IN   THE   HIGH   COURT   OF   SINDH   AT  KARACHI

Cr. Jail Appeal No.183 of 2008

Date of hearing        30.04.2009

Date of Judgment    02.05.2009

Appellant:-                     Muhammad Noor-ul-Islam through

Zahid Hussain Baladi, Advocate

Respondent                             State through Ms. Farkhanda Mangi,

State Counsel

J U D G M E N T

Salman Ansari, J:    This application has been filed by the convict/appellant Muhammad Noor-ul-Islam, who was convicted in Sessions Case No.17 of 2005 by the learned VIIth Additional Sessions Judge, Karachi-South by his judgment dated 23.4.2008 and under Section 3/2(a), Foreigners Ordinance, 1951 read with Section 14(2), Foreigners Act, 1946, awarded sentence under Section 265-H(2), Cr.P.C. to undergo 3 years R.I. and fine of Rs.2000/- in default to undergo for 3 months R.I. more. The appellant is in custody ever since then.

2.                Learned counsel for the State has supported the order of the trial Court on the ground that there was substantial evidence against the accused produced by the prosecution.

3.                Having heard learned counsel for the appellant and learned counsel for the State.

4.                Brief facts of the case are that being Police personnel of the Special Branch Bangladesh Cell on 14.12.2004 they left alongwith some officials from NARA (International Alien Registration Authority) office and one PC Nadeem Ahmed left alongwith other party to search illegal immigrants from Bangladesh alongwith PC Gul Badshah and PC Behram Khan and the name of the staff of their department were Inspector Muhammad Hussain who went to korangi Industrial Area and Ibrahim Hydery and during patrolling and search the appellant Muhammad Noorul Islam and 4 other persons were apprehended being found suspicious and during interrogation by the staff of NARA they failed to produce any evidence which established that they were Pakistani nationals and illegally stayed in Pakistan. They were brought to the CPO where the personal search of the accused was made and Rs.500/- were recovered from the appellant. The memo of search and arrest was prepared and produced as
Ex-13/A. In his cross examination this witness denies that any NIC was produced by the appellant. That witness No.2 Inspector, Traffic Section,  Muhammad Hussain, who was Incharge Bangladesh Cell on 14.12.2004 alongwith Inspector Missal Khan and Police party had come to CPO in order to check illegal Bangladesh immigrants by the order of high ups hence the Police party went for patrolling on official mobile started to search illegal Bangladeshi immigrants and went to Ibrahim Hyderi and Korangi Industrial Area and during patrolling and search they inspected the appellant alongwith other accused, but they have failed to produce any evidence to prove their Pakistani nationality, during interrogation they all have disclosed that they do not possess any NARA Card nor they are Pakistani nationals and they have entered in Pakistan illegally, all aforesaid accused were arrested accordingly.  The statement under Section 154 Cr.P.C. was prepared and produced as Ex-14/A and the FIR Ex-14/B which have been produced by this witness and thereafter on completion of investigation submitted the challan. In his cross-examination he has admitted that the present appellant had told him that he has a NIC, but had not produced the same and denied the suggestion that the NIC of the appellant was detained by his companion, thereafter prosecution side was closed at Ex-15.

5.                In his Statement under Section 342 Cr.P.C the appellant showed himself as Bihari and denied that he was illegally immigrant he had produced his NIC but the Police had refused to accept the same and also denied the suggestion that he being Bangladesh National and entered in Pakistan illegally via Inda through Wagha Border, Lahore without any passport and visa and that he had come to Pakistan in the year 1984 by Biman Bangladesh Airline. In his statement on oath he has further stated that he had shown his NIC to the Police, but the Police had not considered the same. 

6.                That in the impugned judgment the learned trial Court had mainly relied upon the admission on oath as given by the appellant which is reproduced as under:-

“the accused has himself admitted in his examination on Oath in disprove of the charge that he has come to Pakistan in the year 1984 and has not produced any proof in Court that in the year 1984 he was holding Pakistani Nationality.”

7                 This was the main reason for conviction of the accused.

8.                Taking into consideration the evidence so produced all the witnesses are Police witnesses and the place where the accused have been apprehended was thickly populated area and no personnel of NARA department has been made as witness of search and arrest, the NIC produced by the appellant shows that it was issued on 15.3.2002 by NADRA and this case was registered on 14.12.2002 and issuance of NIC by NADRA would be substantial proof that he is Pakistani National as NADRA does not issue NIC to illegal immigrants or aliens and considering that the NIC was issued in the year 2002 much prior to the registration of the present case. Further PW-2 has stated in his evidence that the appellant was arrested on his confession and such confession cannot be treated as admissible evidence against the accused. Hence under the circumstances I find that the prosecution had failed to prove the case against the appellant beyond any reasonable doubt. Accordingly, I allow this appeal and acquit the accused Muhammad Noorul Islam S/o Abdul Karim.  The appellant/convict of the charge is in custody, undergoing his sentence at the Central Jail Karachi, he is to be released forthwith, if not required in any other case.

                   The above are the reasons for my short order dated 30.4.2009 delivered in Court after hearing the learned counsel by which I had allowed the appeal.

J U D G E