STATE vs Shah Wali & Others

Balochistan High Court · 2024 · Before Hon'ble Justice Shaukat Ali Rakhshani

respondent Nos.1 & 3 were acquitted of the charge in a case vide FIR No.15 of 2019 dated 18.04.2019 registered with Police Station, FIA CBC Circle, Quetta under Section 4(1), 5/23 of the Foreign Exchange Regulation Act, 1947 (“FERA of 1947”) read with section 109 of Pakistan Penal Code 1860, (“PPC”).

2. Unfurled facts germane for disposal of the instant acquittal are that on 17.04.2019, Federal Investing Agency (“FIA”) conducted a raid at shop Nos.2 & 3, situated at Bukhari Centre Shahra-e-iqbal pursuant to a spy information with regard to illegal business of Hawala-Hundi, where acquitted respondents were found present, and on search, FIA personnel recovered Pakistani & foreign currency, cheque books, deposit slips, ATM cards, SIM cards etc mentioned in the FIR ibid and seizure memo, following the arrest of acquitted respondents, who were put on trial before the Trial Court, and after a full fledged trial, they were acquitted of the indictment vide judgment impugned herein. Crl Acq Appeal No.25 of 2021 (2) Only for viewing purpose. Contact office for certified copy.

3. Learned AAG assisted by AD FIA (Legal) inter alia contended that that the Trial Court has recorded acquittal of the respondents mainly for the reason that under clause (3) of section 19 of FERA of 1947 no such arrest can be made, except permitted by the Judicial Magistrate, which is misinterpretation of provision ibid, and argued that the offences punishable under section 23 of the FERA 1947 are cognizable and non-bailable, thus the acquittal requires to be set at naught. It was further argued that the acquittal has been recorded without appreciating the evidence on record, amounting to throttling of the case of the prosecution, thus requested for setting aside the impugned judgment. Conversely, learned counsel for the acquitted respondents strongly opposed the appeal and contentions so put-forth by learned counsel for the appellant and urged that the impugned judgment is based on legal premise, requiring no interference by this court and contended that the reasons drawn by learned Trial Court are in accordance with law.

4. Heard. Record perused. Admittedly, while conducting raid and arresting the acquitted respondents, the FIA has neither sought permission from the Judicial Magistrate concerned nor has obtained authorization from any officer of the State Bank of Pakistan (“SBP”) or Federal Government as contemplated under clause (3) of section 19 of FERA of 1947. We are conscious of the fact that complainant of the instant FIR is an official of SPB, but nothing has been placed on record demonstrating that the complainant or FIA was authorized to search the premises in question and lodge the FIR. Moreso, while initiating the prosecution and putting the acquitted respondents on trial, the provision of clause (3) of section 23 of FERA have also not been adhered to. Crl Acq Appeal No.25 of 2021 (3) Only for viewing purpose. Contact office for certified copy.

5. The points under discussion were set at rest by this Court in Criminal Acquittal Appeal Nos.207, 257, 258 & 259 of 2020, the relevant excerpt whereof is reproduced hereunder; “8. That still, it may

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