MUHAMMAD AKHTAR Versus STATE

ORDER

Having failed to get bail from the Special Judge (Central) Karachi the applicant Muhammad Akhtar has approached this Court for the same purpose.

2. The applicant abovenamed is accused of offences punishable under sections 17 (2) and 18 (a) of the Emigration Ordinance, 1979. The prose cution case is that on receipt of a spy information, the house jointly shared by the applicant and co-accused Javed was raided by the police and in presence of Mashirs Nazir Ahmed and Jalilur-Rehman, the S.I.P. Sifat Ali Agha recovered one suit-case of brown colour from the said house, containing incriminating articles namely 46 forged stamps made of rubber, metal and wood relating to Saudi Arabia, Iraq and U.A.E. It is alleged that these stamps are being used for illegal emigration of Pakistani manpower to the aforesaid countries. These stamps alongwith other forged documents including forged entry visa of Saudi Arabia were seized by the police, who after completing due investigation put the applicant on trial.

3. Mr. Attaullah was heard in support of the application and Mr. M.I. Memon, A.A.-G. made his submissions on behalf of the State.

4. 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.1. 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 failing 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:-

"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 punish able 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 unfettered 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 section. Ashraf Ali Shah v. State (Cr.Bail Application No.33 of 1982) and section. Jawaid Hussain v. The State (Cr. Bait 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 barged 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 been 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 incriminat ing 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 the 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 (Cr.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.

M. Y. H. Bail granted.