1. ' G. SAFDAR SHAH, J.-The petitioner herein, whose ancestral place of residence is in the District of Dera Ghazi Khan, was granted a domicile certificate by the District Magistrate, Loralai, Baluchistan, as he has been serving in that Province since the year 1942, and living at Loralai since 1946. The record would show that in order to secure the said domicile certificate for himself, the petitioner filed an application before the District Magistrate alleging therein, inter alia, that he had purchased a house in Loralai with a view to making Loralai the permanent place of his residence. Upon the strength of the said domicile certificate obtained by him, the son of the petitioner secured admission to the Engineering College as against one seat reserved for the permanent residents of Baluchistan. However, one Abaidullah Jan, the son of Malik: Abdul Ghafar, who was admittedly the permanent resident of Loralai, could not secure admission in the Engineering College, filed an application before the District Magistrate, Lora.Lai, with a view to seeking the cancellation of the domicile certificate issued to the petitioner on the grounds-
(1) that the petitioner did not own any house in Loralai ;
(2) that the citizenship certificate previously issued to the petitioner had once been cancelled ; and
(3) that the petitioner had left Loralai and taken up his permanent residence in his ancestral village in the District of Dera Ghazi Khan.
2. Upon receipt of the said application, the District Magistrate made inquiries into the matter, in which quite a few witnesses were also examined, and consequently allowed the application of said Abaidullah Jan with the result that the domicile certificate issued by him to the petitioner was cancelled. Feeling aggrieved of the said order, the petitioner herein went to the High Court in its 'writ jurisdiction but the same was dismissed ride the impugned judgment, dated 8th October.
3. 1979.
4. ' In seeking leave to appeal against the judgment of the High Court, Mr. Yaqub Hussain Zaidi, the learned A. O. R. Contended, inter alia, that the, issue of admission to the Engineering College is no more a live issue in tl'ds case, as the petitioner's son had already been admitted to Medical College, and the seat vacated by him from the Engineering College has been allotted to the said Abaidullah Jan. His grievance, however, is that the petitioner was the citizen of Pakistan, had the right to retain the said domicile certificate issued to him under section 2 of the Pakistan Citizenship Act, 1951, (hereinafter called the. Act) read with rule 23 of Pakistan Citizenship Rules, 1952, framed under section 28 of the Act and so. The District Magistrate had no jurisdiction to cancel the same.
5. "The Citizenship of Pakistan Certificate," the learned counsel contends, "has been mixed up" by the District Magistrate, Loralai, as well as the High Court with "permanent residence", and therefore, this aspect of the case requires an authoritative pronouncement of this Court.
6. ' By going through the judgment of the High Court, there seems to be some force in the contention urged by the learned counsel inasmuch as whereas the requirement of admission to the Engineering/Medical Colleges from the Province of Baluchistan was the "permanent residence" of a candidate therein, the High Court seems to have involved itself in the rather unnecessary discussion of "domicile" which was absolutely unnecessary. Ironically, however, the learned counsel, who himself has drafted this petition, has fallen in the same trap, and in that behalf it would be sufficient, for example, to refer to para. 2 of the petition, which says that "in the present case a Citizenship Certificate was granted to the petitioner on 14th September, 1971 by the District Magistrate of Loralai in Baluchistan, the petitioner having been in permanent service in Baluchistan since 1942 and having been continuously residing in Loralai since 1946. Because of collateral ground mentioned in the sequel, the said Citizenship Act, 1951 was cancelled by the District Magistrate ostensibly not on the said collateral ground that the petitioner was a permanent resident of not the district of Loralai in Baluchistan but was a permanent resident of District Dera Ghazi Khan in the Punjab."
7. ' The factual position, however, is that what the District Magistrate, Loralai, had granted to the petitioner was a domicile certificate (a copy of which appears at page 54 of the petition) and not a certificate of citizenship. In fact the learned counsel seems to have correctly understood the connotation of "domicile" (see ground No, II of the petition) in which he has alleged that "a person who ..... .. .. Is domiciled in the country, is domiciled in the whole of that country, although his home may 'be fixed at a particular spot within it." In this view of the matter, it would be obvious that the domicile certificate granted to the petitioner by the District Magistrate, Loralai, would only show that he was the domicile of Pakistan and not the domicile of Baluchistan or for that matter of the District of Loralai. In fact, the said certificate having been issued under section 17 of the Act, cannot have any other purpose, as the said section provides that the Central 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".
8. ' Now the words "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 certificate therein" would need a bit of clarification. It is a well-settled principle of Private International Law, to which reference is necessary, as "domicile" has not been defined in the Act, that every person carries the domicile of 'the country in which he is born : that so long as he does not intentionally and by the exercise of free volition choose the domicile of another country he carries the domicile of his origin ; and that to prove that he had acquired another domicile of his choice he must show that he had intentionally taken a decision in tha behalf in the sense that he had taken abode therein with the intention of making it his permanent residence. In this aspect, reference may be made to page 151 of the Private International Law (Seventh Edition) by Cheshire in which under the heading "THE ACQUISITION OF A DOMICIL OF CHOICE" this is what the learned Author has commented."
9. ' The two requisites for the acquisition of a fresh domicile are residence and intention. It must be proved that the person in question established his residence in a certain country with the intention of remaining there permanently. Such an intention, however, unequivocal it may be, does not per se suffice. These two elements of factum et animus must concur, but this is not to say that there need be unity of time in their occurrence. The intention may either precede or succeed the establishment of the residence. The emigrant forms his intention before he leaves England for Australia, the emerged who flees from persecution may not form it until years later.
10. ' Since residence and intention must concur they should logically be examined, but it will be found' that in practice it is difficult, if not impossible, to keep them in watertight compartments. It is not residence per se, but residence accompanied by a certain intention, that constitutes domicile and since au fond the requirement of residence is satisfied by mere presence the crucial inquiry in a contested issue centres upon the . Mind of the de cujus. Strictly speaking, residence is a fact, though a necessary one, from which intention may be inferred.
11. ' This much is clear, however, that a person's residence in a country is prima facie evidence that he is domiciled there. There is presumption in favour of domicile which grows in strength with the length of the residence. Indeed, residence may be so long and so continuous that, despite declarations of a contrary intention, it will raise a presumption that is rebuttable only by actual removal to a new place. A man cannot gainsay the natural consequences of permanent residence in a country by, for example, declaring in his will that he does not intend to relinquish his formal domicile in another country.
12. ' On the other hand, time is not the sole criterion of domicile Long residence does not constitute nor does brief residence negative domicil. Everything depends upon the attendant circumstances, for they alone disclose the nature of the person's presence in a country. In short, the residence must answer "a qualitative as well as a quantitative test". Thus in Topp v. Wood, what it was held that a residence of twenty-five years in India did not suffice to give a certain John Smith an Indian domicil because of his alleged intention ultimately to return to Scotland, the land of his birth.
13. ' Seen in this context, therefore, the object of the words reproduced in the parenthesis hereinbefore should now be clear. If the legislature had intended that the ordinary residence of a person in Pakistan for a period of not less than one year, immediately before making an application for the grant of domicile certificate, was sufficient, evidently it would have been unnecessary for it to insist on the further requirement to the effect that he "has acquired a domicile therein". In other words the residence of a person for the said length of time in Pakistan was evidently considered to be insufficient unless he could show that he had acquired the said residence with the intention to permanently settle down in the country.
14. ' Now the admitted position is that the petitioner is a citizen of Pakistan by birth, having his ancestral place of residence in the District of Dera Ghazi Khan. His case is, therefore, covered by section 3 of the Act, which runs as under "3. Citizen at the date of commencement of this Act. -At the commencement of this Act every person shall be deemed to be a citizen of Pakistan-
(a) who or any of whose parents or grand parents were 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."
15. ' As a citizen of Pakistan, therefore, the Constitution of the Islamic Republic of Pakistan, 1973 has guaranteed to the petitioner fundamental rights, including the right to reside and settle in any part of Pakistan ; subject to any qualifications, to enter upon any legal profession or occupation ; to seek admission to any educational institution receiving aid from public revenues, regardless of his race, religion, caste and place of birth subject to the condition that any public authority may, for the advancement of any socially or educationally backward class of citizens, make any provision to protect the interest of the latter ; and to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest. We are, therefore, at a loss to understand as to why the petitioner had to make an application to the District Magistrate, Loralai, for the grant of a domicile certificate when he was born in the District of Dera Ghazi Khan and consequently he must be deemed to be a domicile of Pakistan by birth. It is not his case that after his birth, or for that matte at any point of time, he had lost the said domicile of his origin and so has no choice but to make an application to the District Magistrate again to acquire the domicile of Pakistan.
16. ' Having said this, however, we may as well make it clear that a citizen of Pakistan, in view of the exigencies and the complexities of 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 the Province, which is wholly incorrect. In this behalf we have already referred to section 17 of the Act, but in order to clarify the legal position once and for all reference to sections 6, 8, 16, 18 and 21 of the Act would be necessary which in relevant parts run as under :- "6. Citizenship by migration. -(1) 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 before the commencement of this Act 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 :
8. Rights of citizenship of certain persons residing abroad. -The Central Government may, upon application made to it in this behalf register as a citizen of Pakistan any person who, or whose father or whose father's father, was born in the Indo-Pakistan sub-continent and who is ordinarily resident in a country outside Pakistan at the commencement of this Act, if he has, unless exempted by the Central Government in this behalf, obtained a certificate of domicile
16. Deprivation of citizenship.-(1) A citizen of Pakistan shall cease to be a citizen of Pakistan if he is deprived of that citizenship by an order under the next following subsections.
(2) Subject to the provisions of this section the Central Government may by order deprive any such citizen of his citizenship if it is satisfied that he obtained his certificate of domicile or certificate of naturalisation by means of fraud, false representation or the concealment of any material fact, or if his certificate of naturalisation is revoked.
18. Delegation of powers.-The Central Government may, by order notified in the Official Gazette, direct that any power conferred upon it or duty imposed on it by this Act shall, in such circumstances, and under such conditions, if any, as may be specified in the direction, be exercised or discharged by such authority or officer as may be specified.
21. Penalties.-Any person who in order to obtain or prevent the doing of anything under the Act makes any statement or furnishes any information which is false in any material particular and which he knows or has reasonable cause to believe to be false, or does not believe to be true, shall be deemed to have committed an offence punishable under section 177 of the Pakistan Penal Code."
17. ' It would thus be seen that in accordance with the requirement of section 6, a person in order to be registered as a citizen of Pakistan, is required to prove that he had migrated to Pakistan before the commencement of the Act with the intention of permanently residing within its territories, as also that he had obtained a certificate of domicile. In the, nature of things, it should, therefore, be evident that having lived within the territories of Pakistan, with the intention of permanently residing there- c in, would be a fact which must precede the making of an application for the grant of a domicile certificate, and consequently there is no room for doubt that "permanent residence" and "domicile" are two different concepts.
18. ' Now in section 8 of the Act, which deals with the case of a person who, or whose father or whose father's father, was born in the Indoor Pakistan sub-continent and who is ordinarily resident in a country outside Pakistan at the commencement of the Act, the requirement of possessing a certificate of domicile has been reiterated, unless the said person has been exempted by the Central Government in that behalf. It is true that accordance with this section, the person concerned is not required to show that before he was granted the domicile certificate he had resided in the territories of Pakistan, with the intention of permanently residing therein. But then the legislature itself has so expressed its intention in that behalf. Not only this but the legislature has further empowered the Central Government to exempt the person concerned from obtaining even a certificate of domicile, therefore, the category of persons covered by the said section would seem to form a special category to whom the said concession has been granted.
19. ' In so far as section 16 is concerned, it is of general application providing as to how a citizen of Pakistan shall cease to be or can be deprived of his citizenship. The unambiguous language of subsection (2) of that section would essentially make it appear that generally the grant of a domicile certificate to a person is preceded by the filing of an application by him in that behalf in which he must disclose (if that be the case) that he had lived in the territories of Pakistan with the intention of permanently residing therein. However, if it is subsequently found that he had obtained the domicile certificate by means of fraud, false representation or the concealment of any material fact, then he shall cease to be a citizen of Pakistan. Now so far as section 18 is concerned, it is only relevant to this extent that it empowers the Central Government by an order notified in the Official Gazette to delegate its powers under the Act to such authority or officer as may be specified therein. But when notice is taken of section 21, it reiterates the sanctity attached to the grant of a domicile certificate inasmuch as if a person is found to have furnished amongst others any information which is false in any material particular and which he knows or has reasonable cause to believe to be false, or does not believe to be true, is said to have committed the offence punishable under section 177 of the Pakistan Penal Code.
20. Now from the analysis of all these sections, as well as section 17 of the Act what would follow is (1) that "domicile" and "permanent residence" are two distinct and separate concepts, although before a person is granted a domicile certificate generally he must show that he, had lived in Pakistan with the intention of permanently residing therein ; (2) that when a person is granted a domicile certificate he would be deemed to be a domicile of Pakistan and not of a Province or a part of a Province ; (3) the fact that a person before making an application for the grant of a domicile certificate had lived in Pakistan would be entitled to persuade the authorities that he had done so with the intention of permanently residing therein and he was entitled to the grant of a domicile certificate ; and (4) that a citizen of Pakistan by birth is also essentially a domicile of Pakistan unless, of course, he has lost the said domicile by acquiring another domicile of his choice.
21. ' However, the main reason which seems to have invariably led the authorities erroneously to describe the grantee of a domicile certificate to be the domicile of a particular part of Pakistan would be found in Form P-1 (Appendix XIV), which appears at page 563 of Volume I of "Statutory Rules and Orders made under Central Enactments", and which reads as under :-- "(Under section 23. -Pakistan Citizenship Rules). {{FORM}} APPENDIX XIV FORM `P-1'
22. ' The Pakistan Citizenship Act, 1951 (II of 1951) and Rules made thereunder (Vide rule 33).
23. Certificate of Domicile Whereas AB ................................................... Son of............................................
24. (in block letters) (in block letters) has applied for a certificate of domicile under the Pakistan Citizenship Act, 1951 (II of 1951), alleging with respect to himself/herself, the particulars set out below, and has satisfied the undersigned that the conditions laid down in section 17 of the Act for the grant of a certificate of domicile are fulfilled in the said AB's.Case. Now, therefore, in pursuance of the powers conferred by the said Act and the Rules made thereunder the undersigned hereby grants to the said AB...................... Certificate of domicile. In witness whereof I have hereto subscribed my name this day of........................
25. 19..........................
26. Signed........
27. Name....................................
28. Designation.....................................
29. Particulars relating to the Applicant Full name....................................................................................................................................
30. Father's name............................................................................................................................
31. Address in Pakistan....................................................
32. Address in the country outside Pakistan...............................................................
33. Place............................ Tehsil ............... Distt..................
34. Place of domicile Prov./Admn .....................................................................
35. Date of arrival in the place of domicile..................
36. Married/Single/Widow/Widower ...........................................................................................
37. Name of wife or husband........................................................................................................
38. Names of children and their ages.........................................
39. Trade or occupation.................................
40. Marks of Identification........................................
41. PHOTOGRAPH Signed Name............
42. Designation ...............
43. Place ...........................
44. Date ............................ {{FORM}} ' Now evidently this is the Form on which a person, after filling in the columns under the heading "Particulars relating to the Applicant' applies for the grant of a domicile certificate.
45. ' However, the inept language used in columns 5 and 6 of the Form, namely, the column "Place of domicile. . . .......... ......Tehsil............ .. .District.. .... ... . ..........." and the column "Date of arrival in the place of domicile-- ...... . . ......'', has indeed contributed to the confusion. It should be noted that in the opening part of the Form, which embodies the language in which a domicile certificate is finally granted, it is said that "whereas AB ...................Has satisfied the undersigned that the conditions laid down in section 17 of the Act for the grant of a certificate of domicile are fulfilled in the said AB's .Case" meaning there by that they basis for the grant is section 17, and not the particulats furnished by the applicant in the second half of the said Form. It is true th the Form is an officially printed Form, as it appears in Volume I of "Statutory Rules and Orders made by the Central Government", yet the expressions used in columns 5 and 6 of it to the effect "Place of domicile........Tehsil...,...... . . . .. . ......
46. District................ . . .." and "Date of arrival in the place of domicile and misleading although the draftsman of the Form has evidently picked the same from section 17 of the Act, not realising that when torn out of the context of the section the said expressions would convey an altogether different meaning. The anguage of section 17 which has already been noted, is "that the Central government may.........- ... . ... --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.... ...........And has acquired a domicile therein". Now when the words "has acquired the domicile therein", are seen in conjunctions with the words "has ordinarily resided in Pakistan for a period of not less than one year" it should be obvious that what the legislature intended to convey thereby was that the applicant having ordinarily resided in Pakistan for no less than a year had now expressed his intention to make Pakistan his permanent place of residence. This indeed can be the only construction which the words "has acquired a domicile therein" can bear, for if the words are construed literally, they would mean that the applicant had already secured domicile in the country in which event what would be the need for him to make an application for the grant of a domicile certificate. It is our considered view, therefore, that the said two columns, as they exist in Form P-I, and the language of which has no doubt, been picked up from section 17 of the Act, require suitable amendment so that instead of the existing words therein, namely, "Place of domicile..... . .. ........... ...... . . Tehsil District " and "Date of arrival in the place of domicile.... . . ... ........." are substituted by the words "Place of permanent residence" and "Date of arrival in the place of permanent residence.The main reason for which we have suggested this amendment is to clarify the existing confusion. But even otherwise, the language used in the said two columns will have to be construed to mean the "permanent residence" of the appli cant and not his "domicile", as in the context of the Scheme of the Act (specially of section 17 thereof), the expression "domicile" is not only unwarranted but wholly misleading.
47. ' Now by construing the application of the petitioner, which he had fitted before the District Magistrate, Loralai, for the grant of a domicile certificate he must be held to have actually claimed to be the permanent resident of Loralai, as he claimed that he owned a house therein:- However, on the subsequent inquiries held in the matter, the said claim of the petitioner was found to be false and consequently the domicile certificate granted to him was cancelled by the District Magistrate. The admitted position, however, is that on the strength of the said domicile certificate the son of the petitioner had, against a seat reserved for the permanent residents of Loralai, secured admission in the. Engineering College. It is true that this question is no more a live issue in this case, as according to the learned counsel, the son of the petitioner has withdrawn from the Engineering College and has been admitted in the Medical College, but the fact remains that the object for which the petitioner had sought the gran of the domicile certificate was to facilitate the admission of his son to the said institution. In this view of the matter, we have not been able to agree with the contention of the learned counsel that the District Magistrate had no jurisdiction to cancel the so-called domicile certificate issued by -him to the petitioner.
48. ' 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 Dist! Ict of Dera Ghazi Khan. As to the certificate of "permanent residence" in the District of Loralai, however, the position is entirely different inasmuch as in the institutions of higher learning of the country certain seats have been reserved for the permanent residents of Baluchistan and so it would be the burden of the petitioner to prove that he was also the 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.
49. ' We are, therefore, satisfied that the judgment of the High Court, which proceeds on different reasoning though, is unexceptionable, therefore, this petition fails and is dismissed.