CH. ABDUL AZIZ, J.---Brief facts which led to the filing of instant criminal revision are to the effect that pursuant to the registration of criminal case against the petitioner vide FIR No.14/2020 under sections 4, 5, 8, 23 of Foreign Exchange Regulation Act, 1947 at FIA, CBC/Multan, a letter dated 11.09.2020 was issued by Deputy Director FIA, Multan and thereby 29-bank accounts were seized. The petitioner invoked the jurisdiction of this Court through W.P.
No.13816 of 2020 and besides seeking the quashing of FIR No.14/2020 also called in question the vires of letter dated 11.09.2020. The W.P. No.13816 of 2020 came up for hearing before this Court on 19.11.2020 and since it was informed that a petition challenging the legality of letter dated 11.09.2020 is pending decision before learned Sessions Judge, Multan in his capacity as Tribunal constituted under Foreign Exchange Regulation Act, 1947, hence following direction was issued:- "Similarly , it is pointed out by the learne d counsel that not only the bank accou nts of the petitioner have been seized but also 28 other persons/entities mot similar treatment. It is further brought to the notice of court that an application is pending decision before learned tribunal in this regard. In this respect, the learned Presiding Officer of the tribunal is directed to decide the fate of pending application positively within five days from the receipt of this order".
Accordingly , the petitioner approached the Tribunal through an application for defreezing of accounts but it met the fate of dismissal vide order dated 20.1 1.2020 with the observation mentioned hereunder:- As the account of the petitioner was got freezed for the purpose of investigatio n of illegal business of Foreign Currency Exchange and Hundi/Hawala, the de-freezing of account may prejudice the process of investigation. The instant application is therefore dismissed."
The instant criminal revision is aimed at calling in question the legality of letter dated 11.09.2020 and in consequence thereof the order dated 22.09.2020 passed by the Tribunal.
2. In support of the criminal revision in hand, it is contended that petitioner is a shoe manufacturer and exporter registered with Foot-wear Exporters Association; that he exports products to the Gulf countries and brings home huge foreign exchange through banking transactions, in accordance with the Export Promotion Policy of the Government of Pakistan; that he maintains record of all the transactions including bank statements, sale tax returns and detail of exported consignments; that besides running his business, the petitioner also contributes in the economy of Pakistan by paying all the due taxes and duties; that during investigation not an iota of material came on record to hold petitioner as guilty of some misdeeds under Foreign Exchange Regulation Act, 1947 but even then through impugned letter dated 11.09.2020 approximately 27-accounts were seized under section 5(5) of FIA Act, 1974; that in the impugned letter as well as in the impugned order passed by the Tribunal, nothing as such is mentioned as to why the accounts in question were seized; that if the impugned letter is not declared illegal, the petitioner will not be able to meet the export orders and can even suffer bankruptcy . With these submissions, learned counsel urged that the impugned letter issued by FIA as well as order passed by the Tribunal be set aside.
3. The stance put forth in support of grievance voiced in the criminal revision, initially met stiff resistance from the learned law officer and officials of FIA with the submissions that sufficient material came on record during investigation to connect the petitioner with the commission of crime. Likewise, it was argued that the impugned letter was issued to ensure the smooth conclusion of ongoing investigation. Howev er, at the fag end of arguments, the Investigating Officer was confronted with certain queries and in response thereof it was stated that after thorough probe, the seizure of accounts is no more needed.
4. Arguments heard. Record perused.
5. The petitioner , as per admitted facts, is a businessman by profession engaged in the Foot-wear Manufacturing and export of these products to Gulf-countries. Along with the instant petition, handful of documents are annexed from which it evinces that the petitioner is not only on Tax-net since the year-20 01 but has also brought home foreign exchange equivalent to Rs.345.000 Million during financial year comme ncing from 01.07.2019 through banking channel. Needless to mention here that the financial figures so mentioned do not call for extending some preferential treatment to the petitioner but prima facie reflect that the products are being exported in accordance with the Export Policy formed by the Government of Pakistan. Even the prosecution is not in mode of denial about the status of petitioner as exporter and regarding the foreign exchange he fetched in Pakistan. In this backdrop, it is observed that the case FIR No.14/2020 was registered against the petitioner after having been found in possession of Rs.9.900 Million along with 570 Saudi Riyals and 555 UAE Dirhams with the allegation of being involved in the misdeeds of Hundi/Hawala. Since the correctness or otherwise of the accusation embodied in FIR No.14/2020 has nothing to do with the decision of instant criminal revision, hence no compulsion is felt to dilate upon their veracity , lest it may prejudice the case of either side.
6. The letter which embittered the petitioner , prompting him to approach this Court was issued by Deputy Director FIA, Multan on 11.09.2020. In order to better appreciate the proposition under consideration, a pressing need is felt to reproduce the contents of letter dated 11.09.2020 addressed to 29-Branches of different banks, which are as under:- "Sub: Case FIR Nos.14/2020 of FIA CBC Multan The subject case has been registered against (1) Muhammad Sohail Sheikh son of Muhammad Rafiq, (2) Hamza Ramzan son of Muhammad Ramzan, (3) Zawar Hussain son of Allan Bux, (4) Sarmad Tariq son of Tariq Iqbal, (5)
Mujahid Iqbal son, of Hafiz Muhammad Iqbal, (6) Shahid Iqbal son of Hafiz Muhammad Iqbal and (7) Ahmed resident of Multan on the allegations that they are running illegal business of Hundi/Hawala and Foreign Currency Exchange/Money Laundering.
In this connection detail of accounts maintained/dormant/ deactivated/ closed by accused detail mentioned below along with Account Statement may be provided to this office so that investigation of the case may be finalized on merits.
Furthermore said accounts may also be freezed till decision of case under intimation to this of fice:-
1. Shahid Iqbal CNIC No.36303-0946571-5
2. Muhammad Sarmad Tariq CNIC No.33100-4706401-5
3. Zawar Hussain CNIC No.36301-0982332-3,
4. Muhammad Sohail Sheikh CNIC No.36302-1828482-5
5. Hamza Ramzan CNIC No.36302-9482692-5.
6. Mujahid Iqbal CNIC No.36303-6458210-7" (emphasis provided to elaborate the proposition)
From the scanning of impugned letter , admittedly no clue is found about the provision of law under which it is issued. The question of foremost conside ration arises that whether the FIA officials are blessed with power to pass any such direction or order . The Federal Investigation Agency is established under Section 3 of Federal Investigation Agency Act, 1974 (hereinafter referred to as "the Act of 1974") with jurisdiction to probe offences mentioned in the Schedule. The powers of FIA officials regarding scheduled offences are mentioned in Section 5 of the Act of 1974. According to the foregoin g provision, members of FIA can conduct search, make arrest and seize property throughout Pakistan during an inquiry or investigation. Likewise, a memb er of FIA not below the rank of Sub-Inspector , while proceeding with any probe, can exercise all the powers blessed upon officer Incharge of police station within the area wherein he is posted. Such an officer can even arrest a person without warrant, if he is reasonably suspected to have committed a scheduled offence. The power of an FIA official, having relevancy with the proposition in hand is mentioned in section 5 (5) of the Act of 1974 which for correctly dilating upon the controversy in hand is being reproduced hereunder:- "If, in the oninion 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, in possession thereof not to remove, transfer or otherwise dispose of such property in any manner except with the previous permiss ion of that member and such order shall be subject to any order made by the Court being jurisdiction in the matter ."
7. The perusal of section 5(5) of the Act of 1974 leaves no room for discussion that members of Federal Investigation Agency have powers to issue an order in writing for placing an embar go upon the removal, transfer or otherwise disposing of a property which is subject matter of an ongoing investigation. There is no cavil to the proposition that this is the statutory right of FIA to probe all misdeeds giving rise to the offences mentioned in the schedule annexed with the Act of 1974 and such powers normally are not to be controlled or restricted by the Courts. On the contrary , since the powers blessed upon members of FIA under section 5(5) of the Act of 1974 being stringent in nature, thus, are to be frugally used in exceptional cases with certain restrictions and limitations.
The remits within which the powers so mentioned in section 5(5) are to be used can be extracted from the very legal provision and are being elaborated as under:-
(i) Such powers can only be used during an investigation and cannot be exercised in an inquiry by the FIA;
(ii) Before issuing an order under this Section, the FIA official concerned must form a definite opinion that subject matter property is likely to be removed or transferred before getting an order of seizure from the appropriate authority;
(iii) After forming such an opinion, the FIA official is to issue direction in writing to the person in possession of the property and to restrict him from transferring or otherwise disposing it;
(iv) The direction so issued under section 5(5) is subject to an order required to be passed by the Court having jurisdiction; The provision of section 5(5) can only be invoked in cases of emergent nature, more importantly when the member of Agency has fear that if he will have recourse to the appropriate authority or the court, the time so required will provide an opportunity to the possessor of property to remove it.
The contents of section 5(5) of the Act of 1974, so mentioned above, are explicit in nature and leave no room for discussion that the order under above quoted provision can only be passed by the member of FIA, if he is of the opinion that process of investigation is likely to be thwarted by removing, transferring or disposing of subject matter property . As a necessary corollary , it can be held that the opinion so formed by the member of Agency is to be expressed in writing along with the reasoning and accordingly it is to be incorporated in the case diary . The omission to fulfill prerequisite of mentioni ng the opinion and reasoning in writing is violative of section 5(5) of the Act of 1974, thus renders the order of seizure nothing but a nullity in the eye of law. It goes without saying that presumption of redundancy cannot be attached to any word, expression or punctuation used in any legal provision by the Legislature, rather are meant to be given effect. Similarly , an FIA official cannot be absolved from his obligation of mentioning the grounds which persuaded him to draw an opinion in terms of section 5(5). After having eloquently scanned the record, it divulged that the Investigating Officer of the case paid dogmatic heed to the mandate of section 5(5) and bothered not to mention even a single word in his case diary about forming the required opinion. Similarly , the expression "likely to be removed" used in section 5(5) is self-speaking in nature and it ensues therefrom that seizure order is normally to be obtained from the court and member of Agency can use his powers only in cases of utmost C urgency wherein time required for having recou rse to the court will provide an opportunity to the possessor of the property to remove or dispose it of. In this regard, an observation of Hon'ble Sindh High Court expressed in case reported as Muhammad Muslim v. Federal Invest igation Agency (PLD 1984 Karachi 71 ) since is found relevant, hence is being mentioned hereunder: "We find from the impugned detention memo. dated 2-9-1981 that it has not been mentioned by the Inspector concerned that he so was passing the order for restraint on the removal or sale of goods in question, as in his opinion an order of the appropriate authority for the seizure of the goods could not be obtained, as before that the goods were likely to be removed, transferred or otherwise disposed off. It must be established that sufficient time was not available with the concerned member of the F.I.A. to approach the appropriate authority for obtaining an order for the seizure of the goods and in those circumstances only the power under subsection (5) of section 5 of the Act (VIII of 1975) could be exercised."
8. While pondering upon the proposition another question cropped up that whether the embargo of removing the property cautioned by the member of Agency can be stretched and prolonged to the conclusion of trial or is to be placed before a Court for approval at some earlier stage. Before embarking any further on the proposition, a pressing need is felt to reproduce an extract from section 5(5) of the Act of 1974 which is as under: "If in the opinion of the 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.
It can inexorably be concluded that primarily the order of seizure is to be obtained from appropriate authority . In the latter part of section 5(5), it is mentioned that such seizure order is subject to confi rmation by the court. The use of expressions "appropriate authority" and "the court" in Section 5 (5) make obvious that initial order of seizure and subsequent confirmatory order are to be passed by two entirely different forums. So far as, latter expression "the court" is concerned, it needs no scholarly discussion to hold that it refers to the court having jurisdiction to try the offence. As regards, the expression "appropriate authority", it is observed that Federal Investigation Agency has jurisdiction to probe offences under different enactments, the detail of which is mentioned in the Schedule attached with Act of 1974. In an endeavour to ponder upon the expression "appropriate authority", this Court has peeped through all the offences under different laws which FIA can investigate in terms of Section 3 of Act of 1974 as well as in terms of Schedule annexed with it, the gist of the same is being reproduced hereunder:- Sr.
NoName of the Law Authority to Order Seizure
1. The Explosive Substances' Act, 1908 Act only defines offences and does not provide about appropriate authority for the seizure.
2. The Of ficial Secrets Act, 1923 Under section 12. The Magistrate 1st Class issues search warrant to search the premises or place and every person Found therein, and to seize etc property mentioned therein
3. The Foreigners Act, 1946 No mention of any authority in this regard
4. The Prevention of Corruption Act, 1947 No mention of any authority in this regard
5. The Foreign Exchange Regulation Act, 1947 Under section 19 a district magistrate, a sub- divisional magistrate or a magistrate of the first class, may, by warrant, authorise any police officer not below the rank of sub- inspector--(a) to enter and search any place in the manner specified in the warrant; and
(b) seize any books or other documents found in or on such place.
6. The Imports And Exports (Control) Act, 1950 No mention of any authority in this regard
7. The Banking Companies Ordinance, 1962 Under section 43-A the State Bank may authorise any person to enter and search any premises and seize books, accounts or other documents or records respecting any business carried on by the company , firm etc
8. The Pakistan Arms Ordinance, 1965 Under section 21 any magistrate or an officer incharge of a police-station having first recorded the grounds of his belief, may cause a search to be made of the house or premises where arms etc. are found and may seize and detain the same.
9. Customs Act, 1969 Under section 162 any [Judicial Magistrate] may, on application by a gazetted officer of customs stating the grounds of his belief that goods liable to confiscation or documents or things which in his opinion will be useful as evidence in any proceeding under this Act are secreted in any place within the local limits of the jurisdiction of such Magistrate, issue a warrant to search for such goods, documents or things.
10. Foreign Exchange Regulation Act, 1947 No mention of any authority in this regard
11. The Foreign Assets' (Declaration) Regulation, 1972No mention of any authority in this regard
12. The Prevention of Anti-National Activities Act, 1974No mention of any authority in this regard
13. The Banks (Nationalization) Act, 1974 No mention of any authority in this regard
14. The Passports Act, 1974 Under section 7 (2) Any police officer or other person authorized in this behalf by the Federal Government may seize in any place any means of transport which he knows or has reason to believe to be the means of transport by which a person has departed from Pakistan in contravention of the provisions of section 3.
15. The Drugs Act, 1976 Under section 18(f) an Inspector may seize such drug and all materials used in the manufacture thereof and any other articles, including registers, cash memos, invoices and bills, which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any rules:
16. The Emigration Ordinance, 1979 No mention of any authority in this regard
17. The Exit From Pakistan (Control) Ordinance, 1981No mention of any authority in this regard
18. The Anti-T errorism Act, 1997 No mention of any authority in this regard
19. The Prevention and Control of Human Trafficking Ordinance, 2002.No mention of any authority in this regard
20. Pakistan Telecommunication Re-organization Act, 1996Under section 32 the Court
21. NADRA Ordinance, 2000 No mention of any authority in this regard
22. Electronic Transactions Ordinance, 2002. No mention of any authority in this regard
23. The Telegraph Act, 1885 No mention of any authority in this regard
24. The Copyright Ordinance, 1962 Under section 74 any police officer, not bellow the rank of Sub-inspector ,
25. Anti-Money Laundering Act, 2010 Under section 14 investigating of ficer
26. Electricity Act, 1910 No mention of any authority in this regard
27. Transplantation of Human Organs and Tissues Act, 2010No mention of any authority in this regard
28. Prevention of Electronic Crimes Act, 2016 Under section 33 the Court
29. The High Treason (Punishment) Act, 1973 No mention of any authority in this regard Since the case in hand is mainly registered under Foreign Exchange Regulation Act, 1947, hence for the purposes of brevity , its provisions arc explored so as to define the term "appropriate authority" in reference to the seizure of property . The answer to the query is found embedded in section 19(3) of Foreign Exchange Regulation Act, 1947 which for reference sake is mentioned here-under: "On a representation in writing made by a person authorized in this behalf by the Federal Government or the State Bank and supported by statement on oath of such person that he has reason to believe that a contravention of any of the Provisions of this Act has been or is being or is about to be committed in any place or that evidence of the contravention is to be found in such place , district magistrate, a sub-divisional magistrate or a magistrate of the first class, may , by warrant, authorize any police of ficer not below the rank of sub-inspector .
(a) to enter and search any place in the manner specified in the warrant; and
(b) seize any books or other documents found in or on such place."
It reasonably evinces from above that regarding offences mentioned in Foreign Exchange Regulation Act, 1947, the seizure order is to be obtained from a district magistrate or sub-divisional magi strate or a magistrate of the first class and that too through a representation in writing along with a statement on oath by a person authorized in this behalf by the Federal Government or the State Bank. A member of Federal Investigation Agency can directly pass a seizure order in terms of section 5(5) of the Act of 1974 only if he apprehends that before approaching the appropriate authority in accordance with section 19(3) of Foreign Exchange Regulation Act, 1947, the property will be removed or disposed of. In this backdrop, the record of the case is perused with due circumspection and it is noticed that the FIR was registered on 10,09.2020 whereas the impugned seizure letter was issued on 11.09.2020.
Inevitably , the Investigating Officer had ample opportunity to approach the appropriate authority under section 19(3) of Foreign Exchange Regulation Act, 1947 for getting the seizure order but he opted against it. Likewise, nothing as such is available on record from which it may even opaquely insinuate that the Deputy Director concerned was authorized by the Federal Government or the State Bank to move a representation for seizure of property in consonance with section 19(3). In the given circumstances, the seizure letter dated 11,09.2020 issued by the Deputy Director FIA is a transgression of authority , thus is nullity in the eye of law. Even otherwise, the Investigating Officer candidly conceded during arguments that nothing beneficial for bringing investigation to logical end has been extracted from the seizure of 29-bank accounts, which are in the name of dif ferent persons.
9. While reverting back to Section 5 (5) of the Act of 1974, it is observed that powers of FIA under the foregoing provisions are not unfettered, rather are subject to certain restrictions, required to be used sparingly and in cases of exceptional nature. While deviating from the normal procedure of having recourse to appropriate authority , the member of FIA is to satisfy the mandate of Section 5 (5) by incorporating in case diaries, the reason of his opinion regarding apprehension of immediate removal of property . In a somewhat similar proposition learned Division Bench of Hon'ble Sindh High Court in the case of Muhammad Muslim (mentioned supra) held the seizure of goods by FIA to be without lawful authority with the following observation:- "The comments clearly show that there was sufficient time available with F.I.A. for obtaining an order of seizure from the appropriate authority . However , this was not done and the concerned inspector decided to exercise the powers under subsection (5) of section 5 of the F.I.A. Act, 1975. In our view in these circumstances, the powers could not be exercised by the Inspector under subsection (5) of section 5 and the goods could have been detained only after an order of seizure had been obtained from the appropriate authority . We have also been informed by the learned standing counsel as observed earlier that uptil now no order has been passed by any authority or Court about the seizure and detention of the goods by the Inspector of F.I.A. The order passed by the Inspector of F.I.A. for detention of the goods was, therefore, illegal and without any authority ."
10. The regime of criminal litigation is placed in three compartments which can be summed up as investigative phase, judicial proceedings and powers of executive to implement the orders of court. The balance of criminal administration of justice rests in the idea that respective organs, mentioned above, must not encroach upon the jurisdiction of others. This idea follows the principle that courts must exercise restraint and must not interfere in the process of investigation. At the same time, a judge is not expected to sit like a silent spectator and let the executives mutilate the rights of ordinary individuals. If the act of an official of the State is found to be in sheer violation of law, it is required to be set at right by the courts. In the instant case, since the impugned letter issued by the FIA under section 5(5) of Act of 1974 as well as the order dated 20.11,2020 passed by the Tribunal are found to be suf fering from perversity , thus are set-aside by accepting the instant petition.