MUHAMMAD NASIR Versus State
ABDUL MAALIK GADDI, J .---Through this appeal, the appellant has assailed the legality and propriety of the judgment dated 30.06.2017 passed by the learned 1st Additional Sessions Judge, Malir, Karachi in Sessions Case No.892/2013, re. The State v. Muhammad Nasir, in Crime No.140/2013 registered at police station FIA AHT Circle, Karachi, under sections 3(2)(a)(b), 13/14, Foreigners Act, 1946 read with sections 419/420/468/471/109, P.P.C., whereby the learned trial Court after full dressed trial, convicted and sentenced the appellant as stated in the paragraph No.18 of the impugned judgment. For the sake of convenience, it would be proper to reproduce the said paragraph of the impugned judgment, which reads as under:-
"18. 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, and offence under section 419, P.P.C. and 420, P.P.C., therefore, accused Mohammad Nasir son of Younus is convicted and sentenced under section 265-H(2), Cr.P.C. to suffer Rigorous Imprisonment for one year and pay fine of Rs.5,000/-, for committing the offence under section 14(2) Foreigners Act, in default of payment of fine the accused shall suffer Simple Imprisonment for 02 months more. The accused is also convicted and sentence in the offence under section 419, P.P.C. for one year and 420, P.P.C. for one year, all the sentence concurrently with the sentence. The accused shall be entitled for benefit under section 382-B, Cr.P.C. The accused is present on bail, he is taken in custody and remanded back to jail.
It is directed to Superintendent Jail, Home Secretary, Home Department, Government of Sindh, to the Secretary Interior Department, Ministry of Interior and Foreign Affairs, Government of Pakistan to make arrangement for providing consulate access to the accused for the purpose of deportation and make all the necessary arrangements. Office is directed 'issue letter to the concerned."
2. Concisely, the facts segregated from the FIR lodged by Inspector Mohammad Akber Sarki, In-charge Shift 'A' FIA, I and AHS Arrival JIAP, Karachi, on 28.06.2013 are that on the basis of Enquiry No.221 of 2013 dated 28.06.2013 and VRF bearing No.127 of 2013, it revealed that the pax Mohammad Nasir son of Younus arrived at JIAP Karachi from Athens on the strength of Emergency Passport No.SS-78654 issued on 26.03.2013 from Athens. He was produced said EP and Pak CNIC No.4160205861181, but he detained and referred to FIA Circle. During inquiry, he disclosed that he had left Pakistan for Athens Greece through unauthorized route to cross illegally borders of Mand Billo Iran, Turkey with the assistance of local agents of Karachi against the payment of handsome amounts i.e. 400,000/- to agent known by the name of Dadan living some where in Tinhatti, Karachi, who arranged his transportation upto Greece about two years ago. Thereafter, the pax reached at Mand Billo Iran and with the help of the associates (Irani Baloch) of main agent, he reached Greece by road without any passport/ travel documents and worked there illegally, due to present situation of Greece, he decided to return back to Pakistan. Consequent upon, case was registered inter alia on the above facts.
3. The charge was framed on 20.01.2014 against the appellant/ accused by the learned trial Court, to which he pleaded not guilty and claimed to be tried.
4. At trial, in order establish accusation against to appellant/ accused, prosecution had examined the following witnesses:-
(i) PW-1 Inspector Syed Qaim Raza at Ex.3, who produced memo of arrest at Ex.3/A;
(ii) PW-2 LDC Mazhar Hussain at Ex.4, who produced verisys report at Ex.4/A;
(iii) Learned AD Legal FIA given up the PW Inspector Mohammad Shoaib as co-mashir vide statement at Ex.5 and also filed application under section 227, Cr.P.C. dated 09.09.2015 at Ex.6;
(iv) PW-3/1.0. Inspector Ghulam Akbar Zardari at Ex.7, who produced enquiry report, emergency passport, CNIC of accused, colour copies of the CNICs of his parents namely Younus and Mst. Husna, verisys report of accused, his father and mother, notice, envelope, FIR, letter to NADRA for verification, letter to Deputy Family Tree, copy of register, letter to regional passport office for verification, verification letter at Exs.7/A to 7/R respectively;
(v) PW-4 SI Mohammad Akbar at Ex.8.
These witnesses were cross-examined by the counsel for accused. Thereafter, leaned Assistant Director legal for FIA closed the prosecution side vide Statement at Ex.9.
5. Statement of appellant/accused was recorded under section 342, Cr.P.C. at Ex.10, in which he has denied the allegations by pleading his innocence. He further claimed that all the prosecution witnesses are police officials and they demanded illegal gratification for release, due to nonpayment, he was implicated him in this false case and pray for justice. He produced copy of CNIC of his father Younus at Ex.10/A, old NIC of his father at Ex.10/B, receipt of KMC graveyard of his mother as well as payment receipt at Ex.10/C and Ex.10/D respectively. However, accused neither examined himself on Oath nor led any evidence in his defence.
6. Learned trial Judge framed the following points for determination of case:-
(i) The points for determination in this case would be; whether on 28.06.2013, the FIA authorities had detained the present accused at JIAP Karachi when he illegally entered in to Pakistan being non-national from Greece/Athens on strength of Emergency Passport No.SS-78654 issued from Athens of Pakistan Embassy, and also fraudulently obtained the CNIC by committing cheating and used the same as genuine, as alleged by the prosecution?
(ii) What offence, if any has been committed by the accused?
7. On appraisal of the evidence trial Court answered the point No.1 in affirmative and convicted the appellant as stated above.
8. Syed Abid Hussain Shah Kazmi, learned counsel for the appellant has contended that during search with regard to illegal immigrants at Jinnah International Airport, Karachi, complainant apprehended the appellant and demanded proof of his nationality being Pakistani. Sub-Inspector Muhammad Akbar Sarki (Complainant) being investigating officer of the case in presence of Muhammad Shoaib Khan and Syed Qaim Raza Inspector FIA AHTC, Karachi arrested the appellant for illegally entering into the territory of Pakistan. It is further contended that there is no iota of evidence to establish the factum of illegal entry of the appellant on the contrary, he had produced his Birth Certificate issued by District Municipal Corporation Karachi (East) on 09.06.1999, CNIC issued by NADRA authority on 17.12.2008, Nikahnama Form-2 issued by Nikah Registrar, Nanak Wara Saddar Town, Karachi dated 31.12.2013, Computerized Marriage Registration Certificate with one Mst. Jameela issued by Secretary Union Council, Chakra Goth, District Korangi, Karachi dated 09.03.2018, Birth Registration Certificates of their daughters namely Sidra and Maryam issued by the Secretary Union Council, Gulzar Colony, Korangi, Karachi dated 07.11.2017, Birth Registration Certificate of her wife namely Mst. Jameela issued by the Secretary Union Council, 100-Quarters, Korangi Town, Karachi on 17.02.2016, Permanent Residency Certificate (PRC) of appellant issued by the Deputy Commissioner, Karachi (Central) dated 16.05.2018, Old NIC dated 19.05.1997 and CNICs of his father namely Younus dated 26.06.2002 and 30.03.2009, CNIC of her mother namely Mst. Husna dated 06.04.2009, Domicile and PRC of his father Younus issued by the District Coordination Officer dated 11.12.2008 and 31.12.2005 and Death Registration Certificate of her mother Husna issued by the Secretary Union Council, Supermarket Liaquatabad Town, Karachi on 07.07.2017, which effectually proves the bona fide citizen and established by proof of habitation and existence of relatives in Pakistan and these documents were issued by the concerned authorities of Government of Pakistan after due inquiry and investigation, so also these documents are still hold in field and have not been cancelled by the concerned authorities. Section 9 of Foreigners Act, 1946 cast duty upon the defence to establish that the appellant was not foreigner is reproduced 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."
9. By virtue of Section 16-A of Pakistan Citizenship Act, 1951, a person domiciled in the territory of Pakistan from Bangladeshi origin before 16.12.1971 alone cannot be treated as foreigner as Bangalis were given statutory recognition. It reveals from the record and during the course of arguments, the appellant has produced his Birth Certificate issued by District Municipal Corporation Karachi (East), CNC issued by NADRA authority, Nikahnama Form-2 issued by Micah Registrar, Nanak Wara Saddar Town, Karachi, Computerized Marriage Registration Certificate with one Mst. Jameela issued by Secretary Union Council, Chakra Goth, District Korangi, Karachi, Birth Registration Certificates of their daughters namely Sidra and Maryam issued by the Secretary Union Council, Gulzar Colony, Korangi, Karachi, Birth Registration Certificate of her wife namely Mst. Jameela issued by the Secretary Union Council, 100-Quarters, Korangi Town, Karachi, Permanent Residency Certificate (PRC) of appellant issued by the Deputy Commissioner, Karachi (Central), Old NIC and CNIC of his father namely Younus, CNIC of her mother namely Mst. Husna, Domicile and PRC of his father Younus issued by the District Coordination Officer and Death Registration Certificate of her mother Husna issued by the Secretary Union Council, Supermarket Liaquatabad Town, Karachi. The above referred 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. Since the parents of the appellant are not being accused of entering into Pakistan illegally, the plea of the appellant carry weight, as the documents highlighted above when confronted to learned Assistant Attorney General, he has no answered with him. However, he argued that the appellant is not a Pakistani National and according to him there is oral evidence that appellant is Bengali. Reverting to such contention of learned Assistant Attorney General, it is suffice to say that documentary evidence always prevail upon 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 also asked the question from learned A.A.G, whether the documents as referred to above and produced by the appellant have been cancelled by the concerned authorities, again he has no answer.
10. The upshot of the above discussion is that the appellant had discharged the burden of proof that he was not a foreigner, he had proved habitation and assistance of his relatives in Pakistan and discharged the burden vested upon him in term of section 9 of the Foreigners Act, 1946, therefore, the impugned judgment is not sustainable in law, which is hereby set-aside The appellant is present on bail. He is acquitted from charge. His bail bond is cancelled and surety stands discharged. Consequently appeal is accepted. The order of deportation of the appellant is also set aside.
SA/M-12/Sindh Appeal allowed.