1. ' This bail application is moved on behalf of the applicant who is facing trial before the learned Special Judge (Central), Karachi, under section 22(b) of Emigration Ordinance, 1979. The brief facts of the case against the applicant are, that he is the employee of F. I. A. Rawalpindi not being approved as Overseas Employment Promoter, he had demanded and received during the month of June, 1984, various amounts at Karachi, totalling Rs. 60,000 from the persons mentioned in the F.
2. I. R. On the false pretext to provide them for civil employment. Such F. I. R. Was registered by Mr. Muhammad Ahmad Tatari, Inspector Incharge, F. I. A., I & A S Passport Cell, Karachi. The bail application moved by the applicant was rejected by the trial Court and hence this application is moved.
3. ' The main ground urged by Mr. Badrul Alam, the learned counsel for the applicant is that the offence under section 22(b) of Emigration Ordinance does not fall within the purview of subsection
(1) of section 497, Cr. P. C. Because maximum punishment prescribed under this section is 14 years' imprisonment or fine. He has emphasised the words "or fine" and contends that accused may in the descretion of Court be awarded only fine and, therefore, such a punishment would not bring the offence under the prohibitory clause of subsection (1) of section 497, Cr. P. C. Subsection (1) of section 497 reads as under :- "When any person accused of any non-bailable offence is arrested or detained without warrant by an officer incharge of 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 10 years and the prosecution has been given notice to show cause why he should not be so released."
(a) .
(b) . . . . . .
4. ' The learned counsel for the applicant has relied upon number of cases decided by learned Single Judge of this Court, which I will presently refer. In Criminal Bail Application No. 804 of 1981, a learned Single Judge of this Court made the following observation :- "The learned. Counsel for the applicant has pointed out that offence under section 22(b) of the Ordinance mentioned above is punishable with imprisonment for a term which may extend to 14 years or with fine or with both. Emphasis is laid by the counsel on the use of word "or" that sentence of fine is optional and can be awarded in lieu of sentence of imprisonment. In those circumstances stated above even learned A. A.-G. Has no objection. Applicant is admitted to bail in the sum of Rs.
5. 20,0(0 with one surety and P. R. In the like amount to the satisfaction of the trial Court."
6. ' In Criminal Bail Application No. 566 of 1981, the learned Single Judge of this Court made the following observations :- "Mr. Ibrahim Memon learned A. A.-G. Sind has candidly submitted that the above question requires further inquiry/consideration. Furthermore he has also pointed out that the question as to whether the instant case falls within the prohibition clause provided for in section 497, Cr. P. C. For the reason that under section 22(b) of the Ordinance the maximum punishment provided is 14 years' imprisonment or with fine or both, also requires further consideration. In support of his latter submission, he has invited my attention to section 307, P. P. C., which provides maximum punishment 10 years' R. I. And fine or both, and not 10 years' R. T. Or fine or both. On the basis of the above illustration, it has been contended that in P. P. C., wherever punishment of 10 years' R. I. Has been provided, the fine is the additional punishment and not an alternate punishment, and, therefore, it is a debatable point as to whether the prohibition provided for in para. 1 of section 497, Cr. P. C. Can be pressed into service in spite of the fact that under section 22(b) of the Ordinance fine has also been provided as an alternate punishment.
7. ' Since the above points require further inquiry/consideration, I am inclined to grant the present application."
8. ' In Criminal Bail Application No. 2 of 1985, the views taken in the Criminal Bail Application No. 566 of 1981 was followed, and the bail was granted on the ground that it was the case for further inquiry.
9. ' In Criminal Bail Application No. 135 of 1985, the learned Judge subscribed to the views taken in Criminal Bail Application No. 566 of 1981 and granted the bail.
10. ' However, the learned Additional Advocate-General has relied upon another judgment of this Court in Criminal Bail Application No. 611 of 1985, delivered by the learned Single Judge of this Court.
11. The learned Single Judge has considered the views expressed in Criminal Bail Application No. 566 of 1981 and made the following observations :- "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.
12. 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 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 offence under sections 17 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."
13. ' With due respect to the views of the other learned Judges I am inclined to agree with my learned brother's views expressed in Criminal Bail Application No. 566 of 1981. The plain reading of subsection (1) of section 497, Cr. P. C. Would show, that emphasis is placed upon the maximum punishment which could be awarded for a particular offence and not the minimum punishment of fine that may be awarded. While describing the punishment of imprisonment in the subsection no mention is made of fine at all. If we accept the argument that where offence is punishable with imprisonment or tine, the Court can award only fine, therefore, the offence would not be covered by subsection (1) of section 497, Cr. P. C. Even when maximum punishment is 10 years or more, this argument would be equally applicable to cases which are punishable with 10 years' imprisonment and fine. Even in such cases, the Court can award imprisonment till rising of Court and fine.
14. Therefore, while deciding as to whether the offence is covered by subsection (I) of section 497,9 Cr.
15. P. C. Or not, the only points to be considered by the Court are whether offence is non-bailable and whether maximum punishment that could be awarded is imprisonment or 10 years or more. In the instant case imprisonment, which could be awarded is 14 years and, therefore, this C offence would fall within the prohibition imposed by subsection (I) of section 497, Cr. P. C.
16. ' The learned counsel for applicant argues, that the F. I. R. Has been recorded after a long period of delay and that the Court has yet to determine as to whether the applicant took any money from the intending D emigrants or not. The learned Addl. A.-G. States, that all the intending emigrants, whose names transpire in the F. I. R., have fully, implicated the applicant. Therefore, at this stage it cannot be said that there are reasonable grounds, to believe that applicant has not committed a non-bailable offence. The application is, therefore, dismissed at this stage.