2021 P Cr (PLP)

SADIQ MAHMUD KHURRAM, J.

Through this petition under section 497 of Cr.P.C. the petitioner namely Muhammad Tariq Ajmal, seeks his post arrest bail in case FIR No.216 of 2019 dated 28.05.2019 registered at Police Station FIA/ACC Multan in respect of offences under sections 17 and 22 of The Emigration Ordinance, 1979 and under section 6 of the Passport Act (XX of 1974) and under section 406, P.P.C.

2. The allegation as against the petitioner, as culled from the evidentiary material available before the Court, is that Fahad Shafi, SI, FIA Circle Bahawalpur received information regarding running of illegal travel agency by petitioner, thus, acting on the same the complainant along with other police officials raided the said travel agency, who on inquiry could not produce any valid licence and in presence of petitioner, search of the travel agency was carried out, which led to the recovery of nine Pakistani Passports along with other documents and a computer monitor, hence, the case was registered against the petitioner.

3. I have heard the learned counsel for the parties and perused the record with their able assistance.

4. In instant case, allegation against the petitioner is that he was found running illegal travel agency and when raid was conducted, he could not produce any valid licence to the raiding party, which led to the recovery of nine Pakistani Passports along with other documents and a computer monitor. There is no allegation that the petitioner was found in the possession of a forged document or that the same had been prepared or used with his active connivance. The petitioner has annexed the copy of Articles of association of Safar-e-eman Travels and Tours (Private) Ltd, which is a Limited by Shares company incorporated under the Companies Act, 2017. The petitioner has also annexed copy of Certification of Incorporation of the said company as issued by Additional Joint Registrar of the companies, company registration office, Securities and Exchange Commission of Pakistan, Multan. The petitioner is holding 52500 shares of the said company. This aspect of the case has not been investigated by the Investigating Officer. No action has been taken as against the petitioner under Travel Agencies Act, 1976. Section 6 of the Travel Agencies Act, 1976 provides that no person shall hold himself out or act as travel agency unless he holds a licence and that no airline or other carrier shall delegate general authority in respect of sales, either directly or through a sub contract, to a person who does not hold a licence. It is further provided by section 14 of Travel Agencies Act, 1976 that any travel agency which contravenes or fails to comply with the provisions of this Act or the rules or violates the prescribed code of conduct shall, without prejudice to any other action that may be taken against it under this act be punishable with fine which may extend to twenty five thousand rupees and that no court shall take cognizance of an offence punishable under the Act except upon a complaint made in writing by or under the authority of the Federal Government. In exercise of the powers conferred by subsection (2) of section 14 of the Travel Agencies Act, 1976 (XXX of 1976), the Federal Government was pleased to authorize the Controller, Department of Tourist Services, to make complaints in Courts in respect of the offences under the said Act committed by the travel agencies. Application of section 6, Passports Act would also be determined by the learned trial Court after appraising evidence. On tentative assessment of material, case of the petitioner requires further probe. The petitioner was arrested on 11.07.2018 and he remained on physical remand. Nothing incriminating was recovered during the said period from the present petitioner by the Investigating Officer. Learned Assistant Attorney General Pakistan, after perusal of the record, stated that there is no other case of similar nature registered against the petitioner. The charge of offences punishable under sections 17, and 22 of the Emigration Ordinance, 1979 has been levelled against the petitioner. Section 22 of the Emigration Ordinance, 1979 provides for imprisonment for a term which may extend to 14 years, or with fine, or with both. Section 17 of the Emigration Ordinance, 1979 provides for imprisonment for a term which may extend to five years, or with fine, or with both. Offence under section 6 of Passport Act, 1974 is punishable with imprisonment may extend to three years, or with fine, or with both, provided that a person guilty of an offence punishable under clause (h) shall be punished with rigorous imprisonment for a term which shall not be less than six months and with fine which shall not be less than one thousand rupees and notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898) an offence punishable under clause (b) of subsection (1) shall be a bailable offence. Section 406, P.P.C. is also punishable with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. The insertion of the word "or" in these sections by the Legislature, means that the sentence of imprisonment is not mandatory and it has been left at the discretion of the court of law to either sentence the accused with imprisonment or with fine or both. The application of this discretion, while sentencing the accused, can only be determined by the learned trial court after recording of the evidence. The law provides for the possibility that if the petitioner is convicted after recording of evidence he may only be sentenced to payment of fine only. Hence further incarceration of the petitioner would serve no purpose at all. The petitioner is behind the bars since his arrest and is no more required by the Federal Investigation Agency for further investigation. There is no proof available with the prosecution that the petitioner will either abscond or tamper with the prosecution evidence. All these aspects make the case of the petitioner requiring further inquiry and probe which can only be undertaken by the trial court.

5. For the foregoing reasons the petition in hand is allowed and petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs.500,000/- (Rupees five hundred thousand Only) with two sureties each in the like amount to the satisfaction of learned trial court.

6. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial court. SA/M-145/L Bail granted.