FIA can't block bank account of any person on inquiry stage .
### کیس کی مختصر کہانی
**حصہ 1: الزامات اور اقدامات**
ملت ٹریکٹر کمپنی کے ملازم محمد بلال نواز نے خود کو اس وقت قانونی مشکلات میں پھنسا لیا جب وفاقی تحقیقاتی ادارے (ایف آئی اے) کو ایک شکایت موصول ہوئی جس میں ان پر مالیاتی غلط کاری کا الزام لگایا گیا تھا۔ خاص طور پر، شکایت میں الزام لگایا گیا ہے کہ نواز نے غیر قانونی طور پر ایم سی بی بینک میں اپنے سیلری اکاؤنٹ میں رقم وصول کی۔ اس کے جواب میں ایف آئی اے نے انکوائری شروع کی اور بینک کو ہدایت کی کہ وہ اینٹی منی لانڈرنگ ایکٹ کے تحت نواز کا اکاؤنٹ بند کردے۔
**حصہ 2: عدالت میں قانونی جنگ**
نواز شریف کی نمائندگی ان کے وکیل محمد اسامہ آصف نے کی، ایف آئی اے کے اقدامات کو لاہور ہائی کورٹ میں چیلنج کیا۔ آصف نے دلیل دی کہ ایف آئی اے نے انکوائری کے مرحلے کے دوران نواز کا اکاؤنٹ منجمد کر کے اپنے اختیار سے تجاوز کیا، ان کے کیس کی حمایت کے لیے قانونی نظیروں کا حوالہ دیا۔ انہوں نے کہا کہ نواز شریف بے قصور ہیں، محض ایک عام کارکن ہیں اور کسی مالی جرائم میں ملوث نہیں ہیں۔
دوسری جانب ڈپٹی اٹارنی جنرل اسد علی باجوہ نے ایف آئی اے کے اقدامات کا دفاع کرتے ہوئے ایف آئی اے ایکٹ کے تحت اپنے قانونی اختیار کا دعویٰ کیا اور نواز شریف کی مبینہ منی لانڈرنگ سرگرمیوں کے شواہد پیش کیے۔
### عدالتی حکم
دونوں فریقوں کے دلائل پر غور کرنے کے بعد، لاہور ہائی کورٹ نے جسٹس طارق سلیم شیخ کے ذریعے 22 دسمبر 2023 کو اپنا فیصلہ سنایا۔ عدالت نے ایف آئی اے ایکٹ کے تحت مالی جرائم سمیت وفاقی جرائم کی تحقیقات کے ایف آئی اے کے مینڈیٹ کو تسلیم کیا۔ تاہم، اس نے قانونی طریقہ کار پر عمل پیرا ہونے اور افراد کے حقوق کے تحفظ کی اہمیت پر بھی زور دیا، جیسا کہ آئین کی ضمانت دی گئی ہے۔
اس کیس میں، عدالت نے پایا کہ انکوائری کے مرحلے کے دوران نواز کا اکاؤنٹ منجمد کرنے کے ایف آئی اے کے فیصلے کو مناسب قانونی بنیادوں کی حمایت نہیں دی گئی۔ جسٹس شیخ نے ایف آئی اے ایکٹ کے سیکشن 5(5) کا حوالہ دیا، جو اس طرح کے اقدامات کو تفتیشی مرحلے تک محدود کرتا ہے۔ نواز کو منی لانڈرنگ سے منسلک کرنے والے حتمی ثبوتوں کی کمی کے پیش نظر، عدالت نے درخواست گزار کے حق میں فیصلہ دیا۔
**عدالتی حکم**: لاہور ہائی کورٹ نے ایف آئی اے کی کارروائیوں میں طریقہ کار کی بے ضابطگیوں کا حوالہ دیتے ہوئے محمد بلال نواز کے بینک اکاؤنٹ کو فوری طور پر منجمد کرنے کا حکم دے دیا۔ اس فیصلے نے انفرادی آزادیوں کے تحفظ اور قانون نافذ کرنے والے ادارے قانون کی حدود میں رہتے ہوئے کام کرنے کو یقینی بنانے میں عدلیہ کے کردار کی یاد دہانی کے طور پر کام کیا۔
JUDGMENT SHEET
LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Writ Petition No.75231/2023
Muhammad Bilal Nawaz
Vs.
Director General, Federal Investigation Agency, and others
JUDGMENT
Date of hearing:
22.12.2023
For the Petitioner:
Mr. Muhammad Osama Asif, Advocate,
assisted by Mr. Waqar Ranjha, Advocate.
For Respondents No.1 to 4:
Mr. Asad Ali Bajwa, Deputy Attorney General
for Pakistan, and Mr. Zain Qazi, Assistant
Attorney General for Pakistan
, with Sh. Amer
Sohail Anjum, Assistant Director (Legal) FIA.
Tariq Saleem Sheikh, J. – On 17.10.2022, the Federal
Investigation Agency (FIA) received Complaint No.3424/22 against the
Petitioner, alleging that he was involved in a financial crime and had
unlawfully received various sums of money into his Account
No.1003771971001192, which he maintains with MCB Bank Limited
(the ―Bank‖). Following initial verifications, the FIA registered Enquiry
No. 35/2023, which was assigned to Respondent No.3. The latter sought
records from the Bank under section 25(1) of the Anti-Money Laundering
Act 2010 (―AMLA‖) and instructed it to debit-block the Petitioner‘s
aforementioned account. Subsequently, Respondent No. 3 issued a notice
to the Petitioner, requiring an explanation for the allegations against him.
Through this petition under Article 199 of the Constitution of the Islamic
Republic of Pakistan 1973 (the ―Constitution‖), the Petitioner challenges
the FIA‘s jurisdiction to restrict his bank account.
2.
Mr. Muhammad Osama Asif, Advocate, contends that the
Federal Investigation Agency Act 1974 (the ―FIA Act‖) distinguishes
between ―inquiry‖ and ―investigation‖. FIA has no lawful authority to
freeze or otherwise restrict the operation of any bank account at the
inquiry stage. Under section 5(5) of the FIA Act, such power can only be
Writ Petition No.75231/2023
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exercised during the investigation. According to him, since the
proceedings against the Petitioner are at the inquiry stage, the FIA‘s
action is without jurisdiction. In support of his contention, he has relied
upon Najib Rahim v. Federation of Pakistan through Secretary,
Ministry of Interior and others (PLD 2017 Sindh 53), Muhammad
Sohail Shaikh v. The State and others (PLD 2021 Lahore 612), Uzma
Adil Khan and others v. Federal Investigation Agency through Director
General, and others (2023 CLD 599), and Hamza Khalid v. The State
and another (2023 LHC 7628).
3.
On the factual aspect, Mr. Asif submits that the Petitioner
has been employed as a worker in the factory of Millat Tractor Company
Limited situated at Begum Kot, Lahore, for the past five years at a
monthly salary of approximately Rs.25,000/- per month. The account
mentioned above is his salary account. The Petitioner is not involved in
any offence, and the allegations against him are baseless. He appeared
before Respondent No.3 in response to his notice and explained his
position. He also filed an affidavit to support his defence plea. Mr. Asif
maintains that the restriction on the Petitioner‘s bank account is
unjustified.
4.
Mr. Asad Ali Bajwa, Deputy Attorney General, contends
that Mr. Asif‘s contention that the FIA can only freeze a bank account
during the investigation phase of a case, and not when it is at the inquiry
stage, is misconceived. He asserts that he has overlooked section 5(1) of
the FIA Act which is very clear in this respect. As regards the present
case, Mr. Bajwa submits that the FIA has credible evidence that the
Petitioner is involved in money laundering. Therefore, Respondent No.3
has proceeded against him under section 5(5) of the FIA Act, read with
section 8 of the AMLA, and debit-blocked his account by exercising
authority. According to him, the action against the Petitioner is lawful and
justified.
Opinion
5.
Parliament has established FIA through the Federal
Investigation Agency Act of 1974 for inquiry and investigation of certain
offences committed in connection with matters concerning the Federal
Writ Petition No.75231/2023
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Government.1
Section 3 of the Act, read with the Schedule thereto, lists
those offences and adds that it would include an attempt or conspiracy to
commit any such offence and the abetment thereof. In Munir Ahmad
Bhatti v. Director FIA Cyber Crime Wing, Lahore, and others
(PLD 2022 Lahore 664), after analyzing various provisions of the FIA
Act and legal precedents,2
this Court held that FIA falls within the
category of ―police authorities‖.
6.
Section 5 of the FIA Act describes the powers of the
members of the FIA. It is reproduced below for ease of reference:
5.
Powers of the members of the Agency.– (1) Subject to any
order which the Federal Government may make in this behalf, the
members of the Agency shall, for the purpose of an inquiry or
investigation under this Act, have throughout Pakistan such powers,
including powers relating to search, arrest of persons and seizure
of property, and such duties, privileges and liabilities as the officers
of a Provincial Police have in relation to the investigation of offences
under the Code [of Criminal Procedure 1898] or any other law for the
time being in force.
(2)
Subject to rules, if any, a member of the Agency not below the
rank of a Sub-Inspector may, for the purposes of any inquiry or
investigation under this Act, exercise any of the powers of an officerin- charge of a police-station in any area in which he is for the time
being and, when so exercising such powers, shall be deemed to be an
officer-in-charge of a police-station discharging his functions as such
within the limits of his station.
(3)
Without prejudice to the generality of the provisions of subsection (1) and sub-section (2), any member of the Agency not below
the rank of a Sub-Inspector authorized by the Director-General in this
behalf may arrest without warrant any person who has committed, or
against whom a reasonable suspicion exists that he has committed,
any of the offences referred to in sub-section (1) of section 3.
(4)
For the purpose of the exercise by the members of the
Agency of the powers of an officer in charge of a police station.
―Police Station‖ includes any place declared, generally or specially,
by the Federal Government to be a police station within the meaning
of the Code.
(5)
If, in the opinion of a member of the Agency conducting an
investigation, any property which is the subject matter of the
investigation is likely to be removed, transferred or otherwise disposed
of before an order of the appropriate authority for its seizure is
obtained, such member may, by order in writing, direct the owner or
any person who is, for the time being, in possession thereof not to
remove, transfer or otherwise dispose of such property in any manner
except with the previous permission of that member and such order
shall be subject to any order made by the court having jurisdiction in
the matter.
(6)
…
1
Preamble of the Federal Investigation Agency Act, 1974.
2 Ch. Abdur Rehman v. Deputy Director, FIA, Faisalabad and 19 others (2010 MLD 1346); Mushtaq
Hussain Shah v. Additional Sessions Judge, Islamabad and 6 others (PLD 2013 Islamabad 26) and
National Bank of Pakistan and another v. The State and 4 others (PLD 2021 Lahore 670).
Writ Petition No.75231/2023
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7.
The legislature has used two terms in section 5 of the FIA
Act, ―inquiry‖ and ―investigation‖, without providing specific definitions.
While these terms are commonly considered interchangeable, they carry
distinct meanings in the legal context. The Black’s Law Dictionary
defines ―inquiry‖ as ―(a) a question someone asks to elicit information;
(b) the act or process of posing questions to elicit information.‖3 On the
other hand, it describes ―investigation‖ as ―the activity of trying to find
out the truth about something, such as a crime, accident, or historical
issue; esp., either an authoritative inquiry into certain facts, as by a
legislative committee, or a systematic examination of some intellectual
problem or empirical question, as by mathematical treatment or use of the
scientific method.‖4 According to the Oxford Advanced Learner’s
Dictionary, ―inquiry‖ signifies ―a solicitation for information‖, while
―investigate‖ denotes ―the comprehensive exploration and scrutiny of all
facts surrounding a particular event, such as a crime or an accident, with
the objective of ascertaining the truth.‖5 Merriam-Webster defines
―inquiry‖ as ―a solicitation for information or an official endeavour to
amass and scrutinize data concerning a subject.‖ According to it,
―investigate‖ refers to ―the process of seeking out facts pertaining to an
incident, such as a crime or an accident, to determine the circumstances,
perpetrators, etc.‖
8.
The Code of Criminal Procedure 1898 (hereinafter referred
to as the ―Code‖ or ―Cr.P.C.‖) defines the two terms in section 4(1) as
follows:
(k)
“Inquiry”.– ―Inquiry‖ includes every inquiry other than a trial
conducted under this Code by a Magistrate or Court.
(l)
“Investigation”.– ―Investigation‖ includes all the proceedings
under this Code for the collection of evidence conducted by a
police officer or by any person (other than a Magistrate) who is
authorized by a Magistrate in this behalf.
9.
Legal precedents also acknowledge the distinction between
inquiry and investigation. In Adamjee Insurance Company Ltd. v.
Assistant Director, Economic Enquiry Wing (1989 PCr.LJ 1921), a
Division Bench of the Sindh High Court stated:
3 Black‘s Law Dictionary, 11th Edn., p. 946
4
ibid, p. 989.
5 Oxford Advanced Learner‘s Dictionary, Fifth Edn.
Writ Petition No.75231/2023
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―We may also point out that sub-section (1) of section 5 [of the FIA
Act] refers to two terms, i.e. ‗inquiry‘ or ‗investigation‘. The use of
these two terms in the above sub-section indicates that they connote
two different meanings. In our view, inquiry can be termed as the first
step towards investigation.‖
10.
In summary, ―inquiry‖ and ―investigation‖ are distinct
processes within legal proceedings, each serving specific purposes. An
inquiry refers to a preliminary examination or fact-finding process
conducted by a designated authority or agency to gather information
regarding a particular matter. It aims to assess the situation and determine
whether further legal action is warranted. Inquiries vary in scope and
formality, ranging from informal discussions to formal hearings. On the
other hand, an investigation involves a detailed examination of a specific
matter or allegation to gather evidence and determine its truth or validity.
Investigations are conducted by law enforcement agencies or authorized
entities to collect evidence, identify suspects, and gather information for
legal proceedings. Although both procedures entail scrutinizing facts and
evidence, inquiries are preliminary, primarily focusing on information
gathering. In contrast, investigations are more thorough and structured,
geared explicitly towards accumulating evidence to support legal action.
11.
In interpreting section 5(5) of the FIA Act, the courts have
taken into account the distinction between ―inquiry‖ and ―investigation‖.
Consequently, in the cases mentioned in paragraph 2 above, they
concluded that the FIA is only authorized to exercise search and seizure
powers under section 5(5) during investigations, not inquiries. The
Deputy Attorney General contends that these cases did not consider
section 5(1) of the FIA Act, an independent provision covering both
inquiries and investigations. It stipulates that subject to any orders from
the Federal Government, the members of the FIA possess the same
authority as provincial police officers regarding search, arrest, and
property seizure during inquiries or investigations under the Act, albeit
applicable nationwide. I am inclined to concur with his stance.
12.
Although the FIA Act serves as the primary legislation
governing the FIA, various statutes assign it the responsibility of
investigating offences committed under them. In such instances, the
specific provisions of those laws regarding arrest, search, and property
seizure would take precedence and must be complied with
Writ Petition No.75231/2023
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13.
Section 550 Cr.P.C. is an integral part of the legal
framework to combat crime. It aims to facilitate the immediate and lawful
seizure of suspicious property by police officers, ensuring that potential
evidence is secured for further inquiry/investigation and legal
proceedings. It reads:
550. Powers to police to seize property suspected to be stolen. –
Any police officer may seize any property which may be alleged or
suspected to have been stolen, or which may be found under
circumstances which create suspicion of the commission of any
offence. Such police officer, if subordinate to the officer in charge of a
police station, shall forthwith report the seizure to that officer.
14.
Section 550 Cr.P.C. employs expansive language, yet its
applicability hinges on two conditions: firstly, the subject must qualify as
―property‖, and secondly, there must be suspicion of the commission of
an offence.
15.
The term ―property‖ is not explicitly defined in either the
Pakistan Penal Code or the Code of Criminal Procedure. However,
various legal sources offer some guidance. Section 22 PPC states:
―The words ‗moveable property‘ are intended to include corporeal
property of every description, except land and thing attached to the earth
or permanently fastened to anything which is attached to the earth.‖
Article 2 (1) (xxi) of Police Order 2002 describes ―property‖ as under:
― ‗Property‘ means any moveable property, money or valuable security‖.
Section 3(34) of the General Clauses Act, 1897, says that ―movable
property shall mean property of every description, except immovable
property.‖ In Nevada Properties Private Limited v. State of Maharashtra
and another [(2019) 20 SC 119], while interpreting sub-sections (1) and
(2) of sections 102 of India‘s Code of Criminal Procedure 1973
(the ―Indian Code of 1973‖), which are analogous to Pakistan‘s 550
Cr.P.C., the Indian Supreme Court clarified that ―any property‖
mentioned in the law does not include immovable property. It
underscored that immovable property cannot, in its strict sense, be seized
– though documents of title, etc., relating to it can be seized, taken into
custody, and produced. Immovable property can be attached, locked, or
sealed, but seizure, in the legal sense, entails dispossessing the occupant,
which seldom occurs. The language of the relevant section does not
confer upon police officers the power to dispossess occupants and seize
Writ Petition No.75231/2023
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immovable property. Therefore, such powers cannot be inferred or
deemed implicit in the power to effect seizure without explicit legislative
authorization.
16.
―Suspicion‖ implies a belief or opinion based upon facts or
circumstances that do not constitute proof. In a legal context, ―suspicion‖
refers to a belief or perception held by an individual, particularly a law
enforcement officer or legal authority, that someone may be involved in
criminal activity. It is a subjective assessment based on circumstantial
evidence, observed behaviour, or received information that suggests the
possibility of wrongdoing. Suspicion does not require concrete evidence
or proof of guilt but rather signifies a preliminary inclination or doubt
regarding a person‘s involvement in unlawful behaviour. In Nevada,
supra, the Indian Supreme Court held that the word ―suspicion‖ is a
weaker and broader expression than ―reasonable belief‖ or ―satisfaction‖.
17.
In a nub, section 550 Cr.P.C. empowers law enforcement to
seize property suspected of being stolen or connected to criminal
activities. Notably, there is no requirement to prove the commission of
any offence before invoking this provision. They can act based on
suspicion alone. This highlights the proactive role of law enforcement in
preventing crime and preserving evidence. However, it is essential to
emphasize that while section 550 Cr.P.C. enables police officers to seize
property, it does not grant them the authority to administer justice or
return the same to rightful owners. Such power is reserved solely for the
courts.
18.
The term ―any offence‖ in section 550 Cr.P.C. demonstrates
the legislature‘s intention to cover offences under any statute, implying a
broad application of the provisions. It connotes that even in cases
involving non-cognizable offences, where the police cannot arrest without
a warrant and the investigation requires a court order, they still have the
authority to seize property found under suspicious circumstances.
19.
As adumbrated, sub-sections (2) and (4) of section 5 of the
FIA Act empower a member of the FIA, not below the rank of a SubInspector, to exercise the powers of an officer-in-charge of a police
station to conduct inquiries or investigations under the FIA Act, subject to
any applicable rules. This authority extends to any area where the
Writ Petition No.75231/2023
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member is currently stationed, effectively conferring upon them the status
of an officer-in-charge of a police station within that jurisdiction. Here,
the term ―police station‖ encompasses any place designated by the
Federal Government, whether generally or specifically, as a police station
within the meaning of the Code. Consequently, the FIA is competent to
exercise powers under section 550 Cr.P.C.
20.
This takes us to the question of whether the bank account of
an accused or his relation can be considered ―property‖ within the
meaning of section 550 Cr.P.C. and whether an investigating officer has
the authority to seize it or issue a prohibitory order restraining its
operation. In State of Maharashtra v. Tapas D. Neogy [(1999) 7 SCC
685], the Indian Supreme Court answered this question in the affirmative
while considering sub-sections (1) and (2) of section 102 of the Indian
Code of 1973, which mirror Pakistan‘s section 550 Cr.P.C., as mentioned
above. It held that the legislature‘s choice of phrasing, specifically ―any
property‖ and ―any offence‖, indicates an intention to encompass
violations under all statutes, implying a broad application of the
provisions. There is no justification for narrowly interpreting them. The
Supreme Court reasoned:
―It is well known that corruption in public offices has become so
rampant that it has become difficult to cope with the same. Then again,
the time consumed by the courts in concluding the trials is another
factor which should be borne in mind in interpreting the provisions of
section 102 of [the Indian] Criminal Procedure Code and the
underlying object engrafted therein, inasmuch as if there can be no
order of seizure of the bank account of the accused then the entire
money deposited in a bank which is ultimately held in the trial to be
the outcome of the illegal gratification, could be withdrawn by the
accused and the courts would be powerless to get the said money
which has any direct link with the commission of the offence
committed by the accused as a public officer. We are, therefore,
persuaded to take the view that the bank account of the accused or any
of his relation is ‗property‘ within the meaning of section 102 of the
Criminal Procedure Code and a police officer in the course of
investigation can seize or prohibit the operation of the said account if
such assets have direct links with the commission of the offence for
which the police officer is investigating into.‖
21.
The Supreme Court of India reaffirmed the above view in
Teesta Atul Setalvad v. The State of Gujarat (AIR 2018 SC 27). The
Investigating Officer had materials pointing out circumstances that
created suspicion of the commission of the offence under investigation
and seized the appellant‘s bank accounts while exercising powers under
section 102(1) of the Indian Code of 1973. The Supreme Court upheld
Writ Petition No.75231/2023
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this action because the Investigating Officer had followed the procedure
prescribed in sub-sections (2) and (3) of the same provision. After issuing
instructions to seize the mentioned bank accounts, he submitted a report
to the concerned Magistrate.
22.
In view of the above, the phrase ―any property‖ in section
550 Cr.P.C. encompasses bank accounts. Since the FIA is competent to
exercise powers under section 550 Cr.P.C., as discussed above, it holds
the authority to freeze bank accounts or restrict their operation under
section 5(1) of the FIA Act, regardless of whether the matter is in the
inquiry or investigation stage. However, this would be subject to the
condition that there should be some nexus with the alleged offence or that
circumstances create suspicion of the commission of any offence.
23.
The freezing of accounts affects the right to privacy and the
reputation of the account holder. The FIA cannot arbitrarily freeze bank
accounts or keep them frozen indefinitely. Such actions would violate the
account holder‘s constitutional and legal rights. However, these
individual rights must be balanced with the duty of the State to combat
crime and punish offenders. In Adamjee Insurance Company Ltd. v.
Assistant Director, Economic Enquiry Wing (1989 PCr.LJ 1921), a
Division Bench of the Sindh High Court recognized the formidable
challenges faced by the FIA in white-collar crimes. It acknowledged the
inherent difficulty in obtaining concrete evidence at the initial stages of
an inquiry or investigation due to the complex nature of such offences.
However, the High Court emphasized the importance of preventing
unwarranted interference in business operations, which are crucial for
national economic growth. It stressed that unfounded inquiries into the
criminal involvement of companies or businessmen could result in
significant financial losses and harassment. Consequently, it held that
initiating inquiries or investigations must be based on substantive
allegations. Generally, courts should not interfere in the investigative
process. Nevertheless, the High Court may intervene under Article 199 of
the Constitution where inquiries or investigations infringe upon
constitutional rights, violate other laws, or are motivated by malicious
intent
Writ Petition No.75231/2023
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24.
The Code stands as a bulwark against the abuse of power by
police and law enforcement agencies, providing a comprehensive
mechanism to ensure accountability and transparency in their actions.
Section 523(1) Cr.P.C. mandates that the seizure by any police officer of
property taken under section 51, or alleged or suspected to have been
stolen, or found under circumstances suggestive of criminal activity shall
be forthwith reported to a Magistrate who shall make such order as he
thinks fit respecting the disposal of such property or the delivery of such
property to the person entitled to the possession thereof, or if such person
cannot be ascertained, respecting the custody and production of such
property. Therefore, whenever the FIA issues a directive restricting an
individual‘s bank account, whether during an inquiry or investigation, it
must promptly notify the relevant Magistrate or court, which would then
issue an order in accordance with the law appropriate to the situation and
circumstances. Should the FIA fail in this duty, the aggrieved person may
approach the Magistrate or the court concerned for redress. This recourse
ensures that individuals are not left unprotected in the face of potential
abuses of power by the FIA. The following excerpt from Suraj Mohan
Babu Mishra vs State of Gujarat (AIR 1967 Guj 126), a case from the
Gujarat High Court, is instructive:
―In my opinion, it would be perfectly open to the learned Magistrate to
take note of the fact about any such truck having been seized by the
police officer and while he may not act upon it at once, it would be his
duty to inquire from the police officer and have his report obtained if
the police officer so desires to send. It is possible that the police officer
may have forgotten to send such a report, and on an intimation from
the Magistrate on any such information received from the owner of the
property involved, the police officer may send a report. The Magistrate
would then be justified in passing the order as he thinks fit with regard
to the disposal of any such property or the delivery of such property to
the person entitled to the possession thereof under S. 528 of the Code.
If however, the police officer does not choose to send in spite of an
intimation sent to him, the party claiming the property cannot be made
helpless, having no remedy by reason of the fault or default on the part
of a police officer in making a report which he was bound to make
forthwith on seizing the property under section 523 of the Criminal
Procedure Code. If the Magistrate was powerless to do so as is sought
to be urged, it may well happen that the police would retain it till, at
any rate, the charge sheet happens to be sent in the particular case to
the court of the Magistrate, and thereby cause considerable hardship to
the rightful claimant, and even the property would suffer damage by
remaining unused for an indefinite time. The police officer has no
power or authority to deal with it in any manner, and it is, therefore,
that the legislature required him to report to the Magistrate, so that
suitable orders can be passed by the Magistrate under S. 523(1) of the
Code. The learned Magistrate had thus failed to exercise the
jurisdiction and the authority he had when it was known to him that
Writ Petition No.75231/2023
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this property was seized and when he found that no report, as was
required to be sent by the police officer forthwith, was received by
him.‖6
25.
In the case at hand, the FIA is investigating the Petitioner for
the offence of money laundering under section 3 of the AMLA. While the
FIA Act serves as the primary legislation governing the FIA, in the
present case, AMLA would apply, prevailing over the FIA Act and the
Code if there is any inconsistency.7
Even if the FIA were not conducting
proceedings under the AMLA or any other special law with specific
provisions, and only the FIA Act applied, the FIA could still legally
freeze the Petitioner‘s bank account under section 5(1) of the FIA Act,
subject to the protections outlined in section 523(1) Cr.P.C.
26.
Section 8(1) of the AMLA stipulates that an investigating
officer may, on the basis of a report from the concerned investigating or
prosecuting agency, with the prior permission of the Session Court having
the jurisdiction, provisionally attach such property which he reasonably
believes to be the property involved in money laundering for a period not
exceeding 180 days from the date of the order. However, the Session
Court may grant a further extension for up to 180 days. Section 8(2)
states that the investigating officer shall, within forty-eight hours
immediately after the attachment, forward a copy of the order and the
investigating or prosecuting agency‘s report to the head of the concerned
investigating agency in a sealed envelope. Section 8(3) specifies that
every order of attachment made under section 8(1) shall cease to have
effect after the expiry of the period specified in that sub-section or on the
date of the finding made under section 9(2), whichever is earlier. Section
8(5) mandates that the investigating officer who provisionally attaches
6 Also see: Ramlal Hazarimal v. Hiralal Ramlal and another (AIR 1953 MB 241); M.V. Ramankutty v.
State (AIR 1970 Kerala 191).
7
Section 39 of the Anti-Money Laundering Act 2010 provides:
39. Act to have overriding effect.—(1) Subject to sub-section (2), the provisions of this Act
shall have effect notwithstanding anything inconsistent contained in any other law for the time
being in force. (2) The provisions of this Act shall be in addition to, and not in derogation of,
the Anti Narcotics Force Act, 1997 (III of 1997), the Control of Narcotics Substances Act,
1997 (XXV of 1997), the Anti-terrorism Act, 1997 (XXVII of 1997) and the National
Accountability Ordinance, 1999 (XVIII of 1999) and any other law relating to predicate
offences.
A further reference may be made to section 22(1) of the AMLA which stipulates that the
provisions of the Code of Criminal Procedure, 1898 (Act V of 1898) shall, in so far as they are not
inconsistent with the provisions of this Act, apply to arrest, bail, bonds, search, seizure, attachment,
forfeiture, confiscation, investigation, prosecution and all other proceedings under this Ac
Writ Petition No.75231/2023
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any property under section 8(1) shall submit a monthly progress report to
the Session Court regarding the investigation.
27.
Section 9(1) of the AMLA ordains that upon attachment or
seizure of property, the investigating officer shall, within seven days,
serve a notice of at least 30 days on the person concerned. The said notice
shall require the individual to indicate the sources of his income or means
by which he acquired the attached property and to show cause why all or
any of such properties should not be declared to be the properties
involved in money laundering and forfeited to the Federal Government. If
the notice specifies any property as being held by a person on behalf of
any other person, a copy thereof shall also be served upon that person.
Section 9(2) mandates that after reviewing the reply, the evidence
presented, and hearing the aggrieved person, the investigating officer
shall record a finding as to whether the properties in question are indeed
linked to money laundering. Where the investigating officer determines
that the property is so involved, he shall apply to the Session Court for an
order confirming the attachment of the property. After giving an
opportunity of hearing to the persons concerned, the court may pass an
order confirming the attachment or, as the case may be, the release of the
property. When the provisional attachment order made under section 8(1)
is confirmed, the property is dealt with under sub-sections (4) to (7) of
section 9 of the AMLA.
28.
AMLA does not contemplate an inquiry like the FIA Act or
the Federal Investigation Agency (Inquiries and Investigations) Rules,
2002. According to section 21 of AMLA, every offence punishable under
the Act is cognizable8
and non-bailable. In the present case, Respondent
No.3 has debit-blocked the Petitioner‘s account by exercising the
authority under section 5(5) of the FIA Act read with section 8 of the
AMLA. The fact that Respondent No.3 did not register an FIR upon
receiving a complaint alleging the commission of a cognizable offence
does not hinder the initiation of the investigation. In Emperor v. Khwaja
Nazir Ahmad (AIR 1945 PC 18), the Privy Council held that an
investigation could commence even without recording FIR. Courts in
8
Section 12, Anti-Money Laundering (Second Amendment) Act, 2020 (Act No. XXX of 2020).
Official Gazette Notification No. F.22(50)/2020-Legis dated 24 Sep 2020.
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Pakistan have consistently followed this ruling after the Partition.9
Consequently, Mr. Asif‘s objection to the FIA‘s jurisdiction to impose
restrictions on the Petitioner‘s account is misconceived.
29.
A perusal of the record shows that Respondent No.3 has
blatantly disregarded sections 8 and 9 of the AMLA in the present case.
He did not obtain permission from the competent court before issuing
directives to the Bank concerning the Petitioner‘s account. Next, he did
not render findings under section 9(2) of the AMLA or apply to the court
for an order under section 9(3) thereof. Lastly, he did not submit a
monthly progress report of the investigation to the court.
30.
In view of the above, this petition is accepted, and the
limitation placed on the Petitioner‘s MCB Bank Account No.
1003771971001192 by Respondent No.3 is annulled.
(Tariq Saleem Sheikh)
Judge
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