P L D 2011 Karachi 48 (PLP)

SYED HASAN AZHAR RIZVI, J.

The petitioner by the present petition has challenged the order dated 20-4-2009 passed by the learned District and Sessions Judge, Karachi-South, the respondent No.1, dismissing the application of the petitioner under section 265-K, Cr.P.C.

2. Brief facts of the case as they appear from the record are that Enquiry No.760/2008 conducted at AHT Circle (Anti-Human Trafficking Circle) F.I.A., Karachi on the complaint of Mr. Mahmood Hussain, resident of Karachi who informed that Mr. Salim Bhallo son of Muhammad Baker Bhallo the present petitioner, a Tanzanian National, holding Tanzanian Passport No.AB-032948 has married to Mrs. Nihad Fatima Bhallo having P.O.C. (Pakistan Origin Card) No.8265866504802, having dual nationality i.e. Pakistani/U.K. Mrs. Nihad Fatima Bhallo died on 12th February, 2004. The petitioner on 24-7-2004, after the death of his wife Mrs. Nihad Fatima, applied for P.O.C. and accordingly on 30-12-2004 P.O.C. No.834586-701281-1 issued to the petitioner which was valid upto 30-12-2011. After the death of his wife Mrs. Nihad Fatima Bhallo, the petitioner made frequent visits to Pakistan and stayed in Pakistan on the basis of aforementioned P.O.C, having entitlement to benefit of unlimited visa free entries into Pakistan. During the inquiry it transpired to the FIA Officials that the petitioner who is a Tanzanian national obtained POC almost six months after his wife's death. On enquiry from NADRA, the PSO to Chairman NADRA, Islamabad vide letter No.NADRA/CS/20/NCMC dated 19-9-2008 informed the F.I.A. Authorities that the POC No.8345867012811 issued to the petitioner was cancelled due to reason that the present petitioner had no link with Pakistan. As a result of the inquiry referred hereinabove an F.I.R. No.976 of 2008 under sections 3(2), 13/14 Foreigners Act, 1946 was registered against the petitioner on 27-10-2008 at P.S. F.I.A, Circle, Karachi. After usual investigation was carried out by the F.I.A., Anti-Human Trafficking Circle on 20-4-2009 submitted Final Charge Sheet No.218 of 2008 in the Court of District and Sessions Judge, Karachi-South Case No 706 of 2008 is pending trial. The petitioner during trial filed an application under section 265-K Cr.P.C. before the trial Court which was dismissed by the orders dated 20-4-2009, which orders are impugned in the present petition.

3. We have heard Mr. Jawaid Ahmed Chhattari, Advocate for the petitioner, Mr. Shahab Sarki, learned standing counsel along with Syed Israr Ali, Deputy Director F.I.A., Mr. Shafi Muhammad Memon, Additional Advocate General Sindh Mr. Ali Haider Saleem, Assistant Prosecutor General Sindh and Mr. Salahuddin Ahmed, Advocate for the intervener/complainant Mahmood Hussain.

4. It was contended by the learned counsel for the petitioner that the petitioner has valid POC (Pakistan Origin Card) valid up to 30-12-2011, issued under section 11 of NADRA Ordinance, 2000, to the petitioner after fulfilment of the required formalities. He further contended that NADRA without issuance of any show-cause notice to the petitioner and without providing any opportunity of hearing has illegally and unauthorized's cancelled the POC issued to the petitioner.

5. It is further contended by the learned counsel for the petitioner that if at all any offence punishable under section 30 of the NADRA Ordinance is committed by the petitioner no Court is competent to take cognizance of such an offence under NADRA Ordinance, 2000 unless NADRA lodges, complaint in writing to the authority or notify it in any gazette.

6. The learned counsel for the petitioner, has further contended that the charge against the petitioner is groundless and there is no probability of his conviction even entire evidence is brought on record and therefore, he has prayed for acquittal of the accused as the PIA was, not authorized to take cognizance of the offence alleged against the petitioner in the F.I.R. No.976 of 2008 unless the competent authority (NADRA) has lodged the complaint.

7. We have called the Investigating Officer Syed Hasan Askari, Sub-Inspector F.I.A., AHT, Karachi in Court along with record, who has failed to show us any order of cancellation of POC of the petitioner by NADRA. Simply a photocopy of a letter dated 19-9-2008 written by Col. Retired Shaukat Raza P.S.O. to Chairman NADRA has been placed on record on 22-9-2010 which does not spell the date on which the POC of the petitioner was cancelled by NADRA. NADRA is neither the complainant nor has been 13 shown as witness in the calendar of witnesses ii the case before the trial Court.

8. Mr. Shahab Sarki, the learned standing counsel appearing for the respondent No.2, Mr. Shafi Muhammad Memon, learned Additional Advocate General Sindh and Mr. Salahuddin Ahmed, learned counsel for the complainant/intervener in such circumstances frankly concede to the quashment of the proceedings culminating from Sessions Case No.706 of 2008 (F.I.R No.976 of 2008 of Police Station F.I.A., AHT Circle) pending before the. Sessions Judge, Karachi-South.

9. For aforementioned reasons on 29-9-2010, at the oral request of the learned counsel for the petitioner we converted the present petition into Criminal Miscellaneous Application under section 561-A Cr.P.C. for quashment of the proceedings culminating from F.I.R. No.976/2008 of P.S. FIA, AHT Circle in (Sessions Case No. 706 of 2008) pending before Sessions Judge, Karachi-South.

10. The petitioner, however, 'would be at liberty to approach appellate authority under section 18 of the NADRA Ordinance, 2002 for redressal of his grievance in regard to the cancellation of Pakistan Origin Card (POC), which he claims to have been cancelled without serving notice to him.

11. These are the reasons of our order, dated 29-9-2010 allowing the quashment of the aforesaid proceedings. A.R.K./S-91/K Application accepted.