Since all the above four bail applications in respect of two applicants, namely, Wahid Ali and Ahmed Khan Mirani are outcome of one and the same F.I.R., I intend to dispose of the same by this common order.
The applicant Ahmed Khan Mirani through Cr. Bail Applications' Nos, 39 & 40 seeks pre-arrest bail in F.I.R. No, 268/2003 in an offence punishable under Sections 17, 18, 22 of the Immigration Ordinance, 1979 read with Sections 420, 468, 471 PPC read with Section 6(1)(g) Passport Act, 1974 and Section 5(2) Act II of PCA 1947 in Special Case No, 53/2003, registered at police station Passport Circle, Karachi.
The applicant Wahid Ali through Cr. Bail Applications Nos, 53 & 54 of 2004 seeking bail after arrest as his bail application was rejected on 5.1.2004 by the learned Special judge Central-I, Karachi in the above-mentioned crime.
The brief facts, as enumerated in the FIR, are reproduced hereinbelow:-- "Consequently upon Raid report dated 13.12.2003 of Inspector Nizamuddin Shaikh to the effect that "on receipt of credible information that Naseeb Ali Khan Abdul Sattar of Lahore fake agents are deeply involved in sending people abroad particularly to Saudi Arabia on the basis of the fake forged employment visas, Protector clearance and agreement etc. with the active connivance of their co-agent Rizwan Ali working in M/S Fazal-e-Rabbi Enterprises/Travel Agency Gul Plaza M.A.
Jinnah Road Karachi including specific official of government functionaries Airlines staff etc. through JIA Karachi. After having necessary approval Inspector Nizamuddin Shaikh accompanied with the members of Raiding Party S.I. Javed-ul-Haq, FC Rana Ashfaque & FC Ejaz Bhatti reached at the spot where Rizwan Ali was found prevent, on conducting search of his counter/table in presence of his own and witnesses, resulted into recovery of the following passports/articles: Pak, PP No .KC 190099 Karachi 9th July 2003 Lahore in the name of Iqbal Hussain containing Saudi visa for employment at page-10. KT at page-11 and protector clearance from Lahore at page-14, foreign service agreement M/S Al-Talib international (Lic. No, 1840 Lahore and State Life insurance slip No, 84173, all suspected to be fake/forged, plus N.I.C. 35202-2587277-1.
Pak, PP No, J-450312 dated 2nd November 2000, Gujranwala in the name of Muhammad Faryad containing Saudi visa for employment at Page No, 8, KT at Page No, 9 and protector clearance from Lahore at Page No, 12, Foreign service agreement M/s Rose Enterprises (Lic. No, OEP 518 and State Life Insurance No, 123120 and NADRA Receipt No, 123142, all suspected to be fake/forged.
Pak, PP No, KC 318717 dated 15th August 2003 Bahawalpur in the name of Khalid Farooq containing Saudi visa for employment at Page No, 8 KT at Page No, 9 protector clearance from Rawalpindi at Page No, 12 Foreign service agreement by M/S Rose Enterprises (Lic. No, OEP 518 and State life insurance Receipt No, 123061 and NADRA Receipt No, 123180 all suspected to be fake/forged N.I.C.
345-82-690136.
Pak. PP No, KC 162709 dated 7th July 2003 Multan in the name of Muhammad Afzal containing Saudi employment visa as Page No, 8, KT Page No, 9 Protector clearance on Page No, 12 from Rawalpindi, foreign service agreement M/S Rose Enterprises Lic. No, OEP 518 State Life Insurance No, 123114 and NADRA Receipt No, 123174, suspected to be fake/forged. N.I.C. 36602-0924533-1.
Pak, PP No, K-801669 dated 17th Oct. 2001 Sialkot in the name of Amjid Ali containing Saudi employment visa on Page No,
10. KT at Page No, 11 Protector clearance from Rawalpindi on Page No, 14, Foreign service agreement M/S Rose Enterprises Lic. No, OEP 518. State Life Insurance No, 123056 and NADRA Receipt No, 123176. all suspected to be forged/fake plus N.I.C. No, 34601-1140588-7. Pak. PP No, KB 943100 dated 9th May 2003 Sialkot in the name of Ijaz Ahmed containing Saudi employment visa on Page No,
10. KT on Page No, 11 Protector clearance on Page No, 14 from Rawalpindi. Foreign service agreement M/s Rose Enterprises, Lic. No, OEP 518 State Life Insurance No, 123055, NADRA Receipt No, 123175 all suspected to be forged/fake plus N.I.C. No, 34601-89961736-1. Pak. PP No, KA 685502 dated 15th July 2002 Gujranwala in the name of Sajjad Ali containing Saudi employment visa on Page No, 8 KT stamp on Page No, 9 Protector clearance on Page No, 12 from Rawalpindi, Foreign Service agreement M/S Larosh Enterprises. Lic. MPD 1818/RWP State Life Ins. No, 123108 NADRA Receipt No, 123112 all suspected to be fake forged.
Invoices including Booking Cards, (care of Rizwan Ali and Naseeb Ali Khan contact No, 0300-2121774 EXOs in the name of Raza Travels, copies of ticket coupons and passports of various persons including copies of Saudi visa, which suspected to be fake/false-39 sets.
(xi) Receipts of payment made by Rizwan Ali to M/S Fazal-e-Rabbi Enterprises including copies of Invoices file containing 67 pages.
(b) On spot enquiry, Rizwan Ali failed to produce any lawful authority for keeping such Passports containing fake/forged visas and other documents and disclosed that he although counter clerk in Fazal-e-Rabbi Enterprises, working for fake agent Naseeb Ali Khan who used to sent Passports and money through his sub agent Asim Irfan (0300-2428055) for ticketing purpose on passports h - tying affixed such type of visas from time to time. On questioning with regard to the recovered passports containing suspected to be false/fake visas, he added that Asim Irfan handed over said passports to him few days before for issuance of one way tickets. Thus he got issued tickets through M/S Raza Travel (Prop. Muhammad Dochki) on EXOs with the consent of Mr. Zakria Dochki Prop. of Fazale-Rabbi Enterprises. He added that four tickets got issued by Naseeb Ali Khan through his co-agent Asim Irfan in respect of Toqueer Ahmed, Muhammad Akhtar, Muhammad Imran and Mauzam Ali vide EXO 20641 Invoice/File No, 20215 dated 4.12.2003. So for the other documents including booking record of various persons are concerned, he disclosed that these are the documents related to other 40/50 same cases processed by the Agent Naseeb Ali Khan on different dates during last 2 months and most of these peoples transported abroad/Saudi Arabia.
On disclosure and pointation of Rizwan Ali, co-agent Asim Irfan, intercepted, and as a result of his personal search, recovered the following documents/articles: Once courier envelope in the name of Asim Irfan (03002428055 Karachi) send by Mukhtar Ahmed 03009432593 Lahore, containing Passport No, KA 685481 dated 15th July 2 issued from Gujranwala in the name of Rana Touqeer Ahmed son of Muhammad Rafique having affixed visa at Page No, 8, protector clearance at page 12, foreign service agreement in the name of M/S Al-Habib International, State Life Insurance slip 123121, all suspected to be forged plus N.I.C. 3410123440495.
PP No, KC-481171 dated 15th Sept. 3 issued from Sialkot in the name of Touqeer Ahmed containing departure Stamp No, 33 of F.I.A. Immig: JIA Karachi, at Page No, 15, Saudi Arabia visa and KT stamp (duly cancelled by Saudi Immigration authorities) at Page Nos, 12 & 13. Protector clearance, purportedly POE Lahore. OEP Al-Nabil Enterprises Lahore at Page No,
16. P. No, KA 348041 dated 2nd April 2 issued from Bahawalpur in the name of Muhammad Akhtar containing Departure Stamp No, 25 at Page 15 of F.I.A. Immigration JIA Karachi, Saudi Arabia visa and KT stamp (duly cancelled by Saudi Immigration authorities at Page Nos, 10 & 11, Protector clearance POE Lahore. OEP Al-Nabil Enterprises Lahore at Page No, 14. without arrival stamp. On questioning, the said accused replied that the passport mentioned above at Serial No, (i) has been sent by the agent Mukhtair partner of agent Abdul Sattar from Lahore for the processing of tickets and further transportation of passengers to Saudi Arabia on receipt of further directions from the agent. He added that the passports mentioned above at Serial Nos, ii & iii pertains to the passengers who deported back from Saudi Arbaia by Flight EK 604 dated 11-12-03, while there were 04 passengers got boarded on the instruction of Naseeb Ali through Wahid Ali and Ahmed Khan Mirani of F.I.A. Immigration on 7.12.2003 by Flight No, EK-603. He further disclosed that as per telephonic instruction of Naseeb Ali Khan he paid Rs. 1,50,000/- to Wahid Ali of F.I.A. Immigration in order to release them from Air Port authorities, )n their deportation. Wahid Ali after releasing them out handed over the passports to him which are the same passports recovered from his possession, where-as documents regarding release of deportees and payment made for COD charges are lying with Wahid Ali. He further disclosed that in absence of Naseeb. Ali Khan, he carry out all sort of processing of passports and transportation of emigrants or to attend their deportation, on his behalf with the assistance of above persons including one Rooh-ul-Amin.
Hence passports mentioned above including other articles taken into possession of F.I.A. under seizure memo and apprehended the Asim Irfan accordingly.
The said accused Asim Irfan further disclosed that three intending emigrants namely Ijaz Ahmed, Khalid Farooq and Amjid Ali whose passports have already been handed over to Rizwan Ali (recovered from Rizwan mentioned at Serial No, A, iii. v. and vi above) for issuance of tickets, have arrived from Lahore, staying, Al-Haider Hotel near Gantt: Station, subsequently on his pointation these persons were called, they on examination corroborated the facts and added that the agent Abdul Sattar (Ph. 0300-9462984) Lahore obtained Rs. 155,000/- from each of them for sending to Saudi Arabia on employment and asked to reach Karachi and contact with Asim Irfan on Phone No, 0300-2428055 for further travelling. Subsequently keeping in view the above facts and circumstances, F.C. Wahid Ali apprehended and on search, the following documents/articles recovered from his possession, secured under proper seizure me: Inadmissible/deportee passenger report of Emirates Air Line in respect of Muhammad Akhtar PP No, KA 348041 (deported from Damam Saudi Arabia) due to forged visa and one way Ticket No, 176 4011598881 dated 11.12.03 (in original). Inadmissible/deportee passenger report of Emirates Air Line in respect of Touqeer Ahmed PP No KC 481171 (deported from Damam Saudi Arabia) due to forged visa and one way Ticket No, 176 4011598880 dated 11.12.03 in original.
One Note Book (35 pages) containing various entries regarding transaction of money shiftwise, showing departure of more than 100 of passengers during last about 1 month i.e. Nov/Dec. 2003. On questioning with regard to the above recovered documents and articles, Wahid Ali disclosed that on the direction of A.S.I. Ahmed Khan Mirani, boarded 4 passengers by flight EK-603 dated 7- 122003 of agent Naseeb Ali Khan brought by his sub-agent Asim Irfan. Out of which 2 namely Touqeer and Muhammad Akhter were deported back by flight EK-604 dated 10/11.12.03 which were got released after paying charges and fine, while their passports handed over to Asim Irfan and retained deportation/COD slips for delivery to Naseeb Ali Khan, which have now been recovered from him. So for the note book is concerned, it is a personal diary prepared and maintained by A.S.I.
Ahmed Khan Mirani (03009209594, 0333- 2240686, 021-9248405, 021-7229858) reader to the Assistant Director F.I.A. Immigration Departure JIA Karachi, he used to dealt with the same directly. It contain entries hand written by A.S.I. Mirani in respect of departing illegal emigrants booked by various agents and departed from time to time in different immigration shifts. The amount shown in the diary are the collection and distribution of money received from the agents in lieu of immigration clearance.
The facts circumstances and recovery of various Passports containing fake visas protector clearance for employment in Saudi Arabia, issuance of various Invoices. EXOs and other record clearly indicate that a gang of human smugglers are in a organized manner sending peoples abroad including Saudi Arabia on fake/forged self-made traveling documents after extorting huge amount from them fraudulently, with the active connivance of staff of Air Line and public servants who by abusing their official position being a member of Government functionaries have violated the provisions of Sections 17/18/22 Emigration Ordinance 1979, r/w 420/468/471 P.P.C., 6(1)(g)
Passport Act 1974 and 5(2) Act-II PCA 1947, hence with the approval and orders of the competent authority a case is registered against Naseeb Ali Khan, Abdul Sattar, Rizwan Ali, Roohul-Amin, Mukhtar Ahmed, Asim Irfan, Prop: of M/S Fazal-e-Rabbi Enterprises/Travel Agency, M/S Raza Travels Ahmed Khan Mirani A.S.I. F.I.A. FC Wahid Ali and others including the respective staff of Air Line and F.I.A. Immigration JIA Karachi who assisted/abetted the crime knowingly, the instant has been registered accordingly, taken up the investigation by the undersigned. Arrested the accused persons Rizwan Ali, Asim Irfan, Rooh-ul-Amin and Wahid Ali.
Sd/- ALI HASSAN ZARDARI INSPECTOR F.I.A. PASSPORT CIRCLE KARACHI". Mr. M.A. Kazi, learned counsel for applicant/accused Ahmed Khan Mirani, has contended that as per FIR the applicant was serving as Reader to Assistant Director, Immigration at Karachi Airport and he was assigned to deal with the official correspondence in connection with office work and consequently upon raid report dated 13.12.2003 of Inspector Nizamuddin Shaikh in respect of the above mentioned crime that Naseeb Ali Khan, Abdul Sattar of Lahore being fake agents are deeply involved in sending people abroad particularly to the Saudi Arabia on the basis of forged/fake implication visas with connivance if their co-agent Rizwan Ali working in M/s. Fazle Rabbi Enterprises, Gul Plaza, M.A. Jinnah Road, Karachi. It is further urged by the learned counsel that as per report, it is alleged that in Flight No, EK-604 dated 11.12.2003 while there were four passengers got boarded on the instructions of Naseeb Ali Khan through Wahid Ali and Ahmed Khan Mirani through FIA Immigration on 17.12.2003 by Flight No, EK-603 as it was disclosed that as per telephonic instructions of Naseeb Ali Khan he paid Rs. 150,000/- to Wahid Ali in order to release them from airport authorities and their deportee Wahid Ali after releasing them from airport handed over the passports. It is further alleged that Wahid Ali acted as per direction of ASI Ahmed Khan Mirani, boarded four passengers by Flight EK-603 dated 7.12.2003 of agent Naseeb Ali Khan has brought his sub-agent Asim Irfan. Out of Which Tauqeer and Muhammad Akhtar were deported back by Flight EK-604 on 10/11-12-2003 which were got released after paying charges and fine while their passports were handed over to Asim Irfan and retained deportation/COD slips for delivery to Naseeb Ali Khan, which have been recovered from him. So far the note book is concerned, it is a personal diary prepared and maintained by ASI Ahmed Khan Mirani as he used to deal with same directly, which contained entries in respect of deporting illegal immigrants booked by various agents and exported from time to time. It is further argued that the case has been registered against Naseeb Ali Khan, Abdul Sattar, Rizwan Ali, Roohul Amin. Mukhtar Ahmed, Asim Ifran, Proprietor of M/s Fazl-e-Rabbi Enterprises/Travel Agency, M/s Raza Travels. Ahmed Khan Mirani. ASI of FIA, FC Wahid Ali and others including the respective staff of airline and FIA Immigration JIA.
Karachi, who assisted/abetted the crime knowingly, and instant case has been registered. It is contended that the applicant/accused had no occasion to be present at Karachi Airport Departure Lounge/Immigration in connection with any affairs of the passenger departure at QIAP.
Even on the date of alleged incident viz. 7.12.2003 with regard to Flight No, EK-603 the applicant/accused was not present at the QIAP nor the alleged two passengers, namely. Tauqeer and Muhammad Akhtar had left Karachi Airport by EK-603 for Saudi Arabia and due to departmental jealousy/intrigue between the officials of the F.I.A. namely, Deputy Director Mr. Muhammad Malik, Passport Cell Karachi and the Assistant Director Mir Mazhar Jabbar. FIA Immigration, therefore, he has been involved in this case. It is further pointed out that on 12.12.2003 a letter was sent by Mr. S.S. Babar Khattak, Director FIA to Mr. S.M. Shujat Ali, Deputy Director FIA Immigration, Karachi, with the allegation that Mr. Muhammad Malik Deputy Director Passport Cell Circle, Karachi has informed him on telephone that ASI Ahmed Khan Mirani posted at Airport is indulging in corruption and inquiry was conducted by Mr. Zubair Ahmed Pechuho, Assistant Director FIA and after inquiry it has been reported that the applicant/accused is not involved in corruption. However, on 13.12.2003 the instant FIR and complaint under Section 24(6) of the Emigration Ordinance, 1979 was registered/filed. In view, of the dispute between the two sections at airport the applicant/accused has been involved in this case with ulterior motive. The applicant/accused sought protective bail from this Court in Cr. Bail Application No, 644/2003 from Circuit Court Larkana on 31.12.2003, which was valid upto 12.1.2004. The applicant/accused after seeking protective bail tried to appear before the trial Court but it was verified from the office of the learned Special Judge Central-I that the bail application of co-accused Wahid Ali has been dismissed on 5.1.2004 and the charge sheet has also been filed in the said Court on 31.12.2003.
Therefore, the applicant/accused presented his bail application before this Court on 9.1.2004 that he will not get any relief from the trial Court and then after hearing the learned counsel for parties interim pre-arrest bail was granted to the applicant/accused on 13.1.2001 by this Court.
Mr. M.A. Kazi, learned counsel for applicant/accused Ahmed Khan Mirani, while concluding his arguments has referred to the following case-law in support thereof:--
3. 1973 P.Cr.L.J. 873
4. 1989 P.Cr.L.J. 1910
7. 1988 S.C.M.R. 1223
10. PLD 1976 SC 404
12. 2000 P.Cr.L.J. 1734
13. PLD 2003 Karachi 682 + 67 (Nov. Part)
14. 1977 SCMR 292 Mr. M. Ilyas Khan, learned counsel for applicant/accused Wahid Ali, has contended that the applicant is innocent and he has been falsely implicated in the present case. It is pointed out by the learned counsel that the view of the learned trial Judge is erroneous as the so-called documents were seized at the time of arrest of the applicant on 13.12.2000 at 6.30 a.m. on which date it is alleged that the documents mentioned in the memo were seized and accused was not arrested at that time as the applicant/accused was arrested by the FIA police at 1235 hours therefore, the question of application of Article 40 of Qanoon-e-Shahadat does not arise. Even if it is presumed that the same documents were recovered from the house of the applicant/accused yet these documents have no nexus with the alleged offences under Sections 420/468/471 PPC read with Section 5(2) Act II of 1947. The applicant/accused is merely a foot-constable and has no power or authority to arrest/release or to grant any favour to any one in any manner whatsoever.
The applicant/accused is a victim of departmental rivalry and being in the lowest rank has become an escape goat. It is further argued that except the statement of co-accused or the so- called admission of the applicant before the police, there is no other evidence to connect the accused with crime.
It is argued that the trial of the applicant/accused under two laws for the same facts and circumstances is illegal and without jurisdiction in view of Section 403 Cr.P.C. and Section 26 of the General Clauses Act as well as under the Constitution. Learned counsel has also filed a simple copy of the order dated 15.1.2004 of the release of co-accused Roohul Amin, who is involved in the same FIR, on bail. Mr. Khan has also filed the daily station diary, check post FIA I & AS arrival. Level I, Jinnah International Airport, Karachi dated 10.12.2003 and 11.12.2003 and there is no entry that applicant accused was performing his duty on the said dates. Mr. Khan sum up his arguments by relying upon the cases reported in 2001 P.Cr.L.J. 157 and 2002 SCMR 442.
Mr. Mahmood Alam Rizvi, learned standing counsel appearing on behalf of D.A.G., is unable to controvert the arguments advanced on behalf of both the applicants/accused. He has mildly opposed the grant of bail, as the applicants/accused being the public servant of very sensitive agency was supposed to prevent and detect the crime but by abusing their official position they got cleared and boarded the passengers with fake documents out of them two were deported back from Saudi Arabia and thereby they have committed the offence of human trafficking and by this act they brought the bad name of our country. Hence, they are not entitled for the concession of bail.
I have heard the arguments of learned counsel for the applicants/accused and the learned Standing Counsel and have also gone through the case-law cited at the Bar so also perused the documents placed on record.
As per prosecution case, it is alleged that foot-constable Wahid Ali in collusion with ASI Ahmed Khan Mirani in collaboration and absconding accused Naseeb Ali Khan assisting the illegal immigration of passengers and getting them released and got four passengers boarded on the instructions of Naseeb Ali Khan by flight No, EK603 on 7.12.2003 to Damam/Saudi Arabia. Two out of such passengers, namely, Tauqeer and Muhammad Akhtar were deported back from.
Damam/Saudi Arabia as per telephone instructions of Naseeb Ali Khan and paid Rs. 150,000/- as COD charges to Wahid Ali for getting them released from Airport authority. During investigation a raid was conducted and FC Wahid Ali was apprehended and on his search following three documents were recorded:
(i) Inadmissible/deportee passenger report of Emirates Air Line in respect of Muhammad Akhtar PP NO. KA 348041 (deported from Damam Saudi Arabia) due to forged visa and one way ticket No, 176 4011598881 dated 11.12.03 (in original).
(ii)Inadmissible/deportee passenger report of Eniirates Air Line in respect of Touqeer Ahmed PP No, KC 481171 (deported from Damam Saudi Arabia) due to forged visa and one way ticket No, 176 4011598880 dated 11.12.03 in original.
(iii)One Note Book (35 pages) containing various entries regarding transaction of money shiftwise, showing departure of more than 100 of passengers during last about 1 month i.e. Nov./Dec. 2003.
It was disclosed by Wahid Ali that he had acted on directions of ASI Ahmed Khan Mirani as Naseeb Ali Khan brought by sub-agent Asim Irfan four passengers, out of which two passengers Tauqeer and Muhammad Akhtar were deported back by flight EK-604. In this matter. Rizwan Ali and Asim Irfan were intercepted and on personal search following documents/articles were recovered:-- (i)One courier envelope in the name of Asim Irfan (0300-2428055 Karachi) send by Mukthar Ahmed 0300-9432593) Lahore, containing Passport No, KA 685481 dated 15th July 02 issued from Gujranwala in the name of Rana Touqeer Ahmed son of Muhammad Rafique, having affixed visa at Page No, 8, protector clearance at page 12, foreign service agreement in the name of M/S Al-Habib International, State Life Insurance slip 123121, all suspected to be forged-plus N.I.C. 3410123440495.
(ii)PP No, KC-481171 dated 15th Sept. 03 issued from Sialkot in the name of Touqeer Ahmed containing departure Stamp No, 33 of F.I.A. Immig: JIA Karachi, at Page No,
15. Saudi Arabia visa and KT stamp (duly cancelled by Saudi Immigration authorities) at Page Nos, 12 & 13. Protector clearance, purportedly POE Lahore, OEP AL-Nabil Enterprises Lahore at Page No, 16.
(iii)PP No, KA 348041 dated 2nd April 02 issued from Bahawalpur in the name of Muhammad Akhtar containing Departure Stamp No, 25 at page 15 of F.I.A. Immigration JIA Karachi, Saudi Arabia visa and KT stamp (duly cancelled by Saudi Immigration authorities at Page Nos, 10 & 11, Protector clearance POE Lahore, OEP Al-Nabil Enterprises Lahore at Page No, 14, without arrival stamp.
It is strange that in the FIR it is alleged that Naseeb Ali Khan, Abdul Sattar, Rizwan Ali, Roohul Amin, Mukhtar Ahmed, Asim or Irfan Proprietor of M/s Fazl-e-Rabbi, Ahmed Khan Mirani, FC Wahid Ali and others including the respective staff of airline and FIA Immigration. JIA Karachi, who assisted and abetted in crime knowingly but by filing interim challan the staff of airline and FIA immigration have not been cited as accused. It is impossible that FC Wahid Ali and ASI Ahmed Khan Mirani were supervising at the International Airport while other staff members at the relevant time have not been associated. It is also impossible that the entire International Airport was handed over at the mercy of ASI and foot-constable. The main role in this crime has been played by Naseeb Ali Khan, Abdul Sattar, Rizwan Ali, Roohul Amin, Mukhtar Ahmed, Asim Irfan Proprietor of M/s Fazl-e-Rabbi Travel Agency and M/s Raza Travels and the staff of airline and FIA Immigration, JIA Karachi. The seizure memo of the documents dated 13.12.2003 was prepared at 6.30 a.m. whereas the arrest memo of applicant/accused Wahid Ali was made at 1235 hours on the same day whereas FC Wahid Ali was apprehended in the morning. It is not clear as to why he was not arrested at the time of recovery of the documents/articles but he was allowed to perform his duty at airport and then he was arrested at 1235 hours. The allegations made in the complaint under Sections 17, 18, 22 of the Immigration Ordinance, 1979 do not fall under the prohibitory clause of Section 497 Cr.P.C. AS per allegations through statement of co-accused Naseeb Ali Khan that four passengers were boarded through Wahid Ali and Ahmed Khan Mirani on 7.12.2003 by Flight No, EK-603 is itself contradictory as per list of the Emirates Airline. Flight No, EK-603 dated 7.12.2003 indicates that the passengers, namely. Tauqeer and Muhammad Akthar have not been boarded in this flight. The statement of the co-accused have no legal value in the eye of law in terms of Articles 39 and 40 of Qanoon-e-Shahadat against the applicants/accused. As per daily station diary applicant/accused Ahmed Khan Mirani was not shown to be present at Karachi Airport at the time of departure of Flight No, EK-603 on 7.12.2003 and, therefore, abetting in the commission of the offence is yet to be determined by the trial Court. The case of the prosecution rest on some documentary evidence which will require appreciation of the evidence by the trial Court.
The applicant/accused Ahmed Khan Mirani after seeking protective bail tried to appear before the trial Court. The bail application on behalf of the applicant/accused Wahid Ali was already rejected on 5.1.2004 by the trial Court and interim challan was also filed on 31.12.2003 and there was genuine apprehension in the mind of the applicant/accused for not getting pre-arrest bail therefrom and before the expiry of the protective bail the applicant/accused Wahid Ali approached this Court on 9.1.2004 for seeking pre-arrest bail. On 12.1.2004 this matter was placed before me an after hearing the learned counsel for applicant/accused notice was issued to the learned DAG for 13,1.2004 and on 13.1.2004 interim pre-arrest bail was extended to him after hearing the learned counsel for parties.
There is concurrent jurisdiction for grant of pre-arrest bail but in the exceptional case this Court can exercise such concurrent jurisdiction as the trial Court had already rejected the bail application of co-accused Roohul Amin. On 13.1.2003 the FIA authorities were available inside the Court premises and there was possibility of the arrest of the applicant/accuse1 After realising the atmosphere around the Court interim pre-arrest was granted to the applicant accused. Learned counsel for the applicants/accused has brought some material that there was departmental jealousy and the ulterior motives of vested interest to involve them in this crime. The trial Court has also granted bail to co-accused Roohul Amin although no specific role or overt act has been attributed except their names in the FIR which was recorded on the basis of the statement of co- accused Asim Ifran.
In view of the foregoing reasons, I am of the view that applicant accused Ahmed Khan Mirani has made out a case for confirmation of bail. Accordingly, his interim pre-arrest bail is confirmed in the same terms and conditions. The applicant/accused is directed to appear before the trial Court, as the charge sheet has already been filed.
Similarly, the applicant/accused Wahid Ali has also made out a case of interference by this Court as he is a victim of departmental rivalry and being in the lowest'rank has become a escape goat as per charge sheet staff members of airline and other FIA Immigration posted at JIA Karachi, who had abetted in crime knowingly having been not joined as accused. The presence of the applicant/accused is yet to be determined by the trial Court in respect of gang of human trafficking by sending people abroad including Saudi Arabia on forged fake self made documents after extorting huge amount. The matter would, therefore, require further inquiry into the guilt or innocence of the applicant/accused as contemplated under Section 497(2) Cr.P.C. Resultantly, bail is granted to the applicant/accused Wahid Ali in the sum of Rs. 100,000/- and PR bond in the like amount to the satisfaction of the trial Court.