Present
Mr. Justice Aqeel Ahmed Abbasi.
Date of hearing : 03.05.2011.
Date
of order : 03.05.2011
Applicants : Dilawar Hussain and Muhammad Latif through Mr. S. Abid Hussain Shah Kazmi, Advocate
Versus
Respondent The State through Mr. Pir
Riaz Muhammad Shah, Standing Counsel
O R D E R
Aqeel Ahmed Abbasi, J. Being aggrieved and dissatisfied with the order dated 26.03.2011 passed by the learned District & Sessions Judge Malir Karachi, in Cr.Bail Applications No.222 and 228 of 2011. arising out of F.I.R No.65/2011 registered under Section 3 (2) (a) (b) Foreigners Act, 1946 read with sections 420/468/471/109 PPC at P.S. FIA, A.H.T. Circle, Karachi, whereby the learned District & Sessions Judge Malir Karachi, rejected the bail applications of the applicants/accused, the applicants/accused have filed instant bail application before this Court seeking their release on bail.
2. Brief facts relevant for the purposes of disposal of instant bail application and the prosecution story as stated in the FIR is as follows:-
“Consequent upon Enquiry No.124/2011 dated
11.03.2011 of FIA, AHT, Circle, Karachi, initiated upon receipt of Deportee/Detainee,
Report bearing VRF No.59/2011, 10/11/.03.2011 from 3(2) (a) (b) Foreigners Act,
1946 r/w sections 420/468/471/109 PPC, it revealed that the below mentioned
deportees arrived at JIAP, Karachi by flight No.GF-752, dated 11.03.2011 from
Athens, Greece via Bahrain on the strength of Emergency Passport as mentioned
against each issued by the Embassy of Pakistan, at Athens, Greece, with the
following remarks;
1. Muhammad
Latif s/o Shahid r/o House No.222, Block “B’, Musa Goth, North Nazimabad,
Karachi, Emergency Passport EP No.SS-625383, dated 08.03.2011/Athens
2. Dilawar
Hussain s/o Muhammad Farazi, r/o House No.505, Rehatia Colony, Gulshan-e-Iqbal,
Sector 13-D/2, Karachi, Emergency Passport No.SS-625385, dated
08.03.2011/Athens.
REMARKS
‘All pax have arrived/have been deported
from Athens (Greece) in lieu of emergency passports having remarks “Repatriated
on IOM’s expenses.”
On spot questioning, they divulged that they
had set out to Greece illegally via Mand Billo Iran and Turkey without any
travel documents with the help of an unknown local/foreign agents who demanded
& received a handsome amount Rs.800,000/-, Rs.750,000/- and 550,000/-
respectively, that were paid by their family members to them after confirmation
of their (pax) reaching at Athens.
Hence they have been detained and are being
sent to FIA, AHTC Khi for further verification and n/legal action as deemed fit’.
From the inquiry and disclosure of accused
Muhammad Latif S/o Shahid, it transpired that Bangladeshi and R/o Village
Kahuwa, P.O Bakhsh Muhammad, P.S. Ghazi Pul, District Pheni, Bangladesh. He
came to Pakistan about 15/16 years ago, through illegal route. He was desirous
of proceeding abroad for the purposes of employment. In this connection, about
two years ago, he came in contract with an agent namely Jamal (died about 1
year ago) S/o not known, r/o not known, met at Mujahid Colony, Karachi, who
demanded an amount of Rs.350,000/- for the purpose of sending him on employment
to Athens, Greece out of which an amount of Rs.50,000/- was settled to be paid
after his arrival in turkey whereas the remaining amount of Rs.300,000/- was
settled to be paid after his arrival in Athens, Greece, and arrangement of
employment there. About two years ago, the said agent sent him alongwith 2
other intending emigrants to Mand Billo where the Irani sub-agents received
them and crossed them Pak/ Iran border without any travel documents, then taken
to Tehran from where they were taken to Iran/Turkey border and handed over to
dunkers. The dunkers crossed them Iran/Turkey at Salmas border and reached Van
City of Turkey. Then they were taken to Istanbul where they were kept in
Jungle/mountain area. After reaching Istnbul, they were asked to call their
families and direct them to make the payment of Rs.50,000/-. Accordingly, he
called his family and his family made the payment of Rs.50,000/- to Jamal.
Thereafter they were taken to Turkey/Greece border and this border was crossed
in small plastic boat. Then they were taken to Athens and kept in safe house
for about 4 days. In Athens, his brother-in-law (husband of his sister) made
the payment to the sub-agents where after he was released from the safe house,
without arranging employment for him. He tried to get a job in Athens but could
not succeed due to which he decided to come back to Pakistan. He contacted with
the IOM (International Organization of Migration). Accordingly, he was issued
EP No.SS-6252383 dated 08.03.2011/Athens, on the basis of which he was deported
to JIAP, Karachi, by flight No.GF-752, dated 11.03.2011. He was detained at
JIAP, Karachi and after initial interrogation, he has been referred o FIA, AHT
Circle, Karachi, for further necessary action.
Accused Dilawar Hussain S/O Muhammad Farazi
disclosed that he is Bangladeshi and R/o Village Khawari, P.S. Ghazi Pul,
District Pheni, Bangladesh. He came to Pakistan about 18 years ago, through
illegal route. He was desirous of proceeding abroad for the purpose of
employment. In this connection, about 2 years and 2 months ago, he came in
contract with an agent namely Bilal S/o not known, who demanded an amount of
Rs.10,000/- for himself, for the purpose of referring him to other agents who
can send him to Athens, Greece, on employment. About two years and two months
ago, the said agent sent him alongwith 6 others intending emigrants to Mand
Billo where the Irani sub-agents received them and crossed them Pak/Iran border
without any travel documents. They were kept in a jungle area where he handed
over an amount of Rs.15,000/- to Irani agents. Then they were then taken to
Tehran from where they were taken to Iran/Turkey border and handed over to
dunkers. The dunkers crossed them Iran/Turkey at Mako border and reached Van
city of turkey. Then they were taken to Istabul where they were kept in safe
house for about 15 days. After reaching Istanbul, they were asked to call their
families and direct them to make the payment of Rs.30,000/-. Accordingly, one
of their known persons in Athens, Greece, made the payment of Rs.30,000/- to
sub-agents in Greece. Thereafter, they were taken to Turkey/Greece border and
this border was crossed in small plastic boat. Then they were taken to Athens
and kept in safe house for about 8/10 days. In Athens, the said known person
made the payment of Rs.150,000/- to agents in Athens, Greece, on which he
was released from the safe house. He
tried to get a job in Athens but could not succeed however he did temporary
jobs there, due to which he decided to come back to Pakistan. He contracted
with the IOM (International Organization of Migration). Accordingly, he was
issued EP No.SS-625385, dated 08.03.2011/Athens, on the basis of which he was
deported to JIAP, Karachi, by flight No.GF-752, dated 11.03.2011. He was
detained at JIAP, Karachi and after initial interrogation, he has been referred
to FIA, AHT Circle, Karachi for further necessary action.
The above facts constitute the commission of
offences punishable U/s 3(2) (a) (b0 Foreigners Act, 1946 r/w sections
420/468/471/109 PPC. Hence the registration of the case against accused persons
namely (1) Muhammad Latif S/o Shahid, (2) Dilawar Hussain S/o Muhammad Farazi,
both Bangladeshi nationals, and others. The arrest of accused Muhammad Latif
s/o Shahid and Dilawar Hussain S/o Muhammad Farazi above mentioned is effected.
The investigation of the case taken up by the undersigned.
Sd/-
(SHAFI MUHAMMAD KALWAR)
INSPECTOR, FIA
AHT CIRCLE, KARACHI”
3. After investigation of the case, it appears that the applicants/accused namely, Dilawar and Muhammad Latif were arrested and have been sent to jail.
4. Learned counsel for the applicants/accused has contended that the applicants/accused are innocent and have falsely been implicated in the alleged offence due to malafide intention and with ulterior motives. It is stated that both the applicants/accused are holders of CNICs issued from NADRA and the same have been verified online and found genuine. Such facts have also admitted by the LDC Mazhar Hussain in his statement u/s 161 Cr.P.C. Per learned counsel, the applicants/accused have not committed any offence in Pakistan, as they were arrested in Athens and they were sent back from Athens on emergency Passports No.SS-625385 and SS-625383. Per learned counsel the alleged offence does not fall within prohibitory clause, whereas the same is not punishable for more than three years. It is further submitted that offences which are not punishable for more than ten years, life imprisonment or death sentence, in such type of cases, grant of bail is rule whereas rejection is an exception, therefore, the applicants/accused are entitled for concession of bail. In support of his contention, learned counsel has placed reliance on the case of M. Younus and another v. The State 2001 P.Cr.L.J 157, Tariq Bashir and 5 others v. The State PLD 1995 SC 34, Muhammad Ashraf v. The State 2003 MLD 165, unreported case bearing Cr. Bail Application No.625 of 200 &, Cr. Bail Application No.1086 of 2002.
5. Conversely, the learned Standing Counsel has extended his no objection to
the grant of bail.
6. I have heard the learned counsel for the applicants/accused as well as learned Standing Counsel, perused the record and the case law relied upon by the learned counsel for the applicants/accused. It appears that the applicants/accused are in possession of original Birth Certificates and CNICs issued from Pakistan, whose genuineness was duly verified by NADRA. There are other certain documents which prima-facie established that the applicants/accused are citizens of Pakistan. Challan has been submitted. The applicants/accused are no more required for further investigation. The matter requires further inquiry, whereas offence alleged does not fall within the prohibitory clause. The prosecution story cannot be considered as free from doubt and the matter requires further inquiry. The case-laws referred to and relied upon by the learned counsel for the applicants/accused are also attracted in the instant case. Accordingly, I am of the view that the applicants/accused have made out a case for grant of bail. The bail was granted to the applicants/accused vide short order dated 03.05.2011 in the sum of Rs.1,00,000/- each and P.R bond in the like amount to the satisfaction of the learned trial Court. These are the reasons for such short order.
7. Needless to observe that the
observation made hereinabove are tentative in nature and shall not prejudice
the merits of the case, which may be examined strictly in accordance with law
and matter may be disposed of on the basis of evidence on record.
6. However, it is clarified that if,
the applicants/accused misuse the concession of bail in any manner, the learned
trial Court shall be at liberty to proceed against the applicants/accused as
per law.
JUDGE