' Rana Ijaz Ahmad Khan petitioner is an Advocate of the august Supreme Court of Pakistan and of the Lahore High Court, Lahore. He is a Member of Pakistan Bar Council; Vice-Chairman, Pakistan Bar Council and Chairman, Human Rights Committee of Pakistan Bar Council. He was issued Passport No,AB 913158 on 17-5-1994 for a period of five years which expired on 16-5-1999. He applied for renewal/issuance of a fresh passport on 28-5-1999. He deposited the relevant fee and got fulfilled all the codal formalities. However, he has not been issued the fresh passport who contacted the Assistant Director Emigration, FIA, Incharge Passport Cell, Qila Gujjar Singh, Lahore/respondent No,3 in his office. He was intimated that his name was entered in Exit Control List since 1991 due to pendency of a case under the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 titled as Punjab Cooperative Board for Liquidation v. The Prime Industrial Cooperative Development Society Limited. He was informed that the fresh passport could not be issued in his name. Feeling aggrieved the petitioner filed this writ petition to get declared the acts of the respondents for enlisting his name in Exit Control List and refusal for issuance of the fresh passport to him as illegal, mala fide, arbitrary and without jurisdiction. He pleaded that the dispute about the Industrial Cooperative Development Society was pending and that previously as well he filed Writ Petition No,5942 of 1993 when he was allowed to leave the country by the Lahore High Court, Lahore. He maintained that prior to the enlisting of his name in Exit Control List no notice was served upon him and that with the pendency of the aforesaid proceedings, no constraint can be placed upon his leaving the country.
2. The comments have been submitted wherein it has been mentioned that the name of the petitioner was entered in the Exit Control List and that under section 2(2) of the Exit from Pakistan (Control) Ordinance of 1981 no show cause notice was required to be issued to the writ petitioner. It was expressed therein that the petitioner was allowed one time permission on surety of Rs,3 million to leave the country. In the comments' it is narrated that no formal request for removal of the name of the petitioner has been received from him.
3. I have heard Rana Ijaz Ahmad Khan petitioner in person, his learned Advocate and the learned Deputy Attorney-General. Learned counsel for the petitioner argued that the name of the petitioner was entered in the Exit Control List vide order, date 30.9-1991 while he filed Writ Petition No,5942 of 1993 and on furnishing the security of Rs,3 million he was allowed to leave the country vide order, dated 29--6-1993 passed by this Court. He maintained that the aforesaid order was still operative and that the petitioner cannot be vexed twice either under the criminal law or under the civil law with respect to his departure from the country. He maintained that there is no provision in the Passports Act, 1974 making competerit the Federal Government to withdraw the facility of issuance of passport in his name on the ground that his name was entered in the Exit Control List. He added that after the aforesaid order, dated 29-6-1993 passed in Writ Petition No,5942 of 1993 he has left Pakistan to different countries in the world without objection many times and that impugned fresh objection in the matter is simply uncalled for and unjustified. He added that in view of the infringement of petitioner's Constitutional right he need not make the representation before any authority about the issuance of the fresh passport. On the contrary learned Deputy Attorney- General laid the emphasis that Rana Ijaz Ahamd Khan petitioner has to pay sufficient amount and that he cannot leave the country who had rightly been denied the issuance of the passport and put on the Exit Control List. He maintained that the Federal Government has the vast powers in this regard and that without making the representation in the matter this writ petition cannot proceed.
4. I hold that the reasoning adopted by the learned counsel for Rana Ijaz Ahamd Khan Petitioner has to prevail. With respect to the status of Rana Ijaz Ahmad Khan suffice it to express that it is the admitted position that he is an Advocate of the Supreme Court, High Court, Member, Pakistan Bar Council, holding the highest pedestal amongst the lawyers being the Vice-Chairman, Pakistan Bar Council who is also the Chairman-Human Rights Committee of Pakistan Bar Council. The narration of his aforesaid status is enough to make out that Rana Ijaz Ahmad Khan enjoys enviable reputation in the legal field.
5. With respect to the placing of his name in the Exit Control List following relevant portion from Notification, dated 30-9-1991 is reproduced as under for the sake of convenience:-- ' "No,1/2/91-C.A.
Government of Pakistan ' Directorate General of Immigration and Passports (Headquarters)
Islamabad the 30th September, 1991.
' Mr. Hazrat Amin, ' Assistant Director (Policy).
(1) All Immigration Check Posts in Pakistan.
(2) All Passport Issuing Authorities at home. Exit Control List.
' I am directed to refer to the subject mentioned above and to say that it has been decided by the Ministry of Interior and Narcotics Control (Interior Division) that the names of the following individuals may be included in the Exit Control List, circulated vide this Directorate General Letter No, 1/2/89-Policy, dated 11th July, 1989.
Name Father's Name Address Ijaz AhmadRana Rehmat Ali.Chairman, Prime Indus. Coop. Devp.
Society Ltd., 1-C, Khan, RanaShadman Race Course Road, Lahore, 236-Z, Phase-III, LCCHS, Lahore.
(Sd).
(HAZRAT AMIN)
ASSISTANT DIRECTOR (POLICY)."
6. No fresh Notification after 30-9-1991 stands issued placing the name of writ petitioner in the Exit Control List. Rana Ijaz Ahmad Khan filed Writ Petition No,5942 of 1993 before this Court against the placing of his name in the Exit Control List wherein following orders, dated 19-6-1993, 23-6-1993 and 29-6-1993 were passed by my learned brother Riaz Ahmed,.J. (as his lordship then was):-- "19-6-1993. Rana Ijaz Ahmad Khan, Advocate (petitioner in person)
' The learned counsel submits that without any justification and basis, his name has been placed on the Exit Control List. Mr. Faqir Muhammad Khokhar, Deputy Attorney-General who is present in Court in connection with another case, has been asked to accept notice in this case. He shall obtain necessary instructions from Interior Division and shall appear in this Court on 27th of June, 1993.
' 27-6-1993. Rana Ijaz Ahmad Khan, Advocate in person.
' Petitioner states that he has deposited Rs,40 lacs with the Board. Mr. Faqir M. Khokhar, the learned D.A.-G. Has not appeared. He is at Rawalpindi. He is directed to appear before this Court on 29-6- 1993.
' 29-6-1993. Rana Ijaz Ahmad Khan, Advocate petitioner in person. Mr. Faqir Muhammad Khokhar, Deputy Attorney-General.
' Mr. Najaf Hussain Shah, Legal Advisor to the Liquidation Board.
' A letter sent by the Office of Registrar, Cooperative Societies addressed to the Deputy Attorney- General has been placed on the record. According to this letter, the petitioner was the Chairman of the Prime Industrial Cooperative Development Society Limited and after the promulgation of Provincial Ordinance, this Cooperative Society was declared undesirable and assets thereof had been frozen. The letter further indicates that huge amount is due and, therefore, the case has been referred to the Board for seeking instructions which are still awaited.
' Rana Ijaz Ahmad Khan states that in fact he has also lodged his own claim with the Board as huge amount is due to him and the same has to be determined. It is contended by the petitioner that pending determination of the issue before the Board, he cannot be detained and the insertion of his name in the Exit List preventing him from proceeding abroad is without lawful authority and jurisdiction.
' In the peculiar circumstances of this case, I would direct Rana Ijaz Ahmad Khan to furnish security in the sum of Rupees three million but the furnishing of the security will not be considered as proof of his liability. The same is to be determined on its own merits.
' This will be a personal security.
' In this view of the matter, the petitioner is permitted to proceed abroad. With these observations, this petition stands disposed of.
(Sd.)
(Riaz Ahmad), Judge."
7. The aforesaid reproduced final order, dated 29-6-1993 has made out that the writ petition filed by Rana Ijaz Ahmad Khan petitioner against the placing of his name in Notification, dated 30-9- 1991 was not allowed to be acted upon, was ignored and was thus set aside. It was thereafter, that no objection was raised and on the basis of his Passport No,AB 913158, since expired on 16-5-1999, Rana Ijaz Ahmad travelled out of Pakistan to different countries which fact stands projected from his expired passport:-- S.No. Date Country
1. 22-7- 1994U. K.
2. 19-8- 1994Canada
3. 19-8- 1997U.S.A
4. 31-7- 1997U.K
5. 21-6- 1998Dubai
6. 24-6- 1996U.K
7. 26-4- 1999India
8. The departure of Rana Ijaz Ahmad than from Pakistan to different foreign countries on the aforesaid dates is enough to make out that the Government of Pakistan was not acting upon relevant Notification, dated 30-9-1991 placing the name of Rana Ijaz Ahmad Khan in the Exit Control List. It is abruptly after the expiry of the Passport No,AB 913158 on 16-5-1999 that the fresh objection qua him has been raised while the reliance has been placed on aforesaid Notification, dated 30-9- -1991 and the refusal for the issuance of fresh passport has been made. No material has been placed by the Secretary, Interior Division, Government of Pakistan, Islamabad to justify about taking the benefit of aforesaid Notification, dated 30-9-1991 afresh. Hence it can safely be held that the respondents are debarred through the attraction of principle of estoppel from relying upon and acting upon the aforesaid Notification, dated 30-9-1991.
9. I hold the view that order, dated 9-6-1993 still holds the water and is operative and ignoring the same is without lawful authority. In the criminal field there is section 403 of the Code of Criminal Procedure according to which a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while conviction or acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236 of the Code of Criminal Procedure or for which he might have been convicted under section 237 of the Code of Criminal Procedure. It means that on the basis of the same criminal charge one person cannot be vexed twice and stopping the petitioner to go out of country would be nothing but punishment. Even in the field of civil matters there is section 11 of the Civil Procedure Code containing the famous principle of res judicata. According to it on the basis of the same cause of action, between the same parties, on the disposal of the first civil suit either way, fresh suit is not maintainable. It is also based on the same principle that in the field of civil litigation as well no person can be taxed and vexed twice. If such order or desire is approved and affirmed as required by the learned Deputy Attorney-General that would be giving a free hand to the Administration and thus the writ petitioner would be facing technical knockout which would be nothing but entrapping him into a blind' alley.
10. Learned Deputy Attorney-General relied on Miss Naheed Khan v. Government of Pakistan and another (PLD 1997 Karachi 513) (D.B.) (decided on 29-5-1997) and canvassed that the Federal Government has been empowered to prohibit by an order any person or class of persons from proceeding from Pakistan to a destination out of Pakistan. On the contrary learned counsel for the petitioner placed the reliance on Wajid Shamas-ulHassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad (PLD 1997 Lahore 617) and argued that a duty is cast on every tribunal to give reason for its decision which is lacking in the instant dispute as the relevant Notification, dated 30-9-1991 has not been ornamented with any reason. He also relied on Saleem Akhtar v. Federation of Pakistan and another (PLD 1999 Karachi 177) (D.B.) (decided on 12-11-1998) and laid the emphasis that in the absence of any material against the petitioner the restriction restraining the petitioner from proceeding abroad could not be imposed. I would express that the rulings relied upon by the learned counsel for the petitioner and the reasoning adopted therein are of all help to Rana Ijaz Ahmad Khan petitioner. With respect to his liability in the matter of payment of some amount, the dispute has already been settled by this Court on 29-6-1993 and thereafter not only once but for several different times he has gone abroad. Consequently it is held that on the basis of order, dated 30-9-1991 Rana Ijaz Ahmad Khan petitioner cannot be restrained from going abroad through the placing of his name in the Exit Control List.
11. It is the stage to consider the grievance of the petitioner that the issuance of fresh passport has been banned without any factual or legal justification. The respondents have taken the exception in the matter on the basis of order, dated 30-9-1991 placing the name of Rana Ijaz Ahmad Khan in the Exit Control List. However, this stand of the respondents has not been given the weight in my above findings. This being the position Rana Ijaz Ahmad Khan, petitioner cannot be refused his right to obtain the fresh passport after the expiry of his passport on 16-5-1999. It would be proper to refer to the Passports Act, 1974 at this stage. Section 3 deals with the prohibition of departure from Pakistan without passport. Section 4 contains the quantum of punishment for contravention of section 3. In section 5 the acts to be deemed contravention of section 3 have been enumerated.
Section 6 deals with the penalties for certain offences relating to passport. Section 7 deals with the power of arrest, seizure etc. The power to cancel, impound or confiscate a passport is narrated in section 8 which reads as under:-- "8. Power to cancel, impound or confiscate passport.---(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 head of a Secretary to the Government of Pakistan, be required to be returned and shall be liable to be cancelled, impounded or confiscated by like order.
(2) Subject to subsection (3), before making an order under subsection (1) in respect of the passport issued to any person, the Federal Government shall give such person notice in writing calling upon him to show cause why the order should not be made: Provided that no such notice need be given in the case of an order impounding a passport for a period not exceeding four months and such order which shall take effect as soon as it is made.
(3) If the Federal Government has reason to believe that the person in respect of whose passport it is proposed to make an order under subsection (1) is, or has been, engaged in subversive activities or in activities which are prejudicial to the interest of Pakistan or Pakistan's relations with any foreign power, it shall not be necessary to give such person the notice provided for in subsection
(2) or to afford him an opportunity of being heard.
(4) Any person in respect of whose passport an order under subsection (1) has been made in the circumstances referred to in subsection (3), may within thirty days of the date of the order, apply in the Federal Government for a review of the order; and the decision of the Federal Government in review shall be final."
12. Section 9 deals with the burden of proof to the effect that a statement made in any document used for obtaining passport is true shall lie on the person making the statement. Section 10 deals with indemnity. Section 11 covers the delegation of powers. Section 12 pertains to power of the Federal Government to exempt any person from the provisions of the , Act. Section 13 deals with the power to make rules.
13. Learned counsel for the petitioner has correctly referred to Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 which provides that (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 any other person for the time being within Pakistan. Within the meaning of the Passports Act, 1974 no material has been produced to make out that the right of the petitioner to obtain the fresh passport after expiry of the previous passport can be interfered by the Federal Government.
Section 8 of the Passports Act, 1974 deals with the power to cancel, impound or confiscate the passport. It is the admitted position that Rana Ijaz Ahmad Khan petitioner has not engaged himself in subversive activities or in activities which are prejudicial to the interest of Pakistan or Pakistan's relations with any foreign power. Since the petitioner was provided the right to obtain the passport which stands expired on 16-5-1999, he has the right to get the same continued to acquire the fresh passport. Keeping in view the import of section 8 of the Passports Act, 1974, I hold that the right of acquisition of fresh passport cannot be denied to the writ petitioner.
14. Agreeing with the learned counsel for the petitioner I would express that provisions of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 confer very wide powers on this High Court for the enforcement of fundamental and legal rights. It would be proper to express that Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 provides remedy for the infringement of the fundamental and legal rights of a person. However, the condition precedent to the granting of any relief under the said Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 depends on existence of fundamental and legal right of a person and of infringement of such right.
Further the right which is the foundation of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is a personal and individual right which may be statutory right recognized by law. A person can be said to be aggrieved when he was denied a legal right by someone who had legal duty to perform relating to that right. The Constitutional right and the legal right of the petitioner stands infringed through the order of denial of the issuance of fresh passport to him. I am, therefore, inclined to hold that the impugned orders are void ab initio. The petitidner is competent to invoke the Constitutional jurisdiction of this Court notwithstanding the fact that he has failed to make any representation to the Federal Government for the redress of his grievance.
15. For what has been said above, I accept this writ petition and direct the respondents to issue the fresh passport in favour of Rana Ijaz Ahmad Khan petitioner due to the expiry of his previous Passport No,AB 913158 on 16-5-1999, within a period of 15 days from today, if his petition is still pending with the Assistant Director, Passports Cell, Lahore and if the same has been returned to him the needful shall be done within a period of 15 days from the date of the making of the fresh application. Rana Ijaz Ahmad Khan petitioner shall be entitled to leave Pakistan to any country on the basis of valid visa.