Shoaib Ahmed Shaikh vs State Ss — 2024 PCrLJ 1980 KARACHI-HIGH-COURT-SINDH

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Shoaib Ahmed Shaikh VS State Ss. 5, 8, 22 & 23---Penal Code (XLV of 1860), Ss. 109 & 34---Criminal Procedure Code (V of 1898), S.249-A---Restriction on payments, restrictions on import and export of certain currency and bullion, violation of foreign exchange restrictions, abetment, common intention---Appreciation of evidence---Accused was charged for transferring approximately Rs. 170.70 million abroad through the informal and unregulated channel of hundi with the active connivance and assistance of director and manager of bank concerned---Application of accused seeking his acquittal pursuant to S.249-A, Cr.P.C, was dismissed---Validity---Record reflected that the complaint had been made by complainant in his capacity as a Deputy Director at the State Bank of Pakistan---At trial, complainant had admitted that he had no evidence that he was authorized by the State Bank of Pakistan to make a complaint, however, went on to justify that he derived his authorization from his designation by virtue of a Notification---Complainant however expressed his inability at trial to produce such a Notification---At that time Notification No. F.E.1/2001-SB dated 15.08.2001 was in effect which did not authorize a Deputy Director to make a complaint pursuant to S.23 the Foreign Exchange Regulation Act, 1947---Category of officers who could have made a complaint at that time were (i) Director (ii) Senior Joint Director (iii) Joint Director (iv) Junior Joint Director (v) Assistant Director (vi) Foreign Exchange Officer (vii) Assistant Foreign Exchange Director---Complainant as Deputy Director was not authorized by State Bank of Pakistan to make any complaint on its behalf---Origins of the Pakistan rupees which were allegedly given to exchange company by accused so that US dollars could be credited to vendors' accounts in Dubai was an enigma---Allegedly, accused received US dollars into his account from Dubai, which US dollars were converted to Pakistan rupees in Pakistan and those Pakistani rupees were then given to exchange company to be re-converted into dollars and sent back to Dubai---It was not denied by the State that the Pakistani rupees that accused had was "clean" money---In such situation it was not understandable as to why accused would enter into such a lengthy transaction, if the purpose of such a transaction was paying his vendors in Dubai---It might have been easier for accused to transfer the US dollars from his account in Dubai to the account of his vendors in Dubai rather than adopt a convoluted and financially adverse procedure as alleged---Perhaps there was a reason, however, the record and the prosecution did not have an explanation---Prosecution agreed that apart from a blanket allegation by the F.I.A., no other evidence was collected to substantiate the allegation against accused---Three vendors of accused company, into whose accounts the money was said to have landed, were not questioned in the investigation nor were their statements recorded---No documentary evidence was on record to establish the transfer of money---What suggested sheer mala fide on the part of the F.I.A. was that even though primarily it was the exchange company which who should have been made the target of the allegation, the F.I.A. seemed to have its guns pointed towards the accused---Exchange company's business was admittedly not impacted nor was its license suspended for even a day---Company carried on its business to date---In such state of affairs, the action against accused was spearheaded by the F.I.A. without any valid complaint having been made by the State Bank of Pakistan---Section 23(3) of Foreign Exchange Regulation Act, 1947 was not complied with---Application for acquittal was allowed, in circumstances.

Shoaib Ahmed Shaikh vs State Ss — 2024 PCrLJ 1980 KARACHI-HIGH-COURT-SINDH

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