Rana Talib Hussain was tried under Section 22 of the Immigration Ordinance 1979 by Mr. Irshad Ullah Khan Sial, learned Special Judge Central, Multan. The trial Court vide its judgment dated 1.7.2005 sentenced the appellant to undergo four years R.I. and fine of Rs, 50,000/, which shall be paid to the complainant, if realized. The appellant assailed the impugned judgment by means of this appeal.
2. Brief facts of the case as narrated in Ex. PA by Abdul Majeed complainant are that three years prior to filing of the complaint dated 05.6.2002 he paid Rs,3,60,000/- to the appellant who has demanded the same for getting visas for Muhammad Arshad and Talib Hussain (his nephews) to send them to Dubai. The said amount was said to have been paid in the presence of Naseer Ahmad (given up PW) and Ghulam Qadir PW-3. After some time, Muhammad Arshad 'and Talib Hussain CW-1 and CW-2 were sent to Dubai against such visas arranged by the appellant. Both of them remained working as laborer there. It is also alleged that during their stay in Dubai, the relatives o` the appellant kept Muhammad Arshad and Talib Hussain under confinement and whatever they earned, the relatives of the appellant received from them. It is further alleged that Muhammad Arshad and Talib Hussain earned Rs, 85,000/- in Dubai and out of which Rs, 20,000/- were still to be paid to them by the relatives of the appellant. On the basis of Ex.PA the formal FIR No, 85/2004 was registered on the basis of the report of the inquiry report.
3. The alleged occurrence took place in the year 1999 and the matter was firstly reported through Ex. PA on 5.6.2002 to the Director FIA, Multan by Abdul Majeed complainant/PW-1 who deputed Ejaz Ahmad SI PW-4 as Inquiry Officer who completed preliminary inquiry and recommended the case for registration of a criminal case on the basis of inquiry report Ex.PC dated 29.5.2004 and the FIR No, 85/2004 Ex.PB was recorded by PW-2 Ghulam Nabi Khan Inspector on the basis of report Ex. PC on 29.5.2004. After lodging the FIR, investigation of this case was conducted by the same Officer/PW-4 who submitted report under Section 173 Cr.P.C. against the appellant to face trial.
4. After submission of the challan, charge was framed and the appellant while denying the allegations ibid opted to face trial.
5. The prosecution rested its case on the evidence of Abdul Majeed complainant/PW-1, Ghulam Qadir PW-3 (as a witness' of ocular account) , PW-4 I.O. and PW-2 Ghulam Nabi Inspector who recorded the FIR. In support of the ocular account, the prosecution had produced two witnesses i,e, PW-1 and PW-3 who reiterated the contents of the FIR stated that in the year 1999, the appellant instigated him to get visas for their nephews namely, Muhammad Arshad CW-1 and Talib Hussain CW-2 for Dubai and on his demand Rs, 3,60,000/- were given to him in the manner that Rs,60,000/- were paid in cash and against Rs, 3,00,000/-, PW-1 transferred his land of one acre in the name of the appellant. After some times, both nephews (CW-1 and CW-2), were sent to Dubai where they were received by the relatives of the appellant. Both CW-1 and CW-2 remained in Dubai under the employment for one year but the relatives of the appellant detained them during that period.
Ultimately both of them were deported after serving out one month detention in the Jail of Dubai.
PW-4 Ejaz Ahmad SI stated that on the complaint Ex. PA submitted by PW-1 Abdul Majeed, inquiry of this case was entrusted to him and he after conducting an inquiry recommended the case for its registration. After the registration of the FIR, he also conducted the investigation.
6. After closing the prosecution evidence, the appellant made his statement under Section 342 Cr.P.C. in which he denied the allegations and in reply to the question as why this case against him, he replied as under:-- "This is a false case. In fact, there was dispute of "Lain Dain" between me and the complainant and I never dealt in visas or sent any person abroad to Dubai for employment. I sold my land of one acre at Rajapur Tehsil Shujabad and Abdul Majeed accompanied me to Rajapur as I had purchased one acre land from him and payment was to be made by me to Abdul Majecd with the sale money of my land which was sold to Haji Habib Ullah. During this process Abdul Majeed had talk with Habib Ullah when he came to know that nephew of Habib Ullah is working in Dubai and he made a request to Habib Ullah for arrangement of two visas for his relatives and Abdul Majeed made payment to Haji Habib Ullah which was further made by him to nephew Nazir who had been working in Dubai. Both the relatives of complainant worked under the work order of a Kafeel in Dubai for one year and in lieu of work one by them they had been paid for the whole period. After expiry of one year they left the previous Kafeel and employed with some other person but work order was not pertaining to new Kafeel, therefore, original Kafeel cancelled his work order and they were deported to Pakistan. I had a dispute of two kanals land with Abdul Majeed complainant of the case and a punchayat in Chak No, 119/10-R with Rana Ghulam Abbas and other respectable of the locality attended the punchayat and in the punchayat it was transpired by Sarpanch that there was no dispute with regard to visas between me and the complainant. The matter was resolved by punchayat and Abdul Majeed promised to give me two kanals land which he had sold to me. In the punchayat it was proved that Abdul Majeed owed some money from me nut the Sarpanch Rana Ghulam Abbas requested me to give him and Abdul Majeed gave me two kanals land. I never dealt in visa and I am illiterate man. Abdul Majeed complainant has not produced his relatives who went to Dubai and had been working there for one year and thereafter came back. Moreover, PW Ghulam Qadir is always ready to appear on behalf of Abdul Majeed in cases which are pending adjudication in Civil Court at Khanewal regarding landed property of Mst. Karam Bibi which Ghulam Qadir wanted to usurped through fake mutation."
7. After recording statement of the appellant under Section 342 Cr.P.C, and recording statements of defence witnesses i,e, Nazeer Ahmad DW-1 and Rana Ghulam Abbas DW-2, surprisingly the learned trial Court summoned two witnesses Muhammad Arshad and Talib Hussain (nephews of the complainant/PW-1) as CWs and their statements were recorded as CW-1 and CW-2 respectively.
(Obviously no question was put to the appellant regarding the evidence of the CWs).
8. Learned counsel for the appellant submits that the prosecution has failed to establish its case against the appellant by contending that there is delay of five years in lodging the FIR as the alleged occurrence was stated to have taken place in the year 1998 while the FIR was lodged on 29.5.2004; that as per complaint Ex. PA, the alleged payment of Rs, 3,60,000/- has been shown to have been made to the appellant in cash after collecting the same from the relatives but as per statement of Abdul Majeed complainant/PW-1 and that of Ghulam Qadir PW-3 before the learned trial Court, the said payment was shown to have been made in a manner that Rs, 60,000/- were paid in cash and against Rs, 3,00,000/- one acre of land belonging to the complainant/PW-1 was transferred to the appellant. The mode of the payment as alleged in Ex. PA and the report of the Inquiry Officer (PW-4) Ex. PC and the FIR Ex.PB is contradictory with the statements of both the witnesses before the learned trial Court; that he prosecution has failed to point out any date, month, time and place regarding making the alleged payment. Even the year was not mentioned in Ex.PA; that according to PW-1 and PW-3, the alleged payment was made in Pakistan while CW-1 and CW-2 stated that Rs,60,000/- were paid in cash in Dubai; that the statements of both the CWs, namely, Muhammad Arshad and Talib Hussain were recorded after making the statement of the appellant under Section 342 Cr.P.0 and Once no question was put to the appellant regarding such statements, therefore, the evidence of CW1 and CW-2 could not be read against the appellant; that the enmity of the complainant on the land dispute with the appellant has been established by producing DW-1 and DW-2 who supported the version of the appellant taken in his statement under Section 342 Cr.P.C; that both the CWs admittedly did not lodge any complaint either during their stay in Dubai or at the time of returning back to Pakistan, after reaching in their houses and till their statements recorded as CWs.
9. Conversely, the learned Deputy Attorney General submits that the appellant was found guilty during the inquiry conducted by PW-4 and the prosecution had fully established its case against the appellant beyond doubt by producing four witnesses besides two CWs. Further submits that the contentions of the learned counsel for the appellant are not confidence inspiring.
10. After considering the arguments and going through the record it is noted from the assertion of the complainant Ex.PA that the alleged amount of Rs, 3,60,000/- was to be paid three years prior to the complaint i,e, 05.6.2002 in cash before the witnesses Naseer Ahmad and Haji Ghulam Qadir but when Abdul Majeed complainant appeared as PW-1 before the learned trial Court, he stated that he paid Rs,60,000/- in cash to the appellant and the remaining amount of Rs,3,00,000/- was paid in shape of transferring his land of one acre in the name of Talib Hussain but no copy of mutation or any other revenue record was produced by him in this case to establish his version. The names of the alleged relatives of the appellant were not mentioned in Ex.PA by the complainant/PW-1 under whom Muhammad Arshad and Talib Hussain CW-1 and CW-2 remained confined in Dubai. It is further noted that neither month, date, time and place nor the year is mentioned with regard to making payment of the alleged amount. PW-3 Ghulam Qadir, who is neighbour of PW-1, has also failed to disclose the date, time and place for making the payment to the appellant by PW-1 in his presence. If such amount was paid in the manner as narrated by PW-1 and PW-3, the same could have been established from the revenue record by producing mutation certificate or copy of the record of rights or by producing any witness of the Revenue Department and the date of sanctioning mutation in favour of Talib Hussain appellant. If any record is available to the prosecution to prove its contention and the same is not produced, it would be considered that if it was produced the same would not support the prosecution version. The statement of PW-4/I.O. of the case does not reveal that such revenue record was produced before him by the complainant during the investigation and in the inquiry that is why the 1.0. did not investigate the case on these lines and his evidence as PW-4 is rightly silent on this very point. It is very strange to note that from lodging the complaint Ex.PA on 05.6.2002 till the completion of the investigation on 26.10.2004, Muhammad Arshad and Talib Hussain CW 1 and CW-2 were not produced before the I.O. who were stated to be the actual effectees especially when they were available in Pakistan in those days.
11. The main allegation against the appellant as levelled by PW1 was that he received money of Rs,3,60,000/- from him in the year 1999 for arranging visas of Dubai for Muhammad Arshad CW-1 and Talib Hussain CW-2. The other allegations were not related to him with regard to illegal confinement in Dubai by the relatives of the appellant or retaining money of Rs, 20,000/- by them of Muhammad Arshad and Talib Hussain in Dubai. As such, I would like to confine myself to the allegation levelled against the appellant for receiving payment of Rs,3,60,000/-. In order to substantiate the allegation, the prosecution was duty bound to prove the alleged payment to the appellant for the purpose specified by them and in order to prove such allegation, the prosecution would have to establish the date, time, place and mode of payment in this regard but all these facts were not given by them. The contradiction is noted in the evidence of PW-1 and PW-3, PW-4 read with Ex. PA as in Ex. PA and Ex. PC (complaint after inquiry) it was alleged that the amount of Rs, 3,60,000/- was made in cash after arranging the same from other relatives but at the time of making statement before the learned trial Court, the mode of payment was changed and both PW-1 and PW-3 stated that only Rs, 60,000/- was paid in cash and Rs,3,00,000/- were paid in the shape of transferring the land in the name of the appellant by PW-1. This contradiction cannot be ignored by saying that the same were minor in nature. CW-1 and CW-2 produced for the first time before the learned trial Court who narrated another story for making the payment of Rs, 3,60,000/- by stating that Rs, 60,000/- were paid in cash to the appellant in Dubai and the remaining amount was paid in the shape of the land. This witness also admitted in cross examination that Talib Hussain appellant was not with them when the passport were got prepared. However, their visas and passport were checked by the Immigration Department in Pakistan and Dubai and the same were found correct. He further admitted in his cross examination that during his stay in Dubai for 12 months, he did not complain to anybody. Even after returning back to Pakistan, they did not lodge any report to the Immigration Department or at the Airport. He further admitted in cross examination that they did not file any application against the appellant with the FIA or any department. They also admitted that even they did not join the inquiry conducted by the FIA and they did not submit any application till making their statements before the learned trial Court in this regard. It is noted that the statements of CW-1 and CW-2 were recorded by the learned trial Court on 17.6.2005 after more than six years of the alleged occurrence and the same were recorded after the statement of the appellant under Section 342 Cr.P.C. and nothing was put to the appellant/accused under Section 342 Cr.P.0 their statements regarding such statements. As such the same cannot be read against him. Even otherwise, both these witnesses contradicted with the statements of PW-1 and PW-3 with regard to the place where the alleged amount was paid. The basic rule of administration of justice is that no one should be punished on the basis of flimsy- and shaken evidence and or conviction the evidence of the prosecution should have confidence inspiring and unshaken. If any doubt arises, the benefit of doubt must be given to the accused. In this case tong standing delay in lodging the FIR, non-production of CW-1 and CW2 before the Inquiry Officer as well as the Investigating Officer and material contradiction in mode of payment and the alleged amount is sufficient to discard the version of the prosecution. On the other hand. the statement of the appellant made under Section 342 Cr.P.C. gave another version that he had a dispute of land with the complainant and the payment was not made by the complainant for getting visas to one Habibullah. In support of his version he produced DW-1 Nazeer Ahmad who corroborated the version of the appellant. It is well settled principle of justice that if the prosecution fails to prove its case, then the version of the accused be accepted in toto. In this case I am of the view that the prosecution has failed to prove its case beyond doubt and I have no option but to accept the statement of the appellant and by extending benefit of doubt to him, I acquit him by accepting this appeal and he is acquitted from all the charges and the sentence awarded to him vide the impugned judgment. He is on bail. He is relieved from his bail bonds.