1. ' This bail application has been moved on behalf of the aforesaid two applicants/accused; who have been charge-sheeted in Crime F.I.R. No,358 of 2000 of Police Station F.I.A. Passport Cell, Karachi, under the provisions of section 6(1)(a)(c)(f) of the Passports Act, 1974. Sections 411, 419, 420, 468 and 471, P.P.C. Read with section 109, P.P.C. And sections 3(2)(a)(b) and 13/14 of the Foreigners Act.
2. ' The brief facts requisite for the purpose of disposal of this bail application are that the aforesaid two applicants/accused, alongwith two ladies namely Farzana Younus and Saleema Begum, left Peshawar on 10-7-2000 for Abu Dhabi. On their landing at Abu Dhabi, it was found that they travelled on fake passports and travelling documents and, therefore, they were deported from Abu Dhabi to Karachi where they were taken into custody by the F.I.A., Passport Cell, Karachi, on the basis of the aforesaid F.I.R. Bail application was moved on behalf of all the four accused persons in the Court of Judicial Magistrate, Malir, Karachi, the two lady accused were granted bail on the ground of their being females and having minor children to look after. However, bail to the aforesaid two applicants/accused was refused, whereunder they filed a bail application in the Court of the Sessions Judge, Malir, Karachi, who vide order, dated 27-7-2000, dismissed the bail application. While dismissing the bail application, the Sessions Judge, Malir, Karachi, had made the following observations, which weighed with him in dismissing the application:-- ' ".... Record indicates that both the accused/applicants had taken Afghan ladies and their children with them and arranged their wrong names in their passports, one of them showing one lady as his wife. This conduct of the accused/applicants shows that they are involved in this business professionally and as such there is every likelihood of repetition of the same act by them, if they are released on bail. The case of the present accused/applicants does come within the ambit of exceptional circumstances and as observed in a judgment reported in PLD 1995 SC p.54, the accused/applicants are not entitled to the grant of bail."
3. ' I have heard the arguments of Messrs M. Ilyas Khan and S. Tariq Ali, the learned Advocate for the applicants/accused and the learned Federal Counsel and have perused the material on record as well as the case-law relied upon by Mr. M. Ilyas Khan.
4. ' The first ground which has been vehemently agitated by Mr. M. Ilyas Khan is that the prosecution agency has illegally applied the provisions of Pakistan Penal Code inasmuch as during the course of their travelling from Peshawar to Abu Dhabi, the accused persons did not commit any act which could come within the definition of the offences defined in sections 411, 419, 420, 468 and 471, P.P.C.
5. He further submitted that the Sessions Judge, Malir, Karachi, in dismissing the bail application did not take into consideration the facts as to under which statute the accused could be tried and what was the maximum sentence which could be awarded to them. In this connection, he submitted that when an accused person is charged under the provisions of two different statutes or laws, then the settled principle is that the case will proceed against him under the law which provides lesser punishment for the offences alleged to have been committed by him. For his above contention, he placed reliance on the cases of (i) Ghulam Sarwar v. The State 1990 SCM R 1045 (ii)
6. Muhammad Afzal v. The State 1998 PCr.LJ 955 and (iii) Akhtar Hussain Shah v. The State 1999 PCr.LJ
225. He further submitted that the accused persons can only be tried for an offence punishable under the Passports Act and the maximum sentence which could be awarded to them under the Passports Act is three (3) years' R.I. He further submitted that it is a settled rule that bail in non- bailable offence not punishable with imprisonment for more than seven (7) years is to be granted by way of rule and refusal is an exception and that no exceptional circumstances have been shown to exist which would warrant refusal of bail to the applicants/accused. Mr. M. Ilyas Khan also attacked the validity of the investigation and the charge-sheet on the ground that the Investigating Agency had booked the accused persons under Sections 468 and 471, P.P.C. Which are non-cognizable offences but the Investigating Agency had not obtained permission from the concerned Magistrate for investigating the accused persons in respect of the aforesaid offences.
7. ' Mr. S. Tariq Ali, the learned Federal Counsel for the State, on the other hand, opposed the bail application and submitted that the accused persons had forged, fabricated and made illegal entries in the passports of the two ladies for taking the said two ladies alongwith them as a cover for their illegal activities and besides violating the provisions of the Passports Act, they also violated the provisions of the P.P.C. Mentioned in F.I.R. No,358 of 2000 and that the Investigating Agency did not commit any illegality in applying the sections of the P.P.C. In the F.I.R. As well as in the charge- sheet submitted against them. Mr. S. Tariq Ali conceded that it is a well-settled principle that when an accused is charged under two different statutes or laws, then he can only be tried for offences under the law which provides lesser sentence provided that the offences are alike or similar in nature. He candidly conceded that in the present case, the accused could only be tried under the provisions of the Passports Act which provided the maximum sentence of three years' R.I. Or fine but he submitted that the accused were not entitled to be enlarged on bail as by their illegal acts of forgery, fabrication and making illegal entries, they have brought into disrepute and earned a bad name for the country as their illegal activities were detected in a foreign country and this was an exceptional circumstance which disentitled the accused from being enlarged on bail.
8. There is no dispute with the established rule that if an accused is charged under two different Statutes or laws for offence which are alike or similar in nature, then he would be proceeded against for the offence under the law which provides lesser sentence. On the basis of this principal, the accused would be tried, as submitted by Mr. M. Ilyas Khan, under the provisions of the Passports Act which provide maximum sentence of three (3) years' R.I. With regard to the offences under the P.P.C., it is to be observed that the facts and circumstances of the case are such that a further inquiry would be required to prima facie connect the accused persons with the offences punishable under sections 411, 419 and 420, P.P.C. so as to bring their case within the embargo contained in section 497, Cr.P.C. The question as to whether the forgery/cheating/interpolations, etc. Allegedly made by the accused persons in the passports relating to the two ladies would be covered solely by the provisions of the Passports Act to the exclusion of the provisions of the P.P.C.
9. Would also require to be considered at the stage of trial which again would necessitate a further inquiry.
10. For the foregoing reasons, I am of the view that the prosecution has failed to establish that the accused are prima facie guilty of an offence punishable with death, imprisonment for life or ten years and there is no reasonable ground to believe them to be guilty of such an offence. There are also no extraordinary or exceptional circumstances which would be an obstacle in the way of grant of bail to the accused persons.
11. ' Upon the above discussion, I am satisfied that a case is made out for enlarging the applicants/accused on bail. Accordingly, the applicants/accused are ordered to be enlarged on bail on their furnishing one solvent surety in the sum of Rs,1,00,000 (Rupees one lac only) each and P.R. Bond in the like amount to the satisfaction of the trial Court.