P L D 1960 Dacca 329 (PLP)

6. I must confess that I find it a little difficult to follow the reasonings of the Magistrate. Sub‑rule (2) of Rule 20 of the Pakistan Citizenship Rules reads as follows :‑

"The application shall be submitted to the Pakistan Mission or Consulate in that country or where there is no Pakistan Mission or Consulate in that country to a prescribed Mission or Consulate or to a Pakistan Mission or Consulate in the country nearest to the country. But if the applicant is at the time of the application resident in Pakistan, he shall apply to the Central Government." Then the other Rules go on to provide as to how the application should be made. One of the items required under sub‑rule (4) is that the applicant must furnish the information with regard to "the national status of the applicant in his country." Then sub‑rule (5) provides that the Central Government shall pass such order on the application as it deems fit. The learned Magis?trate has also referred to section 20 of the Pakistan Citizenship Act of 1951. This section provides that :‑

"The Central Government may upon such terms and condi?tions as it may by general or special order specify register a Commonwealth citizen or a British protected person as a citizen of Pakistan." Neither the Pakistan Citizenship Act nor the Rules framed thereunder in any way indicate that the mere submission of an application for citizenship is sufficient to exonerate anyone from violations of the relevant Rules under the Pakistan (Control of Entry) Act. The contention, therefore, that merely because the said respondent herein had applied for Pakistan citizenship was sufficient to prevent him from being prosecuted under the said Act, is not tenable.

7. Similarly, the contention that although the order of discharge does not create an estoppel, yet the findings in that case would be binding at a subsequent trial is equally, in my, opinion, unsound. There is no principle of res judicata in a criminal trial. It is clear that for these reasons the order of acquittal of the learned Magistrate cannot be maintained.

8. The learned counsel appearing for the respondent, however, has raised a novel point before me for the first time. He has contended that since the Passport, Exh. 1, discloses that the place of birth of the said respondent is at Bogra in East Pakistan, he was, under section 3 of the Pakistan Citizenship Act of 1951, a person who should have been deemed to be a citizen of Pakistan in accordance with the provisions of the said section and, as such, the accident of his having temporarily resided in India or obtained an Indian Passport should make no difference whatsoever, the passport does not determine the nationality of the holder thereof and is nothing more than a travel document.

9. Furthermore, even assuming that the taking out of the Indian Passport amounted to a temporary election to adopt the Indian nationality, the nationality of choice could be termi?nated at will by such a person and, on such termination, the person concerned could revert to his original nationality of birth. A laboured effort was made to find support for this rather novel and startling proposition of law by referring me to a decision of the Privy Council in the case of Joyce v. Director of Public Prosecutions (LR1946AC347). 1 was told that in the said case it had been very definitely held that a passport does not determine the nationality of a person. I have looked and looked in vain for any such proposition in the said pronouncement of their Lord?ships of the Judicial Committee. All that I find is that their Lordships seemed to have accepted with approval the decision in an earlier case of The King v. Braisford and another ((1905) 2 K B 730) and quoted a passage therefrom at page 745 concerning the legal effect of a passport which came up for consideration in the latter case and Lord Alverstone, C. J., said as follows :‑

"It will be well to consider what a passport really is. It is a document issued in the name of the Sovereign on the responsibility of a Minister of the Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individual protection as a British subject in foreign countries, and it depends for its validity upon the fact that the Foreign Office in an official document vouchers the respectability of the person named." After quoting this passage, the learned Lord Chancellor Lord Jowitt went on to observe at page 869: "It is, I think, true that the possession of a passport by a British subject does not increase the sovereign's duty of pro?tection, though it will make his path easier. For him it serves as a voucher and means of identification. But the possession of a passport by one who is not a British subject gives him rights and imposes upon the sovereign obligations which would otherwise not be given or imposed. It is immaterial that he has obtained it by misrepresentation and that he is not in law a British subject. By the possession of that document he is enabled to obtain in a foreign country the protection extended to British subjects. By his own act he has maintained the bond which, while he was within the realm, bound him to his sovereign. The question is not whether he obtained British citizenship by obtaining the passport, but whether by its receipt he extended his duty of allegiance beyond the moment when he left the shores of this country." The question, therefore, as to what was the nature of a passport was not for consideration before their Lordships nor did their Lordships, apart from accepting the incidents described in the case of The King v. Brailsford, go any further. Even Lord Porter, when dealing with this question, accepted the definition given in the case of Rex v. Braisford, and observed that: "It must be remembered that the matter to be determined is not whether the appellant took upon himself a new allegiance, but whether, he continued an allegiance which he had owed for some twenty‑four years and a lesser amount of evidence may be required in the latter than the former case. I cannot think that such a resident can in war‑time pass to and fro from this country to a foreign jurisdiction and be permitted by our laws to adhere to the enemy there without being amen?able to the law of treason. I agree with your Lordships also in thinking that if an alien is under British protection he occupies the same position when abroad as he would occupy if he were a British subject."

10. It will thus be seen that that decision is of no assistance to the learned counsel, nor can I conceive of any such principle in International Law which would enable a person by his own volition and by his own act regardless of the will of the State to acquire or terminate a nationality merely by his own choice. A nationality can' neither be acquired nor retained except with the will of the State. I would go even further and say that the State has the right even to deprive a national of his nationality should the occasion arise. Instances of expulsion or banishment of even a national are not unknown. It is, therefore, preposterous to suggest that a person who has by his own choice given up the nationality of his birth can without the consent of the Nation or the State concerned revive the nationality at his will and pleasure.

11. The learned counsel again, in my view, under a complete misconception, invoked the aid of another doctrine which has no manner of application whatsoever in this case. This, I think, is what he calls "Reinvol". It is a doctrine which arises only when there is conflict of laws and, since there is no conflict of laws in the present case, I cannot conceive how it can have any application in the present case. I have to decide this case purely and simply upon the basis of the Municipal law of this country. Here the material that I have before me is the description of the national status of the applicant given in his own passport. This is an Indian Passport and presumably was issued to him on his own application. In this, he is described as a citizen of India. Again, on his own admission, I find that he made an application for acquiring Pakistani nationality. Now, such an application could hardly be necessary for a person who was a Pakistani national.

12. The learned counsel attempted, however, to argue that since rule 8 of the Pakistan Citizenship Rules shows that even in the case of citizenship by birth a person claiming such citizen?ship may obtain a certificate in that behalf, such application is necessary. In the present case, no application was made for such a certificate, to any competent authority; so the question does not arise. In the present case, the application that was made was an application under rule 20 of the said rules which deals with acquisition of Pakistan citizenship by Commonwealth citizens. Naturally this means Commonwealth citizens other than Pakistani citizens. This application is, furthermore, an admission on the part of the respondent himself that he no longer possesses the Pakistani nationality and is desirous of acquiring the said nationality.

13. The Indian Passport with which he came to Pakistan, if not conclusive proof of his nationality, is, to my mind, pre?sumptive prima facie evidence of that nationality and, if the holder of that passport wishes to challenge the correctness of the statements contained therein, the onus is entirely upon him to disprove the correctness thereof. In the present case, no attempt at any stage whatsoever has been made by the respondent to disprove the correctness of the statements contained therein. Indeed, as I have endeavoured to indicate earlier, he accepted the correctness of those statements and made an application for re‑acquisition of his nationality of birth. I am, therefore, entitled to act upon this material and to hold that at the relevant time he no longer had the nationality of his birth or rather he had discarded the nationality.

14. For these reasons, I am satisfied that the order of acquittal was entirely illegal and unwarranted. The fact that he was trying to acquire the Pakistani nationality was no defence to the charge levelled against him, although he may legitimately have required this fact to be taken into account in awarding the punishment.

15. I, therefore, set aside the order of acquittal. I, however, feel that this case has not been properly dealt with in the Court below. Certain documents have been referred to which do not find place on the record. On the other hand, it appears from the arguments of the learned counsel that there are other docu?ments which the respondent may place in his defence.

16. In these circumstances, I propose to send this case back for re‑trial in accordance with law. The parties will be entitled to adduce fresh evidence at such re‑trial, if‑they so think fit.

17. During the tendency of the trial in the Court below, the respondent will be enlarged on bail to the satisfaction of the District Magistrate. K. B. A.?????????????????????????????????????????????????????????????????????????????????? Re‑trial ordered.