Qazi QASIM Versus State
ABDUL MAALIK GADDI, J.--- Through this appeal, the appellants have assailed the legality and propriety of the judgment dated 29.11.2017 passed by the learned 1st Additional Sessions Judge, Malir Karachi in Sessions Case No.1188/2013 (Re: The State v. Abul Hussain and others), in Crime No.224/2013 registered under sections 3(2)(a)(b), 13/14, Foreigners Act, 1946 read with sections 420/468/471/109, P.P.C. at Police Station FIA, A.H.T. Circle, Karachi, whereby the learned trial Court after full dressed trial, convicted and sentenced the appellants as stated in point No.2 of the judgment. For the sake of convenience, it would be proper to reproduce the relevant portion of impugned judgment, which reads as under:-
"Point No.2.
20. In view of discussion on above point No.1, since prosecution has successfully proved its case for offence under section 14(2) Foreigners Act, 1946, therefore, accused Qazi Qasim son of Haji Ali Akbar and Deedar Hussain son of Qazi Qasim, are convicted and sentenced under section 265-H(2), Cr.P.C. to suffer Rigorous Imprisonment for one year and paid fine of Rs.5000/ - (five thousands) each, in default of payment of fine, the accused shall suffer Simple Imprisonment for 01 month more to each accused, they are also convicted and sentenced in an offence under sections 420, 468, 471, P.P.C. R.I. for one year in each offence to each accused, the above convictions will run concurrently."
2. It may be mentioned here that present appellants through impugned judgment were also ordered to be deported to Bangladesh on completing of their sentences and after observing all legal and codal formalities. It is pertinent to mention here that co-accused though convicted and sentenced through impugned judgment, but they have been enlarged on probation by entrusting their custody to Probation Officer, as envisaged under the provision of section 5 of Probation of Offender Ordinance, but they have also not filed any appeal.
3. The brief facts of the prosecution case leading to the filing of this appeal are that convicts/appellants were arrested on 04.10.2013 by FIA officials on the statement of co-accused with allegations that they being agents, have facilitated the co-accused in providing fake visas of Bangladesh after receiving from them Rs.40,000/- to Rs.60,000/- and with further allegations that appellants have admitted before the FIA officials that they are Bangladeshi National and have entered into Pakistan illegally. Hence, this case.
4. It also appears from the record that after registration of FIR, the investigation was carried out by Inspector Syed Zulfiqar Haider, who after recording the statements of PWs under section 161, Cr.P.C. and after completing all the formalities, submitted the final report against the appellants in the Court of law.
5. The charge was framed on 19.03.2014 against the appellants/ accused by the learned trial Court, to which appellants/accused pleaded not guilty and claimed to be tried.
6. At trial, in order to establish accusation against appellants/ accused, prosecution had examined PW-1 Syed Muneer Ahmed Shah at Ex.4, who produced offloading report and five different passports and NIC at Ex.4/A to Ex.4/G respectively; PW-2 Inspector Maqsood Ali Khan at Ex.5, who produced memo of arrest and office cards at Ex.5/A to Ex.5/H respectively; PW-3 Inspector/I.O., Syed Zulfiqar Haider, who produced letter, reply of letter, verisys report and FIR at Ex.6/A to Ex.6/E respectively. These witnesses were cross-examined by the counsel for accused. Thereafter, learned AD-legal for FIA closed the prosecution side vide Statement at Ex.7.
7. Statement of appellants/accused were recorded under section 342, Cr.P.C. at Ex.8 and Ex.9 respectively, in which they have denied the allegations as levelled by the prosecution by stating that they are innocent and Pakistani as well as no incriminating material was recovered from them. Accused Deedar Hussain in support of his version, produced copies of CNIC and birth certificate at Ex.8/A and Ex.8/13 respectively and accused Qazi Qasim also produced copies of CNIC, birth certificate, PRC, passports, death certificates of his father and mother, employee permanent absorption certificate issued by PIA, fixation of salary at Ex.9/A to 9/G respectively. However, accused neither examined themselves on Oath nor led any evidence in their defence.
8. Learned counsel for the appellants has argued that case against the appellants is false and has been registered due to enmity. Besides, according to him, the appellants are father and son to each other and are Pakistani Nationals as well as they are residing in Pakistan since long. He further argued that in fact prosecution evidence was nothing except that the appellant were Bangali by origin. The alleged confession before FIA officials was not admissible in evidence and in this connection, he has drawn the attention of this Court towards the statements of accused recorded under section 342, Cr.P.C., wherein appellants have denied the case and claim of the prosecution by producing their passports bearing No.AH14894611, KE445349, G872067, A575435, AC011278 and E551624 available on record at page Nos.81 to 113 of R&P, death certificates of parents of appellant Qazi Qasim available on record at page No.115 and 117 of R&P, letter of permanent absorption service in PIA available on record at page No.119 of R&P, fixation of salary in PIA available on record at Page No.121 of R&P, CNICs, birth certificates, verification of national status carried out by SSP, Special Branch, Rawalpindi dated 09.06.1994 available on record at page No.137 of R&P and Domicile/PRCs on record at pages Nos.169 and 171 of appeal file, as according to him, these documents are available with them and the same have been issued by competent authorities after due verification and inquiry, but learned lower Court did not consider the documentary evidence available on record on flimsy and fallacious grounds, as such, the conviction and sentence awarded to the appellants are illegal and against the evidence available on record, which may be set-aside and the appellants may be acquitted from the charge.
9. On the other hand, Mr. Muhammad Javed K.K., learned Assistant Attorney General for the State contended that the impugned judgment is just and proper, the appellants are Bangladeshi Nationals and they had entered in Pakistan illegally and they have managed all the documents just to show them as Pakistani National. According to him, their CNICs have been cancelled by NADRA authority, as such, the learned lower Court has rightly discarded the documentary evidence so brought on record by the appellants, as such, no illegality is apparent on the face of record passed by the lower Court, so as to interfere in it by this Court.
10. I have carefully heard the learned counsel for the parties and scanned the entire evidence available on record.
11. After careful consideration and meticulous examination of the available record, suffice to say that mere such nature of offence is not sufficient to convict the accused because the accused continues with presumption of innocence until found otherwise at the end of the trial. It is the settled principle of law that burden is always upon the prosecution to prove the case beyond shadow of doubt. Keeping in view of this basic touchstone of criminal administration of justice, I have examined the ocular as well as documentary evidence on record along with impugned judgment.
12. From the perusal of FIR and documents on record collected during investigation, it transpired that appellants/accused have been involved in this case on the basis of statements of co-accused during investigation. As per mashirnama of arrest and recovery of appellants dated 04.10.2013 available on record at Ex.5-F showing that no incriminating material has been recovered from appellants except PIA loading card and Airport Entry Pass Nos.07299 and 70588 issued by the A.S.F., Karachi in favour of appellant Qazi Qasim. This fact itself showing that the appellant Qazi Qasim was in service of Pakistan International Airport. Prima facie, there is no direct evidence against the appellants regarding the commission of the offence under sections 420/ 468/471/109, P.P.C. Besides, confession made by accused against the co-accused before police is inadmissible in evidence in view of Article 38 of Qanun-e-Shahadat Order, 1984. In this connection, I am supported with the case of Abdul Qadir Motiwala v. The State reported as 2000 PCr.LJ 1734 (D.B.).
13. I have gone through the entire record available in case file showing that in this case question involved relates to citizenship. If a person having acquired the citizenship of Pakistan is deported that will have far-reaching effects. Same way if a foreigner having effected his entry illegally is allowed to stay in Pakistan that too will have the impact. Therefore, it appears that this is not a routine criminal case. Here in this case, very important civil rather constitutional right is involved. Such an important case has been given very little importance by the investigating agency. They did not take pains to investigate the case deeply and sincerely and sent the appellants on the basis of their alleged admissions before the police, which is not admissible evidence.
14. It appears from the record that Death Certificates issued by Secretary, Union Council, Jamal Colony, Gulshan-e-Iqbal, Town-8, Karachi at Ex.9/E and Ex.9/F available on record showing that father and mother namely Haji Ali Akbar and Meherjan Bibi of appellant Qazi Qasim were died and buried in Karachi on 04.07.1973 and 29.01.1970 respectively. It means that the father and mother of appellant Qazi Qasim and the grandfather and grandmother of appellant Deedar Hussain were residents of Karachi. Learned Advocate for the appellants has drawn the attention of this Court towards the birth certificates of the appellants available on record at Ex.8/B and Ex.9/B and submitted that the appellants become major here and also married here at Karachi along with their families and the parents of the appellant Qazi Qasim has died and buried in Karachi and if the appellants are declared to be Bangladeshi and deported, it will be great hardship and injustice to them. Also the wife and children of the appellants would be the worst sufferers in that situation. It also reveals from the record that at the time of recording the statements under section 342, Cr.P.C. the appellants have produced certain documents in their favour showing their Nationality as Pakistani viz. passports bearing Nos.AH4894611, KE445349, G872067, A575435, AC011278 and E551624 available on record at page Nos.81 to 113 of R&P, death certificates of parents of appellant Qazi Qasim available on record at pages Nos.115 and 117 of R&P, letter of permanent absorption service in PIA available on record at page No.119 of R&P, fixation of salary in PIA available on record at page No.121 of R&P, CNICs, birth certificates, verification of national status carried out by SSP, Special Branch, Rawalpindi dated 09.06.1994 available on record at page No.137 of R&P and Domicile/PRCs on record at pages Nos.169 and 171 of appeal file, but the learned lower Court failed to appreciate these documents. It also did not appreciate properly that the father and mother of appellant Qazi Qasim were died and buried at Karachi. Trial Court has also utterly failed to appreciate the fact that verification of national status of appellant Qazi Qasim carried out by SSP, Special Branch, Rawalpindi on 09.06.1994 showing him as Pakistani National. These documents are of importance and cannot be ignored or excluded of the consideration by any sweeping remarks, but these documents were ignored by the trial Court without assigning any good reason. So far as, the documents produced by the appellants in their support are concerned, it reveals that these documents have been issued by the concerned authorities/organization on the basis of certain material or inquiry. The law attaches presumption of validating to the official acts or document, unless proved otherwise. In this respect, I am supported with the case of Muhammad Ali and 25 others v. Hassan Muhammad and 6 others reported as PLD 1994 SC 245.
15. The nature of documents produced by the appellants in support of their case, as highlighted in preceding paragraph No.13, appears to be issued by competent authority/organization certainly after due verification and inquiry cannot be termed as valueless. Merely saying that the appellants are Bangali origin for that fact alone, they cannot be termed as foreigners. Bangalis were given statutory recognition as citizen of Pakistan under Pakistan Citizenship Act, 1951, by inserting new section 16(A) in it if they were in Pakistan before 1975. Here in this case, as observed above that father and mother of appellant Qazi Qasim and grandfather and grandmother of appellant Deedar Hussain were died and buried at Karachi on 04.07.1973 and 29.01.1970, therefore, the plea of appellants are not weightless especially when they produced the documents highlighted above. During the course of arguments, I have specifically asked the question from learned A.A.G. that on which date, appellants were entered into Pakistan illegally, he has not replied satisfactorily.
16. It has vehemently been argued by the learned Assistant Attorney General that NICs of the appellants have been cancelled by NADRA authority being non-national, therefore, appellants are not entitled for any relief. I, however, not felt persuaded to agree with the learned A.A.G. in this regard for the reasons that the NICs have been allegedly cancelled by the NADRA without hearing the appellants and admittedly before passing the cancellation order, the appellants have not been heard. It is therefore manifest that maxim "audi alteram partem" is applicable to judicial as well as to non-judicial proceedings and at all time, read as a part of every statute even such right has not been expressly provided therein. The NADRA is a government department and under the law, they are supposed to do functions in accordance with the law, but here in this case, they have committed the violation of law by not providing them personal hearing. In this view of the matter, there has been clear violation of the Principle of Natural Justice. In this regard I am fortified with cases or Mrs. Anisa Rehman v. P.I.A.C. and others reported as 1994 SCMR 2232, Pakistan International Airline Corporation through Chairman and others v. Nasir Jamal Malik and others reported as 2001 SCMR 934 and Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Illahi and others reported as 2005 SCMR 678.
17. In view of the above, the evidence produced by the appellants was more weighty than evidence of prosecution side. They, therefore, do not deserve to be convicted. Consequently, the conviction is set aside. Obviously, the order of the Court for deportation also stands set aside. With this judgment, the appeal is accepted. The appellants shall be released forthwith if not required to be confined under any other legal order.
MH/Q-7/Sindh Appeal allowed.