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P L D 1969 Lahore 908

Before Muhammad Akram and Muhammad Gul, JJ

Syed ABUAL A ALA MAUDUDI‑Petitioner

Versus

(2) THE CENTRAL GOVERNMENTPAKISTAN OF PAKISTAN‑ Respondents

Writ Petition No. 1715 of 1967, decided on 7th October 1968.

(a) Constitution of Pakistan (1962)

, Art. 6, Fundamental Right No. 5‑Object‑Freedom of movement‑Whether right of freedom to move freely throughout country embodies within it, as a compo nent part thereof, the right to step out of, or into, Pakistan (Quaere)‑[Per

Muhammad Akram, J

.].

The main, if not the sole, purpose behind this safeguard in Fundamental Right No. 5 of the Constitution is to remove all territorial barriers within the country for the citizens of Pakistan. It is designed to be a check against provincialism, regional dis. crimination and all parochial considerations. To a citizen of Pakistan, the whole of this country, the East and the West, is his cherished home freely and equally accessible to him. Subject to any reasonable restrictions imposed by law in the public interest, he is free to move about, settle and reside in any part of the territory throughout Pakistan. But the converse of it may not be true and it does not necessarily follow that a citizen of Pakistan has no freedom of movement at all to leave his country. On the contrary, on a deeper consideration, one might as well ask if this freedom of movement throughout the country embodies within it, as a component part and parcel thereof, the right to step out or into this country at the moment he is crossing its borders.

Rex v. Brailsford and another (1905) 2 K B 730 and Manzoor Khan v. Government of Pakistan P L D 1966 Pesh. 29 ref.

(b) Constitution of Pakistan (1962)

, Art. 6, Fundamental Right No. 1‑Word "liberty"‑Connotation‑Freedom of locomotion, part of liberty of people‑Personal liberty of individual includes enjoyment of undeniable right vested in him to go abroad for travel and to return to his country‑Such right, however, subject to regulation and control bi, valid law‑[Per

Muhammad Gul and Muhammad Akram, JJ. contra

].

Per

Muhammad Akram

,

J

.‑

The freedom of locomotion is a part of the liberty of the people. The Fundamental Right No. 5 affords protection to the citizens of Pakistan. But Fundamental Right No. 1 is more extensive in its application to all persons and is in the nature of a safeguard for the personal liberty (jus personarum) in the people. In Pakistan the personal liberty of an individual is secured to him under the Fundamental Right No. 1 in the Constitution and as a necessary corollary flowing from this he also enjoys the undeniable right vested in him to go abroad for travel and to return to his country again. But this is by no means an absolute and unqualified right. It has its own limitations and the restric tions imposed on it under the Constitution. Fundamental Right No.1 itself provides that no person shall be deprived of his life or liberty "save in accordance with law". So that the liberty of free movement in a person to go abroad is strictly subject to and regulated and controlled by the provision of any valid law for the time being in force in the country. He is bound by and subject to the law of the land, which must be obeyed.

Blackstone's Commentaries, Vol. I, p. 134 ref.

A. K. Gopalan v. State of Madras A I R 1950 S C 27; (1952) 61 Yale Law Journal 171 (203); Kent v. Dulles 357 U S 116; Aseerwatham v. Permanent Secretary, Ministry of Defence and External Affairs and others Journal of the Inter national Commission of Jurists, Vol. VI, No. 2, p. 319; Winter (1965 Part) and Satwant Singh Sawhney v. The Government of India Journal of the International Commission of Jurists, Vol. VIII, No. 2, p. 134 (December 1967 Part) rel. V. G. Row v. The State of Madras A I R 1954 Mad. 240 distinguished.

Per Muhammad Gul

,

J.

‑---

Fundamental Right No. 1 occurs under the caption "Security of Person" which stands in sharp contrast with caption of Funda mental Right 5, which guarantees "Freedom of Movement" The word "security" in the caption is plainly used in the sense of protection so as to guarantee freedom from physical restraint. The word "deprived" in the operative part of the provision which qualifies both "life and liberty" is equally significant. According to Blackstone's Commentaries, Book I, p. 134, "deprivation" means total loss and therefore has not the same meaning as restrictive of free movement. What is sought to be protected by Fundamental Right No. I is loss of life and personal liberty, that is to say, freedom from physical restraint of person and by incarceration as distinguished from restriction or partial control of the right to move freely. Else the word "deprived" would be inapt grammatically when used with reference to "life".

If the word "liberty" in Fundamental Right No. l is understood in its generic sense so as to comprehend within its connotation, freedom of "universal locomotion" in any part of the world, then Fundamental Right No. 5 which guarantees freedom of movements to every citizen to move throughout Pakistan would be reduced to a redundancy: in effect it would be a repetition of what has already been ordained in Fundamental Right No. 1, which is avail able to every person, citizens and alien alike. Conversely, no such anomaly would arise, if we were to understand the word "liberty" in the sense of personal liberty of an individual, that is to say, freedom from restraint or incarceration. This would be in accord with the principle of interpretation that it must be read as whole with a view to determining the intention of each part, and the construction must be uniform and harmonious.

Alleger v. State Lousinia (1897) 165 U S 578; Mayer v. 1Vebraska 262 U S 390; Gopalan's case A I R 1950 S C 57; Bolling v. Sharp 347 U S 497 (49)); Jabindra Kishore etc. v. Province of East Pakistan P L D 1957 S C (Pak.) 9 and East & West Ship ping Steamship Company v. Pakistan P L D 1958 S C (Pak.) 41 rel. Kent v. Dulles 357 U S 116 held not applicable.

(c) Foreign Exchange Regulation Act (VII of 1947)

‑ Act primarily penal and not preventive in its application, effect and consequence.

Foreign Exchange Regulation Act, 1947 does not envisage and forestall any action to prevent the breach of its provisions. It is primarily penal and not preventive in its applications, effect and consequences.

(d) Foreign Exchange Regulation Act (VII of 1947)

, Ss. 8(I) & 23‑Actual contravention of provisions, attempt to contravene or abetment thereof alone actionable under sections read together Government having reasons to believe that a person while abroad "is likely to receive funds and import same into Pakistan without allowing such funds to be dealt with under Foreign Exchange Regu lation Act", directing State Bank to refuse permission to him to proceed abroad‑Person, in circumstances, held, could at best be said to have made some preparation but no direct movement, or overt act or attempt for evasion of Act‑No actionable wrong having been committed, such person not guilty of any evasion cognizable under S. 8(1) read with S. 23 or any other provision‑Government or State Bank, held, not empowered to act in anticipation and to refuse permission‑Refusal of permission, in circumstances, held, unwarranted, misconceived and premature.

The only allegation against the petitioner was that on the secret information received, the Government had reasons to believe, that, the petitioner if allowed to go abroad, "is likely to receive funds and import the same into Pakistan without allowing the funds to be dealt with under the Foreign Exchange Regulation Act, 1947." At best, according to these allegations, so far there had been some preparation, but no direct movement or an overt act and an attempt on the part of the petitioner for the evasion of this Act. As such he did not appear to have committed any actionable wrong till then. This law, as it stands, does not take cognizance of the mere apprehension or even the belief in the mind of the respondent that the petitioner was likely to commit an evasion of the Act if allowed to go abroad. Therefore, the petitioner cannot be held guilty of any evasion cogniz able under section 8 (1) read with section 23 or any other provisions of the Act. Moreover, under none of these provisions the respondents ‑ were empowered to act in anticipation and refuse to issue the permission to the petitioner to go abroad on the ground that he was likely to commit an evasion of the Act in the foreign country. In these circumstances, the impugned action taken against the petitioner was unwarranted, misconceived and on the very face premature.

(e) Maxim

: actus non facit reum nisi mens sit rea (the intention and act must both concur to constitute the crime)‑Offence--- Three stages in commission of crime: intention, preparation and attempt‑Mere intention to commit offence not followed by vicious act does not constitute offence.

There are three stages in the commission of every crime. First comes the intention to commit; secondly, the preparation for it and thirdly the attempt to commit the crime. If after the third stage the attempt is successful the crime is complete. In case, however, the attempt has failed, the crime is not complete. Nevertheless the attempt towards the commission of the offence is made punishable under the law. In considering a series of transactions which go to constitute an offence one must bear in mind all the developments. There is a well‑known maxim of the criminal law: "actus non facit reum, nisi mens sit rea" (the intention and act must both concur to constitute the crime). The law does not take notice of the bare intention, however, vicious without the act. In this respect Lord Mansfield has held that "so long as act rests in bare intention it is not punishable by our law." Mere intention to commit an offence, not followed by the vicious act, does not constitute an offence. After the mind has been made up, next comes the preparation to commit the crime. It consists in devising ways and means and adopting certain preliminary measures necessary for the commission of the offence. It proceeds and differs widely from the attempt' which is the direct movement towards the commission after the prepara tion has been completed. These two stages must be distinguished.

In general during the preparation stage the offender has the locus poenitentiae, may change his mind and the overt acts already done by him do not constitute the offence. The mere prepara tion to commit an offence which leads to nothing, unless it is followed up, does not constitute the crime, much less its abetment .

In re: Ghulam Mahomed 13 PR 1879 ref.

(f) Foreign Exchange Regulation Act (VII of 1947)

S. 2S Central Government's power to issue directions under section‑Can not be gone beyond scope of Act‑Government not invested with plenary powers to issue any and every type of direction even beyond the pale of Act.

On a plain reading of section 25, Foreign Exchange Regula tion Act, 1947, it only means that, within the scope of the Act, the State Bank shall be bound by and exercise all its functions, subject to the general or special directions issued by the Central Government, from time to time. In this behalf the State Bank although constituted as a statutory corporation, is relegated to the subordinate position to follow all the lawful directions issued by the Government within this Act. This section cannot be cons trued as a source of new and independent power in the Govern ment. It does not envisage that thereby the Government is invested with any larger and plenary powers to issue any and every direction going even beyond the scope of the Act. It only means that in the discharge of its function specified in the various preceding sections in the Act, the State Bank shall be bound by the lawful direction issued by the Government. In other words this section does not legalize any direction issued by the Central Government if otherwise it was beyond the pale of the Act.

(g) Interpretation of statutes

‑Preamble‑Language of statute not open to doubt‑Preamble cannot either restrict or extend enact ing part‑Rights, whether public or private‑Cannot be taken away or even hampered by mere implications from language in absence of express words.

The preamble cannot either restrict or extend the enacting part, when the language is not open to doubt. Rights, whether public or private are not to be taken away or even hampered by mere implications from the language in the absence o f express words used in the statute.

Craies on Statute Law, Sixth Edn., p. 112 ref.

Deeble v. Robinson (1954) 1 Q B 77; In re: Cuno (1889) 43 Ch. D 12, 17; Walsh v. Secretary of State for India (1963) 10 H C L 367 and David v. De Silva (1934) A C 106 rel.

(h) Natural justice

‑Rule regarding affording of opportunity to party concerned to explain charge levelled against hurt‑Applicable even to absence of positive words to this effect in enactment ---Permission to go abroad refused without affording party concerned any hearing‑Party concerned, held, condemned unheard against principle of natural justice.

The impugned order was passed against the petitioner without affording him any hearing. He was condemned unheard against the principle of natural justice. The application, submitted by him to the State Bank for the clearance to go abroad, was rejected‑without informing him about the charge levelled against him and without even asking for his explanation in this matter concerning his rights. This rule applies even though there are no positive words to this effect in the enactment. Therefore, it was held, this writ petition is liable to be accepted for this short reason alone.

Abdur Rahman v. Collector and Deputy Commissioner P L D 1964 S C 461 and University of Dacca and another v. Zakir Ahmad P L D 1965 S C 90 rel.

(i) Evidence Act (I of 1872)

, S. 123 read with S. 162‑Privilege ‑ Unpublished official record relating to affairs of State ---Decision regarding preliminary question whether particular document belongs to class of unpublished record relating to affairs of State Must rest with Court ‑ Administration of Foreign Exchange Regulation Act (VII of 1947) being an affair of State, evidence in this connection pertains to unpublished record relating to affairs of State‑No one permitted to give evidence derived from unpublished ,official records relating to affairs of State save with permission of ,head of department concerned‑Copies of documents procured by illegitimate means by unknown persons and exhibited in Court ------Device adopted severely condemned.

Section 123 inevitably, raises two distinct and separate ques tions for consideration, before it can be applied in a given case. Firstly, the document under consideration must belong to the class of the unpublished records relating to the affairs of the State Only the evidence derived from this particular class of documents is privileged under this section. After this condition is satisfied, the next question then arises for consideration is as to whether this is a fit and proper case for withholding the required evidence from the Court. There has been and is a considerable divergence of judicial opinion as to who is to be the judge and decide the first question after it is raised for considera tion. The section itself is silent in this respect. But, on a plain reading of the section, this question has got to be treated as a preliminary issue for the decision by the Court, as best as it can in the situation in which it finds itself. This opinion, is indirectly fortified on further reference to the provisions contained in section 162 of the Evidence Act. This section lays down that a witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its ,admissibility. The validity of any such objection shall be decided on by the Court and the Court, if it sees fit, may inspect the document unless it refers to matters of State, or take other evidence to enable it to determine on its inadmissibility. The Court is not permitted to inspect the document if it refers to matters of State. But subject to this limitation, the decision with respect to the preliminary question must rest with the Court under these two sections read together. The administration of Foreign Exchange Regulation Act is an affair of the State and, therefore, all this evidence, in the possession and power of the two respon dents in this connection, on the very face of it, pertains to the unpublished record relating to the affairs of the State. The very nature and description of this evidence by the petitioner in his two applications leaves no room for doubt in this respect.

Sarkar on Evidence, Seventh Edn., p. 1189; Woodroffe and. Ameer Ali's Law of Evidence, 11th Edn., Vol. 3, p. 2615; Gover nor‑General‑in‑Council v. H. Peer Muhammad A I R 1950 E Pb. 228; R: M. D. Chamarbagwla v. Y. R. Parpia A I R 1950 Born, 230; Lady Dinbai Dinshaw Petit and others v. The Dominion of India and another A I R 1951 Bom. 72; State of Punjab v. Sohdi Sukhdeve Singh A I R 1961 S C 493; Amarchad Butail v. The: Union of India A I R 1964 S C 1958; Ghulam Ali v. Abdul Hafiz P L D 1962 Lah. 765; L M. Lal v. Secretary of State A I R 1944 Lah. 209; Mst. Nasim Fatima v. Government of West Pakistan and another P L D 1967 Lah. 103 and Malik Ghulam Jilani v. The‑, Government of West Pakistan and others P L D 1967 S C 373 ref.

(j) Malice

‑ Government order refusing facilities of travel abroad challenged as mala fide on grounds that (i) similar orders were passed on previous occasions also; (ii) some such orders were subsequently withdrawn; (iii) petitioner's organisation was barred;. (iv) he was detained under preventive laws; (v) petitioner's passport was cancelled and confiscated while he was under detention‑Fact that writ petition filed in respect of allegations (ii) and (iii) contained no finding of impugned orders having been passed maliciously but were passed purely on legal considerations‑Does not prove malice Petitioner failing to file affidavit in respect of allegations made by, him and failing to prove Government's action as mala fide‑Action' of authorities, held, does not, in circumstances, indicate mala fides‑Fact that in such cases previous orders were subsequently with drawn shows watchfulness of authorities in performance of their duties and not malice.

Saiyyid Abul A'la Maudoodi and others v. The Government of West Pakistan P L D 1964 S C 673; Rahmat Elahi v. Government of West Pakistan P L D 1965 Lah. 112 and Syed Abul A'la Maud doodi v. The Government of Pakistan Writ Petition No. 759 of 1965, considered.

(k) Constitution of Pakistan (1962)

, Art. 98‑Writ jurisdic tion‑Deprivation of person of his liberty of free movement not in accordance with law‑Such freedom ensured under Fundamental Right No. I of Constitution‑Writ petition, held, fully competent -----Constitution of Pakistan (1962), Fundamental Right No. 1.

(l) Interpretation of statutes

‑Statutes should be construed according to intent of Legislature‑Such intent can best be gathered from words and terms used in statute‑Whole statute and every part thereof to be considered to ascertain meanings of words used or true intention underlying legislation‑[Per Muhammad Gul, J.]

It is fundamental rule of interpretation of statutes which equally applies to the Constitutions, "that they should be construed, according to the intent of the Parliament .which can best be gathered from the words and terms used in the statute.

And it is equally well‑established rule that the meaning of the words of a statute or the true intention underlying them can be properly understood by a consideration of the whole instrument and every part of it.

Canada Sugar Refining Coy. v. Rex 1898 A C 735 (741); Maxwell on Interpretation of Statutes, 1962 Ed., Chap. 2 and Gopalan v. State of Madras A I R 1950 S C 27 ref.

(m) Precedent

‑ "Universal Declaration of Human Rights" adopted by U. N. O.‑Not part of Municipal Law and therefore of no binding effect.

M. Anwar and Razi Abbas Bokhari for Petitioner.

Raja Muhammad Anwar for Respondent No. 1.

Sh. Ghias Muhammad, Attorney‑General for Respondent No. 2.

Dates of hearing: 18th, 19th, 25th, 30th April, 7th, 8th, 9th and 14th May 1968.

JUDGMENT

MUHAMMAD AKRAM, J.

--‑This is a petition filed by Syed Abul A'ala Maududi under Article 98 of the Constitution of Islamic Republic of Pakistan challenging the validity of the order dated 18‑10‑1967, passed by the State Bank of Pakistan, under the directions given by the Government of Pakistan, refusing permission to him to visit Saudi Arabia or any country in the Middle East.

2. The petitioner is a citizen of Pakistan holding a valid Passport No. A. C. 198847 endorsed for travel to Saudi Arabia, Libya and most of the other Middle East countries. He is the Head of the Jama'at Islami, Pakistan. According to him he is well known all over the Islamic World for his services to the cause of Islam. He is a founder member of the Rabita Alam‑i- Islami' (world Muslim League) with its headquarters at Mecca. He is also a member of the Supreme Advisory Council of the Madina University, founded in the year 1962. He has averred that in connection with his services to the cause of Islamic.

Jurisprudence and theology, he is required to attend various con ferences, held from time to time in the different Muslim Countries for the propagation of Islam and the solution of the grave problems confronting the Islamic world in general. In the beginning of August 1967 the petitioner received an invitation from the Rabita Alam‑i‑Islami' to attend its meeting convened at Mecca commencing from 18‑10‑1967 for a period of 15 days, and the Organisation had also sent the return ticket to him for his journey by air. In this connection, on 9‑10‑1967 the petitioner applied on Form P‑2, prescribed for the purpose, to respondent No. 1, the State Bank of Pakistan, Lahore, through the Globe Travels (Pakistan) Limited, Lahore, for the permission to enable him to, book his passage by air to go to Saudi Arabia. But on 18‑10‑1967, the petitioner was informed, through one of his representatives, on telephone, that respondent No. 2, the Government of Pakistan was. opposed to his visit to Saudi Arabia and has refused the permission required by him. In these circumstances on 19‑10‑1967, the petitioner at first filed the Writ Petition No. 1693 of 1967, in this Court challenging the validity of the order passed against him. But afterwards, on 23‑10‑1967, he withdrew that petition, for technical reasons, with the permission to file a fresh one.

3. On 24‑10‑1967, the petitioner then filed the present writ petition against the two respondents and a Division Bench of this Court called for their comments in this matter. The Court also directed respondent No. 1 to produce the order on the basis of which this permission was refused to the petitioner. On the next date of hearing, on 30‑10‑1967, respondent No. 1 filed its written reply contesting the writ petition and at the request of the Attorney‑General for the Central Government, the case was adjourned to 14‑11‑1967 for report. In the report received from respondent No. 2, the Government has opposed the writ petition and alleged that it has reasons to believe that the petitioner, during his visit abroad, was likely to commit a contravention of the Foreign Exchange Regulation Act, 1947 and therefore, he could not be permitted to leave this country. In the meantime, the dates for the meeting of the Rabita Alam‑i‑Islami', commencing on the 18th of October 1967, to which the petitioner was invited, had expired. But on 14‑11‑1967, the petitioner filed an application, supported by his affidavit, in this Court to the effect that ever since he has also received two more invitations, one from the Islamic Sannusi University, Libya to deliver lectures on Islam‑on any dates convenient to him and the other from the United Muslim Students Organization, West Germany, for delivering lectures on Islam from 27th to 29th December 1967 and that he wanted to avail of both these invitations and was still desirous to go abroad in that connection at the request of the petitioner, this Court allowed the permission to him to amend his writ petition in this respect.

In the amended petition filed by the petitioner, he has alleged that the air‑ticket already received from the Rabita Alam‑i‑Islami, Mecca, was valid for a period of one year, its next meeting was scheduled to be held in Mecca, during March 1968, immediately before the Haj and that he would like to visit Saudi Arabia in that connection. He has further alleged that he has also received an invitation from the Islamic Sannusi University, Libya to deliver lectures on Islam on any dates convenient to him and in that connection he has already applied to respondent No. 1 on the prescribed pro forma, enclosing therewith his air‑ticket received from Libya, for the permission to go abroad. The petitioner has also alleged in the amended writ petition that he has received yet another invitation from the United Muslim Students Organization in Europe from West Germany for delivering lectures on Islam from 27th to 29th December 1967. He has accepted these invitations and only needed the formal permission of the State Bank of Pakistan to leave this country. He has explained that his visits abroad are being sponsored by the foreign organizations entirely at their expense, so that he does not have to incur any expenditure in terms of foreign exchange in connection with his travels and stay abroad. The petitioner has submitted that the aspersions cast against him in the report received from respondent No. 2 that he was likely to commit an evasion of the Foreign Exchange Regulation Act, 1947, in the foreign country, was absolutely baseless, false and defamatory and that the impugned order was passed against him by respondent No. 2 in utter bad faith, for ulterior reasons, and without any lawful authority. He has emphasized that he has a right to proceed abroad on the passport in his possession, good for travel to all the three countries in question. The petitioner has averred that the State Bank of Pakistan, is an autonomous body constituted under its own charter. It must exercise its own independent judgment in these matters and cannot surrender its own authority and yield to the illegal demands made on it by the Government. As such the direction issued by respondent No. 2 to respondent No. 1 in this behalf was in excess of the lawful authority vested in it.

4. After the amended petition, on 21‑I1‑1967 this Court had to call for a fresh report on the additional allegations made by the petitioner and respondent No. 2 submitted a further report and also filed its written statement in Court, opposing the request of the petitioner for his intended visits to any of the Middle East Countries. Respondent No. 2 has repeated the allegation that the Government has reasons to believe that during his visits abroad to Saudi Arabia and the Middle East Countries, the petitioner was likely to commit a contravention of the Foreign Exchange Regulation Act, 1947. The Government has, however, claimed privilege against the disclosure of this secret information in its possession, under section 123 of the Evidence Act. The respondent has asserted that the Government has taken this decision against the petitioner in perfect good faith, on the facts brought to its notice, in bona fide and lawful exercise of the powers vested in it under section 25 of the Act. Respondent No. 2 has also defended this order as being intra vires and within the law.

5. A copy of this impugned order has been produced in this. Court by the respondents. It is in the form of a telex message sent by the Finance Department, Government of Pakistan, Rawalpindi, to the State Bank of Pakistan, Karachi, on 18‑10‑1967, and its text is reproduced below:‑

"Reference Bankrate's Telex No. Kar‑3529 dated 10^th October 1967 regarding P form Clearance in favour of Maulana Abul A'ala Maudoodi (.) Home Affairs Division have been consulted who are opposed to the grant of P ‑form clearance for the intended visit to Saudi Arabia to attend a meeting of the Rabita‑i‑Alam‑e‑Islami (.) Home Affairs Division are also opposed to his visit to any country of the Middle East (.) Bankrate may take necessary action in the matter (.)"

6. In this Court, on behalf of the petitioner, on 20‑2‑1968, his learned counsel conceded that this petition, so far as it related to his intended visits to Saudi Arabia in October 1967 and West Germany in December 1967, has become infructuous, by this lapse of time. However, the learned counsel maintained that the petitioner was still anxious to attend the Rabita Alam‑i‑Islami conference due to be held in Mecca before the Haj, in March 1968 and also avail of the open invitation issued to him by Islamic Sannusi University, Libya to deliver lectures on Islam on any dates convenient to him.

7. In this case we have heard the lengthy arguments addressed to us by the learned counsel for the parties. Before us the learned Attorney‑General of Pakistan has formulated the following points in reply to the writ petition, in defence of the impugned order in question. We are reproducing this from his written note filed in this Court at the commencement of his arguments. He has argued that:‑

"(1) The impugned order was passed with an intent to prevent evasion of Foreign Exchange Regulation Act, and is thus within the competence of Government under section 25 ibid. The power to issue directions for purposes of the Act include and imply power to issue directions to prevent evasion of the Act.

(2) Inasmuch as the impugned order does not involve excess of jurisdiction and no legal right of the petitioner is injuriously affected thereby, the writ petition is not maintainable.

(3) (a) The matter involved being of an executive character pertaining to financial and economic policy of Government, the adequacy of grounds and reliability of information on which it is based was for the Government to judge.

(b) Merits of the order as distinguished from its legality cannot be enquired into by Court and abuse of power cannot easily. be assumed in a case required to be dealt with at the high Government level. There is presumption in favour of bona fide of Government action.

(4) The power to control travel abroad for purposes of the Foreign Exchange Act is clearly envisaged by various provisions including section 20(3) of the Act, and the instructions contained in para. 245 of the State Bank Exchange Control Manual is perfectly valid. To suppress mischief Government cannot be restricted to action under the General provisions of Passport Act when a special provision exist to deal with a particular situation. Government cannot be forced to take action under one provision of law rather than the other.

(5) Unpublished official records pertaining to affairs of the State are privileged documents and Government cannot be compelled to produce the same when their disclosure will be prejudicial to public interest and detrimental to good diplomatic relations as urged in the instant case."

8. In my opinion the fate of this case shall ultimately depend on finding a true answer to these questions raised before us. The first question that inevitably arises in this case and was repeatedly asked by us at healing is: What, is the exact nature and extent of the legal right, if any, vested in the petitioner on which he can rely and insist that he should be allowed to leave this country and go abroad at his own free will and pleasure, without any restrictions

9. In this connection the learned counsel for the petitioner asserted, again and again, that the petitioner is in possession of a valid passport issued to him by the Pakistan Government in the year 1966 and vaguely contended that thereby, a citizen of Pakistan, he is clothed with a right to go abroad and visit all the countries for which his passport is endorsed. But he was not able to rely on any specific provision in the Constitution or the law to advance his contention in this respect. The best, he could do was to read out to us from the passport issued to the petitioner by the Government valid for travel to Saudi Arabia, Libya among other countries in the world. In reply the learned counsel for the respondents have asserted that the petitioner does not have a vestige of any such right, much less any fundamental right in him, to leave this country and go abroad at his volition. According to them, under paragraph 5 (of Article 6) of the Constitution, subject to any reasonable restrictions imposed by law in the public interest, every citizen had the right to move freely throughout Pakistan. So that the only guarantee afforded by the Constitution in this respect is for the free movement to the citizens of Pakistan within its territorial boundaries and it does not extend beyond these limits.

10. But in my opinion none of these arguments advanced before us on both sides, can cut any ice. The reliance placed by learned counsel for the petitioner on the passport issued to his client does not advance his case to any appreciable extent. This passport is in the usual form issued to the citizens of Pakistan by the Government and its operative portion read out to us by the 'learned counsel is reproduced below:

"These are to request and require in the name of the President of Pakistan all those whom it may concern to allow the bearer to pass freely without let or hinderance, and to afford him every assistance acid protection of which he may stand in need."

In terms, this is in the nature of a request made in the name of ‑the President of Pakistan, as the head of the State, to all those whom it may concern, to allow the bearer to pass freely without let or hinderance and to afford him every protection and assistance needed by him. It is in the nature of a request made to the Governments of the friendly countries abroad for the extension of the ordinary courtesies and diplomatic facilities to the bearer. It also establishes the identity of the bearer as a citizen of Pakistan while abroad and on his return to the country. Per se this passport does not clothe him with any right to leave his native country to which he belongs. In this connection in Rex v. Brailsford arid another ((1905) 2 K B 730 at p. 745) Lord Alverstone, C. J. ‑observed :‑

"It will be well to consider what a passport really is. It is a document issued in the name of the Sovereign on the responsi bility of a Minister of the Crown to a named individual, intended to be presented to the Governments of foreign nations and to the used for that individuals protection as a British subject in foreign countries, and it depends for its validity upon the fact that the Foreign Office in an official document vounches the respectability of the person named."

In Manzoor Khan v. Government of Pakistan (P L D 1966 Pesh. 29) this Court has held that:‑

"A passport is not a document under which a citizen is authorised to leave the country but it is a document issued by Sovereign State requesting the other Sovereign State or its functionary to give certain facilities to one of its citizens."

11. In this country a passport is issued under the provisions of the Passport Act XXXIV of 1920 and the Passport Rules, 1955 made thereunder. The Passport Act is a short enactment comprising of barely six sections. Section 1 deals with the short: title and the extent to which it extends. Section 2 embodies in it the definitions of the terms used in the Act. Section 3 confers the authority on the Central Government to make rules, inter alla, requiring that the persons entering Pakistan shall be in possession of passports. Subsection (2) of this section lays down that these rules may prohibit the entry into Pakistan of any person not in possession of the passport issued to him. Section 4 empowers the authorised officers of the police and the Customs Departments to arrest without a warrant any person for the contravention of the rules framed under the Act. Under section 5 of the Act, the Central Government may direct the removal of any person from Pakistan who has entered the country without a passport in, breach of the rules. Section 6 provides that every passport issued by the Central Government shall be the property of the Government. The Passport Rules, 1955 issued under the Act,. generally ensure that no person shall enter Pakistan from outside without the passport issued to him by the competent authorities. From this brief discussion, it is apparent that in this country, the primary purpose for which a passport is issued is to regulate and, authorise the entry of the people into Pakistan. Strictly speaking, it is not even necessary for an exit from the country. I have, therefore, no hesitation in repelling this contention advanced by the learned counsel for the petitioner to the effect that by the mere fact of the possession of the passport, the petitioner was clothed with any vested right to leave this country at pleasure.

12. In this respect the learned Attorney‑General has relied, on paragraph 5 of the Fundamental Rights, in Chapter I of Part II of our Constitution. This lays down that

"Subject to any reasonable restrictions imposed by law in, the public interest, every citizen shall have the right to move freely throughout Pakistan and to reside and settle in any part thereof."

It appears to me that the main, if not the sole, purpose behind this safeguard in the Constitution is to remove all territorial barriers within the country for the citizens of Pakistan. It is designed to be a check against provincialism, regional discrimination and all parochial considerations. To a citizen of Pakistan, the whole of this country, the East and the West, is his cherished home freely and equally accessible to him. Subject to any reasonable restrictions imposed by law in the public interest, he is free to move about, settle and reside in any part of the territory throughout Pakistan. But the converse of it may not be true and it does not necessarily follow that a citizen of Pakistan has no freedom of movement at all to leave his country. On the contrary, on a deeper considera tion, one might as well ask if this freedom of movement throughout the country embodies within it, as a component part and parcel the right to step out of or into this country at the moment he is crossing its borders But I find that it is unnecessary for me to pursue this matter any further, in this case, for a wholly different reason. At present Fundamental Right No. 5 stands suspended by virtue of the proclamation of Emergency issued by the President of Pakistan during the Indian aggression in September 1965. So that this case has got to be decided independently of and without any reference to this provision.

13. There is, however, another Fundamental Right No. 1 still in force under our Constitution. It provides that :‑

"No person shall be deprived of his life or liberty save in accordance with law."

This safeguard of the liberty of the people in Pakistan is of great importance and manifests itself in different directions. In my opinion, the freedom of locomotion is a part of the liberty of the people. According to Blackstone Commentaries, Volume I, page 134, 'personal liberty' consists in the power of locomotion, of changing situations, of removing ones person to whatever place one's inclination may direct, without imprisonment or restraint unless by due course of law." This right of free movement has a three‑fold connotation; firstly the right to move freely in any part of the country; secondly it connotes the right to go abroad and leave the country and thirdly the right to re‑enter into the country from abroad. We are here concerned with the second aspect of this right of free movement and in these days, it has gained great importance. It has come to be recognised as the inherent right in the man. It was acknowledged and recognized by the General Assembly of the United Nations in the Universal Declaration of Human Rights', in the year' 1948. Article 13 of this Declaration says:‑

"Everyone has the right to freedom of movement and residence within the borders of each State.

Everyone has the right to leave any country, including his own, and to return to his country."

This freedom of locomotion in a person as a part of the liberty guaranteed to him under Fundamental Right No. 1, must be distinguished from the freedom of movement throughout Pakistan secured to the citizens under Fundamental Right No. 5. The two freedoms although akin to each other in certain respects, are at the same time distinct and separate. The Fundamentals Right No. 5 affords protection to the citizens of Pakistan. Butt Fundamental Right No. 1 is more extensive in its application to all persons and is in the nature of a safeguard for the personal liberty (jus personarum) in the people. In the Indian Constitution, Article 19(1) (c) and Article 21 respectively correspond to Funda mental Right No. 5 and Fundamental Right No. 1 in our Constitu tion. In this connection the Supreme Court of India in the case of A. K. Gopalan v. State of Madras (A I R 1950 S C 27) had drawn the distinction between these two articles and according to Mukherjea, J. the contents and the subject‑matter of the two provisions are not identical and they proceed on totally different principles. Similarly Kania, C. J. remarked that it was improper to read the two articles as dealing with the same subject.

14. In this rapidly changing world, with the conquest of man over the space, the concept of liberty is also expanding and has made great strides in the modern times. After all, the liberty stands for freedom from restraint and the distinction between restriction to a Jail, to a city, to a state, or to a nation is now merely one of degree and is fact evaporating. In the Yale Law Journal, Vol. 61, year 1952, on pages 171 to 203 there is an interesting and greatly thought provoking article on the subject of "Passport Refusal for Political Reasons. Constitutional issues and Judicial Review." To start with the learned author of this article has remarked that:‑

"Freedom to leave one's country temporarily for travel abroad is important to individual, national and international well‑being. But today this right of exit depends, for the great majority of the world's people, on ability to secure passports. An individual denied a passport may be unable either to leave his nation or to enter others."

According to the learned author the right of exit' is protected by the American Constitution and to support this contention he has relied on the due process clause in the Fifth Amendment, which protects, among other things, the liberty' of persons'. In his opinion the content of this word liberty' in the Fifth Amendment is not a static conception. It is, like the other great constitutional protections, a broad and pervasive idea, adaptable to the changing circumstances of American life. The learned author has further remarked that exit is important, in the first place, in terms of the number of people affected. As improvements in transportation make the world a relatively smaller place, more and more people are travelling abroad. In the year 1950, 2,99,965 people applied for passports in America and probably only a fraction of that number were travelling cross‑country in 1867. Exit' is also important in terms of the reasons for which the people travel abroad. The very livelihood of certain individuals may necessitate their travelling abroad. Foreign correspondents and lecturers on foreign affairs are the obvious examples. To others, travel abroad, although not absolutely essential, may be of great potential value. Physical and Social Scientists may find personal consultation with foreign colleagues vital. The State Department itself has stressed this fact pointing out to the importance of free movement for such people in terms of national welfare. Businessman, performing artists and students may find travel abroad worthwhile, even if not particularly necessary, in the successful conduct of their professions. Finally, travel abroad can play an important part in keeping the citizens well‑informed on the vital issues before them today. What transpires abroad today has a crucial bearing on matters not only of foreign policy, but of domestic policies as well. In the opinion of the author, this importance of exit to individuals, their states, and their world is the strongest argument for effective judicial consideration of passport refusals. After discussing the constitu tional aspect of this problem at some length the learned author of this article has forcefully summed ,up his conclusions as under:‑

"There is every reason for the Courts to reject their past dicta allowing the State Department complete discretion. The days when the discretionary denial of passports had little effect on the right of exit are past. Even when it is no longer illegal for United States citizens to leave the country without a passport, there will be few places to which they can travel without one.

The denial of passports to its citizens has long been one of the principal instruments of intimidation and of control used by totalitarian Governments of intimidation, since the individual is virtually imprisoned at home without a passport; of control, in that the Government can thus determine what information and opinion about conditions abroad reach its people. The Government of the United States has protested the refusal of totalitarian Governments to allow their‑citizens freely to travel abroad as a denial of fundamental human rights, and has repeatedly urged a policy of enlarged human interchange as a step towards international understanding 'and the relief of international tension. It is the thesis of this comment that under the circumstances of modern international life every American citizen has a constitutional right to a passport, and that the protection of that right has become an urgent matter of national policy as well as of civil liberty. If our preaching is to accord with our practice, that rights should be curtailed only for good cause and with that regard for fairness embodied in the phrase due process'. Nothing less will achieve the objective in the Universal Declaration of Human Rights of free travel in a world society."

15. If I may say so, without any exaggeration, this article in the Yale Law Journal, proved to be the turning point in the trend of the judicial opinion in the United States of America. Eventually, the Supreme Court of America in Kent v. Dulles (357 U S 116), has authoritatively held that the right to travel abroad is a part of the liberty' of which a citizen cannot be deprived without the due process of law under the Fifth Amendment. A citizen's right of exit could be regulated only in pursuant to the law making functions of the congress ; and if that power is delegated, the standards must be adequate to pass scrutiny by the accepted tests. The Court further observed that in the absence of explicit terms in the pertinent Statutes, the Secretary of State has no authority to withhold a passport from the citizens simply because of their beliefs and associations. Similarly in Asserwatham v. Permanent Secretary, Ministry of Defence and External Affairs and others (reported on page 319 of the Journal of the International Commission of Jurists, Volume VI, No. 2, Winter 1965 part), the Supreme Court of Ceylon has held that there should be no unreasonable restrictions placed on a person's freedom of movement and clearance to go abroad. Likewise in Satwant Singh Sawhney v. The Government of India (reported on page 134 of the Journal of the International Commission of Jurists, Volume VIII, No. 2, December 1967 part), the Supreme Court of India by a majority of opinion, has held that a person in India enjoys the fundamental right to travel abroad. In this connection the Court observed that "the want of a passport prevented a person from leaving India, and the Government, by withholding such passport, deprived him of his right to travel abroad. This right was a right which every person living in India, whether a citizen or not enjoyed. No person should be deprived of this right to travel, except according to the procedure established by law. There existed no law made by the State regulating or depriving persons of the right to travel". In fairness, I must also refer to another decided case of V. G. Row v. The State of Madras (AIR 1954 Mad. 240), from the Indian jurisdiction brought to our notice. This proceeds on the basis that the issuance of a passport is part of the State Department's foreign affairs function not open to judicial review by the Courts. But that view is obsolete and can no longer hold the field in India after the decision by the Supreme Court of India in the case discussed above. Moreover, in the Madras case the impact of the only relevant provision in Article 21 of Indian Constitution (corresponding to Fundamental Right No. 1 in our Constitution) was never examined. Also I find that the view adopted in that case was largely based on the earlier American opinion that the issuance of a passport rests entirely within the discretion of the State Department and is not open to any judicial review. But, as discussed above, of late this view has itself undergone a complete change in America and is no longer tenable.

16. Therefore, to sum up this discussion, I am clearly of the opinion that in Pakistan the personal liberty of an individual is secured to him under the Fundamental Right No. 1 in our Constitution and as a necessary corollary flowing from this he also enjoys the undeniable right vested in him to go abroad for travel and to return to his country ,again. But this is by no means an absolute and unqualified right. It has its own limitations and the restrictions imposed on it under the Constitution. Fundamental Right No. 1 itself provides that no person shall be deprived of his life or liberty "save in accordance' with law". So that the liberty of free movement in a person to go abroad is strictly subject to and regulated and controlled by the provision of any valid law for the time being in force in the country. He is bound by and subject to the law of the land, which must be obeyed.

17. In this connection the learned counsel for the respondents have strongly urged before us that the impugned action was taken against the petitioner in the interest of the foreign exchange controls and regulations in force in this country. Although the system of foreign exchange regulations and controls is of a recent origin, yet it has come to stay in most of the civilized countries of the world, in one form or another as a means of strengthening the internal economy of so many nations. It is necessary to ascertain, collect, conserve and utilize the foreign exchange resources of a country for its best advantage. The chief aims of this system are to acquire the maximum amount of foreign currency of the right kind and to see that it is used in the most advantageous manner for the purchases from abroad of the vast supplies of material and armaments for the economic and financial interest and security of the country, both in times of war and peace. In this country also it was thought expedient in the economic and financial interest of Pakistan to provide for the regulation of certain payments dealings in foreign exchange and securities and the import and export of currency and bullions. With these aims and objects in view, the Foreign Exchange Regulation Act, 1947 was at first introduced on 4‑3‑1947. It was then continued with suitable modifications in this country after the creation of Pakistan. To be precise the learned Attorney‑General has argued before us that this power in the respondents to regulate and control the travel abroad of a resident of Pakistan is envisaged by the provisions of this Act, that the impugned order was passed solely with the intention to prevent the evasion of this Act and that it was within the competence of the Government under section 25 of the Act to do so.

18. Before discussing the true legal position in this case under the Foreign Exchange Regulation Act, let me now briefly recapitulate the relevant allegations made against each other by the two main contending parties in this connection. The petitioner applied to the State Bank of Pakistan, on the P.‑2 form meant for the purpose for permission to leave this country by air for Saudi Arabia in order to attend the Rabita Alam‑i‑Islami Conference at Mecca. But this permission was refused. He had also applied separately for permission to visit Libya in order to deliver lectures on Islam at the Islamic Sannusi University there. But that permission was withheld and never granted to him. The Government of Pakistan, Home Affairs Division, was opposed to his requests for visiting Saudi Arabia or any of the Middle East countries. In the two successive reports, submitted to this Court, on behalf of respondent No. 2, it is alleged that the Government had reasons to believe that the petitioner was likely to commit a contravention of the Foreign Exchange Regulation Act and for this reason the Government had advised respondent No. I to refuse him the necessary permission to leave the country. Similarly in the written statement filed by respondent No. 2 it is averred that on the basis of secret information received from sources abroad, the Government believes that petitioner's visit to Libya was likely to involve contravention of the Foreign Exchange Regulation Act and as such the refusal of his P‑2 Form was fully warranted by the law. On 12‑3‑1968, this Court had ordered respondent No. 2 to further elucidate his allegations in this connection. Accordingly on the 14th of March 1963, respondent No. 2 filed an affidavit sworn by Mr. A. B. Awan, Secretary to the Government of Pakistan in the Home Affairs Division, amplifying on oath that: "Maulana Maudoodi while abroad is likely to receive funds and import the same into Pakistan without allowing the funds to be dealt with under the said (Foreign Exchange Regulation Act, 1947) Act". At the same time, in this affidavit the deponent has claimed privilege, against the disclosure of the record in the possession of the Government with respect to this secret information, under section 123 of the Evidence Act, 1872.

On his part, the petitioner has refuted all these allegations against him in his two sworn affidavits filed in Court. He has affirmed that, since 1956, he had in all gone abroad on eight different occasions, either on the invitation extended to him by organizations abroad, or the Saudi Arabian Government or at his own personal expense after obtaining the foreign exchange quota issued to him by the State Bank of Pakistan. According to him during all these visits abroad he did not receive a single penny from anybody in contravention of the provisions of the Foreign Exchange Regulation Act. He has contended that all these allegations made against him were utterly baseless, false and defamatory. According to him politically he is a persona non grata with the present Government. His activities are constantly kept under watch and all his mail and letters are censored. In these circumstances, he has challenged the Govern ment to establish that he has over contravened any of the provisions of the Foreign Exchange Control Act and was likely to do the same thing again. He has asserted that he is a law abiding citizen of Pakistan and has never for once throughout his life contravened the law.

19. In the light of these allegations, it is necessary now to examine the various provisions of the Foreign Exchange Regulation Act VII of 1947 in order to fully appreciate the controversy raised before us.

Section 1 deals with the short title, extent and commencement of this Act. Section 2 defines the various terms and phases used in this Act. Section 3 deals with the appointment of authorised dealers in foreign exchange by the State Bank and their duties under the Act.

Section 4 of the Act imposes restrictions on dealings in foreign exchange. Under this section no person in Pakistan and no person resident in Pakistan while abroad, other than an authorised dealer, is allowed to buy or borrow from, or sell or land to, or exchange with, any person not being an authorised dealer, any foreign exchange. Also no person including the authorised dealer is permitted to convert any foreign currency with Pakistan currency, at rates not authorised by the State Bank. This section further provides that where any foreign exchange is acquired by a person other than an authorised dealer for any particular purpose or conditionally, and it cannot be so used, he must sell it to an authorised dealer forthwith. Any contravention of these provisions constitutes an offence punishable under section 23 of the Act.

Section 5 of the Act deals generally with the restrictions on payments. So that under this section, unless exempted by the State Bank, no person in, or resident in, Pakistan shall make any payment to or for the credit of any person resident outside Pakistan. These restrictions are equally applicable to payments in cash, on credit, by bills of exchange, promissory note or transfer of securities and acknowledgment of debts. Any contravention of these provisions in this section constitutes a penal offence triable under section 23 of the Act. Section 6 of the Act lays down that any payment, exempt from the provisions of section 5, may be made to a resident outside Pakistan to a Blocked Account in his name in a specified manner. Section 7 of the Act provides for the regulation of payments due to persons resident in any territory. In this respect the Central Government may direct that such payments shall be made to a Special Account maintained by the State Bank or any authorised dealer specially empowered in that behalf.

Section 8 is another important provision in this Act. It deals with the restrictions on import and export of currency and bullion. Under subsection (1) of this section no person shall, except with the permission of the State Bank, bring or send into Pakistan any gold or silver or any currency notes or bank notes whether Pakistani or foreign. Likewise subsection (2) of this section provides that no person shall, except with the permission of the State Bank, take or send out of Pakistan any gold, jewellery or precious stones or coin or foreign exchange. According to subsection (3) of section 8, these restrictions imposed by subsections (1) and (2) shall be deemed to have been imposed under section 19 of the Sea Customs Act, 1878, without prejudice to the provisions of section 23 of this Act. So that any contravention of these provisions in section 8 of this Act constitutes a penal offence punishable under section 23 of this Act, as well as by virtue of the adoptation of section 19 of the Sea Customs Act, 1878, under that Act.

Under section 9 of this Act, the Central Government may order any person in or resident in Pakistan to sell or transfer the foreign exchange held by him to the State Bank of Pakistan or to an authorised dealer at a fixed price. Section 10 of the Act places a duty upon a person not to do anything which is likely to defeat or delay the realization of the foreign exchange or payment in rupees due to him from any person resident outside Pakistan. By virtue of section 11 of the Act the Central Government is empowered to regulate the use or disposal of or dealings in gold and silver prior to, or at the time of, import into Pakistan. Section 12 of the Act deals with the regulation of the export of goods to foreign countries and remittance of their price in terms of foreign exchange. Broadly speaking sections 13, 14, 15 and 16 of the Act embody in them the provisions about the export, transfer, custody, issue and acquisition of the securities in the interest of the foreign exchange position of the countries. Section 17 imposes the restrictions on the settlement of property by a resident of Pakistan on persons outside Pakistan. Under section 18, except with the permission of the State Bank, no person resident in Pakistan shall do any act whereby the control of a company held by persons resident of Pakistan is transferred outside.

Under section 19 considerable powers are vested in the Central Government and the State Bank to call for useful information from any person for the purposes of this Act. The Central Government may order owners of foreign exchange or foreign securities to make a return thereof to the State Bank or to require any person to furnish any information, book or other document in his possession, necessary or expedient for the purposes of this Act. Subsection (3) of section 19 further lays down that on a representation in writing made by a person authorised in this behalf by the Central Government or the State Bank that he has reasons to believe that a contravention of any of the provisions of this Act has been or is being or is about to be committed in any place or that evidence of the contravention is to be found in such place, a Magistrate of first class, may, by warrant, authorise any police officer, not below the rank of Sub‑Inspector, to enter and search any place in the manner specified in the warrant, and seize any book or other documents, found in or on such place.

Section 20 of the Act contains some of the supplemental provisions. In particular subsection (3) of this section lays down that the State Bank may give directions in regard to the making of payments and the doing of other acts by bankers, authorised dealers, travel agents, carriers, whether common or private, or stock brokers and other persons who are authorised by the State Bank to do anything in pursuance of this Act, in the course of securing compliance with the provisions of this Act, any rules, orders or directions made thereunder.

Under section 21 contracts in evation of the provisions of this Act are prohibited. Section 22 contains a warning to the persons against giving any false or untrue information or statement.

Section 23 is one of the most important provision in this Act. This is a penal provision in the whole of the Act. It lays down that whoever contravenes, attempts to contravene or abets the contravention of any of the provisions of this Act or of any rule, direction or order made thereunder, shall notwithstanding anything contained in the Code of Criminal Procedure, 1898, be tried by a Tribunal constituted under section 23‑A and shall be punishable with imprisonment for a term which may extend to two years or with fine or with both. The Tribunal constituted under section 23‑A of the Act shall have all the powers of Magistrate, of the First Class in relation to criminal trials, and shall follow as nearly as may be the procedure provided in the Code of Criminal Procedure, 1898. Section 24 of the Act is a special provision placing the onus of proof on the accused person in certain cases.

In respect of this Act, the State Bank of Pakistan exercises its powers subject to the directions issued by the Central Government under section 25. Section 26 debars legal proceed ings against any person for anything done in good faith under this Act. Last of all under section 27 the power is vested in the Central Government to make rules for carrying into effect the provisions of this Act.

20. In the foregoing paragraph I have examined in some details the provisions of the Foreign Exchange Regulation Act, 1947. Within the scheme of this Act, under its different sections, it imposes certain specific restrictions, in interest of the foreign exchange, in this country. In particular section 4 imposes restrictions against dealings in foreign exchange with any person not being an authorised dealer. Similarly section 5 deals with the restrictions against any payments by a resident in Pakistan to or for the credit of any person resident outside Pakistan. Likewise section 7 of the Act is meant to regulate payments due to persons resident in any territory. So far as I can see the nearest provision relevant for the purposes of this case at hand is contained in section 8 of the Act. It lays down that no person shall, except with the permission of the State Bank bring or send into Pakistan any gold or silver or any currency notes or bank notes or coin whether Pakistani or foreign. Any evasion of these restrictions constitutes an offence made punishable under this Act. The penalty for breaches of any of these restrictions and regulations is contained in section 23 of the Act. So that whoever "contravenes, attempts to contravene or abets the contravention" of any provisions of this Act or of any rule, direction or order made thereunder shall be punishable with imprisonment for a term which may extend to two years or with fine or with both. The offence is actionable under this section only after a person contravenes, attempts to contravene or abets the contravention of any provisions of the Act, the rules, direction or order made thereunder. All these contraventions and offences are penal in their consequences and effect under the Act. Section '3 of the Act comes into operation only after the offence has been committed, attempted or abetted. It has no application and it cannot be invoked before that stage is actually reached in the perpetration of the vicious act. Except for section 19, there is no provision in the whole of this Act, discussed above, empowering the Central Government or the State Bank of Pakistan to take any preventive action in anticipation of any apprehended breach of any of those restrictions. This act does not envisage and forestall any action to prevent the breach of its provisions. It is primarily penal and not preventive in its application, effect and consequences.

21. Now the gravamen of the whole charge against the petitioner in this case is that on the basis of the secret information received from abroad the Government has reason to believe that the petitioner while abroad is likely to receive funds and import the same into Pakistan without allowing the funds to be dealt with under the Foreign Exchange Regulation Act, 1947'. Tinder section 8(1) of the Acct the Central Government may by notification impose restrictions on the import of any currency and bullion into Pakistan. None of the parties has cited before us any notification issued by the Government under this section. But it is evident from paras. 246 to 249, Chapter XIX, Part II of the Law of Foreign Exchange in Pakistan, by Dr. Qutub‑ud -Din Ahmad, that the Central Government has from time to time issued the requisite notifications under this section prohibiting the import into Pakistan of currency notes, bank notes, coins, gold and silver except with the permission of the State Bank. So that under this section no person shall, except with the general or special permission of the State Bank, " . . . . . bring or send into" Pakistan any gold, silver or any currency notes, or bank notes or coin whether Pakistani or foreign. The prohibition in this section is against the person surreptitiously bringing or sending into Pakistan or in other words against the import of the currency and bullion without the permission of the State Bank. Reading this provision with section 23 of the Act, whoever "contravens, attempts to contravene or abets the contravention", of this prohibition, is liable to punishment with imprisonment for a term which may extend to two years or with fine or with both. It is the actual contravention, the attempt to contravene and abetment of the contravention which is made actionable under these two sections of the Act read together. In the instant case, however, the gist of the allegation against the petitioner, Syed Abual A'ala Maudoodi, is that he "is likely" to receive and import funds from abroad against the Foreign Exchange Regulation Act, 1947.

Broadly speaking, there are three stages in the commission of every crime. First comes the intention to commit ; secondly, the preparation for it and thirdly the attempt to commit the crime. If after the third stage the attempt is successful the crime is complete. In case, however, the attempt has failed, the crime is not complete. Nevertheless the attempt towards the commission of the offence is made punishable under the law. In considering a series of transactions which go to constitute an offence one must bear in mind all the developments. There is a well‑known maxim of the criminal law : "Actus non facit reum, nisi metes sit reu" (the intention and act must both concur to constitute the crime). The law does not take notice of the bare intention, however, vicious without the act. In this respect Lord g Mansfield has held that "so long as act rests in bare intention it is not punishable by our law". Mere intention to commit an offence, not followed by the vicious act, does not constitute an offence. After the mind has been made up, next comes the preparation to commit the crime. It consists in devising ways and means and adopting certain preliminary measures necessary) for the commission of the offence. It precedes and differs widely for the attempt' which is the direct movement towards the commission after the preparation has been completed. These two stages must be distinguished. Plowden J. In re : Ghularn Mahomed (13 P R 1879) observed :‑‑

"From the moment when an intention is formed to commit an offence, every act done which facilitates the commission of the offence and which is done with that object in view, is in one sense an act done towards the commission of the offence, but the doing of every such act does not constitute an attempt to commit the offence. It must in every case be a question depending upon the circumstances whether a particular act done towards the commission of an offence, is sufficiently proximate to its commission to constitute an attempt, or is so remote as to merely constitute preparation for its commission."

In general during the preparation stage the offender has the locus poenitentiae, he may change his mind and the overt acts already t done by him do not constitute the offence. The mere preparation to commit an offence which leads to nothing, unless it is followed up, does not constitute the crime, much less its abetment.

In this case before us, the respondents have not even alleged that the petitioner has contravened, attempted to contravene or abetted the contravention of any of the provisions of this Act. As mentioned above, the only allegation against him is that on the secret information received, the Government has reasons to believe, that the petitioner if allowed to go abroad, "is likely to receive funds and import the same into Pakistan without allowing the funds to be dealt with under the Foreign Exchange Regulation, Act, 1947". At best, according to these allegations, so far there has been some preparation, but no direct movement or an overt act and an attempt on the part of the petitioner for the evasion of this Act. As such he does not appear to have committed any c actionable wrong so far. This law, as it stands, does not take cognizance of the mere apprehension or even the belief in the mind of the respondent that the petitioner was likely to commit an evasion of the Act if allowed to go abroad. Therefore, in my considered opinion, on these allegations, the petitioner cannot be held guilty of any evasion cognizable under section 8(l) read with section 23 or any other provisions of this Act. Moreover, under none of these provisions the respondents are empowered to act in anticipation and refuse to issue the permission to the petitioner to go abroad on the ground that he was likely to commit an evasion of this Act in the foreign country. In these circumstances, this impugned action taken against the petitioner was unwarranted, misconceived and on the very face premature.

22. In this connection, before us, the learned Attorney -General for respondent No.. 2 has relied at the most on section 25 of the Foreign Exchange Regulation Act, 1947. He has strived hard to contend that the impugned direction issued by the Central Government to the State Bank was fully envisaged by this section. According to him under this section very wide and extensive powers are vested in the Central Government to issue all directions of any kind to the State Bank for compliance. This section is as under :‑

"For the purposes of this Act, the Central Government may from time to time give to the State Bank such general or special directions as it thinks fit, and the State Bank shall in the exercise of its functions under this Act, comply with any such directions."

On a plain reading of this section, it only means that, within the scope of this Act, the State Bank, shall, be bound by and exercise all its functions, subject to the general or special directions issued by the Central Government, from time to time. In this behalf the State Bank although constituted as a statutory corporation, is relegated to the subordinate position to follow all the lawful directions issued by the Government within this Act. I cannot construe this section as a source of new and independent power in the Government. It does not envisage that thereby the Government is invested with any larger and plenary powers to issue any and every direction going even beyond the scope of the Act. It only means that in the discharge of its function specified in the various preceding sections in the Act, the State Bank shall be bound by the lawful direction issued by the Government. In other words this section does not legalize any direction issued by the Central Government if otherwise it was beyond the pale o the Act. This section is susceptible of this interpretation even by reading it together with the prohibition contained in section 8(1) of the Act. So that it does not, and cannot be construed to, invest the Government with the powers to issue a preventive direction of this kind in anticipation, affecting the legal right of an individual to go abroad and. imposing new obligation on him.

23. In interpreting section 25 of the Act, the learned counsel for the respondents have laid repeated emphasis on the preamble to this Act and its aims and objects to conserve the foreign exchange for the country so essential for its economic welfare and safety. In order to realise these aims and objects, the substantive provisions are contained in the body of the Act. But the, preamble cannot either restrict or extend the enacting part, when the language is not open to doubt.

24. Craies on Statute Law, Sixth Edition at page 112, has enunciated the following rule helpful in the interpretation of statutes in this case :‑

"Express and unambiguous language appears to be absolutely indispensable in statutes passed for the following purposes Imposing a tax or charge ; Conferring or taking away legal rights, whether public or private ; Excepting from the operation, of or altering clearly established principles of law ; Altering then' jurisdiction of Courts of law."

In this very connection Craies on page 118 has further observed :‑

"Plain words are necessary to establish an intention to interfere with common law or contractual rights Deeble v. Robinson ((1954) 1 Q B 77). In re: Cune ((1889) 43 Ch. D 12, 17) Bowen L. J. said;

In the construction of statutes you must not construe the words so as to take away rights which already existed before the statute was passed, unless you have plain words which indicate that such was the intention of the Legislature."

Therefore, rights, whether public or private are not to be taken away or even hampered by mere implications from the language in the absence of express words used in the statute. In this connection in Walsh v. Secretary of State for India ((1863) 10 H C L 367), Lord Westbury has said :‑

"This result, follows of necessity, consistently with every rule by which Acts or parliament ought to be interpreted, especially the rule that they should be so interpreted as in no respect to interfere with or prejudice a clear private right or title, unless the private right or title is taken away per directum."

Also in David v. De Silva (1934 A C 106), it was held that if there is ambiguity as to the meaning of a section, inasmuch as it is a disabling section, the construction which is in favour of the freedom of the individual should be given effect.

This is a sensible and a salutary rule of interpretation of statutes. Bearing this in mind, I cannot construe section 25 of the Foreign Exchange Regulation Act, 1947 as conferring any vast undefined powers in the Government affecting the rights of the citizens or imposing new duties on them. Therefore, in my considered opinion in this case respondent No. 2, has acted in excess of the Dowers vested in it under the law, in issuing the impugned directions to respondent No. 1, for withholding the requisite permission to the petitioner for visit to Saudi Arabia in connection with the Rabita‑Alam‑i‑Islami' Conference and to Libya for delivering lectures on Islam at the Islamic Sannusi University there, on this ground taken before us.

26. In this connection some passing references were made before us about the difficulties, the respondents have to face to cope with the offenders under this Act and in curbing their underground activities. But I am sure that with an efficient administration of this Act by the State Bank and the Govern ment, there can be no real and insurmountable difficulty about it. With sagacity, perseverance, and tactful handling of the situation before it, and the vast resources at its command, it should not be difficult for the Government to track down the offender under this Act and to bring him to the book, especially after it has already received the information in advance and known his identity. Under section 19 of this Act, the Central Government and the State Bank are vested with the additional powers to call for relevant information from the owners of foreign exchange and to require any person to furnish them with any information, book or other documents in his possession considered necessary and expedient for the purposes of this Act. Also, on a representation in writing made by a person authorised in this behalf by the Central Government or the State Bank and supported by a statement on oath of such person that he has reasons to believe that a contravention of any of the provisions of this Act has been or is being or is about to be committed in any place or that evidence of contravention is to be found in such place, a District Magistrate, a Sub‑Divisional Magistrate, or a Magistrate of First Class, may, by warrant, authorise any police officer not below the rank of Sub‑Inspector, to enter and search any place in the manner specified in the warrant, and seize any book or other documents found in or on such place. These are quite formidable powers vested in the Central Government and the State Bank. So far, the respondents do not appear to have taken any such action against the petitioner to collect the essential information and the evidence against him about any likely evasion of the Act. This could have been the first step taken against him at home, if there was any truth in those allegations.

27. Before parting with this subject under the Foreign Exchange Regulation Act, I am now left to deal with the last remaining argument advanced by the learned counsel for the petitioner in this connection. According to him, in the case of the petitioner, he did not have to deal in foreign exchange in any manner during his visits to Saudi Arabia and Libya and his entire costs, while abroad are to be borne by the respective outside organizations sponsoring them. In this connection the petitioner has already produced before the. State Bank, the two air‑travel tickets valid for his return journey in each case, received by him from abroad. So that no element of any foreign exchange was at all involved in these visits. In these facts, the learned counsel has gone a step further and argued that it was not at all incumbent on the petitioner to have formally applied on the P‑2 Form to the State Bank and that he need not have waited for its clearance and the permission of the State Bank to leave the country.

This argument is altogether devoid of any force and is based on a misconception. In this connection subsection (3) of section 20 of this Act lays down that the State Bank may give directions in regard to the making of payments and the doing of other acts by bankers, authorised dealers, travel agents, carriers, whether common or private to do anything in pursuance to this Act in the course of their business, 'as appears to it to be necessary or expedient for the purpose of securing compliance with the provisions of this Act and any rules, orders or directions made thereunder.

In this respect the State Bank has issued the necessary instructions to all the carrier‑companies operating by sea or air and the travel agents. Paragraph 245(i) and (ii) of the State Bank of Pakistan, Exchange Control Manual, Second Edition, 1959, lays down that Steamship/Airline Companies or Travel Agents should not deliver tickets to nationals of Pakistan on the orders of their offices outside Pakistan irrespective of the fact whether payment for such tickets has been made abroad and no amount is collected in Pakistan. Such requests when received by Steamship/Airline Companies or Travel Agents should be referred to the State Bank on Form P‑2 and the Pakistan nationals who may receive tickets directly from abroad should not be allowed to emplane or embark unless prior approval of the State Bank is obtained in this connection. Also in July 1958, the State Bank of Pakistan, Exchange Control Department, Lahore, issued its S. P. A. Circular No. 7 (Annexure R‑1/4) that all Steamship/Airline Companies and Travel Agents should obtain the prior approval of the Control before booking passages for persons holding Pakistani passports/pilgrim passes against payments received by their offices outside Pakistan and that in this connection the applications should be made to the Control by the travellers in the prescribed Form P‑2. Similarly on 20‑7‑1961, the State Bank of Pakistan, Exchange Control Department issued another S. P. A. Circular No. 3 (Annexure R‑1/6) to all Airlines/Steamship Companies and Travel Agents emphasing that in terms of the instructions contained in para. 245(i) of the Exchange Control Manual, they could not be permitted o lift Pakistan nationals who receive their tickets directly from abroad, without the State Bank's approval on Form P‑2. A special responsibility was placed on the Airlines/ Steamship Companies in this behalf to ensure that a Pakistan National who is proceeding abroad on ticket received from abroad has the State Bank's approval on Form P‑2.

All these directions were, issued by the State Bank for compliance by the carriers in the course of their business. These were considered by the State Bank to be necessary and expedient for the purpose of securing compliance with the provisions of this Act and any rules, order or direction made thereunder. These directions have, therefore, the force of the law under section 20(3) of the Act and carriers are bound to faithfully act upon them in their own interest.

28. There is yet another aspect of this case. The impugned order was passed against the petitioner without affording him any hearing. He was condemned unheard against the principle of natural justice. The application, submitted by him to the h State Bank for the clearance to go abroad, was rejected without informing him about the charge levelled against him and with out even asking for his explanation in this matter concerning his rights. In Abdur Rehman v. Collector and Deputy Commis sioner (P L D 1964 S C 461) and also in the University of Dacca and another v. Zakir Ahmad (P L D 1965 S C 90), it was held that the principle of natural justice must be silently read into every statute in the absence of any provision to the contrary. This rule applies even though there are no positive words to this effect in the enactment. Therefore, in our opinion this writ this short reason alone.

28‑A. On this view taken by me above, it was hardly necessary in these proceedings, to go into the merits of the allegations made by respondent No. 2 against the petitioner.

Nevertheless, on the 12th of March 1968, at the request of the learned counsel for the petitioner, this Court had called upon respondent No. 2 to produce this alleged secret information in its possession, on the basis of which this action was taken against him. But on the 14th of March 1968 respondent No. 2 filed an affidavit duly sworn by Mr. A. B. Awan, Secretary to the Government of Pakistan in the Home Affairs Division to the effect that the petitioner while abroad was likely to receive funds and import the same without allowing them to be dealt with under the Foreign Exchange Regulation Act, 1947. In this affidavit the deponent has claimed privilege under section 123 of the Evidence Act, 1872 with respect to this secret informa tion in question contained in the unpublished official records relating to the affairs of the State on the ground that its disclosure would be prejudicial to the public interest and detrimental to its good diplomatic relations. In spite of this, on the 23rd of April 1964, Mr. Siddiq‑ul‑Hassan Gillani, Secretary, Jamat‑i‑Islami, for Parliamentary Affairs, Ichhra, Lahore, filed his affidavit in this Court to the effect that he has received, through post, copies of the two letters, one written by Mr. Rashid, Governor State Bank of Pakistan to the Finance Minister, Ministry of Finance, Islamabad in November 1967, and the other by Mr. S. A. Hasni, Former Governor, State Bank of Pakistan to Mr. Muhammad Shoaib, Finance Minister, Government of Pakistan, on the 26th of April 1963. With this affidavit he has attached the so‑called true copies of these two letters marked as Annexures A' and B', respectively. The deponent has further sworn in the affidavit that he has reason to believe that they are the true copies of the original letters. But the precise reason on which this belief in the deponent was based, is not stated in this affidavit. Nor was this ever dis closed at any stage during the course of the hearing before us. The deponent does not even purport to depose about the truth of these copies from his own knowledge. In these circum stances, there is nothing to vouch about their correctness and we cannot assume that these Annexures are the true copies of the original letters, if any. But we have no hesitation in strongly deprecating this mean device adopted on behalf of the petitioner, calculated to undermine the law, in the open Court before us without any remorce or compunction. The attempt behind this affidavit to undermine the law, coming, as it does, from the Secretary, Jamaat Islami in order to support the cause of the petitioner and presumably with his blessings, has, in our opinion, done a great dis‑service to his own status and the image that he is projecting. If, as we shall presently show, section 123 of the Evidence Act is applicable, then no one is permitted to give any evidence derived from the unpublished official records relating to this affair of the State, except with the permission of the officer at this head of the department concerned. This law was made in the larger interest of the State and no inroads should be allowed to be made into it. Therefore, we have looked down upon this contrivance adopted on behalf of the petitioner. It does not only encourage disrespect for the law but also smacks of the questionable means by which the evidence in dispute was procured by or supplied to the recipient of these copies.

Now reverting to this narration of these facts, on the 24th of April 1968, the petitioner filed an application under Order XI, rule 14 read with section 151, C. P. C. praying that the respondents may be ordered to produce the originals of those two letters in question in Court and he has filed his own affidavit to support this application. In its reply to application, res pondent No. 1 has denied that the present Governor of the State Bank of Pakistan has written any letter to the Finance Minister of which Annexure A' is the copy. As to the second letter (copy in question Annexure B'), written by Mr. S. A. Hasni, former Governor of State Bank of Pakistan on the 26th of April 1963, respondent No. 1 has claimed privilege for it under section 46(2) of the State Bank of Pakistan Act XXXIII of 1956 read with section 123 of the Evidence Act. This reply is accompanied by an affidavit sworn by Mr. Zaheer Qureshi, Senior Assistant Controller of State Bank of Pakistan, Lahore, claiming the privilege under the order of the Governor of State Bank of Pakistan against the production of this letter dated the 26th of April 1963. Likewise, respondent No. 2 has taken a similar stand in the affidavit dated the 29th of April 1968, sworn by Mr. Ghulam Ishaq Khan, H. Q. A., C. S. P., Secretary to the Ministry of Finance, Government of Pakistan, Rawalpindi, filed in reply to this appli cation. On the 8th of May 1968, the petitioner filed yet another application, under Order XI, rule 14 and Order XIX, rule 2 read with section 151, C. P. C., before us alleging that there were some further documents to which a reference is made in the copy in question (Annexure 'A') and, therefore, the files pertaining to the case of the petitioner maintained by the Lahore Office and the Head Office of the State Bank at Karachi may be summoned. In addition to this the petitioner has prayed in his application that the following witnesses may be summoned to appear in this Court in connection with the correspondence in question : (i) Mr. Abid Hussain, Joint Secretary, Ministry of Finance, Government of Pakistan, Islamabad, (ii) Mr. Hidayatullah, Deputy Secretary, Ministry of Finance, Govern ment of Pakistan, Islamabad, (iii) clerks concerned with the Despatch Register of the office of the Governor, State Bank of Pakistan for November 1967, and the receipt register of tote office of the Ministry of Finance for the same period, (iv) Mr. M. Rashid, Governor, State Bank of Pakistan, and (v) the Finance Minister, Government of Pakistan, in connection with the alleged letter in dispute (copy Annexure A'). Both the respondents have opposed these two applications claiming the privilege against all this evidence sought to be produced by the petitioner. It has, therefore, become necessary to examine this question now.

29. Section 123 of the Evidence Act lays down that no one shall be permitted to give any evidence derived from unpublished official records relating to the affairs of State, except with the permission of the head of the department concerned, who shall give or withhold such permission as he thinks fit. This section, inevitably, raises two distinct and separate questions for consideration, before it can be applied in a given case. Firstly the document under consideration must belong to the class of the unpublished records relating to the affairs of the State. Only the evidence derived from this particular class of documents is privileged under this section. After this condition is satisfied, the next question then arises for consideration is as to whether this is a fit and proper case for withholding the required evidence from the Court. There has been and is a considerable divergence of judicial opinion as to who is to be the Judge and decide the first question after it is raised for consideration. The section itself is silent in this respect. But in my personal opinion, on a plain reading of the section, this question has got to be treated as a preliminary issue for the decision by the Court, as best as it can in the situation in which it finds itself. In this humble opinion, I am indirectly fortified on further reference to the provisions contained in section 162 of the Evidence Act. This lays down that a witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity Of any such objection shall be decided on by the Court and the Court, if it seems lit, may inspect the document unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility. The Court is not permitted to inspect the document if it refers to matters of State. But subject to this limitation, the decision with respect to the preliminary question must rest with the Court under these two sections read together. In this connection, Sarkar, on Evidence, Seventh Edit., p. 1139, in his commentary, has succinctly summed up the position under section 123 and observed:‑‑‑

"Two questions are involved : (1) Whether the document in respect of which privilege is claimed is a document of the kind described in this section , viz. relating to affairs of State. (2) Whether disclosure would be against public interest The head of the department is to judge the second question only; but before he can claim privilege on that ground, the document must be one that relates to any affairs of State. That is the condition precedent before the claim for privilege can be put forward. Therefore, the occasion for claiming privilege and objecting to disclosure under this section arises then and then only when the evidence sought to be given is derived from unpublished official records relating to any affairs of State. When this condition is fulfilled, privilege can be claimed by the head of the department; otherwise there is no privilege."

Similarly, according to Woodroffe and Ameer Ali's Law of Evidence, 11th Edn., Vol. 3, p. 2615.‑

"Reading sections 123 and 162 together, it is plain that the Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question. But the Court is competent, and indeed is bound, to hold a preliminary enquiry to determine the validity of the objection to its production; and that necessarily involves an enquiry into the question as to whether the evidence relates to Affairs of State' under section 123 or not. In this enquiry, the Court has to determine the character or class of the document. If it concludes that the document does not relate to affairs of State', then it should reject the claim for privilege and direct its production. If it comes to the conclusion that the document relates to affairs of State', it should leave it to the head of the Department to decide whether it should permit its production or not. Sections 123 and 162 should be harmoniously construed. Regard should be had to the fact that the position in India is not identical with that in England and in America."

30. This opinion by the two learned commentators of long standing and repute in the Indo‑Pakistan sub‑continent, appears to have prevailed in the Courts under the Indian Jurisdiction, after the Partition. A Full Bench of the East Punjab High Court in Governor‑General‑in‑Council v. H. Peer Muhammad (A I R 1950 E Pb. 223) has held that :‑

"the Court can hold an enquiry into the validity of an objection on the ground that the document relates to affairs of State. It is nevertheless true that once the Court comes to the conclusion that the document relates to affairs of State, the decision of the head of the department to give or withhold permission to its production must be accepted as final."

Similarly in R. M. D. Chamarbughwala v. Y. R. Parpia (A I R 1950 Born. 230), it was held that it is for the Court, and Court only, to determine whether the document is an unpublished official record relating to affairs of State. Also in Lady Pinbai Dinshaw Petit and others v. The Dominion of India and another (A I R 1951 Bom. 72), the Court held that :‑

"privilege under section 123, in respect of any document only applies to unpublished official records relating to any affairs of State and before privilege can be claimed there must be an adjudication that the documents, in respect of which privilege is claimed, are official records relating to affairs of State. The principle of the section is that it is not all records relating to the affairs of State that are privileged."

The Supreme Court of India was also of the same opinion in State of Punjab v. Sodhi Sukhdeve Singly (AIR 1961 SC493) and has, in substance, accorded its approval to the above opinion, of the learned authors reproduced from Woodroffe and Amir Ali. Three years after, in Amarchand Butail v. The Union of India (A I R 1964 S C 1958) the Indian Supreme Court has affirmed its previous decision in this respect.

31. But, so far as we are concerned, in this country, the position of the law in this respect does not appear to have been finally settled by any decision of the Supreme Court of Pakistan. However, in this connection, on behalf of the respondents, a great reliance was placed on a decision by a Division Bench of this Court, in Ghulam Ali v. Abdul Hafiz (P L D 1962 Lah. 765). In this case relying on the leading‑ House of Lords case in Duncan v. Cammell Laird& Co. Ltd. and following the decision in I. M. Lal v. Secretary of State (2), this Court was of the opinion that if an objection is taken in the proper form, by a head of the department, under section 123 of the Evidence Act, against the production of evidence on the ground that it relates to affairs of State, it is conclusive and the Court is left with no say in the matter. But, in this connection, if I may say so with respect, as already pointed out by Woodroffe and Amir Ali, the position of the law to this country is not identical with that in England and this vital distinction was not brought to the notice of the Division Bench in Ghulam Ali v. Abdul Hafiz. This decision was followed with approval, without any discussion, in Mst. Nasim Fatima v. Government of West Pakistan and another (P L D 1967 Lah.103), by a hull Bench of this Court, with the observations that this principle was correctly stated in Ghulam Ali v. Abdul Hafiz to the effect that when an objection is taken in the proper form, by a Head of Department, under section 123 of the Evidence Act, to the production of evidence on the ground that it relates to the affairs of the State, it is conclusive. On this reasoning, therefore, the Full Bench upheld the plea of privilege claimed by the Government against the production of vertain documents in its possession and power. This case, alongwith similar other connected cases, were then taken up in appeal against the Full Bench decision to the Supreme Court. In the Supreme Court, in Malik Ghulam Jilani v. The Government of West Pakistan and others (P L D 1967 S C 373), the plea of privilege claimed by the Government was disallowed and the decision by the Full Bench in this respect was reversed, on an altogether different ground to the effect that the documents in question were already exhibited on the file of a different case pending in this country and there could be no question of their being treated as privilege from production in Court for the second time in another case. In these circumstances it is difficult to say how far, if at all, the pronouncement by the Division Bench in Ghulam Ali v. Abdul Hafiz, upheld by the Full Bench subsequently, in Fatima v. government of West Pakistan and another, stands affected by the decision by the Supreme Court in Malik Ghulam Jilani v. The Government of West Pakistan and another. With utmost deference, if I may say so, it can be safely concluded that the Supreme Court had disallowed, the privilege claimed by the Government, on the ground that the documents in question did not constitute the "unpublished records" of the State and already formed a part of the record of a different case.

32. Be that as it may, on a further consideration, we find that this limited question, which was raised before us and has been discussed above does not strictly arise in this case. In fact, in this case before us, there can be no doubt about the nature of the evidence which the petitioner wishes to adduce that it is derived from the unpublished records relating to the affairs of the State. It cannot be denied that this dispute has arisen out of the impugned orders passed by the respondents against the peti tioner in the purported exercise of the powers vested in them under the Foreign Exchange Regulation Act, 1947. The administration of this Act is an affair of the State and, therefore, all this evidence, in the possession and power of they two respon dents in this connection, on the very face of it, pertains to the unpublished record relating to the affairs of the State. The very nature and description of this evidence by the petitioner in his two applications leaves no room for doubt in this respect. After having reached this conclusion that this evidence answers the description covered by section 123 of his Evidence Act, the petition becomes quite simple and beyond any doubt. The further question under this section is always left to the head of the Department to decide whether he should permit the document to be produced and whether its disclosure would be against the public interest, or not. The Court cannot go into these matters and has got to accept the decision taken by the head of the department in this respect. In the present case, this privilege was claimed for respondent No. 2, is the two affidavits, the first one sworn by Mr. A. B. Awan, Secretary to the Government of Pakistan, Home Affairs Division and the other by Mr. Ghulam Ishaq Khan, N. Q. A., S. Pk., C. & P., Secretary, Ministry of Finance, Government of Pakistan. The deponents have affirmed in these two affidavits that the disclosure of the evidence in question would be prejudicial to public interest and detrimental to good diplomatic relations. We find that this privilege was properly claimed by them and these two affidavits are con clusive on the point. In this connection, the Governor, State Bank of Pakistan has also claimed privilege against the produc tion of any such evidence derived from the unpublished records relating to the affairs of the State Bank under section 46(2) of the State Bank of Pakistan Act (XXXIII of 1936) read with section 123 of the Evidence Act and for the same reasons this plea must be allowed to prevail. So that no evidence, oral or documentary, in original or the copies, derived from the records in question could be permitted to be adduced in the circumstances of this case.

33. Before us, the petitioner has also challenged the bona fides of respondent No. 2 in issuing the impugned directions against him to prevent him from going abroad. It is contended that the impugned order is mala fide and was passed against him vexatiously for ulterior reasons. To support this, the petitioner has enumerated certain instances, in Annexure A' to the writ petition, showing that on previous occasions as well, the respondents had at first prevented him from attending these conferences and froth going abroad and then at the last moment the permission was allowed to him. According to Annexure A', in the month of July 1961, the petitioner was proceeding to the Middle‑East and African countries. He bad gone to Karachi to embark on his tour. But before he could leave this country the police took away his passport from him and the passport officer deleted the endorsement for travel to "Middle‑East and African countries" from his passport with the result that he was compelled to abandon the tour. The second instance enumerated in this Annexure is that in .the month of May 1962, the petitioner was going abroad to attend a meeting of Rabita Alam‑e‑Islam but his package after it had been booked, was actually taken off the plane by the Immigration Staff. However, subsequently, on the next day he was allowed to resume his journey. The third and the last instance enumerated in this Annexure is that in the month of April 1963, when he had to attend another meeting of Rabita Alam‑e‑Islami, the State Bank at first refused to give him any clearance but afterwards he was allowed to proceed. With a view to lend further support to his allegations in this behalf, the petitioner has also filed another Annexure C' with the amended writ petition, giving further instances of the mala fide treatment allegedly meted out to him at the hands of the Government. In this annexure the petitioner has averred that on the 6th of January 1964, the Jamaat‑e‑Islami Pakistan, of which he is the head, was banned by the Government of Pakistan under Criminal Law Amendment Act, 1908. But that order was subsequently set aside by the Supreme Court of Pakistan, in Saiyyid Abul A'ala Maudoodi and others v. The Government of West Pakistan (P L D 1964 S C 673). hi another case, the petitioner along with all the members "f the Majlis‑e‑Shoora, Jamaat‑e‑Islami, Pakistan, were arrested and detained under the West Pakistan Maintenance of Public Order Ordinance, 1960 and the petitioner was prevented from attending the meeting of the Rabita‑Alam‑i‑Islami in Mecca in the year 1964. Eventually, on the 9th of October 1964, their detention order was declared illegal by this Court, in Rahmat Elahi v. Government of West Pakistan (P L D 1965 Lah. 112). Also, on the 21st of January 1964, while the petitioner was under detention in the District Jail at Lahore, he was served with an order from the Secretary, Home Affairs, Government of West Pakistan, Lahore, for the cancellation and confiscation of his passport. On this, the petitioner filed Writ Petition No. 759 of 1965, Syed Abul Aa'la Maudoodi v. The Government of' Pakistan in this Court challenging the validity of that order, under Article 98 of the Constitution. This was admitted to a regular hearing. Subsequently, however, a new Passport No. A. C. 198847 was issued to the petitioner in the beginning of 1966 and consequently the writ petition was allowed to be withdrawn. From all these circumstances the learned counsel wishes us to conclude that the impugned order was passed by the Government vexatiously and in bad faith.

34. In this connection, we have carefully gone through these allegations made by the petitioner and the explanation furnished by respondent No. 2. There is no affidavit, filed on either side; comprehending these detailed allegations con tained in the two Annexures A' and C' produced by the petitioner and the explanation submitted by the respondent in reply. As to the three previous matters included in Annexure C' to the writ petition, in none of those cases, the Court gave any findings that the then impugned orders had been passed maliciously by the Government. As pointed out by respondent No. 2, in the first two cases, the ban and the arrests were made under the orders passed by the West Pakistan Government and those were set aside by the Courts primarily on purely legal considerations. In connection with third case, respondent No. 2 has vaguely alleged that in view of the past behaviour by the petitioner in Saudi Arabia and the declaration of Jamaat‑i‑Islami as an unlawful associa tion by the Governments of East and West Pakistan, it was considered necessary to confiscate the passport held by the petitioner under subsection (l) of section 6 of the Passport Act, 1920, and this order was challenged by the petitioner in Writ Petition No. 759 of 1965 filed in this Court. But, according to the respondent on the basis of his helpful conduct at the time of the Indian aggression against Pakistan in September 1965, the passport facilities were restored to the petitioner subsequently. This does not necessarily prove any mala fide intentions against him, and, therefore, no adverse inference can be legitimately drawn from this incident against respondent No. 2.

Now as to the instances narrated in Annexure A' attached to the writ petition, it is admitted that in the year 1961, the endorsement on the passport held by the petitioner for visits to the Middle‑East and African countries, was deleted by the Government Apparently, this order was passed when the Laws (Continuance in Force) Order, 1958 was still in force and the petitioner did not agitate against it in any Court. We cannot, therefore, assume that that action was taken against him without any lawful justification. About the second instance which took place in May 1962, it is admitted that due to misunderstanding on the part of the Immigration Officer at the Karachi Airport the petitioner was not allowed to go abroad by the first plane by which he had booked his passage. This misunderstanding on the part of the authorities could not be cleared in time. However, he was allowed to resume his journey on the next following day. As to the last instance, it is admitted by the petitioner that the State Bank finally gave the necessary clearance to him in time to attend the meeting of Rabita Alam‑i‑Islami, after some initial hesitation. This would merely prove that in the case of the petitioner, the authorities are all the time critical and perhaps much more watchful. They were reluctant to permit him to go abroad. But, on second thought, presumably after better counsel bad prevailed, they allowed him to go abroad. The authorities had the right to examine his case before allowing the clearance and in this they were merely per forming their duties. All this does not necessarily connote that they had acted in a mala fide manner.

35. In this case the onus lays on the petitioner to establish that the impugned action taken against him by the Government was mala fide. He has failed to prove before us that this whole case set up against him was a sheer ruse and that there was in fact no secret information at all against him in the possession of the Government in this respect or that the information on which the Government purports to have relied was altogether false. Therefore, on facts, we are unable to hold that this action was taken rnala fide by the Government against the petitioner for any indirect motive and ulterior reasons. But, as discussed above, we have found that in this matter the Government has acted in excess of the authority vested in it under the law.

36. Before concluding, we must deal with the last remain ing contention of the learned Attorney‑General to the effect that this writ petition is not maintainable and that this is not a fit case for our interference under the circumstances of this case, have already held above that the petitioner has a vested right of free movement and in this respect he cannot be deprived of his liberty, save in accordance with law, under Fundamental Right No. 1 occurred to him by the Constitution. On the finding that in this case the Government has acted in excess of the jurisdiction vested in it under section 25 of P the Foreign Exchange Regulation Act, 1947, have no hesita tion in holding that this petition moved by the petitioner in this Court under Article 98 of the Constitution of the Islamic Republic of Pakistan, is fully competent and must succeed For the same reasons, nor can it be said that this was a matter purely executive in its character pertaining to the economic and financial policies of the Government. This will dispose of all the contentions raised before us by the learned counsel for the parties on both sides.

37. For the foregoing reasons, I hold and declare that the impugned order dated the 18th of October 1967, communi cated in the telex message sent by the Finance Department, Government of Pakistan, Rawalpindi to the State Bank of Pakistan, Karachi was passed without any lawful authority and is against law. As such, the two applications submitted by the petitioner to the State Bank of Pakistan, on the prescribed P‑2 Forms, for clearance for visits to Saudi Arabia and Libya in the above connection, were liable to be accepted. Accordingly, this petition is accepted with costs.

MUHAMMAD GUL, J.

---‑I have had the advantage of reading the elaborate judgment of my learned brother, Muhammad Akram, J. and I agree that the telex communication, dated the 18th October 1967, by the Central Finance Ministry to the State Bank of Pakistan, directing the latter not to issue P‑2 Form to the petitioner so as to prevent him from pro ceeding to Saudi Arabia and Libya, though he held passport valid for these two countries, though not proved to be mala fide was, nevertheless, without lawful authority and of no legal effect. Accordingly, I agree that the petition be accepted with costs.

2. However, if I may say so with respect I will rest my decision on the following grounds only :‑

Firstly, the impugned direction by the Finance Ministry which purports to be in pursuance of the provisions of Foreign Exchange Regulation Act, 1946 is outside the provisions of the Act, as is clear from the summary of the main provisions of the Act set out in the judgment of my learned brother. The Act according to its preamble is regulatory and by section 23 punishes any violation of its provisions or directions lawfully issued thereunder. The Act does not empower the Central Government or the State Bank of Pakistan to take preventive action against any apprehended violation of the Act. The reasons for the absence of any such provision is not far to seek. If the Central Government or State Bank had been empowered to take any preventive action in anticipation of any apprehended violation of the Act, then they could have ordered the closure of any business firm engaged in foreign trade, or the cancellation of any particular contract for sale of goods to a foreign buyer, merely on the apprehension that the firm or the supplier is not likely to account for or repatriate the foreign exchange. This would put foreign trade in the country in great jeopardy. Therefore, the Legislature in its wisdom thought it fit to punish the actual contravention of the Act, at the same time investing the Central Govern ment and the State Bank with wide powers to call for any information and to give any direction to obviate any possible evasion of the Act. But there can be evasion of the Act only when foreign exchange is earned but not accounted for. Till that stage is reached in any anticipatory action to prevent an apprehended violation is clearly outside the provisions of the Act.

Secondly, the impugned direction and the resultant refusal offends against the rule in the maxim audi alteram partem no one shall be condemned unheard. The nearest case to the facts of the present case is Supreme Court's judgment in Messrs Farid Sons Ltd. v. Pakistan (P L D 1961 SC 537). In that the certificate of the appellant‑firm issued under the Registration (Importers and Exporters) Order, 1952, was suspended by the Chief Controller of Imports and Exports on the basis of an ex paste enquiry tending to show that the firm was guilty of malpractices in the conduct of its business for which certificate was granted to it. The communication addressed to the firm did not assign any reason for the suspension of the certificate nor afforded any opportunity to show cause against the suspension, because under the provisions of the order, the firm could not have asked for the certificate as of right and the grant was entirely discretionary with the Chief Controller. Further there was no express provision requiring a show‑cause notice for the suspension and cancella tion of the certificate. Nevertheless, their Lordships struck down the suspension of certificate because it offended against the maxim, audi alteram partem. The learned Chief Justice described the suspension of the certificate as abnoxious to all cannons of justice " even though the registration under the Order was not a right. The instant case bears close similarity with the precedent case inasmuch as the petitioner herein holds passport valid for Saudi Arabia and Libya, and requires no foreign exchange to finance his visit to these countries has been denied to exercise that privilege on the basis of a secret report without being afforded any opportunity to show cause.

3. I have given my anxious consideration to the larger question so elaborately discussed in the judgment of my learned brother, namely, as to whether the impugned order also offends against Fundamental Right No. 1, in Chapter 1 of Part II of the Constitution, which incidentally remains in operation, Declaration of Emergency notwithstanding. I regret and I say so with great respect, that I could not persuade myself to share his opinion on the point. This Fundamental Right is captioned as "Security of person' and reads

"No person shall be deprived of life and liberty save in accordance with law."

It is true that "liberty" is very comprehensive term and in its widest sense, as held in Kent v. Dulles referred to in the judgment of my learned brother might include "freedom of locomotion" in any part of the world. But here we have to interpret the word with reference to the context in which it is used. It is fundamental rule of interpretation of statutes which equally applies to the Constitutions, that "they should be construed' according to the intent of the Parliament . . . " which can best be gathered from the words and terms used in the statute. And it is equally well established rule that the Q meanings of the words of a statute or the true intention under lying them can be properly understood by a consideration of the whole instrument and every part of it.

"Every clause of a statute should be construed with reference to the context and other clauses of the Act so as, as far as possible, to make a consistant enactment of the whole statute.

Canada Sugar Refining Coy. v. Rex (1898 AC 735 (741)). Also see Maxwell on Interpretation of Statutes (1962 Edn.) Ch. 2 on Treatment of General Words and Gopalan v. State of Madras (A I R 1950 S C 27).

4. Bearing the above principle in mind, the first thing t notice, as pointed out already, is that Fundamental Right 1 occurs under the caption "Security of Person" which stands in sharp contract with caption of Fundamental Right 5, which guarantees "Freedom of Movement". The word "security" in the caption is plainly used in the sense of protection so as to guarantee freedom from physical restraint. The word "deprived" in the operative part of the provision which qualifies both "life and liberty" is equally significant. According to Blackstone's Commentaries Book I, p. 134, "deprivation" means total loss and R therefore has not the same meaning as restrictive of free movement. I, therefore, venture to think that what is sought to be protected by Fundamental Right 1 is loss o ' life and personal liberty, that is to say, freedom from physical restraint of person as by incarceration as distinguished from restriction or partial control of the right to move freely. Else the word "deprived" would be inapt grammatically when used with reference to "life."

There is yet another way of looking at the matter. If the word "liberty" in Fundamental Right I is understood in its generic sense so as to comprehend within its connotation, freedom of "universal locomotion" in any part of the world, then Fundamental Right 5 which guarantees freedom of movements to every citizen to move through Pakistan would be reduced to a redundancy, in effect it would be a repetition of what has already been ordained in Fundamental Right 1, which available to every person, citizen and alien alike. Conversely, no such anomaly would arise, if we were to understand the word. "liberty" in the sense of personal liberty of an individual, that is to say, freedom from restraint or incarceration. This would be in accord with the principle of interpretation referred to above that it must be read as whole with a view to determining the intention of each part, and the construction must be uniform and harmonious.

5. Brohi in hisadmirable work "Fundamental Law of Pakistan" has exhaustively dealt with the subject of "Liberty" and "Personal Liberty" in Article 146 at p. 395, with reference to a comparative examination of the relevant provisions of the 1956‑Constitution; the Indian Constitution and the American 5th Constitutional Amendment. The Indian. Constitution in its corresponding Article 21 uses the expression "Personal Liberty" while Article 5 (2) of our 1956‑Constitution was precisely in the same terms as Right 1 of the present Constitu tion set out above. The American 5th Constitutional Amendment for the relevant purpose reads :‑

" No person shall be held to answer for . . . . .nor be deprived of life, liberty or property, without due process of law . . . . . ."

The learned author points out that the American Supreme Court has in a series of cases beginning with Alleger v. State Loueinia ((1897) 165 U S 576) given a very wide meaning to the word "liberty" as meaning not only the right of a person to be free from the more physical restraint of his person as by incarceration but also to include freedom to enjoy all his faculties e.g. right to live .an work where he will, "to acquire useful knowledge, to marry to establish home, 'to worship God according to one's conscience and generally to enjoy all privileges long recognized at common Law as essential to the orderly pursuit of happiness; by free man. See also Mayer v. Nebraska (262 U S 390). Referring to the American decisions, the learned author at p. 396 observed

" . . . .It is doubtful if the term "liberty" would receive the sort of wide meaning as it admittedly has received in American, and this for the simple reason, that the liberties in general, have, in our Constitution, been separately dealt with in Articles 8 to 12 (of the 1956‑Constitu tion) much in the same manner in which they have been dealt with in Article 19 of the Indian Constitution . . . . ."

Referring to the corresponding provisions of the Indian Constitu tion, the learned author opined that the framers of Indian Constitution qualified the expression "liberty" in Article 21 by prefixing it with the wad "personal" merely by way of abun dant caution, so as to avoid the impression that the word "liberty" used in Article 21 had any reference to the same subject‑matter provided for in Article 19 of that Constitution. In reaching that conclusion, the learned author based himself on the judgment of Kania, C. J. who wrote the leading majority judgment in Gopalan's case (A I R1950 S C 57) wherein the learned Chief Justice observed that "Personal Liberty" was the antithesis of physical restraint. If I may say so, I entirely agree with the above analysis and the conclusion of the learned author. Else if the broad and sweeping concept of liberty as laid down in American cases is to be followed, then as pointed out already, Fundamental Rights Nos. 5, 6, 7, 8, 9, 10 and 12, which guarantee freedom of movement, assembly, association, trade and profession, speech and conscience etc. will become unnecessary appendages to the. Chapter relating to Fundamental Rights. It is, therefore, essential to bear in mind the general arrangement in the Chapter of our Constitution relating to Fundamental Rights, which is wholly different from the omnibus 14 American Constitutional Amendment, there being no catalogue separately listing the various. Freedoms as guaranteed by our present Constitution, the late Constitution and Indian Constitution. In the absence of such a catalogue, the American Supreme Court has taken advantage of the generality of the word "liberty" in expanding the scope of the "due process clause". Though that Court has never defined the word "liberty", it has often reiterated that it, "is not confined to mere freedom from bodily restraint" and that "liberty" under law extends to the full range of conduct which the individual .is free to pursue "of Bolling v. Sharp (347 U S 497 (499)).

6. The question how far the decision of the American Supreme Court, based upon the "due process clause" could be persuasive for Courts in Pakistan, came up for the consideration of our Supreme Court in Jabindra Kishore etc. v. Province of East Pakistan (P L D 1957 S C(Pak.) 9). In that case, the question arose with reference to the provisions of Article 5 of the 1956‑Constitution which guaranteed equality before law and equal protection of law.

The argument before their Lordships was that the East Bengal State Acquisition and Tenancy Act, 1950, offended against the equality clause in the late Constitution and, therefore, the Act was ultra wires. In support of the argument, certain decisions by the American Supreme Court proceeding on the interpretation of "due process clause" were cited. Agreeing with the conten tion of respondent's counsel, the argument was repelled by the following observation of the learned Chief Justice who wrote the leading judgment. There is considerable force in this contention because our Constitution does not use and could not have used the due process of law clause in guaranteeing primary rights‑ in the sense in which that clause has been interpreted by the Supreme Court of the United States. That Court has scrupulously avoided giving an exact definition of "due process of law", and all that can be gathered from the leading decisions on the subject is that no law can be said to be in accord with "due process of law" if it contravenes certain basic principles of justice and liberty, which are above the law that may be made by the Congress or by a State Legislature . . . . . ."

The same view was reiterated in a later case East & West Shipping Steamship Company v. Pakistan (P L D 1958 S C (Pak.) 41) in which the wires of the Control of Shipping Act, 1947, came under question on the ground that it conferred vast powers or discretion on the officer, who administered under the Act and, therefore, offended against the equality clause. To support the argument precedents from American Supreme Court were cited. The argument was again repelled by the following observations of the learned Chief Justice who wrote the leading majority judgment:‑

" In the United States‑ of America such grant is sometimes invalidated on the ground that it offends against the due‑process provision of the Constitution or that it delegates excessive legislative powers or that it denies equal protection of the law to the citizens, but as pointed out in Jibendra Kishore's case nowhere in our Constitution is the concept of due process of law to be found in the sense in which it has been understood in American jurispru dence."

7. Thus it will be seen that decisions proceeding on the interpretation of the "due process clause" by the American Supreme Court would not offer any guidance for the interpreta tion of our Constitution. This equally applies to Kent v. Dulles followed by my learned brother, which mainly proceeded on the basis of the American 5th Constitutional Amendment and the "due process clause" contained therein. As rightly pointed out by my learned brother that the judgment (which contrary to some earlier judgments of the same Court) recognized the citizen's right of exit as germane to his "liberty" was greatly influenced by article entitled "Passport Refusal for Political Reasons" appearing in Yale Law Journal, Volume 61 (year, 1952), pp. 171 to 203. The article mainly proceeded firstly on the basis of Article 13 of Universal Declaration of Human Rights adopted by the United Nations in 1948, which guaranteed freedom of movement within one's country and right of exit therefrom and return thereto and secondly on the interpretation of the "due process clause" in the American 5th Constitutional Amendment; by the Supreme Court of that country. I have said enough how far these judgments could be useful guides to the Courts in Pakistan. As to Article 13 of Universal Declaration of Human Rights, all I need say is that it is in the nature of an international treaty and a part of municipal law and, therefore, has no binding effect. Moreover, the article propounds and canvasses certain political theories, which if I may say so with respect, cannot blur the established principles governing the interpretation of statutes and written Constitutions.

8. For the foregoing reasons, the impugned direction, in my opinion, does not constitute an infraction of Funda mental Right No. 1 and, therefore, cannot be struck down on that score.

9. There are two other matters arising in the case, on which though I am in complete agreement with my learned brother, but need to be adverted to because of their general importance.

The first concerns the affidavit filed by Mr. Saddiq Hassan Gilani, who describes himself as Secretary for Parliamentary Affairs, Jama at‑i‑Islami. The affidavit was filed on 23‑4‑1968 with which were annexed, what purported to be copies of two letters, one of which dated November 1967, is by present Governor to the Central Finance Minister and the other dated 26‑4‑1963 is by the late Mr. S. A. Husnie to the then Finance Minister; having a bearing on the subject‑matter of this petition. There can be no manner of doubt that these copies, if genuine, are of privileged documents which cannot be received in evidence unless privilege is waived by the appropriate authority. There can be no doubt either that these copies, if genuine, have bee procured by illegitimate means, by a person who remains anonymous and those identity the deponent dare not disclose in his affidavit. Such underhand method to advance the petitioner's case, to say the least, was extremely ill‑advised, and Balls for severe condemnation and also a warning. Apart from possible penal action against the person who has been instrumental in procuring or abetting tire procurement of these privileged documents by deceitful means, a petitioner in a proper case in proceedings in writ jurisdiction may also be refused relief, for ha has come with unclean hands to seek relief which is discretionary with Court. It is obvious that the peti tioner in such cases seeks a vindication of legal right or a redress of a legal wrong : but if he himself is guilty of breach of any law in relation to such proceedings the Court will not countenances such breach and may, therefore, refuse redress.

In the instant case, there are certain factors operating in the petitioner's favour to obviate such action against him. The impugned order has been found wholly devoid of lawful authority; the proceedings in the case have been long drawn out for which the respondents also share the responsibility and lastly the petitioner did not himself produce the spurious documents and there is nothing to connect him with their procurement. Therefore, it is not a fit case in which to refuse relief to the petitioner.

10. The second matter concerns the interpretation of section 123 of the Evidence Act, 1872. We have allowed the respondent's plea of privilege regarding the source and the contents of information on the basis of which the impugned order was made. But I entirely agree with my learned brother that Ghulam Ali v. Abdul Hafiz which was mainly relied upon by the respondents' learned counsel requires reconsideration even though approved in Mst. Nasim Fatimah v. Government of West Pakistan.

A.B./K.B.A. Petition accepted.

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