This application has been filed by the petitioner who is an accused in a case registered against him under sections 420, 468 and 471, P. P. C. And sections 17, 18 and 22 of Immigration Ordinance, 1979, vide F. I. R. No. 95 dated 10th August, 1980, with Police Station Passport Cell, Rawalpindi.
2. The complaint on the basis of which the aforementioned F. I. R. Was registered, was lodged by the Immigration Authorities, Airport, Islamabad. The allegations as contained in the complaint are that by Flight No. B. A. 223 from London, two passengers holding British Passport No. P. 493442-A and L. 792247 with names of Mr. Munshi Khan and Abdul Ghani, arrived. On checking of the Passports it was detected that the actual names of the said two passengers were Zaheer Ahmad son of Abdul Rehman's and Muhammad Salim son of Karam Elahi and that they had clanged their own photographs on the said passports instead of the original holders thereof. The said two persons were sent to the Passport Cell under the supervision of a constable for registration of case and investigation. The said two persons disclosed that those Passports were obtained by them from one Safdar, son of Ali Akbar (the petitioner herein) on payment of Rs. 15,000 and Rs. 20,000 respectively in the presence of Messrs Yousaf and Abdul Rehman's.
3. The petitioner appears to have moved bail application before the Special Judge, Anti-Corruption (Central), Rawalpindi which vas rejected on merits. He moved a second bail application and also made an offer to make good the loss of all defrauded persons who were allegedly' cheated by the petitioner if he is allowed bail. The learned Special Judge, in view of the offer only allowed interim bail to the petitioner by his order, dated 18October, 1980, subject to certain conditions, which inter alia included the production of a Bank guarantee of Rs. 50,000. The petitioner thereafter moved a bail application in the High Court whereupon the learned Special Judge passed an order on 15thth February, 1981, to the effect that the bail application before him has become infructuous, as the petitioner has moved the High Court for the purpose. The bail of the petitioner in the High Court was disposed of by my learned brother K. M. A. Samadani. J. On 22nd February, 1981, who dismissed the same as the matter was to be considered afresh by the Special Judge, in case of withdrawal of the offer by the petitioner which he made before the Special Judge, and on the basis of which interim bail was allowed to him. The petitioner thereafter filed a Petition for Special Leave to Appeal before the Supreme Court against the aforementioned order, dated 22February, 1981, of the High Court.
The Supreme Court dismissed this petition by order, dated 25th February, 1981. The Supreme Court in para. 3 of its order held as under:-- "3. We are not, at this stage, concerned with the strict legality of the conditions incorporated in the interim bail order by the Special Judge, because we find from the proceedings that the order was passed more at the instance of the petitioner than by way of a legal determination of a contested question. Undoubtedly, the petitioner is free to resile from any undertaking which he considers he has not given freely or which he considered cannot be legally exacted out of him: In other case, while, so repudiating the con--ditions of the interim bail, he cannot avoid determination afresh on merits. If we were to entertain directly the merits of the claim of the petitioner to bail we will be doing so without any of the other Courts having attended to it finally on merits. Besides, we will be doing so at the instance and for the benefit of petitioner who has resiled from his own offer not in the forum where the offer was made but higher up in the hierarchy."
4. The learned Special Judge, Anti-Corruption once again considered the matter- on merits and by his order, dated 4th March, 1981, dismissed the bail application. The petitioner has therefore, came up to the High Court again.
5. The learned counsel for the petitioner raised the following con--tentions:-
(a) That the co-accused in the case namely, Muhammad Younas son of Allah Ditta .Has since been granted bail by the Supreme Court of Pakistan.
(b) That the learned Special Judge, erred in law in demanding the making good the loss by the petitioner of the persons defrauded by him and refusal of bail on this ground could not be made.
(c) That section 22 of Immigration Ordinance, 1979 is not applicable and as such the observation of the learned Special Judge, that the offence was punishable with life imprisonment, has no basis.
6. On the other hand the learned counsel for the State submitted that the co-accused had been allowed bail as his case was on a different footing, in that he was involved in the case on the statement of the peti--tioner himself who alleged that the Passports had been forged by the said Muhammad Younas, but as against Muhammad Younas there was no direct evidence available.
He further stated that the evidence against the peti--tioner is directly of those persons whom from he received money in consideration of the forged passports. The granting of bail to the co--- accused, it was argued, has therefore, no relevance so far as the petitioner is concerned.
7. It was next urged by the learned counsel for the State that the petitioner is also charged under section 18 of Immigration Ordinance of 1979 which entail punishment of more than 10 years and as such even if it be assumed that section 22 is not attracted, the case of the petitioner still fall within the prohibitory provision of section 497 (1) of Cr. P. C. And the petitioner would not be entitled to bail especially when the offence is henious and the petitioner is involved not only in this case, but other casts of the same nature.
8. As regards the contention of the petitioner that the Special Judge erred in law in tagging up the matter of bail of the petitioner with the offer to make payment of the claims, the learned counsel submitted that the petitioner is trying to take benefit of his own mischief: He submitted that the petitioner whose bail had been rejected on merits by the learned Special Judge and who had not challenged that order of rejection of his bail. First induced the Court to allow him bail by making offer and then tried to wriggle out of the same by approaching the higher Courts and attempted tond confuse the whole issue. It was urged t hat such a person cannot otherwise be afforded the concession of bail.
9. The learned counsel referring to Zimnis of the Police file sub--mitted that other forged Passports deposited by the petitioner with some Travelling Agency have also been recovered, which fact further magnifies the involvement of the petitioner in offences punishable with imprisonment of more than 10 years.
10. Having given consideration to the controversy involved I find force in the contention raised on behalf of the State. I would not like to deal with the contentions raised on behalf of the parties touching upon the merits of the case, as any observations that may be made by the Court of whatever tentative nature those may or may not prejudice the case of either party. I would suffice by saying that prima facie the petitioner is connected with a crime which entails punishment within the prohibitory clause of section 497 (1), Cr. P. C. The investigation being still in progress, the allow-- ing of bail to the petitioner at the stage when it has been refused twice over by the Court below on merits, does not seem to be appropriate. The grant of bail to the co-accused is also of no avail to the petitioner, in that the cases are distinguishable. The conduct of the petitioner in obtaining interim bail from the Courts below by a false inducement, which it appears he had no intention to fulfil also goes against the petitioner while consider--ing the matter of grant of bail which is a concession and can only be extended to persons who come .To the Court with clean hands. The observa--tions of the Honourable Supreme Court in its order, dated 25th February, 1981, at page 4 reading as under:-- "Besides we will doing so at the instance and for the benefit of the petitioner who has resiled from his own offer not in the forum where the offer was made but higher up in the hierarchy;" also lend support to my view that the concession of bail cannot be granted to a person who approaches the Courts with unclean hands.