' MUHAMMAD JAFER NAIM, J.-The petitioner had migrated to Pakistan in the year 1947 and was educated at Lahore. He remained in Lahore till 1966. In the years 1966 he was appointed as Statistical Assistant in the Directorate of Local Government at Khuzdar till 1972 whereafter he was transferred to Quetta. His wife was employed in Divisional Public School at Khuzdar. His wife still continues in her employment at Khuzdar and his children are still taking their education there. His daughter the petitioner No, 2 had studied at Khuzdar till 1978. She passed her Marticulation and Intermediate Examination from Quetta.
2. The petitioner's daughter Lubna Haflz (Petitioner No, 2) was a candidate for a seat in the Bolan Medical College from Khuzdar District and she had been placed on the top of the merit list. On 10th May, 1982 the respondent No, I Deputy Commissioner Khuzdar issued a notice to the petitioner No, 1 to the effect that the petitioner No, 1 had left his place of domicile and asked the petitioner to show cause why the domicile certificate issued to him be not cancelled. The petitioner submitted reply to the notice of the Deputy Commissioner. On 8th August, 1982 when Lubna Hafiz appeared before the Selection Committee the respondent No, 2, she was informed that the Domicile Certificate of petitioner No, 1 had been cancelled of which official intimation was received by petitioner on 11-8- 1982.
3. The petitioner has challenged the order of the Deputy Commissioner dated 5-8-1982 on the ground that the petitioner had a fixed abode at Khuzdar and his family continued to live at Khuzdar even after the petitioner was transferred to Quetta. He was getting compensatory allowance from Khuzdar while in service there and that there was nothing to suggest that the petitioner had abandoned his place of permanent residence. On the other hand, he had purchased a plot at Khuzdar for construction of a house. The Deputy Commissioner had no authority in Jaw to cancel the Domicile Certificate. He further maintains that facts stated in the petition and brought to the notice of the Deputy Commissioner left no doubt that petitioner No, 1 had every intention of permanently residing at Khuzdar. He claims for a declaration that the order of the Deputy Commissioner dated 5-8-1982 is void and denial of a seat to the petitioner No, 2 was improper.
4. The petition has been contested by the Government and respondent No, 1 Deputy Commissioner, Khuzdar has submitted comments as required by the Court. It is maintained in the comments that sufficient opportunity was given to the petitioner No, 1 after show-cause notice for cancellation was issued. In the comments it is said that the entries in the service book of the petitioner No, I show that he is a resident of Lahore and in the application filed for domicile certificate the petitioner himself showed his former residence as Chak Khokaran Sialkot. The Advocate-General has contended that the Deputy Commissioner was competent to cancel the same.
5. The counsel of the petitioner urged that the Deputy Commissioner had no powers to cancel his domicile certificate issued under section 17 of the Citizenship Act of 1951 except under rule 26 of the Citizenship Rules, 1952. The learned counsel also contended that the petitioner No, I had purchased a plot of land for building a house at Hhuzdar and his family was still resident there and these facts have been ignored by the Deputy Commissioner while cancelling the Domicile Certificate of the petitioner. The respondent No, 1 has filed the application which the petitioner made for issuance of domicile certificate and a copy of the third page of the Service Book of the petitioner. These two documents have not been disputed by the petitioner.
' In the application for Citizenship Certificate he showed his place of residence as Chak Kohkharan Sialkot and that he was residing there since birth. The application does not show any where that he had migrated to Pakistan after partition from Amratsar. In the service book he had shown his place of residence as 8 Dilshad Street Post Office Rehman Pura, Lahore. Father's residence is shown as Muzafar Abad Azad Kashmir. There is no mention in his application that he or his father migrated from Amratser. The contention of the counsel of the petitioner is that the petitioner having been migrated from India could make an application for domicile certificate under section 3 (d) of the Citizenship Act 1951, having acquired, citizenship by migration.
6. The Pakistan Citizenship Act 1951, came into force on 13-4-1951. The Act provides that all those persons who were covered by any of the clauses of section 3 would be deemed to be citizens of Pakistan at the commencement of the Act. Section 3 of the Act is as under :- "3. Citizenship at the date of commencement of this Act.-At the commcement of this Act every person shall be deemed to be a citizen of Pakistan ;
(a) who or any of whose parents or grand parents 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 ; or
(b) who or any of whose parents or grand parents was born in the territories included in India on the thirty first day of March, 1937, and who, except in the case of a person who was in the service of Pakistan or any Government or Administration in Pakistan at the commencement of this Act, has or had his domicile within the meaning of Part-I1 of the Succussion Act, 1925, as in force at the commencement of this Act, in Pakistan or in the territories now included in Pakistan ; or
(c) who is a person naturalised as a British subject in Pakistan ; and who, if before the date of the commencement of this Act he has acquired the citizenship of any foreign State, has before that date renounced the same by depositing a declaration in writing to that effect with an authority appointed or empowered to receive it ; or
(d) who before the commencement of this Act migrated to the territories now included in Pakistan from any territory in the Indo-Pakistan from any territory in the territories with the intention of residing permanently in those territories."
' Accordingly, persons who or whose parents were born in Pakistan persons who had domicile in Pakistan although born in the territories now included in India ; persons who had been naturalised as British subject in Pakistan and those who had migrated to Pakistan from India were recognized as citizens of Pakistan. These four classes are those whose status as citizen was recognized at the commencement of the Act i. e. 13-4-1951.
7. The second category of citizens relates to the persons given citizenship status after the commencement of the Act and they are recognized as citizens -under section 4 of the Act. Section 5 of the Act deals with the cases of citizens by descent. Section 6 deals with the case of those who had migrated to Pakistnn after the commenctment of the Act but before 1-1-1952. Section 17 of the Act gives authority to the Federal Government to grant a certificate of domicile to any person who has resided in Pakistan for a period of one year.
8. The power to grant domicile certificate under section 17 of the Act rests with the Federal Government. Section 17 reads as under :- "17. Certificate of Domicile.-The Federal 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.
' Where an applicant for grant of domicile certificate fulfils the requirements and preconditions, held, that the District Magistarte would be left with no discretion but to issue the certificate. Such an applicant could demand the demicile certificate as a matter of right."
A person who is a citizen of Pakistan by birth or migration before the commencement Act is entitled to certificate of Citizenship as of right if he makes an application on the prescribed form. It is in the discertion of the Federal Government to grant a certificate of Domicile to any person who has been residing in Pakistan for a period of one year and such cases are governed by section 17. This period has to be reckoned from the date of application whenever it is made. This section does not deal with cases of the persons who acquired citizenship by birth or descent or migration before 13-4- 1951. It is possible that a person having acquired citizenship by descent might not have lived in Pakistan for one year. Since he is a citizen by descent, he has a right to obtain a certificate of domicile. It, therefore, follows that section 17 does not contemplate the case of all persons claiming citizenship under the Act. If that was not so applicant in every case would be required to give a declaration of his one year's residence on the prescribed, form. Such a condition is attached to an application on Form 'P' and after acceptance of which certificate in form P-1' is issued. Such certificate is issued under Rule 23 of the Rules. Clause (c) of Rule 23 also points to the discretionary powers of the Federal Government under section 17 of the Act. As such Rule 23 has also no application in the case of the petitioner. The relevant rule applicable would be Rule 3.
9. The petitioner according to his own showing in the application form and the Service Book was a resident of Sialkot or Lahore and his father B was residing at Muzaffar Abad. He would be deemed to be a citizen by birth under section 3(a) of the Act.
10. According to Pakistan Citizenship Rules, 1952 Forms of application are prescribed. The appropriate form for application of Citizenship Certificate in the case of the petitioner would be Form 'A' as laid down in Rule 3 of the said Rules since he was a citizen by birth. The petitioner could not make an application on Form 'P'. It will be relevant to make a reference to the contents of the application made by the petitioner for issue of Domicile Certificate. There is a declaration made by the applicant which is as under :- "I have been residing continuously in Pakistan for a period of Since Birth immediately proceeding this declaration and I hereby express my intention to abandon my domicile of origin in Sialkot Distt.
With a view to acquire the domicile of Pakistan. I declare my intention to take up my fixed habitation in Pakistan during the remainder of my life. I further affirm that I had not migrated to India and returnad to Pakistan between the 1st March, 1947 to the date of this application exception a valid permit No, Nil dated Nil issued by the Pakistan Permit Office at Nil. Other particulars are given below."
The language of the declaration sought to be made does not mean that a person would show or was required to show that he had abandone his domicile of origin in any District of Pakistan. In fact he was required to state that he had abandond the domicile of the country from which he had migrated with a view to acquire domicile of Pakistan. The concept of domicile of a District or particular area of the country is foreign and extraneous to the provisions of the Act. What is certified under the Citizenship Act is that the person is a citizen of Pakistan. It has often been confused to mean a certificate of residence of any particular area of District. This point has also been discussed by their Lordships of the Supreme Court in the case of Yar Muhammad (1). The use to which the certificate is being put often leads to such anomalous situation and results in hardships.
11. The Prospectus of Bolan Medical College for the year 1982 has also been drafted on the assumption that a domicile certificate denotes permanent residence of an individual in a District as is evident from Rule 34 of the Prospectus which is reproduced below : - "34. All applications must be accompanied with the photostat copies or attested copies of the following documents in duplicate. The photostat copies must also be attested by an officer of Grade 16 or above.
(1) F. Sc. (Medical Group) Certificate.
(2) F. Sc. (Medical Group) Detailed Marks Certificate.
(3) Matriculation Certificate.
(4) Local Certificate or Domicile Certificate, Magistrate of the District.
(5) Character Certificate from the Principal of the institution last attended or from an officer of Grade 17 or above.
(6) Certificate of National Cadet Corps training of two years duration.
(7) Four copies of latest passport size photograph.
(8) Identity Card of the candidate or his/her father in case he/she is below 18 years of age.
(9) An affidavit on the non-judicial paper attested by the First Class Magistrate to the effect that the candidate or his/her father/guardian is in possession of only one local Certificate or Domicile Certificate, as the case may be."
' The seats to the Bolan Medical College are distributed district-wise and if a person produces a domicile certificate of that District and eligible for a seat reserved for that District. Time and again it has been pointed out that Permanent Residence Certificate may be issued under Rules to be framed for that purpose to meet the requirement but it appears nothing has been done so far in this behalf. {{FOOT NOTE}}
(1) 1980 S CM R456 {{FOOT NOTE}} 11-A. The application submitted by the petitioner was on Form 73' while he should have made an application on Form 'A' as prescribed in Rule 3. However, a certificate of Citizenship had been issued to the petitioner and which will only show that he is a citizen of Pakistan. There was no bar for the petitioner in making application for a certificate from Khuzdar District. The certificate of citizenship was valid though issued on an application suffering from a formal and technical defect.
12. The learned counsel of the petitioner further contended that the Deputy Commissioner while deciding the case of cancellation ignored material evidence viz, the facts that the petitioner's family had ever been residing at Khuzdar since 1966 up-to-date and the petitioner had purchased a plot of land for constructing a house at Khuzdar of which the copy of the sale-deed is on the file.
According to him the Deputy Commissioner also drew a wrong inference from the fact that Domicile Certificate was issued to the petitioner in 1973 while the petitioner was serving at Quetta.
According to learned counsel this fact goes in favour of the petitioner. It would mean that he had every mention of residing at Khuzdar. The Deputy Commissioner did not consider this aspect of the case and has cancelled the certificate for extraneious reasons.
13. The petitioner has challenged the competency of the Deputy Commissioner for cancellation of a certificate issued under Citizenship act of 1951. His contention is that there is no provision in the Act or Rules for cancellation of certificate and the Act and the Rules only provide whereby a citizen can be deprived of his status as such where it is found that he had obtained a certificate by practising fraud, or on mis-representation and in such cases action suggested in section 16 of the Act or Rules 26 can be taken.
14. There are two circumstances under which citizen can be deprived ' of his citizenship under the Act. If the Central Government is satisfied that the certificate of citizenship has been obtained through fraud or misrepresentation it can proceed under section 16 of the Act which is as under :- "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 Federal Government may be order depiive any such citizen of his citizenship if it is satisfied that he obtained his certificate of domicile or certificate of naturalization under the Naturalization Act, 1926 by means of fraud, false representation or the concealment of any material fact, or if his certificate of naturalization is revoked.
(3) Subject to the provisions of this section the Federal Government may by order deprive any person who is a citizen of Pakistan by naturalization of his citizenship of Pakistan if it is satisfied that the citizen :-
(a) has shown himself by any act or speech to be disloyal or disaffected to the Constitution of Pakistan ; or
(b) has, during a war in which Pakistan is or has been engated, unlawfully traded or communicated with the enemy or engated in or associated with any business that was to his knowledge carried on in such a manner as to assist the enemy in that war ; or
(c) has within five years of being naturalised been sentenced in any country to imprisonment for a term of not less than twelve months.
(4) The Federal Government may on an application being made or on its own motion by order deprive any citizen of Pakistan of his citizenship if it is satisfied that he has been ordinarily resident in a country outside Pakistan for a continuous period of seven years beginning not earlier then the commencement of this Act and during that period has neither -- (i)been at any time in the service of any Government in Pakistan or of an international organisation of which Pakistan has, at any time during that period been a member ; nor
(ii) registered annually in the prescribed manner at a Pakistan Conculate Mission or in a country where there is no Pakistan Consulate or Mission at the Prescribed Consulate or Mission or at a Pakistan Consulate or Mission in a country nearest to the country of his residence his intention to retain Pakistan citizenship.
(5) The Federal Government shall not make an order depriving a person of citizenship under this section unless it is satisfied that it is in the public interest that the person should not continue to be a citizen of Pakistan.
(6) Before making an order under this section the Federal Government shall give the person against whom it is proposed to make the order notice in writing informing him of the grounds on which it is proposed to make order and calling upon him to show cause why it should not be made.
(7) If it is proposed to make the order on any of the grounds specified in subsections (2) and (3) of this section and the person against whom it is proposed to make the order applies in the prescribed manner for an inquiry, the Federal Government shall, and in any other case may, refer the case to a committee of inquiry consisting of a Chairman, being a person possessing judicial experience appointed by the Federal Government and of such other members appointed by the Federal Government as it thinks proper."
The other circumstance under which a person can be deprived of his status of a citizen is when he is convicted for an offence under section 177, G P. P. C. Being prosecuted under Rule 29 of the Citizenship Rules, 1952. Rules 26 is reproduced below:-- "26. Penalty for obtaining citizenship by misrepresentation.-(1) Any Magistrate of the first Class, a Provincial Government or the Central Government, on receiving information that a person has obtained his certificate of citizenship, certificate of registration as a citizen of Pakistan, certificate of demicile or certificate of naturalization, by fraud, false representational the concealment of any material fact or that his certificate of naturalization has been revoked, may authorize or require a competent Magistrate to a Police Officer under section 155 of the Code of Criminal Procedure, to investigate the truth of the information.
(2) If on the result of the investigation it appears that the said person has made statement or furnished information which comes within the mischief of section 2 of the Act, the Central or Provincial Government may direct that the said person be prosecuted under section 177 of the Pakistan Penal Code, or under any other law for the time being in force.
(3) A conviction by the Court shall render null and void any certificate mentioned in sub-rule (1)."
15. The Act does not and having regard to the pre-emble of the Act should not provide for case where citizenship once acquired or recognized under the Act can be summarily, arbitrarily and whimsically withdrawn byDeputy Commissioner. Loss of citizenship . . . . . is a serious matter and the status of a citizen can not be interfered with lightly by a Deputy Commissioner. It appears that the Deputy Commissioners, at least, in this part of the country are not aware of the consequences which can flow from the deprivation of citizenship by cancellation of the certificate. The citizen is entitled to be certified under the Act and also under common law and he can not be deprived of his right just by a stroke of pen. As soon as a certificate of citizenship is withdrawn or cancelled it amounts to denial of civil rights of an individual and more over the person would have no right to live in the country. The only mode whereby a person can lose a right of citizenship of Pakistan is provided under section 16 and Rule 26. There is no other authority in the Central Government to cancel a certificate issued except as provided under section 16 of the Act.
Under Rule 26 on conviction the certificate issued is rendered null and void.
16. It will be pertinent to refer the Rule 30 of the Citizenship Rules; 1952 for it could possibly be set up as a pleat to defend action of the Deputy Commissioner although it has not been done. Rule 30 is reproduced below :- "30. Notwithstanding anything contained in rule 29 above, the Central Government may at any time entertain any application, appeal, review or revision application and may cancel suspend, invalidate, extend or revise any certificate issued under these Rules or pass any other orders it may deem necessary or fit."
' It will by seen that along side the powers of appeal, review or revision this rule also contains the power of the Central Government to cancel any certificate issued under these rules. The source of the authority dervived under Rule 30 appears to be non-also that section 23 of the Act which reads as under :- "23. Rules.-(1) The Federal Government may frame rules for carrying into effect the provisions of this Act.
(2) No rules framed under this Act shall have effect unless published in the official Gazette."
' The Central Government has been empowered to frame rules to carry into affect the provision of this Act. The Act describes various categories of Citizen according either to the date of arrival of the individual in the country or in relation to his birth, descent or acquisition of citizenship on account of stay. These provisions are spread in sections 3 to 17 of the Act. The object of the Act is to make provision for citizenship of Pakistan and recognize the statue of a citizen. The acquisition of this status in different manners for the purposes of such recognization and differentiation between the various categories of citizen with reference to the manner of acquisition, rules have been framed.
This does not mean that a person acquiring citizenship by birth would have different status than one acquiring it by migration or descent or otherwise. Issuance of certificate and prescribing different forms and other incidental matters have to be regulated and procedure prescribed for that rules have been framed to implement the provisions of the Act. Such rules are within the provisions of the Act. Such rules are within the competence of Rule making power of the Central Government. Since there is no provision in the Act itself for cancellation of a citizenship certificate any rule framed in that benalf empowering the Central Government or any other authority to cancel the same would be a rule outside the scope of section 23 of the Act. The powers to frame rules vests in the Government under section 23 of the Act and where the Act itself does not grant any power to cancel citizenship certificate such powers can not be assumed by framing rules under the Act. The Act creates statutory jurisdiction and Rules framed under it prescribe the made of exercise of that jurisdiction. Rules by their own force can not create statutory jurisdiction unless that is available in an enactment. A power which does not exist in the parent Act can not be granted under its own creation. The powers of the Central Government under section 23 are not un-limited but are circumscribed by section 23. As will be seen that section 16 of the Act provides authority to the Central Government to withdraw the status of the citizenship from a person after following the prescribed procedure. A similar power has been granted to Magistrate of the First Class, a Provincial Government or a Central Government to proceed against the person acquiring citizenship by practising fraud or mis-representation under Rule 26 of' the said Rules. Rules 26 is in consonence with the provision of the Act as contained in section 16. If citizenship is to be withdrawn upon the basis of satisfaction of the Central Government that a certificate has been obtained by fraud or mis-representation a show-cause notice and followed by possible inquiry are necesssry steps. Loss of citizenship can accrue to a person on conviction of an offence under section 177, C. P.
C. The Act does not contemplated any other methed where a certificate once granted can be cancelled.
17. The other aspect of the case is that assuming that the Central Government has power to cancel a certificate under Rule 30. Those powers have not been shown to have been delegated by it to the Deputy Commissioner under section 18 of the Act. The Advocate-General has not been able to produce any notification of such delegation of powers. The Central Government could delegate its powers to any authority under section 18 of the Act but such powers are these that are exercisable by it under the Act. The delegation of powers to the Magistrates or District Magistrate regarding issuance of certificate is expressed by formulation of citizenship Rules, 1952. There is no delegation of powers of the Central Government as for as Rule 30 is concerned nor there could be any such delegation.
18. The learned Advocate General had referred to the case of Yar Muhammad in support of his argument that the District Magistrate was competent to cancel a domicile certificate. This was a case in which the question of cancellation of the Domicile Certificate was involved. It was observed by their Lordships that the object of obtaining demicile certificate was to secure a seat in the Engineering College. The Domicile Certificate was cancelled by District Magistrate when it was found that the petitioner did not own a house at Loralai. The question of competency of' the District Magistrate to cancel the certificate with reference to the object for which it was obtained was considered. It was not urged in that case the Central Government or the District Magistrate did not possess any powers to cancel a citizenship certificate under the provisions of the Act. This aspect was not before their Lordships of the Supreme Court.
' I feel no hesitation in saying that the Deputy Commissioner is not competent to cancel a certificate issued unless the person is convicted for an offence under section 177, with section 16 of the Act. The result is that the impugned order of the Deputy Commissioner is without jurisdiction and lawful authority and is declared as such. The Petition is all with no order as to cost. As far as the prayer of the Petitioner No, 2 for a direction to the Selection Committee for admission is concerned the petition is premature, the Selection Committee will decide her entitlement to admission according to the prospectus and law.
' ZAKAULLAH LODHI, ACTG C. J.-I agree with the conclusion in this petition.