2026 PLP 163 (YLR)

Muhammad Ayub Khan Tareen, J.

Through this application, the applicant (accused) Akmal Khan son of Abdul Manan, seeking bail before arrest in a criminal case, vide FIR No.24/2024, dated 21st September 2024, under sections 5 and 23 of Foreign Exchange Regulation Act 1947 (Amendment Act 2020) read with section 109 P.P.C, registered at P.S. FIA CBC Quetta.

2. Facts of the case are that complainant Iqbal Khan Kakar, SI, FIA, CBC, Quetta got registered the above FIR with the averments that on receiving credible information regarding Hawala/ Hundi, the FIA raiding team reached at Bukhari Center, Qandhari Bazar Quetta and on identification of the source a person namely Hassan son of Ibraheem was stopped and on search, he was found in possession of Pakistani currency worth Rs.15,22,000/-, on asking the legal justification for possessing such a huge amount, Hassan responded that he sold 20,650 KSA Riyals to the applicant Akmal Khan without any legal justification or authority. Hence this case.

3. The applicant filed an application for pre-arrest bail, ad-interim bail was granted, but recalled vide order dated 19th December 2024, passed by the learned Additional Sessions Judge-I, Quetta; hence, this application with the same prayer. Ad-interim bail was granted, vide order dated 11th February 2025, passed by this Court.

4. I have heard the arguments advanced by the parties and gone through the record with their assistance.

5. Tentative assessment of the evidence shows that there is no direct evidence available on record to connect the applicant with the commission of alleged offence; the applicant was nominated in the FIR on the confessional statement of co-accused; such confessional statement is not admissible under Articles 38 and 39 of the Qanun-e-Shahadat Order 1984; the confessional statement of an accused cannot be used against the other in absence of any attending material produced by the prosecution. Reliance is placed on the cases titled Umeed v. the State (2013 YLR 1687) and Abdul Majid Afridi v. The State (2022 SCMR 676).

6. The contravention of section 5 of the Foreign Exchange Regulation Act 1947 entails total punishment as provided by section 23 of the ibid Act, is imprisonment which may extend to five years or with fine or with both. Since the alternate sentence of fine has also been provided, therefore, the applicant is entitled to the concession of bail on this ground alone.

7. No doubt the scope of bail before arrest is narrow, but not be rendered narrower on flimsy grounds and it should be effectively stretched to its limits in a case where an innocent person faces the ostensible danger of being arrested by the authorities.

8. The co-accused Hassan has already been enlarged on bail; the applicant is also entitled for bail on the ground that offence against accused fell outside the scope of prohibited clause contained in section 497, Cr.P.C, notwithstanding the fact that mandatory provision of law contained in the Foreign Exchange Regulation Act 1947 in respect of search and recovery had apparently not been complied with. Reliance is placed on the case titled Nisar Ahmad v. The State (2015 PCr.LJ 478). Co-accused had been allowed bail after arrest and during physical remand of accused person, nothing was recovered and no useful purpose was likely to be served, if the bail of applicant (accused) is not confirmed, because after arrest he could again be allowed bail on the ground that similarly placed co-accused was already on bail. When bail application of co-accused having one and the same role was allowed, then it could also be given the benefit of such bail on the ground of consistency, even at the stage of bail before arrest. Reliance is placed on the case titled Fida Hussain v. The State (2010 MLD 313). Similarly, the applicant claimed pre-arrest bail on the basis of principle of consistency as co-accused was attributed same role as that of the applicant. The State Counsel objected that pre-arrest bail was an extraordinary relief, which could be granted sparingly. Pre-arrest bail is an extraordinary relief and in case, such relief is not granted on the basis of said technical ground, applicant would be entitled to post arrest bail on the principle of rule of consistency soon after the pronouncement of bail refusing order by the court. The basic law is bail and not jail. By sending applicant (accused) behind the bars, no useful purpose would be served. Reliance is placed on the case titled Muhammad Azam Khan v. The State and another (2017 MLD 349).

9. The concept of bail before arrest is exceptional, it has to be exercised sparingly; the purpose behind it is to save innocent persons from false allegations, trumped up charges and malicious prosecution at the hands of the complainant party; it cannot be refused merely on the ground that the alleged offence is not bailable. The applicant made a case for bail concession before arrest and thus is entitled to remain to enjoy the same.

10. In view of the above, the application for the concession of pre arrest bail to the applicant Akmal Khan son of Abdul Manan, is allowed, and ad-interim bail granted to him, vide order dated 11th February 2025 by this Court is hereby confirmed. Observations, if any, made hereinabove shall not influence the case's merit at the trial. Above are the reasons of my short order dated 25th February 2025. JK/46/Bal. Bail confirmed.