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Petitioner: MUHAMMAD SHARIF VS Respondent: THE STATE
1992 M L D 2212
1992 M L D 2212
[Lahore]
Before Muhammad Amir Malik, J
MUHAMMAD SHARIF‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Crl. Appeal No.545 of 1990, decided on 29th October, .1991.
Emigration Ordinance (XVIII of 1979)‑‑
‑‑‑‑S.17/22‑‑‑Passports Act (XX of 1974), S.6‑‑‑Appreciation of evidence‑‑ Accused failed to arrange immigration or employment of complainant abroad though accused had received money in that behalf from the complainant‑‑ Trial Court had arranged a sort of settlement and got the moneys returned in Court which in a manner had supported their version of having advanced money who after the return of money in Court had felt satisfied‑‑‑Such procedure adopted by Trial Court, however, was that of a civil suit and the same, therefore, could not make a positive proof in a criminal trial‑‑‑Trial having not been conducted in straightforward manner, the charge could not be said to be proved against accused beyond any reasonable doubt‑‑‑Accused was acquitted in circumstances.
M.D. Chaudhary for Appellant.
Bader Munir Malik for the State.
Date of hearing: 29th October, 1991.
JUDGMENT
The appellant was convicted under section 17/22 of the Immigration Ordinance. 1979 and Section 6 of the Passports Act, 1974 by Special Judge (Central). Lahore vide judgment dated 24‑6‑1990 and sentenced till rising of the Court and a fine of Rs.5,000 or in default thereof one month's R.I. He has 'appealed.
2. Muhammad Din (P.W.1) moved an application (Ex.PA) on which an inquiry was held by F.IA. and as a result thereof case was registered on 4‑6‑1985.
3. According to the F.I.R. Muhammad Din complainant was known to the appellant. The appellant told him that he had some visas for employment abroad and consequently, Muhammad Iqbal, Muhammad Siddique and Manzoor Hussain (P.Ws. 2, 3 and 4) and Karim Bakhsh (not produced) were introduced by the appellant. The advance money of Rs.5,000 was received from each of them and after the delivery of certain other documents like passport, etc. an amount of Rs.17,000 was also paid by each and thus in all each intending immigrant paid Rs.22,000 to the appellant. Later on the appellant failed to arrange their immigration or employment abroad nor returned 'the money.
4. The prosecution produced Muhammad Din complainant and Muhammad 1qbal, Muhammad Siddique and Manzoor Hussain (P.Ws. 1, 2, 3 and 4) to prove the charge against the accused. All are closely related as is clear from their statements and previously had no enmity of any sort with the appellant. However, from the statement of Muhammad Din complainant it appears' that he had some other business dealings with the appellant as well and perhaps fell foul of each other. His anger was further augmented by the appellant when even his relatives i.e., PWs. 2, 3 and 4 were also not returned the money. The complainant had moved an application (Ex.PA) to the F.I.A. and in it the version was that each of the intending immigrant had advanced Rs.2,500 while the statement in the witness box was that each had paid Rs.5,000 and when confronted with this situation the former position was accepted. Whatever be the case the complainant did not feel a pinch in his conscience while telling a lie in the Court. It is also clear from his statement that while running a shop in Engineering University where the appellant is a Librarian and his version is that he pair] Rs.9,000 to the appellant as Tagri but later on even the shop was taken from him and he lost the Pagri amount. He further claims that five marlas out of the plot of the complainant was agreed to be purchased by him for Rs.75,000 he paid the amount but the plot was found to be the property of Central Government. In cross‑examination he admitted that he had only advanced Rs.33,000 in this regard to the appellant and .for the same amount a cheque was given by the complainant but it bounced. The complainant has been making one statement and then contradicting the same in the same breath and thus he is a worthless fellow and no reliance can be placed upon him. One may even think that he and the appellant perhaps were sailing in the same boat and only when they fell out the services of the relatives of the complainant were pressed against the appellant. Though the procedure adopted is somewhat out of the way by the learned trial Judge inasmuch as he arranged a sort of settlement and got the moneys of P.Ws. 2, 3 and .4 returned in Court: This in a manner supports their version that they had advanced money whatever its amount was and after the return of the amount in Court they have felt satisfied. Since the procedure adopted is that of a civil suit, hence that would not make a positive proof in a criminal trial. Might be the complainant himself had 'obtained the money from the relatives and then had dealings with the appellant. 'The trial having not been conducted in straightforward manner, the charge cannot be said to be proved against the appellant beyond any reasonable doubt.
5. The appeal is, therefore, accepted. The conviction and sentence of the appellant are hereby set aside. He is on bail and stands discharged of the bail bonds.
N.H.Q./M‑566/L Appeal accepted.