2008 PLP 916 (MLD)

KHAWAJA NAVEED AHMED, J.

In this case appellant Muhammad Noorullah Kabir son of (late) Muhammad Anwar, was arrested on 28-9-2004 by the Incharge, Bangladesh Cell (Registration), Special Branch, Karachi, for an offence punishable under section 3/2(a), Foreigners Order, 1951 read with section 14(2), Foreigners Act, 1946 vide FIR No.240 of 2004 registered at Mithadar Police Station, Karachi.

2. The complainant SIP Saeed Raza had lodged report under section 154, Cr.P.C. stating therein that he had apprehended the present appellant on the information of PC Ashiq Ali. The appellant/accused could not produce Pakistani Identity Card or NADRA Card and he also failed to give satisfactory reply as such he was arrested being a foreign national. He was challaned in the Court and the trial Court had framed the following issues: (i) Whether accused Noorullah Kabir being Bangladeshi national entered into `Pakistan illegally in year, 1998 without having any legal and valid documents by crossing Lahore Wagah Boarder and stayed in Pakistan illegally? (ii) What offence, if any, the accused have committed?

3. The Court had, replied the Issue No.1 in affirmative and had convicted the appellant for an offence punishable under section 14(2) of Foreigners Act, 1946 read with section 3/2(a) of Foreigners Order, 1951 and sentenced him to undergo R.I. for six months. He was given benefit of section 382-B, Cr.P.C. The Court while deciding the case had mentioned in the judgment that after completion of sentence the accused should be deported from Pakistan to his parent country according to provisions of section 14-B of the Foreigner Act, 1946. This sentence was passed on 10-6-2005 and the appellant had completed his sentence in December, 2005. The appellant is still in custody but as per learned counsel for the appellant he has another case under section 420, P.P.C. in respect of preparing forged documents. Serving of sentence by the accused will not serve the purpose because there is an order of deportation and he will continue to remain in jail till arrangements for his deportation are made. He cannot be released because for getting release he has to acquire citizenship of Pakistan for which he needs proof which he could not produce in the Court. The conviction order will always come in his way and as such it will not 'be possible for him to get the nationality/citizenship of Pakistan.

4. Learned counsel for the appellant has relied upon the case of Tahir v. State (2005 PCr.LJ 1183). In the said authority learned Single Judge of Peshawar High Court had observed as under:-- "(10) The provisions of section 14 of the Act are related only to the grant of punishment and no other purpose including the deportation. The Federal Government may by orders make provisions either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into Pakistan, or their departure therefrom or their presence or continued presence therein, in accordance with section 3 of the Act. It was not the responsibility of the learned Judicial Magistrate to have gone beyond the scope of the provisions of section 14 of the Act. (11) In accordance with section 14C as inserted by Ordinance XXV of 2000, and reproduced above, the petitioner was not to be released on the expiry of the sentence and was to continue to remain in custody for his deportation to be finalized. As mentioned earlier, there was no consent, request or any other material on record that deportation proceedings had been initiated against the petitioner, the remarks of the learned Judicial Magistrate as mentioned in his order quoted above, except in relation to the provisions of section 14 of the Act, were uncalled for and unnecessary. The provisions of section 14C of the Act clearly indicate that the petitioner shall be released after three months after the completion of the period of the sentence granted to him by the learned Judicial Magistrate, if arrangement for his deportation were not finalized by the Federal Government within the said period. The law was, therefore, to take its own course without intervention by the learned Judicial Magistrate."

5. Learned counsel for the appellant has also relied upon the case of Alam v. The State 2007 YLR 1897 wherein at paragraph 7 of the judgment it was observed as under:- "(7) It is true that the sentence awarded to the appellant has expired but the question involved in present matter is of such nature which cannot be ended treating the appeal as infructuous. Here the question involved relates to the citizenship. If a person having acquired the citizenship, of Pakistan is deported, that will have far-reaching effects. Same way if a foreigner having effected his entry illegally is allowed to stay in Pakistan that too will have the impact. Therefore, this is not a. routine criminal case. Here very important civil rather constitutional right is involved. Such an important case has been given very little importance by the investigation agency. They did not take pains to investigate the case deeply and sincerely, and send the appellant on the basis of his alleged admission before police which is not an admissible evidence."

6. Learned counsel for the appellant states that when there is no request from the State to deport the man the Court as its own cannot order deportation of the convict.

7. I have heard learned counsel for the appellant, have gone through the record and case law cited by him. Since the appellant has served the sentence awarded to him and in this case he has been detained just for want of deportation process to be completed, I, therefore, set aside the order of deportation. The law has to take its own course and the appellant if not required in any other case be released forthwith from jail upon his furnishing surety in the sum of Rs.10,000 (Rupees ten thousand) and PR bond in the like amount to the satisfaction of the Nazir of this Court. Criminal Appeal No.454 of 2005 is disposed of in the above terms. H.B.T./M-27/K??????????????????????????????????????????????????????????????????????? ??????????? Order accordingly.