' ZAKAULLAH LODHI, ACTG. C. J.-This constitution petition assails the order of the District Magistrate, Kohlu dated 12th July, 1982, whereby he cancelled the domicile certificate issued to the first petitioner. The facts giving rise to this petition are not in controversy and are given below :- The first petitioner is father of the second petitioner. The first petitioner arrived in -Pakistan soon after its creation and joined service in Pakistan Petroleum Limited, in their Sui Gas Fields at Sui, District Kohlu in August, 1954 (Annexure C), where he is working till date. Eversince this employment he has been living in the accommodation provided to him by his employers at Sui. All his children including the second petitioner, were born at Sui. He was also enrolled as a voter at Sui (Annexure C-2). He possesses identity card also which too was issued at Sui (Annexure C-3). To supplement his income, he opened a shop at Sui which he is running as partnership concern. On his application the District Magistrate, Kohlu issued to him a domicile certificate on 31st December, 1979 under rule 23 of the Pakistan Citizenship Rules, 1952, made under the Pakistan Citizenship Act, 1951 (hereinafter called the Act and Rules respectively). It was on the strength of this certificate, which among others, describes him and his children permanent residents of Sui, District Kohlu, that his elder daughter was admitted to the Bolan Medical College, Quetta last year, where she is presently studying.
2. The second petitioner received his early education at Sui, but as education in Science subjects was not imparted in the College at Kohlu, he was admitted to a college at Sukkur, as resident student and qualified his F. Sc. From there. It was explained to us that the first petitioner opted to admit his son at Sukkur in preference to a college in Baluchistan for the reason that Sukkur is distance-wise nearer to Sui than the nearest places of Baluchistan namely Bibi and Usta Muhammad where education in Science subjects was available. Sui was also directly linked by road and air with Sukkur and the vehicles of the company were frequently running between these two places.
3. The first petitioner further stated that after the selection of his daughter Miss Razia Tabassum in Bolan Medical College against seat of District Kohlu, some ill-will was nurtured by some of the students of Kohlu and to demonstrate their anger and annoyance they pasted objectionable posters at his house and also fired at it. The matter was reported to the police by an F. I. R. And also to the Inspector-General of Police, Baluchistan. The police provided him and his children necessary protection which still continues while he or any member of his family is on journey from Sui. The copies of the said poster, F. I. R. And several letters written by him to the police authorities and their replies have been filed alongwith the petition ; but it would be futile to go into their detailed discussion.
4. The petitioner further submitted that at the instance of the students Action Committee the District Magistrate, Kohlu, respondent herein, directed the first petitioner to appear before him so that his domicile certificate could be reverified. Accordingly he appeared before him. Some questions with regard to his permanent settlement etc. Were put to him, by the respondent and by a student purportedly appearing for the Students' Action Committee. However, no record of this enquiry appears to have been maintained ; for none was produced before us by the learned Advocate-General. Later on 12th July, 1982, he received the decision of the respondent bearing No, 4640-70/1 (82)-AGG (Annexure K), whereby his domicile certificate was cancelled. This order forms subject-matter of this petition. The second petitioner before us is first petitioner's son. He prays for a direction to the Selection Committee, before whom his application for admission to Bolan Medical College is pending, to the effect that his father's domicile certificate may be restored and considered while deciding his application for admission. This relief has not been claimed in the petition in so many words, but a submission to this effect was made by Mr. Aslam Chishti, learned counsel for the petitioners. Peeping behind the scene, it is manifest that the object of obtaining the domicile certificate by the first petitioner was to establish his permanent residence at Sui and claim his children's admission etc. From District Kohlu. The exception taken to this certificate by some students and the action of the respondent in the matter also have direct nexus with the second petitioner's admission to the Bolan Medical College. But as the Selection Committee has not yet taken a decision on second petitioner's application and the domicile certificate not being a deciding factor in the matter before the Selection Committee being only a piece of presumptive evidence of permanent residence, the Selection Committee is not at all bound by it. The second petitioner's prayer is, therefore, premature. Till the decision of his case on the basis of the respondent's order, he has no locus standi to come to the Court. The petition is thus dismissed to the extent of the relief claimed by the second petitioner.
5. We are now left with the case of the first petitioner whose grievance is that his domicile certificate was cancelled arbitrarily, as such, the impugned order was without jurisdiction. Based on above ground, his case precisely is that by cancelling the said certificate without resorting to the law as contained in the Act and the Rules, the respondent deprived him of the citizenship of Pakistan on the basis of far-fetched presumptions, conjectures and surmises. It would only be proper for the disposal of the petition to reproduce the relevant portion from the impugned order of the respondent :-
(2) Accordingly, on the 13th June, 1982, Syed Atta Abbas son of Syed Abrar Hussain Naqvi, appeared before this Court. Several questions were put to Syed Atta Abbas relating to himself in the presence of Mr. Azizullah son of Haji Faiz Muhammad, Mondrani Bugti, a student leader. The student leader Mr. Azizullah Bugti also put some questions to Syed Atta Abbas.
(3) From the answers given by Syed Atta Abbas, it is evident that his son, Qamar Abbas got his Primary, Middle and High standard education in a private institution i,e, ; Model School, Sui, run by the Pakistan Petroleum Limited Sui. On completion of studies in the said institution, Mr. Atta Abbas got admitted his son Qamar Abbas in Government lslamia College, Sukkur instead of the colleges in Baluchistan Province i,e, Dera Bugti, Usta Mubammad Sibi and Quetta, where he could got scholarship too. This act of Atta Abbas goes to believe that he had some interests at Sukkur.
According to the information given by the representative of the Students Action Committee, Mr. Azizullah Bugti, Mr. Atta Abbas has settled down in Sind Province most probably at Sukkur or Sanghar, which fact he is concealing from the Court. Had he not any interests in Sukkur he would have managed the admission of his son Qamar Abbas in any of the colleges within Baluchistan Province: Further, as disclosed by Mr. Atta Abbas, he did not obtain permanent residence certificate since his acquiring the domicile of Kohlu Agency. The answer given by him is no cogent. It is an open secret that the employees belonging to other parts of Pakistan serving in Baluchistan in Government or Private capacity, are not likely to settle down permanently in Districts of domicile in Baluchistan but are always suspected to leave Baluchistan as soon as they are retired from Government service or discharged by private employers. Their longer stay in Baluchistan during service period, does not entitle them to be domicile of Baluchistan. Moreover, due to different type of their living manners they cannot be expected to absorb themselves in the Seciety that is prevailing in the District of their domicile in Baluchistan. Under the circumstances it is believed that Mr. Atta Abbas has probably acquired citizenship of Sind Province otherwise he would have tried to educate his son in Baluchistan and secondly it cannot be believed that after retirement he would remain at Sui. Thus he cannot be assumed to be permanent resident of Sui Kohlu Agency and therefore, the domicile certificate issued to Syed Atta Abbas is not genuine.
(4) Now, therefore, in exercise of the powers under the Citizenship Act, 1954 and the rules made thereunder, the District Magistrate, Kohlu Agency, is pleased to withdraw the status of domicile conferred upon Syed Atta Abbas son of Syed Abrar Hussain Naqvi vide Certificate No, 5/75 Miscellaneous Vol. II dated the 31st December, 1979 and direct him to deposit the original certificate with the Assistant Political Agent Dera Bugti. This order should also be published in the Newspapers for the information of a (sic).
6. From the reading of above, it is plain that the respondent did not initiate proceedings suo motu but at the instance of a student, who under the circumstances, could at best challenge the second petitioner's application for admission before the Selection Committee where it was pending. He had no concern whatsoever, with the first petitioner's status as a citizen of Pakistan. Indirect bearing of cancellation of domicile certificate on the admission of the second petitioner in the said college apart ; the jurisdiction of the respondent extended to the domicile certificate alone and that too as delegatee of the powers of Federal Government under the Act. Under the Act read with the Rules, his function is limited, namely, in the matter of issuance of a certificate, he is bound to issue it to an applicant covered by the categories of citizens enumerated by section 3, (a) to (d), if he fulfilled the conditions envisaged by the Act and the Rules. In respect of the category mentioned at 3(d), to which first petitioner undisputedly belonged, the only pre-condition was that he had lived in Pakistan for one year previous to the making of the application to the District Magistrate of the District he lived in, and once it was substantiated, the District Magistrate had no option but to issue the requisite certificate. Relevant provisions of law are these :- Act, section 17.-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 pre- conditions, held, that the District Magistrate would be left with no discretion but to issue the certificate. Such an applicant could demand the domicile certificate as a matter of right."
Rules-Section 23-Certificate of domicile.-The Central Government, the Provincial Government or any District Magistrate authorised by the Provincial Government in this behalf may on application made to it in this behalf issue a certificate of domicile in Form P-I' in the manner following :- (a)An application for a certificate of domicile shall be made in form P' in duplicate. It shall be accompanied by an affidavit affirming the truth of the statements made in it and affirming further that the applicant had not migrated to India after the first day of March, 1947 or that, having so migrated, had returned to Pakistan under a permit for resettlement or permanent return issued by an officer authorised by the Government of Pakistan.
(b)Any authority to whom an application is presented may demand such evidence as it may consider necessary for satisfying itself that the facts stated in the application are correct and that the applicant has been continually resident in Pakistan for a period not less than one year and intends to live permanently in Pakistan.
(c) The authority shall pass such orders on the application as it deems fit."
' The question with regard to the powers of the District Magistrate in the matter in this regard came under consideration of the West Pakistan High Court in Noor Muhammad v. Province of West Pakistan and another (1) and the dictum laid down was as under :- "It is now axiomatic that 'where a power is deposited with public officers, to be used for the benefit of persons having rights in the matter.' It bec.Omes the obligation of the person so empowered to exercise that power or authority when an application for such exercise is duly made by a person who is interested in the matter and who successfully fulfils the requirements and pre-conditions for the exercise of such authority. The principle being that the incumbent of the public office has been invested with the power not for his benefit but for that of those in whose interest it is to be exercised. The District Magistrate was, therefore, wholly wrong when he expressed the opinion that it was a mere discretion and nobody entitled to it could demand a domicile certificate as a matter of right.
(4) Before parting with this point we may as well state that clause (c) of rule 23 cannot and does not confer any arbitrary authority on the persons mentioned in rule 23 because after all this rule has been made for implementation and carrying into effect of the provisions of the Act and can therefore, not travel beyond the authority of the Act or impose more restrictions than the Act itself has imposed."
From the law and its exposition cited above, it is quite clear that there is but one pre-condition for the issue of a domicile certificate and that is one year residence in the District to whose District Magistrate, application is made in Form "P-I". No other consideration is relevant for the dispossal of such applications.
7. Learned Advocate-General submitted that there was no need for a person whom he law recognized as citizen of Pakistan to precure a certificate to that effect and that such certificate were in majority of cases obtained to be used in place of permanent Resident Certificate, which the Employers and the Education Institutions invariably required by way of proof of permanent residence in a particular part of Pakistan. He referred to the case of Muhammad Yar (C. P. No, 26 of 1979), and Supreme Court obiter while deciding the appeal (1980 SCMR 456). We entirely agree with him. Such certificates being presumptive evidence of permanent residence, are invariably obtained and used for the proof of permanent residence despite the fact that no citizen of Pakistan who is recognized as such, b dint of his birth in any part of the Sub-Continent, which is included in Pakistan, or as a result of migration after the creation of Pakistan, or by naturalization, is a citizen of Pakistan for all intents and purposes and needs no certificate at all to such effect. But we cannot lose sight of the fact that there is also absolutely no embargo on the obtaining of such certificate, for whatever object it may be obtained. A District Magistrate is also bound to issue the same if conditions heretofore mentioned are satisfied. We have repeatedly pointed out that to avoid confusion that invariably arises on this score ; namely when such certificates are used to establish permanent residence, the best course for the Provincial Government would be to provide a law on the subject of permanent residence. Then {{FOOT NOTE}}
(1) PLD 1971 Lab. 367 {{FOOT NOTE}} further anomaly of which the learned Advocate-General seems to have lost sight, are the Prospectus of the Colleges of Professional Education which specifically require local and demicile certificate to be produced. Whether or not the framers of those prospectus understand the exact concept of the words "citizenship", "domicile" and "domicile certificate", is outside the realm of our jurisdiction to comment upon, but it is quite clear that they consider such certificates as conclusive evidence of a person's permanent residence in a particular District. That being so, the applicants for the same can hardly stand to be blamed. However, we need not go into these controversies ; for the functions of the courts is to interpret and declare an existing law and to enforce it ; as it stands.
We cannot tailor it to suit a particular situation, however, demanding it may be. We understand and appreciate learned Advocate-General's anxiety, but things beyond our power and jurisdiction cannot be expected from us.
8. The above was the exposition of law on the point of issuance of the domicile certificates. Now coming to the powers of a District Magistrate to cancel the same, either by naming it, revivification' or by any other name. Such powers are equally limited and are governed by the Act and the Rules beyond which a District Magistrate cannot travel. No other motivation, however, genuine and sincere, will be able to couth an order or action with legality if it were otherwise opposed to law under which a functionary of the State was operating. In this connection rule 26 may be seen for guidance :- "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 domicile or certificate of (Naturalization) by fraud, false representation or the concealment of any material fact of that his certificate of (naturalization) has been revoked, may authorise or require a competent Magistrate to authorise a police officer under secton 153 of the Code of Criminal Procedure, 1898 (Act V of 1898) 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 (Act XIV of 1860), 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)."
' This provision of law specifies the powers of a District Magistrate in this respect. The procedure envisaged for such purposes is also contained in it. This is the precinct within which a District Magistrate or any other functionary under the Act or the Rules is bound to remain and exert his authority.
' Here it would not be out of way to mention (as also argued by the learned Advocate-General) that what normally the District Magistrates mean by cancelling the domicile certificate is not actually deprivation of citizenship of Pakistan ; but in their own methodology and understanding, their intention simply is to pass a verdict on the point of permanent residence of a person in his District ; as certain gains are attached with such status as residence and the misuse of such certificate is also not uncommon. There is no denial to the fact that these certificates are obtained and contested for only such reasons. The anomalies in this respect are many and cannot be overlooked. But on top of all, the fact remains that the law of the land has to be enforced as it stands and changing its course is neither the court's function nor of such other executive authority who are bound by it. On the point of the cancellation of the demicile certificate the rule has been forcefully expressed in Shah Baz Khan v. Government of Baluchistan and 5 others (1) and the following paragraph from the leading judgment written by Mr. Justice K. B. Marri (as he then was) may be reproduced with advantage:- "Para 16.-As to cancellation or certificate of domicile or certificate of naturalization obtained by fraud, false representation or the concealment of any material fact, the procedure provided under section 26 of the Pakistan Citizenship Rules, to be followed which is as under :- "Penalty for obtaining citizenship by representation.-(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 representation or the concealment of any material fact, or that his certificate of naturalizatiion has been revoked, may authorise or require a competent Magistrate to authorise a police officer under section 155 of the Code of Criminal Procedure, 1898 to investigate the truth of the information.
(2) If on the result of the investigation, it appears that the said person has made a statement or furnished information which comes within the mischief of section 21 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).
Para 17.-We are afraid the learned District Magistrate instead of following the prescribed procedure laid down under section 26 of Pakistan Citizenship Rules, 1952, has cancelled the petitioner's domicile without holding the proper and necessary enquiry. It may be noted if it is found that a certificate was obtained by fraud or misrepresentation, it entails necessary punishment under the law. Para. 21.-We, may note here that every year High Court is flooded with writ petitions'filed by students with regard to obtaining and cancelling the demicile Certificates by different authorities. Students or their parents naturally being very anxious to get admission to the very limited seats of the Province to various colleges do attempt to manipulate to obtain domicile certificates by all means which cannot be appreciated but again the responsibility lies with the respective District Magistrates and the other Education Departments concerned that before issuance of a domicile certificate the law and the procedure referred to above must be strictly followed so as to not deprive any deserving student from the right of getting admission. Had in this case at the initial stages the law and the procedure been strictly followed, the learned District Magistrate would not have suffered the embarrassm ent of issuing second letter of cancellation of domicile certificate and the petitioner would have been saved from taking trouble to go to Peshawar for {{FOOT NOTE}}
(1) PLD 1977 Quetta 22 {{FOOT NOTE}} admission and undergo unnecessary expenses and hardships. We hope that in future all the District Magistrates and the Education Departments will see to it that complete enquiry is made and all necessary particulars and evidence are recorded before issuing domicile certificate."
The crux of the discussion, therefore, is that only in such circumstances in which a District Magistrate is satisfied that a domicile certificate was obtained by "fraud" he could initiate the proceedings in the manner provided E by the Rules ; which may lead up to the consequences laid down therein, which include cancellation of the domicile certificate as well. And this too needs pointation that here the word "fraud" has reference only to the obtaining of certificate of citizenship of Pakistan or domicile certificate by a person not recognized in law as such citizen. It has nothing to do with a person's intention etc. To reside in a particular District and matters ancillary thereto which are often found weighing with the District Magistrates while dealing with such cases.
9. Adverting now to the present case, Mr. Chishti argued that the impugned order was based on conjectures and surmises. Dealing with the grounds which prompted the respondent to cancel the first petitioner's domicile certificate, learned counsel invited our attention first to the ground that the second petitioner had not received education at Sui. The first petitioner's explanation has been given. Although under the Prospectus of Bolan Medical College, it is a condition precedent that a student applying for a seat from a particular District of Baluchistan, should have normally received all his education in Baluchistan but the condition is not absolute. It is relaxable and is invariably relaxed in deserving circumstances both in cases of locals and domiciles. But the question is that the District Magistrate acting under the Act and the Rules was not concerned with the second petitioner's education etc. The case before him was that of the first petitioner and he had to confine himself strictly to the evidence concerning him and also such of the evidence which was admissible under the Act and the Rules. He should have only seen whether the first petitioner was or was not a citizen of Pakistan and if not, whether he had fraudulently obtained the domicile certificate. That was his realm of jurisdiction and no more. It cannot be cast aside from consideration that the trouble ' arose on the question of second petitioner's admission, but he was bound to ignore it as it was neither directly in issue before him nor it had an nexus with the question of domicile certificate's issue and cancellation. It G is also true that the father had been roped in to defeat the son. Such considerations may be relevant in a layman's methods, but the functionaries of the State have to go by law and should have a frame of mind exclusively devoting to the duty that a law casts on them, however hard and bitter that may appear to be and close their eyes to all extraneous considerations however convincing they may. Appear to be. It was in such circumstances that in Abaul Khaliq v. Province of Baluchistan and three others (1) and Miss Nasreen Fatima Awan and others v. Principal Bolan Medical College, Quetta and 4 othess (2) that the orders were quashed by this Court as they were wanting in relevancy and cogency.
10. Now coming to the grounds which concern strictly to the first petitioner, the respondent has referred to an information provided to him by the Students Action Committee to the effect that (in his words) "he had most probably settled down in Sakkur or Sanghar". He relied upon it as gospef truth and made no investigation, although that was not difficult. One would genuinely expect that he being an important functionary of the {{FOOT NOTE}}
(1) PLD 1980 Quetta 10 (2) PLD 1978 Quetta 17 {{FOOT NOTE}} Province, should have ascertained such assertion from the authorities in the Province of Sind who could inform him about petitioner's property, claiming of residence certificate or any other overt act which would go to show that he had relinquished Kohlu as a place of permanent residence and had started asserting for such benefits which by virtue of domicile certificate accrued to him at Kohlu in any other place.
11. Next ground is that the second petitioner did not acquire permanent residence certificate for admission in the Bolan Medical College. This ground was also not available to the respondent in the circumstances explained above, for it did not concern the first petitioner. Learned counsel for the petitioners, however, referred to us the Prospectus of the Bolan Medical College which does not contain the requirement of a Permanent Residence Certificate for admission this year. However, even if there had been such a requirement, it could be considered only by the Selection Committee while dealing with the case of the second petitioner.
12. Next ground for the impugned order was that (in his own words)j "very many people come to Baluchistan in connection with service from other parts of the country and after retirement or termination of service, they return to the places of their origin." Upon this premises it was presumed that the first petitioner was also sure to return back to some other place after retirement. Apart from the argument advanced by Mr. Chishti that he had no other place to go to, as he neither bad any property or any other connections and interests anywhere else in Pakistan, this is on face of it a presumption and no legal case is decided on such presumptions and suppositions. Then, where is the embargo on movements in this free country. Whether he be a man belonging to an indigenous tribe or a settlor ; every soul, as Pakistani is free under law to move and stay temporarily or settle down permanently anywhere in Pakistan, for reasons of his own. There is a wealth of case law on the subject, and students who belonged to indigenous tribes of Baluchistan but lived outside the Province, for one compulsion or the other, were allowed admission by us in Bolan Medical College on the consideration of the fact that a person did not lose his status as a permanent resident of Baluchistan for such reasons alone ; and one has to take into account different conditions which shape one's life and matters connected therewith (See Ghulam Rasool v. Government of Baluchistan and others (1). It is thus simply presumptuous to say about any citizen of Pakistan that he would cease to live in any particular place on the happening of any contingency or eventuality.
13. Yet other grounds finding favour with the respondent were (in his own words) (a) "due to different types of their living/manners, they cannot be expected to absorb themselves in this society that is prevailing in the District of their domicile in Baluchistan" (b) "Mr. Atta Abbas has probably acquired citizenship of Sind Province " (c) "will not live here after retirement." Least said about such reasonings, the better. All these grounds are conjectural' and deserve no weight. No order in the nature of striping off a person of his valuable right can ever be passed on such flimsy grounds. This order is wholly arbitrary, and amounts to misuse of jurisdiction vesting in the respondent.
' The above are our reasons for allowing the petition with no orders as to costs vide short order dated 19th September, 1982.