P L D 1967 Dacca 627 (PLP)

He has of course, argued that the holding of the Indian Passport raises a very strong presumption to the effect that the holder is the citizen of the country of the Passport and although it is not conclusive evidence of nationality, it must be considered to be a strong evidence. But in the facts and circumstances of the case, I find that the accused was a Pakistani citizen by birth and before it is claimed that he became citizen of another country, it must be shown that he lost citizenship of Pakistan. He will lose the citizenship of this country if he goes to another with the intention of permanently residing in that country. In this case the prosecution has miserably failed to give any evidence of any such intention. No evidence has been given to the effect that his near relations have left Pakistan and family properties had been liquidated. On the contrary I find that his father, mother, brothers and his wife and children are staying in Pakistan. In these circumstances, it is impossible for me to attribute to the accused any intention of his permanently leaving this country. Lack of this intention is also found in Exh. 1, the visa. It should be noticed in this connection that the accused has categori cally stated in his visa that he is unemployed and is dependant on his brother. In the peculiar facts and circumstances of the case, I am, therefore, of opinion that the presumption arising out of the holding of Indian Passport, has been rebutted by the evidence adduced on behalf of the defence to the effect that he never intended to leave Pakistan permanently. A person may hold a Passport of another country owing to a variety of reasons and it cannot be deemed to be a conclusive proof of the nationality of the country of which he holds the passport although a strong presumption arises to that effect, The view expressed above finds full support in the case of Abida Khatoon and another v. State of U. P. and others (A I R 1963 All, 260). In that case Abida and her husband, Abdul Shakoor, Indian citizens by birth, instituted a suit as plaintiffs for declaration that they were Indian citizens. That was Civil suit and as plaintiffs the burden to prove their case would be on them. But it was held in that case that after the plaintiffs proved their Indian citizenship by birth, it was for the Sate to prove that they lost their Indian Citizenship. An attempt was made on behalf of the State of U. P. to prove the same on the basis of a state ment made in a petition by the husband of Abida in the following terms: "I was compelled to cast a lingering look behind my native country and cherished home and to bid adieu to all that was dear to me." Next point made against the plaintiffs was that they held Pakistani Passports when they returned to India. The plaintiffs' case was to the effect that Abida had a brother at Karachi and she, along with her husband, had gone to stay for sometime with her brother who died after about 10 months and thereafter Abida and her husband returned to their country. Dhawan, J. held that the State failed to prove that in these circumstances the plaintiffs lost their citizenship of India and the learned Judge further observed that merely because they held Pakistani Passports they could not be declared citizens of Pakistan. The position of the accused before me is much stronger. That was a civil suit in which the plaintiffs were to prove all their allegations. This is a criminal case in which the State has to prove all the allegations to bring home the charge made against an accused. It is true that he holds an Indian Passport but that is not enough. The prosecution has also to prove that he lost e citizenship of Pakistan. Dealing with the question of intention Dhawan, J. of Allahabad High Court observed in the aforesaid case as follows:‑ "Citizenship does not evaporate with the passing of time, it clings to a person wherever he may roam. It cannot be taken away from him unless he ,voluntarily renounces it or is guilty of some conduct involving loss of citizenship. The onus of proving that a citizen of India has lost his citizen ship is on the party seeking to deprive him of his rights as a citizen." He has further observed:‑ "In my opinion an Indian Citizen could not migrate to Pakistan without a conscious desire to abandon, and actually abandoning, his domicile of origin." Referring to the question of Passport, the learned Judge observed as follows: "A passport does not confer citizenship of that state and does not necessarily explain how or when he acquired it. The holder may be the citizen of that State by birth or naturalisation, or by any other manner permitted by Law. A passport is prima facie evidence that the person in possession of it acquired at sometime prior to its issue, the citizenship of the country whose Government issued it. But the presumption is not conclusive but rebuttable. " Referring to the Pakistani Passports the learned Judge observed:‑ "But there is no evidence that they applied for a Pakistani Passport for any purpose other than returning to India." The learned Judge has clearly said that even in a civil suit onus was on the party which seeks to deprive them of their rights of a citizen to prove that citizenship was in fact lost. He has further observed that a mere intention to leave India would not be enough to lose Indian Citizenship. He has said that intention must be fulfilled. If the intention is frustrated by some reason or other the loss of citizenship is not effected. Dhawan, J. expressed himself on this point as follows: "To every adult person the law assigns a domicile which is called the domicile of origin and which remains attached to him until a new and different domicile takes its place. The domicile of origin must prevail until the party has not only manifested but carried into execution an intention of aban doning his former domicile and acquiring another as his sole domicile." He accordingly declared the plaintiffs Abida and her husband to be citizens of India. These observations fully apply to the case before me as well. No evidence has been adduced by the prosecution that the accused had any other intention to hold Indian Passport than returning to Pakistan. The views expressed by me find support from the common law of England. In the case of Winans and another v. Attorney General ((1904) A C 287), it was held that the onus of proving that a domicile has been chosen in substitution for the domicile of original lies upon those who assert that the domicile of origin has been lost. The domicile of origin continues unless a fixed and settled intention of abandoning the first domicile and acquiring another as the sole domicile is clearly shown. The prosecution in the instant case has totally failed to prove that the accused left Pakistan with the intention of perma nently settling in India or that he subsequently lost citizenship of Pakistan. The question of frustrated intention of settling in India does not arise in this case as there is no proof that he had even initially any such intention. In the facts and circumstances of the case, I must hold that the accused continues to be a citizen of Pakistan and, therefore, he committed no offence under the Pakistan (Control of Entry) Act. For the reasons stated above, the appeal is dismissed. The order of acquittal made by the learned Additional Sessions Judge of Khulna is affirmed. Appeal dismissed.