' By this order I propose to dispose of bail application filed on behalf of applicant, Murad Ali Shah arising out of F.I.R. No,61 of 2003 registered with Police Station F.I.A., Passport Cell, Karachi, for an offence under sections 3(1) and 4 of the Prevention and Control of Human Trafficking Ordinance, 2002 (Ordinance LIX of 2002).
2. The bail plea of the applicant was declined by the learned 1st Additional Sessions Judge, Malir vide order, dated 6-8-2003.
3. The prosecution story as enunciated in the F.I.R. Is that on 8-4-2003 at 1-50 p.m. a complaint dated 6-4-2003 of Inspector Muhammad Hatim Baloch Incharge shift "D" Departure F.I.A.
Immigration JIA, Karachi was received at Police Station F.I.A./ Immigration/Passport Cell, Karachi stating therein that paxes namely (1) Ali Gohar, (PP No,K-13480, dated 17-4-2001 Peshawar), (2)
Musafar (PP No,KAQ-9577528, dated 31-4-2002, Peshawar), (3) Muhammad Nadeem (PP No,KA- 516680, dated 21-3-2002 Peshawar) and (4) Murad Ali Shah (PP No,624335, dated 21-12-2000 Swat) were scheduled to fly through Flight No,EK-601 for Colombo on the strength of Pakistani passports but during the examination of their travel documents at Immigration Counter, Passports of paxes mentioned at serial Nos.1 to 4 were suspected to be forged by replacement of photographs. Upon Interrogation they disclosed their real names as (1) Naseer Ahmed, (2) Faisal Sadat, (3)
Muhammad Anwar and (4) Muhammad Naseem respectively. They further disclosed that they had paid an amount of Rs,5,00,000 each to one Agent namely Anwar Babu of Messrs Yousuf Zai Travel Agency Peshawar through their parents who provided these Passports and, according to them, pax at serial No,5 was the nephew of an associate of such Agency who was acting as Carrier for their assistance whereas pax at Serial No,5, Murad Ali Shah, disclosed that he was directed to hand over all the above paxes to one Agent Sardar Khalil at Colombo who had to arrange their departure to U.K. Accordingly, all the paxes were brought at the cell where all earlier four further disclosed that they are Afghan Nationals and entered into Pakistan through authorized route and were staying at Peshawar from a considerable period and since they were desirous to proceed U.K., they came into contact with an Afghan Agent namely Sohail who was running his office at G.P. Plaza Karkhanay Hayatabad, Peshawar who received Rs,5,00,000 from each of them with the active connivance of his associate Anwar Babu of Yousuf Zai Travel Agency, Khyber Road, Peshawar. It was further disclosed in the F.I.R. That Anwar Babu informed his sub-agent Murad Ali that some people of Sohail Afghani were arriving at Karachi and he had to arrange their boarding and shifting at Karachi and accordingly when paxes listed above arrived at Karachi. Murad (applicant) arranged their boarding at different place with the connivance of Ramo alias Anwar and Mumtaz who were also working for Sohail Afghani and Anwar Babu. The applicant further disclosed that he received Passports of above Afghan Nationals from Sohail Afghani through courier service and arranged their ticketing from Messrs Aero Pak Aviation and took them to JIA Karachi alongwith Ramo and Mumtaz where they handed over their Passports and tickets to them. He further disclosed that the amount involved in ticketing etc., was remitted to him by Anwar Babu through Nobel Money Changer at Karachi Stock Exchange, Karachi and he also filed one ED Card of all the paxes and these paxes were required to be handed over to Agent Sardar Khalil at Colombo for making further arrangements for their departure to U.K. Accordingly, in view of the above position, F.I.R., as above, was registered.
4. The investigation followed and in due course the applicant was sent up to stand trial in the Court of law.
5. I have heard the learned counsel for the applicant as well as learned Standing Counsel.
6. It has been contended by the learned counsel for the applicant that case against the applicant is false and he has been booked in this case with mala fide intention. It has, further, been contended by the learned counsel for the applicant that the prosecution agency has illegally applied the provisions of Prevention and Control of Human Trafficking Ordinance, 2002 (Ordinance LIX of 2002) as the facts and the circumstances incorporated in the F.I.R. Reveal that at the most Emigration Law would be applicable and in this context it has been contended that the learned 1st Additional Sessions Judge, Malir, in dismissing the bail application did not take into consideration the facts as to under which statute the accused could be tried and what was the maximum sentence which an accused person is charged for under the provisions of two different statutes or laws and in that eventuality the settled principle is that the case shall proceed against the accused under the law which provides lesser punishment for the offences alleged to have been committed by him. It has, further, been contended that even the punishment mentioned in sections of Ordinance LIX of 2002 with which the applicant has been charged, does not come within the ambit of prohibitory clause of section 497(1), Cr.P.C. He has relied upon two unreported cases decided by this Court bearing Criminal Bail Applications Nos.86 and 172 of 2003.
7. Learned Standing Counsel opposes the grant of bail on the ground that the applicant acted as Carrier of paxes and therefore, he is guilty of offences under the Ordinance LIX of 2002.
8. I have given my anxious consideration to the arguments of the respective parties and have also perused the record. It would be advantageous to highlight section 2(h) of the Prevention and Control of Human Trafficking Ordinance, 2002 (Ordinance LIX of 2002) and the same provision is reproduced herein below:-- "(h) 'human trafficking' means obtaining, securing, selling, purchasing, recruiting, detaining, harbouring or receiving a person, notwithstanding his implicit or explicit consent by the use of coercive kidnapping, abduction or by giving or receiving any payment of benefit, or sharing or receiving a share for such person's subsequent transportation out of or into Pakistan by any means whatsoever for any of the purposes mentioned in section 3."
9. According to the contents of the F.I.R. The applicant was offloaded by F.I.A. Authorities while he was attempting to carry passengers to Colombo on the basis of fake and forged travel documents against payment of huge amount for providing them employment there and the applicant has committed offence of Human Trafficking but it is to be seen at the bail stage whether the prosecution has brought sufficient evidence for levelling such allegations inasmuch as allegation itself shows that the applicant was at the most involved in taking out persons from Pakistan for the purpose of finding them employment overseas and this cannot, by any stretch of imagination be construed as human trafficking per the definition of the same given in the said Ordinance. Prima facie the applicant cannot be connected with the alleged crime in question for the simple reason that the provisions of sections 3 and 4 of the Ordinance LIX of 2002 will not prevail upon as there is no evidence with the prosecution for human trafficking and the statement of the applicant before the Police Officer cannot be termed as confessional statement and it is yet to be seen by the trial Court about the prosecution evidence that if an accused is charged under two different statutes or laws, then he can only be tried for offences under the law which provides lesser sentence provided that the offences are alike or similar in nature. In this regard, reference can be made to the case of Muhammad Younus and another v. The State 2001 PCr.LJ 157 wherein while allowing bail to the applicants, it has been held by the Honourable Chief Justice (Mr. Justice Syed Saeed Ashhad) of this Court that:-- "There is no dispute with the established rule that if an accused is charged under two different Statutes or laws for offence which are alike or similar in nature, then he would be proceeded against for the offence under the law which provides lesser sentence. On the basis of this principle, the accused would be tried, as submitted by Mr. M. Ilyas Khan, under the provisions of the Passport Act which provide maximum sentence of three (3) years' R.I. With regard to the offences under the P.P.C., it is to be observed that the facts and circumstances of the case are such that a further inquiry would be required to prima facie connect the accused persons with the offences punishable under sections 411, 419 and 420, P.P.C. So as to bring their case within the embargo contained in section 497, Cr.P.C. The question as to whether the forgery/cheating/interpolations, etc. Allegedly made by the accused persons in the passports relating to the two ladies would be covered solely by the provisions of the Passport Act to the exclusion of the provisions of the P.P.C.
Would also require to be considered at the stage of trial which again would necessitate a further inquiry."
10. In view of what has been held by the Honourable Chief Justice (Mr. Justice Syed Saeed Ashhad) of this Court, I am of the considered opinion that this is also a case where the prosecution has failed to establish that accused having been found prima facie guilty of an offence punishable with death, imprisonment for life or ten years and there are no reasonable grounds to believe him to be guilty of such an offence. Accordingly, the applicant is entitled to the grant of bail.
11. By my short order, dated 15-9-2003, I had granted bail to the applicant, Murad Ali Shah, in the sum of Rs,2,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court and these are the reasons for the same.
' Criminal Bail Application No,984 of 2003 stands disposed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.