P L D 2024 Balochistan 33
Before Muhammad Hashim Khan Kakar and Muhammad Aamir Nawaz Rana, JJ
MASOOMA and another---Petitioners
Versus
FEDERAL GOVERNMENT through Ministry of Interior Pak Secretariat and another---Respondents
Constitution Petitions Nos. 656 and 662 of 2022, decided on 3rd November, 2022.
Pakistan Citizenship Act (II of 1951)---
----Ss. 10(2) & 17---Constitution of Pakistan, Art. 199---Constitutional petition by alien/foreign national seeking directions for issuance of Computerized National Identity Card (CNIC)---Fore-father of petitioners migrated from Afghanistan to Pakistan and the petitioners were born in Pakistan---Petitioners got married to Pakistani citizens---Both the petitioners applied for issuance of CNIC after fulfilling all the legal requirements, however, their request was declined---Validity---Computerized National Identity Card could not be issued in favour of petitioners in absence of Certificate of Domicile issued by the Federal Government---Besides marrying Pakistani citizens, petitioners were also entitled for Pakistani citizenship being born in Pakistan within the purview of S. 4 of the Pakistan Citizenship Act, 1951 (Act, 1951), however, for the said purpose, they had to approach the Federal Government for issuance of Certificate of Domicile under S. 17 of the Act, 1951---However, it was a case of hardship as the refusal of CNIC in favour of petitioners had exposed them to horrendous consequences however, the Authority was bereft of jurisdiction and power to issue CNIC in absence of Certificate of Domicile by the Federal Government---Under S. 10(2) of the Act, 1951, a women who had been married to a citizen of Pakistan would be entitled on making application to the Federal Government in the prescribed manner and if she was an alien, on obtaining a certificate of domicile and taking the oath of allegiance in the form set out in the Schedule to the Act to be registered as a citizen of Pakistan but such special concession was not available to male aliens within the purview of S. 10(2) of the Act, 1951---Petition was disposed of with direction that the petitioners shall approach the Federal Government in the prescribed manners for the grant of Certificate of Domicile.
Salman Khan Kakar for Petitioners.
Rashid-ur-Rehman, Assistant Attorney General for Respondent No.1.
Zubair Naseem Khawaja, Law Officer, NADRA for Respondent No.2.
Date of hearing: 10th October, 2022.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J.---Since common questions of law and facts are involved in both the above titled petitions, as such, we propose to decide the same through this common judgment. Both these constitutional petitions filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"), carry the following prayer clause:
"It is accordingly respectfully prayed that writ of quo warranto be issued to respondents that under what lawful authority without providing opportunity of hearing the application of petitioner has been declined and the same may be declared as void.
Further, by issuing writ of mandamus to direct the respondents to issue CNIC of petitioner by treating it as a Citizen of Pakistan in accordance with law.
Any other relief which this Hon 'ble Court may deems fit and proper may be granted."
2. Precise facts giving rise to the filing of these Constitutional Petitions are that the fore-fathers of petitioners Mst. Hajra and Mst. Masooma migrated from Afghanistan to Pakistan and the petitioners were born in Pakistan. They got married to Pakistani citizens, namely Abdul Nafay and Abdul Wassay respectively. Both the petitioners applied for issuance of CNIC after fulfilling all the legal requirements, however, their request for issuance of CNICs was declined by respondent No.2, hence the instant petitions.
3. We have heard the learned counsel for the parties and also perused the available record and relevant provisions of law. The moot question involved in the instant petition is as to whether the petitioners are entitled for issuance of CNIC being Afghanis married with Pakistani Citizens? In this regard it would be relevant and advantageous to reproduced section 10 of the Pakistan Citizenship Act, 1951 which furnishes a complete answer to the preposition in question and it speaks as under:
"10. Married women.---(1) Any woman who by reason of her marriage to a [British subject] before the first day of January, 1949, has acquired the status of a [British subject] shall, if her husband becomes a citizen of Pakistan, be a citizen of Pakistan.
(2) Subject to the provisions of subsection (1) and subsection (4) a woman who has been married to a citizen of Pakistan or to a person who but for his death would have been a citizen of Pakistan under section 3, 4 or 5 shall be entitled, on making application therefore to the Federal Government in the prescribed manner, and, if she is an alien, on obtaining a certificate of domicile and taking the oath of allegiance in the form set out in the Schedule to this Act, to be registered as a citizen of Pakistan whether or not she has completed twenty one years of her age and is of full capacity.
(3) Subject as aforesaid, a woman who has been married to a person who, but for his death, could have been a citizen of Pakistan under the provisions of subsection (1) of section 6 (whether he migrated is provided in that subsection or is deemed under the proviso to section 7 to have so migrated) shall be entitled as provided in subsection (2) subject further, if she is an alien, to her obtaining the certificate and taking the oath therein mentioned.
(4) A person who has ceased to be citizen of Pakistan under section 14 or who has been deprived of citizenship of Pakistan under this Act shall not be entitled to be registered as a citizen thereof under this section but may be so registered with the previous consent of the Federal Government."
4. Similarly, section 17 of the Act ibid reads as under:
"17. Certificate of domicile.-The Federal Government may upon an application being made to it in the prescribed manner containing the prescribed particulars grant a certificate of domicile to any person in respect of whom it is satisfied that he has ordinarily resided in Pakistan for a period of not less than one year immediately before the making of the application, and has acquired a domicile therein."
5. Likewise, rule 15 of the Pakistan Citizenship Rules, 1952, which prescribes the procedure, reads as under:
"15. Any woman who claims citizenship under subsection (2) of section 10 of the Act shall apply in Form 'F' in triplicate to the Central Government in the following manner, namely:--
(a) If her husband is alive, each form shall be accompanied by the following documents :
(i) a certificate of Pakistan citizenship granted to her husband [or any other evidence establishing the husband's citizenship of Pakistan];
(ii) a marriage certificate or any other evidence establishing the applicant's marriage.
(b) If her husband is dead at the time of the application, the application shall be accompanied by the certificate or other evidence mentioned in sub-clause (ii) of clause (a), and the certificate mentioned in sub-clause (i) of the clause or by a statement of facts recorded on oath showing that he had been alive he would be entitled to citizenship of Pakistan under sections 3, 4 or 5 of the Act.
(c) If the applicant is an alien, the application shall further be accompanied by a certificate--
(i) of domicile issued under rule 23 of these Rules, and
(ii) that she has taken the oath of allegiance set out in the Schedule to the Act.
(d) If the applicant's husband but of his death would have been a citizen of Pakistan under the provisions of subsection (1) of section 6 of the Act (Whether he migrated as provided in that subsection or is deemed under the provisions to section 7 to have so migrated), the application shall be accompanied by a certificate issued by the Provincial Government that the husband would have been entitled to a certificate under rule 10 or 11 of these Rules.
(e) The Central Government shall, after such enquiries as it considers necessary, pass such orders on the application as it deems fit."
6. It is admitted feature of the case that the petitioners are claiming citizenship under subsection (2) of section 10 of the Act, 1951 being married to Pakistani citizens, as such; they have to approach the Federal Government for issuance of Certificate of Domicile within the purview of section 17 of the Act of 1951.
7. We are in agreement with Mr. Naseem Zubair, learned counsel appearing on behalf of respondent No. 2 that CNIC cannot be issued in favour of petitioners in absence of Certificate of Domicile issued by the Federal Government. There is no cavil to the preposition that besides marrying Pakistani citizens, they are also entitled for Pakistani citizenship being born in Pakistan within the purview of section 4 of the Act, 1951, however, for the said purpose, they have to approach the Federal Government for issuance of Certificate of Domicile under section 17 of the Act, 1951. It is imperative to state here that the purpose and object of the Citizenship Act, 1951 and the National Database and Registration Authority Ordinance, 2000 are altogether distinct. The former statute deals with the matters relating to the Nationality and Citizenship while the later has been promulgated in order to provide for the establishment of the National Database and Registration Authority so as to facilitate the registration of all persons and the establishment and maintenance of multipurpose database and data warehouses.
8. We are conscious of the fact that it is a case of hardship as the refusal of CNIC in favour of petitioners has exposed them to horrendous consequences; however, the Authority is bereft of jurisdiction and power to issue CNIC in absence of Certificate of Domicile by the Federal Government.
9. We have also come across a number of cases where certificates of domicile have been refused to some of the "alien" who have contracted marriages with Pakistani women. As has stated above that by subsection (2) of section 10 of the Act a women who has been married to a citizen of Pakistan shall be entitled on making application therefore to the Federal Government in the prescribed manner and if she is an alien, on obtaining a certificate of domicile and taking the oath of allegiance in the form set out in the Schedule to the Act is to be registered as a citizen of Pakistan but such special concession is not available to male aliens within the purview of subsection (2) of section 10 of the Act. This section was discussed in detailed by the Federal Shariat Court in Suo Motu case No.1/K of 2006 (PLD 2008 Federal Shariat Court) and the same was declared discriminatory and in violation of Articles 2-A and 25 of the Constitution of Islamic Republic of Pakistan as well as International Commitments in the following words:
"In view of the above, we are of the view that section 10 of the Citizen Act, 1951 is discriminatory, negates gender equality and is in violation of Articles 2 (a) and 25 of the Constitution of Islamic Republic of Pakistan and also against International Commitments of Pakistan and, most importantly is repugnant to Holy Qur'an and Sunnah "
For the discussion made hereinabove, the petitions are disposed of with direction that the petitioners shall approach the Federal Government in the prescribed manners for grant of Certificate of Domicile.
JK/71/Bal. Order accordingly.
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