V.N.Misra,J. - (1.) THIS is in application/revision by Munney Khan accused against the judgment and order dated 13-5-1981 by Sri R.N.Agarwal, Ist additional Sessions Judge,Rampur in Criminal Appeal No. %3 of 1981 by means of which he dismissed the appeal and confirmed the conviction of the applicant under Section 14,Foreigners' Act the sentence of 18 months R.I. impose on him.
(2.) THE prosecution case was that the applicant was a Pakistan national, a resident of Karanchi in Pakistan and came to Indian on 7-4-55 on the basis of a pakistani passport no. 285921 dated 16-3-1955 and Indian visa no. 17412 dated 24-3-1955 for a period of three months. He entered India through Check Post Atari road, and was to stay here under the visa granted to him upto 23-6-35. After having entered India he came to Rampur but did not leave India after the expiry of three months and became untraceable. On 2-2-1975 he was traced out in the town of Haldwani in the district of Nainital by the police and order dated 20-3-1969 was served on him on 2-2-1975 and he was asked to leave India within 24 hours. Instead of leaving India, however, he again went to Rampur and was arrested there, the next day. He was, therefore, prosecuted under Section 14, Foreigner's Act, 1946, and has been convicted as aforesaid. The applicant contended that he was never as Pakistani national, had never migrated to Pakistan and had always been an Indian citizen. He contended that in 1953 he was married in India and did not acquire citizenship of Pakistan. He denied that any notice dated 20-3-1969 was served on him to leave India within 24 hours and he alleged that in 1968 also he was arrested and prosecuted under Section 14, Foreigner's Act but was acquitted. It was contended that his brother Sabir Khan, who resembled him, had migrated to Pakistan and used to come to India under his name and the passport relied upon by the prosecution may have been obtained in his name by him. Nikah register in which the marriage of the applicant was said to have been entered in the year 1953 was not produced before the trying Magistrate. The applicant only produced a copy of entry in this register certified by some official of hat institution, but since the entry was not properly certified, nor was it certified by public servant, therefore, it needed proof and this entry was not proved and it was than shown that the applicant was ever married in the year 1953 in Rampur.
(3.) THE contention of the applicant that his brother Sabir Khan who had migrated to Pakistan used to come to India on a Pakistani passport obtained in the name of the applicant can also not be believed. When Sabir Khan had migrated to Pakistan and had become a Pakistani national there was no difficulty in his coming to India on a temporary permit in his own name and it was needless for him to get the passport unnecessarily in the name of the applicant. When notice was served on the applicant he signed the notice on 2-2-1975 and he had also signed the application for visa and both the signatures tally and are certainly of the same person which too shows that it was the applicant himself who obtained the passport and who made the application for visa and came to India. In the application for visa which the applicant made he had shown his year of migration to Pakistan as 1948. This was, however, erased out and it was only with the help of microscope that the trying Magistrate was able to find out that the year noted as the year of migration was 1948. If Sabir Khan had obtained this visa he would never have changed the year of migration as mentioned in the application for visa because he was admittedly a Pakistani national and it was to serve no useful purpose for him to say that he did not migrate to Pakistan in 1948. This would show that the applicant came to India on a Pakistani passport in which he represented that he was a Pakistani national and with an Indian visa in which he again said that he was a Pakistani national and gave his year of migration as 1948. It is also very significant that the photo of the applicant was affixed, in his application for visa and though he tried to put off the prosecution contention that he made the application and he said that his brother Sabir Khan resembled him and this was his photo. This photo was found to be the photo of the applicant himself who could have changed a little from the year 1955 when he made the application for visa to 1975 when he was tried by the Magistrate. It would thus be seen that the applicant migrated to Pakistan in the year 1948. He came to India in 1955 under a Pakistani passport and visa in which it was represented that he was a Pakistani national. In Khalil Ahmad v. State of V. P., 1962 AWR 83, it was held that a person who had obtained a Pakistani passport and had declared his allegiance to Pakistan Government could be considered to be a foreigner. Similarly, in State of V. P. v. Jafar Ali, 1963 AWR 93 it was held that Pakistani passport was a presumptive proof of the appellant's nationality. Therefore, the mere fact that the applicant migrated to Pakistan and then entered India under a Pakistani passport by itself shows that he had become a Pakistani national as stated in the passport and had lost his nationality and citizenship of India.;