P L D 2016 Balochistan 1
Before Muhammad Noor Meskanzai, C.J. and
Muhammad Hashim Khan Kakar, J
NAJEEBULLAH and others ---Petitioners
Versus
DIRECTOR NADRA, BALOCHISTAN, QUETTA and others ---Respondents
Constitutional Petitions Nos. 871 to 889, 896 of 2014 and 216, 351 and 371 of 2015, decided on
25th May, 2015.
(a) National Database and Registration Authority Ordinance (VIII of 2000) --
----Ss. 18 & 23 ---Constitution of Pakistan, Art. 199---Constitutional petition ---Maintainability ---
Constitu tional petition filed prematurely before any final order ---Availability of alternate
remedy ---Disputed questions of fact requiring probe/inquiry -Effect -Non-issuance/non renewal of
Computerized National Identity Cards (CNICs) ---Power of National Database an d Registration
Authority (NADRA) to cancel, impound or confiscate CNIC ---Scope and procedure ---
Contention of petitioners was that when they approached the National Database and Registration
Authority ("NADRA") either for issuance of CNICs or for renewal of the same, certain
documents were demanded to be placed before NADRA, which were, accordingly, produced,
however, NADRA was reluctant to issue the CNICs ---Validity ---In case of any doubt, NADRA
did have the authority to enquire and investigate about the CN IC issued to a person ---NADRA
could ask the holder of a CNIC to surrender his card (section 17 of the National Database and
Registration Authority Ordinance, 2000) ---NADRA had the power to cancel, impound or
confiscate such card by making an order in writi ng under its seal or by an officer authorised by it
in slick behalf (section 18(1) of the National Database and Registration Authority Ordinance,
2000) ---No such like order could be made, unless such person had 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 was
that of an appeal to the Federal Government provided under S.18(3) of the National Database
and Registration Authority Ordinance 2000, within 30 days of the order ---Case record of the
present case revealed that neither had CNICs of the petitioners been impounded/cancelled or
confiscated, nor had notices under S.17 of the National Databas e and Registration Authority
Ordinance, 2000 been issued to them for the said purposes ---Cases of the petitioners had been
sent to the concerned committees for the purpose of verification and no adverse orders had been
passed against them so far within the purview of S.18 of the National Database and Registration
Authority Ordinance, 2000, thus, the present petition being premature, was not maintainable ---
Even otherwise, in case of any adverse order, the aggrieved person(s)/petitioners could file an
appeal before the Federal Government within the purview of S.18(3) of the National Database
and Registration Authority Ordinance 2000, thus, on this ground also the constitutional petition
was not maintainable ---Although a number of documents, annexed with the pr esent petition,
prima facie, established the fact that the petitioners were nationals of Pakistan, however, fate of
the present petition could not be decided on the basis of such documents, authenticity of which
could only be determined and established bef ore a Civil Court and it required a full fledged
enquiry and scrutiny, that too, after providing full opportunity of hearing to both the parties ---
NADRA alleged that documents presented by the petitioners could not be construed as
conclusive proof for dete rmining status of the petitioners, because some of the documents were
prepared through foul play in connivance with the officials in the Provincial Government ---
Thorough probe and investigation would be needed to set such controversy at rest, which could
not be resolved in exercise of constitutional jurisdiction of the High Court ---Constitutional
petition was dismissed accordingly as being not maintainable.
Rana Aftab Ahmed Khan v. Muhammad Ajmal PLD 2010 SC 1066 and Secretary to the
Government of the Punjab v. Ghulam Nabi PLD 2001 SC 415 ref
(b) Constitution of Pakistan ---
----Art. 199---Constitutional jurisdiction of the High Court ---Scope--- Constitutional petition
filed before the High Court ---Availability of alternate remedy ---Effect ---Constitutio nal
jurisdiction of the High Court could not be invoked in all matters as a matter of right, rather such
jurisdiction had certain circumventions/limitations, which the Court was required to keep in
view, while exercising its extraordinary jurisdiction ---Av ailability of an alternate remedy (to the
petitioner) was one such limitation which barred exercise of constitutional jurisdiction by the
High Court.
Rana Aftab Ahmed Khan v. Muhammad Ajmal PLD 2010 SC 1066 ref.
(c) Constitution of Pakistan -
----Art. 199---Constitutional jurisdiction of the High Court ---Scope--- Constitution petition filed
before the High Court ---Maintainability --- Disputed questions of fact requiring an inquiry ---
Effect ---High Court under constitutional jurisdiction should not involve itself into investigation
of disputed questions of fact, which necessitated taking of evidence ---Such an exercise could
more appropriately be done in the ordinary civil procedure for litigation by a suit ---Extraordinary
jurisdiction was intended primaril y, for providing an expeditious remedy in a case where the
illegality of the impugned action of an executive or other authority could be established without
any elaborate enquiry into complicated or disputed facts ---Controversial questions of facts,
adjudi cation on which was possible only after obtaining all types of evidence in power and
possession of parties could be determined only by courts having plenary jurisdiction in the matter
and on such ground constitutional petitions were not maintainable.
(d) Constitution of Pakistan --
----Art. 199---Constitutional petition filed before the High Court --- Maintainability ---Pre -
requisites ---While invoking constitutional jurisdiction, it was mandatory for the petitioner to
establish a clear legal right which sh ould be beyond any doubt and controversy.
Barrister Adnan A. Kassi for Petitioners (in C.Ps. Nos. 871 to 889 and 896 of 2014.
Muhammad Javed Ahmed for Petitioners (in C.P.No.216 of 2015).
Azmatullah Khan Kassi for Petitioners (in C.P.No.351 of 2015).
Manzoor Ahmed Rehmani for Petitioners (in C.P. No.371 of 2015).
Zubair Naseem and Nadeem Akhtar, Law Officers for NADRA.
Dates of hearing: 21st April, 5th and 6th May, 2015.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. -- By this common judgment, we intend to
dispose of Constitutional Petitions Nos.871, 872, 873, 874, 875, 876, 877, 878, 879, 880, 881,
882, 883, 884, 885, 886, 887, 888, 889 and 896 of 2014, 216, 351 and 371 of 2015, as identical
question of law and facts are involved in these petitions. The prayer clause which is almost one
and same in all the petitions reads as under:
"It is, therefore, prayed that in consideration of above stated facts and circumstances of
the case, this Hon'ble Court may be pleased to call upon the respondent in f irst instance
and then issue direction for issuance of CNIC of the petitioner.
With any other order which this Hon'ble Court may deem fit and appropriate in the
circumstances of the case may also be awarded with cost of the proceedings, in the
interest o f Justice and equity."
2. It is the case of the petitioners that they belong to the indigenous tribes/communities and are
permanently settled at Quetta since the time of their forefathers. In such view of the matter,
manual national identity cards were i ssued to them by the Ministry of Interior, Government of
Pakistan and, subsequently, Computerized National Identity Cards ("CNICs") were also issued in
their favour by the respondent. It is also case of the petitioners that when they approached the
respondent i.e. National Database and Registration Authority ("NADRA") either for of issuance
CNICs or for renewal of the same. certain documents were demanded to be placed before
NADRA, which were, accordingly, produced. however. NADRA is reluctant to issue the CNICs.
3. Messer Barrister Adnan A. Kassi, Syed Muhammad Javed Ahmed, Azmatullah Khan Kassi
and Manzoor Ahmed Rehmani, learned counsel for the petitioners, contended that though,
initially, the CNICs were issued either to the petitioners or their parents by NADRA and,
subsequently, the required information in the shape of documentary evidence was also produced,
entitling them for renewal and issuance of CNICs, yet they were denied their right thereto for no
cogent reason. In this regard, learned counsel r eferred to different documents filed with the
petitions i.e. previous manual national identity cards issued by NADRA, CNICs, child
registration certificates, voter lists showing the names of the petitioners, passports and
educational certificates etc.
4. On the contrary, M/s. Nadeem Akhtar and Zubair Naseem Khawaja, learned Law Officers
appearing on behalf of NADRA, while opposing the instant petitions, contended that the same
are not maintainable being premature. To substantiate their stance, they submit ted that neither
the petitioners have denied issuance of CNICs, nor has any order been passed by NADRA.
According to their contention, cases of the petitioners have been sent to the different committees,
constituted under the provisions of National Databas e and Registration Authority Ordinance,
2000 ("the Ordinance of 2000") for the purpose of verification. While concluding their
arguments, they further submitted that since the national identity cards, issued previously, were
doubtful, as such, while exerci sing powers conferred upon NADRA within the purview of
section 23 of the Ordinance of 2000, certain documents were required to be placed before
NADRA for the purpose of verification and authentication. They prayed for dismissal of the
instant petitions for want of availability of alternate remedy in the shape of appeal as provided
under section 18 of the Ordinance of 2000.
5. We have heard the learned counsel for the parties and have gone through the available record
with their valuable assistance. Before dilating upon the rival contentions raised on behalf of the
parties, it would be advantageous to reproduce hereinbelow sections 18 and 23 of the Ordinance
of 2000, which read as under:
"18. Power to cancel, impound or confiscate cards.--(1) A card issue d 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 an officer authorised 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) canceling, impounding or confiscating a card may be
made only 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 subsection (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 being heard.
"23. Power to call for proof of information.-- The Authority or any person authorised
by it in this behalf may require a person who has given any information to furnish such
documentary or other evidence of the truth of that information as it is within the power of
that person to furnish."
6. A bare perusal of the aforementioned provisions of the Ordinance of 2000 clearly manifest
that in case of any doubt, the respondent does have the authority to enquire and investigate about
the CNIC issued to a person a nd if found and proved so, the authority can ask the holder of
CNIC to surrender his card issued by NADRA under section 17 of the Ordinance of 2000. Then
the authority has the power to cancel, impound or confiscate such card by making an order in
writing u nder the seal of the Authority or by an officer authorised by it in this behalf under
section 18(1) of the Ordinance of 2000. 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 2000 within 30 days of the order.
7. Keeping in view the aforementioned provisions of law, record of the instant petitions would
reveal that neither have CNICs of the petitioners been impounded/cancelled or confiscated, nor
have notices under Sectio n 17 of the Ordinance of 2000 been issued to the petitioners for the said
purposes. It is also worth mentioning that no final orders have been issued by NADRA within
the purview of Section 18 of the Ordinance of 2000, thus, the petitions being premature ar e not
maintainable.
8. We are in agreement with the learned counsel for the petitioners that a number of documents,
annexed with the petitions prima facie, established the fact that the petitioners are Pakistani
Nationals, however, fate of the instant petitions cannot be decided on the basis of such
documents, authenticity of which could only be determined and established before a civil Court
and it requires a full -fledged enquiry and scrutiny, that too, after providing full opportunity of
hearing to both the parties.
9. Another moot question, which requires determination by this Court, is as to whether in
presence of alternate remedy, the instant writ petitions are maintainable? In this regard, we are of
the view that constitutional jurisdiction of th is Court cannot be invoked in all matters as a, matter
of right, rather such jurisdiction has certain circumventions, which the Court is required to keep
in view, while exercising its extraordinary jurisdiction. The availability of alternate remedy is
one of the limitations, which bars exercise of constitutional jurisdiction by this Court. If any
case- law is required, reference can safely be made to the case of "Rana Aftab Ahmed Khan v.
Muhammad Ajmal", (PLD 2010 SC 1066). wherein it was observed that:
"We have considered the above and are constrained to hold that the constitutional
jurisdiction (reference Article 199) of the High Court in all the cases cannot be invoked
as a matter of right, course or routine, rather such jurisdiction has certain circumve ntions
which the Court is required to keep in view while exercising its extraordinary
discretionary powers, as the conditions mentioned in Article 199 of the Constitution are
obviously meant for the purposes of regulation of the Courts jurisdiction and the
availability of "other remedy" is one of such limitations."
10. Learned Law Officers. appearing on behalf of the respondents, contended that the
documents, relied upon by the petitioners could not be construed as conclusive proof for
determination statu s of the petitioners, because some of the petitioners in connivance with the
officials in the Government of Balochistan have managed to prepare such documents and
obtained CNICs on the strength of such documents, while playing foul play. Admittedly, there
are certain controversial questions, which cannot be resolved in exercise of constitutional
jurisdiction as a thorough probe and investigation would be needed to set the controversy at rest,
particularly when a categoric allegation of foul play on the part y of the petitioners has been
levelled by the learned Law Officers. It is well settled by now that the superior Courts should not
involve themselves into investigation of disputed questions of fact, which necessitate taking of
evidence. This can more appro priately be done in the ordinary civil procedure for litigation by a
suit. The extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in
a case where the illegality of the impugned action of an executive or other authority can be
established without any elaborate enquiry into complicated or disputed facts. Controversial
questions of facts adjudication on which is possible only after obtaining all types of evidence in
power and possession of parties can be determined only by Courts having plenary jurisdiction in
matter and on such ground constitutional petitions are not maintainable. While invoking
constitutional jurisdiction it is mandatory for a party to establish a clear legal right which should
be beyond any doubt and controversy. In the light of alleged foul play, as pointed out by the
learned Law Officers, the legal right and entitlement of the petitioners are controversial and such
disputed questions of fact cannot be decided in constitutional jurisdiction. In this respect
reference can be made to the case of "Secretary to the Government of the Punjab v. Ghulam
Nabi, (PLD 2001 SC 415), wherein it was held that:
"It hardly needs any elaboration that "the superior courts should not involve themselves
into investigation of disputed question of fact which necessitate taking of evidence. This
can more appropriately be done in the ordinary Civil Procedure for litigation by a suit.
This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy
in a cas e where the illegality of the impugned action of an executive or other authority
can be established without any elaborate enquiry into complicated or disputed facts."
11. As has stated above, the cases of the petitioners have been sent to the concerned c ommittees
for the purpose of verification and no adverse orders have been passed against them so far, as
such, the petitions are pre -mature. Even otherwise, in case of any adverse order, the aggrieved
person(s) can file an appeal before the Federal Governm ent within the purview of section 18(3)
of the Ordinance of 2000, thus, on this ground also the petitions are not maintainable.
Thus, in view of the above, the success of the petitions is not visible, as such, the same, being
pre-mature are not maintaina ble and dismissed accordingly, with no order as to costs.
MWA/70 -BAL Petitions dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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