SAJJAD HAIDER Versus State
MUHAMMAD HASHIM KHAN KAKAR, J.--- The petitioners namely Sajjad Haider and Atta ul Mohsin, while invoking the jurisdiction of this Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 have questioned the orders dated 10.11.2025 and 06.11.2025 of the Islamabad High Court, Islamabad whereby their applications for bail after arrest in FIR No.58/2025 dated 12.08.2025 for the offences under sections 5 and 23 of the Foreign Exchange Regulation Act, 1947 ( Act of 1947 ) read with sections 109 and 201 of Pakistan Penal Code, 1860 ( P.P.C. ) registered at Police Station FIA CBC, Islamabad were dismissed.
2. The prosecution alleges a sophisticated financial conspiracy involving the illegal transfer of Rs. 24 billion via Hawala channels, wherein specific roles are attributed to the petitioners. The petitioner Atta ul Mohsin, in his capacity as Director Accounts, has been implicated in the concealment and attempted destruction of incriminating records. Similarly, the petitioner Sajjad Haider has been identified as the primary Hawala operator and conduit, allegedly facilitating the offshore settlement of large-scale cash withdrawals in violation of the provisions contained in the Act of 1947.
3. We have heard the learned counsel for the parties and gone through the record in depth. In order to avoid unnecessary repetition, we have incorporated and addressed the submissions and contentions raised during the course of arguments throughout the ensuing discussion and analysis within this judgment. At the very outset, we have noted that the main offence for which the petitioners have been nominated is section 23 of the Act of 1947 where the offence is currently punishable with rigorous imprisonment for a term which may extend to five years or with fine or with both. It is relevant to state here that previously the punishment for the said offence was simple imprisonment extendable up to two years or fine or both and the same was amended in the year 2020 through the Act No. X of 2020 w.e.f. 27.02.2020. The date of occurrence as per FIR is year 2007-2015 which is before the ibid amendment of 2020. As per the protections guaranteed by the Article 12 of the Constitution of Islamic Republic of Pakistan, 1973 ( The Constitution ), no law shall authorize the punishment of a person for an offence by a penalty greater than, or of' a kind different from, the penalty prescribed by law for that offence at the time the offence was committed. At a glance, protection against retrospective punishment as provided in Article 12 of the Constitution might appear as a notion dealing with procedural requirement, however it not as such. Article 12 of the Constitution does not state any procedural requirement of ordinary course rather it is one of the fundamental rights and highly guarded substantive right which is not to be taken lightly. This doctrine concerning ex post facto laws is well recognized in almost all jurisdictions with respect to administration of criminal justice. As per well recognized legal encyclopedia of American law i.e. Corpus Juris Secundum 1 , an ex post facto law is one which makes criminal and punishes an act which was done before the passage of the law and which was innocent when done, aggravates a crime or makes it greater than it was when committed, changes the punishment and inflicts a greater punishment than was prescribed when the crime was committed, or alters the legal rules of evidence and receives less or different testimony than was required to convict at the time the offence was committed. Further, an ex post facto law may be one which, assuming to regulate civil rights and remedies only, in effect imposes a penalty or the deprivation of a right for something which, when done, was lawful, deprives persons accused of crime of some lawful protection or defence previously available to them, such as the protection of a former conviction or acquittal, or of a proclamation of amnesty, or, generally, in relation to the offence or its consequences, alters the situation of an accused to his material disadvantage. Protection against such penal legislation is also provided by the Convention for the Protection of Human Rights and Fundamental Freedoms 2 which was signed by members of the Council of Europe in 1950, and later ratified by the United Kingdom 3 . The convictions and sentences to be recorded in the criminal jurisdiction under ex post facto law are also prohibited under Article 12 of the Constitution and well recognized by this court in its various judgments 4 . The benefit of the said interpretation must also be extended to an accused not only at the stage of trial but also at the stage of bail. Clearly, in the instant case, the offence was allegedly committed at the time between years 2007 and 2015, therefore, the punishment for the offence under section 23 ibid would be considered as two years or fine or both.
4. The next important aspect is the nature of the offence, which, although is non-bailable under section 23 ibid, however, for the purposes of the instant case, it entails punishment of two years or fine or both. The principles laid down by this court regarding grant of bail in non-bailable offences are well settled by now. In case of Tariq Bashir 5 , this court held that the section 497 of the Code of Criminal Procedure, 1898 ( the Code ) divided non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The principle deduced from this provision of law was that in non-bailable offences falling in the second category i.e. punishable with imprisonment for less than ten years, the grant of bail is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example where there is likelihood of abscondence of the accused, where there is apprehension of the accused tampering with the prosecution evidence, where there is danger of the offence being repeated if the accused is released on bail and where the accused is a previous convict. The said principles were reiterated and reaffirmed by this court in various judgments 6 . In the instant case, the offence entails punishment of two years or fine or both which does not fall within the prohibitory clause of the section 497 of the Code. Similarly, no extraordinary and exceptional circumstances have been pointed out before us to decline the relief of bail. In addition to this, we have also noted that the case of prosecution is based on documentary evidence and no valid ground has been raised before us to show that the petitioners are personally are required for further investigation. In such circumstances grant of bail is rule and refusal an exception.
5. Another aspect of the case in hand is that the punishment for the main offence under section 23 ibid for instant case is two years or fine or both. The remaining offences invoked in the FIR involve offences under section 109, P.P.C. which is abetment having the same nature as that of main offence for the purpose of bail and section 201, P.P.C. which is bailable in nature. It is important to state here that when an offence is also punishable with fine only as an alternative punishment in lieu of imprisonment, then, the concession of bail ought not to be withheld because if at the trial he is sentenced with fine only, then the period as undertrial prisoner due to refusal of bail would amount to a case of double jeopardy. Similarly, while dealing with such-like cases, the refusal of bail would also be in contravention of Article 13(a) of the Constitution which embodies the provision of the legal maxim nemo debet bis vexari pro eadem causa (No one should be twice troubled (or vexed) for the same cause) as well as section 403 of the Code, because at the end of the day, if the accused is sentenced with fine alone, then it would not be possible to compensate him for his detention in judicial lock up during trial. The same spirit is also reflected in section 26 of the General Clauses Act, 1897. It is also worth-mentioning that in such state of affairs, continued custody of the applicant in jail is not likely to serve any beneficial purpose. Even otherwise, the concession of bail ought not to be withheld by way of premature punishment.
6. Before parting with this judgment, we find it extremely necessary to state here that the prisons in Pakistan are facing extreme overcrowding with most prison facilities operating beyond their official capacity. According to the prison data report 7 for the year 2024 regarding prison population, on average, prisons are at 152.2% overcapacity. More concerning is that the under-trial prisoners account for almost a quarter of the prisoners i.e. 73.41% of the total prison population. In such circumstances, courts must adjudicate the bail applications with heightened sensitivity to these figures and prioritize the swift disposal of trials. Such measures are imperative to overcome unprecedented overcrowding in prisons and uphold the fundamental sanctity of the criminal justice system in Pakistan.
7. For the foregoing reasons, the petitions are converted into appeals and allowed by setting aside the impugned orders. The petitioners are admitted to post arrest bail subject to their furnishing bail bonds in the sum of Rs.2,000,000/- (Rupees two million only) with two sureties in the like amount to the satisfaction of the Trial Court. Needless to mention that any observations made in this order are tentative in nature and shall not influence the Trial. Similarly, the petitioners are directed not to leave the country without the permission of the Trial Court.
MH/S-12/SC Bail allowed.
1 Corpus Juris Secundum, Constitutional Law, Vol. 16-A, Art.435.
2 Article 7, Convention for the Protection of Human Rights and Fundamental Freedoms, 1950.
3 Nabi Ahmed v. Home Secretary, Government of West Pakistan (PLD 1969 SC 599).
4 Abdur Rehman v. The State 1978 SCMR 292, Bhai Khan v. The State PLD 1992 SC 14 and Maqbool Ahmed v. The State (2007 SCMR 116).
5 Tariq Bashir v. The State (PLD 1995 Supreme Court 34).
6 Muhammad Tanveer v. The State and Another (PLD 2017 SC 733), Noman Khaliq v. State (2023 SCMR 2122) and Ali Anwar Paracha v. The State (2024 SCMR 1596).
7 Prison Data Report, Pakistan s Prison Landscape: Trends, Data and Developments in 2024, by National Commission for Human Rights, National Academy for Prisons Administration and Justice Project Pakistan, January 2025, p 8.