P L D 2025 Islamabad 97

Before Babar Sattar, J

SHAFQAT HUSSAIN---Petitioner
Versus
ABDUL HAMEED and 2 others---Respondents
Writ Petition No. 2775-Q of 2023, decided on 22nd January, 2024.
Qanun-e-Shahadat (10 of 1984)---
----Art. 128--- Specific Relief Act (I of 1877), S. 42---Penal Code (XLV of 1860),
Ss. 420, 468 & 471---Constitution of Pakistan, Arts. 14 & 199---Constitutional
petition---Quashing of FIR---Cheating and using forged documents---Paternity of
an individual---Locus standi---Negative declaration---Scope---Dignity of
individual---Protection of rights of women and children---Respondent/complainant
alleged that petitioner/accused facilitated falsification of NADRA record reflecting
an adopted child as his son---Plea raised by petitioner/accused was that question of
paternity could not be determined by brining criminal charges---Validity---No
negative declaration can be sought under S. 42 of Specific Relief Act, 1877 with
regard to paternity of an individual---Law only vests a right in an individual to seek
a positive declaration regarding his/her paternity---Even a father cannot deny
paternity of a child beyond the period prescribed in Art. 128 of Qanun-e-Shahadat,
1984---No third party, including a putative brother or sister or a family member or a
relative, has locus standi to challenge paternity of an individual as no evidence can
be accepted to negate statutory declaration made by Art. 128 of Qanun-e-Shahadat,
1984---Prohibition against bringing a challenge against paternity of an individual is
designed to protect right of such individual to dignity and privacy guaranteed by
Art. 14 of the Constitution, as well as the collective interest of society in protecting
rights and interests of women and children, including privacy, identity, and
reputation of children from being besmirched from allegations of illegitimacy---
Complainant sought to abuse process of law to question legitimacy and identity of
child for pecuniary gain and in doing so he had used provisions of P.P.C. and
Cr.P.C. to put pressure on the petitioner to enter into a settlement after instigating
arrest of petitioner in relation to FIR in question---High Court in exercise of
extraordinary Constitutional power, quashed FIR. in question that should never
have been registered as no cognizable offence was made out in view of the
petitioner claiming that he was father of minor as was reflected in various
documents which were alleged to have been fabricated by petitioner---High Court
imposed costs of Rs. 100,000/- upon respondent/complainant---Constitutional
petition was allowed, in circumstances.
Mst. Laila Qayyum v. Fawad Qayum and others PLD 2019 SC 449; Daw Pone v.
Ma Hnin May AIR 1941 Rangoon 220; Ghazala Tehsin Zohra v. Mehr Ghulam
Dastagir Khan and another PLD 2015 SC 327; Urooj Tabani v. Federation of
Pakistan through Secretary Ministry of Interior, Islamabad and 2 others PLD 2021
Isl. 105; Mohammad Nazir v. Ali Mohammad 2003 SCMR 1183; Suhail Abbasi v.
Mst. Khushboo and others 2021 CLC 1904; Mohammad Nawaz v. Additional
District and Sessions Judge PLD 2023 SC 461; Meraj Khan v. Gul Ahmed 2000
SCMR 122 and Bashir Ahmed v. Zafar ul Islam PLD 2004 SC 298 rel.
Mohammad Suhail Khursheed for Petitioner.
Raja Shuja-ur-Rehman, Makhdoom Syed Fakhar Imam Ali Shah Bokhari, State
Counsel.
Tanveer Shah and Hanif Kamal, ASIs with record for Respondents.
Date of hearing: 6th December, 2023.
JUDGMENT
BABAR SATTAR, J.---The petitioner is seeking quashment of FIR
No.293/2023 dated 04.08.2023 through which charges under sections 420, 468 and
471 of the Pakistan Penal Code, 1860 ("P.P.C.") has been brought against the
petitioner.
2. The learned counsel for the petitioner submitted that the allegation in the FIR
is that the petitioner has facilitated falsification of NADRA record reflecting his
son Mohsin Shafqat as his child. He submitted that the question of paternity of the
petitioner's child cannot be determined by brining criminal charges against him, and
the charges as alleged are not made out from the content of the complaint. He
submitted that the FIR was motivated by mala fide as the complainant was a police
officer who has recently retired and the I.O investigating the complaint, who had
registered the same, was the complainant's colleague and was trying to benefit the
complainant in relation to the distribution of the property of the petitioner's former
wife who was subsequently married to the complainant and had passed away. He
submitted that the petitioner's wife, now deceased, Ms. Fozia Riaz, died on
22.09.2022. The couple had divorced in 2016 after which there were various
disputes between them including with regard to the custody of their child, which
case was initiated by Ms. Fouzia Riaz and proceedings were still pending. In the
guardian petition filed by Ms. Fozia Riaz, the deceased wife of the complainant and
the former wife of the petitioner, had claimed to be the mother of petitioner's son
(i.e. Mohsin Shafqat). He submitted that in view of Article 128 of the Qanun-e-
Shahadat Order, 1984 ("1984 Order") a challenge to the paternity of the petitioner's
son could not be brought about by a third party such as the complainant as held by
the Supreme Court in Mst. Laila Qayyum v. Fawad Qayum and others (PLD 2019
SC 449). The law as laid down by the Supreme Court clarified that no negative
declaration with regard to paternity could be issued. The complainant wanted to
dispossess Mohsin Shafqat, the son of the petitioner and his former wife Ms.
Fouzia Riaz, from his share of property that devolved upon him after the death of
Ms. Fouzia Riaz. And as he could not do so in civil proceedings in view of the law
laid down by the Supreme Court, the impugned FIR had been registered to bring
pressure to bear upon him and force him into a settlement with the complainant
through abuse of authority by police officials investigating the matter.
3. Learned counsel for the respondent submitted that the petitioner and Ms.
Fouzia Riaz, had executed a divorce deed dated 05.06.2015, wherein it was stated
that the parties had no children. He submitted that the petitioner had also filed a
suit for declaration in relation to the property in the name of Ms. Fouzia Riaz, his
former wife. In the written statement in response to the suit Ms. Fouzia Riaz had
stated that the petitioner and Ms. Fouzia Riaz had adopted a child named Mohsin
Shafqat. He submitted that the FIR did not suffer from any illegality as it alleged
that the petitioner had falsified the Birth Certificate of Mohsin Shafqat by reflecting
him as his son and that of Ms. Fouzia Riaz and had also falsified the Family
Registration Certificate (FRC) again reflecting Mohsin Shafqat as his son and that
of Ms. Fouzia Riaz. And it was the falsification of documents which formed the
subject matter of the complaint.
4. In rebuttal, learned counsel for the petitioner submitted that no cognizable
offence was made out in view of the content of the complaint in terms of section
154 of Cr.P.C. Ms. Fouzia Riaz had died on 22.09.2022. The Birth Certificate of
Mohsin Shafqat was issued by the Government of Sindh and the certificate in lieu
of Mohsin Shafqat was issued by NADRA during the life time of Ms. Fouzia Riaz
and
such documents and their particulars were never disputed or contested by her.
5. The law in relation to the ability of anyone other than the father of a child to
challenge the paternity of the child is well settled. It was held in Daw Pone v. Ma
Hnin May (AIR 1941 Rangoon 220) that where a petitioner was bringing a suit for
declaration to establish a negative case that the defendant was not her daughter,
such suit was not maintainable. The Court had held that if the defendant herself
wished to make a claim that she was the daughter of the plaintiff, if so advised, she
would have a legal right to seek such declaration under section 42 of the Specific
Relief Act, 1877, but no one else had the right to seek a negative declaration.
6. The law laid down in Daw Pone was relied upon by the Supreme Court in
Laila Qayyum and affirmed. In Laila Qayyum the putative brother of Laila Qayyum
had challenged her paternity. The Supreme Court held that the suit as filed by
Fawad Qayyum, "was barred by Article 128 of the 1984 Order. Only a putative
father, within the time prescribed in Article 128 of the 1984 Order, may challenge
the paternity of a child Abdul Qayyum (the father) had not challenged Laila's
paternity. Article 128 of the 1984 Order does not permit a putative brother (Fawad)
to challenge his sister's paternity. In the case of Ghazala Tehsin Zohra v. Mehr
Ghulam Dastagir Khan and another (PLD 2015 SC 327) the putative father was not
allowed to challenge the paternity of the child after the period mentioned in Article
128 of the 1984 Order had expired. This Court reiterated that a child born within
the period mentioned in Article 128 of the 1984 Order shall constitute conclusive
proof of his legitimacy."
7. After laying down the law as stated above, the Court elected to exercise its
powers under Article 187 of the Constitution in order to do complete justice and
dismissed the suit filed by Fawad Qayyum that was still pending adjudication
before Senior Civil Judge, Gulkada, Sawat. This was done as it had been held that a
putative brother had no locus standi to challenge the paternity of his sister on the
basis that she was adopted.
8. The question regarding paternity of an individual had come before the
Supreme Court in Ghazala Tehsin Zohra wherein the rationale behind Article 128 of
the 1984 Order was enumerated, which needs to be reproduced at some length:
"The article is couched in language which is protective of societal cohesion and
the values of the community. This appears to be the rationale for stipulating
affirmatively that a child who is born within two years after the dissolution
of the marriage between his parents (the mother remaining unmarried) shall
constitute conclusive proof of his legitimacy. Otherwise, neither the
classical Islamic jurists nor the framers of the Qanun-e-Shahadat Order
could have been oblivious of the scientific fact that the normal period of
gestation of the human fetus is around nine months. That they then extended
the presumption of legitimacy to two years, in spite of this knowledge,
directly points towards the legislative intent as well as the societal
imperative of avoiding controversy in matters of paternity.
The Muslim Personal Law (Shariat) is clear and well settled on the subject.
Firstly, it provides that legitimacy/paternity must be denied by the father
immediately after the birth of the child as per Imam Abu Hanifa and within
the post natal period (maximum of 40 days) after the birth of the child as per
Imam Muhammad and Imam Yousaf. There can be no lawful denial of
paternity after this stipulated period.
It is for the honor and dignity of women and innocent children as also the value
placed on the institution of the family, that women and blameless children
have been granted legal protection and a defense against scurrilous
stigmatization.
The rationale of the law set out in Article 128 of the QSO read with section 2 of
Act V of 1962 is quite clear. Both statutes ensure (in specified
circumstances) an unquestioned and unchallengeable legitimacy on the child
born within the aforementioned period notwithstanding the existence or
possibility of a fact through scientific evidence. The framers of the law or
jurists in the Islamic tradition were not unaware simpletons lacking in
knowledge. The conclusiveness of poof in respect of legitimacy of a child
was properly thought out and quite deliberate. There is a much greater
societal objective which is served by adhering to the said rules of evidence
than any purpose confined to the interests of litigating individuals. There are
many legal provisions in the statute book and rules of equity or public
policy in our jurisprudence where the interests of individuals are
subordinated to the larger public interest. In our opinion the law does not
give a free license to individuals and particularly unscrupulous fathers, to
make unlawful assertions and thus to cause harm to children as well as their
mothers.
An even more formidable reason for setting aside the impugned judgments is
that no DNA test to determine paternity can possibly be conducted without
 the participation and involvement of the children whose legitimacy is being
denied. A mother (such as the appellant) is wholly irrelevant for the purpose
of a paternity test. Unfortunately this aspect of the case has been overlooked
in the impugned judgments."
9. The legality of a challenge to paternity came before this Court in Urooj Tabani
v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad and 2
others (PLD 2021 Islamabad 105). It was held that a challenge to the paternity of
another person could not be allowed to persevere where it infringed on such
person's fundamental rights guaranteed by Articles 9 and 14 of the Constitution. It
was observed that, "the knowledge of paternity is crucial because it is relatable to
self-esteem, identity, respect in the society and privacy. It is, therefore, also an
integral part of the constitutional right guaranteed under Article 14 i.e. inviolability
of dignity of a person". The Supreme Court in Mohammad Nazir v. Ali Mohammad
(2003 SCMR 1183) held that, "the law leans in favour of presumption of paternity
rather than illegitimacy unless proved by strong evidence. Relying on such dicta,
this Court in Urooj Tabani held that, "the paternity of a registered person, once
incorporated in a computerized National Identity Card, cannot be disputed unless
the person challenging it has obtained a declaration from a competent civil court.
The consequences of disputing a card holder's paternity are profound. The latter is
exposed to unimaginable vilification without fault for the rest of his/her life. The
paternity is of such immense importance to a human that it cannot be disputed
unless the person challenging it has established it otherwise on the basis of strong
evidence and through a fair trial before a competent court."
10. The challenge to the paternity of a person came before the Sindh High Court
in Suhail Abbasi v. Mst. Khushboo and others (2021 CLC 1904) while relying on
Article 128 of the 1984 Order, the Court held that, "a child born after six lunar
months of marriage and within two years after dissolution of marriage, the mother
remaining unmarried, will be considered legitimate and attributed to his/her
putative father. According to the said provision, this fact is regarded as 'conclusive
proof' and no evidence can be admitted to refute it. Article 2(9) of QSO states that
'when one fact is declared by the Order [QSO], to be conclusive proof of another,
the Court shall, on proof of the one fact, regard the other as proved, and shall not
allow evidence to be given for the purpose of disproving it.'" In such case the father
disowning a child beyond the period prescribed under Article 128 of 1984 Order
was not allowed.
11. Most recently the legality of a request to conduct the DNA test to determine
the paternity of individual came before the Supreme Court in Mohammad Nawaz v.
Additional District and Sessions Judge PLD 2023 SC 461 (Civil Petition No.2414-
L/2015) where by judgment dated 05.04.2023 the Supreme Court held that:
"It is also important to note that Article 128 of the Qanun-e-Shahadat, 1984
declares that the fact that any person was born during the continuance of a
valid marriage between his mother and any man shall be conclusive proof
that he is the legitimate child of that man, unless the husband had refused, or
refuses, to own the child. In the present case, the deceased Muhammad
Hussain is not alleged to have refused to own the petitioner as his son
 during his lifetime. Therefore, if the petitioner proves that the deceased
Muhammad Hussain's wife, Rashidaan Bibi, was his mother and he was
born during the continuance of a valid marriage between his mother and the
deceased Muhammad Hussain, this fact shall conclusively prove that he is
the son of the deceased Muhammad Hussain and no evidence, including the
evidence of DNA test, can be accepted to negate the statutory declaration
made by Article 128 of the Qanun-e-Shahadat Order, 1984."
12. In view of the case law discussed above, the following can be concluded:
i. No negative declaration can be sought under section 42 of the Specific Relief
Act with regard to the paternity of an individual. Law only vests a right in
an individual to seek a positive declaration regarding his/her paternity.
ii. In view of Article 128 of the 1984 Order, even a father cannot deny being the
parent of a child beyond the period prescribed in the said provision of law.
No third party, including a putative brother or sister or a family member or a
relative, has locus standi to challenge the paternity of an individual as no
evidence can be accepted to negate the statutory declaration made by Article
128 of the 1984 Order.
iii. The prohibition against bringing a challenge against the paternity of an
individual is designed to protect the right of such individual to dignity and
privacy guaranteed by Article 14 of the Constitution, as well as the
collective interest of the society in protecting the rights and interests of
women and children, including the privacy, identity, and reputation of
children from being besmirched from allegations of illegitimacy.
13. Let us now apply the law to the facts of the present case. The petitioner
claims to be the father of Mohsin Shafqat and further that Mohsin Shafqat was born
during the period when the marriage of the petitioner with Ms. Fouzia Riaz
(deceased) was intact. The Birth Certificate issued by the Government of Sindh
dated 15.01.2013 reflects Shafqat Hussain Sheikh and Ms. Fouzia Riaz as the father
and mother, respectively, of Mohsin Shafqat. Likewise NADRA issued a certificate
in lieu of children of less than eighteen years of age reflecting that Shafqat Hussain
Sheikh and Ms. Fouzia Riaz are the father and mother, respectively, of Mohsin
Shafqat. Such certificate was issued on 21.01.2013. The petitioner and Ms. Fouzia
Riaz remained married till 2016. Neither of them challenged the authenticity of
Birth Certificate issued by the Government of Sindh or the certificate issued by
NADRA. Ms. Fouzia Riaz, who subsequently married the complainant who
registered the impugned FIR against the petitioner, passed away on 22.09.2022.
During her life she did not challenge Mohsin Shafqat's Birth Certificate or the
NADRA Certificate reflecting her as the mother of Mohsin Shafqat. Likewise the
petitioner has never challenged the authenticity of the Birth Certificate or the
NADRA Certificate reflecting him as the father and Ms. Fouzia Riaz as the mother
of Mohsin Shafqat till date.
14. In view of the law laid down by the Supreme Court in Mohammad Nawaz
and Mst. Laila Qayyum, and the Sindh High Court in Suhail Abbasi even the
petitioner is no longer vested with any authority to negate the statutory declaration
and assumption made by Article 128 of the 1984 Order as the period prescribed for
disputing the paternity of Mohsin Shafqat has long passed. Likewise the
complainant who is the subsequent husband of Ms. Fouzia Riaz (deceased) has no
locus standi to challenge the paternity of Mohsin Shafqat either directly or through
any ancillary and or collateral proceedings, such as the complaint that forms the
subject matter of the impugned FIR. The identity and legitimacy of parental
identity of Mohsin Shafqat is protected by Article 14 of the Constitution and the
complainant has no right or standing to question the identity of such child or
dispute his parentage in a bid to inherit a larger share of property left behind by Ms.
Fouzia Riaz (deceased).
15. Under the NADRA Ordinance it is the parents of a child who are under an
obligation to have such child registered under section 9 of the NADRA Ordinance.
A minor child can obviously not have himself/herself registered under the
provisions of the NADRA Ordinance. It is on the basis of credentials entered into
the NADRA database on the basis of information provided by parents that an FRC
is issued and subsequently a CNIC is issued, under section 10 of the NADRA
Ordinance when a minor attains the age of eighteen. The authenticity of the factual
details recorded in the NADRA database cannot be disputed except through a
declaration issued by a Court of competent jurisdiction, as has already discussed
above in view of the law laid down by the Supreme Court in Mst. Laila Qayyum.
No negative declaration can be sought with regard to the paternity of a child, either
directly or through collateral proceedings challenging the parental identity as
reflected in an identity document issued by a state authority, such as a provincial
government or NADRA.
16. As the complainant had no ability to seek a declaration under section 42 of
the Specific Relief Act, 1877, to claim that Mohsin Shafqat was not the son of the
petitioner and Ms. Fouzia Riaz (deceased), he relied on a criminal complaint filed
to achieve through the use of police power indirectly what he could not achieve
directly. This is not permitted by law. What cannot be done directly can also not be
done indirectly is a settled principle of law and equity. Consequently, the content of
the complaint alleging that the petitioner had misreported facts to the Government
of Sindh at the time of issuance of the Birth Certificate, and or to NADRA at the
time of issuance of NADRA Certificate, that Mohsin Shafqat was his son did not
constitute an offence for purposes of Pakistan Penal Code, 1860, and no FIR ought
to have been registered in exercise of authority under section 154 of Cr.P.C.
17. The present case therefore falls within the exceptional circumstances where a
High Court can exercise its constitutional authority to quash an FIR (see for
example Meraj Khan v. Gul Ahmed (2000 SCMR 122) and Bashir Ahmed v. Zafar
ul Islam (PLD 2004 SC 298). This Court is of the opinion that the complainant has
sought to abuse the process of law to question the legitimacy and identity of
Mohsin Shafqat for pecuniary gain. In doing so he has used provisions of P.P.C. and
Cr.P.C. to bring pressure to bear upon the petitioner to enter into a settlement after
instigating the arrest of the petitioner in relation to the impugned FIR. This Court
therefore finds that it is a fit case for exercise of this Court extraordinary
constitutional power to quash the impugned FIR that ought never have been
registered as no cognizable offence is made out in view of the petitioner claiming
that he is the father of Mohsin Shafqat as is reflected in various documents which
are alleged to have been fabricated by the petitioner.
18. The petition is therefore allowed. The impugned FIR is quashed and any
proceedings initiated pursuant to such FIR stand vitiated. The Court will also grant
the petitioner costs in the amount of Rs.100,000/- payable by the
complainant/respondent No.1 within a period of 30 days. Learned counsel for the
complainant will file a certificate with the Deputy Registrar (Judicial) of this Court
stating that the order granting costs has been complied with by or before the expiry
of 30-day period. Let a copy of this judgment be sent to Inspector General of Police
Islamabad who will have an inquiry conducted to determine whether the police
officer who registered the impugned FIR did so to benefit the complainant, a retired
police officer, and whether the police power to arrest an accused was abused to
force the petitioner into a settlement. If the answers are in the affirmative, the IGP
will initiate disciplinary proceedings against those found responsible for abuse of
authority, in accordance with law.
MH/9/Isl. Petition allowe