' The petitioner seeks bail in a case registered against him and 3 others vide F.I.R. No32, dated 24-4- 1990 for offences under section 17/22 of the Emigration Ordinance read with section 6 of the Passports Act, P.I.A., Passport Cell, Rawalpindi.
2. According to the allegations made in the F.I.R, the four accused persons namely Allah Ditta, Muhammad Ismaeel, Zil Allah and the petitioner received a sum of of Rs,5,50,000 alongwith Passports from Muhammad Riaz etc. (26 persons) on the pretext of getting them employment in Saudi Arabia. Later, the accused persons neither sent them abroad nor returned their money and the Passports.
3. The petitioner's learned counsel urged that the petitioner was behind the bars for the last I6 months without any progress in the trial. Moreover, the offences alleged against him do not fall within the prohibitory clause of section 497 of the Cr.P.C. In this connection he has placed reliance on the case of Arshad Mehmood v. The State 1985 P Cr. L J 2048. He submitted that the offences were bailable and added that the petitioner was ready to furnish bail bond and sureties in heavy amount as a safeguard against his abscondence. The leamed State Counsel opposed the prayer for bail on the grounds that the offences were very serious and that the petitioner might abscond.
4. The question as to whether the offences under sections 17 and 22 of the Emigration Ordinance and section 6 of the Passport Acts are bailable or non-bailable and if non-bailable whether the said offences fall within the prohibition of section 497 of the Cr.P.C, will require detailed examination.
5. Under section 4(b) of the Cr.P.C, bailable and non-bailable offences have been defined as follows:- "Bailable offence means an offence shown as bailable in the second schedule or which is made bailable by any other law for the time being in force and non-bailable offence means any other offence."
The offences under sections 17 and 22 of the Emigration Ordinance and section 6 of the Passports Act are neither shown in the schedule as bailable nor made bailable under the law for the time being in force. Hence the said offences are "non-bailable" by virtue of the provisions of section 4(b) of the Cr.P.C. However, it has to be seen whether the said offences fall within the prohibition of section 497 of the Cr.P.C, or not.
6. The offences falling within the prohibitory clause of section 497 of the Cr.P.C, are those which are punishable with death or imprisonment for life or imprisonment for 10 years. Obviously, the law contemplates refusal of bail only in cases which are to be visited by the extreme penalty of death or in the alternative imprisonment for life or imprisonment for 10 years. The offences in which one of the alternative sentences is fine do not fall within the ambit of the prohibitory clause.
7. The punishment for the offences under section 17/22 of the Emigration Ordinance and section 6 of the Passports Act are as Under- ' Section 17. S years or with fine or with both.
' Section 22. 14 years or with fine or with both.
' Section 6 of the Passports Act. 3 years or with fine or with both.
The offences under section 17 of the Emigration Ordinance and section 6 of the Passport Act being punishable with imprisonment for 5 years and 3 years respectively, obviously do not come within the prohibitory clause. The offence under section 22 of the Emigration Ordinance is punishable with imprisonment for 14 years or with fine or with both. If we keep in mind only the sentence of 14 years of imprisonment, then the offence would fall within the prohibitory clause. However, the law also provides alternative sentence which may be fine alone. The prohibitory clause does not have any scope for embracing those offences as well which, in the alternative are, punishable with fine. This question was considered in the case of Arshad Mehmood v. The State 1985 PCr. LJ 2048 in which it was held that the offence under section 22 of the Emigration Ordinance not being punishable exclusively with 14 years' imprisonment but with imprisonment for 14 years or fine, the offence did not fall within the prohibitory clause of section 497 of the Cr.P.C. I am also fortified in my view by the following judgments:-
(1) Gulzar Hussain v. State 1987 P Cr. L J 1305, Shafqat Ali v. State 1987 PCr. LJ 971, Muhammad Akhtar v. State 1984 PCr. LJ 2340.
' A contrary note was struck in the case of Hafiz Ahmad Khan v. The State 1988 P Cr. L J 338 but with due deference I am unable to subscribe to the view expressed in the said judgment. In the said judgment it has been emphasised that the sole criteria for determining the question whether the case falls within the prohibitory clause of section 497 of the Cr.P.C, is the maximum sentence prescribed in a particular offence and not the minimum sentence or the exclusive sentence of fine only. It was further held that the considerations such as lack of powers of the trial Court to award sentence of 10 years or more or premature visualizing that in the peculiar circumstances, the offence will not entail punishment for more than 10 years, being foreign to the statutory law of bail are totally irrelevant. No doubt, where an offence is punishable with death or lesser sentence of imprisonment for life or 10 years, an exercise to visualize at the bail stage whether the offence would entail maximum sentence or not is difficult and may not be undertaken with a view to pushing the offence out of the prohibitory clause. However, the prohibitory clause, as mentioned above, does not embrace that category of offences in which one of the lesser sentences is fine alone. Had the intention been to bring such offences within the ambit of the prohibitory clause then the legislature would have worded it as under:- ".... 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 10 years or fine or both."
The alternative lesser sentence in the shape of fine is conspicuously absent from the prohibitory clause, as it stands at present. It is not open to a Court of law to read into the statute what is not embodied therein unless the context so permits or requires by necessary implication or intendment. It is more so in case of the law of bail which deals with the rights of citizens relating to their freedom and liberty. If the legislature so desires, the offence under section 22 of the Emigration Ordinance can be brought within the prohibitory clause by deleting the word 'or' after imprisonment for 14 years and substituting it with the word 'and'. However, unless the requisite amendment is made in the law, the said offence has to be treated as one falling outside the purview of the prohibitory clause.
6. The petitioner was arrested on 26-2-1990 and is behind the bars since then. His trial has not yet commenced. It is not fair to keep him in jail indefinitely. The petitioner's learned counsel has offered to furnish bail bond in heavy amount to obviate the possibility of petitioner's abscondence.
7. I, therefore, accept this application and allow bail to the petitioner subject to his furnishing bail bond in the sum of Rs,1,00,000 (one lac) with two sureties in the like amount to the satisfaction of the learned Special Judge (Central), Rawalpindi.
8. The offences under sections 17 and 22 of the Emigration Ordinance are fairly serious and the Legislature would do well in amending the law and bringing both the offences within the prohibition of section 497 of the Cr.P.C. A copy of this order be forwarded to the Secretary Law and Justice Division for appropriate action.