2024 CCJ 7

Other citations: 2024 PCrLJ 62

[Islamabad High Court]

Before Tariq Mehmood Jahangiri, J

Muhammad Ilyas—Appellant

versus

The State and another—Respondents

Criminal Appeal No. 111 and Criminal Revision No. 61 of 2021, decided on 17^th August, 2022.

HEADNOTE

Emigration Ordinance (XVIII of 1979) —

— Ss. 18 & 22 — Fraudulently inducing to emigrate — Appreciation of evidence — Delayed FIR — Non-production of passport, visa and related documents — Scope — Appellant, convicted by the Special Judge Central, received a four-year rigorous imprisonment (R.I) term along with a fine for violating sections 18 and 22 of the Emigration Ordinance, 1979 — The case arose from appellant’s promise to send the complainant’s brother to Italy for employment in exchange for Rs.11,50,000/- — Despite the payments made, the visa issued was for Malaysia — Accused promised to rectify the error but disappeared after returning only a portion of the payment — The subsequent investigation led to his arrest, trial, and conviction — During the trial, prosecution witnesses testified, including the complainant, the intended emigrant, and a taxi driver who witnessed the financial transactions — The trial revealed significant discrepancies and procedural irregularities regarding the case — Firstly, there was a considerable delay of five years between the occurrence of the incident in 2009 and the filing of the FIR in 2014, without a satisfactory explanation provided for the tardiness in reporting — Additionally, it came to light that the complainant had previously submitted two applications to the FIA for the registration of a case, both of which were rejected due to inconsistencies in the allegations — Further scrutiny revealed lapses in witness corroboration, particularly regarding financial transactions — Witnesses failed to provide consistent details regarding the payments made to the accused, and crucially, independent witnesses were absent, casting doubt on the reliability of the testimonies presented — Allegations that the accused obtained money for sending the complainant’s brother to Italy but procured a visa for Malaysia were not substantiated with adequate documentation — In light of these deficiencies and the principle of reasonable doubt, High Court concluded that the prosecution had failed to prove its case against the accused beyond a reasonable doubt — Consequently, the appellant was acquitted of all charges, the appeal was allowed, and the impugned judgment was set aside. [Para. No. 13, 14, 18, 19, 20, 21, 22 & 25]

Malik Asif Taufeeq for Appellant.

Hafiz Ali Asghar, Safeer Khadim and Muhammad Javed Bhatti for Respondent No. 2/Complainant.

Fayyaz Hussain A.A.G. and Muhammad Mushtaq, S.I., FIA for the State.

Date of hearing: 11^th August, 2022.

JUDGMENT

Tariq Mehmood Jahangiri, J:—By way of this single Judgment, I intend to decide above mentioned criminal appeal and criminal revision arising out of the same judgment.

2.           Muhammad Ilyas son of Muhammad Saddique, was tried by learned Special Judge Central, Islamabad, who vide impugned judgment dated 03.08.2021, was convicted and awarded sentence of R.I for 04 years along with fine of Rs.50,000/- and in default thereof, to further undergo S.I. for two months for offence under section 18 of Emigration Ordinance, 1979. Further awarded sentence of R.I of 04 years along with fine of Rs.50,000/- and in default thereof, to further undergo S.I for two (02) months for offence under section 22 of Emigration Ordinance, 1979 in case FIR No.177/14, dated 19.08.2014, under sections 18/22, E.O., 1979 and 6, P.A., 1974, P.S FIA/AHTC, Islamabad. Both the sentences are directed to run concurrently. Benefit of section 382-B, Cr.P.C. is also given to the appellant/accused. It is also directed in the impugned judgment that an amount of Rs.850,000/- received by the accused for providing visa, shall be paid by him to the complainant and in default thereof the same shall be recovered from him as arrears of land revenue.

3.           The appellant/accused has preferred an appeal against his conviction and sentence, whereas the complainant has preferred the criminal revision, wherein he has prayed that sentence awarded to the accused be enhanced according to law and be awarded punishment under sections 18/22 and 6, P.A.

4.           Brief facts of the case are that as per application Exh.PA, the complainant Ulfat Hussain who was serving in a factory, met the accused Muhammad Ilyas who is engaged in business of emigration and the accused informed the complainant that he has three visas of Italy and he can send brother of the complainant to Italy against an amount of Rs. 11,50,000/-. The complainant arranged an amount of Rs.600,000/- and handed over the said amount to the accused along with passport of his younger brother. After two months the accused called the complainant and the intending emigrant through telephone to come at Islamabad airport on 25.09.2009, as ticket and visa with passport were already with the accused. When the complainant along with his younger brother reached at airport, then the accused after receiving remaining amount of Rs.550,000/- sent an unknown person with the intending emigrant (younger brother of the complainant) inside the airport. The younger brother of complainant appeared at Immigration Counter for clearance of boarding and at that time while checking the luggage FIA department checked visa and passport and asked the intending emigrant that where he has to go. The younger brother of complainant replied that he is to go to Italy but the immigration official informed that the visa is for Malaysia and they sent back younger brother of complainant. Complainant contacted the accused whereupon the accused stated that mistakenly the visa of Malaysia has been stamped on the passport but next time he will provide visa of Italy and will get issue the passport of the younger brother of the complainant himself. By confessing his guilt, the accused returned amount of Rs.300,000/- and for remaining amount of Rs.850,000/- he promised to return the same if failed to provide visa of Italy. The accused requested some time for this prove but later on he changed his phone number and went out of contact. Subsequently, it revealed to the complainant that the accused is having and plying a Toyota Hiace. The complainant went to the house of the accused to demand his amount back but the accused extended threats. He submitted application for registration of the case before FIA on the basis of which this case was registered vide FIR Exh.PB.

5.           After registration of the case, the accused was arrested, investigated and was challaned. After receiving the challan and fulfillment of procedural requirements the accused was charge sheeted, he pleaded not guilty of the charge and claimed trial. Thus prosecution evidence was summoned and recorded.

6.           Prosecution produced:

PW-1 Ulfat Hussain complainant, who while deposing on oath reiterated the facts of his application/complaint.

PW-2 Fida Hussain (intending emigrant) supported the version of complainant/PW-1 and facts mentioned in the FIR.

PW-3 Mahboob Hussain is running a part time Taxi stated that on 25.09.2009, he along with accused and other unknown persons came to Islamabad Airport from where they proceeded to Blue Area, where Ulfat Hussain complainant paid Rs. 550,000/- to the accused in his presence for sending Fida Hussain to Italy for employment.

PW-4 Danish Sarfraz I.O of the case, registered FIR Exh.PB. recorded statements of PWs under section 161, Cr.P.C. arrested the accused and after completion of investigation submitted challan in the learned trial Court.

7.           The accused was examined under section 342, Cr.P.C., whereby he opted not to appear as a witness under section 340(2), Cr.P.C. however produced certain documents in order to prove his innocence.

8.           After completion of trial, the accused was convicted and sentenced as mentioned above.

9.           Learned counsel for the appellant, inter alia, contends that the accused is innocent; he has not committed any offence; prosecution has not produced any legal and cogent evidence; police has not recovered any document from his possession; there are material contradictions in the statements of prosecution witnesses; he has remained in prison for considerable time; impugned judgment is erroneous; he has no previous criminal history; the appellant is liable to be acquitted from all the charges and is entitled to be released in the instant case.

10.         Learned counsel for the complainant contends that prosecution has produced sufficient incriminating evidence; it is admitted that the accused has returned a sum of Rs.300,000/- to the complainant; learned trial Court has not given any plausible reason for awarding lesser punishment to the accused, on the basis of evidence produced by the prosecution/complainant, maximum sentence provided in sections 18/22, E.O., 1979, be awarded to the accused in the interest of justice.

11.         Learned Assistant Attorney General supported the contentions of learned counsel for the complainant.

12.         Arguments heard, record perused.

13.         Incident was occurred in the year 2009, whereas FIR has been registered on 19.08.2014; there is no plausible reason for reporting the matter to FIA authorities and registration of case after the delay of about five (05) years.

14.         It is also admitted that complainant submitted two applications for registration of FIA. After conducting the inquiry, the allegations levelled by complainant were found incorrect and FIA authorities refused to register case against the appellant/accused.

15.         Writ petition was filed by the accused against the illegal harassment of FIA authorities. In the comments filed by FIA authorities in the Hon’ble Lahore High Court, Rawalpindi Bench, Rawalpindi it is categorically mentioned that:

“During inquiries the contradiction of claim of both the complainants, has been found, hence the E.O. with the approval of Competent Authority the inquiry at FIA AHTC stands closed since 13.05.2013.”

Certified copies of the writ petition and the comments filed by FIA authorities are Exh.DA/1-9.

16.         PWs have also admitted in their statements that earlier two applications were filed before the FIA authorities for registration of case, the case was not registered after conducting inquiry by the FIA and on the third application instant FIR has been registered. Complainant has concealed the fact of filing of two applications earlier and non- registration of case by FIA authorities in his application dated 24.01.2014, Exh.PA.

17.         It has also not been clarified in the evidence that why no FIR was registered on the two applications filed by the complainant before the FIA authorities and upon whose direction a fresh application was filed on 24.01.2014 (Exh.PA) after about 05 years of the occurrence, that too after submitting the stance of FIA in writing in Hon’ble Lahore High Court, Rawalpindi Bench, Rawalpindi that during the inquiries the contradiction of claims of both the complainants, have been found and Inquiry Officer with the approval of Competent Authority the inquiry at FIA AHTC stands closed since 13.05.2013. So how after giving written comments in the Hon’ble Lahore High Court, Rawalpindi Bench, Rawalpindi, FIA authorities can initiate fresh inquiry and register the case after the lapse of 05 years.

18.         It is mentioned in the statement of PW-1/complainant that first amount of Rs.100,000/- along with passport was handed over to the appellant/accused in his house on 21.07.2009, in presence of Javed and Fida. After one month again the complainant paid Rs.100,000/- to accused in the house of Javed Iqbal and again Rs.200,000/- were paid to the accused in the house of Javed Iqbal. Thereafter, Rs.200,000/- were further paid in the house of Javed Iqbal. But Javed Iqbal, who is an independent person, has not been produced as witness of transactions/payments made by complainant to the appellant/accused. Only real brother of complainant has been produced in order to support the payments made by complainant to the accused in his village.

19.         PW-2 has not given the detail of the payment of earlier Rs.600,000/- allegedly paid to the accused within a period w.e.f July to September 2009 in his village. PW-2 has also not mentioned the name of Javed Iqbal in whose presence an amount of Rs.600,000/- was paid to the accused.

20.         PW-3 Mehboob Hussain is also not an independent witness; he has stated during the cross-examination that Ulfat Hussain (complainant) is his maternal cousin and brother-in-law.

21.         Another important fact of the case is that no recovery has been effected from possession of the appellant/accused, FIA/IO, has neither recovered any cash amount allegedly paid to the accused nor any other document/instrument which was allegedly used for affixing visa etc. I.O. during the investigation did not take any material in possession to establish the said offences.

22.         Allegedly the appellant/accused obtained money for sending PW-2/Fida Hussain to Italy but obtained visa of Malaysia; there is no allegation that visa of Malaysia was fake but surprisingly, passport of PW-2 containing visa of Malaysia has also not been taken into possession by the FIA/I.O. and has not been produced as evidence in the case. In absence of passport, visa or related documents it cannot be concluded that the prosecution established any case of offences under E.O., 1979.

23.         No source/money trail of an amount of Rs. 11,50,000/- allegedly paid to accused has been produced in the evidence, that from where the complainant obtained such a huge amount of Rs.600,000/- and Rs.550,000/-whether he obtained this amount from some private persons or withdrew from the bank etc. No independent evidence of the transactions has been produced.

24.         In view of the above, coupled with the other above mentioned reasons, I hold that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt. There are so many defects and contradictions in the prosecution case/evidence; thus, the prosecution case appears to be doubtful and benefit of the same should be extended in favour of the appellant/accused as of right as opposed to concession. In this regard principles/laws have been laid down by the Hon’ble Supreme Court of Pakistan in following reported cases:

i.     In a case titled as “Muhammad Zaman v. The State and others” (2014 SCMR 749) it is held that:

“Even a single doubt created in the prosecution case which was reasonable would warrant the acquittal of the appellant.”

ii.    In a case titled as “Muhammad Aslam v. The State” (2011 SCMR 820), wherein it is held that:

“It is well settled legal principle regarding dispensation of justice in criminal case that if any reasonable doubt is created in the case of the prosecution then its benefit is to be extended to the accused party”.

iii.    In the case titled as “Tariq Pervez v. The State” (1995 SCMR 1345), it was observed as under:

“It is settled law that it is not necessary that there should many circumstances creating doubts. If there is a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right“.

25.         For the above stated reasons, I hold that prosecution has failed to prove its case against the appellant/accused, therefore, while extending the benefit of doubt in favour of the appellant, criminal appeal is allowed, criminal revision is dismissed and the impugned judgment dated 03.08.2021, passed by learned Special Judge Central, Islamabad is set aside, the appellant is acquitted from the charge, he is in the custody he be released forthwith if not required in any other case.

Appeal allowed