' QAISER RASHID KHAN, J.---The appellant, Ghulam Sarwar, through the instant appeal filed under section 23(c) of the Foreign Exchange Regulation Act, 1947 and under section 410, Cr.P.C. Read with section 561-A, Cr.P.C., has challenged the judgment dated 26-10-2011 of the learned Sessions Judge, D.I. Khan vide which he has been convicted under section 23 of Foreign Exchange Regulation Act, 1947 and sentenced to pay a fine Rs,10,000 or in default of payment of fine to undergo two months simple imprisonment in case F.I.R. No,13 dated 6-5-2010 under section 23 of Foreign Exchange Regulation Act, 1947 registered at Police Station, F.I.A., D.I. Khan.
2. Brief facts of the instant appeal are that on 6-5-2010 at 1100 hours, Inamullah Khan Inspector F.I.A.
Along with other officials, raided the office known as Messrs Ayaz & Sons situated on Circular Road near Commerce College, D.I. Khan inside Kirri Alizai Gate near District Headquarter Teaching Hospital, D.I. Khan. The office was searched from where copies of fax, chits regarding Hundi and Pakistani currency etc. Were recovered and taken into possession by the said Inspector, for which accused/appellant Ghulam Sarwar could not produce any valid license or permit. He disclosed that one Shahid Nawaz Khan son of Muhammad Ayaz resident of Bannu is the owner of the office and he is his servant on monthly salary, hence the ibid case F.I.R. Was chalked out.
3. After completion of investigation and other requisite formalities, the accused was summoned to the Court where he was formally charge-sheeted to which he did not plead guilty and claimed trial. The prosecution in order to substantiate the charge against the appellant produced three witnesses. The brief account of the prosecution evidence is as follows:--
4. P.W.1, Gul Muhammad ASI F.I.A., had confirmed the contents df recovery memos Exh.P.W.1/1 and Exh.P.W.1/2. P.W.2, Mushtaq Hussain Sub-Inspector F.I.A., had incorporated the contents of murasila into F.I.R. Exh.P.W.2/1. P.W.3 Inamullah Khan Inspector F.I.A., stated that on 6-5-2010 he raided the office of Ayaz & Sons situated at Kirri Alizai, D.I. Khan, where Ghulam Sarwar was found busy in Hundi Hawala business. He recovered documents and an amount of Rs,3,09,000 and took the same into possession through recovery memo Exh.P.W.1/1. He also took into possession an amount of Rs,2,00,000 from the personal possession of the accused vide recovery memo Exh.P.W.1/2. He prepared the murasila Exh.P.W.3/1 and sent it to the police station for registration of the case, on the basis of which case F.I.R. Exh.P.W.2/1 was registered against the accused. He recorded the statement of the P. Ws. And after completion of investigation submitted complete challan against the accused, whereafter the prosecution evidence was closed.
5. Thereafter statement of the accused was recorded under section 342, Cr.P.C. Wherein he denied the allegations in toto, but neither wished to be examined on oath under section 340(2), Cr.P.C. Nor produced any defence evidence. The learned trial Judge after hearing arguments of the learned counsel for the parties, passed the impugned judgment dated 26-10-2011, hence the instant appeal.
6. Learned counsel for the appellant argued that the impugned judgment dated 26-10-2011 is against law and available record, therefore, not tenable in the eye of law; that the prosecution has failed to prove the charge of involvement of the appellant in the business of bill of exchange (hundi); that the appellant being .Manager of the business of Medicine Company known as Ayaz & Sons used to supply the medicine to the persons and parties and thus the possession of a certain amount in his custody was not a unique phenomenon, when the same was Pakistani currency and not foreign currency; that no document was recovered from the appellant which could show his involvement in the Hundi business; that the learned Sessions Judge was not competent to take cognizance of the case; that the complaint was not made by a competent person; that the learned trial Judge had illegally ordered for the confiscation of the amount of Rs,5,09,000 was recovered from the appellant; that on the basis of available record, the appellant deserves acquittal and not conviction.
7. Conversely, the learned Federal Counsel strongly defended the judgment of the learned trial Court and argued that the appellant was found involved in the Hundi business and it was on specific information that a raid was conducted on Messrs Ayaz Sons, Medicine Company where the appellant was engaged in Hundi business; that from the possession of the appellant documents as well as an amount of Rs,.5,09,000 was recovered which showed his involvement in the Hundi business in the garb of the business of medicine; that besides documents, fax messages were also recovered corroborating the allegations in the complaint; that the complainant had neither illegally nor falsely implicated and involved the appellant in the business of Hundi and thus on the basis of statement of P. Ws. And available record, the learned trial Judge convicted and sentenced him in accordance with law and procedure.
8. I have scanned record of the case thread barely and considered the valuable arguments of the learned counsel for the parties.
9. The record reveals that on information Inamullah Inspector FIA (P.W 3) raided the office of Messrs Ayaz .& Sons, Medicine Company situated at Kirri Alizai D.I. Khan where Ghulam Sarwar, the present appellant was found busy in Hundi business and accordingly recovered certain documents as well as an amount of Rs,5,09,000 from the appellant, prepared the recovery memo, drafted murasila and sent it to the police station for registration of F.I.R. Against the appellant. In his cross- examination, he admitted it to be correct that building mentioned in the murasila known as Ayaz & Sons is the office of Medicine Company where the business of medicine was carried on and that no foreign currency was recovered from the appellant. He referred to certain fax messages and according to him the same contained the names of persons who would visit the office of the appellant to receive a certain amount. However, he failed to bring on record the said messages which would show the involvement of the appellant. In the Hundi business. The mere possession of a certain amount by individual and that too, dealing in the business of medicine would not show his involvement in the Hundi business without any supporting documents. Except for the mere allegations of the recovery of Pakistani currency from the appellant, no evidence worth the name is forthcoming to connect the appellant with the commission of the offence for which he was charged in the first hand and convicted and sentenced through the impugned judgment on the other hand. The appellant was charged under section 23 of Foreign Exchange Regulation Act, 1947 and was accordingly tried. However, the said Act provides for a certain procedure and it would be worthwhile to refer to the sections of law whereby a person can be charged and tried thereafter.
Section 23 of Foreign Exchange Regulation Act, 1947 is reproduced as under:- "23. Penalty and procedure. (1) Whoever contravenes, attempts to contravene or abets, the contravention of any of the previsions of this Act or of any rule, direction or' order made thereunder, (other than the provisions of subsections (2), (3) and (5) of section 3, subsection (3) of section 4, section 10, subsection (1) of section 12 and subsection (3) of section 20 or 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 23-A, and shall be punishable with imprisonment for a term which may extend to two 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 sliver, or goods or other property in respect of which the contravention has taken place shall be confiscated.
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, any offence punishable under this section shall be cognizable for such period as the Central Government may from time to time, by notification in the official gazette, declare.
(3) A Tribunal shall not take cognizance of any offence punishable under this section and not declared by the Central Government under the preceding subsection to be cognizable for the time being, or of an offence punishable under, section 54 of the Income Tax Act, 1922, as applied by section 19, except upon complaint in writing made by a person authorized by the Central Government of the State Bank in this behalf: ' Provided that where any such offence is the contravention of any of the provisions of this Act or any rule, direction or order made thereunder which prohibits the doing of an act without permission and is not declared by the Central Government under the preceding subsection to be cognizable for the time being, no such complaint shall be made unless the person accused of the offence has been given an opportunity of showing that he had such permission.
(3A) ...........................................................................
(4)
10. Similarly section 23-A provides for the Tribunal and its powers which is reproduced as follows:-- - "23.A Tribunal its power etc. (1) Every Sessions Judge shall, for the areas within the territorial limits of his jurisdiction, be a Tribunal for trial of an offence punishable under S. 23".
11. Thus under the law, it is the Sessions Judge who- would act as a Tribunal for the trial of the offence under the Act ibid but in the case in hand though the trial was carried out by the learned Sessions Judge but not in his capacity as a Tribunal within the meaning and Mandate of law and thus the proceedings carried on before the learned trial Court were coram non judice. It is by now settled law that where law requires a thing to be done in a particular manner then it shall be done in that manner or else not done at all. Moreso the Act ibid provides for a complaint in writing by a person authorized by the Central Government or by the State Bank in this behalf but in the case iii hand Inamullah Khan, Inspector FIA had no authorization for conducting a raid at the office of the appellant as nothing was brought on record in this behalf.
12. As a sequel to the above discussion, by allowing the instant appeal, the impugned judgment dated 26-10-2011 of the learned Sessions Judge, D.I. Khan is set aside and accordingly the appellant is acquitted of the charged levelled against him. The confiscated amount together with other documents be returned to the appellant forthwith.