TMI Blog1973 (9) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... ated to Pakistan in 1948 and was in Government service in Pakistan in P.W.D. 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 Fatehpur, U.P. in February 1947 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 that one Md. Masood Khan son of Zahoor Khan was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urged on behalf of the petitioner. There is no room for any such presumption. Under Section 9 of the Foreigners Act whenever a question arises whether a person is or is not a foreigner the onus of proving that he is not a foreigner lies upon him. The burden is therefore upon the petitioner to establish that he is a citizen of India in the manner claimed by him and therefore he is not a foreigner 1961CriLJ703 . This burden not having been discharged by the petitioner it should be held that he is a foreigner and his claim that he is an Indian citizen cannot be dealt with under the Foreigners (Internment) Order, 1962 must be rejected. 3. It appears, however, that in 1960 he had been prosecuted before the Sub-Divisional Magistrate, Fatehpur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Punjab 1969CriLJ1435 . Issue-estoppel arises only if the earlier as well as the subsequent proceedings were criminal prosecutions. In the present case while the earlier one was a criminal prosecution the present is merely an action taken under the Foreigners (Internment) Order for the purpose of deporting the petitioner out of India. It is not a criminal prosecution. The principle of issue-estoppel is simply this : that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeding by the Crown against the same prisoner. The allegation, of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding. But if such a condition of affairs arises I see no reason why the ordinary rules of issue-estoppel should not apply.... Issue-estoppel is concerned with the judicial establishment of a proposition of law or fact between parties. It depends upon well-known doctrines which control the relitigation of issues which are settled by prior litigation. The emphasis here again would be seen to be on the determination of criminal liability. In Marz v. The Queen 96 Cri.L.R. 62 the High Court of Australia said : The Crown is as much precluded by an e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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