2016 P Cr (PLP)

NISAR HUSSAIN KHAN, J.

Petitioner Muhammad Usman seeks his release on bail in case FIR No.72/2015, dated 5.9.2015, registered under sections 409/109, P.P.C., 4/23 Foreign Exchange Regulation Act, 1947, 3/4 Anti-money Laundering Act, 2010 of Police Station FIA CBC, District Peshawar.

2. It is the case of prosecution that FIA authorities, on receipt of reliable information about involvement of a person in illegal business of foreign currency, is carrying vehicle bearing No.VY-097 towards Chowk Yadgar, Peshawar. They rushed to the spot where they found the information correct and the person driving the said vehicle was seen coming to Chowk Yadgar, was stopped. He disclosed his name as Muhammad Usman. He was personally searched which resulted into recovery of American Dollars. According to him, the same were purchased by him from Manager of Malik Exchange Peshawar Saddar for handing over to Afsar Ali of Muslim Commercial Bank. Accordingly, aforesaid criminal case was registered against him.

3. Learned counsel for petitioner argued that section 409, P.P.C. is not applicable whereas section 4 of FER, 1947 entails punishment upto 2 years or fine. He maintained that mere possession of currency is no offence; that section 4 of the AML Act, 2010 provides punishment of 10 years provided requirement of law is satisfied. He maintained that even provisions of Anti-Money Laundering Act are not applicable merely for keeping the foreign currency.

4. Learned DAG vehemently opposed the grant of bail by contending that huge amount of foreign currency has been recovered, whereas maximum punishment under section 4 of AML Act, 2010 is 10 years, hence petitioner is not entitled to the concession of bail.

5. Arguments heard and record perused.

6. When learned DAG was confronted with applicability of section 409, P.P.C. as to whether in the circumstances of the case it has rightly been applied, he frankly conceded that it is not applicable. Section 23 of the Anti-Money Laundering Act provides maximum punishment of two years or with fine for contravention of restrictions embodied in section 4, section 10 and subsection (1) of section 12 and subsection (3) of section

20. As per allegation of the FIR, foreign currency was recovered from the petitioner/accused which was purchased by him from Manager of Malik Exchange, Peshawar Saddar and was going to hand over the same to one Afsar Ail an Officer of Muslim Commercial Bank. Though punishment provided under section 4 of AML Act, 2010 entails punishment of 10 years, but as per requirement of section 3, the defining clause of the crime, prosecution is yet to establish in terms of sections 3(a), (b) and (c) that it is the proceeds of crime. The investigation Agency has not investigated the matter on these lines to meet the requirements of defining clause of the crime which at the moment makes out case of the petitioner as that of further enquiry.

7. Above are the reasons of my short order of even date which is reproduced herein below:- "For reasons to be recorded later on, this bail petition is allowed and the petitioner Muhammad Usman is admitted to bail, in case FIR No.72, dated 05.09.2015, under sections 409/109, P.P.C. 4/23, FER Act, 1947 3/4, AML Act, 2010, of Police Station FIA, CBC, Peshawar, provided he furnishes bail bonds in the sum of Rs. Five lac with two sureties, each in the like amount to the satisfaction of Illaqa/Judicial Magistrate who shall ensure that the sureties are local, reliable and men of means." HBT/393/P Bail granted.