MUHAMMAD SALEEM Versus THE STATE
1. The appellant was charged under sections 9, 22 read with section 23 of Foreign Exchange Regulation Act, 1947, and was tried before the learned Sessions Judge and Foreign Exchange Regulation Tribunal Karachi, South, who has convicted and sentenced him to suffer imprisonment till rising of the Court, and to pay a fine of Rs.2,000 or in default to suffer S.I. for three months.
2. The brief facts giving rise to the present appeal are that on 17-12-1982 Mr. Shaharyar Mughal, Assistant Director F.I.A. (SBC) Karachi lodged a report that he alongwith his subordinate staff and Mashirs searched the house of accused/ appellant Mohammad Saleem situated in Adamjee Nagar and secured Foreign Exchange currency consisting of the 40,570 Afghanis, 5 U.S. dollars, 10 Hong Kong dollars, Pakistani currency of Rs.16,00,000 (Rupees sixteen lacs) and prize bonds worth Rs.38,000 and 3 Indian rupees, a book in the name of G. Tai and appellant issued by Union Bank of Middle East Dubai, and some Pakistani currency. The appellant was arrested and after necessary investigation he was challaned before the Court.
3. A formal charge was framed against him, to which he pleaded not guilty.
4. At the trial the prosecution in support of its case examined P.W.1 Mohammad Sadiq, P.W.2 Hadi Ali' Khan, P.W.3 Mashir Shafqat Thawar, P.W.4 Masroor Ahmed Khan, and P.W.5 Assistant Director Mughal.
5. After the close of prosecution case the statement of the appellant was recorded under section 342, Cr.P.C. in which he denied the allegations. He even denied that any currency was recovered from his house. However,' in respect of Pakistani currency and prize bonds he stated that the same belong to his friend and were recovered from him.
6. The learned trial Judge while taking into consideration the evidence produced by the prosecution convicted the appellant under section 9 read with section 23 of Foreign Exchange Regulation Act, 1947, but he was acquitted of the charge under section 22 of the said Act.
7. I have heard Mr. Dewan Bashir Ahmed, learned counsel appearing for the appellant, Mr. Imam Bux learned counsel appearing for the State, and have also gone through the R&P of the case.
8. It was contended by Mr. Dewan Bashir Ahmed, learned counsel appearing for the appellant that the Mashir of recovery did not belonging to the locality from where the recovery was made and, therefore, there was non-compliance of mandatory provision of section 103, Cr.P.C. That the charge against the applicant was that he was found in possession of foreign currency, and that according to Notification, dated 17th October, 1979, which was further amended on 20th August, 1985 the prosecution had to prove that the accused after acquiring foreign exchange failed to offer same for sale within three months. In support of this contention he has relied upon 1978 P Cr. L J 155 and 1984 P Cr. L J 2083.
9. Mr. Imam Bux Shaikh, learned counsel appearing for the State has contended that in view of the legal position taken by the learned counsel appearing for the appellant, he does not support the conviction. I have considered the contentions of the learned counsel and have also gone through the case-law cited at the bar.
10. So far, the recovery of foreign- currency was concerned, it was proved from the evidence of Mashir Shafqat Thawar. P.W.3, and complainant Shaharyar Mughal, Assistant Director F.I. A. Their evidence was straightforward, natural and reliable, and was not shaken in any way in cross-examination. It is of course an admitted fact that Mashir Shafqat Thawar had acted as Mashir in three cases of F.I.A. but there was nothing to show that those cases were prior to the present case or thereafter. These two witnesses had no reason to falsely implicate the appellant.
11. I am of the considered view that the prosecution had proved beyond reasonable doubt that the foreign currency was recovered from the house of the appellant as alleged. This brings me to they next important legal question raised by the learned counsel appearing for the appellant, as according to him the conviction of the appellant under section 9 was illegal. Section 9 reads as under:-
12. Section 9: The Federal Government may, by notification in the official Gazette order every person in or resident in (Pakistan).
(a) Who owns or holds such foreign exchange as may be specified in the Notification to offer it, or cause it to be offered for sale to (the State Bank) on behalf of the Federal Government or to such person as (the State Bank) may authorise for the purpose, within such time as may be specified in the Notification, and at such price as the (Federal Government) may fix, being the price which is in the opinion of the (Federal Government)' not less than the market rate of the foreign exchange when it is offered for sale;
(b) who is entitled to assign any right to receive such foreign exchange as may be specified in the Notification, to transfer that right to (the State Bank) on behalf of the Federal Government on payment of such consideration therefor, as the Federal Government may fix:
13. Provided that the Federal Government may by the said notification or another order exempt any person or class of persons from the operation of such order:
14. Provided further that nothing in this section shall apply to any foreign exchange acquired by a person from an authorised dealer and retained by him with the permission of (the State Bank) for any purpose.
15. In Jalil v. The State 1978 P Cr. L J 155 it was held:-
16. "As regards the alleged offence` under section 9 of the Foreign Exchange Regulation Act the same has also not been conclusively proved because merely coming into possession of foreign exchange by itself does not constitute an offence. Section 9 of the Foreign Exchange Regulation Act lays down that the Federal Government may by notification in the official Gazette, order every person in, or resident in, the Provinces and the Federal territory who owns such foreign exchange as may be specified in the Notification to offer it or cause it to be offered for sale to the State Bank or to such person at such price as the Federal Government may fix."
17. It was further held:-"In order to succeed in its case, prosecution was required to strictly prove that the appellant after becoming owner of foreign exchange had failed to offer the same for sale within a particular period as envisaged by the notification issued under section 9, to an authorised dealer."
18. In Mohammad Saleem v. The State Bank of Pakistan and another 1984 P Cr. L J 2083 it was held by this Court:
19. "Mere possession of foreign exchange, by itself constitutes no offence within the meaning of section 4 of the Act, but prosecution is bound to prove for conviction under section 9, that accused after becoming owner of foreign exchange, failed to offer the same for sale within particular period from his acquisition as required under Notification.
20. From the above legal position it is clear that the prosecution had failed to prove that the appellant had failed to offer the foreign currency for sale within three months of the day he became its owner as envisaged by Notification, dated 20-8-1985, and therefore, he was entitled to the benefit of doubt. I, therefore, allow this appeal, set aside conviction, and sentence of the appellant and acquit him. He is on bail, his bail bonds stand discharged.
21. However, in view of the fact, that the appellant has denied the recovery of foreign currency and has not claimed the same, the property order confiscating the above currency to the Government is hereby maintained.
22. S.A./M-458/K Appeal allowed.