2018 PLP 168 (YLRN)

AFTAB AHMED GORAR, J.

Applicant Ashraf Siddiqui son of Akhtar Ali Siddiqui sought for post arrest bail in crime No. 209 of 2017, Police Station FIA AHT Circle, Karachi, registered under Section 22(b) Emigration Ordinance 1979 read with Section 489-F Pakistan Penal Code. Earlier the bail plea of the applicant was declined by the learned court of Special Judge (Central)-II, Karachi vide order dated 22-09-2017; assailed hereinabove.

2. Precisely the prosecution story as is envisaged in the FIR is that FIA authorities received written complaint by Kashif Ahmed son of Sultan Ahmed later desire to proceed Canada over employment thus came in contact with accused Ashraf Ali Siddiqui who initially demanded an amount of Rs.15,00,000/- and settled at Rs.13,50,000/ . Meanwhile complainant showed his willingness to carry his wife and two children, on which applicant demanded Rs.20,00,000/- and received Rs.14,50,000/- on different occasion through different modes for getting job of complainant on work permit together with his wife and two children at Canada; other expenditure has also been borne by the complainant; whole amount comes to Rs.20,26.291/-, applicant had given two cheques to complainant as security; on presentation thereof same returned dishonored by the Bank; hence this FIR.

3. Mr. Jamil Ahmed, Advocate, representing the applicant contended that applicant is absolutely innocent and has been falsely implicated in the alleged case by the complainant with mala fide intention and ulterior motives; per learned counsel applicant aged about fifty five years and is patient of cardiac disease; per learned counsel applicant has no doubt usurp the hard earned amount of the complainant and is involved in heinous nature crime; per learned counsel this fact has not been mentioned in the order delivered by the learned trial court while not applying judicious mind; per learned counsel no documentary proof has been brought on record against the applicant, therefore the case of the applicant requires further probe into his guilt as is provided under subsection (2) of section 497, Cr.P.C.; per learned counsel alleged incident had taken place in the month of January 2016 while complainant has lodged FIR in the month of June, 2017; there is one year and six months delay in lodgment of the FIR; per learned counsel the applicant may be enlarged on post arrest bail. Learned counsel for the applicant has relied upon the case-law reported as 2002 SCMR 282, 1984 PCr.LJ 2340, 1985 PCr.LJ 2048, 2012 PCr.LJ 1858, 2014 PCr.LJ 48, PLD 2006 Kar. 165, 2008 SCMR 1448, 2000 PCr.LJ 161, 2006 SCMR 1225, PLD 1968 Lah. 464 and 2012 MLD 599.

4. Mr. Muhammad Javed K.K., Assistant Attorney General for Pakistan has vehemently opposed the grant of post arrest bail and contended that learned trial Court has rightly dismissed the bail plea of the applicant, per learned A.A.G. there is material available with the prosecution which prima face connect the applicant with the commission of alleged offence; per learned A.A.G. applicant has committed fraud upon an innocent person therefore deprived the complainant of his valuables; per learned A.A.G. applicant has knowingly issued cheques to the complainant to get his mind set but same on presentation returned dishonoured by the Bank; per learned A.A.G. applicant did not deserve for the concession of post arrest bail; per learned A.A.G. the bail plea of the applicant may be declined. Learned A.A.G. has relied upon the case-law reported as 2010 SCMR 1735 and 2002 SCMR 442.

5. Heard and record perused.

6. Admittedly, as per negotiation depict from the contents of FIR applicant travelled complainant two times to Dubai instead Canada except permit visa Canada as allied; applicant intentionally and knowledingly issued cheques against the amount of Rs.20,26,291/- in favour of the complainant, on its presentation same returned dishonoured; the act of cheating and fraud so as committed by the applicant with the innocent complainant would not appeal to the prudent mind that applicant has been falsely implicated in the present case with ulterior motives as alleged; Secondly applicant had defrauded the complainant by extorting huge amount in the name of permit visa of Canada for complainant along with his family members but applicant failed to abide by his allied as agreed between complainant and the applicant. Prima facie there is sufficient material available with the prosecution which connects the present applicant with the commission of alleged offence; it is also well settled principle of law that at bail stage deeper appreciation should be avoided rather to determine guilt of the accused. Now I would like to reproduce herein below the scope of Section 22 of Emigration Ordinance, 1979, which provides as follows:--

22. Receiving money, etc., for providing foreign employment.--Whoever, for providing or securing, or on the pretext or 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.

7. Thus the offence as is envisaged under sub-clause (b) of Section 22 of Emigration Ordinance, 1979, which provides fourteen years punishment and would ultimately fall within the purview of prohibitory clause of subsection (1) of Section 497, Cr.P.C. Apart from above present applicant has also been involved in similar nature offence as is evident from the Crime No. 104 of 2017, Police Station FIA, AHT Circle, Karachi registered under sections 17(1), 17(2)(b), 22(b) Emigration Ordinance, 1979 read with section 419, 420, 468, 471 and 109 P.P.C. meaning thereby present applicant is habitual offender in such type of cases. Nonetheless to mention here that nowadays these category of offences having lust of money by defrauding innocent people are risen day by day in the city therefore keeping in mind physical act of fraud on the shoulders of applicant, thus at this pre mature stage I am not inclined to grant post arrest bail to the applicant. The case law cited by the learned counsel for the applicant quite distinguishable from the facts of present case and could not be helpful to the applicant.

8. As discussed supra, the post arrest bail plea of the applicant is hereby dismissed. MQ/A-9/Sindh Bail refused.