This appeal under section 410; Cr. P. C. Is directed against the judgment dated 9th February, 1975 of the learned Additional Sessions Judge and Foreign Exchange Tribunal, Karachi in F. E. R. Case No. 56 of 1973 whereby he found the appellant guilty of contravention of the provi--sions of section 9 of the Act. He, therefore, convicted and sentenced him to undergo R. I. For a period of six months also to pay a fine of Rs. 10,000 or in default thereof to suffer further R. I for a period of two months. The foreign currency recovered from his possession -has been forfeited for dis--posal according to law.
2. The facts of the prosecution case are that on 4th April, 1973 the appellant as well as 40 others were detained near the old building of State Bank of Pakistan, Boulton Market, Karachi and foreign currencies of various countries were recovered from their possession. The Inspector, B. K. Durrani, P.
W. 1 was ordered to make investigation against the appellant. He during the course of investigation searched the house of the accused Maqbool Ahmed in presence of the mashirs Jan Muhammad and Muhammad Riasat and secured the foreign currencies of 41 different countries from his possession and prepared such mashirnama Exh. 1/N in presence of the same mashirs. He also secured the following articles from his possession :-
1. One stick piece of Gold 10 Tolas bearing the stamp of Swiss Bank Corporation No. 999,0.
2. Four Wrist Watches
(1) Larex 17 Jewels Golden No. 439.
(2) Camy 25 Jewels Golden No. 7438.
(3) Larex 17 Jewels Golden No. 439.
(4) Camy 17 Jewels.
3. Pakistan Passport No. AC 426626 dated 18th April, 1969 valid upto 17th April, 1974 issued at London in name of Mr. Maqbool Ahmad attached with old Passport No. 297316 issued at Karachi on 6th May, 1969."
Since the appellant did not offer any explanation about his possession of the aforesaid foreign currencies, he, therefore, recorded F. I. R. Exh. 2-A which reads as under :- "Acting on reliable information regarding illegal sale and purchase of Foreign Currency. Case F. I. R.
No. 21/73 was registered against Haji Ebrahim and others. During the search of the house of accused Maqbool Ahmad, situated at 58, Shah Abdul Latif Road, Karachi, smuggled gold bar weighing 10 tolas, watches and Foreign Currency of various countries were recovered, regarding which accused Maqbool Ahmad revealed that the gold in question was given to him by Haji Ebrahim Surti and watches were given to him by Abdul Majeed Patel."
He after completing the investigation submitted such charge-sheet against him to stand trial before the Tribunal.
3. At the trial prosecution has examined the complainant B. K. Durrani P. W. 2 and Jan Muhammad P. W. 1 who acted as Mashir of the house of the accused. The complainant has stated about detention of the accused alongwith 40 others and recovery.Of the foreign currencies of 41 countries from the house of the accused in presence of the Mashir Jan Muhammad and one another as a result of search of his house. Jan Muhammad Mashir has stated that foreign currencies were recovered from the house of the accused and such Mashirnama Exh. 1/N was prepared and one Riasat Ali was a co-Mashir with him. He also produced the currencies of foreign countries in the envelopes Exhs. 1/A to I/M. He has further stated that he had no occupation as he was a retired Chowkidar of the G. P. O. He did not know as to what the currency of France was called and that he would not be able to sort out the currencies from the appellant in case they were mixed with the other currencies. He did not remember the number of the envelopes in which the currencies recovered from the appellant were kept. The envelopes were pasted but they were not sealed. He was illiterate and could not identify the currency of any foreign country.
4. The accused has denied the allegations of recovery of foreign currencies from him except those admitted by him in his written statement pertaining to twelve countries. He has further stated that the foreign currencies found from his house were lawfully acquired by him from London and there was such entry of his visit to London in his Passport A 426626 and, therefore, his passport was not produced before the Tribunal. He had declared the currencies on his return when he entered Pakistan on 19th November, 1972. He could not surrender the same within the required time on account of his illness and also due to the fact that the F. M. Form was misplaced. He has produced various documents Exhs. D/1 to D/20, in support of his illness and F. M. Form in original bearing Customs Seal and Visa Form Exhs. D-12 and D-22.
5. The point for determination is if any provision of the Foreign Exchange Regulation Act has been contravened by the appellant.
6. The learned counsel for the appellant has contended that the appellant after his trip abroad returned to Pakistan on 19th November, 1972 and he declared the foreign currency of different countries in his possession and filled in the required form No. A 646635 for such declaration on the day of his entry in the country. The requirement as incorpora--ted in the instructions at (c) at the bottom of the aforesaid Form are the Pakistani Nationals should surrender or declare their foreign currency balances, foreign shares and securities held within or outside the Pakistan within 30 days from the date of their entry into Pakistan. The duplicate copy of the said Form with official seal of the Custom has been produced in the trial Court which showed that the appellant has declared the currency and thereby completed his obligation. It has also been conten--ded that the appellant has admitted the recovery of the foreign currency from his possession only to the extent of the currency shown in his declara--tion and other currencies have been planted on him. The- prosecution has failed to -prove if the other currencies have been recovered from him as there is only a word of an illiterate Mashir Jan Muhammad in support of the Inspector for recovery of other currencies from his possession. Jan Muhammad mashir has admitted that he was not in a position to differen--tiate between currencies and also not in a position to sort out the currencies recovered from the appellant if they were mixed with the other currencies. It has been also contended that the appellant cannot be liable for contraven--tion of section 9 of the Foreign Exchange Regulations Act as he entered Pakistan on 19th November, 1972 and complied with his obligation by declaring the currency in the prescribed Form. Moreover the amendment of section 9 of the Act has come on 3rd February, 1973 whereby-
(i) after the word gown", the words "or holds" shall be inserted, ; and
(ii) after the word and comma "Purpose", the words, "within such time as may be specified in the notification and" shall be inserted.
But it has not been brought on the record if such notification was actually issued specifying period within which the currencies were to be offered for sale after entry into Pakistan. Moreover the appellant fell ill after his return and he has placed prescriptions and other documents on the record in proof of his illness. It has been lastly contended that he has been dragged in this case since last about eight years and has considerably suffer--ed on account of it. Therefore, in case of failure of the appeal on merits, the question of sentence imposed upon the appellant may be sympathe--tically considered particularly in view of his illness and the prolonged prosecution of the case. According to him, even forfeiture of the currency recovered from him will be an adequate sentence under the circumstances of the case.
7. Mrs. Salima Nasiruddin, the learned counsel appearing for the State has contended that the prosecution has failed to prove the recovery of currencies from the possession of the appellant beyond reasonable doubt as Jan Muhammad Masher was an illiterate person having no occupation and also not in a position to differentiate between the different currencies. It will therefore not be safe to rely on such a testimony. The appellant has admitted the recovery of foreign currencies of twelve countries bona fidely acquired by him. He has failed to offer the currencies for sale within prescribed period. But all the same he has suffered a lot by this time. She is therefore of the view that the currencies be forfeited for failure to dispose of them under the F. C.
R. Act and the sentence awarded to him be altered to forfeiture of the currencies only.
8. I have heard the learned counsel for the appellant as well as State. I have also carefully read the evidence on record. There is no doubt that Mashir Jan Muhammad's version is such that it would not be possible to accept his testimony. He is an illiterate person who is not in a position A to differentiate between currencies and cannot identify the currency recovered from the appellant if it was mixed with other currencies. It is not safe in view of such infirmities to place reliance on his evidence. There is no other corroboration for the evidence of the Inspector and I think it would be unsafe to act on his evidence. The appellant has explained that he had misplaced the Declaration Form and therefore failed to inform the State Bank of Pakistan within the prescribed limit due to his illness. The appellant has declared the currencies of twelve countries at the time of his entry into Pakistan which cannot be denied in view of the duplicate copy of the form produced by him at the time of his statement before the Tribunal. Since he has failed to offer the currencies possessed by him for sale in accordance with the provisions of the Foreign Exchange Regulation Act, his liability for contravention of section 9 of the Act is established. While finding no merit in the appeal I feel that this is a fit case for reduction in .The quantum of sentence awarded to the appellant. I therefore taking into consideration facts and circumstances of this case alter the substantive jail term and imposed upon the appellant as done in the case of Alta Muhammad v. The State Bank of Pakistan (1975 P Cr. L J 634). The appellant has declared the currency in this case and possibility of failure to offer it for sale in terms of section 9 of the Act on account of his illness cannot be ruled out. Therefore he is sentenced to pay a fine of Rs. 50 on or in default of payment of fine to undergo simple imprisonment for two weeks only which will meet the ends of justice. The fine imposed upon the appellant can be deposited by him either in the Tribunal or with the Nazir of this Court within three months time as per request of the learned counsel for the appellant in view of his difficulty to have last contact with the appellant.
9. In the result this appeal is allowed only to the extent of modifica--tion in the sentence of the appellant.