P L D 1978 Karachi 1117 (PLP)

This is an application under section 561‑A, Cr. P. C. for quashment of the proceedings of a case under section 9/23 of the Foreign Exchange Regula tion Act, pending before the Tribunal and 3rd Additional Sessions Judge, Karachi.

2. The facts in brief are that Mr. Abdul Jabbar, Assistant Director, F. I. A., Karachi, registered an F. I. R., that during arrest of one Ghulam Sarwar, i.e. the present petitioner, Foreign Currency, namely, four pounds sterling and one hundred sixty‑seven U. A. E. Dirhams were recovered from his personal search. A challan was accordingly submitted by the F. I. A. in this respect, apart from the detention proceedings.

3. Mr. Muhammad Ali Shaikh on behalf of the petitioner has raised certain legal pleas regarding validity of these proceedings. He has pointed out that, under section 23(3) of the Foreign Exchange Regulation Act, 1947 a tribunal shall not take cognizance of any offence punishable under this section except upon complaint in writing made by a person authorised by the Central Government or the State Bank in this behalf. It has been pointed out by Mr. Muhammad Ali Shaikh that the offences relating to recovery of foreign exchange under section 23 are non‑cognizable offences and they have not been declared by the Central Government to be regarded as cognizable offences even for the time being. That therefore a complaint by the proper authority was necessary before any cognizance could be taken by the Tribunal; that the tribunal having acted merely on the basis of the charge‑sheet sub mitted by the F. I. A. the cognizance by the Tribunal would be illegal and without jurisdiction.

4. It has next been argued that it was the policy of the Framers of this Act, that before actually prosecuting the person in a Court of law, oppor tunity should be given to him to explain his position to the State Bank. This is laid down in the proviso to section 23(3) of the Act which reads as under;

"Provided that where any such offence is the contravention of any of the provisions of this Act or any rule, direction or order made thereunder which prohibits the doing of an act without permission and is not declared by the Central Government under the preceding subsection to be cognizable for the time being, no such complaint shall be made unless the person accused of the offence has been given an opportunity of showing that he had such permission." It has been pointed out that in the present case the State Bank was not even informed regarding this case nor had any such show‑cause notice been served on the petitioner.

5. Lastly it has been argued that the offence under section 23, F. E. R. Act including the present offence being non‑cognizable the F. I. A. could not investigate the same without the permission of the Tribunal. It is correct that the mere fact that the F. I. A. is permitted to undertake investigation will not by itself convert a non‑cognizable offence into a cognizable one authorizing the F. I. A. to arrest the person and submit a charge‑sheet. Mr. Muhammad Ali Shaikh has quoted Ramchand v. The State and another (P L D 1966 Kar. 207). In that case also it was observed by Faruqui, J., that cognizance of offence under section 23, Foreign Exchange Regulation Act, 1947, by a Magistrate upon complaint by a person other than the one authorised by Central Government or State Bank was bad being without jurisdiction. In State Bank v. Emmanuel Toby (1971 P Cr. L J 749) it was observed by Ghulam Rasool Shaikh, J. that if the complaint was filed in a case under F. E. R. Act by the person authorised by the State Bank then any other illegalities in the conduct of the search would not vitiate a trial. It was thus emphasised that the main requirement of law under the F. E. R. Act was, that the complaint should be by the person duly authorised by the Central Government or the State Bank. Mr. Shaikh has also referred to a decision of this Court in Muhammad Yaqoob v. State (P L D 1978 Kar. 723). It was stated in that decision that even in respect of the offences specifically provided under the Schedule of the Federal Investigation Agency Act which the F. I. A. could investigate, the F. I. A. could not undertake the investigation without permission of the Magistrate. Nor could the F. I. A. regard the offences as cognizable by implication and submit charge‑sheet in respect of them; that where there was requirement of a `complaint' to be filed, then in the absence of a proper complaint, cognizance could not be said to have been validly taken and the proceedings were liable to be quashed.

7. Mr. Rashid Akhtar Qureshi on behalf of the State concedes that this is the legal position and obviously the present proceedings being in violation of the express provisions of law, the cognizance taken by the tribunal would be without jurisdiction.

8. In the result, for the reasons stated above, the proceedings of this case started on submitting a charge‑sheet by the F. I. A. would appear to be bad and they are accordingly hereby quashed. S. Q Proceedings quashed.