2010 PLP 596 (MLD)

AMIR HANI MUSLIM, J.

Through this Criminal Appeal the appellant has impugned the judgment, dated 29-11-2008 passed by the learned 1st Additional Sessions Judge, Malir Karachi, in Sessions Case No. 85 of 2007 by which the appellant was convicted under section 3(2)(a)(b) punishable under section 14 of the Foreigners Act and was sentenced to suffer imprisonment of three years with fine of Rs.5,000, in default whereof the appellant was to undergo further sentence of one month more.

2. Brief facts of the prosecution story are that the appellant was deported from Saudi Arabia on an emergency passport issued by the Government of Pakistan and on his arrival at Jinnah Terminal, Karachi, he was arrested by the FIA, Immigration Department. The FIA held inquiry and, suspecting the status of the appellant as Afghan National, lodged F.I.R. No.204/2007 against the appellant at PS FIA Passport Cell, Karachi. After investigation, challan was submitted and appellant was convicted after the trial by the impugned judgment.

3. The trial Court framed Charge, Exhibit 2 to which the appellant pleaded not guilty and claimed trial. At the trial the prosecution has examined two witnesses. P.W. Inspector Ghulam Murtaza, FIA Crime Circle, Karachi, was examined as Exhibit 3, who has produced detainee report as Exhibit 3/A and original emergency passport issued to the appellant as Exhibit 3/3/B. P.W.2 S.-I. Ghazanfar Ali, FIA Crime Circle, Karachi, was examined an Exhibit

4. He produced photocopy of National Identity Card of appellant as Exhibit 4/A, photocopy of CNIC of appellant's brother, Ghulam Qadir as Exhibit 4/B, online verification report of NADRA as Exhibit 4/C, F.I.R. as Exhibit 4/D and mashirnama of arrest as Exhibit 4/E. The prosecution vide Exhibit 5 closed its side.

4. The appellant examined himself on oath as Exhibit

6. He produced photocopy of his CNIC bearing No.17102-1161365-3 as Exhibit 6/A, photocopies of CNICs of his brothers Ghulam Qadir, Fazal Rehman and Fazal Qadir as Exhibits 6/B to 6/D respectively, photocopy of National Identity Card of his father, Naimat Khan, as Exhibit 6/E, photocopy of his old National Identity Card as Exhibit 6/F, photocopy of his Educational Identity Card as Exhibit 6/G, photocopy of his mother's National Identity Card as Exhibit 6/H, Certificate, dated 29-7-2008 issued by Bakhti Shah, Nazim, UC Shodag Chad as Exhibit 6/I, photocopy of property extract as Exhibit 6/J, photocopy of School/ Madarsah leaving certificate as Exhibit 6/K, photocopy of his provisional certificate as Exhibit 6/K, photocopy of his provisional certificate issued by Board of Intermediate and Secondary Education, Peshawar, as Exhibit 6/L, photocopy of detailed marks certificate issued by Board of Intermediate and Secondary Education, Peshawar as Exhibit 6/M, photocopy of his Domicile issued by Deputy District Revenue Officer, Charsadda as Exhibit 6/N and certificate issued by UC Nazm, Shodag Chad as Exhibit 6/0. Thereafter vide Exhibit 7, side of the appellant was closed. The trial Court after hearing the arguments of the learned counsel for the parties passed the impugned judgment.

5. The learned counsel for the appellant has contended that the appellant was a Pakistani National and the prosecution has failed to produce any material to establish that the appellant was an alien or Afghan National. According to the learned counsel the charge framed by the trial Court was defective and the trial Court fell in error in overlooking the documents, produced and exhibited by the P.W.2. and the appellant when he was examined on oath under section 342, Cr.P.C. The learned counsel also contended that neither the Pakistani passport nor the CNIC issued to the appellant were cancelled by the Government of Pakistan.

6. The learned standing counsel did not support the impugned judgment. According to the learned standing counsel, the CNIC issued to the appellant was never sent for verification to the NADRA. According to the leaned Standing Counsel, the correct CNIC number of the appellant was 17102-1161365-3 with old NIC No.139-77-282101 while according to the online verification report of NADRA, Exhibit 4/C, pertained to the holder of CNIC No.17103-1161365-3 with old NIC No.139-93-282101 was suspected as alien. He next submitted that the trial Court had erroneously relied upon the report of NADRA in respect of CNIC No. 17103-1161365-3 and convicted the appellant.

7. I have heard the learned counsel for the appellant, the standing counsel and have perused the R&P of the trial Court. The trial Court while passing the impugned judgment has relied upon Exhibit 4/C and held that old National Identity Card and computerized National Identity Card were not issued to the appellant and they were forged. I have perused Exhibit 4/C, the online verification report of NADRA, which was in respect of CNIC No. 17102-1161365-3 containing old NIC No.139-93-282101 while photocopy of old NIC produced by the appellant shows his NIC number as 139-77-282101. Moreover, appellant was issued computerized NIC bearing No. 17102-1161365-3 while the trial Court in its impugned judgment has relied upon the computerized NIC bearing No. 17103-1161365-3, while computerized NIC was found forged.

8. Additionally, the trial Court has completely overlooked the documents produced and exhibited by the appellant, while recording his statement on oath under section 342, Cr.P.C. The appellant has produced photocopy of his old NIC bearing No.139-77-282101 while the report of the NADRA relied upon the trial Court was in respect of different NIC number i.e. 139-93-282101. Moreover, the trial Court in the impugned judgment has held that education certificates issued to the appellant were not proof of the Nationality and therefore, he was found to be guilty being an Afghan national on this count. The trial Court has also overlooked that the photocopy of old NIC, produced by the appellant, which shows his place of birth as Charsadda. The appellant did produce photocopy of old NIC of his father, which shows his place of residence as Charsadda and the page No.2 of Exhibit 4/C, relied upon by the trial Court in their impugned judgment, verifies the old NIC of Naimat Khan, father of the appellant.

9. The online verification report of the NADRA and the documents produced and exhibited by the appellant during his examination on oath completely falsify the prosecution story that the appellant was an Afghan National. The learned standing counsel has already conceded that the impugned judgment was bad in law for the aforesaid reasons and did not support it.

10. I, for the aforesaid reasons, by my short order, dated 5-3-2010 have set aside the impugned judgment and allowed this appeal with direction that the appellant shall be released forthwith, if not required in any other case. The pending Miscellaneous Application also stands disposed of in above terms. The R&P be sent to the trial Court. H.B.T./F-6/K Appeal allowed.