Muhammad Arshad VS GOP through Secretary, M/o Interior etc.

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P. No.2957 of 2022 Muhammad Arshad Versus Government of Pakistan through Secretary Interior and others S. No. of order Date of order / Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 13.10.2022 Syed Murawat Mehmood and Ghulam Abbas Tarar, Advocates for the petitioner. Malik Shaukat Nawaz Awan, learned Assistant Attorney-General along with Mazhar Hussain, S.I., F.I.A. and Abdul Kabir, Assistant, Passport Office.

Through the instant writ petition, the petitioner, Muhammad Arshad, seeks a direction to the respondents to remove his name from the “blacklist” so that he can travel abroad.

2.Learned counsel for the petitioner submitted that the petitioner went Germany in the year 2015 where he applied for the grant of asylum; that the petitioner was deported to Pakistan; that on his arrival to Pakistan, he was arrested and F.I.R. No.243, dated 10.07.2020 was registered against him under Sections 3 and 4 of the Passports Act, 1974; that the said criminal case has already been decided on 11.11.2020 and the petitioner is no longer required in the said case; that the petitioner has got married to a German lady, who is pregnant with his child; that on 05.03.2022, he tried to proceed abroad but was stopped at the Islamabad International Airport on the ground that his name is in the blacklist; that since it is the petitioner’s fundamental right to travel abroad, it is imperative that his name be removed from the blacklist; and that at no material stage has the petitioner’s name been placed on the exit control list. Learned counsel for the petitioner prayed for the writ

petition to be allowed in terms of the relief sought therein.

3.On the other hand, learned Assistant Attorney-General submitted that the petitioner had been deported from Greece on account of illegal entry as conveyed to the Federal Investigation Agency (“F.I.A.”), vide letter dated 02.12.2020; that standard operating procedures were made pursuant to the order dated 06.02.2018 passed by the Hon'ble Supreme Court in human rights case No.26962/2017; that the petitioner’s name was placed on the passport control list being maintained under Rules 21(l) and 22 of the Passport Rules, 2021 for a period of two years which is due to be completed on 03.01.2023; and that there is nothing preventing the petitioner from approaching the Director General, Immigration and Passport for the removal of his name from the passport blacklist. Learned Assistant Attorney-General prayed for the writ petition to be dismissed.

4.I have heard the contentions of the learned counsel for the petitioner as well as the learned Assistant Attorney-General and have perused the record with their able assistance.

5.It is an admitted position that at no material stage has the petitioner’s name been placed in the exit control list. The respondents’ case is that since the petitioner was deported to Pakistan, his name has been placed on the passport control list pursuant to Rule 21(l) of the Passport Rules, 2021.

6.Rule 21(l) ibid provides that a citizen of Pakistan may be refused issuance of a passport for the time being on the ground that he is a person previously deported from abroad on account of undesirable activities or illegal entry or

criminal charges. The instant case is not one of refusing to issue a passport to the petitioner. Admittedly, the petitioner holds a valid passport which has a German visa, which is due to expire on 28.02.2023.

7.To prevent a man from leaving the country or from entering it is akin to imposing a physical restraint on his person. It is to deprive him of a personal liberty. Freedom to travel, both within and outside the confines of the territory of the State, raises important issues of personal freedom. The right of free movement whether within the country or across its frontiers, either in going out or in coming in, is a personal liberty within the meaning of Article 9 of the Constitution, which says, “No person shall be deprived of life or liberty save in accordance with law.” Freedom of movement is said to be the essence of personal liberty. A citizen cannot be deprived of his right to travel abroad except according to the procedure established by law.

8.The Passport Rules, 2021 were made by the Federal Government in exercise of the powers conferred by Section 13 of the Passports Act, 1974 read with Section 3 of the Foreigners Act, 1946. These Rules were notified on 03.02.2022 by the Ministry of Interior through SRO 245(I)/2022 and published in the official Gazette on 14.02.2022. The written comments show that the petitioner’s name was entered in the passport control list on 04.01.2021 which is almost one year before the said rules were made. Therefore, the respondents cannot assert that the petitioner’s name had been placed on the passport control list pursuant to the said rules, which cannot be given retrospective effect. There

was no other provision of the law that was cited by the respondents under which the petitioner’s name had been placed in the passport control list. Standard operating procedures do not have the force of law and cannot operate in curtailing the petitioner’s fundamental rights to travel abroad.

9.In view of the above, the instant petition is allowed in terms that the respondents shall remove the petitioner’s name from the passport control list provided the proceedings in the criminal case (F.I.R. No.243, dated 10.07.2020) registered against him have come to an end.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Ahtesham*