MUHAMMAD AKRAM QURESHI VS DIRECTOR, FEDERAL INVESTIGATION AGENCY, 2016 PTD-KARACHI-HIGH-COURT-SINDH 244 (2015)

Customs Act (IV of 1969)---

----Ss.16 & 171---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Recovery of foreign currency little over the prescribed limit, from a passenger at the Airport---Factual controversy---Alternate relief---Effect---Factual controversy would require evidence and same could not be decided under constitutional jurisdiction---Petitioner had alternate remedy before the Trial Court---If alternate remedy was available, constitutional jurisdiction could not be exercised---Constitutional petition was dismissed in circumstances.

Sohail Muzaffar for Petitioner.

Salman Talibuddin, Additional Attorney General and Inspector Ali Murad, CBC FIA for Respondents.

Date of hearing: 15th April, 2015.

ORDER

Through instant petition, petitioner has sought following relief:--

"(i) That a meager sum foisted in excess of US $ 10,000/- and allegedly recovered from an outgoing passenger does attract the provisions of Section 2(s) punishable under Section 156(1)(8) of the Customs Act, 1969, as such sum does not fall within the meaning of Section 2(s)(ii) of the Customs Act, 1969.

(ii) That no FIR can be lodged under Section 2(s) of the Customs Act, 1969, when admittedly the petitioner was within his lawful right to carry US $ 10,000/- and therefore the arrest of the petitioner in the circumstances will amount to wrongful confinement.

(iii) That the provisions of Section 171 of the Customs Act, 1969 and Section 159 of the Customs Act, 1969, have not been complied with and such provisions of law being mandatory, the non-compliance will negate the entire search seizure and trial.

(iv) That the currency so seized from the petitioner is liable to be returned to the petitioner and FIR No.9/2013 dated 08.11.2013 is liable to be quashed and petitioner be set free.

(v) That letter dated 20.11.2013 being issued in a mala fide manner is liable to be quashed.

AND WHILE GRANTING SUCH DECLARATION, the Honourable Court be graciously pleased to quash the FIR and order that the currency seized from the petitioner be immediately restored to the petitioner and/or pending the petition direct the respondents 1, 2, 3, 4 and 5 to deposit the currency alleged seized, with the Nazir of this Court.

Further direct the respondents 1 to 5 to return the Original CNIC of the petitioner and the passport of the petitioner and keep the photocopy on record.

Any other relief which this Honourable Court may deem fit and proper in the circumstances of the case."

Brief facts as per memo of petition are that petitioner on 7.11.2013 while leaving for Dubai and carrying currency approximately equivalent to US$ 10,000 was checked by the FIA staff who objected to number of visits petitioner had to Dubai. The petitioner informed the respondents/FIA staff that he has vegetable supplying business in Karachi and also recently received a handsome share from the sale proceeds of his father's house. The respondent No.2 allegedly abused the petitioner and ultimately FIR was lodged against the petitioner. It is further claimed that the petitioner at the time of his arrest was in possession of Saudi Riyals 37,000, UAE Dirhams 730 and Tanzanian Shillings 5000 and Rs.1000 while a sum of Rs.20,000 was foisted upon the petitioner by respondents Nos. 2 to 4 to make it over and above the permissible limit of US$ 10,000.

After service of notice, respondents Nos. 1 to 6 filed comments alleging therein that petitioner was found in possession of Saudi Riyals, UAE Dirham, Tanzania Shillings worth US$ 10,068 as well as Pakistan currency notes totaling to Rs.21,000. According to respondents, traveling history of petitioner reveals from 30.1.2010 to 7.11.2013 petitioner has made as many as 235 departures/arrivals and was smuggling foreign currency. During investigation, a notice under Anti Money Laundering Act, 2010 was issued to him but he failed to submit a reply within the stipulated period. Even the petitioner could not produce any evidence regarding his source of income and payment of Income Tax/Wealth Tax to the Government. Accordingly, FIR No.9 of 2013 under sections 2(s), 156(1)(8) of Customs Act, 1969 was registered at PS FIA Corporate Crime Circle, Karachi.

Mr. Sohail Muzaffar, learned counsel for the petitioner has contended that first the petitioner was kept in wrongful confinement for over 24 hours and when the negotiations failed, the respondent No.4, without verifying the facts and legal position, lodged instant FIR. He further submitted legally the petitioner can carry currency US$ 10,000 or equivalent and when the respondent was found carrying currency within prescribed limit, the respondents foisted Pak Rs.20,000 upon the petitioner just to justify their action. Therefore, the petitioner is being tried for carrying hardly 20 US Dollars only above prescribed limit and the FIR so lodged is in violation of Section 2(s). He also contended that petitioner was served with 'a show cause notice under Anti Money Laundering Act and a notice under Section 171 of Customs Act, 1969, and a computer printout of an alleged form of so called currency declaration, just to blackmail and harass the petitioner to extort money. Accordingly the learned counsel the FIR lodged under Sections 2(s) and 156(1)(8) of the Customs Act, 1969, is without jurisdiction, illegal and mala fide act on the part of the respondents. He also argued that provisions of Sections 159 and 171 of the Customs Act, 1969, which are mandatory in nature, have not been complied with and such violation negates the entire search, seizure and trial. According to the learned counsel pursuant to Section 9 of the Customs Act, FIA has no jurisdiction in the matter.

On the other hand, Mr. Salman Talibuddin, learned Additional Attorney General opposed the petition on the ground that petitioner has alternate remedy available under the law and without exhausting all available legal remedies petition is not maintainable. Additionally, he submitted that the allegation of mala fide leveled against the respondents has no force as according to documentary evidence available on record petitioner during last three years had history of 235 arrivals/departures.

We have heard the learned counsel and perused the record. Admittedly, on 7.11.2013 petitioner was leaving for Dubai from Quaid-e-Azam International Airport, Karachi. However, officials of FIA found him in possession of currency beyond the prescribed limit. Consequently, FIR was registered against the petitioner. Mr. Sohail Mozaffar, counsel, for the petitioner contended that in order to make out a case against the petitioner, the respondents have foisted a sum of Rs.20,000 upon the petitioner, which made the currency carried out by the petitioner little over the prescribed limit. The question whether the foreign currency recovered from the petitioner was within prescribed limit or not requires evidence and cannot be decided in instant petition. We are informed that the trial court has granted bail to the petitioner in the case in hand.

Perusal of record also shows that on 8-11-2013, after registration of FIR on 7-11-2013, SPO/Seizing Officer of office of Superintendent Preventive Service, Model Customs Collectorate (Preventive), JIAP, Karachi, served a notice under section 171 of the Customs Act, 1969 upon the petitioner for violating the provisions of section 16 of the Customs Act, 1969 as he was found in possession of 37,000 Saudi Riyals, 730 UAE Dirhams, 5000 Tanzanian Shillings and 21,000 Pak Rupees, being in excess of the prescribed limits. However, he did not submit a reply to the said notice, apparently received on 9-11-2013.

The travelling history of the petitioner annexed with the statement of the I.O. submitted before us, reveals that from January, 2010 to November, 2013, the petitioner had 235 entries of arrival/ departure. The counsel for the petitioner has contended that respondents with mala fide intention registered the FIR against the petitioner is untenable as had that been so the petitioner may have been arrested earlier by the respondents.

Moreover, it is settled law that if alternate remedy is available, petitioner under Article 199 of the Constitution cannot be entertained. In the instant case, petitioner has alternate remedy before the trial Court in terms of section 265-K, Cr.P.C. and may raise all the points before the trial Court as raised in his petition, if so advised, as interference by this Court would amount to deflecting the trial.

For the foregoing circumstances, instant petition is dismissed.

ZC/M-68/SindhPetition dismissed.