AFTAB AHMED GORAR, J. Applicants Rizwan Riaz and Imran Khan both sons of Muhammad Riaz seek bail after arrest in case Crime No.07/2022 registered at Police Station FIA CCC, Karachi under sections 3 and 4 of Anti-Money Laundering Act, 2010.
2. Record shows that earlier bail application filed by the applicants before the Sessions Judge, Malir, Karachi was rejected by order dated 10.03.2022.
3. Learned counsel for the applicants argued that the applicants have maliciously been implicated in this case with mala fide intent and ulterior motives; the applicants have not committed any offence; there is no cogent evidence against the applicants that they have received any money/property from general public by fraudulent manner. Learned counsel for the applicants while relying upon the case law reported in 2015 SCMR 1575 argued that the purported offence under section 405, P.P.C. (Punishable under section 406, P.P.C.) is attracted only in a case of entrustment of property and not in the case of investment or payment of money and the FIR and interim charge sheet show that the instant case relates to investment. He contended that entire case of the prosecution is based on the documentary evidence, which is in the possession of the prosecution; as such it is trite law that bail cannot be withheld as punishment since there is no chance of tampering. Learned counsel has submitted that present accused persons have already been admitted on bail in Crime No.289/2021 under sections 406 and 420/34, P.P.C. by IVth Additional Sessions Judge, Malir and FIA has falsely roped the same accused in case of money laundering in order to show efficiency and progress. It is also contended that complainant has recorded no objection for release of applicants on bail. Learned counsel while reiterating the other grounds mentioned in the memo of bail application prayed that applicants may be enlarged on bail application and relied upon the case laws, which he had relied earlier before the trial court copies of same have been provided by him, which are taken on the record. To support his contentions learned counsel for the applicants has relied upon the cases reported in 2016 SCMR 447, 2011 SCMR 1614, 2015 SCMR 1575, 2019 SCMR 1730 and PLD 2021 Supreme Court 916.
4. On the other hand, the learned counsel representing the complainants have recorded their no objection to the grant of bail to the applicants. The complainant Zartash Muhammad Khan has appeared in court and affirmed the above submission of learned counsel.
5. Learned Assistant Attorney General has strongly opposed the grant of bail to the applicants and contended that FIA officials had collected sufficient material against the applicants. He further contended that applicants had fraudulently taken millions of rupees form the innocent persons and then committed serious offence of money laundering which is a serious offence and a crime against the society/State hence raising no objection by the complainant for granting bail to the applicants is of no help. He added that in case the applicants are released on bail at this initial stage, there would be possibility of tempering the evidence.
6. One of the victims namely Mst. Huma Azfar appeared in court along with her counsel and prayed that bail application may be dismissed. Learned counsel representing the victims submitted that if bail is granted to the applicants, the applicants will tamper the record/ evidence. Learned counsel for the victims under cover of his statement filed detailed history of applicants showing the involvement of applicants in criminal as well as civil cases, which is taken on record.
7. Heard the arguments and perused the record.
8. The allegations against the applicants are that after obtaining heavy amount under the grab of investments in stocks through Royal Securities Pvt. Ltd. The applicants placed the same in the bank accounts in their names and others and layered the proceeds by routing the same in different banks and finally integrated the act of money laundering by way of purchasing of various properties which act on their part constitute the commission of offence of money laundering.
9. Perusal of record further reveals that FIR No.289/2021 under sections 406 and 420/34, P.P.C. was registered at PS Malir Cantt, Karachi against applicants on complaint of Zartash Muhammad Khan.
Initially interim charge sheet and final report under section 168, Cr.P.C. were also issued by I.O. of PS Malir Cantt. As per report under section 168, Cr.P.C. the offence criminal breach of trust on the part of accused persons has been established, however matter for offence of money laundering was referred to FIA. It is further stated that Enquiry No.40/2019 was registered at FIA CCC Karachi upon the complaint of Brigadier (Recd.) Shah Mahmood, however, from time to time more victims approached the FIA. The victims alleged that present accused persons are involved in receiving money from general public in fraudulent manner on the pretext of investing the same in stocks through Messrs Royal Securities, but instead of investing in stocks they invested the money of general public into some unknown business, hence, caused cheating, misrepresentation and criminal breach of trust of customers.
10. It is noted that the bail applications of present applicants has been rejected by the trial court on merits vide order impugned herein in which trial court has dealt with questions/grounds thoroughly and for the sake of convenience, it would be appropriate to reproduce the relevant paragraphs of the said order, which reads as under:-
6. The allegations (as underlined above) against present accused are clear and specific. It is to be noted that accused Rizwan Riaz and Imran Khan are shareholders/directors of Messrs Royal Securities (Pvt.) Ltd. It is further transpired that two JITs had conducted investigation in this scam.
Statement of Qaiser Iqbal, Additional Joint Director of Securities and Exchange Commission of Pakistan (SECP) and team member of JIT was recorded by I.O, who have given details of illegal activities of the present accused persons in respect of illegal deposits and investments. Details of immovable properties worth hundreds of million Rupees in the names of present accused persons and their relatives are also mentioned in the charge sheet and record. For the sake of clarity, section 3 of Anti-Money Laundering Act (AMLA), 2010 is reproduced below:-
3. Offence of money laundering.-- A person shall be guilty of offence of money laundering, if the person:- 6 (a) acquires, converts, possesses, uses or transfers property, knowing or having reason to believe that such property is proceeds of crime;
(b) conceals or disguises the true nature, origin, location, disposition, movement or ownership of property, knowing or having reason to believe that such property is proceeds of crime;
(c) holds or possesses on behalf of any other person any property knowing or having reason to believe that such property is proceeds of crime; or (d) participates in, associates conspires to commit, attempts to comma, aids, abets, facilitates, or counsels the commission of the acts specified in clauses (a), (b) and (c). Explanation-I.-- The knowledge, intern or purpose required as an element of an offence set forth in this section may be inferred from factual circumstances in accordance with the Qanun-e-Shahadat Order, 1984 (P.O. 10 of 1984). Explanation II.- For the purposes of proving an offence under this section, the conviction of an accused for the respective predicate offence shall not be required.
7. Here, I would refer to the order dated 21.12.2021 passed by the Honorable Islamabad High Court in W.P. No.1184/2021 and W.P. No.1778/2021 (Muhammad Rafiq and Khalid Mehmood v. DG FIA Islamabad) relied by learned AD Legal FIA, where it was observed that:- The bare reading of Anti-Money Laundering Act, 2010 reveals that it provides the prevention of money laundering, combating financing of terrorism and forfeiture of property derived from, or involved in, money laundering or financing of terrorism and for matters connected therewith or incidental thereto. The Act provides complete mechanism and definition of concept of Targeted Financing Sanction, Suspicious Transaction Report, Regulators, Proceeds of Crime, and Investigating of Prosecuting Agency, Financing Monetary Unit as well as property for the offence of money laundering. Now the question arises as to whether the offence with which petitioners have been charged are of some transaction or originated from same transaction qua the allegations referred in earlier FIR No. 10/2019 registered by the FIA against the petitioners."
8. After referring to section 3 of AMLA, 2010 the Honorable High Court went on to observe:- The above referred definition clearly states that any person who acquires, converts, possesses, uses or transfer any property knowing or reason to believe that such property is the proceed of crime, which means that the charges in FIR No. 10/2019 qua embezzlement and criminal breach of trust committed by the petitioners and causing tentative loss of Rs.207,752,411/- to the National ex- chequer was further used and converted by the petitioners Muhammad Rafique and Khalid Mehmood for the purpose of a plot and a vehicle, respectively, as such, there is no denial on record that petitioners are beneficial owners of these properties in question and they admitted this fact that the plot and vehicle was in their name, hence the said two properties are fully covered under the definition of "property" provided in section 2(xxx) of the Anti-Money Laundering Act, 2010, but now the question arises as to whether these two properties are covered in terms of definition of "property involved in money laundering" as defined in section 2(xxx) which explains that who holds or has held the property, which has been derived or obtained directly or indirectly from offence of money laundering, as such, this aspect relates to a question of fact and same could only be determined after recording of evidence in the learned Trial Court."
9. Offences of money laundering is complicated and further details will unfold with passage of time. I.O. of this case and AD Legal FIA have contended that case will suffer if accused are released on bail. Nothing is available on record to show that Victims in collusion with FIA officials had staged the entire episode just to falsely implicate the accused. It is to be noted that beside complainant no other persons/victims, who had been cheated through similar modus operandi, have also come forward.
10. During the arguments learned advocate for accused has put much 'emphasize on affidavit of complainant Zartash Khan, whereby he had given no objection on grant of bail. However, alleged offence is not compoundable. It may be reiterated that enough material is available on record to connect the accused with the commission of offence. I rely on case law of Naseer Ahmed v. The State (PLD 1997 SC 347) and case of Shah Nawaz v. The State (2016 YLR 2842) where the Honorable apex Court has observed that affidavits of prosecution witnesses in support of accused are nothing but somersault and cannot be equated with the evidence. Furthermore no malice which attracts to reasonable mind is alleged against the FIA for falsely implicating the applicants/accused with the Commission of alleged offences. The other ground taken by learned advocate for accused call for deeper appreciation, however, same is not warranted at bail stage with utmost respect I place reliance on case of Haji Muhammad Nazeer v. The State (2008 SCMR 809) where the Hon'ble Supreme Court has observed that accused persons are not entitled as matter of right for release on bail, notwithstanding the fact that the case of accused was covered under non-prohibitory clause of section 497, Cr.P.C.
11. I have respectfully gone through the case law of Hashmatullah v. The State and others (2019 SCMR 1730), Shahid Imran v. The State and others (2011 SCMR 1614) and Rafiq Haji Usman v.
Chairman NAB and another (2015 SCMR 1575) relied by learned advocate for applicants/accused, but facts and circumstances of the present case, as discussed above, are different and distinguishable. In view the above facts and discussion. I do not find any merit in the present bail application and dismiss the same accordingly. Needless to mention that above observations are tentative in nature and will not prejudice the case of either side on merits.
11. I have also perused the record with the able assistance of learned Counsel for the parties and observe that the trial court had discussed all the aspects of the matter thoroughly and rightly passed the order impugned herein. Further perusal of record reflects that applicants have been specifically nominated in FIR with specific role; there is nothing on record to show that complainant and investigating officer have any ill-will/mala fide with the applicants to falsely implicate them in this case which appears to be serious and heinous in nature and also sabotage the image of the country. The applicants are operating foreign Bank accounts to cheat general public to camouflage the ill-gotten funds under garb of dummy business.
12. It may not be out of place to mention here that money laundering is seen as critical to the effective operation of transnational and organized crime. However, money laundering affects country's economy, government, and social well-being. Money laundering is the process by which large amount of illegally obtained money is given the appearance of having originated from the Legitimate source. But in simple terms it is the conversion of black money into white money. Money laundering has an adverse impact on economy and stability of country and hence such an activity must be curbed with an iron hand to dismantle syndicates engaged in money laundering. Such activities are I giving the country bad reputation in the international community of nations. Learned counsel for the applicants through his exhaustive and elaborate arguments wanted this Court to give its categorical and specific verdict regarding the applicants that they are not involved in the commission of offence. He placed reliance on the judgments favouring them in this regard but this Court is very much clear in its mind that no such precise verdict in criminal cases can be given as every criminal case has its own facts and circumstances. The case law cited by learned Counsel have been perused and considered but did not find applicable to the facts of the present case.
Even otherwise, in criminal administration of justice each case has to be decided on its own facts and circumstances, and Courts are required to exercise jurisdiction independently as held by Hon'ble Supreme Court of Pakistan in case of State v. Haji Kabir Khan reported as PLD 2005 SC 364 and Muhammad Faiz alias Bhoora v. The State and another reported in 2015 SCMR 655.
13. In a recent judgment reported as Muhammad Sarfraz Ansari v. State and others (PLD 2021 SC 738), the Hon'ble Supreme Court of Pakistan has held that at the bail stage the court is not to make deeper examination and appreciation of the evidence collected during investigation or to conduct anything in the nature of a preliminary trial to determine the accused's guilt or innocence. However, for deciding the prayer of an accused for bail, the question whether or not there exist reasonable grounds for believing that he has committed the alleged offence cannot be decided in vacuum.
The court, for answering the said question, has to look at the material available on record when the bail is applied for and be satisfied that there is, or is not, prima facie some tangible evidence which, if left unrebutted, may lead to the inference of the guilt of the accused. In the present case tentative assessm ent of available material, it is established that the applicants are connected with the commission of offence as the applicants are nominated in the FIR with the role and prosecution has sufficient evidence in shape of documentary evidence against the applicants.
14. During the course of his arguments learned counsel for the victims has relied on the case of Asif Ayub reported in 2010 SCMR 1735 in which Hon'ble Supreme Court held that at bail stage as per provision of 497, Cr.P.C., the court has to look into the material available on record to prima facie determine the involvement of accused in the commission of offence or otherwise. In the case of Khalid Javed Gillani reported in PLD 1978 SC 256, apex court held that court is bound to make tentative assessm ent of its evidentiary value. Decision on bail application involves pre-judgment on evidence appearing prima facie at stage of seeking bail. Court in bail application to resort to tentative sifting of evidence as distinguished from elaborate sifting of evidence. In the case of Syed Lakhat-e-Hasnain reported in 2010 SCMR 855, it was held that the court at bail stage has only to see whether the accused is connected with crime or not by making only tentative assessment of the available evidence. Discretion of grant or refusal of bail under section 497, Cr.P.C. must be exercised on judicial principles according to the facts and circumstances of the each case.
15. In view of whatever mentioned above, I reached at the irresistible conclusion that the applicants are not entitled to the grant of bail. On 13.04.2022, after hearing the learned counsel for the parties by a short order, captioned Criminal Bail Application was dismissed and F above are the reasons for the said short order.
16. Since the trial is in progress, I am sanguine that the learned trial Court shall conclude the trial expeditiously as early as possible in accordance with law and no unnecessary adjournment shall be granted to either side. Compliance report be submitted to this Court through MIT-II. Office is directed to immediately send copy of this order to trial Court through any swift means for information and compliance.
17. Needless to mention here that observations, if any, made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the applicants on merits.
18. The above bail order has been passed by me in the format prescribed by the Honorable Supreme Court in the case of Nazir Ahmed v. The State reported in PLD 2014 SC 241, whereby I have not reproduced the entire contents of the FIR as well as the details of the arguments so raised by the learned Counsel for the applicants as well as complainant.