1. 'These two applications have been filed on behalf of the applicants, Shamsuddin son of Fazal Deen, Shafqatullah alias Sharafat son of Muhammad Sharif and Bara Khan alias Umar Khan son of Ghazi Khan, and Raja Safdar Nazeer Khan, who are facing trial for offences under section 420/468, 471/109, P.P.C. Read with section 17/18/22 of Immigration Ordinance, 1979, in the Court of Special Judge (Central) at Karachi.
2. ' The facts briefly stated are that on 23-11-1988 at 14-00 hours S.I. Khalid Jameel of F.I.A./18i.A.S. Passport Cell, Karachi, lodged a report (F.I.R. No, 531/88) to the effect that during the course of investigation of certain cases under section 6(I)(g) of the Passport Act, 1974, twenty-two victims mentioned in the were contacted and their statements were recorded as to how their passports (containing forged Libian and Saudi Arabian Employment Visas and forged Clearance Stamps of Protractor of Immigrants were found in possession of accused abovenamed and one Raja Safdar Nazeer Khan. From their statements, it transpired that they all were desirous to go abroad for employment purposes. During the months of September, October and November, 1988, they came into contact with accused Raja Safdar Nazeer Khan at his office Messrs Kamran Enterprises, G.T.
3. Road, Gujranwala, who introduced himself before the victims as Overseas Employment Promotor.
4. Later on, accused Raja Safdar Nazeer Khan in collaboration with his associates, namely, the accused abovenamed demanded and received Rs,25,000 to Rs,35,000 per head alongwith their passports, on the pretext to provide them employment visas for Saudi Arabia and Libia. Thereafter, accused persons as well as Raja Safdar Nazeer Khan with connivance of each other, affixed forged Saudi Arabian and Lihian Employment Visas and forged Clearance Stamps of Protactor. All the accused abOvenamed including Raja Safdar Nazeer Khan were arrested on that very day viz. 23-11- 1988. A bail application on behalf of all the four accused was moved before the learned trial Court who was pleased to reject the same vide his order dated 11-12-1988. Hence the above two applications for bail have been filed in this Court.
5. ' Mr. Muhammad Ilyas Khan, learned counsel for the applicants in Criminal Bail Application No, 1250 of 1988 contended that out of the various offences allegedly committed by the applicants only the offences falling under sections 18 and 22 of the Emigration Ordinance, 1979 are punishable with 14 years' R.I. Or with fine or with both. The counsel contended that the restriction imposed by section 497(1), Cr.P.C. Is not attracted to offences punishable with imprisonment for 14 years or fine. In his submission it is only applicable to those cases where the offences are punishable with death or imprisonment for life or imprisonment for ten yens. The counsel emphasised that where the offence is made punishable either with R.I. For 14 years or fine then the discretion is vested in the Court to impose either of these punishments. The offences involved in these cases thus are made punishable both with fine and imprisonment and hence the embargo placed by subsection (1) to section 497, Cr.P.C. Goes away. In support of his contention the learned counsel placed reliance on following decisions:-
(1) 1984 P Cr. L J 2340, (2) 1984 P Cr. L J 2340 and (3) 1985 P Cr. L J 2048.
6. ' Making his submissions on the merits of the case Mr. Ilyas Khan contended shat it is evident from the F.I.R. That the applicants did not ask for the amount neither they received any amount.
7. According to the learned counsel for the applicants there is no iota of evidence available against the applicants in respect of any of the offences falling under section 17, section 18 and section 22 of the Emigration Act.
8. Mr. Abdul Ghafoor Mangi, learned A.A.-G. On the other hand, opposed the bail applications. He submitted that ten passports were recovered from Shamsuddin, Shafeequllah with forged visas and 12 passports were recoverd from Umar Khan. Statements under section 161 of the 22 persons who are the victims of the applicants clearly involve all the applicants in the commission of the offences. Mr. Badar Muneer, learned counsel for the applicant in Criminal Bail Application No, 1297 of 1988, firstly adopted the arguments of Mr. Muhammad Ilyas Khan and secondly, he submitted that nothing was recovered from the possession of applicant Raja Safdar. He contended that since the investigation has been concluded and sanction has not yet been received, it is a fit case for grant of bail.
9. ' I have given my earnest consideration to the submissions made at Bar and I am clearly of the opinion that there exists prima facie case against all the applicants for having committed the offences for which they have been booked. The contention of Mr. Ilyas Khan that the embargo placed by section 497(1), Cr.P.C. Is not attracted to cases where the offences are punishable in the alternative with fine, is no doubt supported by above-said authorities cited by him. With due respect to the Hon'ble Judges who have taken above view, I do not find it feasible to persuade myself to agree with them. A bare reading of section 497(1), Cr.P.C. Clearly indicates that an accused shall not be released on bail if there appear reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. It is not specifically mentioned therein that if the offence is punishable with imprisonment for ten years or above is also made alternatively punishable with fine, then the case will go outside the purview of section 497(1), Cr.P.C. In my opinion, the question as to what punishment can be awarded is not a material question inasmuch as where offences which are punishable for imprisonment for ten years or more are involved, the Court is fully competent to award lesser punishment. The mere vesting of discretion in the Court does not render a case, where an offence is punishable with death or imprisonment for life or imprisonment for ten years, or fine, or both outside the purview of section 497(1), Cr.P.C. In my humble opinion the section does not envisage that in order to attract the embargo of section 497(1) the offences should exclusively be punishable only and only with death or imprisonment for life or imprisonment for 10 years and that if it is punishable additionally or alternatively with fine then it shall cease to be an offence punishable with death or imprisonment for life or A imprison. Such an interpretation is not warranted by any cannon of interpretation of statutes. If an offence is punishable with death or imprisonment for life or imprisonment for 10 years then it shall be hit by the embargo placed by section 497(1), Cr.P.C.
10. Notwithstanding the fact that in the alternative it is punishable with fine. I am fortified in my view by a decision of Nasir Aslam Zahid, J (as he then was) delivered in the case of Ghulam Mustafa v.
11. State 1985 P Cr. L J 2479 wherein it was held:- "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-boilable 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 offences under sections 18 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. I, therefore, hold that notwithstanding the fact that the offences falling under sections 18 and 22 of the Emigration Ordinance are in the alternative punishable with fine only, they remain offences punishable with 14 years' R.I. And the restriction imposed by section 497(1), Cr.P.C. Is applicable to them with full force.
14. ' Now coming to the merits of the case, I find that the prosecution witnesses in their 161 statements have clearly implicated all the accused persons in the commission of the offences for which they have been hooked. At any rate it is too early to form any opinion that any of the applicants is not involved in the commission of the offences with which he is charged.
15. ' In the result, both the applications are dismissed.