1995 PLP 1821 (MLD)

The accused/applicant has approached this Court with a prayer to recall NBWS issued against him and enlarge him on bail. The facts of the case are that complainant Safdar Ali son of Sardar Ali, resident of House No.1101/17, Sector 1.1/D, New Karachi lodged his report/complaint stating therein as under:‑‑ "I am resident of House No.110/17, Sector 11/D, New Karachi. While I was searching for job, I came into contact with one Sheikh Sharif Ahmed in the month of October, 1991 who took me to his office i.e. Azhar & Co. at 130/D, Shop No.5, Green View Apartments. "B" Market, Phase‑I, D.H.A., Karachi, where Syed Ziauddin Shah was already present. Shaikh Sharif Ahmed introduced me with Syed Ziauddin Shah and told him about my employment in Saudi Arabia. They both gave me assurance and also told me to bring other desirous job seekers in Saudi Arabia and I was directed to bring Rs.30,000 for expenses etc. After about two days I reached the said office, where both the said persons were present and quite number of Passports were lying in the office. I paid them Rs.30,000 for which no receipt was issued to me. They told me to attend their office after two weeks to proceed for employment in Saudi Arabia. I accordingly reached in the offices after two weeks but was again directed to come after one week on the pretext that telex from their Principal at Saudi Arabia is awaited. Since then I am being kept on false promises. Kindly take necessary legal action in this regard." Thereafter Inspector F.I.A. Crime Circle-I, Karachi, lodged the F.I.R. punishable under section 6(1)(g) of Passports Act, 1975, and sections 18‑A and 22‑B of the Emigration Ordinance, 1979 and started investigation. The accused‑applicant after having come to know of the above case registered against him applied for pre‑arrest bail, interim pre‑arrest bail was granted to the applicant in the sum of Rs.50,000 by order, dated 21‑5‑1992 and subsequently the same was confirmed by order, dated 16‑8‑1992. After about three years the complaint was filed by the F.I.A., CC‑I, Karachi, under section 6(l)(g) of Passports Act, 1975 and sections 18‑A and,22(b) of the Emigration Ordinance, 1979. On 9‑1‑1995 challan was submitted in the Court of learned Special Judge, Central‑I, Karachi. Diary of the case, dated 9‑1‑1995 reads as under:‑‑ "A.D. Mr. Khalique Zaman is present anti filed complaint under section 24(6), E.O.1979 alongwith sanction of prosecution for accused Sh. Sharif and Zia Hussain Shah. Accused Sh. Sharif is on bail from this Court while accused Zia Hussain Shah has been shown as absconding. Put of to 22‑1‑1995. Issue notice to accused Sh. Sharif and issue N.B.W. against accused Zia Hussain Shah." I would also like to reproduce diary of the case, dated 16‑6‑1992 which reads as under:‑‑ "Applicant/accused is present on bail. Interim bail granted to applicant is hereby confirmed. Applicant/accused is directed to attend this Court and Investigating Officer of the case when called for investigation purpose. Surety papers received after verification are not proper as report. Applicant directed to furnish fresh surety within 7 days." Since 9‑1‑1995 the accused deliberately remained absent as such the Court issued notice for his appearance, which was not served. Thereafter notice to the surety was issued and the surety finally appeared in the Court and stated that he is not in knowledge of the whereabouts of the applicant and is not able to trace him out and finally on 10‑4‑1995 the learned trial Court imposed a fine of Rs.10,000, which was deposited by the surety in the Court vide receipt No.73652. On 23‑4‑1995 accused Shaikh Sharif. Ahmed was produced in the Court in pursuance of N.B.Ws. issued against him and the accused was remanded to jail custody. On 15‑5‑1995 bail application of the accused was moved in the learned trial Court, which was dismissed on. 25‑5‑1995. Hence he has approached this Court for the relief as stated earlier. I have heard Mr. Muhammad Saleh G. Memon, learned counsel for the applicant, who has contended (:) that the applicant/accused had voluntarily appeared before the Court of Special Judge Anti‑Corruption (Central‑I), Karachi and was granted pre‑arrest bail an merits but thereafter he was never served with any notice to appear before the learned trial Court; (ii) that the aforesaid arrest of the applicant was sudden and surprising because before execution of the N.B.Ws., he was not served with any notice to appear before the learned trial Court; (iii) that no proceedings or action under section 87/88, Cr.P.C. have been taken; (iv) that the accused/applicant having suffered from jaundice which is a fatal disease, was under the treatment of Dr Tauseef of Umer Clinic. The learned counsel for the applicant has referred the following case? law of the Honourable Supreme Court:‑‑ (1) Fazal Muhammad v. Muzaffar Hussain 1981 SCMR 959: In this case it has been held that "as for the alleged abscondence of the accused, there is nothing on the record to show that they had been declared proclaimed offender. It cannot, therefore, be said that they had `absconded' merely because they were not readily available to the police". This authority of the. Honourable Supreme Court is quite different and distinguishable from the facts of the present case. Here in this case, applicant Shy Sharif Ahmed was granted pre‑arrest bail by the learned trial Court on 21‑5‑1992.'Thereafter, he himself had chosen not to attend the Court and not to associate himself with the investigating agency, as a result of which, after a lapse of 3 years, the trial Court has issued N.B.Ws. against him, for facing the trial. (2) Khan Mir v. Amal Sherin 1989 SCMR 1987: In the above case it has been held that "In support of the present petition, the only ground urged is that the High Court has not given due consideration to the abscondence of the respondents. On a query made by us, the learned counsel for the petitioners frankly stated that no proceedings under sections 87 and 88, Cr.P.C. were taken against the respondents in respect of their alleged abscondence". In my opinion this authority is also not applicable in view of the fact that the accused/applicant was allowed pre‑west bail by the learned trial Court and on his own accord he remained absent from the Court. Therefore, proceedings under sections 87 and 88 were not taken against him and the learned trial Court rightly issued notice for his appearance and when notice was not served and his whereabouts were not known, ultimately the trial Court issued notice for appearance of the surety, who appeared in the Court and stated that he is not in the knowledge of the whereabouts of the applicant/accused and finally, as earlier pointed out, the surety was penalised. (3) The State v. Mukhtar Ahmed Awan 1991 SCMR.322. In this case it has been held that "It is unnecessary to examine the contentions raised by the learned Advocate‑General at any length, for, in view of the finding of the High Court that there were no reasonable grounds for believing that the respondent has committed the offences of which he was being accused, they amount to nothing more than mere technicalities. It may, however, be observed that it is not an absolute rule that A fugitive should under no circumstances be enlarged on bail although, it may be added, abscondence does constitute a relevant factor when examining the question of bail. It is matter essentially of propriety and not of law that a person accused of an offence should in the first instance move the Court of Sessions for pre‑arrest bail before approaching the High Court. Considering the circumstances of this case it is not possible to hold that the High Court made an error, requiring interference by this Court, in directly entertaining the application of the respondent". This authority, in any case, is not favourable or applicable to the case of the present applicant. In the medical certificate produced by the learned counsel for the applicant, tech is dated 21‑4‑1995, the Medical Officer has stated that Shaikh Sharif Ahmed remained under his treatment for the last 2 weeks for acute hepartitis and was advised for rest for 2 weeks more. The absence of the accused from the Court is for about 3 years. I have also heard Mr. Ikram Ahmed Ansari, learned DA.G., who has opposed the bail application and stated that the accused/applicant has misused the concession of bail granted to .him and is not entitled for any relief whatsoever. I would like to reproduce section 18(a)(b) and section 22(a)(b) of the Emigration Ordinance, 1979 which are as under:‑‑ "

18. Fraudulently inducing to emigrate, etc.‑‑‑ Whoever‑‑ (a) forges any document required for, or relating to, the emigration of any person, or has in his possession or under his control any instrument or article which may be used for the purpose of such forgery, or (b) by means of intoxication, coercion, fraud or wilful misrepresentation, causes or induces, or attempts to cause or induce, any person to emigrate, or enter into any agreement to emigrate, or leave any place with a view to emigrating, shall be punishable with imprisonment for a term which may extend to fourteen years, or with fine or with both.

22. Receiving money, etc. for providing foreign employment.‑‑‑ Whoever, for providing or securing or on the pretext of providing or securing, to or for any person employment in any country beyond the limits of Pakistan‑‑ (a) being an Overseas Employment Promoter, charges any fee in addition to the prescribed amount, or (b) not being such a Promoter, demands or receives, or attempts to receive, for himself or for any other person, any money or other valuable thing, shall be punishable with imprisonment for a term which extend to fourteen years, or with fine, or with both." I would also like to reproduce section 6(1)(g) of the Passports Act, 1975, which is as under:‑‑‑ "

6. Penalties for certain offences, relating to Passport.‑‑‑(1) A person shall be punishable with imprisonment which may extend to three years, or with fine, or with both if he‑‑ (g) is in wrongful possession of passport not lawfully issued to him or allows his passport to be used by another person." I have gone through the material placed on record and the authorities cited by the learned counsel for the parties. Admittedly the accused/applicant was allowed pre‑arrest bail on 21‑5‑1992 which was confirmed on 16‑6‑1992 with the direction to attend the Court and the Investigating Officer of the case when called for the investigation purpose. Thereafter, as earlier pointed out, on 9‑1‑1995 challan was submitted in the learned trial Court and notice for appearance of the accused was issued and finally his surety was issued a notice and he was required to produce the accused/applicant in the Court. Surety of the accused appeared in the Court and stated in the Court that whereabouts of the applicant are not known to him and he was not able to procure his attendance. Therefore, the surety was penalized by the Court and N.B.Ws. were issued by the learned trial Court and in pursuance of that he was arrested by the F.I.A. and was remanded to jail custody by the trial Court. The authorities cited by the learned counsel for the applicant are not favourable to the case of the applicant, as discussed earlier. The accused has been charge‑sheeted for an offence under sections 18‑A and 22(b) of the Emigration Ordinance, 1979, for which punishment is 14 years' R.I. or fine or with both and the offences for which the applicant is charge? sheeted fall within the prohibitory clause of section 497, Cr.P.C. The applicant/accused has misused the concession of bail by remaining absent for a p period of about 3 years. After getting pre‑arrest bail, he did not appear before the trial Court and did not associate himself with the investigating agency as per directions of the learned trial Court, with the result that after submission of challan the accused/applicant, on his own accord, has remained absent without any proper intimation to the Court and prima facie, misused 'the concession of the bail, granted to him as such, he does not deserve any concession at all. Keeping in view the above reasons, by short order, bail application was dismissed and these are the reasons for the same. N.H.Q./S‑1145/K????????????????? ??????????????????????? ??????????????????????? ??????????? ??????????? Bail refused,