Nasir Mehmood vs The State
This matter concerns a post-arrest bail application filed by the petitioner in a case registered under Sections 17 and 22 of the Emigration Ordinance, 1979 at Police Station FIA, P.C. Gujranwala. The prosecution alleged that the petitioner, acting in furtherance of a common intention with co-accused, deceitfully induced the complainant party to pay Rs. 2,50,000/- on the promise of arranging foreign employment, which was never fulfilled nor was the money returned. The primary legal question before the High Court was whether the petitioner was entitled to bail when the case against him rested entirely on telephonic instructions allegedly given from abroad without any direct evidence of receiving funds. The Lahore High Court held that the absence of direct evidence showing receipt of money by the petitioner, coupled with the reliance on an audiocassette whose evidentiary value could only be tested at trial, brought the petitioner's case within the scope of further inquiry. Consequently, the High Court allowed the petition and granted post-arrest bail.
- Whether the absence of direct evidence showing receipt of disputed money by an accused warrants the grant of post-arrest bail on the ground of further inquiry?
- Whether reliance on an unverified audiocassette to connect an accused to an offence under the Emigration Ordinance, 1979 requires determination at trial rather than at the bail stage?
- Can an accused who allegedly gave telephonic instructions from abroad be admitted to bail where receipt of funds is not directly established during investigation?
- Section 17, Emigration Ordinance 1979
- Section 22, Emigration Ordinance 1979
ORDER
NAJUM UZ ZAMAN, J.- Seeks post-arrest bail in case FIR No.25/2004 dated 27.07.2004 for the offences under Sections 17/22 of E.O., 1979 registered at Police Station FIA, P.C. Gujranwala.
2. In brief the allegation against the petitioner is that he along with other co-accused in furtherance of their common intention had deceitfully received Rs. 2,50,000/- from the complainant party in order to make arrangement for employment/send Atta-ur-Rehman and Ijaz Ahmad abroad. Allegedly this commitment was never honored not the disputed amount has been returned by the petitioner or his co-accused.
3. During the investigation the petitioner was arrested in this case on 06.08.2004. Bail application of the petitioner was dismissed by Special Judge (Central), Lahore vide order dated 13.09.2004, hence this petition.
Heard. File perused.
5. The entire case of the prosecution against the petitioner is that from Malaysia he had been instructing on telephone to the complainant party to make payment (disputed) amount to his co- accused and in compliance the amount was paid. Admittedly there is no direct evidence against the petitioner to show that he had received the amount from the complainant party. Learned counsel for the complainant submits that complainant party is also in possession of an audiocassette showing the involvement of the petitioner for the commission of this offence. How far this type of evidence would be sufficient to connect the petitioner with the commission of offence is yet to be determined by the Trial Court after recording of evidence of both the sides.
Prima facie, the said circumstances are sufficient to bring the case of the petitioner within the fold of further inquiry entitling him to the concession of bail. Accordingly this petition is allowed and petitioner is admitted to bail subject to his furnishing bail bonds amounting to Rs. 1,00,000/- (rupees one lac) with one surety in the-like amount to the satisfaction of the Trial Court.