MUHAMMAD ASHRAF vs STATE and another
This matter comes before the Lahore High Court through a petition filed under Section 498 of the Code of Criminal Procedure 1898, wherein the petitioner Muhammad Ashraf seeks pre-arrest bail in case F.I.R. No. 243 dated 02.08.2017 registered under Section 17/22 of the Emigration Ordinance 1979 at Police Station F.I.A./CC Multan. The core legal question involves determining whether the petitioner is entitled to pre-arrest bail given the allegations of extracting money for employment abroad and his status as an infirm or old person. The court held that the petitioner has made out a case for pre-arrest bail, noting that the evidence is documentary and already in the prosecution's possession, the petitioner has joined the investigation, and his advanced age of about 70 years brings his case under the first proviso to Section 497 of the Code of Criminal Procedure 1898. The key principle laid down is that documentary evidence in possession of the prosecution coupled with the infirm or aged status of an accused under the statutory proviso warrants the confirmation of pre-arrest bail at the tentative assessment stage.
- Whether an accused of advanced age is entitled to bail under the first proviso to Section 497 of the Code of Criminal Procedure 1898?
- Does the presence of documentary evidence already in possession of the prosecution favour the grant of pre-arrest bail?
- Whether pre-arrest bail can be confirmed when the accused has joined the investigation and no tampering of evidence is apprehended?
- Section 498, Code of Criminal Procedure 1898
- Section 17/22, Emigration Ordinance 1979
- Section 497, Code of Criminal Procedure 1898
ORDER
Through this petition u/S. 498, Cr.P.C., petitioner Muhammad Ashraf, seeks post arrest bail in case F.I.R.No, 243 dated. 02.08.2017 registered u/S. 17/22 of the Emigration Ordinance, (XVIII of 1979), at Police Station F.I.A./CC Multan.
2. Briefly the allegation against the petitioner is that he extracted Rs, 1,70,000/- from the complainant in order to send his son Muhammad Ajmal to Dubai but on reaching Dubai he neither provided him requisite employment nor returned the extracted money .
3. Heard. Record perused.
4. This is petition for pre-arrest bail and only tentative assessment is to be made and deeper appreciation or evaluation of evidence at bail stage is neither desirable nor permissible. Record reveals that the petitioner was held responsible for receiving Rs, 1,70,000/- for sending the son of the complainant to Dubai but during investigation it has come on record that son of complainant went to Dubai where he remained for nine months. It has also come on record that the son of the complaina nt went to Dubai on a valid Visa issued by a license holder (sic). The petitioner is an old man of about 70-year s of age, hence is case is also covered under the 1st proviso to Section 497, Cr .P.C., which is reproduced as under: "Provided that the Court may direct that any person under the age of sixtee n years or any woman or any sick or infirm person accused of such an offence be released on bail."
A bare perusal of the above proviso reveals that the same is an exception to the general rule of not releasing a person on bail, if there appears reasonable grounds to believe that he has been involved in an offence falling the prohibitory clause of Section 497, Cr.P.C. The entire evidence, so far collected by the police is based upon documentary evidence, which is already in the possession of the prosecution and there is no likelihood of tempering with the same by the accused/petitioner . Reliance is placed on the case titled Saeed Ahmad vs. The State (1996 SCMR 1132). The petitioner is on interim bail since 9.10.2017 and according to the investigating officer he has already joined the investigation.
5. Consequently , this petition is allowed and pre-arrest bail already granted to the petitioner Muhammad Ashraf, is confirmed , subject to her furnishing fresh bail bonds in the sum of Rs, 1,00,000/-(Rupees one lac) with one surety in the like amount to the satisfaction of the trial Court.