W.P. No. 2469-P of 2022 | Decided December 2023 | Before the Peshawar High Court

In a landmark constitutional case concerning the rights of foreign spouses married to Pakistani citizens, Mr. Saifullah Muhib Kakakhel represented petitioners in a series of connected petitions challenging the National Database and Registration Authority’s (NADRA) refusal to issue Pakistan Origin Cards (POC). The petitions primarily involved Afghan nationals who had been living in Pakistan for decades, married Pakistani citizens, raised children in Pakistan, and had severed practical ties with Afghanistan.

The core legal question revolved around whether NADRA could impose additional mandatory conditions specifically, the production of a valid foreign passport with a Pakistani visa and mandatory security clearance , when such conditions were not explicitly provided in the POC Rules, 2002. Mr. Kakakhel argued that under Rule 4(5) of the POC Rules, foreign spouses of Pakistani citizens are eligible for POCs as long as the marriage remains intact, and that NADRA’s additional requirements were arbitrary, harsh, and contrary to constitutional principles, particularly Article 35, which guarantees protection of family life. He relied on precedent from the Supreme Court in Muhammad Ibrahim Shaikh v. Government of Pakistan, where unauthorized eligibility conditions imposed by executive instructions were struck down as ultra vires.

NADRA and the Federation defended the additional requirements, citing the Proof of Registration (POR) and Afghan Citizen Card (ACC) systems and emphasizing security and nationality verification.

The Honourable Peshawar High Court delivered a nuanced judgment, holding that while security clearance is permissible under Rule 13 of the POC Rules, the possession of a valid passport and visa cannot be treated as a mandatory eligibility requirement for decades-old marriages. The Court emphasized the protection of family rights under Article 35, the long-term integration of petitioners into Pakistani society, and the welfare of children born in Pakistan. Administrative instructions cannot override statutory rules, and decisions must be reasoned and communicated in writing. The Court also directed seamless registration of marriages and children of Pakistani citizens with foreign spouses.

Ultimately, the writ petitions were partially allowed, with the Court issuing clear directions: POCs must be issued without mandating passports and visas; alternative proof of nationality may be considered; security clearance may be sought; petitioners must be given an opportunity to be heard; and all decisions must be properly reasoned.

This judgment stands as a landmark authority on POC litigation, NADRA policy challenges, the rights of Afghan spouses in Pakistan, judicial review of administrative instructions, and the constitutional protection of family rights. It reinforces the principle that administrative procedures cannot unjustly disrupt the unity of families.