Before Nazim Hussain Siddiqui, MEHBOOB ALAM and 3 others vs THE STATE

1. ' The applicants have prayed for quashment of the proceedings initiated against them under section 2/3 of the Foreigners Act, pending before learned Additional City Magistrate, Karachi West.

2. The facts relevant for decision of this application are as follows: ' A.S.I. Khanzada of Police Station Baldia Town on 14-4-1995 at 8-40 p.m. Arrested the applicants and 20 others, near Dawood Masjid Baldia Town, on the ground that they were foreigners and had entered in Pakistan illegally. Necessary FIR having No,85 of 1995 was registered. On completion of investigation, the charge-sheet was submitted before the Court having jurisdiction in the matter.

3. ' Mr. Gul Zaman Khan learned counsel for the applicants contended that applicants Mehboob Alam and Muhammad Hussain are citizen of Pakistan and hold National Identity Cards and likewise applicants Abu Saliq and Jan-e-Alam are also citizen of Pakistan and for the last so many years are serving in a private limited company namely M/s. Mustaqeem Dying and Printing Ltd. Learned counsel argued that the applicants being citizen of Pakistan, the case under Foreigners Act could not be registered against them. As against this, Mr. Ikram Ahmed Ansari learned Deputy Attorney- General submitted that, the applicants are foreigners and that they by resorting to illegal means, have obtained national identity cards and on the basis of forged documents they cannot claim the nationality of Pakistan. He also argued that the authenticity of the documents on which the applicants are relying is yet to be established and that the prosecution holds evidence to show that they hail from Bangladesh and are foreigners within the meaning of section 2(a) of the Foreigners Act. He also contended that, as per section 9 of the said Act, thee onus to prove that the applicants are not foreigners lie upon them.

4. ' It is true that under section 561-A, Cr.P.C. This Court has inherent powers to make such orders as may be necessary to give effect to any order or to prevent abuse of process of any Court or otherwise to secure the ends of justice. This power being extraordinary in nature, as laid down in various cases, is to be exercised sparingly. The criterion for the exercise of the power under this section is that the injustice complained by the applicant shall be, clear, grave in nature, and tangible. In case another remedy is available, normally inherent jurisdiction is not to be invoked.

5. When the allegations levelled against accused discloses an offence it is for the trial Court to record its verdict after weighing the evidence as to whether the offence is made out or not. The appreciation of evidence primarily is the function of the Trial Court, and the plea of insufficiency or creditability of evidence cannot be a ground for interference under section 561-A, Cr.P.C. In the instant case, the main point is if the applicants are citizen of Pakistan or foreigners and this being a disputed fact, it can only be decided after the evidence is recorded. Mere production of National Identity Cards, whose authenticity has been seriously challenged by the respondent, is not enough to hold that the contents of tested cards are correct. The applicants without exhausting their remedy before the Trial Court have rushed to this Court, which is not proper. The case has not yet proceeded before the learned Trial Magistrate.

6. ' Mr. Gul Zaman Khan learned counsel for the applicants has referred to various Articles of the Constitution and contended that fundamental rights of applicants are being violated by registering case against them under the Foreigners Act. It is yet to be established that the applicants are citizen of Pakistan, and it being so, it cannot be said that any fundamental right, has been violated. The application has no merit.On 29-10-1995 after hearing the arguments, I had dismissed this application and these are the reasons for the same.