MENT MUHAMMAD NASEEM CHAUDHRI, J. -- On receiving a E.x message from the Federal Investigating Agency, Economic Crime Wing, Islamabad, Mr. Saif Ullah Niazi, Inspector FIA/SHO CBC, Multan went on 26.5.1999 at the shop of Muhammad Salem petitioner, being run under the name and style of Naeem Islam! Kanda, in the company of Syed Jaffar Hussain Rizvi Officer Grade HI and Zafar Iqbal Officer Grade II posted in the State Bank of Pakistan, Multan. The information revived by the Inspector/SHO was that in violation of Section 4 of the Foreign Exchange Regulation Act, 1947 the dealings in foreign exchange were being carried out by Muhammad Saleem petitioner. The Inspector FIA took alongwith him his own subordinates and also procured the help of the SHO Police Station, Pak Gate, Multan where he had gone to impart the information under rule 48 of the Punjab Police Rules, 1934 about his arrival within the said area. Thereafter, some police officials posted in Police Station, Pak Gate also accompanied him. The raiding party is said to have stopped at some distance from Naeem Islami Kanda and allegedly witnessed the illegal and unauthorised dealings in the foreign currency. Muhammad Saleem petitioner, his son Muhammad Naeem and others were seen by the police inside the shop. Five persons were standing who were talking with each other. Syed Ghazanfar Abbas, SI and two Constables were sent as decoy/fake customers with an amount of Rs. 1,500/- when the transaction was settled at Rs. 54/- per US Dollar instead of the official rate of Rs. 53.40 per US Dollar who purchased 25 Dollars for an amount of Rs. 1,350/- which were produced before the Inspector/SHO by the aforesaid Sub-Inspector in the presence of the aforesaid Officers of the State Bank of Pakistan, Multan which were takes: into possession vide a memo. The raiding party entered the shop, Naeem fslami Kanda and introduced themselves. The written permission/Authority to deal in foreign currency was demanded which was not produced.
The sate was searched and 7500 US Dollars were found. Muhammad Saleem and his son are said to have raised the alarm of thief thief and dacoit. The adjoining shopkeepers and the Mohallandars arrived who are said to have snatched 7500 US Dollars from the raiding party and rescued the accused person. Thereafter F.I.R. No. 82, dated 26.5.1999 was registered under Section 23 (I) of the Foreign Exchange Regulation Act, 1947 at Police Station, FIA/CBC, Multan.
2. Feeling aggrieved Muhammad Saleem petitioner filed this petition for the quashment of the F.I.R.
On the grounds that the raid was conducted without Search Warrant and that there was the impression that dacoity was being committed in his shop as in the recent past dacoits of Sindh had looted Rs. 60 lac from his shop when there was strike in the Sarrafa Bazar. According to him all the persons who arrived at the shop in his absence were without uniform. He averred that his son aged 15 years was present at the shop who raised the alarm when the nearby people arrived. He maintained that he had applied to the State Bank of Pakistan, Karachi for the issuance of written Authority to deal in the foreign currency and that the FIA was annoyed thereof. He pleaded that he did not deal in foreign currency and the case was mala fidely and falsely registered which was liable to he quashed.
3. This writ petition has been resisted by the respondents and in the comments/report, which is treated as the written statement, the stand was taken that the raid was successful, that the currency purchased at higher rate than the fixed rate from the shop of the petitioner through decoy customer was taken into possession, that the petitioner had no written permission issued by the State Rank of Pakistan to deal in foreign currency, that there was no legal necessity to get issued the Search Warrant for entry in the shop of the petitioner from whose Safe 7500 US Dollars were recovered which were taken away by the shopkeepers and that there was no justification to quash the F.I.R.
4. I have heard the learned counsel for the petitioner as well as the learned Standing Counsel for the respondents and gone through the record before me. Learned counsel for the petitioner referred to Section 19 (3) of the Act and argued that the "Shop" of the petitioner could not he raided with respect to the commission and the contravention of the provisions of the Foreign Exchange Regulation Act, 1947 or about to he committed by the complainant Inspector/SHO without written representation supported by his statement on oath and without obtaining the Search Warrant from the District Magistrate, a Sub-Divisional Magistrate or a Magistrate of the First Class. He maintained that according to the Schedule to the Federal Investigating Agency Act, 1974 the cases/offences under the Foreign Exchange Regulation Act, 1947 for registration, investigation are within the jurisdiction of the Federal Investigating Agency. However, he maintained that the proceedings could have been conducted in accordance with law as provided under Section 19 (3)(3-A)(3-B) of the Foreign Exchange Regulation Act, 1947 which as maintained above are lacking in the instant matter. He added that sending of decoy witness in order to trap the accused was unethical and against the spirit of Islamic Justice and the adoption of such a procedure by the police is open to legal objection. In building this point he referred to Muhammad lqbal Vs. The State (PLJ 1989 Federal Shariat Court 39). On the contrary the learned Standing Counsel appearing for the respondents laid the emphasis that the raid could he effected in the manner as narrated by the Inspector/SHO in the First Information Report and for the entry of the Raiding Party in the shop of the petitioner there was no formal legal necessity to obtain any Search Warrant especially when the decoy customer had purchased the US Dollars and that the petitioner cannot escape his criminal liability in the matter.
6. For the proper disposal of the dispute in hand I would reproduce as under the following provisions of law from the Foreign Exchange Regulation Act No. VII of 1947:- "2. Interpretation. - In this Act, unless there is anything repugnant in the subject or context:-
(a) "authorised dealer" means a person for the time being authorised under Section 3 to deal in foreign exchange;
(h) "currency" includes all coins, currency notes, bank notes, postal notes, money orders, cheques, drafts, traveller's cheques, letters of credit, bills of exchange and promissory notes;
(c) "foreign currency" means any currency other than Pakistani currency";
3. Authorised dealer in foreign exchange. (1) The State Bank may, on application made to it in this behalf, authorise any person to deal in foreign exchange.
(2) An authorisation under this section:-
(i) may authorise' wise dealings in all foreign currencies or may be restricted to authorised dealings in specified foreign currencies only;
(ii) may authorise transactions of all descriptions in foreign currencies or may be restricted to authorising specified transactions only;
(iii) may he granted to he effective fir a specified period, or within specific amounts.
(3) .................................. (4) .................................. (5) ..................................
4. Restrictions on dealing in foreign exchange . (1) Except with the previous general or special permission of the State Bank, no person other than an authorised dealer shall in Pakistan and no person residing in Pakistan other than an authorised dealer shall outside Pakistan, buy or borrow from, or sell or lend to, or exchange with any person not being an authorised dealer any foreign exchange.
(2) Except with the previous general or special permission of the State Bank, no person whether an authorised dealer or otherwise, shall enter into any transaction which provides for the conversion of Pakistan currency into foreign currency or foreign currency into Pakistan currency at rates of exchange other than the rates for the time being authorised by the State Bank.
(3) Where any foreign exchange is acquired by any person other than authorised dealer for any particular purpose, or where . Any person has been permitted conditionally to acquire foreign exchange the said person shall not use the foreign exchange so acquired otherwise than for that purpose or, as the case may he, fail to comply with any condition to which the permission granted to him is subject, and where any foreign exchange so acquired cannot he so used or, as the case may he. The conditions cannot he complied with, the said person shall without delay sell the foreign exchange to an authorised dealer.
(4) Nothing in this section shall he deemed to prevent a person from buying from any post office, in accordance with any law or rules made thereunder for the time being in force, any foreign exchange in the form of postal orders or money orders."
19. Power to call for information . (I)
(2) ................................. (3) On a representation in writing made by a person authorised in this behalf by the Federal Government or the State Bank and supported by a 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 he committed in any place or that evidence of the contravention is to he found in such place, a District Magistrate, 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
(h) seize any hooks or other documents found in or on such place . Explanation. - In this sub- section, place" includes a house, building, tent, vehicle, vessel or aircraft.
(3-A) A Police Officer authorised under sub-section (3) may search any person who is found in or whom he has reasonable ground to believe to have recently left or to he about to enter such place or to seize any article found in the possession Of or upon such person and believed by the Police Officer so authorised to he evidence of the commission of any offence under this Act.
(3-B) A Police Officer authorised under sub-section (3) shall conduct any search under that sub-section or under subsection (3-A) in accordance with the provisions relating to search in the Code of Criminal Procedure, 1898.
(4) ...........................
7. I hold the view that the reasoning adopted by the learned counsel for the petitioner has to prevail. The ruling relied upon by the learned counsel for the petitioner is applicable to the facts of this case. It has specifically been held in the aforesaid ruling Muhammad lqbal Vs. The State (KJ 1989 Federal Shariat Court 39) as under:- "We can hardly lay hand on a single case in Islamic history where punishment was awarded to the offender on the testimony of the decoy witness or fake purchaser. On the contrary Islamic Jurisprudence has introduced a revolutionary concept of " to ensure a clear trial. A decoy witness or a fake purchaser is a self-condemned liar. How his version can inspire the confidence when tested on the touchstone of
8. It can well he expressed that it is the duty of the police authorities to prevent crime being committed. It is not part of their business to provide the instruments of the offence. A Police Officer or any other person cannot he sent to commit an offence in order that an offence by another person may he detected. It is not right, correct that police authorities should instruct, allow, or permit detective officers or plain cloth constables to commit an offence so that they can prove that another person has committed an offence. The police officers cannot he allowed to commit an offence for the purpose of getting evidence against some one, when by using its own men as fake purchasers, the prosecuting agency itself renounces the role of an impartial investigating agency and adopts the role of an interested party pitched against the accused with the set object of securing conviction, the whole exercise becomes vitiated and open to question.
9. In short sending of decoy witness in order to trap the accused is un-ethical and against the spirit of Islamic Justice and thus the alleged recovery of US Dollars is not above-hoard. This important violation of Islamic concept of justice cannot he ignored which cannot he treated as the basis of the commission of offence as well as the corroborative piece of evidence . Thus, this part of .
Evidence cannot form the basis of the conviction of the accused of the case.
10. In my view the mandatory provisions of Section 19 (3)(3-B) of the Foreign .Exchange Regulation Act, 1947 have made out that the working of the Inspector/SHO has to fall on the ground like a house of cards. It is the admitted position that he did not obtain the Search Warrant to enter the shop containing specified manner of search. He is running his business of goldsmith under the name and style Naeem Islam! Kanda in a shop (building) wherein the SHO Police Station, FIA, CBC, Multan could not enter to effect the search or take into his possession anything without obtaining the Search Warrant, containing the specified manner of search from the competent/authorised Magistrate i.e. District Magistrate, Sub-Divisional Magistrate or a Magistrate 1st Class before whom he was hound to make the written representation supported by a statement on oath and rather it is the admitted fact that this mandatory procedural formality was not observed. Even otherwise it is the admitted position that as required under Section 19 (3-B) of the Foreign Exchange Regulation Act, 1947 two respectables from the area were not joined at the time of effecting the search as provided under Section 103 of the Code of Criminal Procedure and even prior to that while taking into possession the purchased 25 US Dollars. Rather the currency notes spent for purchase of 25 US Dollars were neither marked not recovered from the accused. As expressed above, the safe of the accused could not he searched. Further at present there is no material about the practical recovery of 7500 US Dollars from the Safe. During these days the police has got infused the impression in their minds that they can enter and search any place including house, building, shop etc. Etc. The aforesaid legal procedural restraint has been placed on the authority of the police as the maintenance and protection of the honour and prestige is the Fundamental Right of the citizens.
11. It would also he proper to refer to the maxim:- "A COMMUNI OBSERVANT1A NON EST RECENDENDUM. -- Where a thing was provided to he done in a particular manner, it had to he done in that manner and if not so done, the same would not he lawful."
12. If the working of Mr. Saif Ullah Niazi, SHO is affirmed there would he administrative chaos resulting in the judicial anarchy. This is the crux of the matter to make me pass the order of exoneration of the accused through the quashment of the aforesaid First Information Report.
13. If on the basis of the aforesaid non-observance of the legal formality the petitioner-accused is entitled to he acquitted after full-fledged trial, it is his statutory right to get quashed the F.I.R. At the initial stage. It would he better for the Federal Investigating Agency to obtain the Search Warrant after submission of written representation supported by a statement on oath before the District Magistrate, Sub-Divisional Magistrate or Executive Magistrate First Class of the Area. The Search Warrant shall also contain the specified manner of search. Thereafter, the FIA can further proceed in accordance with law in such like matters so that there is maintenance of rule of law.
14. For what has been said above, I accept this petition and quash the aforesaid FIR. No order as to costs.