' Petitioner Riaz Asad seeks post-arrest bail in case F.I.R. No,95 of 1998, dated 12-12-1998 under section 17/22, Emigration Ordinance, 1979 on the allegation that he received an amount of Rs, two lacs from the complainant Maqsood Ahmad for arranging visa for employment in Malasia.
2. Learned counsel for the petitioner contends that earlier F.I.R. No, 34 of 1998 registered at the instance of one Muhammad Tariq in which the petitioner was arrested and present complainant was a witness in that F.I.R. Whose statement was recorded under section 161, Cr.P.C. On 3-11-1997 in which the same allegation was leveled against the present petitioner. At that time the present petitioner was arrested but later on a separate F.I.R. Has been recorded and the arrest of the petitioner has been shown subsequently on the same allegations which were available before the Investigating Officer complete or incomplete challan of the case has not been submitted so far in the Court. In the present F.I.R. The petitioner was arrested on 12-12-1998 when the petitioner was already in judicial lock-up. It is further argued that section 17 (ibid) does not fall under prohibitory clause while section 22 is punishable for imprisonment up to 14 years or fine. Reliance has been placed on Shakeel Hasan Rashidi v. The State (1992 M LD 99), Sher Ahmad v. The State (PLD 1993 Peshawar 104) and Muhammad Aslam v. The State (1997 PCr.LJ 1736) to argue that if complete or incomplete challan is not submitted within 14 days, the petitioner becomes entitled for bail as a matter of right. Learned counsel also contends that the alleged occurrence of the present F.I.R. And of earlier F.I.R. No,34 of 1998 and the alleged amount received by the petitioner at one and the same place on the same day and, therefore, separate case should not have been registered in the presence of earlier criminal case. The petitioner took specific plea that during the occurrence he was not in Pakistan but his version was not recorded despite his filing of writ petition before this Court.
3. Ch. Saghir Ahmad, learned Standing Counsel assisted by the learned counsel for the complainant has opposed the bail and argued that the case falls under the prohibitory clause.
'Under section 22 the sentence is 'fine or both'. The fine cannot be termed as alternate punishment.
Reliance has been placed on Qazi Ghulam Mustafa v. The State (1987 PCr.LJ 2004) and Sh. Sharif Ahmad v. The State (1995 M LD 1821). It is also argued that the challan has not been submitted as one of the co-accused Muhammad Jahangir is still at large and has not been arrested. Learned Standing Counsel has further argued that in immigration cases every person has got an independent cause of action and grievance, separate applications were submitted and the present case was registered.
4. I have considered the arguments of the learned counsel for the parties.
5. The present petitioner was arrested in case F.I.R. No,34 of 1998 and was released on bail by the Special Judge (Central), Multan on 5-10-1998, although on the statutory ground after passing of one year. The present case was registered on 12-12-1998 almost 10 months have already passed.
The complete or incomplete challan has not so far been submitted against the petitioner. Non- submission of the challan on the ground that some co-accused is still absconder is not considered as valid ground for non-submission of even incomplete challan against the accused who is behind the bars. The allegation for receiving the money from the present complainant was also available during the investigation of the earlier F.I.R. The inquiry in separate application moved by the present complainant by some other officer is also not sufficient ground for not inquiring into the matter if the allegations were made in statement under section 161, Cr.P.C. The bail cannot be with-held as a punishment. The petitioner cannot be kept behind the bars for an indefinite period as under trial prisoner. Therefore, the petitioner is allowed bail subject to his furnishing bail bond in the sum of Rs, two lacs with one surety in like amount to the satisfaction of the trial Court.