PHC says foreigner can’t ask for registration of case under Foreigners Act

Judgment in case of Afghan wife, Pakistani husband

PESHAWAR: The Peshawar High Court (PHC) has declared that a foreigner has no right to ask for registration of a case under the Foreigners Act against another foreigner as these powers exclusively rest with the government functionaries.

In a detailed judgment announced by Justice Muhammad Ibrahim Khan on the issue of registration of First Information Report (FIR) under the Foreigners Act against another foreigner, the court ruled that the powers to register a case or not rested only with functionaries of federal government or provincial government.

The bench upheld the decision of Additional Sessions Judge/Izafi Zila Qazi of Samarbagh in Dir Lower. It dismissed the application of an Afghan national, Amanullah, who was seeking registration of FIR against his daughter Ayesha under the Foreigners Act to deport her to Afghanistan. Ayesha had fled to Pakistan and contracted love marriage with a Pakistani citizen, Fawad.

“The Foreigners Act, 1946 has conferred certain powers upon federal government in respect of foreigners. The preamble reveals that whereas it is expedient to provide for the exercise by the federal government of certain powers in respect of the entry of the foreigners into Pakistan, their presence and their departure there from,” it was stated, adding that it is extended to the whole of Pakistan including tribal areas.

It was further stated that the powers for any action under the Foreigners Act have been specifically delegated to the provincial government. “Individuals like Amanullah, the petitioner, herein has no “locus standi” to move any application for registration of the case under section 14 (1) and (2) of Foreigners Act, 1946 as such like powers are exclusively within the domain of either of the functionaries of federal government or provincial government extending these powers even to the tribal territories,” the judgement said.

“In our view and while considering the matter from every possible angle, the order of the Justice of Peace (Additional Sessions Judge) has been politely passed which calls for no interference under the constitutional jurisdiction of this court and the petition stands dismissed.

The Afghan national, Amanullah, had implored the constitutional jurisdiction of high court under Article 199 of the Constitution.

He had challenged the sub-ordinate court decision, requesting the court to declare the decision passed on February 20 this year as without lawful authority and of no legal effect. Consequently, he pleaded that directions may be passed for registration of FIR against his daughter Ayesha and her lover Fawad.

The brief but precise facts as taken from the available record revealed that Ayesha had been previously engaged with one Saif-ur-Rahman, a resident of Paktia province of Afghanistan in June 2016.

The petitioner along with his family had settled in Pakistan as a refugee and later shifted to his native Afghanistan. The petition said that on November 10 last year Ayesha disappeared from her house in Afghanistan. Later it came into the knowledge of the petitioner that his daughter had fled to Pakistan with the active connivance of Fawad, son of Akbar and resident of Mian Kalay in Munda, Lower Dir district.

On the report of the petitioner, Ayesha was recovered from the house of Fawad. Recording her statement before the magistrate, she admitted fleeing from Afghanistan to Pakistan and marrying Fawad and terming him her lawful husband. Subsequently, she was shifted to Dar-ul-Aman, the shelter home for women in need.

The petitioner filed an application at the court of Executive Magistrate/Assistant Commissioner of Samarbagh, Lower Dir seeking deportation of Ayesha. Her husband Fawad also moved an application for release and custody of Ayesha being his lawful wife.

However, both the applications were dismissed by the order issued on December 16, 2016. The petitioner preferred applications to the station house officer of Munda Police Station and district police officer of Lower Dir for registration of case against his daughter and her husband, which was not heeded.

The matter was taken to the court of Additional Sessions Judge/Izafi Zila Qazi Samarbagh in Lower Dir for registration of the case against his daughter and her husband.

Ayesha also filed criminal revision before the said court against the order of the Executive Magistrate of Samarbagh. The plea was dismissed on February 20, 2017 which her father Amanullah challenged in the high court.

“The available record transpires that the petitioner has failed to bring on record any documentary evidence in respect of his deportation to his native country Afghanistan, rather his daughter (Ayesha) has been shown card-holder of the registration card issued by the Government of Pakistan being Afghan refugee.

Thus plea of the petitioner in respect of initiation of criminal proceedings against his daughter Ayesha, being illegal migrant within the meaning of Section 14 (2) of the Foreigners Act, 1946 could not be advanced,” the judgment said.