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Criminal Revision No. 119 of 1983, decided on 26th September, 1983.
---Ss. 419 & 471 read with Criminal Procedure Code (V of 1898), Ss. 435 & 439--Deportation, legality of--Accused, Irani nationals, detected travelling on forged travelling documents, tried and convicted for offences under S. 419/471, P.P.C. alone--Contention that accused not having been charged for any offence under Immigration or Passport Acts, trial Magistrate could not order their deportation after serving out sentence and such portion of order was without jurisdiction--Contention, held, correct--Order of trial Court amended accordingly.
Raja Qureshi for Appellant.
M. Memon for the State.
Date of hearing: 26th September, 1983.
This revision application under sections 435 and 439, Cr. P.C. has been moved on behalf of Hussain Khodai son of Yadullah against the order of Third Additional Sessions Judge, Karachi, dated 15th May, 1983 whereby it has been directed that both the Irani nationals may be deported to their Country.
The brief facts of the present case are that on 7th April, 1983 at 2.00 p.m. the Inspector Incharge, F.I.A. Passport Cell F.I.A, Karachi filed a case under section 419/471, P.P.C. against the petitioners. The contents of the F.I.R. are as under:--
"On 17th February, 1983, the complainant's report received from Karachi Airport and is reproduced below:
The Incharge Passport Cell,
F.I.A. Karachi.
Sub: OFF LOADING
The undermentioned/paxes alongwith the Passports and Airlines tickets, etc. mentioned each are sent to you for enquiry and legal action:-
| S. No. | Name | P.P.No. | Place a Date of issue | Flight No. | Remarks date & time |
| 1 | Hussain | 855744 | 1-2-1981 | SK 976 | During the checking Khodai Tehran at 1230 of the passports of both the paxes found their entry stamp of Taftan Check |
| Post are suspected to be forged, hence off loaded and are being sent up to you for further verification and legal action, alongwith travel documents .e. P.P.S. and valid tickets. Sd/-Immig: Incharge Shift 'B'. F.I.A. I a AS KAP-1". |
On initial enquiry their passports mentioned above were sent to the Consulate-General of Iran, Karachi, who reported as under:-
"Mr. Hussain Farrokhi, Visa Officer of the Consulate-General after due examination of the two passports in question has expressed the following opinion:
"1. In Passport No. 855744, as mentioned above, the photograph is suspected to be replaced and it lacks exit permit from Iran.
"2. The Passport No. 2404465, as stated above, bears a replaced photograph and the stamps on pages 2, 3, 10, 11 are forged and the stamps on pages 10 and 11 are ordinary postage stamps of Iran which are not valid for this purpose.
It would be appreciated if the accused are tried by a Military Court and after the conviction, their passports may please be handed over to this Consulate-General for necessary action.
Please acknowledge receipt of the above passports returned herewith.
Thanking you for your co-operation,
Sd/- and round seal
Ghulam Raza Aluyezal
Acting Consulate-General,
Consulate-General of the Islamic
Republic of Iran, Karachi.
As the above accused persons have used and presented their forged passports as genuine documents before the Pakistan Immigration staff and they concealed their real identity and actual names knowing and wilfully with criminal intention to get departure from Pakistan Copenhagen/Lisbon (abroad).
The above circumstances/facts disclose the commission of offence punishable under section 419/471, P.P.C. A case accordingly registered against both the accused persons mentioned in Column 4 above and taken up for investigation.
Sd/ -
(Muhammad Rafique Mughal)
Sub-Inspector F.I.A. P.P. Cell
Karachi."
The applicant was challaned in the Court of Magistrate First Class, Karachi East. On 5th May, 1983 charge under section 419/471, P.P.C. was framed against him to which he pleaded guilty. Accordingly he was convicted and sentenced to three months' R.I. and to pay Rs. 5,000 or in default to undergo further R.I. for three months. It has also been ordered that being Irani national he be deported to his country after the expiry of his sentence. The applicant filed appeal against the sentence before the Court of Sessions The learned Sessions Judge modified the sentence of imprisonment of three months to the period already undergone and fine was also set aside. The learned Sessions Judge further ordered the deportation of the applicant from Pakistan to Iran The learned counsel for the applicant Mr. Raja Qureshi contended that F.I.R. was lodged against the applicant under section 419/471, P.P.C. and no section of Immigration Act or Pasport Act was applied, therefore, the order of deportation of the applicant is without jurisdiction. Mr. Makhdoom Abdul Wali the learned counsel for the State has submitted that the impugned order is bad in law as the learned Magistrate has not taken congizance of the offences under the Immigration Act and Passport Act. I have perused the record and found that applicant has been convicted under section 419 or 471, P.P.C. He has not been challaned under the Immigration Act. I am of the view that orders passed by the learned A.C.M. and the Sessions Judge suo motu without taking cognizance of the offences of immigration Act or Passport Act are without jurisdiction. I set aside the last portion of the order of the trial Court as well as of Sessions Judge. The necessary documents which have been secured from the petitioner may be returned after necessary verification if not required in any other case.
S. G. D. Revision accepted.
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