The Sindh High Court (SHC) has directed the Federal Investigation Agency (FIA) director general to initiate appropriate departmental or disciplinary proceedings against FIA officers if they are found to be involved in any misuse of powers or mala fide intentions against or unlawful harassment of citizens.
Disposing of citizens’ petition against the blocking of their business accounts, passports and CNICs, an SHC division bench headed by Justice Adnanul Karim Memon said that state functionaries are under a legal obligation to act strictly within the bounds of law.
The court said that state functionaries cannot, under the guise of inquiry, subject citizens to harassment, humiliation or financial paralysis without lawful authority or reasonable basis. The bench said that powers conferred under the Anti-Money Laundering Act (AMLA) are to be exercised cautiously, fairly and upon the existence of reasonable grounds supported by lawful authorisation from the competent forum, adding that any deviation therefrom constitutes misuse of authority and abuse of process.
Saeed Khan and other petitioners challenged the FIA action as regards the freezing of their business accounts, CNICs and passports. Their counsel said the FIA blocked the petitioners’ business accounts, mobile wallet accounts, passports and CNICs despite his clients being registered taxpayers with the FBR and conducting lawful business.
The counsel argued that the respondents’ impugned actions have been taken without issuing a show-cause notice, disclosing allegations or providing an opportunity of hearing, thereby violating the petitioners’ fundamental rights guaranteed under the Constitution, including freedom of business, movement and due process of law.
The counsel said the petitioners had been acquitted by the trial court, but despite the acquittal and the trial court’s subsequent directions to unblock the passports, the respondents failed to comply and kept the passports, CNICs and bank accounts blocked without lawful authority.
The federal law officer and the FIA’s investigating officer opposed the petition, saying that the instant constitutional petition is misconceived, frivolous and not maintainable, as it was filed with ulterior motives.
They contended that any directions regarding the passports had been issued by the judicial magistrate to the Directorate of Immigration & Passports, which is an independent authority separate from the FIA’s Anti-Money Laundering Directorate, so no liability can be attributed to them.
The law officer said that proceedings under the AMLA are independent in nature and do not automatically terminate merely because the accused had been acquitted of the predicate offence.
The bench said that it is an admitted position that the petitioners had been acquitted by the competent criminal court on July 8 last year, and the trial court had directed the authorities concerned to unblock their passports if they were not required in any other criminal proceedings.
The court said that despite such judicial directions, no material has been placed on record by the respondents to demonstrate that the passports, bank accounts or mobile wallet accounts of the petitioners had been lawfully restrained pursuant to any valid order passed by a competent court or a competent authority under the relevant provisions of law.
The bench said that although the respondents have taken the plea that proceedings under the AMLA 2010 are independent in nature and may continue notwithstanding acquittal in the predicate offence, it is equally settled that any coercive action affecting the fundamental rights of citizens must strictly conform to the mandate of law, transparency and procedural fairness.
The court said that mere pendency of an inquiry, without reasonable grounds, tangible incriminating material or lawful authorisation, cannot justify indefinite interference with the lawful business activities, bank operations, passports and financial affairs of citizens.
The bench said the respondents themselves conceded that the inquiry in question had been merely exploratory in nature and no substantial incriminating material has surfaced against the petitioners.
The court said that it appears from the record that the correspondence issued by the FIA’s Anti-Money Laundering / Combating Financing of Terrorism Circle Karachi under Section 25 of the AMLA had been utilised by certain banks for blocking or restricting the operation of accounts of the petitioners, despite the absence of any freezing order passed by a competent court or lawful authority.
The bench said that such actions, undertaken without the due process and without communicating any lawful justification to the affected persons, amount to an arbitrary exercise of authority and offend the constitutional guarantees embodied under articles 4, 18, 23, and 24 of the Constitution.
The court directed the competent authority that if the passports, bank accounts, mobile wallet accounts or any other facilities of the petitioners have been blocked or restricted solely based on the impugned inquiry or correspondence, and no lawful restraint order of a competent court or authority exists against the petitioners, the same should forthwith be unblocked and restored in accordance with the law.
The bench also restrained the FIA from interfering in the lawful business activities of the petitioners except strictly in accordance with the due process of law.
The court directed the FIA DG to examine the conduct of all the delinquent officers, particularly regarding the issuance of communications and coercive measures without lawful sanction, reasonable grounds or approval from the competent authority.
The bench also directed the DG to initiate appropriate departmental/disciplinary proceedings if FIA officers are found to be involved in any misuse of powers or mala fide intentions against or unlawful harassment of citizens.
The court ordered that such exercise should be undertaken within three months, and those officers should not be given operational duties. The bench directed the DG to ensure that no FIA officer misuses powers or authority in excess of law. The SHC said that if any such misconduct is brought before this court in future proceedings, appropriate action may be initiated in accordance with Article 204 of the Constitution.
