PLJ 2023 Cr.C. (Note) 107
[Lahore High Court, Rawalpindi Bench]
Present: Ch. Abdul Aziz, J.
versus
STATE--Respondent
Crl. Misc. No. 2183-B of 2022, decided on 11.10.2022.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Foreign Exchange Regulation Act, 1947, S. 5 & 23 Read with Section ¾ of the Anti-Money Laundering Act, 2010 and 109, PPC--Post arrest bail allowed--At the time of raid, one accused was arrested, who introduced himself as Manager of the office and he further disclosed about the names of owners as petitioner and co-accused--During investigation a lap top was secured containing the record of hundi business but no reference to it is made either in the FIR or in the statements of witnesses--The concession of post arrest bail cannot be withheld from an accused merely on the basis of inferences and presumption--To prove that the property is proceeds of crime but no material in this regard has yet been collected--For the limited, purpose of bail the lesser sentence is to be considered--Petitioner is allowed post arrest bail. [Para 5, 6 & 7] A, B, C, D & E
PLD 1995 SC 34 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Bail--For the limited, purpose of bail the lesser sentence is to be considered. [Para 6] D
Mr. Arshad Hussain Yousafzai, Advocate for Petitioner.
Mr. Tayyab Bilal, Assistant Attorney General for Pakistan for State.
Date of hearing: 11.10.2022.
Order
Naeem Shah (petitioner) seeks bail after arrest in case FIR
No. 13 dated 29.03.2022 under Sections 5, 23 of the Foreign Exchange Regulation Act, 1947 read with Section 3/4 of the Anti-Money Laundering Act, 2010 and 109, P.P.C. registered with Police Station FIA, CBC, Islamabad.
2. Precisely stated the case of prosecution as it gleans from crime report is to the effect that FIA Commercial Bank Circle Islamabad received a secret information that some persons are dealing in the unlawful business of hundi/hawala at Shops Nos. 3 and 4 situated on the first floor of Banday Arcade, Ratta Amral Road, Rawalpindi; that upon receipt of such information, a raiding team was constituted headed by Gul Rehman, Assistant Director; that the FIA officials reached the aforementioned shops and apprehended one Shah Faisal, who introduced himself as Manager of the office; that the search of the office culminated in the recovery of Rs.1,18,33,000/-, hundi/hawala receipts, mobile phone containing supporting massages and cheque books of various accounts; that the Manager Shah Faisal further admitted before the FIA officials that he is dealing in the illegal business of hundi/hawala and foreign exchange, the detail of which is in his mobile phone and that upon a query Shah Faisal further stated that the office is owned by Naeem Shah and Nemat Ullah.
3. Arguments heard and record perused.
4. It evinces from the tentative review of record that in pursuance of a raid conducted by the personnel of FIA Commercial Bank Circle, Islamabad in an office situated on Ratta Amral Road, an amount of Rs.1,18,33,000/- was recovered as proceed of hundi/hawala. During these proceedings, the FIA officials also statedly secured certain incriminating articles in support of canvassed allegations including mobile phone, cheque books and hundi receipts, etc.
5. It is observed that at the time of raid, one Shah Faisal was arrested, who introduced himself as Manager of the office and he further disclosed about the names of owners as Naeem Shah (petitioner) and Neemat Ullah (co-accused). Straightaway, it is noticed that though during investigation a lap top was secured containing the record of hundi business but no reference to it is made either in the FIR or in the statements of witnesses recorded under Section 161, Cr.P.C. on the first day of registration of FIR. From the forensic analysis of the lap top some screen shots deciphered, which were containing the names of some individuals along with certain amounts of money about which primarily an inference is drawn as proceeds of hundi/hawala. Needless to mention here that the concession of post arrest bail cannot be withheld from an accused merely on the basis of inferences and presumptions, instead the prosecution must collect some confidence inspiring incriminating material reasonably connecting the accused with the commission of crime.
6. It is further observed that the case stands registered under various provisions of Foreign Exchange Regulation Act, 1947 and Anti-Money Laundering Act, 2010. So far as, the offence under Section 23 of the Foreign Exchange Regulation Act, 1947 entails maximum punishment up to five years, thus does not attract the prohibitory clause of Section 497, Cr.P.C. It needs no mention that in respect of an offence not falling with the prohibitory clause of Section 497, Cr.P.C., grant of bail is a rule and refusal an exception. Such a person can only be held disentitled to the concession of post arrest bail, if there exists some recognized exceptional circumstances. Now the question arises what in law means an exceptional circumstance. In this regard it is appropriate to reproduce an extract from a case reported as Tariq Bashir and 5 others v. The State (PLD 1995 SC 34)”, which is as under:--
“So the bail will be declined only in extraordinary and exceptional cases, for example:--
(a) where there is likelihood of abscondence of the accused;
(b) where there is apprehension of the accused tampering with the prosecution evidence;
(c) where there is danger of the offence being repeated if the accused is released on bail; and
(d) where the accused is a previous convict.
I have also dilated upon the Section 3 of the Anti-Money Laundering Act, 2010 and it is noticed to be made punishable with imprisonment up to 10 years. Needless to mention here that for attracting the mischief of Section 4 of Act (ibid), the prosecution is primarily required to prove that the property is proceeds of crime but no material in this regard has yet been collected. In this backdrop, it can inevitably be said that applicability of Section 4 of Act (ibid) still requires further inquiry and probe and even otherwise for the limited purposes of bail the lesser sentence is to be considered. As mentioned above, Section 4 is made punishable with imprisonment of one to ten years, thus the lessor sentence is to be considered.
7. In the above backdrop, the petitioner is found incarcerated since 25.09.2022 without there being any progress in the trial. In such an eventuality, no useful purpose is likely to be served by detaining him in judicial custody. Resultantly, the instant petition is accepted and the petitioner is admitted to post-arrest bail subject to furnishing of bail bonds for an amount of Rs.5,00,000/- with one surety in the like amount to the satisfaction of trial Court.
(K.Q.B.) Bail granted
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