MUHAMMAD SARWAR Versus STATE Zafar Pasha , Muhammad Ali Naqvi

This criminal appeal arises from the judgment of learned Special Judge (Central), Lahore whereby he on 21‑5‑1984 convicted Muhammad Sarwar appellant under section 22 of the Emigration Ordinance, 1979 and sentenced him to five years' R.I. and a fine of Rs. 10,000 in default thereof one year R.I.

2. The charge as framed by the trial Court against the appellant was that he being not a Promotor, obtained Rs. 55,000 from five persons on the pretext that he would send them to Saudi Arabia but did not do so and also did not return the money to the Passport holders and thereby committed offence under section 22 of the Emigration Ordinance, 1979. He denied the charge and claimed to be tried.

3. To prove its case prosecution examined six witnesses. Khuda Bakhsh P.W.1, Allah Bakhsh P.W.2, Nazir Ahmad P.W.3, Muhammad Ali P. W.4 and Asghar Ali P. W.5 have stated that they intended to go to Saudi Arabia for employment. Someone told them that Muhammad Sarwar appellant was having Visas for Saudi Arabia so they contacted him, who told them that he had Visas for Saudi Arabia in his possession. He demanded Rs. 11,000 per head for sending to Saudi Arabia. The witnesses accordingly paid Rs. 11,000 each for sending them to Saudi Arabia. The appellant neither sent them abroad nor did he return money to them. Ghulam Abbas P.W.6 had investigated the case.

4. When examined under section 342, Cr. P. C. the appellant denied all incriminating circumstances. In defence three witnesses namely, Muhammad Ashraf, Muhammad Aslam D.W.2, Muhammad Ali D.W.3 have been examined.

5. The learned counsel for the appellant contends that the prosecution has failed to prove one of the most important ingredients of offence punishable under section 22 of the Emigration Ordinance, 1979, that the appellant had obtained money from the P. Ws. on the pretext of sending them abroad for employment.

6. I have considered the arguments advanced by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellant. I find that even in the charge framed against the appellant it has not been stated that he had received Rs.55,000 from five persons on the pretext of providing or securing to or for any person employment in any country beyond the limits of Pakistan; that Khuda Bakhsh P.W.1, Allah Bakhsh P.W.2, Nazir Ahmad P.W.3, Muhammad Ali P.W.4 and Asghar Ali Mahmood P.W.5 have not stated in their statements that the appellant had received money from them on the pretext of sending them abroad for employment. They have simply stated that he had demanded money from them and they had paid him money for sending them to Saudi Arabia. The witnesses did not say about the employment. Strangely enough although there was no evidence to the effect that the money was paid by the witnesses for obtaining employment in any country beyond the limits of Pakistan, yet the trial Court has convicted him under section 22 of the Emigration Ordinance, ? 1979. No doubt some of the witnesses have stated that they intended to go to Saudi Arabia but they have not stated that the money was either received from them by the appellant for providing them employment abroad or that at the time of payment thereof they had told the appellant that the money was being paid to him for their employment abroad. Since the prosecution did not care to prove one of the most important' ingredients of offence punishable under section 22 of the Emigration Ordinance, 1979, that is payment of money for employment abroad therefore, I am of the view that prosecution has not been able to prove its case beyond reasonable doubt.

7. The upshot of the above discussion is that there is no satisfactory basis to uphold the conviction and giving him the benefit of doubt, the appellant is acquitted of the charge. He shall be released forthwith if not required in any other case.

S. G. D. ?????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.