1. QALANDAR ALI KHAN, J.---Nisar Ahmad, petitioner, has been arrested in case FIR No, 51 dated 10- 1-.2014 under sections 4/23, F.E.R., Act 1947, P.S. FIA/CBC, P.Eshawar, by Muhammad Amin Sub- Inspector FIA/CBC, Peshawar for unauthorizely dealing in foreign currency after a test purchase was conducted in the Shah Sons Trader and Electronics Shop situated in main bazaar, Swat. The raid also led to the recovery of foreign currency of different countries along with Pakistani currency amounting to Rs, 40,30,000 and other documents showing business of dealing in foreign currency, by the accused/petitioner in the said shop. The accused/petitioner remained unsuccessful to secure post arrest bail from the court of learned Additional Sessions Judge-I/Judge, Special Court, Peshawar, therefore, approached this court for bail.
2. The learned counsel for the accused/petitioner, mainly, questioned the mode of raid and recovery, which, according to him, were in clear violation of mandatory provisions of law, as neither search warrant was obtained prior to the raid nor independent witnesses from the public were associated with search and recovery, thereby vitiating the whole process. While challenging test purchase by the raiding party headed by the complainant, the learned counsel placed reliance on 2000 MLD 357 (Lahore). They learned counsel further pointed out that the offence with which the accused/petitioner has been charged in the case carries maximum penalty of imprisonment up to.
3. Two years or with. Fine or with both. The learned counsel maintained that not only the case falls outside the ambit of prohibitory clause contained in section 497, Cr.P.C., but the accused/petitioner would also be entitled to the concession of bail as of right as the offence was also punishable with fine only; because, if on culmination of trial he is only sentenced to fine, the period spent by him in jail as under trial prisoner due to refusal of bail shall amount to double jeopardy. In support of his this contention the learned counsel referred to judgments reported as PLD 1993 Peshawar 104, 2000 PCr.LJ 1914, 2012 PCr.LJ 1858, and 2013 PCr.LJ 1865.
4. The learned State counsel, on the other hand argued that the accused/petitioner is involved in unauthorizely dealing in foreign currency, which has serious repercussion for law and order situation in the country and rise of militancy over a period of time.
5. In any case, the offence with which the accused/petitioner is charged carries maximum penalty of two years imprisonment or fine or both, thus not only entitling the accused/petitioner to the concession of bail as of right as in case of imposition of only fine on him, refusal of bail to him and his remaining in jail as a consequence thereof would amount to double jeopardy; but also making the accused/petitioner entitled for bail on the ground that the offence falls outside the scope of prohibitory clause contained in section 497, Cr.P.C., not with standing the fact that mandatory provision of law contained in the Foreign Exchange Regulation Act, 1947 in respect of search and recovery have, apparently, not been complied with.
6. In view of the above, the application is accepted and the accused/petitioner is admitted to bail subject to his furnishing bail bonds 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.