LexMASUD KHAN versus STATE OF UTTAR PRADESH
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A B c ... 0 E F G II . MASUD KHAN v. STATE ·OF UTTAR PRADESH September 26, 1973 793 [H. R. KHANNA, A. ALAGIRISWAMI AND R. S. SAIUCARIA, JJ.J Foreigners (lnternmtnt) Order, 1~62-Proceedings u1'der, If Criminal-Issue, ·Est<>pptl. Foreigr.ers A.ct (13 of .1946), s. 9-Person with Pakistani passport claim- ing 10 ·be ·indian Cillz;en-ilurden of proof. the .J><tition<r <•me. to Jr.dia from Pakistan on the basis of a Pakistani passport of Jnly 1954 and Indiafi visa of April, 1956. On his arrest under the Foreigners (Internment) Order, 15il62, he contended that be was an Indian citi- zen and that he had been illogally arrested and confined in jail. HELD : ( 1) Unde~·- s. 5' of the Foteigri..!rs Act whenever· a question arises wh:tner a person is er is not a foreigner the onus of proving that he is not a foreigner .lies upon him. if the petitioner had b!en in india on 25-1-1950 but had gone to Palistau in 1951, it would be for the Central Government to decide wilether he is a .Pakistarii national or .an Indian .citizen even though he may havi colJ'le to Indi_a on a Pakistani_ passport in 1956. But.. when he went to Pakistan is a matter pcciJ.liarly within his knowledge and he had not pr.>· dnced any evidence in suppon of his statement that he went to Pakist&n only in J951. The burden is upon the petitioner to establish that he is a citizen of Inciia in the manner claimed by him and this burden, not having been dis· charged by him, it should be held that he is a. foreigner and his claim that he is an Indian citizen must be rejected. [794 C-H] (2) The petitioner was pro5ecuted unc!er s. 14 of th: Foreigners Act and wz.s acquitted on tne ground that he was r..ot a foreigner; but this finding would not operate as issue-Cstoppel. Issue-estoppel arises only if the earlier as well as subsequent proceedings were criminal prosecutions. In the present case, while the earlier one was a criminal prosecution, the latter is not a criminal prosec•1tion, but merely action taken under the Foreigners (Internment) Order for the purpose of deporting the petitioner out of India. [794H; 795D-E; 196 HJ Prilal'l Singh v. State of Puniab, A.LR. l!i56 S.C. 41'5, Manipur, Ad· n1inistration Y. Thokchom, Bira Singh (1964] 7 S.C.R. 123, Plara Singh v. State of Puniab [1969] I S. C C. 379, referred to. Sa1nbasi11an1 v. Public Prosecutor, Federaiio'n of }.falaya (1950] A.C. 458,. Th" King v. Wilku 77 C.L.R 511 and Marz v. The Queen TF C.L.R. 62, applied. ORIGINAL JURISDICTION: Writ Petition No. 117 of 1973. Under Article 32 of the Constitution of India for issue of a writ in the nature of haveas corpus. Uma Datta, for the petitioner. D. P. U niyal and 0. P. Rana for the ;espondent. The Judgment of the. Court .was delivered by ALAGIRISWAMI, J' Petitioner Masud Khan pray§ for his release orr the ground t.h~t he, an Indian citizen has been illegally arrested and confined to Jail under Paragraph 5 of the Foreigners (Internment) Order._ 19~2. He h~d come to India from Pakistan on the basi! of a Pa!dstaOJ..P~~sport datfd 13·'.'-1954 and TndiaP visa dated 9·4·1956. In J_iis a~phcatton for vis~ he ha1 stated that he had. migrated to Pakistan m 1948 a11d was in Governm~nt service in Pakistan in P.W.D. • 794 SUPREME COURT REPORTS [ 1974] 1 s.c.R. as a Darogha and had given his permanent address as . Hyderabad (Sind). If these statements were correct the petitioner would clearly be a Pakistani national· When this fact was brought out in the counter affidavit filled on behalf of the respondent, the petitioner filed a further affidavit stating that he was appointed as a Police Constable · in Hasanganj Police Station, District Fatehp.llr, U.P. ·in February 194 7 and continued as a Police Constable till the middle of 1950 when he was dismissed from service, and that he went to Pakistan in the year 1951. In the reply affidavit filed on behalf of the respondent it is stated tha~ one Md. Masood Khan son of Zahoor Khan was enrolled . as Police Constable on 16-9-1947 and he was discharged from service on 20-5-1949. It is fairly clear that this information culled from the English Order Book from 1-10-1947 to 27·12-1951 refers to the petitioner; While, therefore, it is established that the petitioner did. not go to Pakistan in 1948, it camiot be said that it has been establish- ed that the petitioner went to Pakistan only in 1951. When he went to Pakistan is a ·matter peculiarly within his
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