DETAILED JUDGEMENT OF SHC REGARDING POWERS OF NADRA U/S 18 & 23 OF NADRA ACT
2017 PLD Sindh 586
IN THE HIGH COURT OF SINDH AT KARACHI
Present:
Mr. Justice Nadeem Akhtar
Mr. Justice Fahim Ahmed Siddiqui
C.P.No. D-361 of 2017
Muhammad Umar.……………………...……………..Petitioner
Versus
Federation of Pakistan and others……………..….Respondents
Date of Hearing : 02.02.2017
Mr. Shahab Sarki, advocate for the petitioner
Ch. Muhammad Farooq and Ms. Samina Iqbal, advocates for NADRA
Mr. Muhammad Aslam Butt, DAG
J U D G M E N T
.-.-.-.-.-.
FAHIM AHMED SIDDIQUI, J: The petitioner has filed this Constitutional Petition regarding the impugned notice dated 24-11-2016 under Section 23 of National Database and Registration Authority Ordinance, 2000 (hereinafter referred to as the ‘NADRA Ordinance’) issued to him by the respondents (NADRA) with intimation that his card is temporarily blocked on account of incorrect information furnished for obtaining Computerized National Identity Card (hereinafter referred as ‘CNIC’).
2. It is the case of the petitioner that he belongs to the indigenous communities and is permanently settled at tehsil Chaman, district Pashin of Baluchistan since the time of his forefathers and long before the partition. In his native area, petitioner and his brother enjoyed the legacy of their father and owned landed property in their names and his pedigree chart till times of his ancestors is maintained there by revenue authorities. Manual National Identity Card (MNIC) was issued to him by the Ministry of Interior, Government of Pakistan in 1974 which was renewed in 1993 on the basis of Local Certificate of revenue authorities. Subsequently, CNIC was also issued in his favour by the respondent. Later he shifted to Karachi and established his business. As a businessman, he is a regular taxpayer and he owned a house in Karachi with the title documents in his name and owned vehicles registered at Karachi. It is also the case of petitioner that he received the impugned notice dated 24-11-2016 under Section 23 of NADRA Ordinance with direction to appear before the officer of NADRA at Quetta. It was mentioned in this notice that his CNIC was blocked therefore he rushed to NADRA office where the concerned Assistant Director was satisfied by looking at his documents and intimated him that his data would be restored. Later on, when the petitioner tried to open a bank account, he came to know that his CNIC is still blocked, as NADRA is reluctant to unblock his CNIC, the instant petition is filed.
3. After service of notice, the respondents filed their statement in which they have verified that CNIC of petitioner is blocked in 'F-category' (suspect category), and petitioner was advised to appear before the concerned officer of NADRA in respect of his grievance.
4. We have heard the arguments advanced by the learned counsel for the petitioner and the learned counsel for the respondents as well as learned DAG.
5. It is contended by the learned counsel for the petitioner that blocking of the petitioner’s CNIC is without any just cause and reason. According to him, the respondents do not have authority under the law to block CNIC of petitioner and the act of respondents is illegal as the same is in violation of the fundamental rights of the petitioner. He submitted that by blocking CNIC, the respondents actually blocked all the activities of petitioner and he is unable to carry out his routine business.
6. Contrariwise to above, the learned counsel for the respondents took the stance that the impugned notice issued by NADRA is within the four corners of law and the same should be complied with by the petitioner. According to him, NADRA authorities are fully empowered under the law to block CNIC on suspicions. He drew attention of this Court towards Section 18 and Section 23 of NADRA Ordinance and submitted that the law has given power to cancel, confiscate and impound CNIC issued to a person. However, in response to a query, he frankly admitted that there is no clear provision under the statute, which authorizes NADRA to block a CNIC. The learned DAG adopted the arguments advanced by the learned counsel for the respondents. However, his stance was that under the General Clauses Act, NADRA authorities can take any action deems fit including blocking of CNIC.
7. We have heard the rival contentions raised before us and perused the record and relevant statutory provisions with the valuable assistance rendered by the learned members of bar and learned DAG. The grievance of petitioner is that NADRA has not only issued the impugned notice to him but also blocked his CNIC. CNIC is an essential document for a citizen, its significance is enumerated in section 19 of the NADRA Ordinance. Section 19(1) of the Ordinance prohibits issuance of passport, permit or other travel documents for going out of Pakistan to a citizen who has attained the age of eighteen years but does not possess or produce a CNIC. According to Section 19(2) any officer charged with the duty of conducting the poll at an election may, for the purpose of satisfying himself as to the identity of any person, require such person to produce his CNIC. Section 19 (4) contemplates that CNIC issued to a card-holder shall be proof of his or her identity and verifiable from the contents of such card for any purpose for which his or her identity is required to be established. This means that identity of a citizen depends upon the contents of the CNIC issued to him and the entries thereof are the proof of identity of a person. It is also important to point out that nearly all the government and private organizations have framed rules, issued circulars and/or displayed notices for production of CNIC. Now it is not possible to get higher education, apply for a job, open a bank account, get a driving licence or arms licence, get utility connections, purchase railway and air tickets, execute any instrument, stay in a hotel or lodge, appear in a court proceeding and enter in certain buildings and premises without production of CNIC. In such a situation, blocking of CNIC is an extreme act as it amounts to depriving a Pakistani national from his/her identity and depriving him to discharge his routine work. It means that ‘blocking CNIC’ is actually negating the very identity of a person, which amounts to depriving him nearly from all the necessities, leaving him helpless and even imposing restrictions to his freedom of movement. We consider that it is the serious violation of fundamental rights of a person if his identity is blocked on the ground of suspicion without giving him an opportunity of hearing.
8. The learned counsel for respondents emphasized upon Sections 18 and 23 of NADRA Ordinance, therefore it would be advantageous to reproduce section 18 of NADRA Ordinance, which read as under:
"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 an 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 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.
9. The above is the statutory provision which has given NADRA certain powers in respect of CNIC issued to a person. There will be no cavil about it that CNIC, being an important document of identification, should not go into the hands of an alien and NADRA is duty bound to check it and place embargo in respect of issuance of CNIC to a person who is not a Pakistani. It is astonishing that nothing in the entire NADRA Ordinance could be noted about blocking of a CNIC. In our view, the term 'BLOCKING' is an alien to the NADRA Ordinance. However, under section 18 sub- section (1), NADRA authorities are empowered to impound a CNIC under certain conditions. The word 'impound' is defined in the online Second Edition of Black’s Law Dictionary as under
“To take into the custody of the law or of a court. Thus, a court will sometimes impound a suspicious document produced at a trial”.
Ref: http://thelawdictionary.org/impound/
From the above definition of ‘impound’, it can be said that NADRA may take into custody of a CNIC in certain cases and of-course after fulfilling all the formalities and requirements mentioned in Section 18 of NADRA Ordinance. CNIC issued to a person is actually a document and it is a property of Federal Government and any action regarding the same as provided under Section 18 can only be taken by the Federal Government or under its authority. The act of impounding a document is completed by taking possession of the document. Meaning thereby whenever, NADRA decides to impound a card under the directives of the Federal Government, they may direct the person to deposit CNIC to NADRA. However, there is twofold existence of CNIC, one is the physical copy issued to a card-holder and the other is its digital copy or information available in the databank of NADRA. In case of impounding NADRA may have an authority to place some embargo on their databank so that the digital access of the same is denied from all the access points.
10. It is our considered view that under the provision of law, NADRA may put this embargo by ‘impounding’ a CNIC issued to a person but this authority to NADRA is not unfettered. It is necessary for NADRA authorities that they must follow the provision given under Section 18 of NADRA Ordinance, in letter and spirit. The proviso of sub-section (1) of Section 18, makes it mandatory that without issuing notice to the concerned person and giving him a fair and proper chance of hearing, NADRA cannot put any ban, embargo or restriction on the digital record of a card-holder. In the present case, NADRA has blocked CNIC of petitioner after issuing notice under Section 23 of NADRA Ordinance, which reads as under:
"23. Power to call for proof of information. -- The Authority or any person authorized 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."
11. From the bare perusal of the above provision of law, it is clear that NADRA has no authority to place an embargo whatsoever on the card of petitioner under this Section. No doubt, by issuing a notice under Section 23, NADRA may call any person who has given any information to furnish any proof regarding the information so given. The language of the statute indicates that it pertains to prior to issuance of card and not afterward. It may relate to a person who has given some information regarding a CNIC already issued by NADRA. Whatever, the situation may be, NADRA has no authority to block a card just after issuing a notice under this Section. Instead of blocking, NADRA may take certain action as per provision of Section 18 of NADRA Ordinance, which include ‘impounding’ and that may serve the purpose in those cases, where cards are dubious but the same must also be after giving notice and chance of hearing.
12. We are not oblivion to the fact that due to some loopholes in the system, a good number of CNIC have gone in the hands of unauthorized persons. We have no doubt in our minds that the aliens have no right to get and keep CNIC. At the same time we have a strong reservation about the actions taken by NADRA. It is neither proper nor legal to block a CNIC just after issuance of notice either under Sections 18 or 23 of NADRA Ordinance. As we have discussed above, NADRA Ordinance does not empower NADRA authorities for abrupt blocking of CNIC issued to an individual, therefore, we have no hesitation to declare that the act of 'blocking of a CNIC' without giving a chance of hearing is illegal as not warranted under the law. However, NADRA is authorised to impound a CNIC under the provisions of Section 18 of NADRA Ordinance and this impounding may be a physical impounding as well as a digital impounding. We are well aware that in each and every case physical impounding is not possible, as such there is only alternate left with NADRA is to impound CNIC digitally. In case of digital impounding, data of the individual will become inaccessible from all ‘NADRA kiosk’ and access points or Verification System ‘Verisys’ including Biometric Verification System ‘BVS’ or ‘BMS’. However, this impounding must be done after fulfilling the requirement of notice to concerned person with full opportunity of an audience. It is also necessary that NADRA must ensure the service of notices to the concerned person through email, SMS, special messengers, post and/or courier services. After confirmation of service of all or any of the above mode, and expiry of at least 15 days’ time if no response is received then impounding proceeding may be initiated. If service of notice cannot be done or confirmed, then NADRA is bound to publish such notice on their website as well as publish the same in a newspaper and after expiry of the aforesaid period impounding proceeding should be initiated. If a person appears before NADRA authorities, after service of notice or publication then NADRA is directed to complete an inquiry within a period of 30 days after giving full opportunity of the audience to him. If a person appears after ‘impounding’ and give reasons for his non-appearance, then NADRA must give him an opportunity of hearing and during hearing his CNIC may be restored. In any case, the final order passed under Section 18 of NADRA Ordinance, must contain reasons for impounding, cancelling or confiscating the CNIC issued to card-holder.
13. The learned MIT-II of this Court is directed to circulate the copies of this order to the Headquarter and all the Regional Offices of NADRA for information and compliance.
14. The above are the reasons of our short order passed on 02.02.2017.
JUDGE
JUDGE
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