2012 YLR 2270 (PLP)
ASAD ULLAH — Petitioner Versus THE STATE and another — Respondents
| Citation | 2012 YLR 2270 (PLP) |
| Forum / Court | Lahore |
| Bench Members | Abdul Sami Khan, J |
| Parties | ASAD ULLAH — Petitioner Versus THE STATE and another — Respondents |
| Primary Law | (a) Criminal Procedure Code (V of 1898), (b) Criminal Procedure Code (V of 1898) |
Q1: What are the key laws and sections cited in 2012 YLR 2270 (PLP)?
This judgment primarily cites: (a) Criminal Procedure Code (V of 1898), (b) Criminal Procedure Code (V of 1898) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2012 YLR 2270 (PLP)?
The case was heard and decided by the Lahore bench comprising: Abdul Sami Khan, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2012 YLR 2270 (PLP) (ASAD ULLAH — Petitioner Versus THE STATE and another — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Fayyaz Ahmad Mehr for Petitioner.
Headnotes / Summary
S. 497(2)
Emigration Ordinance (XVIII of 1979), Ss. 17 & 22
Unlawful emigration, etc., receiving money, etc. for providing foreign employment
Allegation against the accused was that he had received certain amount of money for sending the complainant and his sister abroad
Contentions of the accused were that a money dispute between the parties had been transformed by the complainant into - the present criminal case; that there was a delay of two years in lodging of F.I.R.; that during investigation of the case it came on record that a lesser amount was outstanding against the accused compared to what was claimed by the complainant, and said amount was outstanding in regard to, another matter; that prosecution witnesses were related inter se; that no other case of similar nature had ever been registered against the accused; that nothing was recovered from the accused during the investigation; that offence with which accused was charged with did not fall within the prohibitory clause of S.497, Cr.P.C, and that the mother of the accused had submitted a sworn affidavit during the investigation stating that the monetary dispute had been resolved
Version of the complainant in regard to the quantum of amount was not established as correct
Accused had undergone physical remand but nothing had been recovered from his possession
During investigation of the case mother of the accused had submitted a sworn affidavit, wherein she categorically supported the version of the accused that the monetary dispute was in respect of another matter
Alternative punishment of fine had been provided in S. 22 of the Emigration Ordinance, 1979, for which reason the said offence did not fall within the prohibitory clause of S. 497, Cr. P. C
Challan had been submitted against the accused and he was not required for purposes of investigation
Case against the accused called for further inquiry into his guilt within the purview of S. 497(2), Cr. P. C
Bail petition of accused was allowed and he was admitted to bail. 2004 YLR 68; 2007 PCr.LJ 401 and 2011 PCr.LJ 1214 ref. Tariq Bashir and 5 others v. The State PLD 1995 SC 34 rel.
S. 497
Prohibitory clause of S.497, Cr.P.C-Scope
When two interpretations were possible regarding guilt of the accused, the interpretation in favour of the accused was to be considered for determining whether the offence fell within the prohibitory clause, of S: 497, Cr.P.C. Muhammad Ilyas Khan, Deputy Attorney-General for the State and Malik Nasir Majeed, Inspector, FIA with record.
Judgment & Decree
ABDUL SAMI KHAN, J.
Through this petition under section 497, Cr.P.C. Asad Ullah petitioner has sought bail after arrest in case F.I.R. No. 156/12, dated 23-2-2012 registered at Police Station FIA, AHTC, Gujranwala for offences under sections 17/22 of the Emigration Ordinance, 1979.
2. The learned- counsel for the petitioner contends that the petitioner is innocent and he has been falsely involved in this case. As a matter of fact a money dispute has been transformed by the complainant into _ occurrence in question. There is a delay of two years in lodging of the F:I.R. During investigation it came on record that only an amount of Rs. 1,32,000 is outstanding against the petitioner that too regarding another matter. The prosecution witnesses are related inter se. No other case of such nature has ever been registered against the petitioner. The petitioner is arrested in connection ''with this case on 1-3-2012 and since then he is behind the bars. Nothing has been recovered from the petitioner during the investigation of this case'. Section 22 of the Emigration Ordinance, 1979 carries alternate punishment of fine also and law is settled that where punishment of fine is provided, such offences do not fall under the prohibitory clause of section 497, Cr.P.C. During investigation mother of complainant sworn affidavit wherein she categorically stated that the money dispute of Rs.1,32,000 has been resolved. The learned counsel placed reliance on 2004 YLR 68 and 2007 PCr.LJ 401.
3. On the other hand the learned Deputy Attorney-General after going through the record submits that the petitioner is named in the F.I.R. with specific role of defrauding the complainant of a huge amount. The prosecution story is supported by the statements of independent witnesses and during the investigation the petitioner has given an option to the complainant that if out of three persons namely Hafiz Ghulam Mustafa, Dr. Muhammad Aslam and Muhammad Ayyaz Aslam anyone give finding regarding involvement of the petitioner in the offences or otherwise then he will pay the amount to the complainant and the last mentioned person after thrashing the matter has come to the conclusion that the prosecution story narrated in the F.I.R. is correct and petitioner has to give an amount of Rs.1,32,000 to the complainant. The petitioner has been sent to judicial lock-up quite recently and the offences with which the petitioner is charged fall within the prohibitory clause. The petitioner has committed offence which is against the society and such-like person defraud the innocent people, therefore, he is not entitled to any concessionary treatment from this Court. Challan has been submitted in the court the petitioner ought to face trial before the learned trial court rather than claiming the concession of bail before this Court. The learned Deputy Attorney-General placed reliance on 2011 PCr.LJ 1214.
4. Arguments heard, record perused.
5. Be that as it may, a bare perusal of the F.I.R. reflects that the petitioner received an amount of Rs.2,50,000 for sending the complainant and his sister abroad but during the investigation of this case it revealed that-petitioner had to pay an amount of Rs.1,32,000 to the complainant, thus, the version of the complainant to the extent of quantum of amount is not established as correct. The petitioner has undergone physical remand but nothing has been recovered from his possession. During the investigation of this case the mother of the complainant sworn an affidavit wherein she has categorically supported the version of the petitioner regarding dispute over money regarding another matter.
6. So far as section 22 of the Emigration Ordinance, 1979 is concerned an alternative punishment of fine has been provided by the law makers. When two interpretations are possible regarding the guilt of accused the interpretation in favour of accused is to be considered for that reason offence does not fall within the prohibitory clause of section 497, Cr.P.C. and in such-like cases bail is to be allowed to an accused person as rule and its refusal is an exception. Reliance in this regard is placed on the case of Tariq Bashir and 5 others v. The State (PLD 1995 SC 34). Challan has been submitted and the person of petitioner is no more required for the purpose of investigation, therefore, his further incarceration would not serve any beneficial purpose.
7. For what has been discussed above the case against the petitioner calls for further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs.50,000 (Rupees fifty thousand only) each with two sureties each in the like amount to the satisfaction of the learned trial Court.
8. It is, however, clarified that the observations made hereinabove are just tentative in nature and only for the disposal of this bail petition. MWA/A-93/L Bail granted.