Banking court | Appeal accepted | Id cards unblocked
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| Banking court blocked id card open by high court. |
In this case, M/s Al-Harmain & Co. contested a suit filed by MCB Bank Limited for the recovery of funds. The Banking Court issued non-bailable arrest warrants and blocked CNICs of the appellants without proper inquiry. The appellants argued that this violated due process, citing relevant case law. The court agreed, emphasizing the importance of CNICs in daily life and fundamental rights. The appeal was allowed, and the impugned order was set aside, permitting a fresh process to be initiated lawfully.
ینک کی طرف سے دائر کردہ مقدمہ ۔ بینکنگ کورٹ نے ناقابل ضمانت وارنٹ گرفتاری جاری کیے اور مناسب انکوائری کیے بغیر اپیل کنندگان کے شناختی کارڈ بلاک کر دیے۔ اپیل کنندگان نے استدلال کیا کہ اس سے متعلقہ کیس قانون کا حوالہ دیتے ہوئے مناسب عمل کی خلاف ورزی ہوئی ہے۔ عدالت نے روزمرہ کی زندگی میں CNICs کی اہمیت اور بنیادی حقوق پر زور دیتے ہوئے اتفاق کیا۔ اور اپیل منظور آرڈر بینکنگ کورٹ set a side کر دیے۔
Stereo. H C J D A-38.
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, MULTAN BENCH,
MULTAN
JUDICIAL DEPARTMENT
EFA No.26 of 2023
M/s Al-Harmain & Co. & others
Versus
MCB Bank Limited
J U D G M E N T
Date of hearing: 16.04.2024.
Appellants by:
Mr. Muhammad Suleman Bhatti, Advocate.
Respondent ex parte.
MUHAMMAD SAJID MEHMOOD SETHI, J.- Through
instant appeal, appellants have assailed vires of order dated
26.04.2023, passed by learned Judge Banking Court-I, Multan,
whereby non-bailable warrants of arrest of appellants were issued
and CNICs of appellants No. 2 & 3 were blocked.
2.
Brief facts of the case are that respondent-bank filed suit for
recovery of Rs. 51,28,534.37 along with mark up, cost and cost of
funds from the date of expiry of finance till realization of dues. The
suit was contested by appellants by filing petition for leave to
defend the suit. Learned Judge Banking Court-II, Multan, after
hearing the arguments of learned counsel for the parties, dismissed
said application and passed judgment & decree dated 06.07.2010
for recovery of Rs.51,28,533.59 with costs of suit and cost of funds
till the date of its realization. During execution proceedings,
respondent moved application for issuance of warrants of arrest and
blockage of CNIC of the judgment-debtors. Learned Judge Banking
Court-I, Multan, vide impugned order dated 26.04.2023 issued nonbailable warrants of arrest against appellants No.2 & 3 along with
direction to block their CNICs. Hence, instant appeal.
EFA No.26 of 2023
2
3.
Learned counsel for appellants submits that neither any
inquiry was conducted nor show cause notice was issued prior to
issuance of non-bailable warrants of arrest, within the meaning of
Order XXI Rules XXXVII & XL read with Section 51 CPC,
therefore, impugned order is absolutely illegal and without lawful
authority. In support, he has inter alia relied upon Messrs Azhar &
Co. and others v. National Bank of Pakistan (2018 CLD 830) and
Muhammad Asif v. Standard Chartered Bank (Pakistan) Limited
through Manager (2022 CLD 1021).
4.
None is present on behalf of respondent-bank to rebut the
above submissions, since it has already been proceeded against ex
parte vide order dated 21.09.2023.
5.
Heard. Available record perused.
6.
The order of learned Judge Banking for issuance of
warrant of arrest and blockage of CNICs of appellants No.2 & 3 are
under-challenge before us.
7.
As regards blockage of the CNICs, we feel it appropriate to
go through the provisions of the Financial Institutions (Recovery of
Finances) Ordinance, 2001 (“FIO, 2001”) dealing with the powers
of a Banking Court while executing a decree. Section 19 of the FIO,
2001 mainly provides that mortgaged, pledged or hypothecated
property and other assets of the judgment-debtor would be the
subject matter of the execution. Section 19(2) provides various
modes / actions to be taken by the Banking Court to execute a
decree coupled with powers given in various sub-sections of
Section 15 of the FIO, 2004 and bestows it with powers of
Executing Court provided in the Code of Civil Procedure, 1908 or
any other law for the time being in force. We have a glimpse to the
afore-referred provisions of the FIO, 2001 together with the
provisions of CPC dealing with powers of the Executing Court,
however are unable to find any direct provision empowering to
block CNIC of a judgment-debtor
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8.
Section 18(1) of the National Database and Registration
Authority Ordinance, 2000 empowers NADRA to cancel,
impound or confiscate a CNIC, after giving notice in writing to
the holder of CNIC to show cause as to why such order should not
be passed. Section 18(2) enumerates the instances / circumstances
in which such action can be taken, which includes (a) the card
has been obtained by a person who is not eligible to hold such card,
by posing himself as eligible; (b) more than one cards have been
obtained by the same person on the same eligibility criteria;(c) the
particulars shown on the card have been obliterated or tampered
with; or (d) the card is forged. Apparently, no instance of
blocking a CNIC, pertinently while conducting executing
proceedings by a court of law, is visible in the afore-referred
provision. Section 18(3) provides right of appeal to aggrieved
person before the Federal Government against the order passed
against him and again notice providing of hearing is expedient
before deciding the appeal. We are mindful of the fact that the
legislature has made it obligatory upon the NADRA authority as
well as the appellate authority to have given a fair opportunity of
hearing to lead the defence to the affected person in terms of
Section 18 ibid. We have gone through the impugned order and
proceedings being conducted before passing the said order and
are astonished to observe that no such exercise of issuing a show
cause notice to appellants to explain their position was
undertaken by the learned Judge Banking Court.
9.
In the case reported as Muhammad Umar v Federation of
Pakistan, through Secretary, Ministry of Interior, Islamabad and 2
others (PLD 2017 Sindh 585), NADRA had blocked the
petitioner’s CNIC by issuing a notice under Section 23 instead of
Section 18 of the NADRA Ordinance. The Sindh High Court
observed that while the term ‘block’ was alien to the NADRA
Ordinance, Section 18 did allow the authority to impound a card
under certain conditions. The act of impounding a document is
EFA No.26 of 2023
4
completed by taking possession of the document, thus, if NADRA
decides to impound a card under the directives of the Federal
Government, they may direct the person to deposit their CNIC to
NADRA. It was further observed that, it is mandatory that NADRA
issues notice to the concerned person of the same under the relevant
section, and gives them a fair and proper chance of hearing.
Therefore, ‘blocking’ of a CNIC without giving a chance of hearing
was held to be illegal as the same was not warranted under the law.
Likewise, this Court in the case reported as Hafiz Awais
Zafar v Judge Family Court, Lahore and 2 others (PLD 2022
Lahore 756), held that an individual cannot be deprived of his
identity card without due process and “In as much as cancellation,
impounding or confiscation of CNIC impacts the fundamental
rights of a person, the provisions of section 18 of the Ordinance
must be strictly construed and scrupulously followed. Any order
passed or action taken on a consideration other than those
stipulated therein cannot sustain.”
Similarly, in the judgment reported as Urooj Tabani v
Federation of Pakistan through Secretary Ministry of Interior,
Islamabad and 2 others (PLD 2021 Islamabad 105), NADRA had
issued a notice to the petitioner that she had obtained her CNIC
through unfair means, and then subsequently impounded her CNIC
as well as segregated her from the family tree. The Islamabad High
Court held that NADRA did not have the authority to ‘block’ a
CNIC upon receiving the complaint of a third party as presumption
of truth is attached to the CNIC and the particulars recorded therein.
It was further observed that the powers of impounding, cancelling
or confiscating a card under Section 18 are explicitly confined to
the four grounds prescribed.
10. Needless to say that Section 19 of the NADRA Ordinance,
2000 specifies a few circumstances when the CNIC is
compulsorily required, which include passport, permit or other
travel documents for going out of Pakistan and identification of a
EFA No.26 of 2023
5
voter at various elections. Section 19(3) empowers the Federal
Government to specify any other purpose for which the
production of any card issued by NADRA shall be necessary.
Presently, the need for the CNIC has increased manifold. Almost
every government and private organization requires CNIC from a
person before attending them. CNIC is also expedient to get
admission in higher education programs, apply for a job, open a
bank account, get a driving license or arms license, get utility
connections, purchase railway and air tickets, execute any
instrument, stay in a hotel or lodge, appear in a court proceedings
and enter in certain buildings and premises etc. CNIC is essential
for enjoyment of a number of fundamental rights, hence, a person
cannot be deprived of it without due process. The superior Courts
have expanded the right to life over time (provided in Article 9 of
the Constitution of the Islamic Republic of Pakistan, 1973) and
held that it includes the right to legal aid; the right to speedy trial;
the right to bare necessities of life; protection against adverse
effects of electro-magnetic fields; the right to pure and
unpolluted water; the right to access to justice; the right to
livelihood; the right to travel; the right to food, water, decent
environment, education and medical care. Personal identity of a
person comprises all those aspects of his profile which are
significant to him. Right to identity is also associated to the right
to life (Article 9) and would also be read into Article 14, which
guarantees dignity of man.
11. According to the provisions of Order XXI, Rules 37 C.P.C.
where an application for the arrest and detention is made, the Court
instead of issuing warrant for arrest, may issue a notice calling upon
the judgment-debtor to appear on a date specified in the notice and
show cause as to why he should not be detained in prison. If the
judgment-debtor does not appear in response to notice, the Court
shall issue warrant for the arrest of judgment-debtor as provided
under Rule 37(2). Rule 40 CPC provides that where the judgment-
EFA No.26 of 2023
6
debtor appears in the Court in pursuance of the notice or is brought
before the Court after being arrested, the Court shall hear the
decree-holder, take all such evidence as may be produced by him in
support of his application and shall then give judgment-debtor an
opportunity of showing cause why he should not be detained in
prison and that pending conclusion of inquiry the Court, in its
discretion, order to release the judgment-debtor on furnishing of
security to the satisfaction of the Court for his appearance, when
required, and that on conclusion of inquiry, the Court can subject to
the satisfaction of provisions of Section 51, C.P.C., make an order
in respect of detaining the judgment-debtor in prison. These rules
and procedure therein have been considered in a number of cases
and the consistent view taken is that before passing an order for
arrest and detention of judgment-debtor, the Court shall after due
inquiry and affording opportunity of evidence to parties, determine
that the pre-conditions for the issuance of such directive have been
satisfied by the decree-holder. Reference can be made to Habib
Ahmad v. Haji Munir Ahmad (2004 YLR 1540), Messrs 3-A Trade
Impex through Partner and 2 others v. Askari Commercial Bank
Ltd, through Branch Manager (2005 CLD 1379), Abdul Basit
Zahid v. Modaraba Al-Tijarah through Chief Executive and 2
others (PLD 2000 Karachi 322) and Muhammad Kaleem v.
Arslan Aslam and others (2023 CLC 796).
12. It is pertinent to mention here that agricultural land of the
judgment-debtors has already been redeemed and another
agricultural land measuring 195-K 02-M, situated at Mouza Turbet
Haji Shah, Tehsil & District Jhang, is under mortgage and order
could have been passed regarding said property as permissible
under the law, therefore, there appears no justification to pass
impugned order, especially when prerequisites have not been
observed.
13. For the foregoing reasons, instant appeal is allowed.
Consequently, impugned order dated 26.04.2023 is set aside being
EFA No.26 of 2023
7
illegal and without lawful authority. However, learned Executing
Court shall be at liberty to initiate fresh process as per law and the
above observations of this Court.
(Raheel Kamran)
(Muhammad Sajid Mehmood Sethi)
Judge
Judge
APPROVED FOR REPORTING
Judge
Judg
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