Mujeeb Ur Rehman etc Vs Federation of Pakistan etc

PESHAWAR HIGH COURT, PESHAWAR

(JUDICIAL DEPARTMENT)

Writ Petition No. 241-P/2025.

Mujeeb Ur Rehman etc.

.........Petitioner(s).

Versus

Federation of Pakistan etc.

....Respondent(s).

For the Petitioner(s): Mr. Arshad Zaman, Advocate.

For the Respondent(s): Mr. Bilal Ahmad Durrani, Asstt: Attorney General for Federation alongwith Mr.

Bilal Ahmad, Asstt:

Advocate General for Provincial Government.

FOR NADRA. Mr. Shahid Imran Gigyani, A.D (Legal).

Date of Hearing: 15.9.2025

JUDGMENT

WIQAR AHMAD, J.- Through this single judgment, this court proposes to decide the main case (WP No. 241- p/2025) and connected Writ Petitions, as common questions of law and facts were involved in same. Particulars of all the connected writ petition are as under.

(i)WP No. 241-P/2025 titled Mujeeb Ur Rehman etc. vs. Federating of Pakistan etc.

(ii)WP No. 115-P/2025 titled, Muhammad Younas etc. vs. Ministry of Interior etc.

(iii)WP No. 1919-P/2025 titled Mst. Sabrina etc. vs. Federation of Pakistan. Etc.

(iv)WP No. 1979-P/2025 titled, Mst. Haleema Bibi etc.vs. Federation of Pakistan etc.

(v)WP No. 2314-P/2025 titled, Mst. Robina Bibi etc. vs Federation of Pakistan etc.

(vi)WP No. 3269-P/2025 titled Mst. Noreena etc. Vs Federation of Pakistan etc.

(vii)WP No. 2407-P/2025 titled Mst. Yasmeen etc. Vs. Federation of Pakistan etc.

(viii)WP No. 1582-P/2025 titled, Mst. Nasreen Bibi etc. Vs Federation of Pakistan etc.

(ix)WP No. 2440-P/2025 titled, Mst. Nargis etc. Vs Federation of Pakistan etc.

(x)WP No. 2448-P/2025 titled Mst. Asiya Bibi etc. Vs. Federation of Pakistan etc.

(xi)WP No. 2453-P/2025 titled, Mst. Noor Shaba etc. Vs. Federation of Pakistan etc.

(xii)WP No. 1670-P/2025 titled, Mst. Tasleem Bibi Vs. Federation of Pakistan etc.

2.The above mentioned writ petitions have been filed before this Court, wherein common grievances of petitioners revolve around the conduct of Secretaries of Village Council (herein after referred to as “VC”) in refusing registration of the marriages as well as birth of their children. Grievances have also been raised in the petitions against NADRA authorities for non-issuance of

CNICs, Family Registration Certificates (FRCs), Pakistan Origin Cards (POCs) and recognition of citizenship rights of Afghan spouses and their children born in Pakistan. In most of these petitions, the factual matrix is that Pakistani citizens, have solemnized marriages with Afghan nationals, out of which several children have been born, on the soil of Pakistan. These Afghan spouses, in the majority of cases, are lawful residents of Pakistan holding valid Proof of Registration (POR) or Afghan Citizenship Cards. Pursuant to their matrimonial ties with Pakistani citizens, they applied before NADRA for issuance of POCs and, in some cases, for correction of CNIC entries and registration of their families. The petitioners have statedly furnished all requisite documents and deposited prescribed fees, yet their lawful requests were kept pending, delayed on one pretext or another, or refused without assigning any cogent reason.

In most of the petitions, NADRA required the Afghan spouses to first register their marriages with the VCs, while the Secretaries of village Councils have been refusing registration of the marriages, leaving the petitioners in a lurch. Some petitions also involve denial of CNICs and Form-B to the children born out of the wedlock of Pakistani and Afghan nationals, thereby depriving such children of their fundamental rights of identity, education, and health.

Heavy reliance have also been placed by the petitioners on

ratio of judgment of this Court delivered on 01.12.2023 in the case of Mst. Naureen Masood Vs. Federation of Pakistan (WP No. 2469-P/2022). Thus, the common thread in these petitions is the grievance of Pakistani nationals, particularly women married to Afghan citizens, against the inaction, discrimination, and arbitrary conduct of Secretaries of Village Councils in registering their marriages as well as against NADRA in matters of refusals in issuing identity documents and registration. Petitioners have been alleging denial of their fundamental rights particularly those guaranteed under Articles 4,5,9,14 and 24 of the Constitution of Islamic Republic of Pakistan, 1973

3.Arguments heard and record perused.

4.Comments of NADRA were called which have been filed. Comments of Secretary Village Council have also been called in some of the cases and similar narration have been made in almost all the comments. It is important to be noted at the outset that NADRA as per their SOPs have been requiring registration of marriages with VC concerned and said document is demanded from parties at the time of applying for grant of POC as a mandatory requirement. The denial in registration of marriages (on the basis of purported exercise of powers by Secretaries Village Councils under Registration Rules, 2001) have resulted in grievances of

most of petitioners, in the instant writ petitions. The Secretaries Village Councils have mostly been denying registration of marriage for the reasons of non-observance of timelines and other formalities as required under Khyber Pakhtunkhwa Births, Death, marriages and Divorce or Dissolution of Marriages (Registration and Certification) Rules, 2021 (herein after referred to as the “The Rules”).

For sake of reference comments of SVC Fatu Abdul Rahima-II, Teshil Shah Alam District Peshawar are referred where in para-5 and 6 it has been mentioned;

5.The attached nikkahnama with the petition is unregistered and has been newly prepared without the official stamp and signature of the nikkah registrar from this council.

5.The registration and issuance of the nikkahnama for newly married couples are governed by (THE KHYBER

PAKHTUNKHWA BIRTHS, DEATHS,

MARRIAGES AND DIVORCE OR

DISSOLUTION OF MARRIAGES

(REGISTRATION AND CERTIFICATION)

RULES, 2021), which stipulate that the nikkahnama must be registered within 30 days following the nikkah ceremony in the concern council.

In this case, since the nikkah took place in 2005, the undersigned will issue a computerized nikkahnama to the petitioner by order of the Honorable Court after fulfilling all necessary formalities, including obtaining an NOC from the Afghan commission (Certificate from the concerned Embassy, High Commission or Consulate. regarding his marital status in his own country as well as security clearance, clearly certifying that he has not been involved in any illegal acts. the CRVS RULES 2021). However, his wife will be classified as an Afghan citizen, as she has not yet acquired Pakistani citizenship.

6.The registration/ Issuance of computerized Birth Certificate is regulate by THE KHYBER

PAKHTUNKHWA BIRTHS, DEATHS,

MARRIAGES AND DIVORCE OR

DISSOLUTION OF MARRIAGES

(REGISTRATION AND CERTIFICATION)

RULES, 2021, upon fulfilling the necessary formalities, the undersigned will issue computerized birth certificate to the petitioner's children ie. (13. Registration of a child of foreign parent(s). In case anyone of the parents or both the parents are foreigner, the foreign parent(s) shall be required to mention his passport number or refugee residence permit number, duly attested by the concerned Embassy, High Commission or Consulate, as the case may be, and submit the copy thereof to the concerned council. The CRVS Rules 2021) and age assessment.”

5.In some of the cases the Secretaries Village Councils have also been refusing registration of marriages for the reason that marriages had taken place somewhere else while its registration were sought by the parties in Village Council of their current abode ( different VCs).

6.Rules 13,14, 36 and rule 37 of registration rules were mostly claimed, by the Secretaries Village Councils, not to have been complied in most of the cases. Same being relevant are also reproduced for ready reference;

“13. Registration of a child of foreign parent(s) In case anyone of the parents or both the parents are foreigner, the foreign parent(s) shall be required to mention his passport number or refugee residence permit number, duly attested by the concerned Embassy, High Commission or Consulate, as the case may be, and submit the copy thereof to the concerned council.

14.Modalities for registration between ninety one (91) days to seven (7) years of birth. (1)The applicant shall present the following documents to the Chairman of the concerned council, who may

consider registration of birth after ninety days from the birth till seven years:

(a)Application form as specified in Form-A for registration;

(b)Attested affidavit on the plain paper of self with signatures of two witnesses, and

(c)Birth certificate, issued by the hospital, vaccination card on which the date of birth is mentioned, and in case of rural area, application verified by the member of the council. School certificate shall be submitted if the child is of school going age, applicant shall make a declaration that this information has not been submitted prior to this in any other council.

(2)The Secretary shall check for duplication within the jurisdiction of the concerned council.

(3)After verification, the Chairman of the concerned council shall carry out inquiry on this application at his own and shall take a decision within seven days. In case the delay is less than seven years, the Chairman shall issue the written orders for registration, if he is satisfied with the proofs of the above mentioned documents.

(2)It shall be the duty of the inspecting officer of the concerned council to check the births and deaths register, relevant data, fees recovered and incorporate the same in inspection memo.

Chapter-VII

Registration of Marriages

36.Responsibility for registration of marriage (1) the applicant is bound to get the marriage registered in the office of concerned council, within thirty days of such marriage.

(2)For the propose of registration of marriage, the following procedure shall be followed.

(a)Form-M shall be used for submitting an application for registration of marriage,

(b)The applicant shall be required to fill the application form as specified in Form-M, verify its entries, put his signatures and thumb impression and write thereon his Computerized National Identity Card number. If the applicant is illiterate then the Marriage Registrar shall fill in Form-M and shall read it out to the applicant and get the thumb impression of the persons concerned:

(c)the Marriage Registrar, by virtue of his signed and stamped Form-N shall, after receiving the marriage application, enter the information in the Register prescribed in Form-O,

(d)After the registration, the Marriage Registrar shall issue the receipt. All marriages taking place in the area of concerned council shall be recorded and then this information shall be entered in computer, using the NADRA's software. This database shall be delivered to NADRA through the representative appointed by the NADRA:

(c)If the marriage of the resident of concerned council is solemnized outside the limits of local council concerned, then the applicant shall present the application in Form-M along with an attested affidavit on the Stamp Paper of applicant, signed by two witnesses to the concerned Chairman. The concerned Chairman shall carry out an inquiry on the application at his own and shall take a decision within fifteen days. If the concerned Chairman refuses, then the applicant may file an appeal against the impugned order of the concerned Chairman to the concerned Director. The concerned Director, shall be bound to decide the appeal within thirty days; and

(f)Non-Muslim applicant shall submit marriage registration certificate of their religion and copy of the Computerized National Identity Card of the Marriage Registrar as per their personal laws and the Registration of Births, Deaths and Marriages Act, 1886.

(3)The Marriage Registrar shall be under obligation to-

(a)keep record of Nikah performed by him;

(b)issue receipt of Nikah fee to the concerned parties,

(c)provide the Nikah Form free of cost to the concerned parties,

(d)keep the Register of marriage in his safe custody, visit the office of the Secretary along with marriages Nikah Forms and register within seven days, get all this information registered with the concerned council and get the signatures of the Secretary at the last entry made in his register, and

(e)Furnish monthly report to the Secretary.

37.Registration of the marriage of a foreigner. (1) Where any of the parties to marriage is foreigner

then it shall be mandatory for the foreigner intending party to marriage to appear before Court Registrar or concerned Embassy, High Commission or Consulate, as he case may be, and declare on oath that he is performing this marriage with free will and without any undue influence.

(2)For registration of marriage, the following documents shall be submitted to the Marriage Registrar along with the Nikah Form or marriage form, as prescribed under the Muslim Family Laws Ordinance, 1961 or any other law for the time being in force, as the case may be:

(a)the copy of declaration on oath, made before the Court Registrar or the concerned Embassy, High Commission or Consulate, as the case may be:

(b)attested copy of CNIC or passport of a foreigner or residence permit, in case of refugee, and

(c)Certificate from the concerned Embassy, High Commission or Consulate, regarding his marital status in his own country as well as security clearance, clearly certifying that he has not been involved in any illegal acts.

(3)The concerned council, within whose jurisdiction marriage is solemnized, shall issue the Computerized Marriage Certificate.

The following documents shall be required for the issuance of marriage (4) certificate:

(a)copy of NikahNama duly registered by the Marriage Registrar or the marriage certificate, in case the marriage being solemnized by any other authority, as per personal laws of non-Muslims, and

(b)Copy of CNIC of husband and wife, along with copies of their parent's CNIC. Alternatively, the copy of passport, in case of foreigner, or residence permit, in case of refugee.

(5)The marriage certificate in Form-P shall be issued within three working days after the submission of application in this regard.”

6.Under the above reproduced rule-13 the requirement was that, in case anyone of the parents (or both the parents are foreigners) the foreign parent(s) shall be required to mention his passport number or refugee residence permit

number, duly attested by concerned Embassy, High Commission or Consulate, as the case may, and submit copy thereof to the concerned village council. As illustrated in the main case (of the connected cases) marriage in the case had taken place between Mujeeb Ur Rehman, (Pakistani citizen) with one Mst. Rabia an Afghan National on 25.4.2005. Four sons namely, Salman, Usman, Musa, Mohammad Isa and four daughters namely, Mst. Sara, Laiba, Zoya and Afsha had been born out of said wedlock.

Now Secretaries Village Councils Fatu Abdul Rahima-II wants to apply rule 13, alongwith other rules mentioned in the registration rules promulgated on 13.10.2021, to the case of registration of marriage of Mujeeb Ur Rehman and Mst. Rabia as well as to the cases of issuance of birth certificates for children born out of the wedlock. Similarly, the requirements of rule 37 that a marriage with a foreigner should be contracted in the particular manner described therein has also been sought to be applied to the case. In addition, requirement for registration of marriage within 30 days, as provided in rule 36 was also not being found complied by the Secretaries Village Councils and same is the case with application of rule 14, particularly modalities provided for registration of the birth within 91 days to 07 years of the birth. Almost similar situation has been

occurring in rest of the cases also which need not be described in detail.

7.The controversies before this court, in all these writ petition arising from refusal of Secretaries Village Councils to register, marriages with the foreigners, birth of children born out of such wedlock and issuance of death certificates (in some of the cases), have all been revolving around retrospective application of the registration rules. It is very much clear that these rules have never been given any retrospective operation. The registration rules have been framed and promulgated on 13.10.2021, by government of Khyber Pakhtunkhwa in exercise of powers conferred by section 12 of Khyber Pakhtunkhwa Local Government Act, 2013 read with section 19 thereof. Para-2 of rule 1 of the registration rule provided that the rules would come into force at once. Sub rule 2, while providing for application of the rules, also provided that the registration rules would apply for registration of births, deaths, marriages and divorce or dissolution of marriages at the level of village councils or neighborhood council. Said provisions have also been couched in a manner that the framers were intending to give the rules a prospective operation. The rules have never been intended to be having a retrospective application. Besides, rules framed in the domain of

subordinate legislation cannot be promulgated with retrospective application, particularly when such retrospective application would have the effect of depriving citizen of the State from their lawful rights of registration of, their marriages, birth of children, death and issuance of identity documents to them, their spouses and children.

Hon'ble Supreme Court of Pakistan while rendering its judgment in case of Sheikh Fazal Ahmad v. Raja Ziaullah Khan (PLD 1964 S.C 494), has held that rules framed in the domain of subordinate legislation could not be given a retrospective effect. In said case it was observed;

‘‘...the subordinate legislative power is to be permitted only to the extent to which it is necessary for the proper exercise of its function by the Legislature and a power to legislate with retrospective effect has never been accepted as included in a power of subordinate legislation...’’

Further reliance in this respect may be placed on the judgment in case of Rahmat Ullah v. Deputy Settlement Commissioner (PLD 1963 SC 633).

8.Besides, rules 13 and 14 while requiring the mentioning of particulars or providing the timelines for registration, have also been couched in such language which could be safely held to have been directory in nature rather-than mandatory. Firstly, the language used therein was providing guidance to the effect that the rules have

been intended to be directory in nature rather-than mandatory. Although word “shall” have been used in the rules 13 & 14 but mere usage of word “shall” cannot always be deemed to be denoting mandatory intention of framers of the rules. This court while giving its earlier judgment in case of Bahadar Hilal Vs. Anwar Hayat ( PLD 2022 Peshawar 39) has held that use of word “ shall” may be construed as permissive in appropriate cases. While holding so, this court had also relied on judgment of Hon'ble Supreme Court of Pakistan rendered in case of Ghulam Qadir ..vs.. Deputy Commissioner reported as 1984 SCMR 493 where it had been elucidated that the word “shall and may” might be construed interchangeably while determining the intention of the legislature. Relevant discussion made in the judgment of this court, is also reproduced for ready reference;

6.The decree-holders had filed applications for execution of the decree well in time. Even if there was any defect in its initial filing. same stood rectified with order dated 18.01.2021 of this Court. Even! otherwise, consequences of not following the provision of Rule 15 of Order XLV, C.P.C. have not been provided. Its consequences cannot be taken to the effect of nullifying the judgment of Hon'ble Supreme Court of Pakistan. Such provision has been enabling in nature as well as F directory and not mandatory for the reason that no consequences have been provided. The word "shall" has no doubt been used in the rule but this word has not always been carrying the implication that it has been intended to be used as mandatory in all eventualities. A part from Understanding Statutes authored by Mr. S.M. Zafar would be beneficial to be reproduced hereunder regarding the fact as to when the word "shall" may be construed as permissive;

"The word "shall" may be construed as merely permissive where the language of the statute as a whole, and its nature and object, indicate that such was the legislative intent, and where no public benefit or private right requires it to be given an imperative meaning. Where a statute makes that legal and possible which otherwise there would be no authority to do, it will be construed as permissive only, although using the word "shall". It is also a general rule that the word "shall" when used by legislature in a grant of authority to a Court, means "may" and that the use of the word "shall" in a statute directing a Court to determine certain matters does not necessarily confine such power to that tribunal. It has been held that, as against the government, the word "shall" is to be construed as "may" unless an intent to the contrary is manifest. The word "shall" must also be construed as permissive when the statute thereby can be upheld, if a construction to the contrary would render it unconstitutional. Even the word "must" may be construed to be merely directory where, from the construction of entire statute and the object to be accomplished by it, such appears to have been the intention of the legislature, but it will not be so construed where the context shows that it was used in a mandatory sense."

Similarly, Hon'ble the Supreme Court of Pakistan in case Ghulam Qadir v. Deputy Commissioner and others reported as 1984 SCMR 493 has also elucidated that the words "Shall" and "May" might be considered interchangeably while determining the intention of legislature. Relevant findings in this respect, given in said judgment, are reproduced here for ready reference;

"Though in general sense the word "may" gives an impression of its being enabling or discretional, and the word "shall" as obligatory, yet the connotation is not inelastic and inviolate. Cases are not wanting where the words "may", "shall" and "must" are used interchangeably. Accordingly, in order to find out whether these words are being used in a directory or in a mandatory sense, the intent of the Legislature is the guiding factor. But this much is a settled proposition that where if, positive direction is given as in the instant case, the use of the word "may" has a connotation of compulsion or obligation." Similarly, Hon'ble Lahore High Court in the case Majid Bukhari The State reported as PLD 2000 Lahore 108 has also recorded the following observations on the basis of the existing case law: "The other limb of the argument of the learned counsel for the Appellant was that word 'Shall' has been used in section 159 of Act, 1969, therefore, the provision is mandatory. The word 'Shall' will not always make a particular provision mandatory in nature. In this behalf. reference can be made to the

judgments in the case of Muhammad Saleh v. The Chief Settlement Commissioner, Lahore and 2 others (PLD 1972 SC 326), Messrs Maple Leaf Cement Factory Ltd v. The Collector of Central Excise and Sales Tax (Appeal), Lahore and 2 others (1993 MLD 1645) and Abdul Rahim and 2 others v. Messrs United Bank Ltd, of Pakistan (PLD 1997 Karachi 62). The words 'Shall' and 'May' used in a provision are interchangeable as held in the case of Muhammad Saleh (Supra). One of the criteria for holding a, provision directory was that when non-compliance was not visited by a penalty but in the case of Abdul Rahim (Supra) in spite of the fact that failure to deposit the decretal amount was to result in the dismissal of the appeal against the judgment of the Banking Tribunal still it was not treated as mandatory. There was in fact no universal rule to determine as to whether a provision is directory or mandatory in nature. The golden rule, however, for determining whether a particular provision is directory or mandatory in nature, was to determine the same in the light of the scheme of a particular statute. The nature and purpose of the provision was to be ascertained the intention of the Legislature."

Further reliance in this respect may be placed on the Judgment of the Hon'ble Sindh High Court, Karachi rendered in case Qamaruddin v. Muhammad Sadiq and others reported as 2001 CLC 848.

9.The use of word “shall” does not always mean that framers of law or rules intends to make the rules mandatory.

It is important to be noted that no adverse consequences have been provided for non-observance of rule 13 and 14.

So for as rule 36 was concerned, the language used in sub rule-1 was no doubt making it mandatory for an applicant to have registered his marriage with the concerned village council within 30 days of such marriage but here also no consequences have been provided for omission to get his marriage registered within 30 days. Such rule cannot be construed even in its prospective operation to the effect that

if marriage is not registered within 30 days then registration of such a marriage would be refused by the concerned Secretary of Village Council. Placing of such an interpretation has never been intending by framers of the rules. Same would also be much irrational and would defeat vested rights of citizen of the State regarding documentation of their marriages. No penalty has been provided for violation of the rules particularly timelines incorporated therein and therefore the connotation “the applicant is bound to get the marriage registered” would not be sufficient to construe the rule in a manner so as to introduce a penalty in the rules in shape of declining the request for registration by the concerned Village Council. In same sense observance of the timelines provided in rule-13 is read down so as to make it complaint with exercise of vested fundamental right of citizen in the matter of registration of their marriages and issuing the testimonials.

It has even been provided for cases of non-observance of timelines provided for doing of acts under the Constitution that its non-observance would not invalidate any subsequent action, for the only reason that same had not been done within that period. Said principle has expressly been embodied in Article 254 of the Constitution of Islamic Republic of Pakistan, 1973.

10.So far as the issue of territorial bounds of contracting the marriages were concerned, same issue has also been dealt with in para-e of sub-rule 2 of rule 36 of the Rules, 2021 and 15 days has been provided for decision of the VC and then a right of appeal to the Directorate General of Local Government and Rural Development, Khyber Pakhtunkhwa as well. Clause-e of sub-section 2 of section 36 of the Rules, 2021 have also not been preventing registration of those marriages which have not taken place within territorial jurisdiction of the VCs. Only powers for summary inquiry has been provided and that also for authenticating the factum of marriage and none else. If a marriage is authenticated by the parties while submitting their application on form-M alongwith attested affidavit on the stamp paper of the applicant (signed by two witnesses of the concerned) and same documents are not found to be forged, fictitious or obtained as a result of coercion or undue influence, then the Secretaries VC should register the marriage under clause-e of rule 36 of the registration rules.

11.Rule 37 has also been prospective in its operation and same could not be applied with retrospective application. It is reiterated with reference to the facts of the main case, that the parties having contracted their marriage in 2005 and 08 children having been born of the wedlock, could not be deemed to be starting from scratches getting the permission

mentioned in rule-37 and only then the marriage would be registered by the concerned VC. Such an application of rule-37 is never intended by framers of the rules. Placing such an interpretation on the rules would also produce absurd consequences. Such an interpretation should be avoided which results in illogical and absurd consequences.

From the 12th Edition of Maxwell's Interpretation of Statutes, the following observations may be reproduced for supporting the opinion expressed above;

"In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should in all cases of doubtful significance, be presumed to be the one. "All intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available." Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction."

Hon'ble Supreme Court of Pakistan while in the case of "Khalid Qureshi and 5 others v. United Bank Limited reported as "2001 SCMR 103" has also held in this respect;

"It is pertinent to mention here that "the initial presumption is that an absurdity is not intended by the law-maker. (PLD 1964 Dacca 756, PLD 1962 Lah. 878). In case of doubt as to the intention of Legislature, an interpretation which leads to manifest absurdity should, if possible, be avoided. (PLD 1964 Lah. 101 + PLD 1966 Azad J&K 38). If proposition accepted, leads to absurd result, there is always a presumption against such absurdity". (PLD) 1959 Quetta. 1),".

12.So far as rule-37 is concerned same was also prospective in operation like rest of the rules and was not at all applicable to the cases where marriages had taken place before promulgation of the rules i.e. 13.10.2021. No penalty has been prescribed in the rules for non-observing rule-37 and therefore, rule-37 can also be safely held to be directory in nature rather-than mandatory. Hon'ble Supreme Court of Pakistan while giving its judgment in the case of Tariq Mehmood v. The State , P L D 2009 Supreme Court 39, has held that non-observance of a directory rule would not vitiate an action. Relevant para is also reproduced as under;

‘‘7...The very language employed in the rules and the effects of its breach provided therein have made the rules directory and not mandatory....

In directory provisions substantial compliance is sufficient and even where there is no compliance at all, the act is not invalidated by such non- compliance if the act otherwise is done in accordance with law.’’

13.In light of interpretation of the rules and after knowing that the rules were having prospective operation we have come to the conclusion that the acts of Secretary Village Council concerned in refusing to register the marriages, taking place before promulgation of the registration rules, for non-compliance of same rules, have been unlawful, illegal, violative of fundamental rights of

those Pakistani citizen who have contracted marriages with foreigners.

14.Law relating to marriages of Pakistani national with foreigners, claim of POC, grant of nationality or entry of names of children born out of such wedlock has already been settled by this Court while rendering its judgment in the case of Mst.Naureen Masood etc Vs Government of Pakistan through Secretary, Ministry of Interior, Islamabad etc.(W.P.No.2469-P/2022) decided on 01.12.2023. same exercise need not be repeated and therefore this court reiterate the following directions issued earlier in said case;

“17. So far as issuance of Form Bai to children are concerned, learned Director Legal NADRA stated at the bar that when one of the spouses happened to be Pakistani citizen then request for registration of the children were not being denied but such spouse were required to first update their marital status. Learned counsel for petitioners were however complaining that at the NADRA registration centers, request of their clients were not being entertained. We have also been coming across such complaints in other cases. It is therefore directed through this judgment ugain that in all the cases where one of spouse are Pakistani citizen, his or her offsprings shall be registered without creating any hindrance. Marriages of Pakistani citizens with foreigners shall also be registered seamlessly and the process should be made easier by concerned respondents. It is also directed that Chairman and Directors General, NADRA shall issue fresh instructions to all the registration centers in compliance of this judgment.

18.So far as prayer of petitioners regarding grant of nationality is concerned, for said purpose they would be at liberty to apply to concerned forum i.e, Government of Pakistan through Ministry of Interior, on the prescribed form and format. All these writ petitions are partially allowed to the effect that requirement of valid passport with valid visa shall not be considered mandatory in case one of the spouse is Pakistani and another claims to be a foreigner. It is however clarified that NADRA authorities would be fully competent to ask for further proofs and details and after satisfying itself regarding the fact that the person fulfills mandatory eligibility requirements of Rule 4 of POC Rules, and that he or she is actually an Afghan citizen, having security clearance, the POC shall be issued otherwise the request shall be rejected but in writing and such decision shall be conveyed to the applicant at the earliest. Cases of all the petitioners in these connected petitions shall be considered by NADRA and appropriate orders in all these cases shall be made and conveyed to the concerned applicants after affording them opportunity of hearings and making up deficiencies if any.”

15.Similarly this Court while giving its judgment in case of Qasim Khan and another Vs. Federation of Pakistan and others (W.P No. 4283-P/2023 decided on 31.5.2024) has also issued the following directions;

‘’21. In light of above discussion, all the petitions are disposed of in terms of the following determinations, declarations and observations:-

I. A Pakistan woman married to an Afghan national is held entitled to hold dual nationalities i.e. Pakistan and Afghanistan and she would be entitled to issuance of CMC etc despite issuance of ACC/POR etc in her name(if no doubt is otherwise existing in respect of her citizenship of

Pakistan) and the act of respondents qua blocking of their CNICs for the reason of her entry as ACC or POR Card Holder, (for such

reason), is declared as illegal, ultra vires, null and void.

11.Those person who are below the age of 21 years and born out of a wedlock, one part of which i.e. husband or wife is a Pakistani nãional, are also held entitled to retain dual nationality till attaining the age of 21 years, without renunciation of nationality of either of the two countries i.e. Pakistan and Afghanistan in the cases in hand, The act of respondents where they have been refusing entry of the minor and issuing them Form-Bai as well as refusal of CMC for the reason that persons of the above mentioned age group have been found in the DATA of ACC or POR card holders, are also declared to be illegal, ultra vires and resultantly null and void. Such persons are held entitled to registrations by the NADRA.

111.Those petitioners who themselves or their spouses are Afghan nationals but having married to Pakistani citizen are held entitled to issuance of POC They are also held entitled to apply for grant of citizenship by way of naturalization to the Federal Government in the prescribed manner.’’

16.A foreigner who marry a Pakistani national is entitled to issuance of POC. Children born out of such wedlock are also entitled to be registered as Pakistani national in NADRA Database. They shall also be issued form-B or smart cards as and when applied by them. Denial of registration of their marriage by Secretary Village Councils in all these connected cases were found to have been illegal without lawful authority, null and void. All these writ petitions are therefore disposed of with the following directions:-

(a)All the concerned Secretaries Village Councils and Neighborhood Councils are

directed to register marriages of Pakistani nationals with foreigner citizens. The moment the factum of existence of marriages are verified. Only in one case registration of such marriages can be denied that when the factum of a marriage cannot be verified or it is established that the marriage tie has not infact been created or that the marriage is being registered as a mere paper work.

(b)If a marriage is not registered by Secretary Village Council then such a Secretary shall pass an order in writing and convey copies of such order to the parties within seven days of making of application before him. In other words, on arising of any application for registration of marriage Secretary Village Council concerned shall either register the marriage within 15 days or decline the request by issuing an appropriate order rejecting the application for registration of marriage. The effected parties may thereafter file an appeal before Directorate General of Local Government and Rural Development, Khyber Pakhtunkhwa under section 36 (2)(e) of the Khyber Pakhtunkhwa Births, Death, marriages and Divorce or Dissolution of Marriages (Registration and Certification) Rules, 2021.

(c)All the petitioners may also apply to NADRA for issuance of POC or Form-B and Smart Card as the case may be whose application shall be entertained and decided in accordance with ratio of judgment of this court rendered in Mst.Naureen Masood etc Vs Government of Pakistan through Secretary, Ministry of Interior, Islamabad etc decided on 01.12.2023, (W.P.No. 2469- P/2022) and judgment passed in case of Qasim Khan and another Vs. Federation of Pakistan and others (W.P No. 4283-P/2023 decided on 31.5.2024).

Announced on;

15th of September, 2025 * Zarshad* Sd/

JUDGE

Sd/

JUDGE

(DB)Hon’ble Mr. Justice Wiqar Ahmad & Hon’ble Mr. Justice Kamran Hayat Miankhel WP No. 241-P/2025