The present criminal appeal is against the judgment dated 19-9-1982, by the Special Judge Central, Rawalpindi, whereby the appellants were convicted under section 17 of the Emigration Ordinance of 1979 and Section 471 of P.P.C., and sentenced to one year R.I. Each on each count, and were further directed tc pay a fine of Rs.1,000 each or in default thereof to undergo R.I. For a further period of three months. The substantive sentences were ordered to run concurrently.
2. Briefly stated, the prosecution case was that the appellants,, Muhammad Arif and Muhammad Siddique were interrogated, on suspicion, by the Inspector F.IA. Ghulam Ali, on duty to clear the Flight No.PK-717 bound for Copenhagen from Islamabad on 21-12-1979; as they had presented the British Passports Nos.P-192379-A dated 3-7-1973 and P-651184-A dated 4-6-1975, respectively, issued in the names of Shabbir Ahmad and Muhammad Siddique and had introduced themselves as such. But on interrogation had disclosed their real names and admitted that the said Passports were in the names of some other persons, and as a result thereof, the said Inspector F.IA. Made out the complaint Exh. PB and sent the same to Police Station F.IA Rawalpindi for the registration of the case through Shahid Rashid A.S.I. The passports in question, the Identity Cards and the Air Tickets, produced by both the accused at the checking counter, were also sent to the said Police Station through him. Ghulam Ahmad Chughtai, Inspector F.I.A. Recorded the formal F.I.R. Exh.P.B./1 on the receipt of the complaint Exh. P.B. The accused, duly arrested, were challaned under section 419/468/471 of P.P.C. Read with sections 17 and 18 of the Emigration Ordinance of 1979. They pleaded not guilty and were duly tried by the learned Special Judge Central, Rawalpindi and convicted and sentenced, as stated above.
3. The prosecution case was supported by Nazar Muhammad A.S.I., F.IA., P.W.1, who had deposed to the effect that the Passports Exh. P.1 and Exh.P.2 Identity Cards Exh. P.3 and Exh.P.4 and the Air Tickets Exh.P.5 and Exh.P.6, issued in the names of Shabbir Ahmad and Muhammad Siddique (not the appellants/accused) respectively, handed over to him by P.W.5 Shahid Rashid, A.S.I., were produced before the I.O., who had taken the same into possession vide memo Exh PA, duly attested by him. Ghulam Ali, Inspector F.IA. (since retired) P.W.2 supported the prosecution version to the effect that he was posted on duty to clear the Flight No.PK-717 at Islamabad- Airport, when he had detected the forgery in respect of the Passports Exhs. P.1 and P.2 and, as a result thereof, had drafted the complaint Exh. PB and sent the same to the Police Station F.IA. Rawalpindi through Shahid Rashid A.S.I. For the registration of the case, and that the said complaint was in his hand and signed by him. P.W.3, Abdul Qayyum, S.I. Was the Investigating Officer of the case. He stated that he had recorded the statements of the witnesses and had arrested the accused on 2?-12-1979 and had submitted the challan. P.W.4 Gulzar Ahmad Chughtai, Inspector F.IA. Testified that he had drafted the formal F.I.R. Exh.PB/1 on receipt of the complaint Exh. PB and entrusted the investigation of the case to P.W.3 Abdul Qayyum S.I. P.W.5 Shahid Rashid A.S.I. Testified that he had produced the two Passports, two Identity Cards and two Air Tickets, Exh P.1 to Exh.P.6, before the Investigating Officer, who took the same into possession under memo Exh. PA signed by him.
4. In their statements under section 342, Cr. P.C. The appellants had admitted to having produced the forged British Passports, Identity Cards that did not belong to them and the Air Tickets, recovered from them, at the checking counter for boarding the Flight No.PK-717, as charged, but nevertheless protested their innocence and stated that they shall produce evidence in their defence. D.W.1 Gul Bahar and D.W.2 Punno Khan appeared on their behalf and deposed that they had been defrauded by the Recruiting,, Agent and that they bear good moral character and were Zamindars/labourers.
5. The learned trial Court had acquitted the appellants under section 419/468, P.P.C. Read with section 18 of the Emigration Ordinance, 1979, by observing that there was no evidence to prove that the photographs of the Passports holders were replaced by those of the accused by the accused themselves, and that neither had they induced any person to migrate from Pakistan nor were they found in possession of any instruments or articles which could be used for committing forgery of the Passports in question. In this respect, the learned trial Court further observed, that the accused had stated at the very outset, as recorded in the Exh. P.B. That they had been defrauded of Rs.12,000 by one Fazal Hussain, who had supplied the said Passports to them, but even then strangely enough, neither the said Fazal Hussain was made to join to investigation nor was he interrogated in any manner by the Investigating Officer. However, the learned trial Court, taking into consideration the statement made under section 342, Cr. P.C. To the effect that the accused had themselves admitted their attempt to depart from Pakistan on forged British Passports, convicted them under section 17 of the Emigration Ordinance of 1979 read with section 471 of P.P.C. And sentenced them, as stated above.
6. The learned counsel for the appellants and the State have been heard at length and the record of the case perused with their assistance.
7. The learned counsel for the appellants, after arguing for their acquittal, at some length, in the alternative has contended for the reduction of the sentences on the ground that the appellants are poor and illiterate persons and have already suffered the monetary loss of Rs.12,000 each, as they had been defrauded by Fazal Hussain, named above, as borne out from Exh. P.B., the complaint on which the formal F.I.R. Exh.P.B./1 is based. Further, pointed out, that even the learned trial Court had opined that the investigation had been conducted in a strange manner and that in spite of the name and address of the said Fazal Hussain having been provided by the accused on the very first opportunity, yet he was neither interrogated in any manner nor associated with the investigation of the case. Therefore, argued that such a failure on the part of the prosecution should go in favour of the appellants, as a mitigating factor in deciding the quantum of sentences, if the conviction is otherwise maintained. Further pointed out, that the appellants had already suffered the agony of protracted trial and over a month's detention. To support his contentions, placed reliance upon Syed Aftab Ejaz v The State PLD 1978 Lah. 361.
Cum conritente sponte mitius est aeendum
8. The learned counsel for the State, has argued for the maintenance of the convictions but conceded that under the facts and circumstances of the present case, the Maxim, stated above, may be applied to the present case sentences of the appellants may be reduced as deemed just.
9. The submissions made by the learned counsel for the appellants, who are poor, illiterate villagers, desperate to improve their economic lot, are duly borne out from the record. A perusal of Exh P.B. Clearly establishes that the name and address of Fazal Hussain was disclosed by the appellants at the very outset as the person who had mislead and duped them but the prosecution had failed to associate him with the investigation of the case. Furthermore, as recorded in the said Exh PB, the appellants had confessed to have made an attempt to depart from the country by attempting to make use of the British Passports issued in the names of some other persons, on being interrogated on suspicion, at the time of their clearance to board the Flight No.PK-717 on 21- 12-1979 and thereafter in their respective statements recorded under section 342, Cr. P.C., thus making it incumbent upon the Court to temper the severity of law with the mercy of the Court, inherent in the fair determination of the nature of the crime and its just punishment. And, in addition, being duped of Rs.12,000 each, the appellants have already suffered monetarily, and have further suffered the agony of protracted trial for almost 11 years. Hence under these circumstances, the Maxim; " confitente snonte mitius est agendum" (one confessing willingly should be dealt with more leniently) is duly attracted to the case of the appellants, and a lenient view in respect of the quantum of the sentences to be suffered by the appellants shall be in keeping with the fair dispensation of justice.
10. Therefore, for the reasons stated above, while maintaining conviction of the appellants, this appeal is hereby dismissed but the one year R.I. And the fine of Rs.1,000 imposed on the appellants is hereby reduced to the sentences already undergone by them.
11. In accordance with the terms stated above, this criminal appeal stands disposed of.