2018 P Cr. L J 191
[Balochistan]
Before Abdullah Baloch, J
MUHAMMAD ASIF and others ---Appellants
Versus
The STATE---Respondent
Criminal Appeals Nos. 99, 100 and 101 of 2015, decided on 11th September, 2017.
Penal Code (XLV of 1860) ---
----Ss. 420, 468, 471 & 109---National Database and Registration Authority Ordinance (VIII
of 2000), S. 30(i)(ii) ---Foreigners Act (XXXI of 1946), S. 14---Prevention of Corruption Act
(II of 1947), S. 5(2) ---Cheating and dishonestly inducing delivery of property, forge ry for
purpose of cheating, using as genuine a forged document, abetment, concealing and refusing to furnish information which a person ought to disclose or furnish etc, contravention of provisions of law or any order made thereunder and corruption, public servant committed or
attempt to commit criminal misconduct---Appreciation of evidence ---Benefit of doubt ---
Prosecution case was that accused being an active agent for preparing and managing passport for travelling to foreign countries for the employment, through infrequent routes, after
obtaining money through fraud---Record showed that 8 -smart Computerized National
Identity Cards and one colour photocopy of a Computerized National Identity Card along with 4 -birth certificates were recovered from the possession of accused ---Prosecution had
nominated said persons as accused in whose name the recovered Computerized National Identity Cards were issued ---Prosecution despite efforts had failed to trace out the said
persons from given addresses ---Prosecution howe ver, succeeded to trace out accused in
whose name the said recovered Computerized National Identity Card was issued---During the course of investigation, the accused in whose name, Computerized National Identity Card was issued, had recorded his confessional statement under section 164 Cr.P.C. before the Judicial Magistrate ---Said accused confessed that in -fact he was resident of Afghanistan, he
arrived in the country without any travelling documents and received Computerized National Identity Card and pass port of the country after the payment of Rs. 15,00,000---Said accused
was trying to travel abroad and was arrested ---Accused in his confessional statement had
nominated no other person as co- accused ---Findings of the Examiner showed that no expert
opinion was drawn to ascertain the genuineness of documents, such documents were not
helpful for the prosecution---Circumstances established that prosecution had failed to prove its case beyond shadow of any doubt, benefit of which would resolve in favour of co-accused ---Co -accused persons, in circumstances, were acquitted by setting aside conviction
and sentence recorded by Trial Court against them; however, the case of accused, after recording his confessional statement under S. 164, Cr.P.C. and further recovery of Computerized National Identity Card and Passport of the country, had been proved, who being the national of Afghanistan had managed to prepare Computerized National Identity Card and Passport and used the same as citizen of the Pakistan ---Appeal of accu sed against
convictions and sentences was dismissed.
Waqar Ahmed for Appellant (in Criminal Appeal No. 99 of 2015).
Mukesh Nath Kohli for Appellant (in Criminal Appeal No. 100 of 2015).
Khuram Javed for Appellant (in Criminal Appeal No. 101 of 2015).
Ikhlaq Shah, Assistant Attorney -General for the State.
Date of hearing: 18th August, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment disposes of Criminal Appeal
No.99/2015 filed by the appellant Muhammad Asif so of Abdul Hakeem and Criminal
Appeal No.100/2015 filed by the appellants Danish Ali Son of Muhammad Ali and Syed
Asad Kazmi son of Syed Masoom Raza and Criminal Appeal No.101 of 2015 filed by the Rahim alias Inayatulah son of Jala -ud-Din against the judgment dated 18th August 2015
(herein after referred as, "the impugned judgment") passed by learned Special Judge Anti -
Corruption Balochistan Quetta (hereinafter referred as, "the trial Court"), whereby the appellants Syed Asad Kazmi and Danish Ali were convicted under section 420, P.P.C. to suffer four (4) years' R.I. each with fine of Rs.20,000/ - each or in default to further suffer one
(1) month's S.I. each; under section 468, P.P.C. to suffer four (4) years' R.I. each with fine of Rs.20,000/ - each or in default to further suffer one (1) month's S.I. each; under section 471,
P.P.C. to suffer four (4) years' R.I. each with fine of Rs.20,000/ - each or in default to further
suffer one (1) month's S.I. each and read with section 30(1)(2) of NADRA Ordinance to
suffer three (3) years' R.I. each wit h fine of Rs.10.000/ - each or in default to further suffer
one (1) month's S.I. each under section 14 of Foreigners Act to suffer three (3) years' R.I. each with fine of Rs.20,000/ - each or in default to further suffer one (1) month's S.I. each;
under sect ion 5(2), Act -II of 1947 to suffer two (2) years' R.I. each with fine of Rs.20,000/ -
each and in case of default of payment of fine as whole, then the same shall be recoverable from moveable and immovable properties owned by the accused persons severally or jointly. Process as provided under section 386, Cr.P.C. be issued to Deputy Commissioner Karachi for attachment of properties owned by the accused and its sale by way of auction to satisfy the sentence of fine and in case of non- recovery of fine amount t he appellants shall further
suffer two (2) months' S.I. each.
The appellant Muhammad Asif was convicted under section 471, P.P.C. and
sentenced to suffer four (4) years' R.I. with fine of Rs.20,000/ - or in default to further suffer
one (1) month's S.I. and read with section 30(1)(2) of NADRA Ordinance to to suffer three (3) years' R.I. with fine of Rs.10,000/ - or in default to further suffer one (1) month's S.I. All
the sentences were ordered to run concurrently with the benefit of section 382- B, Cr.P.C.
The appellant Rahim alias Inayatullah was convicted under section 471, P.P.C. to
suffer R.I. (4) Four years' fine of Rs.20000/ - in default whereof to SI (01) one month's and
under section 14 of Foreigners Act for period already undergone.
2. Facts of the case are that on 1st September 2013, the State through FIA -lodged FIR
No.210 of 2013 at FIA/AHTC Quetta, under sections 420, 468, 471, 109, P.P.C. read with sections 3/14, Foreigners Act, 1946 and NADRA section 30(i)(ii), Ordinance, 2000, stating therein th at the complainant received information about accused Muhammad Asif, being an
active agent preparing and managing passport of aliens for further onwards travelling to
Australia and Europe, for the purpose of employment, through infrequent routes, after obtaining money through fraud, as such, on the pointation of informer accused Asif was seen
to enter in the office of Tariq Coach, from where he received parcel in the name of Qurban Ali, Hassan and Syed Kazim care of Sultan PCO Hazara Town, Quetta. When he w as going
by his motorcycle, he was stopped and envelops was checked, which resulted into recovery of 18-smart CNICs and one Colour photo copy of CNIC along with 4- birth certificates of
appellant. The appellant disclosed that these cards have been received on the directions of one Qurban caste Hazara, agent of the alien residing at Hazara Town Quetta. The accused Qurban was contacted, who promised to come there, but absconded. All CNICs were examined and observed that the cards were issued by Karachi NADRA O ffice. All persons
seem to be Afghan Nationals, as such, the documents were seized properly and accused was brought to FIA Quetta for further necessary legal action.
3. In pursuance of above FIR, investigation of the case was entrusted to Nazeer Ahmed,
SI/IO, who during investigation took into possession the relevant record and sent the CNICs
to NADRA; recorded the statements of witnesses under section 161, Cr.P.C. and on
completion of investigation submitted the challan in the trial Court.
4. At the trial, the accused Abdul Samad, Hidayatullah, Muhammad Hussain, Raza,
Mushtaq, Qamar Din, Muhammad Ismail, Qurban Ali Hazara, Hassan Hazara and Syed Kazim were declared as proclaimed offenders and proceedings under sections 87 and 88, Cr.P.C. were carried out.
5. The prosecution produced the evidence of seventeen (17) witnesses. The appellants
were examined under section 342, Cr.P.C. however, neither they recorded their statements on oath under section 340(2), Cr.P.C. nor produced any witness in their defence. On conclusion
of trial and after hearing arguments, the appellants were convicted and sentenced as mentioned above in para No.1. Whereafter instant appeals have been filed.
6. Learned counsel Mr. Waqar Ahmed, Advocate for appellant Muhammad Asif and Mr.
Muke sh Nath Kohli, Advocate for the appellant Danish Ali and Syed Asad Kazmi and Mr.
Khuram Javed, Advocate for appellant Rahim alias Inayatullah while arguing the matter contended that the impugned judgment passed by the learned trial Court suffers from misre ading and non- reading of evidence; that the learned trial Court has also mis -appreciated
the facts of the case and misapplied the law and drawn a wrong conclusion while convicted the appellants; that as per FIR, the recovery of envelope containing alleged National Identity Card is doubtful; that as per prosecution, the alleged recovery of envelope containing the CNICs was taken into possession from Tariq Coach Company Quetta, but no private witness was associated by the Investigation Officer, which creates doubt in the recovery of alleged envelope and CNICs; that there are glaring contradictions in the statement of prosecution witnesses, but the learned trial Court utterly failed to take into consideration this material aspect of the case; that as per FIR, t he number of alleged Smart Cards, CNICs have been
shown as 18, but the statement under section 161, Cr.P.C., the PW -3 Khan Muhammad, Head
Constable FIA shown the number of Smart Cards, CNICs, as nine. This aspects of the case further creates doubt in the c ase of the prosecution; that the co- accused namely Rahim alias
Inayatullah in his confessional statement under section 164, Cr.P.C. has stated nothing against the appellant; that the cases of appellants do not fall within the purview of sections inserted i n FIR, but in contrary the appellants were convicted for the said offences; that
despite of the fact the prosecution had produced 17 witnesses to establish his case against the
appellants, but none of the witnesses deposed against the appellants; that the impugned
judgment is not sustainable and liable to be set aside.
7. Conversely, the learned Assistant Attorney General Syed Ikhlaq Shah vehemently
opposed the arguments so advanced by the learned counsel for the appellants and contended
that the prosecution has proved its case against the appellants by producing confidence inspiring evidence; that the appellants are involved for making forged CNICs and Passports to the aliens/afghan nationals; that sufficient incriminating documentary evidence available on record against the appellants; that the appellants have been failed to establish their false
implication in the instant case; that the learned trial Court after proper appreciation of evidence had rightly convicted the appellants for commission of offences .
8. Heard the learned counsel for the parties and perused the record with their valuable
assistance. The record reveals that on spy information the FIA personnel on 1st September,
2013 at about 10:40 arrested the appellant Asif in front of the Tariq Coach Company Sariab
Road Quetta while he was receiving an envelope, which was containing eight Smart
Cards/CNICs, one colour CNIC photocopy and along with four Birth Certificates.
9. It is further alleged by the prosecution that on such recovery the appellant Asif stated
that these documents are related to agent Qurban and he was receiving the same for onward delivery to the Qurban, however, despite contacts by the accused/appellant with Qurban, he was not arrived at the place of occurrence. Record further reveals that on taking such alleged recovered articles into possession, the FIA authorities have started investigation and PW -17
Nazir Ahmed was entrusted the investigation.
10. The prosecution has also made the persons as accused in whose name the recovered
CNICs were issued, however, despite of efforts the prosecution has failed to trace out the said
accused persons from their given addresses, however, succeeded to trace out accused Inayatullah and Jumma Khan in whose name the said recovered CNICs were issued . The
prosecution has also made appellant Syed Asad Kazmi and the appellant Danish Ali as accused both of them are employee of NADRA Karachi.
11. During the course of investigation, the accused Rahim (Inayatullah), has recorded his
confessional statement under section 164, Cr.P.C. before the Judicial Magistrate, wherein confessed that infact he is resident of Afghanistan, in the month of August 2013, he arrived in Quetta without any travelling documents and met wi th one namely Hassan (agent) and paid
him Rs.15,00,000/ - for preparation of his Pakistani CNIC and Passport and after receiving
CNIC and Passport, while he was travelling to abroad on 24th September, 2014, he was arrested by the FIA authorities at Karachi Airport and brought to Quetta.
12. It is pertinent to mention here that in his confessional statement, the accused person
has not nominated any of the appellants. During the course of investigating, the Investigation Officer has sent certain documents of computerized CNIC forms for verification of specimen signatures from the examiner of FIA Headquarter Islamabad and on 30th May 2014, the inspector examiner of FIA Headquarter Islamabad sent its lab report wherein given its finding that the documents are in photocopy, scanned documents the following characteristic of signature i.e. line quality, speed, pen -lift/pen -stop and pen pressure are not observable to
reach a logical conclusion. Therefore, definite, opinion cannot be given about the signatures present on eleven photo state comprises computerized CNIC forms with respect to the
provided specimen and routine signature of Muhammad Shahid, Syed Asad Kazmi, and
Ikramuddin.
13. In view of the above findings of examiner and of the FIA Headquarter Islamabad, it
appears that no expert opinion was drawn to ascertain the fate of genuineness of documents
being verified or signed by the above referred persons including appellant Syed Asad Kazmi, as such, the said lab report could not be admissible and helpful to the prosecution.
14. Moreover, the prosecution has also produced PW, Juma Khan son of Ishaq Ali, who
deposed that he was arrested by the FIA authorities Taftan by saying that his CNIC is blocked
and due to his name in ECL, he could not travel to Iran. It is per tinent to mention here that
except such deposition nothing was stated by the PW -1 against the present appellants, either
his CNIC or his Passport was made arranged by the appellants.
15. The PW -14 Naimatullah is the witness of recovery memo of photocopy of voucher
type paper Al -Tariq Daewo Express, which was taken into possession by the prosecution on
4th September, 2013 and exhibited as P/14- A. Perusal of the said alleged voucher Ex.P/14- A
showing that this was issued on 1st September, 2013 at 07:30 p.m., showing the ticket
numbers, numbers of passengers Nil column of place and column of amount, but interestingly neither the said voucher containing the name of any person, Cargo number nor place of issuing, while the prosecution has claimed that on 1st Septe mber, 2017 at 10:00 a.m., they
have arrested the appellant Asif and taken into possession an envelope from the Tariq Coach Company containing the eight CNICs etc, which was reportedly arrived from Karachi and handed over to the appellant Asif.
16. In view of the above facts, the version of prosecution create doubts when the said
voucher, which even otherwise does not containing any particulars with regard to the
envelope allegedly received by the appellant Asif, was issued on 1st September, 2013 at 07:30 p.m. from Karachi how could the same arrived in the said office at 10:00 a.m., on the said date (01- 09-2013). Besides of all for to disprove the case of prosecution the cross -
examination of Investigation Officer Nazir Ahmed Sub- Inspector in itself is enough.
17. Now adverting to the cross -examination of the I0 it would be appropriate to reproduce
the Urdu version of his cross -examination as under:
18. In view of the above cross -examination and defective investigation by the
Investigation Officer, it is established that the prosecution is miserably failed to prove its case
against the appellants Muhammad Asif, Danish Ali and Syed Asad Kazmi, beyond shadow of
any doubt, as such, the impugned judgment passed by the learned trial Court suffers from misre ading and non- reading and misappropriation of evidence also suffers from material
illegalities and irregularities, improprieties, ridiculous and perverse, which has resulted miscarriage of justice and appellants were convicted illegally and unlawfully, as such, Criminal Appeal No.99 and 100/2015 are accepted and the impugned judgment passed by the trial Court to the extent of appellants Muhammad Asif, Syed Asad Kazmi and Danish Ali is hereby set aside. The appellants are acquitted of the charge. They are on bail. Their bail
bonds are stand discharge.
The case of the appellant Rahim alias Inayatullah after recording his confessional
statement under section 164, Cr.P.C. before the learned Judicial Magistrate and further
recovery of Pakistani original CNIC and Passport the case has been proved against the said
appellant, who being the national of Afghanistan as managed to prepare CNIC and Passport
and also used the same as genuine Pakistani Citizen. Hence, committed offence under section 471, P.P.C. read with s ection 30(1)(2) of NADRA Ordinance and under section 14 of
Foreigner Act and has rightly been found guilty of offences by the learned trial Court, as such, the appeal No.101/2015 of Rahim alias Inayatullah is hereby dismissed. He was on bail and did not appear for so many hearings show cause notice was issued to his surety. Who appeared and stated that the appellant is out of country and he is unable to procure his attendance.
In view of the above situations, the office is directed to issue perpetual warra nt of
arrest of accused/appellant Rahim alias Inayatullah, which shall be executed through FIA Police Station, however, the case of surety be dealt in accordance with law as per order dated 24th August, 2017 passed by this Court in Appeal No. 101/2015.
JK/131/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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