1988 P Cr (PLP)

2. The prosecution case is that the petitioner demanded and received Rs.50,000 alongwith passport and identity card from Mushtaq Ahmad on the false pretext to provide him employment in Kuwait but neither got him employed abroad nor returned him the amount.

3. Learned counsel for the petitioner submitted that there is a delay of 4 years in lodging the F.I.R., that the allegations against the petitioner are totally false; that, in fact, one Muhammad Aslam had received the amount, passport and identity card from Mushtaq Ahmad on the promise of sending him abroad; that the visa was provided to Mushtaq Ahmad, which expired due to his negligence, so he could not proceed to Kuwait; that the petitioner has been involved merely because the transaction between Mushtaq Ahmad and Muhammad Aslam had taken place at his shop; that a Panchayat was convened to settle the dispute between the parties and the Panchayat had found the petitioner innocent; that some of the members of the Panchayat have sworn affidavits in this respect and that the alleged offence punishable under section 22 of the Emigration Ordinance, 1979 does not fall within prohibitory clause of section 497, Cr.P.C., in that the maximum punishment in this section is imprisonment for 14 years or fine. Emphasizing the word 'or fine', the learned counsel maintained that the petitioner may, in the discretion of the Court, be awarded sentence of only fine, therefore, such a punishment would not bring the case within the restrictions contained in section 497, Cr.P.C. Learned counsel also argued that the prosecution case taken to extreme would not entail punishment of imprisonment of 10 years or more and that the Magistrate Section 30 trying the case cannot award punishment beyond 7 years. Reliance has been placed on case Amir v. The State 1973 P Cr. L J 205, Muhammad Akhtar v. The State 1984 P Cr. L J 2340 and Muhammada v. The State 1986 PCr.LJ 1103. Conversely, Mst. Shereen Masood, the learned counsel for the State relied on case Muhammad Riaz v. The State P L D 1986 Kar. 567 to argue that the longest imprisonment provided for offence punishable under section 22 of the Emigration Ordinance, 1979 being 14 years, therefore, the case does not go out of the prohibitory clause of section 497, Cr.P.C.

4. I have considered the submissions made by the learned counsel for the parties with care. I have not been able to persuade myself to agree with the learned counsel for the petitioner. I find that Mushtaq Ahmad P.W. in his statement before the police stated that Hafiz Ahmad Khan petitioner had received Rs.50,000 from him on the false pretext of sending him abroad for employment and that 8 P.Ws. in their statements recorded under section 161, Cr.P.C. have supported him. The submissions made by the learned counsel that the petitioner is innocent; that the amount was, in fact, received by one Muhammad Aslam; that the petitioner has been involved simply because the transaction between Muhammad Aslam and Mushtaq Ahmad had taken place at his shop and that the petitioner was found innocent in the Panchayat convened to settle the dispute, require deeper appreciation of the evidence, which is neither advisable nor desirable at this stage. The affidavits brought on record are not of the witnesses in whose presence the petitioner had allegedly received Rs.50,000 fro Mushtaq Ahmad on the false pretext of sending him abroad. In view of the material collected by the police during investigation, it cannot be said that there are not reasonable grounds to believe that the petitioner had committed the alleged offences.

5. I do not see any force in the argument of the learned counsel for the petitioner that since the trial Court in its discretion can award sentence of fine exclusively and that the trial Magistrate cannot award punishment of 10 years or more, therefore, the case goes out of the ambit of subsection (1) of section 497, Cr.P.C. The question for consideration is whether the term offence punishable with death or imprisonment for life or imprisonment for 10 years' used in subsection (1) of section 497, Cr.P.C. covers an offence punishable with imprisonment for 10 years or more or whether this term also applied to cases punishable with sentence of only fine or to the cases which taken to the extreme would not entail punishment of imprisonment more than 10 years. I am of the view that in considering the question of prohibition, the Court has to see the maximum punishment prescribed for a particular offence and nothing more or less.

6. In case Muhammad Akhtar v. The State 1984 P Cr. L J 2340, the learned Single Judge while seeking support from Ashraf Ali Shah v. The State Criminal Bail Application No. 33 of 1982 and Jawaid Hussain v. The State Criminal Bail Application No. 804 of 1981, has observed: "No doubt the imprisonment for 14 years has been prescribed for the offences under consideration. But in the alternative punishment of fine has also been provided for the said offences. When two alternative punishments one of imprisonment and another of fine are provided for any offence, the trial Court would have unfettered discretion, to resort to any punishment. In such a case it would be difficult to hold such offence to be exclusively punishable with either of the punishment. Therefore, I am inclined to agree with the view the offences under consideration are not covered by the restrictions imposed by section 497, Cr.P.C." Contrarily, in case Muhammad Riaz, v. The State P L D 1986 Kar. 567, the learned Single Judge agreeing with the view of another learned Single Judge expressed in Criminal Bail Application No. 611 of 1985, has observed as follows:‑ "Therefore, while deciding as to whether the offence is covered by subsection (1) of section 497, Cr.P.C. or not, the only points to be considered by the Court are whether offence is non‑bailable and whether maximum punishment that could be awarded is imprisonment of 10 years or more. In the instant case imprisonment, which could be awarded is 14 years and, therefore, this offence would fall within the prohibition imposed by subsection (1) of section 497, Cr.P.C.".

7. With due respect to the views expressed in cases Muhammad Akhtar v. The State 1984 P Cr. L J 2340, Ashraf Ali Shah v. The State Criminal Bail Application No. 33 of 1982 and Jawaid Hussain v. The State Criminal Bail Application No. 804 of 1981, I find, myself, in full agreement with the contrary view taken in case Muhammad Riaz v. The State P L D 1986 Kar.

567. The relevant law may be reproduced advantageously:‑ "Section 22 of the Emigration Ordinance, 1979.‑‑ 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 may extend to fourteen years, or with fine, or with both." "Section 497, Cr.P.C.‑‑ (1) When any person accused of non‑bailable offence is arrested or detained without warrant by any Officer‑in‑charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years." From the examination of the aforesaid provisions of law, it is very much obvious that subsection (1) of section 497, Cr.P.C. says that person accused of non‑bailable offence shall not be released on bail if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death, or imprisonment for life or imprisonment for 10 years. The word 'punishable' used in subsection (1) is of great significance. Similarly, the omission of the sentence of fine which may be awarded in addition to imprisonment or exclusively, in subsection (1) is not without significance. The view point of the learned counsel for the petitioner that in a case punishable with death, imprisonment for life or imprisonment for ten years, if the Court dealing with bail application is in a position to visualize that the facts of a particular case taken to its extreme would not entail imprisonment for ten years or more and similarly offences although punishable with imprisonment for life or imprisonment for ten years, yet triable by a Magistrate 1st Class/ Magistrate Section 30, wherein it can safely be foreseen that the trial Court will not pass imprisonment for ten years or more, the same will go out of the restrictions contained in subsection (1) of section 497, Cr. P.C., does not appeal to reason, in that it is neither permissible nor desirable, under the law, to anticipate or visualize the sentence which is yet to be passed by a Court because it is not possible to know what sentence the trial Court will award on the conclusion of the trial and the' possibility of the transfer of the case to a Court of higher jurisdiction on the application of the complainant or sending of the same to the Court of Session under section 347, Cr.P.C. cannot be excluded. Furthermore, to accept this view point of the learned .counsel would mean that offences such as sections 326, 377, 392, 458 and 409, etc. of the Pakistan Penal Code, which although punishable with imprisonment for life or ten years, are yet triable by Magistrate 1st Class, would automatically go outside prohibitions if they are tried by Magistrate 1st Class/ Magistrate Section 30 and when transferred sent to or otherwise tried by Court of Session would fall within prohibitions under subsection (1) of section 497, Cr.P.C. I am afraid this could not be the intention of Legislature and this would be stretching the law of bail too far in favour of the favourite child of law to pull a particular case out of the prohibitions. Furthermore, to accept this view point would tantamount to minimizing the maximum punishment prescribed in the offences for the purpose of bail and also taking the case out of the restrictions imposed under section 497, Cr.P.C. For all these reasons, I am convinced that the sole criteria for determining the question whether the case falls within the prohibitory clause of section 497, Cr.P.C. as the maximum sentence prescribed in a particular offence and not the minimum sentence or the exclusive sentence of fine only, the considerations such as lack of powers of the trying Court to award sentence of ten years or more or pre‑mature visualizing that in the peculiar circumstances, the offence will not entail punishment more than 10 years, being foreign to the statutory law of bail are totally irrelevant. For what has been said above, the bail application is dismissed. The ad interim bail granted to the petitioner on 3‑11‑1987 is recalled. He is present in Court. He shall be taken into custody and sent to jail as under trial prisoner. M.Y.H./A‑230/L Bail refused.