HAJI MUHAMMAD Versus THE STATE
Appellant Haji Muhammad was tried by Vth Additional Sessions Judge and Ex Officio Tribunal F.E.R., Karachi (South), for the offence under section 12/23 of the Foreign Exchange Regulation Act, 1947, who found him guilty and vide judgment dated 15-3-1989 sentenced him to suffer R.I. for 15 days and to pay a fine of Rs.5,00,000 (Rs. five lacs only) or in default to suffer R.I. for two years. By this appeal filed under section 410, Cr.P.C., read with section 23-A(6) of the Foreign Exchange Regulation Act, 1947, the appellant has challenged his conviction and sentence.
2. In November, 1982, the appellant being the sole proprietor of Messrs Chishti Trading Corporation, Karachi, exported one wooden launch to Sharjah, Dubai, on firm contract/consignment sale basis vide `E' form No.UBL-0193528 against invoice value of Rs.10,67,968 out of which he realised Rs.6,35,000 and an amount of Rs.4,32,968 remained outstanding. The appellant who was required to repatriate the entire amount within a period of four months from the date of actual shipment, has failed to do so. A show-cause notice was issued to the firm, but the same was received back undelivered as the appellant was not traceable. Accordingly a written complaint was sent to Sub-Inspector, F.I.A., State Bank Circle, Karachi, which was incorporated in 154, Cr.P.C. book. After usual investigation the appellant was sent up to stand trial in absentia. He, however, surrendered before the Tribunal, where he was tried and convicted.
3. At the trial the prosecution examined Muhammad Sharif, Deputy Director, State Bank of Pakistan, Karachi (P.W.1), Yousif Rahim, Bank Officer (P.W.2), Moinuddin Qazi, Bank Officer (P.W.3) and Saleem Tahir Bhatti, Inspector, F.IA. (P.W.4).
4. In his statement recorded under section 342, Cr.P.C., the appellant has disputed the case of the prosecution. According to him the shipment documents were delivered to consignee without realising the balance, which he could not recover in spite of sincere efforts made therefor. He also examined himself on oath (D.W.1).
5. The learned Additional Sessions Judge/Tribunal F.E.R., however, after a careful scrutiny of the points of law and the facts and circumstances of the case, found the prosecution case duly proved and after discarding the defence convicted the appellant for the offence under section 12/23 of the F.E.R. Act, 1947.
6. The fact that the wooden launch was exported by Messrs Chishti Trading Corporation, Karachi, against invoice value of Rs.10,67,968 is not disputed. The appellant is admittedly the proprietor of this firm. The declaration furnished by the appellant on Form-E (Exh.3/C) is also not in dispute, by which the appellant gave an unequivocal undertaking that he would repatriate within the prescribed period the value of the launch through the authorised dealer. The non?-repatriation of an amount of Rs.4,32,968 is also not in controversy. The main rather the only contention of the appellant is that he could not get the aforesaid amount from the consignee who got the shipping documents released without making payment of the balance amount and for that the State Bank of Pakistan is to be blamed as in spite of his written request (Exh.3/E) such instructions were not given to the concerned bank. The law on this point is clear and in case the non-repatriation of foreign exchange is not deliberate, a conviction under section 23 of the F.E.R. Act, 1947, cannot be recorded. The cases reported as Tawhid Ali Sardar v. The State P L D 1969 Dacca 395, The State Bank of Pakistan, Dacca v. Sh. Mehboob-ur-Rehman and another 1971 S C M R 642 and Abdul Ghaffar v. The State and another 1977 P Cr. L J 119, lay down this rule. In the first cited authority it was observed:
"There cannot be any conviction under this section if the exporter was unable to repatriate the sale proceeds for reasons and circumstances beyond his control. This postulates honest attempts on his part to honour the undertaking. The immunity will not be available to him if his conduct is mala fide..."
7. The appellant has based his entire case on a letter sent to State Bank of Pakistan dated 20-2-1983 (Exh.3/E), which mainly speaks of an adjustment of Rs.6,35,000 received as an advance payment, towards the invoice value of the launch amounting to Rs.l0,67,968. This adjustment was in fact allowed vide (Exh.3/F), and the appellant should not have any grievance about it. The appellant has not placed anything on record which could even suggest that the State Bank of Pakistan should have acted in the manner as pleaded by him. The statement of appellant recorded on oath (D.W.1) reveals that the said launch was supplied to one Yousuf Molium, who did not pay the balance amount resulting into this prosecution. The perusal of Form-E (Ex.3/C), however, makes it clear that the consignees/importers of this wooden launch were Messrs Chishti Trading Corporation, Sharjah. It may be added that the exporters in this case were also Messrs Chishti Trading Corporation, Karachi. It, therefore, does not require much of calculation how to multiply 2 by 2. The certificate given by the authorised dealer on (Exh3/C) is again relevant and it reads as follows:
"We undertake to ensure that export proceeds against shipment of firm contract shall be received by us within the stipulated period of four months. In the event of non-compliance due to reasons beyond our control we shall furnish to the State Bank of Pakistan a full explanation as to the reasons and circumstances resulting in our inability to comply. We undertake that in the event of non-realisation of export proceeds against shipment on consignment sale within the stipulated period of four months, we shall obtain from the exporter(s) and furnish to the State Bank of Pakistan a full explanation as to the circumstances resulting in non-realisation. We further undertake that in the event of short realisation we shall obtain from the exporter(s) and furnish to the State Bank of Pakistan a fully documented account sales certified by the consignees/Chamber of Commerce of the country of import."
The authorised dealer, viz. United Bank Limited, has simply forwarded (Exh3/E) to the State Bank of Pakistan, which is already referred to above. The letter of the firm dated 25-3-1984 (Exh.4/A) further makes it clear that the defence now taken by the appellant is an afterthought. The contents of this letter, which are material are reproduced in extenso:
"With reference to your Letter No.EO.ST/5556/C(4)84, dated 10-3-1984, received on 15-3-1984, we have to inform you with regret that the proprietor of our firm who is at Sharjah had been suffering with heart attack three times, as a result of which he could not pursue payment of balance amount of Rs.4,32,000. However, by the grace of Almighty Allah he has now recovered and he is now pursuing payment of this amount from the party concerned, which is expected to be realised within four months.
We, therefore, request you to kindly allow us four months' time for repatriation of the balance amount of Rs.4,32,000."
8. The aforesaid amount was, however, not repatriated. On the contrary the appellant absconded and the prosecution was launched against him in absentia. The appellant has also failed to bring anything on record to show that he made sincere efforts to realise the amount from the importer/consignee and to repatriate the same to Pakistan. To establish his defence there must, be some clear evidence, and there is none with which I am satisfied. For the only direct evidence on this point is the appellant himself, and though I have certainly no wish to suggest that he has spoken with deliberate falsity, the admissions made by him in cross-examination are self-explanatory. No evidence of bona fide attempts made by the appellant for the repatriation of the aforesaid amount is forthcoming. Charge under section 12/23 of the F.E.R. Act, 1947, was therefore proved against him beyond any reasonable doubt and he was rightly convicted by the Tribunal.
9. Having given my anxious consideration to the facts and circumstances of the case, coupled with the old age and bad health of the appellant, I think that the ends of justice will be amply met in the present case, if I set aside the sentence of imprisonment awarded to the appellant and also reduce the sentence of fine to a reasonable extent. Accordingly the sentence of imprisonment awarded to the appellant is set aside and the fine imposed upon him is reduced to Rs.3,00,000 (Rs. three lacs only). The appellant shall suffer S.I. for six months in default of fine. The appellant is allowed one month's time to deposit the fine in the office of the Tribunal. The Tribunal shall take necessary steps for the arrest of the appellant, if the fine is not paid within the aforesaid period.
10. With this modification in sentence, the appeal is otherwise dismissed.
N.H.Q./M-1233/K ????? ????????????????????????????????????????????????????????????????????????? Order accordingly.