This appeal is directed against the judgment of Foreign Exchange Tribunal Karachi, dated the 7th of October 1967.
2. A complaint under section 12(1) read with section 23 of Foreign Exchange Regulation 1947, was filed by the State Bank of Pakistan through its Deputy Controller against convict- appellant on the 9th of March 1967 alleging that in January/ February 1965, the appellant exported handicrafts of the value of Rs, 20,294 to Italy under GPR1 Form No. 522206 oa consignment basis and he undertook to repatriate the sale proceeds to Pakistan through United Bank Limited, Karachi, within prescribed period of four months from the date of shipment. It is further alleged that he transferred only Rs.
580 to Pakistan and the balance of Rs. 19,174 is still outstanding as he did not repatriate the remaining amount within the prescribed period. He contravened section 12(1) of Foreign Exchange Regulation, he may be punished under section 23 of the Act. It is further alleged that requisite show-cause notice was given to the appellant, his explanation was found unsatisfactory, his trial and punishment under law was requested.
3. The complainant in support of the allegations produced four prosecution witnesses and also produced the relevant documents before the trial Court. Mr. C. D. Butt, Assistant Controller, State Bank of Pakistan P. W. 1 deposed that under GPRI No. 522206 dated 26-1-65, the appellant sent goods worth Rs. 20,294 to Italy and undertook to repatriate the amount within four months through United Bank Limited, Karachi. At first the goods were to be supplied on contract basis. Later on the appellant sought permission to sell goods on consignment basis, the State Bank of Pakistan gave the necessary sanction vide Exh.
4. The State Bank of Pakistan also allowed him to send his representative to Italy to sell goods. He however, was required to repatriate the whole amount and to submit the sale Account duly certified by the Chamber of Commerce of the Importing country, but he failed to do either except that he repatriated only Rs. 580. This witness produced a letter of 27-8-1965 with the accompaniments including the sale account received from the United Bank as Exh. 5 and also produced E\hs. 5, 6 and 7 as being show-cause notice reply of the appellant respectively. The next witness is Fazle Rehman, a shipping agent. He deposed that he was an agent and exported goods of the appellant, to Italy as per GPRI on 31-1-1965. Another witness is B. A.
Siddiqul, an Officer of the United Bank Limited, Karachi. He testified that the appellant exported goods through their Bank to Italy where the appellant's representative was given documents and where he deposited 25 lacs Italian Liras, out of which 55,000 Liras were deducted by their Bank as demurrege and other expenses, he also stated that approximately 80,000' Liras ' are equal to Rs.
5,000. He further deposed that in the same month of July 1965, their agent in Italy returned 1,53,00,000 Liras to the buyers under specific instructions of the appellant's representative namely, Qamaruddin and further stated that the net amount received in Pakistan was 43-6-3 which is equal to Rs. 567.86. He deposed that the amount originally deposited with their Bank i.e. 25 lacs Liras was the sale proceed of the goods.
4. No worthwhile question was asked to this witness in cross-examination. The next P. W. 3 is Zahir Ahmad Khan, Inspector, S. P. E. S. B. B. who deposed about the permission to investigate and record the statements of witnesses and sent his report to the State Bank. No question was asked from him in cross-examination. Thereafter, the statement of the appellant was recorded presumably under section 342, Cr. P. C. Relevant questions and bis answers are : "Q. The allegation is that your representative delivered 25,00,000 Liras with agent of the Bank as sale proceeds of the goods. What have to say?
A. Yes.
O. The allegation is that the agent of the bank returned 15,30,000 Liras to the buyer at the instance of your representative. What have you to say?
A. Yes.
Q. Would you like to explain why balance of the declared amount was not repatriated?
A. Whatever was realized by the sale of the goods after deducting all the expenses was repatriated.
Q. Have you to say anything more?
A. I produce documents Exh.
15. I have been deceived."
5. In other words there is no defence or worthwhile explanation on the part of the appellant for non- repatriation of a huge amount in foreign exchange. All he says is that "I have been deceived". In face of this clear admission, and unrebutted documentary evidence, the trial Court found him guilty of the offence and sentenced him to Rs. 15,000 fine or two years' R. I. in default thereof.
6. However, at the time of arguments, the learned counsel for the appellant raised various legal objections. His main grounds of attack are in paras. 2,3,4, 7 and 8 and lastly in para 11, which are as under : ''(2) That the learned lower Court has failed to appreciate that the entire transaction was carried through the authorised banks and the appellant had nothing to do, what submit to fate.
(3) That the learned Tribunal has not considered the fact of appellant having been cheated by Mohammad Mian in this deal resulting in heavy losses to the appellant. It was therefore that the appellant was given necessary permission to sell the goods on consignment basis in the open market. /
(4) That the leamed Sessions Judge has erred in so far as his judgment proceeds on the assumption that the goods in question were sold for Rs. 580 only, whereas the same were sold for Rs. 9,700.
(7) That the learned Tribunal has not taken into consideration the documentary evidence placed on record by appellant.
(8) That the prosecution has totally failed, to establish their case.
(11) That the fine in any case, is too heavy."
In support of his above contentions, he relied on several decisions of this Court as well as of Supreme Court of Pakistan with which I will presently deal. His contention that the appellant's failure to repatriate the full amount was caused by circumstances not in his control and he had all along good intention to abide by the conditions set forth under the Foreign Exchange Regulations.
In any case he argued that it was for the prosecution to prove that he had from the outset bad intentions this burden the prosecution failed to discharge. In this connection he referred to Hafiz Abdul Karim v. The State (1). This was a case where Hafiz Abdul Karim, a fruit merchant of Lahore was convicted on three grounds for not repatriating the Foreign Exchange against three consignments of fruits exported to India. Abdul Karim's case clearly is not helpful to the appellant, keeping in view the dicta of the Court wherein the argument that the accused failed to repatriate money was beyond his control, was repelled. The Court observed : "It is argued that the accused has done his best to get the money but has failed to do so for reason beyond his control. No person has a right to export anything outside Pakistan unless he can be cent, per cent, sure that the amount of the exported goods will be repatriated to Pakistan within the time specified in the declaration. The responsibility entirely rests upon the shoulders of the exporter, and if he is unable to get the amount repatriated within the time specified, he commits an offence under section 23 of the Foreign Exchange Regulation Act, To hold otherwise would seriously damage the interests of the country as a whole. The argument advanced at the bar that the appellant had honestly tried his level best to get the money repatriated, but had failed to do so, and therefore, he had committed no offence, is completely irrelevant. If such an excuse is accepted then it would become difficult for the authorities to get the money repatriated from foreign countries to Pakistan and it would eventually endanger the foreign exchange of this country. I, therefore, uphold the conviction of the accused-appellant."
7. The next case cited at the Bar on behalf of the appellant is reported as Akhtar Shah v. The State and another (2). This case is also of no assistance to the appellant either because in this case certain money is said to have been remitted from New York to Karachi. The prosecution could only establish up to Kabul and the regulations admittedly were loosely enforced between Kabul
(2) PLD 1961 SC 112 and Pakistan and a charge against the accused that he acted as an agent of Deak & Co. being not proved, he was acquitted. The facts of this case arc altogether different than the present one. Here the appellant failed to repatriate the requisite money. There is no allegation that he cither acted as a agent or sent money from Italy back to Pakistan through illegal sources. Here the sale proceeds except a petty sum of Rs. 580 altogether vanished in Italy and the presumption under section 24(2) that the appellant with complicity of his representative Qamaruddin whom he sent to Italy or with some other persons had marked the State Bank by not repatriating the amount due under the agreement, this presumption in the circumstances is raised against the appellant unless he proves to the contrary which he failed to discharge as revealed from the evidence on record.
8. The case of M. A. Jabbar Chowdhury v. The State and another (I) cited, is neither helpful to the appellant. In that case money though not repatriated within prescribed period, but later on it was fully repatriated and the State Bank of Pakistan in the circumstances did not press for sustenance of the sentence, but in this case neither plausible reasons are given to the satisfaction of the trial Court nor full sums are repatriated even at a later stage, I wonder how the ratio of the above case can apply to the facts of the present case.
9. Lastly, A. Gaffar v. The State (2) was relied upon, on the point that the burden of proof is on the prosecution on whose behest a payment is made, is a person who comes within the ambit of section 5(1) (c). This was a case of illegal remittance from Dubai to persons in Karachi ; as there was no evidence against the accused that on his behest the payments were made at Karachi and he was acquitted. Now the facts and event in this case are different from the above case. Here the appellant admits sending goods to Italy with a clear agreement with the State Bank of Pakistan that sale proceed would be repatriated within four months. The goods did reach its ^destination in Italy, without dispute. There was some delay in their sale, the appellant's request for selling goods on consignment basis was acceded to by the State Bank and his representative Qamaruddin was allowed to go to Italy for sale of the goods. It is admitted position borne out by the record exhibited that this Qamaruddin sold the goods for 25 lac Liras and deposited this amount with the Italian Branch of United Bank Limited subject to 5,000 Liras as bank and other charges on the 6th of July 1965. Had the events rested there, United Bank as an authorised agent was bound to repatriate the sums to State Bank but it was not to be, because this representative of the appellant namely, Qamaruddin in the same month of July soon after the deposit of the full sale price of 25 lac Liras, gave fresh instructions to pay back 15,30,000 Liras, to the very purchaser namely, Zerzeri in Italy, this amount which being the major portion of the sale price, was treated as a further allowance to the buyer by Qamaruddin, because many articles were found to be broken and damaged due to insufficient packing ' (1) PLD 1964 Dacca 20 at the origin ; therefore, goods which first fetched 25 lac Liras are resold for only 9,70,000 Liras by same Qamaruddin. These facts are. borne out on record by correspondence between Qamaruddin and United Bank Italian Branch, the presumption was raised against the appellant and it was for him to prove to the satisfaction of the Court that there was no complicity between his representative with someone else there in Italy to divert the statement. No body will believe that a foreign purchaser would buy goods exported from Karachi without they are first being thoroughly checked, as the appellant and his representative Qamaruddin would want me to believe. If the appellant was honest in his dealings, it was for him to rebut the inference of his guilt. He could produce Qamaruddin at the trial to explain what happened to 15,30,000 Liras? Why this sum was not repatriated to Pakistan? How this sum was used in Italy or anywhere else?
10. There is no explanation whatsoever on the part of the appellant except that he is deceived. Now, if he has been, for sake of argument cheated by his own representative Qamaruddin or by one Mian Mohammad or for that matter by anybody, would he be justified to flout the law of the land and to deprive state exchequer from hard earned foreign exchange? Certainly not, the law must take its normal course, the appellant must suffer the consequences of his dishonesty or ignorance of law or for his misadventure of his attempt to be rich over night.
11. A glance through the immense correspondence by the appellant or his representative with Government Agencies here or abroad or with United Bank show that a preparation was being made, a ground was being laid to find plausible excuses to misappropriate large sums in foreign countries. His conduct throughout shows this. He was bound by an agreement with the State Bank when permitted him to sell goods on consignments basis (Exh. 4), to produce account of sale duly certified by Chamber of Commerce of importing country but the appellant did not comply with this very important condition. Again an offer by Government of Pakistan Export Promotion Bureau vide their letter No. THD(H-52)l/65 dated 24th/26th June 1965, was made to the appellant, that the goods may be sent to Italian Market by Commercial Secretary for Pakistan either by outright sale to an interested party or by auction and in the alternative the whole or part of the consignment be sold out if otherwise feasible through Pakistan Pavilion in any International Exhibition as and when held in European countries. But there is nothing on record that this very genuine offer by the Government to help him out of his self-created difficulties in disposing of the articles was ever accepted.
12. Looking at the matter from any angle the complicity of accused in commission of the otfence becomes more dormant and clearer. The learned trial Judge after sifting all the evidence on record, evaluated the same, very rightly convicted and sentenced the appellant.
13. Counsel for the appellant during the course of his arguments pleaded leniency with regard to sentence imposed.
He took this ground in the memo, of appeal as well stating that the appellant was duped by certain other persons who proved to be more, smart than him in the race. He further pleaded that the appellant is very poor now and in fact from an exporter he has turned to be a butcher and in fact he is financially ruined. He may be treated leniently with regard to the' fine. In the circumstances of this case I do not think that the appellant deserves any leniency in this respect. There is a judgment of their Lordships of the Supreme Court reported as State Bank of Pakistan v. Abdus Sattar and another (1) where their Lordships in fact increased the amount of fine from Rs. 5,000 to Rs. 10,000. In that case Abdus Sattar a merchant of Khulna was convicted by the Special Judge of an offence punishable under section 23 of the Foreign Exchange Regulation. He was sentenced to a term of imprisonment and a fine of Rs. 5,000. In that case the accused exported fresh fish and pawns to India valuing Rs. 9,294-14-0. He failed to repatriate any part of the sale proceeds of these goods within a stipulated two months' time under the rules. He was acquitted by the High Court. The matter went before the Supreme Court where their Lordships held :-- "The excuse that lack of the bills of entry prevented repatriation of the balance is palpably insufficient, as the evidence of Mr. Abdul Manzur clearly proves. The Bank's services were always available for recovery of the amount involved, and it seems clear that the accused deliberately avoided asking for such assistance. Therefore his failure to comply with the condition to which his export permit was subject must be held to be deliberate, and he was clearly liable to conviction under section 23 of the Act."
His fine was enhanced from Rs. 5,000 to Rs. 10,000.
14. In view of the reasons given above and this weighty judgment of the Supreme Court it must be held that the present appellant deliberately avoided to seek help of Pakistan Embassy in Italy for the repatriation of the amount, he is liable for conviction under section 23 of the Act as there is sufficient material on record. I hereby sustain the sentence and conviction of the learned trial Judge and dismiss this appeal. Any stay order automatically stands withdrawn. .
(1) 1968 SCMR 283