' MUHAMMAD RAZA KHAN, J.--- This Constitutional petition has a history of about 12 years and it relates to a simple question of issue and cancellation of domicile certificate. A domicile certificate was issued to the petitioner on 17-10-1993 certifying that he belonged to Bhittani Tribe of F.R. Tank.
The dispute arose for the first time in the year 1999 when he applied for admission in Khyber Medical College. The present respondent No,7 raised an objection on the said domicile certificate which was sent to respondent No,4 for verification. The respondent No,4 referred the matter to the Council of Elders and after getting their report, the respondent No,4 recommended the cancellation of the said certificate and it was cancelled by respondent No,3 on 16-12-1999. This order was challenged through an earlier Writ Petition No,238 of 1999 and vide judgment, dated 2-5-2001 it was held that the proceedings for the cancellation of domicile certificate are not "covered under section 8 or 11 of the F.C.R. And are totally administrative in nature" and that under the principles of natural justice it was necessary that "a person who is going to be affected by an order is bound to be associated with the proceedings and should be given show-cause notice before any action adverse to his interest is taken". Consequently the impugned order dated 16-12-1999 was set aside with a "direction to the Authorities that they may proceed with the complaint of respondent No,1 (now respondent No,7) but by complying with the principles of natural justice in allowing the petitioner not only to participate in the inquiries, and if required, may support his stand before such authorities whereafter the authorities may pass any order".
2. In compliance with the said order of this Court, the inquiry was conducted and vide an order dated 9-7-2001 of respondent No,3, it was held that the domicile certificate of the petitioner issued on 17-10-1993 showing himself to be a Bhittani Tarai was "strongly rebutted by elders of Bhittani of Pir Tangi area. Moreover, he and his other family members had no landed property in Pir Tangi area. As per Revenue Record on file of three Revenue Estates i,e, Kirri Haider, Tajori and Nulla Salim Warspoon, he and his parents are Nasar by caste ... The findings, recommendations and verdict of the Council of Elders (Jirga) is also against Afsar Khan as per record". On the basis of this reasoning the District Magistrate again cancelled the domicile certificate dated 17-10-1993 vide his order, dated 9-7-2001. The petitioner filed an appeal before the Commissioner F.C.R. Headquarter, Bannu who vide his order dated 26-12-2001 here:-- "Considering arguments advanced by the either side and perusal of record, I am convinced that the contention of the respondents is not devoid of force. The issue was thoroughly inquired by the local administration through the Council of Elders. The terms of reference were clear with no ambiguity. The order of D.M./P.A., Tank is self-explanatory and is based on evidence and knowledge of the area, as such, deserves no interference."
' With these observations the learned Commissioner F.C.R. Bannu vide his order, dated 26-12-2001 rejected the appeal of the present petitioner. In compliance with section 55-A of the F.C.R. 1901, as amended in 1997, a revision was filed before the Tribunal F.C.R. On 12-1-2002. The petition was not considered and an order dated 13-7-2002 was passed, which reads:-- "Counsel for the petitioner present. Secretary, Home is busy with some other official work. Petition returned for want of jurisdiction vide order of today."
' The last phrase of the order, as reproduced above, indicates that some detailed order was also passed on the same day containing reasons for refusal to exercise jurisdiction but the learned counsel for the petitioner confirmed that no detailed order was passed except the one annexed with the petition (reproduced hereinabove). This order and the proceedings leading thereto has been challenged through this Constitutional petition.
3. The learned counsel for the petitioner argued that initially the petitioner was confirmed to be domiciled in F.R. Tank on the basis of an inquiry conducted in 1993 and recently the affidavit on behalf of not less than eleven Maliks of Warspoon Tarai Bhittani Tribe have again confirmed that the petitioner, being a member of the said Tribe, was entitled to all the profits and liable to all the responsibilities of the Tribe in the F.R. Area with effect from 1901. The affidavits also confirmed that Warspoon Tarai Bhittani Tribe comprises of three sub-castes i,e, Soorar, Manzai and Khorkhel. The present petitioner belonged to Khorkhel sub-caste of the said Tribe. The learned counsel further argued that Mr. Dilawar Khan, the father of the present petitioner was serving as. Dispenser in the Health Department. He retired on 3-1-1981. In his service book his Tribe is recorded as Bhittani and the place of domicile is stated as Kirri Haider, Tank. The father of the petitioner, died on 1.1-7-1993 and his death was certificated by Captain Dr. Aurangzeb Khan, Medical Officer, Civil Hospital, Tank who had described him as Bhittani, resident of Kirri Haider. The learned counsel pointed out that incidentally the said Dr. Aurangzeb Khan was the real uncle of respondent No,7. He further added that Mst. Fazal Bibi, the mother of petitioner had a domicile certificate of F.R. Tank issued on 17-11- 1999. The pension payment order of the late Dilawar Khan in favour of Mst. Fazal Bibi, re-confirms their residence at Village Kirri Haider. Moreover, the brothers and. The real cousins of the petitioner have been issued domicile certificates of F.R. Tank. It was also argued that the electoral list prepared by the Assistant Election Commissioner, South Waziristan Agency mentions the present petitioner (at serial No,1158), his brothers and cousins at serial No,1154 to 1161 of the electoral area, F.R. Tank.
4. The learned counsel for the petitioner also referred to F.C.R. And stated that it was neither a civil nor criminal dispute between parties and the reference to the Council of Elders was not proper and even if the inquiry was necessary from any Jirga, the Maliks belonging to Khor Khel Tarai Tribe should have been associated in the inquiry and not those who belonged to a rival Tribe. The learned counsel finally argued that the political authorities as well as the Commissioner F.C.R. Have not exercised the jurisdiction vested in them properly and the decision of such respondents was liable to be corrected by the Tribunal constituted under section 55-A of the FCR consisting of the Home Secretary and Law Secretary. Referring to the impugned order, consisting of one sentence only, the learned counsel argued that it was not a speaking order (and that too by one member of the Tribunal) which was violative of the law.
5. Learned Deputy Advocate-General, assisted by the representative of the Department, merely agitated the question of fact that the petitioner belonged to Nasr sub-caste being Pawinda by tribe and therefore, he was not entitled to the domicile certificate of F.R. Tank. He also asserted that the action taken by the respondents Nos.1 to 5 fell within the scope of Article 247 of the Constitution which was beyond the scope of jurisdiction of this Court.
6. So far as exercise of jurisdiction by this Court is concerned, the matter was settled at rest by an exhaustive judgment recorded earlier in the same matter on 2-5-2001 in Writ Petition No,238 of 1999, where a similar legal objection was taken that in a judgment of Full Bench of this Court reported in PLD 1981 Pesh. 57, this Court declined to exercise the jurisdiction because of the ouster thereof under Article 247 of the Constitution. While dealing with this question in the judgment dated 2-5-2001, it was held:-- "We have gone through the Full Bench judgment of this Court where there was in fact difference of opinion between two Honourable Judges and therefore, the matter was placed before the third Jude and the judgment was more influenced by the fact that the petitioner therein was not considered to be entitled to the equitable relief from this Court because he himself was found to have tampered with the domicile certificate of somebody else and instead recorded his name thereon and it was, therefore, by his 6wn conduct that he was refused relief."
' Independent of distinguishing the said Full Court judgment, the question of jurisdiction relating to the issue of domicile certificate was thoroughly examined therein and it was held that the proceedings for the cancellation of domicile certificate did not fall "under the FCR because such proceedings could not be covered under section 8 or 11 of the FCR but are totally administrative in nature, therefore, all authorities in Pakistan are required to abide by the law of the land and the law of natural justice, which does not have boundaries not even territorial"
' Thus, in the said judgment relating to the same issue, a conclusive finding was recorded holding that proceedings for the cancellation of domicile certificate did not fall within the domain of FCR being entirely of administrative nature and that the principles of natural justice were required to be followed by all the functionaries of the State irrespective of their place of posting.
7. The second objection on behalf of the respondents is that the petitioner belongs to Nasar Pawinda Tribe (not a recognized caste of Bhittani Tribe) and, therefore, he was not entitled to a domicile certificate of the area where Bhittanis were domiciled. Although this appears to be a pure question of fact but the minute scrutiny indicates that a question of law and Constitution was also involved therein. Article 1 of the Constitution lays down the territories of Pakistan. The Federally Administered Tribal Areas are included therein vide clause (c) of Article 1(2). The term citizen has been defined in Article 260(1) of the Constitution as "citizen means a citizen of Pakistan as defined by law". The law dealing with the subject is the Pakistan Citizenship Act, 1951. Section 3 of the Act provides that at the time of commencement of this Act, every person shall be deemed to be a citizen of Pakistan:- "(a) who or any of whose parents or grandparents was born in the territory now included in Pakistan and who after the fourteenth day of August, 1947 has not been permanently resident in any country outside Pakistan..."
' Section 4 of the Act further describes the "citizenship by birth" as "every person born in Pakistan after the commencement of this Act shall be a citizen of Pakistan by birth..,." Article 15 of the Constitution further guarantees that "every citizen shall have the right to ... Move freely throughout Pakistan and to reside and settle in any part thereof".
8. There is no dispute to the fact that the petitioner and, admittedly, his father fell within the category of citizens of Pakistan and they shall have the right of domicile somewhere. If the petitioner is denied the facility of certification of permanent residence in FR. Tank, there is every likelihood that he will be deprived to get domicile certificate from any other authority because his parents and all the members of his family are permanently domiciled in the said area and the denial to this right would amount to the denial of a legal and Constitutional right.
9. The criteria for the determination of domicile of a citizen have been considered in various cases by several Courts. The reference to some of them may settle the issue. In the case of Muhammad Ashfaq Khan v. Chairman, Nomination Board and another PLD 1979 AJ&K 43, it was held that "while deciding the question of domicile, the actual residence and the intention to reside at a place permanently or for an indefinite period are to be taken into consideration. The intention to reside permanently or for an indefinite period is to be gathered from circumstances of each case and there are no hard and fast rules to ascertain such an intention". While deciding a couple of consolidated matters concerning domicile certificate, the Balochistan High Court held, in a case reported in PLD 1978 Quetta 17, that a domicile certificate is issued by a statutory functionary after a complete probe and for such reason, it has all the sanctity of a public document and it establishes strong presumptive proof of a person being a permanent resident of a particular place. The Honourable Supreme Court examined the issue in the exhaustive judgment authored by Honourable Mr. Justice Anwar-ul-Haq where detailed guidelines were recorded relating to the domicile certificates. It was held therein that the determination of question of residence for the purpose of grant of domicile certificate must "answer qualitative as well as quantitative test and the Courts have regarded naturalization, purchase of house or burial ground, exercise of political rights, financial institutions, establishment of children in business, the place where the man's wife and family resides are the indicia of his intention in regard to the residence". (1975 SCMR 265). In the same case, it was further added that "in the present case the facts found by the relevant authorities are that Iftikhar Ahmad's father was domiciled in Quetta Peshin District of Balochistan Province and on this finding he must be regarded as a bona fide resident of Balochistan".
10. Applying the said criteria to the case in hand, there is sufficient documentary evidence indicating the past history of the residence of the family of the petitioner in FR Tank. The service record and address of the late father of the petitioner, the domicile of his mother recorded in the pension papers, the domicile certificates issued to his cousins and other family members prove that the petitioner and his family reside in the said area. The respondents themselves have traced the pedigree-table of the petitioner through the help of Revenue Record which, coupled with the allegations of the petitioner, shows that the family of the petitioner owns landed property in the area of FR Tank. In accordance with the guidelines reported in the above-quoted judgment of the Supreme Court, the existence of some of these factors may be sufficient for the grant of domicile certificate.
11. Domicile certificate means the official confirmation of the place of permanent residence of a citizen. Apparently it has nothing to do with castes or Tribes. A person belonging to Nasar sub- caste can neither be denied right of citizenship nor of domicile if he meets the criteria laid down by the law, the rules and the guidelines given by the Supreme Court. Moreover, the unambiguous certificate issued by the Tribal Elders of one of the recognized case of. Bhittani Tribe* also confirms the entitlement of the petitioner to the benefits and liabilities of the Tribe being a resident of the area.
12. It may also be observed that despite earlier observations of this Court that sections 8 and 11 of the FCR were not attracted to a domicile certificate which means that the matter could not be referred to the Council of Elders under the FCR but in all the orders, impugned herein, the findings of the Council of Elders have been relied upon and the documentary proof produced to the contrary appears to have been ignored. Section 8 of the FCR deals with the reference of civil matters to the Council of Elders where the Deputy Commissioner is satisfied that a civil dispute is likely to cause blood feud or any other mischief or offence. Similarly, under section 11, the criminal matters can be referred to the Council of Elders. The grant or cancellation of a domicile certificate is neither a civil nor a criminal dispute. It is purely an administrative matter and could be decided on the basis of administrative inquiry after providing opportunity of hearing to the parties and the production of necessary documentary and oral evidence.
13. Moreover, the blind reliance on the report of some of the elders and the omission to notice a similar confirmation provided by others is also not logical. The Commissioner had not only discarded the opinion and the findings of the tribal leaders in favour of the petitioner but has G also suggested punitive action against such elders. The learned D.A.-G. Could not point out any law or administrative instructions to the effect that being a member of a particular tribe deprives a citizen of the right of domicile in a particular area.
14: These points, as highlighted hereinbefore, were, to be scrutinized and adjudicated upon by a legally constituted Tribunal and a revision petition was accordingly moved before it. However, only one of the members had passed the impugned order for the return of the petition on the ground of lack of jurisdiction whereas the other member of the Tribunal did not find time to contribute his views on the issue. Even the concise order indicating lack of jurisdiction consists of a single sentence which does not mention any reasons for the return of petition after almost seven months of its filing. The writing of a speaking order is also one of the well-recognized principles of natural justice. Every public functionary is duty bound to record the reasons for his actions even in the administrative matters whereas the functions assigned to the learned Tribunal FCR were of purely judicial nature and a judicial order passed j by a judicial member of a Tribunal consisting of a single sentence was unprecedented.
14. We, therefore, accept this Constitutional petition, set aside the impugned order of the respondent No,1 and remand the case back to the K Tribunal FCR for the disposal of the revision petition which shall be deemed to be pending before it.