The appellant in this case has been convicted by the learned IVth. Additional Sessions Judge, Karachi acting as a Tribunal under the Foreign Exchange Regulation Act of an offence under section 5(1)(c) read with section 23 of the Foreign Exchange Regulation Act and sentenced to pay a fine of Rs. 5,000 (Rupees five thousands) or in default of payment of fine to undergo simple imprisonment for six months.
2. It would seem that for some reason which has not been clearly stated, the Authorities had reason to believe that some clandestine and unlawful transactions in regard to foreign exchange were being conducted by some body who lived in House No, 28/9 Kashana-E-Begum Amal Colony and for that reason the postman within whose beat the house lay namely prosecution witness Muhammad Abdul, bad been asked by the postmaster who must have been similarly instructed by the State Bank Authorities, to be vigilant about any letter that was received at this address from a foreign country. In due course such a letter was received though it was addressed to one Dawood and not to the appellant who admittedly does live at this address. The evidence of the postman however is that he actually delivered the letter to the appellant who took it from him saying that Dawood was his guest and gas for the time being living in his house. Before the letter was delivered to the addressee, however, or rather to the appellant, it bad been intercepted and a photographic copy of it been made. The evidence further is that the appellant by means of two telegraphic drafts sent through the Habib Bank remitted a sum of Rs. 16,000 to the witness Abdul Rashid and the case of the prosecution is that be did so at the behest of one Shamsul Islam Kali who is a resident of Hong Kong. It is clear that if it can be established that the appellant did make this payment at the behest of Shamsul Islam Kali and that the latter is a resident of Hong Kong the appellant would be guilty of an offence under section 5(1)(c) of the Foreign Exchange Regulation Act read with section 23 of the same Act for the earlier mentioned provision prohibits any person in, or resident in Pakistan from snaking any payment to or for the credit of any person by order or on behalf of any person resident outside Pakistan and the later provision penalises any contravention of the provisions of the Act..
3. Now so far as the payment by the appellant to Abdul Rashid is concerned there is overwhelming evidence on the record that the payments were in fact made and indeed the fact is not even denied by the appellant himself. Abdul Rashid himself has given evidence of having received two
(2) drafts one of Rs. 8,000 and one of Rs. 7,000 through the Habib Bank and the concerned officials of the Karachi Branch of Habib Bank as also the Lahore Branch of the same Bank, Abdul Rashid being a resident of Lahore, have been examined who have not only stated this but have produced all the relevant documents in this behalf. The appellant himself admits that he sent the money to Abdul Rashid though of course he given a different explanation as to why he remitted the money to him and to that explanation l shall presently come.
4. Abdul Rashid in his deposition has stated that his father-in-law one Abdul Rehman resides in Ceylon and that he had written to his father---in-law to extend some financial help to himself inasmuch as his own financial condition had deteriorated. The father-in-law wrote to say that the laws of Ceylon did not permit any remittance to Pakistan but that he would instruct a friend of his, namely Shamsul Islam Kali, who was a resident of Hong Kong, to send him Rs. 15,000 and Abdul Rashid would duly receive the money in Pakistan. Accordingly when the money came it occasioned no surprise to Abdul Rashid who was expecting such a remit--tance. Indeed Abdul Rashid says that on a visit to his father-in-law in Ceylon he had met Shamsul Islam Kali; he claims that he did not realise that there was anything unlawful about the transaction and therefore he thought it quite unnecessary to report the matter to police. On the contrary thinking that this was a foreign remittance, he imagined that he was entitled to some bonus and therefore wrote to Mr. Shamsul Islam Kali to let him know the agency through which the money has been sent so that he could put in a claim for bonus here. In reply to this letter it is alleged that he received a letter from Shamsul Islam Kali which is rather ambiguous in language but from which it is plain that whatever request Abdul Rashid made to him could not be complied with. There is no particular importance that I can see which would attach to this letter so far as it bears upon the present case for although Abdul Rashid does claim that it was sent to him by Shamsul Islam Kali he does not and perhaps be cannot, identify the signature as being that of Shamsul Islam Kali, and in any case the signature is illegible.
5. The letter which was received by the appellant and which is addressed to Dawood is in the following terms:- "Dear Dawood Bhai.
Kindly deliver the shirts lying with you to the following:- Abdul Rashid 20 Haider A.I St. No. 16; Misri Shah, Lahore West Pakistan 15 Shirts only. Kindly also deliver the remaining 3 Shirts to Ilyas's Mother.
Thanks.
Yours sincerely."
The reference to "Shirts" is cryptic and is sought to be explained by the prosecution by saying that this word is used by persons illegally dealing in foreign exchange as a code word meaning one thousand Pakistani Rupees. There is really no evidence of this except that of the Police Officer Asghar A.I and I cannot therefore hold that this letter in so many words expressly authorises the payment of fifteen (O) thousand rupees and indeed it is to be noticed that the figure 15 appears separately after the address of the recipient is given. Be that as it may the case would still have to depend upon the circumstance of actual payment and the proof that it was received A at the directions of a person reside a abroad. This letter was sent to handwriting expert and the opinion of the expert is on record but the expert himself was not examined. There is therefore no evidence really that this letter was written by Shamsul Islam Kali.
6. The evidence of Abdul Rashid does however establish satisfactorily in my view, that he received the money from the appellant and that he bar: ,no reason .Whatever to expect the receipt of such a sum of money from the appellant or anybody else in Pakistan but that on the contrary he was expecting such a sum from his father-in-law through Shamsul Islam Kali. That Shamsul Islam Kali is a resident of Hong Kong and therefore a person resident outside Pakistan is clearly established by the evidence of Abdul Rashid which I have no reason to reject and whose cross-examination brought out nothing which would cast any doubt upon the credibility of his testimony.
7. Under section 24 (2) of the Foreign Exchange Regulation Act the onus of proof in certain circumstances is upon the accused. The subsection reads as follows:- "If in a case in which the proof of complicity of a person resident in Pakistan with a person outside Pakistan is essential to prove an offence under this Act, then after proof of the circumstances otherwise sufficient to establish the commission of the offence, it shall be pre--sumed that there was such complicity, and the burden of proving that there was no such complicity shall be on the person accused of the offence."
It will be seen that the onus arises only after proof has been given of circum stances otherwise sufficient to establish the commission of the offence. In the present case this proof I think comes adequately from the evidence of Abdul Rashid and the admitted fact that the money was paid to him. Apart from the explanation which the appellant offers there is no reason whatever why Abdul Rashid should receive or expect to receive this money from the appellant or indeed from any body else in Pakistan. It is therefore necessary to examine what the explanation of the appellant himself is. He claims that one Dawood brought to him some air conditioners and a radiogram which they had imported into Pakistan as duty free items and had asked him to sell them and to remit the proceeds to the witness Abdul Rasheed. The sale proceeds of these articles according to the appellant came to Rs. 15.450 (rupees fifteen thousand four hundred and fifty) and he deducted Rs.
450 (Rupees four thousand and fifty) either by way of expenses or his own profit and remitted the remaining sum to Abdul Rashid. In defence he examined one Abdul Wajid who is said to have negotiated th-1 sale between Dawood and the appellant. Some receipts have also been produced showing that the purchase was made by Dawood and these are also signed by Abdul Majid. None of the documents so much as mention any Dawood lot alone their being signed by any such person. It does appear only too clearly that Dawood is a fictitious person. It is to be remembered that the evidence shows that a letter was received by the appellant which was addressed to Dawood and, even if one assumes for the time being that the letter in question was not the one which the prosecution claim it was, then also the fact remains that according to that evidence one Dawood at any rate, if not the Dawood which the appellant is talking of, was a guest in the house of the appellant and yet he has not been examined as a witness. It is also remarkable that if this Dawood, if he is really a parson who exists, wanted to have the sale proceed remitted to Abdul Rashid he should want the appellant to do so. It is not claimed that Dawood and the appellant were well known to each other and that Dawood bad any reason to trust the appellant. Obviously the easiest course for this Dawood would have been to get the money and then to send it to Abdul Rashid if he so wished. Instead he sells the articles through Abdul Majid and instructs not even Abdul Majid to send the money but desires that Abdul Majid should in turn ask the buyer to send the money to Abdul Rashid. There is also no evidence of the persons to whom in turn the appellant sold the articles. It is true that in cases whereupon the proof of certain circumstances the onus lies upon an accused person, I would myself feel inclined to give the benefit o p the doubt upon the case as a whole, if any exists, to the accused. In the present case however I do not think that the explanation given or the evidence tendered puts the matter even in doubt. I am therefore satisfied that the conviction was proper.
8. After I had heard arguments in this case and reserved it for judg--ment I found that in the Memorandum of Appeal grievance has been made of the non-production of a certain notification and that it was therefore claimed that section 20 of the Foreign Exchange Regulation Act did not apply. On examining the paper book carefully I found however a copy of the notification in question did appear on the record. Even if it bad not I was not able to understand what could be meant by the non-production of a notification. A notification published in the Gazette is a matter of which the Courts have to take the judicial notice and there can be no question of producing it in the sense in which a witness produces any other document. A perusal of the judgment moreover disclosed that reliance had been placed by learned counsel upon a decision of Supreme Court reported in PLD 1961 SC 112 and that this case was distinguished on the ground that the judgment was rendered by the Supreme Court before the notification in question. None of these matters had been referred to in oral arguments and I therefore issued notice to learned counsel on both sides to argue the matter again upon this particular point. The matter being argued before me again learned counsel for the respondent pointed out that there was a subsequent decision of the Supreme Court reported in 1973 SCMR 104 which is obviously after the notification and which has considered the noti--fucation. Now so far as the earlier case of the Supreme Court is concerned their Lordships of the Supreme Court held that the charge against the accused in that case was not established because the foreign source of the money had not in turn been established. I am entirely unable to see how therefore that case has really any relevance to the present. The notification has been issued pursuant to the power granted by section 20(1)(a) which reads thus:- "Until the State Bank by general or special order otherwise direct any person who has at any time after the commencement of this Act been resident in Pakistan shall be treated as still being resident in Pakistan acid if such direction is given in relation to any such person the State Bank may by the same or a subsequent direction, declare the territory in which he shall be treated as being resident;"
'The notification itself which of course has been published in the Gazette reads as follows:- "STATE BANK OF PAKISTAN Notification No. FE. 1/63-SB Dated the 14th October 1963.
Now in the subsequent case of the Supreme Court upon which reliance was placed by learned counsel for the respondent this notification was considered and, even so, the appellant was acquitted.
9. Now apart from section 20 of the Foreign Exchange Regulation Acct and this notification I should have interpreted the word "resident" in section 5 as meaning the place where a person ordinarily lives and to which he means to return after any visit that he might have pay to any place outside.
Indeed their Lordships of the Supreme Court have taken that view in another case and I have recently followed it myself. I should have thought that no only would a casual visit abroad not change the residence but even protracted residence abroad would not change the concept of the residence but it is to be observed that the notification in terms does authorise person who has been domiciled in or is a national of Pakistan and is for the time being resident outside Pakistan to be treated as a person resident outside Pakistan. Prima facie this would mean that a visit abroad or at any rate a long visit abroad would bring a person within the purview of the notification. I am at least doubtful whether the statutory provision does authorise the making of a rule, direction or order in such wide terms. Their Lordships of the Supreme Court also, if I may say so with respect seem to have been of that opinion though they did not decide the question finally. For their Lordships observed:- "On the other hand, the learned counsel for the State Bank of Pakistan has contended that the word "residence" In the context of section 5 must be read in line with the object of the Act, as set out in the preamble, namely, to regulate payments, dealings in foreign exchange and securities, and that according to the directions and interpretations of the State Bank, even a casual or a flying visit to a place outside Pakistan would make person resident outside Pakistan. We regret we cannot accept this contention because we are dealing here with a penal statute, the provisions of which must be interpreted strictly, and in case of any ambiguity or doubt arising from the construction, the benefit must go to the accused person. Any direction that the State Bank has issued cannot exceed the authority derived by it from the statute, for making those directions. It such directions are found to be in conflict with the source of the power from which they emanate, they have to be struck down as illegal and ultra vires. In the present case, however, the prosecution must fail as it has taken no steps whatsoever to prove that Irfan Ullah was a resident of a place outside Pakistan, which fact must have been established by some proof that he had left Pakistan not just casually but with the intention of taking up an abode outside Pakistan, howsoever temporary or provisional it may have been. Nor has the prosecution led any evidence to prove in satisfaction of the requirements of the notification issued by the State flank that Irfan Ullah was a national or a domicile of Pakistan. It seems to us that in this matter the prosecution has proceeded merely on presumptions and assumptions taking them to be proved without taking the trouble of actually proving the several ingredients of the offence with which the appellant was charged, as required by law."
10. Clearly however the Supreme Court based their decision finally upon the finding that the person in question in that case had neither been shown to have taken up an abode outside Pakistan even temporarily or provisionally nor he was a national or domicile of Pakistan. In the present case the person in question is Shamsul Islam Kali and about him there is no doubt that he is a resident of Hong Kong and therefore resident outside Pakistan. The decisions of the Supreme Court therefore are not, in my respectful view, attracted to the present case at all.
11. It was finally argued that the sentence imposed in this case is harsh and reference was made to a decision of a Judge of this Court reported in 1972 P Cr. L J 361 where the learned Judge observed "Lastly, he urged for the reduction of fine. Having regard to the fact that the impugned transaction took place in 1965 and the time that has elapsed and expense incurred in defending against the accusation particularly when there is nothing to show that the appellant has benefited from these transaction, I would reduce the fine from Rs. 5,000 to Rs. 1,000, or in default to suffer rigorous imprisonment for four months. The balance of fine if paid, should be remitted. Subject to this modification in the sentence the appeal is dismissed."
The adequacy of sentence must be a matter which depends upon the facts of each particular case and no formula can be laid down but it is to be observed that the total sum of money involved in that case was Rs. 5,000 and it was found that the appellant bad himself made no profit.
In the present case the total sum is Rs. 15,000 and although there is no evidence that the appellant made any gain, except the sum of Rs. 450 which he claims as expenses or brokerage, I find it difficult to believe that a person would willingly participate in illegal acts without expectation of any benefit accruing to himself. The present is not a case where a friend is supposed to have obliged another by helping him to some foreign exchange. I think on the contrary that the sentence imposed upon the appellant errs on the lenient side and indeed the learned trial Judge himself thought so giving as his reason for imposing a lenient sentence the assumed fact that this was the appellants' first offence. I therefore see no reason to reduce the sentence.
12. In the entire circumstances of the case therefore I dismiss this appeal.