MUHAMMAD SHAKEEL Versus State

ORDER

SABIHUDDIN AHMED, C J.- --The Ministry of Foreign Affairs complained to the FIA that they had been informed by the Pakistan High Commission in South Africa that a travel agent in Karachi Bilal, brother of the applicant was involved in the human trafficking from Pakistan to South Africa via Mozambique and Malawi. Upon enquiry it was found that several people had travelled to Mozambique on valid passports and tourist visas but instead of their own returning to Pakistan the return tickets were sent to Karachi and refund of the unused part of the tickets was obtained from Danish Travels (Pvt.) Ltd. by the applicant and a few others. Accordingly an F.I.R. was registered where it was stated that the applicant and companions were involved in sending people to Mozambique after collecting about Rs.150,000 each. The case for offence punishable under sections 17(2)(b) and 22(b) of the Immigration Ordinance, 1979 was registered.

2. In the first instance it may be pertinent to mention that an offence under section 22(b) Emigration Ordinance is punishable with 14 years and 'the aforesaid statutory provision reads as under:-

"22. Receiving, money, etc. for providing foreign employ?ment.--Whoever for providing or securing, or on the pretext of providing or securing to or for any person employment in any country beyond the limits of Pakistan---

(a) ??????????????.

(b) not being such a promoter, demands or receives, or attempt to receive, for himself or for any other person any money or other valuable thing, shall be punishable with imprisonment for a term which may extend to fourteen years, or with fine, or with both."

3. Learned counsel for the applicant argued that no offence under section 22(b) could even be alleged. Prima facie section 22(b) is attracted only when the accused receives a certain sum of money from another person on the pretext of securing or providing employment to any person beyond Pakistan. It entails some kind of fraud played or deceit practised upon the person by misleading him and extorting money. The admitted position appears to be that there is no complaint by any victim of such fraud and the documents filed by learned Standing Counsel received during the course of investigation only indicate that return tickets instead of being utilized by travellers for coming back to Pakistan were somehow sent to Pakistan who obtained refund. Therefore, it is difficult to surmise an offence under the aforesaid section having been committed.

4. However, as suggested by learned Standing Counsel and conceded by learned counsel for the applicant there could be a possibility of the applicant's having assisted certain persons to emigrate or depart from Pakistan in violation of the law. This as such might amount to an offence under section 17(2)(b) of the Ordinance which is punishable by five years imprisonment or fine or both. Learned Standing Counsel fairly stated that circumstantial evidence appears to be available as regards commission of offence under section 17(2)(b) of the Ordinance. It is well-settled that for securing conviction circumstantial evidence ought to be inconsistent with the innocence of the accused. I am therefore, of the view that the matter is one of further enquiry and the offence does not fall within the prohibitory clause. As such I would admit the applicant to bail upon furnishing solvent surety in the amount of Rs.300,000. (Three lacs only) and P.R bond in the like amount to the satisfaction of the Nazir of this Court. The above observations however are only tentative and will not prejudice the trial in any manner.

N.H.Q./M-21/K ????????????????????????????????????????????????????????????????????????????????? Bail allowed.