1998 PLP 6 (MLD)

NASIR-UL-MULK, J.

The petitioner was admitted in the 1st Year M.B.,B.S. in the Khyber Medical College in the session of 1995-96 on a seat reserved for Orakzai Agency of the Federally Administered Tribal Area. The domicile certificate issued earlier by the Political Agent, Orakzai Agency, on the basis of which the admission was granted to the petitioner, was cancelled and accordingly by a letter issued by State and Frontier Region Division, Government of Pakistan addressed to the Principal, Khyber Medical College, the nomination of the petitioner was recalled and instead, Miss Robina Naureen, of the same Agency was nominated for the seat. The petitioner has filed this Constitutional petition to challenge the cancellation of his domicile and the admission.

2. The impugned order and action has been challenged mainly on two grounds; firstly, that the petitioner was not served with a notice before the domicile was cancelled and secondly, that the domicile certificate once granted cannot be withdrawn by the Political Agent.

3. Comments to the writ petition were filed by the Secretary, State and Frontier Region Division as well as by the Political Agent, Orakzai Agency. The Political Agent in his comments justified the withdrawal of the petitioner's domicile certificate on the ground that two of the Maliks, who had recomrnended the issuance of the domicile certificate, had come forward and denied their signatures on the letter of recommendation, whereas the other four signatories Maliks did not turn up during the inquiry. The letter and registered envelope were placed on the file to show that the petitioner was given due notice but that he never participated in the inquiry. Written statement was also filed and the record of the entire proceedings that culminated in the impugned order were annexed with the written statement, filed by the Political Agent after the writ petition was admitted to full hearing.

4. The learned counsel for the petitioner and the learned Advocate-General were heard. Both of them merely elaborated the stand already taken up by them in their respective pleadings.

5. The objection regarding absence of due notice to the petitioner by the Political Agent regarding inquiry leading to the cancellation of domicile certificate is taken up first. Annexure FF, filed with the written statement of respondent No.2, is a letter dated 19-11-1995 written by the Political Agent to the Assistant Political Agents of the Agency. It speaks of the issuance of summon to the petitioner and the Maliks, who had made recommendations in favour of the petitioner time and again and their failure to turn up for the proceedings. There was also direction that the petitioners and the Maliks be arrested. Placed on file as Annexure EE/1 is the summons dated 7-12-1995 issued to the petitioner and the Maliks for their appearance on 20-12-1995. The registered envelope addressed to the petitioner on the address given by him to the Political Agent as his place of residence has been Annexed as EE/2. The Political Agent thus employed all means to procure the attendance of the petitioner for the purpose of inquiry but it appears that the petitioner deliberately kept himself away from the inquiry. Thus, the petitioner was given sufficient notice before his domicile was cancelled.

6. The other contention that the Political Agent had no power to withdraw the domicile certificate is also without force as every authority has the power to withdraw its order obtained on the basis of fraud. The inquiry against the petitioner was initiated by the Political Agent when a number of students belonging to Orakzai Agency protested against the grant of domicile' certificate against the petitioner. During the inquiry, none of the Maliks who had vouched that the petitioner belonged to the Agency stuck to their earlier stand. Two of the Maliks totally denied having signed the recommendations whereas the other four never turned up to comment upon the recommendations. Thus, the positive evidence in favour of the recommendation was totally missing at the time of the inquiry.

7. On the other hand, there was sufficient documentary evidence produced before the Political Agent to show that the petitioner never belonged to Orakzai Agency. Another brother of the petitioner, namely, Shah-e-Room had obtained admission in the Khyber Medical College in the year 1989 on the domicile certificate of Peshawar It hardly need to be mentioned that the question of residence in the Agency depends upon the satisfaction of the Political Agent, which of course is based on the record. Domicile certificate in the Agency are invariably issued after the person claiming the domicile is certified by the Maliks to be a resident of the Agency. Since the Maliks, who had apparently' signed the certificate in favour of the petitioner, had not supported it, the Political Agent, after making further probe into the matter, was justified to recall the domicile certificate.

8. The above discussion shows that no illegality was committed in cancelling the petitioner's domicile certificate, and consequently his admission in the Khyber Medical College. For these reasons, the writ petition was dismissed by a short order on 18-6-1997. A.A./2209/P Petition dismissed.