2022 C L D 484
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ
The STATE through Deputy Attorney General ---Appellant
Versus
ZAHID KHAN and others ---Respondents
Criminal Acquittal Appeals Nos. 207, 257, 258 and 259 of 2020, decided on 30th September,
2021.
(a) Administration of justice ---
----Practice and procedure---Ancillary proceedings ---Scope ---Such proceedings or action
does not overrule a provision of substantive law, which cannot be defeated nor any such
directio n can be made by giving it an overriding effect over substantive provision of Act in
question.
(b) Foreign Exchange Regulations Act (VII of 1947) ---
----Ss. 4(1), 5, 23 & 23- A(6)--- Criminal Procedure Code (V of 1898), S. 417---Appeal
against acquittal ---Fo reign currency, recovery of ---Requisite authorization, absence of ---
Effect ---Accused persons were acquitted by Trial Court as there was no requisite
authorization by Federal Government or State Bank of Pakistan to register FIR in question---Validity ---Wher e law had provided a specific procedure or mechanism intended to be
undertaken against a person by any forum either judicial, quasi -judicial or executive, if such
action was patently illegal or against mandate of law on the subject, specially the express provisions and implied spirit of statute, which if allowed to stay intact, would tantamount
to/and would cause serious breach of legal rights of a citizen, High Court under its Constitutional jurisdiction could come for his rescue ---Complainant made departu re from
mandatory provision of Foreign Exchange Regulations Act, 1947, and had committed a serious illegality, which if allowed to stay would amount to serious breach of legal fundamental right of citizen guaranteed by the Constitution--- Federal Investigat ion Agency
did not act in the manner prescribed by law, therefore, maxim "justice should prevail no matter if the heaven falls" had come to play ---High Court declined to interfere in acquittal of
accused persons recorded by Trial Court ---Appeal was dismiss ed in circumstances.
2013 PCr.LJ 12; 2017 PCr.LJ 69 and 2018 YLR 2668 ref.
Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.
Hameedullah Babar, Assistant Director (Legal) FIA for Appellant (in Criminal
Acquittal Appeals Nos. 207, 257, 258 and 259 of 2020).
Faiz Ahmed for Respondent (in Criminal Acquittal Appeal No. 207 of 2020).
Naveed Ahmed Muhammad Hassani for Respondent (in Criminal Acquittal Appeal
No. 257 of 2020).
Muhammad Zakir Kakar for Respondent (in Criminal Acqui ttal Appeal No. 258 of
2020).
Muhammad Sultan Afridi for Respondent (in Criminal Acquittal Appeal No. 259 of
2020).
Date of hearing: 23rd September, 2021.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J .---These Criminal Acquittal
Appeals under section 23- A of the Foreign Exchange Regulation Act, 1947 ('FERA') read
with section 417, Cr.P.C. have been filed by the State through Deputy Attorney General of
Pakistan against the judgments and orders dated 15.07.2020 and 19.08.2020 ('impugned judgment' ) respectively passed by Additional Sessions Judge -IX/Tribunal Quetta and Special
Tribunal/Sessions Judge, Quetta ('trial Court'), whereby, the applications under section 265-K, Cr.P.C. filed by the respondents were accepted and they were acquitted of the charge.
Since common question of law is involved in these cases, therefore, we are proposed
to dispose of Criminal Acquittal Appeals Nos. 207, 257, 258 and 259 of 2020 through his common judgment.
2. Criminal Acquittal Appeal No.207 of 2020
Brief facts of the case are that an FIR bearing No.18/2018, was lodged on a complaint of
Shafaat Ali, Deputy Director Foreign Exchange Operation Unit, State Bank of Pakistan Quetta with Police Station FIA CBC Quetta, under sections 4(1), 5/23 of the Foreign Exchange Regulation Act, 1947 read with section 109, P.P.C., with the allegation that on 27.09.2018 at about 03:10 p.m., the FIA officials conducted raid at Flat No. 11, Asmat Center Jamal -ud-Din Afghani Road, Quetta when the accused found present were asked to
produc e permit/license regarding running the business of Hawala Hundi, but they failed to
produce any valid documents; that when on search thereof, Pakistani and foreign currencies, cheque books leaves and ATM cards etc were recovered.
After registration of FIR, challan was submitted before the trial Court, whereby, a charge
was framed, to which they pleaded not guilty and claimed trial. The prosecution in order to prove the accusation, produced as many as three PWs and after completion of the prosecution's evide nce the accused were examined under section 342, Cr.P.C. wherein, they
once again professed their innocence, however, they neither opted to record their statements
under section 340(2), Cr.P.C. nor produced any evidence in defence. The trial Court after
evaluating the material available on record and hearing the parties, acquitted the
accused/respondents of the charge vide impugned judgment dated 15.07.2020.
Criminal Acquittal Appeal No. 257 of 2020.
Brief facts of the case are that an FIR bearing No.21/20 19, was lodged on a report of
complainant viz, Sher Jan, Director State Bank of Pakistan Quetta with Police Station FIA CBC Circle Quetta, under sections 4(1), 5/23 of the Foreign Exchange Regulation Act, 1947, with the averment that on 28.10.2019 at about 05:30 p.m., pursuant to spy information, the
FIA officials conducted a raid at a Flat situated at Chawal Market Taftan, when the accused found present was asked to produce any valid permit/license regarding running the business of Hawala/Hundi, but he fai led to produce any such document; that when on search thereof,
Pakistani currency, a Nokia Mobile, six registers containing details of Hawala/Hundi, Note Books having record of Hawala/Hundi 17 pages/chits and a Citizen Calculator were recovered, which were taken into possession.
After registration of FIR, challan was submitted before the trial Court; that charge
framed was pleaded not guilty. Meanwhile, the accused/respondent preferred an application under section 265- K, Cr.P.C. The trial Court after heari ng the parties accepted the
application by acquitting him of the charge vide impugned order dated 19.08.2020. Hence the instant appeal
Criminal Acquittal Appeal No. 258 of 2020.
Brief facts of the case are that an FIR bearing No.13/2019, was lodged on a r eport of
complainant viz, Muhammad Ali, Deputy Director State Bank of Pakistan Quetta with Police Station FIA CBC Circle Quetta, under sections 4(1), 5/23 of the Foreign Exchange Regulation Act, 1947 read with section 109, P.P.C., with the allegation that on 26.03.2019 at about 11:45 a.m., pursuant to a spy information, FIA officials conducted raid at a office/shop No.1 in Rozi Khan Market Ain- ud-Din Street, Liaqat Bazar Quetta, when the accused found
present were asked to produce any valid permit/license r egarding running the business of
Hawala/Hundi, but they failed to produce any such document, when on search of their shop, a cheque book titled Naimat Commission Agent, Cheque leaves/instrument, deposit Slips, a Visa ATM Card, eight (8) chits/receipts of H awala/Hundi, two (02) pages containing detail
of Hawala/Hundi, A Note Books, an Account statement of UBL, a Certificate issued by UBL, a laptop HP Core -i-3, a mobile Samsung edge white color, a mobile Samsung dark
blue colur and a network video recorder we re recovered and taken into possession.
After registration of FIR, challan was submitted before the trial Court, a charge
framed whereof, was pleaded not guilty and claimed trial. Meanwhile, the accused/respondents preferred an application under section 265- K, Cr.P.C. for their acquittal.
In result whereof the accused/respondents were acquitted of the charge vide impugned order dated 19.08.2020. Hence the instant appeal.
Criminal Acquittal Appeal No. 259 of 2020.
Brief facts of the case are that an FIR bearing No.16/2019, was lodged on a report of
complainant viz, Shafaat Ali, Deputy Director State Bank of Pakistan Quetta with Police
Station FIA CBC Circle Quetta, under sections 4(1), 5/23 of the Foreign Exchange Regulation Act, 1947 read with section 109, P.P.C., with the allegation that on 21.06.2019 at
about 04:00 p.m., pursuant to a spy information, the FIA officials conducted raid at Flat
No.10, in Business Plaza, Mansafi Road Quetta, when the accused found present were asked
to produce any valid permi t/license regarding running the business of Hawala/Hundi, but
they failed to produce any such document and on search, a cheque leaves, a register
containing detail of Hawala/Hundi, a Mobile Phone Samsung Galaxy and a mobile Samsung were recovered and taken into possession.
After registration of FIR, challan was submitted before the trial Court, a charge
framed whereof was pleaded not guilty and claimed trial. Meanwhile, the accused/respondents preferred an application under section 265- K, Cr.P.C. for their acquittal.
In result whereof, the accused/respondents were acquitted of the charge vide impugned order dated 19.08.2020. Hence the instant appeal.
3. Mr. Hameedullah Babar, Assistant Director (Legal) FIA while assailing the impugned
judgments and orders passed by the courts below, at the very outset referred an SRO 588(I)2016 and inter alia contended that all offences punishable under section 23 of the FERA, 1947 were declared cognizable and non -bailable till 30.06.2021; that since through
the referred to SRO, all the offences have already been declared cognizable and non- bailable,
therefore, the orders passed by the Special Court(s) in these cases are not sustainable. He also referred a copy of an enactment namely, 'Foreign Exchange Regulation (Ame ndment)
Act, 2020' ('Act, 2020'), and stated that after introducing the said Act, the Act, 1947 has suitably been amended and now there is no embargo upon courts to take cognizance in FIR
case for violating the provisions of Act, 1947; that the trial Court has passed pre -mature
order(s) when neither any evidence was allowed to be led nor the accused/respondents have successfully discharged the onus of their innocence; that sufficient incriminating evidence was available on the case file which would have ult imately concluded against the
accused/respondents, but throttling the prosecution at the very inception of the case proceedings amounts to 'justice hurried, justice buried'. He therefore, urged for setting aside the impugned orders/judgments and prayed tha t the cases be remanded to the trial Court for
disposal on merits.
4. Mr. Faiz Ahmed, Advocate for respondent in (Criminal Acquittal Appeal No.207 of
2020), Mr. Naveed Ahmed Muhammad Hassani, Advocate for respondent in (Criminal Acquittal Appeal No.257 of 2020), Mr. Muhammad Zakir Kakar, Advocate in (Criminal Acquittal Appeal No.258 of 2020), and Mr. Muhammad Sultan Afridi, Advocate for respondent in (Criminal Acquittal Appeal No.259 of 2020) being unison, strongly opposed the contention and all of them have been heard at reasonable length. They also placed reliance on following reported and un -reported judgments of this Court and of other
jurisdictions.
"(Unreported judgments): 2013 PCr.LJ 12, 2017 PCr.LJ 69, 2018 YLR 2668
(Unreported judgments): Criminal Appeal No. 55/2019, Criminal Acquittal Appeal
No. 276/2019, Criminal Acquittal Appeal No. 98/2020, Criminal Acquittal Appeal
No.96/2020".
5. We have heard Assistant Director (Legal) FIA and the counsel for the private
respondents at reasonable length and have also gone through the record of the case with their
able assistance. However, before dilating upon the merits of case, it would be apt to reproduce the sections 19(3) and 23(3) of the FERA, 1947: which respectively stipulate: -
"Section 19( 3): On a re -presentation in writing made by a person authorised in this
behalf by the Federal Government or the State Bank and supported by a statement on oath of such person that he has reason to believe that a contravention of any of the provisions of hi s Act has been or is being or is about to be committed in any place or
that evidence of the contravention is to be found in such place, a District Magistrate, or a Sub- Divisional Magistrate or a Magistrate of the first class, may by warrant,
authorise any police officer not below the rank of sub- inspector :
(Emphasis provided).
(a) to enter and search any place in the manner specified in the warrant; and
(b) seize any books or other documents found in or on such place." Section 23(3) (before amendment):
"(3) A Tribunal shall not take cognizance of any offence punishable under this section and not declared by the Federal Government under the preceding subsection to be cognizable for the time being, or of an offence punishable under sections 122 and 150 of the Income Tax Ordinance, 1979 (XXXI of 1979) as applied by section 19, except
upon complaint in writing made by a person authorised by the Federal Government or the State Bank in this behalf;
Provided that where any such offence in the contravention of any of the provision of this Act or any rule, direction or order made thereunder which prohibits the doing of an act without permission and is not declared by the Federal Government under the preceding subsection to be cognizable for the time being, no suc h complaint shall be
made unless the person accused of the offence has been given an opportunity of showing that he had such permission.
(3A) A person authorised under subsection (3) to make a complaint in writing shall, if he is not already a public serv ant within the meaning of section 21 of Pakistan Penal
Code (Act XLV of 1860), be deemed to be a Public Servant within the meaning of that section.
Section 23(3) (after amendment):
'In subsection (3),
(i) The expression "and not declared by the Federal Government under the preceding
subsection to be cognizable for the time being" shall be omitted; and
(ii) in the proviso, the expression "and is not declared by the Federal Government under the preceding subsection to be cognizable for the time bei ng" shall be omitted and for
full stop, at the end, a colon shall be substituted and thereafter the following new
provisos shall be added, namely: -
"Provided further that i f a person not authorized under sections 3, 3A or 3AA is found involved in illegal foreign exchange business the complaint as required in this
subsection shall not be required"; and
(d) after subsection (3A) the following new subsection shall be inserted namely: -
"(3B) A Tribunal taking cognizance under subsection (1) shall conclude t he
proceedings within six months. The Tribunal may, by giving cogent reason in writing, extend the said period by six months further".
6. The afore quoted provisions unequivocally reveal that no FIR under the provisions of
FERA, 1947 (as amended by Act No.X of 2020) can be registered, rather its subsection (3) of section 19 stipulates with a precondition of 'authorization by the Federal Government or State Bank of Pakistan which shall be duly supported by a statement on oath of such person with regard to ha ving reasons to be believed that a contravention of the Act has been or is
being or is about to be committed'. Similarly section 23(3) of Act, 1947, also contains a non -
obstante clause by stipulating that 'Tribunal shall not take cognizance in this section ......
except upon complaint in writing made by a person authorized......"
Thus, no cavil is left to hold that registration of instant cases was absolutely without
requisite authorization, while the court(s) below has (have) also rightly acquitted the accused/respondents keeping in view the impediment of complaint by a authorized person instead of registration of FIR.
7. Moreover, it is equally correct and admitted position that any ancillary proceedings or
action does not overrule a provision of substant ive law, which cannot be defeated nor any
such direction can be made by giving it an overriding effect over the substantive provision of the Act in question. It is also observed that the Federal Government itself, realized certain impediment on taking of a cognizance by the Court, therefore, initially an SRO was issued.
Thereafter, when it was further realized that SRO was not suffice to address the restriction of law, then again the law was amended vide Act No.X of 2020.
8. That still, it may not be out of place to observe here that though in the SRO, the
offences under the FERA, 1947 were declared cognizable and non- bailable till 20.6.2021,
and thereafter similar nature of provisions were transformed by means of amendments
introduced through Act X of 2020. But neither in the referred to SRO 588(I)/2016 nor the
amendments made through Act X of 2020, section 19(3) of FERA Act, 1947 was amended
nor the precondition of taking of a cognizance except upon a complaint, have been amended, omitted or altered. Thus, it can be held with clarity that declaring an offence under the FERA 1947 as amended vide Act X of 2020, cognizable and non- bailable, still does not exclude the
condition of filing of a complaint with authorization of the State Bank of Pakistan and thereaf ter, taking of a cognizance by the court except upon complaint and not otherwise.
9. In view of afore referred provisions of law, we are unable to comprehend that why
such a big mistake was committed by a law enforcing agency, who was duty bound to
prevent the illegal foreign exchange business. There is no denial of the fact that the illegal
foreign exchange business is causing serious monetary losses to the public exchequer, which
is accumulated and identified as heavy losses. Thus, it is high time to curb the persons found
involved in illegal foreign exchange with iron hands mainly for a reason that the businessmen of legal foreign exchange shall not be penalized for any reason.
10. Thus, despite the fact that by now, it is more that settled that when a la w requires
anything to be done in a particular manner, it should be done in that manner and not otherwise. Reference in this behalf can be made to a reported judgment of the Hon'ble apex Court case titled as 'Muhammad Anwar and others v. Mst. Ilyas Begum and others' (PLD 2013 SC 255). It is mandate of Constitution of Islamic Republic of Pakistan, 1973 being an inalienable right of a every citizen to enjoy the protection of law and to be treated in accordance with law. Thus, where the law provides a specific procedure or mechanism
intended to be undertaken against a person by any forum either judicial, quasi -judicial or
executive, if, the said action is patently illegal or against the mandate of law on the subject, specially the express provisions and the imp lied spirit of statute, which if allowed to stay
intact, would tantamount to/and would cause serious breach of legal rights of a citizen, the High Court under its constitutional jurisdiction can come for his rescue.
11. In these cases, as observed hereinab ove, that the appellant/ complainant had made
departure from the mandatory provisions of Act, and thus, has committed a serious illegality, which if allowed to stay, shall amount to serious breach of legal fundamental right of the citizen guaranteed by the Constitution. The FIA have not acted in the manner prescribed by
law, therefore, a well celebrated maxim comes in to play, which stipulates that 'justice should prevail no matter if the heaven falls'.
Thus, in view of above stated reasons, impugned order s and judgments rendered by
courts below being unexceptional do not warrant any interference by this court. Consequently, the appeals being bereft of any merits are dismissed accordingly.
MH/12/Bal. Appeals dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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