Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Muhammad Rafique and another VS Respondent: Director General, Federal JUDGMENT
Court Name: Islamabad High Court Judge(s): Mohsin Akhtar Kayani Title:Muhammad Rafique and another vs Director General, Federal
JUDGMENT
Reported As: 2023 PCRLJ 38 Result: Petition dismissed Judgment JUDGMENT MOHSIN AKHTAR KAYANI, J. By way of this common judgment, this Court intends to decide the captioned writ petitions having involved similar facts and questions of law. 2. Through the captioned W.P. No 1184/2021, Muhammad Rafique (petitioner) seeks quashing of FIR No.51, dated 09.12.2020, under section 4 of Anti-Money Laundering Act, 2010, P.S. FIA/ACC, Islamabad. 3. Similarly, through the captioned W.P. No.1778/2021, Khalid Mehmood (petitioner) prayed for quashing for FIR No.52, dated 09.12.2020, under section 4 of Anti-Money Laundering Act, 2010, P.S. FIA/ACC, Islamabad. 4. Brief and consolidated facts are that both petitioners were employees of IESCO and have been involved in case FIR No. 10, dated 02.08.2019, under sections 420, 464, 468, 471, 473, 419, 409 and 109, P.P.C. read with section 5(2) of PCA, 1947 for allegedly clearing bills of IESCO using fake bank stamps and embezzled huge sum of money. However both the petitioners were granted bail after arrest by this Court. Later on, the aforementioned FIR No.51/2020 and FIR No. 52/2020 were lodged against the petitioners for acquiring assets through the embezzled amount referred in FIR No.10/2019. Hence, instant writ petitions. 5. Learned counsel for petitioners contended that the petitioners were already booked under FIR No.10/2019 and were behind the bars, therefore, registering another FIR about the same incident is unlawful and apparently amounts to abuse of process of law, even otherwise, the bare perusal of said FIRs reveals no offence against the petitioners; that the superior Courts have also rendered judgments on the inadequacy of availing the provisions of sections 249-A and 265-K, Cr.P.C.
---
## Page 2
holding that where prima facie a matter is unjust, the Court under writ jurisdiction has ample powers to quash an FIR for protection of an innocent person. 6. Conversely, learned A.A.G. as well as learned counsel for respondent stressed that instant writ petitions are not maintainable as petitioners instead of resorting to the learned trial Court/Special Court have directly invoked the writ jurisdiction for quashing the FIRs, as such, it has been held by the superior Courts in numerous pronouncements that the High Court cannot assume the role of investigator and cannot interfere with the lawful process of investigation. 7. Arguments heard, record perused. 8. Perusal of record reveals that both the petitioners namely Muhammad Rafique and Khalid Mehmood are Accounts Officer and Commercial Assistant of IESCO Sub-Division-I, Islamabad, respectively, who in connivance with each other allegedly prepared and posted bogus scrolls related to IESCO Consumer Bills using fake bank statements along with bill stubs with fake bank stamps of an amount of Rs.43 Million (approximately) in the month of June, 2019 only. They also got cleared and verified all those scrolls and reconciled the same with the monthly bank statements with the help of other co-accused person Muhammad Naeem Ex-RO-I, IESCO Sub-Division-I, whereafter they got cleared and reconciled the bogus scrolls and fake bank statements, forwarded the same for posting it in the IESCO online system at Computer Section. The IESCO Departmental Inquiry Committee through their interim report concluded that a sum of Rs.207,752,411/- was embezzled for the period of July, 2018 to June, 2019. Resultantly, a loss has been caused to national ex-chequer by misusing of authority and criminal breach of trust, hence, FIR No.10, dated 02.08.2019, under sections 420, 464, 468, 471, 473, 419, 409, 109, P.P.C. read with section 5(2) of PCA, 1947 was registered at P.S. FIA/ACC Islamabad. 9. The Investigating Officer submitted the final report under section 173, Cr.P.C. on 10.02.2021 before the learned Special Judge (Central), Islamabad, however after submission of the challan, another inquiry was initiated, which culminated into registration of FIR No.51, dated 09.12.2020, under section 4 of Anti-Money Laundering Act, 2010 (amended September, 2020), P.S. FIA/ACC, Islamabad and FIR No.52, dated 09.12.2020, under section 4 of Anti-Money Laundering Act, 2010 (amended September; 2020), P.S. FIA/ACC, Islamabad have been registered against the petitioners, as such, the same have been assailed by the petitioners primarily on the ground that the second FIR has been registered with delay qua the same offence originating from previously registered FIR No.10/2019, per se, the facts referred in subsequent FIRs qua Anti-Money Laundering are based upon series of transactions already mentioned in earlier FIR No.10/2019. 10. In order to deal with the grounds raised by the petitioner in these petitions, it is necessary to dilate upon the contents of subsequent FIR No.51 and FIR No.52 of 2020 being subject matter of instant writ petitions, whereby the tentative scanning of allegations referred therein reveals that Muhammad Rafique (petitioner) while rendering his services as Accounts Assistant, IESCO, acquired Plot No.2317, Sector 1-12/1, Islamabad from the proceeds of crime by the commission of predicate offence under Anti-Money Laundering Act, 2010 mentioned in FIR No.10/2019 i.e. the amount embezzled from bogus bills posted in IESCO billing system during the period of 2015 to 2019. Similarly, in FIR No.52/2020, petitioner Khalid Mehmood, Commercial Assistant, CO-I, IESCO, Islamabad acquired Toyota Passo, Model 2015, bearing registration No.ADK-259-Islamabad from the crime proceeds after commission of predicate offence under Anti-Money Laundering Act, 2010 mentioned in FIR No.10/2019, as such, the petitioners have been charged under section 3 of Anti- Money Laundering Act, 2010, punishable under section 4 of the Anti-Money Laundering Act, 2010. 11. The bare reading of Anti-Money Laundering Act, 2010 reveals that it provides the prevention of money laundering, combating financing of terrorism and forfeiture of property derived from, or involved in money laundering or financing of terrorism and for matters connected therewith or incidental thereto. The Act provides complete mechanism and definition of concept of Targeted
---
## Page 3
Financing Sanction, Suspicious Transaction Report, Regulators, Proceeds of Crime, the Investigating or Prosecuting Agency, Financial Monetary Unit as well as of Property for the offence of money laundering. Now the question arises as to whether the offences with which petitioners have been charged are of same transactions or originated from same transaction qua the allegations referred in earlier FIR No.10/2019 registered by the FIA against the petitioners. The answer to such proposition has been considered in the light of definition of offence of money laundering provided in Section 3, which is reproduced as under: 3. Offence of money laundering. A person shall be guilty of offence of money laundering, if the person:- (a) acquires, converts, possesses, uses or transfers property, knowing or having reason to believe that such property is proceeds of crime; (b) conceals or disguises the true nature, origin, location, disposition, movement or ownership of property, knowing or having reason to believe that such property is proceeds of crime; (c) holds or possesses on behalf of any other person any property knowing or having reason to believe that such property is proceeds of crime; or (d) participates in, associates, conspires to commit, attempts to commit, aids, abets, facilitates, or counsels the commission of the acts specified in clauses (a), (b) and (c). Explanation-I. The knowledge, intent or purpose required as an element of an offence set forth in this section may be inferred from factual circumstances in accordance with the Qanun-e- Shahadat Order, 1984 (P.O. 10 of 1984). Explanation II. For the purposes of proving an offence under this section, the conviction of an accused for the respective predicate offence shall not be required. 12. The above referred definition clearly states that any person who acquires, converts, possesses, uses or transfer any property knowing or reason, to believe that such property is the proceed of crime, which means that the charges in FIR No.10/2019 qua embezzlement and criminal breach of trust committed by the petitioners and causing tentative loss of Rs.207,752,411/- to the national ex- chequer was further used and converted by the petitioners Muhammad Rafique and Khalid Mehmood for the purchase of a plot and a vehicle, respectively, as such, there is no denial on record that petitioners are beneficial owners of these properties in question and they admitted this fact that the plot and vehicle was in their name, hence, the said two properties are fully covered under the definition of "property" provided in section 2(xxx) of the Anti-Money Laundering Act, 2010, but now the question arises as to whether these two properties are covered in terms of definition of "property involved in money laundering" as defined in section 2(xxxi), which explains that who holds or has held the property, which has been derived or obtained directly or indirectly from offence of money laundering, as such, this aspect relates to a question of fact and same could only be determined after recording of evidence in the learned. Trial Court. 13. The other important question raised in this petition is as to whether the second FIR could have been registered when it was already in the notice of FIA authorities while carrying investigation in the subsequent FIRs Nos. 51 and 52 of 2020 by the investigating agency in terms of section 2(xxxviii) of the AMLA, 2010 for the prosecution of offences of money laundering, the same has to be seen in the light of the entire scheme of this legislation, its specialized character, difference of offences, jurisdiction and in the light of section 39 of the Act, which provides the overriding effect. 14. It is also settled law that any enactment having overriding clause, like section 39 of the Anti- Money Laundering Act, 2010, shows its special character of being special law and excludes the general law. In other words, the special provision overrides the general provision. and the special enactment prevails over general enactment, even, the special law dealing with specific matter provides special, procedure, therefore, special procedure in such matter would be followed that the same has not been provided under the general law, as such, recourse to general law is permissible
---
## Page 4
when special law is silent on particular point, except where the provision of general law is inconsistent with the provision of special law. It is also settled that special, law is to be applied to a particular case on the basis of special jurisdiction envisaged in that particular law and provisions of general law stand displaced as held in 1996 SCMR 826 (Neimat Ali Goraya v. Jaffar Abbas). Furthermore, while taking analogy from cases reported as PLD 2002 Karachi 83 (Messrs Noorani Traders, Karachi v. Pakistan Civil Aviation Authority), 2010 SCMR 27 (Ismaeel v. The State); PLD 2010 Lahore 498 (The State v. Fazeelat Bibi), 1993 CLC 2009 Karachi (National Bank of Pakistan v. Emirates Bank International Ltd.) and 2014 CLD 582 Lahore (Saeed Ullah Paracha v. Habib Bank Ltd.), it has been observed that special law prevails over the general law and all the specialized kinds of offences, like predicate offences, and the special procedure dealing with Anti-Money Laundering is not provided in the Pakistan Penal Code, 1860 or in any other law disclosing specific character of AMLA, 2010, as such, there is no second opinion that it is a special statute providing special legislative intent to deal with specialized crime and when such kind of special laws have been promulgated the legislature has to provide an overriding clause in order to protect its character to prevail over any other law, legislation, rules and administrative instructions. The piece of legislation having overriding effect has to be interpreted in the light of phraseology and language used by the legislature. The Courts while interpreting laws relating to specialized economic activities and complexities of recent times do not admit of solution through any doctrinaire or straitjacket formula as held in PLD 2007 SC 133 (Federation of Pakistan v. Haji Muhammad Sadiq). The plain language of section 39 of AMLA, 2010 provides an overriding effect notwithstanding anything. contained in any other law and this special Act is in addition to the Anti- Narcotics Force Act, 1997, Control of Narcotic Substances Act, 1997, Anti-Terrorism Act, 1997, National Accountability Ordinance, 1999 and any other law relating to predicate offences. Section 39 of the Act clearly establishes the legislative intent that this special law has precedence on all other specialized crimes referred in other laws, therefore, the argument advanced by learned counsel for petitioner that the AMLA, 2010 is not a special law, rather same has to be applied in earlier FIR, is not legally justified. 15. By minute scanning of Anti-Money Laundering Act, 2010, it appears that the predicate offences specified in Schedule-I in terms of section 2(xxvi) of the Act includes all major offences of Pakistan Penal Code, 1860, including but not limited to murder, kidnapping, slavery, compulsory labor, rape, theft, theft of vehicle, extortion, robbery, dacoity, hijacking, criminal breach of trust, forgery, cheating, counterfeiting, etc., offences mentioned in the Pakistan Arms Ordinance, 1965, Foreigners Act, 1946, Prevention of Corruption Act, 1947, Foreign Exchange Regulation Act, 1947, Copyright Ordinance, 1962, Customs Act, 1969, Securities Act, 2015, Emigration Ordinance, 1979, Sales Tax Act, 1990, Control of Narcotic Substances Act, 1997, Anti Terrorism Act, 1997, Pakistan Environmental Protection Act, 1997, National Accountability Ordinance, 1999; Income Tax Ordinance, 2001, Prevention and Control of Human Trafficking Ordinance, 2002 and Federal Excise Act, 2005, though the specialized offences in these special laws have been covered only, but this shows the very intent of legislature to cater the need of the hour, which has also been recommended under the international best practices drawn by the Financial Action Task Force (FATF) on combating money laundering and financing of terrorism and proliferation adopted in the year 2012, updated in October, 2021, in which the law enforcement agencies have been encouraged to develop a pro- active parallel financial investigation, by investigating and prosecuting the money laundering cases independently by using the term "standalone". The proceeds of crime have been explained in section 2(xxviii) of AMLA, 2010, which reads that, "any property derived or obtained directly or indirectly by any person from the commission of a predicate offence or a foreign serious offence." This aspect has to be considered along with the definition of offences of money laundering provided in section 3 above, which explains that any person, who is guilty of other offences under
---
## Page 5
the Pakistan Penal Code, 1860 and other special law, if committed any act of money laundering or predicate offence or acquire or derive any proceeds of crime from normal offence, then this special act comes into play, as a result the later portion of its first crime has to be dealt with separately under this special legislation of AMLA, 2010. 16. At this stage, learned counsel for petitioner has raised a legal question that in the light of PLD 2018 SC 595 (Mst. Sughran Bibi v. The, State), the very registration of second FIR on the basis of same transaction is not permissible. Now dealing with this proposition, I have attended to the said judgment, whereby the apex Court has laid down certain parameters where a different version of same occurrence by different persons have to be considered as one transaction and to be registered in the first or same FIR and the registration of second FIR is not permissible, even the cross version concept has to be recorded in first FIR only, but there is a marked difference of those offences and concepts recorded in the case of Mst. Sughran Bibi supra if put in juxtaposition with the Anti-Money Laundering Act, 2010, which is a special enactment providing the concept of predicate offences and money laundering, which are not part of any other penal provision under the Pakistan Penal Code, 1860 or any other law, rather they are in addition to the main offences and treated as separate crime. 17. Now the question arises that when FIR No.10/2019 was registered by the FIA against the petitioners for their alleged embezzlement and fraud in the national ex-chequer by allegedly preparing and posting bogus scrolls related to IESCO Consumer Bills using fake bank statements along with bill stubs with fake bank stamps, as, to whether the subsequent registration of FIRs bearing Nos.51/2020 and 52/2020 under the Anti-Money Laundering Act, 2010 are valid, the answer has to be seen in the light of two particular allegations raised against the petitioners, whereby they after committing the offence of embezzlement and criminal breach of trust in first FIR No.10/2019, used the proceeds of crime in terms of section 2(xxviii) of the AMLA, 2010 and prima facie converted the crime proceeds into a plot and a vehicle, though the same was originated on the basis of first offence in first FIR, but the Anti-Money Laundering Act, 2010 catered this second part in a second compartment in order to deal with this modern times crime to combat this aspect, which is not covered under the ordinary crimes of Pakistan Penal Code, 1860 or any other law for the time being in force. 18. Learned counsel for petitioners have also raised- another question that the very registration of FIRs Nos.51 and 52 of 2020 for offences under the AMLA, 2010 are part of same transaction originated from first FIR and, as such, the offences which indicate proximity of time, unity or proximity of place, continuity of action, commonality of purpose or design are to be treated under the phrase "same transaction", but after enactment of AMLA, 2010 the legislature has extended different meaning and created a new situation where the crime under AMLA, 2010, though initiated from the continuity of action from first crime, even commonality of purpose or design has also been depicted from circumstances, but that has been considered as a separate crime and in this regard it is the duty and obligation of court as well as of Investigating Officer and prosecuting agency to differentiate for several offences which are part of same transaction, the test which has to be applied is whether they are so related to one another in point of purpose or of cause and effect, or as principle and subsidiary, so as to result in one continuous action. However, the special need has been catered through AMLA, 2010 where subsequent conversion of crime proceeds have been given different meaning by the legislature, therefore, all the courts should have applied the legislative intent in its natural way while considering the legislative purpose as to why particular enactment was enacted by the legislature. This Court is of the view that legislature has considered the existing crimes and to correct some defects in existing laws as in majority of cases the proceeds of crime have been converted/ transferred in different formations in and outside the country or converted into the use which could not be restored to its original state, in that particular
---
## Page 6
situation, the general law is silent, therefore, AMLA, 2010 has filled in the gap in the specialized need concept, where legislature has promulgated the new law to handle the situation. The Courts should have also construed the reasons for this special enactment in their mind with reference to its intended scope and purpose, therefore, it is expected from all courts to carry out the very purpose of the Act, rather than to defeat it, especially when the language is unambiguous and statute's meaning is clear, as a result the statute must be accorded and the clear meaning should be considered without any deviation and no departure is to be applied in any manner. 19. While considering the above discussion, this Court is of the view that AMLA, 2010 has to be given its purposeful and prosperous interpretation on the basis of literal approach of reading a statute in ordinary and natural way as held in PLD 2011 SC 260 (Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz). Likewise, the jurisdiction of the Special Court in terms of predicate offences under the AMLA, 2010 has to be given full meaning and such intention of legislature would not be interrupted in any manner as held in PLD 2011 SC 407 (Munir Hussain Bhatti v. Federation of Pakistan). Similarly, it is also settled principle of law that the Court always lean in favour of validity of statutory instrument and interpretation, which save the law, should be adopted, rather than holding a law to be invalid, unconstitutional or ultra vires as held in 2016 SCMR 69 (PTA v. PTCL), PLD 1975 SC 397 (Mehreen Zainbun Nisa v. Land Commissioner), PLD 1995 SC 423 (Multiline Associates v. Ardeshir Cowasjee), PLD 1997 SC 582 (Elahi Cotton Ltd. v. Federation of Pakistan), PLD 2007 SC 133 (Federation of Pakistan v. Haji Muhammad Sadiq), PLD 2010 SC 983 (Syed Aizad Hussain v. Motor Registration Authority), 2000 SCMR 1956 (Tariq Nawaz v. Government of Pakistan). 20. This Court has also attended to the recent model as argued by the learned A.A.G., Barrister Muhammad Mumtaz Ali, who has explained similar legal position in Indian jurisdiction, known as "Prevention of Money Laundering Act, 2002" (PMLA), which is an exhaustive instrument, whereby the Indian jurisdiction has also dealt with similar situation where a series of offences originated from first offence culminated into predicate offences, like in our jurisdiction, and similar question was raised under Article 226 of the Constitution of India praying to issue writ of certiorari for quashing of entire proceedings. The matter has been dealt with by the Madras High Court, in the case of "Smt. Soodamani Dorai v. The Joint Director of Enforcement (W.Ps. Nos. 8383 and 8384 of 2013)", dated 04.10.2018, authored by Hon'ble Mr. Justice S. M. Subramaniam, whereby it was held that: 23. The offence of money laundering is not covered under any other provisions of law. Section 3 enacted by 2002 Act is a new offence and stands by itself. Section 44(1)(c) of the Prevention of Money. Laundering Act, 2002, it is provided that if the Court which takes cognizance of the scheduled offences is other than the Special Court under the PMLA, the Authority should move an application for transfer of the scheduled offence to the Special Court and the Special Court, on receipt of such case, proceed to deal with it from the stage at which it is committed. Therefore, it is clear from the provisions of the Act that the offence of money laundering stands by itself. As evident from section 8(6) of the Act, the Court will release the property only if it is found on the conclusion of trial under PMLA that the offence of money laundering has not taken place or if the property is not involved in money laundering. Therefore, adjudication, prosecution, trial under PMLA is independent of scheduled offence. This is also clear in view of section 24 of the PMLA, 2002, which deals with burden of proof as it is clearly stated that the burden of proof relating to proceeds of crime involved in money laundering is on the accused whereas the burden of proof in the scheduled offences is on the prosecution. Therefore, though the ECIR may have been registered following a scheduled offence, the property in possession of the person, against whom allegations are made, is found to be involved in money laundering, then he can be punished independently of the scheduled offence. Therefore, mere stay of the predicate offence is not a ground for preventing the Directorate of Enforcement from proceeding under the PMLA, 2002. :
---
## Page 7
: 62. It is made clear that the very initiation under the Prevention of Money Laundering Act, 2002 is not akin to that of the initiation of criminal proceedings under the Indian Penal Code. The Prevention of Money Laundering Act, 2002 is a Special Act contemplating an administrative procedure at the initial stage and thereafter prosecution. The Act has got certain special purposes and therefore, the initiation of proceedings under the Prevention of Money Laundering Act, 2002 can never be compared with the initiation of criminal proceedings under the Indian Penal Code. The enactment is a distinct one wherein separate procedures are contemplated in order to protect the interest of the alleged offenders also. The…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.