' FAROOQ ALI CHANNA , J.---The appellant has filed this criminal appeal against the judgment dated 29-11-2011, passed by Special Judge (Central-II), Karachi in Case No,146 of 2011, arising out of F.I.R.
No,136/2011, Police Station, FIA A.H.T.C, Karachi, convicting the appellant under section 18(a) of Emigration Ordinance 1979, sentencing him to suffer R.I for 7 years with fine of Rs,5,00,000 (Five Lacs) in default thereof to suffer S.-I. For 2 years more, under section 22(b) of Emigration Ordinance, 1979 sentencing him to suffer R.I for 10 years with fine of Rs,10,00,000 (Ten Lacs), in default thereof to suffer S.I. For 3 years more and under section 6(1)(g) of Passports Act, 1974 sentencing him to suffer R.I for 2 years. All the sentences were ordered to run concurrently with benefit under section 382-B, Cr.P.C. It was further ordered that if the fine amount is realized same is to be paid to P.Ws.
Muhammad Khalid, Muhammad Tahir, Abu Bakar, Muhammad Zafar and Ghulam Yaseen @ Rs,2,50,000 each totalling Rs,12,50,000, the rest of amount was ordered to be deposited as penalty in the government treasury a per rules.
2. Briefly the facts of the prosecution case are that consequent upon receipt of Raid Report dated 8-7-2011 of Mr. Nasrullah Gondal, S.H.O, F.I.A, A.H.T.C, Karachi through the office of the Additional Director, F.I.A, A.H.T.C, Karachi, it transpired that on 7-7-2011, S.H.O received a credible information to the effect that one Muhammad Sikandar Mehmood living in the area of Gulshan-e-Iqbal, Karachi is indulging in sending people to Saudi Arabia and is available in the area of Safari Park, Makro Cash and Carry Centre, Gulshan-e-Iqbal with passports and other documents for delivery. As such, Mr. Nasrullah Gondal, Assistant Director/ S.H.O of FIA A.H.T.C, Karachi along with Syed Hassan Askari Jafri, Inspector, S.I. Muhammad Arif Baloch and S.I. Aijaz Ali Khan, immediately rushed towards the pointed place and on the pointation of informant, they apprehended a person and recovered a plastic shopper/coloured bag from his possession in presence of witnesses Abdul Razaq and S.I.
Ijaz Ali Khan. The bag recovered from appellant has. Contained Pakistani Passports duly affixed with clearance/Registration stamps of Protector of Emigrants, Lahore and photocopies of UAE Employment Visas, E-Tickets of P.I.A. The appellant failed to give plausible account/lawful authority of possessing the same, as such the provisions of section 6(1)(g), Passports Act, 1974 were attracted. Hence, the S.H.O arrested the appellant and prepared memo of recovery and brought the appellant and recovered articles at circle office.
3. It is further case of the prosecution that during interrogation appellant Muhammad Sikandar Mehmood disclosed that about 3 years prior to the incident he came into contract with Ghayas Amin, who was running travelling agency, he introduced the appellant with Malik Tariq and Haji Ayub, the recruiting agents, he handed over the passports of P.Ws. To Ghayas Amin, who arranged Dubai employment Visas, Protectors, Tickets and returned to deliver the same to the individuals.
The Investigating Officer sent the passports and visas to concerned authorities, who declared the Clearance/ Registration, Stamp/Signatures available in the recovered passports to be fake/forged.'
It is pertinent to mention that initially the F.I.R was lodged for offence under section 6(1)(g) of Passports Act, however after investigation the Investigating Officer, on the basis of report regarding the fake/ forged entries in passports added the section 18(a) and 22(b) of Emigration Ordinance, 1979 and after completing the investigation submitted challan.
4. The prosecution to substantiate the charge has examined Abdul Razaq, Muhammad Tahir, Muhammad Zafar, Muhammad Khalid, Abu Bakar, Ghulam Yasin, Aijaz Ali Khan, Nasrullah Gondal and Syed Hassan Askari, out of which P.Ws. 2 to 5 weie the private persons/ victims of this case, from whom as per prosecution, the appellant received the passports and amount of Rs,2,50,000 per head. The rest are the official witnesses of FIA.
5. From the evidence of P.Ws. 2 to 5 i.e, victims of the offence, it has come on record that appellant Muhammad Sikandar Mehmood in connivance with his associates Ghayas Amin and others arranged/affixed fake/forged Protectors, Clearance/ Registration and Visas on their passports for employment in Dubai. The evidence of above witnesses is supported by recovery of their passports from the possession of appellant Muhammad Sikandar Mehmood at the time of his arrest during raid, mashir of recovery Abdul Razak who is an independent witness in his evidence before the trial Court has supported the prosecution and narrated in detail the arrest of appellant and recovery of passports from his possession. His ,evidence is corroborated by the official witnesses of FIA, who arrested the appellant and recovered the passports. All the witnesses were cross-examined at length but the defence counsel has failed to shatter their evidence or to extract material contradictions to create doubt in prosecution case.
6. Learned counsel for the appellant during arguments has also failed to point out any major contradiction causing doubt in the prosecution case, he focused on some discrepancy in the timing of arrival of raiding team and preparation of mashirnama, which being minor in nature, shall not be fatal to the prosecution case. The defence theory was that the appellant was involved in this case falsely because he being incharge of Madarsa, Nafees-ulAloom, Anwar-e-Fatima at Gulshan-eIqbal, Karachi, ousted the younger brother of P.W. Muhammad Tahir from the Madrisa on account of his traits not inspiring; however, no specific precedent has been alleged. The sole defence version was that the brother of Muhammad Tahir was in love affair with a student girl, however, neither the name of girl was shown nor the appellant led evidence in support of his defence version. Even for the sake of arguments if it is presumed that P.W. Muhammad Tahir had enmity with the appellant, yet there was no reason for other 'witnesses to implicate the appellant, the said witnesses being victims/affectees of offence, seems to be natural and trustable witnesses having no enmity against the appellant, they have clearly implicated the appellant on each material particular.
7. In view of the above evidence, I am of the firm view that the prosecution has made out the case without any shadow of reasonable doubt against the appellant that the appellant having no license for sending persons abroad was depriving the persons of considerable amount on pretext of providing them employment abroad.
8. The other allegation against the appellant is that he with the connivance of his associates Ghayas Amin, Malik Tariq and Haji Ayub has arranged/affixed fake/ forged protectors, clearance/registration on the passport of prosecution witnesses Muhammad Khalid, Muhammad Tahir, Abu Bakar, Muhammad Zafar and Ghulam Yasin and provided them fake/forged visas for Dubai, however, the prosecution has failed to examine even a single witness in this respect to allege against the appellant that he in any manner was indulging in arranging or affixed the forged protectors, clearance/registration or visas for Dubai. Per prosecution the appellant handed over the passports of above named witnesses to his associates Ghayas Amin and others who arranged/got affixed fake/forged protectors, clearance/registration and visa for Dubai, the Investigating Officer in the challan sheet has also mentioned that a separate complaint/challan sheet against the appellant's associates Ghayas Amin and others will be submitted on completion of investigation.
9. The other charge of possessing the passports of prosecution witnesses is proved against the appellant, however per prosecution the witnesses had handed over the passports to appellant with their own will and wish for their employment abroad, the appellant has not misused the passports, mere innocence or bona fide possession may be a wrongful possession of the passport of any other person, however, such possession without guilty mind will not constitute the offence punishable under section 6(1)(g) of Passports Act.
10. For the reasons discussed hereinabove, while maintaining the conviction under section 22(b) of Emigration Ordinance, 1979, I acquit the appellant of charge under section 18(a) of Emigration Ordinance, 1979 and under D section 6(1)(g) of Passports Act, 1974. I also modify the impugned judgment to the extent of directions passed by the trial Court for payment of Rs,2,50,000 to each victim witnesses and Rs,2,50,000 to be deposited in government treasury if the above fine amount is realized. Howtver, the appellant has been acquitted from the charge of section 18(a) of Emigration Ordinance, as such the appellant, besides sentence, is liable to pay fine of Rs,10,00,000 under section 22(b) of Emigration Ordinance only, if the said fine amount of Rs,10,00,000 is realized, Rs,2,00,000 be paid to each P. Ws. Namely Muhammad Khalid, Muhammad Tahir, Abu Bakar, Muhammad Zafar and Ghulam Yasin, however in default thereof the appellant shall suffer S.I for one year more.
' With the above modifications in the impugned judgment the criminal appeal is dismissed.