2013 PLP 2644 (YLR)

ABDUL SAMI KHAN, J.

Through this petition under section 497, Cr.P.C. Haji Zahoor Ahmed petitioner has sought bail after arrest in case F.I.R. No.162/12, dated 5-9-2012 registered at Police Station FIA/Anti-Human Trafficking Control Circle, Rawalpindi in respect of offences under sections 18/22 of the Emi-gration Ordinance, 1979, section 489-F, P.P.C. and section 6, PA.

2. The learned counsel for the petitioner contends that the petitioner is innocent and he has been involved in this case by the complainant with mala fide intention and ulterior motive by widening the net. There is a delay of three years and nine months in registration of the F.I.R. which has not been explained by the complainant and this fact shows that the F.I.R. has been lodged by the complainant with due deliberations and consultations. No time and date has been mentioned in the F.I.R. when the alleged amount was handed over to the petitioner and his co-accused namely Muhammad Aslam by the complainant. A joint role of receiving the amount from the complainant along with his co-accused has been alleged in the F.I.R. During the investigation nothing was recovered from the petitioner. An alternate punishment of fine is provided under the Emigration Ordinance, 1979 so the offences with which the petitioner is charged do not fall within the prohibitory clause of section 497, Cr.P.C. The petitioner is previous non-convict, never involved in any criminal case, he is behind the bars since 18-12-2012, investigation qua him is complete, no useful purpose would be served by keeping him behind the bars, thus, his further incarceration would not serve any beneficial purpose at this stage.

3. On the other hand the learned Standing Counsel assisted by the learned counsel for the complainant after going through the record contends that there is absolutely no mala fide on the part of the complainant to falsely involve the petitioner in this case. The petitioner is named in the F.I.R. and specific role of defrauding the complainant of huge amount of Rs.9,60,000 is attributed to him therein. During the inquiry and later on during investigation as well the petitioner has been found involved by the investigating officer in this case. The prosecution witnesses still stand by their statements involving the petitioner in this case. Delay in such like cases is not fatal as people usually want to settle the dispute before approaching the concerned authorities. The petitioner is also involved in another case of similar nature.

4. After hearing the learned counsel for the parties and going through the record it has been noticed by this Court that there is a delay of three years and nine months and five days in registration of the F.I.R. which has not been explained by the complainant which fact prima facie shows that the F.I.R. has been got recorded after due deliberations and consultation. During the investigation of this case nothing was recovered from the petitioner. A joint role of receiving amount is alleged against the petitioner and his co-accused, therefore, applicability of the provisions of section 22 of the Emigration Ordinance, 1979 to the extent of the petitioner would be determined by the learned trial Court after recording of evidence. Offence under section 22 of the Emigration Ordinance carries alternate punishment of fine also, hence the offence with which the petitioner is charged comes out of prohibitory clause of section 497, Cr.P.C. It is also noteworthy to mention here that for the repayment of the disputed amount Muhammad Aslam co-accused has allegedly issued a cheque which was dishonoured on presentation which prima facie shows that provisions of section 489-F, P.P.C. qua the petitioner do not attract. Similarly as no incriminatory material, i.e. passport, identity card or rubber stamp, etc. have been recovered from the petitioner during the investigation of this case, therefore, application of section 6, Passports Act would also be determined by the learned trial Court after appraising evidence. The petitioner was arrested on 18-12-2012 and since then he is behind the bars, investigation qua him is complete, no useful purpose would be served by keeping him behind the bars, thus, his further incarceration would not serve any beneficial purpose at this stage. An accused cannot be kept in jail for an indefinite period as a measure of advance punishment. Reliance is placed on 2009 SCMR 734.

5. For what has been discussed above the case against the petitioner calls for further inquiry into his guilt covered by subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is admitted to post-arrest bail subject to his furnishing bail bond in the sum of Rs.200,000 (Rupees two hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court. AG/Z-10/K Bail granted.