2020 P Cr (PLP)

ABDUL MAALIK GADDI, J.

By this common judgment, I intend to dispose of the captioned appeals, as these appeals arising out of single judgment dated 18.11.2011, passed by the learned trial Court.

2. Through these appeals, the appellants have assailed the legality and propriety of the judgment dated 18.11.2011 passed by the learned 1st Additional Sessions Judge, Malir, Karachi in Sessions Case No.39 of 2007, (re: The State v. Moinuddin and 02 others), in Crime No.117 of 2007 registered at Police Station FIA AHT Circle, Karachi, under sections 3(2)(a)(b), 13/14, Foreigners Act, 1946, read with sections 419/ 420/468/471/109/34, P.P.C., whereby the learned trial Court after full dressed trial, convicted the appellants under section 265-H(ii), Cr.P.C. for offence under section 3(2), (a), (b), 13 and 14 of Foreigners Act, 1946 and sentenced them to suffer R.I. for one year with fine of Rs.50,000/- each and in default in payment of fine, it was further ordered that appellants shall suffer R.I. for three (3) months more. However, benefit of section 382-B, Cr.P.C. was also extended to the appellants. It was further directed to Superintendent Jail Authority to make arrangement and informed to concern authority of Bangladesh and deport them from Pakistan to Bangladesh according to rule after expiry of conviction period.

3. Brief facts of the prosecution case in nutshell are that as per Enquiry No.1237/2006, the complainant Inspector Ghulam Murtaza Bajwa of FIR Immigration JIAP Karachi, stating therein that three' paxes namely Muhammad Hayat son of Shah Nawaz residing of Village Rozi Khan, Katohar, Post Office, Taluka and Tehsil Qamber: District Larkana, CNIC No.43202-9526109-7, Passport No.KC 722637 dated 01.12.2002, Larkana, Babar son of Abdul Malik, residing of Gali Mohallah Abu Bakar Siddique Shah Park, Muslim Muhammadi Colony, Karachi, CNIC No.42401-1942564-9, Passport No.KC-709368 dated 29.10.2003, Karachi, and Muhammad Shah Alam son of Muhammad Abdullah residing of Khalid Bin Waleed Colony, Airport Road, Larkana, CNIC No.42301-8339023-9, Passport, No.KE-821852 dated 15.03.2005, Larkana were arrived Dacca by flight No.BG-023 on the strength of Pakistani Passport as routine passenger. During immigration clearance on scrutiny of their travel documents, it revealed that the passports of all three paxes were found suspected to be forged by replacement of photograph affixed at page No.3, and their departure stamps also seems to be forged and their departure also could not confirmed from PISCES of that passport which was produced by them. Hence, all the paxes along with their passport and original CNIC were referred to this Cell for further verification. During interrogation, the paxes Muhammad Hayat son of Shah Nawaz disclosed that his real name is Moinuddin son of Shamsul Haque, residing of Muhashan Gali, Puran Para, Katchi Abadi, Ayoub Chowk, Machar Colony, I.C. Road, Lvari, Karachi.

4. The charge was framed on 25.10.2010 against the appellants by the learned trial Court at Ex.2, to which they pleaded not guilty and claimed to be tried vide their pleas at Ex.2/A and Ex.2/B respectively.

5. At trial, in order to establish accusation against appellants, prosecution had examined the following witnesses:- (i) PW-1 Ghulam Murtaza at Ex.5, who produced detainee report, passports of passenger, Babar, Muhammad Hayat, Mohammad Shah Alam, and their CNICs, and three tickets at Ex.5/A to Ex.5/J respectively; (ii) PW-2 Muhammad Shafi, Inspector FIA at Ex.6, who produced FIR, verification letter, CNICs of appellants, receiving RPO report Larkana along with documents, receiving letter from RPO Rawalpindi along with document, memo of arrest of appellants, verification report of CNICs of appellants, letter about previous travelling history to Dhaka of appellants at Ex.6/A to Ex.6/M respectively. These witnesses were cross-examined by the Counsel for appellants and thereafter, learned Assistant Director legal, FIA closed the prosecution side vide Statement at Ex.7.

6. Statements of appellants were recorded under section 342, Cr.P.C. at Ex.8 and Ex.9, in which they have denied to have committed offence as alleged by the prosecution. They further claimed that all the prosecution witnesses are FIA official's and they have falsely implicated them in this case and they are Pakistani nationals. In support of their version, appellant Muhammad Shah Alam produced copies of old and new CNICs of himself and new CNIC of his wife, issued by NADRA authorities; Pakistani Passport of himself, issued by Islamic Republic of Pakistan; Permanent Residential Certificate (PRC) of himself, issued by Deputy Commissioner, Karachi (South); Computerized Marriage Registration Certificate of himself, issued by Government of Pakistan; and Birth Certificate of his son namely, Muhammad Sahil, issued by the Government of Pakistan; whereas, appellant Babar produced copies of computerized CNIC issued by NADRA authorities; Pakistani Passport of himself, issued by Islamic Republic of Pakistan; old NIC of his father namely, Abdul Malik, issued by Government of Pakistan; Service Card of his father of Karachi Ghee Mills (Pvt.) Limited computerized CNIC of his mother namely, Parveen Bibi and sister namely, Najma Begum, issued by NADRA authorities; and Pakistani Passport of his mother namely, Parveen Bibi, issued by the Islamic Republic of Pakistan. However, they did not examine themselves on oath nor they produced any witness in their defence.

7. It is pertinent to mention here that one of the convicted/cot appellant namely, Moinuddin son of Shams-ul-Haque has also challenged the impugned judgment of trial Court by filing Criminal Appeal No.474 of 2011 before this Court, which was already tagged with these appeals, but record reflects that after grant of bail by this Court, he jumped the bail bond and remained absent ever since therefore, his appeal was de-tagged with these appeals and dismissed through separate order by relying upon the case law of Hon'ble Supreme Court of Pakistan.

8. Mr. Syed Samiullah Shah, learned Counsel for the appellants contended that the appellants have successfully discharged the onus of burden through production of documentary evidence. In support of his version, appellant Muhammad Shah Alam produced copies of old and new CNICs of himself and new CNIC of his wife, issued by NADRA authorities; Pakistani Passport of himself, issued by Islamic Republic of Pakistan; Permanent Residential Certificate (PRC) of himself, issued by Deputy Commissioner, Karachi (South); Computerized Marriage Registration Certificate of himself, issued by Government of Pakistan; and Birth Certificate of his son namely; Muhammad Sahil, issued by the Government of Pakistan; whereas appellant Babar produced copies of computerized CNIC issued by NADRA authorities; Pakistani Passport of himself, issued by Islamic Republic of Pakistan; old NIC of his father namely, Abdul Malik issued by Government of Pakistan; Service Card of his father of Karachi Ghee Mills (Pvt.) Limited; computerized CNIC of his mother namely, Parveen Bibi and sister namely, Najma Begum, issued by NADRA authorities; and Pakistani Passport of his mother namely Parveen Bibi, issued by the Islamic Republic of Pakistan. It is vehemently contended that the prosecution has failed to rebut the aforesaid documents, even did not bother to send such documents for verification, thus, in the circumstance and in the light of above documents, it is clearly proved that appellants are bona fide citizens of Pakistan by birth as their parents were also resident of Pakistan. The prosecution has miserably failed to establish its case and stands on its leg, as such, the case against the accused is highly doubtful, who have not committed the offences which contravene sections 3(2)(a)(b)/13/14 for Foreigners Act read with 419/420/468/471/109/34, P.P.C., therefore, they may be acquitted.

9. In Contra, Mr. Chaudhry Muhammad Waseem, learned Assistant Attorney General has vehemently contended that the appellants have been charged under sections 3(2)(a)(b)/13, 14 of Foreigners Act, 1946, read with sections 419/420/468/471/109 34, P.P.C., therefore, burden of proof lies upon their shoulders as provided, under section 9 of the Act that they are not a foreigner. It is further contended that the documents produced by the appellants seem to be forged one as no other documents have been produced before this Court that their fathers were never resided and died in Pakistan. Even accused failed to produce anybody as their defence witnesses to give strength to their plea. Lastly, he prayed for the dismissal of these appeals.

10. I have given my anxious thoughts to the contentions raised at the bar and have gone through the documents and evidence adduced by the parties before trial Court.

11. It is the case of appellants that they are Pakistani by birth and their parents were also Pakistani and buried in Pakistan, but this fact has been denied by the learned Assistant Attorney General by arguing that the appellants are Bangladeshi National and they managed and prepared the fake documents just to show them as Pakistani. Since there is words against words and if it is the case of words against words then burden heavily lay upon the person, who asserted affirmatively, even otherwise, section 9 of Foreigners Act, 1946 cast duty upon the defence to establish that the appellants were not foreigners. For the sake of convenience, it would be proper to reproduce the said Section herein below:- "Section 9 Burden of Proof.

If in any case not falling under section 8 of any question arises with reference to this Act or any order made or direction given thereunder, 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 of that such person is not a foreigner or is not a foreigner of such particular class for such description as the case may be, shall notwithstanding anything contained in Evidence Act, 1972 lie upon such person."

12. I have perused the case files with the able assistance of the parties' counsel, it reveals that during trial, the appellants have produced the documents as mentioned in preceding paragraphs Nos.6 and 7 and these documents established a chain of circumstances relating to the habitation and existence of relatives in Pakistan. The nature of documents produced by the appellants in support of their cases, as highlighted above, appears to be issued by competent authority/ organization certainly after due verification and inquiry cannot be termed as valueless, so also these documents are still held field. It has also been brought in evidence that passports and CNICs of the appellants are genuine. Therefore, under Article 129(e) of Qanun-e-Shahadat Order, 1984, which says that Judicial and official acts would be presumed to have been regularly performed. In this respect, I am fortified with the case of Muhammad Ali and 25 others v. Hassan Muhammad and 6 others reported as PLD 1994 Supreme Court 245.

13. Since it is case of huge documentary evidence in favour of appellants, but the trial Court has discarded these documentary evidence without assigning any valid and good reasons. During the course of arguments, I have specifically asked the question from the learned Assistant Attorney General if the documents produced by the appellants are forged then whether these documents have been cancelled by any competent authority, he has no answer with him have again also asked the question from learned Assistant Attorney General as to whether any action has been taken against the person, who issued these documents in favour of appellants, he again replied in negative. It also appears from the record that the cases of the appellants are based upon documentary evidence as referred to above, whereas, the case of the prosecution is rested upon the oral evidence. It is settled principle of law that documentary evidence always prevail upon oral evidence. It has been brought on record that these documents are still held field and have not been cancelled by the concerned authorities. In this regards, I am supported with the case of Syed Akhtar Hussain Zaidi v. Muhammad Yaqinuddin reported as 1988 SCMR 753, wherein it has been held as under:- "Art. 72

Documentary evidence

Rebuttal

Mere oral assertion is not sufficient to rebut documentary evidence." These appeals pertain to year 2007 and during this intervening period, neither any adverse record, nor any previous criminal history come on the record. I once again asked the question from learned Assistant Attorney General, to show any adverse record against the appellants during this period; again, he has no answer with him. In light of the above cited case law, it appears that presumption of truth; always attached with the documentary evidence and not to oral evidence and merely saying that appellants are Bengali by origin for that fact alone, they cannot be termed as foreigners. During the course of arguments, I have again asked the question from learned Assistant Attorney General, on which date, the appellants have entered illegally into Pakistan from Bangladesh, he has no answer with him.

14. In view of the above, the evidence produced by the appellants was more weighty than evidence of prosecution side. They, therefore, do not deserve to be convicted and are acquitted of the charge. Consequently, the convictions are set-aside. Obviously, the order of the Court for deportation also stand set aside. With this judgment the appeals are accepted. The appellants are present on bail, their bail bonds stand cancelled and surety discharged. JK/M-194/Sindh Appeals accepted.