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Official Citation: 2025 IHC 32
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2024
Decision Date: 2024-12-31
Parties: Nadir Mukhtiar vs The Directorate of Immigration and Passports, JUDGMENT
This judicial decision was delivered by the Islamabad High Court on 2024-12-31. The matter involves proceedings between Nadir Mukhtiar and The Directorate of Immigration and Passports, JUDGMENT, officially reported as 2025 IHC 32. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 2025IHC32
Court Name: Islamabad High Court Judge(s): Babar Sattar Title:Nadir Mukhtiar vs The Directorate of Immigration and Passports,
JUDGMENT
Reported As: 2025 IHC 32 Result: Petition Allowed Judgment
JUDGMENT Babar Sattar, J:- The petitioner has impugned the actions of the respondents in placing his name of the Passport Control List ("PCL") and preventing him from travelling to Muscat despite the fact that he has a valid work visa for Oman as well as a valid passport to travel outside Pakistan. 2. Learned counsel for the petitioner submitted that the petitioner had previously worked in UAE. He had an altercation of the local nature in UAE due to which he was jailed and was returned to Pakistan. He subsequently applied and was granted a work visa by Oman to work as an Arabic Food Cook. On 05.12.2024 he was booked on a flight to travel to Oman when after checking in, clearing immigration test, and receiving an exit stamp on his passport, he was prevented from boarding the plane and was told that his name had been placed on PCL. He submitted that he filed an application with Director General, Immigration and Passport ("DG I&P") on 31.12.2024 seeking the removal of his name from the PCL but the application was not acted upon. 3. Learned Assistant Attorney-General submitted that the petitioner was working in the UAE, where he was jailed. Through a memorandum dated 05.07.2024 the Consulate General of Pakistan in UAE advised the DG I&P as well as the Ministry of Interior that the petitioner was one of the 444 individuals who had been issued emergency travel documents by the Consulate General of Pakistan in Dubai between 01.06.2024 and 30.06.2024 and were being returned to Pakistan. He submitted that it was in view of the deportation of the petitioner that his name was placed on the PCL, which was recorded in Placement Circular No.8(9)/2024 dated 13.09.2024. He submitted that
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the petitioner's name had been placed on the PCL in view of Rule 21(l), read with Rule 22(2)(b)-(c) and Rule 22(4) of the Passport Rules, 2021 ("Passport Rules"). 4. What emerges from the facts of the case is that the petitioner was deported from UAE at some point between 01.06.2024 and 30.06.2024. The fact of such deportation was communicated to DG I&P as well as the Ministry of Interior by the Consulate General of Pakistan in Dubai by Memorandum dated 05.07.2024. The petitioner's name was not placed on PCL up until 13.09.2024. The record reflects that the petitioner applied for the passport and was issued one on 06.08.2024. He subsequently applied for a visa for Oman which was granted on 19.11.2024. It was after issuing the petitioner a valid passport, for a period of five years, and after the Bureau of Immigration and Overseas Employment had placed a stamp on his passport on 29.11.2024, noting that the petitioner had been registered under the Immigration Ordinance, 1979, for employment in Oman, that the petitioner proceeded to travel to Oman. The record also reflects that there exists an exit stamp on the passport of the petitioner which, prima facie, reflects that on 05.12.2024 the petitioner was not refused immigration services at Islamabad International Airport. 5. The questions that arise in relation to the instant petition are the following: i. Whether name of a citizen can be placed on the PCL suspending his right to international travel without issuing him a notice and affording him an opportunity to be heard? ii. Whether the name of a citizen who has been deported from a foreign country can be mechanically placed on the PCL for a period of five years in terms of Rule 22(2)(c) of the Passports Rules, 2021? iii. Whether an Assistant Director administering the PCL within the Directorate of Immigration and Passport is vested with the authority to place the name of a citizen on PCL? 6. The principles of law that apply to the placement of a citizen's name within the PCL thereby suspending his right to liberty and travel guaranteed by Articles 9 and 15 of the Constitution came before this Court in Dr. Shireen M. Mazari Vs. Federation of Pakistan (2024 MLD 1020), wherein a detailed judgment revisiting the law previously laid down by the Supreme Court as well as the High Courts in relation to placement of names on the Exit Control List was considered by this Court and it was held that placement of the petitioner's name without due process and without the Federal Government granted approval for such placement was without lawful authority and of no legal affect. 7. Before we return to the questions framed above, let us briefly consider the statutory scheme. The Passport Act, 1974 ("Passport Act"), was promulgated to "regulate departure from and entry into Pakistan and visit to foreign countries of citizens of Pakistan". Section 3(a) of the Passport Act states that no citizen shall "depart from Pakistan by any means whatever unless he is in possession of a passport, nor otherwise than from such port or place, by such routes and in accordance with such conditions, as may be prescribed." Section 8 of the Passport Act relates to the power to cancel, impound, or confiscate a passport. Section 8(1) states that, "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 or an officer authorized by the Federal Government in this behalf be required to be returned and shall also be liable to be cancelled, impounded or confiscated by a like order." Section 8(2) provides that before making an order in terms of section 8(1), the Federal Government shall give the citizen notice in writing inviting him to show cause as to why an order to cancel, impound or confiscate his passport may not be passed. Section 8(3) of the Passport Act provides exceptions to the rule of issuing a show cause notice prior to passing an order in terms of section 8(1), including where the person-in-question is, "engaged in subversive activities or in activities which are prejudicial to the interest of Pakistan or Pakistan's relations with any foreign power" Section 8(3) therefore does create an exemption from the otherwise applicable requirement to issue a show cause notice prior
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to taking penal action against a citizen in terms of cancelling, impounding or confiscating his passport. Section 11 of the Passport Act vests in the Federal Government the power to delegate any of its power or functions under the Passport Act to any officer or authority subordinate to the Federal Government by notification published in the official Gazette. 8. The Passport Rules, 2021 ("Passport Rules") have been framed in exercise of authority under section 13 of the Passport Act, which vests in the Federal Government the power to make rules for carrying out the purpose of the Passport Act. Rule 21 of the Passport Rules lists the grounds on which a citizen of Pakistan may be refused the issuance of a passport for the time being. Rule 21(l) has been cited in the instant case as a ground for placement of the petitioner's name on PCL, which provides that a citizen may be refused the issuance of a passport who has been, "deported from abroad on account of undesirable activities or illegal entry or criminal charges." Rule 22(1) states that, "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." Rule 22(2), which the respondents have relied upon for placement of petitioner's name in category 'B' of PCL states the following: (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." Rule 22(4) is also relevant for our purposes and states the following: (4) In case a person falls under rule 21, and a passport already exists in his name in the database of Directorate General, such passport shall be inactivated to avoid issuance of subsequent passport and placed on the Integrated Border Management System (IBMS) for refusal of immigration services. Immigration officer shall impound passport of such individual and forward it to the Directorate General till delisting from the IBMS category. 9. Rule 23 deals with impounding, confiscation, cancellation and inactivation of a passport. Rule 23 of the Passport Rules provides as follows: 23. Impounding, confiscation, cancellation and inactivation of passport.-(1) In pursuance of section 8 of the Act, the Secretary of the Division concerned shall have the power to confiscate, impound, cancel, or inactivate any passport at any time. (2) Director General shall have power to impound, confiscate, cancel or inactivate ordinary and official passport.
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(3) Additional Secretary, Ministry of Foreign Affairs shall have the power to impound, confiscate, or cancel diplomatic passport and shall forward a request to Directorate General for in-activation of such passport. (4) Heads of the Pakistan missions abroad shall have the power to impound passport in respect of a person residing in a foreign country, who shall forward such passport to Director General or Additional Secretary, Ministry of Foreign Affairs for confiscation, cancellation or inactivation, as the case may be: Provided that the above mentioned action shall be taken by the Head of Pakistan mission abroad, after personally satisfying himself of the un-desirability of the person concerned while staying abroad. (5) A passport may be impounded, confiscated, cancelled or inactivated in the following cases, namely:- (a) when the person belongs to one of the classes of persons to whom passport is refused under Rule 21; (b) when a person is found to be in wrongful possession of a passport; or (c) when a person is found to be involved in un-desirable activities mentioned in sub-rule (6). (6) For the purpose of sub-rule (4), the following shall be the grounds on any of which a passport may be impounded, namely: - (a) activities, prejudicial to the interest of Pakistan involving security of the country; (b) while on good evidence, found to have fled Pakistan to avoid prosecution for criminal or other offence; or (c) found to have indulged in racketeering or forgery in passport; or (d) convicted in the host country of a crime involving moral turpitude; or (e) has been generally indulging in activities of a criminal nature; or (f) has used physical violence against the personnel or property of the mission concerned; or (g) being a government servant and for the time being employed in a foreign country has extended his contract with a foreign government without prior approval of the Government of Pakistan. (7) The details of passport impounded shall be communicated to the Directorate General. Time, date and place of entry of the returnee into Pakistan shall also be intimated well in advance by the Pakistan mission abroad to Directorate General who may take necessary steps to proceed against the returnee in accordance with these rules, where necessary. (8) An impounded passport may not be cancelled but kept in safe custody. (9) Refusal or failure to surrender the passport on requisition under this rule renders the person to whom it was issued liable to prosecution under section 175 of the Pakistan Penal Code, 1860 (Act XLV of 1860)." 10. As mentioned above, section 8 of the Passport Act vests in the Federal Government the power to cancel, impound or confiscate a passport. The concept of inactivating a passport does not find mention in provisions of the Passport Act. However, the term inactivation of passport has been used in Rule 23 of the Passport Rules. In the arguments by the learned counsels for the parties, it has not been contended that the provisions of Rules 21, 22 and 23 are in any way in excess of authority vested in the Federal Government by the legislature in terms of the Passport Act. Thus, the question of whether or not a passport can be rendered inactive, as opposed to being impounded, confiscated or cancelled in terms of section 8 of the Passport Act read with the Passport Rules, can be considered in an appropriate case where such argument is agitated by an aggrieved person. For our present purposes it is sufficient to note that the power to cancel, impound or confiscate a passport, in terms of section 8 of the Passport Act, is a power vested in the Federal Government. Section 8 of the Passport Act further provides that the power is to be exercised by the Federal
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Government in terms of an order passed by the Secretary to the Government of Pakistan or an officer authorized by the Federal Government in this behalf. Section 11 of the Passport Act, already reproduced above, then provides that the powers and functions of the Federal Government under the Passport Act can be delegated to any officer or authority subordinate to the Federal Government. The Passport Rules have been prescribed by the Federal Government and have been gazetted. To the extent that the legislature, in terms of section 8 and 11 of the Passport Act, has vested in the Federal Government the authority to further delegate its powers and functions under the Passport Act in a prescribed manner, and the Federal Government has exercised such powers by prescribing the Passport Rules, it is arguable that Rule 23, that vests authority to impound, confiscate, cancel or inactivate a passport in the Secretary of the Federal Government, Director General Immigration and Passport, Additional Secretary, Ministry of Foreign Affairs, and Heads of Pakistan Missions Abroad, constitutes lawful delegation of powers and functions to such officials. This Court, however, notes that as no arguments have been furnished with regard to the legality of delegation of authority by the Federal Government to the officials listed in Rule 23 of the Passport Rules, the legality of such delegation can also be considered in an appropriate case where such ground is raised. However, in the instant matter the respondents have not placed on record any order directing that the passport of the petitioner be impounded or confiscated or cancelled or inactivated and consequently the scope of authority under Rule 23 and the manner of its exercise is not relevant for deciding this petition. Before moving forward it must be noted however that in terms of Rule 23(4) of the Passport Rules, the Heads of Pakistan Missions Abroad have the power to impound passports of a person residing in a foreign country and the Head of Mission is to forward such passport to the Director General or Additional Secretary of the Ministry of Foreign Affairs for confiscation, cancellation or inactivation as the case may be, after the Head of Mission has satisfied himself or herself with regard to the undesirability of the citizen residing abroad. 11. Rule 23(5) of the Passport Rules lists the cases in which a passport may be impounded, confiscated, cancelled or inactivated and Rule 23(6) then lists the grounds on which such penal action may be taken. Rule 23(6)(d) of the Passport Rules can be considered relevant for our present purposes, as it provides a ground for taking penal action against a citizen who was, "convicted in the host country for a crime involving moral turpitude." 12. Let us now consider the scheme of Rules 21 and 22 of the Passport Rules. Rule 21 lists the grounds for refusal of the issuance of a passport to a citizen. Rule 22(1), vests in the Federal Government the power to regulate the entry or exit of a person from Pakistan. Rule 22(2), also reproduced above, provides that the Division of the Federal Government and the Directorate General of Immigration and Passport shall prepare and maintain a PCL "for placement of names and other record of individuals who have been refused passport facilities under these rules ...". Those who have been refused passport facilities are then divided into categories "A' and "B'. Rule 22(2)(c) then provides that a person placed on PCL will ordinarily remain on such list for a period of five years. Rule 22(4) addresses a situation where the grounds for refusal of issuance of a passport mentioned in Rule 21 are applicable to a person but he or she has already been issued a passport. In such event, Rule 22(4) provides that the, "passport shall be inactivated to avoid issuance of subsequent passport and placed on the Integrated Border Management System ("IBMS") for refusal of immigration services." 13. As has already been highlighted above, the Passport Act itself does not create the power to inactivate a passport, and it is Rule 22(4) that first mentions the concept of inactivating a passport. And Rule 23 of the Passport Rules then prescribes the manner and the grounds on which such power is to be exercised. As has also been mentioned above, the question of whether or not the said rules suffer from legal infirmity for being beyond the scope of the power delegated by the legislature to the Federal Government in terms of the provisions of the Passport Act will be
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considered in an appropriate case. For now suffice it to mention that a person in whose case any of the grounds for denial of passport in terms of Rule 21 of the Passport Rules apply, his/her passport is to be inactivated to avoid the issuance of a subsequent passport, and the name of the person is to be placed on the IBMS for refusal of immigration services. 14. What emerges from the scheme of the Passport Act read together with the Passport Rules is that the action of impounding, confiscating, cancelling or inactivating a passport is a penal action that precedes the placement of a person's name on the PCL. This is evident from Rule 22(2), which prescribe the manner in which the passport list is to be maintained and further that the names of individuals who have been "refused passport facilities" shall be included in the PCL. Rule 22(4) also refers to emergency action of a penal nature, where by virtue of a person falling within the grounds for refusal of a passport in Rule 21 of the Passport Rules, the name of the person with a valid passport is to be placed on the IBMS for refusal of immigration services, and the passport is to be impounded by the immigration officer and is to be sent to the DG I&P. The immigration officer referred to in Rule 22(4) does not feature in the list of officials who have been vested authority in terms of Rule 23 of the Passport Rules to impound, confiscate, cancel or inactivate a passport. Rules 22 and 23, when read together with Rule 21, make it evident that an immigration officer can impound a passport where it has been determined by the Federal Government that a citizen is liable to be refused the issuance of a passport in terms of Rule 21 of the Passport Rules, but such citizen has already been issued a passport. In such circumstances, there would need to be an order passed by the Federal Government in accordance with the provisions of the Passport Act read together with the Passport Rules determining that a citizen, with a valid passport, is liable to have his passport impounded, confiscated or cancelled due to any of the grounds mentioned in Rule 21 being applicable to his case. It is after such determination that the immigration officer at the relevant border or a check post would be aware that Rule 21 applies to the citizens seeking immigration services at such border or check post and that the services are to be refused to him/her and the passport is to be impounded and sent to the DG I&P. 15. What is also evident from the plain reading of section 8 of the Passport Act is that except for a case falling within the proviso to section 8(2) or satisfying the conditions mentioned in section 8(3), no penal action in terms of cancelling, impounding, confiscating or inactivating a passport can be passed against a citizen without the Federal Government issuing a show cause notice to the citizen and affording him for an opportunity to make out a case as to why penal action ought not be taken against him/her. The right of a citizen to be heard is not just a due process right guaranteed by Article 10-A of the Constitution. It is also a statutory obligation imposed on the Federal Government in terms of section 8 of the Passport Act. Consequently, without issuing notice to a citizen whose passport is to be impounded, confiscated, cancelled or inactivated and affording him an opportunity to show cause as to why such penal action ought not be taken, no order in terms of section 8 of the Passport Act read with Rule 21, 22 and 23 of the Passport Rules can be passed for taking such penal action. It is also evident from section 8(1) of the Passport Act that the right of the Federal Government to take penal action must be exercised by virtue of an order passed by a Secretary to the Federal Government or an officer authorized by the Federal Government in this behalf (in accordance with the requirements of section 11 of the Passport Act). This further underlines the requirement of application of mind while taking penal action in terms of section 8 read with Rule 23 of the Passport Rules, while recording reasons as to why such penal action has been taken. It is now settled the requirements of section 24A of the General Clauses Act, 1897, is to be read in every statute[1]. In the event that an order passed in exercise of authority vested in the Federal Government in terms of the Passport Act to cancel, impound or confiscate a passport does not contain reasoning, such order will fall foul of the requirements of section 24A of
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the General Clauses Act, 1897, and would be colorable exercise of authority for not being just, fair and reasonable. 16. The scheme of the Passport Act and the Passport Rules as discussed above makes it abundantly clear that a reasoned order declaring that the passport of a citizen is liable to be impounded, confiscated, cancelled or inactivated is a precondition to the placement of a citizen's name on the PCL. No citizen can arbitrarily be prevented from exercising his fundamental right to liberty and his fundamental right to travel freely guaranteed by Articles 9 and 15 of the Constitution[2]. Where such right is being curtailed, the same has to be done in accordance with law, and the penal action restricting the exercise of such fundamental rights is to be exercised in a manner that is least restrictive to such fundamental right[3]. This constitutional scheme also underscores why it is imperative that a reasoned order be passed declaring that the passport of a citizen is liable to be impounded or confiscated or cancelled or inactivated before the Federal Government seeks to interfere with the right of such citizen to liberty and/or to travel freely by placing the citizen's name in the PCL. 17. The other commonsensical reason for why an order in terms of Rule 23 of the Passport Rules must precede the placement of a citizen's name on the PCL is that without such an order, the immigration officers or the officers within the DG I&P would have no basis to determine whose name is to be placed in the PCL. The various grounds for refusing the issuance of a passport mentioned in Rule 21 of the Passport Rules also reflect that there is need for the Federal Government to pass judgment in relation to a citizen that one of the grounds mentioned in Rule 21 of the Passport Rules is applicable to the…
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