Ameer Ullah vs State

2012 P Cr. L J 1858

[Peshawar]

Before Waqar Ahmad Seth, J

AMEER ULLAH---Petitioner versus THE STATE---Respondent

Criminal Miscellaneous (BA) No.787 of 2012, decided on 29th June, 2012.

(a)Criminal Procedure Code (V of 1898)--

----S. 497---Foreign Exchange Regulation Act (VII of 1947), Ss. 4 & 23---Unauthorized dealing in foreign exchange---Bail, grant of---Allegation against the accused was that he was operating a "hundi/hawala" business and in this respect related documents along . with huge amounts of foreign and local currency was recovered from him---Contentions of the accused were that no independent witness had been associated to the recovery memo; that the offence for which the accused was charged was punishable up to two years or fine or both and in such like cases bail was a rule and its refusal an exception; that the investigation in the case was complete and the accused was no more required for the purpose of investigation, and that the accused was a first time offender---Validity---Nothing on record showed that the accused was the exclusive owner/director of the company/alleged business--- Raid was conducted upon a report against the accused's father and it was yet to be seen whether the accused was involved actively in the business or was just a visitor at the place owned by his father at the time o f the raid---Case against the accused did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused was a first time offender---Prosecution had not shown that the accused was further required for any investigation---Bail application of the accused was allowed and he was released on bail.

(b)Criminal Procedure Code (V of 1898)---

----S. 497-Bail-Case not falling within the prohibitory clause of S.497, Cr.P.C.---Effect---Where a case fell within the non prohibitory clause, the concession of grant of bail must be favourably considered and should only be declined in exceptional cases.

Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488 rel.

(c)Criminal Procedure Code (V of 1898)---

----S. 497---Bail---When an offence was punishable with imprisonment or fine or both, accused should be entitled to bail as of right because if at the trial he was only sentenced with fine, period as undertrial prisoner due to refusal of bail would amount to a case of double jeopardy.

Mukhtiar Ali for Petitioner.

Javed Ali for the State.

Date of hearing: 29th June, 2012.

JUDGMENT

WAQAR AHMAD SETH, J.---Petitioner having remained unsuccessful in obtaining his release on bail in case F.I.R. No.25/12 dated 6-6-2012 registered under section 4/23, F.E.R. Act, 1947, Police Station, FIA, CBC, has filed this petition for release on bail.

2.Background of the matter contained in the F.I.R. is that FIA officials received STR from financial monitoring unit FMU, Karachi through letter, in respect of an Account Number in the name of Lal Zada. On inquiry, it was found that in Room No.1, Khurshid Plaza, situated at Chowk Yadgar, Peshawar, the said Lal Zada along with other persons is running a hundi/hawala business illegally and without any license in the said shop. A raid party was constituted who raided the shop/said room which was in open condition and nothing was recovered from it: Upon

inquiry, it was found that said Lal Zada along with other persons have shifted to Shop No.19 at Tea Market, Chowk Yadgar, Peshawar and are present over there. Upon raid on the said shop, Amirullah son of Lal Zada, accused/petitioner was found busy in hundi/hawala and in this respect related documents along with huge amount of foreign and local currency mentioned in the F.I.R., was recovered where after the present case was registered.

3.Learned counsel for the petitioners contended that accused/ petitioner is innocent and has been falsely implicated in the case by prosecution due to ulterior motive; that there is no ocular or circumstantial evidence connecting him with the commission of offence; that no independent witness has been associated to the recovery memo: and thus the prosecution violative the mandatory provision of section 103, Cr.P.C. and section 19 of F.E.R. Act, 1947; that the offence for which accused/petitioner is charged is punishable up to two years or fine or both and the grant of bail in such-like cases is rule and refusal is an exception; that the investigation is complete and the accused/petitioner is no more required for the purpose of investigation and the accused/petitioner is first offender and as such being a case of further inquiry accused/petitioner is entitled to the concession of bail.

4.As against this, learned counsel for the State while rebutting the arguments from other side contended that petitioner is directly nominated in the F.I.R.; that huge quantity of foreign currency has been recovered from the place occupied by the accused/petitioner that the punishment provided for such-like case is no doubt falls in the non-prohibitory clause of section 497, Cr.P.C. but since the accused/petitioner was doing an illegal business which has directly effected the economy of the Country is not entitled for the concession of bail.

5.Arguments heard and record perused.

6.There is nothing on record that accused/petitioner is the exclusive owner/director of the Company/alleged business, in fact the raid was upon a report against the father of the accused/petitioner whereas petitioner was sitting over the alleged place at the relevant time. It is yet to be seen that petitioner was doing the said business exclusive himself and was involved actively or was just a visitor in the alleged place owned by his father. The maximum sentence under the 4/23, F.E.R. Act, 1947 is two years. The case does not fall within the prohibitory clause, thus keeping in view the law laid down in the case of Zafar Iqbal v. Muhammad Anwar and others (2009 SCMR 1488) ordaining that where a case falls within non-prohibitory clause the concession of grant of bail must be favourable considered and should only be declined in exceptional cases. In the instant case, no exception has been pointed out by the prosecution specially in the circumstances when accused/petitioner is first offender and nothing contrary to the same has been produced, thus I do not find this to be a case where it should be refused as an exception.

7.It is remarked that when an offence is also punishable with fine or with both, accused shall be entitled to bail as of right because if at the trial he is only sentenced with fine, period as under trial prisoner due to refusal of bail shall amount to a case of double jeopardy.

8.The prosecution has not shown that accused/petitioner is further required for any investigation and thus accused/petitioner cannot be kept behind the bar for an indefinite period as punishment before the trial. The offence does not fall within the prohibitory clause. The ultimate conviction and incarceration of a guilty person can repair the wrong cause by as mistaken relief of interim bail granted to him but no satisfactory reparation can be offered to an innocent person for his unjustified incarceration at any stage of the case, albeit his acquittal in the long run.

9.In view of the above, this bail application is allowed. Petitioner is directed to be released on bail in case F.I.R. No.25/12 dated 6-6-2012 registered under sections 4/23, F.E.R. Act, 1947 Police Station, FIA CBC, Peshawar on furnishing bail bonds in the sum of Rs.500,000 (five lac) with two sureties each in the like amount to the satisfaction of learned trial Court who shall ensure that the sureties are local, reliable and men of means.

Above are the reasons of my short order of even date.

MWA/231/P Bail granted.