The accused/applicant was arrested and has been confined in District Jail, Quetta in connection with case Crime No, 2 of 2002 dated 25-4-2002 registered with Passport Circle F.I.A. Under sections 17/18 and 22 of Immigration Ordinance, 1979 and under sections 420/109/34, P.P.C. Pursuant to the finalization of the inquiry No,1 of 2002 of F.I.A. Passport Circle, Quetta.
The bail plea of the accused/applicant has been rejected by the learned Additional Sessions Judge-I, Quetta vide order dated 12-6-2002 passed in Criminal Bail Application No,152 of 2002.
2. The brief facts of the case are that upon finalization of Inquiry No,1 of 2002 conducted by the F.I.A., Passport Circle, Quetta it came to limelight that accused Bostan Ali Recruiting Agent, resident of Alamdar Road, Quetta had lured the complainants Ishaq Ali and Ramzan Ali that he will send and arrange for the immigration of the brother of Ishaq Ali and son of Ramzan Ali to Australia in consideration of Rs,2,50,000 each and in this way accused Haji Bostan Ali successfully received Rs,5,00,000 for each of the above-said persons to be deported by him to Australia. After receiving the above-mentioned amount, accused Haji Bostan Ali transported these two persons besides others to Cambodia instead of Australia and after about three months a group of these Emigrants was managed to be boarded in a very old launch during night hours which hardly covered a distance of few furlongs went on capsizing and in the meantime, the Cambodian Coast Guard having found the launch in such condition approached to rescue the passengers of the said launch in which they succeeded and subsequently; the migrants boarded in the Launch including the abovesaid two persons were handed over to International Organization of Migrants (IOM) of the United Nations and the complainant Ishaq All and Ramzan Ali on having received information of such events approached to accused Haji Bostan Ali for the return of the abovesaid amount received by him and for the safety of their brother and son respectively but this time again the accused promised, undertook and induced them that he will send the said persons to Australia through another route and; as both these two persons were very keen to go abroad in search of livelihood, they were again sent to Singapore and from there, the brother and nephew of the complainant (Ishaque Ali) were shifted to Jakarta through an agent and ultimately were left stranded. In view of the evidence documentary and oral collected during the course of inquiry, it was proved to the satisfaction of the Inquiry Officer that accused Haji Bostan Ali extracted an amount of Rs,5,00,000 on the pretext for migrating the needee persons to Australia and thereby accused Haji Bostan Ali and others committed the offence punishable under sections 17/18/22 of the Emigration Ordinance, 1979 and under sections 420/109/34, P.P.C.
3. P.W. Muhammad Hadi son of Muhammad Juma in his statement recorded under section 161, Cr.P.C. Stated that he was in search for employment and ultimately he and his elder brother Ishaq Ali came to know through people of the Mohallah that Ex-Councillor Haji Bostan Ali arranges for the employment of people in Australia and for the job he receives Rs,2,50,000, therefore, his elder brother Ishaq Ali and uncle Ramzan Ali met with accused Haji Bostan Ali for seeking employment for the witness (Muhammad Hadi) and his cousin Muhammad Arif in Australia and at that time his brother and uncle were also accompanied by their friends Ramzanand Nisar Ali. On being contacted as aforesaid Haji Bostan Ali demanded Rs,2,50,000 each for providing employment to the witness and his cousin Arif in Australia, therefore, his brother and uncle paid Rupees Five Lacs to accused who was to provide employment to them in Australia and also their Passports, copies of the I.D. Cards were handed over to the accused. According to the witness on 3-5-2001 he and Muhammad Arif were sent to Lahore by train by Haji Bostan Ali and on reaching there, the accused Syed Muhammad Shah took them from Railway Station, Lahore and after that they stayed in Shabistan Hotel, McLoed Road Australia Chowk, Lahore. On 10-5-2001 Haji Bostan Ali deported them to Cambodia by Thai International Airlines. After their arrival on Cambodian Airport, obtained Visas for a week and stayed in Royal Higen Hotel as instructed by Haji Bostan Ali and were assisted by representative of accused Haji Bostan Ali namely Syed Muhammad Shah. Subsequently on or about 8-7-2001 they were boarded in a boat from a Coastal City in which 255 passengers were on the seats but after undergoing two hours journey in the sea they were arrested by the Cambodian Coast Guards and were brought back to Banam-Ban and ultimately on 28-7-2001 the Cambodian Police deported them to Pakistan by a Plane and on 30-7-2001 he and Arif returned to Quetta thereafter his elder brother Ishaq Ali and uncle Ramzan Ali again approached to Haji Bostan Ali who pacified them and assured to remain satisfied by undertaking that he will again manage to send them to Australia: subsequently; on 12th August, 2001 according to the witness Haji Bostan Ali sent them to Lahore by Chiltan Express and stayed in New Prince Hotel, McLoed Road, Lahore. After about 22 days' stay at Lahore, younger brother of accused namely Sikandar All took them to Lahore Airport from the Hotel and on 5-9-2001 they were sent to Singapore by Thai International Airline and Sikandar Ali also accompanied them. Two days after their arrival in Singapore he obtained visa for them and were sent to Malaysia and after a few days Sikandar Ali also came there and they both i,e, the witness and Muhammad Arif were handed over to one Malaysian agent who took them alongwith eleven other persons of different nationalities and were boarded in a boat in open sea and from there they all were shifted in a large boat and were taken to an Indonesia Island known as Sumatra and ultimately were given in the charge of one Indonesian agent who also charged 200 Dollars from each of them and took them to Jao Island but ultimately were arrested by Indonesian Police of City Baghor. After that P.W. Muhammad Hadi was sent to Pakistan with the assistance of International Organization for Migration (M.O.I.) and thus he reached back to Quetta on 28-11-2001, whereas; his cousin Muhammad Arif could not be deported as he had no money and still living in the Camp established by International Organization of Emigration in Indonesia. Further the witness alleged that after his return to Quetta his elder brother 'Ishaq Ali approached to accused Haji Bostan Ali by informing him that he failed to honour his commitment nor employment was provided, therefore, theamount received by him for sending the witness to Australia and providing employment be returned but he refused to return the amount, and; extended threats. P.Ws. Ishaq Ali son of Ali Juma, Arbab Muhammad Raza son of Arbab Qurban Ali and Ramzan Ali son of Barat Ali in their statements . Recorded under section 161, Cr.P.C. Have also narrated the facts relating to the case as contained in the statement of P.W. Muhammad Hadi, moreover, statements of P.Ws. Ishaq Ali and Ramzan Ali were also recorded under section 164, Cr.P.C. By the learned Judicial Magistrate IV/MFC, Quetta and opportunity of cross-examination was also availed by accused Haji Bostan Ali. In these statements as well in substance they have deposed the facts as stated by them in their respective statements recorded under section 161, Cr. P.C.
4. Heard the learned counsel for the applicant as well as the learned Dy. A.-G. At length. Syed Ayyaz Zahoor, Advocate contended that in view of given facts and circumstances of the case sections 18 and 22 of the Immigration Ordinance, 1979 have no application and secondly if it be assumed that the offence falls under section 18 of Ordinance; the punishment provided is in the alternate i,e, 14 years' imprisonment or fine or with both hence the bar as contained in section 497, Cr.P.C. To grant bail will not be attracted. According to the learned counsel the maximum punishment provided for the offence under section 17 of the Ordinance being less than 10 years' imprisonment, extendable up to only 5 years' imprisonment since does not attract the prohibitory clause of section 497, Cr.P.C.
Does not disentitle the applicant/accused to the grant of bail and moreover; the offence under section 420, P.P.C. Is bailable. Further the learned counsel contended that investigation in the case has been completed and the accused is no more required for the purpose of interrogation and challan for trial of the offence under sections 420/109/34, P.P.C. Has already been tiled in the Court of competent jurisdiction hence; in consideration of these grounds the accused/applicant may in the interest of justice be admitted to bail. As regards the question of bail in view of the alternate punishment provided in sections 18 and 22 of the Immigration Ordinance, 1979 he placed reliance on the judgment reported in the case of Shakeel Hassan Rashidi v. The State 1992 M LD 99.
5. The learned Deputy Attorney-General contended that in view of overwhelming incriminating evidence documentary and oral collected during .The course of investigation offence under sections 18 and 22 of the. Immigration Ordinance, 1979 and under section 420, P.P.C. Stand attracted hence in view of the punishment provided under sections 18/22 of the Ordinance, the accused is not entitled to the concession of bail as both these , offences are not bailable and keeping in view the nature of the allegations and the sufferings to which Muhammad Hadi and Arif were to undergo for months, out of whom Arif having become destitute is still living in the Camp maintained by International Organization of Emigration in Indonesia; disentitled the accused for bail. The learned Dy. A.-G. To supplement his contention placed reliance on the reported judgments i,e, 2001 PCr.LJ 588, PLD 1982 Karachi 1011 and 1986 PCr.LJ (Lah.) 567. The contentions put forth on behalf of the accused as well as by the learned Dy. A.-G. Have been considered in the light of the record of the case made available by the learned Dy. A.-G. From the perusal of the statements of the aforesaid witnesses as well as statements of P.Ws. Ishaq All and Ramzan Ali recorded under section 164, Cr.P.C. Prima facie, it appears that Ishaq Ali and Ramzan Ali were assured, promised and induced by the applicant that their brother and son respectively Muhammad Hadi and Arif will be sent by him to Australia and to them both employment will also be provided in the foreign country, and; in consideration of such services, he received Rupees five lacs i,e,Rs,2,50,000 for each of the abovesaid persons from Ishaq Ali and Ramzan Ali. After receiving of the amount, both the said persons were sent to different countries by the accused, as referred to hereinabove and eventually they were left stranded in Indonesia at the mercy of circumstances am ultimately were arrested by the Indonesian Police, out of whom P.W. Muhammad Hadi having the money with him for his fare etc. Was deported to Pakistan through the assistance of the International Organization for Migrants while Arif for want of money to pay for his fare is living in the camp in Indonesia. The Passports of both these persons are available on the record, perusal whereof also confirms that Hadi and Arif as stated by P.W. Muhammad Hadi in his statement under section 161, Cr.P.C. Were migrated to the said countries. The incriminating material in the shape of statements of abovesaid P.Ws. Attracts the penal provisions of sections 18 and 22 of the Immigration Ordinance, 1979 including section 420, P.P.C. Undisputedly the offence under sections 18 and 22 of the Immigration Ordinance, 1979 are not bailable providing punishment for a term of imprisonment which may extend up to 14 years, or with fine or with both. As the accused/applicant is prima facie involved in the commission of the offence under sections 18 and 22 of the Ordinance, 1979 which being not bailable disentitled the applicant to claim bail as a matter of right in the given facts and circumstances of the case referred to above, hence; the case-law cited by the applicant's learned counsel that the offences in view of alternate punishments provided in these sections does not attract the prohibitory clause of section 497, Cr.P.C. Helps not improving his case any further. No other ground was urged or argued by the applicant's learned counsel.
Consequently; in view of the foregoing reasons this bail application being devoid of any merit stands rejected at this stage. The observations as to the criminal liability of the applicant made in this order are only tentative in nature which shall have no effect on merits of the case- at the trial.