P L D 1962 (W (PLP)

INAMULLAH, J ‑This is a writ petition for quashing the order dated the 26th May 1960, whereby the petitioner has been called upon to leave Pakistan and for a writ of mandamus directing the respondents not to implement the order of externment dated the 26th May 1960, or to prosecute the petitioner in case of his failure to comply with the said order. The facts as given in the petition are these :‑ The petitioner claims to be a member of the Pawenda tribe who stay in Pakistan for six months and the other six months in a year in Afghanistan. Some of the members of this tribe have settled permanently in Pakistan and are exempt from passport or visa. The petitioner carries on money‑lending business in Karachi. The petitioner was served with a notice dated the 26th May 1960, informing him that the Government of Pakistan was not prepared to permit him to extend his stay in Pakistan beyond 30th June 1960. The petitioner by this order was asked to make arrangement to leave Pakistan. In case of failure to leave Pakistan, the petitioner was liable to be prosecuted for the contravention of the provisions of clause (7) of the Foreigners Order, 1951.

2. A counter‑affidavit has been filed by Muhammad Yunus Ali Khan P. I. Immigration, C. I. D. Branch, Karachi, on behalf of the respondents. It is stated in the counter‑affidavit that the petitioner is an Afghan national and not a person whose case will be covered by Notification issued on the 19th October 1954. According to this Notification nomads in Pakistan who leave for Afghanistan In summer are exempted from the application of the provisions of clause (7) of the Foreigners Order, 1951. The petitioner according to the counter‑affidavit does money lending business which requires his continued presence in Pakistan. The petitioner therefore, it is contended, cannot claim the exemption given by the Notification dated the 19th October 1954. The petitioner is not registered as an Afghan national with the Government of Pakistan. It is urged that the petitioner in the absence of any necessary registration certificate and residential permit for stay in Pakistan is not entitled to stay. Lastly, it is stated that according to para. 173, sub‑para. (c) of the Pakistan Passport and Visa Manual 1957 even petty traders, hawkers and Gharibkars are required to give a written undertaking that they will not engage themselves in money lending on arrival in Pakistan. Under sub‑para. (d) of para. 173 of the Pakistan Passport and Visa Manual 1957 entry visas should be refused to Afghan money lenders.

3. Mr. Riaz Hashmi, the learned Advocate for the petitioner, raised a number of points before us namely :‑ (1) that the Foreigners Order, 1951 is ultra vires, (2) that the petitioner being a Pawenda has a right to remain in Pakistan, (3) that the order does not disclose the provision of law under which it has been passed, (4) that the order has been passed by the authority without applying its mind, and (5) that the Impugned order does not give any reason. We propose to dispose of these contentions separately.

4. The contention that the Foreigners Order, 1951 is ultra vines has no force. It has been contended before us that the Foreigners Order, 1951 is a delegated legislation and therefore invalid. In this connection reliance has been placed on the case of 4 Sobo Gyanchandani v. Crown (P L D 1952 F C 29). We do not think that the impugned order is a piece of delegated legislation in the sense held in this case. Section 3 of the Foreigners Act, 1946, empowers the Central Government to make provision by an order either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into the Provinces and the Capital of the Federation or their departure therefrom or their presence or continued presence therein. Sub‑clause (2) of section 3 of the Foreigners Act in particular and without prejudice to the generality of the, power conferred under sub‑clause (1) of section 3 of the Act gives power to make provision in respect of a number of items which are not necessary to mention for the purposes of tale disposal of this petition. It was observed in the case of Sobo Gyanchandani by Cornelius, J., as he then was, as under :‑ "The difficulty which under the Increasing complexity of modern conditions, is felt by all legislatures in making provision for every case which may arise within the contemplation of a statute, renders it necessary for some measure of ancillary power to be delegated to executive authorities to make statutory rules and regulations for carrying Into effect the provisions of the statute in matters fn detail. Delegation to this extent has been universal for a great many years, and such provision will be found in a great number of statutes." The power conferred by section 3 of the Foreigners Act on the Central Government is only to carry into effect the provisions of the statute in matters of detail. The legislature by conferring on the Central Government the power to frame rules in respect of certain matters has delegated its authority only to this extent. It is not illegal as observed by Cornelius, J.

5. Under section 10 of the Foreigners Act the Central Government has power to declare that any provision of the Act by order v ill not apply in relation to any individual foreigner or any class or description of foreigner. The Central Government issued the following Notification on the 19th October 1954 :‑ "In exercise of the powers conferred by section 10 of the Foreigners Act, 1946 the Central Government is pleased to direct that the following classes of Afghan subjects shall be exempt from the provisions of clause (7) of the Foreigners Order, 1951, namely: (i) Nomads who habitually pass their winter in Pakistan and leave for Afghanistan in summer, and (ii) Dokaras and frontier villagers." A Pawenda cannot claim to be placed higher than Nomads. The petitioner does not claim to be national of Pakistan. The petitioner also does not claim to be a natural born British subject as defined in subsections (1) and (2) of section 1 of the British Nationality and Status of Aliens Act, 1914. He has also not been granted a certificate of naturalization as a British subject. He is for all practical purposes a foreigner within the meaning of the definition of `foreigner' in section 2 (a) of the Foreigners Act of 1946. The petitioner therefore has to comply with the rules and regulations applicable to the foreigners. The only protection at best that he cart claim is under the Notification of the 19th October 1954, which is reproduced above. He can come to Pakistan in winter and leave in summer as a Nomad.

6. It is true that the notice dated the 25th May 1960, does not quote the provision of law under which it is issued. It however cannot be denied that it is open to the Government of Pakistan not to permit any foreigner to stay beyond a certain date the, contention that the authority concerned has not applied its mind in passing the order dated the 26th May 1960, has no force. The Government of Pakistan is nit bound to give its reason why it does not want a foreigner to stay in Pakistan beyond a certain date.

7. We would, for the reasons given above, dismiss the writ petition and withdraw the interim order of stay of the operation of the impugned order dated the 26th May 1960. The petition is dismissed with costs. A.H. Petition dismissed.