JAN MUHAMMAD vs The STATE
This matter arises from a post-arrest bail application filed by the applicant Jan Muhammad, who was confined in jail in connection with Crime No. 08 of 2017 registered at Police Station Naperkot, District Shikarpur, for an offence under section 14(2) of the Foreigners Act, 1946, after his bail was earlier declined by the Additional Sessions Judge-V, Shikarpur. The core legal question was whether the applicant was entitled to post-arrest bail given that NADRA authorities verified his family data while his own nationality remained subject to further proof, and whether the alleged offence fell within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898. The court held that the applicant was entitled to bail as the offence carried a punishment extendable up to five years thus falling outside the prohibitory clause, the challan had been submitted rendering him unnecessary for further investigation, and NADRA verification supported aspects of his identity. The court laid down the principle that where an offence does not fall within the prohibitory clause and the accused is no longer required for investigation, bail should generally be granted, leaving deeper questions of nationality for trial.
- Whether an accused charged under section 14(2) of the Foreigners Act, 1946 is entitled to post-arrest bail when the offence does not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898?
- Does the verification of family data by NADRA authorities constitute a ground for granting post-arrest bail pending trial regarding a disputed question of nationality?
- Is an accused person entitled to bail when the challan has been submitted and they are no longer required for further investigation?
- Section 14(2), Foreigners Act 1946
- Section 497, Code of Criminal Procedure 1898
ORDER
AFTAB AHMED GORAR, J.--- Applicant/accused Jan Muhammad Salmankhail Pathan is confined in jail in Crime No,08/2017 registered at Police Station Naperkot, District Shikarpur, for offence under section 14(2) of Foreigners Act, 1946. He applied for grant of post-arrest bail, which was declined by the learned Additional Sessions Judge-V, Shikarpur, vide order dated 23.05.2017, therefore, he has approached this Court with similar request.
2. According to the case of prosecution, on 01.3.2017, at about 4.00 p.m. the applicant/accused Jan Muhammad being citizen of Afghanistan was apprehended by a police party headed by HC Iltaf Ali Shah of P.S. Naperkot at Kandhkot-Shikarpur main road near Lanjo Larro without any valid and legal document of his availability in Pakistan, therefore, he was booked in the instant case.
3. Learned Counsel for the applicant contended that the applicant is Pakistani by birth being originally resident of South Waziristan and presently Village Khan Muhmmad Banglani, Taluka Khanpur, District Shikarpur and he has been falsely roped in the instant case by the police just to show their efficiency. It is further contended that the applicant has been doing business in District Shikarpur for the last 50/60 years and in support of such contentions birth certificate of applicant issued by Assistant Political Agent Wana South Waziristan has been placed on record. Learned Counsel further contends that the alleged offence carries punishment extendable upto five years, therefore, the same does not fall within prohibitory clause of section 497, Cr.P.C. Lastly, learned Counsel submits that in the light of documentary proof produced by the applicant to be a Pakistani, the case against the applicant requires further enquiry. He further contended that the case has been challaned and the applicant is not required for further investigation.
4. The learned Assistant Attorney General produces with his statement report dated 01.8.2017 issued by Assistant Director (V&R) RHO NADRA, Sukkur and submits that the data of CNICs provided by the applicant/accused was verified and found to be true by the NADRA authorities,. however, according to him, still the applicant is under legal obligation to prove his identity of being Pakistani National. He, however, raises no objection for release of the applicant on bail.
5. It is an admitted position on record the applicant during interrogation disclosed the names of his family members to the police, which on verification by the NADRA Authorities have been found to be true, however, still the applicant has to prove his own identity of being a Pakistani National by producing some tangible material/evidence. The offence, with which he is charged, is punishable upto five years, which does not fall within prohibitory clause of Section 497, Cr.P.C. and the case has also been challaned, hence the applicant is not required for further investigation.
6. In the light of above facts and circumstances, the applicant is directed to be released on bail on his furnishing solvent surety in the sum of Rs,100,000/- (Rupees One Lae) and P.R. bond in the like amount to the satisfaction of the trial Court.