission etc.
(6) Hajj pilgrims payment for whose tickets has been received from abroad in foreignexchange.
(7) Students joining their parents abroad.
(8) Government servants, including employees of Pakistan Missions, proceeding abroad on duty and their families.
(9) Families of Government servants, including employees of Pakistan Missions, posted abroad.
(12) Persons who are permitted to go abroad for the first time for employment.
(13) Families of persons employed abroad going for the first time to join their husbands or relatives.
(14) Drivers and members of the crew of the road transport engaged in transit and border trade between Pakistan and Afghanistan.
(15) Persons going abroad on business connected with expert with the approval of the Export Promotion Bureau.
(16) Persons going to Middle East countries for ziarat, pro--vided they are granted Exit Permit by the Homo Department Of the Province in which they resido."
It will be seen that this order purports to be made under Rule 31(1) of the Defence of Pakistan Rules; the entire rule is reproduced below: "Leaving Pakistan.-(1) The Central Government may, by order, make provision for securing that, subject to such exemp--tions as may be provided for in the order, any person for the time being in Pakistan or any class of such persons, shall not-
(a) proceed from Pakistan to a destination outside Pakistan except under the authority of a written permit granted in such form and manner and by such authority or person as may be specified in the order;
(b) for the purpose of proceeding to a destination outside Pakistan leave Pakistan elsewhere than at such place as may be specified in the order.
(2) Where any police officer not below the rang of Inspector, or any other public servant authorised in this behalf by the Central Government, has reason to suspect that any person who is about to depart from Pakistan is attempting so to depart for purposes prejudicial to the defence or security of Pakistan, he may, notwithstanding the fact that such departure does not contravene any order made under sub-rule (1) prevent the departure of that person.
(3) Any police officer or other public servant who prevents the departure of any person under sub- rule (2) shall forthwith report the fact of such prevention to the Central Government, and the Central Government may, if it thinks fit, by order, prohibit such person at any tine subsequently from leaving Pakistan so long as the order is in force.
(4) If any person contravenes any order made under this rule, he shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both.
(5) The master of any vessel or the pilot of any aircraft by means of which any person leaves Pakistan in contravention of any order made under this rule shall, unless he proves that he exercised all due diligence to prevent the said contravention, be deemed to have abetted the contravention."
10. The rule itself in turn is made under the authority of section 3 of the Defence of Pakistan Ordinance. As I have said before, Mr. Brohi made it plain at the outset that he would not attack the validity of the Interim Constitution itself ; although therefore, the Defence of Pakistan Ordinance could be regarded initially at least, as a nullity having been promulgated by a per--son who has now been declared by the Supreme Court to have usurped the authority of an office which in law he never possess--ed. The validity ab initio or the continued validity of this Ordinance and, therefore, of all rules, orders and other acts which are founded thereon, would have to be sought, if at all, in the judgment of the Supreme Court in Asma Jilani's case (PLD1972SG39) and/or Article 281 of the Interim Constitution of Islamic Republic of Pakistan. Sub-Articles (1) and (2) of which read as follows: "281.-(1) All Proclamations, President's Orders, Martial Law Regulations, Martial Law Orders, and all other laws made as from the twenty-fifth day of March 1969, are hereby declared, notwithstanding any judgment of any Court, to have been validly made by competent authority, and shall not be called in question in any Court.
(2) All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done on or after the twenty- fifth day of March 1969, in exercise of the powers derived from "any President's Orders, Martial Law Regula--tions, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall be deemed to be and always to have been validly made, taken or done."
11. Unquestionably, therefore, since the Defence of Pakistan Ordinance would be a `law' within the meaning of sub-Article (1), the validity of the Ordinance itself cannot be questioned before us, unless Article 281 itself was challenged as being ultra vires and G this challenge, as I have said, Mr. Brohi has expressly refrained from making. It would clearly have been open to Mr. Brohi to have argued-with what success, I am not attempting to specu--late-that Article 281 had not, although it could have, validated the Ordinance itself. It is to be noted that while sub-Article (1) declares valid as having been made by a competent authority all Proclamations, President's Orders, Martial Law Regulations, Martial Law Orders, and all other laws, the expression used in sub-Article (2) is wider.
Under the latter sub-Article, not only orders made, proceedings taken and acts done in exercise of Pre--sident's Orders, Martial Law Regulations, enactments, notifica--tions, rules, orders or bye-laws, but even those purported to have been so made, taken or done, and all made in exercise of such powers or in purported exercise of such powers are also deemed to have been validly made. The order which I have reproduced above is dated 23rd of December 1971, that is well before the passage of the interim Constitution of Pakistan and, therefore, would be covered by sub-Article (2).
I think, therefore, that upon that short ground alone all arguments against the validity of the order referred to can be rejected. Since, however, no arguments were addressed to us on this aspect of the matter I prefer to ground my judgment on other reasons. It is worthwhile mentioning, however, that although Mr. 13rohi did attack the validity of the order in question and even of the rule under which it is purported to have been made, he refrained from arguing that Article 281 has not validated it and indeed made no reference, whatever. To that Article. I mention this particularly because in the petition itself the order is attacked, among other grounds, on the basis that: "Rule 31 of the Defence of Pakistan Rules which purports to prohibit all persons from proceeding abroad without written permit is void ab initio and nullity and, notwithstanding Article 281 of the Constitution, has not been legally validated."
Learned counsel's first and most emphatic argument was that the order I have quoted was ultra vires of the rule in question but, since he has challenged the vires of the rule itself, I think it would be more orderly to deal with the argument upon the validi--ty of the rule before I go on to discuss the validity of the order made under the rule, which last question of course arises only if one can hold that the role itself is not ultra vires.
12. Subsection (1) of section 3 of the Defence of Pakistan Ordinance, 1971, which is the source of the rule-making power off the Government, is in this language "3. Powers to mace rules.-(1) The Central Government may, by notification in the official Gazette, make such rules as appear to it to be necessary or expedient for ensuring the security, the public safety and interest and the defence of Pakistan, or for securing the maintenance of public order or the efficient conduct of military operations or prosecution of war, or for maintaining supplies and services essential to the life of the community."
Subsection (2) then expressly empowers the making of rules for a number of matters which are listed in some detail, covering as many as 44 items besides the fact that subsection (3) has some nine items which, generally speaking, provide for penalties or conferment of powers for carrying out one or other purpose of the Ordinance. Subsection (2) starts with the words "with--out prejudice to the generality of the powers conferred by sub--section (1), the rules may provide for, or may empower any authority to make orders providing for :-'
Clearly, therefore, the combined meaning of subsections (1) and (2) is that if power can be found in any item specifically mentioned in subsection (2) then, even though it may not be possible to spell out the power from the words in subsection (1), such a power must be deemed to have been conferred. On the other hand even if there is no specific mention of a particular power but if it is covered by the wide and general language used in subsection (1) the power would exist, Tree whole purpose of conferring powers in general terms and then providing that, `without prejudice to the generality of the language so used', certain specific powers may be exercised is to ensure that the general power is so construed as any how to include the specific powers given. Mr. Brohi has, however, argued that the rule-making power of the Government is to be defined by reference to the general scheme of the Ordinance and that the vices, therefore of a particular rule is to be determined by this whole scheme, and upon that basis he went on to argue that the rule in question gave to the executive authority higher power than is permitted by the Ordinance. Whether the rule is intra vices or ultra vices 1 shall presently examine. But this particular line of reasoning which Mr. Brohi has adopted, I must confess, I have been wholly unable to pursuade myself to accept. This is to attribute to the Legislature an entire surplus age of words intended to be used without any meaning. Although Mr. Brohl has not In so many words said so, the contention really camouflages the argument which had only to be put openly and clearly to be seen as being completely devoid of force. In effect the argument means that the rule-making power is to be spelt only from section 3, subsection (1) or upon an under--standing of the purposes of the Ordinance read as a whole. Mr. Brohi's argument was that no rule of the kind of rule 31 was at all necessary for ensuring the various purposes mentioned in subsection (1) or inferable from the whole scheme of the Ordinance. I must confess my total inability to appreciate or agree with this contention. It seems to me perfectly obvious, specially when regard is had to the fact that the Ordinance was promulgated on the 23rd of November 1971, when the country was at war, that the power to make provision for E controlling or even altogether refusing exit from Pakistan, to any person or class of persons or even the entire population generally, must necessarily come within the generality of the expression "security, public safety and interest and Defence of Pakistan or securing the maintenance of public order or the efficient conduct of military operations for prosecution of war or for maintaining supplies and services essential to the life of the community". Even, therefore, if I were to accept the argument that the power must be found from subsection (1) or not at all I should find no difficulty in holding that the rule is not, at least on that account, ultra vires. In any case, quite clearly the rule would come under item 12 of subsection (2) of section 3 which reads: "the control of persons entering, departing from, or travelling in Pakistan, and of foreigners residing or being in Pakistan;"
The other line of attack of Mr. Brohi was based upon Articles 3 and 8 of the Interim Constitution of Pakistan. It is obvious of course that since the action that the petitioner is complaining of, as distinguished from the validity of the law which he is challenging, have taken place after the passage of the Interim Constitution Article 281 would have no bearing upon its validity. The argument was that Article 3 which itself, it was emphasised, is not one of the fundamental rights and cannot, therefore, be taken away by or under any Proclamation of Emergency is, if I may put it that way, more fundamental than the fundamental rights themselves. In sub-Article (1) of this Article what is stated to be the unalienable right of every citizen and of every other person for the time being in Pakistan is to enjoy the protection of law and to be treated in accordance with law and only in accordance with law. Sub-article (2) reads asfollows:-- "(2) In particular-
(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 d9ing anything not prohibited by laws and
(c) no person shall be compelled to do anything the law does not require him to do."
It will be seen that this Article is in terms identical with Article 2 of the Constitution of 1962. Now it is elementary in our system of law that the executive has no power except such as has been given to it by law, and that anything done, which in any manner adversely affects a citizen or any other person for the time being in the country, must have the warrant of power duly conferred by law and would otherwise be illegal. I have, therefore, sometimes wondered as to the need for the incor-- poration of Article 2 in the former Constitution or article 3 in the present Interim Constitution. The difficulty I felt was that it is not lightly to be assumed in the case of any statute that it is making a provision which is wholly unnecessary and I have, therefore, long endeavoured to find some meaning in the Article which would add to the law as it already exists, I am unable to read it as being a guarantee against legislation of any kind because the whole provision of the Article in question is to enjoy the protection of law and not to impose any restriction on the power to make law itself. The argument of counsel on both sides was that it is, at least, not inappropriate in statutes of a con--stitutional character to declare a cherished doctrine of law which embodies the right of a people by way of re-arming faith in that doctrine and a firm determination of adherence thereto. This might well be so, but I would nevertheless feel more re-assured if I could find some more meaning in the Article than a mere declaration of what the law is and always has been.
Perhaps-and say so with a sense of extreme respect-the answer might lie in the observations of the present Chief Justice of Pakistan in the case of the Government of Pakistan v. Begum Agha Abdul Karlin Shorfsh Kashmiri (PLD 1969 SC 14) at p. 31 where his Lordship observed :- "In my view the words "in an unlawful manner" in sub-- clause (b) of Article 98 (2) have begin used deliberately to given meaning and content to the solemn declaration under Article 2 of the Constitution itself that it is the inalienable right of every citizen to be treated in accordance with law and only in accordance with lax. To my mind, therefore, in determining as to how and in what circumstances detention would be detention in an unlawful manner one would inevitably have first to see whether the action is in accordance with, law, if not, then it is action in an unlawful manner.
Law is here not confined to statute la v alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts. It means according to the accepted forms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may well be, as has been suggested in some quarters, that in this sense it is as comprehensive as the American "due process" clause in a new garb. It is in this sense that an action which is male fide or colourable is not regarded as action in accordance with law. Similarly action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Action taken upon no ground at all or without proper application of the mind of the detaining authority would also not qualify as action in accordance with law and would, therefore, have to be struck down as being action taken in an unlawful manner."
13. However, in the present case a continuation of this discussion would, I think, be extremely academic because the whole question eventually is whether or not rule 51 is good law and, even if goad, whether the order made thereunder is valid. If it is, then the action taken by Government to the prejudice of the petitioner cannot be said to be violative of Article 3; if it is not, then even if Article 3 did not exist we should have to declare the action bad and to enforce the right of the petitioner which is thereby denied.
14. The other branch of this argument is based upon Article 8 of the Constitution which is in this language "No person shall be deprived of life or liberty save in accordance with law," and here again the short answer would be that since Article 8 talks merely of a right "not to be deprived of life and liberty, save in accordance with law", the question again boils down to the same one; namely, is the law in question valid ? A great deal of arguments was urged at the bar as to the meaning of the word 'liberty', both in Article 8 and i7 Article 3. It is to be observed that the word is unqualified by the adjective "personal" or any other similar epithet. It was on that ground argued that liberty here meant very much more than personal liberty which is the expression used in the corresponding Article of the Indian Constitution. The argument was developed by quotations particularly from American authorities specially Kent v. Dulles (357 U S 116). Since the Fifth Amendment to the American Constitution again uses the word `liberty' without qualification we were invited to hold that the word 'liberty' is an utter freedom to do exactly what one pleases which would of course include leaving the country.
15. Apart from precedents, this meaning was sought to be given to the word 'liberty' not only from the lack of its quali--fication by, a word like 'personal' but by contrasting the use of the word 4deprived' in Article 8 with the word 'detrimental' in Article 3. It was argued that it was totally impossible to conceive of a partial deprivation of life and that, therefore, the word 'deprived, in Article 8 must be understood so as to make the Article a barrier in the way of the any attempt to curtail life, and consequently liberty hrre means all kinds of liberty without qualification. If that meaning were to be accepted in Article 8, it was then argued that the word must bear the same meaning in Article 3 since a word used in one part of a statute would ordinarily convey the same meaning when us-.d in another part. For a variety of reasons I am unable to accept so wide a conception of "liberty".
16. It is true that unlike Article 8 many other Article of the Constitution which conferred some fundamental rights of freedom qualify that right in some form or the other and that nowhere in those other Articles is the word "liberty" used. If that were the conclusive or even the guiding principle of interpretation I think this could lead to some very startling results, I cannot believe that the Constitution intended to give to every person liberty so to act as to interfere with the liberty of others. Indeed such liberty would be a contradiction in terms, and yet, if this meaning Is to be accepted, I may trespass into my neighbor---s garden not only without his consent but against his will and claim that what I am doing is in the exercise of my own liberty. The obvious answer of course would be that there is no danger of the word 'liberty' being so understood since in both Articles the right conferred is subject to law and such unrestrained use of liberty quite obviously would conflict with one or the other law, including those which provide for the rights of others.
17. I proceed to consider next the argument as approached by the contrast between the words 'deprived' and 'detrimental'. The expression 'deprived' is defined in the dictionary as meaning) "to divest, bereave, dispossess" while the word 'detrimental' means "causing loss or damage ; prejudicial". It is said that since it is impossible to conceive of a partial deprivation of life, although one may easily understand how something may be detrimental to life without finally taking it away, the Article must be understood to protect life absolutely (of course, save in accordance with law).
The word 'liberty', therefore, in Article 8 must be conceived in its absolute sense, that is, the right to do anything whatever since "deprived" is used In relation to both life and liberty. It seems to me that this imposes an unnecessary strain on language. An over literal meaning is sought to be put on the language by the argument which may be met by an equally literal answer. While I agree that it is not possible to conceive of a partial deprivation of life, a partial deprivation of 'liberty' could easily be understood. Indeed I find it difficult to conceive of an absolute deprivation of liberty. However thoroughly a person may be incarcerated and kept in chains and fetters, some amount of physical liberty, even If it be no more than the movement of one finger or the opening of the eye-lids or the movement of the tongue within, a closed mouth will still have to be left to a person and yet the word 'deprived' is used in Article 8, both in relation to life and liberty. It is difficult to accept the argument that while on the one hand the word 'liberty' used in Article 8 must bear the same meaning in Article 3, the one word 'deprived' in Article 8 must have one meaning In relation to life and another in relation to liberty though it qualifies both or relates to both in the same Article.
18. The question was considered by a Bench of the West Pakistan High Court sitting at Lahore in the case of Abul A'ala Maudoodi v. The State Bank of Pakistan (PLD 1969 Lah. 908). While both the learned Judges who heard the case agreed that the petition had to be allowed, Mr. Justice Muhammad Akram was of the view that the expression 'liberty' must be given the wide meaning which has .Been canvassed before us on behalf of the petitioner but Mr. Justice Muhammad Gul expressly disagreed on this point. It is unnecessary for me to quote extensively from the former learned Judge's judgment as I have already indicated the general lines upon which the argument was built up though he quoted other authorities in support of his argument, specially, Blackstone's commentaries to which I have not referred. Muhammad Gul, J. On the other hand was of the view that, contrasting Fundamental Right No. 1 and Fundamental Right No. 5 of the Constitution of 1962 which correspond to Articles 8 and 12 of the Interim Constitution, the word 'liberty' could not bear as wide a meaning as have been placed upon it by his brother Judge. He held that the Fundamental Right No. 1 could not be interpreted in isolation and that various kinds of freedoms have been guaranteed by other Articles of the Constitution which would hive been wholly redundant if so wide a meaning was to be given to Fundamental Right No. 1. With respect I find myself in entire agreement with his reasoning.
19. In answer to this line of reasoning, Mr. Brohi pointed out that Article 2 was a part of the 1962- Constitution as originally pro--mulgated and that the amendments which incorporated the funda- -mental rights were made later. He, therefore, argues that there was no question of interpreting Article 2 so as to make it harmo--nize with the provisions guaranteeing the fundamental rights. The meaning of the word 'liberty' in Article 2 being, thus fixed, the same meaning would have to be ascribed to it when used in Fundamental Right No. 5 of that Constitution. I should have thought that the exact opposite would be the correct conclusion, the Legislature while amending the Constitution inserted several fundamental rights and only in one of these rights used the word "liberty" which, admittedly would be understood more narrowly if Article 2 had not already fixed the meaning. The Legislature must be assumed to have been aware of the existence of- Article 2 as it was already a part of the Constitution and to have seen no incongruity in using the word 'liberty' in Funda--mental Right No. 5 and, therefore, to have understood the same word in Article 2 in a narrower sense. In any event I am now construing Articles 3 and 8 of the Interim Constitution and these admittedly have been enacted at the same as also the other Articles corresponding to the Fundamental Rights of the 1962-Constitu--petition. I think it more reasonable to infer, therefore, that the Legislature used the word 'liberty' in the narrower sense in Article 8 and, therefore, in Article 3.
20. It is interesting to note that Mr. Brohi himself in his Treatise on the Fundamental Laws of Pakistan, after having considered the contrast between the expression 'liberty' and 'personal liberty' and the American and the Indian precedents himself came to the same conclusion as Mr. Justice Muhammad Gul, who in fact quotes him in the judgment to which I have made a reference. I do not think I am being unfair to Mr. Brohi, as it were by quoting himself against his own argument, since the learned counsel is perfectly entitled in his capacity as counsel, to advance for the consideration of the Court, a question of law from the view-point most favourable to his client.
21. Really in Mr. Brohi's arguments higher in priority of Importance and even earlier in order of presentation to the Court, was the argument, that upon true interpretation of rule 31, the order of 23rd December 1971, is itself ultra vires and that, therefore, there is no question of any need to produce any 'No --Objection Certificate' before a person can be allowed to leave the country. I have already reproduced rule 31 in an earlier part of this judgment and it will be noticed that the rule gives the power to the Central Government, by order to make provision for preventing persons, from proceeding, from Pakistan to a destination outside Pakistan, except under the authority of a written permit granted in such form and manner and by such authorities or persons as may be specified in the order. There is also power in the rule to exempt a class of persons from the necessity of obtaining a written permit and indeed the order already quoted enumerates sixteen categories of such exempted persons and we are informed at the bar that these categories have, from time to time, been enlarged. Mr. Brohi, therefore, argues that the power was not one simply to prevent a class of persons but only to prevent them from doing so without a permit and that, consequently, unless the order made provision for the creation of a machinery by means of which such a permit could be obtained the order is invalid. He conceded that in any given case or indeed in all cases such permission may in fact not be granted. The necessity is, he said, that the order, in order to be valid, must provide for such a machinery; on the face of it of course the order does not so provide. Mr. Brohi conceded that the expression 'class of persons' could very well be interpreted to mean that the Government could prohibit the entire population of Pakistan as a class from proceeding abroad except under such a permit.
22. I regret I am unable to accept this contention. As I read it, the rule gives power to provide for preventing a 'class of persons' from going abroad, for creating exemptions and finally for giving express permission in individual cases. I am unable to read the power to prohibit departure as contingent upon the obligation to create the machinery from which a permit could be obtained.
Suppose for instance, after the order in question had been passed without mentioning any exempted class of persons; the next day another order passed giving a list of exemptions and on the 3rd day a machinery for the grant of permits created, there would be no difficulty in regarding all these three orders as being valid and within the purview of rule 31. But that could only be on the basis that there are several powers granted by the rule and not just one power dependent upon the obligation to create the kind of machinery stated. In my opinion a rule which permits the making of general orders of this kind must be read to an extent in the same fashion as entries in a list incorporated in a Constitution enumerating the powers of a legislative body. After all to Central Government is constituted by the rule making power, a sob-legislative authority, and again by rule it is constituting itself an authority to make further general orders. In that view of the matter it seems to me that the powers given by rule 31 are separable powers; that is to say, there (s a power to prohibit Exit, there is a power to exempt from the general order of prohibition and there is finally a power to grant special permits.
23. It is interesting to note that at one tithe Mr. Brohi was desirous of arguing this case upon a very short point ; when the case came up for admission before a Division Bench of which I was a member. He so stated and this statement is again referred to in the order of the Full Bench dated 7th of August 1972, to which I have made reference at the beginning of this judgment. Although neither of these expressly states what that short point was, my recollection is that he in--tended to place his case upon the first of the exemption mentioned in the order of the 23rd of December 1971, which is the one challenged before us. This-item exempts from the operation of the order all official delegations. It seems to have been realised thereafter that a reliance upon this exemption would be self-stultifying. Once it was claimed that the petitioner, as being a member of the official delegation was entitled to the benefit of the exemption his claim to membership of the Sub--- Commission in a personal capacity would be clearly ruled out and the fact that the Government now claims that it has lost confidence in him would conclude the question as he would cease to be a member of the official delegation. Mr. Brohi was at some pains to state before us that the questions he is raising now are not afterthoughts inasmuch as his client as early as the 26th of Jane 1972, in his letter to the Secretary, Ministry of Interior, Government of Pakistan, stated that he was advised that under law it was not necessary for him to have any clearance and/or No- Objection Certificate. However, the sentence in which that assertion is made goes on to say "specially when one is participating in the session of the Sub-Commission of the United Nlarions".
The reference clearly is to membership of an official delegation. Again in the Petition which is before us, the ground was taken up inasmuch as clause `K' of paragraph 8 which states that the ground is in these words: "It is submitted that even otherwise the petitioner is exempted under Notification No. S. R. O. 630 (1)/71, dated 24-12-1971."
I do not, however, think that this should stand in the way of the petitioner if he is otherwise entitled to relief ; if it is an afterthought, it is an afterthought on a question of law and not on a question of fact. It is not as if an assertion of fact is being made for the first time which we may, therefore reject as manufactured later on. If the law be indeed as it is claimed on behalf of the petitioner to be then, the fact that he earlier relied upon a different position of law cannot be regarded as a good ground for rejecting the petition.
24. Although I have held that the impugned order of 23rd December 1971 was not invalid on the ground that it did not provide for a machinery such as it is claimed should have been set up I think it necessary to refer to a letter dated the 16th of May 1972, from the Government of Pakistan.
Addressed to the Home Secretaries of each of the Provinces which is reproduced below: "Secret/Immediate.
No. 1/5/71-Pass (Int)-II Government of Pakistan Ministry of Interior and States and (Interior Div1sion)
Islamabad, the 16th May 1972.
From :--- Deputy Secretary To, The Secretary, Home Department, Government of N.-W. F. P., Peshawar.
Government of the Punjab, Lahore.
Government of Sind, Karachi.
Government of Baluchistan, Quetta.
Subject : Ban on exit from Pakistan. Sir, I am directed to say that in accordance with this ` Ministry's order under Defence of Pakistan Rule 31, No. 1/1/71-Pass (Int)-II, dated the 23rd December 1971, published under S. R. O. No. 630 11}/71 (Ten copies enclosed for ready reference), no citizen of Pakistan or a person of Pakistan origin who holds British passport and is for the time being in Pakistan is to be permitted to proceed from Pakistan to any country. However, the order also provides for exemption from the ban of persons belonging to the 16 categories mentioned therein. Technically, the individuals who are covered under any of these exemptions do not require any permission to leave the country while the others cannot be permitted to go out of Pakistan. However, it has been brought to the notice of the Ministry that the Govern--ment of N.-W. F. P have introduced a system of exit permits for intending travelers leaving the country via Torkham, but the said provincial authorities are unable to issue such exit permits to persons belonging to provinces other than N.-W. F. P. A similar arrangement is understood to have been introduced by the Government of Sind in respect of residents of that province. These informal arrangement: have resulted in confusion and inconvenience to persons belonging to other provinces. It has, therefore, been decided that in future and until further orders the Home Departments of the Provincial Governments may Issue No-Objection Certificates to persons residing within their jurisdiction, who are covered under the exemptions from the ban on exit as contained in the aforesaid order under Defence of Pakistan Rules. In the case of Rawalpindi District the Deputy Commissioner, Rawalpindi who has already been authorised in this behalf may continue to issue such certificates. A form of the No-Objection Certificate is enclosed. However, no certi--ficates will be required by the following categories of persons namely:-
(1) Members of official delegations.
(2) Government servants going abroad on duty if they, produce No-Objection Certificate issued by the Establishment Division of the Central Government.
(4) Drivers and members of the crew of the road transport engaged in transit and border trade between Pakistan and Afghanistan.
2. It may be clarified once again that No-Objection Certificates will be issued as aforesaid only in cases of persons covered under any of the exemptions from the ban on exit.
3. The cases of the persons not covered under any of the-- exemptions from the ban on exit, may invariably be referred to the interior Division of the Central Government along with the recommendations of the Provincial Government concerned.
4. No-Objection Certificates should not, however, be issued under any circumstances, to any person, for going to India. Such cases should also be referred to the Interior Division along with the recommendations of the Provincial Government.
5. East Pakistanis also should not be issued No-Objection Certificates. It may be noted carefully that no East Pakistani, should be allowed to leave the country under any circumstances, whether he is covered by the exemptions or not, even if he is in possession of all other travel document, unless he produces an exit permit issued by the Interior Division of the Central Government.
6. It is requested that necessary instructions for strict compliance may be issued to all the authorities concerned under intimation to this Ministry.
Yours obedient servant, (Sd.) ` Deputy Secretary.'
Paragraphs 3 and 4 of this letter" are of particular importance and clearly establish that a machinery had been set up for the; purpose of granting exit permits or as they are called now "No- - Objection Certificates".
25. Also produced before us was a press note of the Government of Sind which reads thus:- "It has now been decided that with immediate effect, persons residing in the jurisdiction of Sind Province, who are returning residents need not apply for issue of Exit Permits which is no more necessary provided they return to the place of residence by Air. In the cases of returning residents who go by other mode of conveyance they should apply for Exit Permits to Home Department, Government of Sind (Tughlaq House), Karachi.
2. No-Objection Certificate for the remaining 11 categories as mentioned below need apply to Home Department:-
(1) Students who are permitted to go abroad for edu--cation;
(2) Persons who have been successful in the ballot to go for Hajj
(3) Families of returning residents holding clearance from U. K. High Commission;
(4) Hajj Pilgrims, payment for whose tickets has been received from abroad in foreign exchange;
(5) Students joining their parents abroad;
(6) Families of Government servants, including employees of Pakistan Mission, posted abroad;
(8) Persons who are permitted to go abroad for the first time for employment;
(9) Families of persons employed abroad for the first time to join their husbands or relatives ;
(10) Persons going abroad on business connected with export with the approval of the Export Promotion Bureau;
(11) Persons going to Middle East countries for Ziarat.
3. All applicants are advised to give at least three days' clear notice to the Home Department of their Intention to travel abroad.
4. Persons from other Province will require to produce No---Objection Certificates from the Home Department of the residents' Province."
26. Now this press note although issued by the Government of Sind starts with the expression "It has now been decided". Ordinarily of course such an expression used by the Home Secretary of a Provincial Government would be construed as referring to a decision of the Government of Sind.
But in the face of paragraph 4 it is at least doubtful whether it was issued under the sole authority of that Government. It might well have been issues: under the authority of the Central Government though I do not think I can clearly hold to that effect. It does not, however, matter whether the order in question was made by the Central or the Provincial Government although Rule 31 speaks of Central Government only. Rule 213 of the Defence of Pakistan Rules lays down inter alia that the power of the Central Government specified in column (1) of the Table under that Rule may also be exercised by the Provincial Govern--ment in each of the Provinces. One of the Rules so mentioned is Rule 31 and the power thereunder is to be exercised on the condition that it should not be in a manner inconsistent with any orders made in this behalf by the Central Govern--ment.
27. It was of course argued that the order contemplated by Rule 31 must be notified in the official Gazette and, admittedly excepting the order of 23rd of December 1971, none of the orders to which I have referred are so gazetted. The word `order' however, in Rule 31 has not been defined and does not, I think, bear any meaning other than the ordinary one of command. I can see no warrant for holding that such an order, -in order to be effective, must necessarily be notified in the official Gazette.
28. It was asserted also by the Attorney-General that the petitioner knew very well to whom to apply for a 'No-Objection Certificate' and this was not seriously denied by the petitioner. I, however, do not consider this at all relevant; if the impugned order was bad for the lack of a machinery such as I have mentioned then it follows that all actions taken under it were illegal. If on the other hand it was valid then even if the petitioner did not know to whom to apply, It would not affect the legality of the action taken.
29. It was argued that the action of the Government, whether Provincial or Central, in refusing to grant or at least refraining from granting a "No-Objection Certificate", to the petitioner is mala fide and Mr. Brohi very strongly emphasised that the word 'mala fide' need not and does not mean that any dishonesty of purpose was being attributed to the Government. An action is said to be mala fide in law, he contended, when it is taken for purposes other than those contemplated by the law which conferred the power to take that action. With that statement of law I am in perfect agreement. But beyond asserting that the action is mala fide Mr. Brohi has not advanced any argument towards that end nor have any facts been alleged from which an inference of mala fide may be drawn. Now clearly the onus of proving facts which might constitute mala fide must lie on him who asserts It and a Court must ordinarily presume that action taken by Government is taken in good faith g unless shown otherwise. This should suffice to reject the argument based on mala fides.
30. However, the learned Attorney-General has been at some pains to show us that the action was not dishonest. He wanted us to be assured that Government had some good and valid reason for the action that they have taken. He pointed out that the Government now in power had in fact sponsored the candidature of the petitioner and that there was, therefore, no question of any vindictiveness or malice against him. It would be remembered that I have stated earlier that the second period in which the petitioner was Attorney-General of Pakistan came to an end on the 21st of December 1971 while the present administration took the Government of the country in its own hands on the 20 of December 1971. 1t is this near co-incidence of dates which impelled Mr. Yahya Bakhtiar, the Attorney-General, to advance this argument. The counter-affidavit filed on behalf of the Central Government states merely that recently certain informa--petition has been received of a serious nature with regard to the petitioner and that this information is being investigated into. Till that investigation is over, the Government said, they have no confidence in the petitioner. Now we have no reason to doubt the statement of the Government but the Government have not told us what the information is it may well be that since the information has not been investigated and may yet turn out to be false, Government do not wish to disclose it. Whatever be the reasons, however, for this non-disclosure I cannot, therefore, rely upon any facts since we have no evidence of any which would cause a doubt on the petitioner's suitability to be a member of the Sub- Commission. On the other hand we have no reason to doubt the honesty of Government when they say that they have information. All that I can hold, therefore, is that Govern--ment have some information but that it may or may not be true. To my mind, therefore, this fact does not affect the decision of this case one way or the other.
31. It was finally argued that the petitioner was entitled to a show-cause notice before action was taken against him. It is by now settled law that the principles of natural justice require that every statute should be read as incorporating in itself the requirement to give a notice to show cause against any action 1 intended to be taken against a person unless the statute expressly or by necessary implication excludes such a rule. If I may say so, with respect, the rule is clearly stated In the case of the Chief Commissioner v. Mrs. Dina Sohrab Katrak (PLD 1959 SC (Pak.) 45), in which the late. Mr. Justice Shahabuddin at page 50 observed: "It cannot be disputed that it is a principle of natural justice that no one should be dealt with to his material disadvantage or deprived of his liberty or property without having an opportu--nity of being heard and making his defence."
Again in the case of Abul A'ala Maudoodi v. Government of West Pakistan (PLD 1964 SC 673the present Chief Justice quoted a passage from the English case of Ridge v. Goldwin (1963 All E R 66and referring to the observa--petition of one of the noble Lords that: "It has been said many times that the exact requirements in any case of the so-called principles of natural justice cannot be precisely defined ; that they depend in each case on the circumstancesth of that case and to point out that even tie decisions on this point were not uniform nor was it possible 'to extract from them the means of propounding a precise statement of the circumstances or of the cases in which the principles can be invoked before the Courts: "
His Lordship expressed his entire agreement with this observation and added: "It is not difficult to conceive of cases wherefrom the very nature of the action to be taken this principle cannot possibly have any application."
Now, this is a rule at best of interpretation or at least a rule whereby one reads into statute, words not expressly used but which are presumed to have been intended unless they are expressly excluded or which under the circumstances of the case could not have been intended. Dealing with a case where, by a general order, a whole class of persons, which might even be the entire population of Pakistan, can be prohibited from leaving Pakistan, I find it impossible to read such a rule into the statute in question. To do so would mean that a show-cause notice must be given to every single individual in Pakistan. I think this is one of the cases which the Chief Justice described as being those "Where from the very nature of the action this principle cannot possible have any application".
32 The necessity for a show-cause notice was then canvassed in another way. It was said that the petitioner as the holder of a valid passport, as he admittedly is, could not be deprived of it without such a notice. I need hardly say that, in line with the reported cases on the presumed inclusion of the requirement of a show-cause notice in all statutes, including those of the Supreme Court, I am in full agreement with the proposition advanced. It was then said that if, in spite of the possession of such a passport, the petitioner was prevented from leaving the country, then he was in effect deprived and his mere physical possession of the booklet called a passport would be cold comfort indeed. Attractive as the argument is and ably as it was put before us, I think there is a fallacy underlying it. If the argument be correct then a show-cause notice must be given to all citizens holding passports and foreigners cannot, in any event, be prevented from leaving the country as their passports, issued by their own countries, can hardly be cancelled by the Government of our country. I have already held that, on this ground of the impracticability or even the impossibility of issuing show-cause notices, I do not think that the principles of natural justice require me to read into the law the necessity of giving a notice to show cause.
33. In the result, therefore, I would dismiss this petition. Regard being had, however, to the fact that some what difficult questions of law were involved, I would leave the parties to bear their own costs.
FAKHRUDDIN G. EBRAHIM, J.-I commence with an expression of my sincere regret at being unable to persuade myself to agree with the view-point expressed by my Lord the Chief Justice and concurred in by my learned brother Muhammad Haleem, J. On the question of interpretation of Rule 31 of the Defence of Pakistan Rules, 1971 and the validity of the order or orders made by the Central Government in the exercise or purported exercise of the powers conferred by the said Rule.
2, Rule 31 of the Defence of Pakistan Rules, 1971 reads as follows :- "31. Leaving Pakistan -(l 1 The Central Government may, by order, make provision for securing that, subject to such exemptions as may be provided for in the order, any person for the time being in Pakistan or any class of such persons, shall not-
(a) proceed from Pakistan to a destination outside Pakistan except under the authority of a written permit granted in such form and manner and by such authority or person as may be specified in the order ;
(b) for the purpose of proceeding to a destination outside Pakistan, leave Pakistan elsewhere than at such place as may -be specified in the order.
(2) Where any police officer not below the rank of Inspector, or any other public servant authorized in this behalf by the Central Government, has reason to suspect that any person who is about to depart from Pakistan is attempting so to depart for purposes prejudicial to the defence or security of Pakistan, he may, notwithstanding the fact that such departure does not -contravene any order made under sub-rule (1) prevent the departure of that person.
(3) Any police officer or other public servant who prevents -the departure of any person under sib- rule (2) shall forthwith report the fact of such prevention to the Central Government, and the Central Government may, if it Winks fit, by order, prohibit such person at any time subsequently from leaving Pakistan so long as the order is in force.
(4) If any person contravenes any order made under this rule, he shall be punishable with imprisonment for a term which may extend to five nears, or with fine, or with both.
(5) The master of any vessel or the pilot of any aircraft by means of which any person leaves Pakistan in contravention .Of any order made under this rule shall, unless he proves that he exercised ail due diligence to prevent the said contravention, deemed to have abetted the contravention,"
3. The aforesaid Rule empowers the Central Government to:
(a) make provision for securing that any person for the time being in Pakistan or any clays of such persons shall not proceed from Pakistan to a destination outside Pakistan, with a rider that a machinery shall be provided, enabling such a person to apply for a written exit permit to an authority specified by the Central Government and the form and the manner in which ,Such authority may grant the permission sought from him ;
(b) make exemption and such exempted persons, will not be restrained from leaving the country.
4. It may be noted that this Rule enables the Central Government to exercise a far-reaching power of prohibiting any person or class of persons from leaving Pakistan without assigning any reason and it was perhaps for this reason that the Legislature contemplated creation of a machinery to have this embargo lifted, by making provision that an order made in pursuance of this Rule, shall not only enable the Central Government to prevent any person or class of persons from travelling outside Pakistan but that such an affected person or persons shall have the opportunity to have the embargo lifted by applying for an exit permit from the specified authority. Such a provision, in my humble view, was necessary to exercise restraint upon wide powers conferred by this Rule, more so, as ft restricted the "liberty" of individuals, as ordinarily understood. It is difficult to under- estimate the importance of the existence of such a machinery for an aggrieved person. Such a machinery will not only enable him to have the embargo lifted by applying for and obtaining a permit, but if the refusal is arbitrary or capricious, then he may as well have recourse to one or the other remedy. I, therefore, do not read this part of the Rule, which will enable a person to apply for an exit permit, as one of the several powers, which the Central Government may or may not exercise, but it is more in the nature of an obligation or a condition annexed to the power to prohibit absolutely a person of a class of persons from leaving the country.
5. The Central Government in exercise of the powers conferred by sub-rule (1) of Rule 31 of the Defence of Pakistan Rules, 1971 was pleased to issue an order, vide Notification No. S. R. O. 550(1)/71, dated 27th November 1971, prohibiting any citizen of Pakistan from proceeding to India except under the authority of and in the manner specified In a permit granted by the Deputy Inspector- General of Police (Special Branch) of the Province in which the person intending to proceed to India was residing. This Notification proceeded to prescribe a form of the permit in terms of the clause
(a) of sub-rule (1) of rule 31 of the Defence of Pakistan Rules, 1971. This Notification warm superseded by another Notification dated 21st December 1971 bearing No. S. R. O. 626(1)/71, by which the Central Government was pleased to order that no citizen of Pakistan, except the members of the official delegations and the students who are permitted to go abroad for education under usual conditions, shall proceed from Pakistan to any country, and that to India under no circumstances. This second Notification was again superseded by another Notification No. S. R. O 630(1)/71, dated 23rd December 1971 which was in terms similar to the second Notification dated 21st December 1971 except that the categories of persons exempted was enlarged.
6. It may at once be noted that while the first Notification, which prohibited exit from Pakistan to India, provided for a machinery for grant of an exit permit form a designated authority and the form in which the permit was to be granted, such a provision did not find place in the second or the third Notification. As I have already stated earlier it was incumbent on the Central Government, while making a provision for securing; that any person shall not proceed from Pakistan to a destination outside Pakistan, to provide for a machinery for obtaining an exit permit from the specified the manner in which such a permit was granted. In the absence of such a provision the said Notifications and particularly, the last one, which is in force and was relied upon by the respondent No. 1 as Annexure 'BB' to their counter-affidavit, cannot be said to be in terms envisaged by rule 31. Any order made in pursuance of rule 31 must necessarily correspond to the require--ments of the rule in the absence of which it cannot be said to be in exercise of powers conferred by the said rule.
7. Mr. A. K. Brohi, the learned counsel for the petitioner drew our attention to the Exit from Pakistan (Control) Ordi--nance (XXXI of 1965), 1965 which was passed to effectuate & purpose similar to the rule'31 of the Defence of Pakistan Rules, 1971 and that in pursuance of this Ordinance, an Order called the Exit from Pakistan Order, 1965 was issued, which apart from other things, provided the form and the manner and the authority which was empowered to issue exit permit. This would go to show that when identical powers were granted to the Central Government, it did not content itself by merely making a provision for securing the exit by a person or a class of persons from Pakistan to any destination outside Pakistan, but deemed it necessary to provide for and specify the authority for grant of exit permit and so also its form and manner.
8. To meet this objection, namely, failure to specify the authority entitled to grant exit permit and the form and the manner of such permit, the learned Advocate-General, Sind, placed before us, a letter dated 16th May 1972 from the Central Government addressed to the Secretaries to the Home Depart--ments of the Provincial Governments. The letter reads as, follows:- "No. 1/5/71-Pass (Int) II. Secret/Immediate.
Government of Pakistan Ministry of Interior & States & (Interior Division)
Islamabad, the 16th May 1972.
From: Deputy Secretary, To, The Secretary, Home Department, Government of N.-W. F. P., Peshawar.
Government of Punjab, Lahore.
Government of Sind, Karachi.
Government of Baluchistan, Quetta.
Subject:-Ban on exit from Pakistan. Sir, I am directed to say that in accordance with this Ministry'& order under Defence of Pakistan Rule 31, No. 1/5/71 Pass (Int)-II. Dated the 23rd December 1971 published under S. R. O. No. 630(1)/71 (ren copies enclosed for ready reference), no citizen of Pakistan or a person of Pakistan origin who holds British Passport and is for the time being in Pakistan is to be permitted to proceed from Pakistan to any country. However, the order also provides for exemption from the ban of persons belonging to the 16 categories mentioned therein. Technically, the individuals who are covered under any of these exemptions do not require any permission to leave the country while the others cannot be permitted to go out of Pakistan. However, it has been brought to the notice of this Ministry that the Government of N.-W. F. P. Have introduced a system of exit permits for intending travellers leaving the country via Torkham, but the said provincial authorities are unable to issue such exit permits to persons belonging to provinces other than N.-W. F. P. A similar arrangement is understood to have been introduced by the Government of Sind in respect of residents of that Province. These informal arrangements have resulted in confusion and inconvenience to persons belonging to other provinces. It has, therefore, been decided that in future and until further orders the Home Departments of the Provincial Governments may issue No-Objection Certificates to persons residing within their jurisdiction, who are covered under the exemptions from the ban on exit as contained in the aforesaid order under Defence of Pakistan Rules. In case of Rawalpindi District, the Deputy Commissioner Rawalpindi who has already teen authorised in this behalf may continue to issue such certificates. A form of the No-Objection Certificate is enclosed. However, no certificates will be required by the following categories of persons namely:-
(1) Members of official delegation.
(2) Government servants going abroad on duty if they produce No-Objection Certificate issued by the Establishment Division of the Central Government.
(4) Drivers and members of the crew of the road transport engaged in transit and border trade between Pakistan and Afghanistan.
(2) It may be clarified once again that No-Objection -Certificates will be issued as aforesaid only is cases of persons covered under any of the exemptions from the ban on exit.
(3) The cases of the persons not covered under any of the exemptions from the ban on exit, may invariably be referred to the Interior Division of the Central Government alongwith the recommendations of the Provincial Government con--cerned.
(4) No-Objection Certificates should not, however, be issued under any circumstances to any person, for going to India. Such cases should also be referred to the Interior Division alongwith the recommendations of the Provincial Govern--ment.
(5) East Pakistanis also should not be issued No-Objection Certificates. It may be noted carefully that no East Pakistan should be allowed to leave the country under any circumstances, whether he Is covered by the exemptions or not, even if he is in possession of all other travel documents, unless he produces an exit permit issued by the Interior Division of the Central Government.
(6) It is requested that necessary instructions for strict compliance may be issued to all the authorities concerned under intimation to this Ministry.
Your obedient servant, (Sd.)
Deputy Secretary."
9. The learned Advocate-General also drew our attention to the two Press Notes dated 22nd May 1972 and 26th June 1972, whish Press Notes are reproduced hereunder:- PRESS NOTE I. With immediate effect No-Objection Certificates for travel by persons residing in the jurisdiction of the Province of Sind will be issued by the Home Department, Government of Sind to the 12 categories stated hereunder:-
(1) Students who are permitted to go abroad for education;
(2) Persons who have been successful in the ballot to go for Hajj;
(3) Persons who are settled or working abroad and their dependents who have come to Pakistan temporarily and are going back to join their posts or duties abroad;
(4) Families of returning residents holding clearance from the U. K. High Commission;
(5) Hajj pilgrims, payment for whose tickets has been received from abroad in foreign exchange;
(6) Students joining their parents abroad;
(7) Families of Government servants, including employees of Pakistan Mission, posted abroad;
(8) Families of P. I. A. Employees posted abroad; (9) Persons who are permitted to go abroad for the first time for employment;(10) Families of persons employed abroad going for first time to join their husbands or relatives;
(11) Persons going abroad on business connected with export with the approval of the Export Promotion Bureau;
(12) Persons going to Middle East countries for Ziarat, provided they are granted Exit Permit by the Home Department of the Province in which they reside.
II. No. N. O. C. Will be necessary for the following four categories:--
(1) Members of official delegations.
(2) Government servants going abroad on duty if they produce No-Objection Certification issued by the Establishment Division of the Central Government.
(4) Drivers and members of crew of the Road Transport engaged in transit and border trade between Pakistan and Afghanistan.
The No-Objection Certificate will be issued by the Home Department subject to advance clearance having been obtained from D. I. G., Special Branch, Sind. All applicants are advised to give at least 5 days' clear notice to the Home Department of their intention to travel abroad.
III. Persons from other Provinces will require to produce N. O. Cs. From the Home Department of that particular Province.
(Sd.)
Home Secretary, Sind.
U. O. No. HD (Visa)8-2/72, dated the 22nd May 1972, D. P. R. Sind, Karachi."
"No. HD(Ext-Prmt)8-2/72, dated Karachi, the 26th June 1972.
PRESS NOTE It has now been decided that with immediate effect, persons residing in the jurisdiction of Sind Province, who are returning residents need not apply for issue of Exit Permits, which is no more necessary provided they return to the place of residence by Air. In the cases of returning residents who go by other mode of conveyance they should apply for Exit Permits to Home Department, Government of Sind (Tughlaq House), Karachi.
(2) No-Objection Certificate for the remaining 11 categories as mentioned below need apply to Home Department:-
(1) Students who are permitted to go abroad for education;
(2) Persons who have been successful in ballot to go for Hajj ;
(3) Families of returning residents holding clearance from U. K. High Commission;
(4) Hajj Pilgrims, payment for whose tickets has been received from abroad in foreign exchange;
(5) Students joining their parents abroad;
(6) Families of Government servants, including employees. Of Pakistan Miss;on, posted abroad;
(8) Persons who are permitted to go abroad for the first time for employment.
(9) Families of persons employed abroad going for the first tinge to join their husbands or relatives:
(10) Persons going abroad on business connected with export with the approval of the Export Promotion Bureau
(11) Persons going to Middle East countries for Ziarat.
(3) All applicants are advised to give at least three days' clear notice to the Home Department of their intention to travel abroad.
(4) Persons from other Province will require to produce No-Objection Certificates from the Home Department of the residents' Province.
(Sd.)
Home Secretary.
U. O. No. HD (Visa) 8-2/72, dated the 26th June 1972. D. P. R., Sind, Karachi."
The learned Advocate-General, Sind relied on the aforesaid documents to show that the machinery for grant of exit permit envisaged in the said Rule 31 has in fact been provided for.
10. To my mind these documents do not provide for grant of exit permit to person or class of persons prohibited from proceeding abroad, nor the form and. The manner in which it will be granted. In so far as the letter dated 16th May 1972 is concerned, it is, as expressly stated a "Secret" communication from the Central Government to the Provincial Governments. An order envisaged under Rule 31 is an order, which must necessarily be issued for the information of the general public and particularly the persons affected. Even the Central Government did not think it otherwise inasmuch as orders under these Rules have been duly notified in Gazette of Pakistan, Extra ordinary, or at least by Press Notes. The nature of the order is such that its communication to the persons affected is imperative.
11. I am, therefore, of the opinion that the order made by the Central Government, contained in the Notification No. S. R. O. No. 630(5)/71, dated 23rd December 1971, or even the orders, said to contain in the aforementioned letter dated 16th May 1972 or the Press Notes, relied on by the learned Advocate. General, Sind, Issued in the purported exercise of powers con--feered by Rule 31 of the Defence of Pakistan Rules, 1971, are Invalid and of no effect Inasmuch as they fail to correspond to, what I consider as, the requirements of the said Rule 31.
12. The next question that arises for consideration is whether the petitioner, in the absence of a valid order made In pursuance of exercise of powers contained in Rule 31 of the Defence of Pakistan Rules, is entitled to go abroad, for his prayer is for an order restraining the Central and the Provincial Government and their officers from preventing the petitioner from going abroad, and to direct them and their officers to refrain from doing anything law to do, which they are not permitted by law to do.
13. Mr. A. K. Brohi, the learned counsel for the petitioner vehemently contended that Article 3 of the Interim Constitution of the Islamic Republic of Pakistan, guaranteed to the petitioner his Inalienable right to enjoy the protection of law and to be treated in accordance with law and only in accordance with law and, that In particular, no action could be taken detrimental to the "liberty" of any person except in accordance with law. The contention was that the expression "liberty" occurring in this Article should be given its widest connotation so as to include what is popularly known as freedom of locomotion. The learned counsel invited our attention to several American Authorities specially Rent v. Dulles (357 U S 116He also relied on the judgment of Muhammad Akram, J., in the case of Syed Abul A'ala Maudoodi v. The State Bank of Pakistan and another (PLD 1969 Lah. 908), in support of his contention that the expression "liberty" occurring In sub-Article (2) of Article 3 of the Constitution should be given a wide meaning so as to include freedom to go abroad, subject of course to law.
14. The learned Attorney-General contended that the expression "liberty" In Article 3 of the Interim Constitution should not he given such a wide meaning inasmuch as in the Chapter dealing with the Fundamental Rights, the right that has been guaranteed is freedom of movement within the country subject to any reasonable restrictions imposed by law. The argument was that the framers of the Constitution, by restricting the right of movement within the country should not be imputed with the intendment to create a larger right by the use of the word "liberty" in Article 3 of the Constitution, more particularly as the expression was equally capable of narrow or wider con-- notation. I am unable to agree with the learned Attorney --General. In my opinion there is no conflict between Article 3 and Article 12 of the Constitution. In so far as Article 12 is concerned the right guaranteed thereunder can he restricted by law, bat such law will be open to challenge if it imposes unreason--able restrictions, while all that the Article 3 is concerned with is the requirement that there should be a law, in this case a law to prevent a person from leaving Pakistan and notwithstanding its unreasonableness, such a law will be given effect to, unlike a law which comes in conflict with the provisions of Article 12 of the Constitution. Article 3 does not as such confer any right which cannot be abridged by a law. All that the Article 3 provides for is the right to be governed in accordance with law and law alone. Clause (b) of sub-Article (2) of Article 3 further makes in abundantly clear that no person shall be prevented from or be hindered in doing anything not prohibited by law. In fact it is not necessary to go into the concept of liberty envisaged in cause (a), sub-Article (2) of Article 3 as it will obviously follow from clause (b) of this sub-Article that unless there is a law which prohibits a person, In this case from going abroad or leaving Pakistan, no person will be prevented from doing so. It was, therefore, for the learned Attorney- General to show that there is a valid taw which empowers the Government to prevent a person from leaving Pakistan. Since I have already held that there is no valid order made in pursuance of the powers con--feered under Rule 31 of the Defence of Pakistan Rules, 1971, there is no law, which prevents the petitioner from leaving Pakistan and he, therefore, cannot be prevented from doing so.
15. I am, therefore, of the opinion that this petition should be allowed as there is no valid order passed in pursuance of exercise of powers conferred under Rule 31 of the Defence of Pakistan Rules, 1971 preventing the petitioner from leaving the country and the petitioner is, therefore, entitled to an order restraining the respondents and their officers from preventing the petitioner from going abroad.
16. In the circumstances of the case, I will however, leave the parties to bear their own costs.
ORDER OF THB COURT