FEDERAL GOVERNMENT OF PAKISTAN Versus GOVERNMENT OF THE PUNJAB

1. JUSTICE NASIM HASAN SHAH (CHAIRMAN). ‑‑‑The Federal Shariat Court has, in its impugned Judgment dated 25th April, 1989, held that the provisions of the proviso to subsection (2) of section 8 of the Passports Act, 1974, are repugnant to the Injunctions of Islam in so far as they do not provide for issuance of any notice of the action proposed to be taken thereunder and of any h opportunity to show‑cause against such action. This appeal by the Federal Government is directed against the aforesaid judgement.

2. The provisions of section 8, to the extent relevant, provide as follows:‑‑

3. "8. Power to cancel impound or confiscate passport.‑‑(1) A passport issued by or on behalf of the Federal Government shall be the property of the Federal Government and may, by an order under the hand of a Secretary to the Government of Pakistan, be required to be returned and shall also be liable to be cancelled, impounded or confiscated by like order.

(2) Subjects to subsection (3), before making an order under subsection (1) in respect of the passport issued to any person, the Federal Government shall give such person notice in writing calling upon him to show‑cause why the order should not be made:

4. Provided that no such notice need be given in the case of an order impounding a passport for a period not exceeding four months and such order which shall take effect as soon as it is made."

5. The learned Federal Shariat Court after referring to various verses of the Holy Quran and the Sunnah of the Holy Prophet came to the conclusion that in so far as the impugned proviso to subsection (2) of section 8 did not provide for a I due notice of the action proposed to be taken or an opportunity of showing cause against it, it was repugnant to the Injunctions of Islam. However, it was further observed that "in some cases of immediate nature, difficulties may arise as it may not be possible to communicate all the grounds while serving a notice. Such difficulties, in our opinion, can be solved by modifying the proviso in a manner whereby the Injunctions of Islam are not violated and at the same time the object of law is achieved". Relying on the following traditions of the Holy Prophet‑‑

6. It was observed that according to the above tradition of the Holy Prophet a person can be detained for 24 hours for the purposes of proper verification and investigation. Applying this analogy it was held that if as an emergent measure, immediate action is necessary a passport can be impounded for 24 hours and the notice for showing cause can be dispensed with but such opportunity of showing cause and of hearing be afforded to the affected passport‑holder soon thereafter. Accordingly, a direction was issued that necessary modification/amendment in law on these lines should be carried out by the 30th of September, 1989, failing which the proviso in question shall cease to have effect.

7. Hafiz S.A. Rehman, learned counsel for the Federal Government, has submitted that a maximum period of four months is provided for administrative reasons in order to collect information against that individual who has to be provided and furnished grounds of his wrong doing, by the State.

8. This argument seems to be misplaced as it assumes that action is taken first and the basis therefor gathered later, implying that the impugned action will be taken in the first place without any adequate material being in the possession of the authorities.

9. In fact, there is a provision when action can be taken without issuance of a show‑cause notice in serious cases and this provision has not been declared to he against the Injunctions of Islam viz. subsection (3) of section 8. It provides:‑‑

10. "(3) If the Federal Government has reason to believe that the person in respect of whose passport it is proposed to make an order under subsection (1) is, or has been engaged in subversive activities or in activities which are prejudicial to the interest of Pakistan or Pakistan's relations with any foreign power, it shall not be necessary to give to such person the notice provided for in subsection (2) or to afford him an opportunity of being heard."

11. In the situation now under consideration, a passport can be impounded for a period of 4 months without any show/cause notice, but this Court has held in a large number of cases that according to the Injunctions of Islam before any right of a person is affected adversely he must be given an opportunity of showing cause against such .an action and the Federal Shariat Court has cited the judgment in the case of Pakistan and others v. Public‑at‑Large and others P L D 1987 SC 304 at pages 330/331 in this connection. In the present case, the right of a person to travel freely is being adversely affected. Such a right, it has been satisfactorily shown, is recognised by the Holy Qur'an and the Sunnah of the Holy Prophet. Hence we agree with the Federal Shariat Court that this right cannot be adversely affected without issuance of a proper show‑cause notice.

12. We also agree with the Federal Shariat Court that in case of emergency, action to impound the passport can be taken without a prior show‑cause notice but the requisite show‑cause notice should be issued soon after taking the action. In this case, the Federal Shariat Court has considered that 24 hours period is enough. We may here point out that in a situation of emergency requiring immediate action this Court has also held in the case of Province of Sindh v. Public‑at‑large PLD 1988 SC 138 that where taking of immediate action, as an emergent measure, is called for, prior opportunity of hearing may be dispensed with. However, such opportunity shall be afforded as soon, thereafter, as is possible and we consider that this opportunity should be afforded at the maximum within 14 days of impounding the passport.

13. In the result we would direct that the proviso to subsection (2) of section 8 should be amended as follows:

14. "Provided that no such notice be given in the case of an order impounding a passport where immediate taking of action is necessary but such opportunity shall be afforded to the person whose passport has been impounded as soon as is possible thereafter but this period will not exceed more than two weeks, in any case."

15. The necessary amendment, as indicated above, should be carried out by the 30th September, 1991, failing which the proviso to subsection (2) of section 8 shall cease to have effect. In the result the appeal is mainly dismissed, subject to the modification made in this order.

16. M.B.A/F‑208/S Order accordingly.