GHULAM SANAI Versus ASSISTANT DIRECTOR NATIONAL REGISTRATION OFFICE

MIAN MUHAMMAD AJMAL, J.‑‑‑Through this Constitution petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Ghulam Sanai, petitioner, has prayed to direct the respondents to issue him a National Identity Card and to refrain them from doing anything against him which they are not permitted by law to do and to act in accordance with law.

2. According to the averments of the writ petition the petitioner was born at Peshawar of the parents who are permanent citizen of Pakistan and is residing at Gulbahar No. l in his own house and passed his Middle Standard Examination from Peshawar. On attaining the age of 18 years he applied for the issuance of National Identity Card to respondent No. l under section 4 of the National Registration Act, 1973; that identity card was issued to his father in accordance with law and thereafter Passport No.B113115 was also issued to his father, therefore, refusal of the respondents to issue National Identity Card to the petitioner is illegal, arbitrary without lawful authority and of no legal effect.

3. The respondents submitted their parawise comments to the writ petition wherein it was stated that Ghulam Sakhi, father of the petitioner is Afghan refugee and he obtained the National Identity Card by submitting false information, hence it has been cancelled. Rejoinder to the comments was filed by the learned counsel for the petitioner to which counter‑rejoinder was filed by the respondents.

4. We have heard the learned counsel for the parties and have perused the available record with their assistance.

5. The main question involved in this petition is whether the petitioner can be deemed to be a citizen of Pakistan on account of his alleged birth at Peshawar. Learned counsel for the petitioner mainly pressed into service section 4 of the Pakistan Citizenship Act, 1951 (Act 11 of 1951) which reads as follows:‑‑

"4. Citizenship by birth.‑‑Every person born in Pakistan after the commencement of this Act shall be a citizen of Pakistan by birth:

Provided that a person shall not be such a citizen by virtue of this section if at the time of his birth‑‑

(a) his father possesses such immunity from suit and legal process as is accorded. to an envoy of an external sovereign power accredited in Pakistan and is not a citizen of Pakistan; or

(b) his father is an enemy alien and the birth occurs in a place when under occupation by the enemy."

He argued that by virtue of the aforesaid provision of law any person born in Pakistan after the commencement of the Act shall be a citizen of Pakistan by birth irrespective of the nationality of his/her parents. Section 4 of the Act cannot be read in isolation and independently of the other sections of the Act. Section 5 of the Act is more relevant for the purpose of this case which is reproduced hereinbelow:‑‑

"5. Citizenship by descent.‑‑Subject to the provisions of section 3 a person born after the commencement of this Act shall be a citizen of Pakistan by descent if his father is a citizen of Pakistan at the time of his birth:

Provided that if the father of such person is a citizen of Pakistan by descent only, that person shall not be a citizen of Pakistan by virtue of this section unless‑‑

(a) that person's birth having occurred in a country outside Pakistan the birth is registered at a Pakistan Consulate or Mission in that country, or where there is no Pakistan Consulate or Mission in that country (at the prescribed Consulate or Mission or) at a Pakistan Consulate or Mission in the country nearest to that country; or

(b) that person's father is, at the time of the birth, in the service of any Government in Pakistan. "

Sections 4 and 5 of the Act ibid read together would provide that every person born in Pakistan after the commencement of the Act shall be a citizen of Pakistan by birth and subject to the provisions of section 3 a person born after the commencement of the Act shall be a citizen of Pakistan by descent, if his father is a citizen of Pakistan at the time of his birth. Haji Ghulam Sakhi father of the petitioner an Afghan refugee, on false information managed to obtain the National Identity Card and Pakistan Passport which have been cancelled. The petitioner and his father has also purchased immovable property at Peshawar. Their stance is that they have been living in Pakistan since long and intend to remain in Pakistan, therefore, they have become Pakistan national. Para. 2 of the rejoinder to the comments filed by the petitioner is reproduced below:‑‑

"2. The corresponding para. 2 of the writ petition is correct. Copies of the sales deed are Annexure 'A' and 'B' to the writ petition is a proof of the fact that the father of the petitioner is living in Pakistan since long and they have the intention to remain in Pakistan."

The long stay of a foreigner in a foreign country would not automatically convert him to be the citizen of that country unless he acquires the nationality by process of law. The Afghan refugees have been provided refuge in Pakistan temporarily and they being not the citizen of Pakistan are governed by the

Foreigners Act, 1946 (Act XXXI of 1946) and not by the provisions of Citizenship Act which is not applicable to them. According to the definition of 'Foreigner' given in section 2(a) of the Act (XXXI of 1946), 'Foreigner means a person who is not a citizen of Pakistan' hence an Afghan refugee being a foreigner and not a citizen of Pakistan cannot be issued a National Identity Card under section 4 of the National Registration Act, 1973 (Act LVI of 1973) which can only be issued to Pakistani citizens. Section 4 of the Act VI of 1973 reads as follows:‑‑

"4. Registration of citizens.‑‑(1) Within such time as the Federal Government may, by notification in the official Gazette, specify in his behalf‑‑‑

(a) every citizen in or out of Pakistan who has attained the age of eighteen years shall get himself; and

(b) a parent or guardian of every citizen who has not attained that age shall get such citizen, registered in accordance with the provisions of this Act.

(2) An application for registration shall be made in such form and to such authority as may be prescribed; and

(3) The birth of a newly born citizen, and the death of a citizen who has not attained the age of eighteen years, shall be reported to the District Registrar by such authority or officer as may be prescribed."

7. The petitioner is neither a citizen nor deemed to be a citizen of Pakistan under the Citizenship Act, 1951, therefore, he is not entitled to the issuance of National Identity Card.

Consequently this writ petition is dismissed with costs.

Q.M.H./M.A.K./198/P Petition dismissed