P L D 1969 Lahore 908 (PLP)

(a) Constitution of Pakistan (1962), Art. 6, Fundamental Right No. 5‑Object‑Freedom of movement‑Whether right of freedom to move freely throughout country embodies within it, as a compo nent part thereof, the right to step out of, or into, Pakistan (Quaere)‑[Per Muhammad Akram, J.]. The main, if not the sole, purpose behind this safeguard in Fundamental Right No. 5 of the Constitution is to remove all territorial barriers within the country for the citizens of Pakistan. It is designed to be a check against provincialism, regional dis. crimination and all parochial considerations. To a citizen of Pakistan, the whole of this country, the East and the West, is his cherished home freely and equally accessible to him. Subject to any reasonable restrictions imposed by law in the public interest, he is free to move about, settle and reside in any part of the territory throughout Pakistan. But the converse of it may not be true and it does not necessarily follow that a citizen of Pakistan has no freedom of movement at all to leave his country. On the contrary, on a deeper consideration, one might as well ask if this freedom of movement throughout the country embodies within it, as a component part and parcel thereof, the right to step out or into this country at the moment he is crossing its borders. Rex v. Brailsford and another (1905) 2 K B 730 and Manzoor Khan v. Government of Pakistan P L D 1966 Pesh. 29 ref. (b) Constitution of Pakistan (1962), Art. 6, Fundamental Right No. 1‑Word "liberty"‑Connotation‑Freedom of locomotion, part of liberty of people‑Personal liberty of individual includes enjoyment of undeniable right vested in him to go abroad for travel and to return to his country‑Such right, however, subject to regulation and control bi, valid law‑[Per Muhammad Gul and Muhammad Akram, JJ. contra]. Per Muhammad Akram, J.‑ The freedom of locomotion is a part of the liberty of the people. The Fundamental Right No. 5 affords protection to the citizens of Pakistan. But Fundamental Right No. 1 is more extensive in its application to all persons and is in the nature of a safeguard for the personal liberty (jus personarum) in the people. In Pakistan the personal liberty of an individual is secured to him under the Fundamental Right No. 1 in the Constitution and as a necessary corollary flowing from this he also enjoys the undeniable right vested in him to go abroad for travel and to return to his country again. But this is by no means an absolute and unqualified right. It has its own limitations and the restric tions imposed on it under the Constitution. Fundamental Right No.1 itself provides that no person shall be deprived of his life or liberty "save in accordance with law". So that the liberty of free movement in a person to go abroad is strictly subject to and regulated and controlled by the provision of any valid law for the time being in force in the country. He is bound by and subject to the law of the land, which must be obeyed. Blackstone's Commentaries, Vol. I, p. 134 ref. A. K. Gopalan v. State of Madras A I R 1950 S C 27; (1952) 61 Yale Law Journal 171 (203); Kent v. Dulles 357 U S 116; Aseerwatham v. Permanent Secretary, Ministry of Defence and External Affairs and others Journal of the Inter national Commission of Jurists, Vol. VI, No. 2, p. 319; Winter (1965 Part) and Satwant Singh Sawhney v. The Government of India Journal of the International Commission of Jurists, Vol. VIII, No. 2, p. 134 (December 1967 Part) rel. V. G. Row v. The State of Madras A I R 1954 Mad. 240 distinguished. Fundamental Right No. 1 occurs under the caption "Security of Person" which stands in sharp contrast with caption of Funda mental Right 5, which guarantees "Freedom of Movement" The word "security" in the caption is plainly used in the sense of protection so as to guarantee freedom from physical restraint. The word "deprived" in the operative part of the provision which qualifies both "life and liberty" is equally significant. According to Blackstone's Commentaries, Book I, p. 134, "deprivation" means total loss and therefore has not the same meaning as restrictive of free movement. What is sought to be protected by Fundamental Right No. I is loss of life and personal liberty, that is to say, freedom from physical restraint of person and by incarceration as distinguished from restriction or partial control of the right to move freely. Else the word "deprived" would be inapt grammatically when used with reference to "life". If the word "liberty" in Fundamental Right No. l is understood in its generic sense so as to comprehend within its connotation, freedom of "universal locomotion" in any part of the world, then Fundamental Right No. 5 which guarantees freedom of movements to every citizen to move throughout Pakistan would be reduced to a redundancy: in effect it would be a repetition of what has already been ordained in Fundamental Right No. 1, which is avail able to every person, citizens and alien alike. Conversely, no such anomaly would arise, if we were to understand the word "liberty" in the sense of personal liberty of an individual, that is to say, freedom from restraint or incarceration. This would be in accord with the principle of interpretation that it must be read as whole with a view to determining the intention of each part, and the construction must be uniform and harmonious. Alleger v. State Lousinia (1897) 165 U S 578; Mayer v. 1Vebraska 262 U S 390; Gopalan's case A I R 1950 S C 57; Bolling v. Sharp 347 U S 497 (49)); Jabindra Kishore etc. v. Province of East Pakistan P L D 1957 S C (Pak.) 9 and East & West Ship ping Steamship Company v. Pakistan P L D 1958 S C (Pak.) 41 rel. Kent v. Dulles 357 U S 116 held not applicable. (c) Foreign Exchange Regulation Act (VII of 1947)‑ Act primarily penal and not preventive in its application, effect and consequence. Foreign Exchange Regulation Act, 1947 does not envisage and forestall any action to prevent the breach of its provisions. It is primarily penal and not preventive in its applications, effect and consequences. (d) Foreign Exchange Regulation Act (VII of 1947), Ss. 8(I) & 23‑Actual contravention of provisions, attempt to contravene or abetment thereof alone actionable under sections read together Government having reasons to believe that a person while abroad "is likely to receive funds and import same into Pakistan without allowing such funds to be dealt with under Foreign Exchange Regu lation Act", directing State Bank to refuse permission to him to proceed abroad‑Person, in circumstances, held, could at best be said to have made some preparation but no direct movement, or overt act or attempt for evasion of Act‑No actionable wrong having been committed, such person not guilty of any evasion cognizable under S. 8(1) read with S. 23 or any other provision‑Government or State Bank, held, not empowered to act in anticipation and to refuse permission‑Refusal of permission, in circumstances, held, unwarranted, misconceived and premature. The only allegation against the petitioner was that on the secret information received, the Government had reasons to believe, that, the petitioner if allowed to go abroad, "is likely to receive funds and import the same into Pakistan without allowing the funds to be dealt with under the Foreign Exchange Regulation Act, 1947." At best, according to these allegations, so far there had been some preparation, but no direct movement or an overt act and an attempt on the part of the petitioner for the evasion of this Act. As such he did not appear to have committed any actionable wrong till then. This law, as it stands, does not take cognizance of the mere apprehension or even the belief in the mind of the respondent that the petitioner was likely to commit an evasion of the Act if allowed to go abroad. Therefore, the petitioner cannot be held guilty of any evasion cogniz able under section 8 (1) read with section 23 or any other provisions of the Act. Moreover, under none of these provisions the respondents ‑ were empowered to act in anticipation and refuse to issue the permission to the petitioner to go abroad on the ground that he was likely to commit an evasion of the Act in the foreign country. In these circumstances, the impugned action taken against the petitioner was unwarranted, misconceived and on the very face premature. (e) Maxim: actus non facit reum nisi mens sit rea (the intention and act must both concur to constitute the crime)‑Offence

Three stages in commission of crime: intention, preparation and attempt‑Mere intention to commit offence not followed by vicious act does not constitute offence. There are three stages in the commission of every crime. First comes the intention to commit; secondly, the preparation for it and thirdly the attempt to commit the crime. If after the third stage the attempt is successful the crime is complete. In case, however, the attempt has failed, the crime is not complete. Nevertheless the attempt towards the commission of the offence is made punishable under the law. In considering a series of transactions which go to constitute an offence one must bear in mind all the developments. There is a well‑known maxim of the criminal law: "actus non facit reum, nisi mens sit rea" (the intention and act must both concur to constitute the crime). The law does not take notice of the bare intention, however, vicious without the act. In this respect Lord Mansfield has held that "so long as act rests in bare intention it is not punishable by our law." Mere intention to commit an offence, not followed by the vicious act, does not constitute an offence. After the mind has been made up, next comes the preparation to commit the crime. It consists in devising ways and means and adopting certain preliminary measures necessary for the commission of the offence. It proceeds and differs widely from the `attempt' which is the direct movement towards the commission after the prepara tion has been completed. These two stages must be distinguished. In general during the preparation stage the offender has the locus poenitentiae, may change his mind and the overt acts already done by him do not constitute the offence. The mere prepara tion to commit an offence which leads to nothing, unless it is followed up, does not constitute the crime, much less its abetment . In re: Ghulam Mahomed 13 PR 1879 ref. (f) Foreign Exchange Regulation Act (VII of 1947) S. 2S Central Government's power to issue directions under section‑Can not be gone beyond scope of Act‑Government not invested with plenary powers to issue any and every type of direction even beyond the pale of Act. On a plain reading of section 25, Foreign Exchange Regula tion Act, 1947, it only means that, within the scope of the Act, the State Bank shall be bound by and exercise all its functions, subject to the general or special directions issued by the Central Government, from time to time. In this behalf the State Bank although constituted as a statutory corporation, is relegated to the subordinate position to follow all the lawful directions issued by the Government within this Act. This section cannot be cons trued as a source of new and independent power in the Govern ment. It does not envisage that thereby the Government is invested with any larger and plenary powers to issue any and every direction going even beyond the scope of the Act. It only means that in the discharge of its function specified in the various preceding sections in the Act, the State Bank shall be bound by the lawful direction issued by the Government. In other words this section does not legalize any direction issued by the Central Government if otherwise it was beyond the pale of the Act. (g) Interpretation of statutes‑Preamble‑Language of statute not open to doubt‑Preamble cannot either restrict or extend enact ing part‑Rights, whether public or private‑Cannot be taken away or even hampered by mere implications from language in absence of express words. The preamble cannot either restrict or extend the enacting part, when the language is not open to doubt. Rights, whether public or private are not to be taken away or even hampered by mere implications from the language in the absence o f express words used in the statute. Craies on Statute Law, Sixth Edn., p. 112 ref. Deeble v. Robinson (1954) 1 Q B 77; In re: Cuno (1889) 43 Ch. D 12, 17; Walsh v. Secretary of State for India (1963) 10 H C L 367 and David v. De Silva (1934) A C 106 rel. (h) Natural justice‑Rule regarding affording of opportunity to party concerned to explain charge levelled against hurt‑Applicable even to absence of positive words to this effect in enactment

Permission to go abroad refused without affording party concerned any hearing‑Party concerned, held, condemned unheard against principle of natural justice. The impugned order was passed against the petitioner without affording him any hearing. He was condemned unheard against the principle of natural justice. The application, submitted by him to the State Bank for the clearance to go abroad, was rejected‑without informing him about the charge levelled against him and without even asking for his explanation in this matter concerning his rights. This rule applies even though there are no positive words to this effect in the enactment. Therefore, it was held, this writ petition is liable to be accepted for this short reason alone. Abdur Rahman v. Collector and Deputy Commissioner P L D 1964 S C 461 and University of Dacca and another v. Zakir Ahmad P L D 1965 S C 90 rel. (i) Evidence Act (I of 1872), S. 123 read with S. 162‑Privilege ‑ Unpublished official record relating to affairs of State

Decision regarding preliminary question whether particular document belongs to class of unpublished record relating to affairs of State Must rest with Court ‑ Administration of Foreign Exchange Regulation Act (VII of 1947) being an affair of State, evidence in this connection pertains to unpublished record relating to affairs of State‑No one permitted to give evidence derived from unpublished ,official records relating to affairs of State save with permission of ,head of department concerned‑Copies of documents procured by illegitimate means by unknown persons and exhibited in Court

Device adopted severely condemned. Section 123 inevitably, raises two distinct and separate ques tions for consideration, before it can be applied in a given case. Firstly, the document under consideration must belong to the class of the unpublished records relating to the affairs of the State Only the evidence derived from this particular class of documents is privileged under this section. After this condition is satisfied, the next question then arises for consideration is as to whether this is a fit and proper case for withholding the required evidence from the Court. There has been and is a considerable divergence of judicial opinion as to who is to be the judge and decide the first question after it is raised for considera tion. The section itself is silent in this respect. But, on a plain reading of the section, this question has got to be treated as a preliminary issue for the decision by the Court, as best as it can in the situation in which it finds itself. This opinion, is indirectly fortified on further reference to the provisions contained in section 162 of the Evidence Act. This section lays down that a witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its ,admissibility. The validity of any such objection shall be decided on by the Court and the Court, if it sees fit, may inspect the document unless it refers to matters of State, or take other evidence to enable it to determine on its inadmissibility. The Court is not permitted to inspect the document if it refers to matters of State. But subject to this limitation, the decision with respect to the preliminary question must rest with the Court under these two sections read together. The administration of Foreign Exchange Regulation Act is an affair of the State and, therefore, all this evidence, in the possession and power of the two respon dents in this connection, on the very face of it, pertains to the unpublished record relating to the affairs of the State. The very nature and description of this evidence by the petitioner in his two applications leaves no room for doubt in this respect. Sarkar on Evidence, Seventh Edn., p. 1189; Woodroffe and. Ameer Ali's Law of Evidence, 11th Edn., Vol. 3, p. 2615; Gover nor‑General‑in‑Council v. H. Peer Muhammad A I R 1950 E Pb. 228; R: M. D. Chamarbagwla v. Y. R. Parpia A I R 1950 Born, 230; Lady Dinbai Dinshaw Petit and others v. The Dominion of India and another A I R 1951 Bom. 72; State of Punjab v. Sohdi Sukhdeve Singh A I R 1961 S C 493; Amarchad Butail v. The: Union of India A I R 1964 S C 1958; Ghulam Ali v. Abdul Hafiz P L D 1962 Lah. 765; L M. Lal v. Secretary of State A I R 1944 Lah. 209; Mst. Nasim Fatima v. Government of West Pakistan and another P L D 1967 Lah. 103 and Malik Ghulam Jilani v. The‑, Government of West Pakistan and others P L D 1967 S C 373 ref. (j) Malice ‑ Government order refusing facilities of travel abroad challenged as mala fide on grounds that (i) similar orders were passed on previous occasions also; (ii) some such orders were subsequently withdrawn; (iii) petitioner's organisation was barred;. (iv) he was detained under preventive laws; (v) petitioner's passport was cancelled and confiscated while he was under detention‑Fact that writ petition filed in respect of allegations (ii) and (iii) contained no finding of impugned orders having been passed maliciously but were passed purely on legal considerations‑Does not prove malice Petitioner failing to file affidavit in respect of allegations made by, him and failing to prove Government's action as mala fide‑Action' of authorities, held, does not, in circumstances, indicate mala fides‑Fact that in such cases previous orders were subsequently with drawn shows watchfulness of authorities in performance of their duties and not malice. Saiyyid Abul A'la Maudoodi and others v. The Government of West Pakistan P L D 1964 S C 673; Rahmat Elahi v. Government of West Pakistan P L D 1965 Lah. 112 and Syed Abul A'la Maud doodi v. The Government of Pakistan Writ Petition No. 759 of 1965, considered. (k) Constitution of Pakistan (1962), Art. 98‑Writ jurisdic tion‑Deprivation of person of his liberty of free movement not in accordance with law‑Such freedom ensured under Fundamental Right No. I of Constitution‑Writ petition, held, fully competent

Constitution of Pakistan (1962), Fundamental Right No. 1. (l) Interpretation of statutes‑Statutes should be construed according to intent of Legislature‑Such intent can best be gathered from words and terms used in statute‑Whole statute and every part thereof to be considered to ascertain meanings of words used or true intention underlying legislation‑[Per Muhammad Gul, J.] It is fundamental rule of interpretation of statutes which equally applies to the Constitutions, "that they should be construed, according to the intent of the Parliament .which can best be gathered from the words and terms used in the statute. And it is equally well‑established rule that the meaning of the words of a statute or the true intention underlying them can be properly understood by a consideration of the whole instrument and every part of it. Canada Sugar Refining Coy. v. Rex 1898 A C 735 (741); Maxwell on Interpretation of Statutes, 1962 Ed., Chap. 2 and Gopalan v. State of Madras A I R 1950 S C 27 ref. (m) Precedent ‑ "Universal Declaration of Human Rights" adopted by U. N. O.‑Not part of Municipal Law and therefore of no binding effect.