1999 PLP 1521 (MLD)

"Sir I am innocent. I am Pakistani by birth and possess N.I.C. No.506 90-380131 which I produce as (Exh. 18/A). I also possess Pakistani Passport No.G-114869 which I produce as Exh. 18/B. Co-accused Majid Ali is my cousin. Justice be done." In defence no witness was examined. However, the appellant has produced his N.I.C. and passport as mentioned above. I have heard Mr. Anser Mukhtiar, learned counsel for the appellant and Mr. Ch. Iftikhar, learned counsel for the State. I have also perused the record. Learned counsel for the appellant vehemently urged that the appellant and the other co-accused were arrested by Havaldar Amir Khan on 15-3-1996 at 0100 hours. Thereafter, they were kept in illegal custody for more than 5 days and produced at the Police Station Ladiun an 20th March, 1996 at 11.30 hours, when the appellant was re-arrested and F.I.R. was lodged by Havaldar Amir Khan who has not been examined by the prosecution. The currency notes were also not produced in Court. He also contended that the witnesses Muhammad Asad Khan, Muhammad Ashfaque and Syed Ali Akbar Shah were given up by the prosecution which raises a bona fide presumption that they would not have supported the prosecution case. He also relied on two documents namely, N.I.C. and passport and submitted that the appellant is a Pakistani national. The learned State counsel while supporting the impugned judgment submitted that the National I.D. Card is in the name of Tajul Islam son of Abdul Rab, while the name of the appellant is Taj Ali Islam son of Abdul Rauf. Likewise the passport is in the name of Tajul Islam son of Abdul Rab. The address given in the passport and N.I.C. is House No.217 Old Golimar, Manghopir Road, Karachi but in his statement recorded under section 342, Cr.P.C. he has given his address as Gujarabad stop, New Karachi. It was pointed out by the learned counsel for the State that these documents are, thus, forged, or they do not pertain to the appellant. I have considered the submissions and the record. According to Black's Law Dictionary VIth Edition 1990 page 244 "Citizenship" means "the Status of being a Citizen" and "Citizen" is defined as a member of a political community who in their associated capacity have established or submitted themselves to the dominion of a Government for the promotion of their general welfare and the protection of their individual as well as collective rights. "The word "Citizen" is also defined in the Constitution of Pakistan (see Article 260) as, "A citizen of Pakistan as defined by Law." The law governing citizenship is the Pakistan Citizenship Act II of 1951 (hereinafter referred to as Act II of 1951) and the rules framed thereunder which lay down the principles of citizenship into three categories i.e. by birth, naturalization and adoption. In Pakistan a citizen may be a born citizen or he may be registered by the Central Government as citizen of Pakistan by migration under section 6 of Act II of 1951. The Federal Government has been given wide powers to admit any person to the citizenship of Pakistan under sections 8, 9 and 10 of Act II of 1951. Vide section 16 of the Act II of 1951 the Central Government is also empowered to deprive any person of the citizenship of the State. As already pointed out above a person can only acquire the citizenship of Pakistan under the citizenship Act through birth, naturalisation or migration. The appellant has failed to submit any document to establish either three of the modes to acquire citizenship. The appellant has only relied on the passport and N.I.C. which are issued under the Passport Act XX of 1974 and National Registration Act VI of 1973 respectively, (hereinafter referred to as the Act XX of 1974 and Act VI of 1973). Under section 2 of Act XX of 1974 passport is defined as follows:-- "Definitions:--In this Act, unless there is anything repugnant in the subject or content:-- (a) 'Passport' means a passport which is for the time being valid and includes any such permit, or other travel document authorising the holder thereof to travel from Pakistan to any other country, issued by or under the authority of the Federal Government. " In my humble opinion mere possession of passport does not create citizenship. Such document only embodies a request to a foreign Government to allow the bearer free passage and afford him every assistance and protection (see Muhammad Khan v. Government of Andhra Pradesh AIR 1957 Andh Pradesh 1047). As regards the N.I.C. it is correct that under section 4 of Act VI of 1973 every citizen in or out of Pakistan who has attained the age of 18 years is required to get himself registered as citizen of Pakistan whereafter under section 5, the Registrar General or District Registrar are required to issue the N.I.C. as prescribed in Schedule II of this Act. There is no doubt that a plain reading of Acts XX of 1974 and VI of 1973 makes it clear that the passport and N.I.C. are to be issued only to a Pakistani Citizen but it is a matter of common knowledge that unscrupulous elements in connivance with the corrupt officials facilitate issuance of these documents, which are mostly forged. As pointed out earlier, a passport is not sufficient to establish citizenship but whether possession of N.I.C, shall suffice to prove Pakistani citizenship will depend upon the facts and circumstances of each case. In order to establish bona fide citizenship reliance may be had on some proof of habitation and existence .of relatives in Pakistan These shall be some of the factors which can be considered. In the instant case the passport arid the' N.I.C. produced by the appellant are prima facie forged documents as has been rightly submitted by the learned Assistant Advocate-General. The name of the appellant is Taj Ali Islam son of Abdul Rauf. The passport bearing No. G-114869 is in the name of Tajul Islam son of Abdul Rab resident of House No.217 Old Golimar Manghopir Road, Karachi while the N.I.C. bearing No.506-90-380131 issued on 22-9-1990 shows his name as Tajul Islam son of Abdul Rab. Both these documents also bear signatures of the appellant but on the plea as well as vakalatnama of the learned defence counsel, the appellant had affixed his 'Left Thumb-Impression," which shows that he is an illiterate person. Although there is hardly any doubt that the appellant is not a citizen of Pakistan, nevertheless since the point of burden of proof was so vehemently urged by the learned defence counsel, therefore, this aspect of the matter is also being deliberated upon. Section 9 of Act XXXI of 1946 deals with the burden of proof. It would be advantageous to reproduce section 9 which reads as under:-- "

9. Burden of roof:--If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given there; under 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 that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Evidence Act, 1872, lie upon such person." The above provisions places the ultimate burden of proof upon the person who claims that he is not a foreigner. The manner in which the incidence of burden of proof shifts has been discussed in great deal by a Division Bench of this Court in Kamran Industries v. Collector of Customs, PLD 1996 Karachi

68. Such judgment has been anthored by me i.e. Dr. Ghous Muhammad, J., wherein the distinction between legal and evidential burdens have been discussed. In the present case section 9 of the Act XXXI of 1946 places the evidential or prima facie burden on the prosecution i.e. prosecution has to prima facie show that the accused person is a foreigner; thereafter the burden shifts on the accused person to finally disprove that he is not a foreigner i.e. the accused person bears the legal burden. Here the prosecution has discharged the evidential/tactical burden by prima facie establishing that the appellant is a foreigner. This has been done by bringing out the in-consistencies and forgeries in the passport and N.I.C. of the appellant. Moreover, the circumstances of arrest also suffice the burden then F had shifted on the appellant who has completely failed to discharge the same by disproving that he is not a foreigner. The appeal accordingly carrying no force is dismissed. N-H.Q./T-32/K Appeal dismissed.