DIVISION, GOVT. OF PAKISTAN, ISLAMABAD and another vs OSMAN ALI SAAD
This matter concerns a petition for leave to appeal against a Division Bench judgment of the Lahore High Court, which had set aside an order of a learned Single Judge and directed the Federal Government to extend the visa of the respondent, a Sudanese national managing a charitable organization in Pakistan. The core legal question is whether the Federal Government's decision to refuse or cancel a visa for a foreign national falls within its absolute prerogative and discretion, and whether such an administrative decision is justiciable under the writ jurisdiction of the High Court. The Supreme Court observed that the arguments raised regarding the scope of the Federal Government's authority to regulate the entry and stay of foreigners, specifically under the Foreigners Act, 1946 and the Foreigners Order, 1951, involve significant questions of law of first impression. Consequently, the Court held that the case warrants a definitive, authoritative pronouncement. Leave to appeal was granted to examine whether the High Court's interference with the executive's visa policy was legally permissible under Article 199 of the Constitution of Pakistan 1973.
- Is the Federal Government's decision to refuse or cancel a visa for a foreign national a justiciable issue under Article 199 of the Constitution of Pakistan 1973?
- Does a foreign national have an enforceable right to the extension of a visa, or is it a matter of absolute executive discretion?
- Can a High Court, in the exercise of its writ jurisdiction, direct the Federal Government to grant a visa to a foreign national?
- Section 3, Foreigners Act 1946
- Article 3(3), Foreigners Order 1951
- Article 199, Constitution of Pakistan 1973
ORDER
1. Rana Bhagwandas, J.--Petitioners are aggrieved by a Division Bench judgement of the Lahore High Court, Rawalpindi Bench dated 28.7.2004, passed in I.C.A. against the order dated 6.7.2004, passed by a learned Judge in chambers of the High Court.
2. While the learned single Judge dismissed the Constitutional petition of the respondent, as being incompetent Division Bench allowed the appeal, set aside the order of the learned single Judge and declared the order dated 24.6.2004 passed by Petitioner No. 1, as illegal and void, directing the petitioners to extend visa of the respondent for a further period of four years. Respondent, a Sudani national, has been managing and rendering the affairs of Qatar Charitable Society, an N.G.O. at Islamabad and staying in Pakistan under a valid permit/visa. On expiry of the period of his visa, he pleaded for extention thereof which was declined and the permission already granted cancelled on the basis of certain allegations and adverse reports against him. He challenged the action of the petitioners through a Constitutional petition which was dismissed as aforesaid. He, however, succeeded in appeal before a bench of the High Court, hence this petition for leave to appeal.
2. 3.We have heard Mr. Nasir Saeed Sheikh, learned DAG for Pakistan and Dr. Babar Awan, learned ASC for the respondent.
3. 4.With reference to Section 3 of the Foreigners Act, 1946 and Article 3(3) of Foreigners Order, 1951, learned DAG contended with vehemence that it is the prerogative of the Federal Government to permit or refuse any Foreign national to enter into Pakistan and to deport him on expiry of the visa granted to him. Under the law Government is competent even to cancel visa already granted which is not a justiciable issue before the superior Courts under the provisions of Article 199 of the Constitution. Precisely, the thrust of the argument appears to be that it is a privilege and not the right of a foreigner to be enforced through a Constitutional petition and it lay in the absolute domain and discretion of the Federal Government to permit entry or refuse it within the parameters of the law. Learned DAG pointed out that while single Judge rightly held that Constitutional petition of the respondent was not maintainable at law, Division Bench of the High Court without adverting to this important question of law set aside the action of the Federal Government and arbitrarily directed the grant of visa to the respondent for a period of four years.
4. 5.Reference has been made to the decided cases from Peshawar, Sindh and Lahore jurisdiction reported as Wanq Lilly V. Ministry of Interior Islamabad etc. (PLJ 1997 Lahore 1782), Jean Charles Groosen V. State of Pakistan through the Secretary, Ministry of Interior, Government of Pakistan, Islamabad (PLD 1980 Peshawar 275) and Muhammad Ali and another v. Government of Sind through Chief Secretary and 2 others (1986 CLC 1123).
5. 6.Having heard learned counsel for the parties, we are of the view that the questions of law raised at the bar being of first impression an authoritative judgment by this Court would be called for.
6. Indeed a fit case for the grant of leave is made out. We order accordingly.
7. 7.Appeal be listed for hearing at an early date.