AFTAB AHMED Versus THE STATE
1. This appeal is directed against the judgment dated 9th December, 1986 of IVth Additional Sessions Judge South and F.E.R. Tribunal, whereby the appellant has been convicted under section 4 (2) and section 9 of the Foreign Exchange Regulation Act, 1949 and sentenced to R.I. for six months and to pay fine of Rs.100 on each account; in default to undergo 3 months more. Both the sentences have been ordered to run concurrently.
2. Prosecution case in brief is that on 23‑8‑1983 appellant was found dealing in sale of foreign currency. A bogus purchaser namely Abdul Sattar went and contacted the appellant at footpath near State Bank Building and purchased 200 Saudi Riyals 50 US $ and 1000 Indian Rupees. He paid Rs.28,000 Pakistani currency being tainted money for the purchase of foreign currency. Mussaddaq Ali Shah Sub‑Inspector F.I.A. alongwith Mashirs on getting signal from Abdul Sattar reached at the spot and apprehended Aftab. On his search Rs.28,000 were secured. His personal search was also conducted and 400 Saudi Rials 70 U.S. Dollars and Rs.360 of Pakistani currency were recovered from his possession and such Mashirnama was prepared. The case proceeded and prosecution examined PW.1 Abdul Sattar a bogus purchaser, PW‑2 Zakir Hussain, Mashir and Mussadiq Ali Shah Investigating Officer.
3. Appellant in his statement under section 342, Cr.P.C. denied the allegation and he was examined on oath and statement is Ex.41. He also examined DW‑1 Akhlaq Ahmed and Masroor Wasti in his defence.
4. Ch. Iftikhar Ahmed learned counsel for the appellant contended that Abdul Sattar and Mashir Zakir Hussain are professional Mashirs and they both have acted as Mashirs in various cases filed by Sub‑Inspector Mussadiq Ali Shah. It is argued that prize bonds worth Rs.2,00,000 were secured from the accused but Investigating Officer deliberately not mentioned this fact in the F.I.R. nor produced those bonds with challan in the Court. It is argued that applicant is a businessman and respectable.
5. Mr. G.R. Warsi learned counsel for the State supported the conviction and submitted that prosecution has proved the case as all the witnesses have fully supported the prosecution case.
6. Abdul Sattar Ex.4 has stated that on 23‑8‑1983 he was doing his business at footpath of Boulton Market near State Bank of Pakistan. He was at F.I.A. Office where Rs.2,800 (Pakistani currency) were handed over and such Mashirnama was prepared. Thereafter, he accompanied F.I.A. Inspector and two Mashirs to the footpath of State Bank where Sub‑Inspector Massaduq Ali pointed a person and told him to contact that person and purchase U.S. Dollars and other foreign currency for Rs.2,800. He contacted that person and purchased Rs.1,000 Indian, 200 Saudi Riyal and 50 US Dollars and paid Rs.2,800 of Pakistani currency. After completion of the transaction, he gave signal to F .I . A . party who caught the accused and recovered Rs . 2, 800 and such Mashirnama Exs.5 was prepared. He produced the currency which he purchased from appellant. Such Mashirnama Ex.6 was prepared. He has stated that F.I.A. also found in possession of appellant 400 Saudi Riyals and 70 U.S. Dollars. In his cross‑examination he has admitted that Sub‑Inspector Mussadeq Ali told him that appellant Aftab had prize bonds and Pakistani currency. He has admitted that he was witness against Abdul Jabbar and Waqar. In both the cases Mussadeq Ali was Sub‑Inspector. He stated that co‑Mashir Zakir was also witness in their case. It is stated in the cross‑examination that police recovered old notes worth Rs.6,000 from the bag of appellant. During search he was found in possession of some prize bonds which were in the bundles. Those prize bonds of Rs.2,00,000 were secured from the appellant and such fact was mentioned in the Mashirnama. He has stated that no other Mashirnama except this Mashirnama Ex.5 and 6 was prepared.
7. P.W.2 Zakir Hussain has corroborated the version given by Abdul Sattar and stated that he was made Mashir and in his presence Rs.2,800 were given to Abdul Sattar who went towards the appellant and purchased foreign currency. He has stated on the search of accused amount of Rs.2,800 and foreign currency notes 400 Saudi Riyals, 70 U.S. Dollars, Rs.360 Pakistani currency were recovered. He has stated that prize bonds amounting to Rs.2,00,000 of denomination of Rs.500 each secured from the accused and some other prize bonds were also recovered from the pocket of appellant and such Mashirnama was prepared which he produced as Ex.9. Investigating Officer Mussadeq Ali Shah corroborated the version as given in F.I.R. and supported the case of prosecution in respect of recovery of foreign currency from appellant and tainted money amounting to Rs.2,800. He has stated that he also secured prize bonds and old notes worth Rs.6,167 of Pakistani currency from the appellant which he delivered back. In his cross‑examination, he has admitted that Mashir Zakir was witness in some cases investigated by him and so bogus purchaser Abdul Sattar acted witness in F.I.R. No.50/83 on 31st August, 1983.
8. In the first information report Sub‑Inspector Mussadeq Ali has not stated that he had ever secured prize bonds so worth Rs.2,00,000 and old notes of Rs.6,167 from the accused at the time of search.
9. I have verified from the challan of the case filed by Mussadeq Ali Shah which is also silent in respect of recovery of prize bonds and old notes. This challan was filed on 15‑11‑1983 Sub‑Inspector in a letter, dated 21‑11‑1983 Ex.13 informed Ch. Iftikhar Ahmed Advocate for the appellant that he should direct the accused to collect the prize bonds worth Rs.2,00,400 and each Rs.6,167 and Rs.360 from him on any working day. This is a reply of a letter from the Advocate. It is interesting to note that under what circumstances and under what provision of law Sub‑Inspector retained the bonds and money with‑him which at all was not the case property. It is on the record that telegrams and applications were made, a notice through lawyer were sent then and then the Sub‑Inspector appears to have admitted recovery of prize bonds, Pakistani currency of the appellant. Looking to the circumstances of the case that both the Mashirs are not independent witnesses coupled with that Sub‑Inspector suppress the facts of recovery prize bonds and cash from the possession of accused clearly shows that case is not free from doubt. I, therefore, give benefit of doubt to the appellant and allow his appeal. Consequently, the appellant is acquitted. His bail bonds stands cancelled.
10. S.A./A‑198/K Appeal accepted.