1990 PLP 825 (SCMR)

3. The Government of Balochistan on the basis of this Certificate and the marks obtained by the Petitioner, recommended to the Registrar, Sind Agriculture University Tandojam, that he was one of the candidates selected by the Selection Committee for B.E. (Agriculture) Engineering, in Sind Agriculture University Tandojam against Balochistan quota. The Petitioner was admitted to the University. In the meantime, Engineering College at Khuzdar in Balochistan, also started functioning and the Petitioner applied for admission in the same. It was while seeking admission to Agriculture University Khuzdar, that his local certificate was brought under challenge by the competing candidates, whereupon a notice was issued to him and after allowing him an opportunity of hearing, the District Magistrate revoked the earlier certificate holding as hereunder:‑ "(i) the Fard so produced in his defence shows that the father of the respondent is one of the owners of immovable property measuring 86 Rods and 22 Poles. It is the opinion of the undersigned that the land so acquired is a matter of convenience. (ii) that the name of the father of Abdul Majeed appeared at S.No.246 of the Electoral Roll of Ward No.5 Taunsa Sharif of District Dera Ghazi Khan of the Punjab. Hence it appears his father is a voter of Tehsil Taunsa and enjoys his freedom of expression by electing public representatives under the Constitution of the Islamic Republic of Pakistan and other relevant Laws and (iii) in form B of National Identity Card No.301‑41‑003659, the name of MrAbdul Majeed Jaffar appears at S.No.4 of the Wards of Muhammad Ramzan. Hence it strengthens the contention that he is not belonging to Durg area but is a resident of Tehsil Taunsa Sharif. NOW THEREFORE, the undersigned has come to the utmost decision beyond any shadow of doubt that the local certificate No.571/AB dated 28th September, 1986 issued in favour of MrAbdul Majeed Jaffar son of Muhammad Ramzan caste Jaffar has been obtained from this office through misrepresentation of facts and for ulterior motives to gain admission and service on the basis of Balochistan quota." This action of the District Magistrate was challenged on various grounds and the High Court by its impugned order upheld the action of the District Magistrate by observing as hereunder:‑ "Record shows that father of petitioner during Local Bodies election held during year 1983 had contested election as a candidate from Taunsa Sharif and had given affidavit affirming that he belonged to said area. Petitioner, himself has evidently lived and got all his education from Taunsa Sharif. Except ownership of some land at Durg all other factors do not support petitioner's local status of Loralai District. We are therefore, satisfied that indeed no procedural defects or illegality is apparently committed by respondent No.1 in directing cancellation of petitioner's Local Certificate. Since original Local 'Certificate granted to petitioner has been found to be without lawful authority, therefore, in our opinion principle of locus poenitentiae would not be attracted in the circumstances of this case. Additionally, the High Court also held that it was not a fit case for the exercise of discretionary jurisdiction in favour of the petitioner.

4. In response to the notice, Mr. Muhammad Shaf Rakhshani, learned Assistant Advocate‑General Balochistan appeared and stated that the Government has no objection to the Petitioner's continuing in Agriculture University Tandojam where he has continued his studies so far on the basis of an interim order passed by this Court and for which seat the Balochistan Government has no alternate candidate to put forward or substitute him in case he vacates a Balochistan seat.

5. After hearing the learned counsel for the parties, we have considered it fit and proper to convert this petition into an appeal. There are three factors which have not been properly attended to by the District Magistrate which necessitate that the question be reconsidered by him. In the first place, his opinion that the land acquired by the ancestor of the appellant was as a matter of convenience, is not a legal ground at all. People acquire property and adopt residence at a particular place and convenience is always one of the strong factors impelling them to do so. This by itself cannot be made a valid ground for action against an individual in such matters. What had further to be noted as a fact was that the property acquired was not in point of time close to the need for a local residence certificate. Whatever record was before the District Magistrate and has been made available to us shows that the acquisition of property was old, that it was by the grand father of the candidate and the father had inherited the property. The record further shows that there were other uncles of the candidate who had on the basis of the inheritance of the property of the grand father given the local certificate, which has remained intact.

6. The second factor which has been ignored by the District Magistrate was that both the mother and father of the candidate had not acquired any property in Taunsa Sharif and that in the applications for National Identity Cards they had both mentioned their permanent address at the same place of which they had been granted local residence certificate. They had, therefore, not only ancestral property in Loralai they had continuously exhibited an intention to hold on to that property and to be treated as permanent residents of that place and no other.

7. The third fact, now toy, be noted by the District Magistrate is that the controversy over the matter has become more academic than real. The appellant having devoted a few years at Tandojam is no longer interested in getting admission at Khuzdar. In Tandojam University he was not in competition with any other Balochi candidate and his exclusion will not result in substitution but one seat allocated to Balochistan will go unutilized. These and such factors have to be taken full note of by executive officers, while functioning in a country with scarce and underutilized resources.

8. For the foregoing reasons the appeal is allowed, the order of the District Magistrate cancelling the local Certificate granted to the appellant is set aside. This will not, however, preclude the District Magistrate from instituting a fresh inquiry, if he at all considers it necessary and expedient at this stage. No order as to costs. AA./A‑674/S Appeal allowed.