WAQAS SHAFIQUE vs STATE
The petitioner, Waqas Shafique, sought post-arrest bail in case FIR No. 253 dated 23.12.2016 registered under Sections 17, 18(a), 18(b), and 22(b) of the Emigration Ordinance 1979 at Police Station FIA/AHTC, Peshawar, on allegations of cheating complainants out of money under the guise of providing overseas employment visas. The core legal question was whether mere allegations of providing visas without the recovery of incriminating materials like passports or forged stamps were sufficient to constitute the offence, and whether the case fell within the prohibitory clause. The Peshawar High Court held that the applicability of the penal provisions and the sufficiency of allegations without recovery presented a debatable question of further inquiry, noting that the offences carried alternative punishments including fine alone, thus taking the case out of the prohibitory clause. The petition was consequently accepted, laying down the principle that where no incriminating recovery is effected and the penal statute provides for an alternative lesser punishment of fine, the accused makes out a case for further inquiry warranting the grant of bail.
- Whether mere allegations of receiving money for visas without recovery of incriminating material constitute an offence under the Emigration Ordinance 1979 sufficient to deny bail?
- Does an offence carrying an alternative lesser punishment of fine fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- When does the absence of incriminating recoveries from an accused make out a case of further inquiry entitling them to bail?
- Section 17, Emigration Ordinance 1979
- Section 18(a), Emigration Ordinance 1979
- Section 18(b), Emigration Ordinance 1979
- Section 22(b), Emigration Ordinance 1979
- Section 497, Code of Criminal Procedure 1898
ORDER
1. Petitioner Waos Shafique, seeks bail in case FIR No. 253 dated 23.12.2016, registered under Section 17, 18 (a), 18 (b) and 22 (b) of Emigration Ordinance, 1979, Police Station FIA/AHTC,-Peshawar.
2. 2.As per contents, of FIR, allegations against the petitioner are that he while introducing himself as overseas employment promoter, received Rs.3,63,000 from complainant Yasir, Naveed ullah and Asif Iqbal i.e. Rs. 121000/- from each, but he neither provided any visa to them nor returned their amounts and in this way cheated them by depriving them from their hard earned money.
3. 3.Without dilating upon merits of the case, lest it may prejudice the case of either party, suffice it to state that whether mere allegations against the petitioner in respect of providing Dubai visa to the complainant without any recovery of passports, stamps and other instruments used in forgery, would be sufficient to constitute an offence under the Emigration Ordinance, 1979, is a debatable question to be answered by the prosecution during trial. undisputed, the Sections of law leveled in the FIR provide two types of punishments viz imprisonment for fourteen years, or fine or both. In such like cases, it has been the consistent practice of the Court to grant bail because the accused may be inflicted the lesser punishment by the Trial Court. In the present case the lesser punishment is fine only. Except balled allegations, nothing incriminating has been recovered from possession of the accused to show prima facie his connectivity with the commission of alleged offence. The above facts create doubts and making their case one of further inquiry, entitling him for the concession of bail. Reliance may be placed on Zafar Iqbars case (2009 SCM R 1488), wherein the august Supreme Court of Pakistan was pleased to grant bail to the accused in similar circumstances on the ground that the offence does not fall within the prohibitory clause of Section 497, Cr.P.C.
4. 4.For the reasons given herein above, the instant bail petition is accepted and the accused- petitioner are allowed bail provided each of them furnish bail bonds in the sum of Rs. 200,000 (Two Lacs) with two sureties each in the like amount to the satisfaction, of learned Ilaqa Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means.