IN THE HIGH COURT OF SINDH AT KARACHI

 

C.P. No. D-31 of 2017

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Date                      Order with Signature of Judge

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                                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

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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 () 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