TAHIR MAHMOOD vs STATE and another

ORDER

Tahir Mehmood petitioner/accused in case FIR No, 268/2010, dated 30.8.2010, under Sections 17/22 E.O. 1979, Police Station FIA, Gujranwala, has sought post-arrest bail through this petition.

2. As per FIR lodged on 30.8.2010 on the complaint of Faryad Ali it is alleged that in June 2008 accused Qaiser Mahmood in connivance with the accused Tahir Mahmood extorted a sum of Rs, 567000/- through installments from the complainant on the pretext to send him Kuwait for the purpose of employment in the presence of P.Ws. Muhammad Jameel Anjum and Waqar Ahmed; that thereafter accused Tahir Mahmood sent a Visa for the complainant from Kuwait; that the complainant reached the Kuwait but he was not provided employment as per agreed terms, salary and allowances whereupon he came back after 8/9 months.

3. It is argued by learned counsel for the petitioner that he is innocent; that he has no nexus with, the commission of the offence as alleged in the FIR; that in the application submitted by the complainant to the FIA it is narrated that he gave the amount to Qaiser co-accused and not to the petitioner; that petitioner is also not nominated in the application under Sections 22-A & 22-B Cr.P.C. lodged by the complainant for registration of the case; that at the time of giving amount to the co-accused the petitioner was out of country; that offences under Sections 17/22 of Emigration Ordinance, 1979 do not attract at all to the petitioner.

4. It is resisted by learned Standing Counsel assisted by learned counsel for the complainant.

5. I have given patient hearing to learned counsel for the petitioner, learned DDPG for the State and perused the record.

6. At the outset the relevant Sections of Emigration Ordinance, 1979 are reproduced as under: "Section 17. Unlawful emigration, etc.--(1) Whenever, except in conformity with the provisions of this Ordinance and the rules, emigrates or departs or attempts to emigrate or depart shall be punishable with imprisonment for a term which may be extended to five years, or with fine, or with both.

(2) Whoever, except in conformity with the provisions of this Ordinance or of the rules, (a)makes, or attempts to make any agreement with any person purporting to bind that person, or any other person, to emigrate or depart; or (b)causes or assist or attempts to cause or assist, any person to emigrate or depart or to attempt to emigrate or depart or to leave any place for the purpose of emigrating or departing;"

"Section 22. Receiving money, etc. for providing foreign employment.--Whoever, for providing or securing, or on the pretext of providing or securing, to or for any person employment in any country; beyond the limits of Pakistan, (a) being an overseas employment promoter, charges any fee in addition to the prescribed amount, or (b) not being such a promoter, demands or receives, or attempts to receive, for himself or for any other valuable thing shall be punishable with imprisonment for a term which may extend to fourteen years, or with fine or with both. "

7. In the light of above noted provisions perusal of the record reveals that complainant has alleged payment of Rs, 567,000/- to co-accused Qaiser Mahmood who allegedly arranged a Visa for him whereupon he went to Kuwait and remained there. The alleged involvement of Tahir Mahmood accused/petitioner in arrangement of Visa to the complainant is a matter of further probe. No primal facie incriminating material in this regard is placed on the record till date to connect him with the alleged occurrence. Receipt of money from any person on the pretext of sending or providing employment to any person beyond Pakistan is sine qua non-to attract the offence under Section 22(b) of the Ordinance ibid. Admittedly, complainant did not make any payment to the petitioner/accused, therefore, attraction of both the offences under Sections 17/22 of the Ordinance ibid to the extent of the petitioner is a matter of further probe. Reliance is made upon Muhammad Shakeel vs. The State (PLD 2006 Karachi 165). The petitioner is behind the bars for the last two months. Investigation is complete and he is no more required by the police for further investigation.

8. For the foregoing discussions and reasons, this petition is accepted and petitioner is admitted post-arrest bail subject to furnishing bail bond in the sum of Rs, 1,00,0001- (rupees one lac) with one surety in the like amount to the satisfaction, of trial Court.