Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Islamabad High Court on 2023-07-20, officially reported as 2023 IHC 116. In this matter between Faisal Maqbool Shaikh and Federation of Pakistan through Secretary Interior, Ministry of Interior, Islamabad and 02 others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.

Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.

Full Judgment Text & Judicial Ruling

Court Name: Islamabad High Court Judge(s): Tariq Mehmood Jahangiri Title:Faisal Maqbool Shaikh vs Federation of Pakistan through Secretary Interior,

Ministry of Interior, Islamabad and 02 others Case No.: Writ Petition No.2141 of 2023 Date of Judgment:2023-07-20 Reported As: 2023 IHC 116, 2023 IHC 340, 2025 PCRLJ 425 Result: Petition Accepted Judgment ORDER The petitioner, through the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has challenged notification dated 23.01.2023, issued by Director, F.I.A. Islamabad, whereby his name has been placed on the Passport Control List ("PCL"). 2. Succinctly stated facts of the matter are that respondent No.2, conducted an inquiry and registered a case against the petitioner vide F.I.R. No.38 of 2022, dated 06.10.2022, under sections 420, 468, 471, 477-A, 109, P.P.C. r/w 5, 23 FER Act, 1947, Police Station FIA, CBC, Islamabad; bail before arrest of the petitioner was confirmed by the learned Special Judge Central, Islamabad but later on respondents placed his name on PCL, hence the instant writ petition. 3. Learned counsel for the petitioner, inter alia, contends that impugned action of respondents is discriminatory and violative of the provisions of the Constitution, fundamental rights of the petitioner have been jeopardized; impugned action of respondents restricting the movement of the petitioner is unwarranted, unlawful and illegal, hence is liable to be set aside. 4. Conversely, learned Assistant Attorney General assisted by learned Special Prosecutor, F.I.A. has controverted the arguments advanced by learned counsel for the petitioner and has stated that petitioner was on bail before arrest and in order to restrain him from fleeing abroad his name was placed on PCL just to ensure his presence for completion of investigation; fundamental rights of the petitioner have not been infringed and has prayed for dismissal of instant writ petition. 5. Arguments advanced by learned counsel for the parties have been heard and record has been perused with their able assistance.

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6. F.I.A. has filed report / parawise comments, wherein it is mentioned that after enquiry No. 105/2022, dated 05.08.2022, a case was registered by Police Station, F.I.A. Commercial Banking Circle, Islamabad vide F.I.R. No.38, dated 06.10.2022, under Sections 420, 468, 471, 477-A, 109 PPC r/w 5, 23 FER Act, 1947; the petitioner is nominated accused; he was cosignatory in Merchant account / Commercial account No.074188300400 titled "Naya Pakistan" opened by Pakistan Tehreek-e-Insaf at United Bank Limited, Jinnah Avenue Branch, Islamabad, he has signed 30 Debit Authorities for transfer of funds from said account for the period 07.03.2013 to 10.06.2015. 07. Pre-arrest bail of the petitioner was confirmed; he joined the investigation; as the petitioner is nominated accused in the abovementioned case / FIR and in order to restrain him from fleeing abroad his name was placed on BL / Passport Control List vide Notification dated 23.01.2023, which is reproduced as under:

08. The Passport Rules, 2021, are issued vide S.R.O of Ministry of Interior, Islamabad dated 13.02.2022; section 22 of the rules ibid deals with the passport control list which is reproduced as under: "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) ---------------------- (d)---------------------- (emphasis added)" 9. In the aforementioned section, placing of names on the Passport Control List is the domain of the Federal Government, whereas the Division Concerned and Directorate General has to prepare and maintain PCL. 10. The criteria for placing of names is provided in category A' & B'. According to category A', names of those persons are placed who are involved in taking part in anti-state activities and under category B' names of persons are placed who have been refused passport under the rules other than anti-state activities specified in clause (a). 11. In the instant case there is no allegation that the petitioner was ever involved in anti-state activities or his visit to foreign countries has considered to be prejudicial to the State interest. The petitioner has never been refused the issuance of passport, so his case does not fall under the criteria mentioned in Rule 22 ibid. 12. It is mentioned in Rule 22(1) that the Federal Government is vested with the powers to regulate the departure from and entry into Pakistan and also visit to foreign countries under the Act but in the instant case no approval of the Federal government has been obtained. 13. According to principle of law laid down by the Hon ble Supreme Court of Pakistan in a case titled as "Messrs Mustafa Impex, Karachi and others vs. The Government of Pakistan through Secretary Finance, Islamabad and others", (PLD 2016 SC 808), whenever a power is coferred on

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the Federal Government it is construed as a power given to the Prime Minister and the Federal Ministers / Cabinet to be exercised in the name of Federal Government. Reliance in this regard is also placed on the law laid down by the Hon ble Supreme Court of Pakistan in following cases: i. "Controller General of Accounts vs. Fazal Ahmad, DAO EC (C&W Division Hangu) and others", (2021 SCMR 800) ii. "Government of Sindh through Secretary Health Department and others vs. Dr. Nadeem Rizvi and others", (2020 SCMR 1) 14. Nothing has been placed on record that may indicate that the Federal Government has given approval regarding placing of name of the petitioner on Passport Control List (PCL) as provided in Rule 22 (1) of the Passport Rules, 2021. 15. In Rule 22(2), it is mentioned that the Division Concerned and Directorate General shall prepare and maintain PCL. "Directorate General" is defined in section 2(2) of the rules, which is as under: "2(e). "Directorate General" means the Directorate General of Immigration and Passports established to regulate the matters relating to immigration and passports and matters ancillary thereto; Whereas, Division concerned is defined in Rule 2(f) which is as under: "2(f). "Division concerned" means the Division of the Federal Government to which business of the Directorate General stands allocated; In the instant case no list for placing the name of the petitioner on PCL has been issued by the "Division Concerned" or "Directorate General". 16. Main objection taken by the respondents was that as per section 8(a) of Banks Ordinance, 1984, accused cannot depart from Pakistan or be employed by any person after a Special Court has taken cognizance of a scheduled offence alleged to have been committed by an accused person, and such person shall not, without the permission of the Special Court, depart from Pakistan until the case has been finally decided by the Special Court. 17. But in the case in hand, the police has not submitted challan, so learned trial Court has not taken cognizance of the matter. Regarding taking of cognizance of the case, principle of law has been laid down in a case titled as "Ali Gohar and others vs. Pervaiz Ahmed and others", (PLD 2020 Supreme Court 427) that: "Given the above discussed, ordinary meaning of "cognizance of the case" and the judicial opinion rendered thereon, it can plainly be stated that ATC would be said to take "cognizance of the case" when on the receipt of the challan along with the material placed therewith by the prosecution, it takes judicial notice thereon by the conscious application of mind and takes positive steps to indicate that the trial of the case is to follow. These steps need not necessarily be recorded as judicial orders. What is essential is that the orders so passed or steps taken reflect that ATC is to proceed with the trial." (emphasis added) 18. In a case titled as "Muhammad Umer Mangrio vs. The State", (2014 MLD 1813) it has also been held that "taking of cognizance means that after submission of challan alongwith material submitted, the Court decides to proceed in the matter in accordance with law". Reliance is also placed on a case titled as "Haq Nawaz and others vs. The State and others", (2000 SCMR 785). 19. Special Prosecutor appearing on behalf of F.I.A. has apprised that challan / report under section 173 Cr.PC has not yet been submitted. It is provided in Section 173 Cr.PC that challan be submitted within a period of fourteen (14) days from the date of recording of first information report but in the instant case challan has not been submitted after the delay of one year. Section 173 Cr.PC is reproduced here for ready reference: "173. Report of police officer: (1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer incharge of the police-station shall [through the Public Prosecutor]--

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(a) forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and (b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given: [provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under Section 154, the officer incharge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence], (2) Where a superior officer of police has been appointed under Section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer incharge of the police-station to make further investigation. (3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. (4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial: Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost. [(5) Where the officer incharge of a police station forwards a report under sub-section (1), he shall along with the report produce the witnesses in the case, except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other Court on the date fixed for trial.]" (emphasis added) In the instant matter liberties of a senior citizen has been curtailed on the ground of registration of FIR but challan / report u/s 173 Cr.PC has not been submitted since last one year; non-submission of challan within stipulated period has highly been deprecated by the Superior Courts. In this regard, law has been laid down by the Hon ble Supreme Court of Pakistan in a case titled as "Adnan Prince vs. The State through P.G., Punjab and another", (PLD 2017 Supreme Court 147) that: "Thus even today charge sheets and submission of the challans before the competent courts in criminal cases are delayed beyond the mandatory statutory period for no reason much less plausible. Even interim challans as required under the law are not submitted within the statutory period. This conduct and attitude as well as performance of investigating, prosecution and detective agencies are absolutely un-acceptable and un-condonable because on the one hand, the law is disregarded while on the other hand, with the passage of time and long delay in the submission of challans, trial in each case is delayed and some of the witnesses including star witness either vanish being killed by the opponents, meet natural death or abandon their permanent abode/place of official duties due to transfer to another place or district making it a cumbersome job for the trial court to procure their attendance. This is one of the major contributory factor in the backlog, crisis/pendency of criminal cases. Such type of un-condonable delay in many cases becomes a cause of frustration both for the accused, the aggrieved

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complainant party and in some cases, the aggrieved party ordinarily takes the law into hands indulging in revengeful acts. 11. Accordingly, copy of this judgment be sent to the Attorney General of Pakistan, all the Prosecutor Generals of the Provinces and Islamabad Capital Territory-ICT, Advocate Generals of the four Provinces, DIGs/Addl. IGPs who are the Incharges of the Investigation Wings, Ministry of Interior, Govt. of Pakistan and all the Chief Secretaries of the four Provinces, all the Home Secretaries of the provinces, IGP-Islamabad, Chief Commissioner-ICT with the direction to hold deliberations and consultations and after giving deep thought to the subject matter, they should collectively and individually devise a proper strategy/policy to arrest this grave menace of delay and causes thereof and to immediately redress the same within the possible minimum time so that compliance is made with the mandatory provision of law and the relevant article of the Constitution in its true letter and spirit and to make accountable each and every officer who is found responsible for such delay and to show a visible and efficient performance in all three fields, failing which the public would be justified to protest that their money is going waste without any fruitful result even after introduction of the new system. 12. Copy of the actions taken along with minutes of each and every action taken, in view of above guidelines be submitted periodically to the Registrar of this Court with detailed information about the cases pending investigation before the Investigating Agency, the Prosecution Branch and to explain the delay in the submission of challans to the trial court". (emphasis added) 20. In another case titled as "Hakim Mumtaz Ahmed and another vs. The State", (PLD 2002 Supreme Court 590) it has been held by the august Supreme Court of Pakistan that: "9. Delay in submission of challan/police report under section 173, Cr.P.C. has been noticed invariably in the criminal cases, despite the fact that section 173 of the Code of Criminal Procedure has been amended by Act XXV of 1992 whereby a facility has been extended to the Investigating Agency for submitting interim report the period of 3 days from the completion of period of 14 days of the police remand but instead of deriving benefit from this provision of law, the Police Authorities including S.H.Os. and high-ups up to the rank of Senior Superintendent of Police never bothered to comply with this mandatory provision of law. 10. Undoubtedly section 173, Cr.P.C. was amended vide Act XXV of 1992 with a view to improve performance of the Police Department and simultaneously to stop the police from adopting protracted investigation process for one of the other pretext but the police authorities had in fact rendered the provisions of section 173, Cr.P.C. ineffective by not following its spirit." (emphasis added The Inspector General of Police was directed to take action against the S.S.P, who failed to supervise investigation of the case effectively, as a result whereof submission of challan was delayed. Reliance is also placed on a case reported as 2006 SCMR 1547. 21. The name of the Petitioner has been placed the PCL only on the ground that he is an accused in the FIR No. 38/2022. Particularly when the challan/report under section 173 of CrPC 1898 has yet to be submitted in the court despite lapse of more than one year. The retention of Petitioner s name on PCL is violative of his fundamental rights to due process, liberty, life, and freedom of movement which are guaranteed by the Constitution of Islamic Republic of Pakistan, 1973. The relevant Articles are reproduced herein below for ready reference: "ARTICLE 4. Right of individuals to be dealt with in accordance with law, etc. (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen. Wherever he may be, and of every other person for the time being within Pakistan. (2) In particular--

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(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not required him to do." "ARTICLE 9. Security of Person. No person shall be deprived of life or liberty save in accordance with law." "ARTICLE 10A. Right to Fair Trial. "For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process." "ARTICLE 15. Freedom of Movement, etc. Every citizen shall have the right to remain in, and, subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof." Guidance in this regard is obtained from the laws and principles laid down by the superior courts of the country which are as under: (i) Government of Pakistan & another v. Dada Amir Haider Khan, PLD 1987 SC 504 "...As there is not much difference between Article 9 and Article 4(2)(a) and the former appears merely to be a deduction from the latter, Article 9, therefore, does not take the matter any further. However, Article 15, which confers upon every citizen, inter-alia, the right to enter and move freely throughout Pakistan, is of greater relevance. Article 15 guarantees to every citizen the right to remain in, enter and move freely throughout Pakistan. But his right to enter the country if he is leaving it or has gone abroad and his right to step out and step in the country are subject to reasonable restrictions imposed by law in the public interest. By reading the provisions of Articles 4, 9 and 15, it is manifest that every citizen) has the liberty to go abroad and to re-enter Pakistan unless he is, precluded from doing so under some law made in the public interest. The Passport Act, 1974, is one such law. Indeed its preamble itself recites that it has been enacted to regulate the departure from and entry into Pakistan and visits to foreign countries of citizens of Pakistan..." "It is now established law that a discretion vested in a public authority must be exercised fairly, reasonably and in good faith." "This Court in Messrs East and West Steamship Company v. Pakistan PLD 1958 SC 41 took a similar view Muhammad Munir, C.J. observing that "where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party." "...Undoubtedly, to travel abroad could be barred if it was shown that the applicant was going abroad to meet the enemies of the country and his foreign visit could endanger the security of the State or was against the public interest. Nothing of the kind has been stated and the only reason given while refusing the passport to the respondent is that he was a person of "communist thought"." "Moreover, a citizen's right to travel abroad is an important aspect of the citizen's liberty and is closely related to the rights of free speech and association."(emphasis added) (ii) Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. & others v. Federation of Pakistan through Secretary, Ministry of Interior & others, PLD 2007 SC 642 "Every citizen has undeniable right vested in him as conferred under Article 15 of the Constitution to go abroad and return back to Pakistan without any hindrance and restraint but it must be kept in view that it is neither absolute nor unqualified as is indicative from the language employed in Article 15 of the Constitution as a specific mention has been made "subject to any reasonable restriction imposed by law in the public interest", meaning thereby that such right is subject to the relevant law which is in existence at relevant time but an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken

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upon extraneous or irrelevant considerations is also not action in accordance with law. Therefore, action taken upon no ground at all or without proper application of the mind of an authority would also not qualify as an action in accordance with law and would, therefore, have to be struck down as being taken in an unlawful manner" (emphasis added) (iii) Federation of Pakistan through Secretary, Ministry of Interior v. General (R) Pervez Musharraf and others, PLD 2016 SC 570 "12. Apart from the above discussion, considering the question of inclusion or retaining the name of respondent No. 1 in the ECL, thereby, restricting his freedom of movement, we also cannot lose sight of the fact that under Article 15 of the Constitution freedom of movement is one of the fundamental rights guaranteed to every citizen of the Country, which cannot be abridged or denied arbitrarily on mere liking or disliking, without any lawful justification for this purpose. More so, when Article 4 of the Constitution further guarantees right to every individual, to be dealt with in accordance with law..." (emphasis added) (iv) The Federal Government through Secretary Interior, Government of Pakistan v. Ms. Ayyan Ali & others, 2017 SCMR 1179 "6....The High Court's judgment was upheld by this Court vide judgment dated 13.4.2016. It was held that mere pendency of a criminal case cannot furnish a justification for restricting the movement of respondent No. 1...." "13....It was not only in the case of Wajid Shamsul Hassan v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad (PLD 1997 Lahore 617), where it was held that the liberty of a citizen cannot be curtailed by mere registering a criminal case, and that mere registration of FIR would not be a ground for depriving a citizen of the exercise of his constitutional right and further that registration of a criminal case has no nexus with and is extraneous to the object of the Exit from Pakistan (Control) Ordinance 1981, but even in the case of respondent No.1, in relation to the second Notification/Memorandum, this Court, while dismissing the petitioner's petition for leave, through judgment dated 13.4.2016, has held as follows:- "5. Respondent No.1, no doubt, has been charged in a case mentioned above which is still pending adjudication in the competent Court of law. But mere pendency of a criminal case cannot furnish a justification for prohibiting her movement...." (emphasis added) (v) Sheikh Shan Ilahi v. Federation of Pakistan through Secretary Interior, Ministry of Interior, Islamabad & 6 others, PLD 2023 Lahore 359 "25. From the above discussion it follows that the right to travel and to go abroad is an integral part of the fundamental rights to life and liberty and can be restricted only under a law made in the public interest. Here, the…

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