PESHAWAR: The Peshawar High Court has declared a Pakistani woman’s Afghan husband entitled to the issuance of Pakistan Origin Card (POC) by the National Database and Registration Authority (Nadra) in light of a Federal Shariat Court (FSC) judgement.

A bench consisting of Justice Musarrat Hilali and Justice Abdul Shakoor disposed of a petition filed by Pakistani woman Sameena Roohi for its orders to the government to grant Pakistani citizenship to her Afghan husband, Naseer Mohammad.

It declared that the petitioner or her husband, in light of the FSC’s verdict in question, could approach the Nadra for the issuance of POC in accordance with the relevant law.

The petitioner had challenged the Citizenship Act’s provision, which allows the country’s citizenship for foreign wives of Pakistani men and not foreign husbands of Pakistani women, claiming that the law discriminated against Pakistani women.

Court declares FSC already ruled against relevant section of Citizenship Act

The petitioner had requested the court to declare unconstitutional and discriminatory Section 10(2) of the Pakistan Citizenship Act, 1951, under which the wife of a Pakistani national was entitled to the country’s citizenship, but the same was denied to the foreign husband of a Pakistani woman.

Referring to the relevant portion of a FSC judgement delivered in 2008, the bench observed Section 10 of the Pakistan Citizenship Act, 1951, was clearly declared unconstitutional and un-Islamic.

“In such view of the matter, the petitioner needs not to seek the same declaration from this court again as in terms of Article 203-GG of the Constitution, the decision of the Federal Shariat Court is binding on the high court and courts subordinate to it but subject to Article 203 and 203-F.”

The petitioner’s counsel, Saifullah Muhib Kakakhel, argued that Section 10(2) of the Citizenship Act was not brought in conformity with the fundamental rights within two years of the commencement of the Constitution, which was a mandatory requirement under Article 8(4) of the Constitution.

He contended that Section 10(2) of the law was discriminatory and didn’t treat men and women equally.

The lawyer said his client belonged to a respectable family, was married to Afghan national Naseer Mohammad in 1985, and had five children from the marriage, who all were Pakistani nationals.

He said the petitioner’s husband had been working in Kuwait for a long time and he had only been granted Pakistani visa for one month or so to visit his family.

Mr Kakakhel contended that the petitioner had visited the Nadra and immigration offices to seek citizenship for her husband, but was told that Section 10(2) of the law applied only to the foreign wife of a Pakistani citizen.

He argued that the FSC had declared in 2008 the impugned provision repugnant to the injunctions of the Holy Quran and Sunnah, and called it discriminatory, against gender equality, and a violation of articles 2(a) and 25 of the Constitution.

The interior ministry and directorate general of immigration and passport had opposed the petitioner’s plea and in their replies had stated that the petitioner or her husband had never applied for the Naturalisation Certificate under the Naturalisation Act and for the POC under the law and subject in vogue.

An additional attorney general contended that the petitioner couldn’t come directly to the court without first approaching the interior ministry for the Naturalisation Certificate for her husband.

He contended that Section 10 of the Citizenship Act, with respect to the FSC’s judgement, was still part and parcel of that law.

The bench observed that while opposing the petitioner’s plea, the state’s representatives didn’t show any order or judgement of the Shariat Appellate Bench of the Supreme Court, whereby operation of that FSC verdict had been suspended or recalled.

Mr Kakakhel argued that applying for naturalisation certificate was a different procedure altogether, whereas his client had challenged the provision of law on the basis of discrimination.

He referred to several international conventions to which Pakistan is a signatory and said by not amending the Citizenship Act, the government had been violating all those international laws, which declared that there should be no discrimination on basis of gender.

Published in Dawn, October 12th, 2022