SAIF-UR-REHMAN vs STATE and another

' Through the instant appeal, convict Saif-ur-Rehman, has question the judgment/order dated 18.09.2015, rendered by learned Judicial Magistrate-II, Hangu and judgment/order dated 02.11.2015, passed by learned Appellate Court/ Sessions Judge, Hang whereby the former convicted him under Section 14 of the Foreigners Act, 1946 and sentenced to undergo 06 months S.I. As well as to pay a fine of Rs, 10,000/- or in default of payment of fine to undergo 01 month S.I. Further, in case FIR No, 479 dated 10.09.2015, registered under Section 14 of the Foreigners Act, 1946 in Police Station Doaba District Hangu, while the latter by dismissing his appeal, maintained his conviction.

2. Arguments heard and record perused.

3. Before adverting to the merits of the case, I would like to dilate upon a legal proposition "Whether the Foreigners Act, 1946, does provide the remedy of appeal or revision to the aggrieved party?

4. Admittedly, Foreigners Act, 1946, does not expressly provide for appeal or revision so much there is no express provision regulating the procedure of inquiry, investigation and trial of an accused as well as the Court to try the offence under the Act. However, there are certain provisions of the Act of 1946, which implicitly indicate towards the application of the Code of Criminal Procedure, 1898. For instance S.14-A, which read as under: "S. 14, A Restriction on release on bail.--Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), hereinafter referred to as the said Code, any person accused of an offence punishable under sub-section (2) of Section 14 shall not be released on bail if there appear reasonable grounds for believing that he has been guilty of such an offence".

' No doubt, S. 14-A of the Act, bar the application of the Code but as evident from the language of the section, the bar is only to the extent of bail and not in respect of the other matters. Section 16 of the Act, further clarify the situation wherein the application of other laws to the Act of 1946 is applicable. For convenience, S.16 of the Act, 1946, is reproduced below: "S.

16. Application of other laws not barred:--The provisions of this Act shall be in addition to, and not in derogation of, the provisions of the Registration of Foreigners Act, 1939, the [Passport Act, 1974], and of any other enactment for the time being in force".

' S. 16 referred above makes the situation more clear that application of other laws is not barred to the Foreigners Act, 1946. Rather, According to S.16 of the Act, the provisions of the Act, 1946, shall be in addition to, and not in derogation of, the provision of any other enactment. The words "application of others laws" or "provisions of any other enactment" are sufficient to suggest that the application of the Code has not been barred.

5. Moreso, sub-section (2) of S.5 of the Code of Criminal Procedure, 1898, is another helping provision in such like situation where the Special law is silent about any specific procedure. For convenience the same is reproduced below: ' S. 5(2) trial of offences against other Laws.--All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

' Admittedly, provisions of Code are applicable to trial before Special Court under Pakistan Criminal Law (Amendment Act, 1958). If Special or Local Law creates offences and provides procedure to deal with, then procedure so provided in the Special Law has to be adopted but where the Special Law provides no specific procedure and there is no provision in it qua its overriding effect of the other law, then the provisions of Cr.P.C. Would be applicable within the meaning of S. 5(2) of the Cr.P.C. In view of the above, for offences other than Penal Code, the provisions of Cr.P.C. Would apply subject to specific or contrary provisions made by the law under which those offences are to be investigated. Unless a Special Law expressly or implicitly provides that certain offences are to be tried exclusively by Courts constituted under such law, the jurisdiction of the Ordinary Courts to try the offences under the Code is not excluded. Where there is no adequate machinery for exercise of jurisdiction in a specific case, the exercise of jurisdiction in respect of such a case by the Court of general jurisdiction would not be illegal. Thus, the combined study of the provisions of the Act, 1946' and the Cr.P.C., discussed above, I am of the considered view that the Code of Criminal Procedure 1898, is applicable to proceedings under the Act of 1946. When confronted with the above relevant provisions of law, learned AAG conceded application of the Code of Criminal Procedure, 1898 to the Act of 1946.

6. Coming to the merits of the case, since the appellant has been convicted and sentenced by the learned Judicial Magistrate/Trial Court, against which he filed appeal before the learned Appeal Court, but the same was dismissed, therefore he ought to have filed revision petition but instead he has filed in the instant appeal. Since there is no provision of second appeal in the Cr.P.C., therefore, in the interest of justice, this appeal is converted in to revision petition.

7. It appears from the record that on production of the petitioner before the learned trial Court, he pleaded guilty to the charge, resultant, he was convicted and sentenced as mentioned above. It may be noted that the learned trial Court without complying with the mandatory provision of S.241- A, Cr.P.C., providing seven days time, haphazardly charge sheered the petitioner and on his plea of guilt, convicted and sentenced him. Chapter XX of the Cr.P.C. Deals with the trial of cases by the Magistrate. Section 241 speaks about the procedure to be adopted in trial of cases by the Magistrate and word "shall" used therein makes the procedure mandatory to be followed by the Magistrate. Similarly, by use of word "shall" in Section 241-A, Cr.P.C., the learned trial Court was not competent to charge sheet the petitioner without providing a gap of at least seven days in between supply of copies of documents and framing of charge.

8. When confronted with the illegality committed by the learned trial Court, learned AAG fairly and frankly conceded that the same being not curable under Section 537, Cr.P.C., the case be remanded to the learned trial Court for trial denounce. Learned counsel for the petitioner contended that petitioner has already served out the substantive sentence and that all the family members of the petitioners have valid afghan refugees cards about their legal stay in Pakistan and that he has sufficient material which justify the stay of the petitioner as legal in Pakistan, therefore, requested for release of the petitioner on bail.

9. For what has been discussed above. The orders/judgments of both the Courts below are set aside. The case is remanded to the learned trial Court for trial denounce in accordance with law.

The learned trial Court shall conclude the trial as early as possible, but not later than a month from the date of receipt of the record by proceeding with the case on day to day basis. Petitioner is directed to file application for bail before the learned trial Court, which shall be disposed of independently. Office is directed to send the record to the learned trial Court, within two days, without fail.