' Appellant above-named, being aggrieved by judgment, dated 1st July, 1975 of the learned 1st Additional District and Sessions Judge, Karachi, in F. I, R. Case No, 134/74, by which appellant has been convicted under section 9 (23) of the Foreign Exchange Regulation Act, and sentenced to fine of Rs, 500 or in default to under go R. I. For 3 months has preferred the above appeal on the following facts and grounds :-
2. The prosecution case in brief is, that on 28th November, 1974 at about 12-50 noon S. I. P. Nazeer Hussain of Pakistan Special Police alongwith a police party was on patrol duty at BouIton Market, where he received an spy information that the appellant was moving on the footpath of the Boulton Market for the illegal transaction of foreign currency in his possession. Accompanied by witnesses Abdul Rahman and Anwar Ali, he reached the place and in their presence recovered five notes of U. S. $ 20 each, from the possession of the appellant. He arrested the appellant, prepared mashirnama and registered a case against him, as the latter failed to satisfactorily account for his possession of the foreign currency. On completion of the investigation the appellant was prosecuted to stand his trial under section 29/23 of the Foreign Exchange Regulation Act, 1947.
3. In support of their case the prosecution have examined Syed Nazeer Hassain P. W. 1, and Anwar Ali P. W.
2.
4. In his statement the appellant has admitted to be found in possession of U. S. $ 100 but he stated that on 12th November, 1974 the wife of his brother returned from Kuwait. According to him she had given him U. S. $ 100 for exchange from any authorised bank. He, therefore, brought this amount for this purpose, but he forgot to bring her passport from home, with the result that he was returning home, when he was hauld up by the police. He has alleged, that mashir Abdul Rahman had contacted him in the Bank premises to get the foreign currency exchanged, but he declined to do so. In support of this assertion he has produced a authority letter purported to have been executed by Mrs. Shamim Akhtar. He has pleaded not guilty to the charge and examined Owaisuz Zaman Safri an officer of the Habib Bank Ltd., Karachi in his defence.
5. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo. Of appeal.
6. The learned counsel for the appellant in support of the above appeal produced for perusal Passport No, AD-163078 of Mst. Shamim Akhtar, in support of Exh. 7, already produced by the appellant, before the learned trial Court and submitted, that Mst. Shamim Akhtar arrived in Pakistan from Kuwait on 12th November, 1974 and on 28th November, 1974, appellant had come to exchange the said Foreign Exchange from Habib Bank, but had forgotten passport of his Bhabi and consequently was returning home, when he was apprehended at the instance of P. W. Abdul .Rehman, whom he had refused to give said foreign exchange unofficially, that very morning and as such said P. W. Got him arrested and became mashir of seizure. It was because of this tact, that P. W. Abdul Rehman was not produced, as P. W. In Court, by prosecution. ,
7. The learned counsel appearing for the State also submitted, that he was not supporting impugned judgment, as it is clear from the statement of appellant under section 342, Cr. P. C.. That his Bhabi arrived from Kuwait on 12th November, 1974 and gave her Exh. 7 as letter of authority for exchange of said foreign exchange and he was arrested before expiry of time prescribed under notification dated 29th August, 1958, for merely being in possession of U. S. $ 100 and in view of the fact, that appellant has produce today, passport of his Bhabi, which unfortunately, he did not produce before the learned trial Court.
8. I have carefully considered the above submissions of the learned Advocates and have gone through the R & P of the learned trial Court as well as through the impugned judgment and perused the original Passport No, AD-163078 of Mst. Shamim Akhtar, the Bhabi of the appellant,
9. I find that statement of appellant under section 342, Cr. P. C. Is fully corroborated by Exh. 7 and original passport shown to me in Court today. It is clear from passport, that appellant's Bhabi arrived from Kuwait, on 12th November, 1974 and gave appellant Exh. 7, an authority to exchange U.
S. $ 100 from Bank, but before he could do so, he was apprehended, at the instance of P. W. Abdul Rehman, mashir, to whom he had refused to sell U. S. 3 100 in black market. This explanation of the appellant seems plausible and since there are no allegations, that appellant was trying to sell U. S. $ 100 in black market, I am inclined to accept appellant's statement as correct, as prosecution did not examine P. W. Abdul Rehman, the second mashir of the seizure, without giving any reasons. I find learned trial Court did not accept this statement of appellant, as he neither produced passport nor examined his Bhabi before the learned trial Court, as she had left for Kuwait according to her declaration dated 21st January, 1976 and was not present in Pakistan, at relevant time, when defence could have been produced.
10. In view of my above conclusions, I am of the opinion, that prosecution has failed to prove its case under section 9 of Foreign Exchange Act against the appellant, as period for exchange of the amount in question, which belonged to appellant's Bhabi had not expired on 28th November, 1974, when appellant was apprehended. In my opinion, this is a fit case for allowing appellant's application for condonation of delay in filing of the above appeal.
11. Therefore, I allow the above appeal and set aside conviction of the appellant and sentences awarded to him and acquit him and discharge the bail bonds executed by him.