' This order shall dispose of Writ Petition No, 698 of 1993 (Mst. Saleha Ibtisam v. Chairman, Admission Committee etc.) and Writ Petition No,1113/1993 (Mst. Iram Asghar v. Additional Deputy Commissioner and another) as common questions of law and facts are involved therein.
2. Saleha I isam permanent resident of village Dhoke Qazian, Tehsil Kahuta, District Rawalpindi qualified Intermediate Examination held in April-May 1992, securing 764 out of 1100 Marks. She applied for admission of Rawalpindi Medical College, Rawalpindi claiming her entitlement against one of the two seats specifically reserved for residents of Tehsil Kahuta, District Rawalpindi.
3. Iram Asghar who originally claimed to be resident of Mohanpura, Rawalpindi got a Domicile Certificate No, 6273/DPC dated 21-1-1991 issued by District Magistrate, Rawalpindi also applied for admission to Medical College, Rawalpindi. However, later she moved an application on 24-6-1992 to the District Magistrate, Rawalpindi for change of her address in the Domicile Certificate. The reason given was that she (Iram Asghar) resided with her maternal uncle at Kahuta. The application fructified and she got a duplicate Domicile Certificate, and being placed somewhat higher than Saleha Ibtisam on the merit list, got admission in the Medical College, Rawalpindi against Under-Developed District Seat reserved for residents of Kahuta.
4. A disillusioned Saleha Ibtisam has approached this Court seeking: (i) That the order changing the address of Mst. Iram Asghar in her Domicile Certificate be declared as without lawful authority;
(ii) Admission granted to her on the basis of duplicate Domicile Certificate be cancelled;
(iii) And the Chairman, Admission Committee be directed to admit the petitioner to the Medical College.
The petition was admitted to regular hearing on 10-114993.
5. One Aamir Nadim resident of village Bhakral Chowk Pindori, Tehsil Kahuta, District Rawalpindi submitted an application to Commissioner, Rawalpindi Division on 3-1-1993' that ham Asghar was not resident of E/203,. Kahuta and had obtained the duplicate Domicile Certificate by misrepresentation and fraud and that the same was liable to be cancelled. Additional Deputy Commissioner (General), Rawalpindi directed on 11-2-1993 to issue a notice to Tram Asghar, for cancellation of her certificate showing her domicile to be Kahuta. After hearing the parties, the A.D.C. (G) concluded that Tram Asghar was not resident of Kahuta and cancelled her certificate by order dated 14-10-1993. Iram Asghar filed W.P. No, 1113 of 1993 impugning the said order as being illegal and capricious. The petition was admitted to regular hearing on 10-11-1993.
6. Both the writ petitions have been heard together. Learned counsel appearing for Saleha Ibtisam has contended that Iram Asghar was not domiciled in Kahuta and originally she had herself obtained Domicile Certificate showing her domicile at Rawalpindi but later seeing that she would not get admission on the basis of Rawalpindi domicile, she fraudulently got a duplicate certificate showing her as permanent resident of Kahuta and thus obtained admission against an under- developed District's seat reserved for permanent residents of Tehsil Kahuta wrongfully depriving the petitioner of her legitimate rights. It was submitted that Iram Asghar deserved to be excluded from the list of eligible candidates and Saleha Ibtisam was entitled to get admission in the Medical College on the basis of permanent domicile of Kahuta. It was also submitted that the domicile certificate had been cancelled and was done rightly so. Reliance was placed on cases of M ajid Latif v. Government of Balochistan (1989 SCMR 191), Raja Aamir Nasim v. Federation of Pakistan (1992 MLD 126), Muhammad Ashfaq Khan v. Chairman, Nomination Board (PLD 1979 AJK 43) and Muhammad Yar Khan v. D.C. Loralai (1980 SCMR 456).
7. Learned counsel for Iram Asghar submitted that the first Domicile Certificate was erroneously got issued by Iram Asghar and in fact her family had sold the Mohanpura House quite sometime back and had now shifted to Islamabad and that Iram Asghar was residing with her maternal uncle at Kahuta and the domicile certificate issued to her was wrongly cancelled. It was further contended that Article 15 of the Constitution permits a person to take up residence anywhere and at any time in Pakistan and would be deemed to be permanent resident of place of domicile of his choice.
According to learned counsel, regardless of the fact that Iram Asghar's family resided in Islamabad, she would be deemed to be domiciled in Kahuta, Reliance was placed on Saeed Amer v. Principal, Khyber Medical College, Peshawar (PLD 1982 Pesh.5), Javed Fazal v. Javed Iqbal etc. (1991 SCMR 2011), Miss Naheed Dost Muhammad v. Deputy Commissioner (1984 CLC 3139) and Ghulam Yasin and another v. District Magistrate, Kalat and 5 others (PLD 1980 Quetta 23).
8. Relevant Rules of Prospectus of the Government Medical Colleges in the Punjab read as under: Rule 8. Under Developed District Seats This distribution of total number of 78 seats under this category shall be as given hereunder.
Various Districts tagged to different medical colleges are as indicated against each: {{TABLE}} Rawalpindi Medical College Rawalpindi Seats Chakwai = 6 Jhelum = 4 Rawalpindi (Murree, Kahuta and Gujjar Khan Tehsil only) = 6 RULE 9. These Seats will be in addition to any candidate being admitted on general merit from these districts. The candidates from each of the above 15 Districts are not admitted on general merit will compete within the District for these reserved seats. This is subject to the condition that the candidate has secured at least 50 per cent, marks in F.Sc. (Pre-Medical).
' A perusal of these rules show that two seats were reserved for applicants domiciled in Tehsil Kahuta, it being one of the three Tehsils of District Rawalpindi to which six seats were allocated. This allocation has a special purpose behind it which is to compensate students belonging to underdeveloped areas of the District for the disadvantage in schooling or education which handicaps them in competing with students of developed areas. Keeping the purpose of reservations of seats for students/applicants of underdeveloped areas in view, it can rightly be concluded that the seats have been reserved for off spring-of-the soil or those who permanently reside in the under-developed area concerned. The question, therefore, which needs answer is whether Iram Asghar was permanently domiciled in Tehsil Kahuta entitling her admission to Medical College, Rawalpindi against the reserved seats or not.
9. "Domicile according to Black's Law Dictionary: "The place where the man has his true, fixed, and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning. Smith v. Smith, 206 Pa. Super.
310, 313 A.2d 94. The permanent residence of a person or the place to which he intends to return even though he may actually reside elsewhere. A person may have more than one residence but only one domicile. The legal domicile of a person is important since it, rather than the actual residence, often controls the jurisdiction of the taxing authorities and determines where a person may exercise the privilege of voting and other legal rights and privileges. The established, fixed, permanent, or ordinary dwelling place or place of residence of a person, as distinguished from his temporary and transient, though actual, place of residence. It is his legal residence, as distinguished from his temporary place of abode; or his home, as distinguished from a place to which business or pleasure may temporarily call him. `Residence' signifies living in particular locality while "domicile" means living in that locality with intent to make it a fixed and permanent home."
' Writers on Private International Law agree that it is impossible to lay down an absolute definition of 'domicile'. The simplest definition of this expression has been given by Chitty, J. In `Craignish v.
Craignish v. Craignish,' (1892) 3 Ch. 180, at P. 192 (A), wherein the learned Judge said: "That place is properly the domicile of a person in which his habitation is fixed without any present intention of removing therefrom." (Quoted in AIR 1955 SC 36).
' Two elements are necessary under the English Law for the existence of a domicile (1) residence of a particular kind, and (2) an intention of a particular kind. There must be both the factum and animus. The residence need not be continuous but it must be definite, not purely fleeting: "`Domicile'...Is an idea of law. It is the relation which the law creates between an individual and a particular locality or country": See the observations of Lord Westbury in 'Bell v. Mrs. Kennedy' (1868)
LR 1 HL SC & Div. 307 (B). In the words of Homes, J. In Bergner and Engel Brewing Co. v. Dreyfus' (1898)
172 Mass 154 (C): ' What the law means by domicile is one technically pre-eminent headquarters, which as a result either of fact or of fiction every person is compelled to have in order that by aid of it certain rights and duties which have been attached to it by the law may be determined'."
' There is distinction between domicile anal nationality. This was pointed out by Lords Westbury in `Udny v. Udny' (1869) LR 1 SC & Div. 441 (D) where at p. 457 he observed: "The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions; one by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another, by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual and may be quite different from his political status.
' The political status may depend on different laws in different countries, whereas the civil status is governed universally by one single principle, namely that of domicile, which is the criterion established by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy, or intestacy, must depend.
' It is settled principle that no man shall be without a domicile and to secure this result the law attributes to every individual as soon as he is born the Domicile of his father, if the child be legitimate, and the domicile of the mother if illegitimate. This has been called the domicile of origin, and is involuntary.
' Other domiciles, including domicile by operation of law, as on marriage, are domicile of choice...Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time...There must be a residence freely chosen,....And it must be a residence fixed for a limited period or particular purpose, but general and indefinite in its further contemplation.
' It is true that residence originally temporary, or intended for a limited period may afterwards become general and unlimited and in such a case so soon as the change of purpose, or animus manendi, can be inferred the fact of domicile is established". (Per Lord Westbury in `Udny v. Udny (D)', pp. 457, 458), see also R. 7 at p.89 in Dicey's Conflict of Laws, 1949 Edn."
' In para. 44 it is stated: "In a strict and legal sense that is properly the domicile of a person where he has his true, fixed, permanent home and principal establishment, and to which whenever he is absent, he has the intention of returning". See para. 41 in Story's Commentaries on the Conflict to Laws, 8th Edition.
"Two things, then, must concur to constitute a domicile. First, residence, and secondly the intention of making it the home of the party. There must be the fact and the intent...It is not the mere act of inhabitancy in a place, which makes it the domicile, but it is the fact coupled with the intention of remaining there, animomanendi". (The quotation taken from Radhabai Mohandas, Complainant v.
State of Bombay AIR 1955 Bombay 439).
Domicile and residence are two different things as observed in case of Muhammad Yar Khan v.
Deputy Commissioner, Loralai (1980 SCMR 456). A person may have a permanent domicile at one place and temporary residence at another place. It also follows that a person can change a domicile also and aquire a fresh domicile which is called a domicile of choice. But it may be pointed out that where a person acquires a domicile of choice, burden of proving the same is on a person who asserts it and normally considerable evidence would be required to prove such an intention or such a factum.
10. It is settled proposition of Private International Law that a minor follows the domicile of his parents. In our society this principle can be extended and stated that the children of dependants normally follows the domicile of their parents until they grow up and then may' acquire a new'
Domicile by operation of law as on being married or they may acquire domicile of their choice by settling permanently at a place other than their parents' domicile. But where a person is resident at a place in connection with his employment or other vocation for a definite period of time and not indefinitely, this domicile shall not be permanent domicile but only for a special purpose. In the case in hand Iram Asghar lived with her parents and according to the father's version she studied at Rawalpindi up to class 7th and thereafter she studied in Islamabad. The fair conclusion would be that she was originally domiciled at Rawalpindi but later was domiciled at Islamabad. The circumstances in which she obtained domicile of Kahuta would tend to show that this was for a special purpose only and that was to get admission against a seat reserved for permanently domiciled residents of Kahuta. The contention of the learned counsel that Article 15 allowed her to take residence of her choice at any time is no doubt not without substance but here the question is not of residence but that of a permanent domicile. The claim of Iram Asghar that when she obtained a duplicate domicile certificate she was in fact domiciled in Kahuta, had to be proved beyond any shadow of doubt. The inquiry report has concluded that she was not domiciled in Kahuta to which finding learned counsel has objected on the ground that the order of ADC (G), was quite sketchy but the perusal of inquiry report and material placed with it, casts considerable doubt on the version of Iram Asghar. She has shown herself to be resident of House No,E-203 but according to record Ch. Abdul Rashid was resident at that house whereas maternal uncle of Iram Asghar with whom she claims to be residing was owner of plot No,203 and not house No,E-203. The statement of witnesses before Tehsildar Kahuta were also ambivalent statements. As such the order of ADC (G), Rawalpindi cancelling duplicate domicile certificate issued to Iram Asghar was quite justified. In case of Ishfaq Khan v. Chairman, Nomination Board AJ&K (PLD 1979 Azad J&K 43) a certificate issued on the basis of domicile of choice was cancelled in similar circumstances. In case of Raja Aamer Nasim v. Federation of Pakistan (1992 MLD 126) it was held that a person born at a particular place is deemed to be domiciled there unless it is shown that he with the intention of abandoning the place of domicile left the same. Tram Asghar, therefore, would be deemed to be domiciled at Rawalpindi where her parents resided or she at the most can be deemed to be resident of Islamabad and not of Kahuta under any circumstances, because in the case of a dependent his domicile is the same as that of his parents and changes with the domicile of a person to whom he/she is, as regards domicile, legally dependent. Iram Asghar has nowhere shown that she was not dependent upon her parents and was as a matter of fact dependent upon her maternal uncle. The statement of the father shows that they have been educating her throughout her life. She lived with them and obviously was dependent on them. Under the circumstances it is held that Iram Asghar was not previously domiciled at Kahuta. She obtained the certificate only for special purpose of getting admission in the medical college and had thus usurped the right of those who belonged to Kahuta. The case-law relied upon by the learned counsel for Iram Asghar is not of any help to her. In case of Ghulam Yasin and another v. District Magistrate, Kalat and 5 others (PLD 1980 Quetta 23) and case of Saeed Aamer v. Principal, Khyber Medical College, Peshawar (PLD 1982 Pesh. 5) it was held that domicile certificate cannot be cancelled beyond the back of person. In this case she was given adequate opportunity of being heard and her certificate was cancelled after all the legal requirements were fulfilled.
11. Saleha Ibtisam is permanently domiciled in Kahuta. She was entitled to be admitted to medical college but was wrongly deprived by Iram Asghar. As such the petition filed by her is accepted and the Chairman, Admission Committee is directed to accommodate her in the next session of the medical college.
12. Under Clause 17 (d) of the Appendex-I of the Application for Admission to the Medical. College, the applicant is required to solemnly declare that the particulars given in the application are true and if the statement is found to be wrong, the applicant is liable to be expelled from the college.
Instruction 5 (v) reads as "Domicile Certificate of the Deputy Commissioner concerned. Domicile Certificate once submitted with the application cannot be changed and shall be considered as final, Any candidate found using domicile of more than one place will be disqualified for admission in a Medical College." Rule 19-A of the Prospectus of the Government Medical Colleges in the Punjab provides as under: "Such candidates whose particulars, makes, certificates or any other documents submitted with the admission form are found to be incorrect or wrong in any way, or whose authentication is doubtful, will be struck off the College rolls, even if they have been admitted. A student can be removed from the course of his study if incorrect or wrong data have been submitted by such a student, which formed the basis of his admission in the medical college, at the time of admission."
The above position makes it clear that an applicant could have used only one domicile certificate.
Iram Asghar had used a second domicile certificate which stands cancelled and as such was not entitled to be admitted to the medical college. The duplicate domicile certificate was obtained by misrepresentation and otherwise could not have been used for getting admission in the college, that being the second certificate. Ignoring the fraud or acquiescing in fraud would amount to joining hands in the commission of the fraud. The wrong doing of Iram Asghar cannot be ignored.
Her petition is hereby dismissed and the Principal, Rawalpindi Medical College, Rawalpindi is directed to strike her name off the college rolls.