P L D 1966 (W (PLP)

It will be plain from the language of subsection (1), reproduced above, that only "persons entering Pakistan shall be in possession of passports". In other words, the Passport Act does not at all deal with the movement of the citizen within the territory of Pakistan, but conversely relate exclusively "to the entry in Pakistan" or any part thereof without a passport (vide section 3 of the Passport Act, reproduced above).

4. For the proper understanding of the case, it will be advantageous to examine the true import of the term "Passport". The true meaning of this term can be gleaned from the following passage of the judgment of Lord Alverston, C. J. in Rex v. Brailsford ((1905) 2 K B 730 p. 745 (A)). "It will be well to consider what a passport really is, 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 Government 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." In Wharton's Law Lexicon, 14th Edition, p. 741, the term has been defined thus:‑

"By its terms, it requests and requires in the name of the sovereign all those whom it may concern to allow the bearer to pass freely without let or hindrance and to afford him every assistance and protection of which he may stand in need." In Halsbury's Laws of England, Vol. 6, at page 519 the term has been defined thus:‑ "Passports may be granted by the Crown at any time to enable British subjects to travel with safety in foreign countries, but such passports would clearly not be available so as to permit travel in an enemy's country during war." A foot‑note adds the following:‑

"The possession of passport is now almost always required by the authorities to enable a person to enter a country." The nature and purpose of an American passport has been defined as follows: "The American passport is a document of identity and nationality issued to persons owing allegiance to the United States and intending to travel or sojourn in foreign countries. It indicates that it is the right of the bearer to receive the protection and good offices of American diplomatic and consular officers abroad and requests on the part of the Government of the United States that the officials of foreign Governments permit the bearer to travel or sojourn in their territories and in case of need to give him all lawful aid and protection. It has no other purpose. (Hackworth's Digest of International Law., Vol. III, p. 435."

5. Judged in the light of the above discussion a passport is not a document under which a citizen is authorised to leave that country but it is a document issued by sovereign State requesting the other sovereign State or its functionary to give certain facilities to one of its citizens. The rights to issue passport to a citizen are recognised in a sovereign State under the well‑established rule of International Law and finally the issuing of passport is a part of the State Department's Foreign Affairs function, which is not justiciable. In other words, Pakistani citizen has no legal right, muchless Constitutional right, to be issued a passport.

6. So far I have been discussing the case utremmelled by any case‑law though this very point stands concluded by the decision in V. G. Row v. The State of Madras (A I R 1954 Mad. 240). Rajamanner, C. J., in a classical judgment after critical review of the case law and other literature on the subject refused to assent to the proposition that a citizen of India had any legal right to the passport. I may profitably extract the following passage of the judgment at page 244, para. 20: "We are also of the opinion that the reliefs which the petitioner seeks at our hands are not found on any legal right. The passport gives to the recipient the benefit of the protection of the Government issuing it. But can it be said anyone has got a right to obtain a passport to any particular country? We think not. Even when a passport has been granted to an individual, the State cannot be compelled to exercise its protection over that individual in a foreign country. `The matter is absolutely in the discretion of every State, and no citizen abroad has by International Law a right to demand protection from his home state, although he may have such a right by Municipal Law' (Oppenheim's International Law, 7th Edition, Vol. I, page 626). There is no such Municipal Law in this country. All that may be, said is that a passport gives .a person certain facilities to travel in foreign countries. The Government issuing the passport `requests' the foreign Government to allow the bearer free passage and also to afford every assistance and protection necessary. No citizen can compel the State to make such a request on his or her behalf. In the absence of legislation it would be open to the Government to decide on each application whether or not make such a request in respect of the concerned individual. If the Government think that it would not be in the best interests of the country that such a request should be made on behalf of any particular individual, it would be open to them to refuse to, issue a passport." It would also be pertinent to extract the opinion of S. A. Desmith on the book "Judicial Review of Administrative Action". First Edition. At page 118 the learned author expresses himself thus:‑-- "It is arguable that where the scope of a statutory discretion almost eliminates the possibility of judicial review of the merits of its exercise, there is all the more reason why the authority concerned should be obliged to listen to representa tions before it act. This argument is also applicable to the exercise by the Foreign Secretary of his powers to refuse and withdraw passports‑powers which, inasmuch as they derive from the royal prerogative, are unreverable on any ground whatsoever." At page 188 the learned Author while discussing the subject "Excess or Abuse of Discretionary power" says:‑ "If it is claimed that the authority for the exercise of a discretion derives from the royal prerogative, the Courts are limited to determining whether the prerogative power exists and whether it has been exercised in the appropriate form they cannot review the adequacy of the grounds for exercising the power." In the footnote the learned author has referred to the following authorities, and expressed himself thus:‑-- (R. v. Allen (1862) 1 B & S 850; Musgrove v. Chun Teeong Tov (1891) A C 272 and Bugsier Reederei‑und‑Bergungs A/G v. S. S. Brighton (1951) 2 T L R 409). "Among the consequences of this rule are that the Courts are unable to review the grounds for refusing or withdrawing a passport or for interning any enemy alien under the prerogative in war time."

7. The learned counsel for the petitioner, on the strength of certain observations in the decision of Nazir Muhammad v. A. Briganza and another (P L D 1957 Kar. 907) argued that V. G. Row's case "was not rightly decided". On a careful reading of the judgment in this case, we are clearly of the view that the facts of that case were not apposite or at par with the facts giving rise to the present case, and therefore, can be of no assistance to the petitioner. In this case a writ petition had been filed by one Nazir Muhammad, whose business was to present applications and obtain passports for persons intending to go; out and he approached the passport office with the application on behalf of Abdul Rasul B. Damani for issue of passport but the Passport Officer refused to permit him to enter the premises of the Passport Office or entertain application on: behalf of Abdul Rasul B. Damani and in doing so the respondent No. 1 acted under a notification issued by the passport office and notified in the "DAWN" under which applications For passports were not to be entertained in future by the passport offices through the Passport agents, who were not registered with the International Air Transport Association. Their Lordships in the course of judgment at page 910 in regard to the decision in V. G. Row v. The State of Madras, observed:‑

"This case no doubt supports the contention of the learned counsel but after careful consideration we have come to the conclusion that this case was not rightly decided." It will, therefore, be clearly obvious that the question raised in Nazir Muhammad's case was not whether a citizen of Pakistan had a legal or Constitutional right to get a pas,port, but whether the notification issued by the passport office refusing to allow passport "through the passport agents who were not registered with the International Air Transport Association" was valid, and therefore, the observations are clearly in the nature of obiter dicta, and with profound respect are not binding on us.

8. For all the foregoing reasons, the writ petition must fail and is hereby dismissed in limine. S. Q. Petition dismissed.