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Criminal Revision No. 661 of 1968, decided on 16th October 1969.

Ss. 3 & 14‑Nationality Presumption of nationality arising out of entry in passport prevails in absence of reliable evidence to contrary‑Conviction under S. 14 challenged on plea that mere fact that petitioner held Indian passport could not lead to presumption of his being Indian citizen‑Pre sumption, however, not rebutted Conviction, in circumstances, upheld

Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan v. Kiron Chandra Dutta 17 D L R 60 and Abeda Khatrus v. The .State A 1 R 1963 All. 260 ref.

Superintendent and Remembrancer ‑of Legal Affairs, Government of East Pakistan v. Sunil Kumar Daw P L D 1963 Dacca 811 and Gout Chandra Shaha and others v. The Vice‑Chairman, East Pakistan Enemy Property, Dacca and others 21 D L R 535 ref.

S. 14 read with Foreigners Order, 1951, Art. 7 and Pakistan (Control of Entry) Act (L V of 1952), S. 3(G)‑Indian national contravening provisions of Art. 7 of Foreigners Order, 1951‑Such person, although liable to prosecu tion under S. 3(6), Pakistan (Control of Entry) Act, 1952, cannot plead that in absence of his prosecution under such Act he could not be convicted under S. 14 of Foreigners Act, 1946‑Conviction, held, not bad in law.

In the present case the two petitioners who, being not citizens of Pakistan, were foreigners contravened the provision of Article 7 of the Foreigners Order, 1951 and as such came within the penal clause of section 14 of the Foreigners Act, 1946. Of course the petitioners could have been prosecuted under the Pakistan (Control of Entry) Act for having contravened the provision of sub section (6) of section 3 of the Act which forbids an Indian citizen from overstaying in Pakistan beyond the date of expiry of the period of stay authorised in the visa unless it is extended or re newed by. a competent person but it cannot be inferred there from that the prosecution of the petitioners under the Foreigners Act was bad in law.

Ss. 11 & 14‑Deportation of foreigner‑Court not competent to order deportation of foreigner on expiry of term of imprisonment awarded under S. 14 Deportation of foreigner within competence of Central Government only or its delegatee under S. 7, Pakistan (Control of Entry) Act (LV of 1952).

Trial Magistrate while convicting petitioner (Indian national) under section 14, Foreigners Act, 1946 passed an order that "accused be pushed into Indian territory of which country he s happens to be the national, through the nearest convenient border ‑on expiry of the term of his imprisonment". The order was challenged as illegal inasmuch as the Magistrate had no such power a under the Act. Aid of section 11(7) of the Act was sought by the State in support of the order

Held, the Court's power to punish a foreigner is derived from section 14 of the Foreigners Act, 1946 which does not specifically provide for the deportation of the foreigner on the expiry of the term of imprisonment. The Court cannot arrogate to itself a power which has not been conferred upon it. Moreover it does not appear that even subsection (1) of section 11 of the Ac, authorises the removal of a foreigner by force. Such power has been expressly conferred under section 7 of the Pakistan Control of Entry) Act, but it can be exercised by the Central (government which can, of course, delegate its powers in this behalf to the Provincial Government or to any officer or authority to subordinate to it or specified by it.

S. 14‑‑‑Joint trial Mother and .son contravening provisions of Foreigners Act, 1946‑ Joint trial, in circumstances, held, not illegal

S.14‑Sentence hnprisonment and fine both mandatory‑‑..Sentence of fine only Illegal-‑Lower appellate Court converting original sentence of imprisonment and fine to fine only‑Order, held, illegal.

The order of the Court, converting the original sentence of imprisonment and fine, to fine only is not a legal sentence. According to section 14 of the Act if any person contravenes tile provisions of the Act or of any order thereunder he shall be punished with imprisonment which may extend to 5 years and shall also be liable to fine.

Md, Moksudur Rahman for Petitioners.

A. T. M. Afzal for the State.

This Rule was obtained by the two petitioners who were con victed under section 14 of the Foreignes Act, and were sentenced to suffer rigorous imprisonment for six months and a fine of Rs. 50 each, in default to rigorous imprisonment for one month mere by Mr. M. A. Haq, Magistrate 1st Class, Pirojpur. On appeal the order of conviction was confirmed but the sentence was altered to a sentence of fine of Rs. 150 in default to rigorous imprisonment for 3 months each.

The facts leading to the present petition are that on 24th April 1966 the two petitioners were arrested by police at village Kanua P. S. Mathbaria in the district of Barisal on suspicion that they were Indian nationals. The Officer‑incharge of Bhandaria P. S. recorded a First Information, Report suo motu anal investigated the case and during the investigation seized, among other documents, Indian passport and Pakistani Visas of the petitioners. The validity of the Visas had expired long before the date of arrest. The petitioners were put on trial and were charged under section 14 of the Foreigners Act, t which they pleaded not guilty. The defence of the petitioners was that both of them were Pakistani and they never migrated to India. The trial Court found them guilty under the aforesaid section and the conviction was upheld by the Additional Sessions Judge who heard the appeal.

Mr. Md. Moksudur Rahman, learned Advocate appearing on behalf of the petitioners contended that the conviction of the petitioners was bad in law as the mere fact that they held Indian ' passport did not lead to the presumption of their being Indian citizens. In this connection, lie referred to a decision of this Court in the case of Superintendent anti Remembrancer of Legal Affairs, Government of East Pakistan v. Ktron Chandra putts (17 D L R 60). In that case A. S. Chowdhury, J. relying upon the decision of an Indian case namely Aheda Khattm v. The State (A I R 1963 All. 260), observed that a person may hold a Passport of another country owing to it variety of reasons and it cannot be deemed to be a conclusive proof of the nationality of the country of which he holds the passport although strong presumption arises to their effect, and found that in the pecular facts and circumstances of the case, the presumption' arising out of the holding of the Indian passport, had boon rebutted. Mr. A. T. M. Afzal appearing on behalf of the State invited y attention to two other decisions of this Court on the point, the first of which is the case of Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan v. Swill Kumar. Daw (P L D 1963 Dacca 811) in which Siddiky, J. (as ho then was) held that the passport raises a very strong presumption of the citizen ship of a person, and is undoubtedly to primary evidence of citizenship of the, holder thereof of the State front when to (lie paws. port has been obtained. Both the aforesaid decisions were can ordered by a Division 13onch of this Court comprised of A. S. Chowdhury, J. and Nural Islam, J. in the case of Gaur Chandra Shaha and others v. The Vice‑Chairman. East Pakistan Enemy Property, Dacca and others (21 D L R 535) and it was hold that the passports Faro Indeed prima, facto evidence of the nationality of the holders thereof". It is, therefore, evident that in the absence of any reliable evidence to the contrary, the presumption of nationality arising out of the entry in the passport must prevail. In this cage the fact that the two petitioners hold Indian passport raised a presumption of their being Indian nationals and this presumption could not be rebutted by the petitioners, and berth the Courts below rightly found that the two petitioners were Indian nationals. Hence the contention raised on behalf of the petitioners is of no avail.

It was next contended on behalf of the petitioners that the appropriate law under which the petitioners should have been proceeded against was the Pakistan (Control of Entry) Act and not under the Foreigners Act which cannot be applied against theist The petitioners have been charged under section 14 of the foreigners Act, 1946 (hereinafter referred to as the Act) which is the Penal Clause for contravention of the Provisions of the Act or of any ,order made thereunder. Section 3 of the Act empowers the Central Government to make orders providing, among others, that the foreigner shall not remain in Pakistan or in any prescribed area therein. A foreigner' has been defined in clause (a) of section 2 of the Act as a person who is not a citizen of Pakistan. The Central Government by virtue of the authority conferred under section 3 of the Act promulgated Foreigners Order, 1951 and Order 7 thereof lays down that "every foreigner, riot being a commonwealth citizen (other than a citizen of India) as defined in the British Nationality Act, 1948 who enters or has entered Pakistan shall obtain from the Registration Officer having jurisdiction at the place at which the ‑said foreigner enters or has entered Pakistan a permit indicating the period during which he is authorised to remain in Pakistan and shall unless the period indicated in the permit is extended by the Central Govern ment depart from Pakistan before the expiry of the said period and at the time of the foreigner's departure from Pakistan the per mit shall be surrendered by him to the Registration Officer having jurisdiction at the place from which he departs. In this case the two petitioners who, being not citizens of Pakistan; were foreigners contravened the provision of Order 7 of the; Foreigners Order, 1951 and as such came within the penal clause of section 14 of the Act. Of course the petitioners could have been pro secuted under the Pakistan (Control of Entry) Act for having con travened the provision of‑ subsection (6) of section 3 of the said Act which forbids an Indian citizen from overstaying in Pakistan beyond the date of expiry of the period of stay authorised in the Visa unless it is extended or renewed by a competent person but it cannot be inferred there from that the prosecution of the petitioners under the Foreigners Act was 14 in law. Hence this contention is also of no force.

It was next contended on behalf of the petitioners that the order of the trial Court that "the accused persons be pushed into Indian territory of which country they happen to be the nationals, through the nearest convenient border on expiry of the term of their imprisonment", was illegal inasmuch as no such power was conferred upon the Magistrate under the Act. Mr. A. T. M. Afzal sought to support this order upon a reference to subsection (1) of section 11 of the Act which is as follows

11. Power to give effect to orders, directions, etc.‑(1) An authority empowered by or under or in pursuance of the provisions of this Act to give any direction or to exercise any other power may, in addition to any other action expressly provided for in this act, take, or cause to be taken such steps and use, or cause to be used, such force as may, in its opinion, be reasonably necessary for securing compliance with such direc tion or for preventing or rectifying any breach thereof, or for the effective exercise or such power, as the case may be."

It seems that the Court's power to punish a foreigner i derived from section 14 of the Act which does not specifically provide for the deportation of the foreigner on the expiry of the term of imprisonment. The Court cannot arrogate to itself a power which has not been conferred upon it. Moreover it doe not appear that even subsection (I) of section 11 of the Act authorities the removal of a foreigner by force. It may be stated C here that such power has been expressly conferred under section 7 of the Pakistan (Control of Entry) Act, but it can be exercised by the Central Government which can, of course, delegate its powers in this behalf to the Provincial Government or to any officer or authority subordinate to it or specified by it. It, how ever, appears that the learned Additional Sessions Judge neither confirmed nor incorporated this portion of the order of the trying Magistrate, in his own order converting the entire sentence to one of fine only. The order of the trying Magistrate being no longer operative, the petitioners can have no grievance on this score.

It was next contended on behalf of the petitioners that the trial of the petitioners jointly was illegal. The two petitioner happen to be mother and son and they were found in Pakistan on 24th April 1966 in contravention of the Foreigners Act. In the circumstances they could be tried together.

Lastly it was submitted on behalf of the petitioners that one of the petitioners namely Ruhini Kumar Mondal died on 13‑11‑68 and the petitioners are too poor to pay the amount of fine. Since the sentence, as it stands now, is the sentence of fine only, the question of abatement on account of death of the accused does not arise. I may observe here that the order of the learned Additional Sessions Judge converting the original sentence of imprisonment and fine, to fine only is not a legal sentence. According to section 14 of the Act if any person contravenes the provisions of the Act or of any order thereunder he shall be punished with imprisonment which may extend to 5 years and shall also be liable to fine. Since however no rule was issued for modification of the sentence in accordance with the law at the time of issuance of this rule and having regard to the facts and circumstances of this case I see no ground to interfere at this stage with the sentence of fine as imposed by the learned Additional Sessions Judge, if the petitioners are too poor to pay the fine as contended by the learned Advocate for the petitioners, the remedy lies elsewhere.

Before I part with this case, I think I should record my appreciation of the assistance rendered to me by Mr. A. T. M. Afzal, who appeared in this case on behalf of the State in res ponse to an earlier notice issued upon the Deputy Legal Remembrancer.

The Rule is accordingly discharged and the order of stay of realisation of fine is vacated.

Rule discharged.

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