2014 PLP 1984 (YLR)

HASAN FEROZ, J.

This order shall dispose of Criminal Bail Application No.1278 of 2013 granted by short order dated 6-12-2013 to applicant/accused Mohammad Hussain in case F.I.R. No.162/2013, under sections 3(2), 13, 14 Foreigners Act 1951 R/W 419, 420, 468, 471/34 P.P.C. Police Station FIA AHT Circle.

2. The brief facts of the case necessary of present application are that on source report FIA authorities of AHT Circle, Karachi conducted raid near passport office and on the pointation of the informant apprehended some individuals/ suspects including the present applicant/ accused and after due information verification also recovered some documents from their possession. It has also alleged that the apprehended persons including applicant/accused admitted to be Indian nationals entered into Pakistan and staying illegally in Karachi committed offence punishable under sections 3(2), 13, 14 Foreigners Acts, 1946 r/w section 3 Foreigners Ordinance, 1951 and sections 419, 420, 468, 471, 34, P.P.C.

3. I have heard the learned counsel for applicant/accused and Standing Counsel for State.

4. It has been contended by the learned counsel for the applicant/accused Mr. Naeem Qureshi that prior to this a bail application was moved before the District and Sessions Court Karachi South, which was dismissed vide order dated 20-8-2013 by the learned 2nd ADJ. It has further been contended that nothing has been recovered from the possession of the applicant! accused nor shown to this Court which may show that the applicant/accused is Indian national as the present applicant was earlier also picked-up by an agency along with his two brothers and they were cleared after due inquiry. The applicant/accused is a Pakistani national having CNIC No.42101-6184459-1 and co-accused has been enlarged on bail by the 3rd Additional Sessions Judge, Karachi (South) and further contended that the offence with which the accused have been charged does not fall within the prohibitory clause of section 497, Cr.P.C. The learned Counsel for applicant further contended that earlier to the present case, another case bearing Criminal Case No.269/1994 was also registered in the Court of VI Judicial Magistrate (South) Karachi against the brother of present applicant/accused on same set of facts who is also one of the co-accused in the present case, wherein the present applicant/accused was also inquired and after trial the learned Magistrate acquitted the brother of accused under the charge of foreign nationals vide Judgment dated 29-9-1994 and now the same accused has again been involved in the present case.

5. The learned Standing Counsel has opposed this bail on the grounds that the accused is an Indian national however, he could not controvert the veracity of CNIC and Pakistani passport issued in favour of the accused.

6. The contention that the applicant/ accused is a Pakistani national has been supported by CNIC and machine readable passport and further to this that the accused has earlier been involved in a case wherein his brother has been acquitted is a matter of double jeopardy being faced by the family as per contention of the learned Counsel. Although such an aspect would not squarely stretches in personam as to double jeopardy caused to the present accusea however, looking to the inviolability of a citizen protected under the fundamental rights envisaged in Constitution of Islamic Republic of Pakistan 1973, in a case wherein his family members are also involved on the same set of facts, the claim of double jeopardy attract in rem to his case as well, at this prima facie stage of assessing of material available on record.

7. I have also in my consideration that under section 9 of the Foreigners Act the burden of proof would shift upon the accused upon determination of nationality of a foreign country under section 8 of Foreigners Act, however in the instant matter no nexus is made out to draw the inference that a person holding Pakistani Passport and CNIC would be burdened under section 9 Supra with the alleged offence and therefore, there appears reasonable ground to believe that this matter falls under the purview of further inquiry, the offence is not falling within the prohibitory clause of section 497, Cr.P.C. I therefore, keeping in view the facts; circumstances and law have granted the bail to the applicant/accused vide my short order dated 6-12-2013 reproduced hereunder: "6-12-2013 For the reasons to be recorded later on, after hearing the learned' counsel for applicant and learned Standing Counsel at length there seems to me the grounds for further inquiry inasmuch as the present accused has been stated to be the victim of jeopardy, the offence does not fall within prohibitory clause under section 497, Cr.P.C. I, therefore, grant bail to the applicant in the sum of Rs.200,000 (Rupees two lac only) and P.R Bond in the like amount to the satisfaction of trial Court." The above are the reasons for the short order. MWA/M-98/Sindh Bail granted.