AFTAB AHMED GORAR, J.---Applicant Muhammad Hanif son of Noor Muhammad sought for post arrest bail in crime No. 06 of 2017, Police Station Federal Investigation Agency, SBC. Karachi, registered under sections 4/5/23 F.E.R Act, 1947, read with Section 109 Pakistan Penal Code. Earlier the post arrest bail plea of the applicant was declined by the learned Court of Session Judge (Central) Karachi vide order dated 23-10-2017.
2. The sum and substance as is envisaged in the FIR is that Adil Jan Deputy Director Exchange Policy Department, State Bank of Pakistan, Karachi made written complaint under Section 23(3) FER Act hearing No.EPD/6298/24(83) EC-2017 dated 13-03-2017 with regard to the crackdown against Illegal Foreign Exchange Operators under section 4(1) FER Act, 1947, an information was received in the light of which an enquiry No.13/2017 of FIA State Bank Circle Karachi was registered and entrusted to Inspector FIA. Since the offence is cognizable and Non-bailable vide SRO-558(I)/2016 dated 18-06-2016 by the Ministry of Finance, therefore, a raiding party was duly constituted head by the undersigned (Inspector) proceeded to the premises i.e. D-63, Block "H" North Nazimabad, Karachi; after making necessary entries at Police Station FIA SBC and Police Station Hydri Market where Muhammad Hanif son of Noor Muhammad having C-NIC No.421010- 1031159-5, was found.
After due identification and introduction search was conducted in presence of witnesses which resulted in recovery of below incriminating articles:-
(a) 01 Samsung Galaxy S6 having IMEI # 990005790709928
(b) Mobile IPhone 6 having IMEI # 356979063811009
(c) 01 Nokia Mobile TA-1030 IMEI # 357314084348584
(d) 08 Deposit slips of Bank of America of Account No.*****82616 for the period of 11.04.2017 to 25.04.2017
(e) 03 Deposit slips of J.P. Morgan Chase Bank of Account No. ending in 1067 dated 24.04.2017, 25.04.2017 and 28 . 04 .2017
(f) 02 Deposit slips of Royal Bank of Canada of Account Transit 01062 dated 20.05.2017 and 31.05.2017
(g) 02 Pages of Daily Report dated 12.09.2017 containing details of 12 different bank account transactions.
(h) 01 Page of Account title as "Hanif Patni"
(i) 01 Cheque Book of A/c No. 1585 title Hanif Enterprises containing Cheques from SR.No.1641206338 to 1641206365
(j) 01 Cheque Book of A/c No.209348 title Aman Hanif containing cheques from Serial No. 80846418 to 6500 and counter folio from Cheque No.80846401 to 6417
(k) 02 Cheque Book of A/c No.61001577 title Aman Hanif of MCB containing Cheque No. 1612346559 to 6575 and counter folio from Serial No.1612346526 to 6558
(l) 01 Cheque Book of A/c No.00452003228315 title Muhammad Hanif of Silk Bank containing Cheque No.6655809 to 6655825 and counter folio from 6655801 to 6655808
(m) 01 Cheque Book of A/c No.0051010019378 title Muhammad Hanif son of Noor Muhammad of MCB containing Cheque from Serial No.7739049 to 7739050 and counter folio from No.77390049 to 7739048
(n) 01 Cheque Book of A/c No. 4202606 title Muhammad Irfan of Bank of Al-Falah Limited from Serial No.52270645 to 52270670 and counter folio from 52270571 to 52270644
(o) 01 Cheque Book of A/c No.002852-01-9 title Noman Hanif containing Cheque No.10153799 to 10153810 with counter folio from 10153761 to 101.53798
(p) 01 Cheque Book of A/c No.3534650012 title Noman Hanif of ABL containing Cheque from Serial No.2294425683 to 2294425715 and counter folio from Serial No.2294425666 to 2294425683 to 2294425715
(q) 01 Cheque book of A/c No.01800661 title Muhammad Hanif of Bank Al-Falah containing Cheque from Serial No. 0973558 to 0973575 with counter folio from Serial No.0973551 to 0973557
(r) 02 Cheque Books of A/C No.2002370681 title Syed Athar Abbas of Silk Bank containing cheques from Serial No.3583107 to 3583110 and from 5236347 to 3583106 and 5236346 respectively.
(s) 01 Telephone Index Diary in blue colour containing details in writing of different local and foreign bank accounts of Shaheena Nasir, Syed Hussain Nasir, Syed Zain Nasir and others.
(t) 521 Deposit slips of different banks with different account, titles deposited by Muhammad Hanif his sons and others.
(u) 01 Visa Gold Card #4588-260000203622 title Syed Nasir Abbass.
3. Mr. Muhammad Ilyas Warraich, advocate, representing the applicant contended that applicant is innocent and has been falsely implicated in the present case with mala fide intention and ulterior motives; per learned counsel entire story is false, fabricated, unfounded and self-created; per learned counsel as per prosecution case FIR was registered in the light of enquiry No. 13 of 2017 but no date of such enquiry is available in the FIR; per learned counsel the statement of the applicant was recorded while applicant was in custody; per learned counsel all the alleged recoveries of Foreign currency and other securities so made are in contravention of FER Rules; per learned counsel applicant has taken into custody as per notification of the State Bank of Pakistan; per learned counsel no independent witness has been cited as a witness as such there is clear violation of mandatory provisions of section 103, Cr.P.C., per learned counsel FIR has been lodged after raid on the premises; per learned counsel the entire episode of conducting the raid arrest of accused and registration of FIR is in complete derogation of the mandatory provisions of section 19(2)(3) of the FER Act, 1947; per learned counsel the alleged registration of FIR is in violation of Section 23(3) of the FER Act, 1947; per learned counsel the alleged offence is punishable for two years; per learned counsel applicant is victim of high handedness of the F1A police; per learned counsel challan has been submitted and applicant is no more required for further investigation purposes; per learned counsel applicant may be enlarged on post arrest bail.
Learned counsel for the applicant has relied upon the case taw reported 2014 M LD 431, 2013 PCr.LJ 1865, 2016 PCr.LJ 593, 1988 PCr.LJ 136, 2012 PCr.LJ 1858, 2017 PCr.LJ 69, 2017 PCr.LJ Note 171 and 2017 PLD
(sic) 733.
4. Mr. Muhammad Javed K.K, Assistant Attorney General vehemently opposed the grant of bail and contended that applicant is fully involved in the present case with specific role; per learned AAG foreign denomination and several account books have been recovered from the possession of applicant; per learned AAG applicant is in the habit to put government exchequer on a huge losses by trafficking the tax through ill-means; per learned AAG applicant is not entitled for the concession of post arrest bail.
Learned Assistant Attorney General has relied upon the case law reported 2010 SCM R 1735, 2002 SCM R 442, 2009 PCr.LJ 1192.
5. Heard and record perused.
6. Admittedly, the alleged offence does not fall within the prohibitory clause of section 497, Cr.P.C.
Investigation Officer of the case has furnished interim charge sheet before the learned trial Court; however Investigation Officer has failed to file final charge sheet before the learned trial Court as is evident from the record. Progress report has been invited from the learned trial Court which reflects that since 10.10.2017 till 02-12-2017 Investigation Officer sought for time on one pretext or the other by moving series of applications before the learned trial Court; Investigation Officer by filing applications showing lame excuses instead till yet Investigation Officer has failed to submit the final charge sheet. Investigation Officer ought to have furnish final charge-sheet; but on the contrary Investigation Officer obtained NOC from the learned trial Court for Superintendent Central Prison Karachi and sought for the physical custody of applicant Nasir Abbass which was granted by, the learned trial Court.
It has been observed in a case reported in 2016 PCr.LJ 593 Re: Muhammad Younas v. The State as follows:- ---S. 497---Foreign Exchange Regulation Act (VII of 1947), Ss. 4 & 23---Indulging in business of hundi hawala---Bail, grant of---Punishments of the offences with which accused was charged, did not fall within the restrictive limb of S.497, Cr.P.C.---In such like cases bail was a rule and refusal an exception---No exceptional circumstance existed to obstruct the way of bail to accused---Accused was admitted to bail, in circumstances"
In a case reported in 1988 PCr.LJ 136 Re. Shamim Ahmed Kashmirwala v. The State it has been held as follows:- "---S. 154---Foreign---Exchange Regulation Act (VII of 1947), Ss. 4, 5, 9 & 23---First Information report lodged after spot inspection and making investigation, held, was defective and of no evidentiary value"
7. In the case in hand after spot enquiry, FIR has been lodged and order in this perspective have not been obtained from concerned Magistrate as alleged, therefore the investigation seems to have been defective; however seeing the circumstances which calls for further probe into the guilt of accused as is envisaged under subset. ion (2) of section 497, Cr.P.C.
8. As discussed supra I am inclined grant post arrest bail to applicant subject to his furnishing solvent surety in the sum of Rs.500,000/- (Rupees Five Hundred Thousand) only and P.R. Bond in the like amount to the satisfaction of learned trial Court.
Note:- The observations made hereinabove are tentative in nature and will not cause any harm to the proceedings at trial.