Muhammad Abbas Vs The State etc

Form No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

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Muhammad Abbas vs. The State and another.

Sr. No. of Date of Order with signatures of Judge, and that of parties or order/ order/ counsel, where necessary.

proceedings proceedings.

20.08.2026 M/s Ijaz Ahmad Janjua and Saleem Ahmad Khan Advocates for the petitioner.

Ch.Usman Ghani, Assistant Attorney General with Ayesha Masood SI/FIA.

Complainant with Mr.Junaid Sarvar, Advocate Through the instant petition under section 497 Cr.P.C., the petitioner seeks bail after arrest in case FIR No.1047 dated 31.12.2025 for offences under sections 17, 22 of the Emigration Ordinance, 1979 (hereinafter Ordinance) registered at Police Station FIA/AHTC, Lahore.

2.As per the contents of the FIR, the prosecution story, precisely, is that in the year 2024, the petitioner, along with his co-accused, allegedly fleeced an amount of Rs.9,00,000/- from the complainant, partly in cash and partly through bank transactions, on the pretext of sending her abroad, i.e. to Muscat, Oman, for employment. However, neither was she sent abroad nor was the amount so received returned to her.

3.Arguments heard. Record perused.

4.Before I proceed to examine the case on merits, I am constrained to first advert to a legal proposition which has arisen in this case during the course of arguments.

5.Learned counsel for the petitioner contends that the alternative punishments have been prescribed for offences under sections 17 and 22 of the Ordinance, hence, at bail stage lesser sentence is to be considered. He has placed reliance on

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“Messrs Askari Leasing Limited through Branch Manager vs. Rana Muhammad Asif and 2 others” (2005 P.Cr.L.J 1265), “Muhammad Mustaqeem vs. The State” (2004 YLR 68) and “Hafiz Ahmad Khan vs. The State” (1988 P Cr.LJ 338), “Sohail Younas vs. The State and others” (2015 P. Crl.LJ563) and “Sohaib Ali Hashmat vs. The State and another” (2025

MLD 925).

While concluding his arguments, learned counsel submitted that in cases of alternative punishment i.e. imprisonment “or with fine”, the offence charged does not attract the mischief of prohibitory clause in terms of section 497 Cr.P.C.

6.On the other hand, learned Law Officer submits that the above arguments are untenable in view of the principle enunciated by the Supreme Court of Pakistan in Jabran’s case (2025 SCMR 199). He further submits that in view of the amendments introduced into various provisions of the Ordinance, including sections 17 and 22, the principle of alternative punishment is no more available in this case.

7.At this stage it is appropriate to reproduce ACT No.VIII of 2025 (hereinafter Amendment Act), through which amendments have been brought into the Ordinance:- “Whereas it is expedient further to amend the Emigration Ordinance, 1979(XVIII of 1979) for the purposes and in the manner hereinafter appearing;

It is hereby enacted as follows:-

1.Short titled and commencement. (1) This Act shall be called the Emigration (Amendment)Act, 2025 2. It shall come into force at once. (emphasis provided)

2.Amendment of Section 17, Ordinance XVIII of 1979.

In the Emigration Ordinance, 1979 (XVIII of 1979), hereinafter referred to as the said Ordinance, in section 17, in sub-section (1), for the expression “, or with fine, or with both.” The words “and with fine up to one million rupees” shall be substituted. (underlining has been provided for emphasis)

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3.Amendment of section 18, Ordinance XVIII of 1979.

In the said Ordinance,, in section 18, for the expression “, or with fine, or with both”, the words “ and with fine up to two million rupees” shall be substituted.

4.Amendment of section 22, Ordinance XVIII of 1979.

In the said ordinance, in section 22, for the expression “, or with fine, or with both”, the words “ and with fine up to two million rupees” shall be substituted. (emphasis supplied) As per sub-section 2 of section 1, the Amendment Act has come into force at once and without retrospective effect.

8.The simple question involved herein is as to whether or not the provisions of the Amendment Act are applicable in this case wherein the occurrence has taken place prior to its promulgation.

Bare perusal of sections 2, 3 and 4 of the Amendment Act makes it clear that the punishment now prescribed is not alternative one as the expression “or with fine” has been substituted with the word “and” so it is clear that the amended provisions have authorized punishment for an offence by a penalty greater than or of different kind from, the penalty prescribed by law earlier. In this view of the matter, the above substitution attracts the protection against retrospective punishment guaranteed as fundamental right vide Article 12 Chapter 1 Part II of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution). For ready reference same is reproduced hereunder:-

“ Protection against retrospective punishment.

(1)No law shall authorize the punishment of a person:__ (a) for an act or omission that was not punishable by law at the time of the act or omission; or

(b)for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.

The scope of Article 12 of our Constitution and its principle has been matter of discussion by courts and jurists across

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jurisdictions since ages, however, for the sake of brevity, I would hasten to rely upon recent pronouncement by Supreme Court of Pakistan in “Anwar Saif Ullah Khan’s case (2026 SCP 129) is being reproduced hereunder:-

7.Article 12 is not a rule of convenience; it is a substantive fundamental right enshrined in Chapter I of Part II of the Constitution. It embodies the ancient maxim “nullum crimen, nulla poena sine lege praevia”, no crime and no punishment without prior law. It also applies in a situation where, though it was previously a crime, but the punishment under the newly notified enactment was greater than the one provided in the previous law. As a non-derogable guarantee, it prohibits retrospective criminality and operates as an absolute bar on both the legislature and the courts. This principle is also reflected in Islamic jurisprudence. Allah Almighty states in the Qur’an: “And We would never punish a people until We have sent a messenger to warn them” (17:15, Surah Al-Isra). This establishes a foundational rule of justice: punishment is contingent upon prior communication of the law. Accordingly, retrospective punishment is impermissible, as liability of a specific charge arises only after the law has been enacted and duly conveyed. In practical terms, this means that individuals cannot be held accountable for actions committed before a relevant prohibition or obligation was imposed and consequently made known to them. This aligns with the broader legal maxim that there is no culpability without prior notice, typically ensured through publication in the official gazette, thereby safeguarding fairness and preventing arbitrary punishment. Although Section 2 of the NAO, 1999 purports to operate retrospectively from 01.01.1985, the decision of this Court in Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607) establishes that Article 12 does not curtail the competence of the Legislature to enact laws having retrospective effect for all purposes, but it does prohibit, in the clearest possible terms, the imposition of criminal liability where, at the time of the act or omission, no offence or penalty existed in law, or where the later law seeks to impose a punishment greater in degree or different in kind from that which was prescribed when the offence was allegedly committed. The distinction is constitutional, not merely technical. A legislature may declare the general applicability of a statute to earlier periods; it may not, however, do so where the effect would be to fasten criminal guilt retrospectively. The moment the retrospective clause of a penal statute encounters the Article 12 barrier, the clause must yield and the barrier must prevail.”

The above interpretation has been made by the Supreme Court of Pakistan in a Criminal Review Petition. Now the question is as to whether or not, the above principle is applicable in bail matters, the same has been answered in “Sajjad Haider’s case

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(2026 SCP 54), relevant portion whereof is reproduced hereunder:-

“We have heard the learned counsels for the parties and gone through the record in depth. In order to avoid unnecessary repetition, we have incorporated and addressed the submissions and contentions raised during the course of arguments throughout the ensuing discussion and analysis within this judgment. At the very outset, we have noted that the main offence for which the petitioners have been nominated is section 23 of the Act of 1947 where the offence is currently punishable with rigorous imprisonment for a term which may extend to five years or with fine or with both. It is relevant to state here that previously the punishment for the said offence was simple imprisonment extendable up to two years or fine or both and the same was amended in the year 2020 through the Act No. X of 2020 w.e.f. 27.02.2020. The date of occurrence as per FIR is year 2007-2015 which is before the ibid amendment of 2020. As per the protections guaranteed by the Article 12 of the Constitution of Islamic Republic of Pakistan, 1973 (“The Constitution”), no law shall authorize the punishment of a person for an offence by a penalty greater than, or of' a kind different from, the penalty prescribed by law for that offence at the time the offence was committed. At a glance, protection against retrospective punishment as provided in Article 12 of the Constitution might appear as a notion dealing with procedural requirement, however it not as such. Article 12 of the Constitution does not state any procedural requirement of ordinary course rather it is one of the fundamental rights and highly guarded substantive right which is not to be taken lightly. This doctrine concerning ex post facto laws is well recognized in almost all jurisdictions with respect to administration of criminal justice. As per well recognized legal encyclopedia of American law i.e. Corpus Juris Secundum!, an ex post facto law is one which makes criminal and punishes an act which was done before the passage of the law and which was innocent when done, aggravates a crime or makes it greater than it was when committed, changes the punishment and inflicts a greater punishment than was prescribed when the crime was committed, or alters the legal rules of evidence and receives less or different testimony than was required to convict at the time the offence was committed. Further, an ex post facto law may be one which, assuming to regulate civil rights and remedies only, in effect imposes a penalty or the deprivation of a right for something which, when done, was lawful, deprives persons accused of crime of some lawful protection or defence previously available to them, such as the protection of a former conviction or acquittal, or of a proclamation of amnesty, or, generally, in relation to the offence or its consequences, alters the situation of an accused to his material disadvantage. Protection against such penal legislation is also provided by the Convention for the

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Protection of Human Rights and Fundamental Freedoms which was signed by members of the Council of Europe in 1950, and later ratified by the United Kingdom. The convictions and sentences to be recorded in the criminal jurisdiction under ex post facto law are also prohibited under Article 12 of the Constitution and well recognized by this court in its various judgments. The benefit of the said interpretation must also be extended to an accused not only at the stage of trial but also at the stage of bail. Clearly, in the instant case, the offence was allegedly committed at the time between years 2007 and 2015, therefore, the punishment for the offence under section 23 ibid would be considered as two years or fine or both”

9.In view of the above enunciation of principle of law, there is no manner of doubt that the constitutional protection against retrospective punishment at the anvil of Article 12 of the Constitution is available to the petitioner. Hence, the provisions of Amendment Act are not applicable in this case as the occurrence took place in the year 2024.

10.Now I proceed to examine the facts and merits of the case tentatively to find out as to whether any case of bail after arrest is made out or not. It evinces that the F.I.R. in this case has been lodged with a delay of about one year. No time, date and place of alleged payment is mentioned in the F.I.R. There is no documentary proof of any payment to the petitioner. As per affidavit of Nasir Iqbal who is a prosecution witness, the alleged amount was paid to co-accused Iftikhar (since P.O). The petitioner was arrested on 03.03.2026. His physical custody was remanded to the investigating officer but no incriminating material has been recovered from him. There is no evidence that the petitioner is beneficiary, so the question of guilt of the petitioner qua the alleged occurrence, at this stage, calls for further probe within the ambit of sub-section 2 of section 497 Cr.P.C. The investigation to the extent of the petitioner is complete and he is no more required for further investigation. His further incarceration would not serve any useful purpose rather, the same would amount to punishment before trial. It is settled law that bail cannot be withheld as

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punishment. Reliance in this regard is placed upon “Manzoor and 4 other v. State” (PLD 1972 SC 81), relevant portion whereof is reproduced hereunder:-

“ It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run.”

11.The object of bail has been elaborated by the Hon’ble Supreme Court of Pakistan in Khawaja Salman’s case (PLD 2020 SC 456), relevant portion whereof is reproduced hereunder:-

“While dealing with the question of whether or not bail is to be granted to an accused, it has to be kept in mind that the object of bail is to secure the attendance of the accused at the trial. The object is neither punitive nor preventive. Imprisonment of a person and deprivation of his liberty, cannot be described other than, being a punishment, unless no less restrictive alternative is available to ensure that the accused will stand his trial when called upon to do so. All civilized societies recognize the principle that punishment comes only after conviction, and the presumption of innocence subsist with the accused, till he is handed down punishment after trial. It hardly needs any reiteration that the detention either pre-trial or during trial causes great hardship.”

12.Since the bail in this case has been granted in terms of sub-section 2 of Section 497 Cr.P.C. I beg to be pardoned for venturing the opinion as to whether or not a case of alternative punishments would attract the mischief of prohibitory clause.

13.For what has been discussed above, this petition is allowed and the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs.2,00,000/- with one surety in the like amount to the satisfaction of the learned trial court.

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14.Before parting with this order, it is clarified that if the petitioner or anyone else acting on his behalf, in any way, delays the conclusion of the trial, the other side (State or the complainant) shall be at liberty to file a petition for cancellation of bail under Section 497(5) Cr.P.C. before the learned trial court.

(Muhammad Amjad Pervaiz) Judge

Approved for reporting.

Judge M.J.Mehmood