MUHAMMAD BASHIR alias SECRETARY vs STATE

ORDER

1. Petitioner Muhammad Bashir alias Secretary son of Gulab Khan seeks bail after arrest in case F.I.R.

2. No, 668 dated 24-11-2005, registered at Police F.I.A. Emigration Airport, Islamabad (Circle F.I.A./PC), Rawalpindi for offence under Sections 18/22, Emigration Ordinance, 1979. Bail has been declined to the petitioner by the learned Special Judge, Central, Rawalpindi, vide his order dated 7-2-2006 hence this petition.

3. 2.Mst. Salma Kausar made a complaint with F.I.A. stating therein that about 2 years earlier her husband namely Mazhar Hussain was sent to England by the accused-petitioner and thereafter she proposed that her two sons also be sent abroad for joining their father and for that he demanded Rs, 10, lacs, to which she agreed and ultimately she paid Rs, 6,30,000 to the petitioner at her residence in presence of the P.Ws., but thereafter despite passage of two years neither the petitioner sent her and the children to England nor returned the money so received. After inquiry by the F.I.A the F.I.R., was registered and the petitioner has been arrested.

4. 3.The learned counsel for the petitioner contends that according to the complaint/F.I.R. Mst. Salma Kausar paid the amount to the petitioner in 2003 for sending her and her two sons to England but the complaint was made on 28-9-2005 and no explanation for the delay in bringing the complaint into the notice of the F.I.A. has been given by the complainant; in the F.I.R. names of the witnesses have not been mentioned, however, during inquiry/investigation Qamar Abbas son of Muhammad Akbar Khan and his . wife Mst. Shazia Qamar, P.Ws., joined the inquiry, according to the prosecution case, in February, 2003 and August, 2004 each time Rs, 50,000 were paid to the petitioner whereas the petitioner was abroad in those two months. It is the case of the complainant that she paid the remaining' amount after transferring her land 6 Kanals, 13 Marlas in Gujjar Khan through one Rehim Ali attorney. The learned counsel contends that Rehim Ali attorney appeared in the inquiry and deposed that the amount was received by the complainant herself. On the basis of the above stated facts, the learned counsel for the petitioner states that there are no reasonable grounds to believe that the petitioner has committed the offence for which he has been charged but there are grounds for further inquiry into the guilt of the petitioner. 4.On the other hand, the learned State Counsel opposed the petition for grant of bail. He contends that P.Ws. namely Qamar Abbas son of Akbar Khan and his wife Mst. Shazia Qamar substantiated the claim of the complainant that the amount of Rs, 6,30,000 was paid to the petitioner for sending the sons of the complainant to England therefore, the provisions of Sections 18/22 of the Emigration Ordinance are fully attracted and as such the petitioner is not entitled to be released on bail.

5. I have heard the arguments of both the parties and perused the record produced by the Investigation Office. There is shocking delay in lodging the F.I.R. in this case. Allegedly the petitioner received the amount from the complainant in 2003 but the complainant was lodged on 28-9- 2005. In the F.I.R. names of the witnesses have not been mentioned, though Qamar Abbas son of Muhammad Akbar Khan and his wife Mst. Shazia joined the inquiry/investigation and stated that in February, 2003 and August, 2004 each time Rs, 50,000 were paid to the petitioner but the Passport appended alongwith this petition would show that on both the occasions the petitioner was out of the country. It is complainant's case in the complaint that complainant's husband Mazhar Hussain was sent to England by the petitioner and a promise was made by him after receiving the amount to send complainant's two sons for living abroad with their father. In the F.I.R. the stand of the complainant is that she has been deprived of the money by the petitioner on the pretext of sending her in connection with employment in England. Allegedly the remaining amount was received by the petitioner on 20-9-2004 from the complainant when she transferred the land measuring 6 Kanals and 13 Marlas through her Attorney Rehm Ali. Statement of Rehm Ali under Section 161, Cr.P.C. was recorded, who stated that the amount was received by the complainant herself. Merely because the petitioner was a marginal witness of the Attorney does not mean that he had received the amount from the complainant. It is complainant's own case that commitment was not made by the petitioner to send her two sons abroad in connection with employment nor any forged document has allegedly been prepared or used in relation to the immigration of the complainant.

5. Keeping in view the contents of the complaint, F.I.R. and the tentative assessment of the evidence collected by the Investigating Officer and the record, I am of the view that there are no reasonable grounds to believe that the petitioner has committed the offence under Sections 18 and 22 of the Emigration Ordinance, but there are grounds for further inquiry into the guilt of the petitioner. Even otherwise, the offences under Sections 18/22 of the Emigration Ordinance provide alternate punishment of fine therefore, the offences do not fall in the prohibitory clause of Section 497, Cr.P.C.

6. 6.For the reasons discussed above, this petition is accepted and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum C of Rs, 1,00,000 (Rupees one lac) with one surety in the like amount to the satisfaction of the trial Court/Duty Judge.