' SYED MAHMOOD ALAM RIZVI, J. -The appellants have challenged the impugned the common judgment dated 28-2-2005 passed by the learned 2nd Additional Sessions Judge, (South+West)
Judicial Court Complex, Karachi in Case No,557 of 2003 and Crime No, 157 of 2003 under sections 3/2(a) Foreigners Order, 1951, R/W section 14 Foreigners Act, 1946 registered at Police Station Kharadar (Special Branch), Karachi, whereby the appellants were convicted and sentenced to undergo R.I. For three months and to pay a fine of*Rs,5,000 and in default of payment of fine to suffer R.I. For one month more. It was further directed that after serving of the above sentence, the jail authorities would deport the appellants to their parent country'viz. Bangladesh as per section 14B of the Foreigners Act, 1946.
2. Briefly, the facts of the prosecution case are that convicts/ appellants were arrested on 6-8-2003 by the police of above said Special Branch as they had failed to produce any document to prove that they were Pakistani Nationals and assumed that they were Bangladeshi Nationals, hence they were booked in the above said case and thereafter, they were challaned in the Court.
Subsequently, charge was framed to which both of them pleaded not guilty and claimed to be tried.
3. The prosecution examined the complainant and Investigating Officer, Inayat - Ali 'who had produced memor of arrest and personal search of the appellants and statement under section 154 Cr. P.C. And F.I.R, while P.W. P.C., Nadeem Ahmed who acted as mashir of arrest and personal search, testified the above documents. Thereafter, the prosecution closed its side and the statements under section 342 Cr.P.C. Of the appellants were recorded in which both the appellants claimed to be Pakistani Nationals and produced their C.N.I.Cs and other documents i.e, Birth Certificates, C.N.I.Cs of their parents and 'Bey' Forms issued by NADRA and Nikahnama, issued by Government Departments.
4. The learned trial Court passed the impugned judgment holding that the C.N.I.Cs. And Birth Certificates are not proof of their being Pakistani Nationals and held that the prosecution has proved its case.
5. Learned counsel for the appellants contended that the learned trial Court has passed the impugned judgment without giving proper consideration to the documents issued by the concerned authorities and produced by the appellants in proof of their being Pakistani Nationals i.e, C.N.I.Cs and birth certificates of both the appellants. They referred to Dairy dated 8-9-2003 of the trial Court in support of their plea that the same documents were sent to the concerned departments and were returned duly verified that they were genuine.
5A. It is, further, argued that the learned trial Court has discussed almost all the provisions of the relevant laws viz. Foreigners Act, Citizenship Act and the rules framed thereunder coupled with the NADRA Rules etc. At page Nos.6 to 11 of the impugned judgment and'all the burden has been shifted upon the appellants to prove that they had legally entered into Pakistan as from physical appearance they look Bangalies and they had failed to produce a single document to substantiate their plea that they entered in Pakistan after 1972, therefore, the learned trial Court did not accept all the documents issued by the government departments/agencies. According to the learned counsel for the appellants, though the learned trial Court discussed all the relevant laws but ignored that prosecution has miserably failed to produce any single document in support of their claim that the appellants illegally entered into Pakistan.
6. On the other hand, Ms. Farah Naz, learned counsel for the State contended that the impugned judgment is just and proper, the appellants are Bangladeshi Nationals and they had failed to produce their citizenship certificates, nor they had got themselves registered with the NADRA.
According to her, the appellants are aliens and the impugned judgment has been passed after discussing all the relevant laws i.e, Foreigners Act, Citizenship Act and the rules framed thereunder etc., as such the same does not require interference by this Court.
7. Heard the arguments advanced by learned counsel for the appellants as well as by learned counsel for the State and perused the record.
8. Although by appearance, the appellants seems to be Bangalies but they had produced documents, which were duly verified by the concerned government departments/agencies to be genuine, which support their plea that they are Pakistani Nationals. Needless to emphasize that for a Pakistanis. There -is no -need to ..Have a citizenship certificate and it is for the prosecution to prove its case that the appellants or their parents had entered illegally into Pakistan after the cut date viz 1972 but in the present case the prosecution has miserably failed to prove its case through any document or the evidence.
' Rather they relied upon the statements of the appellants given while they were in custody having no value. Contrary to the provisions of Qanoon-e-Shahadat, the trial Judge has based his judgment on presumption and surmises and I am shocked to note that he has failed to discuss the evidence adduced during the trial. He has presumed that as from appearance the appellants look Bangalies, therefore, they are not Pakistani Nationals. As stated above, he has also relied upon the statements made by the appellants while in custody, without looking into the genuineness or otherwise of the documents produced by them in proof of their being Pakistani Nationals although no judicial confession was recorded. He has stressed upon the fact that the appellants did not have any citizenship certificate. I am sure that the learned trial Judge would also have no such certificate but despite that he claims to be Pakistani National. As stated above, for a Pakistani it is not necessary to possess a citizenship certificate.
9. The Court has observed in so many judgments and orders passed by the lower Courts that lengthy discussion is made on the evidence without applying the Evidence Act and other relevant laws. In the instant case, when the trial Court had sent for verification the documents produced by the appellants in proof of their being Pakistani Nationals and when the same were declared to be genuine, in such a situation instead of convicting the appellants on the basis of surmises- and conjectures. And the bare statement of the appellants made by them while being in custody, they should have been straight away acquitted. The trial Judge has observed at typed page 1-2 of the impugned judgment that both the appellants did not produce any document showing that they are Pakistani Nationals or that they have applied to the Authorities constituted under the Pakistan Citizenship Rules Obviously this is not required for a Pakistani but it is for aliens and in this case admittedly the prosecution has not proved that the appellants are aliens.
10. The upshot of the above discussion is that the impugned judgment is not sustainable in law, hence the same is hereby set aside and the appellants are acquitted and their sureties stand discharged.