1. ' By this order I propose to dispose of bail application filed on behalf of applicant, Mir Jan, arising out of F.I.R. No,3 of 2002 registered with Police Station F.I.A., Immigration Passport Cell, Karachi, for an offence under sections 3(2)(a)(b), 13/14, Foreigners Act read with sections 419/420/468/471/109/34, P.P.C.
2. ' Bail plea of the applicant was declined by the learned 1st Additional Sessions Judge, Karachi Malir vide order dated 22-5-2002.
3. ' The prosecution story as enunciated in the F.I.R. Is that on 7-1-2002 at 1-05 p.m. Complaint was lodged at Police Station. F.I.A./Immigration/Passport Cell, Karachi stating therein that consequent upon Inquiry No,3 of 2002 initiated on a written report of Inspector Gul Sher Mughairi, Incharge Shift "C" F.I.A. Immagn. (Arr) .QIAP, it transpired that accused Mir Jan holding Afghan Passport No,OR- 272267, dated 7-1-2002 was deported from Dubai (U.A.E.) through Flight No,NL0092. It is further stated in the F.I.R. That fact disclosed that this Passport belonged to his elder brother who had expired and COD charges are AED-1485. Accordingly, he was arrested and F.I.R. As above, was registered.
4. ' The investigation followed and in due course the applicant was sent up to stand trial in the Court of law.
5. ' I have heard the learned counsel for the applicant as well as learned D.A.-G.
6. ' It has been contended by the learned counsel for the applicant that case against him is false and he has been booked in this case with mala fide intention. It has, further been contended by the learned counsel for the applicant that the prosecution agency has illegally applied the provisions of Pakistan Penal Code inasmuch as the learned 1st Additional Sessions Judge, Karachi Malir, 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 an accused person is charged for under the provisions of two different Statutes or Laws and in that eventuality the settled principle is that the case shall proceed against him under the law which provides lesser punishment for the offences alleged to have been committed by him. The learned counsel has, further contended that section 420/109, P.P.C. Are bailable. The learned counsel 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. ' Learned D.A.-G: has conceded to the above legal position and has raised no objection to the grant of bail.
8. ' I have given my anxious consideration to the arguments of the respective parties and have also perused the record. 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. In this regard reference can be made to the case of Muhammad Younus (supra) wherein while allowing bail to the applicants, it has been held by the Honourable Chief Justice (Mr. Justice Syed Saeed Ashhad) of this Court that:-- "There is no disputes with the established rule that if an accused is charged under two different statutes or laws for offence which are alike to similar in nature, then he would be proceeded against for the offence under the law which provides lesser sentence. On the basis of this principle, the accused would be tried, as submitted by Mr. M. Ilyas Khan under the provisions of the Passport 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 person 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 enquiry."
10. ' In view of what has been held by the Honourable Chief Justice (Mr. Justice Syed Saeed Ashhad) of this Court, I am of the considered opinion that this is also a case where the prosecution has failed to establish the accused for having been found prima facie guilty of an offence punishable with death, imprisonment for life or ten years' and there are no reasonable grounds to believe them to be guilty of such an offence. Accordingly, I find the applicant Mir Jan entitled to the grant of bail which is granted to him provided he furnishes surety in the sum of Rs,1,00,000 (Rupees one lac) and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.