1. ' 1 and 2. By this order I propose to dispose of this Cr. Bail Application bearing No,152: of 2003, filed on behalf of applicant, Dr. Abdul Aleem, seeking pre-arrest bail in a case arising out of F.I.R. No,260 of 2003 registered with P.S. F.I.A., Passport Cell, Karachi, for an offence under section 6(1)(g), Passport Act, 1974 read with sections 17 and 22, Emigration Ordinance, 1979.
2. ' The applicant according to the averment of the learned counsel, made in his personal affidavit, to the effect that though bail application was presented before Special Judge (Central-I), Karachi but the same was refused to be accepted on the ground of lack of jurisdiction since police had not submitted challan and therefore, he has filed this Cr. Bail Application directly in this Court. On the other hand, learned Standing Counsel argued that no doubt at the time of filing. This Cr. Bail Application, the Special Court (Central-I), Karachi might have refused to accept the same because of lack of jurisdiction and the applicant had approached this Court where he was granted interim pre-arrest bail on 19-12-2003 but since now the challan has been submitted before a Court having jurisdiction, it would be appropriate if the applicant may be granted protective bail and further directed to approach the trial Court for getting pre-arrest bail.
3. ' In the above scenario, it may not be out of place to mention here that though the applicant was granted pre-arrest bail 19-12-2003 and notice for 24-12-2003 was ordered to be issued to D.A.,-G.
4. When the police papers were supposed to be ready with the counsel appearing on behalf of the State. However, it is regretted to mention here that till 26-4-2004, passing six dates of hearing, learned counsel appearing on behalf of the State failed to make any statement about the readiness of the police papers with him. Accordingly, on 26-4-2004 following order was passed:- "Learned D.A.-G. Requests for adjournment on the ground that he has to call police papers from F.I.A. It is surprising that interim bail before arrest was granted to the applicant without dilating upon the merits of the case with notice to D.A.-G. On 19-12-2003 but the D.A.-G. Has still not been able to call police papers though about four months have passed. However, at his request case is adjourned to 10-5-2004 by which date police papers may be positively available. Interim bail granted earlier shall continue till then."
5. ' If the normal efforts would have been made to get the police papers available, this Cr. Bail Application could have been disposed of on very next date i,e, 24-12-2003 or, at the most, on 5-1- 2004 the second date of hearing and the contention of the learned counsel appearing on behalf of the State that since now the trial Court is available the applicant should first approach the same for getting pre-arrest bail which might not have carried any weight. Accordingly, I am inclined to hold that causing delay in making availability of police papers on the part of prosecution should not be allowed to cause dent to the case of the applicant even otherwise is entitled to the grant of bail on merits. The office objection is therefore, overruled.
6. ' The brief facts, as set up in the F.I.R. Are that on 25-11-2003 on the written complaint of complainant, Hassan Masood, F.I.R. Bearing ' No,260 of 2003 was registered, after verification, stating therein that Dr. Abdul Aleem in collusion with his brother namely Abdul Ghani and others are induldged in the business of sending the people abroad for employment/settlement by way of obtaining visas under the wrong status as patient under the cover of recommendation made by the alleged persons on Modi Services (International) Limited, London, Islamabad and Karachi. It is further disclosed in the F.I.R. That Dr. Abdul Aleem demanded and received huge amount (UK Pound 5,000) from the complainant and upon information of the complainant that one of the involved persons namely Abdul Ghani (applicant herein) was available in his office situated at Flat No,1, First Floor, Plot No,32-C, 6th Street, Zamzama, Defence Housing Authority, Karachi (Phase-V), a raid was conducted by F.I.A. Party as a result whereof various passports, detailed in the F.I.R., alongwith some other documents were recovered. On enquiry, the applicant failed to show any authority for the possession of those passports and admitted the facts that he and his brother Dr. Abdul Aleem used to send desirous persons abroad for employment/settlement in U.K. Under the coverage of Medical Treatment after getting UK visas for them on the basis of arranged medical documents of St. Thomos Hospital London (U.K.). It is also disclosed in the F.I.R. That for arranging such documents offices viz. Modi- Services International Limited, London (International Patient Services), Karachi, Islamabad, Lahore and London were being used and they charged Rs,4 lacs approximately each for the purpose from the desirous persons. Accordingly, F.I.R. As above was registered but challan has, still, not been submitted by the police.
7. ' I have heard the learned counsel for the applicant as well as learned Standing Counsel.
8. ' It has been contended by the learned counsel for the applicant that case against the applicant 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 offence with which he has been charged does not come within the prohibitory clause of section 497(1), Cr.P.C. As maximum punishment provided is only upto 5 years. So far as the mala fide is concerned, learned counsel has referred to the conduct on the part of prosecution which is evident from the diary of the present file. He has argued that F.I.A. Police, just to harassing and humiliating the applicant caused delay in producing the police file before this Court which does not consist any evidence against the applicant. He has further argued that the case is of civil nature in which transaction of money took place out of the. Pakistan, hence on civil side no cause of action arose to the complainant.
9. ' Learned counsel has relied upon the cases of Rehan Rashid v. The State 1994 PCr.LJ 1689; Ghulam Hussain v. The State and others 1997 PCr.LJ 1782; Liaqat Ali v. The State 1999 PCr.LJ 1469 and Gul Zaman v. The State NLR 1999 Criminal 384 in support of his contentions.
10. ' Learned Standing Counsel has conceded to the above legal position so far as the merit of the case is concerned.
11. ' I have given my anxious consideration to the arguments of the respective parties, perused the record and the case-law, cited at the Bar, and am of the considered view that for what the learned counsel for the applicant has argued applicant, Dr. Abdul Aleem, has, successfully, made out his case for bail.
12. ' By my short order dated 24-5-2004 I had confirmed interim pre-arrest bail granted to applicant, Dr. Abdul Aleem, on 19-12-2003 subject to his furnishing enhanced surety i,e, in the sum of Rs,2,00,000 and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court and these are the reasons for the same.
13. ' Cr.B.A. No,1521 of 2003 stands disposed of .
14. Pre-arrest .