Hazrat Ullah Vs The State

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

Cr.M (B.A) No.152-M/2026

Hazrat Ullah v. the State

For Applicant: Muhammad Adil Afzal Awan, Advocate For State: Mr. Imran Khan, A.A.G.

Date of hearing: 26.03.2026

ORDER

Dr. Khurshid Iqbal, J.-

1.The applicant-accused, Hazrat Ullah, is an Afghan national. He was arrested in FIR No.192 dated 28.02.2026, registered under section 14 of the Foreigners Act, 1946, at Police Station Mingora, District Swat, on the allegation that his continued stay in Pakistan has become unlawful. Having failed to secure post-arrest bail before the learned Courts below, he has approached this Court through the instant petition. The material facts presently relevant are those already reflected in the order under consideration, namely the allegation of unlawful stay, the plea founded on his documentary status, his marriage with a Pakistani citizen, the previous writ order, and the absence of any demonstrated step towards deportation.

2.Learned counsel for the applicant has contended that the matter is not one of straightforward illegal presence. It is submitted that the applicant was already residing in Pakistan, possessed an Afghan Citizen Card and a Proof of Registration document, is married since 2015 to Mst. Shaheen, a Pakistani citizen, has four children from the wedlock, and has also been issued a Pakistan Origin Card. Learned counsel has further drawn attention to writ petition No.1423-M/2025, disposed of on 13.01.2026, whereby the applicant’s case regarding nationality was ordered to be placed before the competent forum within six months and, till such time, he was not to be deported nor subjected to adverse action.

3.Learned Assistant Advocate-General, on the other hand, has opposed the petition on the ground that by virtue of S.R.O. No. (1)/2025 dated 31.07.2025, allegedly issued under section 3 of the Foreigners Act, 1946, PoR and allied documents ceased to afford Page 1 of 5

legal cover for continued stay, and therefore the applicant’s stay is in violation of the law.

4.I have heard learned counsel for the parties and perused the available record. At the bail stage, the Court is not required to render a final determination upon either the applicant’s nationality claim or the ultimate validity and sweep of the executive action relied upon by the prosecution. The enquiry is tentative and confined to whether, on the material presently available, the case attracts the statutory bar to bail or otherwise calls for continued incarceration.

5.The first and most material aspect is the proper classification of the accusation. Section 3 of the Foreigners Act empowers the Federal Government to regulate or restrict the entry, departure, presence or continued stay of foreigners in Pakistan. The structure of the Act then draws a distinction between a general contravention of the Act or an order made thereunder, and the more serious case of one who knowingly enters Pakistan illegally. The text of the Constitution separately guarantees that every person in Pakistan is entitled to protection of law, liberty, due process and dignity.

6.In the present case, as the record itself presently shows, the accusation is not that the applicant knowingly entered Pakistan illegally in the first instance. Rather, the allegation is that, being already present in Pakistan, he continued to stay notwithstanding the executive measure relied upon by the prosecution. Tentatively, therefore, the case falls within sub-section (1) of section 14, and not within sub-section (2) thereof. It necessarily follows, at least for present purposes, that the embargo contained in section 14-A, which is specifically tied to an accusation punishable under section 14(2), is not attracted. The prosecution case itself, as presently framed, thus does not bring the applicant within the special statutory restriction on bail. The supplied text of the judgment also proceeds on the same distinction.

7.Once the case is tentatively viewed as one under section 14(1), the matter at once falls outside the prohibitory rigour otherwise invoked for graver offences. Whether the S.R.O. relied upon by the prosecution validly covered the applicant in the peculiar circumstances of his case, whether his existing documentation and prior status afforded him any interim protection, and whether the earlier writ order had an immediate bearing on the permissibility of coercive action, are all matters which plainly require deeper examination and cannot be concluded against him at this stage. On the established principles governing bail, where serious legal and factual questions remain Page 2 of 5

open, continued incarceration before trial is not to be treated as the ordinary rule.

8.There is yet another dimension of the matter. Articles 4, 9, 10-A and 14 of the Constitution are not confined to citizens alone. Protection of law, liberty, due process and dignity extend to every person for the time being in Pakistan. Thus, even where the person concerned is a foreigner, the State remains bound to proceed according to law, fairly, and through a process that is constitutionally just. Criminal process cannot be used in a manner that converts executive uncertainty or administrative inaction into a substitute for lawful adjudication. In a recent Islamabad High Court judgment concerning section 14(2) of the Foreigners Act, the Court similarly read the statute together with Articles 4, 9, 10-A and 14, and stressed that the law is not meant to operate as a trap against persons whose liberty is at stake (Rahil Aziz v. The State & others, PLD 2024 Islamabad 231).

9.In the present matter, the previous writ order assumes real significance. The record, as supplied, shows that on 13.01.2026, this Court had already directed that the applicant’s case regarding Pakistani nationality be placed before the appropriate forum within six months, and further directed that until such time he shall neither be deported nor subjected to adverse action. That period had not expired when the applicant was arrested in the present case. At the very least, therefore, the applicant could legitimately expect that, pending the competent forum’s consideration and during the currency of the judicial protection already extended to him, the coercive power of the State would be exercised with restraint and in a manner consistent with that order. The doctrine of legitimate expectation, as understood in Pakistani jurisprudence, is judge-made and operates as an aspect of fairness in judicial review. It does not override statute, but it does require that public authorities act fairly and not defeat a representation, practice, or legal position without lawful basis. In the facts at hand, this doctrine does not create a substantive right to remain in Pakistan; it does, however, reinforce the conclusion that the applicant’s pre-trial incarceration calls for anxious judicial scrutiny.

10.Equally important is the statutory scheme itself. The Foreigners Act does not contemplate that ordinary criminal custody should become an indefinite holding arrangement merely because the executive has not taken a decision or has failed to move the machinery required for deportation. The Act itself contains provisions regarding deportation pending trial and custody pending deportation. That statutory structure shows that where the core issue is unlawful presence, the law recognises deportation-related mechanisms as distinct from punitive pre-trial Page 3 of 5

incarceration. In the instant case, the record shows that no material was produced before this Court to suggest that any concrete process for deportation had even been initiated. In such circumstances, the continued incarceration of the applicant begins to lose its juridical character and risks becoming detention by default, which the Constitution does not countenance. Personal liberty cannot be made hostage to executive indecision.

11.I may add that the applicant’s marriage with a Pakistani citizen, the existence of four children, and the fact that he has pursued a formal remedy regarding nationality, do not by themselves confer immunity from the operation of the law, nor do they conclude the nationality issue in his favour in these proceedings. Those matters shall be examined by the competent forum, strictly in accordance with law. Yet, for purposes of bail, these circumstances are undeniably relevant. They show rootedness, weaken the risk of abscondence, and lend substance to the submission that the applicant is not a transient or clandestine entrant but a person whose status is presently interwoven with pending legal processes and family ties inside Pakistan.

12.For all the foregoing reasons, this Court is of the tentative view that the prosecution case, as presently framed, does not attract the bar contained in section 14-A of the Foreigners Act; that the matter is, at the least, one of further enquiry; that the prior judicial order dated 13.01.2026 and the circumstances arising therefrom materially fortify the applicant’s plea; and that continued incarceration, in the absence of demonstrated progress towards deportation or any other exceptional circumstance, would not be consistent with the constitutional guarantees of lawful treatment, liberty, fair trial and dignity.

13.Consequently, this petition is allowed. The applicant- accused Hazrat Ullah shall be released on post-arrest bail, subject to furnishing bail bonds in the sum of Rs. 100,000/- with two sureties each in the like amount to the satisfaction of the learned area Judicial Magistrate/MoD, who shall ensure that the sureties are local, reliable and possessed of sufficient means.

14.It is, however, clarified that nothing observed herein shall amount to a final expression on the merits of the criminal case, the legality or otherwise of the executive notification relied upon by the prosecution, or the applicant’s claim regarding nationality. The concerned authorities shall remain at liberty to proceed strictly in accordance with law, including under the applicable provisions of the Foreigners Act and subject to the earlier order passed in W.P. No.1423-M/2025, and any competent forum seized of the applicant’s nationality claim shall decide the same independently and on its own merits.

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15.These are the reasons for the short order of the even date. Announced.

26.03.2026 ..Sd..

JUDGE

Sabz Ali/* (S.B) Justice Dr. Khurshid Iqbal

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