P L D 2013 Islamabad 15 (PLP)

MUHAMMAD ANWAR KHAN KASI, J.

This appeal is directed against the judgment dated 22-10-2009, passed by learned Special Judge Central Rawalpindi, whereby the appellant was found guilty under sections 18 and 22 of Emigration Ordinance, 1979 and sentenced as under:

Under Sec. 18: Sentenced to R.I. for 12 years with fine of Rs.2,00,000 in default to pay the amount of fine, the appellant will have to undergo S.I. for 2 years. Under Sec. 22: Sentenced to R.I. for 12 years with fine of Rs.2,00,000 in default to pay the amount of fine the appellant will have to undergo S.I. for 2 years. The sentences were directed to run concurrently with benefit of section 382-B, Cr.P.C.

2. The appeal is directed on the ground that the learned trial Court failed to appreciate law and facts of the case, while the appellant had never made any commitment with any body nor had received any amount for sending the complainant abroad.

3. It is further submitted that the appellant had issued four blank cheques to the complainant as guarantee only due to business as the complainant had invested Rs.4,50,000 with him.

4. It is stated that the provisions of sections 18 and 22 of the Emigration Ordinance, 1979 are not attracted in the present case, the F.I.R. was lodged with an unexplained delay of two years, while the date, time and place for giving the money is not mentioned in the F.I.R., there are material contradictions in the statements of P.Ws. and the prosecution miserably failed to establish any case against the appellant. In support of his contentions, learned counsel relied upon the case-laws cited as 1986 MLD 2719 Lahore, 1984 PCr.LJ 283 Lahore, 2009 YLR 2390 Lahore, 1994 PCr.LJ 2451 Lahore, 1985 PCr.LJ 2982 Lahore and PLD 2004 Lahore 767.

5. Learned Standing Counsel opposed the appeal on the ground that discredit of cheques issued by the appellant is sufficient proof to establish the guilt of the appellant/convict.

6. It is next submitted that neither the appellant recorded his statement under section 340(2), Cr.P.C. nor produced any defence evidence, which means that he had no defence.

7. Heard and record perused.

8. The prosecution story as mentioned in the F.I.R. Exh.PD/1 is that the appellant had received Rs.13,00,000 from complainant Ch. Muhammad Ilyas and his nephew Mr.Sajjad Abid in 2005 with the commitment to send them to England against a valid visa for employment but thereafter neither he returned the money nor honoured the commitment.

9. Perusal of impugned judgment reveals that the cheques Exh.PA., Exh.PB and Exh.PC. bank slips Exh.PA/1. Exh.PB1 and Exh.PC/1 regarding dishonouring of said cheques were properly exhibited during the trial through P.W.1 and during the cross-examination the issuance of one cheque was not disputed. Again the P.W.2 Mr. Sajjad Abid, nephew of the complainant reiterated the fact regarding issuance of cheques, but statement of P.W. on this point was not shaken and the only plea of defence was that he had not received any money from the complainant for sending them abroad.

10. The Investigating Officer of the case P.W.4 got exhibited the application Exh.PD and F.I.R. Exh.PD/1 and stated that the appellant was in custody in another case and was called to join the present investigation.

11. The accused during examination under section 342, Cr.P.C. denied all the allegations and stated that he had been falsely roped in the case. He had neither made any commitment with anybody nor received any alleged amount, while he had received Rs.4,50,000 as investment for his business at China and for the return of said amount along with commission he had issued two cheques valuing Rs.8,50,000 but he could not arrange the amount, which resulted in the discredit of cheques.

12. The P.Ws.1 and 2 had alleged that the appellant had received their passport and had returned them after affixation of England visa, which was found to be bogus, but the passports containing alleged forged visas were never produced in the Court to establish the offence under sections 18 and 22 of Emigration Ordinance, 1979. The Investigating Officer during the investigation did not take any material in possession to establish the said offences.

13. The appellant admits the receipt of amount Rs.4,50,000 and issuance of cheques valuing Rs.8,50,000, but denies the allegations of any commitment/inducement to send the complainants abroad. In the absence of any passport, visa or related documents, it cannot be concluded that the prosecution establishment any case for the offences under Emigration Ordinance, 1979. As far as the discredit of cheques is conferred, that is a separate offence for which F.I.A. has got no jurisdiction.

14. In view of the above, the conviction recorded through judgment dated 22-10-2009 by learned Special Judge Central, Rawalpindi, is set aside and the appeal is allowed. Consequently the appellant is acquitted of the charges under sections 18 and 22 of the Emigration Ordinance, 1979 in connection with F.I.R. Exh.PD/1.The appellant person on bail is discharged of his bail bonds. MWA/155/Isl. Appeal allowed.