Ali Hassan vs The State, etc.
Ali Hassan filed a criminal miscellaneous petition seeking post-arrest bail in case FIR No.199 dated 10.06.2014, registered under Sections 17 and 22 of The Emigration Ordinance, 1979 at Police Station FIA, Faisalabad, on allegations of fraudulently taking money for employment abroad without fulfilling the promise. The core legal questions involved the tentative assessment of evidence, unexplained delay in FIR registration, and the discretionary nature of punishment under the invoked provisions. The Lahore High Court allowed the petition and granted post-arrest bail to the petitioner, holding that the delay of two and a half years in lodging the FIR, lack of recovery of passports from the accused, and the disjunctive phrasing ("or") regarding imprisonment in Sections 17 and 22 rendered the case one of further inquiry under Section 497(2) of the Code of Criminal Procedure. The key principle laid down is that where penal provisions allow for sentences of imprisonment or fine in the alternative, and tentative assessment points to a plausible defense alongside delayed reporting, the accused establishes a case for further inquiry warranting the grant of post-arrest bail.
- Does an inordinate and unexplained delay in lodging an FIR entitle an accused to post-arrest bail?
- Whether the use of the word 'or' between imprisonment and fine in penal statutes makes imprisonment non-mandatory for bail consideration?
- Can post-arrest bail be granted when no recovery of incriminating material is made from the accused?
- Section 17, The Emigration Ordinance 1979
- Section 22, The Emigration Ordinance 1979
Ali Hassan, petitioner seeks bail after arrest in case FIR No.199 dated 10.06.2014 offences under sections 17 and 22 of The Emigration Ordinance, 1979 registered at Police Station FIA, Faisalabad.
2. The allegation according to the FIR, against the petitioner is that he promised to send five close relatives of the complainant namely Maqbool Abbas, Amir Saeed, Asif, Azam and Waheed to Korea for employment and for this purpose he took Rs.9,50,000/- in cash and a cheque of Rs.3,50,000/- from them but after taking the money, the petitioner did not send these persons abroad for employment and till date has not returned the money.
3. Arguments heard. Record perused.
4. In the FIR, no date, time and place is mentioned showing that when and where the occurrence took place. The occurrence in the FIR pertains to the year 2011 and the FIR was registered after an inordinate and unexplained delay of 2,1/2 years. The passports of the said five persons who were supposed to be sent abroad were not recovered from the possession of the petitioner and the same were handed over to the Investigating Officer by the complainant himself. The first version of the petitioner before the Investigating Officer was that he had sold his house to the said complainant and the complainant was supposed to pay the balanced amount and in order to usurp the said amount, the complainant has got registered the instant false case against the present petitioner. There is no other such like case registered against the petitioner.
5. The offences under sections 17 and 22 of The Emigration Ordinance, 1979 have been leveled against the petitioner. Section 17 provides imprisonment for a term which may extend to five years, or with fine, or with both whereas section 22 provides imprisonment for a term which may extend to fourteen years, or with fine, or with both. By inserting the word "or" by the legislature in both the sections, it means that imprisonment is not mandatory and it has been left to the discretion of the Court. The applicability of the discre tion in the above sections will be determined by the learned trial Court after recording of the evidence. The petitioner is behind the bars since his arrest and is no more required to the police for further investigation.
6. For what has been discussed above, this petition is allowed and petitioner is admitted to post arrest bail subject to his furnishing bail bond in the sum of Rs.2,00,000/- with two sureties each in the like amount to the satisfaction of the learned trial court.
7. However, it is made clear that the above findings are tentative in nature and shall have no bearing on the trial of the case.