Erum Sajad Gull, J.:- The instant appeal has been filed by the appellant against the judgment dated 29.7.2015 passed by the learned Judge Special Court (Central), Faisalabad whereby the appellant was tried in case FIR No.46 dated 18.2.2011 registered at Police Station FIA, Faisalabad under sections 17 and 22 of the Emigration Ordinance, 1979. The appellant was convicted and sentenced as under:- "Convicted U/S 17 of the Emigration Ordinance, 1979 for the offence committed by him as narrated above and is sentenced to undergo Rigorous Imprisonment for a period of 05-Years and fine of Rs.1,00,000/-. In case of default in payment of fine, the convict shall undergo 06-Months simple imprisonment. Ghulam Shabbir is also held guilty and convicted U/S 22 of Emigration Ordinance, 1979 for the offence committed by him as mentioned above and is sentenced to undergo Rigorous Imprisonment for a period of 07-Years and fine of Rs.100,000/-. In case of default of payment of fine, the convict shall undergo further simple imprisonment for a period of 06-Months. All the sentences awarded to the convict in this case shall run concurrently."
2. The brief facts of the case as narrated in the FIR were reiterated by the complainant Zubair Akhtar (PW.1) in his statement before the learned trial court are reproduced as under:- "In the year 2006, Ghulam Shabbir accused visited me at the death of my sister at my residence.
Accused is my close relative. The accused told me that he had already settled his three sons and son-in-law in abroad and offered me to send my brother Waqas Akhtar Badal to England and demanded Rs.8-Lacs. Subsequently on 05.01.2008 I paid Rs.1,75,000/- in my house to accused Ghulam Shabbir in presence of witnesses namely Fakhar Abbas and Mushtaq Hussain Shah. On 03.12.2008 I further transferred Rs.50,000/-in the account of accused Ghulam Shabbir. On 14.07.2008 I further transferred Rs.1,75,000/- in the account of the accused. I also handed over my brother's Passport to the accused. After payment we asked accused for our work. Accused handed over documents of study visa to my brother Waqas Akhtar Badal which were found fake on verification.
Accused also promised us to send my brother abroad for the purpose of employment but he cheated and handed over fake documents of study visa. Accused neither sent my brother abroad nor returned the amount. Accused issued a cheque of Rs.4-lacs in favour of my father which was not honored by the Bank. My father got registered case in the Punjab Police against the accused. I moved application Exh.PA before the Director FIA, Lahore which bears my thumb impression and signatures at point Exh.PA/1."
3. After registration of the case, the police proceeded with the investigation and on completion of the same, report under section 173 Cr.P.C. was submitted in the learned trial court and the learned trial court after observing all the legal formalities framed the charge against the appellant to which he pleaded not guilty thereafter the trial commenced.
4. In order to prove its case, the prosecution examined six witnesses. Zubair Akhtar (PW1), Syed Tafakhar Abbas (PW-2) Syed Mushtaq Hussain (PW-3), Muhammad Zubair Ashraf, S.I FIA Islamabad (PW-4), Nasir Mehmood Awan, Inspector FIA, Lahore (PW-5) and Muhammad Javed Malik, Sub-Inspector (Retd) FIA, Faisalabad (PW-6).The learned DDPP gave up PW SHO Umar Farooaq, Waqas Akhtar and Jameel Akhtar being unnecessary and closed the prosecution evidence.
5. After recording the prosecution evidence, the statement of the appellant was recorded under section 342 Cr.P.C. in which he refuted all the allegations levelled against him. In answer to the question as to why the case against him and why the prosecution witnesses had deposed against him, the appellant replied as under:- "The complainant's father is my real cousin and the complainant is a greedy person who wants to grab my property and money. Complainant is suni's by faith while we are Shia. My son Imram disagree to make wedlock with the sister of the complainant.
The disputed cheque pertaining to Jamil Akhtar who is already got registered the case at Chakwal Police while nothing was sent by the latest complainant."
The appellant produced Syed Naseer Hussain Sabazwari (DW-1), Sanwal Khan (DW-2), Syed Jafar Hussain Shah Sabazwari (DW-3), Malik Hamid Nawaz (DW-4) and Muhammad Ashraf (DW-5) and closed his defence evidence while tendering Receipt dated 16.1.2010 (Exh.DC), Letter from HBL Kalarkahar (Exh.DD), Report under Section 173 Cr.P.C in Case FIR No.147/10 (Exh.DE) with copy of order dated 16.9.2013 (Exh.DE/1), copy of FIR No.147/10 (Exh.DE/2), Affidavit of Syed Fakhar Abbas (Exh.DF), copy of Cheque with dis-honour slip (Mark-DA) and Signature Card (Mark-DB). Accused did not opt to appear as his own witness under Section 340(2) Cr.P.C.
6. After conclusion of the trial and hearing both the sides, the learned trial Court convicted and sentenced the appellant.
7. Learned counsel for the appellant has contended that:- (i) the judgment of the trial court dated 29.07.2015 is against law and facts hence, is liable to be set-aside;
(ii) it is submitted that the story of the prosecution is improbable and not believable;
(iii) it is further submitted that prosecution has failed to prove its case against the appellant beyond shadow of doubt and the learned trial court erred in law and facts by convicting the appellant;
(iv) and lastly submitted for the acceptance of the appeal of the appellant;
8. On the other hand, learned Standing Counsel and the counsel for the complainant have vehemently opposed the appeal and submitted that:-
(i) The prosecution has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the present appeal.
9. Arguments heard. Record perused.
10. According to the prosecution version the allegation against the appellant is that he defrauded Waqas Akhtar, brother of complainant by portraying that he would send him to England for employment and after receiving four lacs of rupees in presence of witnesses neither sent Waqas Akhtar abroad nor returned the money. There is nothing on record to prove that the appellant was an Overseas Employment Promoter or he violated any provisions of the Emigration Ordinance or of Rules. Though the appellant was on remand but no fake documents relating to emigration or any other instrument to be used for that purpose was recovered from him, even no Passport was recovered from him to establish the allegations levelled against him. From perusal of the FIR and evidence collected by the prosecution the offences under Sections 17 and 22 of The Emigration Ordinance, 1979 are not made out. Section 17 of The Emigration Ordinance, 1979 is reproduced as under:- "Unlawful emigration, etc. (1) Whenever, except in conformity with the provisions of this Ordinance and the rules, emigrates or departs or attempt to emigrate or depart shall be punishable with imprisonment for a term which may be extended o five years, or with fine, or with both.
(2) Whoever, except in conformity with the provisions of this Ordinance or of the rules,
(a) makes, or attempts to make any agreement with any person purporting to bind that person, or any other person, to emigrate or depart; or
(b) causes or assist or attempts to cause or assist, any person to emigrate or depart or to attempt to emigrate or depart or to leave any place for the purpose of emigrating or departing; or
(c) causes any person engaged, assisted or recruited by him, after grant of the licence referred to in section 12, to depart without appearing before the Protector of Emigrants as required by section 15 shall be punishable;
(i) for a first offence, with imprisonment for a term which may extend to five years, or with fine, or with both ; and
(ii) for a second or subsequent offence with imprisonment for a term which may extend to seven years, or with fine, or with both.
(3) When, in the course of any proceeding in connection with emigration in which an Overseas Employment Promoter is concerned, a breach of the provisions of this Ordinance or of the rules is committed, such person shall be liable to the punishment; provided by subsection (2) unless he proves that he was not responsible for and could not have prevented the commission of the breach.
(4) Whoever, in contravention of the provisions of section 9, recruits a citizen of Pakistan or holds an interview or examination or issues an advertisement for such recruitment, and the editor, printer and publisher of a newspaper in which such advertisement is published, shall be liable to the punishment provided by subsection (2).
Section 22 of The Emigration Ordinance, 1979 is reproduced as under:- "Receiving money, etc. for providing foreign employment. Whoever, for providing or securing or on the pretext of providing or securing, to or for any person employment in any country; beyond the limits of Pakistan. (a) being an overseas employment promoter, charges any fee in addition to the prescribed amount, or (b) not being such a promoter, demands or receives, or attempts to receive, for himself or for any other valuable thing shall be punishable with imprisonment for a term which may extend to fourteen years, or with fine or with both."
11. The alleged effectee Waqas Akhtar was never produced by the prosecution, even the alleged amount of Rs.4,00,000/- being handed over to the appellant in presence of witnesses Tafakhar Abbas (PW-2) and Syed Mushtaq Hussain (PW-3) is not established. Both these witnesses in their examinations-in-chief stated that they witnessed only Rs.1,75,000/- being handed over.
There is a serious contradiction in the statements of these two witnesses as to who handed over the money to whom because Tafakhar Abbas (PW-2) stated that complainant Zubair handed over the said money to the complainant while Syed Mushtaq Hussain (PW-3) stated that father of the complainant, Malik Jamil Akhtar handed over the money to the appellant.
12. Regarding the allegation against the appellant that he received Rs.4,00,000/- for sending the brother of the complainant abroad a separate FIR No.147 dated 1.6.2010 registered under Section 489-F PPC at Police Station Kalarkahar has been lodged in which the complainant is Jamil Akhtar, father of the present complainant Zubair Akhtar, as the cheque of Rs.4,00,000/- has been issued in favour of Jamil Akhtar. The said cheque has been exhibited as Ex. DE. Even Jamil Akhtar was not produced by the prosecution, considering he was a very important witness to establish the prosecution case. On perusal of the record it is evident that the prosecution version is not coherent and the most important witnesses have been discarded creating a serious doubt on the story set up by the prosecution.
13. As observed above the prosecution has failed to prove its case beyond reasonable doubt.
Conviction and sentences on such unreliable, disjointed evidence cannot be upheld.
14. The Honourable Supreme Court has held in case titled as "Muhammad Zaman vs. The State and others" (2014 SCM R 749) that even a single doubt created in the prosecution case which was reasonable would warrant the acquittal of the appellant.
15. For the foregoing reasons, the instant appeal filed by the appellant is accepted. The conviction and sentence awarded by the learned Judge Special Court (Central), Faisalabad vide judgment dated 29.7.2015 is hereby set aside. Appellant is directed to be acquitted from the charge in case FIR No.46 dated 18.2.2011 registered at Police Station FIA, Faisalabad under sections 17 and 22 of the Emigration Ordinance, 1979.