SHAKEEL AHMAD MALIK vs THE STATE

ORDER

' MIAN MUHAMMAD NAJUM-UZ-ZAMAN, J.---Seeks pre-arrest bail in case F.I.R. No, 239 of 2003, dated 27-5-2003 for the offence under sections 17/18/22 of E.O., 1979 registered at Police Station FIA, P.S., Lahore.

2. In nutshell the story of the prosecution as penned in the F.I.R. Is that on 27-5-2003 some of the passengers were off loaded from Flight PK 789 scheduled from Lahore to Toronto. During the interrogation they informed the F.I.A. Authorities that the fake documents on which they intended to travel abroad were provided to them by the petitioner with the instructions to destroy to fake documents during the flight.

' During the investigation petitioner was declared proclaimed offender. The application of the petitioner for the said relief was dismissed by Special Judge (Central), Lahore vide order, dated 13- 1-2006, hence this petition.

3. Bail is sought on the grounds that on the day this occurrence took place petitioner was not in Pakistan, statedly he had gone to England where he stayed from 17-12-2002 to 23-6-2003. It is submitted that petitioner had been involved in this case with the mala fide intention on the basis of false evidence. Learned counsel further submits that the case of the petitioner rests upon the statements of the said deportees but at present their whereabouts are not known. Submits that during the investigation the said deportees were involved in this case as accused persons and now they have been declared as proclaimed offenders. It is submitted that luring the trial of co- accused of the petitioner none of the said deportees appeared before the Court and though the co-accused were convicted and sentenced by the Trial Court but the High Court vide order, dated 18-7-2005 has suspended their sentence while keeping in view the non-appearance of the said off loaded and that the said order of the High Court was upheld by the Honourable Supreme Court vide order, dated 7-11-2005 while deciding Criminal Petition No,456-L of 2005. In this view of the matter, it is submitted that case of the petitioner is also one of further inquiry entitling him to the concession of bail. With regards to the abscondance of the petitioner, learned counsel submits that since the petitioner was not available in this country, he had no information qua the registration of this case and the proceedings got initiated at the back of the petitioner have got no legal sanctity. It is further submitted that said deportees at one stage of the investigation had also made statements under section 164, Cr.P.C. Exonerating the petitioner and the said facts are available on the file of this case.

' Conversely learned law officer (Mr. Tariq Shamim, Standing Counsel) submits that petitioner is named in the F.I.R. With the specific role that he had provided fake documents to the intending immigrants for travelling abroad and that his participation in the occurrence is very much established from the data available on the record but on the other hand learned law officer admits that deportees on whose statement present case was registered against the petitioner and his co- accused have also been involved in this case as accused persons, all of them are fugitive from law and their whereabouts are not known. Further submits that the said deportees/witnesses/accused also never appeared before the Court when the co-accused of the petitioner were put to trial. It is submitted that case of the prosecution is based upon the statements of the Police officials who had investigated this case and recorded the statements of said deportees. It is further submitted that the agency has failed to collect any evidence to show that petitioner had ever entered into Pakistan before 23-6-2003.

4. After considering the submissions of learned counsel for the parties and perusing the record, I have observed that case of the prosecution rests upon the statements of three deportees namely Muhammad Iqbal, Zubair Babar and Muhammad Zubair but all of them have been involved in this case as accused persons and at present they are fugitive from law and their whereabouts are not known. Record of this case also reveals that during the trial of co-accused of the petitioner the said deportees never appeared before the Trial Court and though the Trial Court had convicted and sentenced the co-accused but their sentences were suspended by this Court vide order, dated 18- 7-2005 keeping in view the non-appearance of the said deportees and august Supreme Court also upheld the order of this Court vide order, dated 7-11-2005.

' The data available on the record reveals that petitioner left Pakistan on 17-5-2002 and thereafter entered on 21-6-2003. The agency has failed to,collect any evidence to show that the petitioner was present in Pakistan on the day this occurrence took place. The Investigating Officer (Muhammad Sarwar S.I.) who has brought the record also submits that the investigation is complete and petitioner is no more required for the said purposes.

' In the said backdrop of the matter, the case of the petitioner falls within the ambit of further inquiry, even otherwise admittedly petitioner is not required for any further investigation and thus sending the petitioner behind the bars would also not serve any useful purpose. Accordingly this petition is allowed and ad interim pre-arrest bail already granted to the petitioner vide order, dated 26-1-2006 stands confirmed against the same surety bonds.