1996 P Cr (PLP)

Suleman Habibullah for the State. This order will dispose of bail application filed on behalf of the accused namely Waheedul 'Islam son of Muhammad Haneef and Mashooq Rana son of Nawaz Bachal, who had been booked under section 3(2)(a) of F.R.O., 1951 vide F.I.R. bearing No.370/1995 registered at Police Station Kharadar, Karachi. On 6-10-1995 the A.S.-I. Police Station Kharadar while on patrolling duty and search for illegal trafficking of Bangla Deshi National and when he reached in Azam Basti, he found certain persons in suspicious condition and after enquiry he demanded proof from them of their being Pakistani, which they could not produce nor they gave any satisfaaory reply therefore, the A.S.-I. took them for further investigation and produced them before the high official, who after interrogation found that they were Bangla Deshi National and directed the A.S.-I. to take legal action against them as such on the basis of the statement recorded under section 154, Cr.P.C. the F.I.R. was registered against these persons. The accused abovenamed filed a bail application before learned Additional District Magistrate (South) which was rejected by him vide his order, dated 9-1-1996. Thereafter, the accused preferred bail application before the learned District and Sessions Judge, Karachi South which was transferred to the Court of Second Additional Sessions Judge, Karachi South and which too was rejected by learned Second Additional Sessions Judge (Mrs. Khalida Yasmin) vide order, dated 19-3-1996. The learned counsel appearing on behalf of the accused contended that the accused are not Bangla Deshi but they are Pakistani by birth but they have been falsely implicated in this case due to enmity with Kharadar Police as such false implication of the accused due to enmity cannot be ruled out and further that the offence under which the accused are charged with does not come under the prohibitory clause of section 497, Cr.P.C. as such they are entitled for concession of bail. The learned counsel has placed reliance on the following cases: (1) 1993 PCr.LJ 446 (Karachi), (2) PLD 1988 Kar. 64, (3) Unreported order passed in Noor Khan and others v. The State Criminal Bail Application No. 1352 of 1995. On the other hand, learned counsel appearing on behalf of the State has contended that no proof of being Pakistani was given by the accused on repeated demands, and further that these accused know only Bangali and did not speak any other language during the course of interrogation and further that they admitted that they had entered into Pakistan in the year 1987 without any Passport and valid documents. He has also contended that the offence under section 3(2) of Foreigners Act, 1951 read with section 14 of the Foreigners Act of 1946 is punishable for 10 years. I have heard both the learned counsel at great length and have perused the record of this case. -Record shows that no documentary proof has been filed to show that accused are Pakistani. Even during the course of arguments a question was put to learned counsel for the accused whether he has got any birth certificate of the accused to which he replied in negative. There is prohibition of assisting illegal entry as such no one shall make or carry out arrangement for securing or facilitating the entry into Pakistan or any one whom he knows or has reasonable cause for believing to be an illegal emigrant. Furthermore the situation in this country and especially in Karachi is not normal, thousands and lacs of foreigners have crossed over to Pakistan from neighbouring countries and have floated the Karachi. They have created a lot of law and order problem and if there would no check on the illegal emigrants by Courts there would be no end to it. However, as -already stated in the impugned order by the learned Second Additional Sessions Judge, Karachi South that according to section 9 of the Foreigners Act, 1946 the burden to prove that the accused are Pakistani National lies upon the accused who claim themselves to be Pakistani Nationals. The record shows that no documentary evidence has been produced. Even if they claim that they are Pakistani National by birth but no birth certificate has been produced. According to the amendment in the Foreigners Act, 1946 the punishment prescribed is for 10 years and even after sentence the accused can be departed to their country as rightly observed by the learned Second Additional Sessions Judge, Karachi South. I am, therefore, not inclined to grant bail to the accused on the above grounds but however, if they are convicted, if not proved to be Pakistani, they can be departed to their country. I would, therefore, like to direct the learned Magistrate to proceed with the case expeditiously and decide it within the time of two months under intimation to this Court. N.H.Q./W-2/K Bail refused.