1. WAJIHUDDIN AHMED, J.---It appears that an application under section 94 of the Criminal Procedure Code (Cr. M.A.No,371 of 1998) was preferred by the State against Irshad Ahmad Sheikh, Abdul Sattar and Sabra Ahmed, which came up before the High Court of Sindh on 8-1-1999 when, in the presence of Mr. Mubarak Hussain Siddiqui, D.A.-G. And Mr. Qalbe I. Shah, representing Mst. Sabra Ahmed, an order was passed principally upon which the petitioner's grievance rests. Such order, in extenso, runs thus:-- "This is an application under section 94, Cr.P.C. Filed by the State stating therein that the case has been registered by Mir Mazhar Jabbar, the then Assistant Director, FIA, at the instance of complainant Abdul Sattar as per F.I.R. No,1 of 1998 FIA State Bank Circle, Karachi against the officer of Port Qasim Authority mentioning the respondent Irshad Ahmad Shaikh son of Sibghatullah Sheikh as an accused in the said case who is said to have struck a deal for payment of illegal gratification in the sum of Rs,22,00,000 which amount was paid in full and out of the same portion of the amount was paid through cheque for the sum of Rs,3,75,000 which cheque was deposited in the Grandlays Bank in the account of respondent No,3 Mst. Sabra Ahmad.
2. The Deputy Attorney-General has submitted that it is necessary for the purpose of investigation of the case to obtain the following required documents: "Manager MCB, Civic Centre Branch Karachi.
1. Original copy of cheque for Rs,700,000 bearing No, 10435582, dated 17-4-1996 drawn on MCB Civic Centre Branch Karachi from the Account of complainant Abdul Sattar son of Muhammad Khan vide Account No,003580.
2. Attested photo copies of Account Opening Form, Name/Address of Introducer of abovesaid Account No,003580, along with statement of Account.
3. Manager, Citibank, I.I. Chundrigar Road, Karachi.
1. Attested photo copies of Account Opening Form, Name/Address of Introducer and Account Statement of Account No,0-413484-014, in the name of accused Irshad Ahmed Shaikh son of Sibghatullah Shaikh and details of Citibank Visa Card No,2300 0023 5009.
4. Manager, ANZ Grandlays Bank, Gulshan Branch, Karachi.1. Attested photo copies of Account Opening Form, Name/Address of Introducer and Account Statement of Account No,1088915946207, in the name of Sabra Ahmad. And Credit Voucher of amount of Rs,700,00,000 received through Cheque No,10435582 from MCB, Civic Centre Branch, Karachi.
5. I have heard the learned D.A.-G. And learned counsel for respondent No,3 and find that it is necessary for the purpose of investigation of the case registered as per F.I.R. No,1 of 1998 to direct the Managers named above to show the original record to the investigating officer and supply him duly attested Photostat copies of the same.
6. The application stands disposed of."
7. As against the aforequoted order the present petitioner preferred M.As. 54-55 of 1999, which came up before the High Court on 27-7-1999. It was contended that the aforesaid order, dated 8-1-1999 offended against the immunities envisaged in the Protection of Economic Reforms Act (XII of 1992) and in particular sections 5 and 9 thereof. Such sections, and relevantly section 4, read as under:-- Protection of Economic Reforms Act, 1992 "4. Freedom to bring, hold, sell and take out foreign currency.---All citizens of Pakistan resident in Pakistan or outside Pakistan and all other persons shall be entitled and free to bring, hold, sell, transfer and take out foreign exchange within or out of Pakistan in any form and shall not be required to make a foreign currency declaration at any stage nor shall any one be questioned in regard to the same.
8. Immunities to foreign currency accounts.---(1) All citizens of Pakistan resident in Pakistan or outside Pakistan who hold foreign currency accounts in Pakistan, and all other persons who hold such accounts, shall continue to enjoy immunity against any enquiry from the Income Tax Department or any other taxation authority as to the source of financing of the foreign currency accounts.
(2) The balances in the foreign currency accounts and Income therefrom shall continue to remain exempted from ryded, Zakat at source
(3) The banks, shall maintain complete secrecy in respect of transactions in the foreign currency accounts,
(4) The State Bank of Pakistan of other banks shall not impose any restrictions on deposits in and withdrawals from the foreign currency accounts and restrictions if any shall stand withdrawn forthwith.
9. Secrecy of Banking transaction.--- Secrecy of bona fide banking transactions shall be strictly observed by all banks and financial institutions, by whosoever, owned, controlled or manage."
9. (Emphasis added).
10. In support of the contentions reliance before the High Court was placed on (i) Gatron (Industries)
11. Limited v. Government of Pakistan and another (1999 SCMR 1072), (ii) Shaukat Ali Mian and others v.
12. The Federation of Pakistan (1999 CLC 607), Zahoor Ahmad and others v. The Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1999 Lahore 139), and (iv)
13. Muhammad Ihsan v. Government of Pakistan etc. (1999 MLD 1145). Of these, (i) has no relevance, (ii), besides being non-germane, has been upset in this Court, (iii) is irrelevant and (iv) does carry an observation that Foreign Currency Accounts, being protected by the 1992 Act, cannot be disturbed by the FIA but that was a case of such accounts having been frozen by an FIA Inspector.
14. Anyway, the High Court repelled the challenge on the ground that protection and immunities provided by the 1992 legislation did not extend to corruption charges against the account holders.
15. Consequently the applications were dismissed, giving rise to this leave petition.
16. We have heard the learned counsel at length and have closely examined the case-law cited at the bar. We also find that, meanwhile, the Foreign Exchange (Temporary Restrictions) Act (IV of 1998) has been promulgated and whereas, by way of a temporary measures, dealings in foreign exchange held by a person in Pakistan, without prior permission of the State Bank of Pakistan, stand suspended as from May 28, 1998, and whereas there is no legal restriction for converting such foreign exchange into Pak rupees at the officially notified rate, the corresponding protections and immunities conferred by Act XII of 1992 still hold the field. The promulgation of Act IV of 1998, therefore, may not; except to the extent of the suspension, adversely affect any such protection or immunity as is being discussed here.
17. Be that as it may, Mr. Muhammad Ilyas Khan, referring to Hudabiya Engineering (Pvt.) Ltd. v.
18. Pakistan, PLD 1998 Lahore 90, specifically drew attention to the following passage appearing therein: "It is also to be seen that as sections 4 and 5 of the Act, both deal with foreign currency, while interpreting section 5, section 4 of the Act cannot be lost sight of. It provides complete freedom to all citizens of Pakistan and all other persons to bring, hold, sell and take out foreign currency in any form. It specifically provides that no person shall be required to make any foreign currency declared at any stage and also ordains that no one shall be questioned in regard to the same. This clearly brings out of legislative intent that no question can be asked from the person holding any foreign currency in respect of the same. That being so, no inquiry either into the source or the holding of the foreign currency can be initiated or made by any agency especially when non obstante clause in section 3 of the Act provides that the Act shall override all other laws."
19. Now, every case is an authority, to the extent the same decides the legal controversy encompassed in it In other words, the declaration of law has to be confined to the four corners of the dispute agitated before the Court. The rest, if any, is obiter and obiter, except of this Court or, before it, of the Privy Council is, not/has not been binding . The question involved In re: Hudabiya Engineering (Pvt.) Ltd., focused on an information that two Benami accounts had been opened with the Lahore Branch of Habib Bank A.G. Zurich in a dubious manner so as to whiten black money by taking advantage of Dollar Bearer Certificates and some travellers cheques. The matter was referred to the Federal Investigation Agency with a view to detect evasion of tax. In consequence, F.I.R. No,12 of 1994 was registered under sections 419/420/468/471 and 109, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 and Article 3 of the Holders of Representative Officers (Punishment for Misconduct) Order, 1977 against Mukhtar Hussain and 4 others Directors of the said company, on the allegation that the company, in collaboration with the officials of Habib Bank A.G.
20. Zurich, Lahore and Bank of America, Lahore, under the influence of Mian Muhammad Nawaz Sharif, who was then the leader of opposition, dishonestly and fraudulently managed to open two foreign currency accounts which were fake and Benami in the names of certain individuals and, later on utilized the same to obtain loans. A Constitutional petition was preferred in the Lahore High Court, seeking a direction to the F.I.A. To refrain from taking any proceeding under the F.I.R.
21. Aforementioned. Such petition was dismissed by a learned Single Judge of that Court, he being of the view that the immunities and protections granted by section 5 of the 1992 legislation, as conditioned by section 9 thereof, extended only to those transactions and foreign currency accounts, which were bona fide. An appeal taken against the order was heard by a Full Bench of the Lahore High Court, but, in view of later developments, involving submission of challans (sans section 5 of the Prevention of Corruption Act, 1947, and Article 3 of the Holders of Representative Offices (Punishment for Misconduct) Order, 16 of 1977) by 2 the FIA in the meantime and quashment of ensuing proceedings by another Full Bench of the same Court, remained confined to consider the effect and scope of the Protection of Economic Reforms Act, 1992. The cited report, therefore, has to be read in the context of purported envasion of taxes, which alone was the subject-matter upon which the Full Bench of the High Court was dilating. In order to comprehend the effect and paradigms of the operation of the Protection of the Economic Reforms Act, 1992, it is necessary to see the objective, which the legislation set out to achieve. This inter alia, would emerge upon a close scrutiny of the entire enactment and, if and when any ambiguity or uncertainty comes to be encountered, by making reference to the preamble, whereafter, if even then a satisfactory answer eludes the pursuit, going as far as the previous legislative measures on the subject, when available, as also the subsequent legislative developments, if any. An examination of the Protection of the Economic Reforms Act, 1992, clearly shows that the enactment was the culmination point of the economic policies, programmes, laws and regulations announced, promulgated or implemented by the Government (of Mian Muhammad Nawas Sharif on and after November, 7, 1990 relating, inter alia, to promotion of savings and investments, introduction of fiscal incentives for industrialization and deregulation of investment, banking, finance, exchange and payments systems, holding and transfer of currencies and privatization of public sector enterprises along with nationalised banks. It was in that context that section 3 of the statute was mandated to have effect notwithstanding anything contained in the Foreign Exchange Regulation Act, 1947, the Customs Act, 1969, the Income Tax Ordinance, 1979 or any other law for the time being in force. The phrase last- quoted, therefore, is not one where the implications of the rule of ejusdem generis may be totally uninvocable. One, therefore, may be tempted to say here that the expression "any other law for the time being in force" could have meant largely to refer to fiscal and monetary promulgations having a direct nexus with economic activities. Two things seem to have been clearly excluded, one, the Constitutional law, being unamenable to supersession by a sub-Constitutional measure and second, as a corollary and even otherwise, laws inter-acting with criminal or penal acts of commission or omission. Thus in Zahoor Ilahi v. Zulfiqar Ali Bhutto, PLD 1975 SC 383, this Court construed the generalised immunity, attaching to the Prime Minister under Article 248 of the Constitution, not to extend to illegal or criminal acts, such as contempt in contemplation of Article
204. Section 4 of the Act, which follows upon section 3, opens itself to a similar it terpretation and an entitlement of all persons freely "to bring, hold, sell, transfer and take out foreign exchange within, or out of Pakistan in any form", no liability attaching for making a foreign currency declaration nor such persons being liable to "be questioned in regard to the same", do not occasion a free licence to transgress the bounds of penal law nor to bypass or circumvent criminal processes, such as investigations or inquiries, to assess culpability nor the consequential trials to determine punishments or penalties. In other words, the declarations being exempted and the question being foregone, pertain specifically to the absolute rights and total freedom to bring, hold, sell, transfer and take out foreign exchange within or out of Pakistan in any form, no restriction or preclusion under the Foreign Exchange Regulation Act, 1947, the Customs Act, 1969 or the Income Tax Ordinance, 1979, being attracted nor any taxes or duties being payable nor any confiscation or other such recourse being available. Even so, if such money or part 'thereof was utilized or acquired the status of being the subject-matter of an offence then, while the foreign exchange would still remain beyond the realm of being taken over, an inquiry to bring home the guilt of an accused person e.g. Of theft or embezzlement could surely be undertaken and pushed to its logical conclusion. The questions asked, therefore, pursuant to section 4 of the enactment, would in no way result in deprivation of the foreign exchange in focus, as inclusive of the rights to own or possess the same, yet the use thereof for or in relation to a criminal or penal act could always be probed. The position becomes clearer when section 5 is analysed and it is seen that the immunities, specific to the foreign currency accounts, operate in the express context of holders of those accounts and that such have a bearing only against inquiries from the Income Tax Department or any other taxation authority as to the source of financing of the foreign currency accounts. Much the same is stipulated in the section to hold good regarding wealth tax, income- tax and the compulsory deduction of Zakat at source. Complete secrecy in respect of transactions in the foreign currency accounts has like connotations and it is for this reason that section 94 of the Criminal Procedure Code requires an order of The Court even for criminal injuries and investigations in contemplation of that section. Sections 6, 7 and 8, dealing with protections of fiscal incentives, for transfer of ownership to private sector and for foreign and Pakistani investments are not relevant for our purposes here. Section 9 of the Act, ordaining secrecy of banking transaction has some relevance because secrecy therein, having been limited to bona fide banking transactions, makes the section a little bit different that section 5(3), which is all pervasive and contemplates maintenance of "complete secrecy" in respect of banking transactions in foreign currency. The distinction is obvious. Section 5(3), specific to foreign currency accounts carries secrecy irrespective of bona fide or otherwise whereas banking transactions generally, a broader concept, would entail secrecy only if bona fide. Here, however, it may be noted that the complete secrecy even in section 5(3) is not in respect of all "transactions in the foreign currency accounts", implying that there can be some possible exceptions to the generalized protection and cover. Neither section 5(3) nor section 9, therefore, would spell out secrecy where a penal act or omission would spell out secrecy whereas penal act omission is involved though even in such regard the initiative, aid and assistance of the relevant Court, as in section 94 of the Criminal Procedure Code, has a direct bearing. In other words the secrecy would be complete and even total except for the limited purpose permitted by such a Court as aforementioned. Section 94 of the Criminal Procedure Code is this:-- 94-1. Whenever any Court or any officer-in-charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or Officer, such Court may issue summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order:-- Provided that no such officer shall issue any such order requiring the production of any document or other thing which is in the custody of a bank or banker as defined in the Bankers Books Evidence Act, 1891 (XVII of 1891), and relates, or might disclose any information which relates to the bank account of any person except-
(a) for the purpose of investigating an offence under sections 403/406, 408 and 409 and sections 421 to 424 (both inclusive) and sections 465 to 477-A (both inclusive) of the Pakistan Penal Code, with the prior permission in writing of a Sessions Judge; and'
(b) in other cases, with prior permission in writing of the High Court.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed to affect the Evidence Act, 1872, sections 123 and 124 or to apply to a later, postcard, telegram or other documents or any parcel or thing in the custody of the Postal or Telegraph Authorities."
22. The only other substantive provision in the Act is section 10 and that has no direct bearing in this controversy. We may also mention here that the emerging conclusion is consistent with the norms of international law and practices as even in tax have rs, such as Switzerland, the right to claim secrecy of accounts clearly gives way where culpability intervenes.
23. Much the same outcome would follow when the preamble of the Act is examined. Such is as below:-- Where it is necessary to create a liberal environment for savings and investments; and other matters relating thereto; And whereas a number of economic reforms have been introduced and are in the process of being introduced to achieve the aforesaid objectives; And whereas it is necessary to provide legal protection to these reforms in order to create confidence in the establishment and continuity of the liberal economic environment created thereby".
24. No further ambiguities remaining, it is unnecessary to trace the legislative history of the legislation.
25. The upshot, therefore, of the discussion is that the High Court was manifestly right in holding that nothing that is contained in Act XII of 1992 provides a blanket protection vis-a-vis criminal acts and liabilities and that, to the extent permissible by section 94 of the Criminal Procedure Code the order of the High Court passed thereunder was not open to any legitimate question.
26. In consequence, we have found no merit in this leave petition and dismiss it upon due hearing.