This appeal has been filed under section 23-A (6) of the Foreign Exchange Regulation Act, 1947 (hereinafter referred to as the Act) to impugn the conviction under section 5(1) (c) read with section 23 of the Act.
2. The appellant was tried by the F. E. R. Tribunal and sentenced to pay fine of Rs. 3,000 or in default to suffer rigorous imprisonment for 9 months vide judgment dated 26th August 1967. Habibullah, another accused in the same case, was however acquitted.
3. The allegation against the appellant was that he had paid Rs. 1,000 to Wahiduddin on behalf of "Ghufran Usmani of Iran" and Rs. 5,434.72 to "Shaikh Hidayatullah of Faiz & Sons of Dera Ismail Khan" on behalf of "Ali Itiminan of Zahidan, Iran", and accordingly had contravened section 5 (l)(c) punishable under section 23 of the Act. Upon detection of these payments show-cause notice was issued to the appellant on 18th October 1965 by the State Bank of Pakistan and in his reply dated 20th August 1966 he denied the first payment and with regard to the second, he stated that it was paid against goods imported from Iran. A complaint was accordingly hied on 9th November 1965 before the F. E. R. Tribunal against the appellant and his son Habibullah. The Tribunal held the first payment to be proved while in regard to the second it held that there was no contravention of section 5 (1) (c) of the Act and while doing so it observed:-- "Although any payment which may be made on behalf of any person residing out cf Pakistan is an offence but it has been admitted by Mr. C. D. Butt that remittance of money from Iran to Pakistan is exempted from the operation of Foreign Exchange Regulation if it is the sale proceed of the goods sent from Pakistan to Iran and vice versa. Thus the case of the accused is clearly covered by this exception."
Having reached the conclusion that section 5 (1) (c) of the Act was contravened, it further held that acquitted accused, Habibullah, was not implicated in any manner and it only recorded the conviction against the appellant.
4. At the Bar it is argued by Mr. Muhammad Ibrahim Memon that the prosecution has failed to establish that it was the appellant who had paid Rs. 1,000 to Wahiduddin at the behest of Muhammad Ghufran Usmani, a Pakistani national then residing in Iran. He has invited my attention to the evidence of Wahiduddin, to whom the money was paid, Mst. Imtul IfFan, his wife, to whom the post card (Exh. 11) was addressed and Abdul Sattar who is the tnashir of the recovery of Exh. 11 from the office of the appellant. Wahiduddin has beyond any doubt implicated the appellant as the person who had paid to him the money and it was to him that the post card was returned. No cross-examination was addressed to question his implication otherwise than for the reason attributed by this witness. The Tribunal while appraising his evidence has reached the same conclusion as will appear from its observations which read :-- "So far accused Muhammad Amin is concerned there is evidence of Wahiduddin who had received the money from the accused and this money was sent by Ghufran Usrnani of Iran. There is absolutely no reason to disbelieve him. Nothing has been brought on record to assail his evidence.
The accused has not alleged anything against him. He had no reason to falsely implicate the accused. The evidence of the witness is supported by the post card which was received from the accused's firm and was subsequently recovered from his house."
5. The evidence of Wahiduddin also stands corroborated by that of his wife, Mst. Irntul Ulan, to whom the post card was addressed. She has stated that the amount collected from the appellant was paid to her by her husband which she remitted by money order to her mother. The post card bears the post mark and it is not possible to swallow that it could have been manipulated. On the top of this card is written the name of Amin & Sons and the address, and this furnished the clue and it was, therefore, that he was discovered as the person who would pay the money. This is a strong circumstantial piece of evidence, which supports the testimony of Wahiduddin. The mashir has made an obliging admission that it was told to him that this card was recovered although in his evidence he has admitted that he was present when the papers were seized, with a view to minimise his evidence he has given this obliging admission and be that as it may it is not possible to explain the presence of the card with the post mark otherwise than for the reason that it was returned by Wahiddudin and it was, there fore, found there.
6. No other argument was addressed to challenge his conviction. The learned counsel for the appellant pointed out that the appellant died on 23rd January 1971, and has filed the death certificate. He, however, did not urge that the appeal abated on his death and rightly so. Section 23-A of the Act does not provide for the abatement of appeal and even if section 431, Cr. P. C. is applicable, the appeal will still be alive as it is an appeal in which the sentence is one of line which is excepted from abatement.
7. Lastly, the learned counsel urged for the reduction of fine, in the circumstance, having regard to the fact that the appellant is dead and the impugned transaction took place in 1964, 1 would reduce the line front Rs. 3,000 to Rs. 1,000 and set aside the sentence in default of payment of line.
The balance of the line, if paid, should be remitted to his heirs. The appeal with this modification is dismissed. .