2017 PLP 313 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned post-arrest bail application, applicant Babar Farooq has impugned order dated 10.09.2016, passed by the learned Special Judge, Anti-Corruption Central-I, Karachi, whereby his earlier bail application was declined.

2. Necessary facts spelt out from application are that on 20.06.2012, pax namely Hafiz Tariq Sohail son of Muhammad Siddique was offloaded from flight No.QR-319 at JIAP, Karachi, while proceeding from Karachi to Romania on the strength of tampered visa and changed pages of his passport. During enquiry, pax disclosed that he intends to proceed abroad for employment, thus he came in contact with accused agents Khalid Mehmood and Babar Farooq and they demanded Rs.10,00,000/- for aboard employment, and agent Khalid Mehmood received Rs.275,000/- as advance along with his passport, while accused Babar Farooq received Rs.225,000/-. Initially they sent him sent to Iran but could not arrange his onward travel to any European country. Thereafter accused attempted to obtain visit visa of France for him but the same was refused. Later on, accused got removed the refusal stamp and also made forgery in the passport of the pax but he was apprehended, hence instant FIR.

3. Learned counsel for applicant vehemently contended that applicant is innocent and has been falsely implicated in instant case; that co-accused Hafiz Tariq Sohail had falsely deposed that applicant had arranged fake via for him; that allegations leveled by the prosecution have not been supported by any witness; that applicant is no more required for further investigation and his further detention will not serve any useful purpose. Learned counsel relied on 2009 SCMR 734, 2014 PCr.LJ 297 and 2007 YLR 1114.

4. While controverting the above submissions, learned Standing Counsel has opposed the plea of bail and submitted that accused had arranged fake visa and main accused had pleaded guilty, hence he is not entitled for grant of bail.

5. Perusal of record emanate that at the first instance FIR No.149/2012 was lodged by the complainant Inspector Ali Hassan Zardari, Incharge, Shift-B, FIA under sections 17/22 Emigration Ordinance, 1979 read with 6(1) (e) Passport Act, 1974 read with sections 420/468/471/109, P.P.C. against accused Hafiz Tariq Sohail was apprehended at Karachi Airport, and ultimately, he pleaded guilty before learned trail Court and was convicted. Subsequently, complainant Inspector Ali Hassan Zardari has filed complaint under section 24(6) Emigration Ordinance, 1979 against applicant. There are mere allegations of accused Hafiz Tariq Sohail that he had paid amount to applicant on the account of providing him employment in abroad but applicant had arranged fake visa for said accused. Perusal of record reflects that instant complained is merely based upon the statement of accused Hafiz Tariq Sohail, while no other direct or tangible iota of evidence has been collected by the prosecution regarding commission of the alleged offence. Even no proof for payment of amount nor any eye-witness has been examined in whose presence, the said amount was paid to the accused nor any specific date and time of transaction has been disclosed, thus case requires further inquiry. Offence under sections 468 and 471, P.P.C. is punishable for 7 years, which does not fall within the ambit of restraining clause of section 497(1), Cr.P.C. However, offence under sections 22(b) of Emigration Ordinance, 1979, is punishable for 14 years or fine or both. It is well settled proposition of law that when two punishments are prescribed for any offence, preference should be given to the lesser one. Furthermore, if on the conclusion of the trial, accused is convicted and sentence only for the fine by learned trial Court, then his detention for the said offence could not be compensated.

6. Considering the circumstances referred supra, applicant has succeeded to make out the case for grant of post-arrest bail on the ground of further inquiry as envisaged in section 497(2) Cr.P.C. Consequently, applicant is enlarged on post-arrest bail on furnishing solvent surety in the sum of Rs.300,000/- (Rupees Three Lacs only) and P.R. bond in the like amount to the satisfaction of learned trial Court. The observations made supra are tentative in nature and learned trial Court shall decide the case on its merits. WA/B-22/Sindh Bail granted.