RULING FOR PRINTING: POWERS U/S 18 OF NADRA DISCUSSED

POWERS U/S 18 OF NADRA DISCUSSED

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 verifying 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 become illegal---High Court accepted constitutional petition and
directed petitioner to appear before authority for deciding such matter within specified
time.

Writ Petition No. 2347 of 2009 distinguished.

----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;

(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

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