1972 PLP 154 (SCMR)

HAMOODUR RAHMAN, C: J.‑This appeal by the Government is directed against a judgment of a Division Bench of the High Court of Sind & Baluchistan at Karachi, whereby an order cancelling the passports held by the respondents herein was declared to be illegal and to have been made without lawful authority. The only ground upon which this order of the High Court appears to have been based is that the respondents were not given either any show‑cause notice or any opportunity to explain their conduct in disregard of the principles of natural justice. The passports were issued in 1964 and 1967 respectively at Karachi to the respondents herein who are citizens of Pakistan and are carrying on business at Karachi. The respondent No. 1 is the Managing Director of Rex Talkies Limited and the respondent No. 2 is his brother. They have, in connection with their business, often to go out of the country. On 3rd of July 1969, a Superintendent of Police, Special Branch, Karachi, called upon the respondent No. 2 to hand over his passport without telling him as to why he was required to do so. The respondent No. 2 handed over his passport and was granted a receipt for it in which it was for the first time mentioned that the passport was being seized in connection with an enquiry ordered by the Director of. Immigration and Passports, Karachi. Similarly; on the 7th of July 1969, the respondent No. 1 was also called upon by the said Superintendent of Police to hand over his passport. He too was given a receipt but in his receipt no reason for the seizure of the passport was given. Both the respondents were, however, informed that they could come and collect their passports after a few days. They called repeatedly but the passports were not returned to them. Ultimately, they wrote to the appellant No. 2 namely, the Director of Immigration and Passports, Government of Pakistan, Karachi, to enquire as to why their passports were not being returned to them. The latter by his letter of the 31st of December 1969, informed them that the matter was receiving attention and further communication would follow, but no further communication was received. The respondents also wrote to the Secretary, Government of Pakistan, Ministry of Home and Kashmir Affairs, to enquire as to why their passports were being withheld, but again no reply was given. In these circumstances, they invoked the jurisdiction of the High Court under Article 98 of the Constitution of 1962. The High Court on the 3rd of April 1970, called for a report from the respondents (now appellants before us) within two weeks. The Director of Immigration and Passports on the 22nd of April 1970, obtained an extension of time for the submission of his report, but on the 23rd of April 1970, the Superintendent of Police informed the High Court that the passports had been impounded under an order of the Assistant Director of Immigra tion and Passports, Karachi, dated the 13th of June 1969, as the respondents were involved in anti‑social activities: The petition was admitted to regular hearing on the 21st of May 1970, and the Director of Immigration and Passports was called upon to produce all relevant papers through the officer who had passed the impugned order. During the pendency of the proceedings in the High Court the respondents were on the 9th of July 1970, served with further notices under section 6(1) of the Passport Act, 1920, which purported to have been issued under the signature of a Secretary to the Government of Pakistan confiscating and cancelling the Passports of the respondents. The relevant papers relating to the impugned orders were, however, not produced before the High Court. The petition was ultimately heard on the 21st of October 1970, and allowed. But curiously enough the High Court contented itself with merely granting the declaration sought for. It did not direct the return of the passports. Leave was granted in this case on the 26th of January 1971, to consider whether the principles of natural justice on which the High Court had relied were applicable in such cases. Learned counsel appearing on behalf of the appellants has contended that a passport is a document issued in the name of the State to an individual, which is intended to be presented to the Governments of foreign nations and to be used for that individual's protection as a subject of the issuing State in foreign countries. Its validity is founded upon the fact that such an official document vouches the identity and respectability of the person named therein. It is, therefore, a document issued by the State in the exercise of its political functions which are not subject to the judicial review of Courts, as it is entirely within the discretion of the State to issue or not to issue a licence. No citizen has, it is contended, any legal right to the issuance of a passport and, therefore, he cannot complain against its confisca tion which is entirely within the discretion of the State. Learned counsel has sought to support this contention of his by reference to a decision of the Peshawar High Court in the case of Manzoor Khan v. Govt. of Pakistan (P L D 1966 Pesh. 29) where it was observ ed that "a passport is not a document under which a citizen is authorised to leave that country but it is a document issued by a sovereign State requesting the other sovereign State or its functionary to give certain facilities to one of its citizens. The right to issue a passport to a citizen is recognised in a sovereign State under the well‑established rule of International Law and finally the issuing of passports is a part of the State Department's Foreign Affairs function, which is not justiciable. In other words, a Pakistani citizen has no legal right, much less constitutional right, to be issued a passport." The learned counsel has also referred to a case from the Indian jurisdiction which was referred to by the Peshawar High Court also. It appears, however, that since then in the year 1967 the Indian Supreme Court has itself taken a different view and has held that a passport is not merely a document of identity or a request for protection but in modern times it also controls exit from the State to which one belongs and without it, with a few exceptions, it is not possible to enter another State. It has become, therefore, a condition for free travel and the arbitrary refusal of a passport which completely prevents a person from travelling abroad amounts to a curtailment of the right of personal liberty which is guaranteed to him by the Constitution of that country. Vide Satwant Singh v. A. P. O., New Delhi (A I R 1967 S C 1836). This view appears to be based upon the majority decision of the United States Supreme Court in the case of Rockwell Kent v. John Foster Dulles (357 U S 116). It has much in it to commend itself since it is based on the realities of the situation. Under present day conditions it is difficult to visualize a situation in which a' citizen can go out of the country without a valid passport. It is not necessary for us, however, to decide in this case the wider question as to whether one has a legal right to the issuance of a passport, for, this appeal can be disposed of on another well‑established principle that even where a privilege or a licence has been granted by the State to a citizen it cannot be taken away arbitrarily without following the principles of natural justice. It is, no doubt, for the State in its discretion to decide, in the absence of any fundamental right to free travel, as to whether a passport should be issued or not, but once the State has in the exercise of its discretion issued a passport, can it arbitrarily confiscate it without assigning any reason and without giving any opportunity to the holder of the passport to represent his point of view. Different considerations, in our view, apply to the grant of a privilege and the withdrawal of the same after it has been granted. The grantee acquires a right to the enjoyment of the privilege in accordance with and subject to the terms and conditions of the grant and this right cannot be taken away during the term of the grant save for a cause. Hence the necessity for giving the grantee a notice to show cause and an opportunity of being heard in order to prevent an arbitrary or capricious withdrawal of the privilege. The grantee has a right to insist that the with drawal even of a privilege is made in accordance with law. Ever since the decision of this Court in the case of Faridsons v. Pakistan (P L D 1962 S C 537) it has been consistently held by this Court in a series of decisions that even in the case of administrative acts, by which the rights of a citizen are sought to be taken away or affected, the principles of natural justice have to be followed. We see no reason to depart from that principle. The High Court was, therefore, in our view; fully justified in holding that the confiscation and cancellation of the passports of the respondents were, in the facts and circumstances of this case, of no legal effect and illegal. This appeal is, accordingly, dismissed but there will be no order as to costs. If the authorities are still of the view that the passports should be cancelled, they should proceed in accordance with law after giving notice to the respondents. Appeal dismissed,