WIQAR AHMAD. J. This judgment is directed to dispose of Writ Petition No.2469-P/2022 alongwith WP No. 3195-P/2023, WP No. 3197-P/2023, WP No. 3198-P/2023, WP No.3271-P/2023, WP No.3309- P/2023, WP No.3383-P/2023, WP No.3384-P/2023, WP No.3385-P/2023, WP No.3965-P/2023, WP No.3966-P/2023, WP No.3999-P/2023, WP No.4797-P/2023, WP No.5426-P/2023, WP No.5452-P/2023, WP No.5488-P/2023, WP No.5489-P/2023, WP No.5514-P/2023, WP No.4651-P/2023, WP No.4823- P/2023, WP No.1390-P/2023, WP No.2026-P/2023, WP No.2940-P/2023, WP No.3010-P/2023, WP No.3237-P/2023, WP No.3483-P/2023, WP No.3716-P/2023, WP No.3782-P/2023, WP No.3949-P/2023, WP No.4064-P/2023, WP No.4202-P/2023, WP No.4327-P/2023, WP No.4412-P/2023, WP No.4413- P/2023, WP No.4434-P/2023, WP No.4489-P/2023, WP No.4552-P/2023, WP No.4653-P/2023, WP No.4658-P/2023, WP No.4666-P/2023, WP No.4667-P/2023, WP No.4728-P/2023, WP No.4769-P/2023, WP No.4770-P/2023, WP No.4777-P/2023, WP No.4780-P/2023, WP No.4790-P/2023, WP No.4791- P/2023, WP No.4794-P/2023, WP No.4799-P/2023, WP No.4801-P/2023, WP No.4828-P/2023, WP No.4838-P/2023, WP No.4860-P/2023, WP No.4875-P/2023, WP No.4887-P/2023, WP No.4888-P/2023, WP No.4889-P/2023, WP No.4896-P/2023, WP No.4910-P/2023, WP No.4918-P/2023, WP No.4924- P/2023, WP No.4925-P/2023, WP No.4926-P/2023, WP No.4927-P/2023, WP No.4932-P/2023, WP No.4935-P/2023, WP No.4937-P/2023, WP No.4944-P/2023, WP No.4947-P/2023, WP No.4953-P/2023, WP No.4961-P/2023, WP No.4962-P/2023, WP No.4963-P/2023, WP No.4964-P/2023, WP No.4965- P/2023, WP No.4966-P/2023, WP No.4968-P/2023, WP No.4969-P/2023, WP No.4970-P/2023, WP No.4975-P/2023, WP No.4976-P/2023, WP No.4979-P/2023, WP No.4980-P/2023, WP No.4996-P/2023, WP No.5019-P/2023, WP No.5033-P/2023, WP No.5384-P/2023, WP No.5038-P/2023, WP No.5047- P/2023, WP No.5049-P/2023, WP No.5053-P/2023, WP No.5062-P/2023, WP No.5063-P/2023, WP No.5064-P/2023, WP No.5066-P/2023, WP No.5067-P/2023, WP No.5068-P/2023, WP No.5100-P/2023, WP No.5104-P/2023, WP No.5105-P/2023, WP No.5106-P/2023, WP No.5123-P/2023, WP No.5124- P/2023, WP No.5125-P/2023, WP No.5127-P/2023, WP No.5128-P/2023, WP No.5129-P/2023, WP No.5186-P/2023, WP No.5190-P/2023, WP No.5197-P/2023, WP No.5206-P/2023, WP No.5207-P/2023, WP No.5208-P/2023, WP No.5212-P/2023, WP No.5229-P/2023, WP No.5269-P/2023 and WP No.5273- P/2023.
2. Grievances of petitioners are mostly similar in nature therefore same are aimed to be disposed of through this common judgment. In all these cases one of the spouse has been Pakistani citizen and on the basis thereof the other spouse has been seeking issuance of Pakistan Origin Card (POC). In some of the cases prayer for grant of Pakistani nationality on the basis of marriage has also been made besides making prayer for issuance of Pakistan Original Card. Registration of their marriages and issuance of proper Marriage Registration Certificate as well as registration of offspring have also been prayed in some of the connected petitions.
3. Learned counsel for petitioners have mainly contended that one of the spouse being Pakistan citizen, the other was entitled to grant of Pakistan. Origin Card under Section 11 of the National Database and Registration Authority Ordinance 2000 (hereinafter referred to as NADRA Ordinance).
Learned counsel for petitioners also relied on the National Database and Registration Authority (Pakistan Original Card) Rules 2002 (hereinafter referred to as POC Rules) and contended that the eligibility criteria provided in Rule 4 was to the effect that foreigner should have married to a Pakistani citizen and such marriage should be intact on the date of issuance of POC and that such foreigner should not be a citizen of India or a State not recognized by Pakistan or an enemy country. Learned counsel for petitioners contended that other stringent conditions that were put in place by NADRA, were not provided in the rules and that conditions like requiring applicant to apply alongwith a Passport of foreign country having valid visa, were irrational and illogical in the circumstances that Afghan citizens have been living in this country for more than four decades and they have contracted marriages with Pakistani citizens and that out of their wedlocks, children had also been born. Learned counsel further contended that these persons while trying to get passport from Afghanistan, faced much difficulties for the reasons that they have been living in Pakistan for so long a time (and bringing up their families here due to which) that they have practically merged in the society of Pakistan and have severed their ties with Afghanistan. All the learned counsel for petitioners were of the view that placing of such stringent conditions on Afghan citizens (in particular), were not logical, reasonable and not allowed under the POC Rules.
4. Learned Deputy Attorney General contended in rebuttal that the first refugee influx from Afghanistan had taken place in the year 1979; second in the year 1997 and the third in the year 2001, firstly due to Soviet aggression while second and third refugee influxes were due to internal wars among various Afghan factions. Learned DAG went on submitting that first refugee census was held in the year 2005 and thereafter proof of Registration Cards (hereinafter referred to as POR Card) had been issued by NADRA to the registered Afghan refugees. The refugee census and issuance of POR Cards were made possible because of collaboration in the shape of a tripartite agreement among UNHCR, Commissioner Afghan Refugees and NADRA. He also contended that in the year 2018 further registration of leftover Afghan refugees were conducted in collaboration with UNHCR and Commissioner Afghan Refugees where-under also a large number of Afghan refugees had been registered. After narrating this history, learned DAG contended that unless a person holds a valid passport of Afghanistan it could not be ascertained that said person was Afghan citizen and therefore, his application could not be entertained by NADRA.
5. Director legal NADRA submitted copy of manual application form (which was allowed to be placed on record of instant petition) and contended that all persons desirous of obtaining POC may apply on such manual form. When asked, the Director legal explained that Columns No.20 and 21 requiring details of passport of foreign country, were mandatory fields and unless same were filled validly, his request could not be entertained. In other words if a person is not in possession of a valid passport of foreign country having valid visa of Pakistan, his request cannot be entertained by NADRA in accordance with its policy and instructions. He also submitted copy of a letter of Ministry of Interior dated 2.4.2013 and contended that all those persons who were desirous of obtaining POC and belonging to India or Afghanistan had been placed in list 'B' countries and are supposed to be referred to security agencies for the purpose of security clearance. Learned Director added that after receipt of report of security clearance a decision in this respect is to be made by NADRA authorities.
6. We have heard arguments of learned counsel for the parties and perused the record.
7. Perusal of record reveals that a number of prayers have been made in connected writ petitions but first we would like to discuss issuance of Pakistan Origin Cards (POC). Section 11 of the NADRA Ordinance was providing for issuance of POC in the following words: "11. Pakistan Origin Cards. The authority shall issue or renew or cause to be issued or renewed in the prescribed manner and on prescribed criteria, terms and conditions, cards to such prescribed class of foreigners and such prescribed class of citizens with dual nationality who have got themselves registered in the prescribed manner, in such form and with such periods of validity thereof upon payment of such fee in such form and manner as may be prescribed, to be called Pakistan Original Cards and receive applications for registration therefor in the prescribed form. "
8. Government of Pakistan has also framed rules under Section 44 of the NADRA Ordinance which are called as the National Database and Registration Authority (Pakistan origin Card) Rules 2002 (hereinafter referred to as POC Rules). For the purpose of instant case where POC are being claimed by foreign nationals on the basis of marriage with Pakistani citizens, the eligibility provided in Rule 4 is relevant. For sake of reference Parts of sub rule 1 & rule 5 of Rule 4 of POC Rules are reproduced hereunder for ready reference:- "4. Eligible foreigner of Pakistan origin:-
(1) A person shall be an eligible foreigner of Pakistan origin if
(a) he is a foreigner; and
(b) he had been a citizen of Pakistan at any time during his life.
Provided that he:
(i) .............
(ii) .......... .
(iii) ..........
(iv) ..........
(v) .......... ..
(vi) .......... .
(vii) ..........
(2) ............
(3) .......... .
4. Eligible foreigner of Pakistan origin.- (5) A foreigner who is married to a citizen of Pakistan shall, till the time he or she remains married to such citizen, also be an eligible foreigner of Pakistan origin: Provided that in case the citizen of Pakistan to whom such foreigner is married dies during the subsistence of their marriage, such foreigner shall continue to be an eligible foreigner of Pakistan origin till the time he or she contracts a second marriage: Provided further that such foreigner married to a citizen of Pakistan is -
(1) not a citizen or national of India;
(ii) not a citizen or national of a state or country not recognized by Pakistan; and
(iii) not a citizen of any enemy country: Provided also that the Federal Government may, in special extraordinary circumstances and upon an application made in this behalf by the concerned person, allow a foreigner married to a citizen of Pakistan not otherwise eligible under the second proviso, to be registered for an issued a card as an eligible foreigner of Pakistan origin and such person shall, upon issuance of the card and till the expiry or early termination of validity thereof for a reason other than such person's ineligibility cured under this proviso, be treated as an eligible foreigner of Pakistan origin for all purposes under these rules."
9. For the purpose of claiming POC Cards on the ground of entering into marriage of a Pakistani to a foreigner, the following essential conditions may be deducted from Rule 4 of the POC Rules; a. The applicant should be a foreigner; b. He/she should have validly married to a Pakistani citizen and the marriage should be intact at the time of applying as well as issuance of POC Card; c. He is a citizen of a country other than India, a state not recognized by Pakistan as well as not a citizen of an enemy country.
The proviso has however provided that Federal Government would have the power to relax the condition of eligibility and allow POC to such a foreigner who is not otherwise eligible under the Rules. An eligible family member of an eligible foreigner of Pakistan origin, any of the spouse, real parents or grandparents; real children or grandchildren of the eligible foreigner of Pakistan origin may also apply for grant of POC under Rule 5 of POC Rules. Rule 6 was providing that a person is only be able to hold and use POC so issued to him so long so he continues to fulfill the eligibility criteria applicable to him and the moment he looses his eligibility or same expires it would not remain valid. Rule 7 of POC Rules aims at providing a form for making application for grant of POC, which has been prescribed to be specified by the Federal Government from time to time. Same rule was also providing power of the authority i.e, NADRA to issue instructions for the documents, which should accompany the application. Manner of receipt of the application has been provided in Rule 8. Rule 9 is also relevant for our present discussion and same is reproduced hereunder for ready reference: "9. Manner of registration, inquiry and evidence:- (1) The Authority shall establish and maintain or cause to be established and maintained a registration and database system for the purposes of these rules in the manner deemed fit by the Authority alongwith an automated computerized system for recording and verification of exit and entry of holders of card at such ports or places in Pakistan as are deemed necessary for the purpose by the Authority.
(2) Before registering an applicant under these rules, the Authority may make any inquiry or require any evidence, documentary or otherwise, from an applicant as it may deem fit in respect of the eligibility of an applicant or such other matters as are deemed necessary for the purposes of these rules.
(3) Without prejudice to the generality of the foregoing power of making inquiry or requiring evidence under sub rule (1) the Authority may require evidence in respect of the following, namely:-
(a) In the case of an eligible foreigner of Pakistan origin, his foreign nationality or citizenship and fulfillment of other criteria and requirements as laid down in, and applicable to him under, these rules; and
(b) in the case of an eligible family member, his relationship with the concerned eligible foreigner of Pakistan origin; proof of eligibility of the concerned eligible foreigner of Pakistan origin if he is not himself applying for registration under these rules; and fulfillment of other criteria and requirements as laid down in, and applicable to him under these rules.
(4) Upon being satisfied as to an applicant being eligible for registration for and issuance of a card under these rules, the Authority shall register the applicant in the registration and database system established pursuant to sub-rule (1)."
Similarly Rule 13 is also relevant and same is also reproduced hereunder for ready reference:
13. Power to refuse registration or issuance of card:- Notwithstanding anything to the contrary contained in these rules, any person who is otherwise eligible for registration and issuance of a card, may be refused registration, or issuance of a card, if in the opinion of the Authority, the registration, or issuance of a card to such person is prejudicial to the sovereignty, integrity, security, or defence of Pakistan or any part thereof or to friendly relations of Pakistan with foreign states or countries, or to the maintenance of law d order in Pakistan or any part thereof or to the public interest."
10. Rules 9 and 13 are reproduced in the context of present controversy which revolved around conditions put in place by respondents in their SOPs particularly the condition requiring possession of valid passport of a foreign country having valid visa at the time of applying for issuance of POC as well as security clearance mandated through instruction letter dated 2.4.2013 of Ministry of Interior referred above. In this respect one of learned counsel for petitioners also relied on Para 34 of the judgment of Hon'ble Supreme Court of Pakistan rendered in case of "Muhammad Ibrahim Shaikh Versus Government of Pakistan through Secretary, Ministry of Defence and others" reported as PLD 2019 SC 133 and contended that when an unreasonable and unauthorized condition had been found by the Hon'ble Supreme Court of Pakistan, available in the rules (requiring that marriage should have lasted with 5 years) same had been struck of and declared ultra-wires. In same vein he requested that unreasonable condition of producing a valid visa and security clearance should be struck down. We have considered this aspect of the matter as same happened to be the main bone of contention in all these cases. In normal circumstances, requiring a valid passport having valid visa of Pakistan is a condition which appears to be not only reasonable but quite easy for a person to apply for Pakistan Origin Cad but in case in hand where most of the petitioners have married Afghan citizens decades ago and they have also been living as families in Pakistan, having children out of the wedlock, this condition appears to be a harsh one. Compelling husband of a Pakistan citizen and father of other Pakistani citizen (being his sons) to obtain a passport from Afghanistan and get visa so as to continue family life with his family and apply for POC, exhibit and demonstrate harshness in the standing instructions of respondents.
While discerning harshness in the decision, history of exodus from Afghanistan to Pakistan and history of people living in Pakistan alongwith their spouses, should not be lost sight of. There may be people who have severed their ties with Afghanistan having families in Pakistan and living with them for the last four decades.
11. The condition of requiring valid Passport and Visa of Pakistan cannot be found as a mandatory requirement under POC Rules or anywhere else but at the same time the lawful authority of NADRA to require proof from a foreigner regarding the country of his nationality, cannot be denied as well.
Such power of the authority i.e, NADRA has very much been prescribed in Rule 9 reproduced above as well as in Rules 7, 8 and 13 of the POC Rules. As stated earlier requirement of possessing a Passport of foreign country alongwith valid visa of Pakistan is not harsh in rest of cases but so far as Afghan refugees are concerned, it was found harsher for the reason of their extraordinary long stay in Pakistan, in most of the cases. The requirement of valid Passport and visa is also not mandatory under POC Rules. Solution of the problem lies in considering the cases of applicants on case to case basis. The authority is also having discretion to consider cases of the applicants who possess the basic eligibility criteria as enshrined in Rule 4 of POC Rules. For satisfying itself, further record regarding the fact whether the applicant is actually a foreigner having Afghan nationality, the authority may consider the passport issued by said country but at the same time, the authority may also consider other proofs regarding the fact that the person was belonging to Afghanistan and was having said nationality (like in most of these cases). It is not that passport alone can be indicative of the fact that the person was belonging to a particular country. There are people who have already been registered by NADRA in their own database having proofs of registration cards.
There are also people who have been registered by NADRA themselves as Afghan citizen having ACC Cards. There can also be other proofs that the person was belonging to Afghanistan originally and he had married a Pakistani woman or a woman of Afghanistan had married Pakistani man.
While considering this proof of nationality, the longevity of stay may also be considered besides, the number of kids and their ages which have been born out of the wedlock. This can simply be done if column 20 and 21 in the manual application form for issuance of Pakistan Origin Card are converted from mandatory fields to optional. Instead NADRA may require other documents in line with above discussion made and after satisfying itself may make a decision regarding grant or refusal of Pakistan Origin Card. In case of refusal such decision must contain reasons which should be conveyed immediately to the applicant and his family.
12. This way not only an eligible foreigner would be dealt fairly but a citizen of Pakistan who happened to be a spouse of such a foreigner would also be saved from much hardship. It is equally a right of the spouse who happens to be Pakistani citizen to save his or her family from disintegration. He or she had a right to be dealt with in accordance with law under Article 4 of the Constitution of Islamic Republic of Pakistan 1973. Besides Article 35 of Constitution of Islamic Republic of Pakistan 1973, was providing a principle for framing policies which is reproduced hereunder for ready reference: Protection of family, etc.
35. The State shall protect the marriage, the family, the mother and the child.
13. Protection of family has not only been considered important by framers of Constitution while encapsulating it in the chapter principles of policy but same is also basic unit of a society whereupon the building of Islamic society is built. In so many verses of Holy Quran and Ahadees of the Holy Prophet (PBUH) great stress have been laid on protection of institution of marriage, family and integration of families. Every husband has a right to the company of his wife and every wife has a right to the company of her husband and so is the case with children. All the family members have duties towards others and corresponding rights and in no system of administration of justice it can be denied that a family may be allowed to be segregated just because one spouse happens to be a foreign national. Here we may also quote relevant articles of Universal Declaration of Human Rights as well as International Convention on Civil and Political Rights, 1966 (ICCPR), which are reproduced hereunder for ready reference:- I. "Universal Declaration of Human Rights: Article 16.
Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
II. International Convention on Civil and Political Rights, 1966 (ICCPR).
Article 23.
The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
2 ........
3 ........
4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children."
Hon'ble Sindh High Court while giving its judgment in case of "Messrs Najib Zarab Limited Versus Government of Pakistan through the Secretary, Ministry of Finance, Islamabad and 4 others" reported as PLD 1993 Karachi 93 has inter alia held that Rules of International Law should be accommodated in the Municipal Law unless such rules run in conflict with the municipal law.
14. It was after realizing this basic human need and important human right that legislature has provided a right for foreigners to the issue and grant of Pakistan Origin Card under Section 11 of the NADRA Ordinance and subsequently government of Pakistan has also made POC rules where also care has been taken not to impose stringent, harsh and unreasonable conditions. The instruction issued by respondents should also have been issued while keeping in view the purpose and object, with which the legislature has provided rights of foreigner for grant of Pakistan origin Card and government of Pakistan had also enacted the Pakistan Origin Card Rules. While seeking guidance therefrom, this Court is also of the opinion that the condition of requiring valid passport with valid visa of foreign country from foreigners who happens to have been living in Pakistan for decades alongwith his family members, raising his family members and integrating in this society, is found to be harsh, arbitrary, illogical and unreasonable. Same may no doubt be asked for and received but it should not be made a mandatory condition so as to declare non holder of such a passport with visa to be ineligible for applying for Pakistan Origin Card. No such eligibility condition has been available under the Rules and NADRA on the dent of its own instructions would not be able to place such a mandatory stringent condition. Reliance may here be placed on the observations of Hon'ble Supreme Court of Pakistan rendered in case of "Muhammad Ibrahim Shaikh Versus Government of Pakistan through Secretary, Ministry of Defence and others" reported as PLD 2019 SC 133, where the Hon'ble Supreme court of Pakistan had declared such an unauthorized condition null and void;
34. While considering the POC Rules with respect to spouses of Pakistani citizens/ foreigners of Pakistani origin, an ancillary matter came to this Court's attention. According to Rule 4(5) of the POC Rules as originally promulgated, foreign spouses were allowed to be issued POCs. The said Rule read as under:-"
4. Eligible foreigner of Pakistan origin.- (5) A foreigner who is married to a citizen of Pakistan shall, till the time he or she remains married to such citizen, also be an eligible foreigner of Pakistan origin: Provided that in case the citizen of Pakistan to whom such foreigner is married dies during the subsistence of their marriage, such foreigner shall continue to be an eligible foreigner of Pakistan origin till the time he or she contracts a second marriage: Provided further that such foreigner married to a citizen of Pakistan is
(i) not a citizen or national of India;
(ii) not a citizen or national of a state or country not recognized by Pakistan; and
(iii) not a citizen of any enemy country: Provided also that the Federal Government may, in special extraordinary circumstances and upon an application made in this behalf by the concerned person, allow a foreigner married to a citizen of Pakistan not otherwise eligible under the second proviso, to be registered for an issued a card as an eligible foreigner of Pakistan origin and such person shall, upon issuance of the card and till the expiry or early termination of validity thereof for a reason other than such person's ineligibility cured under this proviso, be treated as an eligible foreigner of Pakistan origin for all purposes under these rules."
However, the said rule was amended vide notification No.4/2/2012- NADRA dated 30.12.2015 according to which issuance of POCs to foreign spouses of Pakistani citizens was discontinued.
Thereafter, considering the immense difficulties faced by foreign spouses of Pakistani citizens, the Ministry of Interior forwarded a summary for the Cabinet dated 20.02.2018 recommending therein (in paragraph No.5) withdrawal of the aforementioned notification along with restoration of the corresponding rule(s). The Cabinet vide its decision considered the aforesaid summary and approved the proposal contained in paragraph No.5 thereof, resultantly the said notification was withdrawn, and the rules were restored to their previous position. Despite this, the Ministry of Interior vide letter No.4/2/2012- NADRA dated 08.03.2018 introduced the eligibility condition of five years of marriage in violation of the approval of the Federal Government (Cabinet) which had stipulated that the rules had been restored to the previous position as mentioned above. Since the power to make rules lies only with the Federal Government as per Section 44 of the NADRA Ordinance, the introduction of the condition of five years marriage by the Ministry of Interior is ultra vires, and therefore hereby set aside."
This Court while giving its earlier judgment rendered in Writ Petition No.1058-P/2020, has also borrowed a principle for striking down administrative decisions on the ground of irrationality from the case of "Wednesbury Corporation" and held as follows in respect of considering ground of irrationality for striking down decisions of administrative bodies; "Irrational and illogical decisions of a District Authority would no doubt furnish a ground for interference of this Court in exercise of its constitutional jurisdiction. In the case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [(1948) 1 KB 223], the principle of irrationality or inherent unreasonableness had first been enunciated in British jurisdiction. Lord Green M.R. had observed in his judgment given in said case that it might be possible to say that although the local authority had kept within the four corners of the matter which they ought to consider, they had nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. It was further observed that in such a case the Court could interfere in the administrative decision. In the subsequent case of G.C.H.O. [(1985) AC 3751, Lord Diplock had observed; "By irrationality' I mean what can now be succinctly referred to as `Wednesbury unreasonableness' ... It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system."
The test of complete unreasonable or perverse decision making laid down in the Wednesbury Corporation case was further developed in the subsequent judgments. In the case of Lonrho plc v. Secretary of State for Trade and Industry (1989 1 WLR 525), the decision of Secretary of State to withhold publication of a report by inspectors appointed by him to investigate alleged fraud in connection with a take-over bid and not referring a merger to the Monopolies and Mergers Commission was found unreasonable and reversed.
Similarly, in the case of Wheeler v. Leicester City Council [(1985) AC 1054], a Council resolution to ban Leicester Rugby Football Club from its property for its failure and putting pressure upon three of its players for preventing them to participate in a tour of South Africa, had been held to be irrational and unreasonable in the Wendesbury sense.
6. In our jurisdiction also similar principles of judicial review on the ground of irrationality or unreasonableness had been adopted. In the case of The Montgomery Flour And General Mills Ltd., Montgomery vs. the Director, Food Purchases, West Pakistan and another reported as PLD 1957 (W.P.) Lahore 914, an order of departmental authority, reducing sugar quota under the Sugar and Sugar Products Control Order 1948, on the ground of unsettled money claim, had been set aside. Plea of the administrative authority that issue of a quota was a matter of desertion which could be withheld or suspended at any time, was not accepted.
15. We have also inter alia considered one of submissions of learned Deputy Attorney General that a person residing in Pakistan without valid visa is an illegal immigrant, who is liable to immediate deportation under the Foreigners Act. In this respect it is important to note that government of Pakistan had already accorded status of refugees to earlier Afghan migrants and they have been registered in the year 2005 (as well as subsequently in 2018) and proof of registration Cards as well as Afghan Citizenship Cards have also been issued to them by NADRA under the authority of Federal Government. For the purpose, relevant provisions of Foreigners Act 1946 have also been amended by legislature and in this respect Section 14-D of the Foreigners Act has been substituted by way of Act No.XX of 2016. The newly substituted Section 14-D is also reproduced hereunder for ready reference; 14-D. Registration of illegal immigrants ...(1) any foreigner who, before commencement of this Act, has no permission to stay in Pakistan shall for registration be required to make application on the format and in the manner as may be prescribed and shall be registered on that application by the National Database and Registration Authority established under the National Database and Registration Authority Ordinance 2000 (VIII of 2000).
(2) The Federal Government may permit a foreigner, registered under sub-section (1) , to work in Pakistan at such place, for such period and on payment of such fee as may be prescribed."
The effect of substitution of section 14-D was that legal cover had been extended to registration of earlier refugees on one hand while validity had also been extended to stay of illegal immigrants who had entered Pakistan before commencement of the amendment act on 29.04. 2016. There thus remains no doubt that the immigrants entering Pakistan before 29.04.2016 were having their stay legalized in Pakistan on the dent of abovementioned amendment. It cannot therefore be argued that all the immigrants that had entered Pakistan before 29.04.2016 were illegally staying in Pakistan and liable to outright deportation. However, discretion of Federal government to permit registered foreigners to work in Pakistan at specific places for specific periods had however been reserved.
16. So far as requirement of security clearance is concerned, there is nothing wrong with it. Such a security clearance is not only need of the day but power of the authority to call for such a security is also available in Rule 13 of POC Rules, beside Rule 9 and Rule 7 thereof.
17. So far as issuance of Form Bai to children are concerned, learned Director Legal NADRA stated at the bar that when one of the spouses happened to be Pakistani citizen then request for registration of the children were not being denied but such spouse were required to first update their marital status. Learned counsel for petitioners were however complaining that at the NADRA registration centers, request of their clients were not being entertained. We have also been coming across such complaints in other cases. It is therefore directed through this judgment again that in all the cases where one of spouse are Pakistani citizen, his or her offsprings shall be registered without creating any hindrance. Marriages of Pakistani citizens with foreigners shall also be registered seamlessly and the process should be made easier by concerned respondents. It is also directed that Chairman and Directors General, NADRA shall issue fresh instructions to all the registration centers in compliance of this judgment.
18. So far as prayer of petitioners regarding grant of nationality is concerned, for said purpose they would be at liberty to apply to concerned forum i.e, Government of Pakistan through Ministry of Interior, on the prescribed form and format. All these writ petitions are partially allowed to the effect that requirement of valid passport with valid visa shall not be considered mandatory in case one of the spouse is Pakistani and another claims to be a foreigner. It is however clarified that NADRA authorities would be fully competent to ask for further proofs and details and after satisfying itself regarding the fact that the person fulfills mandatory eligibility requirements of Rule 4 of POC Rules, and that he or she is actually an Afghan citizen, having security clearance, the POC shall be issued otherwise the request shall be rejected but in writing and such decision shall be conveyed to the applicant at the earliest. Cases of all the petitioners in these connected petitions shall be considered by NADRA and appropriate orders in all these cases shall be made and conveyed to the concerned applicants after affording them opportunity of hearings and making up deficiencies if any.