1. ' The facts leading to present application for bail are that applicant/ accused Saeed Khan is facing trial in Case No,27 of 1999 before learned Special Judge (Customs and Taxation) Karachi under section 156(1)(8)(14) of the Customs Act, 1969 which has arisen out of F.I.R No,P-1 of 1999 Departure JTC of Police Station Customs (Preventive) Karachi.
2. ' The brief facts of the prosecution case as disclosed in the F.I.R. Lodged by Ali Mehdi Rizvi, Senior Preventive Officer, Custom House, Karachi on 27-2-1999 are reproduced hereinbelow in extenso: "On 27-2-1999, while I was performing my duty at the International Departure Hall, Jinnah Terminal Complex, Quaid-e-Azam International Airport, Karachi, and attending to the out going passengers, leaving for Dubai, by EK-601, suspected passenger namely Saeed Khan son of Ghufran Ali Khan and before subjecting into personal search, sought his declaration whether he was carrying any contraband goods or any currency etc. In his baggage or on his person, which he denied. Since something was found bulging from inside his shirt/pant I asked the above named person, whether he would like to be searched before a Magistrate or a Gazetted Officer, but he did not opt, for the option afforded to him. Accordingly his person was searched in presence of Musheers namely:
(1) Abid Hussain Awan, P.C. No,582, and
(2) Nisar Ahmad, Cleaner C.A.A., as a result of which Indian Currency as Specified in column No,4 was found concealed under neath his shirt/pant, which he was wearing at the time of his departure. The act of concealment and misdeclaration was sufficient ground that he had mala fide intention and that is why he made misdelcaration, as well as went to the extent of misdeclaration. As consequently, the abovementioned Indian Currency was seized under a Mushirnama prepared on spot. The passenger/accused named above was accordingly arrested and served with a Notice under section 171 of the Customs Act, 1969.
3. ' All the legal formalities of seizure and arrest were made under the supervision of Deputy Collector of Customs, Quaid-e-Azam International Airport, Karachi.
4. ' Investigation is in progress. F.I.R. Is lodged accordingly."
5. ' After usual investigation applicant/accused was sent up to stand trial: ' The applicant/accused applied for bail before the learned trial Court but his bail plea was declined by impugned order dated 20-3-1999.
6. ' I have heard Mr. S.M. Iqbal, learned counsel for the applicant/accused and Mr. Musheer Alam, learned Standing Counsel for the State. The latter conceded to the grant of bail.
7. ' The perusal of record shows that in order to create a liberal environment for savings and investments, and other matters relating thereto; economic reforms were introduced by way of "Protection of Economic Reforms Act, 1992" (Act XII of 1992). It came into force on 23rd July, 1992.
8. ' The definition of "economic reforms" is given under clause (b) of section 2 of the Act XII of 1992, which is reproduced hereinbelow: "2. Definitions.--- (1) In this Act, unless there is anything repugnant in the .Subject or context,-
(a) ............................................................................................................................
(b) 'economic reforms' means economic policies and programmes, laws and regulations announced, promulgated or implemented by the Government on and after the seventh day of November, 1990, relating to privatization of public sector enterprises, and nationalised banks, promotion of savings and investments, introduction of fiscal incentives for industrialization and deregulation of investment, banking, finance, exchange and payment systems, holding and transfer of currencies; and (c)..............
9. ' Section 4 of the above said Act relates to bringing, holding, selling and taking out foreign currency.
10. The same is reproduced hereinunder for convenience sake: "4. Freedom to bring, hold, sell and take out foreign currency. All citizens of Pakistan resident in Pakistan or outside Pakistan and all other persons shall be entitled and free to bring, hold, sell, transfer and take out foreign exchange within or out of Pakistan in any form and shall not be required to make a foreign currency declaration at any stage nor shall any. One be questioned in regard to the same."
11. ' It will also be pertinent to reproduce hereinunder F.E. Circular No,41, dated 21-7-1998 issued by the State Bank of Pakistan Foreign Exchange Department, Central Directorate, Karachi for ready reference:-- "State Bank of Pakistan, Foreign Exchange Department, Central Directorate Karachi.
12. July 21, 1998.
13. ' F.E. Circular No,41 ' All Authorized Dealers in Foreign Exchange.
14. ' Dear Sirs, ' Attention of Authorised Dealers is invited to SBP Notification No,F.E.1/91-SB, dated the 26th February, 1991 (Appendix III page 15) and paragraph 8 and para. 11(d), Chapter XVIII of the Foreign Exchange Manual, in terms of which persons travelling from Pakistan to foreign countries can take out with them foreign currency without limit. It has been decided to place a maximum ceiling of US $ 10,000 (or its equivalent in other foreign currencies). A copy of Notification No,F.E.2/98 SB, dated July 21, 1998 issued in this regard is enclosed. Accordingly, paragraph 8 Chapter XVIII is deleted and paragraph 11 is replaced by the following:-- Export of' ForeignIn pursuance of subsection (2) of Exchange Instrumentsthe Act the State Bank has issued Notification NO.F.E:2/98-SB, dated July 21, 1998 granting general permission to:--
(a) Authorised Dealers to send out of Pakistan, cheques, drafts or bills of exchange which have been acquired by them in normal course of their business and within the terms of their authorization.
(b) Any person maintaining an account expressed in a foreign currency, and held under any permission, general or otherwise, granted by the Sate Bank of Pakistan to take or send out of Pakistan, cheques or drafts drawn on such account.
(c) Any person, other than a person to whom foreign exchange is issued for traveling purposes only, to send out of Pakistan foreign exchange issued to him by an Authorized Dealer.
(d) Any person to take out of Pakistan foreign exchange issued to him by an Authorized Dealer in Pakistan and endorsed on his passport.
(e) Any person not ordinarily resident in Pakistan to take out of Pakistan the unspent amount of foreign currency brought by him into Pakistan provided the period of his continuous stay in Pakistan does not exceed three months, and (0 Any person to take out of Pakistan US $ 10,0(X) or equivalent thereof in other foreign currencies."
15. Yours faithfully (Sd.) (Muhammad Mahmood Ahmad)
16. Joint Director."
17. From the plain reading of the above referred provisions of (Act XII of 1992) and Notification No,F.E.2/98-SB, dated July 21,,1998 it is crystal clear that any person can take out of Pakistan foreign currency to the extant of US $ 10,000 or equivalent thereof in other foreign currencies. The Indian Currency of Rs,3,97,000 recovered from the possession of the applicant/accused were not over US $ 10,000 or equivalent but it comes within the ambit of general permission. Thus, the bail plea of applicant/accused merits consideration. Consequently he is granted bail in the sum of Rs,100,000 (Rupees one lac only) and P.R. Bond in the like amount to the satisfaction of the trial Court.
18. ' By my short order dated 7-4-1999 bail was granted to the applicant/accused and above are the reasons for the same.