2008 PLP 1568 (MLD)

MIAN MUHAMMAD NAJAM-UZ-ZAMAN, J.

Appellant Muhammad Riaz was tried by Special Judge (Central), Lahore in case F.I.R. No. 60 of 1996, dated 25-6-1996 under sections 17/22 of Emigration Ordinance, 1979 read with section 6 of the Passport Act, 1974 registered at Police Station FIA, Passport Cell, Lahore, who vide judgment, dated 6-9-2001 convicted appellant under section 22(b) of the Emigration Ordinance, 1979 and sentenced him to two years' R.I., and to pay fine Rs.50,000, or in default whereof to further undergo three months' R.I. Appellant was also given the benefit of section 382-B, Cr.P.C. Feeling aggrieved by the impugned judgment, appellant has filed the instant appeal.

2. The contents of the F.I.R. reveal that in the year, 1994 Muhammad Riaz appellant received Rs.40,000 each along with passports from Muhammad Yousuf and Muhammad Latif for sending them to Kuwait for employment in the presence of Me a,muad Jamil and Muhammad Aslam P.Ws. Allegedly appellant did not honour the commitment nor had returned the amount or documents. After the formal investigation challan was submitted before the trial Court where prosecution produced four witnesses to prove the charge against appellant. Muhammad Yousaf P.W.1. Muhammad Latif P.W.2 and Muhammad Aslam P.W.3 while supporting the prosecution case stated that Rs.80,000 were paid to Muhammad Riaz appellant in the year, 1994 in the house of Muhammad Yousaf. Statedly the said amount was received by appellant on the pretext of sending Muhammad Yousaf and Muhammad Latif to Kuwait for employment. Gul Sanobar Inspector P.W.4 entered formal F.I.R. and submitted complaint under section 24(6) of Emigration Ordinance, 1979 (Exh.P.C.). Learned trial Court also examined appellant under section 342, Cr.P.C. While answering to the question "Why this case against you and why the P.Ws. have deposed against you?", appellant replied as under:- "I was also going to Kuwait through Muhammad Shakeel and I also gave Rs.68,000 for this purpose. The P.Ws. also gave the amount to Shakeel. Shakeel did not send us abroad. We filed an application to police which is Mark `A'. Police Station directed us to seek our remedy from F.I.A. Thereafter I moved an application before FIA and inquiry was held vide Inquiry No.320/94. FIA did not listen to me and at the complaint of the P.Ws. the present case was registered against me". Appellant also made statement under section 340(2), Cr.P.C. as D.W.1. as well as produced Muhammad Younas D.W.2. Tanveer Javaid D.W.3 in support of his stand. Learned trial Court vide judgment, dated 6-9-2001 convicted and sentenced the appellant as narrated earlier.

3. With the able assistance of learned counsel for the parties, I have minutely gone through the record of this case. The entire case of the prosecution rests upon the statements of three witnesses namely Muhammad Yousaf (P.W.1), Muhammad Latif (P.W.2.) and Muhammad Aslam (P.W.3). The Investigating Officer in spite of repeated adjournments did not appear before the trial Court and ultimately the case of the prosecution was closed. It is well-settled that Investigating Officer is not a formal witness as several aspects of the case which prosecution witnesses try to conceal from the Court can be brought out from his statement and the omission to examine the Investigating Officer puts the accused to serious handicap in defending himself from the charge against him (Bashir Ahmad and another v. The State 1996 PCr.LJ 418, Federal Shariat Court). The non-production of the Investigating Officer in the present case amounts to depriving the appellant of his precious right to bring on record the lacunas of prosecution case. In this view of the matter, it would be unjust to rely upon the statements of the said witnesses. Even otherwise, it is very much apparent from the record of his case that both Muhammad Yousaf (P.W.1) and Muhammad Latif (P.W.2) before the commencement of the trial had compromised with the appellant. Both of them also made statements in this regard before this Court when application of the appellant for suspension of his sentence was under consideration. Statement of appellant under section 342, Cr.P.C. coupled with statement under section 340(2), Cr.P.C. as D.W.1. along with the statements of other defence witnesses i.e. Muhammad Younas (D.W.2.) and Tanveer Javaid (D.W.3) are sufficient to show that appellant himself fell victim to evil deeds of one Muhammad Shakeel and he was deprived of huge amount on the pretext of sending him abroad for employment. In the said circumstances of this case while giving the benefit of doubt in favour of the appellant I am persuaded to allow this appeal. Accordingly conviction and sentence of appellant is set aside. Appellant, is on bail. His bail bonds are cancelled and sureties are discharged. N.H. Q./M-466/L Appeal accepted.