1. ' K.A.GIIANI, J--By this petition filed under Article 9 of the Provisional Constitution Order of 1981, the petitioner seeks to impugn order, dated 22nd January, 1984, passed under section 3(2)(g) of the Foreigners Act, 1946 for arrest and detention of the detent who is committed to the custody of Superintendent, Central Prison, Karachi.
2. ' The impugned order is reproduced below:- "No, SO(PPT)HD(N)3-2/84: Whereas the Ministry of Interior has intimated that Iranian national Amanullah Mubaraki son of Islam (assumed name Abdul Rashid) is wanted by the Iranian Government for having committed crimes covered by extradition treaty.
3. ' And whereas the Ministry of Interior has intimated that the Iranian Government have agreed to provide necessary documents as required under the Extradition Agreement to the Pakistani authorities for extradition of the above said Iranian national.
4. ' And whereas, the Government of Sind are satisfied that with a view to preventing Amanullah Mubaraki son of Islam (assumed name Abdul Rashid) an Iranian national, from acting in a manner prejudicial to the interest of the security of Pakistan, it is expedient and necessary to arrest and detain the said Amanullah Mubaraki (assumed name Abdul Rashid).
5. ' Now therefore, in exercise of the powers conferred on it under section 3(2)(g) of the Foreigners Act, 1946, read with the Ministry of Interior Notification No, 10/6/54-PCLL(I), dated 11-3-1958 the Government of Sind are pleased to direct that the Iranian national Amanullah Mubaraki (assumed name Abdul Rashid) be arrested and detained for 30 days and committed to the custody of Superintendent Central Prison, Karachi as Class III detenu.
6. ' This order shall come into force with immediate effect. BY ORDER OF GOVERNOR OF SIND"
2. The learned counsel for the petitioner argued that the dtente holds National Identity Card, dated 1-12-1975 in the name of Abdul Rashid son of Abdullah (Annexure 'A') and also possesses Pakistan Passport (Annexure 'EP) issued to him on 8th March, 1976 at Karachi. It was accordingly contended that the detent is a Pakistani national and the impugned order passed against him under section 3(2)(g) of the Foreigners Act, 1946 on the assumption that he is a foreigner/Iranian national is without lawful authority.
7. ' On behalf of the respondent counter-affidavit has been filed by Mr. Nisar Ahmad, Officer,on Special Duty, Home Department, Government of Sind, wherein he deposed:- "1. That I have read the contents of the petition and say that whatever is stated in paragraph 1 of the petition is not correct. I say that the detenu, who is alleged to be one Abdul Rashid son of Abdullah is not Abdul Rashid son of Abdullah but is an Iranian national whose name is Amanullah Mubaraki son of Islam, Resident of village Kajal Tehsil Kohari, Iran. I say that the Passport and the National Identity Card referred to in this paragraph were obtained by the said detenu by misrepresentation of facts to the authorities concerned."
8. ' In the counter-affidavit with regard to obtaining of the Passport and National Identity Card, it has been stated that the same were obtained by fraudulent means by the said detenu which fact came to the knowledge of the Federal Government in 1980 and that the matter is being enquired into.
9. ' The said officer has also deposed that the detenu is, in fact, wanted by the Iranian authorities for crimes such as murder etc. in Iran. Reference in para. 5 of the counter-affidavit has also been made to an earlier case (Miscellaneous Application No, 33 of 1984) which was disposed of on 30th January, 1984. Relevant portion of the said para. 5 of counter-affidavit reads as follows:- "I say that it is correct that the Miscellaneous Application No, 33 of 1984 was adjourned to 25-1-1984 and then to 30-1-1984 when an Assistant Commissioner from Turbat appeared in this Honorable Court and identified the detenu to he Amanullah Mubaraki son of Islam, an Iranian national who had committed an offence under section 392/307/34, P.P.C. within the jurisdiction of Baluchistan Government."
10. ' It may be mentioned that the above-mentioned Criminal Miscella neous Application No, 33 of 1984 was disposed of by order passed on 30-1-1984, which is reproduced below:- "Mr. Azizullah K. Shaikh, Advocate.
11. ' Mr. Syeed A. Shaikh, A.-G. with Inspector Noor Ahmed Shaikh.
12. ' Detenu is also produced pursuant to the order, dated 16-1-1984.
13. ' It appears that the detenu has been arrested by Inspector Noor Ahmed Shaikh pursuant to the warrants of arrest issued by the District Magistrate Turbot, Assistant Commissioner alongwith the record of the case registered under section 392, 307, 302/34, P.P.C. Complainant and witnesses are also present for identifi cation. Mr. Shaikh at this stage does not press this petition which is accordingly disposed of as not pressed. This order is passed with the consent of Advocate- General, Sind."
3. The learned counsel for the petitioner has not challenged the impugned order, dated 22nd January, 1984 except on the plea that the detenu is one Abdul Rashid son of Abdullah who is a citizen of Pakistan. As already noted above, reliance was placed in support of this contention on the photo stat copies of (i) National Identity Card (Annexure 'A'), dated 1-12-1975 and (ii) Passport issued on 8th March, 1976 (Annexure 'B').
14. Perusal of the counter-affidavit filed, the relevant portions of which have been referred above, however, would show that not only the name of the detent given in the petition as Abdul Rashid son of Abdullah is disputed but it has expressly been pleaded that the detenu really is Amanullah Mubaraki son of Islam resident of village Kajal Tehsil Khohari, Iran and that the Passport and National Identity Card upon which reliance is placed by the petitioner, were obtained by the detenu by misrepresentation of facts and by fraudulent means. Allegations have also been made that the detenu, who is an Iranian National, is required by Iranian authorities for crimes such as murder etc. and that he has been detained under the provisions of section 3(2)(g) of the Foreigners Act, 1946 and that the Government of Iran has requested the Government of Pakistan to extradite the detenu to Iran. In reply to the query made by us, Mr. Azizullah K. Shaikh, the learned counsel stated that he did not want to file any affidavit in rejoinder.
15. In the circumstances discussed above, we find that serious allegations of fraud and misrepresentation made against the detenu in obtaining the passport and the National Identity Card, have remained unrequited.
16. Even otherwise we are of the view that the disputed questions of fact involving fraud and misrepresentations cannot be inquired into and determined in exercise of constitutional jurisdiction by this Court as the same would require detail examination of evidence.
17. ' We may refer here to the case of Union of India and others v. Ghous Muhammad AIR 1961 SC 1526 wherein dealing with the disputed question of nationality involved after referring to section 9 of the Foreigners Act, which provides that the onus of proving that a person is not a foreigner, shall notwithstanding any thing contained in the Evidence Act lie upon such person, held: "Writ proceedings to resolve such disputed question would not be appropriate."
18. ' Before concluding we may also refer to section 5 of the Foreigners Act which inter alia lays down that no foreigner shall assume or use or purport to assume or use for any purpose any name other than that by which he was ordinarily known immediately before he entered Pakistan. We have already noted above that according to the respondents, the name of the detenu is Amanullah Mubaraki son of Islam and he has wrongly assumed the name Abdul Rashid son of Abdullah. The nationality of the detenu according to the respondent is Iranian and he is resident of village Kajal Tehsil Kohari, Iran.
19. 4.The upshot of the above discussion is that we dismiss this petition. The parties are left to bear their own costs.