1. GHULAM RASUL K. SHAIKH, J.-This is an acquittal appeal filed by the State Bank of Pakistan against the judgment of Foreign Exchange Tribunal (Sessions Judge, Karachi) acquitting Emmanuel Toby Ebiember (respondent No. 1) who was tried for the con--travention of section 8(1) of the Foreign Exchange Regulation Act, 1947. Investigation was resumed after seeking permission from the Foreign Exchange Tribunal (Sessions Judge, Karachi).
2. The respondent is a foreign national and came to Pakistan from Nigeria on 9-1-68. He possessed foreign currency which he did not declare before the custom authorities at the airport. On 6-5-68 Mr. Kabiruddin Shaikh S. H. O. Malir during the investigation of crime No. 199 of 1968 under West Pakistan Suppression of Prostitution Ordinance raided the club run by the respondent and he was found in possession of U. S. $ 5006 and 5 Kenya shillings apart from travellers cheques of $260.
3. These were secured under section 550, Cr. P. C. And mashirnama was prepared: The S. H. O. Then made a report to the State Bank and con--sequently investigation was resumed by the authorities of the State Bank. During the investigation the respondent surrendered U. S. $1,314.00 as well as F. M.
4. Form No. 56557 in duplicate bearing the seal of the Customs Department but without any date or signature and authentication of the customs officer. In pursuance of the show-cause notice the respondent submitted an explanation. It was admitted that he had brought U. S. $7,500.00. When he came to Pakistan but stated that the fact that to forms of declaration were recovered from him prima facie indicated that he had complied with the requirements of the noti--fication and the absence of the authentication of the customs authorities was explained on the ground that it was the duty of the customs authorities who did not authenticate the declaration at the relevant the.
5. The State Bank, not satisfied with the explanation, filed a complaint in pursuance of which the trial was hell. At the trial to witnesses, Mr. M. A. Hameed-Deputy Assistant Controller, State Bank of Pakistan and Mr. Ali Akbar Khan, Inspector, Special Police Establishment, State Bank Branch, Karachi, were examined. The respondent admitted having brought U. S. $ 7,500.00 and `pleaded that he had declared the money at the airport after filling the form but the customs authorities allowed him to go. He utilised some foreign exchange in accordance with law and did not deal with it in any illegal manner. He pleaded not guilty to the charge framed against him and did not examine any witness in defence.
6. The learned Tribunal came to the conclusion that the respon--dent had declared the currency and, therefore, no offence was committed. The relevant portion of his judgment which is short one, reads as under : - "On the first point it is an admitted position that the accused had filled in F. M. Forms, Exh. 7, in duplicate. The only allega--tion against him is that he did not submit one of these forms to the Customs Authorities at the Airport, but in not submitting one form to the customs authorities at.
7. Airport it cannot be said that the accused did not declare the foreign exchange. I am of the opinion that the accused did declare the foreign exchange. The to F. M. Forms show that the accused sold the foreign exchange to the authorised dealer and on 12-2-1,968 he actually produced both forms before the authorised dealer. I am, therefore, clear that the accused did not contravene the provisions of section 8(1) of the F. E. R. Act and that charge against the accused fails."
8. Aggrieved by this, the present appeal was filed. We have considered the reasons given by the learned Tribunal in the light of the arguments advanced before us and we are clear in our mind that the conclusion reached by the learned Tribunal is not sustainable and he clearly erred in holding that the declaration of the currency was made at the Airport. We are also of the view that the observation made by the learned Tribunal that it was an admitted position that the accused had filled in F. M. Form in duplicate is also misstatement of, fact. This position was neither admitted by the State Bank nor it was established. Mere production of the forms during the course of the investigation does not necessarily mean that he had either filled those forms at the airport or had made the declaration which was required. The learned Tribunal completely ignored the fact that the forms did not bear any signature or authentication of the customs officer or even the date It is true that the forms bear the seal of the Customs Department but that does not mean that the forms were, duly filled in at the airport and presented to the customs authorities. During the course of arguments it was gathered that forms bearing the seal of the Customs Department are kept at the airport and any person arriving from outside picks up those forms in order to fill them. It cannot be disputed that the forms duly" filled in are presented to the customs officer present there at the airport and after making necessary entries in the form as well as the register maintained for the purpose one copy is returned to the holder of the currency and the other is sent to the State Bank for information and such other action as may be deemed necessary. The circumstances in this case clearly establish that the respondent although picked up to forms never presented those forms before the customs authorities and left undetected and after the currency was recovered from his possession he entered the amount in the form and placed the entire blame upon the customs authorities. It is inconceivable that if the forms had been presented the customs authorities would not have made the necessary endorsement on the forms or the entries in the register. The respondent did not summon the register to show that the relevant entries were made therein for the obvious reason as it is his case, that the forms were returned to him by the customs authorities. Consequently there could be no entry in the register.
9. The learned Tribunal observed that the only allegation against the respondent was that he did not submit one of the forms to the customs authorities at the airport but in not submitting one form it could not be said that he did not declare the foreign exchange. We are unable to understand the logic of this argu--ment. It was not the mere question of not submitting one form to the Customs Authorities but in order to make the declaration he had to submit both the forms to the customs authorities and one of the forms had to be returned to him after making the necessary endorsement thereon. The forms which had been produced by the respondent, as already pointed out, bore neither the date nor the endorsement of the customs officer. Consequently there can be no other conclusion except the one that the respondent never declared the currency at the airport.
10. The learned tribunal further observed that the to forms showed that the respondent sold the foreign exchange to the authorised dealers. Of course this is so as -the form shows that he had remitted $ 50.00 to Philippines and encashed $ 550.00 on 12-2.68 and $ 580.00 on 17-2-68 from the authorised banks. However, this fact would not serve to provide necessary support to the respondent that he had actually declared the currency which he had possessed at the the of his arrival in Pakistan and had presented the forms before the customs authorities at the airport.
11. During the course of the arguments the learned counsel for the respondent, apart from adopting the reasons given by the learned Tribunal, urged before us that the fact that the respondent had produced the to forms and utilised the currency in accordance with law established his bona fide and he did not enter into any illegal transaction by sale or otherwise of the foreign currency. The question of bona fide can only be considered a mitigating circumstance for the purpose of awarding the sentence but it in no way absolves the respondent of the offence which has been committed by contravening the provisions of Foreign Exchange Regulation Act. Moreover, we do not know how much currency he had brought into Pakistan. He never made any declaration and it was only on search that major portion of the currency was found from his person and small portion was surrendered by him subsequently.
12. It was further urged by the learned counsel for the respondent that the respondent who was a' foreign national was exempted by the notification to surrender the currency either to the State Bank or to an authorised dealer and not Only he could retain it but he could also take away the currency while leaving Pakistan. So in the absence of declaration the benefit of allowing him to take away the currency outside Pakistan could not be availed of but he could not be guilty of the offence under the Foreign Exchange Regulation Act. We are unable to accept this conten--tion. The question of benefit is irrelevant as the law required that he had to declare the currency while arriving in Pakistan and since he did not declare it he was guilty of the, offence.
13. In the alternative it was urged that the respondent was not aware of the procedure or necessity of declaration, This conten--tion is equally devoid of force. The very fact that the respondent bad produced the to forms dispels this contention.
14. Lastly, it was urged that the search was made by the S. H. O. Without having obtained the permission as required; by section 19(3) of the Foreign Exchange Regulation Act, and, therefore, the search being illegal the trial was vitiated. This contention also cannot be accepted. The mere fact that the search was conducted without permission cannot affect the trial which c took place on the complaint filed by a person who was authorised to file a complaint on behalf of the State Bank of Pakistan. This position of law is very well settled needing no authority and, therefore, it is unnecessary to dwell upon this point. Moreover, the search was not conducted under the Foreign Exchange Regula--tion Act as it was not known nor there was any suspicion that the respondent was in possession of any foreign currency having brought it into Pakistan without making any declaration, but the club maintained by him eras raided as there were some allegations of prostitution and the search was made under the West Pakistan Prevention of Prostitution Ordinance, so the occasion for permission under the Foreign Exchange. Regulation Act did not arise.
15. In the circumstances we hold that the respondent had con--travened the provisions of section 8(l) and, therefore, was guilty of the offence under section 23 of the Act. We, therefore, set aside the judgment of the learned Tribunal acquitting the respon--dent and convict him for an offence under section 23 of the Foreign Exchange Regulation Act and sentence him to pay a fine of Rs. 500 or in default to undergo R. I. For one month. The amount of foreign currency recovered from his possession on personal search of the respondent as well as produced by him subsequently shall be forfeited to government.