Ghani-ur-Rehman vs State

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

Criminal Appeal No. 251-M/2014

JUDGMENT

Date of hearing: 10.3.2015 Date of announcement: 11.3.2015

Appellant: (Ghani-ur-Rehman) By Mr. Akhtar Munir Khan, Advocate.

Respondent: (The State & 1 other) By Mr. Rafiq Ahmad, Assistant Advocate General

HAIDER ALI KHAN, J.- Impugned herein is the judgment dated 23.10.2014 of the learned Additional Sessions Judge/Izafi Zilla Qazi-III, Swat, delivered in case FIR No. 60 dated 23.12.2013 under sections 4/23 Foreign Exchange Regulation Act, 1947 police station FIA CBC, Peshawar, whereby the appellant has been convicted under section 23 of the Foreign Exchange Regulation Act, 1947 and sentenced to two months S.I with benefit of section 382-B, Cr.P.C.

Tajamul Khan/SSS* [Cr.A No. 251-M/2014 Ghani-ur-Rehman Vs. The State & another ]

2.Brief facts of the case are that on getting information about illegal involvement of the appellant in dealing with exchange of foreign currency, a raiding party of FIA contingents consisting of Asfandiyar Khan Inspector FIA, Ihsanullah FC and Akhtar Hayat FC, headed by Inspector Gul Rehman (Complainant) raided the shop known as ‘Farooq Traders’ situated at Main Bazaar Mingora and recovered threrefrom currency notes of different countries, detail of which is mentioned in the recovery memo; the appellant could not produce any license in respect of the said business. On such report, murasila Ex.PA was drafted and sent to police station on the basis of which case vide FIR Ex.PB was registered.

3.The accused was arrested and after completion of investigation, challan was submitted to the trial Court. The accused was charged for the offence to which he pleaded not guilty and claimed trial. In order to substantiate its case, prosecution Tajamul Khan/SSS* [Cr.A No. 251-M/2014 Ghani-ur-Rehman Vs. The State & another ]

produced and examined four witnesses, whereafter, statement of the accused under section 342, Cr.P.C was recorded wherein he professed innocence. At conclusion of the trial, the learned trial Court vide judgment dated 30.10.2014 found the appellant guilty of the charge and on conviction, sentenced him as mentioned above. Hence, the instant appeal.

4.Learned counsel for the appellant/ convict contended that the impugned conviction and sentence is against law, facts and circumstances of the case; that the appellant has falsely been charged in the present case; that the alleged raid conducted by the FIA officials was without lawful authority as neither prior permission was obtained from competent Court nor information of the alleged raid was forwarded to the concerned local authorities;

that the prosecution has failed to prove its case against the appellant/convict as there are glaring contradictions in statements of the prosecution witnesses; that no independent witness was cited to Tajamul Khan/SSS* [Cr.A No. 251-M/2014 Ghani-ur-Rehman Vs. The State & another ]

witness the recovery; that the foreign currency was kept by the appellant for conducting his business of watches and cellular phones and the same was not for exchange purpose and finally learned counsel for the appellant contended that the trial Court has not appreciated the material available on record in its true perspectives, therefore, the impugned judgment of conviction is liable to be set aside.

5.On the other hand the learned State counsel defended the impugned judgment and argued that prosecution has proved its case against the appellant/convict through convincing evidence, therefore, the same being based on sound reasons, warrants no interference by this Court.

6.Arguments heard and record perused.

7.In light of the arguments and perusal of the record it has been found that strict compliance of sections 23(3) and 23-A of the Foreign Exchange Regulation Act, 1947 has not been carried out while investigating and adjudicating upon the present Tajamul Khan/SSS* [Cr.A No. 251-M/2014 Ghani-ur-Rehman Vs. The State & another ]

matter. To understand the scope of sections 23(3) and 23-A of the Act ibid, it is all the more utmost necessary to reproduce the same as under:- “23. Penalty and procedure.

(3)A Tribunal shall not take cognizance of any offence punishable under this section and not declared by the Central Government under the preceding sub- section to be cognizable for the time being, or of an offence punishable under section 54 of the Income-Tax Act, 1922, as applied by section 19, except upon complaint in writing made by a person authorized by the Central Government or the State Bank in this behalf” 23-A Tribunal its power etc.

(1)Every Sessions Judge shall, for the areas within the territorial limits of his jurisdiction, be a Tribunal for trial of an offence punishable under S.23.

(2)A tribunal may transfer any case for trial to an Additional Sessions Judge within its jurisdiction who shall, for trying a case so transferred, be deemed to be a Tribunal constituted for the purpose.

(3)A tribunal shall have all the powers of a Magistrate of the First Class in relation to criminal trials, and shall follow as nearly as may be the procedure provided in the Code of Criminal Procedure, 1898, for trials before such Magistrate, and shall also have powers as provided in the said Code in respect of the following matters, namely:

Tajamul Khan/SSS* [Cr.A No. 251-M/2014 Ghani-ur-Rehman Vs. The State & another ]

(a)directing the arrest of the accused;

(b)issuing search warrants;

(c)ordering the police to investigate any offence and report;

(d)authorizing detention of a person during police investigation;

(e)Ordering the release of the accused on bail.

(3-A) For the purposes of sub- section (3), the code of Criminal Procedure, 1898 (Act V of 1898), shall have effect as if an offence under this Act were one of the offences referred to in sub-section (1) of section 337 of the Code.

(4)All proceedings before a Tribnal shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Pakistan Penal Code, and for the purpose of section 196 thereof, and the provisions relating to the execution of orders in the Code of Criminal Procedure, 1898, shall, so far as may be, apply to orders and sentences passed by a Tribunal.

(5)As regards sentences of fine, the powers of a Tribunal shall be as extensive as those of a Court of Session.

(6)The State Bank of Pakistan or any other person aggrieved by a judgment of a Tribunal may, within three months from the date of judgment, appeal to the High Court.

(7)Save as provided in the preceding sub-section, all judgments and Tajamul Khan/SSS* [Cr.A No. 251-M/2014 Ghani-ur-Rehman Vs. The State & another ]

orders passed by a Tribunal shall be final.

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.

8.Bare reading of the sections of law reproduced above, judgment and charge sheet would reveal that the learned Sessions Judge did not conduct the proceedings in question in the capacity of Tribunal as envisaged in Section 23-A of the Act Tajamul Khan/SSS* [Cr.A No. 251-M/2014 Ghani-ur-Rehman Vs. The State & another ]

ibid. Even the charge was framed by the learned judge not as a tribunal but as Sessions Judge.

Similarly, section 23(3) postulates that the Tribunal shall not take cognizance of any offence punishable under this section except upon complaint in writing by an authorized person in this behalf by the Central Government or the State Bank. It has also been noted that although the Foreign Exchange Regulation Act, 1947 has been extended to Swat and Malakand but no mechanism for the enquiry and investigation has been provided under the Act and the cognizance of the offence was taken without obtaining permission from authorized person.

Therefore, I am of the view that the raid, search and seizure/recovery were made in gross disregard to the law and rules on the subject. Reliance can rightly be placed on the case Ghulam Sarwar Vs. The State (2013 P.Cr.L.J 12)

9.For what has been discussed above, this appeal is allowed, the impugned judgment of Tajamul Khan/SSS* [Cr.A No. 251-M/2014 Ghani-ur-Rehman Vs. The State & another ]

conviction dated 23.10.2014 is set aside and the appellant is acquitted of the charge levelled against him. The appellant is on bail, therefore, his sureties are discharged from liability of bail bonds. Case property, if any, be returned to the appellant after expiry of period of appeal/revision.

Announced.

Dt: 11.3.2015.

JUDGE

Tajamul Khan/SSS* [Cr.A No. 251-M/2014 Ghani-ur-Rehman Vs. The State & another ]