Iftikhar Muhammad Chaudhry, CJ.--These appeals by leave of the Court have been filed against the judgment dated 15.10.2003 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi. As common questions of facts and law are involved in all the appeals, therefore, we intend to dispose them of by means of instant common judgment.
2. Precisely stating facts of the case are that in pursuance of a spy information that foreign currency is being smuggled to China (Ormachi) from Islamabad through Flight No XO-772, Customs Authorities' conducted a raid and recovered US$ from the possession of respondents.
Details whereof are as under:-- Sr.#Name of respondent Amount Khud-e-Noor s/o Mian Noor.Khan 60000 US$ Raees Khan. s/o Nauroz Khan 41000US$ 1320 China Currency Gulbat Khan s/o Zargul Khan 46000 US$ 337 China Currency .Sher Wali Khan s/o R.oshan Ali Khan 22000 US$ 160 China Currency 5.Nazir Muhammad s/o Bakht Meen 53450 US$ 732 China Currency 6.Amanullah Khan s/o Aman Khan 31500 US$ 850 China Currency IGul Khan s/o Muhammad Jan 89500 US$ Shero Khan s/o Zargul Khan 28100 US$ Muhammad Zaman s/o Aleem Jan 61000 US$ 'In the circumstances, cases vide FIRs Nos. 167 to 175 dated 11th April, 2001 u/S. 156 (1) (8) of the Customs Act 1969 [herein after referred to as the Act, 1969'] were registered against them. On completion of investigation, they were challaned before the Special Judge, Customs, Taxation and Anti Smuggling Rawalpindi-Islamabad. Learned trial Court after trial, vide judgments dated 30th January 2003, convicted the respondents u/S. 156 (1) (8) of the Act 1969 and sentenced them to undergo R.I for one month (which they had already undergone) with fine of Rs. 100,000/- and in defualt in the payment of fine to further undergo imprisonment for two years each. High Court allowed their appeals vide impugned judgment whereby conviction/ sentences awarded to them by the trial Court were set aside.
3.Leave to appeal has been granted to examine the question with regard to interpretation of amended Section 4 of the Protection of Economic Reforms Act, 1992 [herein after referred to as "the Act, 1992"].
4.Learned counsel appearing for appellant contended that respondents were in unauthorized possession of the foreign currency as the same has not been purchased by them from an authorized dealer, thus have failed to fulfill the requirement of Sections 2 (b) and 4 of the Act 1992, in view of the judgment reported in Irshad Ahmad Shaikh v. State (2000 SCM R 814).
5.Learned counsel for respondents contended that impugned judgment does not suffer from any illegality or irregularity, as the same has been passed by the learned High Court after taking into consideration all the attending circumstances of the case, as such the same deserves to be upheld. To support the acquittal of the respondents, he relied upon the judgment in the case of Asghar .Ali v. State (PLD 2003 SC 250).
6.We have heard learned counsel for the parties and have also gone through the relevant provision of the law on the subject. Before examining the case on merits, it is considered appropriate to point out that according to the definition of "economic reforms", incorporated Section 2 (1) (b) of the Act, 1992, it means "economic policies and programmes, laws and regulations announced, promulgated or implemented by the Government on and after the 7th day of November, 1990 relating to privatization of public sector enterprises, and nationalized banks, promotion of savings and investments, introduction of fiscal incentives for industrialization and deregulation of investment, banking, finance, exchange and payments systems, holding and transfer of currencies". With reference to instant case, word 'transfer' is most important. It may be noted the vide Foreign Exchange (Temporary Restriction) Act, 1998 [herein after referred to as the Act, 1998'], the concept of transfer of 'currency' was not amended. Obviously transfer of the currency out side the country means legal transfer i.e. through authorized dealers, banks etc. and not through personal baggage or by any other illegal manner. It is to be noted that the Act of 1998 is applicable w.e.f 28th May 1998 and in pursuance of its Section 2, the protection of the Act, 1992 was suspended and after the promulgation of the same on 21th July 1998, State Bank of Pakistan issued Notification No. 1017 (1) 1998 on even date. According to clause (d) of the said notification, a person was authorized to take out of Pakistan foreign exchange issued to him by an Authorized Dealer in Pakistan and endorsed on his passport to the extent of 10,000 US$ or equivalent thereto any other currency. The word 'transfer' obviously would mean a 'legal transfer' and even if a person claims to be benefited of the Act 1992, which was amended subsequently by means of Act, 1998, he has to show that he is legally authorized to transfer the money out side the country for any purpose including his business. According to Section 2(a) of the Foreign Exchange Regulation Act, 1947, "authorized" dealer means a person for the time authorized under Section 3 to deal in foreign exchange". Therefore, it is concluded that in respect of a criminal case, falling under any provision of law, prevailing in the country, if a person claims that he has been authorized to take the currency out of Pakistan, he has to adopt the proper procedure i.e. through Bank, etc. and no one can be allowed to shift currency except to the tune of 10,000 US$, as it has been prescribed by the State Bank of Pakistan that if it has been purchased from the authorized dealer.
7. Next question for consideration is whether in respect of culpable act, committed by a person the Act, 1969 shall remain suspended in terms of Section 3 of the Act, 1992. Answer to this proposition has already been given in the case of Irshad Ahmed Shaikh (ibid). Relevant para therefrom is reproduced herein below for convenience:-- "In order to comprehend the effect and paradigms of the operation of the Protection of the Economic Reforms Act, 1992, it is necessary to see the objective, which the legislation set out to achieve. This inter alia, would emerge upon a close scrutiny of the entire enactment and, if and when any ambiguity or uncertainty comes to be encountered, by making reference to the preamble, where after, if even then a satisfactory answer eludes the pursuit, going as far as the previous legislative measures on the subject, when available, as also the subsequent legislative developments, if any. An examination of the Protection of the Economic Reforms Act, 1992, clearly shows that the enactment was the culmination point of the economic policies, programmes, laws and regulations announced, promulgated or implemented by the Government (of Mian Muhammad Nawaz Sharif on and after November, 7, 1990 relating inter alia, to promotion of savings and investments, introduction of fiscal incentives for industrialization and deregulation of investment, banking, finance, exchange and payments systems, holding and transfer of currencies and privatization of public sector enterprises alongwith nationalized banks. It was in that context that Section 3 of the statute was mandated to have effect notwithstanding anything contained in the Foreign Exchange Regulation Act, 1947, the Custom Act, 1969, the Income Tax Ordinance, 1979 or any other law for the time being in force. The phrase last-quoted, therefore, is not one where the implications of the rule of ejusdem generic may be totally uninvocable. One, there from may be tempted to say here that the expression "any other law for the time being in force" could have meant largely to refer to fiscal and monetary promulgation having a direct nexus with economic activities. Two things seem to have been clearly excluded, one, the Constitutional law, being unamenable to supersession by a sub-Constitutional measure and second, as a corollary and even otherwise, laws inter-acting with criminal or penal acts of commission or omission. This in Zahoor Illahi v. Zulfiqar Ali Bhutto, PLD 1975 SC 383, this Court construed the generalized immunity, attaching to the Prime Minister under Article 248 of the Constitution, not to extend to illegal or criminal acts, such as contempt in contemplation of Article 204. Section 4 of the Act, which follows upon Section 3, opens itself to a similar interpretation and an entitlement of all persons freely "to bring, hold, sell, transfer and take out foreign exchange within, or out of Pakistan in any form", no liability attaching for making a foreign currency declaration nor such persons being liable to "be questioned in regard to the same", do not occasion a free licence to transgress the bonds of penal law nor to bypass or circumvent criminal processes, such as investigations of inquiries to assess culpability nor the consequential trials to determine punishment or penalties. In other words, the declarations being exempted and the question being foregone, pertain specifically to the absolute rights and total freedom to bring, hold, sell, transfer and take out foreign exchange within or out of Pakistan in any form, no restriction or preclusion under the Foreign Exchange Regulation Act, 1947, the Customs Act, 1969 or the Income Tax Ordinance 1979, being attracted nor any taxes or duties being payable nor any confiscation or other such recourse being available. Even so, if such money or part thereof was utilized or acquired the status of being the subject-matter of an offence then, while the foreign exchange would still remain beyond the realm of being taken over, an inquiry to bring home the guilty of an accused person e.g. of theft or embezzlement could surely be undertaken and pushed to its logical conclusion. The question asked, therefore, pursuant to Section 4 of the enactment, would in no way result in deprivation of the foreign exchange in focus, as inclusive of the rights to own or possess the same yet the use thereof of for or in relation to a criminal or penal act could always be probed."
8. Learned counsel appearing for respondents relied upon the judgment in the case of Asghar Ali (ibid). As per the facts of this case, raiding party of the Coastguards apprehended the petitioner alongwith the vehicle parked on the seashore at 'Spot Bander'near a 'HORA' and during the personal search of the petitioner, Pakistani and foreign currencies were taken into possession. The learned trial Court convicted the petitioner but the learned High Court maintained his conviction/sentence under Section 156(1)(8) and (89) of Act, 1969; the appeal filed by him before this Court was allowed and this Court set aside the conviction/sentence. It may be noted that petitioner in that case claimed the possession of Pak currency but denied the possession of foreign currency which was recovered from the secret cavities of the vehicle in which he and his companions were traveling; as and such this Court held that thus the part of the transaction relating to the recovery of foreign currency from the secret cavities of vehicle would constitute an offence under Section 156(1)(8) of the Customs Act, 1969 whereas the part relating to the recovery of Pak currency from the possession of petitioner while traveling in the territory of Pakistan would not be an offence under the Customs Act, 1969, therefore, the seizure of Pak currency and registration of case under Customs Act, 1969 to that extent was illegal and consequently, the trial of the petitioner before the departmental authorities would be without jurisdiction and illegal." In instant case, the prosecution has produced overwhelming incriminating evidence against the respondents to establish that they were found smuggling US$ out of country in pursuance of Section 2(5) read with Section 156(1)(8) of the Act, 1969. It may not be out of context to note that though the respondents claimed them that they have purchased the currency from money changer but during investigation the receipt so produced by them was found to be fake. Therefore, we are of the opinion that under these circumstances, the respondents were not authorized to transfer US $ 10,000/- if it is proved, subject to the condition that the same has been purchased from the authorize dealer, in view of the notification of the State Bank of Pakistan, referred to herein above. Admittedly the respondents failed to discharge their burden in terms of Section 167 of. the Act, 1969, therefore, learned Trial Court rightly convicted them. However, we are of (he opinion that in absence of any mitigating circumstance, the Court may have not taken the lenient view because if such culprits are allowed to be treated leniently, the object and the purpose of promulgation of penal law would be frustrated. It is well settled by the time that if an offence has been established against an accused, he is bound to be punished adequately under the law.
[Muhammad Sharif v. Muhammad Javed @ Jeda Tedi (PLD 1976 SC 452)]. This aspect of the case can also be looked into from another angle i.e. no doubt that under the Act, 1992, certain facilities have been given for the purpose of development and promotion of the economic activities in the country but simultaneously, it is also be checked that the foreign currency is not moved out unauthorizedly otherwise it would promote the offence of money laundering, as well, and as a result whereof public exchequer would be affected badly and its ultimate result has to be borne by, the common man.
9. For the foregoing reasons, appeals are allowed as a result whereof the judgment of Lahore High Court, date 15th October 2003 is set aside, consequently, the convictions passed by the Special Judge Customs Rawalpindi vide judgment dated 30th January 2003 is restored and sentences, in pursuance of the notices issued to respondents are enhanced to two years with fine of Rs.
100,000/- each and in default in payment of fine they- are ordered to further undergo sentence for a period of three months under Section 156(1)(8) of the Customs Act, 1969. However, benefit of Section 382-B Cr.P.C. shall be extended to them.
10.It is informed that the respondents belong to Tribal Area and it would not be possible to cause their arrest. Except Muhammad Zaman (Respondent in Cr. A. 527/2005) all convicts are present in Court, they are directed to be taken into custody to serve the sentences. Warrant of arrest be issued enabling the Political Agent, Malakand for causing the arrest of Muhammad Zaman for the purpose of implementation of the order.