ALI HASSAN vs STATE, etc.
This matter concerns a petition for post-arrest bail filed by the accused, Ali Hassan, who was charged in an FIR registered under Sections 17 and 22 of The Emigration Ordinance, 1979. The core legal question was whether the petitioner was entitled to bail given the circumstances of the case and the nature of the alleged offences. The Lahore High Court observed that the FIR was registered after an inordinate and unexplained delay of two and a half years, lacked specific details regarding the time and place of the occurrence, and that the passports of the alleged victims were not recovered from the petitioner. Furthermore, the court noted that the petitioner had no prior criminal record and that the investigation was complete. The court held that the petitioner was entitled to bail, emphasizing that the imprisonment prescribed under the relevant sections is discretionary rather than mandatory. Consequently, the petition was allowed, and the petitioner was admitted to post-arrest bail subject to furnishing bail bonds, with the court clarifying that these findings were tentative and would not influence the trial.
- Does the use of the word 'or' in Sections 17 and 22 of The Emigration Ordinance, 1979 make imprisonment mandatory or discretionary?
- Can bail be granted where there is an inordinate and unexplained delay in the registration of an FIR?
- Is an accused entitled to post-arrest bail when the investigation is complete and the accused is no longer required by the police?
- Section 17, The Emigration Ordinance, 1979
- Section 22, The Emigration Ordinance, 1979
ORDER
' A.I 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.