2025 PLP 925 (MLD)

Sardar Muhammad sarfraz dogar, ACJ.

Through the instant petition, the petitioner is seeking post-arrest bail in respect of FIR No.83 dated 03.05.2024 registered for the offences under Sections 18 and 22 of the Emigration Ordinance, 1979 and Section 489-F, P.P.C at Police Station FIA-AHTC, Islamabad.

2. Briefly, the facts of the prosecution case are that the petitioner extorted an amount of 6000 from complainant's grandson namely Shahzaib Ali in presence of witnesses to send him abroad on work-visa without having any legal authorization. Later on, neither the petitioner sent the complainant's grandson abroad nor returned the money, rather, he dishonestly issued a cheque amounting to Rs.6,00,000/- which was dishonoured when presented for encashment in the concerned bank. Hence, the instant case was registered.

3. Heard. Record perused.

4. A cursory look at the case record would show that in the FIR no specific date has been mentioned on which the Shahzaib Ali had given money to the petitioner for sending him abroad, which aspect of the case cannot be overlooked while deciding this bail petition. There is no denial of the fact that the offences under Section 18/22 of the Emigration Ordinance, 1979 for which the petitioner stands charged are punishable with imprisonment for 14 years or with fine or with both. It is well settled that when a Statute provides two punishments simultaneously for commission of an offence, then for the purpose of bail, the lesser punishment is considered by the court and there is reason for that as in case the prosecution succeeds in proving its case against the accused, then whether the court will inflict him the maximum or the minimum sentence, which aspect of the case has brought the petitioner's case within the ambit of further inquiry as there is no certainty that he will be awarded the term of imprisonment. Guidance is sought from Qamar alias Mitho v. The State and others (PLD 2012 SC 2229. "Reginald Chude Bjekwe, Nigerian National v. The State, etc", (2021 MLD 2028), "Haji Faqir Khan v. The State, etc" (2017 PCr.LJ 1017), and "Bashir Ahmed v. The State, etc", (PLD 2014 Lahore 567). Moreover, Impugned order dated 16.01.2025 shows that the petitioner returned an amount of Rs.7,00,000/- to the complainant through two online transaction, in such backdrop, issuance of cheque in question within the meaning of Section 489-F, P.P.C is a matter which would be resolved by the trial court after having recourse to evidence. Reliance is placed on "Ali Anwar Paracha v. The State and another" (2024 SCMR 1596). Moreover, in Abdul Saboor's case, the honourable Supreme Court of Pakistan has held that for recovery of amount, civil proceedings provide remedies under Order XXXVII of Code of Civil Procedure, 1908 ("C.P.C"). Cheque is, admittedly, a negotiable instrument falling within the domain of Order XXXVII of C.P.C. and the Criminal Courts and it cannot be used as a tool for recovery in such like cases. There is also a considerable delay in lodging the FIR. The registration of criminal case for offence punishable under Section 489-F of Pakistan Penal Code, 1860, is not to be used as a tool for the recovery of amount for which law provides a separate remedy under The Civil Procedure Code, 1908. Reliance is placed on Qaiser Ali Khan v. The State and another (2017 YLR Note 47).

5. Petitioner is behind the bars since his arrest. Investigation of the case is complete and person of the petitioner is no more required by the police for the purpose of further investigation. Further incarceration of the petitioner would serve no useful purpose for the prosecution. Consequently, this petition is allowed and the petitioner is admitted to post arrest bail subject to furnishing of bail bond in the sum of Rs.200,000/- with two sureties each in the like amount to the satisfaction of the learned trial Court.

6. Before parting with this order, I deem it necessary to observe that the observations made hereinabove are tentative in nature and shall have no bearing on any of the other proceedings connected to this case. JK/52/Isl. Petition allowed.