2020 M L D 1921
[Balochistan]
Before Abdullah Baloch, J
ABDUL RAZZAQ and another ---Appellants
versus
The STATE--- Respondent
Criminal Appeal No.62 of 2019, decided on 2nd July, 2020.
(a) Foreign Exchange Regulation Act (VII of 1947) ---
----Ss. 4, 5 & 23--- Penal Code (XLV of 1860), S.109--- Indulging in business of
hundi/hawala ---Issuance of a warrant by the court ---Requirements ---Before carrying out any
proceedings, a complaint in writing by a person authorized in that behalf by the Feder al
Government or by the State Bank of Pakistan supported by statement of that person on oath
was a mandatory requirement of law before issuance of a warrant by the court of competent jurisdiction.
(b) Foreign Exchange Regulation Act (VII of 1947) ---
----S s. 4, 5 & 23--- Penal Code (XLV of 1860), S.109--- Indulging in business of
hundi/hawala ---Appreciation of evidence ---Benefit of doubt ---Accused was charged for
carrying out foreign exchange business in an unauthorized manner ---Record showed that
Federal Inv estigation Agency (FIA) without adopting the required procedure and without
seeking the permission of the concerned Magistrate had carried out all the proceedings i.e. conducted the raid, entered and searched the place of occurrence, collected the Pakistan and
foreign currency, other articles and also arrested the accused persons ---No search warrant,
either from the Tribunal/Sessions Judge or from the concerned Magistrate was obtained in view of S.23 of the Foreign Exchange Regulation Act, 1947---Admittedly , no permissions
with regard to arrest of the accused and for search of their shop were sought or granted---Despite the fact that the raid was conducted on the basis of prior information, the Investigating Officer had failed to associate any independent wi tness in the recovery
proceedings nor the local police, within whose jurisdiction the raid was carried out, was associated ---Entire recovery proceedings carried out by the FIA appeared to be doubtful ---
Circumstances suggested that the FIA illegally and without any mandate of law raided the shop of the accused and thereby travelled beyond their authority as the required procedure was not followed rather violated ---Case of prosecution from its very inception was defective,
not maintainable and the impugned or der of conviction passed by the Trial Court liable to be
set-aside, which was founded on violation of prescribed rules and laws ---Appeal against
conviction was allowed, in circumstances.
Alam Jan v. FIA Police Station, Gilgit and another 2017 PCr.LJ 69 a nd Ghani -ur-
Rehman v. The State 2015 MLD 1438 rel.
(c) Administration of justice ---
----If law required a thing to be done in a particular manner it must be done in the same
manner as provided under the law ---Deviating from the prescribed procedure amounte d to
violation of law.
(d) Administration of justice ---
----Mandatory requirements of law, which were pre -requisites, if not fulfilled, the entire
proceedings, would be nullified in the eyes of law. Mehmood Sultan Afridi for Appellants.
Nadeem Akhtar, A ssistant Attorney -General for the State.
Date of hearing: 26th June, 2020.
JUDGMENT
ABDULLAH BALOCH, J .---This judgment disposes of Criminal Appeal No.62 of
2019 filed by the appellants Abdul Razzaq and Abdul Manan, both sons of Haji Janan,
against the judgment dated 9th December 2019 (hereinafter referred as, "the impugned
judgment") passed by learned Special Judge Foreign Exchange Tribunal/Sessions Judge, Quetta (hereinafter referred as, "the trial Court"), whereby the appellants were convi cted
under Section 23 of the Foreign Exchange Regulation Act, 1947 and sentenced for the period already undergone with fine of Rs.30,000/ - (Rupees Thirty Thousand only) each or in default
thereof to further suffer two months' S.I. each.
2. Facts of the cas e are that on 9th August 2019 the complainant Shafaat Ali, Deputy
Director, State Bank of Pakistan lodged FIR No.15 of 2018, at FIA CBC Quetta under Section 4(1)/5/23 FER Act, 1947 read with Section 109 P.P.C., with the averments that branches of M/s Karwa n Exchange Company- B (Pvt) Ltd. despite withdrawal/cancellation of
permission by the State Bank of Pakistan are still being carried out foreign exchange business in an unauthorized manner. On the aforesaid date at 3.40 p.m., the FIA authorities conducted r aid at shop No.94, Bukhari Centre Qandhari Bazar, Quetta, where the appellants
were present and the search of said shop was resulted into recovery of Pakistani, foreign currencies etc. Details whereof are as under:
i. Rs.402,500/ -
ii. US$ 400/ -
iii. UAE Dirham 2015/ -
iv. EURO 600/ -
v. Afghani 13310/ -
vi. Irani Tuman 10,315,000/ -
vii. Thai Bhatt 800/ -
viii. Saudi Riyal 53200/ -
ix. One notebook pertaining Hawala Hundi record.
x. One Roznamcha.
xi. Nokia Mobile Model No.206.
xii. One Pink Notebook
xiii. One laptop (HP Pavilion).
All the above mentioned articles were taken into possession through recovery memo
in presence of witnesses.
3. After completion of investigation, challan of the case was
submitted before the trial Court and trial commenced . At the trial, charge was framed to
the appellants, who pleaded not guilty and claimed trial. At the trial, the prosecution
produced five (05) witnesses. The appellants were also examined under Section 342 Cr.P.C. However, neither the appellants recorded their statements on oath under Section 340(2) Cr.P.C. nor produced any witness in their defence. On conclusion of trial and after hearing arguments, the trial Court convicted and sentenced the appellants as mentioned above in para No.1, vide impugned judgm ent dated 9th December 2019. Whereafter, instant appeal has
been filed.
4. Heard the learned counsel for parties and perused the record with their able
assistance. It is transpired from the contents of FIR that on receipt of information, the FIA authorities conducted a raid in the shop of appellants situated at Qandahari Bazar Quetta and the recovery of foreign currency and certain other articles were effected. However, it has been observed that for conducting a search and for arrest of an accused involved in such like
crimes, a specific procedure has been laid down under Section 19 (3) of the Foreign Exchange Regulation Act, 1947, which for facilitation is reproduced, as under: -
"On a representation in writing made by a person authorized in this behalf by the Federal Government or the State Bank and supported by statement on oath of such person that he has reason to believe that a contravention of any of the provisions of this 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, Sub- Divisional
Magistrate or a Magistrate of the First class, may by warrant, authorize any police
officer not below the rank of Sub- Inspector -
(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.
Bare reading of above provision of law made it clear that before ca rrying out any such
proceedings, a complaint in writing by a person authorized in this behalf by the Federal
Government or by the State Bank of Pakistan supported by statement of that person on oath
is a mandatory requirement of law before issuance of a wa rrant by the court of competent
jurisdiction. In the case in hand, the FIA Authorities without adopting the above procedure
and without seeking the permission of the concerned Magistrate have carried out all the proceedings i.e. conducted the raid, entered and searched the place of occurrence, collected
the Pakistani and foreign currency, other articles and also arrested the appellants. It is settled
provision that when law requires a thing to be done in a particular manner it must be done in
the same manner as provided under the law, hence deviating from the prescribed procedure amounts to violation of law. Besides, no search warrant, either from the Tribunal/Sessions Judge, or from the concerned Magistrate were obtained in view of Section 23 of the Act,
ibid, which provides that a Tribunal shall have all the powers of a Magistrate of the First
Class in relation to criminal trial, and shall follow as nearly as may be the procedure
provided in the Code of Criminal Procedure, 1898, for trial before such Magist rate, and
besides others it is empowered to direct for arrest of accused and issue search warrants. Admittedly, no permissions with regard to arrest of the accused and for search of their shop were sought or granted. It has also been observed that despite the fact that the raid was conducted on the basis of prior information, but the I.O. has failed to associate any independent witness in the recovery proceedings nor the local police, within whose
jurisdiction the raid was carried out, was associated. Thus, the entire recovery proceedings
carried out by the FIA appears to be doubtful. Reliance in this regard is placed on the case of Alam Jan v. FIA Police Station, Gilgit and another, 2017 PCr.LJ 69, wherein a Division Bench of Gilgit -Baltistan Chief Court ha s held as under: -
"6. After hearing the parties and going through the mandatory provisions of Section-
I9, it is noted with regret that FIA authorities have transgressed their authority. Section 19(3), clearly depicts that before carrying out any proceeding under the above Act, there must be a complaint in writing made by a person authorized in this behalf by the Central Government or by the State Bank of Pakistan that the contravention is taking place or likely to be taken place in the complaint should als o be supported by a
statement of that person on Oath and only after fulfillment of the above criteria any proceedings could be initiated against the delinquent."
Similar view has been taken by the Peshawar High Court in the case of Ghani -ur-
Rehman v. the State 2015 MLD 1438, wherein it has been held as under:
"Keeping in view the above mentioned sections it is hard to understand as to how complainant raided the shop 'Farooq Traders' Main Bazaar Mingora without obtaining any search warrant either from the Tribunal/Sessions Judge or from the concerned Magistrate. It has also been found that despite the fact that the raid was conducted on
the basis of prior information but the Investigating Officer neither associated
independent witnesses with the search and seizure process nor the local police, within whose jurisdiction the raid was carried out, were associated. Such act of the FIA officials casts serious doubt on the recovery itself. "
5. The comparative study of Section 19(3) and Section 23 of Act, has made it clear that
the FIA Authorities illegally and without any mandate of law raided the shop of the appellant and thereby travelled beyond their authority as the required procedure was not followed rather violated. It is well settled principle of law that t he mandatory requirements of law,
which are pre -requisites, if not fulfilled, then the entire proceedings, would be nullified in the
eyes of law. Thus, the case of prosecution from its very inception is defective, not
maintainable and the impugned order of conviction passed by the trial Court deserves to be
set-aside, which was founded on violation of prescribed rules and laws. The learned trial
Court while delivering the impugned order has not considered the above legal aspect of the
case, thus the convict ion and sentence so awarded cannot be maintained.
For the above reasons, the appeal is accepted. The impugned order dated 9th
December 2019 passed by learned Special Judge Foreign Exchange Tribunal/Sessions Judge, Quetta, is set- aside and the appellants a re acquitted of the charge and the case property, if
any, be returned to the appellants after expiry of appeal/revision period.
JK/108/Bal. Appeal accepted.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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