P L D 1992 Peshawar (PLP)

RAZA AHMAD KHAN, J ‑‑Ahmad Hassan, the petitioner herein, applied for and was issued a domicile certificate on 21‑10‑1990 by Assistant Commissioner, Kohistan, respondent No. 2 herein, duly endorsed by Deputy Commissioner, District Kohistan, respondent No.3 herein, thereby certifying the petitioner as born of parents who were permanent residents of North‑West Frontier Province

2. After passing his examination in the Pre‑meical group and securing 683 marks, the petitioner applied for admission in‑ Khyber/Ayub Medical College, against one of the five seats reserved for Kohistan District of N: W.F.P. The Chairman,. Admission Committee, respondent No.4 herein, while preparing the merit list of applicants, placed the petitioner at serial No.2.

3. Meanwhile one Abdullah, respondent No.1 herein, and one of the candidates for admission in the 1st Year M.B.,B.S., who with his 506 marks was placed at serial No.8 of the aforesaid merit list prepared by respondent No.4, moved a complaint before respondent No.3 with respect to the authenticity of the domicile certificate issued in favour of the petitioner.‑The latter referred the complaint vide his letter dated 29‑11‑1990 to the Assistant Commissioner, Rattan, respondent JTo.2 herein, to conduct a preliminary inquiry into the genuineness of the certificate within a week for further action. Respondent No.2, after conducting an inquiry, submitted his report to respondent No.3 and the latter, on the recommendation of the former, cancelled the domicile certificate of the petitioner, vide his impugned order dated 12‑12‑1990.

4. The petitioner has thus called into question the aforesaid order of respondent No.3 as being without lawful authority and of no legal effect and by invoking constitutional jurisdiction of this Court, sought declaration to the effect that direction may be issued to respondents 4 to 6 to allow the petitioner to continue his studies on the basis of domicile certificate already issued to him.

5. It may be pertinent to mention here that one Maroof Khan, a nephew of the present petitioner, was also issued a domicile certificate by the same authority which too stands cancelled on, the complaint of the said Abdullah after similar process. He has also filed Writ Petition No. 122 of 1990 seeking identical remedies as in the instant petition.

6. Since both the petitions arise out of the similar circumstances and the questions of fact as also of law relevant thereto are also identical in both the cases, we intend to decide the same by this single judgment.

7. We have heard Khawaja Abdur Rashid, Advocate, learned counsel for Ahmad Hassan petitioner, Mr. Shad Muhammad Khan, Advocate, learned counsel for Maroof Khan (petitioner in Writ Petition No. 122/90) as also Mr. Muhammad Ayub Khan, Advocate learned counsel for respondent No. 1, Mr. Muhammad Aslam Khan learned Assistant Advocate‑General, for respondents Nos.2 and 3 and Mr.Ghulam Mustafa Khan, Advocate learned counsel for respondents 4 and

5. We have also perused the relevant available record with considerable degree of care.

8. It is contended on behalf of the petitioner that the impugned order of respondent No.3 whereby the questioned ‑domicile certificates, issued to both the, petitioners (hereinafter referred to as the "two petitioners") stand rescinded, are liable to be struck down on account of suffering from a number of infirmities in that, without applying his own mind, he has simply endorsed the report of respondent No.2 which itself is contrary to the unrebutted evidence produced by the two petitioners and that this has resulted in misreading and non‑reading of the evidence so recorded with such inferences drawn therefrom as are hardly borne out by the record. In the wake of this, it is submitted that issuance of a domicile certificate, on the basis of duly held enquiry towards the authenticity of its claim, conferred a vested right on the two petitioners and that the respondent No. 3 could not rescind the same on the sheer, and ill‑founded too, report of an officer subordinate to him. It was thus urged that the impugned order being a non‑speaking order, in its form and essence, cannot be sustained either on law or on facts in as much as a migration simpliciter to another place, particularly for certain valid reasons, would not tantamount to abandoning one's original. domicile and in this context the impugned order of respondent No. 3 which is based solely on. the report of respondent No. 2 is liable to be set aside.

9. As against this it is contended on behalf of the respondents that on factual premises, the father and grandfather of the two petitioners having admittedly migrated to Jaglot (Gilgit, Northern Area) and the two petitioners born there; while their applications for domicile certificates were based on mis statement, the fact remains that their parents were no more permanent residents of North‑West Frontier Province. In such a situation, the learned counsel submitted, that the impugned order has rightly been passed and there is no such misreading or non‑reading of evidence as to call for an interference therewith. It is also contended that respondent No.3 who is empowered to issue the licence is equally competent to rescind the same and in doing so respondent No.3 has committed no illegality/irregularity. It is thus urged that both the petitions are misconceived and are liable to be dismissed.

10. We have given our earnest consideration to the submissions made by the learned counsel for the parties in support of their respective pleas.

11. A reference to the record reveals that at the time when the two petitioners applied for their respective domicile certificates to respondent No.2, their applications were sent to Tehsildar Pattan for verification and report. The two petitioners, in support of their claim produced evidence and statements of Hakim Dad as well as Sarbaz Chairman and Member Union Council Kolai Kot respectively were recorded on the basis whereof a positive report was submitted by Tehsildar which reads as under:‑ Consequently the domicile certificates in question, duly countersigned by respondent No.3, were issued to the two petitioners.

12. The record further discloses that on a reference made by respondent No.3 on. the complaint of respondent No.l, the Assistant Commissioner, Pattan held an inquiry and recorded the statements of not only the two petitioners including the earlier two witnesses but also as many as three other persons including a lessee of the immovable property situated in Kolai Kot and owned by the two petitioners. Respondent No.2, while submitting his report, however, arrived at a conclusion that the witnesses Hakim Dad and Sarbaz had not earlier correctly verified the domicile of the two petitioners and that as such both the certificates are liable to be cancelled. It is further evident from the record that on receipt of the report, respondent No.3 cancelled the domicile certificate, issued to the two petitioners vide orders which, but for the names and respective parentage, read identically as under:‑ "The matter was entrusted to the Assistant Commissioner, Pattan who after holding discreet enquiry confirmed that the verification was not in accordance with the prescribed procedure and holder of domicile certificate was not bona fide resident of district Kohistan Now, I, Mr. Zaibullah Khan, District Magistrate, Kohistan do hereby order the cancellation of the domicile certificate issued to Mr.Ahmad Hassan s/o Shah Jehan with immediate effect." It is also a matter of record that the two petitioners are placed at Nos.2 and 3 on the merit list prepared by the Office of Chairman, Joint Selection Admission Committee, respondent No.4 herein and that, as per order of this Court, the operation of the impugned order regarding cancellation of domicile certificate having been suspended, the two petitioners, who seem to have earlier been admitted provisionally in the Ist Year M..B.,B.S., were allowed to continue their studies.

13. In the context of the above, what initially needs examination is as to the nature of the Domicile Certificate and what is the prescribed procedure of verification for issuing the same; and whether the findings of respondent No.2, endorsed later by respondent No.3, with consequent order of rescinding the domicile certificates of the two petitioners, are borne out by the material available on the record or, on the other hand, the inferences deduced there from are contrary thereto. In other words whether the impugned order is suffering from non‑reading/misreading of evidence pro and contra the complaint lodged by respondent No.1.

14. As regards the nature of the domicile certificate, it will be pertinent to note that domicile certificates in the instant cases are not at par with the domicile certificate envisaged in the Pakistan Citizenship Act, 1951, in that while the latter is issued under a specific law, requiring expressed intention on Oath of permanently residing in Pakistan on behalf of the applicant, thereby abandoning a domicile of origin in another country; the former does not contemplate acquiring domicile of one Province with contemporaneous intention of abandoning the domicile of the Province of origin. Nor is it issued under any such law. In fact it is issued in exercise of administrative authority of a District Magistrate concerned presently under a communication of the Law Department of the Government of N: W.F.P. for the purpose of determining '4 the domicile of an applicant who seeks admission in any of the Educational Institutions such as Medical College, Engineering College etc. But, as has been held earlier by this Court in the case of Saeed Amer v. Principal, Khyber Medical College, Peshawar and others P L D 1982 Peshawar 51 although such certificates in. N: W.F.P. are issued administratively, yet issuance of these creates a right in the holder thereof. A decision of Balochistan High Court reported as PLD 1980 Quetta 29, wherein the corresponding nomenclature of such a certificate is Local Resident Certificate lends support to the aforesaid view and we have no hesitation in re‑affirming the same.

15. The question thus arises as to what is the procedure that is followed in issuing such certificates, particularly in view of the fact ~ that one of the two reasons that prevailed with the respondent No.3 was to the effect that the questioned domicile certificate has been issued against the prescribed procedure.

16. We regretfully observe that the learned counsel appearing for the respondent could not render any assistance in this regard for obvious reasons that there is no such prescribed procedure that is to be followed in the process B of verification of the claim of an applicant for issuing him the domicile certificate. As a matter of fact, the practice that we have so far noticed in cases of similar nature and followed by the District Magistrate is the same as observed in the instant case. The learned counsel arguing for the respondent rather endorsed the same but could not point out any procedural flaw therein" They were, however', assertive in supporting the findings of respondent 140:2, who in his own wisdom found that the earlier verification of the domicile, certificates in question was not correctly made. This leads us to an inescabable conclusion that the finding of respondent No.3 to the effect, "that the verification was not in accordance with the prescribed procedure" was irrelevant in as much as undisputedly there is neither any prescribed procedure nor did we notice any flaw in the initial report of Tehsildar Pattan dated E 18‑10‑1990 reproduced above which, on the other hand, appears to be based on such evidence of respectable persons as could best be produced before him.

17. The second reason that found favour with' respondent No.3 in issuing the impugned order pertains to the allegations that the holder of the domicile certificate was not bona fide resident of Kohistan District. This again, we regretfully observe, is contradictory to the very contents of the domicile certificates which requires an applicant to be:‑ " .born of parents who were permanent residents of N; W.F.P. having been born or settled within it." and does not pertain to birth place of the applicant himself. It sounds reasonable as well because of the fact that an applicant who, in most of the IF cases is a minor and as such not a sui juris, his place of domicile can be determined only by that of his parents.

18. In the, context of the above when both the grounds that weighed with respondent No.3 to issue the impugned office order are found as ill‑based, there is nothing to prevent us straightaway to hold it as nullity, on factual and legal premises both; with an additional reason that it is virtually a non‑speaking order, showing utter lack of independent application of mind to the merits of the case and instead relying wholly on the report of respondent No.2,'without ascertaining as to whether the inferences drawn by respondent No.2 are borne out by the record or not.

19. But before following this course, we' feel inclined to also examine the enquiry conducted by respondent No.2 under the orders of respondent No.3 on the complaint made by respondent No.l in some depth is order to determine the validity of the allegations made by the two petitioners to the effect that inferences drawn from the unrebutted evidence produced by the two petitioners are incorrect and as such the report suffers from misreading and non‑reading of evidence.

20. We have gone through the statements of persons examined during enquiry by respondent No.2 which included not only the. two petitioners themselves but Hakim Dad and Sarbaz, the Chairman and Member of the Union Council Kolai Kot besides one Bako.

21. It will be pertinent to point out at this very stage that in support of his complaint, neither the respondent No.l appeared before the enquiry officer nor a single witness is produced in his behalf. In a case of Common Law of England, Wimans and another v. Attorney‑General reported as (1904) A.C. page 287 it was held that onus of proving that a domicile has been chosen in G substitution of domicile of origin lies upon the one who asserts that domicile of origin is lost.

22. Notwithstanding the aforequoted legal position to which we respectfully subscribe, the preponderance of all this unrebutted evidence adduced before the enquiry officer unfolds the fact 'to the extent that the father and grandfather of the two petitioners shifted their business and their residence to Jaglot (Gilgit) about 10/15 years age from their original place of domicile Kolai Kot District Kohistan, but they left behind their houses and some immovable properties which was looked after by witness Bako as a lessee who paid their share of produce regularly to them, besides the .fact that one of the brothers of the petitioner namely Nasir still resides behind in Kolai Kot and the petitioner lived with him. Would this amount to, consider them as no more permanent residents of their original place of domicile, is a question that needs to be looked into.

23. In this context it is pertinent to note that the domicile of origin of the petitioners, or for that matter of their predecessors, being that of Kolai Kot District Kohistari is not in dispute. The only assertion that is made, with some measure ,of vehemence, by the learned counsel for the respondents is that by shifting to Jaglot they can no more be held as permanent residents of Kolai Kot, Kohistan, N.‑W.F.P.

24. Let us consider the aforesaid argument of the learned counsel contesting for the respondents, on the legal and factual premises of the case.

25. Unfortunately since the domicile certificates are issued in this Province administratively and not under any law, it is difficult to find the precise import of the word `domicile' in such a context. We, shall. therefore, fall upon its lexicon meaning and such judicial interpretation as is found in case‑law which is not in dearth though in a little different context i.e. under the Pakistan Citizenship Act, 1951, Pakistan (Control of Entry) Act, 1952 or the Divorce Act, 1869.

26. Corpus Juris Secndum, Volume 28 at page 10 and 11 while dealing 1 with the subject of `domicile';, divides it into two kinds viz. domicile of origin and domicile of choice. The former is defined as:‑‑ "A person's domicile of origin is the domicile of his parents, the head of his family, or the person on whom he is legally dependent, at the time of his birth. It is generally, but not necessarily, the place of birth." The latter is defined as:‑‑ "A domicile of choice is the place which a person has chosen for himself to displace his previous domicile; it is based on the intention of the person". Again continuing with the subject of domicile it is stated that:‑‑ "Apart from statutory regulation, no particular period of residence is required to establish domicile, and any residence, however short, will suffice when coupled with intent; without intent; residence, however long continued, will not establish domicile." And adds:‑‑ "A change of domicile or residence depends on intention, or, as sometimes stated, on a dual intention to abandon the former domicile and to acquire another". According to Halsbury's Laws of England 3rd Edition Vo1.7, page 14, "The law attributes to every person at birth a domicile which is called a domicile of origin. This domicile, may be changed and a new domicile, which is called a domicile of choice acquired but the two kinds of domicile differ in the following respects: (1) The domicile of origin is received by operation of law at birth, the domicile of choice is acquired later by the actual removal of an individual to another country accompanied by his animus manendi. (2) The domicile of origin is retained until the acquisition of a domicile of choice; it cannot be divested by mere abandonment and is never destroyed though it remains in abeyance during the continuance of domicile of choice, the domicile of choice is lost by abandonment whereupon the domicile of origin is acquired; the domicile. of choice; when is once lost, is destroyed but may be acquired anew by fulfilling the same conditions as are required in the first instance." Similarly, in Wright v. Wright reported in ILR 1958 Calcutta 259 as also in Rooks v. Rooks reported in A.I.R. 1934. Bombay 239 it is laid down that a person continues to retain his domicile of origin until a domicile of choice is acquired and even then the domicile of origin merely remains in abeyance and further that there must be both the factum of residence and animus manendi and must be no animus revertendi to the former domicile. The report further adds that residence of animus manendi by itself will not be inferred to confer a new domicile.

27. Questions of this nature did arise before Courts of Pakistan. In case of Ralph William Bagley v. Elizabeth Bagley reported in PLD 1954 Dacca page 147 as well as John Oswald Horatio Neale v. Mrs. Margaret Eileen Neale P L D 1957 Dacca page 363 while elaborating the said two, kinds of domicile with reference to person who migrates from the place of his origin to the place of his choice; the ratio decidendi is that mere residence in a place other than the place of his origin is not a proof of his domicile of his choice, unless the person abandons his domicile of origin and adopts the domicile of his choice that is to say he resides in the place, he has migrated to, permanently coupled with no intention whatsoever to go back to the place of his origin. The question also cropped up for consideration before the High Court of A.J.K. in the case of Nishat Saeed v. Nomination Board reported in PLD 1977 Azad J&K page 33 and while dealing with the word domicile it has been held that:‑‑ "A person who carries on business in a country and for that purpose has also constructed a house to live in, cannot be said to have abandoned his domicile of origin and embraced domicile of choice in the country in which he carries on the business without a valid declaration showing that he has abandoned the domicile of origin."

28. In the light of the foregoing, we are clear in our q1ind that to every person who enjoys the status of sui juris, law assigns a domicile which can be expressed as his domicile of origin and which remains attached to him until a new and fresh domicile takes its place and that the domicile of origin remains intact until the person has not only manifested to carry into execution an intention of abandoning his former domicile and acquired another as his sole domicile. In other words, a person having a domicile of origin continues to be known therewith unless he chooses to acquire the domicile of choice and, notwithstanding this, his domicile of origin remains in abeyance unless he specifically abandons the same.

29. Testing on the touchstone of the aforesaid principle, we find that the enquiry conducted by respondent No.2, while disclosed the fact that the father and the grandfather of the two petitioners had shifted to Jaglot from their domicile of origin namely, Kolai Kot, Kohistan, does not spell out any intention on their part to have adopted the domicile of Gilgit, Northern Area, or they manifested, by any act of theirs, to have abandoned their domicile of origin.

30. On the other hand, there are positive indications to the effect that not only they did not sever their relations with their place of origin but also maintained the same by keeping their houses and the immovable. properties left behind in Kolai Kot intact and have continually been receiving the share of their income derived therefrom. And, significantly one of the brothers of the petitioners still resided behind there. All this goes a long way to establish that they did, in no way, denounce their permanent abode at Kolai Kot and rather indicates that, notwithstanding the length of time, their shifted residence at jaglot was temporary in nature.

31. We are, therefore, of the considered opinion that the report as well as the impugned order based thereupon smacked of arbitrariness, the dominant test whereof is as to whether it proceeds on any substantial reason, or demonstrates lack of application of mind which can be termed almost an abuse of jurisdiction and which in turn, quite often, manifests itself in overlooking the available evidence. In such a situation, the High Court is under obligation to examine firstly as to whether reasonable and correct conclusions had been recorded by a Tribunal and secondly that the decision based thereupon does not suffer from any perversity. Unfortunately while the report of respondent No. 2 lacks the first element, the impugned order of respondent No.3 is apparently suffering from the latter one; and we are constrained to hold accordingly.

32. This being so the impugned order of respondent No.3 cannot be sustained for yet an already stated reason that it is neither a speaking order not recorded with such application of mind, while endorsing the report of respondent No.2 as is called for in the instant case, particularly when, and as a consequence thereof, the two petitioners have been deprived of rights vested in them by issuance of the domicile certificates in question earlier and admitted in the First Year of M.B.,B.S. on the strength thereof.

33. We have also come across an unreported judgment of this Court in W.P. No. 1/1990 with almost identical facts of the case in which such migration, as is resorted to by the predecessor of the two petitioners, is held as entailing no consequence of depriving the petitioners therein of their claim to be born of parents permanently residents of District Kohistan and it was further held that:‑‑ "The place (Gilgit) where the elders of the petitioner have temporarily shifted is equally a backward area. We are, therefore, of the considered opinion that the impugned order of respondent No.1 cancelling the domicile certificate of the petitioner is without lawful authority and of no legal effect."

34. We respectfully abide by aforequoted view and would like to add that the two petitioners, on another score too, deserve their admission to the Medical College (s) as is evident from the merit list prepared by the respondent No.4, and on this equitable ground as well, benefit of doubt, if any, as regards the permanent nature of their ancestors' domicile in N.‑W.F.P merits to be extended to them.

35. Resultantly while we accept both these writ petitions, we hereby declare the impugned order of respondent No. 3 as without lawful authority and of no legal effect on the rights of the petitioners. Both the petitioners are further allowed to continue their studies in their respective Medical Colleges.

36. In the circumstances of the case, let the parties bear their own costs. M.BA./1266/P Petition accepted.