Sunday, 15 March 2015

Quashment of FIR Judgment in Currency Case

PLJ 2000 Lahore 1305
Present: MUHAMMAD NASEEM CHAUDHRI, J. MUHAMMAD ASHRAF-Petitioner
versus
MR. RIZWAN NAZIR, EXECUTIVE MAGISTRATE 1st CLASS and others-Respondents
W.P. No. 22875 of 1999, heard on 17.4.2000.
 Foreign Exchange Regulation Act, 1947 (VII of 1947)--
—Ss. 18 & 23--Federal Investigating Agency Act, 1974 (VIII of 1974), S. 3- Constitution of Pakistan (1973), Art. 199--Quashment of F.I.R.-Prayer for-Recovery of Foreign Currency notes from petitioner's shop in a raid conducted by xecutive Magistrate and registration of criminal case-­ Petitioner's plea for quashing of F.I.R. on the ground that Executive Magistrate was not competent to conduct such raid-Federal InvestigatingAgency can proceed in matter relating to offences pertaining to contravention of Foreign Exchange Regulation Act, 1947-Executive Magistrate and local police cannot proceed in matter of dealings in Foreign Exchange-Executive Magistrate while conducting raid did not join two respectables from the area as provided under S. 103 of Cr.P.C.--Executive Magistrate also does not figure in specified notification dated 5th October 1972 wherein officials authorised to conduct raid have been mentioned-Legally, where anything is provided to be done in particular manner it has to be done in that manner and if not so done same would not be lawful-Executive Magistrate being not competent to conduct raid on the shop of petitioner and having transgressed his uthority without any legal justification and competence, F.I.R. got registered againstpetitioner under Sections 18/23 Foreign Exchange Regulation Act 1947, was quashed in circumstances.                                               [Pp. 1307 to 1309] A, B & C
Ch. Sadaqat All, Advocate for Petitioner. Ms. Roshan Ara, A.A.G. for Respondents Date of hearing: 17.4.2000.
JUDGMENT
Mr. Rizwan Nazir Executive Magistrate 1st Class, Daska, District Sialkot raided on 23.10.1999 the shop of Muhammad Ashraf writ petitioner in the company of his Naib Court Muhammad Arif Constable, his driver Muhammad Arshad, Ashfaq Ahmad ASI Police Station Daska, Muhammad Akram ASI Police Station Daska, Mubarik Constable and Akhtar Ali Constable situated in the Sarafa Market, Daska and took into possession three foreign currency notes of the denomination of Rs. 10,000/- of some unknown country; one hundred Irani Riyal, two currency notes of Irani Riyal each valuing Rs. 500/-, one currency note of 200/- Irani Riyal, one Egyptian Pound and one note of the currency of Rs. 100/- of some unknown country vide memo, attested by Muhammad Arif Naib Court and Muhammad Arshad Driver. Making the allegation that Muhammad Ashraf was dealing in foreign currency without authorisation, he got registered FIR No. 565 on 23.10.1999 at Police Station City Daska, District Sialkot under Section 18/23 of the Foreign Exchange Regulation Act, 1947.
2.             Feeling aggrieved Muhammad Ashraf petitioner filed this writ petition for the quashment of the FIR on the grounds that Mr. Rizwan Nazir Executive Magistrate 1st Class was not competent to conduct the raid in view of Notification No. F.E. 3/72-SB dated 5.10.1972, that under Section 23(3) of the Foreign Exchange Regulation Act, 1947 he was to be  given a notice, that no private witness was associated in the raid and that the charge against him is groundless.
3.             This writ petition stands admitted for regular hearing. In the written statement Mr. Rizwan Nazir xpressed about his authority to enter the shop of the petitioner and to take into possession the foreign currency on the ground that Muhammad Ashraf petitioner carried on the business without authorisation.
4.  I have heard the learned counsel for the petitioner as well as the learned AAG and gone through the record before me. Learned counsel for the petitioner referred to Section 3 of the Federal Investigating Agency Act, 1947 as well as its Schedule according to which offences punishable under the Foreign  Exchange  Regulation  Act are to  be  enquired  into  and investigated by the FLA. He added that Mr. Riazwan Nazir Executive Magistrate 1st Class was not competent to proceed in the matter. He also referred to Section 19(3)(3-A)(3-B) and argued that without the issuance of search warrant on  the  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 contravention is to be found in such place the District Magistrate, Sub-Divisional Magistrate or Magistrate 1st Class may by warrant authorise any Police Officer not below the rank of Sub-Inspector to enter and search any place in the manner specified in the warrant and seize any book or other material found in or on such place. He maintained that it is a case of transgression of authority on the part of Mr. Rizwan Nazir Executive Magistrate 1st Class, Daska, District Sialkot.
5.    Learned AAG scrupulously conceded that Mr. Rizwan Nazir Executive Magistrate 1st Class could not enter the shop of Muhammad Ashraf petitioner.  Mr.  Rizwan  Nazir  Executive Magistrate 1st  Class expressed that being a new entrant in service he had not gone through the  relevant provisions of law and expressed that in future he would be careful.

6.    I would express that the reasoning adopted by the learned counsel for the  petitioner  has  to  prevail.  Section  3  of the Federal Investigating Agency Act, 1974 (Act No. VIII of 1974) reads as under:
"Section 3. Constitution of the Agency.--(l) Notwithstanding anything contained in any other law for the time being in force, the Federal Government may constitute an Agency to be called the Federal Investigation Agency for inquiry into, and investigation of, the offences specified in the Schedule, including an attempt or conspiracy to commit, and abetment of, any such offence."
7.  In the instant case the Federal Investigating Agency can proceed in the matter. The offences mentioned in the Schedule to the Federal Investigating Agency Act, 1974 can be inquired into and investigated by the FIA. At Serial No. 4 of the Schedule to the Federal Investigating Agency Act, 1974, "offences punishable under the Foreign Exchange  Regulation Act, 1947 (Act No. VII of 1947)" is mentioned. It means that the Executive Magistrate and the local police cannot proceed in the matter of dealings in foreign exchange even though restrictions have been imposed or therwise. The relevant portion of Section 19 of the Foreign Exchange Regulation Act No. VH of 1947 is reproduced as under:
'19. Power to call for information.~(l)
(2)
(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, 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.--ln this sub-section, "place" includes a house, building, tent, vehicle, vessel or aircraft.
(3-A) A Police Officer authorised under sub-section (3) may search any person who is found in or whom he has reasonable ground to believe to have recently left or to be about to enter such place or to seize any article found in the possession-of or upon such person and believed by the Police Officer so authorised to be evidence of the commission of any offence under this Act.

 (3-B) A Police Officer authorised under sub-section (3) shall conduct any search under that sub-section or under sub-section (3-A) in accordance with the provisions relating to search in the Code of Criminal Procedure, 1898.
(4) .............................................................................................. "
8.              In view of the aforesaid provision of law Mr. Rizwan Nazir Executive Magistrate 1st Class could not enter the shop of Muhammad Sharif. Further he did not join two respectables from the area as provided under Section 103 of the Code of Criminal Procedure.
9.              Notification No. F.E/72-S.B. dated 5.10.1972 is reproduced as under which contains the list of the Officers who have been authorised to make the complaints of offences punishable under Section 23 of the ForeignExchange Regulation Act, 1947.
"NOTIFICATION NO. F.E. 3/72-SB
Dated the 5th October, 1972
In exercise of the powers conferred by Section 23 of the Foreign Exchange Regulation Act, 1947 (VII of 1947) and in supersession of the State Bank of Pakistan Notification No. F.E. 1/72-SB dated the 30th March, 1972 the State Bank of Pakistan is pleased to authorise the following Officers of the Exchange Control Department of the State Bank of Pakistan to make complaints of offences punishable under the said section:--
1.                   The Director, Exchange Control Department.
2.                   The Additional Director, Exchange Control Department.
3.                   A Senior Deputy Director.
4.                   A Deputy Director.
5.                   An Assistant Director.
6.                   An Exchange Control Officer, and
7.                   An Assistant Exchange Control Officer."
10.  In the aforesaid Notification Executive Magistrate of any District does not figure to initiate the criminal proceedings.
11.    Legally where a thing is provided to be done in a particular manner it has to be done in that manner and if not so done, same would not be lawful. I have to express that it is well recognized rule of construction that where a power is given to do a certain thing in a certain way that thing must be done in that way or not at all and that other methods of performance are necessarily forbidden.

12.             The only irresistible conclusion which can be drawn from the aforesaid state of affairs and discussion would be that Mr. Rizwan Nazir Executive Magistrate 1st Class was not competent to conduct the raid on the shop of Muhammad Ashraf who simply transgressed his authority without any legal justification and competence. As such the FIR got registered by him, which is required and desired to be quashed, cannot remain in the field. I would express that if on the basis of the aforesaid non-observance of the legal formality the prosecution is to be knocked out and the petitioner is to be acquitted after full-fledged trial, it is his statutory right to get quashed the FIR even at this initial stage.
13.             I. therefore, accept this writ petition and quash FIR No. 565 registered on 23.10.1999 at Police Station City Daska, District Sialkot under Section 18/23 of the Foreign Exchange Regulation Act, 1947.
(A.A.J.S.)                                                                              F.I.R. quashed.  


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