IHSANULLAH and anothers vs The STATE
This matter comes before the Peshawar High Court through a bail petition filed by Ehsanullah and Esim Khan, who were charged under sections 4/23 of the F.E.R. Act, 1947 in F.I.R. No. 7 of 2012 registered at Police Station FIA/CBC, Peshawar, for allegedly possessing foreign currency and running a Hundi/Hawala business. The core legal question is whether the petitioners are entitled to post-arrest bail on the grounds that the offences charged do not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898 and that a co-accused has already been released on bail. The court held that the petitioners have made out a case for bail, primarily applying the principle of consistency since a co-accused facing similar allegations had already been enlarged on bail, and noting that the offences did not strictly attract the prohibitory clause. Consequently, the petition was allowed and the petitioners were granted bail subject to furnishing appropriate security bonds.
- Whether an accused is entitled to post-arrest bail on the principle of consistency when a co-accused facing similar charges has already been enlarged on bail?
- Does possession of foreign currency in connection with a Hundi/Hawala business necessarily attract the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- What are the considerations for granting bail in cases registered under the Foreign Exchange Regulation Act 1947?
- Section 4, Foreign Exchange Regulation Act 1947
- Section 23, Foreign Exchange Regulation Act 1947
- Section 497, Code of Criminal Procedure 1898
' ATTAULLAH KHAN, J.---Petitioners Ehsanullah and Esim Khan, who are charged in a case registered against them and one another under sections 4/23 of the F.E.R. Act, 1947 for having been found in possession of 83520 Saudi Riyal etc., vide F.I.R. No,7/2012, dated 25-1-2012 in Police Station FIA/CBC, Peshawar, have asked for their release on bail mainly on the ground that none of the offences they are charged with attract entail maximum punishment attracting prohibitory clause and that one of the co-accused has already been enlarged on bail.
2. The learned DAG, appearing on behalf of the State, argued that bail cannot be sought on presumptive or hypothetical grounds and that the petitioners being prima facie connected with the crime attracting prohibitory clause do not deserve the concession of bail.
3. I have gone through the record carefully and considered the submissions made by the learned counsel for the parties.
4. The perusal of record reveals that the petitioners are charged for running a business of Hundi/Hawala in the shop situated in the heart of the city. At the time of raid though certain foreign currency is alleged to have been recovered from the petitioners but the petitioners claimed to be servant of one Gul Mar Jan who has already been enlarged on bail by the lower court vide order dated 1-2-2012. The facts that none of the offences charged with attracts the mischief of section 497, Cr.P.C. And also that one of the co-accused has already been extended the concession of bail, the petitioners' case too, on the principle of consistency alone, is arguable for the purpose of bail.
5. For the reasons discussed above, this petition is allowed and it is directed that the petitioners be released on bail if they furnish bail bonds in the sum of Rs, One lac each, with two sureties, each in the like amount to the satisfaction of the Illaqa/Judicial Magistrate who shall ensure that the sureties are local, reliable and men of means.
Cited by 3 cases
- MUHAMMAD HANIF vs The STATE 2018 MLD 927
- NISAR AHMAD vs The STATE 2015 P Cr. L J 478
- REHMAT ALI vs The STATE 2015 MLD 1664