2007 PLP 1897 (YLR)

MUHAMMAD SADIQ LEGHARI, J.

Appellant Alam along with Muhammad Hussain and Minnat Ali was tried and convicted for offence under section 3/2(a) Foreigners Order, 1951 read with section 14(2) F.O. 1964 by the learned Vth Additional Sessions Judge, Karachi (South) on 24-1-2004.

2. The prosecution case is that on 17-8-2002 SIP Ghulam Mustafa of Bengladesh Cell, Central Police Office, Karachi was mobile with PC Mir Dad and PC Muhammad Ishaque in search of illegal immigrant from Bangladesh. At Ali Muhammad Brohi Goth Korangi they found three persons appearing to be Bangali. They intercepted those persons and inquired about their particulars. It is alleged that all the three admitted before the police that they were Bangladeshi and had entered into Pakistan through Wagha Border from 1980 to 1988. All the three were taken into custody and then brought to Central Office. From there they were taken to Kharadar Police Station where SIP Ghulam Mustafa lodged the F.I.R. No.193/02.

3. After the investigation all the three were sent for trial. The case was assigned to the learned Vth Additional Sessions Judge, Karachi (South) who tried and convicted the appellant and his co-accused as mentioned above. They were awarded sentence of three years' R.I. with fine of Rs.5,000, in default they had to suffer six months more R.I. It was also ordered that after the expiry of the sentence they shall be deported to their country. Alam appealed against the conviction.

4. While arguing the appeal Mr. Sardar Shabbir Sultan, Advocate for the appellant contended that in fact the period of the sentence awarded to appellant Alam had already expired and now he is being kept in detention for deportation. He contended that in fact the prosecution evidence was nothing except that the appellants were Bengali by origin. The alleged confession before the police about illegal entry into Pakistan was not admissible in evidence. The learned Advocate contended for this Fazal Ahmed the father of the appellant was in Karachi since 1973 and he had applied for National Identity Card as Pakistani national showing appellant Alam as his minor son in his B-form. He was issued NIC. Currently, he has computerized NIC issued by NADRA. Learned Advocate further contended that the appellant became major here and also married here at Karachi with Sajida Begum. From the wedlock he has three children. The learned Advocate further contended that at present Fazal Ahmed the father of appellant Alam is paralyzed and is at home in Karachi. If the appellant is declared to be Bangladeshi and deported it will be great hardship and injustice to them. Also the wife and children of the appellant would be the worst sufferers in that situation. The learned Advocate strongly contended that the documents specially the copy of the B-form submitted by Fazal Ahmed, his computerized NIC, Nikahnama of the appellant. Ration Card of his children and the cards about his service as Qaumi Razakar were not appreciated by the learned trial Court and were ignored by sweeping observations that they pertained to the period after 1983.

5. Mr. Khawaja Muneer Ahmed, Advocate appearing for the A.G. has defended the conviction arguing that the statute puts burden upon the accused/ appellant to prove that he is Pakistani national, and he failed to discharge the same. He further contended that possibility of computerized NIC of the father of the appellant being managed one cannot be excluded.

6. Mr. Khawaja had however, no explanation about the undisturbed stay of the father of this appellant in Pakistan. He had to accept the position that Fazal Ahmed has not been touched or alleged to be foreigner.

7. It is true that the sentence awarded to the appellant has expired but the question involved in present matter is of such nature which cannot be ended .treating the appeal as infructuous. Here the question involved relates to the citizenship. If a person having acquired the citizenship of Pakistan is deported that will have far-reaching effects. Same way if a foreigner having effected his entry illegally is allowed to stay in Pakistan that too will have the impact. Therefore, this is not a routine criminal case. Here very important civil rather constitutional right is involved. Such an important case has been given very little importance by the investigating agency. They did not take pains to investigate the case deeply and sincerely, and send the appellant on the basis of his alleged admission before police which is not an admissible evidence.

8. Any way it is admitted position that appellant's father Fazal Ahmed is residing in Karachi with his family. It is also a fact that the appellant has married and his wife and children are also residing in Karachi; they had appeared before this Court during the hearing of this appeal. The father of the appellant has been issued valid NIC. Which was produced by the appellant before the trial Court while deposing under section 340, Cr.P.C. The learned trial Court failed to appreciate that document. It also did not appreciate properly the fact that the father of the appellant had declared the appellant as one of his minor children in his B-form. These documents are of importance and cannot be ignored or excluded of the consideration by any sweeping remarks. So far as the other documents are concerned they too were not appreciated properly by the learned trial Court as it ignored them simply for the reason that they were of the period after 1983. After all the concerned authorities/organization issued those documents on the basis of certain material or enquiry. The law attaches presumption of validating to the official acts or documents unless proved otherwise therefore, for the simple reason that they were issued after 1983 the documents could not be treated valueless. No doubt, the appellant has Bangali origin for that fact alone he cannot be termed as foreigner. Bangalees were given statutory recognition as citizen of Pakistan under Pakistan Citizenship Act, 1951, by inserting new section 16(A) in it if they were in Pakistan before 1975. Since the father of the appellant is not being accused of entering into Pakistan illegally the plea of the appellant is not weightless specially when he produced the documents highlighted above.

9. In view of all above, the evidence produced by the appellant was more weighty than evidence of the prosecution