This writ petition is directed against the order of the Assistant Director, immigration and Passport, Lahore, dated 17-9-1975 by which the renewal of the passport of the petitioner vas refused.
2. According to the facts of the case the petitioner is a Proprietor of People Publishing House, the Mall, Lahore, which is a firm for publishing arid selling books. The petitioner was holding Passport No. A C 351513, issued to him on 6-2-1968. The petitioner is alleged to have visited some countries in 1968 including LT. X. And U. S. S. R. In connection with his business. The passport was valid up to 6-2- 1969 and the petitioner, before the expiry of the period, applied for renewal of his Passport to respondent No. 2. The petitioner made several representations for renewal but respondent No. 2 neither renewed the same nor replied the petitioner's representations.
3. That respondent No. 2 in 1975 vide order dated 17-9-1975 refused to renew the Passport and the petitioner without filing an appeal against that refusal has directly challenged the order of respondent No. 2 in the present writ petition.
4. The learned counsel appearing on behalf of the petitioner has challenged the validity of the order on the ground that this order could not he passed because the issuance of a passport is a legal as well as a constitutional right and that the respondent No. 2 has not given any reason to refuse the renewal of the passport and the impugned order is mala fide.
5. Before analysing the contentions of the learned counsel this writ petition can be dismissed on a short ground that the impugned order is appealable under rule 13 of Passport Rules, 1974, which is an adequate remedy and before invoking constitutional jurisdiction of the High Court, the petitioner should have availed of the remedy of appeal. Rule 13 reads as under : "Any person aggrieved by an order or decision of the director under rule 11 may, within three months of the day on which the order or decision is communicated to him, prefer an appeal to the Federal Government.
(2) The decision of the Federal Government in appeal shall be final."
6. The director has been defined as "the 'director' means the Director of Immigration and Passports appointed by the Federal Government and includes the officer for the time being discharging the duties of the director." So under rule 13 an appeal was competent even against the refusal to renew a passport, which has not been filed and the writ petition can be dismissed on this account that an adequate remedy by way of appeal was available to the petitioner, which has not been availed but as it was admitted on 6-5-1976 it will not be appropriate to dismiss the writ petition solely on the technical ground of prematurity and the case has to be decided on merits.
7. In order to ascertain whether the issuance of a Passport is a legal and a constitutional right, it is necessary to examine the procedure of securing s passport and Its definition as to what precise right accrues to a passport holder. In order to obtain a passport an application is to be submitted under the provisions of Passport Rules, 1974 and the same is issued under these Rules. Section 3 of Act XX of 1974 (Passport Act of 1974) enjoins upon a citizen of Pakistan to get a passport before departing from the country. Previously before the enforcement of Act XX of 1974 f e. Passport Act of 1974 (hereinafter referred to as the Act) there does not appear to be any statutory provision, which prohibits a person from leaving Pakistan without a Passport, but now under section 3 of the Act, a specific restriction has been imposed. The provision of the Act 'reads as under : "No citizen of Pakistan shall
(a) depart from Pakistan by any means whatever unless he is in possession of a passport, nor otherwise than from such port or place, by such route and in accordance with such conditions, as may be prescribed = or
(b) visit a foreign country unless his passport is valid for such country"
The bare reading of the section shows that if a citizen of Pakistan has to leave the country for abroad he is required to secure a Passport. The Passport is defined by section 2(a) as under : `2(a)-'Passport' means a passport which is for the time being valid, and includes any such permit, or other travel document authorising the holder thereof to travel from Pakistan to any other country, issued by or under the authority of the Federal Government."
8. According to the definition of passport In Wharton's Law Lexicon, Thirteenth Edition t "'Passport', is a licence for the safe passage of any one from one place to another, or from one country to another."
"It is a document issued in the name of the Sovereign on the responsibility of a Minister of the Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individual's protection as a British subject in foreign countries, and it depends for its validity upon the fact that the Foreign office in an official document vouches the respectability of the person named."
An analysis of the various definitions referred above, the true import of the word passport can be summed up in the following words : "A passport is a document of identification and nationality and the issuance of it entitles the recipient the benefit of the projection by the Government issuing it, when a holder, of a passport goes to a foreign country, the very existence of passport takes with it an implied request to the Foreign Government to allow the bearer of the Passport free passage and afford a free assistance and necessary protection."
9. It means that if a passport is issued by the Government to its citizen then Government takes up the responsibility to ensure that the Foreign Government, where the citizen goes is giving necessary protection and assistance of free passage.
10. The case of than respondent is that the refusal to renew the passport is justified on the ground that the petitioner was busy in subscribe activities against the Government ire a Foreign Country.
Even if a Passport has been asked to the petitioner, the latter cannot be permitted to continue with subversive activities against national interest and this fact itself may be a sufficient justification for refusing the renewal of passport under section 8 of the Act. Section 8 reads as under : "8(1).-A passport issued by or on behalf of the Federal Government shall be the property of the Federal Government and may, by an order under the baud of a Secretary to the Government of Pakistan, be required to be returned and shall also be liable to be cancelled, impounded or confiscated by a like order."
The bare reading of the section "--ill indicate that the Passport is treated as a property of the Federal Government, and the words "may be required to be returned" are to be interpreted that the Federal Government can get back its property whenever it is so desired. The language used in the section indicates that no right has been created for the person in whose favour it is issued so a desire to renew a passport cannot be termed as a legal right.
11. It can be examined from another respect. The issuance of passport makes the government liable to ensure that the Foreign Government is providing adequate protection and necessary facilities. If the issuance of passport is considered to be a legal right it will appear very strange that if once a passport is issued inadvertently or rightly to a citizen and the latter Starts subversive activities against national interest in a Foreign country, the question would arise whether the Government issuing the passport can still be compelled to see that the foreign country is providing adequate protection to the undesirable citizen. If issuing of passport is considered as a legal right, then the Government will be under liability to support any citizen even if he may be very undesirable. Thin provision cannot be given such interpretation, which would lead to absurdity and on this score also this cannot be treated as a legal right.
12. The neat question would be whether it is a constitutional right? The learned counsel for the petitioner has invoked Article 15 of the Constitution dealing with the fundamental rights, which reads as render : "15. Freedom of movement, etc.-Every citizen shall have the right to remain in, and, subject to any reasonable restriction imposed by taw in the public interest, enters and move freely throughout Pakistan and to reside and settle in any part thereof."
This objection can be answered summarily by referring to Chief Martial Law Administrator Order No. 1 of 1977 i.e. The Laws (Continuance in Force) Order of 1977 by which all Fundamental Rights have been suspended and cannot be enforced. Para. 2(3) of the Order reads as under :- "2(3).-The Fundamental Rights conferred by Chapter I of Part II of the Constitution, and all proceedings pending In any Court, in so far as they are for the enforcement of any of those rights, shall stand suspended."
So with the enforcement of Martial Law in the country, it cannot be pressed into service.
13. Anyhow this question will also be answered on merits. Article 15 of the Constitution guarantees the citizens to walk freely throughout the territory of Pakistan subject to certain reasonable restriction imposed by law in the public interest. The freedom of movement as envisaged by this Article is confined within the country of Pakistan. Pat the passport is issued to enable the national of the country to travel abroad not within the country of Pakistan but outside the territorial limits of the country. AF pointed out earlier previously there was no restriction that while leaving Pakistan a national is required to secure a passport but now under section 3, a statutory restriction has been imposed, and the right of exit depends upon his ability go secure a passport and if a citizen is denied a passport he may not be able to leave his country or to enter other countries. Article 15 of the Constitution does not speak about free movement of a citizen in a foreign country. There is no specific prevision in the Constitution that any citizen will be provided a passport. On the basis of Article 15, it cannot be inferred that it is a constitutional right to secure a passport. There is, therefore, no force in the contention of the learned counsel as far as first point is concerned as the issuance of a passport is neither a legal nor a constitutional right and as such the writ is not maintainable.
14. As far as the second contention of the learned counsel for the petitioner is concerned that reason must have been given for the refusal of renewal of the passport, it may be clarified that issuance of a passport is part of the Government Department Foreign Affairs, which is generally beyond any judicial review and the Courts generally refuse to interfere in any matter relating to Foreign affairs. The policy decision as to whom the passport should be issued and who is to be refused is not governed by any statute i.e. There is no statutory provision laying down the qualification for eligibility to hold a passport, it is purely an executive function and the issuing authority is the best Judge to refuse or to allow the renewal of passport. The discretion in such circumstances is always of subjective satisfaction of the Executive and is not amenable tea judicial review. So in such circumstances there vas no obligation tea assign any reason for refusing to renew the passport. The second contention of the learned counsel for the petitioner is without force.
15. As far as the male flee order is concerned the respondent has specifically stated to the written statement that the petitioner---s book business was used as a camouflage for his undesirable activities in a foreign country. The detail of male fide has not been given by the petitioner and the respondent have assigned a specific reason for refusing to renew the passport. In such circumstances the bald plea of male fide cannot be entertained nor there is any evidence on the record to show that it was a malafide order.
16. In view of this matter, the writ petition of the petition is dismissed with costs.