AFSAR ALI vs The STATE
The petitioner sought post-arrest bail in case FIR No. 1 dated 5.1.2016 registered under Section 17 of the Emigration Ordinance 1979, Sections 420 and 468 of the Pakistan Penal Code 1860, and Section 6 of the Passports Act 1974, for allegedly running an illegal travel agency and possessing Pakistani passports and other documents. The core legal question was whether the petitioner was entitled to bail given that the offences did not fall within the prohibitory limb of Section 497 of the Code of Criminal Procedure 1898 and that his active connivance or knowledge regarding forged documents required further inquiry. The Peshawar High Court allowed the bail petition, holding that the offences do not fall within the prohibitory clause of Section 497, Code of Criminal Procedure 1898, making grant of bail the rule and refusal an exception, and that the case required further probe on tentative assessment since the trial was not in sight.
- Whether possession of a forged document constitutes an offence without proof of active connivance?
- Does an offence not falling within the prohibitory limb of Section 497 of the Code of Criminal Procedure 1898 entitle the accused to bail as a rule?
- Can an accused be kept behind bars for an indefinite period when the commencement of the trial is not in sight?
- Section 17, Emigration Ordinance 1979
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 6, Passports Act 1974
- Section 497, Code of Criminal Procedure 1898
MUSARRAT HILALI, J.---Petitioner, through petition in hand, seeks bail in case FIR No,1 dated 5.1.2016 registered for offence under section 17, Emigration Ordinance, 1979, 420/468, P.P.C. Read with section 6, Passports Act by Police Station FIA/A.H.T.C. Mardan.
2. As per information received by Mr. Hidayat, Assistant Director FIA regarding running of illegal travel agency by petitioner, thus, acting on the same the complainant along with other police nafri raided the said travel agency, who on inquiry could not produce any valid license. In 'presence of petitioner, search of the travel agency was carried out, which led to the recovery of 4 Pakistani Passports along with other documents pertaining to Malaysia, Medical Certificate and signed empty Polio Card, hence the case was registered against him.
3. Heard. In instant case, allegation against the petitioner is that he was found running illegal travel agency and when raid was conducted, he could not produce any valid license to the raiding party, which led to the recovery of 4 Pakistani Passports, other documents meant for Malaysia and signed empty Polio Card. It is yet to be seen whether the petitioner is owner of the travel agency or he was chance visitor to the same. Further, the possession of a forged document is not an offence unless it is proved that the same had been prepared or used with active connivance of a person. The knowledge of petitioner qua fakeness or genuineness of the Passports is a question to be determined after recording evidence but till that stage comes, he cannot be kept behind the bars for indefinite period and that too when commencement of the trial is not in sight. Again, the punishment provided in offences for which the petitioner is charged do not fall within the prohibitory limb of section 497, Cr.P.C., therefore, in such circumstances grant of bail is a rule and refusal an exception. On tentative assessment of material, case of the petitioner requires further probe.
This petition was allowed vide short order of even date and above are reasons for the same.