MUHAMMAD SHAH JAHAN Versus State
ABDUL MAALIK GADDI, J.--- Through this criminal appeal, the appellant has assailed the legality and propriety of the judgment dated 26.08.2017 passed by the learned Additional Sessions Judge-I Malir, Karachi, in Sessions Case No.86/2014. (Re: The State v. Muhammad Shah Jahan), registered under sections 3(2)(a)(b), 13/14 Foreigners Act, 1946 read with Sections 419, 420/471, 109, P.P.C. under crime No.337/2013 of Police Station FIA AHT Circle, Karachi, whereby the learned trial Court after full dressed trial convicted and sentenced the Appellant as stated in paragraphs Nos.22 and 23 of the impugned Judgment. For the sake of convenience, it would be appropriate to re-produce the above paragraphs regarding conviction and sentenced to the Appellant are as under:--
"2.2. 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 Muhammad Shah Jehan son of Abdul Latif is convicted and sentenced under section 265-H(2) Cr.P.C. to suffer Rigorous Imprisonment for one years and pay fine of Rs.10,000/ -, in default of payment of fine the accused shall suffer Simple Imprisonment for 01 month more. The accused is also convicted for the offences under sections 419, 420, 471, P.P.C. to R.I. for the period of one year. The accused shall be entitled for benefit under section 382-B, Cr.P.C. Both the sentence will run concurrently. The accused is present on bail, he is taken in custody and remanded back to jail, his bail bond cancelled and surety discharged."
"23. 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 as early as possible to Bangladesh under intimation to this Court and not release the accused on expiry of sentence and shall continue to remain in custody for above period to enable arrangement for deportation of the accused in pursuance of Foreigners Act."
2. Facts necessary for the disposal of this criminal Appeal are as under:--
"Concisely, facts segregated from the FIR lodged by SI Muhammad Ali, In-charge Shift "D" F.I.A.I and AHS Arrival. JIAP, Karachi on 28.12.2013 are that; on the basis of enquiry No.495/2013 dated 29.12.2013, of FIA, AHT Circle, Karachi and VRF bearing No.289/2013 dated 28.12.2013, it revealed that; the pax Mohammed Shahjahan son of Abdul Latif while arrived from Dhaka (Bangladesh) on the strength of emergency passport No.321975 dated 18.11.2013, issued from High Commission of Pgkistan at Dhaka was detained by the immigration Authorities JIAP Karachi and sent to this circle for further verification. On scrutiny, the passport No.321975 in the name of Shahjahan issued on 31.10.1991, copy of CNIC No.42101-1428123-5, old copy of NIC No.501090, copy of domicile and D form and verification letter to SSP Central, Karachi found attached. On examination, he disclosed that he proceeded to Dhaka on Pakistani passport on valid visit visa, about three years ago in fake name to meet his relatives. After some time he lost his passport and got overstayed in Pakistan after that he approached to the High Commission of Pakistan to obtain Emergency Passport, on issuing he arrived to Pakistan. After stay about three years in Bangladesh, he was desirous to return back to Pakistan as such he obtained emergency passport. On 28.12.2013, while he reached at JIAP, Karachi by flight No.PK-267 dated 28.12.2013, on the strength of emergency passport. On confirmation, no record found in IBMS system. Hence, the above said documents seem to be fake/forged and passport not seems to be genuine/bona fide Pakistani. Consequent upon, case was registered inter alia on the above facts.
3. It appears from the record that charge against Appellant was framed at Ex:02 to which he pleaded not guilty and claimed to be tried vide his plea available on record at Ex:2/A.
4. Prosecution in order to substantiate the charge against the Appellant, examined (PW-1) mashir/Inspector Musaddiq Ali Shah as Ex.3, he produced memo. of arrest at Ex.3/A, (PW-2). Complainant/Inspector Muhammad Ali as Ex.6, he produced detainee report, IBM report, colored copy of passport, copy of MNIC, copy of CNIC, copy of Nikahnama, copy of domicile certificate, copy of PRC, receipt of NADRA, verification of National Identity of accused through High Commission of Pakistan Dhaka and emergency passport at Ex.6/A to 6/1 respectively. (PW-3) Inspector Muhammad Zubair as Ex.7, he produced FIR, verisys reports of accused, Tasleema Begum, Marium, Sand and Ismail being wife, daughters and son, letter issued by Assistant Director and copy of numerical register at Ex.7/A to 7/H respectively. Thereafter, learned A.D. Legal F.I.A. closed the side of prosecution vide his statement (Ex.7).
5. The statement of Appellant/accused was recorded under section 342, Cr.P.C. as Ex.9, denied the prosecution allegations claimed his innocence towards. He examined himself on oath under section 340(2), Cr.P.C. as Ex.10, and produced copy of Ration Card, Nikhanama, his MNIC and CNIC, CNICs of his wife, mother, father, from "B", birth certificates of his daughters and son issued by K.M.C., U.C. and NADRA, his domicile certificates PRC as well as his wife, son, his Qoumi Razakar Card, verification of his nationality through SHO and SSP at Ex.10/A to 10/V respectively, claiming to be Pakistani,. however he did not examined any witness in his defence.
6. Mr. Syed Abid Hussain Kazmi Advocate for Appellant mainly contended that the Appellant/Accused is Pakistani National and sufficient documentary evidence have been produced along with statement of Appellant on oath to be Pakistani national and his family too resided in Pakistan, for which documents issued by NADRA and other Authorities have already been produced in trial Court in this respect but trial Court did not consider/weight these documents and passed the Judgment in a hasty manner. It is also contended that the FIA Authorities has approached to NADRA and cancel CNIC of the Appellant. According to him before cancellation of CNIC under section 18(1) of National Database and Registration Authority Ordinance, 2000, notice was mandatory but as per prosecution story, no notice was given to Appellant before putting remarks as non-Pakistani. It is also contended that the competent Authority had already issued Domicile and PRC in favour of the Appellant by Additional Deputy Commissioner Karachi Central showing the date of birth of the Appellant as 1964. Apart from this the Appellant has also produced number of documents in his statement on oath but these documents have not been cancelled by any competent Authority as such the same are in field. According to him these documents were issued by the competent Authorities after due inquiry and investigation/verification, therefore, the same could not be discarded. It is also contended that since the Appellant having a documentary evidence being Pakistani as stated by him in his statement under section 340(2), Cr.P.C. but the FIR has been registered by the Complainant due to mala fide as the Appellant had refused to give him illegal bribe. Therefore, under the aforementioned facts and circumstances he has prayed for acquittal of the Appellant from the charge.
7. Conversely, Mr. Muhammad Shoaib Mirza, Assistant Attorney General for Pakistan while opposing the aforesaid contentions submitted that the prosecution has fully established its case against the Appellant beyond reasonable doubt by producing consistent/convincing and reliable evidence and the impugned conviction and sentenced awarded to the Appellant is the result of proper appreciation of evidence brought on record, which needs no interference.
8. I have given my anxious thoughts to the contentions raised at the Bar and have gone through the documents as produced by the Appellant and as also stated/point out in para 05 of this Judgment and evidence on record.
9. It is the case of the Appellant that he is Pakistani by birth and was born in the year 1964 in Karachi and in order to prove this fact he has produced his NIC and CNIC issued by competent Authority, Birth Registration Certificate issued by Secretary Union Council, Pak. Sadat Colony, Shah Faisal Town, Karachi, PRC and Domicile Certificate issued by Additional Deputy Commissioner, Karachi Central, showing his date of birth as 1964 in Karachi. He has also produced his registered Nikahnama with Mst. Tasleema dated 10.06.1986. The birth certificates of his children namely Marium, Muhammad Ismail, Sana and Muhammad Azeem are also on record. It also reveals from the record that father and mother of the Appellant namely Abdul Latif and mother Aliya Begum were died and buried in Karachi in the year 1977 and 1979 respectively, such Death Certificates issued by Secretary Union Council Pak. Sadat Colony, Shah Faisal Town, Karachi is also on record. Appellant has also produced the PRC and Domicile of his children and so also produced Verification Report. submitted by SSP District Central, Karachi with regard to VERIFICATION OF PAKISTANI NATIONALITY OF THE APPELLANT dated 07.08.2013 which is positive and no adverse remarks with regard to his non-Pakistani appears/shown in the said report. Since the Appellant has produced huge/weighty documentary evidence in support of his case. It appears from the record that all these documents have been issued by the competent Authorities naturally/obviously after due investigation, inquiry and verification. Almost all the documents are in field and these documents have not been cancelled by any Competent Authority as yet except CNIC and in this regard it is suffice to say that the said CNIC has been cancelled without any notice to Appellant and his personal hearing. Therefore it is yet to be determined by the concerned Authority/ Court when this matter brought to him/them whether the CNIC of the Appellant was cancelled illegally with mala fide or bona fide intention. However at present merely cancellation or blocking of CNIC does not debar a person of his Nationality if otherwise is proved. As observed above in this case the Appellant bas produced his PRC, Domicile and other documents with regard to his Pakistani National as stated above, therefore the Appellant has discharged his burden and burden shifted to prosecution, but prosecution in this regard has not produced any tangible evidence to disproof the case of the Appellant. During the course of arguments when the documentary evidence as produced by the Appellant in this case confronted to learned A.A.G. he did not reply properly. Even otherwise the above referred documents established a chain of circumstances relating to the habitation and existence of relatives in Pakistan. Nothing on record on behalf of prosecution that when Appellant was entered into Pakistan illegally. As observed father and mother of the Appellant were died and buried in Karachi in 1977 and 1979. It is not alleged that the father and mother of the Appellant were illegally entered into Pakistan. Under these circumstances the plea of the Appellant with documentary evidence carry weight and the learned AAG has not been able to controverted the said evidence.
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 terms of section 9 of the Foreigners Act, 1946 therefore, impugned Judgment is not sustainable in law which hereby stands set aside, the Appellant is present on bail. His bail bond stands cancelled and surety discharged. Consequently appeal is accepted. The order of deportation of the Appellant stands set aside.
JK/M-185/Sindh Appeal allowed.