Find a Lawyer

Criminal Appeal No. 235 of 1985, decided on 20th May, 1986.

‑‑‑S. 18/22‑‑Accused allegedly receiving certain amount for sending a person abroad for employment and providing him a passport with forged visa thereon and forged protector stamp‑‑Evidence on record clearly proving offence under S.22 of Ordinance‑‑No positive evidence, however, existing on record against accused to prove offence under S.18 of Ordinance‑‑None of prosecution witnesses at trial stated that concerned stamp was forged by accused‑‑Conviction under S.18 of Ordinance was based on assumptions‑‑Conviction of accused merely on assumption without positive evidence, held, was not a safe administration of justice‑‑Element of doubt of commission of forgeries by accused, held further, was apparent‑‑While maintaining conviction under S.22 of Ordinance accused was acquitted under S.18 of Ordinance in circumstances.

Arshad Mobin for Appellant.

Rana Abdullah Khalid for A.‑G. for the State.

Date of hearing: 20th May, 1986:

Muhammad Akmal Khan son of Ashfaq Muhammad Khan, aged 38 years, was tried under section 18/22 of the Emigration Ordinance, 1979 by Special Judge (Central) Lahore. Learned trial Judge, vide order, dated 19‑3‑1986, convicted him under sections 18 and 22 of Emigration Ordinance. He has been sentenced to undergo R.I. for four year,, under section 18 and two years' R.I. under section 22 of the Ordinance, with a fine of Rs.15,000 in default whereof to undergo R.I. for one year. A sum of Rs.9,500 has been directed to be paid as compensation to P.W.3, on realization of the fine.

2. According to the prosecution, the appellant had received a sum of Rs.9,500 from Zulfiqar Ali (P.W.3) for sending his cousin Muhammad Latif to Saudi Arabia, for employment. According to the prosecution case, he had also provided a Passport to Muhammad Latif with forged Visa thereon and forged protector stamp.

3. Five witnesses in all were examined at the trial which included Fakhar‑ud‑Din (P.W.1), Protector of Emigrants Overseas Employment Corporation, Lahore, Ghulam Abbas, S.I. (P.W.2), Zulfiqar Ali (P.W.3), M.. Mushtaq (P.W.4) and Ch. M. Ishaq, Inspector, F.I.A., Lahore (P.W.5).

4. Fakharuddin (P.W.1), Zulfiqar Ali (P.W.3) and M. Mushtaq (P.W.4) supported the prosecution case and corroborated each other.

5. The appellant while denying the prosecution case pleaded innocence and set up the plea of false involvement at the instance of P.Ws.1, 3 and 4. According to him, he had entered into business partnership with Zulfiqar Ali and M. Mushtaq P.Ws. after retirement from service and had paid them a sum of Rs.50,000 which amount was embezzled by them.

6. I have gone through the judgment and the evidence with the assistance of the learned counsel for the appellant. The contention of the learned counsel for the appellant that there is no evidence on record to prove offence under section 22 of Emigration Ordinance is without any basis. It has been clearly stated by Zulfiqar Ali (P. W.3) that he had told his cousin M. Latif P.W., who was keen to go abroad for employment that Akmal Khan (appellant) was sending persons abroad for employment. This information, according to him, he had received from his friend M. Hanif. He further stated that it was thereafter that he had contacted Akmal Khan, who had demanded Rs.15.000 per head, for sending persons abroad, but he had paid him Rs.9,500 in the presence of M. Mushtaq P.W. alongwith identity card of Latif P.W The statement of this witness in this regard finds corroboration from other evidence on record.

In this view of the matter, the conviction and sentence of the appellant under section 22 of the Emigration Ordinance is not questionable and the same is maintained.

However, there seems to be weight in the argument of the learned counsel for the appellant that there is no positive evidence against the appellant to maintain his conviction under section 18 of the Ordinance. None of the P.Ws. at the trial stated that the stamp of Protector Emigrants was forged by the appellant. P.W.1, who appeared in this connection although categorically stated that the stamp of Protector Emigrants and his signatures on the Passport were forged, but he did not say anything as to who had done that, learned trial Judge convicted the appellant on assumption that since the Passport with forged entries on page 11 had been delivered by the appellant to Zulfiqar P.W., so it can be presumed that the forgeries must have been committed by him.

I do not think, it would not be a safe administration of justice to maintain the conviction of the appellant merely on assumptions without positive evidence. Element of doubt of commission of forgeries by appellant in this regard is apparent. He is, therefore, given the benefit of doubt in this regard and acquitted of the charge under section 18 of the Emigration Ordinance. His conviction and sentence under this charge is set aside.

7. The net result is that this appeal is partly accepted, in that the conviction and sentence of the appellant under section 22 of the Emigration Ordinance is maintained while his conviction and sentence under section 18 of the Ordinance is set aside. In addition to the sentence of R.I. for two years under section 22 of the Ordinance, he is also sentenced to pay a fine of Rs.12,000 in default whereof to suffer R.I. for one year. Out of the fine on realization, a sum of Rs.95,000 shall be paid as compensation to Zulfiqar Ali (P.W.3). The clarification with regard to sentence of fine has been made, keeping in view the fact that the learned trial Judge has not mentioned in the impugned judgment as to for what offence sentence of fine was imposed. The appellant shall also be given the benefit of the provisions of section 382‑B, Cr.P.C.

H.A.K. Appeal partly accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.