GHULAM SHABBIR MALIK vs THE STATE

ORDER

' MUHAMMAD MUZAMMAL KHAN, J.---The petitioner was refused post-arrest bail by the learned Special, Judge (Central), on 5-1-2005, in case against him vide F.I.R. No,919 dated 11-12-2004, under sections 18/22 of the Emigration Ordinance, 1979, registered With Police Station F.I.A. (P. C .), Rawalpindi. He has now filed the instant petition for the same relief.

2. Gravamen of the charge, as it appears from the complainant is that during the inquiry by F.I.A., it transpired that in the year 2003 the petitioner received an amount of Rs,9,85,000 from the ' complainant (Dr. Muhammad Aslam) for employment of his brother as Customs Inspector in Pakistan or sending him abroad (America) and likewise, received an amount of Rs,9,32,000 from Muhammad Shafique for his employment in Pakistan or for sending him to America. Later he could not arrange his employment in Pakistan and also could not arrange for their American visit which resulted in registration of case.

3. The learned counsel for the petitioner submitted that the case was registered with an inordinate unexplained delay of one year and that the petitioner is absolutely innocent and has been involved in a false case. According to him, the offence charged is not made out because there is no allegation that the petitioner received the alleged amount for sending any body abroad for employment. It was also argued on behalf of the petitioner that the complainant has already filed a civil suit for recovery of the money where it will be settled as to whether the petitioner really received the amount or not which makes the case of the petitioner that of further inquiry. The learned counsel for the petitioner also emphasized that the Investigating Officer has opined that there is a dispute regarding payment of money between the parties; and the story as narrated in the F.I.R. Is fake. He further argued that the case of the petitioner is not covered by prohibitory clause of section 497, Cr.P.C., hence, he may be admitted for post-arrest bail as his person is no more needed for investigation purpose.

4. Bail was opposed with the arguments that the petitioner extorted a huge amount from the complainant with the pretext that he would arrange employment of two relations of the complainant and in case of failure he will sent them abroad. It was further urged that the petitioner committed heinous offence besides cheating the complainant.

5. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the police record. In the complaint filed with F.I.A. On the basis of which the case was registered, it was alleged that the petitioner received a specified amount for arranging employment of two relations of the complainant in Customs Department and in case of his failure to get them employed there, he would send those persons to America, as he had relations with the employees of American Embassy. These assertions do not make out offences under sections 18/22 of the Emigration Ordinance, 1979 where under extortion of money has to be for sending abroad for employment. Hence, charge of the petitioner under section 22 of the Emigration Ordinance, 1979 is doubtful. Even otherwise punishment for these offences is alternative, which can be, to the discretion of the trial Court, in form of fine only. F.I.R. Was registered with an inordinate unexplained delay, which negatively reflects on the prosecution A version. Civil suit between the parties is already sub judice before the Court of competent jurisdiction where liability of the petitioner shall be determined after recording of evidence, which makes the case of the petitioner that of the further inquiry. The petitioner after remaining on physical remand has already been remitted to judicial lock-up and his person is no more required. Detention of the petitioner would not advance the prosecution case, any more and he would face the sentence if ultimately convicted by the trial Court. Bail is not to be withheld as df punishment, in view of the law laid down by the Honourable Supreme Court in the case Tariq Bashir and 5 others v. The State (PLD 1995 SC 34). There is no probability of abscondance or tampering with the prosecution evidence by the petitioner. Trial of the case has not commenced so far and there is no probability of its conclusion in the near future.

6. For the reasons noted above, the petitioner has made out a case for his bail in the case registered against him, pending its trial. This petition is accordingly allowed and the petitioner is admitted to bail subject to his furnishing surety bonds in the sum of Rs,5,00,000 with two sureties each in the like amount to the satisfaction of the trial Court.