THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.569 of 2017

 

Appellant                  :           Muhammad Mohsin through Mr. Syed Abid Hussain Shah Kazmi, advocate

 

Respondent               :           The State through Ms. Naheed Parveen, DAG

 

Date of hearing         :           07.5.2018

 

Date of Judgment     :           07.5.2018

 

FOR HEARING OF CASE

 

JUDGMENT

 

 

Abdul Maalik Gaddi, J:   Through this Criminal Appeal, the Appellant Muhammad Mohsin has assailed the legality and propriety of the Judgment dated 22.11.2017, passed by the learned 1st-Additional District & Sessions Judge, Malir, Karachi in Sessions Case No.446/2012 re. State vs. Muhammad Mohsin son of Younus in Crime No.121/2012 for offence under Sections 3(2)(a)(b), 13/14 of Foreigners Act, 1946, read with Sections 420/468/471/109 of PPC, registered at PS FIA AHT Circle Karachi, whereby the learned trial Court after full dressed trial convicted and sentenced the appellant as stated in paragraph 19 and 20 of the impugned judgment. For the sake of convenience, it would be proper to reproduce the said points of the Impugned Judgment, which read as under:

“19.     In view of my findings arrived at above point, since prosecution has successfully proved its case for offence under section 14(2) Foreigners Act, 1946, and offence under section 420 PPC, therefore, accused Mohammed Mohsin son of Younus is convicted and sentenced under section 265-H(ii) CrPC 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 01 month more. The accused is also convicted and sentenced in the offence under section 420 PPC for one year, all the sentence run concurrently. The accused shall be entitled for benefit under section 382-B CrPC. The accused is present on bail, he is taken in custody and remanded back to jail.

20.       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 to Bangladesh and make all the necessary arrangements. Office is directed to issue letter to the concerned.”

 

2.                  Brief facts segregated from the FIR lodged by Inspector Zia Hassan Rizvi, Incharge Shift “A”, FIA, I & HS arrival JIAP, Karachi on 21.5.2012 at 1830 hours are that on the basis of enquiry No.217/2012 dated 21.5.2012, it revealed that the pax arrived from Athens, Greece on the strength of Pakistani passport issued from Athens, during interrogation, he disclosed that he had left for Mand Billo, Iran, Turkey, Greece without any travel documents. He further disclosed that his travel was arranged/ facilitated by a bengali agent, the amount paid by his father. He stayed in Athens, Greece illegally. He had managed to obtain NICOP on the basis of CNIC, then managed Pakistani Passport, then he is being referred for further action/ legal proceedings as deem appropriate. During preliminary enquiry the pax disclosed that he is by birth Bangladeshi National who entered into Pakistan illegally along with his parents by crossing the Pak/ Indian borders without any travel documents. About five years before he proceeded to Greece though illegal route of Mand Billo/ Iran/ Turkey without any travel documents with the connivance of fake agent. During his stay at Greece he succeeded to obtain Pakistan Passport/ NICOP from Embassy of Pakistan at Athens, Greece and remained to serve there. Consequent upon, case was registered inter alia on the above facts.

3.                  At the trial, charge was framed against the appellant/ accused 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.                  To substantiate its case, prosecution examined PW-1 Inspector Zia Hassan Rizvi who was examined at Ex.3. He produced reports and passports at Ex.3/A to 3/C. PW-2 SIP Muhammad Soomar was examined at Ex.4, he produced mashirnama at Ex.4/A. PW-3 Incharge CMS Mazhar Hussain was examined at Ex.5 he produced verisys reports at Ex.5/A & 5/B. Thereafter learned AD-Legal FIA given up the PW FC Abdul Basit at Ex.6. PW-4 Inspector Saleemuddin was examined at Ex.7, he produced FIR at Ex.7/A, letters at Ex.7/B to 7/D. PW-5 Inspector Muhammad Zubair Ghuman was examined at Ex.8. Thereafter learned AD-Legal closed his side at Ex.9.

5.                  The accused in his statement recorded under Section 342 CrPC denied the prosecution allegations by pleading his innocence at Ex.10. Appellant/ accused denied the allegation leveled upon him. He examined himself on oath at Ex.11 and produced Old NIC, CNIC receipt of graveyard and receipt of KMC of graveyard, birth certificate at Ex.11/A to 11/E. He also his defence witness namely Zahid Khan at Ex.12.

6.                  Learned trial Judge framed the following points for determination of the case:

“The points for determination in the case would be; whether on 21.5.2012, the FIA authorities had detained the accused at JIAP when he arrived from Athens on the strength of Pakistani Passport issued from Athens, Greece, under voluntarily repatriate program and on inquiry disclosed that accused is Bangladeshi National and stayed in Pakistan illegally and fraudulently obtained CNIC and passport.

 

7.                  On the appraisal of the evidence, trial Court has awarded conviction and sentence to the appellant, as stated above in points No.19 and 20 of the Impugned Judgment.

8.                  Mr. Syed Abid Hussain Shah Kazmi, learned counsel for appellant has contended that the case against appellant is false and has been registered due to non-payment of illegal gratification to the complainant; that during the search of illegal immigrants, complainant apprehended the appellant at Airport and demanded proof of his nationality being Pakistani, in presence of SI Muhammad Soomar, FIA AHTC Karachi and FC Abdul Basit, FIA AHTC Karachi for illegally entering into territory of Pakistan; that there is no iota of evidence to establish the factum of illegal entry of appellant. On the contrary appellant had produced copies of Birth Certificate, Domicile, PRC issued by Deputy Commissioner, Karachi (Central), computerized CNIC, Pakistani Passport, Marriage Registration Certificate with Mst. Najma, and Domicile and PRC of his father namely Younus, available on record in the file of the trial Court, which sufficiently proves the bonafide citizen and established by proof of habitation and existence of relatives in Pakistan; that all these documents have been issued by the competent authorities after due enquiry and investigation; that the appellant has produced all relevant documents in evidence before trial Court to show that he is Pakistani, but the same have not been considered by the trial Court; that the impugned judgment is illegal, unlawful, without lawful authority and without any justification; that the impugned judgment passed by the trial Court is bad in law inasmuch as the same has been passed in a haste manner and without considering the valid documents on record, therefore, the same is liable to be set aside. 

9.                  Conversely, Ms. Naheed Parveen, learned DAG 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 sentence awarded to the appellant is the result of proper appreciation of evidence brought on record, which needs no interference. Lastly, she prayed that the appeal may be dismissed.

10.             I have heard the learned counsel for parties at length and perused the documents and evidence on record.

11.             As per the prosecution case, the allegation against the appellant is that on 21.5.2012, the FIA authorities had detained the appellant at JIAP, when he arrived from Athens on the strength of Pakistani passport issued from Athens, Greece and during enquiry, it was revealed that appellant is Bangladeshi national and stayed in Pakistan illegally. This fact has been denied by the appellant in his statement under Section 342 CrPC as well as in his statement on oath and produced copy of passport issued by competent authority, copy of Birth Certificate, Domicile and PRC issued by competent authority, his NIC and so also his Nikahnama with Mst. Najma. Moreover, he has also produced the NIC, Domicile and PRC of his father showing that he is Pakistani national.

12.             In order to resolve the controversy in between the parties, I have gone through Section 9 of the Foreigners Act, 1946, which cast duty upon 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.”

 

13.             In view of the above Section, burden to prove that the appellant is not foreigner or bengali is lay on appellant. 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 bengalis were given statutory recognition. The appellant in support of his case has produced Birth Certificate issued by Town Municipal Administration, Lyari, Karachi dated 13.12.2004 showing the date of birth as 10.12.1984; NIC bearing No.421014-574125-3 (Overseas Pakistani); his Pakistani Passport bearing No.KH339083, which is still in field and has not been cancelled by any authority; Marriage Registration Certificate in between Muhammad Mohsin and Mst. Najma registered by Secretary, Union Committee No.6, Old Golimar, District West, Karachi and his Domicile and PRC issued by Deputy Commissioner,  Karachi (Central). Moreover, the appellant has also produced the NIC, Domicile and PRC of his father. The above referred documents established chain of circumstances relating to the habitation and existence of relative in Pakistan. As mentioned above that the Domicile and PRC of the father of the appellant has also been produced in this case. Since the parents of the appellant are not being accused of entering into Pakistan illegally, the plea of the appellant carry weight, as the document highlighted above are not seriously controverted by the learned State counsel except that NIC of the appellant has been cancelled by the NADRA authority. In this regard, it is suffice to say that merely cancellation of NIC of the appellant by NADRA does not ipso facto prove that appellant is bengali. Since the Birth Certificate, Domicile, PRC, Passport and the Nikahnama of the appellant is on field, prima facie shows that the appellant has discharged his burden lay upon him and now burden shifted to the State to prove that the appellant is bengali national. But in this regard, learned DAG has failed to produce any convincing/ cogent documentary evidence to show that the appellant is bengali national.

14.             The upshot of the above discussion is that the appellant has discharged the burden of proof that he was not a foreigner, he has proved the habitation and existence of his relative 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 is hereby stands set aside, the appellant is present on bail, his bail bond stands cancelled and surety is discharged. Consequently appeal is accepted. The order of deportation of the appellant stands set aside.

JUDGE 

asim/pa