1. ' This order will dispose of Criminal Bail Applications Nos.1146 of 2000 and 1147 of 2000 filed by Muhammad. Shafi Mansoori and Habib Ahmed Khan. As both the applications arise out of the same facts and the proceedings. The accused persons are facing trial before the Court of Senior Special Judge Central-I, Karachi in Crime/F.I.R. No,412 of 2000 of F.I.A. Passport Cell, Karachi for offences punishable under sections 17(2)(b), 22(b) and 23 of Emigration Ordinance, 1979 (hereinafter referred to as the said Ordinance).
2. ' The present application is moved after rejection of their bail application by the Court of Senior Special Judge Central-I. Karachi vide order, dated 13-10-2000. The brief facts of the case are that accused Muhammad Shafi Mansoori in connivance of his associates/co-accused Habib Ahmed Khan and Saeed Ahmad not being an authorized overseas employment promoter had demanded Rs,5,00,000 and received Rs,2,00,000 through accused Habib Ahmed Khan from the complainant Abdul Qayum on the pretext of sending Abdul Qayum brother Ayub and nephew Sher Muhammad to U.S.A. For employment/job on foreign Ship but failed to do so and even did not return the money to Abdul Qayum.
3. ' It has been argued by the learned counsel for the accused that the accused persons are innocent. They have been falsely implicated in the above case with mala fide intention and ulterior motive. It has been argued that the investigation has been completed and complaint against the accused persons has been filed in the Court as required. It has been further pointed out that the case involves repeated delays first at the instance of lodging of the F.I.R. After occurrence and latter in filing of challan after lodging of F.I.R. The learned counsel for the accused Habib Ahmad Khan has raised additional plea of illness of the accused. He has produced laboratory test reports in support of his contention and while adopting the arguments advanced in Bail Application No,1146 of 2000 he requested for consideration of the bail application of accused Habib Ahmed Khan on the additional medical ground but the same is not supported by any finding of the doctor treating the accused.
4. ' It is further argued that in case under the provision of the said Ordinance is made out it is only the case under sections 420 and 409, P.P.C. The case relates to bare allegation not supported by any recovery. Reliance is placed on Muhammad Iqbal v. State 1995 MLD 1072 where case was registered after one year. In that case the complainant paid the amount to a Saudi National and not the accused, Shakil Hassan Rashidi v. State 1992 MLD 1999 where bail was granted to the petitioner on the ground that the offence does not fall within the Prohibitory Clause of section 497, Cc.P.C. By the Court contrary to the finding in the case of Hafiz Ahmed Khan v. The State 1988 PCr.LJ 338. I with due difference and unable to subscribe with this view. The criteria whether the case falls within the prohibitory clause is the maximum punishment for the offence which in the present case under provision of section 22 of the said Ordinance is 14 years or with fine or with both.
5. ' Mr. Ziauddin Nasir the learned Dy. A.-G. Opposes the application. He has referred to the investigation and on the basis of which the challan has been filed in Court and produced the police file together with the statements of six persons during the investigation assigning direct role to the accused persons contents whereof are not being reproduced to avoid any prejudice being caused during trial.
6. ' I have considered the arguments advanced before me by the learned Advocates also perused the facts, police papers, ruling cited by the learned counsel.
7. ' An important feature is that this case pertains to transporting the persons through ship circumstances and facts are different and distinguishable from those for providing for jobs and transporting by the air in the above cited cases and the payment was partly made right at Port Qasim. The amount received and shared by the accused persons namely Muhammad Shafi Mansoori to whom the sum of Rs,2,00,000 was paid to the accused. As per facts on records the accused Habib Ahmed Khan introduced co-accused Muhammad Shafi Mansoori to Abdul Qayum and further the payment of Rs,2,00,000 was handed over the same to co-accused Muhammad Shafi Mansoori. It is pertinent to mention that Abdul Qayum gave the money of Rs,2,00,000 through accused Habib Ahmed Khan to co-accused Muhammad Shafi Mansoori on the pretext of sending his/Abdul Qayum brother Ayub and nephew Sher Muhammad for employment/job on foreign Ship in U.S.A.
8. It is an established principle of law that the statute has to be read as a whole. The principle of interpretation is that what is enacted has to be given full effect and extraneous considerations cannot be employed to make it redundant or to detract it from the meaning which it conveys. As per Umar Draz Cheema v. Nazar Muhammad and others 1980 SCM R 156. The law cannot be stretched to favour an accused. This point has been considered and consistently followed by this Court reproduced in the case of Muhammad Riaz v. The State PLD 1986 Kar. 567 as follows:-- ' "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. 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.
9. ' 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.
10. 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.
11. 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 tine 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'.
12. ' With due respect to the views of the other learned Judges I am inclined to agree with my learned brother's view 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 fine, 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.
13. Therefore, while deciding as to whether the offence is covered by subsection (1) of section 497, Cr.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 offence would fall within the prohibition imposed by subsection (1) of section 497, Cr.P.C."
14. ' The question of award of lesser sentence has already been settled as laid down by this Court in the case of Gul Khan v. The State PLD 1982 Kar. 1011 as follows:- "With all the respect that I have for the Judges, who had adopted this view I am constrained to take the view that regardless of the venue for trial if the offence is punishable with imprisonment for life or 10 years, the bar contained in section 497, Cr.P.C. Will be attracted without regard to the power of the Court trying them."
15. ' With due deference I am unable to subscribe to the view expressed in the order in the case of Shakil Hassan Rashidi v. The State 1992 MLD 1999. For the reasons already stated above I am in respectful agreement with the view in the case of Hafiz Ahmed Khan v. The State 1988 PCr.LJ 338.
16. ' I am, therefore; of the opinion that accused Muhammad Shafi Mansoori and Habib Ahmed Khan at this stage are not entitled for bail with the result the bail applications moved on behalf of accused Muhammad Shafi Mansoori and Habib Ahmed Khan are dismissed.