2023 P Cr. L J 1388
[Balochistan]
Before Muhammad Hashim Khan Kakar and Shaukat Ali Rakhshani, JJ
The STATE through Additional Attorney General ---Appellant
Versus
MUHAMMAD JUMA--- Respondent
Criminal Acquittal Appeal No. 97, Criminal Revision Petitions Nos.13 and 27 of 2022,
decided on 12th April, 2023.
(a) Foreign Exchange Regulation Act (VII of 1947) ---
----Ss. 5, 19(3) & 23--- Anti-Money Laundering Act (VII of 2010), S. 8(1) ---Smuggling of
foreign currency ---Appreciation of evidence--- Appeal against acquittal ---Raid conducted
without search warrant ---Effect ---Accused was found in possession of foreign currency ---
Recovery witness testified before the court, reiterating what complainant had incorporated in
his report on the basis whereof FIR was registered---Said witness produced seizure memo of the currency notes as well as other documents recovered from the shop of the acquitted respondent, which were secured through recovery memo---During cross -examination,
regarding obtaining of the search warrant the recovery witness showed ignorance ---Even
otherwise, neither the complainant nor any other witness claimed to have had obtained any search warrants prior to the raid at the shop of the acquitted respondent, which was utter violation of S. 19(3) of the Foreign Exchange Regulation Act, 1947---Said provisions clearly manifested that before making entry into the place, search warrant at least from a Magistrate of first class was necessary, which had not been adhered to by the raiding party of Federal Investigation Agency (FIA), which made the entire proceedings of seizure illegal ---Federal
Investigation Agency had failed to assign a single reason, which compelled them to conduct raid in the shop of the acquitted respondent without obtaining search and arrest warrants, which had nullified the entire seizure of the currency notes as it had travelled beyond its mandate and authority--- Circumstances established that the impugned order of acquittal of
the respondent was based upon proper appreciation and application of law, suffering from no infirmity and perversity ---Appeal against acquittal was dismissed, in circumstances.
Sajjad Ahmed v. Federation of Pakistan 2018 YLR 2668 and Abdul Razzaq v. The
State 2020 MLD 1921 rel.
(b) Administration of justice ---
----When a law requires a thing to be done in a particular manner, then it must be done in same manner as provided under the law and not otherwise.
Muhammad Rashid, Assistant Attorney General (A.A.G.) for Appellant (in Criminal
Acquittal Appeal No. 97 of 2022).
Syed Ayaz Zahoor for Respondent (in Criminal Acquittal Appeal No. 97 of 2022).
Syed Ayaz Zahoor for Petitioner (in Criminal Revision Petition No.13 of 2022).
Muhammad Rashid, Assistant Attorney General (A.A.G.) for Respondent (in Criminal
Revision Petition No.13 of 2022).
Muhammad Rashid, Assistant Attorney General (A.A.G.) for Petitioners (in Criminal
Revision Petition No. 27 of 2022).
Syed Ayaz Zahoor for Respondent (in Criminal Revision Petition No. 27 of 2022).
Date of hearing: 3rd April, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. ---The State through the office of learned
Additional Attorney General has filed the captioned appeal bearing No. 97/2022 against the
order of acquittal of respondent Muhammad Juma dated 01.12.2021 in case vide FIR No.23/2021 as well as has brought Crl. Revision Petition No.27 of 2022, emanating from FIR No.44/2021 registered with Police Station FIA Quetta being a predicate of FIR No.23/2021 relating to the offences punishable under section 8(1) of Anti -Money Laundering
(Amendment) Act, 2010 ("AMLA of 2010") against the order dated 17.12.2021, whereby
application for attachment of properties involved in the offence ibid being not maintainable was dismissed, whereas, petitioner Muhammad Juma has also filed Criminal Revision No.13 of 2022, calling in question the validity and legality of the order dated 01.12.2021 authored by the Additional Sessions Judge -V, Quetta -Tribunal constituted under the Foreign Exchange
Regulation Act, 1947 ("FERA of 1947") ("Tribunal -ASJ-V") to the extent of confiscation of
the Pakistani and foreign currency notes recovered from his possession.
2. Since the facts and legal questions involved in the captioned appeal and petitions are
knitted with a similar thread, therefore, the instant appeal and the criminal revision petitions are being decided through this consolidated judgment.
3. The facts germane to the lis in hand are that on 15.07.2021 a contingent of FIA Quetta
raided the shop of acquitted respondent Muhammad Juma situated at New Hazara Town Kirani Road, Quetta and during search thereof recovered Pakistani Rs.627,850/ -, Iranian
currency 87,60,000/ - Afghani currency 64,970/ -, Australian currency 15/ - and Saudi
currency 100/ -, which were taken into possession through recovery memo and the FIR ibid
was accordingly registered with Police Station FIA Quetta.
4. After usual investigation, Muhammad Juma was put on trial, who denied the charges
under sections 4, 5, 23 of FERA of 1947, as such the prosecution to drive home the charge
produced Shoaib Amin (PW -1). However, in the meanwhile, Muhammad Juma filed an
application under section 265- K of Cr.P.C.
The Trial Court after hearing the parties on 01.12.2021 acquitted the respondent of
the charge; however, confiscated the currency notes in favour of the state, whereas an
application in a case vide FIR No.44/2021 was filed by FIA for attachment of the properties derived through the offences punishable under section 8(1) of the AMLA, 2010, which was dismissed vide order dated 17.12.2021, hence the captioned appeal and revision petitions were preferred.
5. Heard. Record sussed out. The acquitted respondent was indicted for having in his
possession of Pakistani Rs.627,850/ -, Iranian currency 87,60,000/ - Afghani currency
64,970/ -, Australian currency 15/ - and Saudi currency 100/ - in contravention of the
provisions of 4, 5 and 23 of FERA of 1947 during a raid conducted at his shop. Shoaib Amin ASI of FIA (PW -1) testified before the court, reiterating what complainant Kaleemullah had
incorporated in his report on the basis whereof FIR ibid was registered. He produced seizure memo of the above currency notes as well as other documents recovered from the shop of the acquitted respondent, which were secured through recovery memo (Ex.P/1- A). During cross -
examination, regarding obtaining of the search warrant he showed ignorance. Even otherwise, neither the complainant nor any other witness claims to have had obtained any search warrants prior to the raid at the shop of the acquitted respondent, which is utter violation of clause (3) of the FERA of 1947, which reads as under;
"19. Power to call for information.
(3) On a representation 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 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, 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 -
(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.
Explanation. In this sub- section, "place" includes a house, building, tent, vehicle,
vessel or aircraft.
The provision ibid clearly manifests that before making entry into the place, search
warrant at least from a magistrate of first class is necessary, which has not been adhered to by the raiding party of FIA, which makes the entire proceedings of seizure illegal as it is a trite law that when a law requires a thing to be done in a particular manner, then it must be done in same manner as provided under the law and not otherwise. The raid conducted by the FIA contingent, without requisite approval and permiss ion at least from a Magistrate First
Class amounts to deliberate deviation from the prescribed procedure, which is utter violation of the provisions of FERA of 1947. The FIA has failed to assign a single reason, which compelled them to conduct raid in the shop of the acquitted respondent without obtaining
search and arrest warrants, which has nullified the entire seizure of the above currency notes
as they have traveled beyond their mandate and authority. This view of ours is fortified by a judgment rendered by the Hon'ble Lahore High Court in the case of 'Sajjad Ahmed v. Federation of Pakistan' (2018 YLR 2668), which view is cemented in the case of 'Abdul Razzaq v. The State' (2020 MLD 1921) of this Court, which reads as infra;
"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 traveled beyond their authority as the required procedure was not followed rather violated. It is well settled principle of law that the 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 conviction and sentence so awarded cannot be maintained."
6. The prosecution has also failed to bring on record through tangible evidence to
substantiate the indictment that the respondent was found to have acted in contravention of the provisions and penalties enunciated under the FERA of 1947 and section 8(1) of AMLA of 2010.
7. Be that as it may, the State Bank of Pakistan in terms of section 8(2) of the Act of
1947 has also issued a notification bearing No. F.E.2/2017- SB dated 30.08.2017 allowing
any person to bring into Pakistan any amount of foreign currency. The excerpt of the notification ibid reads as under;
"In pursuance of Government of Pakistan Notification No.F.1(8) -EF/49 dated the 2nd
May, 1949 and in supersession of the State Bank of Pakistan Notification No.F.E.5/92- SB dated the 28th December, 1992, read with its Notification
No.F.E.1/2012- SB dated the 16th June, 2012, the State Bank of Pakistan is pleased to
permit any person to bring into Pakistan: -
(1) From any place outside Pakistan any foreign currency notes or bank notes without limit except un -issued notes.
(2) Notes legal tender in Pakistan not exceeding Rs.3.000/ - (Rupees Three Thousand
Only) from India and Rs.10,000/ - (Rupees Ten Thousand Only) from any place other
than India, in value in all per person at any one time".
[Emphasis Added]
In view of the above notification, there is no embargo to bring any foreign currency
notes without any limit except Indian currency within the stated limits.
8. We have scanned the order impugned herein dated 01.12.2021 with utmost muse and
care in view of the evidence available on record, whereof we are of the considered view that
the impugned order of acquittal of the respondent is based upon proper appreciation and application of law, suffering from no infirmity and perversity, which needs not to be meddled with as such the criminal appeal against acquittal of respondent Muhammad Juma is hereby dismissed for being shorn of merits except to the extent of confiscation of the currency notes.
9. After acquittal of respondent Muhammad Juma on the basis of illegal seizure, there
was no occasion and justification for the Tribunal -ASJ-V for confiscation of the currency
notes, as such, the impugned order dated 01.12.2021 is modified by accepting the Revision Petition No.27 of 2022, and in consequence thereof, the currency notes recovered in the instant case are directed to be returned to petitioner Muhammad Juma, who shall exchange the foreign currencies with Pakistani currency accordingly.
Since the appeal has been dismissed and the currency notes are directed to be returned
to the petitioner, therefore, as a natural corollary, Criminal Revision No.27/2022 for the reason mentioned hereinbefore stands dismissed for having become infructuous.
JK/86/Bal. Appeal 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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