' AGHA SAIF-UD-DIN KHAN, Constitutional petition is directed against the refusal by the Deputy Director (H. Directorate-General of Immigration and Passport), Islamabad, respondent No,2 herein, to issue a passport to the petitioner and to allow the petitioner to proceed abroad.
2. The petitioner is admittedly a born citizen of Pakistan, Senior practicing Advocate and a small Zimindar of District Larkana, and petitioner has remained Professor of Law College, Larkana for 15 years and contested twice for National Assembly Seat in 1988 and 1989.
3. The petitioner has never been abroad, but for the first time he applied for the issuance of passport in the years 1991, 1992, 1993 and 1994, but respondents were alleged to have avoided on one or the other pretext and have refused for the issuance of passport without affording any opportunity of hearing and without assigning any reason whatsoever. The petitioner has appended letter from respondent No,4 informing him that his request for grant Of passport facilities cannot be acceded to, dated 11th March, 1992 as (Annexure D). The petitioner has also appended a memorandum from respondent No,3 that his case is under consideration. As and when decision in the matter is arrived at he will be informed accordingly as (Annexure E).
4. Parawise comments was only filed by respondent 2 that as petitioner involved in undesirable activities which seem to be security risk to the country therefore, it is not possible for the competent authority to extend passport facilities to the petitioner. The respondents Nos.3 and 4 have adopted the comments filed by the respondent No,2.
5. That the petitioner in his affidavit-in-rejoinder has said that allegation by the respondents, are preposterous and lack details, with regard to the date time and period of alleged activities that averments by the respondents are vague and meaningless. Petitioner has contended in his affidavit-in-rejoinder that the right to travel, move and associate is a valuable fundamental right guaranteed by the Constitution of Pakistan and cannot be denied to a citizen on imaginary grounds.
6. It is one of the arguments advanced by the petitioner that no material has been placed before the Court by the respondents justifying the order refusing to issue the passport to him.
7. The petitioner has also contended that he was a member of Communist Party of India before partition of 1947 and his organization had supported the Muslim League's movement for the creation of Pakistan. Learned petitioner has also submitted that the acts and orders of the respondents are discriminatory, inconsistent, against the principles of natural justice and contrary to Articles 4, 25, 27 and such other Articles of the Constitution of Islamic Republic of Pakistan, 1973.
Petitioner has also cited cases-law, Government of. Pakistan v. Dada Amir Hyder Khan, PLD 1987 Supreme Court 504, and Mumtaz Ali Bhutto v. Government of Pakistan and 3 others PLD 1981 Kar.
98. The petitioner has, therefore, prayed for declaration as under:---
(a) To declare that the petitioner has got right to get Pakistan Passport and that the orders and letters issued by the respondents refusing to grant Pakistani Passport to the petitioner dated 11-3- 1992 and- all such other letters including 16-5-1994 are mala fide, illegal and without lawful authority.
(b) To direct the respondents to issue Pakistani Passport to the petitioner granting him full liberty of exit and entry from and to Pakistan through a writ of Mandamus.
8. Mr. Habibullah Shaikh learned Deputy Attorney-General of Pakistan or the respondents has conceded that the petitioner is very Senior Advocate, respectable person, petty Khatedar and not previous convict. He has also frankly admitted that in parawise comments by respondent No,2 no details with regard o date, time and period of alleged undesirable activities of the petitioner are mentioned.
9. We have heard petitioner in person and learned Deputy Attorney general of Pakistan and perused the record.
10. According to the petitioner it was nowhere provided that the Federal government has a discretion to issue or to refuse to issue a passport when applied for. He also, referred to Article 4 of the Constitution of 1973 which provides:-- "4.---(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(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 doing that which not prohibited by law; and
(c) no person shall be compelled to do that which the law does not required him to do.
11. The main point which arises, in the circumstances of this case, really it whether while refusing to issue the passport to the petitioners, the discretion vested in the authorities to issue or refuse to issue a passport was properly exercised? It is now established law that a discretion vested in a public authority must be exercised fairly, reasonably and in good faith.
12. In the present case, no reasons whatever were given by respondent No, to indicate why the petitioner could not be issued a passport. Such an order not proper order as without disclosing the reasons why the discretion had be exercised against the petitioner. It is not possible to say whether the discretion exercised has been exercised properly or arbitrarily.
13. Moreover, a citizen's right to travel abroad is an important aspect of t citizen's liberty and is closely related to the rights of free speech association.
14. In view of what we have stated, we feel that before a person is final refused the grant of a passport on certain grounds based on materials in t possession of the relevant authorities, the affected person has to be give opportunity of hearing. But in the instant case, petitioner was refused for t issuance of passport without assigning any reason or affording any opportunity of hearing.
15. We are inclined to agree with the enunciation of the law made in t above two citations.
16. For the foregoing reasons, we hold that the refusal by the respondent to issue passport to the petitioner is without lawful authority and of legal affect and accordingly the petition is allowed, with no order as costs.