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Criminal Bail Application No. 55 of 1985, decided on 6th February, 1985.

‑‑‑S. 497‑‑Emigration Ordinance (XVII of 1979), S.22(b)‑‑Bail‑‑Offence under S.22(b), Emigration Ordinance punishable with 14 years or with fine or with both‑‑Offence not punishable exclusively with 14 years' R.I. but punishable with 14 years' imprisonment or fine‑‑Sentence not falling within prohibitory clause of S.497(1), Cr.P.C.‑‑State counsel also not opposing bail application in view of position‑‑Bail allowed.

Criminal Bail Application No. 566 of 1981 and Muhammad Akhtar v. The State 1984 P Cr. L J 2340 ref.

Raja Sikandar Khan Yasir for Petitioner.

A.A. Muhammad Ally, A . A .‑G. for the State.

Date of hearing: 6th February, 1985.

A case under section 22(b) Emigration Ordinance, 1979 has been registered against the above three applicants on the complaint of Mr. Muhammad Ahmad Tatari Inspector F.I.A. They have filed three separate applications. The allegation against the applicants is that they had collected Rs.1,68,000 from various persons, including Khadim Hussain, Muhammad Asghar, Ghulam Muhammad and others in order to set them employment abroad. It is also alleged that none of the applicant was in possession of a promoter's licence.

The offence under section 22(b) is punishable with imprisonment of 14 years or with fine or with both. It has been argued that since the offence is not exclusively punishable with 14 years' R.I. but is punishable with 14 years imprisonment or fine, therefore, the sentence shall not fall within the restriction of section 497(1), Cr.P.C. In support of this plea reliance has been placed on the following observations in unreported decision Criminal Bail Application No. 566 of 1981 decided, by this Court:‑

"Mr. Ibrahim Memon learned A.A.‑G . Sind candidly submitted that the above question requires further inquiry and consideration. Furthermore, he has also pointed out that the question as to whether the instant case follow within the prohibition clause provided for in section 497, Cr.P.C. for the reason that under section 22(b) of the Ordinance the maximum punishment provided is 14 years' imprisonment or with fine or both, also requires further consideration. In support of his latter submission, he has invited my attention to section 307, P.P.C. which provides maximum punishment 10 years' R.I. and fine or both, and not 10 years' R.I. or if fine or both. On the basis of the above illustration, it has been contended that in P.P.C. wherever punishment of 10 years' R.I. has been provided, the fine is the additional punishment and not an alternate punishment, and therefore, it is debatable point as to whether the prohibition provided for in para. 1 of section 497, Cr.P.C. can be passed into service in spite of the fact that under section 22(b) of the Ordinance fine has also been provided as an alternate punishment."

Bail was granted on the above view of the matter. A similar view has also been taken in the case of Muhammad Akhtar v. The State 1984 P Cr. L J 2340.

I am in respectful agreement with the views taken in the above decisions. The learned counsel for the State has also not opposed the bail applications. The applications are, therefore, allowed. All the three H applicants shall be released on furnishing sureties in the amount of Rs.50,000 and P.R. in like amount each to the satisfaction of the trial Court.

H. A

Bail allowed

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