1. 'SARDAR MUHAMMAD NAWAZ KHAN, C.J.--- The petitioners and respondents Nos.3 and 5 are contestants for their nomination for admission in professional colleges against the seats reserved for the quota of Muzaffarabad District. Respondents 3 and 5 have been nominated by the Azad Jammu and Kashmir. Nomina.Tion Board for admission in professional colleges of Pakistan against the seats reserved for the quota of District in view of their merit position, whereas the petitioners, who admittedly belong to District Muzaffarabad and are holders of domicile of the said district, challenge the nomination of 'respondents 3 and 5 on the ground that they are not domicile and permanent resident of Muzaffarabad District.
2. ' The case of the petitioners is that they, being domicile of Muzaffarabad District, passed F.Sc.
3. Examination and their names appeared at Serial No,21,22,25 and 27 in the list of Muzaffarabad District candidates for M.B.,B.S admission for the year, 2008-2009. In the above list, prepared by the nomination Board, respondents 3 and 5 are shown at serial Nos.1 and 2 and they have been nominated for M.B.,B.S. Course against the seats reserved for the quota of District Muzaffarabad whereas both the respondents are neither domiciled nor permanent residents of District Muzaffarabad. The said respondents, with the connivance of official respondents Nos.1 and 2, illegally manoeuvred and succeeded in obtaining the state subject, domicile and permanent resident certificates of District Muzaffarabad by playing fraud and mal practices. Respondent No,3 (Mariam Shaheen) is member of a refugee family who migrated in the year, 1947 from Dagor, Tehsil Sunmba District Jammu and her grand father Ghulam Muhammad son of Jamal Din is permanently settled in Village Agwal, Tehsil Narowal, Pakistan, therefore, she falls in the definition of. Refugees settled in Pakistan and can only claim admission against the quota reserved for refugees settled in Pakistan. She and her father Muhammad Ali Shaheen, by misstatement of facts and playing fraud have illegally obtained state subject, domicile and permanent resident certificates from District Muzaffarabad. Respondent No,2 submitted total untrue report on the basis of which respondent No,1 issued the certificates in favour of Mariam Shaheen. Respondent No,5, Waqas Ahmed Baig, is member of a family who migrated from Bhal Kot, Tehsil Uri, Occupied Kashmir, and his grand father is permanently settled in Serjiwar, Tehsil Havali, District Bagh whose father Mukhtar Ahmed Baig is serving in N.B.P., who is also resident of Serjiwar, Tehsil Havali, District Bagh. He has obtained state subject, domicile and permanent resident certificates from District Muzaffarabad through deceitful means. The grand father of respondent No,5, Ismaeel Baig by name, migrated from occupied Kashmir and settled in Serjiwar Tehsil Havali District Bagh.
4. Respondents Nos.3 and 5, therefore, are not permanent residents and domicile of District Muzaffarabad, however, they have succeeded to get admission in M.B.,B.S. Course, by practicing fraud and misstatement of facts. Their nomination, therefore, is against law and facts which needs reversal by accepting this writ petition. The official respondents failed to discharge their duties according to law on the subject while issuing the state subject, domicile and permanent resident certificates in favour of the said respondents. Thus, they may be directed, through a writ of mandamus, to withdraw .The nomination of the said respondents from the course of M.B.,B.S. And after having done so, they may be directed to nominate the candidates from District Muzaffarabad, in view of the merit position against the seats reserved for District Muzaffarabad.
5. ' Conversely, the case of respondent No,3 is that her father is a state subject born in Pakistan in the year, 1961. Her grandfather, Ghulam Muhammad is a refugee from Jammu occupied Kashmir. Her father married with a woman (mother of respondent No,3) and settled in Muzaffarabad since long.
6. Respondent, her brothers and sisters were born in Muzaffarabad and had been studying in Muzaffarabad. They never shifted to any other place. Their father is running his. Own business in Plate since 1985 and is a voter in plate ward. Their elders on maternal side are buried at Muzaffarabad after their death. She has no intention to leave Muzaffarabad Azad Kashmir and similarly her father is also settled in Muzaffarabad for the last 20 years and has no intention to leave this place in the times to come. The certificates were issued in her favour after a detailed inquiry. The official respondents, before issuing of certificates, satisfied themselves through the evidence produced by her in this connection. She seeks dismissal of the writ petition, as no illegality has been committed by issuing the certificates in her favour and her nomination against the reserved seat for District Muzaffarabad.
7. ' The case of respondent No,5 is that petitioners herein have not come with clean hands, therefore, they are not entitle to equitable relief by this Court. They challenged the certificates, in favour of respondents, before District Magistrate, however, they failed in their petition which stood dismissed for want of proof. This fact of dismissal has been suppressed by the petitioners, therefore, their writ petition deserves to be dismissed. The writ petition is not maintainable in view of government notification dated 24-8-1972. The father of respondent Mukhtar Ahmed Baig S/o Ismail Baig completed his educational career from the institutions situated in Muzaffarabad city because his father, after migration, permanently settled in Muzaffarabad. The father of the respondent and his two uncle also obtained state subject certificates from District Magistrate Muzaffarabad, therefore, it was wrong to say that respondent No,5 was not state subject, domicile and permanent resident of District Muzaffarabad. The respondent completed his education up to intermediate from the educational institutions in Muzaffarabad and his grandfather has also been buried in the same district; thus, according to him, the entire evidence, as stated above, when placed before the official respondents they stood convinced and issued certificates showing him state subject, domicile and permanent resident of Muzaffarabad Azad Kashmir. He has rightly been nominated for M.B.,B.S. Course against the seat reserved for District Muzaffarabad and there is no justification to withdraw him from the college he is studying in.
8. ' The learned counsel for the petitioners by referring to the documentary evidence appended with the petition contended that it was satisfactorily proved that both the answering respondents were not domicile and permanent residents of Muzaffarabad district. Their families migrated from occupied Jammu & Kashmir and settled in Pakistan and District Bagh respectively in the capacity of refugees of the state. The official respondents fell in collusion with them and issued certificates of domicile and permanent residence in their favour, thus, deprived the petitioners cif their legitimate right of education. He, during his arguments, relied upon 1999 MLD 261, PLD 1997 SC (AJ&K) 1 and PLD 1985 SC (AJ&K)1 and submitted that in view of settled law, the certificates issued in favour of answering respondents may be cancelled and as a consequence their nomination may be withdrawn with the direction to nomination board to nominate the candidates (out of petitioners) in view of their merit position against the seats reserved for District Muzaffarabad.
9. ' On the other hand, the learned counsel for the respondents contended that the answering respondents were rightly nominated against the seats reserved for District Muzaffarabad and the certificates in their favour have also been rightly issued. The respondents, according to the learned counsel, are admittedly State subjects and in view of the evidence brought on record, they have rightly been declared as domicile and permanent residents of Muzaffarabad District. The certificates in their favour were challenged before the competent authority who declined to allow the application by the petitioners and they had alternate remedy before AJK Council or the Government of AJ&K; but they failed to avail alternative remedy under law, therefore, the writ petition was not maintainable in view of section 44 of the AJ&K Interim Constitution Act, 1974.
10. ' After hearing the learned Advocates for the parties, it may be observed that both the answering respondents are admittedly stated subjects in view of the pleadings of the parties. The petitioners are found to have pleaded that families of the answering respondents migrated from occupied part of the State of J&K, therefore, they are admittedly state subjects. The only controversy is about the domicile and permanent resident certificates which needs resolution by this Court. It is also not disputed by the respondents that they initially settled in other units, however, they and their parents settled in Muzaffarabad long before the issuance of certificates. They completed their education in Muzaffarabad and have no intention to leave, this place.
11. ' While dealing with the case of respondent No,3, Mariam Shaheen, it is proposed to put the pleadings and the evidence 'thereon together in order to arrive at a definite conclusion. The evidence produced by the petitioners, on the basis of which they seek cancellation of domicile and permanent resident certificate issued in favour of the said respondent, consists of revenue record showing Ghulam Muhammad as, owner of landed property in Agwal District Narowal Pakistan, the landed property of Kalsoom Begum, (paternal aunt of respondent) in the same village, the landed property of Naseem Tariq son of Ghulam Muhammad (paternal uncle of the respondent), the revenue report by the officials of the revenue department of District Narowal showing sanction of mutation after the death of Ghulam Muhammad son of Jamal Din (Grandfather of respondent) and devolution of his legacy on his legal heirs including Muhammad Ali Shaheen, Father of respondent, in village Agwal District Narowal Pakistan. Muhammad Ali Shaheen, according to this report, is real son of Ghulam Muhammad deceased. The other evidence includes certificate of domicile issued under Pakistan Citizenship Act in favour of Muhammad Javed Khalid son of Ghulam Muhammad. The said person is real paternal uncle of the respondent. According to this certificate, the said person is resident of village Zaffarwal, District Narowal. Another piece of evidence is a transfer order Exb.PB/5, which shows Muhammad Javed Khalid son of Ghulam Muhammad deceased resident of District Narowal and his appointment in AJ&K service on the same domicile. Likewise a certificate, Annexure "PB/6", showing selection of Muhammad Asif Kamal son of Ghulam Muhammad as lecturer on the basis of domicile of District Narowal Pakistan is on the file. Muhammad Asif Kamal is real son of Ghulam Muhammad and real paternal uncle of the respondent. This evidence, produced and relied upon by the petitioners, goes unrebutted on the side of answering respondent. Not only this, the written statement filed on her behalf would show that she does not dispute the fact of migration from Indian held Kashmir and settling in District Narowal Pakistan. Her evidence relates to the fact of running business by her father at Muzaffarabad, different photographs showing burial of her relatives on maternal side at Muzaffarabad. After examination of her evidence and pleadings it would become clear that she rests her claim on the fact that her parents are living in. Muzaffarabad for couple of years. She completed her education up to intermediate level at Muzaffarabad. Moreover, her mother belongs to Muzaffarabad District and on the basis of this fact she claims to be domicile and permanent resident of Muzaffarabad District. From the perusal of her pleadings and the evidence thereon, it becomes clear that initial migration from Indian held Kashmir to District Narowal Pakistan is not disputed.
12. ' While dealing with the case of answering respondent Waqas Ahmed Baig, it may be observed that he also does not dispute the fact that he is a member of a family who initially migrated from Indian held Kashmir and settled in Serjiwar Tehsil Havali District Bagh. The evidence relied upon and appended with this petition to the extent of said respondent consists of revenue record showing Mukhtar Ahmed, father of respondent, as owner of landed property in village Serjiwar, Tehsil Havali, District Bagh. Similarly brothers of Mukhtar Ahmed are shown as owners in village Serjiwar Havali.
13. They are also shown as refugee from village Bhalkot, Tehsil Ur, Indian held Kashmir. Muhammad Mukhtar Baig and his brothers are also reported to be in possession of their landed property in village Serjiwar, according to this report. Muhammad Ismaeel Baig, father of Mukhtar Baig and others is reported to be dead during earthquake and has been buried at Muzaffarabad. Mr. Mukhtar Baig and his brothers also inherit landed property as legal heirs of their mother Mst. Zanub Begum. Mst. Zanub Begum is also reported to be buried in village Serjiwar, Tehsil Havali, District Bagh, as report reveals. They are shown in possession of the said land inherited through their mother. They own an orchard over the said land in the village Serjiwar which has been leased out to the locals of the area. According to this report, Mukhtar Ahmed Baig and his brothers visit their landed property off and on. This evidence goes un-rebutted by the answering respondent. He simply based his claim on the fact of service of his father in Muzaffarabad and his education up to intermediate level and claims himself to be the domicile and permanent resident of District Muzaffarabad.
14. ' After having discussed the respective claims and evidence thereon, it becomes evident that initial migration of the family of the answering respondents from Indian held Kashmir to Agwal District Narowal Pakistan and village Serjiwar Tehsil Havali District Bagh respectively is not a disputed fact.
15. Thus, it can safely be said that both the answering respondents are the state subjects. As stated earlier, the only controversy is about their domicile and permanent resident certificates, therefore, the question arises as to whether the answering respondents who initially settled in other units and, later on, in connection with their service, education and business, shifted to Muzaffarabad can be accepted as domicile and permanent residents of District Muzaffarabad. Before answering this question, it would be useful to reproduce a government notification dated 24-8-1972 in connection with the share or representation in service of Azad Jammu & Kashmir on District wise quota. This notification is found to have been relied upon by answering respondent Waqas Ahmed Baig and it is Annexure "RB" which reads as under:--- {{URDU TEXT}} ' This notification would show that any person who migrated from occupied Kashmir to Azad Kashmir would be deemed to be the domicile and resident of the district or the unit in which he initially settled after migration. Similarly those who migrated from Indian held Kashmir and settled in any part of Pakistan would be deemed and accepted as refugees settled in Pakistan, though they may shift to Azad Kashmir for service or business but their fact of shifting to Azad Kashmir in aforesaid connection would not allow them to claim themselves as domicile or permanent resident of the place where they shifted for business or service.
16. ' The case of answering respondents, when tested on the touchstone of the criteria laid down through the above sated government notification, would suggest to say that though the said notification deals with representation in service and there is no mention about nomination in professional colleges, yet it has settled the principle of quota and it can be applied equally in case of nomination for admission in professional colleges in Pakistan and nominations are being made on the same principle since long. The evidence discussed in earlier part of this judgment satisfactorily proved that the families of both the answering respondents initially settled in other units and their parents still own property in the respective units. They and their parents are living in Muzaffarabad in connection with service and business etc. Moreover the intention of a person while resolving the controversy with regard to his permanent residence and domicile plays an important role. There is nothing on record on the side of answering respondents that their parents abandoned or surrendered their initial residence or domicile and permanently shifted to Muzaffarabad. They could do so before the District Magistrate while seeking domicile and permanent resident certificates, through their statement before him, but unfortunately they even concealed the fact of their settlement in other units and their landed property owned and possessed by them and their paternal uncles etc. The official respondents were also legally obliged to satisfy themselves by directing the answering respondents to produce confidence inspiring evidence showing them to have abandoned their initial residence and domicile. They neither inquired about it nor sought any evidence and simply relied upon the fact of residence, education and service etc. At Muzaffarabad.
17. ' The learned counsel for answering respondent No,3 raised another argument that the mother of respondent No,3 belonged to Muzaffarabad, therefore, this fact also entitled her to be the permanent resident and domicile of District Muzaffarabad. The question arises as to whether she can be accepted as domicile and permanent resident of District Muzaffarabad on the basis of her mother belonging to Muzaffarabad. This proposition came before the Apex Court of the state of Azad Jammu & Kashmir in President's reference No,1 of 1996 PLD 1997 SC (AJ&K) 1, while dealing with the case of state subjects. In the said legal report it has been laid down that recognized principle is that nationality of father is decisive. Though the question of domicile and permanent resident certificate was not directly involved in the said report by the Apex Court yet the principle laid down by the Supreme Court of Azad Jammu & Kashmir can be applied equally in case of domicile and permanent resident certificates. The domicile of father will prevail while deciding the domicile of a child and not that of mother. The case of the respondents when seen on the strength of the principle settled by the Supreme Court of AJ&K, leads to the conclusion that when father of the respondents is permanent resident and domicile of Agwal District Narowal and her mother belongs to District Muzaffarabad, the permanent residence and domicile of father will prevail, thus, respondent shall be deemed to be the permanent resident and domicile of Agwal, Narowal Pakistan. She therefore, is included in the category of refugees settled in Pakistan. She could claim her nomination for her M.B.B.S. Course against the seats reserved for refugees settled in Pakistan. It is settled by now that the quota system is to be observed strictly in case of services and nominations to different, professional colleges in Pakistan.
18. ' The learned counsel for respondent No,5 raised objection regarding maintainability of the writ petition on the ground that petitioners initially challenged domicile and permanent resident certificate in favour of answering respondents before the District Magistrate and their application was dismissed for want of proof. They could file appeal before the government or seek cancellation of the said certificates from, AJ&K council, failing which they could not invoke the extraordinary jurisdiction of this Court, as an alternate and efficacious remedy was available to them under the relevant law. This objections has been examined in view of the case law like 1999 MLD 261 in which it has been held that remedy by way of appeal under Sate Subject Act is not adequate and similarly remedy before District Magistrate as well as council is also neither adequate nor efficacious. It has been held by the Honourable Supreme Court in the aforesaid judgment that writ in such like position is maintainable and the High Court is fully competent to resolve the controversy in view of the evidence produced by the respective parties.
19. ' The conclusion, therefore, is that respondents Nos.3 and 5 are declared as domicile and permanent residents of District Narowal Pakistan and District Bagh Azad Kashmir respectively. The domicile and permanent resident certificates issued in their favour are hereby cancelled. The nomination board of AJ&K is directed to withdraw their nominations from the colleges concerned and shall nominate the candidates out of petitioners herein in view of their merit position in place of respondents Nos.3 and 5.