2018 P Cr (PLP)

ZAHEER-UD-D1N KAKAR, J.

The applicant Muhammad Alam seeks post-arrest bail to the extent of sections 3, 4, Anti-Money Laundering Act, 2010 (the AML Act, 2010), in Crime No. 42 of 2017 dated 11.08.2017, under sections 9(c), 12, 13, 14, 15 of the Control of Narcotic Substances Act, 1997, (the CNS Act) lodged with Police Station ANF, Quetta. In the said FIR the applicant was admitted to bail by the Judge, Special Court, CNS, Balochistan (the trial Court) to the extent of sections 9(c), 12, 13, 14, 15 of the CNS Act, 1997 vide order dated 26.10.2017 and refused to entertain the bail application to the extent of sections 3, 4, AML Act, 2010 on the point of jurisdiction.

2. It is case of the prosecution that on 11.8.2017, the complainant Muhammad Naseem, SI, ANF lodged FIR against the applicant and others, alleging therein that on receipt of secret information regarding transportation of narcotics from Chaghi to Saudi Arabia, he along with ANF officials reached to Ghuncha Dori Tehsil and District Mastung and kept surveillance of the vehicles and, at about 12:00 a.m. a Car bearing registration No.CV-648 was sighted, which was intercepted by them. On query three persons boarded in the car disclosed their names as Abdul Hadi, Najibullah and Muhammad Alam, while during search of the applicant Muhammad Alam, they recovered 1290 grams Heroin from his possession. Whereas, narcotics and American Dollars were recovered from co-accused Abdul Hadi and Najibullah.

3. Learned counsel for the applicant contended that the applicant is innocent and has not committed any offence; that no foreign currency were recovered from possession of the applicant, therefore, sections 3 and 4 of AML Act, 2010 did not attract to his extent, as such, he is entitled to be released on bail.

4. Conversely, the learned Special Prosecutor vehemently opposed the bail application and stated that sufficient incriminating material is available against the applicant, therefore, he is not entitled for grant of bail.

5. We have heard learned counsel for the parties and have gone through the available record. In the instant case, the trial Court refused the bail to the applicant to the extent of sections 3 and 4 AML Act, 2010 for the reason that he has no jurisdiction to try such cases and to pass an order under the AML Act, 2010 and the applicant was directed to approach the proper forum for grant of bail to the extent of AML Act, 2010. The moot question in this case is whether the CNS Court has got the jurisdiction to try the cases registered under Anti Money Laundering Act, 2010? Before dealing with such controversy, it would be advantageous to reproduce Section 20(1)(a) of the AML Act, 2010, dealing with the jurisdiction of the Court: "

20. Jurisdiction.-(1) The Court of Session established under the Code of Criminal Procedure, 1898 (V of 1898) shall, within its territorial jurisdiction, exercise jurisdiction to try and adjudicate the offences punishable under this Act and all matters provided in, related to or arising from this Act. Provided, (a) Where the predicate offence is triable by any court other than the Court of Session, the offence of money laundering and all matters connected therewith or incidental thereto shall be tried by the Court trying the predicate offence; (b) .........

6. A plain reading of the above Section abundantly makes it clear that the Court of Session established under the Code of Criminal Procedure, 1898 shall within its territorial jurisdiction, exercise jurisdiction to try and adjudicate the offence(s) punishable under this Act and proviso (a) of the said Act clearly shows that if the predicate offence is triable by any Court other than the Court of Session, the offence of money laundering and all the matters connected therewith or incidental thereto shall be tried by the Court trying the predicate offence(s). Applying this analogy it is crystal clear that the main offence against the accused falls within the ambit of CNS Act, 1997, therefore, being predicate offence is triable by the Special Judge CNS. The Control of Narcotic Substances Act, 1997 also falls within the meaning of predicate offences and mentioned in the schedule of AML Act, 2010, which is reproduced herein below: "Schedule ........ (Section-2(w)) Section-VIII. The Control of Narcotic Substances Act, 1997 (XXV of 1997).

5. Punishment for contravention of section 4.

9. Punishment for contravention of sections 6, 7 and 8.

11. Punishment for contravention of section 10.

13. Punishment for contravention of section 12.

15. Punishment for contravention of section 14.

41. Prohibition of alienation of freezed property.

42. Prohibition of acquiring property in relation to which proceedings have been taken under the Act.

7. Furthermore, section 39 of AML Act, 2010 also has got overriding effect. The provision of this Act shall be in addition to, and not in derogation of, the Anti-Narcotics Force Act, 1997, clearly indicates that where the predicate offence(s) is triable by any Court, the offence of Money Laundering Act shall be cognizable by that Court. For ready reference, section 39 of Anti-Money Laundering Act, 2010 is reproduced hereunder: "

39. Act to have overriding effect.-(1) Subject to subsection (2) the provisions of this Act shall have effect notwithstanding anything to the contrary in any other law for the time being in force. (2) The provisions of this Act shall be in addition to and not in derogation of the Anti-Narcotics Force Act, 1997 (III of 1997), the Control of Narcotic Substances Act, 1997 (XXV of 1997) the Anti-Terrorism Act, 1997 (XXVII of 1997) and the National Accountability Ordinance, 1999 (XVIII of 1999) [and any other law relating to predicate offences]."

8. In view of the above discussion, we have reached to the irresistible conclusion that as per section 20(1)(a) AML Act, 2010, the CNS Court Balochistan, Anti-Terrorism Court and NAB Courts have the exclusive jurisdiction to try the cases of AML while seized with the predicate offence(s) i.e registered under the Control of Narcotic Substances Act, 1997, Anti-Terrorism Act, 1997 and National Accountability Ordinance, 1999. Therefore, for the purpose of present case, the Court of CNS Balochistan is the competent forum to adjudicate, try and decide the offences under section AML mentioned in FIR No.42 of 2017, lodged under section 9(c) of CNS Act read with sections 3, 4 of AML Act, 2010.

9. Now coming to the instant application, as per contents of FIR foreign currency was recovered from possession of the co-accused and only 1290 grams Heroin was recovered from the possession of the present applicant wherein he has already been admitted to bail in the connected offence i.e. under section 9(c) of the CNS Act by the trial Court vide order dated 26.10.2017. Since, the offence under sections 3, 4 of AML Act, 2010 does not fall within the prohibitory clause of section 497, Cr.P.C, therefore, the applicant Muhammad Alam shall also be treated on bail under sections 3 and 4 AML Act, 2010 at the strength of surety already furnished in the connected offence(s). The observations made herein above are tentative in nature and shall have no bearing on merit of the case. These are the reasons of our short order dated 06.12.2017. MQ/2-Bal. Bail allowed.