' ABDUL SAMI KHAN, J,---Through this petition under section 497, Cr.P.C. Asad Ullah petitioner has sought bail after arrest in case F.I.R. No, 156/12, dated 23-2-2012 registered at Police Station FIA, AHTC, Gujranwala for offences under sections 17/22 of the Emigration Ordinance, 1979.
2. The learned counsel for the petitioner contends that the petitioner is innocent and he has been falsely involved in this case. As a matter of fact a money dispute has been transformed by the complainant into occurrence in question. There is a delay of two years in lodging of the F.I.R. During investigation it came on record that only an amount of Rs, 1,32,000 is outstanding against the petitioner that too regarding another matter. The prosecution witnesses are related inter se. No other case of such nature has ever been registered against the petitioner. The petitioner is arrested in connection 'with this case on 1-3-2012 and since then he is behind the bars. Nothing has been recovered from the petitioner during the investigation of this case Section 22 of the Emigration Ordinance, 1979 carries alternate punishment of fine also and law is settled that where punishment of fine is provided, such offences do not fall under the prohibitory clause of section 497, Cr.P.C.
During investigation mother, of complainant sworn affidavit wherein she categorically stated that the money dispute of Rs,1,32,000 has been resolved. The learned counsel placed reliance on 2004 YLR 68 and 2007 PCr.LJ 401.
3. On the other hand the learned Deputy Attorney-General after going through the record submits that the petitioner is named in the F.I.R. With specific role of defrauding the complainant of a huge amount. The prosecution story is supported by the statements of independent witnesses and during the investigation the petitioner has given an option to the complainant that if out of three persons namely Hafiz Ghulam Mustafa, Dr. Muhammad Aslam and Muhammad Ayyaz Aslam anyone give finding regarding involvement of the petitioner in the offences or otherwise then he will pay the amount to the complainant and the last mentioned person after thrashing the matter has come to the conclusion that the prosecution story narrated in the F.I.R. Is correct and petitioner has to give an amount of Rs,1,32,000 to the complainant. The petitioner has been sent to judicial lock-up quite recently and the offences with which the petitioner is charged fall within the prohibitory clause. The petitioner has committed offence which is against the society and such-like person defraud the innocent people, therefore, he is not entitled to any concessionary treatment from this Court. Challan has been submitted in the court the petitioner ought to face trial before the learned trial court rather than claiming the concession of bail before this Court. The learned Deputy Attorney-General placed reliance on 2011 PCr.LJ 1214.
4. Arguments heard, record perused.
5. Be that as it may, a bare perusal of the F.I.R. Reflects that the petitioner received an amount of Rs,2,50,000 for sending the complainant and his sister abroad but during the investigation of this case it revealed that petitioner had to pay an amount of Rs,1,32,000 to the complainant, thus, the version of the complainant to the extent of quantum of amount is not established as correct. The petitioner has undergone physical remand but nothing has been recovered from his possession.
During the investigation of this case the mother of the complainant sworn an affidavit wherein she has categorically supported the version of the petitioner regarding dispute over money regarding another matter.
6. So far as section 22 of the, Emigration Ordinance, 1979 is concerned an alternative punishment of fine has been provided by the law makers. When two interpretations are possible 'regarding the guilt of accused the interpretation in favour of accused is to be considered for that reason offence does not fall within the prohibitory clause of section 497, Cr.P.C. And in such-like cases bail is to be allowed to an accused person as rule and its refusal is an exception. Reliance in this regard is placed on the case of Tariq Bashir and 5 others v. The State (PLD 1995 SC 34). Challan has been submitted and the person of petitioner is no more required for the purpose of investigation, therefore, his further incarceration would not serve any beneficial purpose.
6. For what has been discussed above the case against the petitioner calls for further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs,50,000 (Rupees fifty thousand only) each with two sureties each in the like amount to the satisfaction of the learned trial Court.
7. It is, however, clarified that the observations made hereinabove are just tentative in nature and only for the disposal of this bail petition.