' NAIMUDDIN, J.--This Constitution Petition under Article 9 of the Provisional Constitution Order, 1981, calls in question the order, dated 11th March,1982, passed by Mr. A. M. Akhund, District. Magistrate, Thatta, respondent No,2, refusing to the applicant Permanent Resident Certificate applied for by him, and the order dated 5th May, 1982, passed by Mr. Abdulah J. Memon, Commissioner, Hyderabad Division, respondent No,1, whereby he dismissed the appeal .Filed by the petitioner against the order, dated 11th March,1982, of the District Magistrate, Thatta.
' The facts giving rise to this petition briefly stated, are as follows:-
2. The petitioner claims that his parents migrated from India in 1984, and stayed at Jamesabad, District Tharparkar, where the petitioner was born in 1962. In 1968 when the petitioner was of about 6 years of age, his father shifted from Jamesabad to Dhabeji, and settled there permanently. In 1969 he got a job of fitter in Indus Jute Mills, situated at Dhabeji, District Thatta and since then the petitioners's father has been continuously living in Labour Colony, Dhabeji alongwith his whole family.
3. According to the petitioner he received his primary and middle education at Dhabeji and thereafter he, being desirous of better education, was got admitted by his father in S.K. Rahim High School, Hyderabad from where he matriculated in 1977, and thereafter got admission in Government College, Hyderabad, and passed his Inter Science, Medical Group, Examination in 1980.
4. According to the petitioner, as stated in paragraphs 4 and 5 of the petition, he received his education at Hyderabad only due to the fact that the-e was specially arrangement for boarding and lodging in Qaimkhani Boarding House, exclusively meant for Qaimkhanies at Hyderabad otherwise it was impossible and impracticable for the petitioner to receive his education at Hyderabad as his father, the only breadeaner, is simply a Fitter in the Indus Jute Mills, Dhabeji.
5. Having passed the Inter-Science, Examination the petitioner applied for admission in Liaquat Medical College, Hyderabad for the session of 1981-82.
6. For the purposes of admission in 'Liaquat Medical College, he had to obtain Permanent Resident Certificate for which he applied to respondent No,2, but, as already stated above, the same was refused.
7. On behalf of respondent one Ashiq Ali son of Hussain, who is H.V.C. To the Commissioner, Hyderabad Division has filed an affidavit wherein he has not denied the above facts but has stated that during the enquiry proceedings by Sub-Divisional Magistrate, Mirpur Sakro at Gharo, the petitioner has stated that they were residing at Dhabeji alongwith their relative Muhammad Siddiq and he had further stated that he would permanently settle at Dhabeji after his father retires from service. From this alleged statement before Sub-Divisional Magistrate the deponent has concluded that neither the petitioner nor his father and other members of the family were residing at Dhabeji.
But he has specifically admitted that the petitioner got his primary and secondary education upto 8th Class from 1969 to 1975 at Dhabeji. He has however stated that the petitioner did not produce certificate of his education from 1st Apri1,1972 to 31st May,1975, either before Deputy Commissioner Thatta or before the Commissioner, Hyderabad Division.
8. The case of the petitioner before respondent No,? Was that he was residing in Indus Jute Mills Labour Colony, Dhabeji, Taluka Mirpur Sakro, District Thatta with his father since 1968 and his father had been granted domicile certificate from the District Thatta in 1980.
9. Respondent No,2 in the impugned order has ordered that on enquiry it was found that the applicant is residing temporarily with his father in Indus Jute Mills Labour Colony at Dhabeji on account of service of his father in Indus Jute Mill". Respondent No,2 has further stated in the order as follows: ' The perusal of the documents produced by the applicant shows that his father came in Pakistan in 1948 and settled at Jamesabad, District Tharparkar, where the applicant was born in 1962. This shows "that the applicant's father acquired permanent settlement in Jamesabad. According to his own statement he remained in Jamesabad, upto 1968. His plea that he has left Jamesabad and settled at Dhabeji appears incorrect inasmuch as that he himself has admitted in his statement before the Assistant Commissioner, Mirpur Sakro at Gharo that he and his father are residing with their relative Mr. Muhammad Sadik. He has further mentioned in his statement that they will permanently settle at Dhabeji after the retirement of his father from service. This shows that other family members of the applicant are not residing in Dhabeji. The perusal of Primary education certificate shows that the applicant had acquired primary education in Government Urdu Moddle School Dhabeji from 2nd June,1969 to 1st March,1972. Thereafter he acquired his secondary and college education from Hyderabad. This clearly indicates that the applicant had no permanent abode at Dhabeji as admitted by him."
' He has also observed that, no doubt, that father of the petitioner has been granted domicile certificate from District Thatta, but that was not relevant for the purpose of the grant of Permanent Resident Certificate and that for the purpose of Permanent Resident Certificate it is animus and intention which is to be weighed with scales whether or not any one has settled permanent at a particular place. From the above facts and reasons he concluded that the applicant had no permanent abode at Dhabeji and his father was residing there on account of service in Indus Jute Mill that they have permanent abode at Jamesabad. He, therefore, refused the certificate.
10. The following points were advanced in appeal before respondent No,1 on behalf of petitioner for grant of Permanent Resident Certificate.
"(i) That the appellant's case for grant of Permanent Resident Certificate of Thatta District falls under Rule 6(i) (a) of the Sind Permanent Residence Certificate Rules 1971
(ii) That the appellant's father has obtained domicile certificate of District Thatta in the year 1980.
(iii) That the appellant has acquired Primary and Middle Class Education from Dhabeji in Thatta District.
(iv) That the father of the appellant has his own residential house at Dhabeji and also a plot since last 10 years.
(v) That the father of the appellant is in service of Indus Jute Mills Dhabeji from the year 1969 and since then he is residing at Dhabeji alongwith his all family members.
"(vi) That the appellant was residing in Qaim Khani Boarding House at Hyderabad during his higher and Secondary Education."
11.(i) With regard to the first point, respondent No,1 observed that the petitioner to establish his eligibility to the grant of Permanent Residence Certificate, has to establish that he was born in any area forming a part of Sind and further that at the time of his birth his father was domiciled in Sind.
According to respondent No,1 the word any area forming a part of Sind" in rule 6(i) has been interpreted by the Supreme Court in Miss Maharunnisa Baloch v. Appellate Committee and others 1978 SCMR 439, to mean a District in which the birth and domicile is claimed. According to respondent No,1 since the petitioner was admittedly born at Jamesabad on 8th May, 1962, when his father was settled there and since the petitioner was neither born at District Thatta nor at the time of his birth his father was domiciled in District Thatta, therefore, his case was not covered by clause
(a) of sub-rule
(i) of Rule 6 of the Permanent Residence Certificate Rules, 1971 (hereinafter called the Rules).
(ii) As regards the second point, respondent No,1 stated the that domicile certificate of the petitioner's father is only a piece of evidence in support of the claim for the Permanent Residence Certificate for relevant district and it does not entitle his son to the Permanent Residence Certificate for that district for which the conditions are different and more stringent. In this regard he placed reliance on the above cited case of the Supreme Court.
(iii) With regard to the third point that the petitioner has acquired Primary and Middle Education at Dhabeji where he is residing since 1968, respondent No,1 observed that "the contention of the petitioner also does not carry any weight for the reason that certificates of Primary and middle classes produced by the petitioner show that he acquired Primary and Middle education (under fining is ours for emphasis) at Dhabeji only for three years from 2nd June,1969 to 1st June,1972. Thus, his Primary and Secondary schooling neither started in District Thatta nor it ended there. "He further states: "Thereafter, he acquired his Secondary and College education from 1972 onwards at Hyderabad. These facts totally demolish appellant's (Petitioner's) claim of continuous residing at Dhabeji."
(iv) As regards the claim of ownership of a residential house and a plot of land at Dhabeji by the father of the petitioner, respondent No,1 relied on Miss Mehrunisa Baloch v. Appellate Committee, Karachi and 2 others PLD 1978 Kar.214), to hold that the ownership of property is not' a proof of residence.
(v) Respondent No,1 has not at all dealt with the fifth point namely, that the father of the petitioner is in the Service of the Indus Jute Mill from the year 1969 and since then he is residing at Dhabeji alongwith his all family members.
(vi) With regard to the sixth point that the petitioner was residing in Qasim Khani Boarding House at Hyderabad during his secondary and college education respondent No,1 observed that the claim has not been supported by any 'admissible' evidence' either before respondent No,2 or before him.
He, therefore, rejected the appeal.
12. This has led to the filing of the present petition as stated hereinbefore.
13. We have heard Mr.Rao M.Shakir Naqshbandi learned counsel for the petitioner and Mr.M.I.Memon learned Additional Advocate-General, Sind, for the respondents.
14. Mr.Naqshbandi submitted that the orders of respondents Nos.1 and 2 are based on:
(i) misconception and misinterpretation of the Rules and the Supreme Court decision in Miss.
Mahar-unnisa Baloch v. Appellate Committee and others. 1978 SCMR 439;
(ii) misreading of evidence;
(iii) non-consideration of material facts and evidence.
14-A. In order to appreciate the first submission it may be necessary to reproduce Rules 3,4,5 and 6 of the Rules for convenience of future reference.
' A person desirous of obtaining a certificate of Permanent Residence under these rules, shall make an application in Form 'A' to these rules to the District Magistrate of the area where he is permanently residing. The application shall be accompanied by an affidavit in form B.
4. If the District Magistrate, on perusal of the application and affidavit, and after holding such enquiry as he deems necessary, is satisfied that the applicant is entitled to a certificate of permanent residence for the purpose of admission to an educational institution or recruitment to the Public Service, as the case may be, he shall issue to the applicant such a certificate.
5.(1) A certificate of Permanent Residence in Sind, for the purpose of.
(a) Admission to an educational institution shall be issued in Form 'C'; and
(b) recruitment to the Public Service shall be issued in Form '0'.
(2) The Certificate shall specify the District or other local area in Sind of which the holder of the certificate is a permanent resident.
6. No person shall be eligible for grant of a certificate in Form 'C' unless--
(i) he was born in any area forming a part of Sind and further-
(a) in the case of a person of legitimate birth, at the time of his birth, his father was domiciled in Sind, or if he was born after the death of his father, the latter, at the time of his death, was domiciled in Sind, or
(b) in the case of a person of illegitimate birth, his mother, at the time of his birth, was domiciled in Sind; or
(ii) in the case of a person who was not born in Sind-
(a) his parents are domiciled in Sind, and have resided in Sind, and further has either resided in Sind or has been educated in Sind for a period of not less than 3 years; or
(iii) his father or mother is in the service of the Government of Sind and has put in not less than one year service as such."
15. It will be seen that rule 4 provides that if a District Magistrate, on perusal of the application and affidavit, and after holding such enquiry as he deems necessary, is satisfied that the applicant is entitled to a certificate of permanent residence for the purpose of admission to an educational institution etc. He shall issue to the applicant such certificate. Under this rule the satisfaction of the District Magistrate has to be based on consideration of the facts stated in the application and affidavit and on such enquiry as the District Magistrate deems necessary. It is, therefore clear that the satisfaction of the District) Magistrate has to be objective based on the application and affidavit and the enquiry if any, and not subjective.
(ii) Rule 5 provides that the certificate has to be to the effect that the applicant is a permanent residence of the District or the area or the other local area in Sind for which he has applied for permanent residence certificate.
(iii) Under rule 6 person is considered to be eligible for grant of a certificate for admission inter alia to a medical college, if he is born in any area forming a part of Sind and further in case of person of legitimate birth (which the petitioner is) at the time of his birth his father was domiciled in Sind.
' It is, therefore, obvious by reading the provisions of rules 3 to 6 together, that an applicant should fulfil, the following conditions: (1)- He should be a premanent resident of the District for which he has applied for the Permanent Residence Certificate.
(2) He should be born in any area forming part of Sind.
(3) If he is a person of legitimate birth at the time of his birth his father should be domiciled in Sind.
16. Examining the facts of the present case in the light of the above conditions, we find that the petitioner's father migrated to Jamesabad, District Sanghar in 1948 and undisputedly resided there upto 1968 when he shifted to Dhabeji, District Thatta. It is also an admitted fact that the petitioner was born in 1962 at Jamesabad which place is in Sind. It is, therefore, established that the petitioner was born in an area forming a part of Sind and his father was domiciled in Sind at the time of birth of the petitioner. Therefore, the last two conditions mentioned above have been satisfactorily fulfilled.
17. Dorab Patel, J. Who wrote the opinion of the Supreme Court in Miss. Maharunnisa Baloch's case (supra) after examining rules 2,3,4,6 and 7 observed at page 443 of the report as follows:- "They curtail and are intended to curtial the powers conferred on District Magistrate under rule 4, and as even of a person is a permanent resident of a district of Sind, he is not entitled to a Permanent Residence Certificate unless he can bring his case under these rules. But as the converse does not follow, the petitioner was not entitled to a Permanent Residence Certificate solely on the of her farther's domicile in Sind or on the ground that having come of age, she is now domiciled in Sind."
' It was further observed at page 444 of the report as follows:- "It is also not irrelevant to point out here that in view of rule 5 a Permanent Residence Certificate 'shall specify the district or other local area in Sind of which the holder of the certificate is a permanent resident', and further even if a person can bring his claim under rule, 6, he is not entitled to a Permanent Residence Certificate in view of rule 7 unless he is a citizen of Pakistan. Additionally, the consequences of accepting Mr.M.I.Memon's submission. Would be startling. If learned Counsel's submission is accepted, every person domiciled in Sind would be entitled to apply for a Permanent Residence Certificate from any district of Sind. As rightly observed by the learned Judges of the Sind High Court, this would defeat the very object of the requirement that a Permanent Residence Certificate should be for a district of the Province, and it would also reduce the said Rules to absurdity. But absurdity is not to be attributed to the rule maker. Accordingly, in the circumstances discussed, we hold that rule 6 merely curtails the powers conferred on District Magistrate under rule 4, and it does not confer on District Magistrates any independent power to issue Permanent Residence Certificates."
' This case nowhere lays down that the father of the petitioner should have been, at the time of the birth of the petitioner domiciled in District Thatta from which the petitioner applied for Permanent Residence Certificate. What is required under rules 6(i)(a) is that the father of the petitioner at the time of the birth of the petitioner was domiciled in Sind. It is a clear case of misreading of the judgment of the Supreme Court for we have already quoted the observation of the learned Judges of the Supreme Court. Therefore, the grievance of the learned counsel for the petitioner that the rules and the judgment of the Supreme Court have been misconstrued and misinterpreted to say the least, is not without substance.
18. Now, therefore, there remains to be considered the question whether the first condition has also been fulfilled or not.
19. It is in the order of respondent No,2 itself that on enquiry he found that the applicant is residing temporarily with his father in India Jute Mill Labour Colony, Dhabeji, District Thatta, on account of service of his father in Indus Jute Mills. On what basis respondent No,1 has held that the petitioner is residing 'temporarily' with his father is not stated in the order. Nevertheless it is an admitted fact that the petitioner has been residing with his father at Dhabeji since he shifted there in 1968. It is also an admitted fact that the petitioner got his primary and middle education from 1969 to 1975, at Dhabeji, Thatta. The observations of respondent No,1 in this regard have been qouted by us in paragraphs (ii), (iii) hereof. Before respondent No,1, certificate of Primary and Middle classes were produced. The first certificate was of the primary education, a copy whereof is annexed to the petition as Annexure 'G' which shows that the petitioner got education in Government Urdu School, Pump House, Dhabeji Thatta from 2nd June,1969 to 1st March,1972, and the second certificate is of passing of VIIIth Class from the Government Boys Middle School, Dhabeji, Thatta, a copy whereof is Annexed to the petition marked as Annexure "H", which shows that he got education in that school from 1st April,1972 to 31st May,1975. The observations of respondent No,1 quoted hereinbefore and underlined by us for emphasis, that the certificates of the Primary and Middle classes, produced by the petitioner show that he acquired Primary and Middle education at Dhabeji only for three years from 2nd June,1969 to 1st June,1972, to say the least are based on mis-reading of the two certificates, for the first certificate is for getting Primary education from 1969 to 1972 and the second Certificate is for getting education from 1972 to 1975.
20. It was submitted by the learned Additional Advocate-General, that second Certificate was not produced before the respondent No,1 and, therefore, the mistake has occurred but this is not correct for respondent No,1 in his order has used the word "Certificates" which is further explained by the words "Primary and Middle Classes" and which is followed by a verb "show" which is in agreement with the word "certificates" used in plural. Further, if the claim that second certificate was not produced before respondent No,1 is correct, then on what basis he has stated in the impugned order that the petitioner acquired middle education at Dhabeji. The conclusion of respondent No,1 that "Thus his (petitioner's) primary and middle schooling neither started in Thatta District nor ended there" is also not wholly correct.
21. It is also an admitted fact that the petitioner got College Education at Hyderabad, for the reason that he got the facility of boarding and lodging in Qaim Khani Boarding House, which was exclusively meant for Qaimkhanies as his father being a fitter and consequently a poor man could not provide higher education to the petitioner.
22. We may now, have to consider what is meant by the expression "permanent residence". The expression has not been defined in the Rules, therefore, it has to be considered in the light of its ordinary meaning or the judicial pronouncements.
23. It came up for consideration in Taj Muhammad v. Commissioner, Hyderabad Division and 7 others 1979 CLC 237, wherein, while considering the meaning of the word "residence" it was observed by Zafar Hussain Mirza, J. Who wrote the opinion of the Court, as follows:- "7. It is, however, quite clear that "domicile" and "residence" in the context of the present rules are not words of interchangeable meaning. It has been held that "residence" implies some degree of permanence, although the word "reside" may mean very different things, in different contexts but applied to natural persons as distinguised from juristic persons like corporations, residence depends on personal facts. Place of birth, nationality and allegiance are not the tests nor is domicile. Voluntary choice and habitual and repeated actions are mainly material, such as making home, keeping an establishment, pursuing a settled object in or at a particular place."
' Reference was made to a passage from Halsbury's Laws of England, 3rd, Edn. Vol. XX, p.392, which reads as follows:- "The place of residence of an individual is determined , not by the situation of some business or property which he is carrying on or owns but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes, he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other place of abode."
' So far as the term or word permanent' is concerned according to Black's Law Dictionary it means, fixed, continuing, lasting, stable, enduring, abiding, not subject to change. Generally opposed in law to "temporary," but not always meaning "perpetual".
This term was also considered in Henriksen (Inspector of Taxes) v. Garfion Hotel, Limited (1942) 2 K B 184, wherein DU PARCQ, L J relied on a Scottish Judgment wherein Lord Clyde held 'permanent' is a relative term and is not synonymous with "everlasting."
24. Examining the facts of this case in the light of above-mentioned judicial pronouncements we cannot but reach the conclusion that the petitioner was permanently settled at Dhabeji, District Thatta where his father is employed and has his residence and with whom the petitioner has been residing since when petitioner's father shifted from Jamesabad, District Tharparkar to Dhabeji, District Thatta and where the petitioner got his primary and middle education. We are unable to find any cogent evidence. Nor has any been referred to by the learned Additional Advocate- C General in support of the finding that the petitioner was temporarily residing at Dhabji, District Thatta. Such a finding could have been given only if the petitioner or his father has his permanent residence elsewhere. No doubt, the petitioner had stayed for some time at Hyderabad for getting college education to avail the facility of boarding and lodging in Khaimkhani's Boarding House but that was purely temporary. The finding is, therefore, based on no evidence. Some support can also be drawn from the reasoning of Zaffar Hussain Mirza, J. In Taj Muhammad v. Commissioner Hyderabad Division and 7 others 1979 CLC 237 who in paragraph 10 at pages 322 and 323 of the report observed as follows:- "10 Having regard to the above it is quite clear to us that Mr.Aftab Ahmed Akhund, Advocate, the father of respondent Noor Ahmed hails from a family which is permanently settled at Chuhar Jamali in the Thatta District which is very strong presumptive evidence of the fact that he is a permanent resident of that district unless this evidence is rebutted by the petitioner to show that he has abandoned any intention to retain his permanent abode there. The fact that he is residing at Hyderabad is clearly referable to his profession as a lawyer which obviously he cannot purse at Chuhar Jamali. Perhaps the presumption could have been rebutted if it had been shown that none of the family members remained behind and that the family had disposed of its property there.
However, there appears to be evidence that the father of the said respondent is maintaining house at his native place which alongwith other circumstances mentioned above, clearly supports the plea that the family has its permanent abode in Thatta District. We are, therefore, not inclined to disturb the order of the learned Commissioner in respect of respondent Noor Ahmad which appears to be sustainable on the material available on the record of the Commissioner."
25. It is admitted fact that the petitioner's father was granted Domicile Certificate from District Thatta. No doubt that the petitioner could not get Permanent Residence Certificate on the basis of domicile of his father but it was a piece of evidence in support of petitioner's claim for his permanent residence in District Thatta.
' In Miss Maharunnisa Baloch's case (supra), the Supreme Court had observed that the Certificate of domicile of the Petitioner's father was a piece of evidence in support of the claim of the petitioner for Permanent Residence Certificate in the district for which she had applied.
26. Respondent No,2 has relied on alleged statement (which has not been produced before us) made before the Assistant Commissioner, Mirpur Sakro at Gharo that he and his father are residing with their relative Muhammad Siddik and that they will permanently settle at Dhabeji after retirement of his father from service at Dhabeji. From this statement he has concluded that other members of the applicant are not residing at Dhabeji, District Thatta, but firstly, it is not stated who were the other members of the family and secondly, the residence of the other members was not the material consideration in the presence of the fact that the petitioner and his father have been residing at Dhabeji District Thatta since 1968. Petitioner's statement that after the retirement of his father from service, they will permanently settle at Dhabeji can only be interpreted as showing the intention to continue to reside permanently at Dhabeji, Thatta, where the father of the petitioner has acquired a plot of land and a house which fact, though not evidence of permanent residence but is further indicative of the intention that he would continue to reside there even after retirement from service which means permanently.
' Indeed, we may mention that Mr. Muhammad Ibrahim Memon, Additional Advocate-General, Sind had fairly and rightly conceded at the very beginning of hearing that the impugned orders are not in accordance with law. However, we have considered it proper to examine the case in great detail and not to base our judgment on the concession made by the learned Additional Advocate- General.
We would, therefore, declare that the two orders impugned in this petition are without lawful authority, and therefore, of no legal effect and direct respondent No,2 to issue Permanent Residence Certificate to the petitioner as applied for forthwith. We also direct respondent No,3 to consider the application of the petitioner in accordance with the Rules of Admission.
' We make no order as to costs.