Mst. Naureen Masood & others Vs Government of Pakistan & others

s Judgment Sheet H.T.HE,_pJpSFAyyARHGH-SI-O.U-Rf .

P.-ESEA\YA&

IADICAL DEPARTMENN

JIIDGMENT

Writ Petition N o,2469 -P D022. Date of hearing 01.12.2023.

Mst. Naureen Masood etc Versus Government of Pakistan through Secretary, Ministry of Interior, Islamabad etc.

Petitioner (s) by: IVI/s Saifullah Muhib Kakakhel, Nauman Muhib Kakakhel & Mehwish Muhib Kakakhel Advocates.

Respondent(s) by: Mr. Sana Ullah DAG alongwith Abdul Rauf, Deputy Director, Legal, Shahid Imran Gigyani & Muhammad MubarakJan Assistant Directors (Legal).

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WIOAR AHMAD. J. This judgment is directed to dispose of Writ Petition No.2469-P/2022 alongwith WP No. 3195-P12023, WP No. 3197- P12023, WP No. 3198-P12023, WP No.3271- P12023, WP No.3309-P/2023, WP No.3383- P12023, WP No.3384-P/2023, WP No.3385- PlZ023, WP No.3965-P/2023, WP No.3966- P/2023, WP No.3999-PDA23, WP No.4797- P12023, WP l\o.5426-P/2023, WP No.5452-

P12023, WP No.5488-P/2023, WP No.5489- P12023, No.55t4-P12023, No.4651- P/2023, No.4823-P12023, No.1390- P12023, No.2026-P/2023, No.2940- P/2023, No.30l0-P/2023, No.3237- P/2023, No.3483-P/2023, No.3716- P12023, No.3782-P12023, No.3949- P12023, No.4064-P12023, No.4202- P/2023, No.4327-P12023, No.4412- P/2023, No.44l3-P12023, No.4434- P12023, No.4489-P12023, No.4552- P/2023, No.4653-P/2023, No.465B- P12023, No.4666-P12023, No.4667- P12023, No.4728-P/2023, No.4769- P/2023, No.4770-P/2023, No.4777- P12023, No.4780-P/2023, No.4790- P/2023, No.479l-P12023, No.4794- P/2023, No.4799-P12023, No.480l- P/2023, No.4828-P/2023, No.4838- P12023, No.4860-P/2023, No.4875- P/2023, No.4887-P/2023, No.4888- P/2023, No.4889-P/2023, No.4896- P12023, No.4910-P/2023, No.4918-

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P12023, WP No.4924-P12023, WP No.4925- P12023, No.4926-P12023, No.4927- P/2023, No.4932-P/2023, No.4935- P/2023, No.4937-P12023, No.4944- P12023, No.4947-P/2023, No.4953- P12023, No.496l-P12023, No.4962- P12023, No.4963-P12023, No.4964- P/2023, No.4965-P12023, No.4966- P/2023, No.4968-P/2023, No.4969- P/2023, No.4970-P12023, No.4975- P/2023, No.4976-P12023, No.4979- P/2023, No.4980-P/2023, No.4996- P/2023, No.50l9-P/2023, No.5033- P/2023, No.5384-P/2023, No.5038- P/2023, No.5047-P/2023, No.5049- P/2023, No.5053-P/2023, No.5062- P/2023, No.5063-P/2023, No.5064- P/2023, No.5066-P/2023, No.5067- P12023, No.5068-P/2023, No.5100- P/2023, No.5l04-P/2023, No.5l05- P12023, No.5106-P/2023, No.5123- P/2023, No.5l24-P12023, No.5125- P/2023, No.5l27-P12023, No.5128-

P/2023, WP No.5l29-P12023, WP No.5186- P12023, WP No.5l90-P/2023, WP No.5197- P12023, WP No.5206-P/2023, WP No.5207- P/2023, WP No.5208-P/2023, WP No.5212- P/2023, WP No.5229-P12023, WP No.5269- P/2023 and WP No.5273-P/2023

2 Grievances of petitioners are mostly similar in nature therefore same are aimed to be disposed of through this common judgment. In all these cases one of the spouse has been Pakistani citizen and on the basis thereof the other spouse has been seeking issuance of Pakistan Origin Card (POC). In some of the cases prayer for grant of Pakistani nationality on the basis of marriage has also been made besides making prayer for issuance of Pakistan Original Card. Registration of their marriages and issuance of proper Marriage Registration Certificate as well as registration of offspring have also been prayed in some of the connected petitions.

3 Learned counsel for petitioners have mainly contended that one of the spouse being

Pakistan citizen, the other was entitled to grant of Pakistan Origin Card under Section I I of the National Database and Registration Authority Ordinance 2000 (hereinafter referred to as NADRA Ordinance). Learned counsel for petitioners also relied on the National Database and Registration Authority (Pakistan Original Card) Rules 2002 (hereinafter referred to as POC Rules) and contended that the eligibility criteria provided in Rule 4 was to the effect that foreigner should have malried to a Pakistani citizen and such marriage should be intact on the date of issuance of POC and that such foreigner should not be a citizen of India or a State not recognized by Pakistan or an enemy country.

Leamed counsel for petitioners contended that other stringent conditions that were put in place by NADRA, were not provided in the rules and that conditions like requiring applicant to apply alongwith a Passport of foreign country having valid visa, were irrational and illogical in the circumstances that Afghan citizens have been living in this country for more than f'our decades

and they have contracted marriages with Pakistani citizens and that out of their wedlocks, children had also been born. Leamed counsel fuither contended that these persons while trying to get passport from Afghanistan, faced much difliculties for the reasons that they have been living in Pakistan for so long a tirne (and bringing up their families here due to which) that they have practically merged in the society of Pakistan and have severed their ties with Afghanistan. All the learned counsel for petitioners were of the view that plaoing of such stringent conditions on Afghan citizens (in particular), were not logical, reasonable and not allowed under the POC Rules.

4 I-earned Deputy Attorney General

contended in rebuttal that the first refugee influx from Afghanistan had taken place in the year 1979; second in the year 1997 and the third in the year 2001, firstly due to Soviet aggression while second and third refugee influxes were due to intemal wars among various Afghan factions.

Leamed DAG went on submitting that first

refugee census was held in the year 2005 and thereafter proof of Registration Cards (hereinafter referred to as FOR Card) had been issued by NADRA to the registered Afghan refugees. The refugee census and issuance of POR Cards were rnade possible because of collaboration in the shape of a tripartite agreement among UNHCR, Cornmissioner Afghan Refugees and NADRA. He also contended that in the year 2018 further registration of leftover Afghan refugees were conducted in collaboration with UNHCR and Commissioner Afghan Refugees where-under also a large number of Afghan refirgees had been registered. After narrating this history, learnecl DAG contended that unless a person holds a valid passport of Afghanistan it could not be ascertained that said person was Afghan citizen and therefore, his application could not be entertained by NADRA.

5 Director legal NADRA submitted copy of rnanual application form (which was allowed to be placed on record of instant

petition) and contended that all persons desirous of obtaining POC may apply on such manual form. When asked, the Director legal explained that Columns No.20 and 2L requiring details of passport of foreign countqr, were mandatory fields and unless sarne were filled validly, his request could not be entertained. ln other words if a person is not in possession of a valid passport of foreign country having valid visa of Pakistan, his request cannot be entertained by NADRA in accordance with its policy and instructions. FIe also submitted copy of a letter of Ministry of Interior dated 2.4.2013 and contended that all those persons who were desirous of obtaining FOC and belonging to India or Afghanistan had been placed in list 'B' countries and are supposed to be referred to security agencies for the purpose of security clearance. Learned Director added that after receipt ofreport of security clearance a decision in this respect is to be made by NADRA authorities.

6 We have heard arguments of leamed counsel for the parties and perused the record.

7 Perusal of record reveals that a nurnber ofprayers have been rnade in connected writ petitions but first we would like to discuss issuance of Pakistan Origin Cards (POC). Section 11 of the NADRA Ordinance was providing for issuance of POC in the following words:

n417.

Pakistan Origin Cards. Tke aathority shall issae or renew ar caase to be issued or renewed in the prescribed ftianner and on prescribed crtteria, terrns and conditions, cards to sach prescrtbed class offoreigners and suck prescribed class of citizens with dual nationalifit who have got themselves registered in tke prescribed manner, in sack form snd with sach periods of validity thereof upon paytttent af swch fee in swch form and ntilnner es ,n{ty be prescribed, to be called Fakistun Originul Curds and receive applications for registratton therefor in tke prescribedform. " I Governrnent of Pakistan has also framed rules under Section 44 of the NADRA Ordinance which are called as the National Database and Registration Authority (Pakistan origin Card) Rules 2002 (hereinafter referred to as POC Rules). For the purpose of instant case where POC are being claimed by foreign

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nationals on the basis of marriage with Pakistani oitizens, the eligibility provided in Rule 4 is relevant. For sake ofreference Parts ofsub rule 1 & rule 5 of Rule 4 of POC Rules are reproduced hereunder for ready referenee:- "4. Eligible foreigner of Pakistan origin:- (1)A person shall be an eltgihle foreigner of Pakistan origtru if,:

(a)he is aforeigner; and (b)he had been a citizen of Pakistan at any tirne during his life.

(s)

4.Elisible forei er of Pakistan oriein.- (5) A foreigner wko is married to a citizen of Pakistan shall, till the time he or ske remains married to suck citizen, also be an eligible foreigner af Palcistan origin:

Provided that in case tke citizen of Pakistan to wkorn such foreigner is married dies durtng the sabsistence of their marriage, such foreigner shall continue to be an eligihle foreigner of Pakistan origin till the time ke or she conlracts a second marriage:

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Provided furtker that such foreigner married to a citizen af Pakistan is-

(i)not s citizen or natianal of India;

(ii)not a citizen or national of a state or country not recognized by Fakistan; and (tii) not s citizen of any enemy eoantry:

Provided also that the Federal Government may, in special extraordinary circwmstances and upon an application made in tkis behalf by the eoncerned persnn, allow a foreigner maruied to s citizen of Pakistan not otkerwtse eligible under tke second proviso, to be registeredfor an issued a card as an eligible foreigner of Pakistan origin and such person shall, apon issuance of the card and till the expiry or early termination of validity thereof for a reason other than swch personts ineligibtlity cured under this proviso, be trested as an eligible foreigner of Pakistan origin for all purposes under these rwles."

I For the purpose of claiming POC Cards on the ground of entering into marriage of a Pakistani to a foreigner, the following essential conditions may be deducted from Rule 4 of the POC Rules;

a. The applicant should be a foreigner;

b. He/she should have validly married to a Pakistani citizen and the rnarriage should be

intact at the time of applying as well as issuance of FOC Card;

He is a citizen of a country other than India, a state not recognizedby Pakistan as well as not acitizenof an enemy country.

The proviso has however provided that Federal Govemment would have the power to relax the condition of eligibility and allow POC to such a foreigner who is not otherwise eligible under the Rules. An eligible family member of an eligible foreigner of Pakistan origin, any of the spouse, real parents or grandparents; real children or grandchildren of the eligible foreigner of Pakistan origin rnay also apply for grant of POC under Rule 5 of FOC Rules. Rule 5 was providing that a person is only be able to hold and use POC so issued to him so long so he continues to fulfill the eligibility criteria applicable to hirn and the moment he looses his eligibility or same expires it would not remain valid. Rule 7 of POC Rules aims at providing a form for making application for grant of POC, which has been prescribed to be specified by the

Federal Govemment from time to time" Same rule was also providing power of the authority i.e, NADRA to issue instructions for the docurnents, which should accornpany the application. Manner of receipt of the application has been provided in Rule 8. Rule 9 is also relevant for our present discussion and same is reproduced hereunder for ready reference:

"9, Manner of, registration, inqutry and evidence:- (tr) The ,A.utkority shall estublish and maintuin 0r c&ase to be establtsked amd maintatned a registratton and database systemfor the purposes of these rules in the rnilnner deemed ftt by the ,Awthority alongwith an salofiaated computerized system for recording and verijication of exit and entry af holders of card at such ports or places in Paktstan as ilre deermed necessary for the purpose by the Authority.

(2)Belore registering an upplicant under these rules, the Authortty may make any inquiry or reqwire any evidence, docuwentary or otkerwise, from an applicant as it may deem .frt in rcspect of the eligibility of an applicant or such other miltters as are deemed necessary for tke purposes of,these tules.

(3)Withaut prejadice to tke generaliE of the foregoing power of making inquiry or reqwiring evidence under sub rwle (1) tke

Aathority may require evidence in respect of thefollowing, namely:-

(a)In the case of an eligible foreigner of Pakistan origtn, his foreign nationality or ctttzenshtp andfuffillment of otker criteris and requirements as laid down in, and applicable to kim under, these rales; and

(b)in tke case of an eligihle family member, his relationship with the concerned eligible foreigner of Fakistan origin; proof of eltgibility of the concerned eltgihle foreigner of Pakistan origin tf he is not htmself applying for registratton wnder these rales; and fa$illment of other criteris and reqairements as laid down in, and applicable to him under these rules.

(,{) Upon being satkfied as to an applicant being eligihle for registration for and issuance of a card under these rales, the Authority shall register the appltcant in the registration and database system established purswant to sub-rule (1)."

Sirnilarly Rule 13 is also relevant and same is also reproduced hereunder for ready reference:

13.Power to refuse registration or issuance of card:- Notwithstanding anything to the contrary contained in these rales, any person who is otherwise eligible for registration and issuance of a eard, may be refused registration, or isswance of a card, if in the opinion of tke Autharity, the registration, or issuance ofa card to such person is

prejudicial to the sovereignty, integrity, securiE, or defence of Pakistan or any part thereof, or to friendly relations of Pakistan wtth foreign states or coantries, or to the maintenance of law d order in Pakistan or any part thereof, or to the public interest."

10.Rules 9 and tr3 are reproduced in the context of present controversy which revolved around conditions put in plaoe by respondents in their SOPs particularly the condition requiring possession ofvalid passport ofa foreign country having valid visa at the time of applying for issuance of POC as well as security clearance rnandated through instruction letter dated 2.4.2013 of Ministry of Interior referred above In this respect one of learned counsel for petitioners also relied on Para 34 of the judgment of Hon'ble Supreme Court of Pakistan rendered in case of "Muhammad [brahim Shaikh Versus Government of Fakistan through Secretary, Ministry of Defence and othens" reported as FI-,D 2019 SC 133 and contended that when an umeasonable and unauthorized condition had been found by the Hon'ble

Supreme Court of Pakistan, available in the rules (requiring that marriage should have lasted with 5 years) same had been struck of and declared ultra-vires. In same vein he requested that unreasonable condition of producing a valid visa and security clearance should be struck down.

We have considered this aspect of the matter as same happened to be the main bone of contention in all these cases. In norrnal circumstances, requiring a valid passport having valid visa of Pakistan is a condition which appears to be not only reasonable but quite easy for a person to apply for Pakistan Origin Cad but in case in hand where most of the petitioners have married Afghan citizens decades ago and they have also been living as families in Pakistan, having hildren out of the wedlock, this condition appea$ to be a harsh one. Compelling husband of a Pakistan citizen and father of other Pakistani citizen (being his sons) to obtain a passport from Afghanistan and get visa so as to continue family life with his family and apply for FOC, exhibit and demonstrate harshness in the standing

instructions of respondents. While discerning harshness in the decision, history of'exodus from Afghanistan to Fakistan and history of people living in Fakistan alongwith their spouses, should not be lost sight of. There may be people who have severed their ties with Afghanistan having families in Pakistan and living with them for the last four decades.

11.The condition of requiring valid Passport and Visa of Pakistan cannot be found as a mandatory requirement under POC Rules or anyr,vhere else but at the same time the lawful authority of NADRA to require proof trom a foreigner regarding the country of his nationality, cannot be denied as well. Such power of the authority i.e, NADRA has very much been prescribed in Rule 9 reproduced above as well as in Rules 7, 8 and 13 of the POC Rules. As stated earlier requirement of possessing a Passport of foreign country alongwith valid visa ofPakistan is not harsh in rest of,cases but so far as Afghan refugees are concemed, it was found harsher for the reason oftheir extraordinary long

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stay in Pakistan, in most of the cases. The requirement of valid Passport and visa is also not mandatory under POC Rules. Solution of the problem lies in considering the cases of applicants on case to case basis. The authority is also having discretion to consider cases of the applicants who possess the basic eligibility criteria as enshrined in Rule 4 of POC Rules. For satisffing itself, further record regarding the fact whether the applicant is actually a foreigner having Afghan nationality, the authority may consider the passport issued by said country but at the same time, the authority may also consider other proofs regarding the fact that the person was belonging to Afghanistan and was having said nationality (like in most of these cases). It is not that passport alone can be indicative of the fact that the person was belonging to a particular country. There are people who have already been registered by NADRA in their own database having proofs of registration cards. There are also people who have been registered by NADRA themselves as Afghan citizen having

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ACC Cards. There can also be other proofs that the person was belonging to Afghanistan originally and he had married a pakistani wornan or a woman of Afghanistan had married Fakistani man. While considering this proof of nationality, the longevity of stay rnay also be considered besides, the number of kids and their ages which have been bom out of the wedlock. This can simply be done if column 20 and 21 in the manual application form for issuance of Pakistan Origin Card are converted from mandatory fields to optional. Instead NADRA rnay require other documents in line with above discussion made and after satisfying itself may make a decision regarding grant or refusal of Fakistan Origin Card. In case of refusal such decision must contain reasons which should be conveyed immediately to the applicant and his family.

12.This way not only an eligible

foreigner would be dealt fairly but a citizen of Pakistan who happened to be a spouse of such a foreigner would also be saved from much hardship. It is equally a right of the spouse who

happens to be Pakistani citizen to save his or her family frorn disintegration. He or she had a right to be dealt with in accordance with law under Article 4 of the Constitution of Islarnic R.epublic of Fakistan 1973. Besides Article 35 of Constitution of Islamio Republic of Pakistan 19V3, was providing a principle for frarning policies which is reproduced hereunder for ready reference:

Pr ote cti o n af famtly, etc.

"r5. The State shall protect the rmarriagen the family, tke motker and the ckild.

13.Protection of family has not only been considered important by framers of Constitution while enoapsulating it in the chapter principles of policy but sarne is also basic unit of a society whereupon the building of Islamic society is built. In so many verses of Holy Quran and Ahadees of the Holy Prophet (PBU[I) great stress have been laid on protection of institution of marriage, farnily and integration of farnilies.

Every husband has a right to the company of his wife and every wife has a right to the company of

her husband and so is the case with children. All the family members have duties towards others and corresponding rights and in no system of adnrinistration of justice it can be denied that a family may be allowed to be segregated just because one spouse happens to be a foreign national. Here we may also quote relevant articles of Universal Declaration of Human Rights as well as International Convention on Civil and Political Rights, 1966 (ICCPR.), which are reproduced hereunder for ready reference:- L "Universal Declaration of Humun Riehts:

Article L6.

Men and women of full age, witkout dny limitation due to trace, nationality or rcligion, have the right to marry and to fownd a family. They are entitled to eqwal rights ss to marriage, dwrtng marriage snd at its dissolution.

il. International Convention on Civil and Political Rish ts.1966 4CCPru.

Article 23.

Tke family is the nataral and fundamental growp wnit af society and is entitled to protection by society and the State.

4.States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and respansibilities of spoases as to marriage, during morriage and at its dissolution. In the cflse of dissolution, provision skall be nnade for the necessary protection of any ckildren."

Hon'ble Sindh High Court while giving its judgment ln case of "Messrs Najib Zarab Limited Versus Government of Pakistarn through the Secretary, Mimistry of Finance, lslamabad and 4 others" reported as PLD 1993 Karachi 93 has inter alia held that Rules of International Law should be accommodated in the Municipal Law unless such rules run in conflict with the municipal law.

14.It was after realizing this basic human need and irnportant human right that legislature has provided a right for foreigners to the issue and grant of Pakistan Origin Card under Section 11 of the NADRA Ordinance and subsequently government of Pakistan has also made POC rules where also care has been taken not to impose stringent, harsh and unreasonable

oonditions. The instruction issued by respondents should also have been issued while keeping in view the purpose and object, with which the legislature has provided rights of foreigner for grant of Pakistan origin Card and government of Pakistan had also enacted the Pakistan Origin Card Rules. While seeking guidance therefrom, this Court is also of the opinion that the condition of requiring valid passport with valid visa of foreign country fronn foreigners who happens to have been living in Pakistan for decades alongwith his family members, raising his family mernbers and integrating in this society, is found to be harsh, arbitrary, illogical and unreasonable Same may no doubt be asked for and received but it should not be made a mandatory condition so as to declare non holder of such a passport with visa to be ineligible for applying for Pakistan Origin Card. No such eligibility condition has been available under the Rules and NADRA on the dent of its own instructions would not be able to place such a mandatory stringent condition. Reliance may here be plaoed

on the observations of Hon'ble Supreme Court of, Pakistan rendered in case of .,Muhammad lbrahirn Shaikh Yersus Government of Pakistan through Secretary, Ministry of Defence and others" reported as FLD 2019 SC 133, where the Hon'ble Supreme court of Pakistan had declared such an unauthorized condition null and void;

34.While constdertng the POC Rales with respect to spoases of Pakistani cttizens/ fareigners of Fakistani origin, an ancillary tnalter cume to tkis Cowrtb attention. According to Rule 4(5) of the FOC Rules as originally prornulgated, foreign spoases were allowed to be isswed POCs. The said Rwle read ss under:- '14. Eligihle foreigner af Fakistan origin.- (5) A fareigner wko is murried to a citizen of Pakistan sholl, till the time he or she rermains married to such citizen, also be an eligible foreigner of Pakistan origin : Provided that in case the citizen af Pskistan to whom swch foreigner is married dies during the subststence af their matiage, suck foreigner shall continwe to be an eligihle foreigner of Fakistan origin till the tirne he or she contracts a second mawiage:

Provided furtker that such foreigner married to a citizen of Pakistan is-

(i)not a citizen or national of Xndia;

(it)not a citizen or national af a state or countty not recognized by Pakistan; and

(iil not a citizen of any enetny country:

Provided also that the Federal Government tmay, tn special extraordinary circumstances and upon an application made in this behalf by the concerned persnn, allow a foreigner married to a citizen of Pakistan not otherwise eligtble under the second proviso, to he registeredfor an issued a card as an eligible foreigner of Pakistan origin and such person skall, apon issuance of the curd and till the expiry or early terminatian of validttjt tkereoffor a reilson other than sueh person's ineligibility cured under tkis proviso, be treated as an eligihle foreigner of Pakistan origin for all purposes under these rwles"" However, the said rule was amended vide notijicatian No.,l/2/2012- IYADRA dated 30.L2.2015 according to which issuance of POCs toforeign spouses of Pakistani citizens w&s discontinued. Tkereafter, considering tke immense difftculties faced by foreign spouses of Fakistani citizens, the Ministry of Interior f,orwarded a sumtnary for the Cabinet dated 20.02"2018 recommending therein (in paragrapk I{o.5) withdrawal of the aforementioned notiftcation along with restoration of the cowesponding rule(s). The Cabinet vide its decision considered the aforesaid summary and approved the proposal contained in paragraph No.S thereof, resultantly the said natiftcation was withdrawn, and tke rales were restored to their previoas position. Despite thts, tke Ministry of trnterior vide letter No.4/2/2012- N.{DRA dated 08.03,2018 introduced the

eligibili$ condition of five years of in violation of the approval of the Federal Government (Cabinet) wkich had sttpulated tkat the rales had been restored to the previows position as mentioned above. Stnce the power to make rwles lies only with the Federal Governrnent as per Section 44 of the NADRA Ordinance, the introductian of tke condition of ftve years marriage by the Ministry of Interior is ultra vires, and therefore hereby set aside."

This Court while giving its earlier judgrnent rendered in Writ Fetition No.1058-F/2020, has also borrowed a principle for striking down administrative decisions on the ground of, irrationality from the case of, "Wednesbury Corporation" and held as follows in respect of considering ground of irrationality for striking down decisions of administrative bodies;

utrrrational and illogical decisions of a District Authority would no dowbt furnish a grownd for interference of this Court in exerctse of its constitutional jurisd.ictton. In tke case of Associated Provincial Picture Houses Ltd, v. Wednesburv Corporatton K1948) I KB 2231, the principle of irrationality or inkerent unreasonableness had first been enwnciated in tsritisk iurtsdiction. Lord Green M"R kad ohsewed in kis judgment given in said case tkat it might be possible ta say that although the local authority had kept

within the four corners of the tnatter which they ought to consider, they had nevertheless cotne to d conclusion so unreasonable thst no reasonable autkori$t could ever kave come to it. It wus farther observed that in such a case the Court coald interfere in tke udmtnistrstive decision. In the subsequent case of G.C.H.O" K1985) AC 375J, I-ord Diplock had ohserved;

"By irrationality' I mean what can now be succinctly referred ta as 'Wednesbury unreasonablenessn ... It applies to a deckion whick is sa oulrageoas in its deftance of logic or of accepted tmorsl standards tkat no sensible person who had applied his mind lo the question to be decided coald have awived at. Whether a decision falls within this category is a question thal judges by their training and experience should be well eqwipped to answer, or else there would be something badly il'rong with owr judiciul syslem."

The test of complete wnreasonoble or perverse decision ruaking laid down in tke Wednesbury Corporation case was further developed in the subsequent judgments, In tke case of Lonrko pk v. Secretarv of State for Trade and Indastn (1989 I Wtr R 525), the decision of Secretary af State to withhold publication of a report by inspectors appotnted by kim to investigate alleged fraud in eonnection with a take-over bid and not a merger to the Monopolies and Mergers Commission was f,ound unreasonable and reversed. Similarly, in the case af Wheeler v.

Leicester Citv Council K1985) AC 1054J, a Council resolution to ban Leicester Rwgby Football Cluh from its property for its failwre and pwtting pressure upon three oftts playersfor preventing thetn to participate in a tour of South ,4frica, had been held to he irrutional and unreusonable in t h e llte n d e s b ury s ens e.

6.In our jurisdictton also similar principles of judicial review on the ground af irrationality or unreasonableness kad been adopted. In the case of The Montpomerv Flour ,4nd General Mills Ltd,, Montgotnery vs. the Dbector Food Purchases West Pakistan and another reporled as PLD 1957 (W.P.) Lahore 914, an order of departrnental aathority, redacing swgar qaota under tke Sugar and Sagar Products Control Order 1948, 0n the ground of ansettled money clatm, had been set aside. Plea af the sdtninistrative authority that isswe af a qaotd h,as a matter af desertion which could be withheld or suspended at any time, was not accepted.

15.We have also inter alia considered one of submissions of learned Deputy Attorney General that a person residing in Fakistan without valid visa is an illegal immigrant, who is liable to immediate deportation under the Foreigners Act. In this respect it is important to note that govemment of Pakistan had already

accorded status of refugees to earlier Afghan migrants and they have been registered in the year 2405 (as well as subsequently in 2018) and proof of registration Cards as well as Afghan Citizenship Cards have also been issued to them by NADRA under the authority of Federal Governrnent. For the purpose, relevant provisions ofForeigners Act L946 have also been arnended by legislature and in this respect Section 14-D of the Foreigners Act has been substituted by way of Act No.XX of 2016. The newly substituted Section 14-D is also reproduced hereunder for ready reference;

14-D. Registration of illegat immigrants ...(1) any foreigner who, before cowrfttencement of tkis Act, has na permission to stay in Pakistan shall for regtstration be required to make application on tke format and in the tnanner as m&y be prescribed and shall he registered on tkat applteation hy the National Datqbase and Registration Authority estahlished under the National Database and Registration Autkority Ordinance 2000 (VIII of 2000).

(2)The Federal Government may permit a foreigner, registered under sub-section (1) , to work in Fakistan at such place, for sach

period and on payment of sach fee as may be prescribed."

The effect of substitution of section 14-D was that legal cover had been extended to registration of earlier refugees on one hand while validity had also been extended to stay of illegal imrnigrants who had entered Pakistan before commencernent of the amendment act on 29.A4.2016. There thus remains no doubt that the imrnigrants entering Pakistan before 29.04.2016 were having their stay legalized in Pakistan on the dent of abovementioned amendment. It cannot therefore be argued that all the immigrants that had entered Fakistan before 29.04.2016 were illegally staying in Pakistan and liable to outright deportation. However, discretion of Federal govemment to pennit registered foreigners to work in Pakistan at specific places for specific periods had however been reserved.

16.So far as requirement of securitY clearance is concemed, there is nothing wrong with it. Such a security clearance is not only need of the day but power of the authority to call for

such a security is also available in Rule 13 of POC Rules, beside Rule 9 and Rule 7 thereof.

lX. So far as issuance of Forrn Bai to children are concemed, leamed Director Legal NADR.A 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. Leamed counsel for petitioners were however cornplaining 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 again 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 Fakistani 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 complianoe of this judgment.

18.So fff as prayer of petitioners regarding grant of nationality is concerned, for said purpose they would be at liberty to apply to concemed forum i.e, Governrnent of Pakistan through Ministry of Interior, on fhe 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 rnandatory 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 satisfuing 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

v

petitions shall be considered by N,A.DRA and appropriate orders in all these cases shall be made and conveyed to the concerned applicants after affording thern opportunity of hearings and making up deficiencies if any.

JUDGE

JU E

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