1. ' SHAHID ANWAR BAJWA, J.---An F.I.R. Was registered being F.I.R. No,241 of 2009 at F.I.A. Police Station A.H.T. Circle Karachi. The present applicant was proceeding to Riyadh via Doha on strength of Pakistani Passport. At Immigration Counter it was revealed by the Computer that his particulars are placed in black list. It was also stated that action to be taken was to arrest him. Consequently he was offloaded. Preliminary inquiry by F.I.A. Circle revealed, it is alleged in the F.I.R., that applicant and his parents are Afghan Nationals. While the applicant was child his father and mother along with others entered Pakistan and since then have stayed all along in the outskirts of Peshawar.
2. Later on his family members succeeded to obtain Pakistani Computerized National Identity Cards and consequently Pakistani Passports. His brother through a recruiting agency got him a job and he was proceeding to Riyadh in that connection. Challan was submitted on 24-7-2009. Bail application was rejected by the Court below for the following reasons:-- "I have gone through the material, available before me, it transpires that during the inquiry he has admitted that he is Afghan National by birth, while he was child his father and mother along with other Afghan Nationals were entered into Pakistan by crossing Pak-Afghan Border illegally. The CNIC of applicant/accused was cancelled by NADRA, individual is non-National, as per verification report of dated 11-7-2009. The passport was obtained on this CNIC, whom it is cancelled then how the passport would be legal. The immigration protector page No,11 is fake. There are forgery and it was in possession of applicant/accused. The documents of Birth, 2006 entered, CNIC it showed, be also verified, it is after 20 years after birth. The authorities, referred to by the learned counsel for the accused/applicant are not applicable in the present case, as the facts and circumstances of reported cases are altogether different from the case in hand. There is embargo on granting bail to the foreigners under section 14A of Foreigners Act 1946. The offence is also punishable is 14 years, Under these circumstances, I am of the opinion that the present accused/ applicant is not entitled for bail, hence his bail application is hereby rejected."
3. ' Learned counsel for the applicant submitted that applicant is a Pakistani National and has been lawfully issued CNIC. He further submitted that even applicant's father has been issued NIC No,17301- 7005597-5. He further submitted that on 22-8-1974 applicant's father was issued NIC No, 135-29-084912. He further submitted that on 26-4-2006 applicant was issued a Domicile Certificate. He is therefore Pakistani National.
4. ' Learned Standing Counsel opposed bail application. Inspector Moula Bux, Investigation Officer was also present in the Court and he submitted that CNIC has been cancelled by NADRA and therefore opposed the bail.
5. ' I have considered the submissions made by the learned counsel. Learned counsel for the applicant relied upon Muhammad Yousaf v. The State 1995 PCr.LJ 1348, wherein a single Judge of this Court had held that since the applicant had held Pakistani Passport and National Identity Card genuineness or falsehood of such documentary evidence could be determined by the trial Court after the trial and case of the accused was held as one of further inquiry. Bail was consequently allowed. Learned counsel further relied upon Muhammad Siddique v. The State, 2007 YLR 697. This was a case of Pakistani citizen allegedly using passport of another person by changing name and photograph. It was held that until report was received from issuing place of passport, involvement could not be determined. This case is obviously distinguishable.
6. ' Muhammad Younus and another v. The State 2001 PCr.LJ 157. In this case two accused along with two ladies proceeded abroad and upon landing at Abu Dhabi it was discovered that they had travelled on fake passports and travel documents and, therefore they were deported from Abu Dhabi to Karachi where they were taken into custody by F.I.A. Bail application of the females were allowed by the lower Court but bail applications of male members were dismissed. It was contended in the High Court that prosecuting agency has illegally applied the provisions of Pakistan Penal Code. It was held as under:-- "There is no dispute with the established rule that if an accused charged under two different Statutes or laws for offences which are alike or similar in nature, then he would be proceeded against for the offence under the law which provides lesser sentence. On the basis of this principle , the accused would be tried, as submitted by Mr. M. Ilyas Khan, under provisions of the Passports Act which provide maximum sentence of three (3) years' R.I. With regard to the offences under the P.P.C., it is to be observed that the facts and circumstances of the case are such that a further inquiry would be required to prima facie connect the accused persons with the offences punishable under sections 411, 419 and 420, P.P.C. So as to bring their case within the embargo contained in section 497, Cr.P.C. The question as to whether the forgery/cheating/interpolations, etc. Allegedly made by the accused persons in the passports relating to the two ladies would be covered solely by the provisions of the Passports Act to the exclusion of the provisions of the P.P.C.
7. Would also require to be considered at the stage of trial which again would necessitate a further inquiry." In Faisal Khawaja v. The State, 2001 M LD 1237, it was held that case against the accused exclusively related to documentary evidence and therefore there would not be any possibility of accused tampering with evidence. Bail was allowed.
8. In the present case it is not alleged that CNIC was a forged document. What is alleged that it has been obtained while giving fraudulent information. Investigating Officer has showed me a paper which he had stated was downloaded from NADRA website which says that CNIC had been withdrawn and cancelled. However he was unable to say anything whether any show-cause notice was issued to the present applicant or he was heard before cancelling CNIC or any other inquiry was conducted in this regard. He frankly stated that he had no material with him in this regard.
9. When asked question as to what action if any was taken against the concerned official of NADRA who allegedly issued CNIC or passport to a person who according to him is not a Pakistani National, the learned Standing Counsel, except saying that matter has been referred to NADRA, was unable to say anything further.
10. ' When a person is accused of having committed a crime which he could not commit without either involvement of duping of State functionary unless such role of the State functionary is also on record and if circumstances so warrant, no action has been taken against the State functionary, it is unfair to prosecute helpless citizens only.
11. ' The applicant has also produced photocopies which he claimed to be CNIC of his father issued to him in 2002 as well as NIC allegedly issued to him in 1974. This therefore, obviously is a case of further inquiry.
12. ' For the above reasons, I admit the applicant/accused on bail for a sum of Rs,3,00,000 (Rupees Three Lacs) with P.R. Bond and one surety in the like amount to the satisfaction of the trial Court.