MIAN NAZIR AKHTAR, J.- This constitutional petition has been filed to assail the order dated 24.2.1992, passed by the District Magistrate, D.G. Khan, cancelling petitioner's domicile certificate pertaining to the tribal area, D.G. Khan.
2. Brief facts leading to this constitutional petition are that the petitioner passed his F.Sc.
Examination obtaining 771 marks and applied for grant of admission in M.B.B.S, class (1991-92) as against the special seats allocated for the Tribal Areas of D.G. Khan. The Principal of King Edward Medical College, respondent No.3 herein, sent the certificate for verification to the District Magistrate, D.G. Khan. The application was accompanied by a domicile certificate from petitioner of the tribal area, D.G. Khan. In the meanwhile, Abdur Rehman, respondent No.4 made an application before the District Magistrate for cancellation of the petitioner's domicile certificate. The District Magistrate cancelled the petitioner's domicile certificate vide his order dated 24.2.1992.
3. During the pendency of this petition, the petitioner was directed by this Court to appear before the District Magistrate on 11.3.1992 and the District Magistrate was also directed to hear the petitioner, to give him an opportunity to produce evidence and then record his findings regarding the genuineness or otherwise of the domicile certificate. The District Magistrate heard the petitioner and passed a fresh order on 29.3.1992, affirming his previous order.
4. The petitioner's learned counsel raised the following points:-
(i) The District Magistrate acting as a delegatee of the Central Government enjoys the power to issue or refuse to issue a domicile certificate but had no jurisdiction to cancel the same on any ground whatsoever.
(ii) After issuance of the certificate, the act done by the District Magistrate becomes that of the Central Government by virtue of provisions of Rule 29 of the Pakistan Citizenship Rules, 1952. Only the Federal Government was competent to recall, cancel or rescind the order for grant of domicile certificate.
(iii) At any rale the order was passed by the District Magistrate without affording an opportunity of being heard to the petitioner and was, therefore, nullity in the eye of law. Subsequent hearing granted to the petitioner during the pendency of writ petition was futile because the District Magistrate had heard the petitioner with almost fixed mind to uphold his earlier order.
(iv) The District Magistrates in Sindh and Baluchistan enjoy powers under the Rules to cancel domicile or permanent residence certificates on the ground of fraud and mis-representation but there was no such power in the rules applicable in the Province of the Punjab.
(v) The domicile certificate could not be cancelled merely because some personal particulars of the petitioner were found to be incorrect by the District Magistrate. The matter regarding the petitioner's residence in the tribal areas could have been probed into by the college authorities and they could have refused admission after ascertaining that the petitioner was not a permanent resident of the tribal areas.
(vi) On merits it was proved through reliable documentary evidence that the petitioner was not a permanent resident of the tribal areas. His fore-fathers owned land in village Pahi, Shaheed Haft Kat and Zinda Pir, annexures A, A/l, A/2, and A/3. The petitioner's grand-father Kalu owned landed property along with the house/residential Kotha which was gifted to Sikandar Khan father of the petitioner in the year 1973. The said property still stands in the name of petitioner's father and being managed by him and the other family members. The petitioner's fore-fathers were burred in village Pahi. The petitioner had to join a school in the settled area of D.G. Khan as a necessity because there was no school in the tribal area. For facility of communication he had given the postal address of P.S. Shah Sadar Din, Post Shadan Lund which caters to the need of the settled area as well as the adjacent tribal area covering Mauza Pahi etc. In support of his contentions petitioner's learned counsel placed reliance on the following judgments:
1. Shahbaz Khan Vs. Govt, of Baluchistan through Secretary, Department of Education, Quetta and 5 others (PLD 1977 Quetta 22).
2. Miss Shakila Akhtar Bajwa Vs. Selection Committee, Medical Colleges, Baluchistan, Quetta and 2 others (PLD 1986 Quetta 126).
3. Khalid Sher Vs. Principal and Chairman, Academic Council, Selection Board and others (PLD 1987 Karachi 255).
4. Miss Noor Fatima Vs. Alia Mueed and 4 others (PLD 1988 Lahore 437).
5. Miss Naheed Dost Muhammad Vs. Deputy Commissioner, Peshawar and 2 others (1984 CLC 139).
6. Ahmad Hassan Vs. Abdullah and 5 others (PLD 1992 Peshawar 1), and unreported judgment in the case of.
7. Faizullah Khan Vs. District Magistrate D.G. Khan (W.P.No 1285/75) decided on 24.6.1976.
5. On the other hand the learned Addl: Advocate General urged that the District Magistrate being competent to issue the certificate was equally competent to recall rescind or amend it and the act of cancellation done by him would also be deemed to be the act of the Federal Government. He added that the petitioner actually wanted to get a permanent residence certificate in order to obtain admission in the Nishtar Medical College, Multan against seats reserved for tribal areas.
Therefore, the argument that the District Magistrate could not cancel the petitioner's domicile certificate because the petitioner was a born Pakistani was not relevant. He submits that the personal particulars incorporated in the petitioner's application for grant of a domicile certificate, particularly those relating to his place of birth and permanent residence, if found to be incorrect could result in cancellation of the certificate by the District Magistrate. In support of his contention he places reliance on the cases of:-
1. Mr. Muhammad Yar Khan Vs. Deputy Commissioner-cum-Political Agent Loralai (1980 SCMR 456) and
2. Mir Muhammad Abrahim Vs. District Magistrate Kalat and others (1989 SCMR 185).
The learned counsel for respondent No.4 generally adopts the arguments raised by the learned Addl: Advocate General and adds that atleast one year's residence at a particular place before the date of application for domicile certificate was essential.
6. The issue about the competence of the District Magistrate to cancel the domicile/permanent residence certificate granted by him under Rule 23 of the Pakistan Citizenship Rules, 1952, is clinched by the pronouncement of the Hon'ble Supreme Court in the case of Muhammad Yar Khan relied upon by the learned Addl: Advocate General. In the said precedent it was held that 'domicile' and the 'permanent residence' are two distinct and separate concepts and that the application for grant of domicile certificate (meant for securing admission in an educational institution) has to be construed as one for grant of a permanent residence certificate. It was held:- ...... The fact remains that the object for which the petitioner had sought the grant of domicile certificate was to facilitate the admission of his son to the said institution. In this view of the matter we have not been able to agree with the contention of the learned counsel that the District Magistrate had no jurisdiction to cancel so-called domicile certificate issued by him to the petitioner"
It may be mentioned here that at one stage the question whether the District Magistrate was competent to cancel the domicile certificate granted by him was considered by the Ministry of Interior Govt, of Pakistan in consultation with the Law Division and the Ministry issued letter No. 4/98/80-CITZ, dated 22.4.1984 which is reproduced below for ready reference:- "I am directed to say that presently cases for cancellation of domicile certificates obtained by fraud, false representation or concealment of any material fact are being referred to the Federal government by the provincial Governments for action under rule 30 of the Pakistan Citizenship Rules, 1932. On a reference made by the Kashmir Affairs and Northern Affairs Division on the question as to whether a domicile certificate issued by a District Magistrate can only be cancelled by. The Federal Government or the District Magistrate is himself competent to cancel it, Law Division have held that the power of cancellation does not lie only with the Federal Government but the District Magistrate in his capacity having the authority to issue a domicile certificate is competent to cancel it.
2. I am, therefore, to request that necessary instructions may please be issued, under intimation to this Ministry, to all the District Magistrates under your administrative control for guidance".
Being the authority competent to issue the domicile certificate, the District Magistrate could competently vary, rescind or cancel domicile certificate by virtue of the provisions of section 21 of the General Clauses Act, 1956, on being satisfied that it was obtained through fraud or mis- representation. Under the provisions of rule 29 of the Rules all things done by a Magistrate, District Magistrate or the Provincial Government are deemed to have been by or on behalf of the Central Government. Therefore, both the acts of grant and subsequent cancellation of certificate are to be deemed to be the acts of the Central Government. The Central Government also enjoys independent power to entertain an application, appeal, review or revision petition to cancel, suspend, invalidate, extend or revise any certificate issued under the Rules, as laid down under rule 30 of the Rules. The argument that the petitioner being a born Pakistani whether resident of settled or tribal areas and is entitled to grant of a domicile certificate is not relevant in the present case because the petitioner actually wanted to have a permanent residence certificate to entitle him to obtain admission in the Nishtar Medical College against a seat reserved for candidates of the tribal areas. On Court's query the petitioner's learned counsel frankly stated that the petitioner did not need a certificate showing that he was domiciled in Pakistan but wanted a certificate showing him to be permanent resident of tribal areas. After having granted domicile certificate, which on the facts of the present case is to be construed as one for permanent residence the District Magistrate was empowered to cancel it but before doing so he was bound to grant a reasonable opportunity of being heard to the petitioner.
7. Admittedly the petitioner was not heard when the certificate was originally cancelled by the District Magistrate. Subsequently the petitioner was heard during the pendency of the writ petition but the hearing granted a that stage could not be termed as free, independent and impartial hearing because prior to it the District Magistrate had expressed his mind against the petitioner and was psychologically prone to stick to the position already taken by him. Looked at from this angle, the impugned order passed by the District Magistrate deserves to be struck down. Even on merits, I find that the learned District Magistrate has ignored material evidence and drawn incorrect inferences from the material on the record. The petitioner's fore-fathers admittedly belonged to the tribal areas of D.G.Khan, owned property and after death were burried there. The.
Petitioner's father Sikandar Khan owns landed property in village Pahi including a house/residential Kotha. His temporary residence in the adjacent settled areas for purposes of better education, could not disentitle him to grant of permanent residence certificate from the tribal areas. The name of the petitioner's father also appeared in the voters' list of 1986-87 from the electoral area of Pahi, Distt: D.G. Khan. Although this entry was made after the grant of domicile certificate to the petitioner, yet its value is not diminished because no body objected to the said entry. Therefore, the District Magistrate fell in error in concluding that the petitioner was not a permanent resident of Mauza Pahi; B.M.P. Post Mamdani within the tribal area and wrongly cancelled the domicile certificate granted to the petitioner on 17.8.1991.
8. For the foregoing discussion, I accept this petition and declare the impugned order dated 24.2.1992 passed by the District Magistrate, respondent No. 1 to be without lawful authority and of no legal effect.
9. Resultantly the domicile certificate originally granted by the District Magistrate to the petitioner is restored and he is held entitled to grant of admission in the Medical College against a seat reserved for tribal areas, if otherwise found to be eligible. The respondent No.3 is directed to act accordingly. The parties are left to bear their own costs.