2010 PLP 1749 (CLC)

MUHAMMAD AZAM KHAN, J.

These two appeals, by leave of the Court, arise out of the judgment of Azad Jammu and Kashmir High Court dated 6-3-2009, whereby Writ Petition No.812 of 2008 has been accepted, Domicile Certificate and Permanent Resident Certificate (hereinafter referred to be PRC) issued in favour of the appellants by District Magistrate Muzaffarabad have been cancelled. The Nomination Board of Azad Jammu and Kashmir was directed to withdraw the nominations of present appellants from the medical colleges concerned and nominate the candidates out of the petitioners, therein, in plate of the present appellants. Since both the appeals arise out of the same judgment we propose to decide both the appeals through this single judgment.

2. The necessary facts for disposal of present appeals are that respondents Nos. 1 to 5 filed a writ petition in the Azad Jammu and Kashmir High Court stating, therein, that they are permanent residents of District Muzaffarabad. They have passed the F.Sc. pre-medical examination and their names appear at S. Nos.20, 21, 22, 23 and 27 in the list of candidates from Muzaffarabad District for nomination in M.B.,B.S. course for the year 2008-2009. Waqas Ahmed Baig and Maryam Ali Shaheen are at S. Nos. 1 and 2 of the list. It was alleged that grandfather of Maryam Ali Shaheen (Ghulam Muhammad) was resident of Dagor, Tehsil Sanmba, District Jammu prior to 1947. During the War of Liberation he migrated from District Jammu and settled in village Agwal, Tehsil and District Narowal of Pakistan. Her father was born in District Narowal. Admittedly Maryam Ali Shaheen, her father and grandfather are refugees from occupied Kashmir. She and her father with misrepresentation, fraudulent means and with the connivance of the official respondents secured domicile certificate and PRC from District Magistrate Muzaffarabad. On the basis of State Subject and domicile Certificate and PRC obtained from District Muzaffarabad, she applied for a seat reserved for the candidates of District Muzaffarabad for M.B.,B.S. course and the Nomination Board has illegally nominated her for the course. In respect of Waqas Ahmed Baig, it was alleged that he is a member of refugee family who was permanent resident of Balkot, Tehsil Uri, District Muzaffarabad. During the War of Liberation they migrated from Balkot and their grandfather permanently settled in village Sirjiwar, Tehsil Havali, District Poonch. The father of Waqas Ahmed Baig is serving in National Bank of Pakistan who at the time of applying for job in NBP filed a copy of National Identity Card, wherein, his permanent address is shown that of Sirjiwar, District Poonch. Waqas Ahmed Baig has obtained State Subject Certificate, domicile certificate and PRC from District Muzaffarabad with the fraudulent means and with the connivance of the official respondents and on the basis of these documents he applied for admission in M.B.B.S. course as a candidate of District Muzaffarbad. The Nomination Board nominated him against a seat reserved for District Muzaffarabad illegally. The Azad Jammu and Kashmir High Court accepted the writ petition, cancelled the domicile certificate and PRC issued in their favour and directed the Nomination Board of Azad Jammu Kashmir to withdraw their nominations from the concerned medical colleges. It was further directed that the candidates out of the petitioners, in view of merit position, shall be nominated against these seats.

3. Mr. Mujahid Hussain Naqvi, the learned counsel for appellant, Waqas Ahmed Baig, in Appeal No. 58 of 2009 has argued the following points:-- (a) That the writ petition in the High Court was not maintainable because alternate remedy by way of appeal is provided in the State Subject Rules of 1980. Under rule 6 an appeal from the order of District Magistrate is competent before the Government and under rule 10 an appeal can be filed before the Azad Jammu and Kashmir Council, therefore without first availing the remedy of appeal the writ petition was not maintainable. A remedy of appeal before the Government against the order of Nomination Board was available under rule 20 of the Azad Jammu and Kashmir Nomination Board Rules. The petitioners have not filed any appeal, therefore, the writ petition was not maintainable. The objections were filed on the domicile and State Subject Certificates of the appellant before the District Magistrate/Collector Muzaffarabad, which were rejected for want of proof. No appeal was filed against this order, therefore, the writ petition is not maintainable. (b) That prior to partition appellants grandfather was a permanent resident of District Muzaffarabad. During the War of Liberation he migrated and settled in Muzaffarabad city. He all along remained in District Muzaffarabad. He died and buried in Muzaffarabad. He has no concerned whatsoever with District Poonch/Bagh; (c) That father of the appellant was born in District Muzaffarabad. He was brought up and educated in District Muzaffarabad. He obtained State Subject and domicile certificates from District Muzaffarabad. Uncles of the appellants have also got State Subject certificates from Muzaffarabad. The appellant was born in Muzaffarabad, brought up and educated in Muzaffarabad. He has also obtained State Subject, domicile certificates and PRC from Muzaffarabad District; (d) That father of the appellant has constructed a house in Muzaffarabad. The appellant and his father have firm intention of permanently residing in Muzaffarabad; and (e) That the learned Chief Justice in the High Court has relied upon a copy of Khasragirdawari and a report of some Patwari relating to village Sirgiwar, whereby the father of the appellant has inherited some agricultural land from his mother. He claimed that law on the State Subject and domicile certificate is very much clear that domicile of the father is to be followed. The learned Chief Justice in the High Court at one has declared that for the purpose of domicile, the domicile of father has to be .seen, while on the other cancelled the domicile certificate and PRC on the ground that father of the appellant has inherited some property from his mother in village Sirjiwar, Tehsil Abasspur, District Bagh. He relied upon the President's Reference No. l of 1996 reported in PLD 1997 SC (AJ&K) l and asserted that there is no proof on record that grandfather of the Appellant ever settled in District Poonch/Bagh or ever procured 'the allotment of any evacuee property in District Poonch/Bagh or ever constructed a house over there and resided in District Poonch. The learned Chief Justice in the High Court has relied upon such evidence which was not admissible and on the basis of fabts relating to Maryam Ali Shaheen it was declared that the present appellant is domicile of District Narowal.

4. While controverting the arguments, Khawaja Muhammad Maqbool War, the learned counsel for the respondents Nos. 2 and 3, argued that grandfather of the appellant migrated from Uri and settled in District Poonch/Bagh. He is permanent resident of Tehsil Abbaspur., District Bagh. The father of the appellant has joined the service in National Bank of Pakistan and while joining the service he has filed a copy of National Identity Card wherein his permanent address is entered that of village Sirjiwar, Tehsil Havali, District Bagh, which negates the claim of the appellant that he along with his father is permanent resident of District Muzaffarabad. He contended that copy of Khasragirdawari and certification by the Revenue Officer (Patwari) produced by the petitioner in the High Court sufficiently proved that the father of the appellant has landed property in village Sirjiwar, Tehsil Havali, District Bagh. He contended that appellant is permanent resident of District Bagh. He has got State Subject and domicile certificates and PRC with fraudulent means and with the connivance of the official respondents which were rightly cancelled by the High Court. He contended that the alternate remedy was not an efficacious remedy, therefore, the only remedy available was of writ petition.

5. In rebuttal, Mr. Mujahid Hussain Naqvi, has argued that unattested Photostat copy of National Identity Card purported to be as of Mukhtar Ahmad Baig, father of the appellant, has been attached with the writ petition. In para 7 of the writ petition it was alleged that copy of NIC of Waqas Ahmed Baig is attached herewith, there is no reference of copy of National Identity Card of Mukhtar Ahmed Baig. This document cannot be read in evidence.

6. The learned counsel for Maryam Ali Shaheen in Appeal No. 59 of 2009, Mr. Asghar Ali Malik, firstly argued the point of maintainability of writ petition on similar grounds which were raised by Mr. Mujahid Hussain Naqvi that alternate remedy by way of appeal before the Government, the Azad Jammu and Kashmir- Council under State Subject Rules and before the Government under the Nomination Board Rules has not been availed, hence the writ petition is not competent. On the factual side he argued that it is admitted position that grandfather of the appellant was resident of Sanmba, District Jammu, who migrated during the War Liberation and settled in District Narowal of Pakistan. The father of the appellant was born in District Narowal, who shifted to Muzaffarabad in year 1984. He married at Muzaffarabad in year 1985. The appellant was born in Muzaffarabad. She was brought up and passed all the examinations up to F.Sc. from Muzaffarabad. Her father in 1984 permanently shifted from Narowal to Muzaffarabad and all along been living in Muzaffarabad as a permanent resident. Her father along with the whole family has adopted the Muzaffarabad as his permanent place of residence. The maternal grandmother of appellant and her maternal relatives are buried in Muzaffarabad. The appellant has fulfilled all the requirements of rules on the basis of which domicile certificate, State Subject Certificate and PRC were issued after thorough inquiry. He vehemently contended that the learned Chief Justice in High Court has relied upon the notification dated 24-8-1972 for the purpose of definition of refugees. This notification has been issued for the purpose of District-wise quota in respect of services. It has no nexus with the quota reserved for admission in professional colleges. He also asserted that the judgment is against rule 7 of the State Subject Rules, 1980.

7. While controverting the arguments, Choudhry Muhammad Ibrahim Zia, the learned counsel for respondents Nos. 2 and 3, argued that it is admitted by the appellant that she belongs to a "refugee family who was resident of Sanmba, District-Jammu. Her grandfather migrated from Jammu and settled in District Narowal of Pakistan. He contended that the status of a refugee remains that of a refugee. If a refugee from Indian Occupied Kashmir comes and settles anywhere in Azad Kashmir, he can apply and claim admission against the seats reserved for refugees quota and cannot apply and claim admission against the seat reserved for any District of Azad Kashmir. In the case of appellant he argued that the whole family of the appellant settled in District Narowal of Pakistan. Her father, Muhammad Ali Shaheen, obtained a State Subject Certificate from District Magistrate Muzaffarabad in year 1985. He has shown his permanent address of District Sialkot. Had he been shifted to Muzaffarabad permanently he should have shown his permanent address as that of Muzaffarabad city. Her uncle, Muhammad Javaid Khalid, is permanent resident of Sialkot and settled there, who obtained State Subject Certificate where he has shown his permanent address that of Sialkot and he secured the job against the seat reserved for refugees settled in Pakistan. His other uncle, Muhammad Asif, has also secured the job as Lecturer against the quota reserved for the refugees settled in Pakistan, who is domiciled of District Narowal. The grandfather and grandmother of the appellant are buried in District Narowal. They have landed property which was allotted to her grandfather as refugees in Narowal. From this record it is sufficiently proved that the appellant and his entire family are permanent residents of District Narowal Pakistan and she has obtained the State Subject and domicile certificates and PRC from District Muzaffarabad with misrepresentation, fraudulent means and in connivance with the official respondents. He further argued that in para 4 of the writ petition it was alleged that Maryam Ali Shaheen is permanent resident of District Narowal. In written statement it was admitted as correct. One cannot argue the case against the pleadings. The appellant has based her claim on the ground that her maternal grandmother is permanent resident of Muzaffarabad, she died and is buried in Muzaffarabad and all of her maternal relatives are buried in Muzaffarabad. For determining the domicile of one, the domicile of his father has to be followed as decided by the Supreme Court in President's Reference No. 1 of 1997 reported in PLD 1997 SC(AJ&K)

1. The appellant claims the State Subject and domicile certificates and PRC on the basis of domicile of her grandmother. While replying the argument that alternate remedy has not been availed by the petitioners in the High Court, therefore, the writ petition was not maintainable, he contended that the Supreme Court of Azad Jammu and Kashmir in a number of cases has held that alternate remedy of appeal in matters relating to State Subject/domicile particularly in the cases where matter relates to admission in professional colleges is not an efficacious remedy and the direct writ petition is competent. He relied upon the cases reported as Iqbal Razzaq Butt v. Abdus Salam Butt and 6 others 1999 MLD 261 and Attaullah Atta v. Ghulam Bashir Mughal and 5 others 1996 CLC 1551. He further argued that the learned Chief Justice in High Court has correctly relied upon the notification dated 24-8-1972. Elaborating the point he has argued that initially the District quota was fixed only for service purpose and a notification in this regard was issued on 12-3-1972. Later on a notification was issued on 28-10-1996, whereby quota was fixed not only in services, but was also fixed for admission in professional colleges in Pakistan, the definition of refugee adopted through the said notification has correctly been applied. He placed reliance upon the reported cases titled Fozia Hussain Abbasi v. The Nomination Board through Chairman and 4 others 1995 CLC 1761. Maria Tazarrat and another v. Abid Hussain Dar and 5 others PLD 2006 SC(AJ&K) 10 and Miss Rakshanda Aslam and another v. Nomination Board of Azad Jammu and Kashmir through its Secretary, Muzaffarabad and 2 others PLD 1986 SC (AJ&K) 1.

8. The learned counsel for the appellants in both the appeals have called in question the maintainability of writ petition on the ground that alternate remedy by way of appeal before the Government and the Azad Jammu and Kashmir Council was available and without availing the same the writ petition was not competent. Likewise alternate remedy against the order of Nomination Board was available by way of appeal before the Government and without availing the same writ petition was not competent. No doubt the remedy under the State Subject Act/Rules 1980 is provided under rules 6 and

10. Similarly, remedy is also provided against the nomination of candidates in professional colleges under the Nomination Board Rules, but it is our common observation that the appeal before the Government or AJ&K Council cannot be decided expeditiously particularly in the circumstances when matter relates to nomination in professional colleges where classes have already been started and time consumed in persuading the remedy by way of appeal before the Government or the AJ&K Council will affect the career of both the appellants and private respondents, therefore, the only adequate and efficacious remedy is filing of a writ petition. We are fortified in our above view by the judgment of-this Court delivered in the case titled Iqbal Razzaq Butt v. Abdus Salam Butt and 6 others 1999 MLD 261 wherein, it has been held as under:-- "

9. No doubt that the State Subject Certificate issued by the concerned authority can be assailed before the same authority for its cancellation and the relevant Act has provided an appeal against the order not only before the Government but Council can also be moved, but the question is as to whether these remedies are adequate and efficacious in nature. It has been held more than once by this Court that the remedy provided by way of appeal under State Subject Act is not an adequate remedy. Similarly the remedy before the District Magistrate as well as the Council is also neither adequate nor efficacious. It is in our common experience that these appeals are not disposed of for years together. In such situation the constitutional jurisdiction of the High Court can be attracted". In another case titled Attaullah Atta v. Ghulam Bashir Mughal and 5 others 1996 CLC 1551, this Court observed as under:-- "

4. In para. 7 of the writ petition it was explained by respondent that the remedies provided under State Subject Rules were not efficacious in the circumstances of the case because considerable time would be consumed in obtaining the decision from the Council or the Government with the result that the recommendations of the Public Service Commission would become "redundant". It was also explained that, apart from challenging the domicile certificate, the recommendation of the Public Service Commission had also been challenged which was only within the competence of the High Court. The High Court accepted the explanation by holding that it was common experience that the grievances of those who availed the remedies under reference were not redressed expeditiously???" Therefore, we hold that the remedy by way of appeal before the Government and the AJ&K Council was not an adequate and efficacious remedy and the respondents, herein, had only adequate remedy by way of writ petition, therefore, the argument has no force and is repelled.

9. Firstly we deal with the case of Waqas Ahmed Baig. It is an admitted fact that the grandfather of Waqas Ahmed Baig was a permanent resident of Uri in Indian Occupied Kashmir, a part of District Muzaffarabad and after the War of Liberation he migrated from Uri, as such, it is admitted that he is a refugee and a State Subject. The only question remains whether after the migration from Uri he settled in District Muzaffarabad or in Tehsil Haveli of District Poonch at that time, presently District Bagh. Both the parties have produced evidence. The petitioners in High Court relied upon a copy of Khasragirdawari pertaining to Survey Nos. 9 to 15 and 36 of village Sirjiwar, wherein one Zainba Begum is shown in possession of Survey No. 9, she has shown to have died in 1981 and her legal heirs are entered as Muhammad Ishfaque, Mushtaq Ahmad, Mukhtar Ahmed (sons), Hameeda Begum (widow), Roqayya Begum, Zubaida Begum (daughters), while in Survey No.35 it is shown that Zainba Begum daughter of Wali Muhammad died in 1985, Muhammad Ishfaque Baig, Muhammad Mushtaq Baig, Muhammad Mukhtar Baig (sons), Roqayya Begum, Zobaida Begum (daughters) of Ismail Baig. Against Survey No.50, Zainba Begum daughter of Walt Muhammad, is entered in possession of land in years 1985-1988. It is also provided that since record pertaining to village Haveli is not available, therefore, khasragirdawari is prepared on suppositions (ﻔﺮﻀﻰ). A certificate prepared by some Patwari is also relied upon by the petitioners in High Court, wherein, it is stated that original property of Muhammad Ishfaque Baig, Muhammad Mushtaq Baig, and Muhammad Mukhtar Baig sons of Muhammad Ismail is in village Balkot, Tehsil Uri Indian Occupied Kashmir, however entry of Mst. Zainba Begum and father of appellant above referred Mukhtar Baig and others exists in khasragirdawari prepared on supposition (ﻔﺮﻀﻰ) in village Sirjiwar, they are in possession of the land of their mother. Their father Muhammad Ismail has died, who is buried in Muzaffarabad. However, their mother Mst. Zainba Begum is buried in village Sirjiwar. They have inherited the land measuring, 3 Kanals 17 Marlas from their mother. There was a house which fell on the ground. From the whole record produced by the respondents, petitioners in the High Court, there is nothing on the record from which it could be ascertained that after migration from Balkot, grandfather of the appellant has settled in village Sirjiwar or he allotted any evacuee property or he constructed a house for residential purpose. The only evidence produced is that one Zainba Begum daughter of Wali Muhammad who is shown to be mother of Mukhtar Baig who is father of the appellant, owned some agricultural land in village Sirjiwar, Tehsil Haveli, which is in their ownership. It is evident from record prepared by Patwari and relied upon by the respondents, petitioners in High Court, that grandfather of the appellant is buried in Muzaffarabad. Conversely the evidence relied upon by the appellant in the High Court reveals that father of the appellant, Waqas, was educated in Muzaffarabad, he passed all his examinations from schools and colleges from Muzaffarabad city. The State Subject Certificate was issued in his favour on the report of Tehsildar Muzaffarabad on 8-6-1994 by the District Magistrate Muzaffarabad. The State Subject Certificate issued in favour of two uncles of the appellant, namely, Mushtaq Ahmed Baig and Ishfaque Ahmad Baig on the report of Tehsildar Muzaffarabad were also issued by the District Magistrate Muzaffarabad on 23-6-1973 and 11-1-1967. Appellant's certificates show him a student of educational institution of Muzaffarabad city. Furthermore the grandfather of the appellant who originally migrated from Uri, is shown to have died and buried in Muzaffarabad. It is also proved from the record that father of the appellant has purchased a plot in village Naloochi, Muzaffarabad and he has constructed a house and he is residing with all of his family members over there. No other house or permanent place of residence except this is shown to be possessed by the father of the appellant or his family, on the basis of which it could be ascertained that the appellant is not a permanent resident of District Muzaffarabad. On the basis of above it could safely be held .that the appellant is permanent resident of District Muzaffarabad and the State Subject and domicile certificates and PRC have been correctly issued in his favour after thorough inquiry. The High Court committed an error in declaring that the appellant is not a permanent resident of District Muzaffarabad.

10. The case of the appellant, Matyam Ali Shaheen is to be judged on the basis of evidence relied upon by the parties in the High Court. It is admitted by the appellants that her grandfather, Ghulam Muhammad, migrated from Tehsil Sanmba of District Jammu, Indian Occupied Kashmir and settled in village Agwal, District Narowal of Pakistan. He obtained the allotment of land as refugee in village Agwal and permanent resident of the said village: The act of obtaining allotment shows the intention of Ghulam Muhammad that he permanently settled there up to death. The father of the appellant, Muhammad Ali Shaheen born in village Agwal, District Narowal. He permanently resided with his father in his house. After the death of Ghulam Muhammad his all property was inherited by Roqayya Begum (widow), Muhammad Naseem Tariq, Muhammad Javed Khalid, Muhammad Sher Ahmed, Muhammad Ali Shaheen (father of appellant, Maryam Ali Shaheen), Muhammad Mustafa Kamal, Muhammad Asif Kamal, Najmul Hassan, Muhammad Javed Arif (sons), Kalsoom Begum, Nasreen Akhtar, Shameem Akhtar, Naila Naseem and Robina Shaheen (daughters). The mutation of inheritance was sanctioned on 28-1-2005. A copy of allotment letter issued in favour of Ghulam Muhammad, the grandfather of the appellant, copies of mutation and report prepared by the revenue authorities is on record. There is a copy of domicile certificate of Muhammad Javed Khalid, real uncle of the appellant, Maryam Ali Shaheen, which shows him the resident of Tehsil Narowal. There is also a copy of State Subject Certificate issued in his favour showing him as permanent resident of Sialkot city. He has obtained service in Education department against the quota reserved for refugees settled in Pakistan. There is another certification by the Public Service Commission that Muhammad Asif Kamal another uncle of the appellant, Maryam Ali Shaheen, is appointed as Lecturer against the seats reserved for Jammu and Kashmir refugees settled in Pakistan District Narowal. All the record reveals that the whole family of the appellant including her father is permanently settled in District Narowal, which has not been rebutted by the appellant in any way.

11. The case of the appellant in the High Court was that her father shifted to Muzaffarabad in 1984. He married in Muzaffarabad in 1985 with a lady who was domiciled of Muzaffarabad. The appellant born in Muzaffarabad, she got education in the educational institutions of Muzaffarabad city and passed her F.Sc. examination from Muzaffarabad. She has relied upon a Photostat copy of State Subject Certificate issued in favour of her father from Muzaffarabad in year 1985. In certificate, which is annexed as DA/1 in the High Court, the permanent address of the father of the appellant is shown as Agwal Sialkot, therefore, this certificate is not helpful to the case of the appellant. The appellant has also relied upon photos of the graves of her maternal grandmother and other relatives from maternal side, who died and are buried in Muzaffarabad city. There is also a copy of certification of Nazim Union Council 27-Zafarwal, District Narowal showing that Muhammad Ali Shaheen (father of the appellant, Maryam Ali Shaheen) was resident of village Zafarwal, District Narowal, now he has migrated from there. The appellant has also relied upon a certification issued by Kh. Muhammad Maqbool War, who remained a Councillor of Ward No.9 Plate Muzaffarabad that Muhammad Ali Shaheen is a permanent resident of Ward No.9 Plate Muzaffarabad city. He is married in Muzaffarabad and his relatives from in-laws side are buried in Muzaffarabad. It is also stated that his father died and he owns the land inherited from his father in District Narowal. Reliance was also placed upon entries in voters list filed with the written statement by the petitioner in the High Court. From the perusal of all the documents relied upon by the parties in the High Court it is proved that the appellant, Maryam Ali Shaheen, belongs to refugee family who is permanently settled in District Narowal. Her case that her father is having a business in Muzaffarabad and permanently settled there and intends to reside there in future, is not of any help to her case because intention of a person for choosing a place for permanent residence has to be gathered from the facts. A person can settle anywhere for earning the livelihood or for business purpose but that place cannot be said to be his permanent place of residence and on the basis of having business in any place the domicile certificate or PRC cannot be issued. This proposition came under consideration of this Court in the case titled Miss Rakshanda Aslam and another v. Nomination Board of Azad Jammu and Kashmir through its Secretary, Muzaffarabad and others PLD 1986 SC (AJ&K) 1, wherein, it was held as under:-- "A person shall be said to be domiciled of a locality where he intends to live permanently and considers that place as his principal or permanent home. He `domicile' of a person, therefore, shall be determined while taking into account the intention of the person manifested by his conduct to show whether he has adopted a mental attitude to settle down at a particular place permanently and make that place as his permanent home. It is correct that a person may leave his country temporarily to make his fortune and in that event the domicile of origin is retained as he never intends to permanently abandon the domicile of original and make his home permanently in the domicile of choice but where the intention is throughout clearly expressed through conduct or circumstances to have an inference that a person never wished to return to the domicile of origin and has selected the domicile of choice for no other purpose than that of trade, settling thereat permanently and also acquired huge property thereat it shall be said that such person has abandoned his domicile of origin for domicile of choice. To have a finding on the point that duration of a person's stay at a place other than that of is domicile of origin, the purpose of his stay there at the nature of the business he carries, the quantum of the movable and immovable assets he holds, and has conduct and mental attitude towards his domicile of origin shall provide the guideline and have to be taken into consideration."

12. As regard the argument of the learned counsel for the appellant that maternal grandmother of the appellant died and is buried in Muzaffarabad, all her relatives from maternal side are buried in Muzaffarabad which show her intention to settle permanently in Muzaffarabad has no substance. It is settled law that for the purpose of domicile, the domicile of the father has to be followed. Domicile cannot be claimed on the basis of residence of maternal relatives. This proposition has been resolved by this Court in Presidential Reference No.1 of 1996 reported in PLD 1997 SC (AJ&K) 1. "???..We are also not aware of any law which provides that in such a situation the child may be given the nationality of the mother rather than the father. We may observe that in Pakistan citizenship by descent is only through the father. Section 5 of the Pakistan Citizenship Act provides that a person shall be a citizen of Pakistan by descent if his father is a citizen of Pakistan at the time of his birth. Therefore, the conclusion is that a child would follow the nationality of the father???."

13. The argument of the learned 'counsel that the notification dated 24-8-1972 relied upon by the High Court for the purpose of definition of refugee is not applicable in the case relating to admission in professional colleges, has no force because the quota for districts of Azad Kashmir and the refugees settled in Pakistan was first time introduced vide notification dated 12-3-1972. For clarifying the position that who falls in the definition of refugees, this notification was issued. It will be useful to reproduce the same, which reads:-- The notification clearly shows that any person after migration from Indian Occupied Kashmir if settles in any of the districts of Azad Kashmir, he will be treated as a resident of that District .and he is entitled to claim the domicile of that district and his rights in respect of services are equal to those of other residents of the said district, but if a person who is a refugee from Indian Occupied Kashmir and he is settled in Pakistan he will be treated as refugee. He is entitled only to apply for service against the quota reserved for refugees settled in Pakistan. He cannot claim the service against the quota of any of the districts of Azad Kashmir. The position whether the definition of refugee in the notification can be used for the purpose of admission in professional colleges apart from service is further clarified from another notification issued by the Government on 28-10-1996, wherein, the quota reserved for different districts of Azad Kashmir and refugees settled in Pakistan for service and admission in professional colleges was defined. It will be useful to reproduce the same, which is as under: Another notification was issued by the Government on 24-1-2001, whereby the persons who have migrated after 1989 from Indian occupied Kashmir were given share in quota reserved for the refugees in services and admission in professional colleges. It is pertinent to note that some notification pertaining to quota issued on 12-3-1972, 19-8-1980 and 24-11-1987 have been cancelled by the Government vide notification dated 28-10-1996. The reason for issuing the fresh notification has been shown that due to creation of new districts the quota was refixed but the notification dated 24-8-1972 was not cancelled because this notification provides the definition of the refugees who are settled in Pakistan or in the districts of Azad Kashmir after migration from Indian Occupied Kashmir.

14. The objection of Ch. Muhammad Ibrahim Zia that in para 4 of the writ petition the appellant has admitted that she is permanent resident of District Narowal is misconceived. A perusal of para 4 of the writ petition reveals that it was alleged that the grandfather of the appellant is refugee from Indian Occupied Kashmir who settled in village Agwal of District Narowal and her whole family settled over there. The secured the allotment as refugee and she can claim admission against the seats reserved for refugees. In reply the appellant has admitted that she belongs to a refugee family and her other family members are settled in District Narowal but she clarified that her father has permanently shifted to Muzaffarabad, therefore this argument has no substance. After going through the record presented by the parties we reached at the conclusion that Waqas Ahmed, appellant in Appeal No. 58 of 2009 is permanent resident of District Muzaffarabad. The State Subject and domicile certificates and PRC have correctly been issued in his favour. His appeal is accepted and the judgment of the High Court to his extent is set aside and writ petition to his extent is also dismissed, while Appeal No.59 of 2009 filed by Maryam Ali Shaheen and another has no substance, the judgment to the extent of the appellants is maintained and Appeal No. 59 of 2009 is hereby dismissed with no order as to costs. H.B.T./77/SC(AJ&K)????????????????????????????????????????????????????????????? Order accordingly.