P L D 1962 Dacca 349 (PLP)

(3) He shall examine any witnesses produced by the applicant and may summon any other witnesses likely to know the facts of the application and may call for any records relevant to it. (4) If the Magistrate is satisfied that the applicant is entitled to citizenship under clause (d) of section 3 of the Act, he shall recommend to the Provincial Government that a certificate of citizenship in Form `A‑1' be granted. (5) The Provincial Government shall pass such orders on the recommendation as it deems fit." This rule merely shows that a person who claims citizenship under clause (d) of section 3 of the Act, may obtain a certificate to that effect. A person who is not a citizen of Pakistan cannot apply for a certificate. His citizenship itself is not founded on the certificate but on fulfilling certain conditions as required under the law. To make It further clear it may be said that citizenship' is a condition precedent foe obtaining a certificate but not vice versa. The rule speaks of granting of a certificate and not conferring of citizenship. Sub‑rule (4) of rule 6 makes the position clear. It speaks of entitlement of citizenship under clause (d) of section 3 of the Act. So, his title to citizenship is derived from section 3 (d) of the Act not from obtaining a certificate to that effect. It is, therefore, clear that mere refusal to grant a certificate to a person does not deprive him of citizenship, which he otherwise acquires. A certificate of citizenship gives conclusive proof of his citizenship, but it neither confers, nor in the case of a refusal, it deprives a person of his citizenship. The position therefore as that obtaining of a certificate under rule 6 as quoted above, establishes right of a person as a citizen but a person not in possession of a certificate as contemplated under rule 6, if challenged, will have to establish that he is a citizen under clause (d) of section 3 of the Act. That is the only difference. I have no hesitation ‑to say that both the Courts below erred in law on this point. If the error is due to the word `migration' occurring in section 6 of the Citizenship Act, it may at once be disposed of by saying that said section has no application to the facts of the present case. Section 6 of the Act is as follows: ‑ "The Central Government may, upon his obtaining a certificate of domicile under this Act, register as a citizen of Pakistan by migration any person who after commencement of this Act and before the first day of January, 1952 has migrated to the territories now included in Pakistan from any territory in the Indo‑Pakistan sub‑continent outside those territories with the intention of residing permanently in those territories . . . . " The words "after the commencement of this Act and before the first day of January, 1952" clearly indicate that this section has no application to the petitioner's case, because the undisputed fact is that petitioner entered Pakistan on 8‑4‑51 before the commencement of this Act and not after the commencement of this Act. The learned Judge has, however, seen this position correctly when he says as follows: ‑ "I do not agree with the learned Magistrate that the present case of the accused is governed by section 6 of the Pakistan Citizenship Act." The learned Judge is right when he says: ‑ "The present case is certainly governed by the clause (d) of section 3 of the Pakistan Citizenship Act." But what is surprising is that after having seen this position correctly he also misconceived the law in the same way as will appear from the passage of his judgment already quoted. Refer ence has been made to rule 10 framed under the Act. The opening words of rule 10 read as follows: ‑ "Any person claiming citizenship under section 6 of the Act shall apply in Form B' in duplicate to the Provincial Government . . . . It is, therefore, clear that this rule applies only to a case in which a person claims citizenship under section 6 of the Act which section, it has already been seen, has no application to the present case and aid of rule 10 framed under section 6 cannot therefore be invoked to nullify the claim of the petitioner. Mr. Naimuddin Ahmed, learned Advocate for the State has argued that the domicile certificate obtained by him is not a certificate valid in law, inasmuch as, it is not signed by the Deputy Commissioner who is the only person authorised by law to sign such certificates. A domicile certificate neither establishes, nor inability to obtain one, deprives a person of his citizenship if he has acquired it by operation of law. A domicile certificate` valid or invalid, does not therefore determine the status of a person as a citizen or a foreigner. For the purpose of the present case the certificate itself is of little value and I shall leave it out of consideration. The act of obtaining it, that is, making of an application for the same, may have a bearing on the question of intention of the petitioner regarding his residence in the country and Mr. Ahmed has not challenged his application to be invalid. The learned trying Magistrate also took the act of obtaining domicile certificate into consideration when discussing the question of intention as already Indicated. Mr. Naimuddin Ahmed also referred to the admission made by the petitioner that his application for citizenship certificate was made on Form 'B' meant for Commonwealth citizen to the appropriate authority of the Government of Pakistan. The point made by him was that this was an element of intention showing that he treated himself as a citizen of Commonwealth and not of Pakistan. While considering the mental condition of the petitioner .in this connection, an explanation given by him that he did it through mistake, has also to be noticed. It is a form meant for Commonwealth citizens and Pakistan being a member of the Commonwealth, it is not unlikely that the petitioner might have made a mistake as claimed by him. Migration into Pakistan prior to 13‑4‑51 is not by itself sufficient to confer citizenship on a person. His entry must be with the intention to live here permanently, as is clearly laid down in clause (d) of section 3 of the Act as already set out. With regard to the question of migration and intention of the petitioner in this respect, the learned Magistrate has come to the following finding: ‑ "The evidence on record clearly shows that the accd. came by migration to Pakistan on 8‑4‑51 and has settled down here and set up his business and houses at Chittagong and Dacca. He is living in East Pakistan since then with his family and has applied for and acquired domicile certificate as early as 24‑10‑

52. All these go to show that he has had bona fide intention of permanently residing in Pakistan." The learned Magistrate has referred to certain elements which constitute evidence of intention and has come to the finding that the petitioner 'has had bona fide intention of permanently residing in Pakistan.' The learned Magistrate did not, however, realise that the findings already arrived at by him were sufficient to make petitioner a citizen of Pakistan by operation of law as laid down in section 3 (d) of the Citizenship Act. This failure is due to the misconception of law on the point already adverted to by me somewhat elaborately. It was a mistake to think that acquisition of citizenship was dependent on obtaining a certificate of citizenship or a registration to that effect. The learned Additional Sessions Judge also comes to the following findings on facts relevant for the determination of the questions at issue: ‑ "Now it is fact that the accused was an Indian National Chinese by birth. It is also a fact that he migrated to East Pakistan on the 8th of April, 1951. There is no dispute that since then the accused has been living in East Pakistan with his family and has started tannery business in Dacca and Chittagong. It is also a fact that since his arrival here, the accused did not go to India." Having reached these conclusions on facts material for the purpose, the learned Judge says that these may show the intention of the petitioner but he falls into an error of law when he says that the citizenship can be bestowed on the petitioner by the Government. I would like again to quote him in his own words. "It may show his intention to live in Pakistan. But the Government only can bestow upon him the citizenship of Pakistan. Although the learned Judge seems to recognise the necessary intention on the part of the petitioner, he thinks acquisition of citizenship is depended on bestowal by the Government. I have no hesitation to say that acquisition of citizenship under section 3 (d) of the Act is not at all dependent on the conferment of the same by the Government. There are, however, powers in the hands of the Government under section 16 of the Act for depriving a person of his citizen ship if he is disloyal and for other reasons stated therein. The question of a person being black listed or engaged in subversive activities has no bearing for finding out whether he is a citizen or not. It should be realised that a citizen may also be engaged in these activities and there are sufficient provisions in relevant laws to deal with him effectively. I have already set out the clear findings of the Magistrate on the question of migration of the petitioner before 13‑4‑51 and of his intention to reside in this country permanently‑the two conditions requisite for acquisition of citizenship under section 3 (d) of the Act. These findings have not been dissented from by the learned Judge and the findings arrived at by him as already quoted also support the conclusion reached by the learned Magistrate in this respect. It has not been claimed on behalf of the State that these findings are based on no evidence at all or on improper appreciation of evidence or non‑consideration of certain evidence. Relying on the findings already arrived at, I am of opinion, that the petitioner has acquired citizenship of Pakistan by operation of law. The order directing the petitioner to leave Pakistan within a certain date was made under clause (c) of subsection (2) of section 3 of the Foreigners Act. It is specifically stated therein that the order under that section can only be made on a foreigner. 'Foreigner' as defined in section 2 of the Foreigners Act means 'a person who is not a citizen of Pakistan'. Applying the law on findings arrived at by the Courts below, I have already held the petitioner to be a citizen of Pakistan. That being the position, no order under the said section 3 (2) of the Foreigners Act could be passed on him. Section 8 of the Foreigners Act does not apply to this case, and tire petitioner has discharged the burden of proving that he is not a foreigner as required under section 9 of the Foreigners Act. As the petitioner has established that he is not a foreigner, the order made on him under section 3 (2) (c) of the Act was a nullity for the violation of which, an order of conviction and sentence under section 14 of the Foreigners Act cannot be maintained. The State pressed for retrial for adducing further evidence as I have already mentioned. This is indeed an extraordinary prayer for prosecution to make. No retrial can be ordered for the said purpose in complete disregard of the well‑recognised judicial principle that in a criminal trial prosecution cannot be allowed to fill up the gaps far less to give evidence in rebuttal and to attack findings of intention already given in that case. The order of conviction must stand or fall on the evidence already led in this particular case. In the result, the rule is made absolute and the conviction and sentence of the petitioner are set aside. The petitioner is dis charged from his ball bond. S, B./A. H. Conviction set aside.