2012PCr (PLP)

IRFAN SAADAT KHAN, J.

This Criminal Bail Application has been filed on behalf of the applicant/accused Gul Ahmed son of Sadda Gurda Gholay in respect of F.I.R. No. 107 of 2011, under_ sections 3(2), 13/14 Foreigners Act, 1946 read with sections 420/468/471/109, P.P.C. of Police Station FIA, AHTC, Karachi.

2. Concisely the facts of the prosecution case are that on the written report of Inspector Muhammad Saeed, Incharge Shift-B (Arrival), FIA, Immigration, JIAP, Karachi, bearing Verification No.89 of 2011, dated 7-5-2011 an Enquiry No.220 of 2011 on the same date was registered, wherein he stated that one Gul Ahmed (the present applicant/accused) having Passport No.KG-854828, dated 5-12-2009, issued at Muscat, arrived from Dubai (UAE) by Flight No.PK-208, dated 7-5-2011. During immigration clearance when his particulars were entered into PISCES Data Base System the same were hit in PISCES as "BL PASSPORT" vide ID 39094, BL No.321 of 2010, Category 'B', Passport No.KG-854828, KEG-250627. Action to take "Arrest", Stop List Status "Active". Therefore, the said person was detained and sent to the concerned FIA Officials along with his passports for further investigation and taking legal action in accordance with law. On such report/complaint, preliminary enquiry was conducted during which verification of his NICOP No.213028-487137-9, dated 12-9-2003, was obtained through online system of NADRA, which contained the remarks "This card has been cancelled. Individual is Non-National". During further enquiry it was. noted that the detainee/applicant failed to produce any lawful documents to prove his nationality as Pakistani and transpired from his appearance to be Afghani who entered into Pakistan illegally and obtained aforesaid NICOP by misdeclaration/unlawfully. Hence, this F.I.R. was lodged.

3. After usual investigation, challan was submitted and the applicant is facing, trial before the Court of Sessions Judge, Karachi Malir, where bail application was filed by him but the same was dismissed vide order dated 1-6-2011 and it is against that order this Criminal Bail Application has been filed.

4. Mr. Rana Muhammad Iftikhar, Advocate appeared on behalf of the applicant and submitted that the applicant was having a valid NIC and passport since 1991. He submitted that no question was asked from the applicant at the time of issuance of NIC or the passport in the year 1991 about his nationality. He submitted that the applicant was having a valid passport and each time after the expiry of the passport it was renewed by the concerned authorities without any question. He submitted that at present the applicant/accused is having a passport, which is valid till December, 2014. He also stated that the applicant/accused is a Pakistani, national and in this regard has also enclosed two character certificates from political agents of Kurrum Agency mentioning therein that the applicant/accused is a permanent resident of Kurrum Agency which is the part of Pakistan. Learned counsel stated that all these statements/documents were neither considered by the FIA Authority nor by the Court below, who have illegally considered the applicant/accused to be an Afghan citizen whereas for all practical purposes the applicant/accused has to be considered a Pakistani having a valid NIC and passport. He further submitted that the law under which the present applicant/accused has been apprehended is not applicable as the applicant is not a foreigner but a Pakistani citizen having a valid passport. He, therefore, submitted that this is a fit case of further inquiry as ample material has been produced to prove that the applicant/accused is a Pakistani national.

5. Learned counsel for the applicant has also produced before me a letter dated 19-5-2011 addressed by Rashid Hussain, Inspector FIA, AHT Circle, Karachi, to Assistant Director, (B. L. Cell), Directorate General of Immigration and Passports, Government of Pakistan, Headquarters, Islamabad requiring him to furnish the details of the black listed passports to enable the agency to proceed further into the matter, meaning thereby that at present the FIA itself is enquiring into the matter.

6. The learned counsel has further stated that in identical circumstances a Division Bench of this Court in the case of Saleem Bhallo v. District and Session Judge, South (PLD 2011 Karachi 48) has quashed the proceedings against the applicant/accused on the ground that investigating office failed to show cancellation of Pakistani Origin Card (POC) of the accused by the National Data and Registration Authority. He states that in the present case also NADRA authorities without fulfilling the legal requirements have termed the applicant/accused to be having fake NICOP and thus not to be a Pakistani citizen.

7. Learned D.A.-G. on the other hand supported the order passed by the trial Court and states that the applicant/accused is not entitled for grant of bail at this stage.

8. I have heard both the learned Counsel as well as the Inspector of FIA Rashid Hussain and have perused the record and the decision relied upon.

9. It is seen from the record that the applicant/accused was having an NIC and passport since. 1991 which has not been controverted by the learned D.A.-G. or the Inspector of the FIA. It is also an undeniable fact that the passports issued to the applicant/accused were time and again renewed and at no point of time the applicant/accused was declared to be an Afghan national. It is only on 7-5-2011 that when the applicant/accused arrived from Dubai (UAE) that he was apprehended on the ground that during immigration the particulars entered into PISCES Data Base System has not confirmed his NICOP. A question was asked from the learned D.A.-G. as well as the Inspector of the FIA that whether the pervious NIC and passports were issued to the applicant/accused after due verification or without the same and if the applicant/accused is an Afghan national then how previous NIC and passports were issued, to which no plausible reply could be furnished except by saying that as per the PISCES Data Base System record of the applicant/accused is not available. The question requires .enquiry with regard to the national status of the applicant/accused as he has been suspected to be Afghani whereas as per the documents produced by him he has categorically stated that he is a Pakistani national and a permanent resident of Kurrum Agency and has also in this regard annexed character certificates of two political agents of Kurrum Agency duly affirming that he is a resident of Kurrum Agency. Hence, in my view, on the tentative assessment of facts and circumstances of the case the matter requires further inquiry with regard to the national status of the applicant/accused and also with regard to how previous NIC and the passports were issued to him from time to time as apparently the applicant/accused has entered in Pakistan on the basis of a Pakistani passport issued by Government of Pakistan as it is clearly mentioned in the F.I.R. that he has been detained at the Airport by suspecting him to be an Afghan national from his appearance. However it is not understandable that as to how only on the basis of appearance a person could be termed as a foreign national or a Pakistani national without first ascertaining his identity, which in the present case needs to be thrashed out after a detailed inquiry.

10. In view of what has been stated above, in my opinion, this is a fit case of further inquiry and the applicant is entitled to be enlarged on bail. Hence bail is granted to the applicant subject to his furnishing solvent surety in the sum of Rs.5,00,000 (Rupees Five Lac) and P.R. Bond in the like amount to the satisfaction of the trial Court.

11. Before parting with the case, it is made clear that the observations made in this order are only tentative in nature and the same shall not prejudice the case of either party at the trial. H.B.T./G-37/K??????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.