' KHILJI ARIF HUSSAIN, J.--- The petitioner seeks leave to appeal against the order dated 29-10-2009 passed by the Lahore High Court, Lahore whereby petitioner's post-arrest bail in case F.I.R. No,9 of 2009 dated 21-2-2009, registered under sections 4, 5, 8(1) and 23 of Foreign Exchange Regulation Act, 1947 read with sections 409, 420, 468, 471, 109, P.P.C., sections 4, 7, 8 and 9 of Prevention of Electronic Crimes Ordinance 2008 and section 5(2) of Prevention of Corruption Act, 1947 at Police Station FIA Crime Circle, Lahore has been declined:
2. The prosecution case as narrated in the F.I.R., is that the Messrs ZARCO Company engaged in collecting money in home currency as well as in foreign currencies for inland and outland remittance against the instructions issued by the State Bank of Pakistan. In doing so, it collected huge amounts but did not remit to its destinations. The company had also engaged many franchise dealers to receive money for exchange and remittance. The amounts collected by the franchise dealers were also not paid to the relevant quarters. It is also alleged in the F.I.R. That the company was authorized by the State Bank of Pakistan for home remittances, but it also started receiving amounts for remittance in foreign currencies.
3. Mr. S. M. Zafar, learned Senior Advocate Supreme Court for the petitioner after taking us through the various entries pertaining to remittance inwards and outwards of the country, heavily relied upon the certificate issued by Messrs Atta Ullah & Co. Chartered Accountants, Lahore and argued that a sum of Rs,80 million was found as cash paid to the CEO/petitioner on 24-2-2009, but the same was subsequently received back by the company on seven different dates (viz. From 27th February, 2009 to 26th March, 2009) and a sum of Rs,6.187 million about which it was alleged that it was not found as remitted abroad but was paid to the Pakistan Telecommunication Authority. The arguments advanced by the learned counsel show that the allegation of sufficiency of the huge amount by the petitioner is without any basis. The learned counsel however, while concluding his arguments, expressed regret on behalf of the petitioner for the difficulties faced by the general public, not receiving their remittance outside Pakistan and stated that this was on account of the investigation undertaken by the Federal Investigation Agency. It was further stated that a substantial portion of the said claim has been adjusted by the order of the Lahore High Court from the sum security amount lying with the State Bank of Pakistan. Learned counsel stated that the outstanding amount pertaining to the owner to whom the franchise was given are allowed to establish booths, the petitioner will pay the amount at his earliest, but at present the petitioner's company is out of business and it is not possible for him to meet the liabilities. The company is a verge of partial winding up. It was further contended that even otherwise it is a dispute between the two private persons and can be death between the parties.
4. On the other hand Mr. Azam Nazir Tarar, Advocate Supreme Court/Special Public Prosecutor, and FIA for the respondents argued that after receiving the information about the flight in capital from the country, the State Bank of Pakistan wrote letter to FIA to look into the matter some time in February, 2009. The Federal Investigation Agency probed into the matter and collected the information with the assistance of an expert in the field and came to the conclusion on the basis of the material collected that the petitioner was involved in an offence triable under section 23 of the Foreign Exchange Regulation Act 1947, as well as under sections 409, 420, 468, 471, 109 P.P.C. Action was thus taken against the petitioner. The learned counsel argued that as per instructions, the petitioner is/was required to hold at least 15% of the foreign remittance received by him so as to have a support of the foreign exchange of the Government of Pakistan, but in contravention of the said rules, the petitioner remitted foreign currency over and above in land remittance by different modes. In this regard, the learned counsel drew our attention to the statement placed on record and argued, that from July, 2006 to June, 2009 the total remittance was Rs,63.83 billion as against which outwards remittance was Rs,71.46 billion. The learned counsel argued that instead of having dealt through the proper channel, the petitioner company involved in Hundi/Hawala and transacted the amount in and outside Pakistan without proper documentation. In support of this contentions he drew our attention to various documents on record particularly some telex massages showing that the petitioners were using issued cheques which they received from their associate company. After receiving the amount from their customers, instead of reporting the matter to the State Bank of Pakistan, they issued the cheques so that they could calculate the amount outside Pakistan and likewise in Pakistan. He further contended via various documents placed on record that it is a code word used by the dealers dealing with the business of foreign currency that instead of remitting the foreign currency, they received the amount paid by their customers outside Pakistan and on the telephone instructed their counterpart in Pakistan to pay the amount to the concerned persons in Pakistani Currency. The learned counsel further stated that as per the instructions of the State Bank of Pakistan to avoid money laundering and to remit foreign currency, any money dealer is required to report all the matters pertaining to remittances of an amount over and above US$50,000. The petitioner bifurcated the amount like US$50,000 into US$40,000 and 20,000 respectively and remitted the same outside Pakistan to cover his fraud and illegal activity. The petitioner used CNIC cards of their customers without their knowledge. The learned counsel in support of his contentions relied upon the statement recorded during the investigation of one Sardar Muhammad Farid, Advocate who categorically denied that at any time he remitted and amount to China and stated that a copy of the CN1C was given to the petitioner while receiving the amount remitted to him by his close relative from America and Canada, and the same was used by the petitioner company. It was argued by the learned counsel that by splitting the amount for the purpose of using the same by trader the petitioner has given loss to Government of Pakistan in the shape of sales tax and customs tax. It was further argued by the learned Counsel that the petitioner was doing business under the licence issued by the State Bank of Pakistan. He further contended that the petitioner not only misappropriated a huge amount of their customers franchised, but also violated Rules and Regulations framed from time to time by the State Bank of Pakistan.
5. We have taken into consideration the arguments advanced by the learned counsel for the parties and have carefully perused the record.
6. From the perusal of various documents on record, it appears that the petitioners being owner of ZARCO Exchange Company (Pvt.) Limited (ZECPL), holding 99.99 shares in it, and having, all material times, absolute control over the affairs of the company. After having obtained the information that some companies dealing in Foreign Currencies are involved in illegal business of Hundi/Hawala through different methods, and after having noted that this was in violation of the State Bank of Pakistan rules/regulations in foreign exchange Government of Pakistan. The State Bank of Pakistan asked FIA to look into the matters sometime in February, 2008. The FIA after the investigation, collected various documents, recorded statements of various persons/ customers of money dealer, came to the conclusion that the petitioners were found to be involved in the illegal business of Hundi/Hawala. A lump sum amount of Rs,71.48 billion was sent outside Pakistan, as against 67.83 billion remittances inside the country in violation of the State Bank of Pakistan rules and regulations. The FIA also brought this information to the notice of State Bank of Pakistan through their letter dated 27th May, 2009. The State Bank of Pakistan being an authority and expert in the subject of Foreign Exchange Dealing and also confirmed a violation of its rules and regulations through the letter dated 4th August, 2009.
7. We have gone through various documents placed on record by the petitioners, as well as by the respondents. From the perusal of the documents, tentatively we are of the view that the petitioners apparently not only violated the rules/regulations of the State Bank of Pakistan while dealing with the inwards and outwards of foreign currency but were also prima facie involved in scuffing of foreign currencies from Pakistan. The petitioners were required to withhold at least 15% of the foreign currency remittance and the balance amount could be remitted outside the country, but apparently instead of keeping of 15% amount of foreign currencies, the petitioners remitted an amount much more than that remitted inward, outside Pakistan.
8. We have taken into consideration the arguments advanced by the learned counsel for the parties and have carefully perused the record. From the summary of statement of the inward and outward remittances from July, 2009 to June, 2009, which was retrieved from the computer circular of the petitioners it appears that a sum of Rs,63.83 billions was remitted inside Pakistan, whereas the petitioners remitted about Rs,7.46 billions outward Pakistan, which is not only against the rules and regulations of State Bank of Pakistan but also adversely affected the foreign reservation of the Government of Pakistan, thus de-stabilized the economy of the country.
9. From the summary of statement of the inward and outward from July, 2006 to June, 2009, retrieved from the server of the petitioner's computer, it appears that a sum of Rs,63.83 billion was remitted inside Pakistan whereas petitioners remitted about 71.46 billion outward Pakistan, which is not only against the rules and regulations of State Bank of Pakistan, but also adversely affected foreign reserves of the Government of Pakistan and so destabilized the economy of the country.
10. Mr. S.M. Zafar, learned Senior Advocate Supreme Court having relied upon a certificate issued by the Chartered Accountant, to show that the allegation of a fuzzed foreign exchange is without any basis. From the record, it appears that the certificate of the Chartered Accountant dated 12-12- 2009 was not produced before the investigating agency nor before the trial Court or the High Court, and since presented for the first time, we would not like to rely upon it at this stage, while deciding the question whether the trial Court rightly declined bail to the petitioner or not.
11. The respondents have brought for the record in the form of retrieved e-mails, from perusal of which, it appears that money was taken out from Pakistan instead of through banking channel, but through other modes, like Hawala, etc. The State Bank of Pakistan in response to a letter of FIA, confirmed that the company ledgers reflect that prima facie Rs,422 million was diverted from ZARCO in favour of the petitioner during the period of November, 2006 to May, 2009, which is against the rules and regulations of State Bank of Pakistan.
12. The question of granting or refusing bail depends upon particular circumstances of each case.
The discretion of grant or refusal of bail under section 497 must be exercised on judicial principle.
Bail is always under the discretion of the Court and this discretion is necessarily to be exercised upon the facts and circumstances of each case according to sound judicial principle. The nature of the offence and the overall attending circumstances, which promoted it to Court to grant on refuse a bail in non-bailable offence. Section 409 P.P.C. Provides mischief prohibition contained in subsection (1) of section 497 P.P.C., therefore, the power to grant bail is remitted to the conditions laid down in the exceptional clause and provision thereto.
13. We are not likely to make any comments on the authenticity of the documents placed on record, as at the first instance it is for the Trial Court after recording of evidence to determine the authority of the same, Court had only to see whether accused was connected with the commission of crime or not and for that purpose, only tentative assessment of evidence was to be made and deeper appreciation of evidence and circumstances appearing in the case were neither desirable nor permissible at bail stage.
14. The case of Collector of Custom, Collectorate of Customs Rawalpindi v. Khyd-e-Noor and others 2006 SCM R 1609 while dealing with the question of foreign currencies being smuggled to China from Islamabad, the Customs authorities conducted a raid and recovered US Dollars from different persons more than US$10,000 in each case. The High Court set aside the conviction/sentences awarded to the accused persons, against which leave was granted to examine the question of interpretation of the amended section 4 of the Protection of Economic ' Reforms Act 1992. Whilst setting aside the judgment of the High Court, it was observed that:--- "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 as and as a result whereof public exchequer would be effected badly and its ultimate result has to be borne by the common man."
15. In the case of Muhammad Ilyas v. Shahid Ullah and others PLD 2009 SC 446, bail was cancelled by this Court while observing that:--- "It is not a case wherein such discretion is to be exercised, against such person, who being a Banker having custodian of public proper, dared to cause toss to it with the connivance assistance of another outsider."
16. In the instant case the petitioners are holding a license from State Bank of Pakistan to deal with the money exchange business and was not only violated rules and regulations of State Bank of Pakistan but apparently also acted against the interests of the country by scuffing huge amounts of foreign exchange. We are of the view that the discretion to grant bail cannot be exercised in favour of the petitioners. The petition has no merits and is accordingly dismissed. Leave to appeal is refused.
17. However, we direct the Trial Court to expedite the proceedings and if possible, to conclude the trial within a period of six months, keeping in view the judicial policy framed by this Court.