P L D 2024 Peshawar 57 (PLP)

DR. KHURSHID IQBAL, J.

1. The right of citizenship of an alien husband of a Pakistani woman, under section 10(2) of the 1951 Pakistan Citizenship Law (The Citizenship Act, 1951) has been the subject of litigation for quite a good time. This is despite a verdict of the Federal Shariat Court to effect that the provision is against the Holy Qur'an and Sunnah, discriminatory and against gender equality under the Constitution and Pakistan's international commitments (In re: Suo Motu case No. 1/K of 2006 (Gender Equality, PLD 2008 FSC 1). In the constitutional petition in hand, Ms. Amna (petitioner # 1) has come to this court with a grievance that her alien husband Mr. Najibullah (petitioner # 2; an Afghan refugee) has been denied Pakistani citizenship or issuance of Pakistan Origin Card (POC). The petitioners have contracted nikah on 16/11/2018. Allah SWT has blessed them with two children from the wedlock.

2. On behalf of the Ministry of Interior and the Directorate General of Immigration and Passport (respondents 1 and 4), a one-page report was submitted before this court. The gist of the report is that the petitioner # 2 shall formally apply for the grant of Pakistani nationality under section 3 of the Naturalization Act, 1926. The report also accompanies a copy of a Form 'A' with reference to the aforesaid law which may be used for the purpose. The NADRA and its Director General (respondents 2 and 3) submitted their para-wise comments. The crux of the comments is that the grant of nationality lies within the domain of the respondents 1 and 4, and for the grant of the POC, the petitioner has never approached them. With their comments, they submitted a copy of their 2022 POC Registration Policy which lays down procedure for obtaining a POC.

3. We have heard Mian Zakir Hussain, learned counsel for the petitioners, the Standing counsel of the NADRA and the learned Addl. AG, appearing on behalf of the Federation. We have perused the record.

4. The main controversy revolves around the entitlement or otherwise of petitioner # 2 (an Afghan refugee) to the grant of POC for his having married a Pakistani woman (petitioner # 1). The relevant provision which deals with the issue involved is section 10 of the 1951 Act. This section gives a Pakistani husband the right to get citizenship for his foreigner wife. But at the same time, it denies a Pakistani wife the right to get citizenship for her foreigner husband. In the suo motu case PLD 2008 FSC 1, referred above, the Federal Shariat Court has resolved the issue as follows:

27. In our view of the matter, the position in Islam is somewhat different. Islam is a universal religion. The last sermon of Holy Prophet is the first Charter of Human Rights wherein all human beings are equal. Mankind is one. Allah says in Holy Qur'an that "He created man and woman from a single being (7:189)" and for HIM "whoso doeth good work, whether male or female and he (or she) is a believer, such will enter paradise. (4:124)"

28. In view of the above, we are of the view that section 10 of the Citizenship Act is discriminatory, negates gender equality and is in violation of Articles 2-A and 25 of the Constitution of Islamic Republic of Pakistan and also against International commitments of Pakistan and most importantly is repugnant to Holy Qur'an and Sunnah.

29. In the end, it may be clarified that while section 10 of the Citizenship Act, 1951 expressly contemplates denial of citizenship to a foreign husband of a Pakistani woman as neither she nor he is entitled to apply under it, nevertheless under law whether municipal or international, grant of nationality would remain within the domain of discretion of the Government of the country which may refuse it for reasons of national security or public interest etc. to which she or he cannot claim it as a matter of right. We, therefore, in exercise of our powers under clause (3)(a) of Article 203-D of the Constitution of Islamic Republic of Pakistan require the President of Pakistan to take suitable steps for amendment of section 10(2) and other provisions of the Citizenship Act, 1951 within a period of six months hereof ensuring appropriate procedure for grant of Pakistani Nationality to a foreign husband married to a Pakistani woman.

5. In recent years, the issue has been considered by the High Courts in certain cases. In Mst. Rukhsana Bibi and others v. Government of Pakistan and others (PLD 2016 Lahore 857), a foreigner man had contracted nikah with a Pakistani woman. He was denied Pakistani citizenship by the concerned authorities in the context of section 10 ibid. He, along with his wife approached the Lahore High Court in constitutional jurisdiction. The Court held that the denial of such right was discriminatory. It was held to be violative of Article 25 of the Constitution and international treaties which Pakistan is bound to follow as a party. The concerned authorities were, thus, directed to grant citizenship to the foreigner after following the rescribed procedure. Similarly, in Writ Petition No.4464-P/2021, it was alleged a Pakistani woman had married an Afghan national. Both of them petitioned this Court to hold the foreigner-husband entitled to the grant of a POC. On the basis of the aforesaid judgment of the Federal Shariat Court, he was held entitled to be considered for the issuance of POC in accordance with law. Again, in W.P. No.4889-P/2020, a foreigner man having tied the knot with a Pakistani woman was held entitled to the grant of POC by this Court vide judgment, dated 24.11.2021.

6. As a corollary to the afore-noted facts and circumstances and the law laid down in the judgments (supra), we dispose of this petition with the directions to the respondents to consider the case of the petitioner No.2 for the issuance of POC in accordance with law. MQ/35/P Order accordingly.