' ABDUL HAMEED DOGAR, J.--- This appeal by leave of this Court is directed against the judgment dated 2-12-1998 of a learned Division Bench of High Court of Sindh, Karachi, whereby Constitution Petition No,D-1639 of 1991 filed by.Appellant was dismissed.
2. Briefly, stated that facts giving rise to the filing of instant appeal are that appellant's mother Mst.
Faiz-un-Nisa after migration from Calcutta got herself domiciled in Karachi. She was educationalist by profession. She served in several colleges in Karachi. She was holding a Pakistani passport. She was declared as highest bidder in an auction held by Karachi Development Authority (hereinafter referred to as "KDA") with regard to allotment of a plot of 2000 sq yards bearing No,F-44, situated in Block-8, Scheme No,5 (hereinafter referred to as "the plot") and deposited Rs, 20,500 as part payment, however, remaining amount was to be paid within two years of obtaining possession. In the year 1972, appellant along with his mother proceeded to USA for her studies. In 1974, on the demand of KDA about remaining amount, appellant's mother requested the department for extension of time for the payment of money and asked M/s. Orr Dignam & Co., to make payment on her behalf of KDA but it was not paid. In 1976, while on visit to Pakistan, appellant and her mother visited the office of Director Land and Estate KDA and obtained details with regard to the payment of dues. In 1981 mother of appellant was murdered in Dacca while on a short visit. Appellant returned to Pakistan in 1987 after completing her studies from aboard. She being the legal heir of her deceased mother/allottee applied for the transfer of plot in her name which after completion of necessary formalities and payment of Rs,2,47,950 was transferred in her name and possession whereof was also handed over. Vide Notification dated 14-2-1988, Abandoned Properties Organization (hereinafter referred to as 'the Organization') declared appellant's mother as a "Specified Person" and the plot in question was declared as Abandoned Property under section 11 of the Abandoned Properties Management Act, 1976 (hereinafter referred to as "the Act"). Feeling aggrieved appellant preferred an application under section 14(1) of the Act before respondent No,1 which was dismissed on 22-6-1988. An appeal filed before the Board of Trustees of Abandoned Properties was also dismissed on 26-7-1990. Thereafter, appellant filed appeal before the President of Pakistan, which too was dismissed vide order dated 28-2-1991. Feeling still dissatisfied, appellant invoked the Constitutional jurisdiction of learned High Court of Sindh, Karachi through Constitution Petition No,D-1639 of 1991 which was dismissed vide impugned judgment.
3. On 4-8-1999 leave to appeal was granted by this Court to examine the contentions raised by the learned counsel for the appellant.
4. We have heard Shaiq Usmani, learned Advocate Supreme Court for the appellant and Nasir Saeed Sheikh, learned DAG for the respondents at length and have gone through the record and proceedings of the case in minute particulars.
5. Learned counsel for the appellant contended that mother of the appellant was a Pakistani national settled in Karachi and had served in various educational Institutions from 1-2-1951 to 17-11- 1970. According to him, she had never withdrawn Pakistani nationality and even after 1971, she had been visiting Pakistan till she was murder in Banagladesh in 1981 where she lost her documents viz. Pakistani Passport, Identity Card etc. Learned counsel further contended that as per section 3(d) of the Citizenship Act, 1951, any person who before 13-4-1951 migrated to Pakistan from Sub-continent would be a Pakistani as good as one who was born in the territories that came to constitute Pakistan after 14-8-1947. There was no requirement for such a citizen to obtain any citizenship certificate or domicile certificate. He went on arguing that admittedly appellant's mother migrated from Calcutta to Karachi along with her first husband Yousaf Jamal. On 1-2-1951, as such, she became citizen of Pakistan under the above provisions of law. Even on the cutoff date, i,e, 16-12-1971 for East Pakistanis losing Pakistani nationality, she was in Pakistan, as such, for all practical purposes, she was a citizen of Pakistan. Learned counsel vehemently contended that the plot in question was purchased by appellant's mother in open auction from K.D.A in Clifton and became its licensee on 22-1-1970 by depositing an amount of Rs,20,500 as lease money while she was serving at Islamabad. According to learned counsel for appellant declaration of appellant's mother a specified person within the meaning of Article 2(t) of the Act was not only illegal and ultra vires of the provisions of law but was against the principle of natural justice. Neither the notice was issued to her nor an opportunity of hearing was afforded prior to such declaration, thus notification dated 14-2-1988 issued by the Organization declaring appellant's mother a specified person and property in question as "Abandoned Property" under section 11 of the Act was not justified. Even appellant's mother was not alive on the aforesaid date. He argued that appellant herself is a bona fide national citizen of Pakistan by birth and possessed domicile of Karachi. After completing her study in USA when returned to Pakistan in 1987, she being surviving legal heir of deceased applied to KDA for transfer of said plot in her favour and after inviting objections and claims through Press, the plot was transferred on payment of remaining dues amounting to Rs,2,47,950. According to him, it is a settled law that if a property vests in the Federal Government, it only means that the Federal Government is entitled to manage the property. The beneficial interest remains in the person whose property it originally was.
6. On the other hand learned counsel for the respondent controverted the above contentions, supported impugned judgment and contended that the same being well-reasoned does not warrant any interference. He further contended that the questions regarding determination of nationality of Mst.Faiz-un-Nisa, mother of appellant, after 16-12-1971 and declaration that she was a specified person and the property in question was an abandoned property had been thoroughly examined by all forums below such as Administrator, Chairman, BOard of Trustees and the learned.
High Court of Sindh and was rightly held that she was a specified person within the terms of section 2 (a) of the Act and the property in question was also rightly declared as an abandoned property.
This Court in various pronouncements has held from time to time that concurrent findings of facts recorded by the Courts below cannot be interfered with unless the same are perverse, arbitrary and not supported by the record and in support he referred the cases of Bashir Ahmad v.
Muhammad Yousaf, Deceased, Represented by Muhammad Shafique (.1993 SCM R 183) and.
Islamuddin and others v. Ghulam Muhammad and others (PLD 2004 SC 633). He emphasized that by virtue of section 3 of the Act, all abandoned properties vest by Operation of law into the Federal Government of Pakistan on 16-12-1971. Thus subsequent transfer/allotment order obtained by appellant from KDA on 16-11-1987 by way of inheritance does not create right in her favour because the said allotment was obtained by her without notice or permission of Administrator of Abandoned Property. Neither any document was produced by appellant in her claim that her mother was a Pakistani national and continued to live in Pakistan nor she produced any cogent evidence to establish that she had a Pakistani Passport, National Identity-Card, citizenship certificate or domicile certificate. According to him, on the contrary, she had written a letter on 19- 9-1977 to the then Chief Martial Law Administrator that she had given up Pakistani nationality and that her husband was taken away by Pakistan Army as a Bangladesh sympathizer and was murdered by Mukti Bahini as a Pakistani collaborator. Appellant's mother was also declared a specified person on 30th August, 1975 in respect of shares held by her in Premier Tobacco Company, Karachi, against which she did not agitate till her death.
7. There is no dispute to the fact that. Mst. Faiz-un-Nisa mother of appellant had migrated from Calcutta (India) and since 1-2-1951 was residing at Karachi and was domiciled as such. She by profession was an Educationist and served in various Colleges in Karachi as Assistant Professor/Professor in English in the Education Department of the then Government of Sindh till 1-7- 1961 and thereafter, she was placed at the disposal of Government of Pakistan since 2-1-1969 on deputation basis as Assistant Education Adviser," Ministry of Education, Islamabad, where she served till 17-11-1970. Admittedly, she had contracted two marriages. Appellant was born out of first wedlock in November, 1954 at Karachi and her real father Muhammad Hussain was employed in Bankers Equity (Pvt.) Limited and is still residing in Pakistan. After divorce, her mother contracted second marriage with Abdul Ahad who was a renowned personality of Pakistan. In May, 1971, he was murdered by Mukti Bahani on the allegation of being Pakistani Collaborator. It is also borne out from record that at the time of fall of East Pakistan, said Mst. Faiz-un-Nisa was residing in Karachi and it was in the month of February, 1972, she had proceeded to USA for higher study of appellant on a Pakistani Passport. In February, 1976, appellant's mother had also visited Pakistan from USA and enquired about the dues payable in respect of plot in question and it was on her short visit to Dhaka in 1981 on Pakistani Passport, she was murdered there. It is also an admitted fact that appellant after completing her education in USA returned to Pakistan in 1987. As only surviving heir of Mst. Faiz-un-Nisa, she applied to KDA for transfer of plot in her favour, upon which objections, claims etc. Were invited through Press and on non-receipt of any objection, the said plot was transferred in her favour on the payment of an amount of Rs,2,47,950 and the vacant possession whereof was also handed over to her.
8. In the above background, the main question which requires determination is as to whether Mst.
Faiz-un-Nisa was the citizen of Pakistan on cut-off date viz. 16-12-1971 and was having domicile of Karachi before fall of East Pakistan. All the above narrated facts have not been rebutted by respondents in any manner. The contention of respondents that Mst. Faiz-un-Nisa was declared a specified person in 1975 in respect of some shares held by her in Premier Tobacco Company, Karachi would also not support the case of respondents, mainly for the reason, that the plot in question was not declared as abandoned property at that time. For the first time, it was vide Notification dated 14-2-1988 the said plot was declared as 'abandoned property' within the meaning of section 2 (a) of the Act after it was mutated in the name of appellant in 1987 on payment of entire outstanding dues with vacant possession. Even otherwise above mentioned declaration of the plot as abandoned property in the terms of the Act would not in any case affect the interest of appellant in the property as owner as she became its bona fide owner in the year 1987 after payment of entire dues to KDA. Mst. Faiz-un-Nisa was the citizen of Pakistan, domiciled in Karachi, even after the cut-off date i,e, 16-12-1971 as she had never renounced her Pakistani nationality and the onus to prove the same was upon the respondents to which they have failed.
As per record, Mst. Faiz-un-Nisa joined service of Government of Sindh on 1-2-1951 i,e, prior to the date of issue of Notification No,F11/ 16 . 52-Pak (1) dated 13-2-1952 . She was, therefore, exempted from the requirement of production of domicile certificate. Under the law, it is only a person who, at any time before the 16th December, 1971 was a Citizen of Pakistan domiciled in the territories which before the said date constituted the Province of East Pakistan and who, on or after the day ceased to be a citizen of Pakistan that can be declared a ' Specified Person only Examining the case of Mst.
Faiz-un-Nisa on the above touchstone, it is borne out from the record that she was at no timer prior to 16th December, 1971 domiciled in the then East Pakistan and till her death, she never ceased to be a Pakistani national. Section 3(d) of the Citizenship Act, 1951 also stipulates that any person who before 13-4-1951 migrated to Pakistan from the Sub-continent would be a Pakistani as good as one who was born in the territories that came to constitute Pakistan after 14-8-1947. Considering that appellant's mother was in Pakistan on 1-2-1951, she was obviously a citizen of Pakistan within the above provisions of law. The case of appellant's mother Mst. Faiz-un-Nisa will not fall under section 16-A(2) of the Citizenship Act, 1951 but would fall under its section 16-A(1)(iii) whereby it is mentioned that all persons who, at any time before the sixteenth day of December, 1971, were citizens of Pakistan domiciled in the territories which before the said day constituted the Province of East Pakistan and who were residing in Pakistan on that day and are voluntarily residing therein since that day shall continue to be citizen of Pakistan. By sending simply a letter to the then Chief Martial Law Administrator was not sufficient to conclude that she had abandoned Pakistani citizenship. No concrete proof in this respect has been brought on record by the respondents, as such, the findings of all the forums below declaring the property in question as 'abandoned property' are not sustainable in law and are, therefore set aside.
9. Accordingly, the appeal is allowed and the impugned judgment dated 2-12-1998 is set aside leaving the parties to bear their own costs.