Wednesday, 22 January 2014

Domicile and Residence Certificate are different

PLJ 2013 Quetta 76 (DB)
Present: Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ.
Dr. AHMED TARIQ CHISHTI--Petitioner
versus
DISTRICT MAGISTRATE, KHUZDAR DISTRICT and 2 others--Respondents.
Const. P. No. 894 of 2011, decided on 20.12.2012.
Pakistan Citizenship Act, 1951 (II of 1951)--
----S. 16--Pakistan Citizenship Rules, 1952, R.26--"Domicile" and "residence certificate"--Distinction--Basic distinction exists between the concept of domicile and that one of permanent or ordinary residence inasmuch as the former relates to status of a person and involves a question of law while the latter is a question of fact--"Domicile and "permanent resident certificate" are altogether different concepts. [P. 81] A
1980 SCMR 456 rel.
Pakistan Citizenship Act, 1951 (II of 1951)--
----S. 16--Pakistan Citizenship Rules, 1952, R. 26--Pakistan Penal Code (XLV of 1860), S. 177--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Domicile and residence certificate--Cancellation of domicile certificate--Petitioner was aggrieved of cancellation of his domicile certificate by District Magistrate on the ground that he was not permanent resident of that district--Validity--Domicile certificates obtained to be used in place of permanent resident certificate, which employers and education institutions invariably required by way of proof of permanent residence in a particular part of Balochistan province--Despite the fact that no citizen of Pakistan, who was recognized as such, needed certificate at all to such effect--High Court recommended that to avoid confusion that invariably had arisen on such score; namely, when such certificates were used to establish permanent residence, the best course for the provincial Government was to provide law on the subject of permanent residence--High Court expected that permanent residence certificate should be issued under rules to be framed for such purpose to meet the requirement--District Magistrate was not competent to cancel a domicile certificate issued, unless person was convicted for an offence under S. 177 of P.C. with S. 16 of Pakistan Citizenship Act, 1951--High Court declared the order passed by District Magistrate as without jurisdiction and lawful authority--Constitutional petition was allowed. [Pp. 82 & 83] B & C
PLD 1983 Quetta 68 and PLD 1983 Quetta 20 ref.
Mr. Mazhar Ilyas Nagi, Advocate for Petitioner.
Mr. Amanullah Tareen, Addl. A.G. for State.
Date of hearing: 27.11.2012.
Judgment
Muhammad Hashim Khan Kakar, J.--This petition is directed against the order dated 23rd August 2011, passed by Respondent No. 1 i.e. District Magistrate,Khuzdar, whereby he cancelled the domicile certificate issued in favour of the petitioner.
2.  Brief facts, leading to the filing of the above petition, as averted in the petition, are that the father of the petitioner, namely, Sher Muhammad Khan Chishti being a civil servant obtained a domicile certificate issued by the then District Magistrate, Kalat on 19th July 1972 and the name of the petitioner appears therein in the column reserved for insertion of the names of children with their age in the said certificate. It has been averred that, subsequently, a separate domicile certificate was issued to the petitioner on 1st March 1988 by the District Magistrate, Khuzdar. The record shows that upon the strength of said domicile certificate, the daughter of the petitioner; viz. Asma Tariq Chishti applied for admission in Bolan Medical College, Quetta, however, one Shakeel Ahmed filed an application before the then Executive District Officer (Revenue), Khuzdar with a view to seeking the cancellation of domicile certificate issued to the petitioner on the ground that he was not permanent resident of Khuzdar. After conducting formal inquiry, the application was allowed with- a result that the domicile certificate issued by his predecessor-in-chair i.e. District Magistrate, Khuzdar, was cancelled vide order dated 25th March 2010. Feeling aggrieved of the said order, the petitioner filed Constitutional Petition No. 261 of 2010 before this Court, which was allowed and the matter as remanded to the District Magistrate, Khuzdar with direction to decide the objections raised by above named Shakeel Ahmed afresh after issuance of show-cause notice to the petitioner and providing full opportunity of hearing. The record further reflects that Respondent No. 1, after hearing the parties, once again cancelled the domicile certificate of the petitioner by means of impugned order, the operative portion of the impugned order reads as under:
"In the light of hereinabove mentioned undeniable facts that the domicile was issued on the basis of improper investigation and has not fulfilled the requirements/formalities. The order of EDO (Rev) is based on fact and has been rightly cancelled the domicile Certificate No. 1126/GB, dated 1st March 1988, every authority has power to withdraw its order obtained by fraud and misapprehension (sic). Hence after detail inquiry which made previously by EDO (Rev) and now in the light of the directions Hon `ble High Court made by the undersigned it is crystal clear that the concerned domicile holder never belongs to Khuzdar thus the order of defunct EDO (Rev) mentioned above is upheld, subject matter disposed off accordingly."
3.  Mr. Mazhar Ilyas Nagi, learned counsel for the petitioner, contended, inter alia, that the issue of admission to the Bolan Medical College is no more alive issue in this case, as the petitioner's daughter had already been admitted to Bolan Medical College against the merit seat. His grievance, however, is that the District Magistrate had no jurisdiction to cancel the domicile certificate of the petitioner. He further submitted that the learned District Magistrate has cancelled the domicile certificate of the petitioner without adhering to the relevant provisions i.e. Section 16 of the Pakistan Citizenship Act, 1951 (hereinafter called the Act, 1951) and Rule 26 of the Pakistan Citizenship Rule 1952 (The Rules, 1952) and fallen in error while mixing up the domicile certificate and permanent resident certificate which are altogether different from each other.
4.  At the very outset it may be observed that the powers of District Magistrate to cancel domicile certificate are limited and are governed by the Act, 1951 and the Rules of 1952. There are two circumstances under which a citizen can be deprived of his citizenship under the Act, 1951. If the central Government is satisfied that the certificate of citizenship has been obtained through fraud or misrepresentation, it can proceed under Section 16 of the Act, 1951 which reads as under:
16. Deprivation of citizenship.--(1) A citizen of Pakistan shall cease to be a citizen of Pakistan if he is deprived of that citizenship by an order under the next following sub-sections.
(2) Subject to the provisions of this section the Federal Government may by order deprive any such citizen of his citizenship if it is satisfied that he obtained his certificate of domicile or certificate of naturalization [under the Naturalization Act, 1926] by means of fraud, false representation or the concealment of any material fact, or if his certificate of naturalization is revoked.
(3) Subject to the provisions of this section the Federal Government may by order deprive any person who is a citizen of Pakistan by naturalization of his citizenship of Pakistan if it is satisfied that the citizen:--
(a)        has shown himself by any act or speech to be disloyal or disaffected to the Constitution of Pakistan;
(b)        has, during a war in which Pakistanis or has been engaged, unlawfully traded or communicated with the enemy or engaged in or associated with any business that was to his knowledge carried on in such a manner as to assist the enemy in that was; or
(c)        has within five years of being naturalized been sentenced in any country to imprisonment for a term of not less than twelve months.
(4) The Federal Government may on an application being made or on its own motion by order deprive any citizen of Pakistan of his citizenship if it is satisfied that he has been ordinarily resident in a country outside Pakistan for a continuous period of seven years [beginning not earlier than the commencement of this Act] and during that period has neither--
(i)         been at any time in the service of any Government in Pakistan or of an International Organization of which Pakistan has, at any time during that period been a member; or
(ii)        registered annually in the prescribed manner at a Pakistan Consulate or Mission or in a country where there is no Pakistan Consulate or Mission [at the prescribed Consulate or Mission or] at a Pakistan Consulate or Mission in a country to the country of his residence his intention to retain Pakistan citizenship.
(5) The Federal Government shall not make an order depriving a person of citizenship under this section unless it is satisfied that it is in the public interest that the person should not continue to be a citizen of Pakistan.
(6) Before making an order under this section the Federal Government shall give the person against whom it is proposed to make the order notice in writing informing him of the grounds on which it is proposed to make order and calling upon him to show-cause why it should not be made.
(7)  If it is proposed to make the order on any of the grounds specified in sub-sections (2) and (3) of this section and the person against whom it is proposed to make the order applies in the prescribed manner for an inquiry, the Federal Government shall, and in any other case may, refer the case to a committee of inquiry consisting of a Chairman, being a person possessing judicial experience, appointed by the Federal Government and of such other members appointed by the Federal Government as it thinks proper."
The other circumstance under which a person can be deprived of his status of a citizen is when he is convicted for an offence under Section 177 of the Pakistan Penal Code, being prosecuted under Rule 29 of the Rules 1952. Rule 26 reads as under:
"26. Penalty for obtaining citizenship by mis-representation.--(1) Any Magistrate of the first class, a Provincial Government or the Central Government on receiving information that person has obtained his certificate of citizenship certificate of registration as a citizen of Pakistan, certificate of domicile or certificate of [naturalization], by fraud, false representation or the concealment of any material fact or that his certificate of naturalization has been revoked, may authorize or require a competent Magistrate to authorize a police officer under Section 155 of the Code of Criminal Procedure (Act V of 1898) to investigate the truth of the information.
(2) If on the result of the investigation it appears that the said person has made statement or furnished information which comes within the mischief of Section 2 of the Act, the Central Government or Provincial Government may direct that the said person be prosecuted under Section 177 of the Pakistan Penal Code (XLV of 1860), or under any other law for the time being in force.
(3) A conviction by the Court shall render null and void any certificate mentioned in sub-rule (1).
6.  We are afraid the learned District Magistrate, Khuzdar instead of following the prescribed procedure laid down under Section 26 of the Rules, 1952, has cancelled the petitioner's domicile without holding proper and necessary inquiry. It may be noted that if it is found that a domicile certificate was obtained by fraud or misrepresentation, it entails necessary punishment under the law. It appears that the District Magistrate, Khuzdar is not aware of the consequences, which can flow from the deprivation of a citizenship by cancellation of the certificate. The citizen is entitled to be certified under the Act, 1951 and he cannot be deprived of his right just by a stroke of pen. As soon as a certificate of citizenship is withdrawn or cancelled, it amounts to denial of civil rights of an individual and moreover the person would have no right to live in the country. As already observed hereinabove, the only mode, whereby a person can lose a right of citizenship of Pakistan, is provided under Section 16 and Rule 26. The Executive is not above law and it must, on challenge to its action, show the legal authority from where it derives the source of its authority. In case the executive fails to show the source of its power, its acts, insofar as they conflict with legally protected interests of individuals can be declared ultra vires and without jurisdiction. It is settled proposition of law that when statute specifically requires a public functionary to act in a particular manner, it must act in that manner and in case of failure on the part of any public functionary it would be deemed an act not to have been taken at all.
7.  We have also observed that the District Magistrate, Khuzdar has failed to apply his mind, while cancelling the domicile certificate of the petitioner. The domicile certificates are to be granted under Section 17 of the Act, 1951, which reads as under:
"17. Certificate of domicile.--The Federal Government may upon an application being made to it in the prescribed manner containing the prescribed particulars grant a certificate of domicile to any person in respect of whom it is satisfied that he has ordinarily resided in Pakistan for a period of not less than one year immediately before the making of the application, and has acquired a domicile therein."
The aforesaid provision of the Act, 1951 clearly demonstrates that the domicile of a person relates to the whole country and has nothing whatsoever to do with the question of permanent resident of such person in a district or any particular part of the country. Legally speaking, there is a basic distinction between the concept of domicile and that one of permanent or ordinary residence inasmuch as the former relates to the status of a person and involves a question of law while the latter is a question of fact. The domicile and permanent resident certificate are altogether different concepts. In this regard, reference can be made to the authoritative judgment of Hon'ble Supreme Court of Pakistan in a case of Muhammad Yar Khan v Deputy Commissioner-cum-Political Agent, Loralai, 1980 SCMR 456, wherein Hon'bleSupreme Court of Pakistan observed as under:
"Having said this, however, we may as well make it clear that a citizen of Pakistan, in view of the exigencies and the complexities of the present day life, may indeed be genuinely in need of obtaining a domicile certificate but that would only mean that he is the domicile of Pakistan, and not of a Province or a part of Province. It is our experience, however, and the present wcase would seem to furnish a concrete instance, that in the domicile certificates granted by the District Magistrates the grantee is often mentioned to be the domicile of a particular Province or a part of the Province, which is wholly incorrect.
We may as well-mention that there is no legal bar in the way of the petitioner, if he is so minded, to make afresh application to the District Magistrate, Loralai, for the grant of a domicile certificate, as he is a citizen of Pakistan by birth, having his ancestral home in the District of Dera Ghazi Khan. As to the certificate of `permanent residence' in the district of Loralai, however, the position is entirely different inasmuch as in the institutions of higher learning of the country certain seats have been reserved for the permanent residents of Balochistan and so it would be the burden of the petitioner to prove that he was also permanent resident of that Province or one of its Districts. If the petitioner succeeds to satisfy the authorities in that behalf we have no doubt that he would succeed in securing a certificate of permanent residence also but that question lies exclusively in the jurisdiction of the authorities."
8.  In view of the observations made by the Hon'ble Supreme Court in the aforementioned judgment, we have no hesitation to hold that there is no need for a person whom the law recognized as citizen of Pakistan to procure a certificate to that effect. Before parting with the judgment we have painfully observed that in spite of repeated directions given by this Court in the cases of: (iSyed Atta Abbas v District Magistrate, Kohlu, PLD 1983 Quetta 68 and (ii) Abdul Hafeez Khan v. Deputy Commissioner, Khuzdar, PLD 1983 Quetta 20, the Provincial Government has failed to provide a law on the subject of permanent residence. We have also observed in a number of cases that domicile certificates obtained to be used in place of permanent resident certificate, which the employers and the education institutions invariably required by way of proof of permanent residence in a particular part of this province. Despite the fact that, no citizen of Pakistan, who is recognized as such, needs certificate at all to such effect. It is reiterated that to avoid confusion that invariably arises on this score; namely, when such certificates are used to establish permanent residence, the best course for the Provincial Government would be to provide a law on the subject of permanent residence. We expect that the permanent resident certificate may be issued under rules to be framed for that purpose to meet the requirement.
For the discussion made hereinabove, we feel no hesitation in saying that the District Magistrate is not competent to cancel a domicile certificate  issued,  unless  the person  is  convicted  for an offence under Section 177 of the Pakistan Penal Code, 1860 (P.P.C.) with Section 16 of the Act, 1951. The result is that the impugned order of the District Magistrate is without jurisdiction and lawful authority and is declared as such. The petition is allowed, with no order as to costs,
(R.A.)  Petition allowed

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