Sana Ali Khan Vs Govt: of KP

JUDGMENT SHEET

PESHAWAR HIGH COURT, MINGORA BENCH

(DAR-UL-QAZA), SWAT

(Judicial Department)

W.P No. 122-M/2024

Sana Ali Khan and 04 others —Versus— Government of Khyber Pakhtunkhwa through Chief Secretary, Civil Secretariate, Peshawar and others Date of hearing: 26.11.2025

PRESENT:

M/S Shams-ul-Hadi, Advocate for petitioners.

Mr. Said Jamil Shah, Assistant Attorney General for the Federation.

Mr. Rahimullah Chitrali, Assistant A.G. for the official respondents of the Provincial Government.

Mr. Fawad Ahmad, Law Officer on behalf for

NADRA.

Qazi Farid Ahmad and Zia Ur Rhamn, Advocates for newly impleaded respondent through C.M No.

953-M/2024.

JUDGMENT

QAZI JAWAD EHSANULLAH, J.- The petitioners, through the instant petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, seek the following reliefs:

―It is therefore, humbly prayed that by accepting the instant writ petition an appropriate writ may be issued that:

1)Petitioners may be declared the lawful citizens of the Islamic Republic of Pakistan.

2)Notices issued by the respondents be declared illegal, void, without lawful authority and ineffective upon the rights of the petitioners and respondents may be further directed to withdraw the notice issued by them.

Tajamul/CS | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

3)Respondents may very graciously be directed to re- activate if the respondents blocked the blocked CNICS, Passport of the petitioners and restrain them to take such action in future against the petitioners.

Any other relief, though not specifically prayed for in the heading of the petition for which the petitioners are otherwise entitled under the constitution, may also very graciously be granted, please.‖

2.The petitioners assert in the present writ petition that they are bona fide and permanent residents of District Malakand, duly issued National Identity Cards as well as a Family Registration Certificate1 by the competent authority/NADRA. Petitioner No.1 has also been issued a passport2 by the Ministry of Interior, Government of Pakistan. They maintain that their family comprises six members; petitioner No.1, his wife, and their four sons3. It is further averred that they own a residential house in District Malakand and enjoy a respectable standing within the local community. The record reflects that respondents No.5 to 7 issued notices to them4 under Section 18 of the NADRA Ordinance, 2000 alleging that the petitioners had not furnished accurate particulars to the authority, and requiring them to produce supporting documents within fifteen days.

This action, according to the petitioners, stemmed from a civil suit5 instituted by respondent No.9 Behram Khan, brother of petitioner No.1, wherein he had questioned the Pages 14–16 of the writ petition

Page 17 of the writ petition

Petitioners No. 2 to 5

Pages 18-26 of the writ petition

Page 32 of the writ petition Tajamul/CS | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

citizenship of petitioner No.1 who had allegedly obtained the same by presenting NIC of his sister, Mst. Shumaila Bibi. It had further been alleged in the suit that petitioner No.1 was not the son of his recorded parents Abdur Rahman and Mst. Rahima Bibi but Afghan national. During the trial proceedings, respondents/NADRA had filed an application6 seeking rejection of the plaint under Order 7 Rule of CPC which was endorsed by petitioner No.1. That application was dismissed by trial Court vide order dated 05.05.20237 and revision petition filed thereagainst by petitioner No.1 was also dismissed by revisional Court vide judgment dated 16.06.20238, however, this Court had accepted his further challenge by way of W.P No. 909-M/2023 vide judgment dated 02.11.20239 and plaint of the newly added respondent No.9/plaintiff was rejected. The petitioners contend that based on that suit NADRA has taken cognizance of the allegations and unlawfully blocked their CNICs. Aggrieved from this action, they have invoked the constitutional jurisdiction of this Court.

3.Respondents No.4–7/NADRA have submitted their comments, wherein they have adopted a vague and largely unsubstantiated stance in response to the petitioners’ assertions. They state that the CNICs of petitioners No.1, 3, 4 & 5 have been ―digitally impounded‖ pursuant to Military Page 62 of the writ petition

Page 66 of the writ petition

Page 72 of the writ petition

Page 85 of the writ petition Tajamul/CS | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Operations notified on 29.12.2023 and 13.02.2024, and that the petitioners must therefore appear before the Zonal Verification Board of NADRA, along with their correct particulars, for clearance of their CNICs in accordance with the Federal Government Notification dated 19.04.2017. It is further mentioned and argued at the bar that the CNIC of petitioners No. 1 & 2 are ―clear‖ on the basis of the NIS fraud search and family-tree tracking. The Ministry of Interior, in its comments, has reiterated the same position while opposing the relief sought by the petitioners.

4.Arguments heard and record perused.

5.From the available material, it is evident that the citizenship status of petitioner No.2, Sabitullah, has been declared ―clear‖ on the basis of the NIS fraud search and family-tree tracking. Likewise, it is also categorically stated at the bar by the learned A.A.G. and standing counsel representing NADRA the status of petitioner No.1 is also clear and his CNIC status stood restored. This directly implies that paternal relationship of petitioner No.2 with petitioner No.1 stands duly verified and unquestioned. By necessary corollary, the family relationship of the remaining sons (petitioners No.3 to 5) with their father also cannot be treated differently in the absence of any specific adverse material. A conspicuous inconsistency, therefore, emerges:

when two members of the same family have been acknowledged as genuine citizens, it is perplexing how the Tajamul/CS | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

citizenship of the remaining petitioners, who are part of the same family-tree, has been deemed doubtful. This is especially when neither in the official comments or during the course of submissions at the bar the blood relationship of petitioners No. 3-5 with petitioners No. 1-2 has nowhere been questioned either expressly or by any implication. On examination of the comments filed by NADRA, it further appears that respondents have adopted an opaque and inadequately reasoned stance. The notices issued to petitioners No.2 to 510 do not reveal any specific, concrete or individualized allegation. These notices merely cite broad, generic grounds without identifying the particular defect, discrepancy, or incriminating material on the basis of which their CNICs were ―digitally impounded.‖ Such non-specific assertions fall short of the standard required under Section 18 of the NADRA Ordinance, 2000, which obliges the authority to communicate the precise reasons necessitating adverse action. For facility of reference, the relevant contents of the notices, identical in nature, are reproduced hereunder:

ین ۰۲۲۲ اندراآرڈ ینس۸۱ ‖ونسٹااہظرووجہزریدہعف

امسمۃ/ ا۔ ہی ہک لنشین ڈاٹی ب اڈنیر رٹسجنشی ااھتریٹ ےک ملع ںیم آای ےہ ہک آپ یمسم اسنک04311-0511661-2 وشرہانثہ یلع اخن انشیتخ اکرڈ ربمن/انعتی اہلل ودل علض امالڈنک ےن وج انشیتخ اکرڈ احلص ایک ےہ آپ اس وک، ٹب خیلہ لیصحت ٹب خیلہ،محله کد ووجاہتیکانبءرپرےنھکےکالہںیہنںیہ۔/ دنمرہجذلیوہج Pages 23 to 26 of the writ petition.

Tajamul/CS | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

(افل) ہیہککلمےکسیکیوریٹاداروںیکاجبنےسیکیئگاقیقحتتےکباط قآیک اور/رہشتیوکشمکاپیئیئگےہ ای

اور/ انیاےآراےاکرڈےہای/اسیاےیس/(ب) آپےکاپسیپاوآر ئ (ج) آپ دی ےئگ وک فئ ےک باط ق موی انشیتخ اکرڈ رےنھک اک الہ ااجمد ںیہن ںیہ اور/ای

آپےناکیےسزایدہمویانشیتخاکرڈاحلصرکرےھکںیہ۔ )(د ےکتحتاایتخر احلصےہہکوہآپاکمویانشیتخ۸۱ )۸(اجمزااھتریٹوکدریوہعق ۔۰ حن ی اندرا۸۱ اک رڈ ڈ یلی طبض ای وسنمخ رک دے ۔ ذہلا وموجدہ ااہظر ووجہ ونسٹ زریدفعه ش یفیکن آرڈسننیآپوکعلطمایک اجاتےہہک آپاےنپ امتمداتسوزیات ےکاسھتاندرا وری ن ویم ےک ادنر احرض وہں وصبرت درگی۸۱ وبرڈ ہتپ زولن آسف المڈنک ںیم ونسٹ ووصیل ےک ― آپےکالخفرطکیہفاکرروایئلمعںیمالیئاجےئیگ۔

6.The contents of the notices issued to the

petitioners, as reproduced above, reveal that no specific or certain grounds have been stated with particularity to justify the digital impounding of their CNICs. The notices merely reproduce standard, broad allegations without identifying the precise defect, discrepancy or adverse material attributable to each petitioner. Such a mechanical reproduction of stereo- typed text does not fulfill the statutory obligation placed upon the respondents. Before taking any adverse action under Section 18 of the NADRA Ordinance, the authority was legally bound to disclose the exact reasons and to particularize the grounds so that the persons concerned could meaningfully respond and defend themselves. A similar lack of specificity is evident in the comments filed by respondents/NADRA, wherein no concrete basis or factual detail has been furnished to justify the drastic step of Tajamul/CS | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

impounding the CNICs. This vague and guarded stance stands in contrast with the settled principles laid down by the superior courts regarding the requirement of fairness, transparency and due process whenever a public authority initiates coercive action. The Supreme Court in Dr. Arsalan Iftikhar v. Malik Riaz Hussain and others11 had the occasion to examine a comparable situation where the authority in NAB cases had issued ambiguous and non-specific notices.

The apex Court disapproved such conduct and reiterated that an individual must be clearly informed of the precise allegations and the nexus of the required information with the inquiry at hand. The relevant portion from the judgment, which summarizes this principle, reads as follows:

―13. The clear and unambiguous pronouncements given in the case titled Ghulam Hussain Baloch and another v. Chairman, National Accountability Bureau Islamabad and 2 others (PLD 2007 Karachi 469) were violated by NAB in its two letters. In the cited precedent NAB has been given express guidelines as to its responsibilities while summoning or requiring the attendance of persons/witnesses in an inquiry. As per ratio of the case, before summoning a person to attend, NAB was duty bound to identify and particularize the information sought from any witness etc. and to state the nexus between such information and the subject of the inquiry being conducted by NAB. It was observed by the Court that "while calling [for] the information from any person, the person must be informed of the fact, point, allegation, offence, name of accused, specified matter, if any, concerning the matters ... in the notice so that the person can furnish such information". None of this was done by NAB. The Sindh High Court also laid down the principle that if the specified information can be otherwise furnished, then the person "should not normally be called to appear in person". The case of Ghulam Hussain Baloch supra gave

PLD 2012 SC 903

Tajamul/CS | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

further clarity to NAB by declaring that "normally a person should not be asked to appear ... for the simple reason that when the document or thing is received by the investigating officer [it] will serve the purpose and if for any reason attendance of such person is [still] required then he can be called by assigning valid and cogent reasons which will appear in the case diary". None of these guidelines, reiterated in a number of subsequent cases [e.g. Muhammad Younus Arain v. Chairman, NAB and another (2008 MLD 1431), Niaz A. Baloch v. Chairman, NAB and 4 others (2008 MLD 1451) and Raja Muhammad Zarat Khan and another v. Federation of Pakistan through Secretary, Ministry of Cabinet Division and 2 others (PLD 2007 Karachi 597)] was followed by NAB. Instead an imperious and pernicious "thana" mentality is apparent from the letter, which NAB persisted with obdurately, as discussed below. This raises serious questions, prima facie, as to the fairness, competence and professionalism of the members of the JIT.‖

7.No doubt, the authorities of NADRA are well within their powers to re-inquire a matter pertaining to doubtful status of a citizen, however, the action and re- investigation must be based on clear and unambiguous grounds/allegations. The principle emerging from the cited judgment is that no public authority should proceed against a citizen on the basis of vague, generalized or un- particularized allegations, nor may it withhold the specific grounds forming the basis of an adverse action. Applying this settled standard to the present case, it is manifest that the respondents have acted in derogation of the law. The impugned notices under Section 18 of the NADRA Ordinance contain nothing beyond the mechanical and pre- typed text, lacking any specific allegation or factual nexus to justify the digital impounding of the petitioners’ CNICs. Tajamul/CS | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Such an unclear and non-specific approach mirrors the very defect censured by the Supreme Court in Dr. Arsalan Iftikhar case supra, and reflects clear non-application of mind, violation of due process and failure to meet the minimum standards of fairness mandated by law. The impugned notices, therefore, cannot be sustained on the touchstone of the principles laid down by the apex Court.

8.Another striking feature of the case is that respondents/NADRA, who were arrayed as defendants No.1 to 3 in the civil suit instituted by respondent No.9 against petitioner No.1, had themselves taken a categorical stance affirming the petitioners’ identity and family lineage. Their written statement12 reveals that, in paragraph 4 of the preliminary objections, they had explicitly asserted that CNIC No. 15402-614049-3 had been issued to petitioner No.1 (defendant No.4 in the suit) on the strength of his MNIC No. 117-77-312005, both reflecting identical parental particulars. They further acknowledged that petitioner No.1 had produced the CNIC of his sister Mst. Shumaila, whose relationship as a real sister was admitted by respondent No.9/plaintiff in his plaint. It is equally significant that Mst.

Shumaila was later impleaded as a defendant on her own application and, through her written statement13, unequivocally affirmed that petitioner No.1 was her real brother. The record also shows that respondents/NADRA Page 58 of the writ petition

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had also filed an application under Order VII Rule 11 CPC14 seeking rejection of the plaint. In paragraph 6 thereof, they contended that a suit under Section 42 of the Specific Relief Act, 1877, wherein respondent No.9 sought a negative declaration that petitioner No.1 was not his real brother and was an intruder in the family, was legally untenable. They emphasized that a negative declaration concerning the legal character of another person could not be sought under the said provision. Reliance was placed on Article 128 of the Qanun-e-Shahadat Order, 1984, which treats birth during marriage as conclusive proof of legitimacy. In light of this provision, the stance of respondents/NADRA was that only the putative father, and that too within the prescribed period, could question the paternity of a child. NADRA had thus maintained that the suit was barred by law, as respondent No.9’s father had never disputed the paternity of petitioner No.1. This unambiguous defence adopted by respondents/ NADRA in the judicial proceedings establishes that they had themselves accepted petitioner No.1 as the son of Abdur Rahman. Once such an admission has been made before a judicial forum, there remains no lawful basis to subsequently cast doubt upon the petitioners’ citizenship or to impound their CNICs. The written statement and the application under Order VII Rule 11 CPC form part of judicial proceedings, to which the presumption of truth is attached Page 62 of the writ petition Tajamul/CS | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

under Article 129(e) of the Qanun-e-Shahadat Order, 1984.

Consequently, NADRA is estopped from taking a contradictory stance at this stage. They cannot now be permitted to retract from their earlier position, for the doctrine of approbate and reprobate squarely applies, prohibiting a litigant from blowing hot and cold in the same breath. Guidance in this regard is sought the judgment in Muhammad Raqeeb v. Government of Khyber Pakhtunkhwa through Chief Secretary and others 15, wherein the apex Court reiterated the governing principle in the following terms:

―11. At this juncture, Article 114 of the Qanun-e- Shahadat Order, 1984 is also quite significant which defines the doctrine of estoppel under which, when a person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing. In fact this principle is founded on equity and justness with a straightforward objective to prevent fraud and ensure justice. Although it is described as a rule of evidence, it may have the effect of constituting a substantive right as again the person estopped being well- defined legal precept that impedes someone from averring a truth that is defined as contradictory to an already established truth. The appellant himself approached the High Court for the relief of regularization of his project job. In the case in hand, besides the doctrine of estoppel, the doctrine of election and doctrine of qui approbat non reprobat (one who approbates cannot reprobate) are also applicable.‖

9.In light of the foregoing analysis, it is evident that the petitioners have not been treated in a manner

2023 SCMR 992

Tajamul/CS | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

consistent with law or the requirements of procedural fairness. The circumstances thus warrant the exercise of this Court’s constitutional jurisdiction under Article 199 of the Constitution. The impugned notices issued to petitioners under Section 18 of the NADRA Ordinance, 2000 are found to be issued in violation of law so as to unnecessarily drag and harass the petitioners repeatedly. They are thus set aside.

Consequently, the writ petition is accepted. The respondents are directed to restore the CNICs of the petitioners forthwith and to ensure their renewal, if any of them has expired.

Announced Dt:26.11.2025 Sd/-

JUDGE

Sd/-

JUDGE

Tajamul/CS | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah