' JAMALUDDIN H. AHMAD, J.-Respondent Devraj son of Tahilram was tried by the Joint Civil Judge and First Class Magistrate for offences under section 3/4 of the Pakistan (Control of Entry) Act, 1952 and was convicted and sentenced to undergo R. I. For six months. He filed an appeal which was allowed by the Sessions Judge, Tharparkar on 15-4-71 and his conviction was set aside, but it was observed: "As regards the question of stay in Pakistan after he was declared an evacuee it would be open to the prosecution to , consider the feasibility of any fresh action permissible under the law." A first information report was thereupon filed by S. H.
0., Town Police Station Mirpurkhas under section 14 of the Foreigners Act against the respondent on the basis of this observation. The State has filed the present acquittal appeal against this judgment ; while the respondent has filed an application under section 561-A, Cr. P. C. Seeking quashment of his prosecution under section 14 of the Foreigners Act, and this judgment is proposed to dispose of both the Acquittal Appeal and the Miscellaneous Application.
2. The facts of the case are that the respondent, who was born on 26-9-42 and was thereafter a citizen of British India, accompanied his married sister to India after Partition. He was admitted in the Modern High School, Jodhpur on 2-5-1952 in Class V. He left this School on 15-9-1953 and entered Pakistan in the year 1954 where he was admitted in the Government High School, Mirpurkhas on 16-3-1954. His father continued to remain as a citizen of Pakistan until his death and was thus a non-evacuee. The respondent remained in Pakistan unnoticed till the Additional Custodian Evacuee Property by Order No, F-2(63 59 dated726-1-1960 declared him to be an Evacuee and resident of India. This order was passed while considering the question of the family property of his father Tahilram. A writ petition against this order was filed but dismissed by the High Court. An appeal filed in the Supreme Court was also dismissed by order dated 10-6-64.
Subsequently on 30-9-67 the A. S. I. Town Mirpurkhas instituted a case under section 3/4 and rule 29 of the D. P. R. Which resulted in the respondent's prosecution and conviction.
3. In the first report reliance was mainly placed on the judgment of the Supreme Court and it was said further, "Besides, the learned A. R. M. And Assistant Settlement Commissioner (Lands)
Tharparkar vide his Order No, it E. H. 888 dated 28-11-1964 ordered the property standing in the name Devraj son of Tahilram to be included in the evacuee pool vide Schedule `A' of the said order.
Devraj's entry into Pakistan by whatsoever means in view of the Honourable Supreme Court's judgment can only be that of an Indian National. Hence stay of Devraj after 10-6-64 is illegal and in contravention of section 3/4 Pakistan (Control of Entry) Act, 1952 read with section 29 of the D. P. R.
Rules, 1965."
4. In the Supreme Court case referred to above i,e, Shrimati Mulibai and two others v. Custodian and others (1) it was observed at page 656 as under :- "The facts proved in the present case, in our view, could reasonably have given rise 'to the inference that Devraj left, as the 'Custodian seems to have thought, to permanently reside in Jodhpur7and it cannot be said that 'the decision of the Custodian Authorities was so patently erroneous that this Court should interfere with it in the exercise of its appellate jurisdiction or that it was a decision of a nature that could have been interfered with by the High Court is its writ jurisdiction"; and further, "and we are clear in our minds that the present is not a case which comes within those limits, as we are not prepared to hold {{FOOT NOTE}} (1)PLD 1964 SC 642 {{FOOT NOTE}} ' that the decision of the Custodian Authorities was based on no evidence at all, or upon any manifest misreading or misconception of the evidence or such that it could not honestly have been arrived at after giving due consideration to the facts and circumstances of this case."
5. At the trial the Court framed the following two points for determination :- (i)Whether the accused had got Pakistan Citizenship.
(ii) Whether the entry and stay of the accused in Pakistan was without valid authority i,e, passport and visa.
' On the first point relying on the Supreme Court judgment the Court concluded that the respondent had gone to India with the intention of permanent residence, and that was not intended to be purely temporary for the purpose of education. It was observed that the conditions laid down for a person who is an evacuee are to a considerable extent same for a person who stands divorced of Pakistan citizenship. Reliance was placed on a comparison of section 2(2) of Pakistan Administration of Evacuee Property Ordinance with sections 3 and 7 of the Pakistan Citizenship Act, 1951, and it was held : "He has been definitely hit by section 7 of the Citizenship Act as his migration after 1st March 1947 divests him of his Pakistan Citizenship. The only thing which could restore his citizenship after his migration was the permit for resettlement or permanent return but the accused has no such permit and is consequently devoid of Pakistan citizenship though born in Pakistan territories before Partition."
' So far as the second point is concerned the trial Court said : "He being an Indian citizen could come into Pakistan only if he possessed a passport with a visa authorizing the entry as laid down in section 3(1) of Pakistan Control of Entry Act. I must mention that the counsel of the accused had made an application for summoning the clerk of Immigration Department at Karachi for producing emergency certificate collected from the accused at Karachi Airport on 8-9-53. The accused, as the record shows, entered into Pakistan in 1954 and the certificate of emergency pertains to 1953. The Indian School certificate was issued in 1954 hence it can be safely inferred that the accused entered into Pakistan after 2nd March 1954, and from that date his entry and stay in Pakistan is offending against the law. Moreso an emergency certificate can be availed of by Pakistan citizen and not by an Indian citizen. There should be passport and visa in all the cases with the accused."
6. In appeal, the Sessions Judge initially referred to the charge framed by the trial Court which was as under :- "That you in the year 1954 entered into Pakistan from India without legal authority i,e, passport and visa, and thus you committed an offence under section 4 Pakistan Control of Entry Act and within my cognizance, you are directed to be tried by me on this charge."
' He therefore observed that the charge was definite about the offence being committed in the year 1954 and about the offence of having entered into Pakistan from India without legal authority.
There was no mention in this charge about any illegal stay in Pakistan. Even the conviction was clearly for the entry and not for the stay. Section 3 of Pakistan Control of Entry Act, 1952 is as under :- "Section 3(1). No Indian Citizen shall, unless exempted by a provision made under this Ordinance, enter any part of Pakistan unless he is in possession of a passport with a visa authorizing the entry.
' Subsection (2)..............................................................................................................
' Subsection (3) No Indian citizen who has entered any part of Pakistan before the commencement of this Ordinance without a passport shall unless, exempted by a provision made under this Ordinance remain in Pakistan after the commencement of this Ordinance without a passport for a period exceeding three months or, if he has entered on a permit, the period specified therein, whichever is less.
' Subsection (4)..............................................................................................................
' Subsection (5) after the commencement of this Ordinance every Indian citizen shall, during the period of his stay in Pakistan, be governed by and shall comply with the rules made under this Ordinance."
7. In view of this Sessions Court came to the conclusion that the offence of entry into Pakistan by an Indian citizen is separate and distinct from the offence of subsequent stay in Pakistan in contravention of the rules. The allegation was that Devraj entered Pakistan in the year 1954 which was therefore obviously after the commencement of the Ordinance of 1952. Subsection (3) of section 3 was thus not attracted to this case and it was only subsection (5) which applied after the respondent had contravened the rules made under the Ordinance. But as the charge showed, Devraj had entered into Pakistan from India in the year 1954 and there was no reference to his illegal stay, therefore his conviction was held to be improper.
8. The Sessions Court then proceeded to consider effect of section 83 of the Penal Code and provisions of the Sind Children Act, 1955 and Bombay Children Act, 1924, on the case of the respondent, and finally set aside the conviction of the respondent, but as stated above left it open for the prosecution to proceed against him for any illegal stay.
9. Mr. A. Sattar, Assistant Advocate-General appearing for the State contended that the respondent having migrated to India had lost his nationality as a Pakistani, and was no more to be considered as a citizen of Pakistan. He had been admitted in a School at Jodhpur which he had left in 1953 whereafter he had re-entered Pakistan but had no valid permit for this, as was required under the law. In his submission, even if he had obtained a Pakistani passport, that fact would not be enough to confer citizenship of Pakistan on him. Moreover the said Pakistani passport had according to the prosecution case been obtained by fraud on the basis of mis-statement. So far as the application of section 83 of the Penal Code was concerned the respondent had to prove that he had not obtained sufficient maturity of understanding before he could be entitled to its benefit. The Sessions Judge had therefore not correctly extended the application of this section to this case.
Moreover section 5 of the Penal Code, itself excludes the application of this section to the case of a person tried under any special law. Section 5 reads as under :- "Nothing in this Act is intended to repeal, vary, suspend, or affect any of the provisions of the Statute 3 and 4 William IV, Chapter 85, or of any Act of Parliament of the United Kingdom passed after that statute in anywise affecting the East India Company or Pakistan, or the inhabitants thereof ; or any of the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of the State, or of any special or local law."
' The respondent was being tried under a special law i,e, Pakistan Control of Entry Act and none of the provisions of the Penal Code including section 83 were applicable to him. The benefit of section 83 could accrue only to a person tried for an offence under the Penal Code. In this he was supported by the case of Abdul Sattat and another v. Crown (1) where on a review of law, it was observed at page 374 :- "A perusal of these rulings does not lead to the conclusion that it is necessary for the prosecution to lead positive evidence to show that an accused person below 12 years of age had arrived at sufficient maturity of understanding within the meaning of section 83 of the Indian Penal Code. It would appear from these authorities that it would be permissible to arrive at the finding even on a consideration of the circumstances of the particular case. This view is supported by another Division Bench judgment of the Madras High Court In re : Queen v. Krishna. The learned Judges expressed the opinion that in that case, since the child took the ornament and immediately after either pledged or sold it for five annas the very act of the child seemed to show that he had attained sufficient maturity of understanding to judge of the nature and consequences of his conduct. In the case giving rise to Criminal Revision LN o. 211 at least, the learned Sessions Judge has noticed this point in his judgment and has pointed out that no evidence was led on behalf of the accused persons to show that they had not arrived at sufficient maturity of understanding. This interpretation of section 83 would appear to be in accord with the general principle that any exception relied upon by an accused person should be specially pleaded and established by evidence on this behalf. Reference may with advantage be made in this connection to (1874) 22 W R C 27-28 where, in the case of Lakhini Agrada.Dni, Jackson, J. Held that the non-attainment of maturity in the case of child over 7 and under 12, would have apparently to be specially pleaded and proved." ' and also the case of Shaikh Hassan v. Bashir Ahmad and others (2). It was a case decided by a Full Bench of that Court and the import of section 83 was considered and it was observed:- "It will be plain from reading the language of the section reproduced above that where the accused is above 7 years of age and under twelve, "sufficient maturity of understanding" is to be presumed in case of such a child unless negative be proved on defence, i,e, the burden of proof lies on the accused above the age of seven and below twelve to show that he had not attained sufficient maturity."
9. Referring to the law applicable to the minors whose parents may be the nationals of Pakistan the learned Assistant Advocate-General referred to section 11 of the Pakistan Citizenship Act, 1951 which is as under :- "11.-- (1). The Central Government may, upon application to it in this behalf made in the prescribed manner by a parent or guardian of a {{FOOT NOTE}}
(1) PLD 1949 Lah. 372 (2) PLD 1966 Pesh. 97 {{FOOT NOTE}} ' minor child of a citizen of Pakistan, register the child as a citizen of Pakistan.
(2) The Central Government may, in such circumstances as it thinks fit, register any minor as a citizen of Pakistan."
' But in the case of the respondent it had neither been alleged nor proved that compliance of the above section was made and therefore he was not entitled to claim, to be a citizen of Pakistan in spite of his minority or his father continuing to be a citizen of Pakistan.
10. Mr. Muhammad Hayat Junejo, learned counsel for the respondent initially attacked the very basis of the prosecution as misconceived, because the final part of the judgment of the Supreme Court in the case of Mulibai v. Custodian and others, according to him, dealt with a question entirely different from the one assumed by the prosecution. Their Lordships were considering the powers of the Supreme Court to interfere in the decisions of the Custodian and even otherwise this judgment was in his submission not relevant or binding upon a criminal Court, which was to consider the question of the nationality or the citizenship of the respondent.
11. It was further contended that the prosecution had relied on evidence which was not admissible in law e.g. The school leaving certificate from the Government School of Jodhpur, used for proving the stay of respondent in India, was an inadmissible document as it did not comply with the requirements of section 78 (6) of the Evidence Act. It was necessary to have the School leaving certificate authenticated from the Pakistan Council etc. Which had not been done in the present case. The judgment of the trial Court proceeds on that evidence and was therefore faulty. On the other hand Pakistani passport of the respondent which was very much in existence and available with the prosecution had not been considered, though the column which relates to the nationality of the holder of the passport, in this case the respondent, showed him to be a Pakistani citizen.
Section 3 and section 7 of the Pakistan (Control of Entry) Ordinance, 1952 relate to a citizen of India and in the present case the prosecution had failed to establish that the respondent was such a citizen.
12. Reverting to the question of the prosecution of the respondent launched on the basis of the observation made by the Sessions Judge in his judgment of acquittal, learned counsel referred to section 403 of the Cr. P. C. And argued that this would amount to prosecution based on the same facts ; besides which a long time had passed already and it was not feasible that he should be so prosecuted. He referred to a case of Badaruddin v. State (1) and The State v. Hadi Bux (2) and submitted that the offence if at all being of 1954 ; this delay would cause great hardship to the respondent in his defence. In support he referred to the fact that an application under section 540, Cr. P. C. Had been made as early as in January 1970, wherein an order was also passed for the production of the permit that had been taken from the respondent at the Air Port when he arrived in Pakistan. This document was admitted to be in existence but was not produced.
13. The learned counsel also referred to the evidence that had been recorded against the respondent at the trial consisting first of P. W. Din Muhammad, Head Master Government High School, Mirpurkhas who produced the entry from the School record showing his admission in the {{FOOT NOTE}}
(1) 1968 P Cr. L J 471 (2) PLD 1970 Kw. 737 {{FOOT NOTE}} ' Mirpurkhas School as on 16-3-1954 and also produced the transfer certificate issued by the Principal Modern School Jodhpur showing the residence of the respondent as Jodhpur. Respondent was admitted in Class II in his school. The other witness was Abbas Hussain, S. H. O. Who had on the reference made by the D. C., Tharparkar enquired into the matter and in consequence registered the case against the respondent. He produced the Pakistani Passport P. S. C. No, 644413 as Exh. 21 which was issued in favour of the respondent. He admitted that he did not make any enquiry as to when the respondent went to India and when he came back. He also admitted that he was a minor when he had gone and also a minor when he came back. The declaration made by the respondent in obtaining the passport was a false declaration according to him in view of the Supreme Court judgment. He had also received a notification from the Home Department to the effect that the passport had been issued on a false declaration. The other witness was Wali Muhammad, the mashir in whose presence the house of the respondent had been searched and documents seized by the police. In his statement the respondent denied the allegation that his father died in 1951 and that he continued to live still in India, that he was an evacuee and that he unlawfully entered in Pakistan in 1954 and stayed there without getting the citizenship certificate from the Government of Pakistan. He also denied that he migrated to India, he emphasised that he was born in Mirpurkhas and had been sent to India only for education when he was a minor and that there was no offence of unlawful entry committed by him. About the entries in school leaving certificates he stated that there was no evidence to show the source on the basis of which they were made. He had no intention to permanently settle in India-nor he had done so. He examined defence witnesses, Manghomal, Harchand RayIand Mohandas his own brother to show that he had not migrated to India and that the father of the respondent Tahilram had never migrated to India even temporarily.
14. Now the respondent was acquitted by the Sessions Judge as upon examining the relevant provisions of law he came to the conclusion that the offences of entry in Pakistan' and `stay in Pakistan' were two different and distinct offences, which if committed could entail separate convictions. This position has not been challenged to be incorrect even now by the Assistant Advocate-General in this appeal. Section 3 of the Control of entry Ordinance under which the respondent was convicted by the trial Court, clearly referred to an illegal entry of an Indian citizen before the commencement of the Ordinance; and the trial Court in spite of framing the point of determination for both the facts i,e, entry and stay in Pakistan had finally given its finding only for illegal entry in Pakistan and consequently the conviction was also recorded for that offence alone.
As the case of the prosecution was that the respondent entered Pakistan in the year 1954, the Sessions Judge was right in concluding that section 3 of the Act, as stated above did not apply to his case. The judgment in appeal therefore, on the legal plane was correct and did not merit any interference irrespective of the other considerations that weighed with the Sessions Court i,e, the minority of the respondent at the time of entry in Pakistan or the benefits accruing to a child offender under the Bombay Children Act. The Acquittal Appeal could be disposed of on this legal ground alone, without reference to any other ground. His conviction under section 3 of the Pakistan Entry Act, 1952 could not be sustained and was rightly set aside in appeal. The acquittal appeal is therefore dismissed.
15. So far as the application for quashment is concerned the offence of staying in Pakistan without authority, is undoubtedly a continuing offence and the point of time of his illegal entry being the year 1954 has no relevance. That date would also not be sufficient to justify any conclusion about delay in prosecution so far as the offence of illegal stay in Pakistan is concerned. Nothing has been shown in the evidence on record or even in law to lead to a conclusion that the prosecution of the respondent at this stage would be an exercise in futility. It is also not the case of the applicant that the complaint as such does not disclose any offence. It might still be possible for, the respondent to show that his stay in Pakistan has been perfectly in accordance with law or the rules but no such argument is advanced; and he can well do that at his trial. The application for quashment has thus no foundation and is dismissed as such.
' In the result both the acquittal appeal and the miscellaneous application are dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.