' AQEEL AHMED ABBASI, J.---Through instant Criminal Appeal the appellant has impugned judgment dated 13-3-2010 passed by the learned IInd Additional Sessions Jucge Malir, Karachi in Sessions Case No, 251 of 2006 emanating from F.I.R. No,292 of 2005 registered under sections 3(a)(b), 13, 14 of Foreigner Act, 1946 at P.S. FIA, Passport Cell, Karachi, whereby the appellant was convicted concurrently for (2) two years under section 14 of Foreigner Act, 1946 and sections 468 and 471, P.P.C. With fine of Rs,10,000 each in both the offences, whereas, benefit of section 382-B of Cr.P.C.
Has been extended to the appellant. It has further directed that after completion of sentence awarded to the appellant he may be deported to his country i,e, Bangladesh through concerned authority under intimation to the trial Court.
2.
From perusal of case record, it appears that during pendency of the instant appeal before this Court, the matter was referred to NADRA for verification of the CNIC of the appellant as well as CNIC of his father and mother vide order dated 14-12-2010. On 10-1-2011, when the matter was being argued by the learned counsel for appellant on an application under section 426, Cr.P.C. i,e, application for suspension of sentence, this Court, at the request of the learned counsel for appellant was pleased to issue direction to the Home Department, Government of Sindh, to ensure that the appellant shall not be deported till disposal of this appeal. It is further noted that NADRA officials submitted compliance report regarding verification of the CNIC of the appellant bearing No,42301-7401160-5 with the name of Ali son of Muhammad as well as the verification of CNIC of father of the appellant namely Muhammad bearing No,42301-5839750-1 and CNIC of mother of the appellant namely Halima Bai wife of Muhammad bearing. CNIC No,42301-5527405-6. Verification of B' Form of the father of the appellant namely Muhammad has also been submitted wherein the appellant has been shown as one of the children, whereas also contains the old NIC number of the appellant and his family members.
3. It is inter alia contended by the learned counsel for appellant that the appellant is innocent and has been falsely implicated in the instant crime, whereas neither he is Bangali nor he has committed any alleged offence as contained in the F.I.R. Learned counsel further argued that the impugned order is based on misreading and non-reading of the . Evidence, whereas the learned trial Court has not even cared to verify or examine the fact of the issuance of CNIC to the appellant and his family members by NADRA. Per learned counsel, the evidence of the I.O. Recorded in the instant case is also based on contradictions, whereas nothing has been produced, which could establish that the appellant is a Bangali. Learned counsel has read out the impugned judgment as well as the prosecution evidence produced before the learned trial Court to show the discrepancies in the impugned judgment and the prosecution evidence. It is further contended that the CNICs issued to the appellant and his family members are still intact and have not been cancelled by the concerned authority, therefore, the legal presumption is that these public documents are valid and genuine, and the appellant is not a Bangali, hence cannot be convicted under the circumstances of this case. Learned counsel for the appellant has vehemently assailed the directions of the learned trial Court regarding deportation of the appellant and submitted that there is no legal provision in the Foreigners Act, 1946 or under the provision in which the appellant has been charged, whereby orders for deportation could be passed by the learned trial Court it. He has drawn the attention of this Court to section 7 of the Pakistan Control of Entry Act, 1952, which according to the learned counsel authorizes the Federal Government to pass the order for deportation only under the facts and circumstances as stated therein. It is contended that in view of hereinabove, the conviction under section 14 of the Foreigners' Act, 1946 is liable to be set aside,
4. As regard the conviction under sections 468 and 471, P.P.C., learned counsel states that under instructions of his client lie would be satisfied if the appellant is released by maintaining the conviction and by reducing the sentence of the appellant to one which he has already undergone, whereas the fine imposed may be remitted. In support of his contention, learned counsel has placed reliance on the following case-laws
(1) Salim Bhalio v. Learned Court of District and Sessions Judge, South, Karachi and another PLD 2011 Karachi 48
(2) Fazal Akram v. The State 2010 MLD 596 Karachi
(3) Muhammad Faisal v. The State 2008 YLR 2821 Karachi
(4) Muhammad Dilawar Hussain v. The State 2008 MLD 414 Karachi
(5) Alam v. The State 2007 YLR 1897 Karachi.
5. Conversely, the learned Standing Counsel supported the impugned judgment, however could not satisfactorily respond to the legal objections raised by the learned counsel for the appellant nor could distinguish the case-law on the subject relied in support by the learned counsel in this regard. Learned Standing Counsel, however, conceded to the request of the learned counsel for appellant whereby it has been prayed that by maintaining conviction under sections 468 and 471, P.P.C.. The appellant may be released by reducing the sentence to one which he had already undergone, however, he has submitted that the entire fine may not be remitted and the same may be reduced to some reasonable amount.
6. I have heard the learned counsel for appellant as well as learned Standing Counsel and perused the record. From perusal of the impugned judgment and the relevant provision of Foreigners Act, 1946. It is noted that the appellant having been issued valid CNIC in the name of Ali son of Muhammad as well as the Passport, has been charged under section 14 of the Foreigners Act, 1946 on the allegation that since he has entered into Pakistan from Bangladesh on a forged Passport, therefore, he is a Bengali and not the citizen of Pakistan. No evidence has been produced by the prosecution against the appellant, which could substantiate that the appellant is a Bangali, who is staying in Pakistan illegally. Whereas, the learned trial Court did not even get the CNICs the appellant and his parents verified from NADRA. No document in the name of Ghufran has been recovered from appellant or produced by the prosecution in evidence. During pendency of this appeal and at the request of the learned counsel for the appellant,. The CNICs of the appellant and his parents along with "B" Form were sent to NADRA for verification. It has been verified by the NADRA that CNICs issued to the appellant and his parents are all genuine. The computerized NICs issued in favour of appellant and his parents have admittedly not been cancelled by the NADRA so far. From perusal of the Passport, it has also come on record that the appellant had left to Bangladesh from Pakistan and while returning back he was arrested by the FIA. The learned Standing Counsel was specifically confronted as to whether 'in order to establish the nationality of a citizen is he required to produce any citizenship certificate or any other document in this regard.
The learned Standing Counsel in response has frankly conceded that there is no need to hold a citizenship certificate nor any such certificate is required under provisions of Foreigners Act, 1946.
He was also confronted to show from record as to whether any documentary or oral evidence has been produced by the prosecution, which could establish that the appellant is a Bangali or has migrated from Bangladesh, after the cut of date i,e, 1972. The learned Standing Counsel could not show any such evidence or document from the record of the case. It appears that the prosecution has relied on the alleged confessional statement of the appellant before the FIA. Whereas learned trial Court has also based its judgment on the solitary evidence of I.O. And the alleged confessional statement of the appellant before the FIA authorities. Investigating Officer during his cross- examination has admitted that he did not send the CNICs of the appellant or his parents for verification to NADRA. Confession before police has no evidentiary value in the eyes of law and the conviction cannot be based on the solitary alleged, confession before the FIA particularly when it has been denied by the appellant. I am of the opinion that prosecution has failed to discharge the onus to substantiate the charges against appellant under section 14 of the Foreigners Act, 1946.
7. In the case of Alam v. The State 2007 YLR 1897, learned single Judge of this Court has held as under:-- "It is also a fact that the appellant has married and his wife and children are also residing in Karachi; they had appeared before this Court during the hearing of this appeal. The father of the appellant has been issued valid NIC. Which was produced by the appellant before the trial Court while deposing under section 340, Cr.P.C. The learned trial Court failed to appreciate that document. It also did not appreciate properly the fact that the father of the appellant had declared the appellant as one of his minor children in his B-form. These documents are of importance and cannot be ignored or excluded of the consideration by any sweeping remarks. So far as the other documents are concerned they too were not appreciated properly by the learned trial Court as it ignored them simply for the reason that they were of the period after 1983. After all the concerned authorities/organization issued those documents on the basis of certain material or enquiry. The law attaches presumption of validating to the official acts or documents unless proved otherwise therefore, for the simple reason that they were issued after 1983 the documents could not be treated., valueless. No doubt, the appellant has Bangali origin for that act alone he cannot be termed as. Foreigner. Bangalees were given statutory recognition as citizen of Pakistan under Pakistan Citizenship Act, 1951, by inserting new section 16(A) in it if they were in Pakistan before 1975.
Since the father of the appellant is not being accused of entering into Pakistan illegally the plea of the appellant is not weightless specially when he produced the documents highlighted above."
8. In the case of Muhammad Faisal v. State 2008 YLR 2821, it has been held as under:-- "Needless to emphasize that for a Pakistani 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 Qanun-eShahadat, 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."
9. In view of hereinabove, the conviction under section 14 of Foreigner's Act, 1946, is hereby set aside, whereas the conviction under sections 468 and 471, P.P.C. Is hereby maintained, however while maintaining such conviction the sentence is hereby reduced to one already undergone as mentioned in the Jail Roll supplied by the Superintendent, Central Prison, Karachi, whereas the fine of Rs,10,000 is reduced to Rs,2,000.
10. Instant Criminal Appeal stands disposed of in the above terms. The appellant may be released on receipt of this order immediately, if not required in any other custody case.