WIOAR AHMAD. J. Petitioner herein is a lady who claims to be citizen of Pakistan by birth and lineage. As per contents of her petition, a POR card had been recorded against her name in NADRA database, about which she came to know when she applied for grant of CNIC to her. Taking said grievance before this Court, she has prayed as follows:- "on acceptance of this Writ Petition an appropriate writ may kindly be issued:- i. To direct the respondents to treat and decide the petitioner and request for cancellation of POR Card according to the 2017 policy and letter dated 11 July 2017. ii. The petitioner may kindly be allowed to appear before any verification committee of the respondents for clearance of her name. iii. And the respondents may kindly be further directed for the speedy and efficacious disposal of the petitioner request for cancellation of their POR cards as per law and policy.
Any other remedy deems fit in the instant petition may also be granted."
2. In the comments, respondents have stated that all Afghan nationals who were residing in Pakistan have been registered as Afghan National, residing in Afghan nationals residing in Pakistan under a project launched by government of Pakistan in collaboration with Afghan commissioner ate and government of Afghanistan. It has further been submitted in the comments that petitioner had applied for grant of ACC card, which had accordingly been issued to her after due verification from representative of Government of Afghanistan deputed at the ACC center wherefrom ACC Card had been issued.
3. Arguments heard and available record perused.
4. Perusal of record revels that request of petitioner for issuance of CNIC was declined because she had earlier been issued Afghan Citizen Card (ACC). Petitioner has inter alia prayed that she may be allowed to appear before any Verification Committee of respondents for clearance of her name. In other words, petitioner wants to cancel the Afghan Citizen Card in her name and to claim her status as Pakistani national but her request has not been entertained at any forum. Petitioner has also annexed copies of CNIC of her mother and maternal uncle namely Shamroz. Besides, her birth certificate has also been annexed with instant writ petition. Petitioner is also making reliance on similar other documents, which can neither be verified nor considered for the subject purpose by this Court in exercise of its Constitutional jurisdiction, however, prayer of petitioner for allowing her to present her case before the competent forum of NADRA is taken for consideration here.
When the departmental representative of NADRA (Mr. Shahid Imran Gigyani) was confronted with this situation, he drew attention of this Court towards policy directives of NADRA for cancellation of Afghan Citizen Card issued on 17.08.2023. Said policy is annexed with CM No.560-P/2024 at page 4 (annexure-A), which is reproduced hereunder for ready reference:- "Policy on cancellation ot ACC and issuance of CNIC.
Backeround- Pursuant to Cabinet decision dated 7th February 2017, Ministry of States and Frontier Regions(SAFRON) in collaboration with Ministry of Refugees & Repatriation- MoRR(Afghanistan) conducted the registration exercise of undocumented Afghan citizens residing in Pakistan. The exercise was concluded on 28th Feb, 2018 within period of 8 months.
During ACC exercise, total 878,937 Afghan citizens (including children) were registered after validation by designated representative of MoRR (Government of Afghanistan. In total690, 785 Afghan citizen cards were printed and issued to eligible Afghan Citizens.
"2. Problem Statement; Afghan citizen Card holders are approaching to Government agencies for cancellation of ACC and issuance of CNIC being proclaimed Pakistani nationals.
Policy Direction: Inline of CCAR-Ministry of States & Frontier Regions SAFRON policy letter F.No.10/1VA-VE/CCAR/2020 (Vol-I9 dated 18th November 2022, following categories of ACC holder will be perused for cancellation of their card and issuance of CNIC.
Category I: The applicant at the time of acquiring ACC was an Afghan National, but his/her request for Pak citizenship was under consideration and not finalized.
Category II: The applicant at the time of acquiring ACC was an Afghan national but thereafter approved for Pak citizenship."
The cancellation individual basis. None of the family member and or any relative can pursue cancellation of his/her ACC card exclusive based on Nationality Status of Individual who would have attained NIC through his policy.
("Pakistan citizen ship Naturalization Certification Certificate that applicant has taken the Oath of Allegiance' to the Constitution of Pakistan within prescribed period under Section 6 of NA 1926 (Section 9 of Pakistan Citizenship Act 1951).
4.ACC Cancellation and CNIC Issuance Procedure.
Pursuant to Article 3-I & following procedure will be adopted for cancellation of ACC and issuance of CNIC: Such applicants will appear to Regional Verification Board physically and will be asked to surrender their ACC Card or submit an affidavit if ACC Card has already been surrendered with I&P Dte or lost. Bank deposit slip of Rs.5000/- as process charges. Citizenship/ Naturalization Certificate will be sent to Issuing authority for verification of genuineness and confirmation of oath of Allegiance.
Upon validation of Citizenship/Naturalization Certificate and evaluation of applicant, ACC will be cancelled and CNIC will be issued as per NADRA rules.
5. Ministry of States & Frontier Regions (Chief Commissionerate for Afghan Refugees) will be informed about the reasons for the cancellation of ACC Cards, legal status of the individual and date of issuance of CNICs after cancellation of ACC Card/updation of ACC Database. Original ACC (if available will be submitted to CCAR, Ministry of States & Frontier Regions.
6. ACC Card would be marked as Move to History, which will remove it from the active records, but not from the database as such.
7. ACC Card will be returned to the individual and ACC cancellation process would be stopped, if the Naturalization/Citizenship Certificate is found unauthentic or his claim as Pakistani National is not proved."
5. Mr. Shahid Imran Gigyani Assistant Director (legal) appearing on behalf of NADRA, argued that the policy was requiring that a person who wanted to cancel his ACC card should apply for grant of his naturalization certificate and upon validation of his/her citizenship, the ACC card would be cancelled and Pakistani CNIC could only be issued as per NADRA rules. According to him, petitioner was also required to have applied for grant of naturalization certificate.
6. It is case of petitioner before this Court that she has infact been a Pakistani national but against her name issuance of ACC card has been recorded in the NADRA database and therefore, she be allowed to present her case before a competent forum of NADRA for cancellation of her ACC card and thereafter to apply for her CNIC. It is not a stand alone case but it is common knowledge that a number of Pakistani citizens have registered themselves as Afghan refugees and obtained ACC cards mainly for the purpose of getting aid from UNHCR and other agencies in the shape of Ration etc. If a person is Pakistani citizen and he happens to have obtained ACC card then a window must be kept open by NADRA for cancellation of ACC card and issuance of CNIC to the person, who proves and establishes that he is actually a Pakistani citizen.
ACC card is also issued by NADRA, then its cancellation should also be lying with NADRA. Issuance of Pakistani CNIC is also with NADRA and it is not only a case of cancellation or issuance of cards but it also pertains to making necessary correction and alteration in NADRA database. Under Section 10 of the NADRA Ordinance 2000 (hereinafter referred to as Ordinance 2000), CNIC is being issued to a Pakistani citizen while under Section 11 of Ordinance 2000, Pakistan Origin Cards are issued and renewed or cause to be issued or renewed in prescribed manner on prescribed criteria, terms and conditions to the prescribed clause of foreigners. Section 12 of the Ordinance 2000 provides for issuance/renewal of overseas identity cards to prescribed class of citizens residing abroad or prescribed class of emigrants who have got themselves registered in prescribed manner. Section 13 of the Ordinance 2000 was providing power of authority to issue or renew cards to prescribed class of foreigners inside Pakistan. Section 17 of the ordinance 2000 was providing for surrender of cards, which is reproduced hereunder for ready reference;
17. Surrenders 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.
It is important to be noted that in above reproduced Section 17 of the Ordinance 2000, the word 'Cards' has been used. It provides for surrender of not only CNIC but also Pakistan Origin Card, overseas Identity Card and also alien registration card. Sub section 2 thereof was providing that the holder of card who ceased 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 the card so ceasing to be eligible or his card becoming invalid, as may be prescribed. Similarly Section 18 of the Ordinance was providing powers of authority or an officer authorized by him for cancelling, impounding or confiscation of cards. It is therefore clear that authority was well within its power to cancel any card issued by it. It is in this perspective that policy for cancellation of ACC card and issuance of CNIC has been issued through policy directives vide letter dated 17.08.2023 of NADRA Headquarter. The policy do not put a bar on cancellation of ACC cards. Nowhere such a bar exists in any law also. Acquiring of ACC Card may not be equated with renunciation of citizenship under Section 14(1) of the Pakistan Citizenship Act 1951 (hereinafter referred to as Act 1951). Said section being relevant is also reproduced hereunder for ready reference:- 14A.Renunciation of citizenship.
(1) If any citizen of Pakistan residing outside Pakistan, who is not a minor and
(a) is also a citizen or national of another country, or
(b) has been given by the competent authority of another country any valid document assuring him of the grant of the citizenship or nationality of that other country upon renouncing his citizenship of Pakistan, makes in the prescribed manner a declaration renouncing his citizenship of Pakistan, the declaration shall be registered by the prescribed authority; and upon such registration that person shall cease to be a citizen of Pakistan : Provided that, if' any such declaration is made during any war in which Pakistan may be engaged, registration thereof shall be withheld until the Federal Government otherwise directs.
(2) Where a male person ceases to be a citizen of Pakistan under subsection (1)
(a) every such minor child of that person as is residing outside Pakistan shall thereupon cease to be a citizen of Pakistan; Provided that any such child may, within one year of his completing the age of twenty one years, make a declaration that he wishes to resume the citizenship of Pakistan and shall upon the making of such declaration become a citizen of Pakistan: and
(b) every such minor child of that person as is residing in Pakistan shall continue to be a citizen of Pakistan.
In case in hand it could not be demonstrated before us by respondents that petitioner had ever made any declaration regarding renouncing her citizenship of Pakistan before competent authority of a foreign country. Therefore, mere fact of issuance of ACC card or entry to said effect in NADRA database cannot be treated at par with making declaration of renunciation of Pakistani nationality before competent authority of another country. ACC cards have been issued by NADRA in pursuance to a tripartite agreement amongst government of Pakistan, UNHCR and Afghan Government. Said arrangement was for registering all those Afghan refugees who were living in Pakistan in relevant time.
7. NADRA authorities could not annex any proof with their comments to the effect that petitioner had ever given a declaration of renunciation of Pakistani citizenship before any competent authority of another country. Entry in the database has been effected by NADRA authorities and such entry cannot therefore be deemed to be renunciation of citizenship of Pakistan. Same is also serious step and cannot be taken by implication. A person cannot be deprived of citizenship of this country merely on a dent of implication or ramification of having entry in NADRA database as Afghan citizen. Such an inference is not provided in any law by express words or necessary intendment and therefore this inference cannot be taken against a person who prove himself to be original citizen of this country. Requirement of Section 14-A of Pakistan Citizenship Act 1951, has not been obviously mandated during the process.
8. The policy for cancellation of ACC is required to be interpreted liberally so as to provide a forum for those Pakistanis who have obtained ACC cards and who wants cancellation thereof. The above reproduced policy in Rule 3 provides two categories i.e, the first being of those applicants who were afghan nationals at the time of acquiring ACC cards but his request for Pakistani citizen was under consideration and not finalized; second category being those afghan nationals or holders of ACC cards who had been approved for grant of Pakistani citizenship. Mr.Shahid Imran Gigyani, (legal representative of NADRA) argued that this policy can only be made applicable to the two categories referred in Para 3 of the policy and those applicants who claimed to be Pakistani national and in possession of ACC cards would not be able to apply for cancellation of ACC cards under Para 4 of the policy unless they applied for grant of naturalization certificate and citizenship of Pakistan. But while arguing the case in this manner learned representative of NADRA ignored Para 2 of the policy. In Para 2 of the policy the mischief has been stated in the following words; "Afghan citizen Card holders are approaching to Government agencies for cancellation of ACC and issuance of CNIC being proclaimed Pakistani nationals.
("emphasis supplied.)"
Above reproduced Para makes it amply clear that the reason for issuing such directions was that various Pakistani nationals had been approaching government agencies for cancellation of ACC cards and issuance of CNIC. Exactly same is the case of petitioner as argued at the bar. When we keep the mischief and main reason for policy direction, we cannot leave the category of those Pakistani citizens who had wrongly obtained ACC cards, to remain remediless. The policy also aims to provide them a forum. Non mentioning them specifically in Para 3 of the policy is therefore an omission on the part of policy framers which should be rectified at their end.
9. So far as the procedure provided in Para 4 is concerned, the bullet points provided therein should be read disjunctively. The applicants who claim to be Pakistani nationals will only have to appear before Regional Verification Board physically and should surrender their ACC cards or submit the requisite affidavit. They will also be bound to deposit the requisite fee of Rs.5000/- as processing charges. So far as 3rd and 4th requirement of obtaining naturalization certificate is concerned, same would only be applicable in case of those applicants who are Afghan citizens and desirous of obtaining Pakistani citizenship but said requirement cannot be applied to those persons or holders of ACC who are infact Pakistani citizen by birth and lineage. No Pakistani citizen can be compelled to apply for grant of naturalization certificate under any policy. Any policy condition requiring a Pakistani citizen to apply for grant of naturalization certificate would be violation of Section 3 of the Citizenship Act 1951,which provides as follows:-
3. Citizenship at the date of commencement of this Act. At the commencement of this Act every person shall be deemed to be a citizen of Pakistan
(a) who or any of whose parents or grandparents was born in the territory now included in Pakistan and who after the fourteenth day of August, 1947, has not been permanently resident in any country outside Pakistan; or
(b) who or any of whose parents or grandparents was born in the territories included in India on the thirty first day of March,1937, land who, except in the case of a person who was in the service of Pakistan or of any Government or Administration in Pakistan at the commencement of this Act, has] or had his domicile within the meaning of Part II of the Succession Act, 1925 (SIX of 1925), as in force at the commencement of this Act, in Pakistan or in the territories now included in Pakistan ; or
(c) who is a person naturalised as a British subject in Pakistan; and who, if before the date of the commencement of this Act he has acquired the citizenship of any foreign State, has before that date renounced the same by depositing a declaration in writing to that effect with an authority appointed or empowered to receive it; or
(d) who before the commencement of this Act migrated to the territories now included in Pakistan from any territory in the Indo Pakistan subcontinent outside those territories with the intention of residing permanently in those territories.]
10. The policy can only be saved by reading parts of Para 4 disjunctively and in order to save part of policy from being declared to be ultra vires of the above act. It is read in the manner that the requirements of naturalization certificate shall not be valid in case of Pakistani citizens and it shall only be valid in case of Afghan citizens, who are holders of ACC cards and desirous of obtaining Pakistan citizenship card. The petitioner who is claiming to be a Pakistan citizen and whose entries has been effected as Afghan citizen by issuing ACC card, shall also apply to the Regional Verification Board and the board shall consider her case for cancellation of ACC card and then issuance of CNIC in accordance with law and rules of NADRA after verification of her claim that she has infact been a Pakistani citizen. After the petitioner applies to Regional Verification Board, her case shall be finalized within a period of three (03) months and in case claim of petitioner is not found justified then a written order shall be passed in the matter explaining the reasons thereof in detail. In order to curtail future litigation respondents are also directed to further clarify their policy directions and issue additional instructions to their subordinate offices.
11. For what has been discussed above, instant writ petition is partially allowed to the above stated effect.