P L D 2016 Balochistan 1 (PLP)

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 first 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 of 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 issued 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 referred 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 submitted 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 Database 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 exercising 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 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 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 and 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 under 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 Section 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 are 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 this 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 circumventions 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 status 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 party 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 appropriately 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 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."

11. As has stated above, the cases of the petitioners have been sent to the concerned committees 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 Government 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 maintainable and dismissed accordingly, with no order as to costs. MWA/70-BAL Petitions dismissed.