SYED MUHAMMAD ATTIQUE SHAH, J.---Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 561-A, Cr.P.C., the petitioner seeks quashment of FIR No.50 dated 17.9.2018 registered under section 5/23, Foreign Exchange Regulation Act, 1947 at. Police Station FIA/ACC, D.I. Khan.
2. Learned counsel for the petitioner vehemently argued that the impugned FIR is illegal and against the provisions of section 23 of the Foreign Exchange Regulation Act, 1947, therefore, the same is liable to be quashed. He placed reliance on the case of "Ghulam Sarwar v. The State" 2013 PCr.LJ 12 (Peshawar).
3. Learned Asstt: Attorney General appearing on behalf of the respondents, however, strongly controverted the contentions of the learned counsel for the petitioner and argued that in fact no illegality or irregularity has been committed by the respondents at the time of registration of the FIR and prayed for dismissal of the present writ petition.
4. Arguments heard and record perused.
5. Perusal of the record would reveal that on the report of complainant/respondent No.2 above referred FIR was registered against the petitioner on the allegations that he was busy in business of Hawala/Hundi in his shop situated in College Tailor Jail Market Bannu.
It is worth mentioning that section 23 of the Foreign Exchange Regulation Act, 1947 provides penalty and procedure for the contravention of the Act ibid. For convenience, it is reproduced below:- "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 other than the provisions of section 3, section 3A, section 3AA, section 3B, subsections (2) and (3) of section 4, section 10, subsection (1) of section 12 and clause (c) of subsection (1) 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 23A, 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 silver, 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 offense punishable under this section shall be cognizable and non-bailable for such period as the Federal 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 Federal Government under the preceding sub-section to be cognizable for the time being or of an offence punishable under sections 122 and 150 of the Income Tax Ordinance, 1979 (XXXI of 1979), as applied by section 19, except upon complaint in writing made by a person authorized by 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 Federal 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) A person authorized under subsection (3) to make a complaint in writing shall, if he is not already a public servant within the meaning of section 21 of the Pakistan Penal Code (Act XLV of 1860), be deemed to be a public servant within the meaning of that section.
(4) Where the person guilty of an offense under this Act is a company or other body corporate every director, manager, secretary and other officer thereof who is knowingly a party to the offence shall also be guilty of the same offense and liable to the same punishment."
6. It is very much evident from the above referred provisions of subsection (2) of section 23 of the Act that Federal Government would declare and notify in the official gazette the period for which the offences under the ibid section would remain cognizable and non-bailable. It is also worth mentioning that during the course of arguments, the worthy Asstt: Attorney General produced Gazette Notification No.S.R.O 558(1)/2016, the contents of the same are reproduced below:- "In exercise of the powers conferred by subsection (2) of section 23 of the Foreign Exchange Regulation Act, 1947 (VII of 1947), the Federal Government is pleased to declare the period ending the 30th June, 2021 to be the period for which all offences punishable under the said section 23 shall be cognizable and non-bailable."
The above referred notification clearly made the offences of section 23 of the ibid Act as cognizable and non- bailable for the period ending on 30th June, 2021. Therefore, this Court is of firm opinion that the offences are cognizable and non-bailable as declared and notified under subsection (2) of section 23 for the period mentioned therein.
7. So far as the question of competence of the "FIA" officials in respect of arrest, seizure, inquiry and investigation of the offences covered by the Foreign Exchange Regulation Act, 1947 is concerned, suffice it to say that under section 3 of the Federal Investigation Act, 1974, the Federal Government had constituted Federal Investigation Agency for inquiry into and investigation of the offences specified in the Schedule to the said Act.
For ease of reference, it is reproduced below:- "3. Constitution of the Agency:
(1) Notwithstanding anything contained in any other law of the time being in force, the Federal Government may constitute an Agency to be called the Federal Investigation Agency for inquiry into and investigation of the offences specified in the Schedule, including an attempt or conspiracy to commit, and abetment of any such offence.
(2) The Agency shall consist of a Director General to be appointed by the Federal Government and such number of other officers as the Federal Government may, from time to time, appoint to be members of the Agency."
Thus, under the ibid provision of section 3, the FIA officials are very much competent to inquire, investigate any offence specified in the Schedule of the Act ibid and Foreign Exchange Regulation Act, 1947 has already been duly specified in the Schedule to ibid Act. Therefore, the objection of the learned counsel for the petitioner regarding the competency of the FIA officials in the offences covered by Foreign Exchange Regulation Act, 1947, is not legally tenable.
8. Section 5 of the Federal Investigation Agency Act, 1974 further provides powers of inquiry or investigation under the Act ibid throughout Pakistan which includes the powers relating to search, arrest of persons and seizure of property, and to perform such duties privileges and liabilities in the same manner as the officers of a Provincial Police have in relation to the investigation of offences under the Code or any other law for the time being in force. For ease of reference, it is reproduced below:- "5. Powers of the members of the Agency:
(1) Subject to any order which the Federal Government may make in this behalf, the members of the Agency shall, for the purpose of an inquiry or investigation under this Act, have throughout Pakistan such powers, including powers relating to search, arrest of persons and seizure of property, and such duties, privileges and liabilities as the officers of a Provincial Police have in relation to the investigation of offences under the Code or any other law for the time being in force.
(2) Subject to rules, if any, a member of the Agency not below the rank of a Sub-Inspector may, for the purposes of any inquiry or investigation under this Act, exercise any of the powers of an officer-in-charge of a Police Station in any area in which he is for the time being and, when so exercising such powers, shall be deemed to be an officer-in-charge of a Police Station discharging his functions as such within the limits of his station.
(3) Without prejudice to the generality of the provisions of the subsection (1) and subsection (2), any member of the Agency not below the rank of Sub-Inspector authorized by the Director General in this behalf may arrest without warrant any person who has committed, or against whom a reasonable suspicion exists that he has committed, any of the offences referred to subsection (1) of section 3.
(4) For the purpose of the exercise by the members of the Agency of the powers of an officer-in-charge of a Police Station," Police Station" includes any place declared, generally or specially, by the Federal Government to be a Police Station within the meaning of the Code.
(5) If, in the opinion of a member of the Agency conducting an investigation, any property which is the subject- matter of the investigation is likely to be removed, transferred or otherwise disposed of before an order of the appropriate authority for its seizure is obtained, such member may, by order in writing, direct the owner or any person who is, for the time being, possession thereof not to remove, transfer or otherwise dispose of such property in any manner except with the previous permission of that member and such order shall be subject to any order made by the Court having jurisdiction in the matter.
(6) Any contravention of an order made under subsection (5) shall be punishable with rigorous imprisonment for a term which may be extended to one year, or with fine, or with both."
9. Thus, keeping in view the above stated legal position, this Court is of the firm belief that the officials of the FIA are duly empowered and authorized to inquire and investigate the offences covered by the Foreign Exchange Regulation Act, 1947.
10. The case law referred by learned counsel for the petitioner at the bar is distinguishable being not applicable to the peculiar facts and circumstances of the instant case, as the same is relating to the trials conducted by an ordinary Sessions Court instead of Tribunal provided by section 23-A of the Foreign Exchange Regulation Act, 1947.
11. So far as quashment of the FIR is concerned, suffice it to say that after registration of a criminal case, the Investigating Agency has a statutory duty and obligation to investigate a cognizable offence and without exceptional circumstances quashment of FIR during investigation would amount to throttling the investigation process which is not permissible under the law and if such process is scrutinized through constitutional jurisdiction, then it would amount to interfere in the investigation of a criminal case. In the present case, a proper FIR has been registered against the petitioner regarding a cognizable offence, therefore, he cannot be allowed, at this stage, to avoid ordinary course of investigation and thereafter trial before the competent Court of jurisdiction. Since the question urged before this Court being contentious, therefore, at this stage, this Court would not like to interfere with the investigation of the case and that too, when the petitioner has available adequate remedies under the law. Reliance is placed on "Dr. Ghulam Mustafa v. The State and others" 2008 SCMR 76 and "Haji Sardar Khalid Salim v. Muhammad Ashraf" 2006 SCMR 1192.
12. Thus in view of the above referred facts and circumstances and discussion made thereupon, the present petition being bereft of merit is dismissed.