case law on NADRA

P L D 2016 Lahore 393
Before Ayesha A. Malik, J
KAINAT AKHTAR---Petitioner
Versus
REGIONAL HEADQUARTER NADRA and 2 others---Respondents
Writ Petition No.855 of 2014, heard on 26th February, 2014.
(a) National Database and Registration Authority Ordinance (VIII 2000)--
----S. 9---Constitution of Pakistan, Art. 199---Constitutional petition---Issuance of Computerized National
Identity Card---Scope---Adopted child---Contention of respondent-NADRA was that petitioner was adopted
child and she did not have a mother or father---Validity---Guardianship certificate had been issued in favour of
petitioner by the court of competent jurisdiction---Petitioner had provided the name of her guardian and no
contradiction existed in her documents---Every citizen in or out of Pakistan who had attained the age of
eighteen years should get himself registered and a parent or guardian of every citizen who had not attained such
age should not later than one month after birth of such citizen get such citizen registered in accordance with the
provisions of the Ordinance---National Identity Card was a document for identification of a citizen---Issuance
of National Identity Card would mean that the information contained therein was valid and correct---
Application form issued by the NADRA had contemplated the category of guardian and same also inquired the
relationship with the family head to be explained---Petitioner was entitled to registration with the NADRA and
for issuance of her Computerized National Identity Card---Constitutional petition was accepted and respondents
were directed to issue Computerized National Identity Card to the petitioner forthwith.
Muhammad Salah-ud-Din v. NADRA PLD 2012 Lah. 378 ref.
(b) National Database and Registration Authority Ordinance (VIII 2000)--
----Preamble---Object---National Database and Registration Authority Ordinance, 2000, was promulgated to
facilitate the registration of all the persons and for establishment and maintenance of database, data warehouses,
networking, interfacing of databases and related facilities---Purpose of Ordinance and Authority was to register
persons and classes thereof including citizens.
Nadeem Ahmad Sheikh for Petitioner.
Jamil Khan, Law Officer for NADRA.
Date of hearing: 26th February, 2014.
JUDGMENT
AYESHA A. MALIK, J.--Through this petition, the Petitioner seeks a direction to the Respondent
NADRA for issuance of her computerized National Identity Card (CNIC).
2. The case of the Petitioner is that she is a citizen of Pakistan by birth. She was adopted by Shamim
Akhtar who has obtained a guardianship certificate on 23.5.2005 from the court of Mrs. Lubna Ali, Guardian
Judge-I, Lahore vide Guardian Case No.39/GC of 2005. After obtaining the guardianship certificate, the
guardian applied for B-Form which was issued by the Respondents on 6.6.2006. Thereafter the Petitioner
applied for a passport which was also issued to the Petitioner on 12.2.2011 in which the father's name is shown
as Guardian Shamim Akhtar. The Petitioner applied for her CNIC where she clearly stipulated that her
guardian's name is Shamim Akhtar. However the Respondents have denied the Petitioner the issuance of her
CNIC essentially on the ground that she did not have the required information under the parentage column as
she was an adopted child.
3. Learned counsel for the Petitioner argued that the B-Form has been issued which clearly provides in the
column of father's name that the Petitioner is 'Lay Palik'. In the column of the mother's name it provides the
name of the guardian Shamim Akhtar. Similarly he argued that on the passport it provides that she has a
guardian by the name of Shamim Akhtar. He further argued that no information has been withheld from the
Respondents yet despite the same the Petitioner has not been issued her CNIC. He argued that the basis for
issuance of the CNIC is the B-Form and that the Respondents have denied the Petitioner her fundamental right
as the citizen of Pakistan. Learned counsel further argued that on 22.3.2006 A/Director General of the
Respondents issued a letter to the Headquarters NADRA (SRC Dte), Islamabad requiring a policy to be
formulated with respect to adopted children under guardianship. However he argued that despite the same no
such policy has been made rendering the Petitioner without any remedy against the Respondents.
4. Report and parawise comments have been filed on behalf of the Respondents. Learned Law Officer on
behalf of the Respondents argued that the Petitioner has been granted guardianship certificate on 18.5.2005
from the court of Mrs. Lubna Ali, Guardian Judge-I, Lahore. The Petitioner is still a minor and under the
Majority Act, 1875 until she attains the age of 21 years she cannot file the instant petition. He further argued
that the B-Form shows that the father's name is 'Lay Palik' whereas the mother's name is shown as Shamim
Akhtar. He argued that Shamim Akhtar is the name of the guardian and not the name of the mother of the
Petitioner. Further argued that even on the Secondary School Certificate her parentage is mentioned as Shamim
Akhtar whereas Shamim Akhtar is the guardian of the Petitioner. He argued that the record of the Petitioner is
contradictory, hence she has been denied the issuance of the CNIC. He argued that the record does not clearly
stipulate that the Petitioner is an adopted child because in the B-Form in column of mother it says Shamim
Akhtar and in the passport under the father's name it says Guardian Shamim Akhtar. He argued that the
petitioner should rectify her status as 'adopted child' on her Secondary School Certificate, on the B-Form as well
as on the passport after which the Respondents will consider her cases for the purposes of issuance of the CNIC.
5. I have heard the learned counsel for the parties and reviewed the record available on the file.
6. The preliminary objection raised by the learned Law Officer for Respondent NADRA is with respect to
the maintainability of the instant writ petition on the ground that the Petitioner had not attained majority, hence
she is not entitled to file the instant writ petition. The record shows that the Petitioner's date of birth is
22.7.1995 making her 18 years 6 months and 7 days. The Petitioner is pursuing the instant writ petition for her
fundamental right to be issued a CNIC as a citizen of Pakistan. This petition is maintainable and there is no
substance in the objection raised by the learned Law Officer.
7. The basic reason for denying the Petitioner her CNIC is that she is an adopted child. A guardianship
certificate has been issued by the court of competent jurisdiction on 23.5.2005. This is not denied by the
Respondents. The objection of the Respondents is that she does not have a mother or father and that she is
adopted by Shamim Akhtar, hence she cannot show the name of Shamim Akhtar as her mother or her father.
Specifically the Respondents have objected to the fact that on her Secondary School Certificate it says
"son/daughter of Shamim Akhtar". On her Intermediate Part-1 and Part-II Annual Examination it says "Father's
name-Shamim Akhtar" and on the passport it says "Father's name-guardianship Shamim Akhtar". The
Respondents case is that the record of the Petitioner is contradictory and it is unclear from the record as to
whether Shamim Akhtar is the mother or the father or the guardian. The Respondents have also raised the
objection that the Petitioner should change her documentation to show her status as an 'adopted child' under the
guardianship of Shamim Akhtar. I have heard the learned Law Officer at length and find that the arguments
raised by the Respondents are without any merit or legal justification. The Petitioner applied for her CNIC. A
review of the form filed by the Petitioner shows that it clearly mentions the name of her guardian as Shamim
Akhtar. Column No.11 of the CNIC Form specifically asks for 'Guardian Name' which the Petitioner has
provided. Serial No.9 asks for relationship with family head and the Petitioner has written adopted child against
that question. Therefore there is no contradiction in the record of the Petitioner with respect to the fact that she
is under the guardianship of Shamim Akhtar by virtue of Guardianship Certificate dated 23.5.2005.
8. National Database and Registration Authority Ordinance, 2000 (NADRA Ordinance 2000) preamble
stipulates that it is an Ordinance to provide for the establishment of the National Database and Registration
Authority so as to facilitate the registration of all persons and the establishment and maintenance of
multipurpose database, data warehouses, networking, interfacing of databases and related facilities. Section 9 of
the NADRA Ordinance 2000 provides that every citizen in or out of Pakistan who has attained the age of
eighteen years shall get himself and a parent or guardian of every citizen who has not attained that age shall, not
later than one month after the birth of such citizen, get such citizen registered in accordance with the provisions
of this Ordinance. The primary purpose of this Ordinance and the authority thereunder is to register persons or
classes thereof including citizens. It has already been held by this Court in the case titled 'Muhammad Salah-udDin
v. NADRA' (PLD 2012 Lahore 378) that a national database is to be maintained by the respondent. This
database record maintains all the required data regarding a citizen, thus establishing a database or information
base known as the citizen database. Every citizen is required to be registered with the respondent and to
effectuate the registration every citizen is issued a national identity card. The national identity card is a legal
document for identification of a citizen. Its issuance means that the information contained therein is valid and
correct. Every citizen who has attained the age of eighteen years is entitled to get himself registered with the
Respondent No.3. Section 9 of the NADRA Ordinance 2000 specifically addresses every citizen who has
attained eighteen years to get himself registered and every parent or guardian of every citizen to register the
birth of such citizen. The application form of the Respondents which seeks the details of the applicant for the
CNIC contemplates the category of 'Guardian' and also inquires the relationship with the family head to be
explained. The Petitioner is under the guardianship of Shamim Akhtar as issued by the Guardian Court on
23.5.2005. She is entitled to registration with the Respondents and for issuance of her CNIC. Under the
circumstances there is no justification to deny the Petitioner issuance of her CNIC.
9. In view of the aforesaid, this petition is allowed. The Respondents are directed to issue the CNIC to the
Petitioner forthwith.Petition allowed.

case law on Gas

Arts. 158 & 199---Constitutional petition---Supply of natural gas---Priority---Petitioner company raised the plea that in view of Art.158 of the Constitution, failure to supply natural gas to its plant was illegal---Validity---Province of Khyber Pakhtunkhwa had surplus gas over and above its own consumption---Cement manufacturing unit of petitioner situated in Khyber Pakhtunkhwa Province should have had precedence over cement manufacturing units outside the Province but record spoke otherwise---Instead of giving precedence to petitioner's cement manufacturing unit, the units in other Provinces were given preference and petitioner was deprived of its legal and constitutional right---High Court declared the conduct of authorities in delaying the provision and supply of gas connection to petitioner company as illegal, arbitrary, unreasonable, discriminatory, without lawful authority and jurisdiction and also violative of constitutional guarantees enshrined in the Constitution---High Court directed the authorities to act in accordance with law and Constitution and forthwith supply gas to cement manufacturing unit of petitioner---Petition was allowed accordingly.

2016 PLD 32 PESHAWAR-HIGH-COURT
Side Appellant : CHERAT CEMENT COMPANY LTD. NOWSHERA
Side Opponent : PAKISTAN through Secretary Ministry of Petroleum and Natural Resoures, Islamabad

case law on bail in Theft

S. 497(2)---Penal Code (XLV of 1860), Ss.380 / 457 / 436/ 34---Theft in dwelling house, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, mischief by fire or explosive substance with intent to destroy house, common intention---bail , grant of---Further inquiry---Two eye-witnesses of the incident were not shown in the challan and they had also not deposed or corroborated the allegations, as mentioned in the F.I.R.---F.I.R. was silent with regard to the allegations of taking away entire house hold items and it was also not clear as to how the said items were shifted from the house to another place---No recovery of any item had been made from the accused---Record revealed that an F.I.R. had been lodged in the past in which complainant of present F.I.R. was shown as an accused and present accused was one of the witnesses of that F.I.R.---Was yet to come on record as to what happened with the large number of stolen articles/ goods---Case of further inquiry was made out in terms of S.497(2), Cr.P.C.---Accused was admitted to bail , accordingly.

2012 YLR 1340 KARACHI-HIGH-COURT-SINDH
Side Appellant : ABDUL HAFEEZ
Side Opponent : State

case law on challan

هاء ڪورٽ ، جڊيشل ميجسٽريٽ يا ڪنهن ٻي ڪورٽ کي چالان جمع ڪرائڻ لاء پوليس کي حڪم ڏيڻ جو ڪو اختيار ناهي سپريم ڪورٽ آف پاڪستان۔
No power vested with any court including a High Court to override the said legal provision and direct the police either not to submit the said report or to submit the said report in a particular manner.
Ss. 173 & 190---Constitution, of Pakistan, Art. 185---Submission of challan---Concerned police recommended the disposal of the case as false---Magistrate concerned, approved the summary submitted by the police---High Court, however, set aside order passed by the Magistrate and directed the S.P. (Investigation) to submit challan of the case---After passing of said order, the police re-investigated the case and submitted the challan before the competent court---Grievance raised by the counsel for appellants was that the order passed by the High Court to the extent of submission of challan of the case was invalid, un­warranted in law and without jurisdiction---Validity--Section 173 , Cr.P.C. provided that on conclusion of investigation, the concerned S.H.O. was required to submit a report of the result thereof in the prescribed manner to the Judicial Magistrate competent to take cognizance under S.190, Cr. P. C. ---No power vested with any court including a High Court to override the said legal provision and direct the police either not to submit the said report or to submit the said report in a particular manner---Order of the High Court, to the extent of setting aside the order of the Magistrate passed. on the summary submitted by the police, appeared to be correct, but further direction to the police for submission of challan, was un-warranted and not sustainable in law---Power of investigation into accusation made in the First Information Report, vested with the police---On the basis of material collected by the police, the police had either to send up accused persons to stand trial or to submit a report to the Magistrate concerned for disposal of case in accordance with law.
2011 SCMR 1430 SUPREME-COURT ( NASEER versus KHUDA BAKH

case law on murder in police Encounter

پوليس کي ماڻهو مارڻ جو ڪو اختيار ناهي، چاهي هو ڪيڏو وڏو ڏوهاري هجي، سنڌ هاء ڪورٽ پوليس جي ڪسٽڊي م مري ويل جوابدار جي خون جو ڪيس پوليس خلاف داخل ڪرڻ جو حڪم ڏئي ڇڏيو۔
Land Mark Judgement by Justice Salahuddin panhwar against police, accused died in police custody High Court Ordered to register the FIR against the Police (Zahid Hussain Channa & Co)
Ss. 154, 174 & 176---murder in police custody ---Registration of criminal case---Scope---Son of the petitioner aged 15/16 years was nominated in the murder case; he was arrested by the police ; was detained at police Station, where he was tortured---Son of the petitioner was denuded, whipped and mixture of water and "choona" was forcibly put in his mouth as a result he became unconscious, and subsequently he expired in Hospital---Deceased received injuries in custody of police and he was referred to Hospital, where he died and postmortem was conducted---Proceedings under S.176, Cr.P.C., were not initiated---Station House Officer of police Station was bound to record the statement of every informant, and once information, narrated or received by SHO and would spell commission of a cognizable offence, he was left with no discretion, but to incorporate the same into the book as prescribed under S. 154, Cr.P.C., which provision was mandatory in nature---Not the caste, colour, creed or position of accused, but the investigation/trial alone, which would dress an accused with clothes of innocence---Such was not done in the present case---Conduct of the Doctor and police , was not up to the mark in the case---Even concerned Magistrate, was not approached, who otherwise was legally empowered to inquire into in such matters, as provided by S.176, Cr.P.C.---Such legal inquiry was deliberately avoided---Under peculiar circumstances of the present case, it was obligatory on the police Officer-in-charge of police Station; and even the Medical Officer to have informed to the concerned Magistrate for necessary inquiry, but that obligation was not fulfilled in the case---High Court observed that both the functionaries were required to be prosecuted for their negligence---High Court directed that Magistrate would proceed to conduct an inquiry within the scope of S.176, Cr.P.C., which would be in addition to the investigation into FIR ordered to be lodged---Constitutional petition was disposed with the observations that SHO would record statement of petitioner; if same would narrate ingredients of a cognizable offence, he would incorporate the same in the book provided under S.154, Cr.P.C.---If negligence of the Doctor was found with regard to Postmortem of the deceased, Director General Health Services, would be directed to constitute team for probe with regard to postmortem report---Order accordingly.
2016 PCrLJ 613 SINDH
( Mst. YASMEEN SHAIKH versus AYAZ PATHAN

case law on Mantainence

جيڪڏهن خرچ جي ڪيس ٻارن جو مقرر ڪيل خرچ پورو نه ٿيي ۽ ڪيس ختم ٿي ويو هجي ته خرچ جا پئسا وڌائڻ لاء نئي ڪيس ڪرڻ جي ضرورت ناهي صرف سمپل درخواست ڪبي.
Once a decree by the family Court in a suit for maintenance (for minors) was granted, thereafter, if the granted rate for monthly allowance was insufficient and inadequate, in that case, institution of fresh suit was not necessary rather the family Court may entertain any such application (under S. 151 , C.P.C.) and if necessary make alteration in the rate of maintenance allowance

S. 5 & Sched.---Civil Procedure Code (V of 1908), S. 151 ---Maintenance allowance for minors, enhancement of---family Court, powers of---Scope---Order for maintenance allowance for minors was passed by family Court---Mother of minors sought enhancement in maintenance allowance through filing an application under S. 151 , C.P.C. before the family Court---Objection of father that enhancement in maintenance allowance could only be sought by filing a separate suit---Validity---Provisions of Civil Procedure Code, 1908 were not stricto sensu applicable to the proceedings under the family Courts Act, 1964, as such the family Court was competent to adopt its own procedure---family Court had exclusive jurisdiction relating to maintenance allowance and the matters connected therewith---Once a decree by the family Court in a suit for maintenance (for minors) was granted, thereafter, if the granted rate for monthly allowance was insufficient and inadequate, in that case, institution of fresh suit was not necessary rather the family Court may entertain any such application (under S. 151 , C.P.C.) and if necessary make alteration in the rate of maintenance allowance--- Objection was rejected accordingly.
2016 SCMR 1821 SUPREME-COURT
Side Appellant : Lt. Col. NASIR MALIK
Side Opponent : ADDITIONAL DISTRICT JUDGE, LAHORE

Once compromise between parties, in compoundable offence had been effected, the same could not be withdrawn

Once compromise between parties, in compoundable offence had been effected, the same could not be withdrawn---Violation of terms and conditions of compromise was not a valid ground for re-opening the disposed of criminal proceedings
S.489 -F---Criminal Procedure Code (V of 1898), Ss.249-A, 345 & 417(2-A)---Dishonestly issuing a cheque---Appeal against acquittal---Compounding of offence---Re-opening of case---Criminal case was closed on the basis of compromise between parties and accused was acquitted by Trial Court in exercise of powers under S.249-A, Cr.P.C.---Complainant sought reopening of criminal case on the plea that accused had violated terms and conditions of compromise---Validity---Once compromise between parties, in compoundable offence had been effected, the same could not be withdrawn---Violation of terms and conditions of compromise was not a valid ground for re-opening the disposed of criminal proceedings---If any party had resiled from terms and conditions, aggrieved party was at liberty to seek remedy provided under law through competent court for enforcement and specific performance of terms and conditions of the compromise---Trial Court was justified in acquitting accused and such order was neither perverse nor suffering from any infirmity or illegality and did not require interference of High Court---Appeal was dismissed in circumstances.

2015 MLD 196 KARACHI-HIGH-COURT-SINDH
Side Appellant : NOMAN HAFEEZ SHEIKH
Side Opponent : NAJEEB ASHRAF