ORDER MIAN SHAHID IQBAL, J.---Learned counsel submits that petitioner was arrested by police in Case F.I.R. No.391 of 2009 offence under section 380, P.P.C. Police Station Naulakha Lahore in which two persons were named but not the petitioner. The learned Illaqa Magistrate vide order dated 5- 7-2010 granted bail to the petitioner. After issuance of bail order Robkar was sent to the respondent No.1 who did not release the petitioner. In spite of best efforts petitioner could not convince the authorities for his release by virtue of bail order.
2. Learned counsel further submits that from the day of issuance of Robkar till date, petitioner is being illegally confined by the respondent No.1 which under the law he cannot do nor there is any record on the basis of which petitioner can be kept in jail. It is next submitted that petitioner entered in Pakistan on 18-6-2010 through a valid visa for a period of one month which is likely to be expired on 17-7-2010 and intention behind is to forcibly detain the petitioner and then to proceed against him.
3. Learned counsel further submits that if at all as alleged by the respondent No.1 that petitioner has been detained on the basis of a material available with the Provincial authorities, had it been so at the time of grant of bail the same contentions could have been raised there, but it was not done so as such present detention of the petitioner is based on mala fide. He further submits that provisions of section 3 of the Foreigners Act, 1946, are to be invoked when the activities of a person are such that they amounts to Anti-State activities and thus in absence of that, no authority can detain/restrain the petitioner as he has a valid visa for his stay.
4. The learned Deputy Attorney-General after having brief from the Ministry of Interior, Government of Pakistan submits that as per his instruction petitioner was arrested in case F.I.R. No.391 of 2009 on 3-9-2009. He then submits that as per his instructions petitioner was issued visa on 20-4-2010 which has been confirmed from the Pakistani Embassy at Kabul is genuine. The learned DAG then submits that as per record petitioner entered in Pakistan on 18-6-2010 on the basis of a valid visa issued on 16-6-2010 the period of stay of the petitioner was only for 30 days which is to expire on 17- 7-2010.
5. During the course of arguments learned Deputy Attorney-General has tendered photo copy of proceedings held in the premises of Supreme Court by the Federal Review Board headed by a Hon'ble Judge of Supreme Court of Pakistan; my attention has been drawn at Serial No.53 of the proceedings where a Tanzanian National namely Mfamao Mussa son of Mfamao has been directed to be deported and has thus been detained under section 3 of the Foreigner Act, 1946 and requested that as case of the petitioner is on same footing as such petitioner may also be deported.
6. The learned Assistant Advocate-General submits that on 26-6-2010 present petitioner was arrested from Brandreth Road, Lahore in connection with F.I.R. No. 391 of 2009 registered under section 380, P.P.C. At Police Station Naulakha, Lahore. He was then produced before the Illaqa Magistrate on 30-6-2010 who granted physical remand for two days. Finally on completion of physical remand he was sent to Judicial remand on 3-7-2010. He further submits that bail order dated 5-7-2010 was received through Robkar by the respondent No.1 on 6-7-2010, who detained the petitioner as being Foreign National, on the basis of letter issued by the Home Department, Government of Punjab bearing No.9-97-H-SPL-1/88 dated 30-11-1988 who further sought confirmation for the detention of the petitioner to be regularized in jail through letter dated 7-7- 2010.
7. Today Nazir Ahmed Section Officer Ministry of Interior, Government of Pakistan and Zawar Hussain Section Officer, Government of Punjab are in attendance. Their statements have been recorded on separate pages.
8. I have considered the submission made by the learned counsel for the parties in respect of their case, attending firstly to question in respect of the petitioner's entry in Pakistan. It is clear from the statement/stance taken by the learned Deputy Attorney General that petitioner was issued visa on the basis of which he entered on 25-4-2010 into Pakistan and then went back. He again entered in Pakistan on 18-6-2010 which visa entry is borne out as per record of Embassy of Pakistan at Kabul as admitted by the section officer. On the basis of these entries it is confirmed that in Pakistan stay was for 30 days on the basis of valid visa. Visa has been defined in Concise Oxford English Dictionary Tenth Edition:-- "Visa. An endorsement on a passport indicating that the holder is allowed to enter; leave, or stay for a specified period of time in a country."
Thus he enjoys all the protections which a foreigner have under the Pakistani law, hence his stay in Pakistan on the basis of his valid visa is legally justified.
9. As far as his detention is concerned, it is a matter of record that petitioner was arrested on 30-6- 2010 in case F.I.R. No.391 of 2009 offence under section 380, P.P.C. And was granted bail by Illaqa Magistrate on 5-7-2010. Robkar was received by respondent No.1 on 6-7-2010 when on the basis of a letter pertaining to the year 1988 issued by Section Officer he was detained as Foreign National on the hypothesis/suspicion as being an Afghan National, though nothing was available with the respondent No.1 at that time to detain him.
10. On the basis of above said letter respondent No.1 informed the Home Secretary Punjab vide its letter dated 7-7-2010 and sought further indulgence in the matter who vide their internment order dated 9-7-2010 directed respondent No.1 to detain him for a period of 3 months for his repatriation to Afghanistan. Section 3 of the Foreigners Act, 1946 empowers the Central Government/Provincial Government to issue detention orders in case any person is involved in certain activities which are against the interest of country. In the present case petitioner is being detained on the basis of hypothesis or a suspicion lurking in the mind of the authorities that petitioner is an Afghan National.
Section 3 of the Foreigners Act, 1946 only empowers an authority to invoke the same provided there is sufficient material on the record so as to demonstrate that stay of the said person would be injurious to the national interest of the country, hence he is detained to be repatriated to his country. As the authority have failed to place on record sufficient material so as to involve petitioner in any anti- state activities, thus provisions of section 3 of the Foreigner Act, 1946 could not have been invoked to issue orders of internment. I would hold that issuance of internment order is without any basis and without lawful authority hence the same is declared illegal as such.
11. There is another aspect of the matter if the detention is looked at from that angle even then the super structure built on same would fall down which is the internment order dated 9-7-2010. The respondent No.1 detained the petitioner on basis of letter dated 30-11-1988 relevant part of which is reproduced as under:-- "As you are aware, the Foreign Nationals including Indian Nationals convicted on any charge whatsoever are required to be repatriated to their home land after the expiry of their respective period of sentences awarded by the competent courts. Necessary arrangements for their repatriation are made by the Government in consultation with the Embassies concerned. It has however come to notice that the trial Courts while passing judgments in such cases, invariably order that after the expiry of the sentence the individual concern be handed over to the concerned Embassy for repatriation."
12. The crux of the para would show and mean that those prisoners who have been convicted under some offence in Pakistan they should be detained under section 3 of the Foreigners Act, 1946 for repatriation to their country. In the present case petitioner was only arrested on the basis of a recovery made from him and till date he has not been finally convicted. Therefore, the application of the letter on the basis of which firstly the respondent No.1 detained him on his on was illegal and subsequently the internment order based on the said detention which has already been declared to be without lawful authority would not hold the field.
13. Lastly arguments of learned Deputy Attorney-General are not sustainable as the case of Tanzanian National is not at par with the present petitioner because the said National entered in Pakistani illegally and without any travel documents, whereas the present petitioner had a valid visa which has been confirmed by Nazir Ahmed Section Officer, Ministry of Interior. Government of Pakistan, therefore, till the expiry of visa stay of the petitioner is legal and cannot be deported except in extra ordinary circumstances, if shown.
14. Thus I would declare the detention of the petitioner after bail granting order was illegal, unlawful, without any authority and orders passed subsequently are quashed.
Copy dasti.