1. M. R. KHAN, J.--This appeal, by special leave, at the instance of the Advocate-General of East Pakistan, is directed against the order of a learned Single Judge of the High Court of East Pakistan in Criminal Revision No, 375 of 1969 by which he set aside the conviction and sentences of the respondents under section 14 of the Foreigners Act, 1946 and acquitted them.
2. Admittedly, the respondents were, at the commencement of the Pakistan Citizenship Act, 1951, the citizens of Pakistan. They were permanent residents of village Kumarkhali, P. S. Nazirpur in the district of Bakerganj.
3. The prosecution case was that the respondents applied to the Government of India for permission to migrate to India and to settle down at Calcutta in the State of West Bengal. A Migration Certificate being Exh. 1 was issued to them by the Attache (Migration) to the Deputy High Commission for India in Pakistan at Dacca, permitting the respondents to enter India without any passport and visa through the Indian Check Post at Petrapol in the district of 24-Parganas, West Bengal. On the strength of this Migration Certificate, they crossed the Pakistan Border at Benapole on the 9th November 1964 and entered India. Later, on the 20th March 1967, the re pondents were found in their village home at Kumarkhali under P. S. Nazirpur in the district of Bakerganj without any passport, visa or any other travel document authorising them to enter into and stay in Pakistan. A case was, therefore, started against the respondents at the instance of the Officer-in- Charge of the Nazirpur Police Station. A charge-sheet was eventually submitted against them under section 14 of the Foreigners Act, 1946. They were tried by Mr. P. R. Dutta Chowdhury, a Magistrate of the 1st Class Pirojpur, for an offence under section 14 of the said Act. The respondents pleaded not guilty to the charge and took the defence that due to communal disturbances in certain places in East Pakistan in the year 1964, they temporarily took shelter in India, but came back to their home in East Pakistan within a short time when conditions became normal. In other words, their defence was that they availed of the Migration Certificate in order to have temporary shelter in India, but never abandoned their Pakistan citizenship, nor did they intend to settle permanently in India and to acquire Indian citizenship.
4. The prosecution examined 6 witnesses and exhibited some documents including the Migration Certificate (Exh. 1). Relying on this evidence, the learned Magistrate took the view that "the accused persons lost their Pakistan citizenship immediately on their migration to India and they are very much foreigners now as defined under section 2(a) of the Foreigners Act, 1946". In that view of the matter, the learned Magistrate convicted the respondents under section 14 of the Foreigners Act and sentenced each of them to rigorous imprisonment for 3 months. He further ordered to send them across the border into Indian territory after the expiry of the period of their imprisonment. The respondents appealed to the Sessions Judge, Bakerganj-Patuakhali against their conviction and sentences. The learned Sessions Judge dismissed the appeal upholding that "they having migrated to India on the basis of Migration Certificate with the intention of settling down in India lost Pakistan citizenship when they crossed over to India after surrendering the Migration Certificate and so long they did not acquire Pakistan citizenship over again and which can be granted only by the Government of Pakistan, they cannot come to Pakistan without any valid travel document". The respondents then made a revisional application in the High Court of East Pakistan.
5. A learned Single Judge of the High Court accepted the revision and, as stated earlier, set aside their conviction and sentences and acquitted them of the charge under section 14 of the Foreigners Act. The learned Judge found on evidence that there were communal disturbances in East Pakistan in the year 1964 and that the respondents went to Calcutta on the strength of the Migration Certificate not with the intention of settling there permanently but to take shelter for a temporary period in order to protect their lives and that within a month or two after their entry into India they returned to their original home in East Pakistan under a border slip. On these facts, the learned Judge took the view that the respondents, who were admittedly Pakistan citizens before their entry into India, did not lose Pakistan citizenship by the mere fact of their crossing into India and stay in the Indian territory for a month or two on the strength of the Migration Certificate.
6. Leave was granted in this case to consider if the respondents having gone to India on the strength of a Migration Certificate lost Pakistan citizenship. The respondents were prosecuted as foreigners for crossing into Pakistan from the Indian territory without any valid travel document. Now a 'foreigner", as defined in section 2(a) of the Foreigners Act, means a person who is not a citizen of Pakistan. It was contended on behalf of the appellant that the burden of proof that the respondents are not foreigners, in view of section 9 of the Foreigners Act, lies upon them. It is true that section 9 of the said Act throws the burden of proof on the respondents, but section 9 is inapplicable in the facts of this case. Admittedly, the respondents were the citizens of Pakistan at the commencement of the Pakistan Citizenship Act on the 13th April 1951. They were thus the citizens of Pakistan till the time of their entry into the Indian territory on the 9th November 1964 on the strength of the Migration Certificate. Their Pakistan citizenship being admitted, it is for the prosecution to prove that they lost the Pakistan citizenship after their entry into the Indian territory on the said date. This gives rise to the question whether the respondents, by the mere fact of their entry into India on the basis of a Migration Certificate granted by the Indian Deputy High Commission at Dacca and their stay in India for one or two months, lost their Pakistan citizenship. The appellant placed reliance on section 7 of the Pakistan Citizenship Act to show that the respondents having migrated from the territories included in Pakistan to the territories of India lost their Pakistan citizenship. Sections 14 and 16 of the Pakistan Citizenship Act provide the circumstances in which a citizen of Pakistan loses his Pakistan citizenship, but section 7 of the Act, like sections 14 and 16, does not so provide. What section 7 provides is that a person who has, after the 1st day of March 1947, migrated from the territories included in Pakistan to the territories included in India, shall not be a citizen of Pakistan under the provisions of sections 3, 4 and 6 of the Pakistan Citizenship Act. Sections 3, 4 and 6 of the Pakistan Citizenship Act provide as to who are or shall be citizens of Pakistan, but section 7 makes a negative provision as to who shall not be citizen of Pakistan. At any rate, section 7 itself does not appear to provide the circumstances in which a person, who is already a citizen of Pakistan can lose his Pakistan citizenship. Even otherwise, section 7 is applicable in a case where a person has migrated from Pakistan to India. Whether a person has so migrated is a question of fact which will have to be decided having regard to the facts and circumstances of each case. Now, the expression "migration" envisages two conceptions, namely, going away from the territory of one country to the territory of another and the intention to abandon the domicile of the country of departure and to acquire the domicile of the country of arrival in order to make that country a place of his permanent abode and residence. The meaning of "migration" to the above effect is indicated in section 3(d) of the Pakistan Citizenship Act. This, in its context, has the notion of change of allegiance from the country of departure to the country of arrival. This test, in view of the evidence on record, does not appear to have been satisfied in this case. P. W. 3 Sirajul Huq, the Chairman of the Nazirpur Union Council admitted in cross-examination that the respondents were voters in Pakistan in 1964, that they went to India after the disturbances in 1964, that before their departure they had told him that they would come back to Pakistan after the restoration of peace, that they did not sell any of their properties before their departure for India, that they returned home from India within 1 or 1 months after their departure and that after their return they repaid the agricultural loan which they had earlier taken. This witness further stated that the Border slip permitting the respondents' return to Pakistan was shown to the Officer-in-Charge of the Police Station in his presence. In view of this evidence, it cannot be said that the respondents left Pakistan for good after abandoning their domicile in Pakistan with the intention of permanently settling in India and to acquire Indian citizenship. The Migration Certificate on the strength of which they crossed into the Indian C territory, at the most, contained an admission of the respondents that they had intended to settle in India, but this admission was capable of being explained away. In the exigencies of circumstances created by the disturbances in East Pakistan in 1964, it was perhaps not unnatural on the part of the respondents to cross into India under a Migration Certificate for their personal safety. The normal travel documents, such as, passport and visas were not likely to be available to them in those circumstances and, therefore, they were circumstanced to avail of the Migration Certificate in order to facilitate their entry into India.
7. The mere grant of the Migration Certificate did not confer Indian citizenship on the respondents under the Indian Citizenship Act, 1955, nor was there any evidence to show if the respondents applied for securing Indian citizenship under the applicable provisions of the said Indian Act. On the contrary, the evidence was that they, in accordance with their promise to the Chairman of the Union Council, returned home in East Pakistan within 1 or (1/2) months of their departure. In the facts of this case as stated above, the respondents, who were admittedly the citizens of Pakistan before their departure for India, did not lose their Pakistan citizenship by their entry into India and their temporary stay in that country in the then abnormal situation obtaining in some areas in East Pakistan. The learned Single Judge, therefore, rightly set aside the conviction and sentences of the respondents and acquitted them on the ground that they were not 'foreigners' within the meaning of section 2(a) of the Foreigners Act.
8. We, accordingly, dismiss the appeal.