IN THE HIGH COURT OF SINDH AT KARACHI
C.P. No. D-31
of 2017
______________________________________________________
Date Order with Signature of
Judge
___________________________________________________________
Before : Mr. Justice Nadeem Akhtar
Mr.
Justice Fahim Ahmed Siddiqui
Saify
Ali Khan……………………………………...…………………..Petitioner
Versus
Federation
of Pakistan and others……………..……………….Respondents
Date
of Hearing : 17.01.2017
Mr. Khalid Jawed, advocate for the petitioner
Mr. Aslam Butt, DAG
Ch. Muhammad Farooq, advocate for NADRA
O R D E R
.-.-.-.-.-.
FAHIM AHMED SIDDIQUI, J:By filing the instant petition, the petitioner has challenged the
issuance of show cause notices to petitioner and her minor son by National
Database Registration Authority (NADRA) and subsequent blocking of their
National Identity Cards.
2.
It is the case of petitioner that she married with Shafqat
Hussain Unar on 28-11-2006 at Karachi. Out of their wedlock, a son namely Ali
Rehmat Khan Unar was born on 13-04-2009 at Karachi (South). Petitioner is the holder of CNIC issued by respondent No. 2 (NADRA). On 22-10-2014,
she applied for Smart Card, which was also issued to her on 25-10-2014 with
expiry date 25-10-2021. After few days of receiving of the Smartcard, a show
cause notice dated 27-11-2014 under section 23 of the National Database
Registration Authority Ordinance, 2000 signed by Assistant Director (Legal) on
behalf of Director General was delivered at the petitioner's residence with
direction to visit NADRA office (NRC) for modifying her marital status. She was
amazed to see the show-cause notice. She is a legally wedded wife of Mr. Shafqat
Hussain Unar and no divorce has taken place between
the spouses. She belongs to Fiqa-e-Jaferia and there is a prescribed procedure
of divorce. She never received a divorce deed from her husband and as per her
knowledge no legal proceedings had ever initiated in
any court of law in this respect. However, petitioner responded to the
aforesaid notice through a reply dated 03-12-2014 through TCS in which she
denied the effect of any so-called divorce. The petitioner also sent a letter
dated 05-12-2014 to the Deputy Commissioner of Larkana,
requesting him for verification of fake/bogus Divorce Certificate
having been forwarded by NADRA. When no reply was
communicated, the petitioner presumed that the matter has been closed
and NADRA has realised their mistake. However, petitioner
again received a notice dated 25-07-2016 under section 23 of NADRA Ordinance
2000 whereby the petitioner was directed to appear before NADRA Verification
Board with documentary evidence for the false allegation that the petitioner
has given incorrect particulars for getting Smartcard. A similar notice was also issued to petitioner's son Ali Rehmat
Khan Unar aged about 8 years with similar allegations, which is not only
patently illegal but amount of causing harassment to petitioner. The petitioner
also visited NADRA office in DHA-IV, Karachi where she got information that
their record does not show that the petitioner is a divorcee and they assured
that her Smartcard would be de-blocked but no such action was taken place,
hence she obliged to file the instant petition.
3.
After service of notice, the respondent No. 2 (NADRA) filed
their comments in which they admit the issuance of show-cause notices.
According to their comments, the ex-husband of petitioner namely Mr. Shafqat
Hussain Unar is the complainant in the instant matter, who has provided Divorce
Certificate and affidavit denying his relationship with petitioner’s son.
Depending on such documents, notices were issued to petitioner in respect of
her CNIC while to her son in respect of NICOP issued to him.
4.
We have heard the arguments advanced at the bar and perused the relevant records. The
learned counsel for the petitioner submitted that NADRA has no authority under
the law to direct the petitioner to change her marital status. He submitted
that the notice given by the respondent No. 2 is beyond the jurisdiction and
based on incorrect information to them. The learned law officer of respondent
No. 2 submitted that the petitioner was just asked to appear and give reasons
and explanation regarding the information received by NADRA. He submitted that
comments on behalf of NADRA have been filed
and as per the complainant, who was the
husband of the petitioner, the petitioner is
no more his wife. The learned DAG submitted that the NADRA has given notice on
information received to them. However, he assured that the direction of this
court would be complied with.
5.
The grievance of the petitioner is that NADRA has not only
issued notices to her and her minor son but also blocked her Smartcard/CNIC.
National Identity Card is a very important
document for a Pakistani. The significance and purpose of CNIC enumerated in
section 19 of the National Database and
Registration Authority Ordinance, 2000. Section 19(1) of the Ordinance
prohibits issuance of passport, permit or other travel documents for going out
of Pakistan to a citizen who has attained the age
of eighteen years but does not possess or produce a National Identity
Card. According to Section 19(2) any officer
charged with the duty of conducting the poll at an election may, for the
purpose of satisfying himself as to the identity of any person, require such
person to produce his National Identity Card. Section 19 (4) contemplates that
a card including a National Identity Card issued to a person under this
Ordinance shall be proof of his or her identity and could be established from
the contents of such card for any purpose for which his or her identity is
required to be established. This means that identity of a citizen depends upon the contents of the National Identity
Card and the entries of the identity card are the proof of identity of a
person. It is also important to note that nearly all the government and private
organizations have framed rules or issued circulars for production of CNIC and
now it is not possible to apply for a job, open a bank account, get a driving
licence, appear in a court proceeding and enter in certain buildings and areas
without production of CNIC. In such a situation, blocking of CNIC is an extreme
act as it amounts to depriving a Pakistani national from his/her fundamental
right and identity and depriving him to discharge his routine work.
6.
Now we see whether NADRA authorities enjoy
unfettered right to block a CNIC of any citizen of Pakistan. It is unnecessary
to specify that the National Identity Card is issued on
the request of the applicant after a proper verification and thorough inquiry
by NADRA. On the grounds of these information a CNIC is issued and if an
applicant has provided false information then
he and his verifier may be made culpable under Section
30(2) (a) of the National Database and
Registration Authority Ordinance, 2000. Although the word BLOCK or BLOCKING
is not mentioned in the said statute but under Section
18 of the Ordinance, NADRA is authorised to impound a CNIC in certain
conditions. It would be beneficial to reproduce Section
18 of the National Database and Registration
Authority Ordinance, 2000 which reads as:
"18. Power to
cancel, impound or confiscate cards. --(1) A card issued under this
Ordinance shall be the property of the Federal Government and may, by an order
in writing under the seal of the Authority or an officer authorised by it in
this behalf, be required to be returned and shall also be liable to be
cancelled, impounded or confiscated by a like order:
Provided that no order shall be made unless such
person has been given notice in writing calling upon him to show-cause why the order should not be made.
(2) An order under subsection (1) cancelling,
impounding or confiscating a card may be made only if there is reason to
believe that-
(a) the card has been obtained by a person who is not
eligible to hold such card, by posing himself as eligible;
(b) more than one cards have been obtained by the same
person on the same eligibility criteria;
(c) the particulars shown on the card have been
obliterated or tampered with; or
(d) the card is forged.
(3) Any person in respect of whose card an order under
subsection (1) has been made may, within thirty days of the order, appeal to
the Federal Government against the order and the decision, of the Federal
Government in appeal shall be final:
Provided that no order on such appeal shall be passed
unless the appellant has been given an opportunity of being heard.”
7.
From the above statutory provision, it is clear that the
respondent No. 2 (NADRA) have the authority and power to conduct an enquiry
about the CNIC issued to a person if there exist reason to believe that the
card is obtained by a non-eligible person, more than one card is obtained by
him, there is tampering in the card or the card is obtained by forgery. In such
a situation, NADRA may decide the matter by giving notice
to such CNIC holder and he has a right of appeal to be filed within 30 days if
aggrieved with the decision of NADRA and even the appeal cannot be decided
without giving an opportunity of hearing to him. It is
quite clear from the above provision of law that no action can be taken
against the cardholder without giving him an opportunity for hearing. The
impugned show-cause notices are issued against the petitioner and her son under
Section 23 of the Ordinance. It would be
appropriate to reproduce Section 23 of the Ordinance, which reads as under:
“23. Power to call for proof of information.
The Authority or any person authorised by it in this behalf may require a
person who has given any information to furnish such documentary Or other
evidence of the truth of that information as it is within the power of that
person to furnish.”
A bare perusal of the
above provisions of the Ordinance of 2000 manifests that the authority has the power to demand proof from the informer in
respect of any information given by him to the authority. Such documentary or
other evidence may be demanded from an applicant for CNIC and/or from a person
who gives information regarding some applicant or holder of CNIC.
8.
By issuing show-cause notices, NADRA not only questioned the
marital status of the petitioner but also the parentage of her child. It is
really a serious issue and NADRA is not authorised even to issue notices to the
petitioner and her minor child. If a person, who may be the husband of
petitioner, has furnished some information regarding marital status of
petitioner and legitimacy of her child, then NADRA should demand such person
some concrete proof especially when the legitimacy of a child is involved. The
alleged Divorce Certificate itself clarifies that the marriage is not denied as
such the paternity of a child born out of lawful wedlock invariably carries
presumption of truth in its favour and mere simple denial can never take away
the status of legitimacy. In a hadith found in Bukhari and Muslim, the Prophet
(ﷺ) states: “The child
belongs to the marriage bed”. It is for this reason that in Sharia a rule is
formulated i.e. "child follows the marriage bed". Every presumption
is taken in favour of legitimacy of the child without acknowledgement or
affirmation of the parentage on the part of father. Husband during continuance
of marriage is not permitted to declare that the child is not his, and the
child is attributed to him in Islam. It is only through ‘Li’aan Oath’ that he
can disown his child or he may recourse to a civil proceeding in this respect.
9.
Petitioner contended that she is not a divorcee and in her
sect there is a prescribed procedure of divorce. The issuance of alleged
Divorce Certificate by a Union Council of Taluka Bakrani, District Larkana
itself questionable when the petitioner is a permanent resident of Karachi
South. According to Rule 3 (b) of the West Pakistan Rules under the Muslim
Family Laws Ordinance, 1961, the jurisdiction for issuance of such certificate
shall be at the Union Council in which the ‘wife’ to whom ‘talaq’ has been
pronounced was residing. Similarly, legitimacy of a child entailed far reaching
impact, therefore, determination of such crucial and vital issue should not be
carried out in a cavalier manner as apparently done by the NADRA authorities in
the present case. These issues actually fall under the domain of Family and
Civil Courts and for such issues NADRA has no authority under the law.
10.
In view of the above, we are of the considered opinion that
in the instant matter, the respondent No.2 has not acted according to spirit of
law, as such the impugned show-cause notices
issued by NADRA are set-aside, with direction to de-block / restore the
CNIC/Smartcard of petitioner bearing No. 42301-6024389-8 and NICOP of her son
bearing No. 43201-5379755-5 immediately. The office
is directed to deliver a copy of this order to the respondent No.2 (NADRA) for
compliance.
11.
The above are the reasons of our short order dated 17-01-2017
whereby this petition was allowed.
JUDGE
JUDGE