1. 2019 PCLRJ 1608
2. 2015 PCLRJ 1538
3. 2016 YLR 361
4. 2015 YLR 894
5. 2014 MLD 431
6. 2020 PLD 635
7. 2020 PLD 205
8. 2019 SCMR 332
1. 2019 PCLRJ 1608
FIA intercepted a bus and Petitioner got recovered a bag containing huge quantity of Pakistan Currency. FIA registered FIR under section 3 & 4 of ANti-Money Laundering Act, 2010. Nothing was on record to suggest that such amount was derived from illegal business of hundi/hawala etc. Case of further inquiry. Post arrest bail granted.
2019 PCrLJ 1608
2. 2015 PCLRJ 1538
YAQOOB KHAN VS State 2015 P Cr. L J 1538 [Peshawar] Before Qaiser Rashid Khan, J YAQOOB KHAN and another---Petitioners versus The STATE---Respondent
Cr. M. (B.A.) No.1151-P of 2015, decided on 03/07/2015.
Criminal Procedure Code (V of 1898)-------Ss. 497(2) & 103---Foreign Exchange Regulation Act (VII of 1947), Ss.5 & 23---Anti-Money Laundering Act (VII of 2010), Ss.3 & 4---Passports Act (XX of 1974), S.6---Hundi/Hawala business---Bail, grant of---Further inquiry---Despite prior information, raid was conducted without complying with the mandatory provisions of S.103, Cr.P.C., as no respectables of the locality, were associated to confirm the seizure of the money, documents and registers etc. from accused persons---Money so recovered from accused persons, was Pakistan currency and as to whether the said money belonged to accused persons, or was the amount involved in the business of Hundi/Hawala, was a question, which could only be thrashed out during the course of trial after recording evidence---Case of accused persons, prima facie, was one of further enquiry, entitling them to the concession of bail---Accused were granted bail, in circumstances.
Arshad Hussain Yousafzai for Petitioners.
Malik Muhammad Rehan Awan,Standing Counsel for the Federation.
Date of hearing: 3rd July, 2015.
JUDGMENT
QAISER RASHID KHAN, J.---Petitioners, seek bail in case FIR No.36 dated 10-6-2015 under sections 5/23 Foreign Exchange Regulation Act, 1947, 3/4 Anti-Money Laundering Act, 2010 and section 6 of the Passport Act, 1974, Police Station FIA/CBC, Peshawar after having been refused the said relief by the learned court below.
2.Allegations against the accused-petitioners are that they were found dealing in the illegal business of Hundi/Hawala at Shop No. A-5 1st Floor, City Centre, Naz Cinema Road Peshawar City whereby Pakistani currency of Rs.12923000 along with certain documents, registers, cheque books and deposit slips etc, were recovered from them on 10-6-2015, hence the FIR ibid.
Arguments heard and record perused.
3.As per the FIR, it was on prior information that Hundi/Hawala business was being carried out at Shop No. A-5 Naz Cinema Road Peshawar when a raid was conducted by the FIR raiding party and the accused- petitioners were found in the shop along with the Pakistani currency and the documents etc. as mentioned above. Despite prior information the raid was conducted without complying with the mandatory provisions of section. 103, Cr.P.C. as no respectables of the locality were associated to confirm the seizure of the money, documents and registers etc. from the accused-petitioners. Moreover, the amount so recovered from the accused-petitioners is Pakistani currency and as to whether the said money belongs to the accused- petitioners or is indeed the amount involved in the business of Hundi/Hawala is a question which can only be thrashed out during the course of trial after recording evidence. Taking all these factors in juxtaposition, the case of the accused-petitioners is prima facie one of further probe, entitling them to the concession of bail.
Accordingly, this bail petition is allowed and the accused-petitioners namely, Yaqoob Khan and Rehman Shah are granted bail provided each of them furnishes bail bonds in the sum of Rs.500000 (five lac) with two sureties, each in the like amount, to the satisfaction of Illaqa/Judicial Magistrate who shall ensure that the sureties are local, reliable and men of means.
Before parting with this order, it is directed that any observations recorded in this order, being purely tentative in nature, should in no way prejudice the proceedings before the learned trial Court where the case be decided on its own merits after recording evidence.
These are the reasons for my short order of the evendate.
HBT/312/PBail granted.
3. 2016 YLR 361
AZMAT ULLAH VS State 2016 Y L R 361 [Peshawar] Before Musarrat Hilali, J
AZMAT ULLAH---Petitioner Versus The STATE---Respondent
Cr. M.B.A. No.1548-P of 2015, decided on 07/09/2015.
Criminal Procedure Code (V of 1898)---
----S.497(2)---Foreign Exchange Regulation Act (VII of 1947), Ss.5 & 23---Anti-Money Laundering Act (VII of 2010), Ss.3 & 4---Illegal business of Hundi/Hawala, money laundering---Bail, grant of---Further inquiry---Accused was found in possession of Pakistan Currency and Saudi Riyals---Whether keeping said amount, was a crime; whether amount so recovered was derived from some unlawful means, were questions, which could not be resolved on the basis of material available on record; and same needed further inquiry---Nothing was on record to slightly suggest that accused was exclusive owner of alleged business---Offence for which accused was charged, did not fall within the prohibitory clause of S.497, Cr.P.C.---Case of accused being arguable for the purpose of bail, accused was admitted to bail, in circumstances.
Arshad Hussain Yousafzai for Petitioner.
Farhad Khan for the State.
Date of hearing: 7th September, 2015.
JUDGMENT
MUSARRAT HILALI, J.---Petitioner, through present petition, seeks bail in case FIR No.60/2010 dated 17.8.2015 registered for offence under sections 5/23 FER Act, 1947 read with 3/4 AML Act, 2010 Police Station FIA/CBC, Peshawar.
2.There was information to the FIA regarding hundi/hawala business by certain people at shop No.4 Al-Karim Sethi Market Chowk Yadgar, Peshawar. Believing the same to be true, the complainant along with other FIA officials raided the shop and found the petitioner dealing with the said business, who was asked about the license but he failed to produce the same. Search of the shop led to the recovery of relevant documents pertaining to hundi/hawala business, Pakistani currency amounting to Rs.6,43,100/- and Saudi Riyal 3500 etc were taken into custody, fully described in the recovery memo, hence the case was registered.
3.Heard. The court to which application for grant of bail is made, acts upon the material made available before it. In this case, the petitioner was found in possession of Pakistani currency, Saudi Riyal (as mentioned above). Whether keeping the said amount is a crime under the Act and whether the amount so recovered was derived from some unlawful means is a question, which cannot be resolved on the basis of material available on record and needs further inquiry. Further, there is nothing on record to slightly suggest that the petitioner was exclusive owner/director of the alleged business. Moreover, the offence for which the petitioner is charged does not fall within the prohibitory limb of section 497, Cr.P.C. Thus, keeping in view the above facts and circumstances, case of the petitioner is arguable for the purpose of bail.
This petition was allowed vide short of even date and above are reasons for the same.
HBT/394/PBail granted.
4. 2015 YLR 894
HABEEB ULLAH VS State 2015 Y L R 894 [Peshawar] Before Abdul Latif Khan, J
HABEEB ULLAH---Applicant Versus The STATE---Respondent
Criminal Miscellaneous Bail Application No.57-P of 2015, decided on 23/01/2015.
Criminal Procedure Code (V of 1898)---
----S. 497---Foreign Exchange Regulation Act (VII of 1947), Ss.5, 19 & 23---Anti-Money Laundering Act (VII of 2010), Ss.3 & 4---Running of business of Hundi and Foreign Currency without any permission, money laundering---Bail, grant of---No test purchase had been conducted by the FIA Authorities at the time of raid; in order to ascertain the actual truth about involvement of accused in the business of Hundi/Hawala; as well as foreign currency---No independent witness had been cited on the recovery memo, which was clear violation of provisions of S.103, Cr.P.C., and S.19 of Foreign Exchange Regulation Act, 1947, showing mala fide on the part of complainant/FIA authorities---Offences with which accused was charged, did not come under the prohibitory clause of S.497(1), Cr.P.C.---Grant of bail in such like cases, was a rule, and its refusal an exception---Ultimate conviction and incarceration of a guilty person could repair the wrong caused by as mistaken relief of interim bail granted to him, but no satisfactory reparation could be offered to an innocent person for his unjustified incarceration at any stage of the case, albeit his acquittal in the long run---Despite remaining in Police custody, accused had made no confession before the competent court, connecting him with the commission of offence---Accused was behind the bars since his arrest on 29-12-2014; and he was no more required to the FIA authorities for further investigation---Keeping accused behind the bars, would serve no useful purpose---Accused was admitted to bail, in circumstances.
Arshad Hussain Yousafzai for Applicant.
F.M. Sabir for the State.
Date of hearing: 23rd January, 2015.
JUDGMENT
ABDUL LATIF KHAN, J.---Petitioner Habeeb Ullah seeks post arrest bail in case F.I.R. No.60 dated 29-12-2014, under section 5/23 FER Act, 1947 r/w 3/4 AML Act, P.S. FIA/CBC, Peshawar.
2.As per prosecution case, the shop of petitioner was raided by the FIA officials on the basis of Inquiry No.23/2012 of FIA SBC Karachi, alleging therein involvement of petitioner in illegal business of Hundi Hawala and money laundering where petitioner was found busy in running business of Hundi and Foreign currency without any permission from the competent authority and cash amount of Rs.305,000 Pakistani currency along with Hundi Hawala documents, and receipts etc., were recovered from his possession. Consequently instant FIR was registered against the petitioner.
Arguments heard and record perused.
3.Perusal of record reveals that no test purchase has been conducted by the FIA authorities at the time of raid in order to ascertain the actual truth about involvement of petitioner in the business of Hundi Hawala as well as foreign currency. Besides, no independent witness has been cited on the recovery memo which is clear violation of provisions of section 103, Cr.P.C. and section 19 of FER Act, 1947, showing mala fide on the part of complainant/FIA authorities.
4.The offences with which the petitioner, is charged, do not come under the prohibitory clause of section 497(1), Cr.P.C. and in such like cases grant of bail is a rule and its refusal is an exception. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him but no satisfactory reparation can be offered to an innocent person for his unjustified incarceration at any stage of the case, albeit his acquittal in the long run. Despite remaining in police custody petitioner has made no confession before the competent Court, connecting him with the commission of offence. He is behind the bar since his arrest and no more required to the FIA authorities for further investigation therefore, keeping him behind the bar would serve no useful purpose.
5.In view of what has been observed above, this petition is allowed and petitioner is admitted to bail subject to furnishing bail bond to the tune of Rs.5,00,000 (Five Lac) with two sureties each in the like amount to the satisfaction of trial Court concerned, who shall ensure that the sureties are local, reliable and men of means.
The above are reasons of my short order of even date.
HBT/44/PBail granted.
5. 2014 MLD 431
SHAMS-UR-REHMAN VS State 2014 M L D 431 [Lahore] Before Ibad-ur-Rehman Lodhi, J
SHAMS-UR-REHMAN---Petitioner Versus The STATE and others---Respondents
Criminal Miscellaneous No.1170-B of 2013, decided on 20/08/2013.
Criminal Procedure Code (V of 1898)---
----S.497---Foreign Exchange Regulation Act (VII of 1947), Ss.4 &23---Anti-Money Laundering Act (VII of 2010), S.3---Possession of illegal foreign exchange and money laundering---Bail, grant of---Plea raised by accused was that he purchased foreign currency from money exchanger and neither he misused the same nor it was crime proceed---Validity---There was no allegation of any misuse of foreign exchange acquired by accused from authorized money exchanger, therefore, offence under S. 4 of Foreign Exchange Regulation Act, 1947, wasnot made out---For offence of money laundering, offending money must be proceed of crime---Nothing was alleged against accused that foreign exchange recovered from the possession of accused was in fact aproceedofcrime---Bailwas allowedincircumstances.
Manzoor Hussain Malik for Petitioner.
Sarkar Abbas, Standing Counsel.
Tariq Mahmood, Inspector F.I.A.
ORDER
IBAD-UR-REHMAN LODHI, J.---Petitioner Shams-ur-Rehman son of Akhtar Muhammad seeks post arrest bail in case F.I.R. No.8 of 2013 dated 21-6-2013 under section 4 of Anti-Money Laundering Act 2010, Section 23 of the Foreign Exchange Regulation Act, 1947 and 109, P.P.C., at Police Station, FIA/CBC, Islamabad, based upon F.I.R. No.86 dated 20-6-2013 registered at Police Station Taman, Tehsil Talagang, District Chakwal.
2.This case was originally registered in Police Station Taman, District Chakwal for commission of alleged offence under Section 4 of Anti-Money Laundering Act, 2010 and section 23 of Foreign Exchange Regulations Act, 1947 read with section 109 P.P.C. and subsequently being a scheduled offence, the investigation has been carried out by F.I.A in C.B.C. Rawalpindi/Islamabad.
3.The allegation against the present petitioner is that on interception when he was alighted from his car, he was found in possession of 25,61,452 Saudi Riyal, 81,000 Pounds, 6,16,050 Norwegians Krone, 3,71,645 Euro, 2,000 Kuwaiti Dinar, 17,000 Omani Riyal, 9,27,000 Japanese Yen, 1,00,000 Qatari Riyal and 45,000 Denish Krone,and according to the allegations contained in the F.I.R at the relevant time, the petitioner was not in a position to produce any valid certificate of having in possession of such huge foreign exchange.
4.Learned counsel for the petitioner first of all referred to a certificate issued by Al Nahdi Exchange showing the purchase of the currency from the said money exchange on 22-4-2013. The Investigating Officerofthecasehasverifiedsuchvalidpurchaseofforeignexchange. Learned counsel while referring section 4(3) of the Foreign Exchange Regulation Act, 1947 has argued that where any foreign exchange is acquired by any person other than an authorized dealer for any particular purpose, or where any person has been permitted conditionally to acquire foreign exchange, the said person shall not use theforeignexchangesoacquiredotherwisethanforthatpurpose.
There is no allegation of anymisuse of the foreign exchange acquired by the petitioner from an authorized money exchanger. Thus, the offence under section 4 of the Foreign Exchange Regulation Act, 1947 does not make out. Further contends in this regard that even otherwise by virtue of section 23 of the said Act, the contravention of section 4(3) of the Act would entail a maximum punishment of two years or with fine or with both and thus keeping in view the maximum sentence provided for such contravention and the fact that the imposition of fine has been provided as an independent sentence, the offence falls outside the scope of prohibitory clause of section 497, Cr.P.C.
5.With regard to the offence under section 4 of the Anti-Money Laundering Act, 2010, it has been argued that the offence of money laundering has been defined in section 3 of the Act and for every such offence of money laundering, the offending money must be a proceed of crime, whereas according to the allegation nothing has been alleged against the petitioner that the foreign exchange recovered from the possession of the petitioner was in fact a proceed of crime. With regard to the offence under Anti-Money Laundering Act, 2010 a punishment in view of section 4 thereof is provided as minimum sentence of one year and at the time of grant of bail, which is to be kept in view is the minimum degree of the sentence provided and on such consideration, the offence falls outside the scope of prohibitory clause of section 497, Cr.P.C.
6.This is a bail after arrest. On all the grounds argued by the learned counsel for the petitioner, the prosecution has no satisfactory contest and thus, the petitioner is entitled to be released on bail. Resultantly, the instant petition is allowed and the petitioner is allowed post arrest bail subject to his furnishing bail bonds in the sum of Rs.10,00,000 (Ten lac only) with one surety in the like amount to the satisfaction of learned trial Court.
MH/S-91/LBail allowed.
6. 2020 PLD 635
P L D 2020 Supreme Court 635 Anti-Money Laundering Act (VII of 2010)---
----S. 3---Money laundering through fake bank accounts---Bail, grant of---Medical grounds---Deteriorating cardiac health---Request for medical treatment outside Pakistan, denial of---Given advance age of petitioner (78 years) his cardiac health condition was a risk, nonetheless, his request for travelling abroad for his medical treatment could not be entertained---As a sick and infirm person, the accused was entitled to concessions that the law provided to all; these did not include offshore treatments---With scores of accused persons awaiting conclusions of their long drawn trials in over-crowded prisons, letting the few privileged to jump the queue in order to swap rigors of incarceration with comforts that few could afford would be a travesty---Request of accused for treatment abroad was declined, however, since his condition had alarmingly deteriorated and it was unanimously held by a good number of cardiac physicians of repute that he immediately required surgery for aortic valve transplant, a hugely risk intensive procedure that needed to be undertaken under most conducive environment, therefore, it would be appropriate to permit accused to undertake the procedure free from custodial stresses---Accused had been behind bars for a period exceeding two years; his continuous incarceration coupled with fragile health conditions and proposed surgery squarely made his case one of hardship and on that ground alone he was to be released on bail---Accused was granted bail in circumstances with the directions that he shall furnish a bank guarantee either personally or through a surety in the sum of Rs.100 million from a scheduled bank with the Registrar of the Supreme Court besides surrendering his travelling documents; that his name shall be placed on Exit Control List and he shall not be allowed to depart from the jurisdiction of the Accountability Court; that he shall join investigation as and when required by the NAB and also ensure his representation before the Accountability Court, either personally or through video link, whichever was found convenient under the circumstances; that in the event of physical incapacity of accused, his request for dispensation and representation through a counsel shall be considered most thoughtfully, and that in the event of non-compliance with the said directions, the NAB may approach the Supreme Court for the recall of concession of bail---Petition for leave to appeal was converted into appeal and allowed.
7. 2020 PLD 205
P L D 2020 Lahore 205 Before Ali Baqar Najafi and Sardar Ahmed Naeem, JJ
MARYAM NAWAZ SHARIF---Petitioner Versus CHAIRMAN, NAB and 2 others---Respondents
Writ Petition No.56733 of 2019, decided on 4th November, 2019.
(a) National Accountability Ordinance (XVIII of 1999)---
----S. 9(a)(iv)(xii) & (b)---Anti-Money Laundering Act (VII of 2010), S.3---Constitution of Pakistan, Art. 199---Constitutional petition--- Bail, grant of---Money laundering---Predicate offence, proof of---Layers of transactions---Foreign investment---Case of further inquiry---Petitioner was one of Directors in a Sugar Mill allegedly having received investment from abroad to launder ill-gotten money---National Accountability Bureau (NAB) arrested petitioner for receiving a sum of Rs.70,000,000/- in her account from account of said Sugar Mill---Validity---Petitioner had not actively participated, connived, abetted or aided to acquire assets disproportionate to known sources of income as no connection of petitioner was established with foreign nationals in order to persuade them to invest in Sugar Mill so as to attract provisions of National Accountability Ordinance, 1999 and Anti-Money Laundering Act, 2010---Question of making layers and becoming beneficial also required further probe as investments in real estate in UAE was not out of some crime proceeds in form of ill-gotten money---Money which had come from UAE was not black money having origin from some crime proceeds of internationally recognized crimes like terrorism, etc.---Attracting foreign investment had always been a perennial demand of every government and all governments would dream of it but great hurdles were always faced by them to make it a reality---Bank statement of petitioner had shown withdrawal of Rs.70,000,000/- from account---High Court directed petitioner to deposit sum of Rs.70,000,000/- in High Court and passed a conditional bail granting order---Constitutional petition was allowed accordingly.
Brig.(R) Karrar Ali Agha v. National Accountability Court No.II, Lahore and another PLJ 2010 Lah. 78; The State through Chairman NAB and others v. Muhammad Asif Saigol and others PLD 29016 SC 620; Abdul Hameed Dogar v. Federal Government through Secretary Ministry of Interior and 2 others PLD 2016 SC 454; Muhammad Ikram and others v. The State PLD 1965 (W.P.) Lah. 461; Mst. Ramzan Bibi and another v. Hakim Muzaffar Hussain PLD 1967 Lah. 186; Ramesh M. Audeshi v. The State 2002 PCr.LJ 1712; Ch. Tanveer Khan v. Chairman, National Accountability Bureau and others PLD 2002 SC 572; Badar Alam Bachani v. The State through Chairman NAB and another 2010 PCr.LJ 1988; Noorshad v. Chairman National Accountability Bureau and 5 others 2017 PCr.LJ 1258. Chairman, National Accountability Bureau, Islamabad through Prosecutor General Accountability, Islamabad v. Mian Muhammad Nawas Sharif and 2 others PLD 2019 SC 445; Muhammad Zoonoon Khan v. Federation of Pakistan through Secretary Ministry of Law, Justice, Human Rights and Parliaments Affairs, Islamabad PLD 2014 FSC 63; Miss Shahla Raza v. The State 1991 MLD 1814;Mst. Afsar Bibi v. The State 2005 PCr.LJ 164; Khan Haroon Resikh v. The State and 2 others PLD 2003 Lah. 517; Messrs Hudaibya Paper Mills Ltd. and others v. Federation of Pakistan and others PLD 2016 Lah. 667; National Accountability Bureau (NAB) through Chairman v. Messrs Hudaibya Paper MiIlz Limited Lahore and others PLD 2018 SC 296; Asif Ali Zardari v. The State and another 1992 PCr.LJ 58; Tariq Sultan and another v. National Accountability Bureau through Chairman and 2 others 2012 PCr.LJ 1983; Dr. Asghar Ali v. The State and others 2016 PCr.LJ 193; PLD 2017 SC 692; Waseem Yaqoob v. Chief Commissioner, Income Tax, Lahore and 2 others 2012 PTD 1883; Abdul Aziz Memon and others v. The State and others PLD 2013 SC 594; Syed Mushahid Shah and others v. Federal Investment Agency and others 2017 SCMR 1218; Tallat Ishaq v. National Accountability Bureau through Chirman and others PLD 2019 SC 112; Abdul Aziz Khan Niazi v. The State through Chriman NAB Islamabad PLD 2003 SC 668; Muhammad Sabtain Khan v. National Accountability Bureau and others W.P. No.42682/2019; Hafiz Mian Muhammad Nauman v. Director General NAB and others W.P. No.581/2019 and Zohra Khanum v. The State 2009 SCMR 751 rel.
(b) National Accountability Ordinance (XVIII of 1999)---
----S. 9(a)(iv)---Pecuniary resources---Legality---Scope---Mere possession of any pecuniary resources of property is not an offence but its failure to satisfactorily account for such possession of pecuniary resources of property that makes possession objectionable and constitute relevant offence.
Ghani-ur-Rehman v. National Accountability Bureau and others PLD 2011 SC 1144 and Brig.(R) Imtiaz Ahmad v. The State PLD 2017 Lah. 23 rel.
(c) Anti-Money Laundering Act (VII of 2010)---
----S. 3---Money laundering, offence of---Preconditions---Some nexus with crime proceed and therefore, S.3 presupposes that some crime has been committed.
(d) National Accountability Ordinance (XVIII of 1999)---
----S. 9(a)(iv)---Assets beyond known sources of income---Benefit of any transaction---Principle---Benefit of any transaction was to be clear and visibly established and not shrouded in mystery---Withdrawal of any amount from Bank cannot be termed as illegal gotten money or an asset beyond known sources of income if source of money is shown in record.
Azam Nazeer Tarar, Muhammad Amjad Pervaiz, Barrister Momin Malik, Shan Saeed Ghuman, Khawar Ikram Bhatti, Muhammad Aurangzeb, Muhammad Nawaz Chaudary, Muhammad Adil Chatha, Salman Sarwar Rao, Sultan Mehmood Khan, Ch. Imtiaz Elahi and Hafeez ur Rehman for the Petitioner.
M/s Jahanzeb Bharwana, Ch. Khaliq uz Zaman, Addl. Prosecutors, Naeem Tariq Sanghera, Syed Faisal Raza Bukhari, Ahsan Rasool Chatha, Yasir Siddique Mughal, Arshad Qayyum and Muhammad Ali Chatha, Special Prosecutors for NAB with Usman Iftikhar, I.O./A.D., Aftab Ahmed, Case Officer/Addl. Director and Zafar Hussain Ahmed, Addl. A.G. for Respondents.
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