2020 PLP 788 (MLD)

ABDUL MOBEEN LAKHO, J.

Applicants (i) Ismail Waliullah son of Waliullah, (ii) Fahad Waliullah son of Waliullah and (iii) Mroh Mohammad Faid wife of Ismail Waliullah, seeks post arrest bail in a case bearing crime No. 203 of 2019, Police Station FIA, AHT, Circle, Karachi, registered under sections 3(2), 13/14 Foreigners Act, 1946, read with sections 420, 468, 471 and 109 Pakistan Penal Code.

2. Briefly, the facts as narrated in the First Information Report are that:- "Consequent upon Enquiry No. 365/2019 dated 10.06.2019 of FIA, AHT, Circle, Karachi, initiated by Inspector Mehboob Ali Jokhio, Incharge Shift "A", FIA, I&AHS, Departure, JIAP, Karachi, which reveals that passengers named above were attempting to depart from JIAP Karachi on the strength of Myanmar Passports but they were offloaded and referred to this circle with the following remarks:

1. Ismail Waliullah son of Waliuyllah, Myanmar Passport No.DD9911845 dated 22.01.2018.

2. Fahad Waliullah son of Waliullah, Myanmar Passport No.DD9911821 dated 22.01.2018.

3. Mroh Mohammad Faid wife of Ismail Waliullah, Myanmar Passport No.DD9911856 dated 22.01.2018.

4. Teaf Ismail daughter of Ismail Waliullah, Myanmar Passport No.DD9911839 dated 27.11.2018 (minor having DOB 17.11.2018). The four paxs/passengers were proceeding to Canada on the strength of Myanmar Passports having pasted Canadian Visit Visa for destination. During Immigration clearance on scrutiny of their travel documents, it transpired that the Canadian Sticker Visit Visas pasted on Passport No.DD9911845 Page No.#24, Passport # DD9911821 Page No.#20, Passport No.#DD9911856 Page No.#24 and Passport # DD9911839 on Page No.#28, all the Canadian Visit Visa pasted on their Myanmar Passports seems to be fake/forged. On further scrutiny it revealed that all the four paxs arrived from Jeddah on dated 07.06.2019 at JIAP, by Emirates flight and they have valid Pakistan Visas. Hence all the four paxs [passengers] have been offloaded and are being sent to you for further verification and necessary legal action at your end, please. From the enquiry and disclosure of accused offloadees named above, it transpired, as disclosed by accused at S.No.01, that they are Myanmar nationals as well as of Myanmar origin however their forefathers reached Saudi Arabaia long time ago due to critical situation for Muslims in Myanmar. He was born in Saudi Arabia and lives in Makkah (Missfallah) and permanently settled there and one of his brothers namely Usman is settled in Canada (Toronto) since 2013/2014. In the year 2017 he married with Mroh Mohammad Faid in Saudi Arabai and in the Year 2018 he was blessed with baby girl namely Teaf Ismail. Offloadee Ismail Waliullah also disclosed that he along with his family i.e. wife and one daughter as well as his brother Fahad Waliullah was desirous to proceed to Canada to join his brother and in this connection he came in contact with an illegal agent namely Ibrahim (Saudi based Burmese national) who made all necessary arrangements including Burmese Passports for them from Myanmar Embassy at Riyadh, Saudi Arabia against huge payment as well as Pakistani Visit Visas. The said agent also arranged/provided Canadian visas and he never appeared before Canadian Embassy in Saudi Arabia. He further disclosed that his real brother Muhammad Usman has commitment for payment of a large amount to agent Ibrahim which is supposed to be paid after their reaching at Canada and his brother is in touch with the agent namely Ibrahim. Accused Ismail Waliullah further disclosed that in the first week of May 2019 agent Ibrahim shown all the passports with Canadian visas to him and informed that they will have to travel from Saudi Arabia to Pakistan then they will depart from Pakistan to Canada in the month of June 2019 and also said it is not possible to proceed from Saudi Arabia to Canada directly due to some unspecified reason and arranged visit visas for Pakistan. The agent demanded and received amount of SAR 15,000 for Pakistan visas and air tickets for the sectors Jeddah-Karachi-Toronto Karachi. Accordingly, they reached Karachi from Jeddah on 07.06.2019 through Emirates Airline as per directions of agent Ibrahim, they were received by a sub-agent namely Abdul who too seems to be Burmese national and they were stayed in Airport Hotel. On 09.06.2019 they reached at JIAP Karachi for taking their flight for Toronto. After obtaining the boarding cards from the airline counter, when they reported at Immigration counter, they could not give plausible replies to the questions about Canadian Visas due to which they were offloaded and referred to FIA AHTC Karachi for further necessary legal action.

3. Mr.Qamar Iqbal, advocate, representing the applicants / accused contended that applicants/accused are innocent and have been falsely implicated in the present case with mala fide intention and ulterior motives; learned counsel further contended that the applicants/ accused were in possession of valid travelling visas issued by Kingdom of Saudi Arabia and the Canadian government. He further contended that the author of the FIR i.e. the complainant and the investigation officer of the matter is one and the same, learned counsel for the applicants/ accused argued that boarding Cards, Tickets, Visas were issued at Kingdom of Saudi Arabia to board flight for Toronto from Pakistan on 09-06-2019. Entry in Pakistan is valid upto 01-07-2019; learned counsel further argued that the sections applied in FIR would come within the purview of further enquiry as provided under Section 497(2) Cr.P.C. but learned trial court misapplied provisions of sections 3(2), 13/14 Foreigners Act, 1946; learned counsel argued that the prosecution also could not prove after due enquiry and investigation that the travelling documents i.e. passport and visas issued are fake. Learned counsel for the applicants / accused relied upon the case law reported as 2017 PCr.LJ 561. 2003 MLD 165, 1996 SCMR 1132. 2010 MLD 1251, 2003 PCr.LJ 1903 and 1995 PCr.LJ 1349.

4. Choudhry Wasim, Assistant Attorney General, representing the State, argued that the applicants/accused has been rightly booked in the present case with specific role together with documentary evidences; learned AAG further contended that there is sufficient material available with the prosecution to connect the accused with the crime; that the applicants / accused knowingly, intentionally and deliberately tried to obtain fake visas from Kingdom of Saudi Arabia and were trying to travel on fake travelling documents from JIAP to Canada; per learned AAG upon doubt applicants/accused were offloaded, however; applicants/accused could not furnish satisfactory documents and also failed to satisfy the immigration authorities deployed at Airport for immigration purposes; that verification letters have also been sent to the authorities at Myanmar, Canadian Embassy through Ministry of Foreign Affairs at Islamabad but the reply thereof is still awaited; learned AAG oppose the grant of post arrest bail; lastly learned AAG contended that the post arrest bail plea of the applicants / accused may be dismissed.

5. I have heard learned counsel for the applicants / accused and the learned Assistant Attorney General for Pakistan.

6. After scanning record only for tenatative assessment it seems that applicants/accused were travelling from Kingdom of Saudi Arabia to Pakistan i.e. Jinnah International Airport Pakistan and subsequently were to board for Toronto. The applicants/accused were allowed to exit KSA for onward journey to Karachi and got these passport and visas scanned electronically and were permitted to exit without any hindrance. The contention of learned counsel the inquiries with regard to the fake documents is concerned; there is no response transmitted to the Immigration authorities at Pakistan from Embassy of Kingdom of Saudi Arabia, Myanmar - Toronto - Canada; however, prosecution till today has nothing on record except the letters written by the Investigation Officer for confirmation verification of the travelling documents. I am fortified with the case law reported in 2017 PCr.LJ 561 in the case of Sheraz v. The State, it has been held as follows:- "

S. 497

Penal Code (XLV of 1860), Ss. 419, 420, 468, 471 & 109

Foreigners Act (XXXI of 1946). Ss. 3(2), 13 & 14

Foreigners Order, 1951, Rr. 3 & 4

Using as genuine a forged document and refusing to furnish information, which a person ought to disclose or furnish, national status of accused

Bail, grant of

Further inquiry

Documentary evidence

Accused alleged the documents to be genuine

Prosecution took plea that documents were forged

Case entirely based upon documentary evidence

Genuineness and falsehood of such documentary evidence could be determined by the Trial Court after trial

Case of accused was of further inquiry

Bail was granted, in circumstances" (c) Criminal Procedure Code (V of 1898)

S.497

Penal Code (XLV of 1860), Ss. 419, 420, 468, 471 & 109

Foreigners Act (XXXI of 1946), Ss. 3(2), 13 & 14

Foreigners Order, 1951, Rr. 3 & 4

Using a forged document as genuine and refusing to furnish information, which a person ought to disclose or furnish, national status of accused

Bail, grant of

Further inquiry

Prosecution sought verification of certain documents which were awaiting the verification

Case of accused, in circumstances, fell within the purview of further inquiry

Punishment for most of the offences with which accused was charged not covering by prohibitory clause of S. 497, Cr.P.C

Accused was entitled to the concession of bail in circumstances" 2003 MLD 165 in the case of Muhammad Ashraf v. The State "

S.497(2)

Penal Code (XLV of 1860), Ss.419/420/468/ 471/109

Foreigners Act (XXXI of 1946), Ss. 3(2)(a)(b)/13/ 14

Bail

Accused having been charged under different provisions of two different statues of similar nature was to be tried under the statue which entailed lesser punishment

Section 419 & 420, P.P.C, were bailable whereas S. 468 & 471, P.P.C, were non-cognizable

Accused was not alleged to have prepared fake and forged passport and he was no more required for investigation

Case of accused requiring further enquiry as envisaged by S. 497(2), Cr.P.C., accused was admitted to bail in circumstances" 1996 SCMR 1132 in the case of Saeed Ahmed v. The State, the honorable apex Court has held as follows.-- "

S.497

Penal Code (XLV of 1860), Ss. 406/420/468/471/ 409

Constitution of Pakistan (1973), Art.185(3)

Bail, grant of

Case against accused entirely depended upon documentary evidence which was in possession of the prosecution and there was no possibility of tampering with the same

Petition for leave to appeal was converted into an appeal and the accused was admitted to bail in circumstances" 6(sic). Apart from above, suffice it to say that, the author of the First Information Report himself shall not decide to investigate the matter on his own as it is well settled principle of law that an Officer who registers the FIR would transfer the same to some other officer for Investigation instead of investigating the same on his own whims which is against the norms of Administration of Criminal Justice System. As discussed supra; the applicants/accused have successfully made out a case which requires further probe into their guilt as provided to the limb of section 497(2), Cr.P.C.

7. These are the reasons of short order dated 06.11.2019 by which applicants/accused were enlarged to post arrest bail subject to their furnishing solvent surety in the sum of Rs.150,000/- each to the satisfaction of learned trial Court. Note: The observation made hereinabove are tentative in nature and shall not prejudice the case at trial. ADN/I-1/Sindh Bail allowed.