NAZAR MUHAMMAD and another vs STATE etc
This matter concerns two bail applications, one for post-arrest bail and one for pre-arrest bail, arising from an FIR registered under Sections 17 and 22 of the Emigration Ordinance, 1979, involving allegations of fraudulent recruitment for employment abroad. The core legal question was whether the petitioners were entitled to bail given the nature of the offences and the circumstances of the case. The Court held that the petitioners were entitled to bail, granting the post-arrest bail application and confirming the interim pre-arrest bail. The Court reasoned that the complainant had indeed traveled to Saudi Arabia on a valid visa, suggesting the absence of criminal intent. Furthermore, the Court established the principle that offenses under Section 17 of the Emigration Ordinance, 1979, do not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure, 1898. Additionally, it held that even where a statute provides for a maximum sentence of 14 years, if an alternative sentence of fine is available, the offense does not necessarily fall within the prohibitory clause of Section 497, Code of Criminal Procedure, 1898.
- Does an offense under Section 17 of the Emigration Ordinance 1979 fall within the prohibitory clause of Section 497, Code of Criminal Procedure 1898?
- Can an offense with a maximum punishment of 14 years be excluded from the prohibitory clause of Section 497, Code of Criminal Procedure 1898, if an alternative sentence of fine is provided?
- Is the presence of an alternative sentence of fine sufficient to take an offense out of the prohibitory clause of Section 497, Code of Criminal Procedure 1898?
- Section 17, Emigration Ordinance 1979
- Section 22, Emigration Ordinance 1979
- Section 497, Code of Criminal Procedure 1898
ORDER
This single order , shall dispose of two bail applications i.e, Crl. Misc. No, 3307-B-2017 (filed by Nazar Muhammad for bail after arrest) and Crl. Misc. No, 2934-B-2017 (filed by Muhammad Khizar for bail before arrest). These petitions are arising out of case FIR No, ,82/2017, dated 30.3.2017, under Sections 17/22 E.O. 1979 registered at Police Station, FIA/CC, District Multan.
2. Precisely stated the case of the prosecution as unfolded from the crime report is to the effect that the petitioners namely Nazar Muhammad and Muhammad Khizar received an amount of Rs, 2,85,000/- from the Riaz Ahmad (complainant) on the pretext of sending him to Saudi Arabia for the purposes of employment; that though he was sent to Saudi Arabia, however , they failed to manage the job, as promised by them.
3. Arguments heard; record perused.
4. From the recital of the crime report, it evinces that the petitioners and their co-accused received an amount of Rs. 2,85,000/-from one Riaz Ahmad (complainant) on account of sending him abroad for the purposes of employment. According to the record, Riaz Ahmad proceeded to Saudi Arabia on a legally issued employment visa and remained there for a period commencing from 9.1.2016 till 3.6.2016. Likewise, it also spells out from the record that the visa was managed through Burewala Man Power Travel Agency , which is legally competent to deal in such like matter . In this backdrop, Nazar Muhammad (petitioner) was arrested on 7.5.2017. Presently , he is confined in the judicial lockup and is no more required for the purposes of investigation. Witho ut commenting any further upon the merits of the case, in the above backdrop, there is no expectation of the conclusion of trial in the near future, hence no useful purpose is likely to be served, by keeping the petitioner behind the bar. In similar circumstances, in the case of "Hamid Ali us. the State" ( 2009 SCMR 734), the Hon'ble Supreme Court of Pakistan was pleased to grant bail to an accused arrested in a case registered under Section 17/22 of the Emigration Ordinance, 1979.
5. Even otherwise Section 17 of E.O. does not fall within the prohibitory clause of Section 497, Cr.P.C. As far as Section 22 E.O. is concerned though it entails punishment up to 14 years but an alternative sentence of fine is also provided for the offence. So it does not fall within the prohibitory clause of Section 497, Cr.P.C., as the trial Court ultimately can convict him with an imprisonment which may extend to 14 years or with fine alone. On such consideration, bail was granted in the cases of "Shakeel Hassan Rashid vs. The State " (1992 MLD 99), "Muhammad Shabbir vs. The State " (2017 PCr .LJ 143) and "Bashir Ahmad vs. The State " (PLD 2014 Lahore 567 ).
6. In my humble view the case of both the petitioners, based on peculiar circumstances and is covered by the provision of Section 497(2), Cr.P.C. Such features sufficiently reflects the innocence of the petitioners as well as mala fide of the complainant.
7. For what has been discussed above, both the petitioners are entitled to the concession of bail, resultantly , Nazar Muhammad (petitioner in Crl. Misc. No, 3307-B-2017) is ordered to be released on bail after arrest subject to furnishing of bail bonds in the sum of Rs, 1,00,000/- with one surety in the like amount to the satisfaction of learned trial Court. Likewise, interim bail already granted to Muhammad Khizar (petitioner in Crl. Misc. No, 2934-B-2017) is hereby confirmed subject to furnishing of fresh bail bonds in the sum of Rs, 1,00,000/- with one surety in the like amount to the satisfaction of learned trial Court.