JAWAD HASSAN, J. Through this single order, I intend to decide the instant petition as well as Writ Petition No.11959 of 2016 titled Mohammad Asghar Ali v. District Coordination Officer, Layyah and 4 others as both the same are interconnected with each others.
2. Through the instant petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner namely Asia Shahzadi (the "Lady Petitioner") has sought setting aside the orders dated 18.05.2016 and 14.05.2015 passed by the Respondents Nos. 1 and 2 respectively whereby her duplicate domicile (the "Domicile") has been cancelled and she also sought restoration of her Domicile being permanent resident of Chak No.311/TDA, Tehsil Choubara, District Layyah (the "Chak"). The Lady Petitioner has also submitted some additional documents through C.M. No.2815/2017.
3. Through W.P. No.11959/2016 the Petitioner namely Mohammad Asghar Ali has sought a direction to the Respondents Nos. 1 to 3 for issuance of his domicile.
4. Learned counsel for the Petitioner, in the instant petition, has contended that the impugned orders are against the law and facts, as such not sustainable in the eye of law; that the impugned orders are clear violation of Citizenship Act, 1951; that on the basis of permanent residence of the Lady Petitioner in the Chak, the Domicile was issued by the Respondent No.2 but subsequently on the basis of mala fide the same has been cancelled; that it is clear from the report of Revenue Authorities made on the application of Lady Petitioner's brother namely Asghar Ali that Muhammad Qasim Ali was never remained Lumberdar of the Chak, as such on the basis of alleged Lumberdar's report the Lady Petitioner cannot be deprived of her lawful and fundamental right of domicile; that the right of fair trial has not been afforded to the Lady Petitioner nor she was obliged to cross- examine the relevant persons, therefore, violation of Article 10-A of the Constitution has also been made; that from the reports of the concerned Authorities it has been established that the Lady Petitioner is living with her mother, brothers and sisters and all the reports regarding permanent residence are in favour of her brother namely Asghar Ali (Petitioner in connected petition); that the respectables of the vicinity have also filed their affidavits regarding permanent residence of the Lady Petitioner in the said Chak; that the Lady Petitioner's permanent residence is apparent from the documents viz: CNICs, Voter List, Affidavits and Revenue Record; that the domicile of the Lady- Petitioner has been cancelled to obliged the second candidate for the post of SSE (Math) for which, the Lady Petitioner stood first.
5. In the connected writ petition filed by Asghar Ali, learned counsel submitted that the Petitioner is permanent resident of Chak No.311/TDA, Tehsil Choubara District Layyah and has applied for the domicile certificate but is being deprived on the ground that his sister's domicile on the same address has been cancelled; that all the documents, revenue record and reports are supporting the Petitioner for issuance of his domicile; that the Respondents are not issuing the domicile of the Petitioner on the basis of mala fide and as such he is being deprived of his fundamental right guaranteed under the Constitution.
6. On the contrary, learned Law Officer vehemently contested the arguments advanced by the learned counsel for the Petitioners and contended that both the writ petitions are liable to be dismissed on the grounds that intact the Petitioners are not the permanent resident of the Chak rather they are living in Mohallah Shalimar Town, Chowk Azam, District Layyah ("Chowk Azam"); that the domicile of the Lady Petitioner has rightly been cancelled by the Respondents Nos.1 and 2 as she could not prove her case before them despite opportunity of personal hearing; that the Petitioners have failed to point out any mala fide on the part of the Respondents for cancellation of her domicile.
7. I have heard the arguments of both the sides and perused the record minutely.
8. From the perusal of record, it reveals that when the Domicile of the Lady Petitioner was cancelled vide the impugned order dated 14.05.2015 by the Respondent No.2, she filed W.P. No.9221/ 2015 before this Court which was disposed of vide order dated 16.02.2016 with the direction to the Respondent No.1 to decide the matter strictly in accordance with law within 30 days and in consequence of which the Respondent No. 1 dismissed the representation of the Lady Petitioner vide the second impugned order dated 18.05.2016, hence she filed the instant petition. From the whole case, the controversy is that on the basis of a complaint filed by Mst. Tasleem Rauf, the Domicile of the Lady Petitioner has been cancelled on the ground that she is not resident of the address mentioned in the Domicile viz: the Chak and the domicile of the Petitioner Muhammad Asghar Ali is not being issued because his sister's domicile has been cancelled on the basis of the same address. The following moot point is necessary to be framed to resolve the controversy: Whether the Lady Petitioner and the Petitioner are Permanent residents of Chak No.311/TDA, Post Office Fateh Par, Tehsil Chubara, District Layyah, or Permanent residents of House No. PIA-F/15, Housing Society, Lahore and Temporary residents of Ward No.3, Mohallah Shalimar Town, Chowk Mans, District, Layyah.
9, The stance of the Lady Petitioner is that as she is living with her mother, brothers and sisters in the Chak, therefore, her domicile, which has been cancelled, ought to he restored, Whereas on the other hand the Respondents alleged that she is permanently residing in House No.PIA-F/15, Housing Society, Lahore and her temporary address is of Chowk Azam. The Lady Petitioner in support of her contention has appended with the petition the copies of following documents: i. CNICs. ii. Domicile iii. Inquiry Report dated 12.03.2015 iv. Report regarding Lumbardar dated 28.06.2016 v. FIRs against the Respondent No,5 vi. Report of Patwari and Qanoongo dated 26.08.2015 vii. Report of Tehsildar Chubara dated 20.06.2016 viii. Affidavit of Son of Lumbardar dated 11.06.2015 ix. Certificates of concerned MPA, Vice Chairman, General Councilor, Secretary U.C. etc. x. Challan Fee Form for domicile. xi. Voter List xii. Revenue record of her family xiii. Allotment letter of plot xiv. Affidavits of the respectables of the vicinity.
10. The domicile of the Lady Petitioner was cancelled on the basis of a complaint filed by Mst, Tasleem Rauf. On the said complaint and in pursuance of recommendations of EDO (Education), the DCO sought report from the Respondent No.4 Assistant Commissioner who on 11.0.2015 submitted his report that the Lady Petitioner is residing with her mother, brothers and sisters at Chowk Azam. The said report of the Respondent No.4 depicted that the alleged Lumbardar of the Chak was called who recorded his statement that the Lady Petitioner is residing with her mother, brothers and sisters at Chowk Azam. Whereas the Lady Petitioner has vehemently denied the authenticity of said Lumbardar namely Malik Muhammad Qasim Ali and has also attached with the Petition copy of report of Wasalbaqi Navees Chubara submitted to Tehsildar Chubara which vividly reveals that the original Lumbardar of the Chak namely Hassan Din had been expired on 23.01.2001 and the said Malik Muhammad Qasim Ali was neither in the past nor now remained Lumbardar of the said Chak rather one Sher Ahmed is looking after the work of Lumbardar.
Furthermore, in the said report the nexus of the Lady Petitioner has not been denied with the Chak rather only stated that she is living in Chowk Azam. The documents attached by the Lady Petitioner with the petition, mentioned above, also speak volume that she is permanent resident of the Chak.
CNIC of the Lady Petitioner and her other blood relatives show her permanent address as the Chak.
No doubt that temporary address is also mentioned on the CNICs and other documents but it cannot be presumed that they are living there permanently.
11. Moreover, the copies of FIRs filed by the Lady Petitioner also reveal that there is criminal litigation between them and the said alleged Lumbardar Malik Muhammad Qasim Ali, as such the element of mala fide cannot be ruled out. The Lady Petitioner got her original domicile on 25.10.2010 and subsequently when she lost the same she again applied for the duplicate domicile which was issued to the Lady Petitioner. It is worth mentioning here that the post of SSE was announced after issuance of her original domicile on the same address which was mentioned in the duplicate domicile, therefore, it cannot be said that she tried to get her domicile of the Chak address for applying for the said post.
12. So far as the case of the Petitioner namely Muhammad Asghar Ali in W.P. No.11959/2016 is concerned, it is stated that he has applied for issuance of his domicile certificate along with all the supporting documents but has been denied only for the reason that his sister's (the Lady Petitioner) domicile has been cancelled on the basis of same address which he has mentioned in the domicile certificate and he is living along with his mother, sisters and brothers and has been held till the decision of the Lady Petitioner's case and has also been advised to get his domicile mentioning the address of the Chowk Azam. Learned counsel for the Petitioner submitted that the Petitioner has produced all the proof of his abode in the Chak but without any cogent reason he is being denied issuance of domicile certificate, therefore, sought a direction to the Respondents for issuance of domicile certificate as the Petitioner is legally entitled to the same being his fundamental right.
13. From the perusal of record it reveals that the Petitioner along with his petition has also appended photocopies of certain documents in his favour viz: voter list of his father and himself, report of the Patwari and Tehsildar of the Chak, CNICs, record of the rights in his name as owner of the land in the Chak, certificates of the different authorities, affidavits of the respectables of the locality. The bare examination of the said documents clearly shows that the permanent address of the Petitioner is of the Chak and he is residing with his mother, brothers and sisters in the Chak.
They also reveal that the Petitioner has agricultural land in the Chak. It is important to note that in the report and parawise comments, although the Respondents have denied that he is living in the Chak but admitted that only his father is living in the Chak; the Petitioner's CNIC also show his permanent address as of Chak; ownership of the Petitioner over agricultural land is also admitted by the Respondents in the Chak; voter list is also admitted to be of the Chak.
14. From the above facts and circumstances, there remain no doubt that the Lady Petitioner is living along with her mother, brothers and sisters including the Petitioner Muhammad Asghar Ali and their permanent address is of the Chak, therefore, this creates right in favour of the Lady Petitioner and the Petitioner Muhammad Asghar Ali to be entitled to get domicile certificate of the Chak.
15. Reliance in this regard is placed on the case tiled Afsar Khan v. Tribunal F.C.R. and others (2005 Cr.LJ 886) in which the Hon'ble Division Bench held that the citizens of the Pakistan are entitled. to domicile certificate of their permanent place of residence. If they are denied the facility of domicile certificate from place of their permanent residence, there is every likelihood that they will be deprived to get domicile certificate from any other place. Such denial of domicile certificate would amount to denial of a legal and Constitution right. The Hon'ble Division further held which is as under: "Criteria for determination of a domicile of a citizen as considered in various reported cases highlighted in the judgment. The fact that Applicant owns landed property in the area from which he is seeking domicile certificate would be sufficient for grant of domicile certificate.
Domicile certificate means the official confirmation of, place of permanent residence of a citizen.
Apparently it has nothing to do with casts or tribes. A person belonging to Nasar Sub-caste can neither be deprived right of citizenship nor of domicile if he meets the criteria laid down by law, the rules and guidelines given by the Supreme Court. Unambiguous certificate issued by tribal elders certifying permanent residence of Applicant in the area would entitle him to domicile certificate from that area."
16. Reliance in this regard can also be made on the case titled Ziaullah Khan v. District Magistrate District Nawabshah and 3 others (2000 CLC 406 [Karachi]) wherein it was held that now it is clear to me that if the intention was to base the grant of permanent residence certificate on the domicile certificate of the applicants' parents it was not necessary to provide for any enquiry by the District Magistrate under Rule 4 to ascertain the place of permanent residence of the applicant. In fact, the said rules need not have come into existence for the domicile certificate of the parents would have been sufficient for the purpose of seeking admission to Medical College in one of the district-wise reserved seats. The domicile certificate unlike the permanent residence certificate is not open to challenge by an aggrieved person. For the grant of a domicile certificate under section 17 of the Citizenship Act all that necessary is that the applicant was ordinarily residing in Pakistan for specified period and has intention to make Pakistan his place of abode and, therefore, the fact that in the prescribed form there is a column of place of domicile appears to be of not much importance.
17. In view of what has been discussed above, the instant petition as well as the abovementioned petition are hereby allowed and the impugned orders dated 18.05.2016 and 14.05.2015 are set aside; consequently, the Respondents are directed to restore the duplicate domicile of the Lady Petitioner forthwith and also issue domicile to the Petitioner Muhammad Asghar Ali.