ABDUL SATTAR Versus STATE
Appellant Abdul Sattar son of Mukhtar Ali has been held guilty of offence under sections 17 and 22 of Emigration Ordinance, 1979 for unlawful emigration and in receiving money for providing foreign employment and convicted to two years' R.I. with a fine of Rs.5,000 and in default thereof to suffer 3 months' R.I.
2. Muhammad Bashir, Inspector Police got a secret information that appellant Abdul Sattar was extorting money from different persons on the pretext of providing them employment abroad, whereupon, a raiding party was constituted consisting of Muhammad Bashir P.W.8, Tasaraf Hussain, S.I. P.W.5, Abdul Ghafar, Constable who went to the spot where, on the pointation of informer, Inspector introduced himself to Abdul Sattar accused and recovered from him one Passport NO.B-388998, dated 11-i1-1985 in the name of Rahmatullah P.W.2, his Identity Card, Photostat agreement in the name of Abdul Aziz Anjum, photostat copy of N.O.C. issued by the Interior Ministry of Bahrin. These documents could not be accounted for by the appellant and accordingly F.I.R. No.49 of 1986 was registered at Police Station F.I.A., Faisalabad and after investigation, the challan was filed.
3. Statement of appellant was also recorded under section 342, Cr.P.C. on 6-5-1986 and he admitted the raid having conducted on him in the District Court premises Faisalabad but denied the recoveries and farther not admitted having received any amount from the P.Ws. He pleaded innocence and stated that the case was registered on account of family dispute between himself and his wife, a relative of Muhammad Hussain Jatta police tout responsible for fictitious raid on him. It is noteworthy that appellant refused to make any statement under section 340(2), Cr.P.C. to disprove charges against him nor gave any evidence in support of his defence except two decisions Exhs.DA. and D.B.
4. Sohail Masih is P.W.1 who deposed having given a sum of Rs.20,000 alongwith passport, Identity Card to the appellant who promised to send this P.W. to Bahrin for employment. Rahmatullah is P.W.2 who also stated to have paid a sum of Rs.20,000 alongwith passport and identity card to the appellant for sending him to Bahrin for employment. He is stated to have paid the money in presence of Sohail Masih and Syed Munawwar Hussain P.Ws. Arshad Mahmood P.W.3 has deposed having paid a sum of Rs.10,000 alongwith passport and identity card to the appellant for sending him abroad. Muhammad Riaz P.W.4 deposed that money was paid by Arshad Mahmood in his presence.
5. Syed Tasaraf Hussain, Inspector F.IA. P.W.5 stated that he was also one of the members of raiding party under the supervision of Muhammad Bashir, Inspector and at the time of raid, Exhs.P.A. and P.B., Passport and identity card of Rahmatullah, Exh.P.C., photostat copy of agreement from Messrs California Tailoring House in favour of Abdul Aziz Anjam and Exh.P.D., photostat copy of N.O.C. from the State of Bahrin Ministry of Interior in the name of Abdul Sattar, have been recovered. Recovery memo. was prepared duly signed by him and Muhammad Bashir, Inspector on 6-5-1986 and Muhammad Hussain son of Chiragh Din was a witness. He showed his ignorance about witness Muhammad Hussain as a police tout but stated that he was also a member of the raiding'party. On 11-5-1986, one passport in favour of Abdul Sattar Exh.P.l, another passport Exh.P.2 and Identity Card Exh.P.3 in the name of Muhammad Arshad Mahmood P.W. were also recovered. Recovery memo. was prepared by Muhammad Bashir, Inspector and witnessed by Muhammad Ashraf S.I. F.IA. and Maqsood Ahmad, Constable F.I.A. This recovery memo. is marked as Exh.P.J. Zulfiqar Inspector, Special Branch, Faisalabad P.W.6 is a formal witness and proves the preparation of Exh.P.F., an application for registration of case and is scribe of Exh.P.H., preliminary report. Mr. Maqsood Ahmad, Constable F.IA. appeared as P.W.7 who is witness of aforementioned Exhs.P.l, P.2 and P.3 which were taken into custody by recovery memo. Exh.P.J. Muhammad Bashir P.W.8 was Investigation Officer who organized the raid and certified the recoveries vide recovery memo. Exhs.P.E. and P.J.
6. On 7-11-1992, appellant made a statement under section 342, Cr.P.C. and admitted the raid on him but denied the recoveries and extortion of the amount in question. He pleaded that there was a family dispute between himself and his wife and the latter was a relative of Muhammad Hussain Jatta, a police tout, who arranged a fictitious raid on him. He refused to make statement under section 340(2), Cr.P.C.
7. ???????? Learned counsel for appellant has reiterated the following points:--
(a) ??????? That none of the aggrieved persons/P.Ws. moved for the registration of case and that the appellant has been falsely involved by Muhammad Hussain Jatta who was not produced as P.W.
(b) ??????? That the recoveries cannot be taken into consideration as the same are hit by the provision of section -103, Cr.P.C.
(c) ??????? That the appellant has been involved in this false case due to his dispute with his wife, a relative of Muhammad Hussain Jatta.
All the aforementioned points have been sufficiently dealt with by the trial Court and finding arrived at against the appellant. Learned counsel has not been able to persuade me to assail these findings in any manner contrary to law. The only point which needs serious consideration is the recoveries, if it can be held illegal, as argued, in violation of section 103, Cr.P.C. This too has been dealt with by the trial Court in para. 13 and it was observed that the mandatory requirement was to be complied with by the Police Officer in case of search of the place and not the search of the person. In this case, there were recoveries on two different occasions first on 6-5-1986 and the other on 11-5-1986. First set of recoveries was made from the person of appellant in the District Court premises and the second set of recoveries was made from the appellant at the time when he was in the custody of police and the same were lying in the iron' chest of his room. Both the recovery memos. are signed by the Police Officers and even if the attestation of Muhammad Hussain is excluded, there has to be some very strong evidence to show that members of raiding party particularly j Muhammad Bashir was inimical towards the appellant. P.Ws., from whom the money has been extorted, clearly deposed that they not only paid the money but also deposited their passports and identity cards and unless it is shown that I there As any ulterior motive for these witnesses to state against the appellant. It can safely be presumed that the documents were recovered from the present appellant and in order to save his skin, he is now denying the recoveries. Document Exh.P.C., a photostat copy of memorandum of agreement between Messrs California Tailoring House and one Abdul Aziz Anjam and the other document Exh.P.D., N.O.C. from the Ministry of Interior, State of Bahrin, in the name of Abdul Sattar son of Abdul Aziz Anjam has not been discussed in detail by the trial Court and these unmistakably go to show that appellant was trying his best to extort money from different persons and was successful in that regard. It is very easy for the appellant to say that these documents were also not recovered from his person. Although, these documents were recovered by Muhammad Bashir, Inspector duly witnessed by Tasaraf Hussain, S.I. and Muhammad Hussain vide recovery memo. Exh.P.E. but the recovery was made in the premises of District Court and some independent witness could be easily available but this action on the part of Inspector would not render the entire story of prosecution doubtful. The appellant has not produced any evidence in this case nor made a statement under section 340(2), Cr.P.C. and very strong, presumption can be raised against him that he was not falsely involved in the case. It has been held in Shah Nawaz v. The State P L D 1986 FSC 242 that mandatory requirement of section 103 is only relatable to the place to be searched and not in case of search of persons. It has further been held in Amira v. The State 1987 P Cr. L J 473 that where the accused led to the recoveries of crime weapons and there was no independent witness, mandatory provisions of section 103, Cr.P.C. were not contravened. It has been held in Kamir v. Nazir Ahmad and others 1980 S C M R 791 that there is no rule that evidence of a Police Officer as to the recovery of incriminating articles cannot be accepted, whatsoever the circumstances of the case. In Muhammad Hanif v. The State 1979 P Cr. L J 1078 (1313), it is laid down that evidence of Investigating Officer as to the recoveries could not be rejected. Reliance was placed on Muhammad Khan v. Dost Muhammad P L D 1975 SC 607 where the testimony of the Investigation Officer, on the question of recoveries, alone was accepted.
8. If the case against the appellant is examined in true perspective and keeping in view the cumulative effects, it can safely be said that the prosecution was able to prove its case. Learned counsel for appellant lastly contended that there was no sanction of Federal Government to prosecute this case but subsequently he found the same on the file vide No.8-8/86-Emig-II, Government of Pakistan Ministry of Labour, Menpower and Overseas Pakistanis, dated 2-11-1986.
9. After taking into consideration the prosecution story, evidence on the record, recoveries and refusal of the appellant to record his statement under section 340(2), Cr.P.C., I am of the view that the case against appellant is proved and he has rightly been convicted and sentenced to two years' R.I. with a fine of Rs.5,000 and in lieu thereof to suffer R.I. for three months. While the maximum punishment provided under sections 17 and 18 of the Emigration Ordinance, 1979 is seven years and fourteen years and the appellant has already been dealt with leniently by the trial Court.
In view of above, I do not find any merit in this appeal which is dismissed.
N.H.Q./A-573/L ????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.