' The appellants, Muhammad Naeem, (ii) Tariq Mahmood, (iii) Umar Daraz and (iv) Khalid Mir were tried by the learned Special Judge (Central), Lahore, for the offences punishable under sections 17, 18 and 22 of the Emigration Ordinance, 1979.
2. The learned trial Judge vide his judgment dated 4th May, 1983 convicted Muhammad Naeem, Tariq Mahmood and Umar Daraz under section 17 (1) of the Emigration Ordinance, 1979 and sentenced each of them to two years' R. I. Khalid Mir appellant was, convicted under section 17 (2) ibid and sentenced to three years' R. I.
3. Muhammad Naeem, Tariq Mahmood and Umar Daraz have challenged their conviction and sentence through Criminal Appeal No, 195 of 1983 while Khalid Mir appellant has impugned his conviction and sentence through Criminal Appeal No, 198 of 1983. Both these appeals shall be disposed of by this judgment.
4. The prosecution case, briefly stated, is that Akhtar Zaman Inspector F. I. A. (P. W. 8) received secret information that Muhammad Naeem and Tariq Mahmood were being sent abroad on the authority of forged British passports by Khalid Mir. Consequently the Emigration staff of F. I. A. At Lahore Airport was directed to check all the British passport holders. In this manner, the F. I. A.
Emigration staff was able to apprehend Muhammad Naeem, Tariq Mahmood and Umar Daraz appellants at the Lahore Airport while they were attempting to depart on the authority of forged British Passports, viz exhibits P. W. 1/2, P. W. 1/1 and P. W. 1/3 respectively. These Passports were taken into F. I. A. Custody vide memo. Exhibit P. W. 1/7. During the course of inveatigation, it transpired that in fact the forged British Passports were provided to Muhammad Naeem, Tariq Mahmood and Umar Daraz by Khalid Mir who charged Rs, 14,000 each for providing these passports. Khalid Mir while in police custody led to the recovery of torn pieces of British passports, exhibit P. W. 2/1 from Miani Sahib graveyard vide recovery memo. Exhibit P. W. 2/2.
4. P. W. 1 Shaukat Ali A. S. I. (Passport Cell) F. I. A. Lahore, P. W.-1 Hamid Ahmad Khan Durrani, a travel agent, P. W.-3 Tasaruf Hussain S. I. F. I. A. Lahore, P. W. 4 Kishwar Kiyani, Examiner of Questioned documents, P. W. 5 A sim Butt A. S. I. F.
1. A. Lahore, P. W. 6 Jafar Hussain Inspector F. I. A. Lahore, P. W. 7 Mustafa Kamal Pasha, another travel agent and P. W. 8 Akhtar Zaman Inspector F. I. A. Islamabad testified at the trial as prosecution witnesses. P. W. 1 Shaukat Ali A. S. I., P. W. 3 Tasaruf Hussain S. I. And P. W. 8 Akhtar Zaman Inspector deposed about the recovery of forged British passports from Muhammad Naeem, Tariq Muhammad and Umar Daraz on the night between 21st/22nd December, 1982 at the Lahore Airport while they were trying to leave Lahore by P. I. A. Flight P. K.
231. According to these witnesses, forged British Passports P. W. 1/1 to P. W. 1/3 together with P. I. A.
Tickets P. W. 1/4 to P. W. 1/6 were secured by Akhtar Zaman Inspector vide memo. Exhibit P. W. 1/7.
Tasaruf Hussain and Akhtar Zeman have also stated about the alleged recovery of pieces of passports and a stamp at the instance of Khalid Mir from Miani Sahib graveyard vide recovery memo. Exhibit P. W. 2/2. Hamid Ahmad Khan Durrani disclosed that British Passports P. W. 1/1 to P. W.
1/3 were brought by Mustafa Kamal Pasha, another person, to this witness to get air tickets. The witnesses, however, stated that the person who had come with Kamal Pasha was not present in Court at the time of recording of the testimonies of this witness. In this manner, he did not identify Khalid Mir as the person who allegedly accompanied Mustafa Kemal Pasha for getting tickets on the basis of forged British passports. This witness however, was subjected to cross-examination by learned Public Prosecutor but nothing useful from the prosecution point of view could be elicited from him. Mustafa Kamal Pasha (P. W. 7) however, stated that Khalid Mir had come to him to obtain tickets for Brussels and that he got arranged the tickets through Hamid Ahmad Khan of Alamgir Travels. This witness stated that he had not seen the passports exhibits P. W. I/1 to P. W. 1/3 at that time. Kishwar Kiyani examiner of questioned documents opined that signatures on the forged passports were of Muhammad Naeem, Tariq Mahmood and Umar Daraz.
5. Khalid Mir did not plead guilty to the charge. He denied of aging supplied the passports in question as also the P. I. A. Tickets to Muhammad Naeem, Tariq Mahmood and Umar Daraz. The recovery of torn pieces of passport and the seal at his instance has also been denied by him.
6. The other three appellants, namely, Muhammad Naeem, Tariq Mahmood and Umar Daraz admitted the recovery of forged British passports from their custody at the Emigration counter at the Lahore Airport on the night between 21st/22nd December, 1982. They pleaded that they innocently obtained these passports from Khalid Mir to whom they paid Rs, 14,000 each and that thus they have been duped by Khalid Mir.
7. One Muhammad Naeem son of M. Khalid has been examined as D. W. 1 in defence by Muhammad Naeem, Tariq Mahmood and Umar Daraz appellants. This witness disclosed that Khalid Mir had sent several persons abroad and that this witness and his friend Qadir introduced Muhammad Naeem, Tariq Mahmood and Umar Daraz to Khalid Mir who was paid Rs, 14,000 each by them for sending them abroad.
8. So far as the offence punishable under section 18 of the Emigra tion Ordinance, 1979 is concerned, the prosecution has failed to produc any evidence to prove that the passports had been forged by Khalid Mir or by other appellants. The torn pieces of British passports alleged to have been recovered at the instance of Khalid Mir were, perhaps, sought to be utilized to prove the forgery on the ground of similarity. It may be observed in this behalf that no evidence about the similarity has been produced. Recovery itself is highly doubtful. Besides the officials of the F. I. A , no independent witness has been examined to prove the alleged recovery. Tasaruf Hussain S. I. And Akhtar Zaman Inspector who have been produced as recovery witnesses could not tell as to at what time this recovery was effected. They have contradicted each other about the route which they adopted while going to Miani Sahib graveyard to make the recovery. They have also contradicted each other in respect of many other details. In this manner, no offence punishable under section 18 of the Emigration Ordinance, 1979 against Khalid Mir could be established.
9. So far as the allegation that Khalid Mir supplied forged Britis Passports to the other co-accused by charging them Rs, 14,000 each I concerned, no independent evidence has been produced by the prosecution to substantiate this allegation. Muhammad Naeem, Tariq Mahmood an Umar Daraz appellants have only stated that they obtained the forge passports from Khalid Mir after paying him Rs, 14,000 each. They bein co-accused are accomplices, their statements are of no value and cannot be utilized against Khalid Mir. Thus the offence punishable under section 2 of the Emigration Ordinance, 1979 has also not been established against him. The learned trial Judge has convicted Khalid Mir under section 1 (2) of the Emigration Ordinance by holding that he arranged tickets exhi bits P. W. 1/4 to P. W. 1/6 for Muhammad Naeem, Tariq Mahmood an Umar Daraz although he was not a licensed promoter and thus could n assist a person to emigrate. As already observed, Hamid Ahmad Kha Durrani who allegedly issued the tickets recovered from Muhamma Naeem, Tariq Mahmood and Umar Daraz at the time of the raid has n been able to identify Khalid Mir as the person who obtained the sat tickets from him. In the light of the testimony of Hamid Ahmad Kha Durrani, the allegation that Khalid Mir unauthorizedly promoted t departure of Muhammad Naeem etc. Out of Pakistan is also not prove The conviction of Khalid Mir, in the circumstances, under sections 17 ( of the Emigration Ordinance, 1979 cannot be upheld.
10. As regards Muhammad Naeem, Tariq Mahmood and Umar Daraz, they have admitted that forged British passports were recovered from them when they were attempting to leave Lahore by P. I. A. Flight No, P. K.
231. Their contention, however, is that they have been duped in this behalf by Khalid Mir as they innocently paid Rs, 14,000 each to him and obtained these passports from him. They were not possessed of the knowledge that these passports were forged ones, In this manner, their plea is that they had no guilty intention.
11. We cannot lose sight of the fact that these three appellants are simpletons and suffered from the desire of going abroad for which they paid huge amount and obtained passports. During the trial they have remained behind the bars for about 1-1/2 months. After their conviction they have also remained in jail for about three months before their sentence was suspended by this Court.
They have thus already suffered detention in jail for a period of over four months each.
12. From the evidence on the record the circumstance which is proved against Muhammad Naeem, Tariq Mahmood and Umar Daraz is that they were in possession of forged British passports when they were apprehended at the Lahore Airport while leaving through P. I. A. Flight No, P. K.-23I. There is nothing on the record as to who forged these passports. They are thus only liable for using forged passports. This act at the most falls within the mischief of section 471, P. P. C. Fork which these three appellants should have been tried by an ordinary criminal Court. By virtue of section 24 of the Emigration Ordinance, 1979, a special Court has the jurisdiction to try an offence punishable under the Emigration Ordinance, 1979. The conviction of these three appellants has been recorded under section 17 (1) of the said Ordinance. The said provisions make emigration or departure or attempt to emigrate or depart in violation of the provisions of Emigration Ordinance punishable with imprisonment for a term which may extend to five years or with fine or with both. The expressions "Depart" and "Emigrate" and also "Emigration" have been defined in section 2 (d) and (h) ibid. According to the said definition Depart" and "Departure" means the departure out of Pakistan of any person for employment or self-employment by any means. Similarly, "Emigrate" and "Emigration" means the departure by sea, air or land out of Pakistan for the purpose, or with the intention, of working for hire or engaging in any trade, profession or calling in any country beyond the limits of Pakistan.
There is nothing on the record of this case to suggest by any strength of imagination that Muhammad Naeem, Tariq Mahmood and Umar Daraz intended to depart or emigrate out of Pakistan for employment or for working on hire, for engaging in any trade, profession or calling in a country beyond the limits of Pakistan. In these circumstances, F the attempted departure or emigration on the part of Muhammad Naeem, Tariq Mahmood and Umar Daraz does not fall within the ambit of the Emigration Ordinance. Hence they could not be tried by the learned Special Judge (Control) and convicted under section 17 (1) of Emigration Ordinance.
1979.
13. The upshot of what has been held above is that the conviction of the appellants under section 17(1) and 17(2) of the Emigration ordinance, 1979 cannot be upheld. Their appeals are, therefore, allowed and their conviction and sentence are set aside. Khalid Mir appellant is still in jail. He shall be released forthwith if not required to be detained in any other case. Muhammad Naeem, Tariq Mahmood and Umar Daraz who are already on bail shall stand discharged from their bail bonds.
14. P. I. A. Tickets which were allegedly recovered from Muhammad Naeem, Tariq Mahmood and Uinar Daraz at the time of their apprehension and are admittedly genuine ones shall be returned to them while the forged British passports exhibits P. W. 1/1 to P. W. 1/3 shall be destroyed.