ABDUL HAMEED BALOCH J.---- Through this judgment I intend to dispose of Criminal Appeal No. 45 of 2019, tiled by the appellant against the judgment dated 30th August, 2019 (impugned judgment) passed by learned Special Judge Emigration, Quetta, (trial court), whereby the appellant was convicted under Sections 22 (b) of the Emigration Ordinance, 1979 and sentenced to suffer three years rigorous imprisunluent and to pay fine of Rs.875,000/ (Rupees eight hundred and seventy five thousand) and in default to further suffer three months' simple imprisonment. it the amount of fine is realized, same be equally distributed amongst all the victims/ complainants.
Benefit of Section 382-B, Cr .P.C. was also extended to the appellant.
2. The prosecution case as gleaned from the Fard-e-Biyan (Ex: P/1-A) submitted by complainants Bibi Khursheed, Meena and Baneen that, the agents i.e. appellant and co-accused Hassan Ali had received Rs.700,000/- (Rupees seven hundred thousand) from each of the complainant and promised to send them to Australia and would provide them jobs there, but despite lapse of 7/8 months the accused persons failed to send them to Australia, on which the complainants demanded their money back but the accused flatly refused. With these allegations FIR No. 164 of 2014 was registered with HA Circle/Sub-Circle AHTC, Quetta.
3. After registration of FIR usual investigation was carried out and after completion thereof challan was submitted before Special Judge Emigration/ Sessions Judge, Quetta, whereafter charge was framed to which the appellant denied. At the trial prosecution in order to substantiate its charge produced as many as five witnesses. On close of prosecution side the appellant was examined under Section 342, Cr.P.C., and denied the allegations. The appellant neither recorded his statement on oath as envisaged under Section 340(2), Cr.P.C, nor produced any witness in his defence.
4. On conclusion of trial arguments were heard and thereafter , the trial court vide impugned judgment dated 30th August, 2019 convicted the appellant in the terms as mentioned in para-1 above.
5. Heard and have gone through the record of the case. The prosecution case hinges upon the contention that the appellant had received amount from the private witnesses for providing them visa for Australia, but the appellant failed to do so. The prosecution in order to substantiate the case produced PW-1 Mst. Baneen, PW-2 Bibi Khursheed, PW-3 Mst. Marzia, PW-4 Mst. Meena and PW-5 Babar Ali Inspector/ Investigating Officer. The relevant replies in cross-examination are important to dilate upon. PW-1 in cross-examination stated that her monthly earning is Rs.5000/-. She handed over the receipt of payment to FIA. She lived in a rented house, per month rent whereof is Rs.6000/-. PW-2 stated that she is living in a rented house at monthly rent of Rs.7000/-. She earned Rs.2000/- per month. She does not produce receipt of payment in court. PW-3 replied in cross-examination that at the time of payment of money her mother was accompanied her. She went by air to Islamabad. She does not remember whether she handed over air ticket to FIA or not. The witness had made dishonest improvement. PW 4 stated that her monthly was Rs 5000/- . She did not hand over ticket of departure to Islamabad to FIA.
6. The statements of the witnesses do not appeal and attract to prudent mind. The witnesses stated that they have gone to Islamabad by air but no air ticket of airline was produced. It appeared from the testimony that the earning of the witnesses were not more than Rs.5000/- to Rs.7000/- per month, while they were residing in rented house with rent more than their earnings. How they managed such huge money . The witnesses stated that the receipts of money were given to them by the accus ed, but no such receipt was produced. It is admitted fact that when a person alleged something has been done the burden lies on such person. The witnesses had not produced any document in order to prove their contention. The Investigating Officer has denied any receipt given to him by the witnesses. The relevant replies of cross-examination by PW -4 Investigating Of ficer are as under: {{URDU TEXT}}
7. PW-4 in her testimony stated that at the time of payment of money her mother was accompanied, but she was not produced in order to affirm the factua l of payment of money . The mother of the witness was the best witness, whose evidence was withheld. Under Article 129 (g) of the Qanun-e-Shahadat Order , 1984 presumption could be drawn that if the witness was produced she could not support the Prosecution case. Reliance is placed on the case of Azkar Hussain Shah v. The State through Advocate General Azad Jammu and Kashmir 2019 YLR 1470 SC (AJ&K ).
8. P.W.3 in her deposition made dishonest improvement. If a witness has made improvements in the deposition, the statement of such witness lost credibility . The standard of evidence would be required to prove the allegation that money was received for employment abroad, unless some documentary evidenc e on actual step of immigration while transacting business of oversee employment is produced. Mere receiving money for sending abroad to a person is not suf ficient evidence for commission of such an of fence.
9 Under subsection (6) of Section 24 of Emigration Ordinance, 1979 (Ordinance 1979) the Special Court shall take cognizance of, and have jurisdiction to try, an offence punishable under this Ordinance only upon a complaint in writing with prior sanction of the Federal Government. It would be relevant to reproduce subsection (6) of Section 24 Emigration Ordinance, 1979: "Section 24(6) A Special Court shall take cognizance of, and have jurisdiction to try, an offence punishable under this Ordinance only upon a complaint in writing which is accompanied by the previous sanction of the Federal Government: Provided that, in a case in which the complaint is not accompanied by such sanction, the Special Court shall, immediately on its receipt, refer the matter to the Federal Government; and if the required sanction is neither received nor refused within sixty days of the receipt of the reference by the Federal Government, such sanction shall be deemed to have been duly accorded."
10. In case of non-compliance of subsection (6) of Section 24 of the Ordinance, 1979, the Special Court shall immediately refer the matter to the Federal Government. If the sanction is not received or refused within sixty days of the receipt of reference such sanction shall be deemed to have been duly accorded. It appeared from the record that neither the prior sanction has been obtained nor the Special Court referred the matter to the Federal Government for sanction. In such circumstances the whole proceedings conducted is violation of subsection (6) of section 24 of the Ordinance, 1979. Where the law provides for doing a thing it should be done in that manner , otherwise not done at all. The prosecution is bound to follow the law and procedu re and not act in capricious and arbitrary manner . Reliance is made on the case of Mrs. Surayya Farman v. The State , 1998 PCr.LJ 958 (Lahore ). It was held therein: " ............. Admittedly , incriminating material in the nature of indicating the engagement of the petitioner in the business of overseas employment is not available on the record. The passports of the P. Ws. have been taken into possession by the F.I.A. from the custody of the witnesses to be used against the petitioner . The Investigating Officer in order to create evidence arranged the production of passports from the P. Ws. which having not recovered from the custody of the petitioner or any other person, other than the person who were issued by the concerned office could not be used as an evidence against the petitioner . Except the general statement of P. Ws, recorded by she Investigating Officer not other evidence has been brought on record to connect the petitioner with the alleged transaction. It is not known that when and in what manner the amount in question along, with the passports etc. was delivered to the petitioner and how she returned the same to the witnesses after registration of the case. The mere assertion of payment of money for employment abroad will not satisfactorily fulfill the requirement of law to bring the case within the purview of section 22 of the Emigration Ordinance, 1979. The allegation that the petitioner through breach of promise of providing service abroad failed to return the amount received by her may create a civil liability , but the use of criminal law in such matter in such manner is gross abuse of process of law. The facts and circumstances of the case, suggest that the criminal proceedings have been brought in the matter with extraneous, reasons and not to advance the criminal administration of justice. There being no chance of success of prosecution in the given facts, the ultimate conviction is not foreseen, if the proceedings would have been initiated through a proper complaint, therefore, the continuation of the proceedings of the case, the cognizance of which has been taken upon the police report and not on a complaint as provided under section 24(6) of the Emigration Ordinance, 1979, will be of no useful purpose. The alleged transaction of receiving money .for providing service abroad and failure to do the needful or return of money although contained no element of cheating or breach of trust constituting an offence under section 420/406, P.P.C. but even if the petitioner is charged for the commission of such an offence, the same is not triable by the Special Judge but the cognizance can be taken by a Magistrate. Thus, the proceedings against the petitioner under Emigration Ordinance, 1979 upon police report, being derogatory to the mandatory requirements of law of taking cognizance only on the complaint, are coram non judice."
It is settled law that the prosecution is bound to establish guilt against the accused beyond shadow of reasonable doubt by producing trustworthy , convincing evidence. If any single and slightest doubt is created, benefit of the same would go to the accused. It would be sufficient to discard the prosecution story . Reliance is placed on the case of Tariq Pervez v . The State , 1995 SCMR 1345 .
In view of the above discussion the appeal is allowed. The judgment dated 30th August, 2019 passed by learned Special Judge Emigration/ Sessions Judge, Quetta is set aside. The appellant Nadir Ali son of Nauroz Ali is acquitted of the charge in case pursuant to FIR No.164 of 2014, under Section 22(b) Emigration Ordinance, 1979, registered with FIA Circle/Sub-Circle AHTC, Quetta. He is on bail, his bail bonds stand discharged.