2026 P Cr. L J 61

 2026 P Cr. L J 61

[Sindh]

Before Muhammad Saleem Jessar, J

NOMAN AHMED---Applicant

Versus

The STATE---Respondent

Criminal Misc. Application No. 372 of 2020 and M.A No. 9301 of 2020,

decided on 18th September, 2024.

Foreign Exchange Regulation Act (VII of 1947)---

----S. 23(3)---Penal Code (XLV of 1860), S. 109---Criminal Procedure

Code (V of 1898), Ss. 561-A & 265-K--- Violation of foreign exchange

restrictions, abetment---Acquittal of accused---Scope---Application of

the petitioner/accused for his acquittal from the case was dismissed

by the Trial Court---Validity---From bare perusal of second proviso

to S.23(3) of the Act, 1947, it was crystal clear that requirement of

filing a complaint in writing by a person authorized by the Central

Government or the State Bank was only in respect of alleged

commission of offences by those persons who were duly authorized

under S. 3, 3A or 3AA of the Act, 1947---However, if a person was

not authorized under said provisions of law, then there shall be no

need of filing any such complaint---No material had been produced

by or on behalf of the applicant to establish that he had been

authorized by the State Bank to deal in foreign exchange, foreign

currency notes or foreign coins, postal notes, money orders, bank

drafts, travelers cheques and transfers, as provided in the said

provisions of law---From the language of second proviso it was

quite apparent that requirement of filing a complaint in writing by

a person authorized by the Central Government or the State Bank

had been exempted in respect of those persons who were not

authorized under Ss. 3, 3A or 3AA to deal in foreign exchange,

foreign currency notes or foreign coins, postal notes, money orders,

bank drafts, travelers cheques and transfers---In this view of the

matter, legal objection raised on behalf of the accused/applicant

was not sustainable and it could safely be held that the Trial

Court/Tribunal was fully competent to proceed with the case of the

applicant---It was alleged by the applicant that FIA officials

conducted raid without obtaining search warrant from the

concerned Magistrate and there were also other violations of the

provisions of S. 19(3) of the Act---Suffice to observe that the fact as

to whether any search warrant was obtained by the FIA officials or

not from the concerned Magistrate could be determined only after recording of evidence and without undertaking such exercise, it

would be premature to adjudge this fact---In case the applicant s

plea was that he was innocent and had been involved in the case

falsely and/or with mala fide intention, he would be afforded

sufficient opportunity to prove his innocence during trial of the

case---Besides, other remedies admissible under the law would also

be available to applicant for initiating appropriate proceedings

against the complainant and also for awarding compensation to

him, if ultimately it was found and concluded that the complaint

was frivolous and vexatious and had been filed with ulterior

motives only to victimize the applicant---Criminal Misc. Application

having no merits was dismissed, in circumstances.

Muhammad Aslam (Amir Aslam) and others v. District Police

Officer, Rawalpindi and others 2009 SCMR 141; Muhammad Saleem v.

Deputy Director, FIA/CBC, Multan and another 2000 MLD 357; Ghani-

Ur-Rehman v. The State through Additional Advocate-General and

another 2015 MLD 1438; Ghulam Sarwar v. The State 2013 PCr.LJ 12;

Shamim Ahmed Kashmir wala v. The State 1988 PCr.LJ 136; Alam Jan v.

FIA Police Station, Gilgit 2017 PCr.LJ 69; Sajjad Ahmed v. Federation of

Pakistan 2018 YLR 2668; Abdul Razzaq and another v. The State 2020

MLD 1921; Syed Shoaib Ahmed Bukhari v. The State PLD 2001 Karachi

279; Muhammad Ashraf v. Rizwan Nazir, Executive Magistrate 1st

Class, Daska and another 2000 PCr.LJ 1324; Muhammad Saleem v.

Deputy Director, FIA/CBC, Multan and another 2000 MLD 357; Ghulam

Sarwar v. The State 2013 PCr.LJ 12 and Ghani-Ur-Rehman v. The State

through Additional Advocate General and another 2015 MLD 1438 ref.

Model Customs Collectorate, Islamabad v. Aamir Mumtaz Qureshi

2022 SCMR 1861 and Noor Muhammad v. The State and others PLD

2007 SC 9 rel.

Muhammad Bilal Rashid for Applicant.

Muhammad Ahmed, Assistant Attorney General, for Pakistan along

with Inspector Muhammad Saleem, FIA, SBC, Karachi for the State.

Date of hearing: 6th September, 2024.

JUDGMENT

MUHAMMAD SALEEM JESSAR, J.---By means of instant Criminal

Misc. Application under Section 561-A Cr.P.C. the applicant Noman

Ahmed has assailed the order dated 01.10.2020 passed by learned

District and Sessions Judge, Karachi South in FER No.09/2020 vide FIR

No.07/2020 registered at PS FIA State Bank Circile, Karachi under

section 23 of FER (Amended) Act, 2020 read with section 109 P.P.C, whereby application under section 265-K Cr.P.C moved by applicant

was dismissed.

2. Brief facts giving rise to filing of instant Cr. Misc. Application, are

that on credible information received by FIA SBC, Karachi that

prreviously accused Noman Ahmed was involved in the Crime of

Hawala/Hundi in his office / shop situated at 3rd Floor, Jillani Market,

Mariot Road, Boulton Market Karachi and FIA CBC Karachi had lodged

FIR No. 14/2018, under Section 4(1)5-23 FER Act 1947 read with Section

109 P.P.C and said person was facing trial in the Court of VIlI-

Additional Sessions Judge, Karachi South. However, after registration

of the FIR, said Noman has changed his place of business and was

continuously doing illegal business of Hundi/Hawal at another place

i.e. Shop No. 39, Ground Floor, Yousuf Plaza, Boulton Market, Karachi.

Accordingly, Inquiry No.17/2020 was registered at FIA SBC, Karachi

and raiding party consisting of Inspector Javed Hussain and other staff

conducted raid at the shop of the accused and arrested him. The

accused admitted of doing illegal business of Hundi/Hawala and

during his personal search and that of his premises, one mobile phone

set "Realme-5" model RMX1911, IMEI No. 867412040763459 and IMEI

No. 867412040763443 containing SIM/Cell No. 03360230439 and

03456270704 containing material related to TT and RMB regarding

Hundi/Hawal, Pak Rs.445,000/- and Foreign Currencies viz. US$ 1796,

Saudi Riy l 2263 and RMB 4350 were recovered. Thereafter, FIR

No.07/2020 was lodged at P.S. FIA SBC, Karachi, against the accused /

applicant for committing offence under Section 23 of Foreign

Exchange Regulation (Amendment) Act, 2020 read with Section 109

P.P.C.

3. During pendency of trial proceedings before the trial Court, the

accused/applicant moved an application under Section 265-K Cr.P.C.

for his acquittal, on the grounds stated in the application, which was

dismissed by the trial vide impugned order, hence the applicant has

assailed said order by means of instant Cr. Misc. Application. During

proceedings of instant Cr. Misc. Application on the direction of this

Court, the trial Court/District and Sessions Judge, Karachi

(South)/Tribunal submitted progress report to the effect that after

submission of interim challan, I.O. has not submitted final report;

however, accused has been appearing before the Court but the trial

has not commenced due to non-submission of final report by the FIA.

4. I have heard the arguments advanced by learned counsel for the

parties and have perused the material available on the record.

5. Learned counsel for the applicant submitted that FlA had no

jurisdiction to conduct raid upon the house or shop of the applicant as

they had not obtained any search warrant as required under the law, thus they have violated the mandatory provisions of Section 19 (3) of

the Foreign Exchange Regulations Act, 1947; hence, the proceedings

initiated on the basis of FIR and cognizance taken by the Tribunal, are

coram non judice, therefore, the applicant deserves his acquittal. He

next submitted that in case, trial is commenced, according to him,

even then there is no probability of his conviction and he would be

acquitted in view of legal flaws / lacunas in the case. Learned counsel

for the applicant further submitted that FlA had no jurisdiction to

lodge the FIR as, according to the relevant provisions of the law i.e.

Section 23 of the Act, 1947, a complaint in writing was required to be

submitted by the authorized person and then upon issuance of the

warrant by the concerned Magistrate, they were supposed to enter or

seize the property in question, therefore, by not following the

procedure, they have committed a gross illegality, thus the application

under Section 265-K Cr.P.C. was maintainable. He, therefore, submitted

that by allowing instant Cr. Misc. Application, impugned order may be

set-aside and the proceedings pending before the trial Court/ Tribunal

vide FER. No.09 of 2020 (re-Noman Ahmed v. The State through FIA,

State Bank Circle) may be quashed and the applicant may be acquitted

of the charge. In support of his contentions, learned counsel placed

reliance upon the cases (i) Muhammad Aslam (Amir Aslam) and others

v. District Police Officer, Rawalpindi and others (2009 SCMR 141), (ii)

Muhammad Saleem v. Deputy Director, FIA/CBC, Multan and another

(2000 MLD 357), (iii) Ghani-Ur-Rehman v. The State through Additional

Advocate-General and another (2015 MLD 1438), (iv) Ghulam Sarwar v.

The State (2013 PCr.LJ 12), (v) Shamim Ahmed Kashmirvwala v. The

State (1988 PCr.LJ 136), (vi) Alam Jan v. FIA Police Station, Gilgit (2017

PCr.LJ 69), (vi) Sajjad Ahmed v. Federation of Pakistan (2018 YLR 2668)

and (vii) Abdul Razzaq and another v. The State (2020 MLD 1921), Syed

Shoaib Ahmed Bukhari v. The State (PLD 2001 Karachi 279],

Muhammad Ashraf v. Rizwan Nazir, Executive Magistrate 1st Class,

Daska and another [2000 PCr.LJ 1324), Muhammad Saleem v. Deputy

Director, FIA/CBC, Multan and another [2000 MLD 357], Ghulam

Sarwar v. The State (2013 PCr.LJ 12] and Ghani-Ur-Rehman v. The State

through Additional Advocate General and another [2015 MLD 1438].

6. Conversely, learned Assistant Attorney General for Pakistan,

argued that the impugned order does not suffer from any illegality or

infirmity, which may require interference by this Court. He further

submitted that it will be appropriate for the applicant to face the trial

and prove his innocence before the trial court by adducing his

evidence. He, therefore, submitted that by dismissing instant

application, case may be remanded to trial Court with directions to

expedite the same and conclude it within a shortest possible time 7. The main stress laid down by learned counsel for the applicant, is

upon the fact that under Section 23(3) of the Act, 1947, the cognizance

is to be taken on the basis of a complaint to be submitted by a person

authorized by the Central Government or the State Bank in this behalf;

however, in instant case no such complaint has been filed, therefore,

registratin of FIR by the FIA and then initiation of proceeding before

the trial Court / Tribunal against the accused / applicant is nullity in

the eye of law.

8. It seems that Section 23 (3) of the Foreign Exchange Regulation

Act, 1947, provides that a Tribunal, constituted under the Act ibid,

shall not take cognizance of any offence, except upon complaint

having been made in writing by a person authorized by the Central

Government or the State Bank in this behalf. Apparently, the legal

objection raised by learned counsel for the applicant in respect of

jurisdiction of the trial Court / Tribunal is based on subsection (3) to

Section 23 of the Act, 1947, which is reproduced as under:

(3) A Tribunal shall not take cognizance of any offence punishable

under this section and not declared by the Central Government

under the preceding subsection to be cognizable for the time

being, or of an offence punishable under section 54 of the

Income-tax Act, 1922, as applied by section 19, except upon

complaint in writing made by a person authorized by the Central

Government or the State Bank in this behalf:

9. However, second proviso to subsection (3) of Section 23 of the Act,

1947 which was added / inserted through Foreign Exchange Regulation

(Amendment) Act, 2020, provides:

Provided further that if a person not authorized under section 3, 3A

or 3AA is found involved in illegal foreign exchange business the

complaint as required in this subsection shall not be required..

10. From bare perusal of above-quoted second proviso to Section

23(3) of the Act, 1947, it is crystal clear that requirement of filing a

complaint in writing by a person authorized by the Central

Government or the State Bank is only in respect of alleged commission

of offences by those persons who are duly authorized under Section 3,

3A or 3AA of the Act, 1947. However, if a person is not authorized

under above said provisions of law, then there shall be no need of

filing any such complaint.

11. It may be clarified that Section 3 of the Act is in respect of

Authorised Dealers in Foreign Exchange and provides that the State

Bank may, on application made to it in this behalf, authorize any

person to deal in foreign exchange, Section 3A of the Act is in respect

of Authorized money changers in foreign exchange and provides that the State Bank may, on application made to it in this behalf, and on

payment of a fee prescribed by it, from time to time, authorize any

person to deal in foreign currency notes and coins, while Section 3AA

of the Act is in respect of Exchange Companies and provides that the

State Bank may, on application made to it in this behalf, and on

payment of such fee as it may, from time to time prescribe, authorize

any company to deal in foreign currency notes, coins, postal notes,

money orders, bank drafts, travellers cheques and transfers.

12. No material has been produced by or on behalf of the applicant

to establish that he has been authorized by the State Bank to deal in

foreign exchange, foreign currency notes or foreign coins, postal

notes, money orders, bank drafts, travellers cheques and transfers, as

provided in the above said provisions of law. From the language of

above-quoted second proviso is quite apparent that requirement of

filing a complaint in writing by a person authorized by the Central

Government or the State Bank has been exempted in respect of those

persons who are not authorized under section 3, 3A or 3AA to deal in

foreign exchange, foreign currency notes or foreign coins, postal

notes, money orders, bank drafts, travellers cheques and transfers. In

this view of the matter, aforesaid legal objection raised on behalf of

the accused / applicant is not sustainable and it can safely be held that

the trial Court / Tribunal is fully competent to proceed with the case of

the applicant.

13. So far as the legal objection raised by learned counsel for the

applicant in respect of conducting raid by FIA officials without

obtaining search warrnat from the concerned Magistrate and other

violations of the provisions of Section 19(3) of the Act is concerned,

suffice it to observe that the fact as to whether any search warrant was

obtained by the FIA officials or not from the concerned Magistrate

could be determined only after recording of evidence and without

undertaking such exercise, it would be premature to adjudge this fact.

14. Now, adverting to the facts of present case. It appears that the

applicant has filed instant Cr. Misc. Application under Section 561-A

Cr. P.C. having become aggrieved by dismissal of his application under

Section 265-K Cr. P.C. by the trial Court. Before touching the merits of

the case, it would be appropriate to examine the ingredients and

preconditions for filing an application under Section 265-K Cr. P.C. For

the sake of convenience the contents of Section 265-K Cr. P.C are

reproduced hereunder:

265-K. Power of Court to acquit accused at any stage: Nothing in this

Chapter shall be deemed to prevent a Court from acquitting an

accused at any stage of the case, if, after hearing the prosecutor

and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of any

offence."

15. From perusal of above provision of law, it is clear that under

Section 265-K, Cr.P.C., a Court of Session during the trial is empowered

to acquit an accused, when there is no probability of conviction,

meaning thereby that when there is no evidence on the record on the

basis whereof there may be any probability of conviction of the

accused, in such an eventuality the accused can file such application.

Apparently, this would mean that if there is remote probability of

conviction, then the court is required to record the evidence and then

decide the case on the basis of evidence adduced before it during the

trial. For this view, I am fortified by a Judgment passed by a Full Bench

of Honourable Supreme Court in the case of Model Customs

Collectorate, Islamabad v. Aamir Mumtaz Qureshi, reported in 2022

SCMR 1861, wherein it was held as under:

Under section 249-A, the Magistrate is empowered to acquit any

accused on two grounds i.e. charge is groundless and there is no

probability of conviction, whereas under section 265-K, Cr.P.C.,

the court during the trial is empowered to acquit an accused,

when there is no probability of conviction indicating that when

there is no evidence on the record and even there is no remote

probability of conviction and if there is remote probability of

conviction then the court is required to record the evidence and

then decide the case on evidence bought on record during the

trial. From the above sections, it is also clear that application

under sections 249-A and 265-K, Cr.P.C. can be filed or taken up

for adjudication at any stage of proceeding of trial i.e. even

before recording of prosecution evidence or during recording of

evidence or when recording of evidence is over. Although there

is no bar for an accused to file application under the said

sections at any stage of proceeding of the trial, yet the fact and

circumstance of the prosecution case will have to be kept in

mind and if there is slight probability of conviction then of

course, instead of deciding the said application should record

the evidence and allow the case to be decided on its merit after

appraising the evidence available on record.

16. In the same judgment, Honourable Supreme Court further held:

8. There is no cavil to the proposition that by enacting sections 249-A

and 265-K, Cr.P.C., the Legislature provided power to acquit an

accused at any stage of the case if, after hearing the prosecutor

and the accused and for reasons to be recorded, it considers that

the charge is groundless or that there is no probability of the

accused being convicted of any offence. But acquittal, under the said sections, could be made only if there was no probability of

conviction of the accused. However, each case must be judged

on its own special facts and circumstances and the reasons are

to be recorded in support of conclusion that charge is groundless

or that there is no probability of accused being convicted. If

there is remote probability of conviction then of course courts

are not empowered to invoke the said provisions i.e. 249-A and

265-K Cr.P.C. Reliance in this regard may be placed on the case of

The State through Advocate-General, Sindh High Court of

Karachi v. Raja Abdul Rehman (2005 SCMR 1544) wherein it was

held that though there is no bar for an accused person to file

application under section 249-A, Cr.P.C. at any stage of the

proceedings of the case yet the facts and circumstances of the

prosecution case will have to be kept in mind and considered in

deciding the viability or feasibility of filing an application at any

particular stage. The special or peculiar facts and circumstances

of a prosecution case may not warrant filing of an application at

a stage. This Court in the case of Bashir Ahmad v. Zafar ul Islam

(PLD 2004 SC 298) did not approve decision of criminal cases on

an application under section 249-A, Cr.P.C. or such allied or

similar provisions of law, namely, section 265-K or section 561-A,

Cr.P.C. and observed that usually a criminal case should be

allowed to be disposed of on merits after recording of the

prosecution evidence, statement of the accused under section

342, Cr.P.C., recording of statement of accused under section

340(2), Cr.P.C. if so desired by the accused persons and hearing

the arguments of the counsel of the parties and that the

provisions of section 249-A, section 265-K and section 561-A of

the Cr.P.C. should not normally be pressed into action for

decision of fate of a criminal case especially when apparently

there is probability of conviction after recording evidence. In

the present case, trial court disrupted the normal course of law

against the mandate of supra judgment i.e. Bashir Ahmad v.

Zafar ul-Islam and others (PLD 2004 SC 298).

17. In my opinion, more particularly, in view of above discussion in

respect of legal objection raised on behalf of the applicant, it is yet to

be determined at the trial stage after recording of evidence as to

whether the offence alleged against the applicant was, in fact,

committed by him or not and before undertaking such exercise, it

would be premature to adjudge determination of such fact. In case the

applicant s plea is that he is innocent and has been involved in the

case falsely and/or with mala fide intention, he would be afforded

sufficient opportunity to prove his innocence during trial of the case.

In this connection, reference may be made to the case of Noor Muhammad v. The State and others reported in PLD 2007 SC 9,

wherein Honourable Supreme Court held as under:

"The Court cannot overstretch the proceedings as to convert the

preliminary inquiry or the averments made in the complaint to

a stage of full-fledged trial of the case. It is quite an initial stage

whereafter the accused is having the opportunity, apart from

showing his innocence in the case at the final stage, to have a

recourse of an intermediary remedy by moving the Court

showing the complaint to be false and frivolous one and

requesting the Court for his acquittal under section 249-A or 265-

K, Cr.P.C. prior to further proceeding in the case to be taken.

Mere summoning of an accused by the Court to answer the

charges levelled against him does not tantamount to any

infringement of any right of a person but rather an opportunity

afforded to him to explain his position. During the investigation

of a FIR case, where the police is empowered to arrest without

warrant i.e., in cognizable case, such a process, i.e., arrest etc. is

resorted to by the police, even in a case where the person

accused of the charge pleads innocence before the police and he

succeeds in his efforts to some extent and the police agrees with

him, yet before any recommendation by the police for his

discharge, an insistence is made of his surrender before the

authorities/court. The possibility of accusation turning out to be

false or frivolous at the trial should not overbear the Court from

issuing the process if the material available, prima facie

discloses the case against the accused. At this stage a protracted

inquiry or full-dressed rehearsal of trial is not required."

18. Besides above, other remedies admissible under the law would

also be available to him for initiating appropriate proceedings against

the complainant and also for awarding compensation to him, if

ultimately it is found and concluded that the complaint was frivolous

and vexatious and had been filed with ulterior motives only to

victimize the applicant. In the case of Noor Muhammad (supra),

Honourable Supreme Court held as under:

"Moreover, section 250, Cr.P.C. also provides sufficient safeguard to

an accused against a false and frivolous accusation by the

complainant, which envisages that the court while acquitting an

accused at the trial stage, holding that the charge brought

against him, was false, frivolous or vexatious has sufficient

power to award adequate compensation."

19. So far as the case-law relied upon by learned counsel for the

applicant is concerned, it may be observed the FIR of instant case was

registered under Section 23 of Foreign Exchange Regulation (Amendment) Act, 2020, whereas all the cases relied upon by applicant

s counsel, except the case of Abdul Razzaq and another v. The State

(2020 MLD 1921), relate to the period prior to the promulgation of the

Exchange Regulation (Amendment) Act, 2020. So far as the case of

Abdul Razzaq (supra) is concerned, from perusal of said judgment it

transpires that perhaps neither counsel for the appellant in that case,

nor Assistant Attorney General, appearing for the State, had brought to

the notice of the Honourable Court about the enactment of the

aforesaid Act, 2020. Even otherwise, the judgment, having been

delivered by a Single Judge of Balochistan High Court, is persuasive in

nature and not authoritative.

20. The upshot of above discussion is that instant Criminal Misc.

Application filed by present applicant, having no merits, is hereby

dismissed along with pending application vide M.A No.9301 of 2020.

Accordingly, the interim order dated 22.10.2020 is hereby recalled.

Consequently, the impugned order dated 01.10.2020 passed by learned

District and Sessions Judge, Karachi South in FER No. 09 of 2020 (re:

Noman Ahmad v. State through FIA, SBC) is hereby maintained. The

trial Court / Tribunal is directed to proceed with the case and conclude

the trial within shortest possible time preferably within four (4)

months under intimation to this Court through MIT-II.

JK/N-34/Sindh Application dismissed.