HABEEB ULLAH Versus State
This petition concerns a post-arrest bail application filed by the petitioner, Habeeb Ullah, who was charged under the Foreign Exchange Regulation Act, 1947 and the Anti-Money Laundering Act, 2010, following a raid by the Federal Investigation Agency (FIA) on his shop. The prosecution alleged the petitioner was involved in illegal Hundi Hawala business and money laundering, citing the recovery of cash and documents. The core legal question was whether the petitioner was entitled to bail given the circumstances of the recovery and the nature of the alleged offences. The Court observed that the FIA failed to conduct a test purchase to verify the allegations and failed to associate independent witnesses with the recovery, violating procedural requirements under the Code of Criminal Procedure, 1898. Holding that the offences did not fall within the prohibitory clause of the Code of Criminal Procedure, 1898, the Court granted bail, emphasizing that bail is the rule and refusal the exception in such cases. The Court further noted the petitioner was no longer required for investigation, rendering continued incarceration unjustified.
- Does the failure to associate independent witnesses with a recovery memo constitute a ground for bail?
- Are offences under the Foreign Exchange Regulation Act, 1947 and the Anti-Money Laundering Act, 2010 subject to the prohibitory clause of Section 497, Code of Criminal Procedure 1898?
- Is the absence of a test purchase by investigating authorities a relevant factor in determining bail in Hundi Hawala cases?
- Section 5, Foreign Exchange Regulation Act 1947
- Section 23, Foreign Exchange Regulation Act 1947
- Section 3, Anti-Money Laundering Act 2010
- Section 4, Anti-Money Laundering Act 2010
- Section 103, Code of Criminal Procedure 1898
- Section 19, Foreign Exchange Regulation Act 1947
- Section 497(1), Code of Criminal Procedure 1898
ABDUL LATIF KHAN, J.--- Petitioner Habeeb Ullah seeks post arrest bail in case F.I.R. No.60 dated 29-12-2014, under section 5/23 FER Act, 1947 r/w 3/4 AML Act, P.S. FIA/CBC, Peshawar.
2. As per prosecution case, the shop of petitioner was raided by the FIA officials on the basis of Inquiry No.23/2012 of FIA SBC Karachi, alleging therein involvement of petitioner in illegal business of Hundi Hawala and money laundering where petitioner was found busy in running business of Hundi and Foreign currency without any permission from the competent authority and cash amount of Rs.305,000 Pakistani currency along with Hundi Hawala documents, and receipts etc., were recovered from his possession. Consequently instant FIR was registered against the petitioner.
Arguments heard and record perused.
3. Perusal of record reveals that no test purchase has been conducted by the FIA authorities at the time of raid in order to ascertain the actual truth about involvement of petitioner in the business of Hundi Hawala as well as foreign currency. Besides, no independent witness has been cited on the recovery memo which is clear violation of provisions of section 103, Cr.P.C. and section 19 of FER Act, 1947, showing mala fide on the part of complainant/FIA authorities.
4. The offences with which the petitioner, is charged, do not come under the prohibitory clause of section 497(1), Cr.P.C. and in such like cases grant of bail is a rule and its refusal is an exception. 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 person for his unjustified incarceration at any stage of the case, albeit his acquittal in the long run. Despite remaining in police custody petitioner has made no confession before the competent Court, connecting him with the commission of offence. He is behind the bar since his arrest and no more required to the FIA authorities for further investigation therefore, keeping him behind the bar would serve no useful purpose.
5. In view of what has been observed above, this petition is allowed and petitioner is admitted to bail subject to furnishing bail bond to the tune of Rs.5,00,000 (Five Lac) with two sureties each in the like amount to the satisfaction of trial Court concerned, who shall ensure that the sureties are local, reliable and men of means.
The above are reasons of my short order of even date.
HBT/44/P Bail granted.