MUHAMMAD YOUSAF vs STATE and another
This petition under Section 497 of the Code of Criminal Procedure 1898 was filed by the petitioner seeking post-arrest bail in a case registered under Section 17/22 of the Emigration Ordinance 1979. The prosecution alleged that the petitioner fraudulently received Rs. 5,20,000/- from the complainant to send three relatives abroad, but failed to do so or return the money. The core legal question was whether the petitioner was entitled to bail given a two-year delay in lodging the FIR and the absence of any recovery during investigation. The Lahore High Court held that because the petitioner had been in custody since August 2015, was not a previous convict, and was no longer required for investigation, further detention served no purpose. Additionally, since the alternative sentences of imprisonment or fine under the statute would be determined at trial, the case fell within the ambit of further inquiry. Consequently, the Court accepted the bail application, establishing that unexplained delay in FIR registration combined with a lack of criminal history can render a case fit for further inquiry under bail provisions.
- Whether an unexplained delay of two years in lodging an FIR for emigration fraud can make the prosecution's case one of further inquiry for the purposes of granting bail?
- Does the absence of criminal history and lack of any recovery during investigation support the grant of post-arrest bail in offences under the Emigration Ordinance 1979?
- Can post-arrest bail be granted where the statutory sentence provides alternative punishments of imprisonment or fine, leaving the final sentence to be determined only at trial?
- Section 497, Code of Criminal Procedure 1898
- Section 17, Emigration Ordinance 1979
- Section 22, Emigration Ordinance 1979
ORDER
' Through this petition under Section 497, Cr.P.C., Muhammad Yousaf petitioner seeks bail after arrest in case FIR No, 290 dated 22.07.2015, registered under Section 17/22, EO 1979 at Police Station FIA/CC Multan, District Multan at the instance of Muhammad Niaz complainant.
2. The learned counsel for the petitioner argued that the petitioner is innocent; that there is delay of 02 years in lodging the FIR, which makes the case doubtful; that no date, time and month of the alleged payment is mentioned in the FIR; that during investigation nothing has been recovered from the petitioner; that the petitioner is behind the bar since 02.08.2015 and he is not previously involved in any criminal case; that the case does not fall within the prohibitory clause. He has placed reliance upon Tahir Mehmood v. State and another (PLD 2012 Cr.C. Lahore 112) and Hamid Ali v. The State (2009 SCM R 734).
3 Conversely, the learned Standing Counsel argued that the petitioner fraudulently received huge amount of Rs, 5,20,000/- from the complainant and said amount was deposited in the account of his wife; that case does fall within the prohibitory clause; that during investigation the petitioner has been found guilty.
4. Arguments of the learned counsel for the petitioner as well as the learned Standing Counsel heard, record perused.
5. The allegations against the petitioner as per FIR in brief are that petitioner received Rs, 5,20,000/- from the complainant for sending his three relatives Muhammad Safdar, Liaqat Ali and Muhammad Irfan to Masqat, but lateron neither his relatives were sent abroad nor the accused returned his amount. As per record, allegedly the amount was received by the petitioner in the year 2013, but the present case has been lodged on the report made on 01.01.2015 after two years. The petitioner was arrested in this case on 02.08.2015, since then he is behind the bar and no more required for further investigation. As per record the petitioner is not previously involved or convicted in any other such case. Further detention of the petitioner in the jail will not serve any useful purpose. As the alternative, sentence of 14 years or with fine or with both has been provided for the offence charged against the petitioner, it will be determined during the trial that which sentence has to be awarded to the petitioner. At this stage, the case of the petitioner becomes one of further inquiry.
6. In view of the foregoing reasons and keeping in view the principle laid down in the judgments referred by the learned counsel for the petitioner, the petitioner becomes entitled for concession of bail. Resultantly, this bail application is accepted and the petitioner is admitted to post-arrest bail, subject to his furnishing bail bonds in the sum, of Rs, 1,00,000/- with two sureties each in the like amount to the satisfaction of the learned trial Court.