ZIAULLAH CHAUDHRY Versus THE STATE
1. The applicant exported in the year 1976 two consignments consisting of readymade garments to Denmark. On the strength of G.R.P. Form Nos. 00148042 and 0006988 of worth 833110 Dollars and 1850 Dollars, respectively, The applicant failed to realise the sale‑proceeds within the stipulated period of four months. As such the applicant has been prosecuted under sections 12/23 Foreign Exchange Regulations Act. The F.I.R. was lodged on 6‑6‑1978 and uptil now only two witnesses have been examined. P.Ws Muhammad Sharif, the Exchange Control Officer of State Bank of Pakistan and Mr. Agha Nazir Hussain, Officer in Allied Bank of Pakistan have stated that the sale‑proceeds have not been repatriated. The sale‑proceeds have to be repatriated through the authorised dealer Allied Bank of Pakistan.
2. The learned counsel has referred to the letter of applicant addressed to Embassy of Pakistan in Denmark about the release of the amount in question and reply sent by Mr. Naseer Muhammad Shah. Charge Affairs the Copenhagen, Denmark wherein it is mentioned that certain other Pakistani firms who had shipped goods to Messrs Associated Agencies have also not received payment and have instituted legal proceedings against the firm. The Embassy has advised the applicant to do the same as soon as possible in order to ensure that applicant received some reimbursement of the amount due to applicant. The Embassy gave the name of a good lawyer whom applicant may contact directly, under intimation to them if he wants to institute legal proceedings against Messrs Associated Agencies.
3. The learned counsel for the applicant has stated that there is no allegation against the applicant that it made no effort to reimburse amount through the dealer and there is no evidence whatsoever showing that the applicant in collusion with firm has not received the amount in question. In fact the applicant has also suffered loss. The learned counsel has referred paras. 4, 5, 6 and 7 of the Exchange Control Manual Under para. 4. no person can export any goody from Pakistan unless he is duly registered as an exporter. Under para. 5, the exporters are required to declare their exports to the Customs. Under para. 6, full export value of the goods exported from Pakistan is to be repatriated Within the period of four months through an authorised dealer. Under para. 7, before the export forms are lodged by the exporters with the Customs authorities all the copies thereof are required to be certified by the authorised dealers. The learned counsel has stated that an the requirements have been fulfilled by the applicant.
4. The learned counsel appearing on behalf of the State has stated C that there is no allegation that the applicant had not brought the sale‑proceeds in complicity with the foreign firm. The applicant tried his best to repatriate the amount but could not do so and was not paid the amount.
5. The learned counsel for the applicant has referred to 1970 SCMR 642. The relevant portion is at, pages 644 and 645 which reads as under:‑-
6. "The learned Advocate‑General, when asked what offence the respondent could be thought to have committed, referred to the provision of sections 4 and 12 of the Foreign Exchange Regulations Act. Under subsection (3) of section 4, when a. person other than an authorised dealer acquires foreign exchange under a specified condition, he is bound to comply with such conditions, and if he cannot comply with it, he is obliged to sell the foreign exchange acquired by him to an authorised dealer. It is clear that this provision has no application where no foreign exchange is acquired. The other provisions in section 4 have no relevancy to the present case. The provisions in section 12 which were referred to by the learned Advocate‑General are contained in subsection (2) which prohibits an exporter by act or omission from doing anything to delay the sale of the exported goods to an unreasonable extent, from receiving payment for the goods otherwise than in the prescribed manner, and from receiving less than the full amount payable by the foreign buyer. Here there was positive evidence led to show that the exporter in this case did not delay disposal of the goods. In fact, he delivered them over to the purchase at the border, having arranged that the payment should be received through the Habib Bank. It is also shown by evidence that he has not received any payment whatever for the goods he exported."
7. The learned counsel has referred to 1977 P Cr. L J 119 wherein it has been held that guilty intention of exporter is a condition precedent for criminal prosecution.
8. After going through the record and perusing statements of two witnesses, I am of the view that the prosecution has failed to bring home the charge against the applicant as the guilt of the applicant has D not been established. 'Additionally the report was lodged in 1978 but the trial has not yet concluded. This is abuse of process of the Court. I, therefore, accept this petition and quash the proceedings pending in the Court of Additional Sessions Judge, Karachi (South).
9. S.A. Proceedings quashed.