GHULAM MUSTAFA Versus THE STATE

ORDER

1. F.I.R. against the applicant was lodged on 16‑4‑1985 under sections 17,18, 22, & 23 of the Emigration Ordinance, 1979. The applicant was arrested. He moved a bail application before the learned Special Judge (Central), Karachi, but the same had been dismissed by order, dated 18‑5‑1985. Hence the present bail application before this Court. I have heard at length Mr. Farooq Rashid, learned counsel for the applicant and Mr. A.G. Mangi, learned Assistant Advocate‑General for State.

2. The following contentions have been raised by the learned counsel for the applicant on merits in support of the present bail application:‑

(a) There is no personal recovery of any documents or material from the applicant;

(b) One of the two Mashirs is a complainant and the other Mashir is also from the department;

(c) There is a delay of 6 hours in lodging of the F.I.R.;

(d) Seven persons, who in their 161 Cr. P. C. statement stated that each of them had paid Rs.1,200 to the applicant for the purposes of being sent abroad, had not specified the time when such payments had been made.

3. I find no merit in any of these arguments for the purposes of bail. A perusal of the F.I.R. shows that a number of incriminating articles were recovered from the applicant. On the facts and circumstances of this case, no case has been made out for bail on the ground that one of the two Mashirs is a complainant and the other Mashir is also from the department; that there is a delay of 6 hours in lodging of F. I. R., and that the time when the persons made payments of Rs.1,200 each to the applicant has not been specified. According to the police papers, the persons, who have been allegedly duped, have clearly and specifically involved the applicant. In my view, at this stage, there are reasonable grounds to believe that the applicant is involved in the commission of the offences alleged in the F.I.R.

4. It was then contended by Mr. Farooq Rashid, learned counsel for the applicant, that maximum sentence under section 17 is five years for the first offence and for second and subsequent offence under section 17 the maximum punishment is seven years, and under section 23 the maximum sentence is one year, and as regards the other two sections, namely, sections 18 and 22, the punishment provided is imprisonment for a term which may extend to 14 years, or with fine, or with both". Learned counsel for the applicant emphasized the words 'for with fine" and argued that in view of the employment of these words, the restriction under section 497 (1), Cr. P. C. is not applicable.

5. Learned counsel relied upon a reported decision of a learned Single Judge of this Court in the case of Mohammad Akhtar v. The State 1984 P Cr. L J 2340. In that case also section 17 of the Emigration Ordinance, 1979,was under consideration and while deciding the bail application moved by the accused in that case, the learned Single Judge observed as follows:‑

6. "The preliminary point raised at the bar was if the offences attributed to the applicant fall within the prohibitions contained in section 497, Cr. P. C. It was contended by the learned counsel for the applicant that the punishment prescribed for the said offences is either R.I. for 14 years or fine and, therefore, it is entirely within the discretion of the Court, to impose either of these punishments. The learned counsel was, therefore, of the opinion that the punishment prescribed for the above offences cannot be held to be the one falling within the meaning of subsection (1) of section 497, Cr. P. C. Accordingly his argument was that the offences in question lie outside the pale of the embargo imposed by section 497, Cr. P. C. which, therefore, does not stand in the way of grant of bail to the applicant. Subsection (1) of section 497, Cr. P. C. is reproduced as under:

7. "When any person accused of any non‑bailable offence is arrested or detained without warrant by an officer‑in‑charge of a police station or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years."

(5) It would appear from the above provision that if there is prima facie case against the accused to show that he is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years, he is not to be released on bail.

(6) The point for consideration however is whether the offences involved in this case are to be construed to be punishable with life imprisonment or imprisonment for 10 years within the meaning of above subsection. No doubt the imprisonment for 14 years has been prescribed for the offences under consideration. But in the alternative punishment of fine has also been provided for the said offences. When two alternative punishments one of imprisonment and another of fine are provided for any offence, the trial Court would have unfattered discretion, to resort to any punishment. In such a case it would be difficult to hold such offence to be exclusively punishable with either of the punishment. Therefore, I am inclined to agree with the view the offences under consideration are not covered by the restrictions imposed by section 497, Cr. P. C.

(7) The above view finds support from two unreported cases namely S. Ashraf Ali Shah v. State, Criminal Bail Application No.33 of 1982 and S. Jawaid Hussain v. The State, Criminal Bail Application No. 804 of 1981. However, if the case falls outside the limitations contained in section 497, Cr. P. C. it would not mean that accused, in the case of non‑bailable offence, would automatically be released on bail. If the accused is charged with commission of non‑bailable offence, the Court has to exercise its discretion to decide if the accused should be released on bail. While exercising its discretion, the Court will keep in view the factors: namely that the accused will not abscond that he will not terrorize or intimidate the witnesses that he will not tamper with evidence that he will not repeat the commission of similar or other offences and he will not be hazardous to the public at large. Thus, the discretion vested in the Court is to be exercised judiciously and not capriciously or arbitrarily. No doubt it has repeatedly held by superior Courts that in the cases not covered by the embargo of section 497, Cr. P. C. grant of bail is a rule and its refusal is an exception. Nevertheless the Court will keep before it the guidelines referred to above, while deciding about grant of bail.

(8) In the instant case it has been argued that the only evidence against the applicant is the recovery of incriminating articles from the house which he shares with the co‑accused. In other words the incriminating articles have been recovered from joint possession of both the applicant and the co‑accused. It is yet to be ascertained if the applicant had knowledge of the aforesaid articles to be lying within the house in which he was living. It is not shown that the applicant was present in the house at the time of recovery of the said articles.

(9) Apart from above, the learned A.A.‑G. has not expressed any fear that if the applicant is released on bail he would abuse the concession by absconding or by tampering with the evidence or indulging in commission of similar or other offences. However, he has invited reference to the case of Ch. Mehdi Khan v. The State, Criminal Bail Application No. 558 of 1983 which according to him is on all fours with the present case and since bail was refused in the said case, the application for bail moved in this case should also be dismissed. I have gone through the order passed in that case. It is found that the facts of the above case are different inasmuch as that unlike the present case, the incriminating articles where recovered from exclusive possession of the accused. Thus, the case cited by the learned A.A.G. lends him no assistance.

10. For the foregoing reasons bail is granted to the applicant in the sum of Rs.50,000 and P.R. of the same amount to the satisfaction of the trial Court."

8. Learned counsel also relied upon an unreported decision of another learned Single Judge of this Court, dated 22‑7‑1981 passed in criminal Bail Application No. 566/81, in which order, while considering bail application of an accused charged under section 22 (b) of the Emigration Ordinance, 1979, the learned Judge referred to the argument based on the punishment provided for by this section and observed that this as well as other points raised on merits required further enquiry/ consideration.

9. With respect I may observe that I do not subscribe to the view that as two alternate punishments are provided under sections 17 and 22 of the Emigration Ordinance, 1979, i.e.14 years or fine, such offences are not covered by restriction imposed by section 497, Cr. P. C. Section 497 (1) Cr. P. C. provides that a person accused of any non‑bailable offence shall not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. Offences under sections 18 and 22 of the Emigration Ordinance, 1979, are non‑bailable offences and they are punishable with imprisonment which g may extend to 14 years. No doubt there is an alternate punishment and that is of fine but that by itself does not take away this offence outside the restriction imposed by section 497 (1), Cr. P. C. It cannot be said that offences under sections 18 and 22 of the Emigration Ordinance, 1979, are not punishable with imprisonment for 10 years or more. They are punishable with imprisonment which may extend to 14 years.

10. As a result, I find no merit in this bail application. Criminal Bail Application No. 611 of 1985 is dismissed.

11. M. B. A. Application dismissed.