The learned counsel for the petitioner submitted that the petitioner was convicted under section 14 of the Foreigners Act, 1946, (hereinafter called as the Act) and was sentenced to undergo 5 months'
R.I. and a fine of Rs.5,000 with concession under section 382-B, Cr.P.C., that the petitioner has already undergone the period of his imprisonment for the main sentence, and has paid the fine, that the observations/orders of the Court regarding deportation were extraneous to the provision of section 14 of the Act, and were not required in the circumstances of the case. He requested that the remarks regarding the deportation of the petitioner including the observations regarding the cases pending in Pakistan at the day of announcement, may please be quashed as neither request for them was made to the Court nor any arrangement for deportation of the petitioner was made.
2. The learned counsel for the State referred to the added section 14B and 14C of the Act, and submitted that it was within the authority of the Court to grant permission for deportation of an accused tried or convicted under section 14 of the Act.
3. The new sections 14B and 14C of the Act are as follows:-- "14B Deportation pending trial or undergoing sentence of imprisonment.--- Notwithstanding anything contained in this Act, the Code or any other law for the time being in force a foreigner having no permission to stay in Pakistan or for whose deportation arrangements have been made by the Federal Government, may, if his presence in Pakistan is not required in connection with any other case:--
(i) with the consent of the Federal Government, be permitted by the Court trying him for any offence under this Act to deport from Pakistan; or
(ii) under the order of the Federal Government, be permitted to deport from Pakistan while he is undergoing any sentence passed under this Act."
"14C Custody pending deportation.--- A foreigner, having no permission to stay in Pakistan, who has been convicted and sentenced to imprisonment under this Act shall not be released on the expiry of the sentence and shall continue to remain in custody for a period not exceeding three months to enable arrangements for his deportation to be finalized."
4. After arguments, both the parties came to the same view that the petitioner would be permitted by the Court trying him for an offence under the Act to deport from Pakistan, with the consent of the Federal Government, if his presence in Pakistan was not required in connection with any other case. He could also be permitted to deport from Pakistan while he was undergoing any sentence passed under the Act, under the orders of the Federal Government, if his presence in Pakistan was not required in connection with any other case.
5. It was not the stage of trial, and the consent of the Federal Government was not available at that stage for the petitioner to deport from Pakistan. The order of the Federal Government was also not available on record at the time when the petitioner was undergoing any sentence passed under the Act.
6. The learned trial Court was concerned with case-F.I.R. No.17 of the Police Station C.I.D. against the petitioner for offence under section 14 of the Act. That Court, vide order, dated 26-2-2005, however, issued the following order:- "Keeping in view the fact and circumstances of the case and punishment provided for the offence the accused is sentenced to 5 months' R.I. and fine of Rs.5,000. In default of payment of fine the accused shall undergo one (1) month's S.I. The accused shall be deported immediately after completion/ undergoing sentence of any case pending in the Pakistan at the day of announcement of this order and also if there is any case pending at the day of announcement of order till the decision of the case and after completion of its sentence. Concerned Authority be informed accordingly. Benefit of section 382-B, Cr.P.C. be given to the accused. File be brought for the date fixed."
7. The petitioner, being aggrieved of the same, went on appeal to the Court of Additional Sessions Judge, Peshawar, who in his order, dated 7-4-200, recorded as under:-- .
".... Along with appeal the appellant submitted an application for suspension of the sentence and for his release on bail within the meaning of subsection (1) of section 426, Cr.P.C. The said application was allowed by the Court and the sentence awarded' to accused was suspended and the appellant was admitted to bail subject to furnishing bail bonds in the sum of Rs.1,00,000 with two sureties each, however, as per report of Jail Authorities the appellant had already undergone his sentence and that he was not released from jail only for the reason that the learned Judicial Magistrate, Peshawar in the impugned judgment has observed that the appellant may be deported from jail after disposal of all the criminal cases pending against him in Pakistan."
He, therefore, declared that the appeal of the present petitioner had become infructuous on this score. He further observed as under:- "As well as the findings made by the learned Judicial Magistrate regarding the conditional deporting of the appellant is concerned, this Court is not competent to quash or set aside the said findings of the learned Judicial Magistrate regarding the conditional deporting of the appellant because the appeal as stated above has become infructuous. For the expunction and setting aside the findings made by the trial Court regarding the conditional deporting of the appellant, the appellant can avail the legal remedy available to him under the law, if he so desires."
8. On 12-4-2005, Criminal Miscellaneous No.165 of 2005 of the present petitioner for suspension of the impugned judgment dated 26-2-2005 and release of the petitioner on bail, was dismissed as not pressed for the time being. The case was, however, admitted to full hearing, therefore, the case was so heard today.
9. Had the appeal of the petitioner not become infructuous, or this order of today was not to be announced after expiry of the sentence, he could have been released on furnishing bail bond in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of the trial Court, who would ensure that the sureties were local, reliable and persons of means.
10. The provisions of section 14 of the Act are related only to the grant of punishment and no other purpose including the deportation. The Federal Government may by orders make provision either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting regulating or restricting the entry of foreigners into Pakistan, or their departure therefrom or their presence or continued presence therein, in accordance with section 3 of the Act. It was not the responsibility of the learned Judicial Magistrate to have gone beyond the scope of the provisions of section 14 of the Act.
11.In accordance with section 14C as inserted by Ordinance XXV of 2000, and reproduced above, the petitioner was not to be released on the expiry of the sentence and was to continue to remain in custody for a period not exceeding three months to enable arrangements for his deportation to be finalized. As mentioned earlier, there was no consent, request or any other material on record that deportation proceedings had been initiated against the petitioner. The remarks of the learned Judicial Magistrate as mentioned in his order quoted above, except in relation to the provisions of section 14 of the Act, were uncalled for and unnecessary. The provisions of section 14C of the Act clearly indicate that the petitioner shall be released after three months after the completion of the period of the sentence granted to him by the learned Judicial Magistrate, if arrangements for his deportation were not finalized by the Federal Government within the said period. The law was, therefore, to take its own course without intervention by the learned Judicial Magistrate.
12. I, therefore, accept the present criminal revision, and recall the remarks/observations of the learned Judicial Magistrate contained in the aforementioned order, dated 26-2-2005, except his order to the extent of convicting and sentencing the petitioner to imprisonment and payment of fine, with benefit of section 382-B, Cr.P.C.