Ijaz Ahmad Chaudhry, J.--A case FIR No, 9 dated 21.02.2009, under Sections 4, 5, 8(1), 23 of Federal Investigation Agency Act, 1947/409, 420, 468, 471, 109 PPC and 4, 7, 8, 9 of PECO was-registered with Police Station FIA, Crime Circle, Lahore against Zarco Exhance (Pvt.) Limited, Ravi Road, Lahore (hereinafter referred to as petitioner company).
2. The allegation against the company as leveled in the FIR, in brief, is that the company was engaged in collecting money in home currency and foreign currencies for inland and outland remittance. According to the FIR it was against the instructions issued by State Bank of Pakistan to this company. It had 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 of franchise dealers were also not paid to the relevant quarters. It is also alleged in the FIR that the company was authorized by State Bank of Pakistan to Home remittances but it was receiving amount for remittance to foreign countries.
3. The learned counsel for petitioner has produced a photocopy of licence issued to Zarco Company to contend that the company was authorized to deal in foreign currency notes, coins, postal notes, money orders, bank drafts, traveler cheques and transfers in accordance with Rules and Regulations laid down in FE Circular No, 9 dated July 30, 2002. It is contended that the petitioner company was registered and its authorized capital was Rs, 200 million and paid up capital was Rs,100 million; that 25 % of the paid up capital was maintained as Statutory Liquidity Reserve (SLR) with State Bank in the form of approved government securities and the petitioner invested Rs,20 crore in this respect; that according to Item Nos, 12 and 13 of the Rules the company was allowed to establish its franchise centers with other individual for the purpose of its business; that the company was also authorized to employee 'necessary qualified staff to properly manage computerized reporting to the State Bank; that the petitioner company was also allowed to enter into agreement with other homeland and foreign exchange companies and statutory bodies and that the company was required to manage proper accounts and record; that internal audit report was to be submitted by the company after every three months; that the State Bank of Pakistan under Item No, 42 was authorized to revoke the licence of the petition company if it is found that the company provides false, misleading and inaccurate information or it is working in violation of the Rules. Regulation, instructions or circular issued by State Bank. According to the learned counsel NOC of The State Bank was enough to legalize the business of company and the FIA has no authority to interfere the lawful business of the petitioner company. It is further contended that the petitioner was residing in United States and is citizen of the said country as well; that he invested 20 crore rupees in the year 2002 in the form of paid up capital of the company; that each day a statement was being provided to the State Bank and 10 % of the total deposit amount was to be paid to the State Bank; that from 2003 till 2009 daily and monthly statements were being provided to the State Bank; that the company also entered into business with world famous exchange company Western Union and thus the petitioner company was able to deal with its customers in 136 countries. It is also contended that the company earned for Pakistan an amount of 1.23 trillion rupees and the Government of Pakistan has issued award of tribute to the company. It is contended that the FIR has been lodged suo moto by FIA as there was no complainant from any corner; that the FIA has termed it an offence that an employee of the company was counting 20.000 sigal sitting behind the window; that the case could at the most be registered under Section 4 of the Foreign Exchange Act, which is punishable for two years rigorous imprisonment. It is contended that the remaining offences are not applicable in facts and circumstances of the case; that no document was forged, therefore, provisions of Section 468/471 PPC are not applicable; that there is no instrument of any kind to show that the petitioner is a public servant for application of Section 409 PPC; that similarly provisions of Section 5(2) of the Prevention of Corruption Act, 1947 does not apply to the petitioner as he is not a government servant. It is further contended that no allegation of embezzlement has been established against the petitioner; that the petitioner found some employees of the company engaged in embezzling some amounts by corrupt means and FIR was lodged against them; hat the FIA has proceeded on account of mala fide because it has interfered in the business without any proof of malpractice and embezzlement; that the FIR is the complainant and itself is investigating the case against the rule of natural justice. It is further contended that the co-accused of the petitioner have been allowed after arrest bail vide order dated 04.03.2009 passed by the learned Special Judge Banking Court. According to the learned counsel the case of petitioner is on better footing than that his co-accused. It is further contended that the FIA has removed the main server installed at the company premises and thus the whole data of company business is not in the hand of company, therefore, it has failed to make remittances lying with it to the concerned quarters. It is lastly contended that the petitioner has been falsely implicated in the case with ulterior motive and mala fide intention.
4. On the other hand the learned counsel appearing on behalf of FIA has submitted that a letter sent by the State Bank of Pakistan was received by FIA on 11.07.2008 through the Ministry of Interior, Government of Pakistan that all were Exchange Companies under licence might be inquired into as they were not conducting their business as per the instructions issued to them; that in pursuance thereto a raid was conducted in the premises of petitioner company; the licence was not produced; foreign exchange was found in the said company and allegations were leveled against the company by numerous persons that it did not transfer the amounts in foreign exchange to the foreign country. It is further contended that as argued by the learned counsel for petitioner the petitioner company for obtaining licence from the State Bank maintained Statutory Liquidity Reserve (SLR) of Rs,25 crore equivalent to 25% of the paid up capital with State Bank, but now when it is verified from the persons abroad, who made transactions in foreign currencies in the account of petitioner, they denied such transactions, in fact, the petitioner got some fake transactions of foreign remittance in his account to fulfill the obligation of the State Bank. It is further submitted that the company had been maintaining two records one for showing to the State Bank and the other containing such transactions, which were either not permissible or it were to extort money from its clients and as per assessm ent made out from the computer data an amount of 43 arab rupees has been misappropriated by the petitioner. It is further contended that at the time of first raid the FIA only took a back up of the data from the main server and later on when it transpired that data was being tampered within the main server it was removed to the National Response Centre of cyber crime at Islamabad, where it is in safe custody of the Institution as a piece of evidence. It is further contended that if a big amount or an amount was to be sent to a company in foreign country the State Bank was to be informed first and after issuance of NOC the petitioner company might do that contract. It is further contended that though petitioner did not figure in the ostensible Management of the company but according to a plethora of documents collected from the company office it is apparent that the petitioner was himself issuing directions and conducting the day to day business of the company. It is also submitted that except 200 shares the whole shares of the company were in the name of petitioner and he may be the sole beneficiary of the fraudulent business. It is further contended that till now 70 applications are with the I.O. and he recorded statements of 22 effectees who have been deprived of lacs of rupees; that their monies were taken for sending to their loving relatives and friends but that did not reach to the destination.
According to the learned counsel roughly 9 crore of rupees have been collected from the general people and 11 crore rupees from the owners of the franchise centers of the company and about 50 crores are to be paid by the company to the Western Union.
5. We have heard the learned counsel for the parties and gone through the documents placed on record by them. The very first contention of learned counsel for petitioner that the petitioner put up Rs,20 crore i,e, 25% of the paid up capital to maintain as SLR with the State Bank has been, prima facie, found an outcome of fake and bogus transactions from foreign country in foreign currencies.
The Investigating Agency FIA has collected material in documents form and also in the form of computer data to infer that hundred of unauthorized FTT (Foreign Telegraphic Transfers) were made from the accounts of the company. As is apparent from the licence given by the State Bank of Pakistan the petitioner company was to deal in foreign currency notes, coins, postal notes, money orders, bank drafts, traveler cheques and transfers in accordance with the Rules and Regulations laid down in Circular No, 9 dated July, 30 of 2002, The FIA after collecting evidence has leveled allegation against the petitioner company that it received money in Pak-rupees from people at Pakistan for remittance abroad in foreign currency but did not transfer it to the person nominated by the sender. It is also alleged that the petitioner company maintained two records one as per Rules and Regulations laid in the said Circular and the second for doing fraud with the general public, The petitioner is owner of the company and he owns almost all shares of the company. There is evidence in the form of E-mail, letters, and instructions that the petitioner had been conducting the business of company by himself as an executive. Even otherwise he appears to be sole beneficiary of the right and wrong business of the company. The I.O. has collected as many as 70 applications from different persons who wanted to transfer their monies to their loving relatives or friends for different purposes e.g. medical treatment abroad, expenses of study and visit expenses, but to their hard luck they chose the petitioner company and not only failed to get transferred the money but also lost it as it is not being paid on demand. There are many persons who were persuaded by the petitioners and his employees to have franchise business with the company. They invested money and open franchise center for collection of remittance from general people in different areas, but the company deprived of them the amounts paid for remittances and also the security etc got by the petitioner company from such franchise dealers.
The I.O. has recorded statements of 22 persons under Section 161 Cr.P.C., where similar allegation had been leveled against the petitioner company and its employees. The petitioner who alleged that he was not doing the day to day business has also been blamed by the effectees for having dealt with them in taking money and for return of the money.
6. Almost 60 to 70 effectees are present in Court, who are behind the petitioner for the money they lost. Every one want to tell his story that how he was defrauded and deprived of lacs of rupees. We cannot hear each and every person. They are advised to lay their grievances before the FIA.
However, we have heard three persons. One is Dr. Hameed Jan, who wanted to send 12000 US dollars to his son in Ukraine on 2nd of July. 2009. but is yet waiting for the transaction and now he is demanding return of his money. Second one is Muhammad. Maqsood, retired employee of National Bank. He receiving gratuity after retirement started business of franchise dealers with the petitioner company after investing Rs, 25,00,000/- and now is suffering from Haplites and cannot get back even a penny, for his treatment. He burst into tears in. Court by saying that he has to travel on public transport while pursuing his claim. Third is a young educated lady, who in his opinion thought the franchise dealer business as a white clothes business and invested lacs of rupees from his father gratuity etc. she was being asked to inject more and more money, but without any return and at last she has become effectee of a white collar crime.
6. Prima facie it appears that petitioner in the garb of lawful business of foreign exchange matter minded a fun for making money by adopting fraudulent and corrupt means. He cannot shift his liability on the employees of his company because he appears to be the sole beneficiary. Secondly, there is evidence that he has been himself conducting the affairs of company. He instructed to his employees to prepare two records, which transaction is to go in which record and how was to dealt with to the customers of the company. The petitioner company has been doing its business since 2003. If from its inception such like fake and forged transactions were being made, then the number of effectees would be thousands. The FIA has recently started investigation of the case.
The number of effectees is increasing. At present the FIA has made a rough estimate of misappropriated amount of Rs, 45 Billions. The petitioner being the leader of the whole campaign is not entitled to the concession of bail, which is a remedy for persons who are innocent and are inyolved in cases with mala fide intention. The petition is, therefore, dismissed.