2006 PLP 1492 (YLR)

MIAN MUHAMMAD NAJAM -UZ-ZAMAN, J.

Appellant Muhammad Rafique son of Muhammad Sadiq was tried by Special Judge (Central); Faisalabad in case F.I.R. No.51 of 1999, dated 26-2-1999 for the offence under section 17/22 of Emigration Ordinance, 1979 registered at Police Station, Faisalabad, who vide judgment dated 15-9-2005 convicted the appellant under section 17 of the ibid Ordinance and sentenced him to undergo six month's R.I. and to pay fine of Rs.5,000, or in default whereof to further undergo one month's R.I. Appellant was also convicted under section 22 of the ibid Ordinance and sentenced to undergo R.I. for three years and to pay fine of Rs.1,10,000 or in default whereof to further undergo nine months R.I. Both the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was also extended in favour of the appellant.

2. Feeling aggrieved by the impugned judgment, the appellant has filed the instant appeal.

3. A joint application Exh. P. A. was moved by Zafar Iqbal, Tahir Mehmood and Muzammal Azeem before the Deputy Director, F.I.A., alleging therein that they paid Rs.50,000 per head to Muhammad Rafique appellant for their emigration to Lebanon for employment in presence of Tariq Mehmood and Basharat Ali. About 1-1/2 months thereafter, Muhammad Rafique took all the three to Jordan and from there to Syria. From Syria they were brought back to Jordan where they stayed for two months when Muhammad Rafique said that the money brought had been spent and that further money might be arranged. They arranged 5700 Dollars from America through their uncle who used to reside in America. Later on the appellant in collusion with an agent who was Arab National dispatched them to Lebanon but due to the absence of visa they were arrested. Statedly Muhammad Rafique received the money and himself came back to Pakistan. After four months, the complainants arranged tickets from their homes and returned to Pakistan. Allegedly they demanded money from the appellant who was imparting threats to them, hence, the application. On the basis of this application, inquiry was conducted and on conclusion of inquiry, the accused was found liable for this occurrence, hence, this case was registered against him and the accused was sent up for trial after observance of legal formalities. Before the trial Court prosecution produced four witnesses to prove the charge against the appellant. Tariq Mahmood P.W. is the witness before whom the money was given in Pakistan and the transaction was finalized between the appellant and the aggrieved. Tahir Mehmood P.W.2 and Muhammad Azeem P.W.3 are the aggrieved persons of this case who reiterated the story given in the application Exh.P.A. Abu Zer Sibtain Inspector P.W.4 conducted the formal investigation and recommended for the prosecution of the appellant. Learned trial Court also examined appellant under section 342, Cr.P.C. In response to the question "Why this case against you and why the P.Ws. have deposed against you?", appellant replied as under:-- "In fact, I purchased trees from Tariq Mehmood P.W.1 paid him partial amount and remaining amount was payable by me. Tariq Mehmood arranged this false case to harass me and to receive the remaining amount of said trees from me". Neither the appellant made any statement under section 340(2), Cr.P.C. nor produced any evidence in his defence. Learned trial Court after appraisal of evidence carefully, vide judgment dated 15-9-2003 convicted and sentenced the appellant as narrated earlier.

4. Learned counsel for the appellant in support of this appeal submits that application for registration of criminal case against appellant i.e. Exh.P.A. was filed on 9-3-1997 after two years of the occurrence, when allegedly appellant refused to return the amount and extended threats and there is no explanation for the said delay in filing the application. Submits that the story narrated in the said application as well as before the trial Court is not plausible for the simple reasons that appellant was not the co-villager of the complainant party and a stranger for them and admittedly for the first time appellant had met Tariq Mahmood P.W. when the transaction took place. It is submitted that handing over such a huge amount to a stranger without any assurance was unnatural conduct on the part of the prosecution witnesses and this fact falsifies the entire prosecution case. It is submitted that Zafar Iqbal one of the complainants was an experienced man who had been living abroad and a close relative of Muzammal Azeem (P.W.), thus there was no occasion for the complainant party to hand over such a huge amount to a stranger (appellant). Submits that in fact it was Zafar Iqbal who took the intending immigrants abroad on the pretext of getting them employed there and later on while distorting the facts appellant has been falsely involved in this case. Further submits that the entire case of the prosecution rests upon the oral testimony of the prosecution witnesses who fall in the category of interested witnesses and their evidence without any corroborative piece of evidence cannot be relied upon to uphold the conviction of the appellant. Submits that petitioner has been falsely involved in this case because he had business dispute with Tariq Mahmood P.W.1 who was Lambardar of the village. Conversely counsel for the State while supporting the impugned judgment vehemently opposed the instant appeal.

5. With the able assistance of learned counsel for the parties, the record of this case as well as the judgment passed by trial Court have been perused. In the year 1995 on the pretext of sending Tahir Mahmood P.W.2 and Muzammal Azeem P.W.3 along with Zafar (given up) abroad (Lebanon) for employment, the appellant on receiving Rs.1,65,000 from them took all of them to Syria and Jordan. At Jordan appellant asked for some more money and the complainants arranged 5700 Dollars through one Naseer from America and handed over the amount to the appellant. Due to fake documents the said intending immigrants were taken into custody. by the Jordan authorities and later on they made arrangements for their tickets from Pakistan and finally came back to their homeland. Thereafter, the said deportees asked for the refund of the money from Muhammad Rafique appellant and on his refusal they approached F.I.A. authorities and present case was registered in the year 1997. The delay in the registration of case in such-like matter is very natural because people are always interested in their money and for that purpose they keep on making attempts and finally when they fail to achieve the goal then the F.I.A. officials are approached for the redressal of their grievance. In this view of the matter, the delay in lodging the F.I.R. is of no significance. Before the trial Court Tahir Mahmood P.W.2 and Muzammal Azeem P.W.3 while supporting the prosecution case deposed the mode and manners under which payment was made to Muhammad Rafiq appellant as he had promised to take the intending immigrants to Lebanon and to make arrangements for their job. The said payment was made in the house of Tariq Mahmood P.W.1 who was Lambardar of the village. No doubt during the investigation passports of both the intending immigrants were never taken into possession but it is apparent from the record that those documents were in the custody of appellant who was travelling with the witnesses. Non-production/ availability of the said documents in the circumstances is of no value. Both the said witnesses while deposing before the trial Court have painted a vivid and bright picture of the occurrence. They were subjected to lengthy and searching cross-examination but they remained stead fast and I have observed that there is nothing in the statements of these witnesses either to doubt their credibility or to say that they had any malice or grouse against the appellant to falsely involve him in this case. The evidence of these witnesses inspires confidence, rings true and in the circumstances of the case in my view the same is sufficient to uphold the conviction of the appellant. As far as quantum of sentence of appellant is concerned, I have observed that appellant is facing the agony of this case for the last about nine years and has suffered a lot. He has also undergone considerable period as under trial prisoner as well as a convict. Appellant was admitted to bail by this Court vide order dated 4-12-2003, at this stage sending him behind the bars is not justifiable. Accordingly while upholding the conviction of the appellant, sentence of imprisonment of the appellant is reduced to the period already undergone by him. However, appellant shall pay the amount of fine on the same terms and conditions fixed by the trial Court. With this observation this appeal otherwise stands dismissed. H.B.T./M-109/L Order accordingly.