PLJ 2023 Cr.C. 150
Bail--
----A Court considering a bail application has to tentatively look to facts and circumstances of case and once it comes to inference that no reasonable ground exists for believing that accused has committed a non-bailable offence, it has discretion to release accused on bail--In order to ascertain whether reasonable grounds exist or not, Court should confine itself to material placed before it by prosecution to see whether some perceptible evidence is available against accused, which if left un-rebutted, may lead to inference of guilt--Reasonable grounds are not to be confused with mere allegations or suspicions nor with tested and proved evidence, which law requires for a person’s conviction for an offence--The term “reason to believe” can be classified at a higher pedestal than mere suspicion and allegation--Mere involvement in a heinous offence is no ground for refusing bail to an accused who otherwise becomes entitled for concession of bail. [P. 153] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Foreign Exchange Regulation Act, (VII of 1974), Ss. 4, 5, 8 & 23 amended by Foreign Exchange Regulation (Amendment) Act, 2020--Anti-Money Laundering Act, (VII of 2010), Ss. 3/4--Pakistan Penal Code, (XLV of 1860), S. 109--Bail after arrest, grant of--The allegation against petitioner is that a raiding team was established, a member of which got exchanged a 100 AED (United Arab Emirates Dirham) from petitioner and thereafter shop of petitioner was raided and 600/- SAR (Saudi Arabian Riyal), Rs. 53,000/- and 100 AED (United Arab Emirates dirham note were recovered, which were taken into possession by SI--The case is being investigated with regard to commission of offences under Sections 4, 5, 8 and 23 of Foreign Exchange Regulation Act, (VII of 1947) and under Sections 3 and 4 of Anti-Money Laundering Act, 2010--Section 3 of Anti-Money Laundering Act, 2010, defines offence of money laundering, while section 4 provides punishment for commission of such an offence--No evidence could be collected which could prove that petitioner had derived or obtained any property, directly or indirectly, from commission of a predicate offence or a foreign serious offence--It is also a fact that petitioner remained in custody of Federal Investigation Agency for as many as seven days, however, nothing was got recovered from possession of petitioner--In this manner liability of petitioner for commission of offence made punishable under Section 4 of Anti-Money Laundering Act, 2010 shall remain a moot point and shall be determined by learned trial Court after recording of evidence--It may also be observed that case of petitioner is quite distinct from co-accused of petitioner--With regard to other offences being investigated against petitioner under Sections 4, 5, 8 and 23 of Foreign Exchange Regulation Act, (VII of 1947) as amended by Foreign Exchange Regulation (Amendment) Act, 2020, it is observed that section 23 of Foreign Exchange Regulation Act, 1947 provides for penalty for contravening provisions of Sections 4, 5 and 8 of Foreign Exchange Regulation Act, 1947 and sentence which may be awarded to an accused has been determined as imprisonment for a term which may extend to five years or with fine or with both--Bail accepted. [Pp. 153, 154 & 155] B & C
Foreign Exchange Regulation Act, 1974 (VII of 1974)--
----S. 23--The insertion of word “or” in Section 23 of Foreign Exchange Regulation Act, 1947 as amended by Foreign Exchange Regulation (Amendment) Act, 2020 by Legislature, means that sentence of rigorous imprisonment is not mandatory and it has been left at discretion of Court of law to either sentence accused with imprisonment or with fine or both--The application of this discretion, while sentencing accused, can only be undertaken by trial Court after recording of evidence--The law provides for possibility that if petitioner is convicted after recording of evidence he may only be sentenced to payment of fine only--Hence further incarceration of petitioner would serve no purpose at all--The petitioner is behind bars since his arrest and is no more required by Federal Investigation Agency for further investigation--There is no proof available with prosecution that petitioner will either abscond or temper with prosecution evidence--All these aspects make case of petitioner requiring further inquiry and probe which can only be undertaken by trial Court--Besides, there is nothing on record regarding previous history of conviction or involvement of petitioner in such like offences--Bail accepted. [Pp. 155 & 156] D
Mr. Imran Ashraf, Advocate for Petitioner.
Mr. Muhammad Ramzan Shama, Assistant Attorney General for Pakistan for State.
Date of hearing: 12.1.2022.
PLJ 2023 Cr.C. 150
[Lahore High Court, Bahawalpur Bench]
Present: Sadiq Mahmud Khurram, J.
MUHAMMAD IMTIAZ--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 4817-B of 2021, decided on 12.1.2022.
Order
Through the instant petition filed under Section 497, Cr.P.C., the petitioner, namely Muhammad Imtiaz seeks post- arrest bail in the case FIR No. C # 207 of 2021 dated 06.12.2021, registered at Police Station FIA, Circle Bahawalpur, in respect of offences under Sections 4, 5, 8 and 23 of the Foreign Exchange Regulation Act, (VII of 1947) as amended by the Foreign Exchange Regulation (Amendment) Act, 2020 and under Sections 3 and 4 of Anti-Money Laundering Act, 2010 and under Section 109, PPC.
2. As per contents of FIR there was information given to the FIA that the petitioner was involved in the illegal business of hundi/ hawala therefore, on 06.12.2021, a raiding team was established, a member of which got exchanged a 100 AED (United Arab Emirates Dirham) from the petitioner and thereafter the shop of the petitioner namely Muhammad Imtiaz was raided and 600/- SAR (Saudi Arabian Riyal), Rs. 53,000/- and the 100 AED (United Arab Emirates Dirham) notes were recovered, which were taken into possession by Abdul Wakeel, SI.
3. I have heard learned counsel for petitioner and the learned Assistant Attorney General for Pakistan and have gone through the record with their able assistance.
4. A Court considering a bail application has to tentatively look to the facts and circumstances of the case and once it comes to the inference that no reasonable ground exists for believing that the accused has committed a non-bailable offence, it has the discretion to release the accused on bail. In order to ascertain whether reasonable grounds exist or not, the Court should confine itself to the material placed before it by the prosecution to see whether some perceptible evidence is available against the accused, which if left un-rebutted, may lead to inference of guilt. Reasonable grounds are not to be confused with mere allegations or suspicions nor with tested and proved evidence, which the law requires for a person’s conviction for an offence. The term “reason to believe” can be classified at a higher pedestal than mere suspicion and allegation. Mere involvement in a heinous offence is no ground for refusing bail to an accused who otherwise becomes entitled for the concession of bail. The allegation against the petitioner is that on 06.12.2021, a raiding team was established, a member of which got exchanged a 100 AED (United Arab Emirates Dirham) from the petitioner and thereafter the shop of the petitioner namely Muhammad Imtiaz was raided and 600/- SAR (Saudi Arabian Riyal), Rs. 53,000/- and the 100 AED (United Arab Emirates dirham) note were recovered, which were taken into possession by Abdul Wakeel, SI. The case is being investigated with regard to commission of offences under Sections 4, 5, 8 and 23 of the Foreign Exchange Regulation Act, (VII of 1947) and under Sections 3 and 4 of Anti-Money Laundering Act, 2010. Section 3 of the Anti-Money Laundering Act, 2010, defines the offence of money laundering, while Section 4 provides the punishment for commission of such an offence. Section 3 of the Anti-Money Laundering Act, 2010 reads as under:
“3. Offence of money laundering.--A person shall be guilty of offence of money laundering , if the person--
(a) acquires, converts, possesses, uses or transfers property, knowing or having reason to believe that such property is proceeds of crime;
(b) conceals or disguises the true nature, origin, location, disposi tion, movement or ownership of property, knowing or having reason to believe that such property is proceeds of crime;
(c) holds or possesses on behalf of any other person any property knowing or having reason to believe that such property is proceeds of crime; or
(d) participate in, associates, conspires to commit, attempts to commit, aids, abets, facilitates, or counsels the commission of the acts specified in clauses (a), ( b) and (c).
Explanation I. The knowledge, intent or purpose required as an element of an offence set forth in this section may be inferred from factual circumstances in accordance with the Qanun-e-Shahadat 1984 (P.O. 10 of 1984)
Explanation II.- For the purposes of proving an offence under this section, the conviction of an accused for the respective predicate offence shall not be required.”
On cumulative reading of Sections 3 and 4 of the Anti-Money Laundering Act, 2010, the expression proceeds of crime appears to be a prerequisite for constituting an offence made punishable under Section 4 of the Anti-Money Laundering Act, 2010. Section 2 (xxviii) of the Anti-Money Laundering Act, 2010 defines “proceeds of crime” as under:
“proceeds of crime” means any property derived or obtained directly or indirectly by any person from the commission of a predicate offence or a foreign serious offence;
Section 2 (xvi) of the Anti-Money Laundering Act, 2010 defines “foreign serious offence” as under:
(xvi) “foreign serious offence” means an offence,--
(a) against the law of a foreign state stated in a certificate issued by, or on behalf of, the government of that foreign state; and
(b) which, had it occurred in Pakistan, would have constituted a predicate offence;
Section 2 (xxvi) of the Anti-Money Laundering Act, 2010 defines “predicate offence” as under:
(xxvi) “predicate offence” means an offence specified in Schedule-I to this Act;
A perusal of the record reveals that during the investigation of the case, no evidence could be collected which could prove that the petitioner had derived or obtained any property, directly or indirectly, from the commission of a predicate offence or a foreign serious offence. It is also a fact that the petitioner remained in the custody of the Federal Investigation Agency for as many as seven days, however, nothing was got recovered from the possession of the petitioner. In this manner the liability of the petitioner for commission of the offence made punishable under Section 4 of Anti-Money Laundering Act, 2010 shall remain a moot point and shall be determined by the learned trial Court after recording of evidence. It may also be observed that the case of the petitioner is quite distinct from Muhammad Altaf and Tahir Abbas, the co-accused of the petitioner. With regard to the other offences being investigated against the petitioner under Sections 4, 5, 8 and 23 of the Foreign Exchange Regulation Act, (VII of 1947) as amended by the Foreign Exchange Regulation (Amendment) Act, 2020, it is observed that section 23 of the Foreign Exchange Regulation Act, 1947 provides for the penalty for contravening the provisions of Sections 4, 5 and 8 of the Foreign Exchange Regulation Act, 1947 and the sentence which may be awarded to an accused has been determined as imprisonment for a term which may extend to five years or with fine or with both. Section 23 of the Foreign Exchange Regulation Act, 1947 as amended by the Foreign Exchange Regulation (Amendment) Act, 2020 reads as under:
“23. Penalty and procedure. (1) Whoever contravenes, attempts to contravene or abets the contravention of any of the provisions of this Act or of any rule, direction or order made thereunder, shall notwithstanding anything contained in the Code of Criminal procedure, 1898, be tried by a Tribunal constituted by Section 23A, and shall be punishable with rigorous imprisonment for a term which may extend to five years or with fine or with both, and any such Tribunal trying any such contravention may, if it thinks fit, and in addition to any sentence which it may impose for such contravention, direct that any currency, security, gold or silver, or goods or other property in respect of which the contravention has taken place shall be confiscated.”
The insertion of the word “or” in Section 23 of the Foreign Exchange Regulation Act, 1947 as amended by the Foreign Exchange Regulation (Amendment) Act, 2020 by the Legislature, means that the sentence of rigorous imprisonment is not mandatory and it has been left at the discretion of the Court of law to either sentence the accused with imprisonment or with fine or both. The application of this discretion, while sentencing the accused, can only be undertaken by the learned trial Court after recording of the evidence. The law provides for the
possibility that if the petitioner is convicted after recording of evidence he may only be sentenced to payment of fine only. Hence further incarceration of the petitioner would serve no purpose at all. The petitioner is behind the bars since his arrest and is no more required by the Federal Investigation Agency for further investigation. There is no proof available with the prosecution that the petitioner will either abscond or temper with the prosecution evidence. All these aspects make the case of the petitioner requiring further inquiry and probe which can only be undertaken by the trial Court. Besides, there is nothing on record regarding previous history of conviction or involvement of petitioner in such like offences.
5. For the foregoing reasons, the petition in hand is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs. 10,00,000/- (Rupees ten lac only) with two sureties each in the like amount to the satisfaction of the learned trial Court.
6. It is clarified that the observations enumerated are absolutely tentative in nature and restricted only to the extent of this particular petition, having no nexus and relevance with the trial, which shall be concluded quite independently and purely on merit.
(A.A.K.) Bail accepted
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