1. HAMOODUR RAHMAN, C. J.---This petition is barred by 3 days. The judgment sought to be appealed against was delivered by the High Court on the 21st of December 1970. Its certified copy was delivered to the applicant on the 24th of December 1970, but the petition for special leave to appeal was filed only on the 25th of January 1971. The only explanation given for this delay is that the petitioner was unable to contact his Advocate between the 18th and the 23rd of January 1971, as he was during this period suffer--ing from Rheumatic Arthritis. In support of this, a medical certificate has also been attached. It was granted on the 23rd of January 1971, and states that the petitioner was advised to rest in bed. It does not, however, state the period for which the rest was advised.
2. The explanation furnished is not at all convincing. No reason has been given as to why the petitioner, after obtaining the certified copy in December 1970, did not contact any learned Advocate immediately. A diligent person should not have waited till nearly the last day of the limitation in order to contact his a legal adviser. Rheumatic Arthritis is not also a disease which necessarily incapacitates a person. The medical certificate does not show as to which part of the body was affected by the Arthritis.
3. Nevertheless, we have heard the learned counsel on merits as well. The petitioner, it appears, was prosecuted under section 12(1) of the Foreign Exchange Regulation Act, 1947 read with sec--tion 23 thereof on the complaint of the State Bank of Pakistan for non-repatriation of an amount of Rs.
4. 19,174 being the sale proceeds of handicrafts exported to Italy under a permit granted for that purpose.
5. Originally the permit was for sale en contract basis. Subse--quently, on the application of the petitioner himself, he was permitted to sell the goods on consignment basis as also to send a representative to Italy to look after the transactions. He was, however, required to repatriate the entire amount and to submit an account of the sales duly certified by the Chamber of Commerce of the porting country. The goods exported were worth Rs. 20,294. As against this, the petitioner repatriated only Rs. 580.
6. The evidence discloses that the goods were sold in Italy for 25 lacs Liras and the amount was deposited with the bankers of the petitioner, but his agent in Italy, subsequently, gave specific instructions to the bankers to refund to the purchaser 15,30,000 Liras. The net amount received in Pakistan, therefore, was only Rs. 567.86 after deducting the demurrage and other charges. The petitioner was asked as to why this amount was refunded by his agent.
7. He could give no explanation for the same apart from saying that he had been deceived, presumably by his agent. His learned counsel, however, contended that he had repatriated all that he had received and his failure to repatriate the full amount was due to circumstances beyond his control.
8. The Courts below took the view that the plea of the petitioner that he had been deceived was not a genuine one. He was as much implicated in the non-repatriation as his agent and, therefore this was a case of deliberate avoidance of the stipulation to repatriate. In this connection, the High Court has also observed that the petitioner did not even avail of the offer of the Export Promotion Bureau of the Government of Pakistan to help him to dispose of his goods through the Pakistan Pavalion in any Interna--tional Exhibition as and when held in European countries.
9. He was convicted by the Foreign Exchange Tribunal at Karachi and sentenced to pay a fine of Rs.
10. 15,000 or, in default, to undergo rigorous imprisonment for two years. A learned Single Judge of the High Court of Sind and Baluchistan at Karachi has upheld this conviction on appeal.
11. It is now sought to be contended on his behalf that the conviction was illegal, because section 12(1) of the Foreign Exchange Regulation Act, 1947, is not a punitive section at all. 1n support of this contention reliance is sought to be placed on the observations of Cornelius, J., as he then was, in the case of Kalipada Shaha v. State (PLD 1959 SC (Pak.)322 ) to the effect that "no offence can be found under section 12 except an offence of one of the two kinds specified in subsection (2)". This does not show that no offence was created by section 12. Subsection (2) (b) clearly states that if the full amount payable by the Foreign buyer is not realised, then an offence is committed under that subsection. In the present case the charge was that although the full amount had been realised an one stage and deposited in the bank, subsequently, under the instructions of the agent of the petitioner, a substantial part there--of was fraudulently refunded to the Foreign buyer. This brought the case directly within subsection (2) and the erroneous mention of subsection (1) in the charge does not vitiate the trial. No prejudice has been caused thereby, for, the petitioner well knew what the case against him was.
12. In any event, so far as the duty to repatriate the Foreign Exchange earned is concerned this is clearly punishable under section 23, as pointed out by Cornelius, J. Himself at page 330 of the above report. There is no substance, therefore, in the contention that no offence was committed under the Foreign Exchange Regulation.
13. Learned counsel next sought to contend that since in the modification of the permit by which sale on consignment basis was allowed the condition of repatriation was not included there was no duty cast upon the petitioner to repatriate any amount. This point was not taken in any Court below, but even otherwise we can find no substance in it, for, the modification merely changed the original permit to the extent that instead of the sale being made on contract basis it could be made on consignment basis subject to the condition that an account of the sale certified by the Chamber of Commerce of the importing country was furnished.
14. It is obvious that the necessity for the certified account arose only for the purpose of ascertaining whether the full amount had been repatriated or not. If there was no duty cast on the peti--tioner to repatriate, then this condition was surely redundant. The modification of the permit did not, in our opinion, absolve the petitioner from his duty to repatriate the Foreign Exchange. The other conditions of the permit remained operative notwith--standing the modification.
15. This petition is, accordingly, dismissed both on the ground of limitation as well as on merits.