Honble N.K. JAIN, J.-This revision petition is directed against the judgment of learned Addl. Dist. and Sessions Judge No. 1, Jodhpur Camp-Jaisalmer dated 16.5.81 whereby while maintaining the conviction u/s. 14 of the Foreigners Act passed by learned Munsif and Judicial Magistrate, Pokaran dated 8.10.80, reduced the sentence from two years to 21 months R.I. and also reduced the fine from Rs. 1000/- to Rs. 500/- and in default of payment of fine to undergo further two months SI.

2. Brief facts giving rise to this petition are that on information received on 8.4.1977, Dy. S.P. Narayan Singh found that Imam @ Ilai Bux resident of Khanpura District Harihar who has come from Pakistan is staying with his brother Thania without any passport. As the petitioner has confessed before him that he would be going back to Pakistan via village Harihar. A case u/s. 14 of the Foreigners Act was registered and due investigation challan was filed * before learned Munsif and Judicial Magistrate, Pokaran, who after conclusion of the trial convicted and sentenced him. On appeal, the same was partly allowed as mentioned above. Hence this revision,

3. Mr. J.M. Bhandari, learned counsel for the petitioner has submitted that without determining u/s. 9 of the Citizenship Act, 1955 that the petitioner had voluntarily acquired the citizenship of Pakistan, he cannot be convicted. He has further submitted, that the alleged confessional statement made before police is not admissible in evidence in view of the provisions of section 25 and 26 of the Indian Evidence Act. The petitioner has filed some documents before this Court showing his name in ration card and in voter list. He has submitted that the petitioner has also remained in jail for some time. He has placed reliance on State Vs. Korban Khan (1), State of Gujarat Vs. Yakub Ibrahim (2) and Khalil Ahmed Vs. State of U.P. (3).

4. Mr. V.S. Choudhary, learned Public Prosecutor has submitted that as the petitioner has not discharged the burden that he is not a Pakistani, the courts below have rightly come to the conclusion on the basis of his statement.

5. I have heard learned counsel for the parties and perused the record.

6. In State of Gujarat Vs. Yakub Ibrahim (supra), the respondent Yakub Ibrahim came to India on Pakistani passport and overstayed. Their lordships of the Supreme Court have held as under:—

"It was not proper for the prosecuting authorities to have proceeded with the case against the respondent. When, upon the facts set up by the respondent could not be prosecuted or convicted without a determination under Sec. 9 of the Citizenship Act, 1955, that he had voluntarily acquired the citizenship of Pakistan between 26th January 1950, and the commencement of the Citizenship Act on 30.12.1955. It has been repeatedly laid down that if such a question arises in the course of trial, it must be left for decision by the appropriate authorities. It may be that the rules framed by the Central Government under sec. 18 of the Citizenship Act, had provided that the passport shall be conclusive proof that its holder has acquired the citizenship of the country whose passport he holds But in view of section 9(2) of the Citizenship Act, the question whether a person voluntarily acquired the citizenship of any other country during the specified period, could only be determined by the Central Government."

7. It has been further held that when the alleged overstay, contrary to the provisions of clause 7 (iii) of the Foreigners Order, 1958 took place, the respondent was a foreigner. Without a decision of an appropriate authority on that question neither an acquittal nor a conviction could be recorded.

8. It has also been held by their lordships as under :—

"As no finding can be given by criminal or civil courts, in a case in which an issue triable exclusively by the Central Government has properly arisen, the question of burden of proof, dealt with in section 9 of the Foreigners Act, 1946, is immaterial."

9. It is clear fr

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