1981 P Cr (PLP)

This application under section 561-A, Cr. P. C. has been preferred for quashment of the proceedings instituted against the applicant on the basis of F. I. R. No. 23/79 under sections 4/5/21/22 and 23 of the Foreign Exchange Regulation Act. 1947. The investigation is being conducted against the applicant and no challan has yet been submitted against him in any Court.

2. The brief facts of the case are that the Crime Police Karachi on 24th April, 1979 recovered incriminating documents from the applicant who is a Japani National and was residing in a room of `Beach Luxury' Hotel of Karachi. The documents comprised of original Bill of Ladings, invoices, In and Out Telex-messages, blank photostat siged Bank docu ments of Japanese' Bank and Motor registration certificates of Japan and 3 Money Receipts issued by the representative of Nissho Co. Japan, all concerning import of reconditioned cars into Pakistan. These documents showed that reconditioned cars were exported by M/s. Missho Co. Nagoya, Japan and M/s Asia Enterprises Co. Ltd. Japan against payments made un-authorisedly by the following car dealers of Karachi. Name of the Dealers of Pakistan No of Units Booked

1. Delta Motors 14

2. Shahid Motors 21

3. Irfan Motors 5

4. R. A. K. Enterprises 14

5. Punjab Motors 14

6. Chiltan Motors 4

7. C. M. Y. Motors 21

8. Auto-De-Arif Not known

9. Universal Motors ,,

10. International Motors

11. Shaheen Motors

12. Kuromwa 10

13. M. Karim 10

14. Khalid Mahmood 49

15. Amjad Khan 1

3. The amount involved in the transaction was transferred from Pakistan to Japan through Invisible means. There are many names of individuals and the firms shown in the documents seized from the appli cant who are also involved in the car scandal including unauthorised transfer of funds abroad for the import of cars. According to these documents, the reconditioned cars are imported into Karachi from the exporters from Japan and some cars were also imported by some dealers in Japan. The value of these cars imported by the Japan Firms in Pak currency at Karachi is against cash receipt and confirmation issued on behalf of the said shippers. The applicant alongwith one Ito, another Japani National, was involved in this business. They were staying in different hotels at Karachi and were carrying on this illegal business.

4. The learned counsel, for the applicant contends that he being a citizen of Japan and not having resided continuously in Pakistan for six months is not liable under ;any of the provisions of Foreign Exchange Regulations Act, 1947. It is further contended that sec tion 2 of the Foreign Exchange Regulation Act, 1947 provides that the act applies to all citizens of Pakistan and persons in the service of Govern ment wherever they may be. 'The notification No., 1(8)-FE/58 dated 20th August, 1958, applying to every other person residing continuously for six months or more in Pakistan will also not apply in case of the applicant as he has never resided for six months or more in Pakistan. The applicant for the first time came to Karachi on 17thFebruary, 1979 and left on 27thMarch, 1979. He again arrived in Karachi on 12thApril, 1979 and left on 13th April, 1979: He came to Karachi for the third time on 15thApril, 1979 and was living in a Karachi Hotel when his passport was seized on 24th April, 1979. Therefore his case does not come within purview of the above notification and there is no liability whatsoever on his part under any of the laws of this country.

5. It has also been pointed out by the learned counsel for the appli cant that he had filed a Constitution Petition No. D-844/1979, requesting for return of Passport to the applicant which was dismissed on 10th October, 1979. It was after its dismissal that he has approached this Court for quashment of proceedings against the applicant as he has been able to make out a case for it. He has relied upon Superintendent of Police, Federal Investigation Agency, Lahore v. Akhtar Hussain Bhutta (P L D 1978 S C 193) wherein, their Lordships of the Supreme Court dismissed the appeal filed against the judgment hereby proceedings were quashed under section 561-A, Cr. P. C. as the challan in that case contained no allegations or accusation which if allowed to go to trial were even remotedly likely to end up in his conviction. He has also placed reliance on Pervaiz Ahmad Butt v. State (P L D 1979 Lah. 405) N-herein the proceedings under section 561-A, Cr. P. C. were quashed in a Case under section 6 (1) (g) of the Passport Act of 1974 pending before the Magistrate who had framed the charge for the above offence.

6. Mr. Saeed A. Shaikh Deputy Attorney General who appeared on behalf of the State has contended that the case against the applicant is at the stage of investigation only and quashment of the proceedings at this stage under section 561-A. Cr. P. C. is not within jurisdiction of this Court. He has relied upon Shahnaz Begum v. Hon'ble Judge of the High Court of Sind & Baluchistan (P L D 1971 S C 677) and relevant observations of their Lordships of the Supreme Court are as under:-- "The power to issue a direction cannot be invoked where investigation has already commenced in accordance with law by authorities competent to investigate under the Criminal Procedure Code nor does the power to "direct" includes the power to "transfer" from one competent investigating agency to another. This would be unwarranted interference with the investigation which has been disapproved of by the Judicial Committee of the Privy Council in the case of Emperor v. Kh. Nazir Ahmed." In this we have the support of the weighty reasons given by Lord Voter, who delivered the opinion of the Board in the said case of Emperor Kh. Nazir Ahmed, that this cannot be done. In that case the then Lahore High Court had under section 561-A, Cr. P. C., purported to quash certain "proceedings taken in pursuance of two first information reports" but the Judicial Committee set aside the order of the High Court in the following words:- "In their Lordships' opinion however, the more serious aspect of the case to be found in the resultant interference by the Court with the duties of the Police. Just as it is essential that every one accused of a crime should have free access to a Court of Justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in the matters which are within their province and- into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judicial and the police are complementary not overlapping and the combination of individual liberty with an observance of law and order is only to be obtained by leaving each to exercise its own function always, of course, subject to the right of the Court to inter in an appropriate case when moved under section 491, Criminal P. C. to give directions in the nature of habcas corpus. In such a case as the present, however, the Court's functions being when a charge is preferred before it and not until then."

7. Mr. M. I. Memon, Addl. A.-G. has contended that there other 17 persons also who have been named as accused in the above-said F. I. R. and the applicant has .failed to join any one of them as a party, therefore, this petition will not be maintainable. He has also contended that quashment at this stage is premature and this Court has no jurisdiction to interfere with the statutory powers of the investigat ing officers.

8. Mr. Usman Pirzada, who appeared for the F. I. A. has contended that irrespective of the fact that this Court has no jurisdiction to interfere at this stage of investigation against the applicant, his case will be covered by section 4 of the Foreign Exchange Regulation Act, 1947. He has relied upon Fazal Karim v. State (P L D 1976 S C 461) wherein their Lordships of the Supreme Court have held: "It is well settled that the inherent jurisdiction of the High Court under section 561-A, Cr. P. C. is neither alternative nor additional in its character and is to be rarely invoked only in the interest of justice so as to seek redress of grievances for which no other procedure is available and that the provisions should not be used to obstruct or divert the ordinary course of criminal procedure. Reference may be made in this regard to this Court's judgment in Ghulam Muhammad v. Muzammal Khan and 4 others (P L D 1967 S C 317). It was reiterated by this Court in Shahnaz Begum v. Hon'ble Judges of the High Court of Sind & Baluchistan and another's case (P L D 1971 S C 677). It was observed in the case of Ghulam Muhammad v. Muzammal Khan and 4 others "this Court had occasion to point out that the power given by section 561-A, Cr. P. C., can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute'.

9. After having heard the learned counsel for the applicant, Deputy Attorney General, Addl. A. G. and Mr. Usman Pirzada, for F. I. A. it has become necessary to reproduce the relevant sections of the Foreign Exchange Regulation Act, 1947 which have been referred to by the learned counsel for the applicant as well as F. I. A. "Section 2: It extends to the whole of Pakistan and applies to all citizens of Pakistan and persons in the service of Government wherever they may be?" Notification No. 1 (8)-FE/58 of 20th August, 1980, Repatriation of Foreign Exchange holdings by residents:- "In exercise of the powers conferred by section 9 of the Foreign Exchange Regulation Act. 1947 (VII of 1947), and in supersession of this Ministry's. Notification No. 3(2)-4/EF-52, dated the 14thJune, 1952, the Central Government is pleased to order that every citizen of Pakistan in Pakistan and every other person residing continuously for six months or more in Pakistan who owns or who may hereafter become the owner of any Foreign Exchange whether held in Pakistan or abroad expressed in the currency of any country or territory, excepting the country or territory specified in the Schedule appended hereto, shall before the expiration of one month from the date of this Notification such owner, within one month of his so becoming, offer such foreign exchange or cause is to be offered for sale to an authorised dealer, being a person authorised by the State Bank of Pakistan for the purpose, against payment in Pakistan currency at the rate for the time being authorised by the State Bank of Pakistan in pursuance of subsection (2) of section 4 of the, said Act for the conversion into Pakistan currency of the foreign currency in which such foreign exchange is expressed." Provided that this order shall not apply to foreign exchange held by authorised/dealers within the scope of their authority or to any person auth6rised under any permission, general or otherwise granted by the State Bank of Pakistan to hold the Foreign Exchange.

2. The provisions of this Notification shall not apply to the following cases, namely (i) Foreign Exchange held abroad by foreign diplomats and foreign nationals employed in Embassies and Mission of foreign countries in Pakistan. (ii) Foreign Exchange held abroad by foreign nationals or foreign business houses, except to the extent that it represents their earnings abroad in respect of business conducted in Pakistan or services rendered while in Pakistan. (iii) Foreign Exchange held in U. K. by residents in Pakistan pro vided the amount does not exceed 100 in all, or in U. S. A. provided the amount does not exceed $ 280 in all, U. S. A. does not extend the equivalent of

100. Explanation:- "Residents in. Pakistan" includes foreign nationals residing continu ously in Pakistan for six months or more, but does not include citizens of Pakistan in foreign countries during the period of their stay outside Pakistan.

1. Afghanistan: "Section 4.-(1) Except with the previous general or special permission of (the State Bank), no person other than an authorised dealer shall outside (Pakistan) buy or borrow from or sell or lend to, or exchange with any person not being an authorised dealer; any foreign exchange. (2) Except with the previous general or special permission of (the State Bank), no person whether an authorised dealer or otherwise, shall enter into any transaction which provides for the conversion of (Pakistan) currency into foreign currency or foreign currency int. (Pakistan) currency at rates of exchange other than the rate for the time being authorised by (the State Bank). (3) Where any foreign Exchange is acquired by any person other than an authorised dealer for any particular purpose, or where any person has been permitted conditionally to acquire foreign exchange the said person shall not use the foreign exchange so acquired otherwise than for that purpose or, as the case may be fail to comply with any condition to which the permission granted to him is subject, and where any foreign exchange so acquired, cannot be so used or, as the case may be fail to comply with any condition to which the permission granted to him is subject, and where any foreign exchange so acquired cannot be so used or, as the case may be, the conditions cannot be complied with, the said person shall without delay sell the foreign exchange to an authorised dealer. (4) Nothing in this section shall be deemed to prevent a person fro buying from any Post Office, in accordance with any law or rules made the reunder for the time being in force, any foreign exchange in the form of postal orders or money orders." I have carefully considered the contentions of the learned counsel for the applicant as well as F. I. A., in respect of the applicability of the above sections in this case The contention that the provisions of the Foreign Exchange Regulation Act of 1974 shall not apply to the applicant is too premature at this stage and cannot be accepted under the circumst ances of the case. Moreover it is an admitted position that the applicant has not yet been challaned as the case is at the stage of investigation only. It is a well settled position that the power given by section 561-A, Cr. P. C. to this Court can certainly not to be so utilised as to interrupt and divert the ordinary course of criminal procedure as laid down in the procedural statute, it is therefore not appropriate to quash the proceedings at this stage. The authorities referred to by the learned counsel for the applicant have absolutely no similarity with the case of the applicant as the proceedings in both the cases have been quashed after final challans have been submitted in the trial Court. Moreover facts and circumstances in both the cases are quite different from the case of the applicant. I do not think that any of the principles decided in both the cases are of any help to the case of the applicant. I am therefore satisfied that this appli cation has no force in it and I hereby dismiss it. Petition dismissed.