livelawpk.com - The Use of Police Power is not Permissible under Family Law

The Use of Police Power is not Permissible under the Law in the Family Dispute challenging the Authenticity of Birth Certificate issued by NADRA --- IHC

Islamabad 02-02-2024: An important judgment has been passed by Mr. Justice Babar Sattar, Islamabad High Court regarding registration of FIR in Family Dispute on the subject of Birth Certificate issued by NADRA. The Honourable Judge of Islamabad High Court, Islamabad while hearing the proceedings of 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 (“PPC”) against the petitioner on allegation to facilitate the change in NADRA Record in respect of his parentage. The Honourable Court thoroughly discussed the law on the subject of legitimacy of the child and briefly laid down following principles:-

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.

It is further observed by the Honourable Court that the identity and legitimacy of parental identity of minor child 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 the deceased. As the complainant had no ability to seek a declaration under section 42 of the Specific Relief Act, 1877, to claim that the minor child was not the son of the petitioner and 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 the minor child 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.

Finally the Honourable Court concluded that the complainant has sought to abuse the process of law to question the legitimacy and identity of the minor child for pecuniary gain. In doing so he has used provisions of PPC 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 minor child as is reflected in various documents which are alleged to have been fabricated by the petitioner.

Finally the petition is allowed and the impugned FIR is quashed and any proceedings initiated pursuant to such FIR stand vitiated. The Court also granted the petitioner costs of Rs.100,000/- payable by the complainant/respondent No.1 within a period of 30 days. The Honourable Court directed 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.