Farhan Ali vs Fop etc.

Stereo. HCJDA 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

W.P. No.13357 of 2025 Farhan Ali Versus Federation of Pakistan, etc.

JUDGMENT

Date of hearing: 23.12.2025.

Petitioner by: M/s Abdul Ghaffar Ansari and Muhammad Irfan Shahzad, Advocates.

Respondents by: Ch. Muhammad Shahzad Aslam, Deputy Attorney General.

Malik Masroor Haider Usman, Additional Advocate General.

Tahir Mehmood Malik, Assistant Director General Immigration and Passport, Regional Passport Office, Multan.

Hammad – ur – Rehman, Deputy Director, FIA.

ASIM HAFEEZ, J. Petitioner, citizen of Pakistan, raises two-fold grievances. Firstly, setting-aside of order dated 06.10.2025 is sought, whereby petitioner’s representation was dismissed being declared as premature. And secondly, legality-cum-constitutionality of specific power to inactivate passport, in terms of rule 23 of Passports Rules, 2021 (“Rules, 2021”) is questioned on the premise that such power to inactivate is beyond the scope of section 8 of the Passports Act

1974 (Act 1974), wherein powers to cancel, impound or confiscate passport were provided, subject to the conditions prescribed for initiating actions thereunder. Rules, 2021 were introduced through S.R.O. 245 (1)/2022 dated 13th February

2.Report and para-wise comments are solicited and submitted. Evidently, petitioner’s request for removal from passport control list (PCL) was declined on the ground that request was premature. Plea of premature request was based on restraint provided for in clause (c) of sub-rule (2) of Rule 22 of Rules, 2021, which prescribed period of five years, or more, for retaining person’s name on PCL. There is no cavil that name of the person, classified in category B thereof, may be omitted even before five years, while considering appeal against placement of name on PCL.

3.Learned counsel are heard, including learned law officer, accompanied by Deputy Director FIA. Instant petition is heard along W.P. Nos.15189 and 15502 of 2025 – without a formal order of consolidation. Facts of each of the petition(s) are different and need no reiteration.

4.Essentially, the scope of adjudication is not redressal of individual grievances but determination of two issues. Firstly, the legality of imposing travel ban/disqualification for five years or more – determination of this issue involves ascertaining legality of clause (c) of sub-rule (2) of Rule 22 of Rules, 2021 to the extent of restraint prescribed for five years or more. And secondly, whether power to inactivate the passport, provided in rule 23 of the Rules, 2021, is in consonance with the scope of section 8 of the Act 1974. Petitioner’s passport has been inactivated and consequently impounded. I take up second issue first. Section 8 of the Act

1974 extends power to cancel, impound or confiscate the passport. It is appropriate to reproduce section 8 ibid, “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 head of a secretary to the Government of Pakistan, or an officer authorised by the Federal Government in this behalf be required to be returned and shall also be liable to be cancelled, impounded or confiscated by like order.

(2)Subject to sub-section (3), before making an order under sub-section (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.

[Provided that no such notice need be given in the case of an order impounding a passport if it is necessary in the opinion of the Secretary or such other officer to take immediate action, but an opportunity to show cause against the making of the order shall be afforded to the person to whom the order relates, within two weeks from the making of the order.]

(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 such person the notice provided for in sub-section (2) or to afford him an opportunity of being heard.

(4)Any person in respect of whose passport an order under subsection (1) has been made in the circumstances referred to in subsection (3), may within thirty days of the date of the order, apply to the Federal Government for a review of the order, and the decision of the Federal Government in review shall be final.

[5) Any expenditure incurred by the Federal Government on the repatriation to Pakistan of a citizen of Pakistan who gets stranded or becomes a destitute while he is in a foreign country, or for any other reason, shall be recoverable, as an arrear of Land Revenue.]

5.Evidently, power to inactivate the passport is not provided for in Section 8 ibid. There is no explanation that when conditions exist why action is not taken in terms of Section 8 of the Act 1974, which inter alia extends power to cancel, impound and confiscate the passport. And preference was extended to inactivate the passport – informal action wrapped in obscurity. There is no apparent reason for effecting inactivation of passport and recording factum thereof

in integrated Border Management System (IBMS), except avoidance of procedural requirements and due-process necessity, otherwise envisaged under Section 8 of Act 1974 – since inactivation of passport is not covered under Section 8 of the Act 1974 therefore requirement of notice / procedure of intimation was not followed, often. Failure to follow the mandate of section 8 of the Act 1974 has, in recent time, resulted in placing travelers in unexpected, unprepared and awkward position, especially those, who gained first-hand knowledge of surreptitiously effected inactivation of passport, at the airport, causing humiliation, bringing social disgrace and extreme indignity when unfortunate travelers were disallowed to travel, despite having passport and valid visa. Resort to informal action under rule 23 of the Rules, 2021, upon surreptitious inactivation of the passport encourages arbitrariness and is a prime source of embarrassment for the citizens, in wake of element of sheer surprise. Informal actions, alike inactivation, are often preferred to obscure cause of action with an intent to discourage triggering of judicial review action. Informal actions enable the executive to evade procedural safeguards and achieve results without legal compliances. This informality of action by inactivation of passport is intended to curtail rights of the citizens – forcing them from running pillar to post. Act of inactivation of passport manifest denial of right to travel, in covert manner, not envisaged by Section 8 of Act of 1974. Conversely, procedure provided under section 8 of the Act 1974 encourages following of due-process, openness, brings transparency of action and extends facilitation to the citizens to be aware of adverse action against them, prior in time. Rule 23 of the Rules 2021 apparently conflicts the scheme of parent act. It is evident that Executive, upon adopting practice of inactivation under rule 23 of Rules, 2021, travels beyond the

scope of parent act. Delegated action fails in law where it disregards statutory method expressly provided; introduces substantive measures in shape of restrictions not authorized / permitted under parent act, and especially where it replaces legislative judgment with executive preference. When asked, there is no explanation for not adopting the options provided in section 8 of the parent act. Hence, mere inactivation of passport without conclusive actions contemplated under section 8 of the parent act, acknowledged by law, manifest disregard of law and trampling of rights of the citizens. Evidently, what legislature choose to do directly by providing section 8 of the parent act, executive / delegate had altered, expanded or substituted for mere aggrandizement of authority, alas, at the expense of curtailing rights of citizens. Inactivation of passport can be stop-gap arrangement but no permeance could be extended to such action, outside the scope of Section 8 of act, 1974.

6.In view of the above, I hold that power to inactivate passport under rule 23 of the Rules 2021 is beyond the scope of section 8 of the Act 1974 and same is declared ultra vires – only the power to inactivate is declared invalid and powers to cancel, impound or confiscate are intact and exercisable subject to the existence of conditions and fulfilment of requirements prescribed for enforcing the powers prescribed.

7.Now I take up first issue - restraint / limitation of five years or more for retaining passport on PCL in terms of clause (c) of sub-rule (2) of Rule 22 of Rules, 2021 – petitioners request was declined on the ground of being premature. Clause (c) of sub-rule (2) of Rule 22 of Rules, 2021, for sake of convenience of understanding the context, is reproduced hereunder:-

“22. Passport control list.–(1) Federal Government is vested with the powers to regulate the departure from and entry into Pakistan and also visit to foreign countries of its citizens under the Act.

(2)The Division concerned and Directorate General shall prepare and maintain a PCL for placement of names and other record of individuals who have been refused passport facilities under these rules under category ‘A’ and ‘B’ respectively with the following description, namely:-

(a)under category ‘A’, the names of those persons are placed who are involved in anti-state activities or whose visit to foreign countries is considered to be prejudicial to the State interest, or, whose visit abroad is banned from security point of view. The names in this list shall be placed and removed by the Additional Secretary of the Division concerned;

(b)under category ‘B’, the names of those persons are placed who have been refused passport under these rules other than anti-state activities specified in clause (a). The names of persons included in the category under this clause may also be placed on the recommendations of government agencies or departments;

(c)normal period of retaining a person on the PCL is five years. However, a person may be kept on PCL even beyond five years provided the referring department or agency recommends for further retention having full justification in this regard. The Additional Secretary of the Division concerned in case of category ‘A’ and Director General in case of category ‘B’ may consider omission of name of any person from such list on appeal even before the normal period of five years; and

(d)both the categories ‘A’ and ‘B’ are subject to periodical review by a Review Committee under sub-rule (3) in consultation with the relevant agency or department on whose recommendations the individual was placed on PCL; and

8.There is no statutory support available to legally sustain the restraint imposed under clause (c) of sub-rule (2) of Rule 22 of Rules, 2021, for five years or more. Sub-rule 4 of Rules 2021 also refers to an alleged action of inactivation of passport. This inactivation of passport finds no support from the parent act. Yes, in case person falls in rule 21 of the Rules 2021 and passport facilities have been refused, though passport exists, an action shall be taken under section 8 of the Act 1974, which provides comprehensive mechanism for cancellation of passport. Apparently, introduction of restraint for five years or more is arbitrary and contradicts the purpose and objective of

the parent act, otherwise suggesting an intent to bypass the statutory framework provided in terms of Exit from Pakistan (Control) Ordinance 1981 – why, instead of placement of name / passport on PCL action is not advised under the Ordinance of 1981 – wherein no specific period was provided for placement of name on ECL but such placement is subjected to evaluation under judicial review jurisdiction. Motive of placing restraint for five years or more is not objectively defined – pursuit of informal action in disregard of statutory command manifest arbitrariness. Courts cannot inquire into the motives of legislation, which is settled judicial principle in the case of Fauji Foundation and another V. Shamimur Rehman (PLD 1983 Supreme Court 457) but motives with respect to subordinate / delegated legislation are reviewable under judicial review jurisdiction inter alia on various grounds, including instances where subordinate / delegated legislation exceeds the scope of parent act or contradicts with the object and scheme of the enabling act – Act 1974.

9.Restraint unjustifiably imposed constitutes an encumbrance / clog on the right to travel, which has to be rationalized, structured and essentially meet the test of plausibility – in context of principle of proportionality. Conventional wisdom and judicial precedents, relevant in the context of present facts and circumstances, envisage that Federal Government / Executive have had to rationalize the imposition of restraint, which primarily requires legislative / statutory support but not available, conspicuously.

In the case at hand delegated legislation departs from the object / scheme contemplated by the parent act and introduces a more intrusive or excessive condition, which simply makes delegated legislation to that extent unlawful, for

want of legality and when rights of the citizens are involved, such delegated legislation and conditions / restraint imposed are liable to be declared disproportionate. Clause (c) of sub- rule (2) of Rule 22 of Rules, 2021 provides no categorization / classification of violations/illegalities for the purposes of justifying period of restraint, which manifest conferment of unstructured discretion on the Executive. Penalties shall be calibrated according to the nature of violation. And each category of wrongdoing shall attract proportionate and corresponding penalty. There is no cavil that discretion, if unguided or unstructured, degenerates into arbitrariness and is therefore, unsustainable in law. Hence, restraint of five years or more in terms of clause (c) of sub-rule (2) of Rule 22 of Rules, 2021 travels beyond four corners of the act, transgressed the statutory limits and manifest abuse of delegated authority. Clause (c) of sub-rule (2) of Rule 22 of Rules, 2021 also fails the proportionality test – no guidelines provided for determining proportionate / corresponding punishment for alleged wrong-done/violation, committed and particularly the extent of transgression. Bench-mark for penalizing an action in conspicuously lacking under clause under challenge.

10.I, therefore, hold that Clause (c) of sub-rule (2) of Rule 22 of Rules, 2021 is substantially ultra vires the parent act, hence, a nullity. Federal Government shall rationalize period of restraint with respect to corresponding violation/illegality, which shall be proportionate to each category of wrongdoing - illegal overstay cannot be equated with the acts committed by migrant smugglers, human traffickers and deportees, guilty of criminal actions in foreign countries.

11.This judgment will take effect upon lapse of 30 days of the date of order to enable Federal Government to revise rules

and to bring them in conformity with the mandate of section 8 of Act 1974.

12.This constitution petition is allowed in terms of declarations at paragraphs 6 and 10. Order of 06.10.2025 is set-aside and representation of the petitioner shall be deemed pending and same shall be decided afresh in the light of this judgment.

(ASIM HAFEEZ)

JUDGE

Approved for reporting.

JUDGE

Imran/*