1. This appeal is directed against the judgment, dated 11 March, 1982, of Vth Additional Sessions Judge/F.E.R. Tribunal Karachi, whereby appellant Syed Masood Hussain has been convicted under section 9 read with section 23 of Foreign Exchange Regulation Act, 1947. He has been sentenced to R.I. For 6 months and to pay fine of Rs.5,000 in default to suffer R.I. For two months.
2. The case of prosecution is that on 30-4-1978 Inspector Sirajuddin Ahmed of F.I.A. (S.E.C.) Karachi was no patrol duty at Boultan Market Area, Karachi. He noticed appellant Syed Masood Hussain offering foreign currency for sale. He apprehended appellant in presence of two Mashirs Iqbal Ahmed and Fazal Hussain and from his personal search recovered 10 notes of 20 sterlings Pounds each and one note of 10 Saudi Riyals. Under orders of Deputy Director F.I. A. (S. B. C.) Karachi, a case under section 9 of Foreign Exchange Regulation 1947 was registered. Appellant was challaned and finally convicted as stated above.
3. Prosecution examined Inspector Sirajuddin Ahmed and Mashir Fazal Hussain. Appellant in his statement under section 342, Cr.P.C. Stated that he has been involved due to enmity to Inspector, Sirajuddin. He examined Mukhtar Ali Exh.14 and Syed Muhammad Suleman Exh.17 in his defence: I have heard Mr. Muhammad Ali Shaikh. It is contended that offence is non-cognizable and no notification was issued. He has also argued that Inspector was not authorised to file complaint. He had referred to subsection (3) of section 23 of the F.E. Regulation of 1947.
4. Mr. Abdul Ghafoor Mangi, learned A.A.-G. Has supported the conviction and contended that notification SRO-100(1)/78 published in Gazette on 24-1-1978.
5. Complainant in this case is P.W. Inspector, F.I.A. Sirajuddin. He has supported the case stated that he saw the appellant offering currency for sale on foot path outside State Bank Building. He pickedth up Mashirs and in their presence recovered foreign currency as stated above from the appellant.
6. P.W.2 Fazal Hussain stated that he was called by Inspector Sirajuddin to act as Mashir. He found appellant alongwith eight others standing on foot path out side the State Bank Building, Karachi. On seeing police eight persons ran away. Police arrested the appellant and secured 10 notes of 20 English Pounds and one note of 10 Saudi Riyal and Mashirnama Exh.7 was prepared. Defence witnesses have stated above that appellant had quarrel with Inspector Sirajuddin over payment of restaurant bill. On 7-7-1981, charge under section 9/23 of Foreign Exchange Regulation 1947 was framed to which appellant pleaded not guilty. The charge so framed is as under:- "That you on 30th day of April, 1978 at 1-30 p. m. At the foot path of old State Bank of Pakistan, Karachi were offering Foreign currency viz. 10 notes, each of 20 (English) Pounds denomination and one note of 10 Saudi Riyals and thereby committed an offence punishable under section 9/23 of F.E.R. Act, and that you be tried by this Court."
7. There is only evidence of Inspector Sirajuddin that appellant was seen offering foreign currency for sale. His evidence is not corroborated by any other circumstance that appellant was found selling foreign currency. Mashir Fazal Hussain's evidence is to the extent of recovery of foreign currency. He has not stated that appellant was seen selling foreign currency. The statement of appellant under section 342, Cr.P.C. Is as under:- Q.It has come in evidence against you that you on 30-4-1978 at 1-30 p. m. At the foot path of the Boultan Market were in unlawful possession of the foreign currency. What have you to say?
8. A.No sir.
9. Q.2.It has further come in evidence against you that the above given time and place, the F.I.A.
10. Inspector Sirajuddin arrested you and recovered foreign currency viz. 10 notes each of 20 (English)
11. Pounds denomination and one more of 10 Saudi Riyals from your possession, what have you to say?
12. A.No Sir.
13. Q.3Do you claim this currency?
14. A.No Sir.
15. Q.4.Why the P.Ws. Have deposed against you.
16. A.They are professional witnesses.
17. Q.5.Do you want to lead any defence?
18. A .During the days of incident, I used to work as Manager in Ashi's Restaurant Tariq Road, Karachi.
19. Inspector Sirajuddin had come there where I had a quarrel with him. At the time, he was in civilian clothes. He had refused to pay the bill after taking meals. It is due to the above quarrel that he has arrested me in this case. I am innocent."
20. He has not been put any question if he was found selling foreign; currency. He was asked if he was in possession of currency. The tribunal in concluding para. No. 16 of his judgment observed as under.
21. "From the evidence adduced by the prosecution, it has been proved beyond doubt that the accused was found in possession of foreign currency in violation of provisions of law."
22. Section 9 of the Foreign Exchange Regulation Act, 1947 is reproduced as under:- "9. The Federal Government may, by notification in the official Gazette, order every person in, or resident in, (Pakistan).
23. (a)who owns or (holds) such foreign exchange as may be specified in the notification, to offer it, or cause it to be offered for sale to (the State Bank) on behalf of the Federal Government or to such person, as (the State Bank) may authorise for the purpose (Within such time as may be specified in the notification) at such price as the Federal Government may fix, being a price which is in the opinion of the Federal Government not less than the market rate of the foreign exchange when it is offered for (b)who is entitled to assign any right to receive such foreign exchange as may be specified in the notification, to transfer that right to (the State Bank) on behalf of the Federal Government on payment of such consideration therefore, as the Federal Government may fix: Provided that the Federal Government may by the said notification or another order exempt any person or class of persons from the operation of such order: Provided further that nothing in this section shall apply to any foreign exchange acquired by a person from an authorised dealer and retained by him with the permission of (the State Bank) 'for any purpose."
24. The appellant cannot be convicted for the offence under section 9 of the above act as there is no sufficient evidence to sustain this charge. At the best he could have been charged under section 4 which provide that no person other than unauthorised dealer shall in Pakistan and person resident in Pakistan other than an unauthorised dealer shall outside buy or borrow from or sell or lend to or exchange with any person not being an authorised dealer, any 'foreign exchange.
25. Before parting with this order, it is observed that in view of notification as stated by the learned Assistant Advocate General the cognizance has rightly been taken by the Tribunal and case was registered by the person who was working as Inspector in State Bank Cell under direction from Deputy Director, F.I.A. State Bank Cell, Karachi as such there is no violation of provision of subsection 3 of section 23 of the Act.