LANDMARK JUDGMENT IN THE HISTORY OF PAKISTAN

LANDMARK JUDGMENT IN THE HISTORY OF PAKISTAN
AGAINST NADRA
GRANT OF CITIZENSHIP/NATIONALITY TO INDIAN CITIZEN BY HIGH COURT Lahore
JUDGMENT SHEET
IN THE LAHORE HIGH COURT,
MULTAN BENCH, MULTAN
JUDICIAL DEPARTMENT
Writ Petition No.5939 of 2006
Mst.Rukhsana Bibi, etc. vs. Government of Pakistan, etc.
Date of hearing 20.04.2016
Petitioners by Syed Sajjad Haider Naqvi, Advocate
Respondent by M/s Wajid Nawaz Bhatti, Standing
Counsel alongwith Mian Riaz Hussain,
Assistant Director, Passport Office,
Multan.
ALI BAQAR NAJAFI, J:- Through this
Constitutional Petition filed under Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973 the
petitioners seek direction to the respondents to
prevent discrimination and grant citizenship to
petitioner No.2, husband of petitioner No.1, enabling
them to live together in Pakistan with the further
direction to register petitioner No.2 as citizen of
Pakistan and restrain the respondents from the
extradition of the petitioner No.2 from the territory of
Pakistan.
2. Precise facts giving rise to the filing of this writ
petition are that Mst.Rukhsana/petitioner No.1 is SST
teacher serving in the Education Department for the
last 26 years. Her husband died in the year 2002 and
W.P.No.5939 of 2006 - 2 -
from him, there was no child. Petitioner No.2 is an
Indian National presently residing at Multan who had
come to Pakistan on 09.08.2003 along with his son,
namely, Danyal Hassan and mother, Khurshid Bano,
later died on 16.10.2005 and was buried at .Multan.
Sister of petitioner No.2, Mashkoor Bano, was also an
Indian National who too migrated in the year 1962 to
Pakistan and was married to one Syed Hassan Mian
Zaidi and both are living in Multan as husband and
wife, as she was already granted a Pakistani
nationality.
2. With this background, and with legitimate
expectation that he would start his life in this territory
created in the name of Islam, on 16.02.2004 petitioner
No.1 got married with petitioner No.2 and from their
wedlock one daughter namely, Hamyal Zehra was born
on 06.06.2005. Petitioner No.2 moved for citizenship of
Pakistan but respondent No.2 directed petitioner No.2
to deposit Rs.50,00,000/- for processing the
citizenship application. He continued to move for
extension of visa and on 19.09.2006 his visa was
finally extended for 90 days which was to end on
18.12.2006 hence this writ petition.
3. Syed Sajjad Haider Naqvi, Advocate, learned
counsel for the petitioners contends that
the state of Pakistan is bound to amend all
discriminatory provisions available in the statue and
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law particularly, section 10(2) of the Citizenship Act,
1951. Further contends that a child is not to be
separated from her parents but the respondents are
forcing deportation of petitioner No.2 back to India
which will deprive minor Himayal from the love and
affection of her father. Refers to an order passed in
Constitutional Petition No.1415 of 2004, “Mst.Najma
Bano vs. Government of Pakistan, etc.” passed by
Sindh High Court at Karachi. Also submits that when
the sister of petitioner No.2 had been conferred the
Pakistani Nationality on the basis of marriage with a
Pakistani male, refusal on the part of the respondents
to grant nationality to petitioner No.2 being married
with a Pakistani woman/petitioner No.1 is
discriminatory. Refers to the judgment on the same
question given by the Federal Shariat Court in Suo
Moto case No.1/K of 2006 (GENDER EQUALIY) [PLD
2008 Federal Shariat Court 1] and prays for relief.
4. Mr.Wajid Nawaz Bhatti, learned Standing
Counsel assisted by Mian Riaz Hussain, Assistant
Director, Passport Office, Multan, contends that the
petitioner No.2 has no locus standi to file the writ
petition as he is not the citizen of this country. Further
contends that the act of the respondents is not
discriminatory but is in accordance with the prevalent
law. Adds, that the stay of petitioner No.2 in Pakistan
is illegal, as his visa was not extended after
W.P.No.5939 of 2006 - 4 -
18.12.2006. Submits that if the petitioner No.2 is
interested in Pakistani citizenship he can initiate the
process and deposit a sum of five millions rupees as
required under circular dated 16.01.1997 issued by
the Ministry of Interior. Places reliance on [PLD 1998
Lahore 59] and [PLD 2015 Baluchistan 115] and
prays for dismissal of this petition.
5. Arguments heard. Record perused.
6. AT the very outset ,it is noted the petitioner no ;2 is
an alien male who has not been recognized as the one who
could invoke the constitutional jurisdiction of this court ,
therefor to his extent , this writ petition is dismissed as not
maintainable. However, the case of the petitioner no;1 is
examined also with reference to the human right and
discrimination aspects.
7 After hearing the learned counsel for the parties and
perusing the available file, it is observed that said
provision of section 10(2) of The Pakistan Citizenship Act,
1951 have been made the topic of discussion they be
reproduced below for ready reference:-
S;10(2)………
Subject to the provisions of sub-section (1) and sub-section (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, add, 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 year of her age and is of full capacity.”
7. A perusal of the said section reveals that alien
female has been given the right to acquire the Pakistan
nationality on her marriage with a man of Pakistani
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nationality but an alien male migrated to Pakistan and
married a Pakistani woman is not granted a right to
acquire Pakistani Nationality.
8. This section was discussed in Suo Motu Case
No.1/K of 2006 in re (Gender Equality) [PLD 2008 Federal
Shariat Court-1] where it was held by the Federal Shariat
Court on 12.12.2007 that suitable steps for amendment of
S.10(2) of Pakistan Citizenship Act, 1951 be taken for the
grant Pakistani nationality to a foreign husband married to
a Pakistani woman. However, Civil Shariat Appeal No.1 of
2008 has been filed against the said judgment before the
Hon’ble Supreme Court of Pakistan (Shariat Appellate
Bench) and on 23.12.2014 notices have been issued. It
was held as follows:-
“In view of the above, we are of the view that section
10 of the Citizenship Act, 1951 is discriminatory,
negates gender quality and is in violation of Article
2(a) & 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.”
9. The discrimination under Article 25 of the
Constitution of Islamic Republic of Pakistan, 1973 has also
been discussed in various judgments of the Hon’ble
Supreme Court. Before referring to some of the relevant
case law, it is appropriate to reproduce Article 25 of the
Constitution of Islamic Republic of Pakistan, 1973:-
Article 25
“Equality of citizens.—(1) All citizens are equal before law and
are entitled to equal protection of law.”
2.There shall be no discrimination on the basis of sex 1[xxx]
3.Nothing in this Article shall prevent the State from making
any special provision for the protection of woman and children.
This article was basically interpreted in I.A.SHARWANI and
others vs. GOVERNMENT OF PAKISTAN through Secretary,
W.P.No.5939 of 2006 - 6 -
Finance Division, Islamabad and others [1991 SCMR 1041],
later re-enforced in SECRETARY ECONOMIC AFFAIRS
DIVISION, ISLAMABAD and others vs. ANWARUL HAQ AHMED
and others [2013 S C M R 1687], Para 26 of the former
judgment is relevant, which is re-produced as under:-
“26. From the above cited cases the following principles of
law are deducible:-
(i) that equal protection of law does not envisage that every
citizen is to be treated alike in all circumstances, but it
contemplates that persons similarly situated or similarly
placed are to be treated alike;
(ii) that reasonable classification is permissible but it must
be founded on reasonable distinction or reasonable basis;
(iii) that different laws can validly be enacted for different
sexes, persons in different age groups, persons having
different financial standings, and persons accused of
heinous crimes;
(iv) that no standard of universal application to test
reasonableness of a classification can be laid down as
what may be reasonable classification in a particular set
of circumstances, may be unreasonable in the other set
of circumstances;
(v) that a law applying to one person or one class of persons
may be constitutionally valid if there is sufficient basis or
reason for it, but a classification which is arbitrary and is
not founded on any rational basis is no classification as
to warrant its exclusion from the mischief of Articles 25;
(vi) that equal protection of law means that all persons
equally placed be treated alike both in privileges
conferred and liabilities imposed;
(vii) that in order to make a classification reasonable, it
should be based—
(a)on an intelligible differentia which distinguishes persons
or things that are grouped together from those who have
been left out;
(b)that the differentia must have rationale nexus to the
object sought to be achieved by such classification.
It lays down that persons similarly situated or similarly
placed to be treated alike. Different laws can be validly
enacted for different financial standings and persons
accused of heinous crime. Surely marriage by petitioner to
a foreigner male will not be covered in that category. The
discussion regarding discriminatory application of
citizenship Act, 1951 is confined to the facts of the present
case under which denial of citizenship to a foreign national
having a Pakistani wife appears to be arbitrary and not
founded on any rational basis and has no nexus to the
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object to be achieved by such classification. Above all, our
constitution is specific about the person and do not
recognize the gender discrimination.
11. The judgment titled “SHARIFAN and 6 others
vs. THE FEDERATION OF PAKISTAN through Secretary,
Ministry of Interior and Narcotics Control, Interior
Division, Islamabad [PLD 1998 Lahore 59] from
respondent’s side relates to the situation in which male
husband was not granted Pakistani nationality, since after
marrying a woman of Pakistani nationality, he took her to
his country where she delivered a child but in the present
case both spouses have been living together ever since they
married during which a child was also born in their family
in Pakistan. Mother of respondent also died who was
buried in Pakistan. Moreover, with due respect to the view
expressed by the single bench of this Court in the year,
1998, this world has changed and the concept of
discrimination against the weaker sex of our society has
come a long way and by now male discrimination is also
being viewed seriously.
12. Learned Standing Counsels have pleaded that
the grant of citizenship right will increase the rate of
divorce, increase unemployment ratio, grant a blanket
approval to the foreign nationals who may act as spy of
their countries maintaining their earlier allegiance which
would be against the security of Pakistan and is likely to
jeopardize the Indo-Pak relationship.
13. However, this issue can be addressed by
categorization of citizenship into various types after
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conducting a verification based on close watch and survey,
whereafter such person can be declared fit for the
citizenship.
14 It is pertinent to mention here that right of a
woman to marry of her own choice is the basic human
right and to acknowledge this right no discrimination is to
be observed against Article 25 of the Constitution of
Islamic Republic of Pakistan.
15. Under Universal Declaration of Human Rights
Article 2, everyone is entitled to the right of freedom
irrespective of race, colour, sex, language, religion political
or other opinion, national or social origin, property, birth
or other status and under Article 13 everyone has right to
freedom of movement and residence within the borders of
each States and also a right to live in country including his
own. Under Article 15 everyone has a right to a nationality
and also to change his nationality. Under International
Covenant on Civil and Political Rights adopted on
23.03.1976, everyone is free to leave any country including
his own and will not be subjected to any restrictions except
provided under the law, and necessary to protect national
security, public order, public health or moral or the rights
and freedom of others as provided under Article 11 thereof.
Under Article 13 of the said Covenant, an alien person
unlawfully in a territory of a States may be expelled in
pursuance of a decision reached in accordance with law
and except where compelling reasons of national security
otherwise required, will be allowed to present the case and
have represented before the competent authority. Under
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Article 23 thereof the right of men and women of
marriageable age to marry and to form a family is
recognized which is natural and fundamental group unit of
the society. Under resolution 34 of 180 dated 18.12.1979
on convention of elimination of all forms of discrimination
of women adopted by General Assembly under Article 9
States are bound to grant women equal rights with men to
acquire, change or retain their nationality. They shall
ensure that their marriage to an alien or change of
nationality of their husband during marriage shall not
automatically change the nationality of the wife or force
her to get the nationality of her husband and that States
shall also grant women equal rights with respect to the
nationality of their children. Under Article 16 the States
shall ensure same rights to the women to enter into the
marriage, choose their spouses and to continue with the
marriage and its dissolution. Under Article 232(2) of
Beijing declaration of 1995, the Governments were
required to review national laws including customary laws
and legal practices in the areas of family, civil, penal,
labour or commercial law in order to ensure the
implementation of the principles and procedure of all
relevant international human rights instruments by means
of a national legislation, revoke any remaining laws for
discrimination on the basis of sex and removing gender
bias in the administration of justice. The State of Pakistan
is bound to adopt/follow in the relevant law keeping in
view the commitments it had already made to the
International Community.
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16. For what has been discussed above, this
petition is allowed and respondent No.1 and 2 are directed
to grant citizenship to Hassan Asghar s/o Ali Asghar,
husband of the petitioner after following the procedure as
denying this right under section 10(2) of the Citizenship
Act is declared as discriminatory being in violation of
Article 25 of the Constitution of Islamic Republic of
Pakistan, 1973.
(ALI BAQAR NAJAFI)
JUDGE
Announced in open Court on 18.05.2016
JUDGE
APPROVED FOR REPORTING.
JUDGE