Stereo. H C J D A 38.

JUDGEMENT SHEET
IN THE LAHORE HIGH COURT, BENCH AT MULTAN
JUDICIAL DEPARTMENT

W.P.No.1672/2014
Mst. Khadija Shaheen Ali Vs. D.C.O. & others.

JUDGMENT
Date of hearing 06.08.2014.
Petitioner(s) by: Mr. Muhammad Usamn Sharif Khosa, Advocate
for the petitioner.
Respondent(s) by: Rana Muhammad Hussain AAG with Abdul
Rashid Qureshi, Head Clerk, D.C. Office
Rajanpur

SHEZADA MAZHAR J: Through this writ petition, the

petitioner has challenged the order dated 11.11.2013 passed by the
District Coordination Officer, Rajanpur whereby he rejected the
application of the petitioner for the grant of Certificate of Domicile of
Sham Khalchas (Tribal Area), Tehsil Jampur, District Rajan Pur.
2. It is the case of the petitioner that while passing the
impugned order dated 11-11-2013 respondent No.1 has not considered the
facts of the petitioner’s case; that the petitioner has been condemned un-
heard as the impugned order has been passed on the basis of the report of
political assistant which states that petitioner is not a permanent resident
of the Sham Khalchas; that her father and mother are holding domicile of
Sham Khalchas and therefore petitioner is also entitled for the grant of
certificate of domicile of said District in view of Section 7 and 14 of the
Succession Act 1925; that respondent No.1 while passing the impugned
order dated 11-11-2013 has failed to consider Section 4, 5 and 17 of the
Pakistan Citizenship Act 1951 read with Rule 9 of the Pakistan
Citizenship Rules 1952, which entitles the petitioner for the grant of
domicile certificate of Sham Khalchas and that according to the National
Identity Card of the petitioner, the permanent place of residence of the
petitioner’s parents is Sham Khalchas and petitioner’s parents name is
also available in the voter list of Sham Khalchas. On the basis of these
facts learned counsel in view of the law laid down by this court in Miss
Saima Bukhari and another Vs. District Coordination Officer,
W.P.No.1672/2014 2

Rajanpur and 3 others (2006 MLD 986) which is fully applicable to the
present case, submits that petitioner is entitled to the grant of the
certificate of domicile of Sham Khalchas.
3. On the other hand, learned AAG on instructions submits that
petitioner is a bona fide resident of District Layyah and therefore, not
entitled to get the certificate of domicile of Sham Khalchas. Further
submits that the brother and sister of the petitioner have been issued
domicile certificates of District Layyah which shows that the petitioner as
well as her parents are not the permanent residents of Sham Khalchas. It is
the case of the respondent department that petitioner’s parents during their
period of posting as District Health Officer Rajanpur have managed to
obtain certificate of domicile on 12.06.1990; that when the parents of the
petitioner have obtained domicile certificate of District Rajanpur they
must have already been issued domicile certificate of another
place/district because domicile certificate is necessary for obtaining
government job; that the petitioner as well as her parents are not the
permanent resident of Sham Khalchas and therefore, the impugned order
is in accordance with law and facts of the matter; that the petitioner
cannot be granted certificate of domicile of Sham Khakhals only on the
ground that her parents are holding domicile certificate of said area; that
in order to obtain domicile certificate of Sham Khalchas it is required that
the petitioner is residing in the area for last one year, however the
petitioner is not residing in the area for last one year and therefore not
entitled to get the domicile certificate of Sham Khalchas; that it is evident
from the fact that the land on the basis of which it is claimed by the
petitioner and her parents that they are permanent resident of Sham
Khalchas is open land; that the purchase of a piece of land in Sham
Khalchas does not create any justification for the grant of certificate of
domicile; that the present writ petition is also liable to be dismissed as
alternate remedy of appeal is available to the petitioner under Rule 30 of
the Pakistan Citizenship Rule 1952. Learned AAG while relying upon
Muhammad Yar Khan Vs. Deputy Commissioner cum political agent,
Loralai and another (1980 SCMR 456) states that the present writ
petition is liable to be dismissed.
W.P.No.1672/2014 3

4. It is also the case of the respondent department that the

Government of Punjab has reserved some seats in Medical Colleges,
Engineering Universities and other Universities for students of under
developed areas especially Tribal Area of Rajanpur & DG Khan District.
The purpose of this relaxation is to bring the educated youth of these
backward areas at par with the students of Urban Areas. It is unfortunate
that some elements managed to get the domicile certificates of Tribal
Areas for their children to misuse this facility. If this act is not checked
properly, not a single student of Tribal Area would be able to get his/her
right granted by the Provincial Government. Learned AAG submits on
behalf of the respondent department that the present case is of the same
nature and therefore, the order impugned has been passed in accordance
with law and facts of the present case after due verification from the
concerned field revenue staff.
5. I have given my earnest consideration to the submissions
made by the learned counsel for the parties in support of their respective
please and have also gone through the record of the case and law
applicable to the facts of the present case.
6. In order to resolve the present controversy one is required to
first consider the statutory provisions for obtaining a certificate of
domicile. The issuance of Domicile Certificate is governed by the
provisions of Section 17 of the Pakistan Citizenship Act, 1951 (Act of
1951) read with Rule 23 of the Pakistan Citizenship Rules, 1952
(Rules of 1952) which are reproduced below:
Section 17 of the Act of 1951

“17. Certificate of domicile. — 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.”

Rule 23 of the Rules of 1952

W.P.No.1672/2014 4

“23. Certificate of domicile. - The Federal Government, the

Provincial Government or any District Magistrate authorized by the
Provincial Government in this behalf may on application made to it in
this behalf issued 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, shall be accompanied by an affidavit affirming
the truth of the statement 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, and returned to Pakistan under a permit
for resettlement or permanent return issued by an officer authorized
by the Government of Pakistan.
(b) Any authority to whom an application is presented may
demand such evidence as it may considered 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 order son the application as it
deems fit.”

7. Having reproduced the statutory provisions for obtaining

a certificate of domicile, it would be advantageous to provide the
definition of domicile. It is germane to mention here that the above
mentioned statutes do not prescribe the definition of the term i.e.
“Domicile”

8. A.V. Dicey, B.C.L. in his treatise ‘The Law of Domicile

as a Branch of the Law of “England” published in 1879 defines the
term as under:

“Domicil means the place or country which is considered by law to

be a person’s permanent home.”

Dr. Phillimore defines the term as:

"Residence at a particular place, accompanied with positive or

presumptive proof of an intention to remain there for a unlimited time

9. In a recent verdict of a division bench of Honroable Quetta

High Court titled as MUHAMMAD KHALIL & another Vs.
EXECUTIVE DISTRICT OFFICER, REVENUE, PISHIN &
another (P L D 2011 Quetta 21) the term has been defined as:

“The word 'Domicile' has not been defined under the

Citizenship Act, 1951. The Black's Law Dictionary (Seventh
Edition), defines the word 'Domicile' as a person's true, fixed,
principal, and permanent home, to which that person intends to
return and remain even though currently residing elsewhere.--also
W.P.No.1672/2014 5

termed permanent abode.

Plain reading of the definition gives the meaning of a

domicile as proof of a permanent residence of a person. The
concept of a permanent residence as defined in the terms of a
domicile is of two types, one by birth and the other by choice. A
person, who desires to select his permanent residence by choice
means that he intends to relinquish his original place of abode and
to choose another place for the purpose of his permanent
residence. Once the facts of relinquishment and acquisition are
established, a domicile undergoes a change and the person
acquires a new domicile and has a permanent home, at least in the
notional sense at the new place. The domicile has to be considered
a synonym for home. The domicile has been discussed by Lord
Granworth in the case of Whicher v. Hume, relevant portion of which
is reproduced herein below:

"By domicile we mean home; the permanent home; and if you

do not understand your permanent home, I am afraid that no
illustration drawn from foreign writers or I think the best I have heard
is one which describes the home as the place 'Uncle sit-discess-urus-sl
nihi avocet unde cum profectusest peregrinarividetur. I think that the
best illustration and I use that word rather than definition, to describe
what I mean."

The above discussion leads us to the conclusion that the domicile

certificate is a, prima facie, proof of the place of permanent residence
of a person, who intends to permanently reside at a particular place.

The Oxford Dictionary has defined the word 'permanent' as

"lasting or expected to last for a long time or forever", whereas the
word 'temporary' has been defined as "lasting or meant to last for a
limited time only". Similarly, the word 'Residence' has been defined as
a house, the state of living in a particular place. Thus, the permanent
residence means the state of living at a particular place for all the time
or at least for a longtime, whereas a temporary residence means
living for a short time.

There are two stages of a domicile certificate, one is, that when
the person intended to permanently reside at a particular place, as
such, applies for a domicile certificate. Secondly, after obtaining a
domicile certificate, the holder of a certificate continues to
permanently residing at a particular place. Thus, in the first
circumstance, when a person applies for a domicile certificate, the
authority has to consider as to whether the applicant relinquished his
earlier permanent place of residence before selecting his new place of
domicile. As far as the second circumstance is concerned, the authority
on its own or on the objection of any person concerned can conduct an
inquiry with regard to a permanent residence of a holder of a
certificate for a particular place.”

10. From the above it is clear that two major classifications of

domicile i.e. domicile of origin and domicile of choice need to be
considered. An ex cathedra expression of such classification including the
definition of the term domicile can be found in a division bench judgment
of the Honorable Peshawar High Court titled as AHMAD HASSAN Vs.
W.P.No.1672/2014 6

ABDULLAH & 5 others (PLD 1992 Peshawar 1). The relevant text is
produced herein below:

“26. Corpus Juris Secndum, Volume 28 at page 10 and 11 while dealing

1 with the subject of `domicile';, divides it into two kinds viz. domicile
of origin and domicile of choice. The former is defined as:-

A person's domicile of origin is the domicile of his parents, the

head of his family, or the person on whom he is legally
dependent, at the time of his birth. It is generally, but not
necessarily, the place of birth.

The latter is defined as:-

A domicile of choice is the place which a person has chosen for

himself to displace his previous domicile; it is based on the
intention of the person.

Again continuing with the subject of domicile it is stated that:-

Apart from statutory regulation, no particular period of

residence is required to establish domicile, and any residence,
however short, will suffice when coupled with intent; without
intent; residence, however long continued, will not establish
domicile."

And adds:-

A change of domicile or residence depends on intention, or, as

sometimes stated, on a dual intention to abandon the former
domicile and to acquire another".

According to Halsbury's Laws of England 3rd Edition Vo1.7, page 14,

The law attributes to every person at birth a domicile which is

called a domicile of origin. This domicile, may be changed and a
new domicile, which is called a domicile of choice acquired but
the two kinds of domicile differ in the following respects:

(1) The domicile of origin is received by operation of law at

birth, the domicile of choice is acquired later by the actual
removal of an individual to another country accompanied by
his animus manendi.

(2) The domicile of origin is retained until the acquisition of a

domicile of choice; it cannot be divested by mere abandonment
and is never destroyed though it remains in abeyance during
the continuance of domicile of choice, the domicile of choice is
lost by abandonment whereupon the domicile of origin is
acquired; the domicile of choice; when is once lost, is destroyed
but may be acquired anew by fulfilling the same conditions as
are required in the first instance."

Similarly, in Wright v. Wright reported in ILR 1958 Calcutta 259 as

also in Rooks v. Rooks reported in A.I.R. 1934. Bombay 239 it is laid
down that a person continues to retain his domicile of origin until a
domicile of choice is acquired and even then the domicile of origin
merely remains in abeyance and further that there must be both the
W.P.No.1672/2014 7

factum of residence and animus manendi and must be no animus

revertendi to the former domicile. The report further adds that
residence of animus manendi by itself will not be inferred to confer a
new domicile.”

27. Questions of this nature did arise before Courts of Pakistan. In case
of Ralph William Bagley v. Elizabeth Bagley reported in PLD 1954
Dacca page 147 as well as John Oswald Horatio Neale v. Mrs.
Margaret Eileen Neale P L D 1957 Dacca page 363 while elaborating
the said two, kinds of domicile with reference to person who migrates
from the place of his origin to the place of his choice; the ratio
decidendi is that mere residence in a place other than the place of his
origin is not a proof of his domicile of his choice, unless the person
abandons his domicile of origin and adopts the domicile of his choice
that is to say he resides in the place, he has migrated to, permanently
coupled with no intention whatsoever to go back to the place of his
origin. The question also cropped up for consideration before the High
Court of A.J.K. in the case of Nishat Saeed v. Nomination Board
reported in PLD 1977 Azad J&K page 33 and while dealing with the
word domicile it has been held that:-

A person who carries on business in a country and for that

purpose has also constructed a house to live in, cannot be said
to have abandoned his domicile of origin and embraced
domicile of choice in the country in which he carries on the
business without a valid declaration showing that he has
abandoned the domicile of origin.

28. In the light of the foregoing, we are clear in our mind that to every
person who enjoys the status of sui juris, law assigns a domicile which
can be expressed as his domicile of origin and which remains attached
to him until a new and fresh domicile takes its place and that the
domicile of origin remains intact until the person has not only
manifested to carry into execution an intention of abandoning his
former domicile and acquired another as his sole domicile. In other
words, a person having a domicile of origin continues to be known
therewith unless he chooses to acquire the domicile of choice and,
notwithstanding this, his domicile of origin remains in abeyance
unless he specifically abandons the same.”

11. The requirements for obtaining a certificate of domicile have

authoritatively been laid down in a division bench judgment of the this
Court, in a case titled as Chaudhry NOOR MUHAMMAD Vs.
PROVINCE OF WEST PAKISTAN & ANOTHER (PL D 1971 Lahore
367), in which it was held as under: -

If all the conditions prescribed in section 17 and rule 23, quoted above,
are specified, the authority "may" grant the domicile certificate. It was
on the use of the word "may" that the Deputy Commissioner has based
the contention that it is discretionary for him to grant or to refuse to
grant a certificate and that it is no body's right. The leading case on
the interpretation of the word "may" is Julius v. Oxford (Bishop)
((1880) 5 App. Cas. 214). Summing up the dictum of that case Maxwell
at page 234 of the Eleventh Edition of his Book on Interpretation of
Statutes observes as follows :-
W.P.No.1672/2014 8

Following the decision of the House of Lords in Julius v. Oxford

(Bishop), it was said that from the nature of the English language the
word `may' can never mean `must', that it is only potential, and when
it is employed there is another question to be decided, viz., whether
there is anything that makes it the duty of the person on whom the
power is conferred to exercise that power. If not, the exercise is
discretionary. But when the power is coupled with a duty of the person
to whom it is given to exercise it, then it is imperative.

It is by 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 becomes 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 fulfills 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.

12. It is also clear from the above that the ‘Domicile’ and
‘residence’ are two distinct notions. A person may have more than one
places of residence but can have only one place of domicile. It follows
from this that the place of domicile of a person signifies a place where he
has a permanent intention to remain or to couch in other words, where he
always has an intention to return. Thus a person may be entitled for grant
of certificate of domicile at place ‘A’ being his permanent abode if he has
a residence over there and a permanent intention to reside over there,
notwithstanding his temporary residence. However, if the person has
moved from place ‘A’ and has no intention to reside at place ‘A’
permanently he is not entitled to grant of certificate of domicile from that
place. Intention being a factum to be gathered from the circumstances of
the case.

13. This legal position is deducible from the judgments reported

as Mst.Saleha Ibtisam Vs. Chairman, Admission Committee, Pakistan
King Edward Medical College, Lahore & 5 others (1995 CLC 259), Syed
Haider Shah Vs. Mukhtar Hussian Shah and others (P L D 1963 (W.
P.) Lahore 548) and Miss Dur-e-Sameen & another Vs. Selection
Committee through Chairman, Balochistan Public Service Commission,
Quetta (1997 S C M R 270) wherein the Hon’ble Supreme Court has held
as under:-
W.P.No.1672/2014 9

“6. The sole question for determination in this petition, therefore, is

as to what was the domicile of the petitioner at the relevant time.
The Admission Committee on the basis of overwhelming evidence
available before it recorded a finding of fact that petitioner No. l
was neither permanently residing in Loralai nor acquired a valid
domicile. The learned Judges of the Division Bench of Balochistan
High Court accepting these findings also took the view that the
domicile of petitioner No. l was not Loralai. There is nothing on
record to show that the petitioners had any intention of making
Loralai their permanent home. Suffice it to say that mere fact that
the petitioner No.2 had joined service in Balochistan is not by itself
conclusive evidence of his intention to settle permanently in
Loralai. For the acquisition of a domicile of choice, there must be a
combination of residence and intention of permanent or indefinite
residence before that change can become effective. Refer Rule 7,
Chapter 11 of Dicey's Conflict of Laws, 6th Edition, page 89. The
same principle was reiterated in Joan Mary Carter v. Albert
William Carter (PLD 1961 SC 616). Also refer Miss Amtul Naseer
Sami v. Secretary Health, Government of Balochistan (1975 SCMR
265), wherein at page 267 Anwarul Haq, J. observed as follows:--

Learned counsel for the petitioner referred us to the case of

Muhammad Bibi v. Abdul Ghani (PLD 1975 Kar. 979) in
support of his contention that the mere obtaining of a
domicile certificate by Iftikhar Ahmad's father would not
make him a bona fide resident of Balochistan. We do not see
how this decision is of any avail to the petitioner. We find
that on page 3 of the report the learned Judge has adopted
with approval the observation of Lord Macmillan in the case
of Ramsay v. Liverpool Royal (1930 AC 588) to the effect
that the residence must answer a qualitative as well as a
quantitative test, and that the Courts have regarded
naturalization purchase of house or burial ground exercise
of political rights, financial expectations, establishment of
children in business, the place where a man's wife and family
reside as indication of his intentions in regard to residence.”

14. In the case in hand the petitioner claimed domicile certificate

of Sham Khalchas on the ground that her parents are also holding the
domicile of Sham Khalchas and that they have not abandoned the said
domicile till date. However, as discussed above the place of domicile of a
person signifies a place where he has a permanent intention to reside or to
couch in other words where he always has an intention to return. In the
present case this intension is not proved from the record as the land
owned by the parents of the petitioner is an open land. No construction
whatsoever has been made on the said land to show that the petitioner and
W.P.No.1672/2014 10

her parents had the intention to reside there permanently. It is admitted by

the learned counsel for the petitioner that the father of the petitioner has
already retired from government service and not residing in Sham
Khalchas but still residing in District Layyah. It is not denied by the
learned counsel for the petitioner that brother and sister of the petitioner
have obtained domicile certificate from District Layyah in the year 2002,
however submitted that the same are already pending for cancellation. In
this regard learned counsel has also placed on record documents showing
that proceeding are pending for cancellation of the petitioner’s brother
domicile.

15. Perusal of the said documents reveals that the petitioner’s brother
domicile was issued in the year 2002 and the cancellation application was
moved by him in December 2013 during pendency of an earlier Writ
Petition No. 14214/2013 wherein same order by DCO was impugned
which was withdrawn on 27-12-2013. Further no application has been
filed in case of sister’s domicile obtained for Layyah.

16. The domicile of the brother and sister of the petitioner which were
obtained from District Layyah states that both of them are residing at the
place of domicile i.e. District Layyah since birth and have also mentioned
their dates of birth which are 28.09.1986 in case of brother and
04.04.1984 in case of sister. When the information given in these two
certificates of domicile are read with the certificates of domicile of the
parents of the petitioner wherein they have claimed their residence in
Sham Khalchas since 1982. It clearly shows that information in one set of
domicile is not correct.

17. This false information read with the report of the Political Assistant
established the claim of the respondent department that parents of the
petitioner have managed to obtain the certificate of domicile of Sham
Khalchas during their posting as District Health Officer and Women
Medical Officer. This claim of the respondent department finds further
strengthen from the fact that the certificate of domicile of other brother
and sisters of the petitioner were also obtained in August 1996 when the
W.P.No.1672/2014 11

father of the petitioner was posted as District Health Officer during

25.06.1996 to 13.10.1996.

18. Perusal of the contents of the present writ petition as well as the
earlier writ petition filed by the petitioner to challenge the order dated
11.11.2013 revels that in both the said petitions the petitioner has
concealed the fact that the other brother and sister of the petitioner have
obtained certificate of domicile from District Layyah.

19. From the above facts, it is established that petitioner is not

permanently residing at Sham Khalchas and the petitioner or her parents
have no intention to permanently reside at Sham Khalchas. Moreover,
mere ownership of certain piece of land in Sham Khalchas by the parents
of the petitioner does not create a right in favour of the petitioner to obtain
a domicile certificate of Sham Khalchas, nor it establishes her permanent
residence there. Petitioner has failed to produce a single proof of her
permanent residence in Sham Khalchas. Whereas the report of the
Political Assistant of Sham Khalchas confirms that the petitioner is not
the permanent resident of said area and the report of Assistant
Commissioner, Layyah has also confirms that the petitioner and her
parents are permanent residents of District Layyah.

20. It is also clear from the facts of the case that petitioner has sought
domicile of sham Khalchas only for the purpose of getting benefits meant
for the people of backward area.

21. For what has been discussed above, the order dated 11.11.2013
passed by the District Coordination Officer, Punjab is in accordance with
the law and facts of the matter, which does not require interference by this
Court and therefore, instant petition is devoid of any force and the same is
hereby dismissed.

(SHEZADA MAZHAR)
JUDGE
 W.P.No.1672/2014 12

Announced in open Court on ___________

JUDGE

APPROVED FOR REPORTING

JUDGE

Sharif*