HIGH COURT OF SINDH AT KARACHI
Criminal Appeals No.538 & 539 of 2010
Appellant : Abdul Hashim son of Jalka Mian,
(in Criminal Appeal through Mr. Shafqat Ali Shah
538/2010) Masoomi, Advocate.
Appellant : Noor son of Muhammad Yamin,
(in Criminal Appeal through Mr. Syed Abid Hussain
No.539/2010) Shah Kazmi, Advocate..
Respondent : The State, through Mr. Nadeem
Ahmed Khan, Assistant Attorney
General.
Date of hearing : 30.04.2019
Date of Judgment : 30.04.2019
J U D G M E N T
Abdul Maalik Gaddi, J.– By this common judgment, I intend to dispose of the captioned appeals, as these appeals arising out of single judgment dated 22.11.2010, passed by the learned trial Court.
2. Through these appeals, the appellants have assailed the legality and propriety of the judgment dated 22.11.2010 passed by the learned IInd Additional District and Sessions Judge, Malir, Karachi in Sessions Case No.555 of 2009, (re: The State v. Abdul Hasham and another), in Crime No.294 of 2006 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 appellants under Section 265-H(ii), Cr.P.C. for offence under Section 14(2) of Foreigners Act, 1946 and sentenced them to suffer R.I. for one year with fine of Rs.5000/- each and in default in payment of fine, it was further ordered that appellants shall suffer S.I. for three months more. It was further ordered by the trial Court that on completion of sentence, appellants shall be deported to his native country Bangladesh in accordance with law.
3. Brief facts of the prosecution case in nutshell are that on 08.11.2009 at about 1800 hours, the complainant Inspector Ali Hassan Zardari, Incharge Shift ‘D’, FIA immigration arrival, JIAP, Karachi, has lodged the report at police station FIA Passport Cell, Karachi, stating therein that the pax arrived from Dhaka by flight No.PK-267, Immigration clearance, both of them were found traveling on the strength of Pakistan Passports on the basis of CNICs issued by NADRA, on questioning pax Abdul Hashim disclosed that he entered in Pakistan in 1988 on the strength of Bangladeshi Passport number not mentioned. His parents are still living in Bangladesh at village Penaiaya push. However, he being remained in Karachi succeeded in obtaining CNIC and Pak Passport. Presently, he is working as cook in the house of one Jamil Ansari situated at Sasi Villas flat No.9, block-2, Kehkashan, Clifton, Karachi. Pax Noor son of Muhammad Yamin disclosed that twelve (12) years ago, he entered in Pakistan on the basis of Bangladeshi Passport. His permanent address of Bangladesh is village Pathan Nagar, police station Saga Liya District Kinae, Bangladesh. He further added that he worked with different places in Karachi, subsequently stated his own business of pan shop in Gulistan-e-Jauhar, Karachi. He obtained CNIC and MRP on 23.11.2006, and 05.02.2008 respectively, illegal and authorized in active connivance of functions of NADRA and Directorate of Regional Passport Office, Saddar Karachi. Since the above Pakistani travel documents have been issued by the authorities concerned to the non-nationals, those are admittedly Bangladeshi Nationals, as such both paxes are referred along with passports and CNICs for necessary legal action against the government functionaries, those issued CNICs and Passports in connivance with the attesters and employees of detainees in Pakistan. Also for necessary arrangements of deportation of both Nationals after appropriate legal action against them.
4. The charge was framed on 03.03.2010 against the appellants by the learned trial Court at Ex.2, to which they pleaded not guilty and claimed to be tried vide their pleas at Ex.2/A and Ex.2/B respectively.
5. At trial, in order to establish accusation against appellants, prosecution had examined the following witnesses:-
(i) PW-1 Abdul Hameed at Ex.3, who produced detainee report, used air tickets, three Pakistani Passports, Passport and CNIC of accused Noor, FIR, various records of CNICs, memo of arrest, letters, declaration forms of passports, CNIC photocopy of challan, photocopy token and ticket report and other documents at Ex.3/A to Ex.3/X & Ex.3-A/1 to Ex.3-A/4 respectively;
(ii) PW-2 ASI Rahat Khan at Ex.4;
(iii) PW-3 Altaf Hussain at Ex.5, who produced LDC at Ex.5/A;
(iv) PW-4 complainant Inspector Ali Hassan Zardari at Ex.6.
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.
6. Statements of appellants were recorded under Section 342, Cr.P.C. at Ex.8 and Ex.9, in which they have denied to have committed offence as alleged by the prosecution. They further claimed that all the prosecution witnesses are FIA officials and they have falsely implicated them in this case and they are Pakistani nationals. In support of their version, appellant Abdul Hashim produced copies of CNICs issued by NADRA authorities; Old NIC issued by Assistant Director, DRO, Karachi (East); two Passports issued by Ministry of Interior, Government of Pakistan; Birth Certificate issued by Secretary, Union Council No.7, S.I.T.E., Town, Karachi; verification letter dated 01.11.2001 of National Status in his respect issued by Director, Regional Passport Office, Government of Pakistan, Saddar, Karachi, in his favour; fresh verification report from NADRA in his favour; Death Registration Certificate of father namely Jalka Mian of appellant Abdul Hashim; Death Registration Certificate of mother namely Mehar-un-Nisa of appellant Abdul Hashim; Family Registration Certificate of appellant Abdul Hashim. Whereas, appellant Noor has produced copies of CNIC issued by NADRA authorities; Birth Certificate issued by Secretary, Union Council-22, Civic Centre, Korangi, Karachi; Death Registration Certificate of father namely Muhammad Yamin of appellant Noor; Death Registration Certificate of mother namely Ajiba Khatoon of appellant Noor; Passport issued by Ministry of Interior, Government of Pakistan; Certificate of Domicile of appellant Noor; Permanent Resident Certificate (PRC) of appellant Noor; Verification/Verisys Certificate of CNIC of appellant Noor. However, they did not examined themselves on oath nor they produced any witness in their defence.
7. M/s. Shafqat Ali Shah Masoomi and Syed Abid Hussain Shah Kazmi, learned Counsel for the appellants have contended that the appellants have successfully discharged the onus of burden through production of documentary evidence. In support of his version, appellant Abdul Hashim produced copies of CNICs issued by NADRA authorities; Old NIC of issued by Assistant Director, DRO, Karachi (East); two Passports of issued by Ministry of Interior, Government of Pakistan; Birth Certificate issued by Secretary, Union Council No.7, S.I.T.E., Town, Karachi; verification letter dated 01.11.2001 of National Status issued by Director, Regional Passport Office, Government of Pakistan, Saddar, Karachi, in his favour; fresh verification report from NADRA in his favour; Death Registration Certificate of father namely Jalka Mian of appellant Abdul Hashim; Death Registration Certificate of mother namely Mehar-un-Nisa of appellant Abdul Hashim; Family Registration Certificate of appellant Abdul Hashim. Whereas, in support of his version, appellant Noor has also produced copies of CNIC issued by NADRA authorities; Birth Certificate issued by Secretary, Union Council-22, Civic Centre, Korangi, Karachi; Death Registration Certificate of father namely Muhammad Yamin of appellant Noor; Death Registration Certificate of mother namely Ajiba Khatoon of appellant Noor; Passport issued by Ministry of Interior, Government of Pakistan; Certificate of Domicile of appellant Noor; Permanent Resident Certificate (PRC) of appellant Noor; Verification/Verisys Certificate of CNIC of appellant Noor. 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 appellants are bonafide citizen of Pakistan by birth as their 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 have not committed the offences which contravene section 3(2)(a)(b)/13/14 for Foreigner Act, therefore, they may be acquitted.
8. In Contra, Mr. Nadeem Ahmed Khan, learned Assistant Attorney General has vehemently contended that the appellants have been charged under Section 3(2)(a)(b)/13/14 of Foreigner Act, 1946, therefore, burden of proof lies upon their shoulders as provided under Section 9 of the Act that they are not a foreigner. It is further contended that the documents produced by the appellants seem to be forged one as no other documents have been produced before this Court that their fathers were never resided and died in Pakistan. Even accused failed to produce anybody as their defence witnesses to gave strengthen to their plea. Lastly, he prayed for the dismissal of these appeals.
9. 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.
10. It is the case of appellants that they are Pakistani by birth and their parents were also Pakistani and buried in Pakistan, but this fact has been denied by the learned Assistant Attorney General by arguing that the appellants are Bangladeshi National and they managed and prepared the fake documents just to show them 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 appellants were not foreigners. 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.”
11. I have perused the case files with the able assistance of the parties Counsel, it reveals that during trial, the appellants have produced the documents as mentioned in preceding paragraphs No.6 and 7 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 appellants in support of their cases, 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 passports and CNICs of the appellants are genuine. Therefore, under Article 129(e) of Qanoon-e-Shahadat Order, 1984, which says that 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.
12. Since it is case of huge documentary evidence in favour of appellants, 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 appellants are forged then whether these documents have been cancelled by any competent authority, he has no answer with him. I have again 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 appellants, he again replied in negative. It also appears from the record that the cases of the appellants 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.”
These appeals pertains to year 2010 and during this intervening period, neither any adverse record, nor any previous criminal history come on the record. I once again asked the question from learned Deputy Prosecutor General, Sindh to show any adverse record against the appellants during this period; again, he has no answer with him. 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 appellants are Bengali by origin for that fact alone, they cannot be termed as foreigners. During the course of arguments, I have again asked the question from learned Assistant Attorney General, on which date, the appellants have entered illegally into Pakistan from Bangladesh, he has no answered with him.
13. In view of the above, the evidence produced by the appellants was more weighty than evidence of prosecution side. They, therefore, do not deserve to be convicted and are acquitted of the charge. Consequently, the convictions are set-aside. Obviously, the order of the Court for deportation also stand set-aside. With this judgment, the appeals are accepted. The appellants are present on bail, their bail bonds stand cancelled and surety discharged.
JUDGE
Faizan A. Rathore/PA*