Abdul Karim vs State S — 2024 YLR 2635 KARACHI-HIGH-COURT-SINDH

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Abdul Karim VS State S. 497---Foreign Exchange Regulation Act (VII of 1947),Ss. 4, 5, 8 & 23---Payments through informal banking channel of "hawala"/"hundi"---Post-arrest bail, grant of---Allegation against the petitioner/accused (who owned/operated an electronic goods shop) was that he got people to bring phones and electronic tablets from Dubai to sell in Pakistan but made payments to the sellers through the informal banking channel of "hawala"/ "hundi"---First Information Report was registered against the petitioner/ accused under Foreign Exchange Regulations Act, 1947, (FERA) beside other laws including Customs Act, 1969---Bail petition moved by petitioner/accused was dismissed by the Tribunal under FERA (' the Tribunal')---Held, that evidence against the petitioner /accused included` his phone's WhatsApp messenger allegedly carrying incriminating messages like receipts of purchases---However, said messages were yet to be thoroughly scrutinized, and it was yet to be determined how payments were made abroad, their exact mode, and to whom they were made---Evidence which would stand the test of legal scrutiny was yet to be obtained by the Federal Investigating Agency( FIA)---On the contrary, the FIR seemed to reflect that the petitioner paid Pakistan Rupees to specific suppliers, whose details were mentioned in the FIR---Impugned bail dismissal order seemed to have taken the smuggling of electronic items as its basis, whereas the Tribunal was not seized of that part of the alleged crime---1500 Saudi Rivals and 5 Omani Riyals were found in the petitioner's possession---Possessing foreign currency was not a crime, and it was not a large amount for a person to keep---Petitioner should be allowed to explain at trial and provide a record of the mode in which he had made payment to people from whom he claimed to have bought the electronic items---Electronic items in question had been seized and were in the possession of law enforcers---Present bail application did not pertain to the alleged offences under the Customs Act, 1969---Offence with which the petitioner was charged under the FERA carried a potential sentence of up to 5 years, and although not bailable, it fell within the non-prohibitory clause of S.497, Cr.P.C---No apprehension of the petitioner being a flight risk had been raised by the FIA---Law Enforcers had already taken electronic goods and foreign currency into their possession---Monetary loss already caused to the petitioner was of such nature that the chances of him repeating the offence were greatly diminished---Apart from the forensics of the petitioner's phone, the investigation was complete and the chances of the petitioner tinkering with the evidence were also low---No extraordinary or exceptional grounds were found to deny bail to the petitioner---Bail was granted to the petitioner, in circumstances. Citation Name: 2024 YLR 2635 KARACHI-HIGH-COURT-SINDH Abdul Karim VS State S. 497---Constitution of Pakistan, Art. 189---Bail---Offences not falling within prohibitory clause of S.497, Cr.P.C---Principles/guidelines laid down by the Supreme Court of Pakistan---Doctrine of stare decisis---There has been a substantial rise in cases originating from the alleged offences, the punishment of which falls within the non-prohibitory clause of S.497, Cr.P.C.---High volume of bail applications coming to the High Court pertain to such cases---Surprisingly, some Trial Courts deny bail even in cases of bailable offences---Consequently, the High Court is further burdened, apart from the drain on the State exchequer and the litigants expenses; this is neither fair to a person nor in compliance with the principles enunciated by the Supreme Court on the grant of bail falling within the non-prohibitory clause of S.497, Cr.P.C.---When the Supreme Court of Pakistan has laid down principles to follow, it is incumbent upon all Courts to comply with the same---Only exception is where a court gives its reasons to distinguish the case before it from the ambit of cases to which the Supreme Court rulings apply---In many orders of the Trial Courts, it has been noticed that the principles enunciated by the Supreme Court are not complied with---Bail is denied even in bailable cases---Pakistan is a country that follows the doctrine of stare decisis---All Courts are bound by principles regarding precedent under Art. 189 of the Constitution---High Court urged the lower courts to strictly comply with the Supreme Court's guidelines and evaluate bail applications in the light thereof.

Abdul Karim vs State S — 2024 YLR 2635 KARACHI-HIGH-COURT-SINDH

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