1. ' ARSHAD NOOR KHAN, J.-This appeal under section 410 of Criminal Procedure Code has been filed by the appellants thereby challenging the conviction and sentence recorded by the learned VII- Additional Sessions Judge, Karachi-South in Sessions Case No, 187/2003. The State v. Rehmatullah and another in Crime No, 44/2003. Under section 3/2(a) F.0.1951 read with section 14(2) Foreigners Act, 1946 of P.-S Kharadar (Special Branch),Karachi whereby both the appellants have been convicted and sentenced to suffer six months'R.I. With the benefit of section 382-B, Cr.P.C. With direction to deport them on completion of their sentence.
2. ' The facts leading rise to the present appeal in brief are that Syed Sajjad Hussain Shah, ASIP posted at Bangladesh Cell, Special Branch, Karachi recorded his statement under section 154 Cr.P.C. Dated 4-3-2003, stating therein that during the search of Bangladeshi Nationals, who entered into Pakistan illegally, apprehended Rehmatullah son of Mohammad Imam and Mohammad Alam son of Hazrat Ali, who on demand failed to produce the proof of their nationality being Pakistani nor possess any NADRA registration card nor any other documents showing them Pakistani Nationals, were produced as such they both were brought at C.P.O., where during the course of interrogation they disclosed themselves to be Bangladashi Nationals, who entered in the territory of Pakistan illegally in the year 1988 after crossing Wagah border. The said statement of complainant was incorporated in F.I.R. Book and both the accused were challaned to face trial under sections 3/2(a)F.0.1951 read with section 14(2) of Foreigners Act, 1946. The learned lower Court after compliance of section 265-C, Cr.P.C; framed charge against them on 7-5-2003 to which they pleaded not guilty and claimed trial.
3. ' After framing the charge, the prosecution examined P.W.l Shaukat Mehmood ASIP vide Exh.3, P.W-2 PC Mohammad Naeem vide Exh.4, P.W.3 Syed Sajjad Hussain ASIP vide Exh.5 and P.W.-4 Mansooruddin Ahmed vide Exh.6, and closed side of the prosecution vide statement, Exh.7.
4. ' The statements of both the accused were recorded under section 342, Cr.P.C. Wherein they denied to have committed the alleged offence and produced the relevant documents showing themselves as Pakistani Nationals. The learned lower Court after hearing of learned counsel for the parties convicted and sentenced the appellants as stated above, hence the present appeal.
5. ' I have heard Mr. Fazlur Rehman Awan, advocate for the appellants and Mr. Abdul Samad Memon, advocate, learned counsel for the State.
6. ' Learned counsel for the appellants vehemently contended that appellants have produced their CNICs as well as their birth certificates and their Nikahnamas coupled with other documents which fully show that the appellants are Pakistani Nationals and residing in Pakistan since long and the learned lower Court did not consider the documentary evidence available on record on flimsy and fallacious grounds as such the conviction and sentence awarded to the appellants by the lower court is illegal and against the evidence available on record, which may be set aside and the appellants may be acquitted from the charge.
7. ' Mr. Abdul Samad Memon, learned counsel for the State vehemently opposed the contention advanced by the learned counsel for the appellants and has contended that the appellants failed to show that their parents were residing in Pakistan prior to 1970 as such the learned lower Court rightly discarded the documentary evidence brought on record by the appellants as such no illegality is apparent on the face of the order passed by the learned Court, so as to interfere in, it, by this Court.
8. ' I have considered the arguments advanced on behalf of the parties and have gone through the evidence available on record.
9. ' The complainant Syed Sajjad Hussain, ASIP in his statement under section 154, Cr.P.C. Has not stated that from where hd' apprehended both the present appellants and where he was searching the foreign nationals. In case, if really, he was searching the foreign nationals and apprehended the accused it was incumbent upon him to disclose the place where he was searching the foreign nationals and apprehended both the accused. In his statements before the learned lower Court he narrated entirely different story in derogation to his statement under section 154, Cr.P.C. In his statement before the learned lower Court he stated that on 4-3-2003 he was posted as Head Constable at P.S. Gulshan-e-Iqbal, Karachi where his superior received the order to conduct a raid within the area of Gulshan-e-Iqbal, therefore, he proceeded with his officers and went to the house of the accused Muhammad Alam and conducted raid and arrested him and accused Rehmatullah and thereafter they returned to their office, whereas the statement recorded by him under section 154, Cr.P.C. Seems to be in contradiction with this statement. From his evidence, it is crystal clear that he alongwith his superiors raided the house of the accused, which was already known to him as such the allegations of search of the foreigners as stated by him in his statement under section 154, Cr.P.C. Appears to be false, fabricated and fallacious and the accused have been arrested by him for certain motive.
10. ' The appellants have produced their CNICs which have been issued on the basis of their NICs. They have also produced their birth certificates, which shows their birth at Karachi, which evidence shows that by birth they are residing in Pakistan and since they are Pakistani, their NICs and CNICs were issued by the NADRA. CNICs issued to both the accused were sent to NADRA, by this Court for verification, and Assistant Manager, (Legal) National Database & Registration Authority, vide his letter dated 16th March,2007,has informed that CNICs issued in favour of both the appellants were issued by NADRA on the basis of NICs and their CNICs are genuine. The said report of NADRA has not been controverted by the learned counsel for the State. Even after challan of the accused neither the prosecution nor the learned lower Court has disputed the issuance of CNICs to both the accused, which shows that evidence produced by the appellants have not been properly considered by the learned lower Court. In presence of documentary evidence available on record, which in any way has not been disproved by the prosecution, it could not be said that the appellants have illegally entered in the territory of Pakistan from Wagah Boarder, on the other hand the birth certificates of both the accused, show that they were born at Karachi. In such state of affair, the allegations of the case of prosecution have not been substantiated properly and the learned lower Court was not justified in convicting the appellants.
11. ' After appraisal of whole evidence available on record, I am of the opinion that there is documentary evidence including CNICs issued in favour of the appellants by NADRA, duly confirmed by them vide letter dated 16-3-2007, to show that the appellants neither entered in Pakistan illegally from wagah border nor they are foreigners and the learned lower Court without any sufficient reason has discarded the documentary evidence produced by both the appellants.
12. The appeal is, therefore, allowed. The judgment passed by the learned lower Court is set aside and the accused are acquitted from the charge. They are on bail, their bail bonds stand cancelled.