LAHORE: The Lahore High Court has ruled that the Anti Money Laundering Act 2010 (AMLA) cannot be invoked to prosecute an alleged offence committed before its promulgation as the law has not been given retrospective effect.

Justice Asjad Javed Ghural notes that the AMLA was promulgated on March 27, 2010 and its sub-section 3 of section 1 says, “It shall come into force at once.”

“It is thus quite clear that the said Act was not given any retrospective effect, as such violation of any provision of AMLA prior to its promulgation cannot form basis of a money laundering allegation,” the judge maintains in his detailed verdict, allowing a petition of former federal minister and PML-Q leader Chaudhry Moonis Elahi against a money laundering case instituted by the Federal Investigation Agency (FIA) against him.

The agency had filed challan in the case and a special (banking) court also summoned the suspects for Oct 11.

Justice Ghural, however, on Oct 3, through a short order, allowed Moonis’ petition and quashed the FIR against him.

The FIR was registered on June 14, 2022 in respect of offences under sections 420, 468, 471, 109 & 34 of the Pakistan Penal Code (PPC), section 5 (2) of Prevention of Corruption Act 1947, and sections 3 & 4 of the AMLA 2010 against Moonis and others.

Giving reasons for quashing the FIR, Justice Ghural states in his verdict that the high court has time and again shown reluctance in interfering in the ongoing investigation process on the well- cherished principle that functions of an investigating agency and the judiciary are complementary and not overlapping and the combination of individual liberty with due observance of law and order can only be achieved if both the organs are allowed to function independently.

However, the judge observes, this principle in any way cannot be construed as an absolute bar on the power of this court in quashing FIR in the cases where the court is satisfied that investigation is launched with mala fide intention and without jurisdiction.

He relied on different past judgements of the Supreme Court.

The judge notes that the first allegation in the FIR was that Rahim Yar Khan Sugar Mills was jointly set up by two low-profile individuals -- Muhammad Nawaz Bhatti (Naib Qasid, BS-2, and Mazhar Abbas, a student, in 2007-2008, ostensibly by laundering funds from unexplained sources, including proceeds of financial crimes.

He observes the alleged offence could not be prosecuted under a law promulgated without a retrospective effect.

Even otherwise, he says, the prosecution badly failed to establish nexus of Moonis with the two low-profile individuals/suspects.

“The entire allegations set out in the impugned crime report are based on assumptions and presumptions,” he maintains.

Justice Ghural observes that it is manifestly clear in the law that in order to attract the offence of money laundering proceeds of crime is a sine qua non (something essential). He relies on a 2021 judgment of the Supreme Court in the case of Justice Qazi Faez Isa.

Deciding another allegation of issuance of a no-objection certificate for establishment of the sugar mill in 2007-08 during a ban and the government of then Punjab chief minister, who is father of the petitioner, the judge observes that the record is indicative of the fact that legality of issuance of such NOC in favour of the mills was already decided in the verdict passed in 2021.

The judge also rejected an argument of a federal government lawyer that the trial court had already taken cognizance of the matter following submission of the challan.

“Suffice is to say that it is well settled by now that once the court arrived at a conclusion that the impugned FIR was lodged against an accused for some ulterior motive and continuance of proceedings before the trial forum would be a futile exercise, wastage of precious public time and there is no likelihood of conviction of the petitioner in any eventuality, it can quash the same,” the judge explains.

The judge also admits an argument of the petitioner’s counsel that the National Accountability Bureau (NAB) has already closed an investigation it initiated against the petitioner and his family on the same charges, therefore, the FIA had no authority to re-open the same.

In 2020, Justice Ghural had recused himself from hearing the petitions of PML-Q leaders Shujaat Hussain and sitting Chief Minister Punjab Chaudhry Parvez Elahi against the NAB owing to personal reasons.

Published in Dawn, October 8th, 2022