Khan Zaman VS Govt.of Pakistan

P L D 2011 Peshawar 47

Before Mazhar Alam Khan Miankhel and Yahya Afridi, JJ

KHAN ZAMAN---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary Ministry of Interior, Islamabad and 5 others---Respondents

Writ Petition No.3359 of 2010, decided on 28th October, 2010.

(a)National Database and Registration Authority Ordinance (VIII of 2000)--- ----Ss. 17 & 18---Computerized National Identity Card---Order of surrendering/impounding/cancelling/confiscating such card---Powers of National Database and Registration Authority---Scope ---Authority could not pass such order without giving to holder of such card an opportunity of being heard---Principles.

(b)National Database and Registration Authority Ordinance (VIII of 2000)--- ----Ss. 17 & 18---Constitution of Pakistan, Art. 199---Constitutional petition---Computerized National Identity Card---Report of Special Branch ver i fying status of petitioner to be Afghan National---Notice issued by authority on basis of such report requiring petitioner to surrender such card without providing him an opportunity of hearing---Validity---Record showed that impugned notice had been issued to petitioner iii pursuance of his interview---Mere reference to interview in impugned notice would not be proof of fact that petitioner had been interviewed by authority---Authority had not cancelled petitioner's card through any specific order--- Impugned notice could not be termed to be an order of cancellation of such card, thus, remedy of appeal under S. 18 of National Database and National Registration Authority Ordinance, 2000 was not available to petitioner---Petitioner in support of his being Pakistan National had produced mutation of his immovable property, arms licences, utility bills and such cards issued to his other family members---Authority before issuing impugned notice should have conducted full-fledged inquiry, after providing a chance of hearing to petitioner, verifying and scrutinizing such record produced by petitioner before court in proof of his being Pakistan National--Petitioner had neither been heard nor was interviewed under law---Authority could not pass an order against interest of a person without providing him opportunity of hearing , otherwise its order would b e c o m e illegal---High Court accepted constitutional petition and directed petitioner to appear before authority for d e c i d i n g such matter within s p e c i f i e d time.

Writ Petition No. 2347 of 2009 distinguished.

(c)Natural justice, principles of---

----Order passed by an authority against interest of a person without providing him opportunity of hearing would be an illegal order--Illustration.

Astagfirullah for Petitioner.

Fazlur Rehman Khan, A.A.-G. and Hassan U.K. Khan for Respondents.

Date of hearing: 28th October, 2010.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---The. petitioner herein by claiming himself to be the permanent resident, national and citizen of Pakistan by birth has asked for the issuance of direction to the respondents to issue/renew CNIC and to declare the report of the verifying agency as well as notice dated 28-6-2010 issued by the respondents to surrender his CNIC on the ground that the petitioner has been declared as Afghan national is illegal, unlawful, without jurisdiction and lawful authority.

2.The learned counsel for the petitioner submitted that the notice dated 28-6-2010 is not only illegal, unlawful and without jurisdiction but the same has been issued on the basis of a so-called report of the agencies which has got no adverse effect against the rights of the petitioner as being one sided given at his back and without providing him a chance of hearing and not based on any reasoning which is against law. The petitioner and his family members are the registered voters having their previous national identity cards issued to them in early seventies, they own property in Pakistan, and food ration cards were also issued to the petitioner family. Utility bills like electricity and telephone etc. are also in the names of petitioner and his family.

3.As against that, learned counsel for the respondents outrightly submitted that instant petition under the law is not maintainable in presence of an alternate and appropriate remedy in the shape of an appeal and relied upon a judgment of this Court rendered in Writ Petition No.2347 of 2009 dated 24-3-2009. He further submitted that after proper inquiry and investigation from the agencies, the petitioner was declared as Afghan national. So, the CNIC of the petitioner was blocked and the petitioner was given impugned notice to surrender his CNIC bearing No. 17301-1245014-7 to Provincial Headquarter Peshawar within fifteen days and he was accordingly informed about his right of appeal through this

notice, so, this appeal is liable to dismissal being not maintainable.

4.Learned counsel for the parties were heard and record of the case was perused.

5.The record of the case would reveal that in case of any doubt, the respondents do have the authority to inquire and investigate about the CNIC issued to a person and if found and proved so, the authority can ask the holder of CNIC to surrender his card issued by the respondents under Section 17 of the National Data Base and Registration Authority Ordinance, 2000. Then the authority has powers to cancel, impound or confiscate such card by making an order in writing under the seal of the authority or by an officer authorized by it in this behalf under section 18(1) of the Ordinance. The law further provides that no such like order can be made unless such person has been given a notice in, writing by calling upon him to show cause as to why the order of cancellation/impounding/confiscation should not be made. Against such an order, the remedy available to the aggrieved person is that of an appeal to the Federal Government provided under section 18(3) of the Ordinance within thirty days of the order. The relevant provisions of sections 17 and 18 of the Ordinance reads as under:-- "(17) Surrender of cards.---(1) In case of the death of any holder of a card or certificate issued under this Ordinance, his card or certificate shall be surrendered or given up to the District Registrar, or any other person or authority prescribed by regulations, by the spouse, heir, next of kin, parent or guardian, as the case may be, of such holder within sixty days of such death.

(2)The holder of a card who ceases 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 this so ceasing to be eligible or his card becoming invalid, as may be prescribed.

(3)The Authority shall issue such receipt in relation to the card or certificate surrendered under this section, in such form and manner and containing such information relating to the person whose card or certificate has been surrendered as may be prescribed.

(4)A receipt issued under subsection (3) shall be admissible in evidence for the purpose of proving the information or particulars contained in such receipt relating to the person to whom such receipt relates.

(18)Power to cancel, impound or confiscate cards.---(1) A card issued under this Ordinance shall be the property of the Federal Government and may, by an order in writing under the seal of the Authority or any officer authorized by it in this behalf, be required to be returned and shall also be liable to be cancelled, impounded or confiscated by a like order:

Provided that no order shall be made unless such person has been given notice in writing calling upon him to show cause why the order should not be made.

(2)An order under subsection (1) cancelling, impounding or confiscating a card may be made on if there is reason to believe that-

(a)the card has been obtained by a person who is not eligible to hold such card, by posing himself as eligible;

(b)more than one cards have been obtained by the same person on the same eligibility criteria;

(c)the particulars shown on the card have been obliterated or tampered with; or

(d)the card is forged.

(3)Any person in respect of whose card an order under sub-section (1) has been made may, within thirty days of the order, appeal to the Federal Government against the order and the decision of the Federal Government in appeal shall be final:

Provided that no order on such appeal shall be passed unless the appellant has been given an opportunity of bearing heard."

6.After going through the above provisions of the Ordinance, record of the case in hand would reveal that the impugned notice dated 18-6-2010 was issued to the petitioner in pursuance of his interview, record also does not support the factum of interview of the petitioner and mere reference of the interview in the notice impugned would not be proof that the petitioner was interviewed by the respondent before the verification board at NADRA PHQ Peshawar dated 25- 7-2010 but the petitioner at the bar denied his any such interview. Further the same would reveal that it was a notice for surrender of CNIC under section 17 and no specific order of cancellation under Section 18 was passed by the respondents. The right of appeal available to an aggrieved person is not against the notice of surrender under section 17 but it is against an order passed under section 18(1) of the Ordinance. So, the judgment of this Court referred to by the learned counsel for the respondents would be of no help to them. That case is distinguishable. The petitioner therein failed to file appeal against the cancellation order of his CNIC but in this case, there is no such order as discussed above.

7.The record of the case would further reveal that petitioner has in support of his being Pakistani National produced sufficient record on the file like a mutation of immovable property in his name along with his brothers attested by a revenue officer, arms licenses, utility bills and already issued CNICs to his other family members but respondents have failed to produce any record regarding their verification except a report of special branch wherein status of the petitioner was verified to be Afghan national which in our view is not sufficient to discard the all available record on mere report of special branch that the petitioner is an Afghan National. Such type of decision requires a full-fledged inquiry and scrutiny of the available record. If the respondents are successful in proving their allegations, then they should initiate process provided under the law against all who helped the petitioner in getting his CNIC and it would not be an act of

cancellation of the CNIC of the petitioner and the matter would not end there. All the persons involved should be taken to task, tried and punished as the repercussions of such crime are very deep rooted.

8.Under the law, what the respondents are required to do is to provide a chance of hearing to the petitioner, verify and scrutinize the record produced by the petitioner in proof of his being Pakistani national and similarly provide him a chance of proving all that and thereafter their decision in this regard is also supposed to be based on reasons.

9.What the record reflects is that the petitioner was neither heard in person nor was interviewed under the law which on the face of it is against the natural justice as an order passed by an authority against the interest of a person cannot be passed without providing him opportunity of hearing and departure from such rule would make such an order illegal. The argument of the learned counsel for the respondents that the impugned notice regarding surrender of CNIC is an order of cancellation, to our mind is nothing else but a misconception. After such notice, specific order of cancellation, confiscation or impounding of the CNIC is required under section 18(1) of the Ordinance and the impugned notice in no way be termed as an order of cancellation of CNIC.

10.So, what has been discussed above, we without any hesitation in our mind hold that mere such issuance of notice is not sufficient, the respondents are required to provide the petitioner a chance of hearing by scrutinizing all the record with him and thereafter should decide the fate t of the petitioner by giving cogent reasons. So, this writ petition is allowed. The petitioner is directed to appear before the Deputy Manager (Legal) in the Provincial Headquarters of NADRA, Hayatabad Peshawar on 3-11-2010 at 11-00 a.m. who should then decide the issue in the above given terms within a period of one month.

S.A.K./367/P Petition accepted.