P L D 2018 Balochistan 49
Before Muhammad Noor Meskanzai, C.J., Muhammad Hashim Khan Kakar and Jamal
Khan Mandokhail, JJ
MUBASHAR MEHMOOD and another ---Petitioners
Versus
HOME AND TRIBAL AFFAIRS through Secretary Civil Secretariat and others ---
Respondents
Constitutional Petitions Nos.994, 582 and 1034 of 2015 and 385 of 2017, decided on 31st October, 2017.
(a) Pakistan Citizenship Act (II of 1951) ---
----Ss. 16 & 17---Pakistan Citizenship Rules, 1952, Rr. 23 & 26--- Domicile Certificate and
Permanent Residence Certificate---Scope ---When a person who is permanently residing in one
province goes to another province with intention to reside there permanently or indefinitely his domicile does not undergo any change nor such person acquires a new domicile of choice and his
domicile remains the same ---Basic distinction between concept of domicile and that of
permanent or ordinary residence is as much as former relates to status of a person and involves a question of law while latter is a question of fact ---Domicile and permanent residence certificates
are altogether different concepts.
Muhammad Yar Khan v. Deputy Commissioner -cum-Political Agent Loralai 1980 SCMR 456
rel.
(b) Pakistan Citizenship Act (II of 1951) ---
----Ss. 16 & 17 ---Pakistan C itizenship Rules, 1952, Rr.23 & 26---Constitution of Pakistan, Art.
199---Constitutional petition ---Domicile Certificate, cancellation of ---Principle ---Petitioners
were aggrieved of orders passed by authorities whereby their domicile certificates were cancelled ---Validity ---Authorities, instead of following prescribed procedure laid down under R.
26 of Pakistan Citizenship Rules, 1952 cancelled domicile certificates of petitioners without holding proper and necessary inquiries ---If it was found that a domic ile certificate was obtained
by fraud or misrepresentation same entailed necessary punishment under law ---Authorities were
not aware of consequences which could flow from deprivation of citizenship by cancelling domicile certificates ---Every citizen was en titled to be certified under Pakistan Citizenship Act,
1951 and he could not be deprived of such right just by a stroke of pen---As soon as a certificate of citizenship was withdrawn or cancelled, that amounted to denial of civil rights of an individual and such person would have no right to live in the country ---High Court set aside orders passed
by authorities and restored domicile certificates issued in favour of petitioners ---Constitutional
petition was allowed in circumstances.
Muhammad Yar Khan v. De puty Commissioner -cum-Political Agent Loralai 1980 SCMR 456
rel.
Syed Atta Abbas v. District Magistrate Kohlu PLD 1983 Quetta 68; Abdul Hafeez Khan
v. Deputy Commissioner Khuzdar PLD 1983 Quetta 20 and Dr. Ahmed Tariq Chishti v. District
Magistrate Khuzdar Constitution Petition No.89 of 2011 ref.
Mujeeb Ahmed Hashmi for Petitioners (in C.P.No.994 of 2015).
Muhammad Ilyas Mughal for Petitioner (in C.P. No.582 of 2015).
Mehmood Sadiq Khokhar and Syed Iqbal Shah for Petitioner (in C.P. No.1034 of 2015).
Syed Ayaz Zahoor for Petitioner (in C.P. No.385 of 2017).
Abdullah Khan Kakar, Deputy Attorney General, Amanullah Kanrani, Advocate General assisted by Shai Haq Baloch, Additional Advocate -General for Official Respondents.
Amicus Curiae: Azhar Ilyas Nagi:
Date of hearing: 25th September, 2017.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Since interpretation of Central Statute,
in particular the relevant provisions of the Pakistan Citizenship No.1951 ("the Act of 1951") and
Pakistan 'Citizenship Rules 1952 (" the Rules of 1952") regarding determination of the status of
the local and domicle certificates is involved in all the aforesaid constitutional petitions filed under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 ("the Constitution"),
which requires authoritative decision by this Court, therefore, we proposed to decide the same through this common judgment.
2. The facts in all the petitions are more or less similar regarding cancellation/restoration of
domicile and local certificates o f the petitioner(s) and private respondent(s) by the Deputy
Commissioner(s) concerned of their respective Districts of Balochistan, on the basis whereof, they are claiming jobs/admissions in different departments and educational institutions of the Federal /Provincial Governments, including the Autonomous/Semi -Autonomous Bodies,
Corporations, Companies etc.. where the quota system applied in proportionate to their rights/shares, if any.
3. It may be noted that this Court, on a number of occasions, while disposing of similar
petitions, has observed that there is no set rule regarding, obtaining of local and domicile certificates, therefore, in order to set the controversy at rest, this Larger Bench has been constituted in order to resolve thc issue once for al l.
4. Mr. Mujeeb Ahmed Hashmi , learned counsel for the petitioners, inter alia, contended that
the Deputy Commissioner had no jurisdiction to cancel the domicile certificates of the
petitioners. He submitted that the District Magistrate has cancelled the domicile certificates of
the p etitioners without adhering to the relevant provisions of law i.e. Section 16 of the Act of
1951 and Rule 26 of the Rules of 1952 and fell in error, while mixing up the Domicile Certificate and Permanent Residence Certificate, which are altogether differen t from each other. According
to learned counsel, the domicle certificates were issued in favour of the petitioners under Section
17 of the Act of 1951, as such it could only be cancelled under the Rules of 1952 framed
thereunder as there exist no other law on the subject. He further submitted that the decisions of
the Deputy Commisisoners/District Magistrates were in direct contravention of Article 15 of the
Constitution and amount to infringement of petitioners' rights as guaranteed to a citizen under Article 15 of the Constitution. While concluding his arguments, he further submitted that if the
domicile certificates issued in favour of the petitioners were found to be a result of fraud and misrepresentation, action could have been taken against the petiti oners under the Act of 1951 and
the Rules of 1952 framed thereunder.
5. On the contrary Mr. Mazhar Illyas Nagi, learned Amicus Curiae, submitted that the
certificates in question are not domicile certificates as envisaged under section 17 of the Act of 1951 and the Rules of 1952 made thereunder. It is simply permanent residence certificates, which the Deputy Commissioner of the area concerned, can issue in exercise of its administrative
authority. Similarly, Mr. Amanullah Kanrani, learned Advocate General, while supporting the
view of Mr. Mazhar Ilyas Nagi added that the Deputy Commissioner, being the issuing authority, is very much competent to cancel a certificate, if it is found to be obtained by fraud, misrepresentation or concealment of any material fact in view of Section 21 of the General Clauses Act, 1897.While concluding his arguments, he further submitted that since the petitioners were not bona fide residents of the respective districts, as such, after proper inquiry, their domicile certificates we re rightly cancelled.
6. We have heard learned counsel for the parties at length and have gone through the record
including relevant provisions of law with their valuable assistance.
7. At the very outset, it may be noted that the Province of Balochistan has multi-
ethnic/linguistic population i.e. Baloch, Pashtun, Hazara and Settlers. The local certificates are issued to the persons, who belong to one of the indigenous tribes of Balochistan and such tribes have been duly notified by the Home and Tribal Affa irs Department, Government of
Balochistan, permanently residing in a particular area of the Province and their reference could also be found in the Gazetteer of Balochistan, whereas, domicile certificates are issued to those who do not belong to indigenous tribes of Balochistan, but, otherwise, are permanently residing
in Balochistan (commonly known as `settlers'). There is no difference or discrimination between a local and settler for the purpose of applying against any reserved seat or post and the only requirement is to produce a local/domicile certificate issued by the respective Deputy Commissioner of the concerned districts.
8. Similarly, due to absence of Management Sciences Universities, Engineering Universities
and Medical Colleges till 1972/1973, people of Balochistan remained backward comparatively to the people of sister Provinces in terms of education and carrier planning, as such, it became a common practice that people from outside the Province would come to this Province and obtain admission in its educational institutions and secure jobs in the Provincial as well as Federal
Departments. Keeping in view such situation, it was decided that a person who either seeks
admission in an educational institute or wants to secure a job, must obtain a ce rtificate from the
Deputy Commissioner proving to be a permanent resident of a particular district of Balochistan, but, unfortunately, no required legislation was made for the said purpose, which is the basic root cause of the problems faced by the bona fi de residents of Balochistan.
9. In order to achieve the aforesaid object, the Government of Balochistan evolved a
mechanism of Local and Domicile Certificates by constituting Committees in every district to make recommendations for the issuance of local or domicile certificates. The issuance of these
certificates is not regulated by any law, rules and regulation on the subject, but as a person in view of the exigencies and complexities may require it. The Government of Balochistan has reserved some seats in Medical Colleges. Engineering Universities and other Professional
Institutions for the students of under developed areas in order to bring the educated youth of these backward areas at par with the students of urban areas. Similarly, for the purpose to se cure
adequate representation of persons belonging to any class or area under Rule 15 of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, certain posts are required to be filled in on local and regional basis. Generally, suc h local and domicile certificates
are issued to those students, who are bona fide residents of the district. Since such certificates are
not regulated by any law, therefore, the same are issued under administrative authority of the
concerned Deputy Commiss ioner to get the above stated benefits.
10. After giving a brief background, while reverting to the real controversy, the following
moot questions emerged for consideration:
i) What is the purpose of Local and Domicile Certificates?
ii) Whether the petitio ners were issued domicile certificates under the Pakistan
Citizenship Act, 1951 and the Rules made thereunder?
iii) If so, whether the Deputy Commissioners/District Magistrates were competent to cancel the same, in case same were found to be obtained throu gh fraud and
misrepresentation?
iv) Whether, prior to cancellation, notices were issued to the petitioners and proper opportunity of hearing was provided to them?
v) Whether, after receiving complaints regarding the status of domiciles issued in favour of the petitioners, proper and detailed inquiries were conducted?
11. In order to resolve the real controversy, i.e. determining the status of domicile
certificates, it would be appropriate to reproduce herein below Section 17 of the Act of 1951 and Rule 23 of the Rules of 1952, which read as under:
"17. Certificate of domicile. --The Federal Government may, upon an application being
made to it in the prescribed manner containing the prescribed particulars grant a certificate of domicile to any person in respect of whom it is satisfied that he has ordinarily resided in Pakistan for a period of not less than one year immediately before
the making of the application, and has acquired a domicile therein."
"23. Certificate of domicile. ---The Central Government, the Provincial Government of a
District co -ordination officer other than in Islamabad capital territory or Chief
Commissioner. Islamabad capital territory or an authorized officer may on application
made to it in this behalf issue a certificate of domicile in Form P -1' in the manner,
following: -
(a) An application for a certificate of domicile shall be made in Form `P -I in duplicate. It
shall be accompanied by an affidavit affirming the truth of the statements made in it and affirming further that the applicant had not migrated to India after the first day of March,
1947 or that, having so migrated, had returned to Pakistan under a permit for resettlement or permanent return issued by an officer authorized by the Government of Pakistan.
(b) Any authority to whom an application is presented may demand such evidence as
it may consider necessary for satisfying itself that the facts stated in the application are
correct that the applicant has been continually resident in Pakistan f r a period not less than one year a nd intends to live permanently in Pakistan.
(c) The authority shall pass such orders on the application as it deems fit."
12. Learned counsel for the petitioners has tried to bring the certificates, issued in favour of
their clients under the aforementione d provisions of law. We are afraid that the contention of
learned counsel is the result of misconception of law on the subject. The bare perusal of the aforementioned provisions of law clearly manifest that the domicile certificate issued under the Act of 1951 is not at par with the one issued from a particular district. The former is issued under
a specific law, regarding intention of oath for permanently settling in Pakistan by the holder and by abandoning the domicile of, origin from another country. The latter contemplates permanent
residence in a particular district. Such like certificates are not issued under any statutory law, but are issued by the Deputy Commissioner, in exercise of administrative authority. As has been observed hereinabove, the purpose of issuance of such Local/Domicile Certificates is to get admission in any of the educational institution or to secure employment. As a matter of fact, the domicile certificates envisaged by and issued under Section 17 of the Act of 1951 are meant for a
class of persons, who are originally not the citizen of Pakistan, have migrated to this country after emergence of Pakistan, during the specified period, have abandoned their domicile of origin
and having ordinarily resided in Pakistan for a period of not less than one year with the intention
of residing therein permanently in order to acquire citizenship of Pakistan. In all the cases, the
petitioners are citizens of Pakistan by birth, hence, they do not require any domicile certificate to be the citizen of Pakistan.
13. Admittedly, a domicile certificate of a person issued under Section 17 of the Act of 1951
relates to the whole country and has nothing whatsoever to do with the question of permanent
residence of such person in a district or any particular part of the country. It may be noted that
Article 15 of the Constitution, recognised the essential unity and integrity of the nation and reinforces the concept of one nation by providing that every citizen shall have the right to move freely throughout Pa kistan and to reside and settle in any part of the country. The law of the land
recognises only one domicile issued under Section 17 of the Act of 1951. According to our
opinion, when a person who is permanently residing in one province goes to another province
with intention to reside there permanently or indefinitely, his domicile does not undergo any change, nor it acquires a new domicile of choice. His domicile remains same. Legally speaking there is a basic distinction between the concept of domicile and that one of permanent or ordinary residence inasmuch as the former relates to the status of a person and involves a
question of law while the latter is a question of fact. The domicile and permanent residence
certificates are altogether different concep ts. This question was dilated upon and finally
determined by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Yar Khan v.
Deputy Commissioner -cum-Political Agent Loralai" (1980 SCMR 456). The relevant
observations made by the Hon'blc Supreme C ourt are as under:
"Having said this, however, we may as well make it clear that a citizenship of Pakistan, in view of the exigencies and the complexities qf the present day life, may indeed be genuinely in need of obtaining a domicile certificate but that would only mean that he is
the domicile of Pakistan, and not of a Province or a part of Province. It is our experience, however, and the present case would seem to furnish a concrete instance, that in the domicile certificates granted by the District Magistrates the grantee is often mentioned to be the domicile of a particular Province or a part of Province or a part of the Province which is wholly incorrect.
We may as well -mention that there is no legal bar in the way of the petitioner, if he is so
minded, to make a fresh application to the District Magistrate, Loralai, for the grant of a
domicile certificate, as he is a citizen of Pakistan by birth, having his ancestral home in the District of Dera Ghazi Khan. As to the certificate of 'permanent residence' in the District of Dera Ghazi Khan. As to the certificate of `permanent residence' in the district
Loralai, however, the position is entirely different inas much as in the institutions of
higher learning of the country certain seats have been reserved for the permanent residents of Balochistan and so it would be the burden of the petitioner to prove that he was also permanent resident of that Province or one of its Districts. If the petitioner succeeds to satisfy the authorities in that behalf we have no doubt that he would succeed in securing a certificate of permanent residence also but that question lies exclusively in the jurisdiction of the authorities."
14. So far as the certificates, issued in the province of Balochistan in the name and style of
domicile certificates, are concerned, we have observed that the origin of said certificates are not known and these certificates are equated with the permanent resident certificates to have been issued by the various District Magistrates in the exercise of their administrative authority. These certificates are being issued in favour of the bona fides residents of the Province, enabling them to get admission in educ ational institutions and securing jobs in different departments of the
province as well as Federation. While holding this view, we are fortified with the judgment of the Hon'ble Supreme Court in the case of Yar Muhammad (supra), wherein the domicile certif icates, issued in the Province of Balochistan, were declared to be equated with permanent
residence certificate meant for admission in professional colleges or for obtaining jobs in the Government Departments. The status of a domicile certificate in the Pr ovince of Balochistan is
not more than a permanent residence certificate.
15. So far as the contention of learned counsel for the petitioners that the cancellation of
domicile certificate, once issued by a competent authority tantamount to cancellation of the
citizenship of holder of such certificate is concerned, we are of the view that the powers of Deputy Commissioner to cancel the Domicile Certificate are limited and governed by the Act of 1951 and the Rules of 1952. There are two circumstances, under w hich a citizen can be deprived
of his citizenship under the Act of 1951. Firstly, if the Central Government is satisfied that the
Certificate of Citizen has been obtained through fraud and misrepresentation or on the grounds
mentioned under Section 16 of t he Act of 1951 and, secondly, if he is convicted for an offence
under section 177 of the Pakistan Penal Code (XLV of 1860) "(P.P.C."), being prosecuted under
Rule 26 of the Rules of 1952.
16. We are afraid that the District Magistrates, Quetta and Musa Khail instead of following
the prescribed procedure laid down under Section 26 of the Rules of 1952 have cancelled the
petitioners domicile certificates without holding proper and necessary inquiries. It may be noted that if it is found that a domicile certif icate was obtained by fraud or misrepresentation it entails
necessary punishment under the law. It appears that the respondents are not aware of the consequences, which can flow from the deprivation of a citizenship by cancelling of domicile certificates. The citizen is entitled to be certified under the Act of 1951 and he cannot be
deprived of his right just by a stroke of pen. As soon as a certificate of citizenship is withdrawn
or cancelled, it amounts to denial of civil rights of an individual and moreover the person would
have no right to live in the country.
17. After holding the aforementioned view in respect of cancellation of domicile certificates,
we are left with no option, but to set aside the impugned orders and restore the domicile certificates issued in favour of the Petitioners. However, it would be relevant to state that the
petitioners have obtained admissions/appointments on the strength of domicile certificates, while
using the same as permanent residence certificates, as such, the official respondents are at liberty to conduct inquiries against the petitioners and if found not be the bona fide permanent residents of the concerned Districts, then proceed against them in accordance with law, that too, after providing full and fair opportunit ies of hearing.
18. We have painfully observed in a number of cases that people of sister provinces,
particularly the civil servants during the period of their posting in Balochistan, obtained domicile certificates and, subsequently, their children obtaine d admissions in its educational institutions
and secured jobs in its various departments and the Federal Government on the strength of said certificates, resultantly, people of this province were left deprived of those opportunities in spite of the fact th at after their transfer from the province of Balochistan, neither are they residing in
the province permanently, nor have they thereafter visited the same. Unfortunately, the said practice is continued for the last four decades only due to lack of required legislation on the
subject.
19. It may be stated that in spite of repeated observations/directions given by this Court in
cases of: (i) Syed Atta Abbas v. District Magistrate Kohlu (PLD 1983 Quetta 68), (ii) Abdul Hafeez Khan v. Deputy Commissioner Khuzda r (PLD 1983 Quetta 20) and (iii) Constitution
Petition No.89 of 2011 (Dr. Ahmed Tariq Chishti v. District Magistrate Khuzdar) the Provincial Government has failed to provide a law on the subject of permanent residence. We have observed that domicile certif icates are being regularly used to manifest the proof of permanent
residence required by the employers and management of educational institutions throughout the
province. Despite the fact that, no citizen of Pakistan, who is recognized as such, needs certificate at all to such effect, however, such certificates are being issued in the whole province
to prove permanent residence of a person which is contrary to law. It is reiterated that to avoid confusion that invariably arises on this score; namely when such certificates are used to establish
permanent residence the best course for the provincial government would be to provide a law on
the subject of permanent residence as in the sister provinces. We, once again expect that in future
the permanent residence certificate would only be issued under the rules so framed for the
purpose to meet the requirement.
20. For the aforesaid discussion, we have arrived at the following conclusions:
(a) that the domicile and permanent residence certificates are two entirel y distinct
concepts and should not be used interchangeably:
(b) that the Act of 1951 and Rules of 1952 only speak of the concept of one domicile i.e. Pakistan Domicile and that has nothing to do with any particular province, district or area;
(c) when a pe rson who is permanently residing in one district or province goes to
another district or province with intention to reside there permanently, his
domicile does not undergo any change: however, his/her earlier Permanent
Residence Certificate stands cancelled and non- existent.
(d) that in future a domicile certificate shall not be used for the purpose, other than
mentioned in section 17 of the Act of 1951:
(e) that only permanent residence certificate of a student or candidate would be relevant consideration for a candidate's admission into an institution or for the
purpose of job in any Provincial or Federal Department against reserved seats;
(f) that a domicile certificate once issued under Section 17 of the Act of 1951 cannot be cancelled except in the mann er as mentioned in the provisions of Rules of
1952:
(g) the Chief Secretary, Government of Balochistan is directed to take all necessary steps in this behalf including necessary legislation, if needed, positively by or before March 31st, 2018, thereafter, all the Heads of Provincial and Federal Government Departments, Educational Institutions, Corporations and Autonomous/Semi -Autonomous Bodies shall desist from introducing and
maintaining domiciliary requirement as a condition of eligibility for admission and jobs, in lieu thereof they should ask for submission of permanent residence
certificates as one of the perquisites for admission or employment.
Copy of this judgment be sent to the Chief Secretary. Balochistan and all the
administrative Secretaries to the Government of Balochistan, Deputy Commissioners, Principals of All Medical Colleges and Vice -Chancellors of Engineering Universities as well as the
Secretary Establishment Division, Government of Pakistan, Islamabad for necessary action and
compliance.
We, while parting with the judgment, appreciate the enlightened assistance rendered by
Mr. Mazhar Ilyas Nagi, learned Amicus Curie, who despite his pre -occupations, honoured the
words of this Court.
The petitions are accordingly, disposed of in the above terms.
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