Respectfully Sheweth:
1. That the accused/petitioner is charged in the instant case and since then behind the bar. Copy of FIR is attached as annexure
2. That accused/petitioner moved bail application to the court of Additional Sessions Judge, Peshawar, who rejected his bail application vide order dated 16-12-2014. Copy of the bail application is annexure "B" and that of the order is annexure "C".
3. That now accused/petitioner seek his release on bail from this Hon'ble Court inter alia on the following grounds; GROUNDS; A. That the accused/petitioner is innocent and is falsely been roped by the complainant in the instant case.
PESHAWAR HIGH COURT, PESHAWAR FORM OF ORDER SHEET {{table}} Court of Case No of Date of Order of Proceedings Order of other Proceedings with Signature of Judge.
1 2 29.12.2014 ------ .....- Cr.M. B.A No. 2101-P/2014.
Present: M/S. Shakir Ullah Afridi, and Muhammad Ibrahim Khan)Advocates, for the petitioner. Mr. Abdul Latif Khan, Advocate for the State. ** QALANDAR ALI KHAN. J. Muhammad Amin Sub Inspector FIA/CBC, Peshawar, lodged FIR No. 52 dated 10.12.2014 under section 4/23 FER Act, 1947 at P.S FIA/CBC, Peshawar , wherein the complainant/S.I FIA/CBC, Peshawar alleged that on prior information of business of dealing in foreign currency in the shop known as Ali Traders in main bazaar, Mingora, Swat, he conducted test purchase through FC Abdul Ghafar and thereafter raided the said shop where he found the accused petitioner, Rehmat Ali, busy in dealing with foreign currency. According to the complainant, the accused/petitioner could not produce authorization of dealing in the business of foreign currency, whereupon search of the shop was conducted, leading to recovery of foreign currency of different countries, which were taken into possession and the accused/petitioner was arrested for committing the above mentioned offences. The accused/petitioner unsuccessfully attempted to secure bail from the court of learned Additional Sessions JudgeI/JSC, Peshawar, hence this petition for post arrest bail.
The learned counsel for the accused/petitioner vehemently contended that the learned court, which refused bail to the accused/petitioner. at the same time and on the same day, extended concession of bail to accused/petitioners facing similar charges. According to the learned counsel, the same court has also been extending the concession of bail in the past too to other accused facing similar charges. The learned counsel, besides challenging the mode of search and recovery, which, according to him, were in flagrant violation of mandatory provisions of law, also claimed that the accused/petitioner was entitled to the concession of bail as i test purchase has already been declared unethical and against the spirit of Islamic Justice in a judgment reported) as 2000 M LD 357 (Lahore). The learned counsel maintained that the offence with which the accused/petitioner was charged was outside the scope of prohibitory clause contained in section 497 Cr P.0 and that since there was a provision of fine only, refusal of bail to the accused/petitioner and keeping him behind the bars during trial would amount to double jeopardy in case the accused/petitioner is awarded the punishment of payment of fine only on conclusion of trial against him. In support of his this contention, the learned counsel referred to the judgments reported as PLD 1993 Peshawar 104, 2000 P.Cr.L.J 1914, 2012 P.Cr.L.J 1858, and 2013 P.Cr.L.J 1865.
The learned State counsel, on the other hand, argued that accused/petitioner was involved in the business of unauthorizely dealing with foreign currency, which had assumed serious implications in view of prevailing law and order situation in the country.
Be that as it may, the fact remains that the accused/petitioner has been charged with an offence which carries the maximum penalty of imprisonment for two years or with fine or with both, meaning thereby that the offence not only falls outside the ambit of prohibitory clause contained in section 497 Cr.P.0 but the accused/petitioner would also be entitled to the concession of bail as of right as in the case of imposition of penalty of fine only on culmination of trial against him, refusal of bail to him at this stage and retaining him behind the bars pending trial against him would, certainly, amount to double jeopardy in the light of judgments referred to above. Likewise, non-compliance with mandatory provisions of law would make case of the accused/petitioner that of further inquiry.
Adverting to the arguments of the learned counsel for the accused/petitioner relating to grant of bail by the same court to other similarly placed accused, it is noted with concern and a sense of anguish that a senior Judicial Officer would apply two yardsticks for two different accused facing similar charges for the reasons best known to him. To say the least, the order of the learned court, refusing bail to the accused/petitioner in similar circumstances, while extending concession of bail to other accused earlier and even on the same day has left much to be desired.
Consequently, on the acceptance of the, application, the accused/petitioner is admitted to bail, provided he furnishes bail bond in the sum of Rs. 200,000/- with two sureties each in the like amount to the satisfaction of Allaqa/Duty Magistrate, who shall ensure that sureties are local, men of means and reliable.