BILAL Versus State
ABDUL MAALIK GADDI, J .---By this appeal, the appellant has assailed the legality and propriety of the judgment dated 10.01.2018 passed by the learned 1st Additional District and Sessions Judge, Malir, Karachi in Sessions Case No.527 of 2017, (re: The State v. Bilal), in Crime No.254 of 2017 registered at Police Station FIA AHT Circle, Karachi, under sections 3(2)(a)(b), 13/14, Foreigners Act, 1946 read with sections 420/468/471/109, P.P.C., whereby the learned trial Court after full dressed trial, convicted the appellant under section 265-H(2), Cr.P.C. for offence under section 14(2) of Foreigners Act, 1946 and sentenced him to suffer R.I. for one year with fine of Rs.5000/- and in default in payment of fine, it was further ordered that appellant shall suffer S.I. for one month more. The appellant was further convicted for offence under sections 420/468/471/109, P.P.C. to suffer R.I. for year with benefit of section 382-B, Cr.P.C. It was further ordered to Superintendent Jail, Home Secretary, Home Department, Government of Sindh, Secretary Interior Department, Ministry of Interior and Foreign Affairs, Government of Pakistan to make arrangements for providing consulate access to the accused for the purpose of deportation and make all necessary arrangements.
2. Brief facts of the prosecution case in nutshell as per FIR lodged by Inspector Jaffar Hussain, Incharge Shift 'D' FIA I & HS Departure JIAP, Karachi, on 26.07.2017 that on the basis of enquiry No.400 of 2017 dated 26.07.2017 and VRF bearing No.48 of 2017 dated 26.07.2017, it revealed that 1-pax Bilal son of Mannan was offloaded on inquiry it transpired that he is by birth Bangladeshi National and permanent resident of village Mathiagoda, PO Sadgazi Bazar, Police Station Saganlnayya, District Pheni, Bangladesh. In the year 1981-82 he in his childhood arrived in Pakistan from Bangladesh together with his family on travel document, after some time his family members returned back to Bangladesh in the year 1987/88, whereas, he was not interested to return back to Bangladesh and engaged himself to different places for work in year 2001, he get issued Alien Card from NARA Karachi and remained getting extension to 2013. In the year 1997/98, he came in contract with one agent who after receiving of Rs.500/- gave him NIC 504-76-280126. In the year 2004, he obtained computer CNIC on the basis of above stated old manual NIC succeeded to obtain CNIC No.42101-1534578-1 issued on 30.12.2004 from NADRA office, Habib Chowrangi Karachi. On the basis of CNIC he got Pak. Passport No.AC3705781 dated 19.11.2005. On the basis of said passport he got visit Bangladesh 5/6 times. Now he was intending to visit Bangladesh to see his parents, wife and children. On the said date, while he was proceeding to Dhaka, Bangladesh by flight No.PK-266, on the basis of said passport. During immigration clearance, his particulars were hit in IBMS system as non-national.
3. The charge was framed on 06.09.2017 against the appellant by the learned trial Court at Ex.2, to which he pleaded not guilty and claimed to be tried vide his plea at Ex.2/A.
4. At trial, in order to establish accusation against appellant, prosecution had examined PW-1 SIP Ameer Akbar Khan at Ex.3, who produced memo of arrest at Ex.3/A; learned ADPP given up PW at Ex.4; PW-2 Inspector Jaffar Hussain at Ex.5, who produced offloadee report, passport, CNIC of accused, IBMS report, stop person report, original ticket of accused, Visa No.A0405258 along with Visa receipt at Ex.5/A to Ex.5/A-6 respectively; PW-3 Syed Wajahat Hussain at Ex.6, who produced letters at Ex.6/A to Ex.6/A-3; PW-4 ASI Ibrahim Khan at Ex.7, who produced FIR, verisys report, letter, NARA report, Finger Impression report, letter, NADRA information report at Ex.7/A to Ex.7/G-1 respectively. These witnesses were cross-examined by the Counsel for the appellant and thereafter, learned AD-Legal closed the prosecution side vide statement at Ex.8.
5. Statement of appellant was recorded under section 342, Cr.P.C. at Ex.9, in which he has denied to have committed offence as alleged by the prosecution. He further claimed that all the prosecution witnesses are FIA officials and they have falsely implicated him in this case and he is Pakistani national. In support of his version, he produced Birth Certificate issued by Secretary Union Council, Union Council Committee No.19, PIB Colony, Karachi; Certificate of Domicile and Permanent Residence Certificate, both issued by Deputy Commissioner Karachi (Central); CNIC issued by NADRA authorities; Passport validity of five years with effect from 19.11.2005 to 18.11.2010, which was renewed for further five years with effect from 08.05.2013 to 17.11.2018, both passports were issued by Ministry of Interior, Government of Pakistan (all documents were originally seen and returned). However, he did not examine himself on oath nor he produced any witness in his defence.
6. Mr. Syed Abid Hussain Shah Kazmi, learned Counsel for the appellant has contended that the appellant has successfully discharged the onus of burden through production of documentary evidence. In support of his version, appellant has produced Birth Certificate issued by Secretary Union Council, Union Council Committee No.19, PIB Colony, Karachi; Certificate of Domicile and Permanent Residence Certificate, both issued by Deputy Commissioner Karachi (Central); CNIC issued by NADRA authorities; Passport validity of five years with effect from 19.11.2005 to 18.11.2010, which was renewed for further five years with effect from 08.05.2013 to 17.11.2018, both passports were issued by Ministry of Interior, Government of Pakistan (all documents were originally seen and returned). It is vehemently contended that the prosecution has failed to rebut the aforesaid documents, even did not bother to send such documents for verification, thus, in the circumstance and in the light of above documents, it is clearly proved that appellant is bona fide citizen of Pakistan by birth as his parents were also resident of Pakistan. The prosecution has miserably failed to establish its case and stands on its leg, as such, the case against the accused is highly doubtful, who has not committed the offences which contravene sections 3(2)(a)(b)/13/14 of Foreigner Act, therefore, he may be acquitted.
7. In Contra, Mr. Muhammad Nadeem Khan, learned Assistant Attorney General has vehemently contended that the appellant has been charged under sections 3(2)(a)(b)/13/14 of Foreigners Act, 1946, therefore, burden of proof lies upon his shoulders as provided under Section 9 of the Act that he is not a foreigner. It is further contended that the documents produced by the appellant seems to be forged one as no other documents have been produced before this Court that appellant's father was resided and died in Pakistan. Even accused failed to produce anybody as his defence witness to gave strengthen to his plea. Lastly, he prayed for the dismissal of this appeal.
8. I have given my anxious thoughts to the contentions raised at the bar and have gone through the documents and evidence adduced by the parties before trial Court.
9. It is the case of appellant that he is Pakistani by birth and his parents were also Pakistani and buried in Pakistan, but this fact has been denied by the learned Assistant Attorney General by arguing that the appellant is Bangladeshi National and he managed and prepared the fake documents just to show him as Pakistani. Since there is words against words and if it is the case of words against words then burden heavily lay upon the person, who asserted affirmatively, even otherwise, Section 9 of Foreigners Act, 1946 cast duty upon the defence to establish that the appellant was not foreigner. For the sake of convenience, it would be proper to reproduce the said Section herein below:-
"Section 9 Burden of Proof.---If in any case not falling under section 8 of any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving of that such person is not a foreigner or is not a foreigner of such particular class for such description as the case may be, shall notwithstanding anything contained in Evidence Act, 1972 lie upon such person."
10. I have perused the case files with the able assistance of the parties Counsel, it reveals that during trial, the appellant has produced the documents viz. Birth Certificate issued by Secretary Union Council, Union Council Committee No.19, PIB Colony, Karachi; Certificate of Domicile and Permanent Residence Certificate, both issued by Deputy Commissioner Karachi (Central); CNIC issued by NADRA authorities; Passport validity of five years with effect from 19.11.2005 to 18.11.2010, which was renewed for further five years with effect from 08.05.2013 to 17.11.2018, passport was issued by Ministry of Interior, Government of Pakistan (all documents were originally seen and returned). Moreover on close scrutiny of the entries of the passport, which is on record showing that appellant had travelled on the basis of this Pakistani passport in Dubai and Duha more than once. These documents established a chain of circumstances relating to the habitation and existence of relatives in Pakistan. The nature of documents produced by the appellant in support of his case, as highlighted above, appears to be issued by competent authority/organization certainly after due verification and inquiry cannot be termed as valueless, so also these documents are still hold in field. It has also been brought in evidence that passport and CNIC of the appellant have been issued by concerned officials. Therefore, under Article 129(e) of Qanun-e-Shahadat Order, 1984, which says that Judicial and official acts would be presumed to have been regularly performed. In this respect, I am fortified with the case of Muhammad Ali and 25 others v. Hassan Muhammad and 6 others reported as PLD 1994 Supreme Court 245.
11. Since it is case of huge documentary evidence in favour of appellant, but the trial Court has discarded these documentary evidence without assigning any valid and good reasons. During the course of arguments, I have specifically asked the question from the learned Assistant Attorney General if the documents produced by the appellant is forged then whether these documents have been cancelled by any competent authority, he has no answer with him. I have again also asked the question from learned Assistant Attorney General as to whether any action has been taken against the person, who issued these documents in favour of appellant, he again replied in negative. It also appears from the record that the case of the appellant is based upon documentary evidence as referred to above, whereas, the case of the prosecution is rest upon the oral evidence. It is settled principle of law that documentary evidence always prevail upon oral evidence. It has been brought on record that these documents are still holds in field and have not been cancelled by the concerned authorities. In this regards, I am supported with the case of Syed Akhtar Hussain Zaidi v. Muhammad Yaqinuddin reported as 1988 SCMR 753, wherein it has been held as under:-
"Art. 72-Documentary evidence---Rebuttal--- Mere oral assertion is not sufficient to rebut documentary evidence."
This case pertains to year 2017 and during this intervening period, neither any adverse record, nor any previous criminal history come on the record. I once again asked the question from learned Assistant Attorney General to show any adverse record against the appellant during this period; again, he has no answer with him. In light of the above cited case law, it appears that presumption of truth always attached with the documentary evidence and not to oral evidence and merely saying that appellant is Bengali by origin for that fact alone, he cannot be termed as foreigner. During the course of arguments, I have again asked the question from learned Assistant Attorney General, on which date, the appellant has entered illegally into Pakistan from Bangladesh, he has no answer with him.
12. In view of the above, the evidence produced by the appellant was more weighty than evidence of prosecution side. He, therefore, do not deserve to be convicted and is acquitted of the charge. Consequently, the convictions are set-aside. Obviously, the order of the Court for deportation also stand set-aside. With this judgment, the appeal is accepted. The appellant is present on bail, his bail bonds stand cancelled and surety discharged.
SA/B-28/Sindh Appeal accepted.