SAJJAD AHMED vs THE STATE and anothers
The petitioner filed a bail petition before the Peshawar High Court after his post-arrest bail application was rejected by the Special Judge, Anti-Corruption (Central) Camp Abbottabad, in a case arising from F.I.R. No. 35 dated 27-9-2011 registered under sections 18-B and 22-B of the Immigration Ordinance. The core legal question was whether the petitioner made out a case for further inquiry to qualify for the concession of bail. The court held that the unexplained delay of over three years in lodging the F.I.R., the fact that the primary prosecution witnesses submitted affidavits negating the complainant's version, and the existence of a prior complaint lodged by the petitioner against the complainant in Sharjah collectively brought the case within the scope of further inquiry under section 497(2) of the Code of Criminal Procedure. The petition was consequently allowed and the petitioner admitted to bail. The key principle laid down is that where material prosecution witnesses turn hostile via affidavits, there is an unexplained multi-year delay in reporting, and counter-allegations exist, a case for further inquiry is established warranting the grant of bail.
- Whether an unexplained delay of more than three years in lodging an F.I.R. constitutes a ground for grant of bail?
- Does the submission of affidavits by star prosecution witnesses negating the complainant's version bring the case within the scope of further inquiry?
- Is an accused entitled to post-arrest bail when the primary evidence connecting him to the crime is disputed by his own designated recipients of funds?
- Section 18-B, Immigration Ordinance
- Section 22-B, Immigration Ordinance
' KHALID MEHMOOD, J.---Petitioner is involved in case F.I.R. No,35 dated 27-9-2011 registered under sections 18-B and 22-B of Immigration Ordinance of PS FIA, Abbottabad. The petitioner applied for bail but vide order of the learned Special Judge, Anti-Corruption (Central) Camp Abbottabad, dated 6-10-2011 the bail petition of petitioner was turned down, hence he has filed the present bail petition before this court.
2. Brief facts of the case are that complainant lodged a report to the FIA that the accused/petitioner demanded Rs, Five Lac for providing him employment visa for UAE and on his direction, the complainant paid Rs Two Lac to Younas Rehman while Rs, 3 Lac to one Nasim Iqbal.
The complainant was given visa for UAE and work permit was not provided to him, therefore, he had to return back, hence he had lodged the F.I.R. Against accused petitioner. The bail petition was rejected by the learned Special Judge, Anti-Corruption (Central) Camp Abbottabad, vide order dated 6-10-2011, hence the present bail petition before this court.
2. Learned counsel for the petitioner contended that occurrence has taken place in year 2008 whereas, report was lodged on 11-7-2011 after lapse of three years. The star witnesses of the present case are Nasim Iqbal and Younas Rehman to whom Rs, 5 Lac were allegedly given on behalf of the accused/petitioner on the promise of obtaining visa for UAE. It was also argued that both the said witnesses have not supported the version of the complainant rather they have given affidavit wherein they have denied the allegation of the complainant. He further argued that section of law is not applicable in the present case and the petitioner is enroped due to ulterior motive of the complainant. He further argued that a case against the complainant for defrauding the accused petitioner has been registered in Sharjah, because the complainant was appointed as Sale Executive on 9-12-2009 at Sharjah. During his tenure he has embezzled 13000 dirham. The present case has been lodged as a counterblast against the accused petitioner.
4. Learned counsel for the respondent complainant argued that the accused has been charged for defrauding the complainant on the pretext of providing visa for UAE. In lieu of visa, the respondent No,1 on direction of petitioner had paid Rs, 5 Lac to Nasim Iqbal and Younas Rehman. He argued that the petitioner is habitual offender. He is already involved in another similar nature case registered vide F.I.R. No,23 of 2008. The offence is heinous one hence, the accused petitioner is not entitled to the concession of bail.
5. Arguments heard and file perused. My finding is as under:-
6. There is unexplained delay of more than 3 years. As per version of the complainant once he had gone to Sharjah in March, 2009. After going to Sharjah he remained there for more than a month but the complainant had not lodged report against the petitioner after returning back to the country. But respondent/complainant kept mum till 11-7-2011. In the F.I.R. Respondent/complainant has specifically mentioned that Rs, 5 Lac were paid to Nasim Iqbal and Younas Rehman in lieu of visa per direction of the accused/petitioner. But both the said P. Ws. Had not supported the version of respondent/complainant and in this regard they have submitted affidavits which negate the story of prosecution. Except these two witnesses, there is no evidence or other record to connect the accused petitioner with commission of offence. It is also on the record that petitioner has moved complaint at Sharjah against the complainant respondent. Keeping in view the facts and legal aspect of the present case i,e, the unexplained delay, negation of witnesses of prosecution through their affidavits and complaint lodged by the petitioner against respondent/complainant at Sharjah have made out a case of further inquiry, hence the accused petitioner is entitled to the concession of bail.
5. For what has been stated above, instant bail petition is allowed and the accused petitioner is admitted to bail subject to furnishing bail bonds in the sum of Rs, 5 Lac with two sureties each in the like amount to the satisfaction of Illaqa/Duty Magistrate.