GHULAM HASSAN vs THE STATE and anothers
This matter concerns a post-arrest bail petition filed by the accused, Ghulam Hassan, charged under sections 18(B) and 22(B) of the Immigration Ordinance, 1979, for allegedly defrauding complainants under the pretext of providing foreign employment. The core legal question was whether the petitioner was entitled to bail given the nature of the allegations and the state of the investigation. The Court observed significant gaps in the prosecution's case, including an unexplained delay in lodging the F.I.R., the absence of critical documentary evidence such as passports or immigration records, and the existence of a parallel civil suit regarding the alleged financial dispute. The Court held that the prosecution failed to establish a prima facie case connecting the petitioner to the alleged offence, rendering the petitioner's guilt a matter requiring further inquiry. Consequently, the Court allowed the bail petition, emphasizing that the petitioner should not be detained indefinitely pending trial when the investigation remains incomplete and lacks sufficient evidentiary support. The Court granted bail subject to the provision of substantial bail bonds, while reserving the prosecution's right to seek cancellation if sufficient documentary evidence is subsequently collected.
- Does the existence of a parallel civil suit regarding the same financial dispute impact the grant of bail in a criminal case?
- Is an accused entitled to bail when the prosecution fails to collect essential documentary evidence to connect the accused to the alleged offence?
- Can bail be granted where the F.I.R. has been lodged with a considerable unexplained delay?
- Does the requirement of 'further inquiry' under the Code of Criminal Procedure 1898 justify the release of an accused on bail?
- Section 18(B), Immigration Ordinance 1979
- Section 22(B), Immigration Ordinance 1979
- Section 497, Code of Criminal Procedure 1898
'KHALID MAHMOOD, L.-- Petitioner Ghulam Hassan seeks his release on bail in case F.I.R. No, 14 dated 15-5-2012 under sections 18(B)/22(B) of the Immigration Ordinance Police Station FIA Abbottabad, as he has been declined bail by the Special Court below.
2. As per contents of F.I.R.,, accused petitioner persuaded and deceived the complainant and others on the pretext of providing foreign employment and thereby grabbed Rs,3,20,000 from each of the affectees.
3. Learned counsel for petitioner argued that petitioner is innocent and has been falsely roped by the complainant in. The instant case after due deliberation and consultation. It was also pointed out that a civil case for recovery of alleged amount has been instituted against the petitioner and co-accused. It was argued that although local police applied sections 18(B)/22(B) of the Immigration Ordinance and the punishment provided therefor is 14 years or fine and in case on conclusion of trial the accused stands convicted only to the extent of fine, keeping of petitioner in jail would tantamount to a case of double jeopardy. It was concluded that investigation in the case is complete and petitioner is no more required for further investigation.
4. Learned counsel for State assisted by learned counsel for the complainant opposed the bail petition and argued that accused petitioner is directly charged for the offence as he defrauded the victims from their hard earnings. It was argued that accused petitioner has committed heinous crime, which falls within the prohibitory clause of section 497, Cr.P.C.
5. Arguments heard and record perused.
6. Though it is alleged that the affectees were sent to Thailand on visit visas and they were not granted work visa as per agreement and sent back after expiry of the same. It appears that certain negotiations and jirgas were convened for the return of alleged grabbed money. Accused petitioner has also filed a civil suit, which is pending adjudication between the parties. F.I.R. Has been lodged with a considerable unexplained delay. The prosecution has also not brought on record that when respondents/affectees were gone to Thailand and when came back. Neither passports nor record regarding exit and entry of respondents in the country has been procured from the Immigration Department. It is also alleged that respondents had paid huge money on the wrong pretext of petitioner that work visa will be issued to them, but no such agreement has been produced to the Investigating Officer. Though petitioner has been charged for heinous offence but the relevant record, as mentioned above, has not been collected by the prosecution to connect the accused with the commission of offence. When counsel for respondent was confronted with the above stated prima facie weaknesses of investigation, his stance was that respondent being influential has bent upon the prosecution to divert investigation in his favour. However, complainant party can produce the said record. Further, keeping the petitioner waiting conclusion of trial would serve no useful purpose. A tentative assessment of record would suggest that prima facie guilt of accused petitioner requires further probe and pending such inquiry he deserves to be released on bail.
7. Consequently, this bail petition is allowed and it is directed that accused petitioner be released on bail provided he furnishes bail bonds in the sum of Rs,5,00,000 with two sureties each in the like amount to the satisfaction of Illaqa/ Duty Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means. However, if during the investigation, documentary evidence is collected by the prosecution, which is sufficient to connect the petitioner for commission of offence, then prosecution can move an application for cancellation of to the petitioner.