P L D 1963 Dacca 811 (PLP)

"No Indian citizen having entered any part of Pakistan and being in possession of a valid passport duly visaed for Pakistan shall remain therein after the expiry of the period of stay authorised in the visa unless it is extended or renewed by an authority to be specified in the rules made under this Act."

6. Subsection (6) of section 3 of the Act was inserted in the Act first by an Ordinance XXX of 1955 which was pro mulgated on the 22nd August 1955. The provisions of the said Ordinance were incorporated in Act XII of 1956. By section 4 of the said Act, Ordinance XXX of 1955 was repealed. Subsection (2) of section 1 of Ordinance XXX of 1955 was in the following term: "It shall come into force at once." It is clear, therefore, that the provisions of subsection (6) of section 3 of the Act which were for the first time enacted on 22nd August 1955 were given prospective effect.

7. The Magistrate found that the respondent was born in the territories, which were included in Pakistan on the 14th August 1947, on partition of India, and therefore, he was a Pakistani by birth. He also found that the father of the respondent was a Pakistani and bad not at any point of time migrated to India. He also found that the respondent obtained the Indian Passport only to facilitate his coming over to Pakistan after the introduction of passport system in the two countries as he was in India from before the date of the introduction of passport system. He further found that having come away from India in 1954, he did not go back to that country until at a point of time when he was not a citizen of India. From this he concluded that the respondent obtained the Indian Passport only for the purpose of coming back and that as the respondent was not a permanent resident in India, he was entitled to Pakistan citizenship by virtue of birth under section 3(a) of the Pakistan Citizenship Act, 1951. He, therefore, found the respondent not to have violated the provisions of subsection (6) of section 3 of the Pakistan (Control of Entry) Act, 1952 and accordingly acquitted him of the charge under section 4 of the said Act.

8. Mr. Mirza, the learned Advocate appearing for the appellant, the State, has contended two points before me. Firstly, that although over‑staying was not an offence under the original Pakistan (Control of Entry) Act, 1952 when the respondent entered into Pakistan or when his visa expired on 11‑8‑54, yet he will come within the mischief of subsection (6) of section 3 of the Act, because after that date he continued to remain in Pakistan without any valid visa. Secondly, that in the circumstances of this case, mere obtaining a Pakistan Passport by the respondent on 3‑12‑57 will not confer the status of Pakistani on him.

9. One fact needs to be stated to follow the argument of Mr. Mirza on the two points mentioned above, and that is, that on 3‑12‑57, the District Magistrate of Kushtia on the application of the respondent issued a Pakistani Passport No. A 359872 dated 3‑12‑57 in favour of the respondent. His date of arrest in the present case as I have already stated was 8‑1‑58.

10. There is substance in the first contention of Mr. Mirza. The language used in subsection (6) of section 3 of the Pakistan (Control of Entry) Act, 1952 leaves no doubt that an Indian who may have entered in Pakistan on an Indian Passport properly visaed by the Government of Pakistan either before or after the introduction of this subsection into the Act, shall come within the mischief of this subsection if he overstays in this country the period mentioned in the visa, without a permit for such stay or without the period mentioned in the visa being extended by the Pakistan authorities. The prospective effect given to the provisions of subsection (6) of the Act, of course, will not cover a case where the Indian who may have entered Pakistan with valid travel documents but overstayed the period and had gone back to India prior to the 22nd August 1955. But the prospective effect given to this provision does not mean that an Indian if who may have entered Pakistan on proper travel documents having overstayed the period without any permit or extension of the said period shall not come within the mischief of subsection (6) of section 3 of the Act if he is found to be in Pakistan on or after the 22nd August 1955.

11. Mr. Mirza, therefore, contends that the respondent has subjected himself to the penalties of section 4 of Act LV of 1952 for having violated the provisions of subsection (6) of section 3 of the Act at least from 22‑8‑

55. Mr. Mirza has cited the Full Bench decision of the Hyderabad, (India) High Court in the case of State v. Hyder Ali (A I R 1955 Hyd. 128). In that case a Pakistani who went to Hyderabad (India) from West Pakistan overstayed the period of permit granted to him for his stay in Hyderabad. When he went to Hyderabad, there was no law in that State to prosecute a person for having overstayed the period of permit. But during his stay in Hyderabad the influx of Pakistan (Control) Act, (1949) (as amended by Ordinance XXII of 1950) was extended to the State of Hyderabad by the Government of India. Hyder Ali was, therefore, pro secuted for having overstayed in Hyderabad beyond the period of permit. By majority judgment, the Hyderabad High Court held that after the introduction of the Ordinance in the State of Hyderabad any stay after the period fixed In the permit came within the mischief of the provisions of that Act and omission on the part of Hyder Ali to leave India constituted an offence under the said Act.

12. Mr. Ismail, the learned Advocate ‑appearing for the respondent contended that Ordinance XXX of 1955 by which was inserted subsection (6) of section 3 into Act LV of 1952 having not been given any retrospective effect, his client, the respondent cannot be said to have violated any of the provisions or at least the provisions of subsection (6) of section 3 of the said Act. In elucidation of his point Mr. Ismail submits that Ordinance XXX of 1955 by its prospective amendments con templates a case of India who had obtained a visa from the Pakistan authorities on an Indian Passport and entered into Pakistan after the 22nd August 1955 and did not remove himself from within Pakistan before the date of expiry as mentioned therein. According to him the provisions 'of subsection (6) of section 3 of the Act cannot apply to a case where an Indian had entered Pakistan, prior to 22nd August 1955, on an Indian Passport properly visaed by the Pakistan Government and had overstayed in Pakistan the period mentioned in the visa, if even the overstay is beyond the 22nd August 1955. He further contends that at a point of time when the respondent came into Pakistan on proper travel documents there was no law creating overstay in Pakistan an offence and therefore, the provisions of sub section (6) of section 3 of the Act which were brought into being on the 22nd August 1955, which is a date subsequent to the date of not only the entry of the respondent but his overstay as well cannot apply to his client. I regret I cannot agree with any of these contentious of Mr. Ismail. The language of subsection (6) of section 3 of the Act does leave any doubt in my mind that the provisions of that section were introduced to cover not only the cases of Indians who would come into Pakistan on valid travel documents after the 22nd August 1955, but also the cases of those Indians who had come into Pakistan prior to the 22nd August 1955 on valid travel documents and overstayed the period mentioned in the visa. Mr. Ismail suggests that had the Legislature intended the provisions of subsection (6) of section 3 of the Act to apply to Indians who had come into Pakistan prior to ,q the 22nd August 1955, the Legislature could have said so in clear terms or at least the Legislature would have made the Act retrospective in operation. For the first part of his argument I can only say that 1 cannot read something into the Act which is not there. As to the second part of it I have already given the answer. Suffice it to say at the moment, that even without a retrospective effect being given to this subsection (6), I am of the opinion that any overstay after the 22nd August 1955 amounts, to a violation of the provisions of this subsection irrespective of the point of time when the Indian may have come into Pakistan.

13. In view of the fact that a Pakistani Passport has been given to the respondent by the proper authorities on his application made in that behalf, it does not lie in the mouth of the State today to say that the status of a Pakistan citizen has. not been conferred on the respondent by the grant of the said passport, at least not until the passport has been cancelled and the citizenship of Pakistan conferred upon the respondent has been withdrawn by the Government. Mr. Mirza wanted to argue that the Pakistani Passport was obtained by the respondent by misrepresentation of the fact to the authorities and therefore, this Pakistan Passport could not be said to have conferred the citizenship right on the respondent. I do not see the logic of this. If there has been any misrepresentation of the fact when the Pakistan Passport has been issued to the respondent, the Government has a right to prosecute the respondent under the provisions of the Passport (Offences) Act of 1952 or under provi sions of any other law that may be found applicable in this case. The Government may also take such steps to cane‑l the passport as may be found legally possible for it. There is no bar under the law for a foreigner to become a Pakistani by observing the necessary provisions of the law relating thereto, if lie desires to be a Pakistani citizen and if the Government of Pakistan agree to give him that status.

14. In the facts of the present case it will be presumed, in the absence of any evidence to the contrary that the passport obtained by the respondent from the Pakistan Government was; obtained in due course of law. The passport raises a very strong presumption of the citizenship of a person, and is undoubtedly a primary evidence of citizenship of the holder thereof of the State from whom the passport has been obtained.

15. Mr. Ismail in reply to the second point raised by Mr. Mirza has produced before me a certified copy of a judgment of. Mr. S. A. Rahman, Magistrate, First Class, Kushtia in G. R Case No. 737 of 1958. The certified copy shows that the respon dent was tried by the said Magistrate under section 3, clauses (b) and (c) of the Passport (Offences) Act (LVI of 1952) and was acquitted of the charge.

16. This contention of Mr. Mirza, therefore, does not appeal to me and the same is repelled.

17. In view of the fact that the respondent had committed an offence under subsection (6) of section 3 of the Pakistan (Control of Entry) Act, 1952 from 22nd August 1955 to at least 2nd December 1957, the order of acquittal passed by the Magistrate cannot be sustained.

18. In the result, therefore, I allow this appeal set aside the order of acquittal passed by the Magistrate, find the respon dent guilty of the offence of violating the provisions of sub section (6) of section 3 of the Pakistan (Control of Entry) Act, 1952, convict him under section 4 of the said Act and sentence him to a fine of Rs.

250. I would have passed a severer sentence in this case but for the fact that the department concerned neglected in taking any action against an Indian citizen staying in Pakistan without valid documents for more than three years and that he was prosecuted after having given a Pakistan Passport. S. B./A.H. Appeal allowed.