Mst. Sharafat Bibi Vs Ministry of Interior, Pak Secretariat, Islamabad & others

Judgment Sheet

XI{ TIIE P IITGII COURT.

PESHAWAR.

WDICIAL DEPARTMENT.

JTIDGMENT

Writ Petition No.2503-Pi2023 Date of hearing 26.03.2A24.

Mst. Sharafat Bibi Yersus Ministry of Interior, lslamabad.

Petitioner (s) by: Mr. Muhammad l{ashim Khan Mengal Advocate.

Respondent(s) by: Mr. Ilaulat Khan DAG alongwith Shahid Imram Gigyani, Assistant Director (legal) NADRA.

WIOAR AItrMAD. J. Petitioner herein is a lad v who claims to be citizen of Fakistan by birth and lineage. As per contents of her petition, a POft card had been recorded against her narne in NADRA database, about which she carne to know when she applied for grant of CMC to her.

Taking said grievance before this Court, she has prayed as follows:-

"on acceptance of this Writ Pelitton an appropriate wril may kindly be issued:- i. To dircct the respondents to treat and decide the petilioner snd requesl for eaneellation af POR

Card uccording to the 2017 policy and letter dated 11 luly

ii. The petitioner mny kindly be allowed to eppeer before any verifrcation committee of tke respondents for clearance af, her name.

iii, And the respondents may kindly befurther directedfor tke speedy and efficacioas disposal af tke petitioner request .for cancellation of tkeir POR cards as per law and poliey.

Any other remedy deems ftt in the instant petition msy slso be granted."

2.In the comments, respondents have stated that all Afghan nationals who were residing in Fakistan have been registered as Afghan National, residing in Afghan nationals residing in Pakistan under a project launched by govemment of Pakistan in collaboration with Afghan Comrnissionerate and government of Afghanistan.

It has further been submitted in the comrnents that petitioner had applied for grant of ACC card, which had accordingly been issued to her after due verification from representative of Govemment of Afghanistan deputed at the ACC center wherefrom ACC Card had been issued.

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3.Arguments heard and available record perused.

4.Perusal of record revels that request of petitioner for issuance of CMC was declined because she had earlier been issued Afghan Citizen Card (ACC). Petitioner has inter alia prayed that she may be allowed to appear before any Verification Committee of respondents for clearance of her narne. In other words, petitioner wants to cancel the Afghan Citizen Card in her name and to claim her status as Pakistani national but her request has not been entertained at any forum. Petitioner has also annexed copies of CNIC of her mother and matemal uncle namely Shamroz. Besides, her binh certificate has also been annexed with instant writ petition. Petitioner is also making reliance on similar other documents, which can neither be verified nor considered for the subject purpose by this Court in exercise of its Constitutional jurisdiction, however, prayer of petitioner for allowing her to present her case before the competent forum of NADRA is taken for consideration here. When IYP No.25B-Pn023

the departmental representative of NADR.A (Mr.Shahid Imran Gigyani) was confronted with this situation, he drew attention of this Court towards policy directives of NADRA for cancellation of Afghan Citizen Card issued on 17.08.2023. Said policy is annexed with CM No.560-P/2024 at page 4 (annexure-A), which is reproduced hereunder for ready referenoe:- "Folicv on cancellation of ACC and issuunce of CNIC.

l.Backcround- Pwrsuant to Csbtnet decision dated /h ltebrwary 2017, Ministry of States and Frontier Regions(SAFRON) in collaboration with Ministry of Refugees & R ep a tr i at i o n - M o RR(Afg h a n is t a n) condwcted the registration exercise of undocumented Afghan citizens residing in Pakistan. The exercise was concluded on 2{h Feb, 2018 within periad of I months, During ACC exercise, tatal 878,937 Afghan citizens (inclading children) u'ere registered after valtdation by designated representative of MoRR (Government of Afghanistan. In total690,785 Afghan citizen cards were printed and issued to eligtble Afghan Citizens.

n2. Froblem Statement Afghan citizen Card holders flre approaching to Government agencies for cancellation of ACC and tsswance of WP Na2503-P/2023

CNIC being proclaimed Pakistani nationals.

Policv Direction: Inline of CCAR- Ministry of States & Frontier Regions SAFRON policy letter F.No.10/1,{A-VE/CCAR/2020 Uol- W) dated lgh November 2022, following categories of ACC holder will he perused for cancellation of their card and issuance of CNIC. Catesorv I: The applicant at the time of acquiring ACC was an Afghan Nalional, but his/her request for Pak citizenship was under considerstion and nottinalized.

Catesom II:The applicant at the time of acquiring ACC was an Afghan national but thereafter approved for Pak citizenship."

The cancellation o CC ltolder is on individual basis. None o f the familv member and or anv relative cun DUrS ue cancellatio n of his/he r ACC card exclusive based on Nationalitv Status o f Individual who would have attained NIC throueh his oolicv. ("Pakistan citizen shiP- Naturalization Certiftcation- Certificate that applicant kus taken the Oath of Allegiance' to the Constitution of Pakistan within prescribed period under Section 6 of NA 1926 (Section of Pakistan Citizenship Act 1951).

4.ACC Cancellation ond CNIC Issuance Procedure.

Pursuant lo Article 3-I & follo wms Drocedure will be adooted for canc no f ACC and ,ssuan ce of CNIC:

Such applicants will aPPeu to Regional Veriftcation Board WP No.2sor-PDo2rJ

physically and will be asked to surrender their ACC Card or submit an alfidavit if ACC Card has already been surrendered with I&P Dte or lost.

o Bank deposit slip of Rs.5000/- as process charges.

o Citizenship/ Naturalization Certiticate will be sent to issuing authority Io, veritication of genuineness and contirmation of oath of Allegiance.

o Upon validation of C itize n s h ip/I'{ a t ur a I i zatio n Certi/icate and evaluation of applicant, ACC will be cancelled and CNIC will be issued as per NADRA rules.

5.Ministry of States & Frontier Regions (Chief Commksionerate for Afghan Refugees) will be informed about the reasons the Io, cancellation of ACC Cards, legal status of the individual and date of issuance of CNICs after cancellation of ACC Card/updation of ACC Database. Original ACC (tf available0 will be submitted to CCAR, Ministry of States & Frontier Regions.

6.ACC Card would be marked as Move to History,which will remove it from the aclive records, but not from the database as such.

7.ACC Card will be returned to the individual and ACC cancellation process would be stoPPed, if the Nat ur ali zatio n/C it ize n s h iP Certiftcate is found unauthentic or his claim as Pakistani National is not proved."

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5 Mr. Shahid Imran Gigyani Assistant Director (legal) appearing on behalf of NADRA, argued that the policy was requiring that a person who wanted to cancel his ACC card should apply for grant of his naturalization certificate and upon validation of his/her citizenship, the ACC card would be cancelled and Pakistani CNIC could only be issued as per NADRA rules. According to him, petitioner was also required to have applied for grant of naturalization certifi cate.

6.It is case of petitioner before this Court that she has infact been a Pakistani national but against her name issuance of ACC card has been recorded in the NADRA database and therefore, she be allowed to present her case before a competent forum of NADRA for cancellation of her ACC card and thereafter to apply for her CMC. It is not a stand alone case but it is cornmon knowledge that a number of Pakistani citizens have registered themselves as Afghan refugees and obtained ACC cards mainly for the purpose of getting aid from UNHCR and other WP Nt,2tB.Pn023

agencies in the shape of Ration etc. If a person is Pakistani citizen and he happens to have obtained ACC card then a window must be kept open by NADRA for cancellation of ACC card and issuance of CNIC to the person, who proves and establishes that he is actually a Pakistani citizen.

ACC card is also issued by NADRA, then its cancellation should also be lying with NADRA.

Issuance of Pakistani CNIC is also with NADRA and it is not only a case of cancellation or issuance of cards but it also pertains to making necessary correction and alteration in NADRA database. Under Section 10 of the NADRA Ordinance 2000 (hereinafter referred to as Ordinance 2000), CNIC is being issued to a Pakistani citizen while under Section 11 of Ordinance 2000, Pakistan Origin Cards are issued and renewed or cause to be issued or renewed in prescribed manner on prescribed criteria, terms and conditions to the prescribed clause of foreigners. Section 12 of the Ordinance 2000 provides for issuance/renewal of overseas identity cards to prescribed class of citizens WP No.25u.Pn023

residing abroad or presoribed class of emigrants who have got themselves registered in prescribed manner. Section 13 of the Ordinance 2000 was providing power of authority to issue or renew cards to prescribed class of foreigners inside Pakistan. Section 17 of the ordinance 2000 was providing for surrender of cards, which is reproduced hereunder for ready reference;

17.Swrrenders of cards. _{1) In case af the deatk of any holder of a card or certiticate issued under this Ordinance, his card or certfficate shall be surrendered or given wp to the District Registrar, or any other person or authority prescrihed by regwlations, by the spouse, heir, nert of kin, parent or gaardian, as tke cflse may be, of such holder within sixty days of such death,

(2)The holder of a card who ceases to be eligible to hold stsch card or whose card becomes invalid in accordance with tke terrns and condttions of his card or under the provisions of this Ordinance or anJ, rules ot regulations made therewnder, shall surrender or gtve up kis card to the District Registrur or sny other person or authority prescribed by regulations within such period of this so ceasing to be eligtble or his card becoming invalid, as may be prescribed.

(3)The Awthority shall issue swch receipt in relatton to the eard or certilicate suruendered under tkis section in such form and manner IYP No.2sU-Pn023

and conlaining such information relating to the person whose card or certiftcate has been surrendered as may be prescribed.

(4 A receipl issued under subsection (3) shall be admissible in evidence for the purpase of proving the information or parliculars contained in such receipt relating to the person to whom such receipt relales.

It is important to be noted that in above reproduced Section 17 of the Ordinance 2000, the word 'Cards' has been used. It provides for surrender of not only CNIC but also Pakistan Origin Card, overseas Identity Card and also alien registration card. Sub section 2 thereof was providing that the holder of card who ceased to be eligible to hold such card or whose card becomes invalid in accordance with the terms and conditions of his card or under the provisions of this Ordinance or any rules or regulations made thereunder, shall surrender or give up his card to the District Registrar or any other person or authority prescribed by regulations within such period of the card so ceasing to be eligible or his card becoming invalid, as may be prescribed.

Similarly Section 18 of the Ordinance was

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ll

providing powers of authority or an officer authorized by him for cancelling, impounding or confiscation of cards. It is therefore clear that authority was well within its power to cancel any card issued by it. It is in this perspective that policy for cancellation of ACC card and issuance of CNIC has been issued through policy directives vide letter dated 17.08.2023 of NADRA Headquarter. The policy do not put a bar on cancellation of ACC cards. Nowhere such a bar exists in any law also. Acquiring of ACC Card rnay not be equated with renunciation of citizenship under Section la(l) of the Pakistan Citizenship Act 1951 (hereinafter referred to as Act 1951). Said section being relevant is also reproduced hereunder for ready reference:- I 4 A. Ren unciatio n of citiz.e ns hio.

(1)If any citizen of Pakistan residing owtside Fakistan, who is not a minor and

(a)is also a citizen or national of another countryt, or

(b)has been given by the competent authority of another cauntry any valid document assuring him of the grant of the citizenship or nationality of that other cowntry upon renouncing his citizenship of Pakistan,

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t2

makes in the prescribed manner 0 deelaration renowncing his citizenship of Pakistan, the declaration skall be registered by the prescribed authority; and apon such registration that person shall cease to be a citizen of Pakistan : Provided that, tf any sack declaration is made daring any war itt wkich Pakistan may be engaged, registration thereof shall be withheld wntil the Federal Government otkerwise directs.

(2)Where a male person ceoses to a be citizen of Pakistan wnder subsection (1)_

(a)every sach minor child of that person as is residing outside Pakistan shall thereupon cease to be a citizen of Pakistan; Provided that any swch ekild may, within one year of his completing the age of, twenty one years, mske a declsration that he wishes to resume the citizenship of Pakistan and shall wpon the making of swch declaration become a citizen ot Pakistan: and

(b)every swch minor child of tkot persan as is residing in Pakistan skall continue to be a citizen of Fakistan.

In case in hand it could not be demonstrated before r.ls by respondents that petitioner had ever made any declaration regarding renouncing her citizenship of Pakistan before cornpetent authority of a foreign country. Therefore, rnere fact of issuance of ACC card or entry to said effect in WP No.2Jo3-P/2021

NA.DRA database cannot be treated at par with making declaration of renunciation of Pakistani nationality before competent authority of another country. ACC cards have been issued by NADRA in pursuance to a tripartite agreement amongst govemment of Pakistan, UNHCR and Afghan Government. Said arrangement was for registering all those Afghan refugees who were living in Pakistan in relevant tirne.

7.NADRA authorities could not annex any proof with their cornments to the effect that petitioner had ever given a declaration of rennnciation of Pakistani citizenship before any competent authority of another country. Entry in the database has been effected by NADRA authorities and such entry cannot therefore be deemed to be renunciation of citizenship of Fakistan. Same is also serious step and cannot be taken by implication. A person cannot be deprived of citizenship of this country merely on a dent of implication or ramification of having entry in NADRA database as Afghan citizen. Such an inference is not provided in any law by express WP No.2'Lr-Pnmj

t4

words or necessary intendment and therefore this inference cannot be taken against a person who prove himself to be original crtizen of this country. Requirement of Section 14-A of Pakistan Citizenship Act 1951, has not been obviously mandated during the process.

8.The policy for cancellation of ACC is required to be interpreted liberally so as to provide a forum for those Pakistanis who have obtained ACC cards and who wants cancellation thereof. The above reproduced policy in Rule 3 provides two categories i.e, the first being of those applicants who were afghan nationals at the time of acquiring ACC cards but his request for Pakistani citizen was under consideration and not finalized; second category being those afghan nationals or holders of ACC cards who had been approved for grant of Pakistani citizenship.

Mr.Shahid Imran Gigyani, (legal representative of NADRA) argued that this policy can only be made applicable to the two categories referred in Para 3 of the policy and those applicants who claimed to be Pakistani national and in possession WP No.ZSAS-P/2023

of ACC cards would not be able to apply for canoellation of ACC cards under Para 4 of the policy unless they applied for grant of naturalization certificate and citizenship of Pakistan. But while arguing the case in this rnanner learned representative of NADRA ignored Paru 2 of the policy. In Para 2 of the policy the mischief has been stated in the following words;

"Afghan citizen Card holders are approaching to Government agencies for cuncellation af ACC und issuance af CNIC betnp nroclaimed Pakistani nationals, (" emphasis s wpplied.) "

Above reproduced Para makes it amply clear that the reason for issuing such directions was that various Pakistani nationals had been approaching govemment agencies for cancellation of ACC cards and issuance of CMC. Exactly same is the case of petitioner as argued at the bar. When we keep the rnischief and main reason for policy direction, we cannot leave the category of'those Pakistani citizens who had wrongly obtained ACC cards, to remain remediless. The policy also ainns to provide them a forum. Non rnentioning them specifically in Para 3 of the policy is theref,ore an WP No.2503-P/2023

ornission on the part of policy framers which should be rectified at their end.

9.So far as the procedure provided in Para 4 is concemed, the bullet points provided therein should be read disjunctively. The applicants who olaim to be Fakistani nationals will only have to appear before Regional Verification Board physically and should surrender their ACC cards or submit the requisite affidavit. They will also be bound to deposit the requisite fee of,Rs.5000i- as processing charges. So far as 3'd and 4'h requirement of obtaining naturalization certifi cate is concerned, same would only be applicable in oase of those applicants who are Afghan citizens and desirous of obtaining Pakistani citizenship but said requirement cannot be applied to those persons or holders of ACC who are infact Pakistani citizen by birth and lineage. No, Pakistani citizen can be compelled to apply for grant of naturalization certificate under any policy. Any policy condition requiring a Pakistani citizen to apply for grant of naturalization

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oertificate would be violation of Section 3 of the Citizenship Act l951,which provides as follows:-

3.Citizenskip at the date of commencement of this Act._At the commencement of this Act every person shall be deemed to be a citizen of Pakistan_

(a)who or any of whose parenls or grandparenls was born in the territory now inclwded in Pakistan and who after tke fourteenth day of Augast, 1947, has not been permanently resident in any coun$ owtside Pakistan; or

(b)who or any of wkose parents or grundparents was born in the territories included tn India on the tkirty lirst day of March,lg37, I[and wko, except in the case of a person wko was in the service of Fakistan or of any Government or Administration in Pakistan at the cotnrnencement of this Act, hasl or had his domicile within tke meaning

II

of Part of the Succession Act, 1925 QffiilX of 1925), as in force at the commencement of this Act, in Pukistan or in the territories now included in Pakistan ; or

(c)who is a person naturalised as a British subject in Pakistan; and wko, tf before the date of tke commencement of this Act he has acqwired the citizenship af dny foreign State, has before that dute renounced tke same by depositing a d.eclarattan in writing ta that effect witk an authority appointed or empowered to receive it; or (d) who before tke commencement af this Act migrated to the tewitortes WP No.25o3-P202t

now included in Pakistun from any territory in the Indo Pakistan subeonlinent o utside tkose lerritories with the intention of residing permanently in those tenitories.J

10.The policy can only be saved by reading parts of Para 4 disjunctively and in order to save part of policy from being declared to be ultra vires of the above act. It is read in the manner that the requirements of naturalization certificate shall not be valid in case of Pakistani citizens and it shall only be valid in case of Afghan citizens, who are holders of ACC cards and desirous of obtaining Pakistan citizenship card. The petitioner who is claiming to be a Pakistan citizen and whose entries has been effected as Afghan citizen by issuing ACC card, shall also apply to the Regional Verification Board and the board shall consider her case for cancellation of ACC card and then issuance of CMC in accordance with law and rules of NADRA after verification of her claim that she has infact been a Pakistani citizen. After the petitioner applies to Regional Verification Board, her case shall be finalized within a period of three (03) months and in case claim of IYP No.250IPn02J

petitioner is not found justified then a written order shall be passed in the matter explaining the reasons thereof in detail. In order to curtail future litigation respondents are also directed to further clariff their policy directions and issue additional instructions to their subordinate offices' 11" For what has been discussed above, instant writ petition is partially allowed to the above stated effect.

Judge

J GE

Dote of hcafing & onnouncefienl otjutlSwn ... ............,',....,,26?3,241. Date otprepatdon and stgning of Jwlgmeu ...,'....,.. 29.03.2021 Da) ,t-'*u.. t.&. tfrlt t,frlb a h. td..ltlF t'* "A@tanPS'

WP No.2Soi-PAert