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Petitioner: ROCHOMAL DARYANOMAL VS Respondent: THE PROVINCE OF WEST PAKISTAN
P L D 1960 (W
P L D 1960 (W. P.) Karachi 150
Before G. B. Constantine, J
ROCHOMAL DARYANOMAL‑Appellant
versus
THE PROVINCE OF WEST PAKISTAN ---Respondent
Second Appeal No. 47 of 1959, decided on 2nd December 1959.
(a) Pakistan Citizenship Act (11 of 1951), Ss. 7& 3‑"Migrate" Intention of permanent residence outside Pakistan, implicit in word "migrate"‑Residence in India for over four months preceded and followed by permanent residence in Pakistan‑Cannot constitute permanent residence outside Pakistan. A I R 1952 All. 257 and A I R 1953 Pat. 112 ref.
(b) Pakistan Citizenship Act (II of 1951), Ss. 3 (a) & 7‑Person prima facie entitled to be deemed citizen of Pakistan‑Burden of proof that he is not citizen‑On party denying citizenship.
Ramchandani for Appellant.
A. H. Pirzada for Respondent.
Date of hearing : 26th November 1959.
JUDGMENT
The appellant plaintiff pleaded that he was born in the District of Sanghar and by reason of his birth is a Pakistan citizen under section 3 (a) of the Pakistan Citizenship Act, 1951 and that he continues to reside with his family in that District. The plaint continues that in October 1948 the plaintiff had occasion to go to India on a temporary permit dated 1‑10‑48 valid up to 31‑12‑48. (I note here that this permit was a permit granted by the Indian authorities). In paragraph 3 the plaint stated that while staying in Jodhpur State his permit expired. He went to Delhi and applied to High Commissioner for a permanent permit to return to Pakistan. He was, however, given a temporary permit dated 8‑2‑49 to stay in Pakistan from 9‑2‑49 to 22‑3‑49 and was directed to apply to the authorities in Pakistan to have the said permit made permanent. In paragraph 4 it was stated that he applied on 14‑4‑49 for conversion of the temporary permit into a permanent permit and in paragraph 5 it was stated that by letter dated 18‑4‑49 the Government of Sind informed him that his request was receiving attention. In paragraph 6 it was stated that the plaintiff did not hear anything from the Government of Sind on the subject and after nearly five years the plaintiff was surprised to learn from the Police at Khahi, some time in December 1953, that an order had been issued that he should be forcibly deported from Pakistan. He applied again to the Government of Sind on 1st January 1954 and received no reply. The further pleadings regarding the question whether he is or is not liable to prosecution are irrelevant in this case, for it is conceded that if the plaintiff' is a citizen of Pakistan he is trot liable to be deported so long as he retains that citizenship.
The written statement admitted that the plaintiff was born in Sind but alleged that soon after Partition he migrated to Bharat and was, therefore, no more a national of Pakistan. It admitted that he went to India on a temporary permit as pleaded it admitted through not denying that the plaintiff applied for a permanent permit to return to Pakistan and submitted that the Pakistan High Commissioner in India was not satisfied about the bona fides of the plaintiff and, therefore, did not give him a permanent permit but a temporary permit to stay in Pakistan.
The sole issue which survives in this case is represented by the issue framed in the Trial Court
1. Whether the plaintiff continues to be national of Pakistan. This issue is not artistically worded, but represents the point at issue between the parties, namely, whether the plaintiff is a citizen of Pakistan.
The relevant Act is the Pakistan Citizenship Act (II of 1951). Before this enactment, the status of citizen of Pakistan was unknown and was created by this Act. The. provisions relating to this appeal are firstly section 3. This provides "At the commencement of this Act every person shall be deemed to be a citizen of Pakistan.
(a) who . . . . was born in the territory now included in Pakistan and who after the 14th day of August 1947 has not been permanently resident in any country outside Pakistan ; or (b) Not relevant.
(c) Not relevant.
(d) Not relevant.
Sections 4 and 5 deal with persons born in Pakistan after the commencement of the Act. Section 6 deals with the powers of the Central Government to give a certificate of domicile and to register as citizens of Pakistan certain migrants to Pakistan. Section 7 reads as follows :‑
"7. Notwithstanding anything in sections 3, 4 and 6, a person who has after the first day of March 1947, migrated from the territories now included in Pakistan to the territories now included in India shall not be a citizen of Pakistan under the provisions of these sections :
Provided that nothing in this section shall apply to a person who, after having so migrated to the territories now included in India has returned to the territories now included in Pakistan under a permit for resettlement or permanent return issued by or under the authority of any law for the time being in force."
The first question arising in this appeal is what is meant by the word "migrated" in section 7. Does it mean merely that a person has gone from Pakistan to India or does it mean that a person has gone from Pakistan to India with the intention of residing permanently in India or (possibly also) having gone, has during his stay in India, formed the intention of permanently residing in India ? Reliance was placed upon Indian authorities, the first being Shabbir's case (A I R 1952 All. 257) and the second being Ramaswami's case (A I R 1953 Pat. 1.12). In both these cases it was held that the word `migration' which occurs in Article 7 of the Constitution of India which is, so far as material, identical with section 7 of the Pakistan Citizenship Act, does not include a temporary visit to another country but involves the purpose of residence or settle ment in another country. This interpretation corresponds with the meaning given in Murray's dictionary regarding persons, a tribe, etc: "to move from one place of abode to another, especially to leave one's country to settle in another, to move to another country, town, college, etc." and the illustrations given show that the migrant has left the first place permanently. On the other hand the Citizenship Act has used the word "migration" in section 3 (d) and section 6 in conjunction with the words "with the intention of residing permanently in those territories". Mr. Ramchandani argues that these words have been used at these two places to clarify or reinforce the ordinary meaning of migrate, and not with the purpose of showing that where migrate is used in section 7 without these words, migrate should be understood as not involving any intention of permanent settle ment. The ordinary rule is that if the Legislature used different language it should be presumed to intend a different meaning, but I think the ordinary meaning of the word `migrate' is so A firmly established that I should not presume that the Legislature here intended to use the word in a new sense. It may also be the case that the Pakistan draftsman copied the article in the Indian Constitution, not realising that elsewhere "migrated" was coupled with the words regarding intention.
Mr. Ramchandani has cited a judgment of the Supreme Court : Republic of Pakistan v. Bhandari, and he undertakes to supply a certified copy of this judgment. The facts of that case are almost the same as in this case. It was held that Bhandari having been born in Multan and there being no evidence that he had permanently resided in India and had gone thereon permits on temporary visits, he fell within section 3 (a), and as regards section 7 of the Pakistan Citizenship Act it was held : "There is no evidence that he went to India with the intention of permanently residing there." The law as declared by the Supreme Court of Pakistan is binding upon me, and I think that this is clear authority for the proposition that and intention of permanent residence is implicit. in the word `migrate'.
The trial Court upon this subject said
"In the present case the plaintiff overstayed in India after the expiry of the permit and entered into Pakistan on a temporary permit. The question to be decided is whether or not this over‑stay of the plaintiff in India can be termed as migration. The learned counsel for the parties have failed to cope with this point and have not spoken a word about it. Apparently one finds himself lost so far definition and inter pretation of the word migration is concerned, specially when the overstay was four months only. It seems very hard that a person be deprived of the valuable right of his citizenship only because he overstayed for a short period in India but I have to decide this issue under the provisions of the law as it is at present and not as it ought to be. Section 3 (2) of the Pakistan (Control of Entry) Act, 1952, clearly bars the right of such a person from entering into Pakistan and under section 7 of the Pakistan Citizenship Act, 1951, he loses his citizenship unless given a permanent permit or a permit of resettlement by or under the authority of any law. I therefore hold that the plaintiff does not continue to be a national of Pakistan and decide Issue No. 1 in the negative."
It appears, therefore, that the learned Subordinate Judge con sidered‑though he has not so stated in so many words‑that the word `migrated' did not include or connote an intention of permanent residence in India.
The learned District Judge in appeal has not discussed the meaning of `migrate'. He said :‑
" In view of the admission of the appellant that he had overstayed in India after his first permit expired on 31st December 1948 and that he entered into Pakistan on a temporary permit, he can therefore only be allowed to stay on permanently in Pakistan and consider himself to be a citizen of this country if he obtains a permanent settlement permit or proves that he entered Pakistan on such a permit."
He also said :‑
" The additional factor against him is that he accepted the position of re‑entry into Pakistan after the "expiry of his first permit at the end of 1948 and now, three months afterwards, in February, on a temporary permit granted to him by the Pakistan High Commissioner in India. If he had applied for an extension of the first permit before it expired on 31st December 1948, the position may have been, to an extent, different." '
and later,
" Some confusion has arisen whether or not the appellant can be said to have migrated from Pakistan after 1st March 1947 as appellant admittedly did by his permit dated the Ist October 1948, but appellant admittedly overstayed after 1948 and allowed his first permit to lapse without asking for an extension of the same."
The language of the learned District Judge is obscure. He may have meant that if the appellant bad applied for a further temporary extension, this would have been evidence that the appellant did not intend to reside permanently in India and that the failure to apply meant that he had determined to stay on in India. But he has not so stated his conclusion. He has not addressed himself specifically to the question as to what is meant by migration and the words "migrated from Pakistan after Ist March 1947 as appellant admittedly did by his permit dated the 1st October 1948" show, in my opinion, that he regarded migration as constituted by the mere going from Pakistan to India on a temporary visit.
I consider, therefore, that the learned District Judge erred in misinterpreting the word "migrated" in section 7.
Residence for just over four months preceded and followed by permanent residence in Pakistan, in my opinion, cannot c constitute permanent residence outside Pakistan. So far, therefore,) as section 3 (a) is concerned the appellant must be deemed al citizen of Pakistan.
Since both the lower Courts have, as I have found above, misinterpreted the meaning of `migrated', it falls to me to consider whether on the evidence the appellant migrated to India with the intention of permanently residing there. Exh. 6 is a certificate from the Custodian mentioning that the appellant has property. The evidence does not disclose what property he has in Sind, but it is sufficient indication that he had sufficient property in Sind to induce him to apply to the Custodian's Department for a certificate that he was not an evacuee.
It is true that in October 1948 many Hindus left Sind and many have never returned. It appears to me that a Hindu possessing property in Sind probably left for India because he feared for his safety. But as regards staying in India his intention was not definite. If things improved in Sind from his point of view he intended to return, but if not, he intended to stay on in India.
The fact that the appellant overstayed the temporary permit which he had received from the Government of India does not show that he had formed any permanent intention of staying in India. He obtained his permit to return to Pakistan on February 9th and the probability is that he had made up his mind to apply for it at least some days earlier. The period of overstay was, therefore, only about two months, which is not so long a period as to show any intention of permanent stay.
The circumstances of the case, therefore, are that the appellant stayed only little over four months in India, that he showed an intention to return permanently to Pakistan in that he applied for a permit for permanent return and he had property in Sind. These circumstances taken together, in my opinion, do not justify any conclusion that he left Pakistan intending to reside permanently in India.
It appears to me that where a person is prima facie entitled under section 3 (a) to be deemed a citizen of Pakistan the burden of proving that by reason of section 7 he is not a citizen is cast upon the party denying his citizenship of Pakistan. Apart, how ever, from the burden of proof, I think the appellant has established a case that he did not intend to reside permanently in India.‑
It was conceded by Mr. Pirzada that if it is established that the appellant is a citizen of Pakistan, then no action can be taken against him to remove him from Pakistan, so long as he continues to be a Pakistan citizen.
I, therefore, set aside the decree dismissing the appellant's suit and grant the appellant a declaration that he is a citizen of Pakistan, and an injunction restraining the respondent from externing him from Pakistan or interfering with his rights of stay in Pakistan so long as he remains a citizen of Pakistan. The respondent will bear the costs of the appellant throughout.
K. M. A.
Appeal accepted.