HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No.292 of 2015
Appellant : Syed Ahmed son of Ali Madan,
through Mr. Saifullah, Advocate.
Respondent : The State through Mr. Zahid Khan,
Assistant Attorney General.
Date of hearing : 19.04.2019
Date of Judgment : 19.04.2019
J U D G M E N T
Abdul Maalik Gaddi, J.– Through this appeal, the appellant has assailed the legality and propriety of the judgment dated 12.11.2015 passed by the learned District and Sessions Judge, Malir, Karachi in Sessions Case No.617 of 2012, (re: The State v. Syed Ahmed), in Crime No.167 of 2012 registered at police station FIA AHT Circle, Karachi, under Section 3(2)(a)(b), 13/14 Foreigners Act, 1946, whereby the learned trial Court after full dressed trial, convicted the appellant under Section 265-H(ii), 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.25,000/- and in default in payment of fine, it was further ordered that appellant shall suffer S.I. for three months more. It was further ordered by the trial Court that on completion of sentence, appellant shall be deported to his native country Bangladesh in accordance with law.
2. Brief facts of the prosecution case in nutshell are that on 06.07.2012, Inspector Ali Hassan Zardari, Incharge Shift ‘B’ FIA, I & AHS Departure JIAP, Karachi, on the basis of Enquiry No.291 of 2012 and detainee report bearing VRF No.72 of 2012 dated 06.07.2012, it reveals that; the pax Syed Ahmed son of Ali Madan was proceeding to Saudi Arabia from JIAP, Karachi, through Flight No.GF-751 dated 06.07.2012 on the strength of Pakistani Passport No.VT-1156481 dated 11.03.2010. During immigration clearance, his passport particulars on IBMS database system and BL passport particulars HIT vide BL ID 40270 and BL No.1440 of 2011 under category ‘B’ with remarks “Afghan national” date updation 17.01.2012 and action to be taken as “arrest”. From enquiry and disclosure of accused, it transpired that he was permanent resident of village Doori Sara, Khshwadar Thanda Ramo, District Chittagong, Bangladesh, his address in Pakistan was Muhallah Korangi No.766/L, House No.F-1/No.2/1, Sector-48, Karachi, however, he was originally Bangladeshi national, his parents were also resident and nationals of Bangladesh, his mother and father died and further that one brother was living in Bangladesh with his children and desirous to come Pakistan for employment. In the year 1980, accused along with some immigrants came to Pakistan via India by illegally crossing Bangladesh/India and India/Pak border without travel documents. After entry into Pakistan at Lahore, he came to Karachi and permanently settled there. He obtained old NIC No.52190357799 and on the basis thereof, CNIC No.42201-7193648-7 and lastly obtained MRP No.VT-1156481 dated 11.03.2010 and on the basis of passport, he visited Bangladesh on different occasions to see his relatives. During enquiry, the verisys image of his CNIC retrieved through online verification system of NADRA with was having individual is marked as remarks “suspect category aliens”. Consequent upon, case was registered inter alia on the above facts.
3. The charge was framed on 05.11.2012 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.3.
4. At trial, in order to establish accusation against appellant, prosecution had examined the following witnesses:-
(i) PW-1/complainant Inspector Ali Hassan Zardari at Ex.4, who produced stop person report, form R-5, copy of E-ticket receipt, CNIC of accused, passport of accused, off-loading report at Ex.4/A to Ex.4/F respectively;
(ii) PW-2 LDC Mazhar Hussain at Ex.5, who produced verisys system report at Ex.5/A;
(iii) PW-3 Inspector Liaquat Ali at Ex.6, who produced FIR, memo of arrest, letter addressing to General Manager Operation, NADRA, letter addressing to Additional Director FIA AHT Circle with family tree, letter to Assistant Director Admin, Director General Immigration dated 10.07.2012, verification of passport along with its report and letter addressing to Assistant Director Admin NARA at Ex.6/A to Ex.6/G respectively.
These witnesses were cross examined by the Counsel for appellant and thereafter, leaned Assistant Director legal, FIA closed the prosecution side vide Statement at Ex.7.
5. Statement of appellant was recorded under Section 342, Cr.P.C. at Ex.8, 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, appellant also produced his copies of Ration Card issued in the year 1975, Birth Certificates issued by Karachi Metropolitan Corporation along with computerized Birth Certificates issued by Secretary Union Council, Chakra Goth, Korangi Town, Karachi and Baldia Uzma, Karachi, of his sons namely, Mushtaq Ahmed, Mujammil, Mufassil, Sarwat Alam and Muhammad Alam, Nikahnamas of his sons namely, Mushtaq Ahmed, Mujammil, Mufassil, Sarwat Alam, Muhammad Alam, issued by Nikah Registrar along with computerized Marriage Registration Certificate issued by Secretary, Union Council-3, Chakra Goth, Korangi Town, Karachi, Old NICs along with new CNICs of his sons namely Mushtaq Ahmed and Mujammil issued by the NADRA authorities, Old NIC with new CNIC of his son’s wife Khairoonnisa wife of Mushtaq Ahmed, issued by the NADRA, old B-Form along with New B-Form issued by the NADRA of his son Mushtaq Ahmed, Birth Certificates issued by District Municipal Corporation along with computerized Birth Certificates issued by NADRA authorities of his grandsons/granddaughters namely Shafi-ul-Alam, Nabi Alam, Noor Alam, Aasima Begum, Noor Muhammad, Irfan, Imran, Kamran, Rehan, Samreen, property documents i.e. Form No.II issued by Sindh Goth Abad Scheme, Karachi, Malir, in the name of his son namely, Mushtaq Ahmed, Sanad issued by Sindh Goth Abad Scheme, Karachi, Malir, in the name of his son namely, Mushtaq Ahmed, Award/Certificate issued by Marine Fisheries Department, Fisheries Training Centre to his son namely, Mujammil, Identity Service Card issued by Marine Fisheries Department, Fisheries Training Centre to his son namely, Mujammil, Birth Certificate issued by the Union Council, Chakra Goth, Korangi Town (029), District West of his grandson/granddaughters namely, Muhammad Saleem, Parveen, Roobi, Muhammad Ameen, Salman, son/daughter of Mujammil, Birth Certificate of wife of his son namely, Salma wife of Mufassil, Bank Accounts of Soneri Bank, Gulbahar Branch, Golimar, Karachi, of Mufassil, Birth Certificates of his grandsons/granddaughters namely, Shehreen, Anshara, Vereesha at Ex.8/A to Ex.8/BX, all of these documents were also originally seen and returned by the trial Court. He did not produce any witness in his defence.
6. Mr. Saifullah, learned counsel for the appellant has contended that the appellant has successfully discharged the onus of burden through production of documentary evidence viz. Ration Card issued in the year 1975, Birth Certificates issued by Karachi Metropolitan Corporation along with computerized Birth Certificates issued by Secretary Union Council, Chakra Goth, Korangi Town, Karachi and Baldia Uzma, Karachi, of his sons namely, Mushtaq Ahmed, Mujammil, Mufassil, Sarwat Alam and Muhammad Alam, Nikahnamas of his sons namely, Mushtaq Ahmed, Mujammil, Mufassil, Sarwat Alam, Muhammad Alam, issued by Nikah Registrar along with computerized Marriage Registration Certificate issued by Secretary, Union Council-3, Chakra Goth, Korangi Town, Karachi, Old NICs along with new CNICs of his sons namely Mushtaq Ahmed and Mujammil issued by the NADRA authorities, Old NIC with new CNIC of his son’s wife Khairoonnisa wife of Mushtaq Ahmed, issued by the NADRA, old B-Form along with New B-Form issued by the NADRA of his son Mushtaq Ahmed, Birth Certificates issued by District Municipal Corporation along with computerized Birth Certificates issued by NADRA authorities of his grandsons/granddaughters namely Shafi-ul-Alam, Nabi Alam, Noor Alam, Aasima Begum, Noor Muhammad, Irfan, Imran, Kamran, Rehan, Samreen, property documents i.e. Form No.II issued by Sindh Goth Abad Scheme, Karachi, Malir, in the name of his son namely, Mushtaq Ahmed, Sanad issued by Sindh Goth Abad Scheme, Karachi, Malir, in the name of his son namely, Mushtaq Ahmed, Award/Certificate issued by Marine Fisheries Department, Fisheries Training Centre to his son namely, Mujammil, Identity Service Card issued by Marine Fisheries Department, Fisheries Training Centre to his son namely, Mujammil, Birth Certificate issued by the Union Council, Chakra Goth, Korangi Town (029), District West of his grandson/granddaughters namely, Muhammad Saleem, Parveen, Roobi, Muhammad Ameen, Salman, son/daughter of Mujammil, Birth Certificate of wife of his son namely, Salma wife of Mufassil, Bank Accounts of Soneri Bank, Gulbahar Branch, Golimar, Karachi, of Mufassil, Birth Certificates of his grandsons/granddaughters namely, Shehreen, Anshara, Vereesha. It is vehemently contended that the prosecution has failed to rebut the aforesaid documents, even did not bother to sent such documents for verification, thus, in the circumstance and in the light of above documents, it is clearly proved that appellant is bonafide 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 section 3(2)(a)(b)/13/14 for Foreigner Act, therefore, he may be acquitted.
7. In Contra, Mr. Zahid Khan, learned Assistant Attorney General has vehemently contended that the appellant has been charged under Section 3(2)(a)(b)/13/14 of Foreigner Act, 1946, therefore, burden of proof lies upon his shoulder 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 document has been produced before this Court that his father was never 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 file with the able assistance of the parties counsel, it reveals that during trial, the appellant has produced the documents as mentioned in preceding paragraphs No.5 and 6 and 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 are genuine. Therefore, under Article 129(e) of Qanoon-e-Shahadat Order, 1984, 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 are forged then whether these documents have been cancelled by any competent authority, he has no answer with him. I have 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.”
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 illegal into Pakistan from Bangladesh, he has no answered 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 conviction is set-aside. Obviously, the order of the Court for deportation also stands set-aside. With this judgment, the appeal is accepted. The appellant is present on bail, his bail bond stands cancelled and surety discharged.
JUDGE
Faizan A. Rathore/PA*