Appellant Muhammad Tahir was tried in case FIR No. 7/2002 dated 12.2.2002 for the offence under Sections 17/22 of Emigration Ordinance, 1979 registered at Police Station FIA, Faisalabad by the Special Judge (Central) Faisalabad, who vide judgment dated 23.7.2003 convicted the appellant under Sections 17/22 of Emigration Ordinance, 1979 and sentenced him to two years imprisonment under Section 17 of the ibid Ordinance and four years under Section 22 of the said Ordinance. He. was also directed to pay Rs. 7,00,000/- or in default whereof to further undergo one year's R.I. Both the sentences were ordered to run concurrently. Benefit of Section 382-B Cr.P.C. was also extended in favour of the appellant.
Calling in question the impugned judgment the appellant filed Crl, Appeal No. 1572/2003 while the complainant has filed Crl. Rev. No. 909/2003 seeking enhancement of sentence awarded to the appellant by the trial Court. Both these matters are disposed of together by this judgment.
2. Briefly the prosecution story as narrated in the FIR lodged by Rana Muhammad Ashfaq Ali complainant PW.1 is that on the information that Muhammad Tahir appellant and Muhammad Akbar son of Muhammad Yousaf use to send people abroad and if complainant pays Rs.
9,00,000/- his son namely Muhammad Tariq would be sent to Canada. Allegedly, on 5th of February, 1999 Muhammad Tahir received Rs. 1,50,000/- from the complainant for the preparation of relevant traveling documents and promised that son of the complainant would be sent to Canada within three weeks. In the middle of March appellant and his co-accused Muhammad Akbar again met the complainant and demand further amount of Rs. 2,00,000/- which was paid to them in the presence of witnesses namely Muhammad Tahir and Muhammad Tayyab. At the end of April 1999 accused took Muhammad Tariq son of the complainant to Karachi from where he was sent to Kenia. Later on accused persons received further amount of Rs. 3,00,000/- from the complainant saying that they would receive the remaining amount when the complainant would receive the telephone call from his son from Canada. For 20/22 days the complainant heard nothing about his son who returned to Faisalabad all of a sudden and told that he was sent to Kenia from where he had come back, The complainant contacted the accused and told them that they had committed fraud with him and his money be returned else he would initiate legal proceedings. Thereupon Muhammad Akbar accused issued cheque amounting to Rs. 6,50,000/- which was dishonoured by the bank, hence the instant case.
3. The Investigating Agency after complying with legal formalities submitted challan before the trial Court where prosecution produced six witnesses including Rana Ashfaq Ahmad PW.1 (complainant), and Muhammad Tayyab PW.2. the crux of the statements of these witnesses is that appellant introduced his co-accused Muhammad Akbar who could arrange for sending Muhammad Tariq abroad for employment. Statedly, the appellant in three instalments had received Rs. 6,50,000/- from the complainant in the presence of witnesses. They also deposed with regard to the issuance of Cheque amounting to Rs. 6,50,000/- by Muhammad Akbar co-accused which was not honoured by the Bank. Prosecution also produced Muhammad Tariq PW. 3 the, intending emigrant, who deposed that co-accused of the appellant namely Muhammad Akbar took him to Karachi from where he was sent to Kenia along with one Ghulam Haider and on coming to know that he had been defrauded, came back to Pakistan. The rest of the witnesses are of formal, in nature.
4. Trial Court also examined appellant under Section 342 Cr.P.C. The appellant while answering to the question, why this case against you and why the PWs made statement against you? replied as under: "I have been roped in this case due to enmity of Rana Ashfaq Ali Khan who arranged marriage of my cousin's sister Tahira daughter of Muhammad Hanif with Rana Qadeer in the year 1998. This marriage was dissolved when Rana Qadeer was then residing in America. The marriage was solemnized telephonically because Rana Qadeer was in America and Mst. Tahira was in Pakistan.
Due to dissolution of this marriage relations between my family got strained with the family of Rana Ashfaq Ali Khan. The story was fabricated against me. Muhammad Tariq PW in fact had gone to Cyprus and England before 1999. He was deported. He against went abroad in 2001. Rana Ashfaq Ali Khan had business relations with Muhammad Akbar (P.0) and Tahir Ashfaq son of Ashfaq Ali Khan.
Tahir Ashfaq was employed in Gateway, Islamabad during those days. Muhammad Tariq P.W went to Kenia of his own accord with Ghulam Haider Tanoli. His departure had no concer with me. I had no connection with Ghulam Haider Tanoli too. Tahir Ashfaq was employed in Gateway. He wanted to contract love marriage in 1997. Ashfaq Ali Khan was annoyed with Tahir Ashfaq, due to this reason Shafique paternal uncle of Tahir Ashfaq and real cousin of Tahir accused was helping Tahir Ashfaq. Rana Ashfaq Ali Khan suspected that Rana Shafique was helping Tahir Ashfaq at the instance of Tahir accused and therefore, too complainant Rana Ashfaq nursed grudge against Tahir accused which matured into enmity culminating into false implication of Tahir accused in addition to the aforesaid incident of divorce."
Appellant did not make any statement under Section 340(2) Cr.P.C. however he produced Muhammad Shafiq DW.1 and Nadeem-ur-Rehman DW.2 in his defence. The crux of the statements of these witnesses is that appellant had been falsely involved in this case.
5. Trial Court, after appraisal of evidence available on record, vide judgment dated 23.7.2003, convicted and sentenced the appellant as narrated earlier.
6. Learned counsel for the appellant while challenging the legality of impugned judgment, argued that appellant was falsely involved in this case because of some family dispute and that appellant never received any amount from the complainant party on the pretext of sending Muhammad Tariq PW. 3 abroad for employment. Learned counsel further argued that in fact amount was received by Muhammad Akbar co-accused who also took Muhammad Tariq, intending emigrant to Karachi from where he was further sent to Kenia along with one Ghulam Adder. Learned counsel argued that during the investigation nothing was recovered from the appellant and the cheque qua the disputed amount was issued by Muhammad Akbar co-accused which was not honoured by Bank and that in the circumstances appellant could not be saddled with the liability of commission of offence falling under Sections 17/22 of Emigration Ordinance 1997. Conversely, learned counsel for the complainant as well as the State while supporting the impugned judgment vehemently opposed the arguments made on behalf of the appellant.
7. After hearing the learned counsel for the parties and perusing the record, I have observed that precise allegation against the appellant is that he being a relative of the complainant party introduced with them his co-accused Muhammad Akbar who could make arrangements for sending Muhammad Tariq (PW.3) abroad for employment and under the garb of said pretext had received Rs. 6,50,000/- from the complainant party. Before the trial Court Rana Muhammad Ashfaq PW.1 (complainant) father of Muhammad Tariq, the intending emigrant and Muhammad Tayyab PW.2 have specifically deposed that Rs 650,000/- were received by Muhammad Tahir appellant on the pretext of making arrangements for sending Muhammad Tariq abroad for employment. They also deposed with regard to the preparation of traveling documents i.e. Passport, by the appellant and his co-accused and delivery of the same to the complainant lateron. Statements of these witnesses further reveal that the cheque qua the disputed amount issued by the co-accused was handed over to them by the appellant and the said cheque was not dishonoured by the Bank.
Statement of Muhammad Tariq PW.3 is to the effect that appellant and his co-accused Muhammad Akbar made promise to send him abroad for employment and later on after receiving money, the co-accused of the appellant took him to Karachi from where he was sent to Kenia along with one Ghulam Haider but later on he came back to Pakistan on coming to know that he had been defrauded.
A careful analysis of the statements of these witnesses reveals that precise allegation against the appellant is that of introducing his co-accused with the complainant party who could make arrangements for sending Muhammad Tariq abroad and thereafter had received amount of Rs.
650,000/- from the complainant. Since the appellant and his co-accused failed to do the needful and upon the repeated demand of complainant party, appellant handed over one cheque of the said amount issued by the co-accused to the complainant but the said cheque was dishonoured by the Bank. It is not clear from the record as to whether appellant was the beneficiary or not but the act of abetting the offence qua the appellant stands established from the circumstances of this case. In this backdrop of the matter I am of the view that trial Court while awarding sentence to the appellant has taken a little bit harsh view and in the circumstances suffice it would meet the ends of justice if a lenient view is taken qua the quantum of sentence of the appellant. Accordingly, while maintaining his conviction sentence of imprisonment of the appellant is reduced to the period already undergone by him. Sentence of fine is also reduced to Rs. 1,00,000/- (Rupees one lac) or in default whereof he shall further undergo six months R.I. Appellant who on bail is directed to deposit the said fine within sixty days else he would be taken into custody to serve out the remaining portion of his sentence. With this modification in the impugned judgment the instant appeal is other dismissed.
For the reasons discussed above, Crl. Rev. 909/2003 seeking enhancement of sentence having no force stands dismissed.