Mirza FARHAN AHMED vs THE STATE
This matter concerns a petition for leave to appeal against the dismissal of a bail application by the Lahore High Court in a case involving the unauthorized export of foreign currency. The petitioner was arrested for attempting to transport 50,000 US Dollars out of Pakistan, allegedly in violation of the Customs Act, 1969 and the Foreign Exchange Regulation Act, 1947. The core legal question was whether the petitioner, who claimed ignorance of the relevant S.R.O. limiting currency export to 10,000 US Dollars, was entitled to post-arrest bail given his medical condition, lack of criminal record, and the completion of the investigation. The Supreme Court held that the offence, while punishable by a significant term of imprisonment, was technical rather than immoral or anti-social in nature. Finding that the petitioner's custody was no longer required for investigation and noting his illness, the Court granted bail. The principle laid down is that where an offence is technical in nature, and the accused has no prior criminal record, is ill, and the investigation is complete, bail should generally be granted.
- Is the unauthorized export of foreign currency beyond the prescribed limit considered an immoral or anti-social act for the purpose of bail?
- Does the completion of an investigation and the absence of a prior criminal record justify the grant of bail in a case involving a technical violation of the Customs Act?
- Can bail be granted to an accused person who is ill and whose custody is no longer required for investigation purposes?
- Section 2(S), Customs Act 1969
- Section 16, Customs Act 1969
- Section 39, Customs Act 1969
- Section 156(1)(8), Customs Act 1969
- Section 157, Customs Act 1969
- Section 139, Customs Act 1969
- Section 8, Foreign Exchange Regulation Act 1947
' CH. EJAZ YOUSAF, J.---This petition for leave to appeal is directed against order, dated 11-7-2008 passed by a learned single Bench of the Lahore High Court, Lahore, whereby bail application moved by the petitioner was dismissed.
2. Petitioner was arrested in pursuance of F.I.R. No,12 of 2008 registered under section 2(S)-16-39- 156(1)(8)(1)(70) and 157 of the Customs Act, 1969, on the charge that he on 22-3-2008, had tried to take out of country a sum of 50,000 U.S. Dollars in contravention of sections 2(S)/16/139 of the Customs Act, read with section 8 of the Foreign Exchange Regulation Act, 1947.
3. The learned counsel for the petitioner has stated that the petitioner is a law abiding citizen and had no criminal intention whatsoever for carrying the money out of Pakistan in contravention of Rules; the money which was his lawful property was bonafidely being carried by the petitioner for the purchase of merchandise. Had he been aware regarding the restriction imposed by S.R.O.
No,1017(I)/98, dated 21st July, 1998 that more than 10,000 Dollars cannot be taken out of country then he would have certainly not indulged in such practice. The learned counsel further stated that the petitioner has unimpeachable record and has never been convicted or even charged with any criminal offence whatsoever. He has just fallen prey to the circumstances being unaware of the issuance of the said S.R.O. He has added that the petitioner is behind the bars since the time of his arrest i,e, 23-3-2008; that the petitioner being ill and confined in the jail hospital, deserves to be released on bail so that he may be able to get himself treated. He has added that since investigation in the case is already over, therefore, petitioner's custody is no more required for that purpose.
4. Mian Asif Mumtaz, learned Deputy Prosecutor-General Punjab, while controverting the contentions raised by the learned counsel for the petitioner submitted that since the petitioner was caught red-handedly while carrying US dollars in excess of the prescribed limit, therefore, he was rightly charged for the offence. He, however, has not controverted that the investigation in the case is complete, the petitioner is behind the bars since the time of his arrest and being ill he is presently confined in the Jail Hospital.
5. Since it has not been controverted by the learned Deputy Prosecutor-General, Punjab, that the petitioner is not a previous convict, he is ill and his custody is no more required for the purpose of investigation and though the offence punishable under section 156(1)(8) carries a sentence of 14 years' imprisonment yet, the act of taking out foreign currency out of Pakistan beyond the prescribed limit being not immoral or anti-social in nature rather technical because as per clause
(f) of the S.R.O. In question, the Government itself has allowed taking out of Pakistan the amount upto US Dollars 10,000 or equivalent in other currencies, therefore, in our view a case for grant of bail in favour of the petitioner is made out. Accordingly, this petition is converted into appeal and allowed. The appellant shall be released on bail subject to his furnishing surety in the sum of Rs,1,00,000 (one lac), with P.R. Bond in the like amount to the satisfaction of the trial Court.
6. Needless to point out that the observations made in this order are tentative in nature and shall have no bearing on fate of the case which shall be decided on its own merits in accordance with law.
' These are the reasons of our short order of even date announced in open Court.##TE# Petition/.