' MIAN MUHAMMAD NAJUM-UZ-ZAMAN, J.---Appellant Malik Aziz was tried in case F.I.R. No. 134 of 1984, dated 13-8-1984 registered under sections 17/22 of the Emigration Ordinance, 1979 at Police Station FIA Passport Cell, Lahore by the Special Judge (Central), Lahore who vide judgment, dated 26-8-2000 convicted the appellant under section 22(b) of the ibid Ordinance and sentenced him to three years' R.I., with a fine of Rs.50,000 or in default whereof to further undergo three months' R.I.
Appellant was also extended the benefit of section 382-B, Cr.P.C. Hence the instance appeal challenging the conviction and sentence.
2. Succinctly the facts of the prosecution case as narrated in F.I.R. Exh.PC are that in the year 1980 Malik Abdul Aziz appellant got a total sum of Rs.1,15,000 at the rate of Rs.23,000 each from Latif, Sher Muhammad, Bashir Ahmad, Habib and Ramzan on the pretext of sending them to Sharjah for employment. The said commitment was never honoured nor the amount was returned.
' After formal investigation challan against the appellant was submitted on 22-11-1993 and charge was framed on 2-2-1994. Thereafter appellant absconded and proceeding under section 512, Cr.P.C. Were initiated against him. Later on appellant was arrested and challan was restored and statements of prosecution witnesses were recorded.
3. To prove the charge against the appellant prosecution produced six witnesses namely Fazeelat Begum P.W.1, Bashir Ahmad P.W.2., Muhammad Latif P.W.3, Sher Muhammad P.W.4, Muhammad Hanif P.W.5 (Investigating Officer) and Muhammad Ishaq Sindhu, DSP CIA P.W.6 who entered formal F.I.R.
4. Trial Court also examined the appellant/under section 342, Cr.P.C. Who while denying the charges pleaded innocence. Appellant also made statement on Oath under section 340(2), Cr.P.C.
Wherein he while supporting his defence plea stated that he had been falsely involved in this case at the behest of Mst. Fazeelat Begum P.W.1. Appellant also produced Khizar Hameed D. W.1 and Sohail Ahmad D.W.2. The crux of the statement of these witnesses is that one Malik Muhammad brother of the appellant had a recruiting agency who had hired Mst. Fazeelat Begum complainant (P.W.1) as his agent who used to engage persons for going abroad and the present case had been got registered mala fidely by said Mst. Fazeelat Begum P.W.1. Appellant also produced in defence certified copies of certain documents i.e. F.I.R. No.686, dated 27-10-1993., F.I.R. No. 410, dated 28-6- 1993, F.I.R. No. 625, dated 15-6-1997 and F.I.R. 734, dated 20-10-1996, all registered at Police Station Model Town, Gujranwala and closed the defence.
5. Trial Court after appraisal of evidence available on record vide judgment, dated 26-8-2000 convicted and sentenced the appellant as narrated earlier.
6. Heard. File perused.
7. Bare perusal of the statements of intending emigrants namely Bashir Ahmad P.W.2. Muhammad Latif P.W.3 and Sher Muhammad P.W.4 reveals that it was Mst. Fazeelat Begum P.W.1 (complainant) who had informed that Malik Aziz Ahmad is doing the business of sending the people abroad and if any person intends to go aboard he would do the needful. On this information the said witnesses paid Rs.39000 along with their Passports as first instalment to Mst. Fazeelat Begum and in their presence the said amount and documents were handed over to the appellant by the said lady. The second instalment i.e. Rs.76000 was paid to Mst. Fazeelat Begum. Statedly, the said amount was handed over by her to the appellant but admittedly at that time none of the witness was present. It is also admitted fact that the disputed amount along with the documents in question were returned by Mst. Fazeelat Begum P.W.1 to the intending emigrants and none of them made any complaint to the FIA authorities for initiating proceedings against the appellant under the Emigration Ordinance. On the other hand, it is established from the defence evidence that brother of the appellant namely Malik Muhammad was running a recruiting agency and Mst. Fazeelat Begum P.W.12 was hired by him as his agent.
The intending emigrants were compensated by Mst. Fazeelat Begum P.W.1, the amount along with travelling documents were returned to them by the said lady. How Mst. Fazeelat Begum P.W.1 received back the travelling documents and money from the appellant is shrouded in mystery. The evidence of intending emigrants reveals that they had paid the amount to the complainant (Mst.
Fazeelat Begum P.W.1) and not to the appellant. Statedly at the time of the payment of first instalment within their view the amount and documents were handed over to the appellant by the complainant of this case but at the time the second instalment was paid to Mst. Fazeelat Begum the appellant was not present. Mst. Fazeelat Begum P.W.1 as stands established from the defence evidence had worked with the brother of appellant as an agent for the recruiting agency. In the circumstances of this case the possibility that the intending emigrants were defrauded by the appellant with the connivance of complainant of this case could not be ruled out.
' The amount in question along with documents has already been returned to the intending emigrants and none of them admittedly approached the FIA authorities for any legal action against the appellant. Appellant is facing the agony of this case for the last twenty years. Though he remained absconder during the trial for a certain paid but in the light of the said circumstances, I am persuaded to take a lenient view about the quantum of sentence of the appellant.
Accordingly while dismissing the instant appeal, the sentence of imprisonment of the appellant is reduced to the period already undergone by him. His sentence of fine is also reduced to Rs.25,000 or in default of payment of the same he shall suffer six months' S.-I. Appellant is directed to deposit the fine within thirty days else he would be taken into custody to serve out the period of imprisonment for non-payment of fine.