P L D 1977 Quetta 22 (PLP)

MIR KHUDA BAKHSH MARRI, C. J.‑--This petition under Article 199 of the Constitution of Islamic Republic of Pakistan i9 directed against the order of District Magistrate, Sibi, Memo. No. 1/61‑Act, dated 21st December, 1976 Annex. 'A', whereby he wrote to Secretary Education, Baluchistan, Quetta that "the above‑named Individual may not be considered as Domicile of Sibi District till further orders for all benefits" as well as a letter of respondent No. 1, Department of Education. Quetta through one Nasir Khalil, Section Officer‑11, No. 1‑2/76‑Edn. 11/1695, dated 19th February, 1977, Annex. 'J', whereby with reference to his application dated 18‑2‑1977 the petitioner was informed that "as you did not appear before the Appellate Committee on 11‑2‑1977, besides your domicile certificate has been cancelled by the Deputy Commissioner, Sibi, therefore, your appeal has bean rejected. A copy of your nomination to Peshawar (which was cancelled afterward) is enclosed", with a prayer that cancelling the certificate of Domicile granted to the petitioner may be declared as without lawful authority and of no legal effect and that respondent No, 1, had no authority in law to cancel nomination of the petitioner for admission in the Faculty of Engineering, University of Peshawar and that respondent No. 1, be directed to forward name of the petitioner to the Faculty of Engineering. University of Peshawar, for his admission in the said College in the First Year Engineering Class in the next Semester Le. March, 1977.

2. The facts briefly are that on 23‑11‑1976, the petitioner made an application to the District Magistrate, Sibi for issuance of Domicile Certificate of that District on the basis of his residence at Gullu Shehar, a suburb of Sibi town claiming that he and his uncle having some landed property also there. A kind of enquiry, it appears, was held by the District Magistrate as be called for the report of Tehsildar and Assistant Commissioner and having been satisfied issued the requisite certificate of domicile of Sibi District on 4‑12‑1976, Annex. "C".

3. That respondent No. 1, invited applications for admission to the Engineering Institutions in Pakistan, the petitioner being qualified having passed his F. Sc. (pre‑Engineering) Examination held by Intermediate and Secondary Examination, Baluchistan, Quetta and having been placed in second division obtaining 561 marks, these facts are not in controversy, was awarded a seat by Selection Committee of Government of Baluchistan, as a result they issued a letter No. 1‑2/76‑Edn‑II/11236/42, dated 14‑12‑1976 to the Dean, Faculty of Engineering, University of Peshawar, Annex. "E", including nomination of the petitioner alongwith three other students to the four seats reserved for Province of Baluchistan and he was directed to report to the University.

4. The petitioner went to Peshawar and reported his arrival to the Dean of Faculty of Engineering, on 23‑12‑1976, who, however, intimated to him that "you will be admitted in 1st Year Engineering Class in the next Semester i.e. in March, 1977. The exact date of starting the Semester will be communicated to you later on", but at the same time put up a note to the Section Officer, Government of Baluchistan, requesting that allotment of branch of Engineering may kindly be made to the nominee as earlier requested and that there were four seats reserved for nominees, I.e. two seats in Electrical Engineering and two seats in Mechanical Engineering.

5. Before any reply having been sent by the Section Officer or the petitioner having been formally admitted, as the college still remained closed, the petitioner returned to Quetta and contacted respondent No.

1. To his surprise he was told that his nomination for admission to the college has been cancelled. Neither grounds were supplied to him nor any order. but he was informed that as District Magistrate has cancelled his Domicile Certificates, therefore, he cannot be recommended for admission to the University.

6. An appeal was filed before the respondent No. 2, Annex. "G" and 11‑2‑1977 was fixed for hearing. It is the case of the petitioner that he presented himself in the office of respondent No. 2 and he was told that hearing had been adjourned and no next date was intimated to him but a list of candidates nominated for admission was issued, Exh. `'H" was handed over to the petitioner wherein petitioner's name was omitted. He then made an application to respondent No. 1, on 18.2‑1977, requesting the result of his appeal. He was informed by letter dated 18‑2‑1977, Exh. "J", issued by the same Sectkon Officer‑II, Nasir Khalil on behalf of Government of Baluchistan that "as you did not appear before the Appellate Committee on 11‑2‑1977, besides your Domicile Certificate has been cancelled by the Deputy Commissioner, Sibi, therefore, your appeal has been rejected'".

7. It may be noted h‑.re that although the petitioner alongwith Secretary, Government of Baluchistan, High Powered Appellate Committee and District Magistrate, Sibi impleaded two students as respondents Nos. 3 and

4. As this petition basically challenges the legality or otherwise of a Domicile Certificate issued by District Magistrate, Sibi, we therefore, refrain from calling respondents Nos. 3 and 4, as the judgment is not directed against them.

8. When the matter came for hearing on 3(1‑3‑1977, during the course of arguments the question arose with regard to interpretation of Annex. "J" which is a letter issued by same Section Officer, wherein it is stated that Domicile Certificate of the petitioner has been cancelled by the Deputy Commissioner, Sibi therefore, his appeal has been rejected. Learned counsel for the petitioner pointed out that the letter of the District Magistrate/Deputy Commissioner, Sibi, which is Annex. "A" says something different than the in terpretation put by the Section Officer, and later on the Appellate Committee. The letter simply stated according to the learned counsel, that the petitioner may not be considered as domicile of Sibi District till further orders for all benefits because some candidates have filed some applications that the petitioner is not bona fide resident of Sibi District. It may be pointed out that at earlier date of hearing, we asked the learned Advocate‑General that the contents of the two letters, Annexures 'J' and `A' are irreconcilable because, prima facie, the District Magistrate has not cancelled the domicile certificate of the petitioner because still he had to hold an enquiry, with regard to bona fides of petitioner's Domicile. Learned Advocate‑General did agree to this interpretation and submitted that he may be given time to get further instructions from the Government of Baluchistan to reconsider the withdrawal of their letter Annexure'J', issued by Section Officer, earlier. But later on when matter came again for hearing, Advocate‑General submitted that the respondents are not inclined to reconsider the withdrawal of Annex. T. In view of difficulty with regard to different interpretations of two different letters concerning cancellation or otherwise of Domicile Certificate of the petitioner issued by two different authorities of Government of Baluchistan and inability of the Advocate‑General to take a firm stand and on request of learned counsel for the petitioner we directed that District Magistrate, Section Officer and Secretary Education may be called in Court and examined as to what meaning they put to the letters issued by them and its consequences for the petitioner.

9. It may also be noted that an undated Rejoinder on behalf of Secretary, Government of Baluchistan as well as High Powered Appellate Committee, Department of Education, was filed on 21‑3‑1977. signed both by the Advocate‑General and Section Offcer, Nasir Khalil, the latter supported the facts stated therein by his own affidavit. Apart from the fact that according to Rules of Business and established practice such affdavit3 are to be filed by a Secretary of the Department and not Section Offer, the contents of this Rejoinder instead of clarifying the position created more difficulties in the sense that Vie petitioner filed a reply to the Rejoinder on 22‑3‑1977, whereby he categorically denied the assertion of the respondents in Para. 2 of the Rejoinder to the effect that no domicile certificate was either applied for or issued to the petitioner or his father on or about 17‑9‑1966 and the assertion made in Para. 2 of the Rejoinder supported by Affidavit of the Section Officer, is totally Incorrect and denied: Para. 2 of the Rejoinder filed by Section Officer is as under:‑-- "It will be pertinent to state here that when the petitioner got admission in 1973‑74 in F. Sc. (Pre‑Engineering) in Government Science College, Quetta he relied upon the Domicile Certificate of Quetta district bearing No. 2744/3/59 Citz. dated 17‑9‑1966 issued by Deputy Commissioner, Quetta, in favour of his father in which the petitioner's name was also mentioned as a domicile of Quetta District. He failed in his first attempt to pass F. Sc. examination from the College but eventually succeeded as a private candidate as mentioned above."

10. When confronted with the total denial of the petitioner supported by an affidavit that he neither applied nor obtained any second domicile certificate from Quetta District, we examined Mr. Nasir Khalil Section Officer as to how and why he has made the above statement ire Para. 2 of the Rejoinder without definitely ascertaining the facts? We must state that he cut a sorry figure finding the contents of Para. 2 supported by his affidavit are incorrect, but he stated that this wrong information was supplied by one Professor Rashid Ahmed, Principal, Government Science College, Quetta to the Advocate‑General in his office and ho thought it correct and without verification incorporated the same in the affidavit and signed it. He went on to state that "I have not made enquiries from the Principal about duplicate Domicile Certificate but it was Advocate‑General", although he did agree that it was also his duty to make it sure that the contents of the affidavit filed by him are factually correct.

11. This is one of the rare cases where a responsible officer's statement supported by an affidavit proved later on to be totally incorrect. Had we not examined him and accepted rejoinder as correct which normally is the practice with regard to veracity of statements filed on behalf of the Government, the petitioner would have suffered irreparable loss and there was even possibility that his petition could be dismissed on this paint only in that he had not come with clean hands and thus was not entitled to equitable remedy of this Court. Not only this during his examination by counsel for the petitioner as well as Advocate‑General, this officer tried to shift his responsibility to the Advocate‑General making the situation for himself and for Advocate‑General further unhappy. Learned counsel for the petitioner submitted perhaps very rightly, that Mr. Nasir Khalil has perjured himself not only before this Court but is also liable for filing totally false affidavit. Mr. Nasir Khalil realising the situation stood up in Court and offered his unconditional apologies to the Court for this lapse on his part and submitted that there was no malice or ill‑will and it was his negligence and an over sight. Learned Advocate‑General also made a request and submitted that he may be given a warning. We, therefore, in the circumstances refrain from proceeding against him but issue a stern warning to Mr. Nasir Khalil to be very careful in future.

12. The important question in this petition is under what law sad procedure a Domicile Certificate is issued to a citizen? And whether once a Domicile Certificate is issued by District Magistrate, can he suspend and cancel the same without following the procedure laid down for the seine? In the present case as we have noted earlier the Domicile Certificate, though after a very casual enquiry was issued by the District Magistrate in favour of petitioner on 4‑12‑1976, Anneaure 'A', but on 21st December, 1976, Annezure 'A' he has issued another letter, Memo No. 1/61‑Act, whereby he ordered that "it is decided that the above named individual may not A be considered as domicile of Sibi District till further orders for all benefits". This on the face of it amounted to, and so intended by the District Magistrate, to deprive the petitioner from the benefit of domicile of Sibi to obtain a seat fn the Engineering College and in fact it was considered fn the same light by the High Powered Appellate Committee, however, this order was passed unfortunately without having proper enquiry under the law.

13. When Mr. Mohammad Ali, the District Magistrate eras examined in the Court he did admit issuance of Domicile Certificate, Annexure "C" on 4‑12‑1976 and stated that he was satisfied at that time that the petitioner may be given domicile of Sibi District as he claimed his place of birth was Gullu Shahr, District Sibi but he went on to elaborate that he received an application, Annexure 'A' on 20‑12‑1976 by Mahboob Ali and Ghulam Hayder, two candidates of Engineering College and also another application on the same day by the same persons supported by statements of two local persons, namely, Malik Bohar Khan and Haji Mohammad Akbar Nodhani, recorded on the back of the application earlier, that the petitioner is not domicile of Sibi District, and also some other persons approached him raising doubt with regard to domicile of the petitioner but they made such statements orally. He lad no record of the same and he submitted that after being satisfied he issued the impugned letter cancelling the Domicile Certificate. He was questioned by the counsel for the petitioner that as to what further enquiry he made wit‑i regard to applications made to him by the above‑stated persons that petitioner is not domicile of Sibi District, from 21st December, 1976 up to now and has he any record? He replied that on 21st March, 1977 he has written a letter, Annexure 'C' to the petitioner to come and appear before him on 24th March, 1977 concerning to his domicile certificate. As he was not at Gullu Shahr, he was not served. He did nothing beyond issuance of that letter. He was further questioned as to when he got intimation about the filing of the writ petition fin this Court? Learned District Magistrate submitted that be does not recollect the exact date but he received a message through Advocate‑General some time in the month of March, 1977. In other words, learned counsel for the petitioner submitted that the District Magistrate only took the action when it came to his knowledge that a writ petition has been filed by the petitioner and thereafter he Issued a letter summoning the petitioner and that action according to counsel was naturally an afterthought on his part g to cover up the earlier illegal action taken by him cancelling the petitioner's domicile. There is some force in his submission.

14. It may be noted that certificate of domicile and its cancellation, if necessary, is governed by Pakistan Citizenship Act, 1951 and Pakistan Citizenship Rules, 1952. Section 17 of the Pakistan Citizenship Act, 1951 provides for issuance of Domicile Certificate and section 18 provides delegation of powers of the Central Government in this regard. Sections 17 and 18 are as under‑ "Section 17,‑The Central 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 resides in Pakistan for a period of not less than one year immediately before the making of the application and has acquired a domicile therein. Section 18.‑The Central Government may, by order notified in the official Gazette, direct that any power conferred upon it or duty imposed on it by this Act shall, in such circumstances, and under such conditions, if any, se may be specified in the direction, be exercised or discharged by such authority or Officer as may be specified."

15. Elaborate, procedure for issuance of domicile certificate is provided under section 23 of Pakistan Citizenship Rules, 1952, which is as under:‑-- "Section

23. Certificate of domicile.--‑The Central Government, the Provincial Government or any District Magistrate authorised by the Provincial Government in the behalf may on application made to it in this behalf issue a certificate of domicile in Form 'P. 1, in the manner following:‑-- (a) An application for a certificate of domicile shall be made in Form 'P' in duplicate. It shall be accompanied by an affidavit affirming the truth of the statements made in it and affirming further that the applicant had not migrated to India after the first day of March, 1947, or that, having so migrated, bad returned to Pakistan under a permit for resettlement or permanent return issued by an office authorised by the Government of Pakistan. (b) Any authority to whom an application is presented may demand such evidence as it may consider necessary for satisfying itself that the facts stated in the application are correct and that the applicant has beers continually resident in Pakistan for a period not less than. one year and intends to live permanently in Pakistan. (c) The authority shall pass such orders on the application as it deems fit."

16. As to cancellation of certificate of domicile or certificate of naturalisation obtained by fraud, false representation or the concealment of any material fact, the procedure provided under section 26 of Pakistan Citizenship Rules, to be followed which is as under:‑ "Penalty for obtaining Citizenship by representation.‑(1) Any Magistrate of the first clans, a Provincial Government or the Central Government on receiving information that a person has obtained his certificate of citizenship, certificate of registration as a citizen of Pakistan, certificate of domicile or certificate of naturalisation, by fraud, false representation or the concealment of any material fact, yr that his, certificate of naturalisation bas been revoked, may authorise or require a competent Magistrate to authorise a police officer under section 155 of the Code of Criminal Procedure. 1898, to investigate the truth of the information. (2) If on the result of the investigation it appears that the said person has made a statement or furnished information which comes within the mischief of section 21 of the Act, the Central or Provincial. Government may direct that the said person be prosecuted under section 177 of the Pakistan Penal Code or under any other law for the time being in force. (3) A conviction by the Court shall tender null and void any certificate mentioned in sub‑rule (1)."

17. We are afraid the learned District Magistrate instead of following the prescribed procedure laid down under section 26 of Pakistan Citizenship Rules, 1952, has cancelled the petitioner's domicile without holding the proper and necessary enquiry. It may be noted if it is found that a certificate was obtained by fraud or misrepresentation, it entails necessary punishment under the law.

18. It was argued by counsel for the petitioner that mere issuance of notice to the petitioner to come and appear before him and give explanation with regard to his domicile certificate, issued by the same officer and that also not having been served, cannot be called proper enquiry as laid down in rule 26 of Pakistan Citizenship Rule:, 1952. Over and above, domicile certificate issued earlier had been cancelled by Letter No. 1/6‑Act, dated 21st December, 1976, Annex. "A". That being the position he submitted that the entire procedings taken in this case are void and of no legal effect. Learned District Magistrate failed to give any satisfactory answer as to why he in a hot haste issued the impugned letter without following the proper procedure as laid down by rule 26 of the Pakistan Citizenship Rules, 1952.

19. In our opinion in this case while cancelling the domicile certificate of the petitioner what has been done by the respondent amounts to putting the cart before the horse, that is, first issuing the certificate and then cancelling tire same without complying with the requirements of law and following it. This cannot be appreciated.

20. We may also reproduce the policy laid down by the Government of Baluchistan with regard to admission of students to Colleges, which is Annex. 'K' and hope that authorities concerned in future will also keep in view and follow the policy strictly. The policy is asunder.‑-- "(1) Admission should be on district quota on district merit basis. (2) In Quetta District distinction between urban and rural areas should be maintained and the new Municipal areas of the district like, Sirki. Huda, Mureeabad etc, should continue to be treated as rural areas. (3) 12 years' continuous stay in Baluchistan is essential for a domicile for applying for seat. (4) 5 marks per year shall be deducted for each year that elapsed after passing F. Sc. Examination. (5) F. Sc. shall be preferred over B. Sc. (6) Education from primary to F. Sc, should be from Baluchistan except in those cases, where the parents of applicant remained out of Baluchistan in connection with their services. (7) 20 marks will be given to those students who completed 2 years' N. C. C. Training.

21. We may note here that every year High Court is flooded with writ petitions filed by students with regard to obtaining and cancelling the domicile certificates by different authorities. Students or their parents naturally being very anxious to get admission to the very limited seats of the Province in various colleges do attempt to manipulate to obtain domicile certificate by all means which cannot be appreciated but again the respon sibility lies with the respective 9istrict Magistrates and the other Education Departments concerned that before issuance of a domicile certificate the law and procedure referred to above must be strictly followed so ass to not deprive any deserving student from the right of getting admission. Had in this case at the initial stages the law and procedure been strictly followed the learned District Magistrate would not have suffered the embarrassment of issuing second letter of cancellation of domicile certificate and the petitioner would have been saved from taking the trouble to go to Peshawar for admission and undergo unnecessary expenses and hardships. We hope that in future all the District Magistrates and the Education apartments will see to it that complete enquiry is made and all necessary particulars and evidence are recorded before issuing a domicile certificate.

22. Be that as it may, for the reasons given above, there is sufficient force in, this petition which we accept and hold that the impugned orders are illegal and have been passed without lawful authority, but we make no order as to costs. However we make it clear that District Magistrate, Sibi, is free to continue with the enquiry of the petitioner's domicile earlier initiated by him, according to law if so advised. Copy of this judgment be sent to Chief Secretary, Government of Baluchistan. S. A. H. Petition accepted.