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Criminal Revision No. 310 of 1961, decided on 18th December1961.
(a) Pakistan Citizenship Act (II of 1951), S. 3 (d)
read with Pakistan Citizenship Rule. 1972, r. 6--‑Citizenship by "migration" from India‑Acquisition depend upon "intention of residing permanently" in Pakistan----Not in any certificate of citizenship or of domicile, or on registration as a citizen.
(b) Foreigners Act (XXXI of 1946), S. 3(2)(c)
‑Order to leave Pakistan cannot be made against person who is citizen of Pakistan.
Mazhar Hasnain, S. M. Abbas and Md. Anis for Petitioner.
Niamuddin Ahmed for the State.
A. M. Sayem: Amicus curiae.
In this case a Rule was issued on the Deputy Commissioner of Dacca to show cause why the order of conviction of the petitioner under section 14 of the Foreigners Act, 1946 and sentence of simple imprisonment for one month and to pay a fine of Rs. 100 and, in default, simple imprisonment for one week more, should not be set aside.
The case for the prosecution is that the petitioner Hse Yung Hsieh as an Indian National of Chinese origin holding air Interna tional Indian Passport dated 1‑2‑51 entered East Pakistan in 1951. At that time the visa system between India and Pakistan not being in vogue be had no visa. He submitted an application for citizenship, which was rejected by the Government. It is further stated by the prosecution that the petitioner was directed by an order issued by the Government of East Pakistan on 14‑1‑61 to leave Pakistan within one month from the date of the service of the notice, which was served on 3‑2‑61. The petitioner was pro secuted for non‑compliance with the said direction and convicted and sentenced under section 14 of the Foreigners Act, 1946.
The defence case is that the petitioner migrated to East Pakistan on 8-5-51 with his dependents and acquired land and houses and since then was continuously living with his family and children. He asserted that he entered Pakistan with the intention of living here permanently after closing his business in India and since his arrival here about ten years ago he never went out of Pakistan and he was doing permanent business in partnership and invested entire earnings in acquiring land, constructing factory premises and expanding business. He has established business both at Chittagong and Dacca and all these go to show that he entered Pakistan on 8‑4‑51 with intention to live in the country permanently.
The petitioner's contention is that by virtue of clause (d) of section 3 of the Pakistan Citizenship Act (Act II of 1951) he has acquired citizenship of Pakistan and his conviction is not main tainable as the Foreigners Act does not apply to him.
When this matter came up before my learned brother Sattar, J. no one appeared for the State and his Lordship, therefore, directed that the State should be represented. Accordingly Mr. Naimuddin Ahmed appeared before him on 22‑8‑61 and on that day his Lordship requested Mr. A. M. Sayem to appear in this case as amicus curiae.
When this matter came up for hearing before me, Mr. Mazhar Hasnain appeared on behalf of the petitioner and Mr. Naimuddin Ahmed represented the State. Mr. A. M. Sayem in response to the request made by Sattar, J. appeared as amicus curiae and I place on record my appreciation of the pains taken and assistance rendered by him as amicus curiae in this case. I have also received valuable assistance from the learned Advocates for the petitioner as well as the State.
Mr. Mazhar Hasnain, learned Advocate for the petitioner has argued that the petitioner has become a citizen of Pakistan by operation of law. His argument is that it is not disputed that the petitioner entered Pakistan on 8‑4‑51. The Citizenship Act came into force on 13 ‑4‑51. Then because of historical reasons clause (d) was added to section 3 of that Act by the Pakistan Citizenship Amendment Act, 1952 and this clause conferred citizenship on all persons who migrated to Pakistan before commencement of the Citizenship Act, 1951 with the intention of residing in this country permanently. The petitioner has further stated that he applied for a domicile certificate after a year of stay In this country and he obtained the same in 1952 and it Is asserted that his application for such a certificate as far back as in 1952 indicates his intention to live here permanently at the time of entry into this country on 8‑4‑51. The learned Advocate also argues that it was not necessary for him to apply for citizenship certificate or any certificate from the Government and no registration was necessary in his case. The learned Advocate further argues that these attempts made by the petitioner although unnecessary for acquisition of citizenship, give clear evidence of the petitioner's intention of coming to this country for residing here permanently. With regard to the attempts made by the prosecution to show that the petitioner is engaged in subversive activities and that he is black listed, the learned Advocate submits that these were made with a view to cloud the real issue. A citizen .may also be engaged in these activities and these allegations have no bearing on the question of the determination of his status as a citizen or a foreigner.
Mr. Sayem who appeared as amicus curiae submitted that section 3 of the Citizenship Act sets out the method of acquisition of citizenship by operation of law. He submitted that in this case the relevant section is section 3 (d) of the Act and one who fulfils the requirement of that clause will become a citizen irrespective of the fact whether or not be is in possession of a certificate of citizenship or a domicile certificate. On reading of the judgments of the Courts below, he submits that the word migration' occurring both in clause (d) of section 3 and section 6 of the Act created confusion .in the minds of the learned Magistrate and the learned Additional Sessions Judge and they fell into an error of law in coming to the conclusion that acquisition of citizenship was dependent on obtaining a certificate of citizenship or a domicile certificate or registration as a citizen.
Admittedly the petitioner came to Pakistan on 8‑4‑51, and according to Mr. Sayem, the only thing required to make him a citizen of Pakistan was to establish that he came with an intention to permanently live in Pakistan. His submission is that both the Courts below proceeded on a wrong conception of law. His further contention is that the Courts below came to the finding of the petitioner's intention of living permanently in Pakistan and on the basis of this finding he was to be deemed to be a citizen by operation of law. But the learned Advocate however, added that the finding of intent although a finding of fact could be re‑examined by this Court if considered necessary. But if the findings of intention by the Courts below are not upset by this Court the petitioner would be deemed to be a citizen of Pakistan by operation of clause (d) of section 3 of the Act.
Mr. Naimuddin Ahmed, learned Advocate for the State conceded that both the Courts below have proceeded on wrong assumption of law, inasmuch as, they found that the certificate of domicile or citizenship was necessary for establishing a person as a citizen. He, however, strenuously argued that the petitioner had no intention of living here permanently and as such clause (d) of section 3 of the Act did not apply to him. He further submitted that there were enough materials to warrant a conviction and the case should be sent back for a retrial so that he might adduce further evidence in rebuttal to show that the petitioner had no intention to live here permanently and that he was engaged in subversive activities.
Section 3 (d) of the Citizenship Act reads as follows:
"At the commencement of this Act every person shall be deemed to be a citizen of Pakistan who before the commence ment of this Act migrated to the territories now included in Pakistan from any territory in the Indo‑Pakistan sub‑continent outside those territories with the intention of residing per manently in those territories."
Both the Courts below misconceived the law on the point when they came to the conclusion that in order to acquire citizen ship of Pakistan a person is not only to obtain a domicile certificate but is to get himself registered as citizen of Pakistan and also to obtain a certificate of citizenship. The learned trying Magistrate says as follows:
"It may be noted in this connection that a certificate of domicile is not enough ; the person concerned must register himself as a citizen of Pakistan and the Pakistan Citizenship Rules, 1952, a/s 23 of the Citizenship Act lays down how the citizenship right can be acquired under clause (d) section 3 of the Citizenship Act for claiming citizenship under the Citizenship Act as noted above one roust apply in Form 'A' to the Magistrate, 1st Class and that after observing formalities if the Magistrate is satisfied that he is entitled to citizenship he shall recommend to the Provincial Government that a certificate of citizenship be granted to the applicant Rule 10 of the Citizenship Rules also makes the point clear that the Provincial Government must pass the final order about the citizenship."
The learned Additional Sessions Judge who heard the appeal expressed his views on the point in the following terms: ‑
"I went to observe that all such reasons who come under clause (d) are required to apply for Pakistani Citizenship cer tificate and that rule also empowers the Provincial Government to pass such order as it deems fit. In this case, the Provincial Government rejected the prayer of the accused for granting him the citizenship certificate and that order of the Provincial Government was legal and valid and it cannot be said that the refusal of the Provincial Government was an act of high handedness or that it was passed arbitrarily."
Section 23 of the Citizenship Act is a very usual section in a statute. It authorises the Central Government to make rules for carrying out the purposes of the Act and rule 6 as framed thereunder is as follows: ‑
"Any person claiming the citizenship under clause (d) of section 3 of the Act may be granted a certificate by the Provincial Government in the manner hereinafter prescribed
(1) He shall apply In Form A' in duplicate to a Magistrate of the First Class.
(2) The Magistrate shall, in attestation of the truth of the statement in the application, administer an oath or affirmation to the applicant.
(3) He shall examine any witnesses produced by the applicant and may summon any other witnesses likely to know the facts of the application and may call for any records relevant to it.
(4) If the Magistrate is satisfied that the applicant is entitled to citizenship under clause (d) of section 3 of the Act, he shall recommend to the Provincial Government that a certificate of citizenship in Form A‑1' be granted.
(5) The Provincial Government shall pass such orders on the recommendation as it deems fit."
This rule merely shows that a person who claims citizenship under clause (d) of section 3 of the Act, may obtain a certificate to that effect. A person who is not a citizen of Pakistan cannot apply for a certificate. His citizenship itself is not founded on the certificate but on fulfilling certain conditions as required under the law. To make It further clear it may be said that citizenship' is a condition precedent foe obtaining a certificate but not vice versa. The rule speaks of granting of a certificate and not conferring of citizenship. Sub‑rule (4) of rule 6 makes the position clear. It speaks of entitlement of citizenship under clause (d) of section 3 of the Act. So, his title to citizenship is derived from section 3 (d) of the Act not from obtaining a certificate to that effect. It is, therefore, clear that mere refusal to grant a certificate to a person does not deprive him of citizenship, which he otherwise acquires. A certificate of citizenship gives conclusive proof of his citizenship, but it neither confers, nor in the case of a refusal, it deprives a person of his citizenship. The position therefore as that obtaining of a certificate under rule 6 as quoted above, establishes right of a person as a citizen but a person not in possession of a certificate as contemplated under rule 6, if challenged, will have to establish that he is a citizen under clause (d) of section 3 of the Act. That is the only difference. I have no hesitation ‑to say that both the Courts below erred in law on this point. If the error is due to the word migration' occurring in section 6 of the Citizenship Act, it may at once be disposed of by saying that said section has no application to the facts of the present case.
Section 6 of the Act is as follows: ‑
"The Central Government may, upon his obtaining a certificate of domicile under this Act, register as a citizen of Pakistan by migration any person who after commencement of this Act and before the first day of January, 1952 has migrated to the territories now included in Pakistan from any territory in the Indo‑Pakistan sub‑continent outside those territories with the intention of residing permanently in those territories . . . . "
The words "after the commencement of this Act and before the first day of January, 1952" clearly indicate that this section has no application to the petitioner's case, because the undisputed fact is that petitioner entered Pakistan on 8‑4‑51 before the commencement of this Act and not after the commencement of this Act. The learned Judge has, however, seen this position correctly when he says as follows: ‑
"I do not agree with the learned Magistrate that the present case of the accused is governed by section 6 of the Pakistan Citizenship Act."
The learned Judge is right when he says: ‑
"The present case is certainly governed by the clause (d) of section 3 of the Pakistan Citizenship Act."
But what is surprising is that after having seen this position correctly he also misconceived the law in the same way as will appear from the passage of his judgment already quoted. Refer ence has been made to rule 10 framed under the Act. The opening words of rule 10 read as follows: ‑
"Any person claiming citizenship under section 6 of the Act shall apply in Form B' in duplicate to the Provincial Government . . . .
It is, therefore, clear that this rule applies only to a case in which a person claims citizenship under section 6 of the Act which section, it has already been seen, has no application to the present case and aid of rule 10 framed under section 6 cannot therefore be invoked to nullify the claim of the petitioner.
Mr. Naimuddin Ahmed, learned Advocate for the State has argued that the domicile certificate obtained by him is not a certificate valid in law, inasmuch as, it is not signed by the Deputy Commissioner who is the only person authorised by law to sign such certificates. A domicile certificate neither establishes, nor inability to obtain one, deprives a person of his citizenship if he has acquired it by operation of law. A domicile certificate valid or invalid, does not therefore determine the status of a person as a citizen or a foreigner. For the purpose of the present case the certificate itself is of little value and I shall leave it out of consideration. The act of obtaining it, that is, making of an application for the same, may have a bearing on the question of intention of the petitioner regarding his residence in the country and Mr. Ahmed has not challenged his application to be invalid. The learned trying Magistrate also took the act of obtaining domicile certificate into consideration when discussing the question of intention as already Indicated.
Mr. Naimuddin Ahmed also referred to the admission made by the petitioner that his application for citizenship certificate was made on Form 'B' meant for Commonwealth citizen to the appropriate authority of the Government of Pakistan. The point made by him was that this was an element of intention showing that he treated himself as a citizen of Commonwealth and not of Pakistan. While considering the mental condition of the petitioner .in this connection, an explanation given by him that he did it through mistake, has also to be noticed. It is a form meant for Commonwealth citizens and Pakistan being a member of the Commonwealth, it is not unlikely that the petitioner might have made a mistake as claimed by him.
Migration into Pakistan prior to 13‑4‑51 is not by itself sufficient to confer citizenship on a person. His entry must be with the intention to live here permanently, as is clearly laid down in clause (d) of section 3 of the Act as already set out. With regard to the question of migration and intention of the petitioner in this respect, the learned Magistrate has come to the following finding: ‑
"The evidence on record clearly shows that the accd. came by migration to Pakistan on 8‑4‑51 and has settled down here and set up his business and houses at Chittagong and Dacca. He is living in East Pakistan since then with his family and has applied for and acquired domicile certificate as early as 24‑10‑52. All these go to show that he has had bona fide intention of permanently residing in Pakistan."
The learned Magistrate has referred to certain elements which constitute evidence of intention and has come to the finding that the petitioner 'has had bona fide intention of permanently residing in Pakistan.' The learned Magistrate did not, however, realise that the findings already arrived at by him were sufficient to make petitioner a citizen of Pakistan by operation of law as laid down in section 3 (d) of the Citizenship Act. This failure is due to the misconception of law on the point already adverted to by me somewhat elaborately. It was a mistake to think that acquisition of citizenship was dependent on obtaining a certificate of citizenship or a registration to that effect.
The learned Additional Sessions Judge also comes to the following findings on facts relevant for the determination of the questions at issue: ‑
"Now it is fact that the accused was an Indian National Chinese by birth. It is also a fact that he migrated to East Pakistan on the 8th of April, 1951. There is no dispute that since then the accused has been living in East Pakistan with his family and has started tannery business in Dacca and Chittagong. It is also a fact that since his arrival here, the accused did not go to India."
Having reached these conclusions on facts material for the purpose, the learned Judge says that these may show the intention of the petitioner but he falls into an error of law when he says that the citizenship can be bestowed on the petitioner by the Government. I would like again to quote him in his own words.
"It may show his intention to live in Pakistan. But the Government only can bestow upon him the citizenship of Pakistan.
Although the learned Judge seems to recognise the necessary intention on the part of the petitioner, he thinks acquisition of citizenship is depended on bestowal by the Government. I have no hesitation to say that acquisition of citizenship under section 3 (d) of the Act is not at all dependent on the conferment of the same by the Government.
There are, however, powers in the hands of the Government under section 16 of the Act for depriving a person of his citizen ship if he is disloyal and for other reasons stated therein. The question of a person being black listed or engaged in subversive activities has no bearing for finding out whether he is a citizen or not. It should be realised that a citizen may also be engaged in these activities and there are sufficient provisions in relevant laws to deal with him effectively.
I have already set out the clear findings of the Magistrate on the question of migration of the petitioner before 13‑4‑51 and of his intention to reside in this country permanently‑the two conditions requisite for acquisition of citizenship under section 3 (d) of the Act. These findings have not been dissented from by the learned Judge and the findings arrived at by him as already quoted also support the conclusion reached by the learned Magistrate in this respect. It has not been claimed on behalf of the State that these findings are based on no evidence at all or on improper appreciation of evidence or non‑consideration of certain evidence. Relying on the findings already arrived at, I am of opinion, that the petitioner has acquired citizenship of Pakistan by operation of law. The order directing the petitioner to leave Pakistan within a certain date was made under clause (c) of subsection (2) of section 3 of the Foreigners Act. It is specifically stated therein that the order under that section can only be made on a foreigner.
'Foreigner' as defined in section 2 of the Foreigners Act means 'a person who is not a citizen of Pakistan'.
Applying the law on findings arrived at by the Courts below, I have already held the petitioner to be a citizen of Pakistan. That being the position, no order under the said section 3 (2) of the Foreigners Act could be passed on him. Section 8 of the Foreigners Act does not apply to this case, and tire petitioner has discharged the burden of proving that he is not a foreigner as required under section 9 of the Foreigners Act.
As the petitioner has established that he is not a foreigner, the order made on him under section 3 (2) (c) of the Act was a nullity for the violation of which, an order of conviction and sentence under section 14 of the Foreigners Act cannot be maintained.
The State pressed for retrial for adducing further evidence as I have already mentioned. This is indeed an extraordinary prayer for prosecution to make. No retrial can be ordered for the said purpose in complete disregard of the well‑recognised judicial principle that in a criminal trial prosecution cannot be allowed to fill up the gaps far less to give evidence in rebuttal and to attack findings of intention already given in that case. The order of conviction must stand or fall on the evidence already led in this particular case.
In the result, the rule is made absolute and the conviction and sentence of the petitioner are set aside. The petitioner is dis charged from his ball bond.
S, B./A. H.
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