ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No. D-3190 of 2011.

Date Order with Signature of Judge(s)

Present:

MR. JUSTICE MUHAMMAD ALI MAZHAR &

MR. JUSTICE SADIQ HUSSAIN BHATTI

IMRAN AHMED VS. FEDERATION OF

PAKISTAN & OTHERS

Date of Hearing: 11.12.2013.

Mr. Qadir Hussain Khan, Advocate for the petitioner.

Mr. Asif Mangi, Standing Counsel, along with Syed Shahid Raza Fatmi, Assistant Director, Pakistan Post on behalf the Director General Pakistan Post, Mr. Muhammad Jalil, Superintendent, Pakistan Post and Abdus Salam, Section Officer, Ministry of Interior.

…………………….

Muhammad Ali Mazhar, J: The petitioner has filed this Constitution Petition with the prayer to direct the respondents to issue no objection certificate (NOC) to the petitioner and also direct the respondent No.2 to issue certificate which would enable the petitioner to manage the PRC and Domicile for his wife under the Pakistan Citizenship Act, 1953.

2. The learned counsel for the petitioner argued that the petitioner is performing duties of Sorter in B-7 in the Pakistan Post. On 9.1.2006, he submitted an application to the Deputy Postmaster General, Pakistan Post Office, Karachi in which he referred to his earlier application which was moved by him for grant of NOC on 5.9.2005 to marry his cousin, a foreign national, (Indian national) but the NOC was not accorded to him well within time. He further stated in the said application that his uncle suddenly fallen seriously ill and, therefore, his relatives arranged his marriage ceremony on 6th September, 2005 keeping in view the exigency and predicament. He again requested for NOC. It was further averred that the matter is pending since 2005 meanwhile, the petitioner again applied for the NOC to the same authority on 10.9.2008 which was also not acceded to. Copies of the applications moved for NOC, marriage certificate/nikahnama are attached with the petition.

3. It is also a matter of record that on 3.6.2009, a show cause notice was issued by Divisional Superintendent to the petitioner in which it was stated that the petitioner applied for the permission to marry with an Indian girl directly to the Director General, Pakistan Post on 15.9.2005 and thereafter submitted another application through proper channel on 9.1.2006 for the same purpose but without getting the requisite permission/NOC, he got married with a foreign national on 15.2.2006 and by adopting such practice, he is guilty of misconduct by contravening the provisions of Government Servants (Marriage with Foreign Nationals) Rules, 1962 as he married with a citizen of India without getting prior permission of the Government.

4. The show cause notice was issued under the Removal From Service (Special Powers) Ordinance, 2000, with the directions to the petitioner to submit his reply. The petitioner submitted his reply to the show cause notice and after examining the case and affording an opportunity of personal hearing, the Inquiry Officer concluded that the petitioner has failed to defend himself, hence he recommended to the competent authority for reduction of petitioner’s pay to the minimum in his time scale for six months without future effect. However, vide order dated 25.8.2010, issued by the Divisional Superintendent after completion of the specified period the pay of the petitioner was restored in B-7. In the same letter it was mentioned that the petitioner has submitted an application for up-gradation of his post from B-7 to B-9, hence his this request was also forwarded for necessary guidance and orders.

5. The respondent Nos.2 and 3 filed their comments. The learned Standing Counsel argued that the petitioner married an Indian lady without obtaining prior permission. However, he admitted that the petitioner sent an application for NOC directly to the Director General Pakistan Post Islamabad without informing his unit officer D.S., MST. He referred to the comments in which it is stated that Pakistan Post is attached Department of Ministry of Communication therefore, the Director General Pakistan Post sent the case of the NOC of the petitioner to the Ministry of Communication for onwards submission to Establishment Division, later the Director General Pakistan Post addressed a letter on 7.8.2008 to the Post Master General Sindh Circle Karachi and intimated that the Ministry of Communication informed after inquiring the matter through I.B. that the said marriage for which NOC was required had already taken place on 6.11.2005. He further argued that since petitioner married prior NOC hence he was issued a show cause notice and penalty for reduction of pay for six months was imposed on him without future effect.

6. We have analyzed the Government Servants (Marriage with Foreign Nationals) Rule 1962. The relevant Rule (3) is reproduced as under:-

“3. Marriage with foreign nationals prohibited: (1) Subject to the Provisions of sub-rule (2), a Government servant who marries or promises to marry a foreign national shall be guilty of misconduct and render himself liable to any of the major penalties under the Government Servants (Efficiency and Discipline) Rules, 1973.

(2) A Government servant, may, with the prior permission of the Federal Government, marry or promise to marry a [foreign national of any country recognized by Federal Government].

(3) The grant of permission under sub-rule (2) shall be at the discretion of the Federal Government and may be subject to such conditions, if any, as it may specify”.

7. Though under Rule 3 (supra) it is provided that government servants who marries a foreign national shall be guilty of misconduct and render himself liable to any of the major penalties under the Government Servants (Efficiency and Discipline) Rules, 1973. However, in sub-rule (2) it is provided that a Government servant with the prior permission of the Federal Government may marry to a foreign national. It is further noted that under sub-rule (3) of rule 3 of the Rules, 1962 the grant of permission is at the discretion of Federal Government which may be subject to such condition, if any, as it may specify.

8. There is no doubt that the rules are clear that NOC was required to be obtained before marrying a foreign national but in this case the petitioner has explained the difficulties and the exigency under which force of circumstances, he contracted marriage with a foreign national before obtaining the NOC though he had already submitted an application for grant of NOC for marrying which shows that there was no mala fide intention and mens rea on the part of the petitioner in marrying a foreign national. It is also a fact that he has already been issued a show cause notice which culminated in the penalty. At present, the petitioner and his wife and their three children are facing serious hardship and they are under constant threat and duress as the petitioner has to apply for visa extension of his wife to the immigration authorities after every 03 three months but till date the petitioner has not been conveyed any clear response to the application as to whether NOC will be granted to him or not and the entire family is facing uncertainty and fear on account of this inaction on the part of the respondents.

9. There is no doubt that Rule 3 of the Government Servants (Marriage with Foreign Nationals) Rules, 1962 envisages that permission or NOC is need to be applied prior entering into a marriage contract and violation or contravention of this rule makes the person liable to face the disciplinary proceedings and this lapse on the part of any such person tantamount to a misconduct and he may be tried and penalized under the Government Servants (Efficiency and Discipline) Rules, 1973 but fact remains that non-applying the NOC prior marriage or entering into marriage prior NOC may be a misconduct on the part of a delinquent but it does not invalidate or declared the marriage void or voidable. The delinquent may be visited with penalty which has been done precisely in this case. Not only a show cause notice was issued but the inquiry officer also recommended penal action against the petitioner and he has already served out that punishment. Under the rules it is nowhere mentioned that if NOC is not applied or granted, the citizenship will never be granted to the spouse of any Pakistani citizen who contracted marriage with a foreign national or Indian national. Three children from the same wedlock are by birth citizens of Pakistan but the case of their mother for citizenship is pending since 2005 without any logical conclusion and she has to apply for extension of visa after every three months despite lapse of considerable time of her marriage with a Pakistan citizen/national which is causing mental agony and constant fear and anxiety not only to her but to entire family. Unless, the case is properly processed and or recommended by the respondent 2 and 3, further proceedings cannot be initiated and concluded under the Pakistan Citizenship Act.

10. Under Article 13 of the Constitution of Pakistan, protection against double punishment and self- incrimination is provided which embodies the provision of the maxim Nemo debet bis vexari pro una et eadem causa. (It is a rule of law that a man shall not be twice vexed for one and the same cause.)

The common law principle of auture fois acquit (formerly acquitted) and auture fois convict (formerly convicted) means that no one shall be punished or put in peril twice for the same offence. In the case in hand, the petitioner has already been punished and non-grant of NOC amounts to double jeopardy. Had the petitioner dismissed from service even then the matrimonial ties could not be declared void or abrogated. This a purely a matter of procedure which does not put down an embargo or complete prohibition against the marriage with a foreign national under the Citizenship Act 1951 or Muslim Family Law Ordinance 1961. However, it is clear that for obtaining nationality in the above circumstances, one has to apply for citizenship in accordance with the law and fulfill all requisite formalities. Even under the aforesaid rules, the grant of permission is at the discretion of Federal Government subject to such conditions as it may specify.

11. Article 9 of the Constitution of Pakistan provides in clear terms that no person shall be deprived of life or liberty save in accordance with law while under Article 35, it is the responsibility of State to protect the marriage, the family, the mother and the child. Right to marry is a constitutional right in terms of aforesaid article of the Constitution. In the judgment reported in PLD 2012 SC. 1, (All Pakistan Newspaper Society Vs. Federation of Pakistan), the apex court while reiterating the landmark judgment rendered in the case of Shehla Zia and other dictums, again endorsed the view that the word life used in Article 9 of the Constitution is very significant as it covers all facets of human existence. Life includes all such amenities and facilities which a person born in free country is entitled to enjoy with dignity, legally and constitutionally. Further the right to life also includes the right to livelihood. What happened in this case which is between four Pakistan nationals and one foreign/Indian national lady that after every three months visa is being extended which is virtually a sword of Damocles as the effect of visa refusal amounts to deporting the wife of petitioner from Pakistan and if it is done, three minor children will be deprived from the love and affection of their real mother and the petitioner will lose the consortium which would lead to serious violation and contravention of the fundamental rights of the petitioner and his three by birth Pakistan citizen and the entire family will also suffer.

12. According to Section 15 of the Pakistan Citizenship Act 1951, it is clearly explicated that every person becoming a citizen of Pakistan shall have the status of a Commonwealth citizen which means that Indian national has the status of commonwealth citizen. Rule 20 of the Pakistan Citizenship Rules 1952 correspondently provides the procedure for acquisition of Pakistan citizenship by commonwealth citizens and in this regard, the application may be submitted to the Pakistan Mission or Consulate in that country but if the applicant is at the time of application resident in Pakistan, he shall apply to the Federal Government.

13. As a result of above discussion, the Director General, Pakistan Post, is directed to forward the case of the petitioner to the Ministry of Communication for onward transmission to the Ministry of Secretary, Establishment Division for further processing of the case of the petitioner and after completing all the codal formalities and verification of antecedents and credentials, the requisite permission shall be granted to the petitioner in accordance with law so that he may be able to apply for further proceedings under the Pakistan Citizenship Act 1951. This exercise should be completed within a period of two months.

Judge