Summary: S.4/23 Foreign Exchange Regulation Act 1947Strick complaince of S.23(3)&23 has not been carried out.Benefit of doubt(Acquitted)

Summary: S.4-23-FER:First offender,not fall in prohibitory clause(Bail allowed) --- Bail granted (a) Criminal Procedure Code (V of 1898)----Bail Considerations ----S. 497----Foreign Exchange Regulation Act, 1947----Ss. 4 & 23----Engagement in illegal hundi/hawala business----Grant of bail----Scope. Accused was charged with running an illegal hundi/hawala business without a license. The case against him was based on an FIR registered following an investigation and raid by the FIA. The defense contended that the accused was falsely implicated, lacked direct involvement, and that there was no independent witness to the recovery memo. Additionally, the offense carried a maximum sentence of two years or a fine, making bail the rule and refusal the exception. The court held that in cases where an offense does not fall within the prohibitory clause of Section 497 Cr.P.C., bail must be favorably considered unless exceptional circumstances exist. Cited Cases: Zafar Iqbal v. Muhammad Anwar & others (2009 SCMR 1488) (b) Double Jeopardy and Bail Entitlement ----S. 497, Cr.P.C.----Offense punishable with fine or both----Right to bail. Where an offense is punishable with fine or with both imprisonment and fine, an accused is entitled to bail as of right. If the accused is ultimately sentenced to a fine only, keeping him in custody as an under-trial prisoner would amount to double jeopardy. (c) Prosecution’s Failure to Justify Further Detention ----Accused no longer required for investigation----First-time offender----Principle of bail not being a punishment before trial. The prosecution did not present any evidence that the accused was further required for investigation. The accused had no prior criminal record, and the court emphasized that bail does not mean acquittal but merely a change in custody from the state to sureties. The court reaffirmed that an innocent person’s unjustified incarceration before trial cannot be compensated, even if he is acquitted later. ----- Disposition Bail petition was allowed. The accused was granted bail upon furnishing bail bonds of Rs. 500,000/- with two sureties of like amount, subject to verification by the trial court ensuring that the sureties are local, reliable, and financially stable. The observations made were of a tentative nature and not intended to influence the trial court.

Summary: Plj 2000 Lahore 1305 Present Muhammad Naseem Chaudhri J Muhammad Ashraf - Petitioner versus MR Rizwan Nazir Executive Magistrate 1st Class and others - Respondents WP No 22875 of 1999 heard on 1742000 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 Fir - Prayer for - Recovery of Foreign Currency notes from petitioners shop in a raid conducted by xecutive Magistrate and registration of criminal case - ?? Petitioners plea for quashing of Fir on the ground that Executive Magistrate was not competent to conduct such raid - Federal Investigating Agency 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 CrPC - - 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 Fir got registered against petitioner under Sections 1823 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 Aag for RespondentsJudgement Result:F.I.R. quashed.

Summary: Bail denied ----- (a) Penal Code (XLV of 1860) ---- Ss. 406, 420, 468, 471, 448, 511; Foreign Exchange Regulation Act, 1947 ---- Ss. 5 & 23(3); Code of Criminal Procedure, 1898 ---- Ss. 497 & 498; Qanun-e-Shahadat Order, 1984 ---- Art. 21 Misappropriation of Trust funds --- Preparation of forged documents --- Embezzlement of foreign remittances --- Validity of FIR under FERA --- Post-arrest bail, refusal of --- Principles and scope --- Petitioner, a former Secretary of the Abdul Qadeer Khan Trust, was accused of misappropriating PKR 7,942,670 through fraudulent foreign remittance transfers into his personal account and forging trust resolutions to unlawfully register a new trust body --- Contention raised that under S. 23(3) of the Foreign Exchange Regulation Act, 1947, no FIR could be registered without complaint by State Bank of Pakistan --- Held, S. 406 PPC was the dominant offence with longer punishment and being cognizable, validated the registration of FIR; provisions of FERA were ancillary and did not invalidate the prosecution --- Record showed multiple FIRs involving forgery, trust deed tampering, and attempted forcible possession of hospital property --- Conduct of accused, both prior and subsequent, is relevant under Art. 21 QSO for assessing intent and future threat --- Modus operandi revealed organized criminal activity with intent to repeat offence if released --- Despite offences not falling within prohibitory clause of S. 497 Cr.P.C., bail was rightly refused considering public interest, gravity of offence, and high risk of recidivism --- Bail declined. Cited Cases: • Shameel Ahmad v. The State (2009 SCMR 174) • Muhammad Siddique v. Imtiaz Begum & others (2002 SCMR 422) • Muhammad Nawaz v. The State (2011 MLD 299)

Summary: (a) Constitution of Pakistan — Art. 199 — Passport Rules, 2021, R.22 — Foreign Exchange Regulation Act, 1947 — Penal Code (XLV of 1860), Ss. 420, 468, 471, 477-A, 109 — Challenge to placement of name on Passport Control List (PCL)—Scope—Authority of Federal Government—Judicial scrutiny—Petitioner, accused in FIR No. 38/2022 under various penal and FERA provisions, challenged notification dated 23.01.2023 placing his name on the PCL—Held, Rule 22 of the Passport Rules, 2021 vests exclusive authority in the Federal Government to regulate entry/exit of citizens and to approve placement of names on PCL—In present case, no approval from Federal Government (i.e., Prime Minister or Cabinet) was placed on record—Neither the “Division concerned” nor the “Directorate General of Immigration & Passports” was shown to have issued or maintained the PCL entry—Thus, the impugned notification was without lawful authority—Petitioner’s case did not fall within either category 'A' (anti-state) or 'B' (refusal of passport) under Rule 22—No allegation of anti-state activity or refusal of passport facility was made—Court found that mandatory conditions for valid PCL inclusion were not met. Held, restriction on movement without due approval of Federal Government under Rule 22 was violative of law and liable to be set aside. —Messrs Mustafa Impex v. Federation PLD 2016 SC 808; Controller General of Accounts v. Fazal Ahmad 2021 SCMR 800; Government of Sindh v. Dr. Nadeem Rizvi 2020 SCMR 1 ref. (b) Passport Rules, 2021 — Rr. 2(e), 2(f), 22 — Interpretation of “Division concerned” and “Directorate General”—Administrative authority to place names on PCL—Requirements—Scope—Rule 22(2) requires the “Division concerned” and “Directorate General” to prepare and maintain the PCL—Definitions under Rule 2(e) & 2(f) clarified that Directorate General means Directorate of Immigration and Passports and the Division concerned refers to its supervising federal division—Held, no material shown that either of these authorities maintained or approved petitioner’s PCL entry—Action taken solely by FIA was ultra vires. Held, PCL placement must originate from competent authority as defined in Rules; administrative overreach by FIA alone is insufficient. (c) Passport Rules, 2021 — R.22 — Freedom of movement—Scope—Lack of lawful classification—Violation of fundamental rights—Held, where statutory procedure is not complied with and no valid reason under Category A or B of Rule 22 exists, restriction on a citizen’s right to travel amounts to infringement of constitutional liberty—Petitioner joined investigation, was on pre-arrest bail, and no allegation of evasion or risk of absconding was substantiated—State action was found to be arbitrary and unlawful. (d) Banks (Nationalization) Act, 1974 — S.8(a) Departure of accused from Pakistan after cognizance by Special Court—Scope—Respondents argued bar on petitioner’s travel under S.8(a) of the Banks Act—Held, bar becomes operative only once Special Court takes cognizance of the scheduled offence—In instant case, no challan had been submitted and cognizance had not been taken—Therefore, embargo under S.8(a) was not attracted. —Ali Gohar v. Pervaiz Ahmed PLD 2020 SC 427 ref. Disposition: Writ petition allowed. Notification dated 23.01.2023 placing petitioner’s name on Passport Control List was declared illegal, unlawful and without lawful authority. Respondents directed to remove petitioner’s name from PCL forthwith.

Summary: (a) Foreign Exchange Regulation Act, 1947— ----Ss. 12(1), 20(3) & 23B—Delayed realization of export proceeds—Jurisdiction of State Bank of Pakistan (SBP)—Scope—Petitioners challenged show cause notices issued by SBP for delayed realization of export proceeds beyond 120 days, alleging violation of Section 12(1) of the Foreign Exchange Regulation Act, 1947 ("FERA")—SBP, through Circular No.2 of 2023 (dated 31.03.2023), added Paragraph 33A to Chapter 12 of the FE Manual, imposing a lien on a certain percentage of delayed export proceeds until adjudication by the Foreign Exchange Adjudication Department—Held, SBP has no authority under Section 20(3) to impose preemptive financial restrictions or penalties before adjudication—Only Adjudicating Officers appointed under Section 23B have the power to determine violations and impose penalties after due process—Lien imposed under Circular No.2 was held to be ultra vires—Reliance placed on Article 10A of the Constitution, affirming the right to fair trial and due process before any punitive action. ----Cited Cases: • Muhammad Nawaz v. Federation of Pakistan (PLD 2019 Lahore 241) • Pakistan Industrial Credit & Investment Corp. Ltd. v. Federation of Pakistan (2021 CLD 732) (b) Constitutional Law—State Bank of Pakistan’s Regulatory Powers— ----Articles 9, 10A, 14 & 18 of the Constitution—Regulatory actions—Limits—Fundamental rights—SBP argued that Section 20(3) of FERA, 1947 empowered it to issue directions regarding payments and other acts by authorized dealers—Held, such directions must be limited to securing compliance with existing statutory provisions and cannot create new obligations beyond what the law prescribes—Imposing a lien on export proceeds without adjudication amounts to preemptive punishment, violating due process under Article 10A—Circular No.2 was also found to infringe upon fundamental rights, including the right to property (Article 23), dignity (Article 14), and freedom of trade and business (Article 18)—SBP cannot unilaterally bypass statutory adjudication procedures through administrative notifications. (c) Administrative Law—Ultra Vires Doctrine— ----Regulatory overreach—Held, SBP’s Circular No.2 (2023) was issued in excess of its legal authority and was ultra vires—SBP cannot arrogate to itself the powers conferred upon Adjudicating Officers under Section 23B—Only after a proper show cause, hearing, and adjudication can a penalty be imposed—Placing a lien before adjudication violates the doctrine of procedural fairness—Reliance placed on Federation of Pakistan v. Messrs Wazir Ali Industries (2022 SCMR 1027), confirming that administrative authorities cannot preempt statutory adjudication procedures through executive orders. ----Disposition: Petitions allowed—SBP Circular No.2 of 2023 (dated 31.03.2023) declared ultra vires—All show cause notices issued under the Circular struck down—SBP directed to proceed strictly in accordance with Section 23B of FERA, ensuring due process and fair adjudication before imposing any penalties or financial restrictions.

Summary: Bail granted (a) Criminal Procedure Code (V of 1898)----Bail Considerations ----S. 497----Foreign Exchange Regulation Act, 1947----Ss. 4 & 23----Engagement in illegal hundi/hawala business----Grant of bail----Scope. Accused was charged with running an illegal hundi/hawala business without a license. The case against him was based on an FIR registered following an investigation and raid by the FIA. The defense contended that the accused was falsely implicated, lacked direct involvement, and that there was no independent witness to the recovery memo. Additionally, the offense carried a maximum sentence of two years or a fine, making bail the rule and refusal the exception. The court held that in cases where an offense does not fall within the prohibitory clause of Section 497 Cr.P.C., bail must be favorably considered unless exceptional circumstances exist. Cited Cases: Zafar Iqbal v. Muhammad Anwar & others (2009 SCMR 1488) (b) Double Jeopardy and Bail Entitlement ----S. 497, Cr.P.C.----Offense punishable with fine or both----Right to bail. Where an offense is punishable with fine or with both imprisonment and fine, an accused is entitled to bail as of right. If the accused is ultimately sentenced to a fine only, keeping him in custody as an under-trial prisoner would amount to double jeopardy. (c) Prosecution’s Failure to Justify Further Detention ----Accused no longer required for investigation----First-time offender----Principle of bail not being a punishment before trial. The prosecution did not present any evidence that the accused was further required for investigation. The accused had no prior criminal record, and the court emphasized that bail does not mean acquittal but merely a change in custody from the state to sureties. The court reaffirmed that an innocent person’s unjustified incarceration before trial cannot be compensated, even if he is acquitted later. ----- Disposition Bail petition was allowed. The accused was granted bail upon furnishing bail bonds of Rs. 500,000/- with two sureties of like amount, subject to verification by the trial court ensuring that the sureties are local, reliable, and financially stable. The observations made were of a tentative nature and not intended to influence the trial court.