1. ' MRS. QAISER IQBAL, J.---Appellant Muhammad Dilawar Hussain being aggrieved and dissatisfied from the judgment, dated 9-3-2005, passed by the VIIth Additional District Judge South, Karachi in Crime No.131 of 2003 under Articles 3/2(A) of Foreigners Order, 1951 read with section 14(2) of Foreigners Act, 1946 registered at P.S. Kharadar (S.8), Saddar Town, Karachi, whereby the appellant was convicted to undergo R.I. For six months and directed for deportation from Pakistan to his parent country, has resorted to file this appeal.
2. ' First Information Report was lodged by A.S.-I. Muhammad Arif Khan, posted at Bangladesh Cell, Special Branch, Karachi to the effect that during the course of patrolling and search of illegal immigrants, he had apprehended Abdul Wahab, Muhammad Dilawar Hussain/appellant from the area of Machhar Colony Fishery and demanded proof regarding their nationality being Pakistani, the appellant could not reply satisfactorily. During interrogation it is disclosed that he was a Bangladeshi National entered into territory of Pakistan illegally in the year, 1985 via India, through Wagah Border without any passport and valid visa, therefore, he was arrested and connected in the commission of the crime.
3. ' At the trial charge was framed and read over to the accused, he pleaded not guilty.
4. ' Prosecution in support of the case examined P.W.1, P.C. Muhammad Saleem, P.W.2 S.-I.P. Abdul Majeed, P.W.3 H.C. Syed Mehdi Ali and P.W.4 A.S.-I. Muhammad Arif Khan, I.O. Of the case and disclose the side to lead prosecution evidence.
5. ' Appellant in his statement under section 342, Cr.P.C. Denied the charges levelled against him and pleaded innocence.
6. ' Learned trial Judge framed the following points .For determination of case:--
(i) Whether the accused persons named above Bangaldeshi Nationals entered into Pakistan territory illegally without having any legal and valid documents by crossing Lahore Wagah Border and stayed in Pakistan illegally?
(ii) What offence, if any, the accused has committed?
7. ' On the appraisal of the evidence trial Court answered the point No.1 in affirmative and convicted the appellant as stated above.
8. ' Mr. Attaullah Khan,- learned counsel for the appellant has contended that during search of illegal immigrants complainant apprehended the appellant as well as Abdul Wahab and demanded proof of their nationality being Pakistani, A.S.-I. Muhammad Arif Khan being the complainant I.O. In presence of PC Muhammad Saleem and H.C. Syed Ali Mehdi, arrested the appellant for illegally entering into the territory of Pakistan. It is further contended that there is no iota of evidence to establish the factum of illegal entry of the appellant on the contrary, he had produced copies of N.I.C. Of his father, mother and brother Exhs.11/A to 11/C, Birth Certificate Exh.11/E, which effectually proves the bona fide citizen and established by proof of habitation and existence of relatives in Pakistan. Section 9 of Foreigners Act, 1946 cast duty upon the defence to establish that the appellant was not foreigner is reproduced 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."
9. By virtue of section 16-A of Pakistan Citizenship Act, 1951, a person domiciled in the territory of Pakistan from Bangladeshi origin before 16-12-1971 alone cannot be treated as foreigner as Bangalis were given statutory recognition. The appellant has produced N.I.C., Passport. Award Certificate issued by Director General Marine Faisheries Department on 24-6-2000, bill of electricity.
10. Extract from the voters list of the appellant, and of his parents, father. Copy of Nikahnama, dated 14-10-2001 with Razi Bibi daughter of Abdul Manan and the history of the birth of the appellant's brothers, sisters born out of the marriage of his father Abdul Shakoor with Mst. Anwari Begum. The above-referred documents established a chain of circumstances relating to the habitation and existence of relatives in Pakistan. Since the parents of the appellant are not being accused of entering into Pakistan illegally, the plea of the appellant carry weight, as the documents highlighted above are not controverted by learned State counsel.
11. ' The upshot of the above discussion is that the appellant had discharged the burden of proof that he was not a foreigner, he had proved habitation and assistance of his relatives in Pakistan and discharged the burden vested upon him in terms of section 9 of the Foreigners Act, 1946 therefore, impugned judgment is not sustainable in law hereby stands set aside, the appellant is present on bail. His bail bond stands discharged. Consequently appeal is accepted. The order of deportation of the appellant stands set aside.