These two appeals arise from the judgment of the learned Sessions Judge, Karachi, acting as the Foreign Exchange Tribunal appointed under the Foreign Exchange Regulation Act. The appellant has, in each of these cases, been convicted under section 65(1) (c) read with section 23 of that Act and sentenced to six months' R. I. And to pay a fine of Rs. 10,000 or in default R. I. For three month's more.
2. A person called Noor Mohammad who was also an accused with him has been acquitted. There were a number of witnesses examined by the prosecution but although some of them were formal the total effect of their evidence established that the said Noor Mohammed on a number of occasions bad come to the Bank and having tendered money in cash obtained demand drafts for persons stated to be residents in Azad Kashmir. This Noor Mohammad was alleged by the prosecution to be an employee of the appellant.
3. In discussing the case the learned Judge first states very briefly the accusation against the appellant and then states the two points which according to him arose for determination in the case -:
(1) Did the present accused or any one of ,them make payment of amounts in the drafts to A.I Afsar on behalf of a person resident outside Pakistan ?
(2) What offence, if any, was committed by the present accused or any one of them ?
The learned Judge then records his findings and proceeds to give a bare list of the prosecution witnesses without stating even what their evidence disclosed. He then referring to the statement of the accused under sec--petition 342 and points out that the appellant admitted having sent the draft in question but that he denied that this was done at the instance of any person resident abroad. Very briefly then the learned Judge refers to the evidence of some of the employees of two banks which clearly establishes that the Demand Draft was obtained and sent. Having stated this much the learned Judge points out that the question that remains for determina--petition was whether "these amounts were paid to A.I Afsar by the accused on behalf of the persons resident outside Pakistan". Obviously the essential question in the case was that the payment was being made on behalf of a person who is not resident in Pakistan. Immediately after the passage which I have quotrd the learned Judge goes on to consider the evidence of the defence witness, namely, Basbir Ahmed. Now Bashir Ahmed's evidence was an attempt to show that the money in question was realised by the sale of truck and other goods legally brought in from abroad into Karachi. This evidence, the learned Judge, disbelieved. He also disbelieved the witness when he said that he did not know whether the partners were in England or not. I have no reason to disagree with the learned Judge's disbelief of the evidence of defence witness but I must confess I am wholly unable to see how this disbelief established a positive case for the prosecution. Such a case, the learned Judge never examined and such a case is not to be found from the evidence. It may be that the repeated transactions shown to have been made by Noor Mohammad and or Ghulam Hussain would make one suspicious of the origin of the money. It is very likely indeed that the money came from sources which were criminal. This is, however, far from saying that there were moneys sent on behalf of persons residents abroad which is after all the evidence on which he was charged. In these circumstances I do not see how this conviction is sustainable and I accordingly allow both these appeals and set aside the sentence and fine. The appellant is on bail and his bail bonds are cancelled.
4. After I have delivered this judgment the learned Assistant Advocate --General draws my attention to the fact that in Criminal Appeal No. 315 there is in fact evidence to show that the demand drafts were obtained by Ghulam Hussain on behalf of persons abroad and delivered to their relations. Now the evidence of this is stated to be firstly that of P. W. (1), Hasan Mohammad who states that he had three nephews in England and that one of these nephews had written to him a letter that Murtaza would give him a draft of Rs. 5;000 and that a few days later Murtaza delivered him the draft for Rs. 5,000. The others piece of evidence is that of Ghulam Murtaza who states that he received a registered letter which contained two drafts, These two drafts ace said to be connected by reason of the evidence of the bank clerk who says that drafts in the sum of Rs.
14,000 and Rs. 5,000 were obtained in the name of Ghulam Murtaza. But the other vital part of the evidence is missing for admittedly these drafts were taken by the co-accused who has been acquitted,, namely, Noor Mohammed. Noor Mohammed's own case was that he had taken it on behalf of one Rashid and that he had himself filed his application form. It is true that Noor Muhammad admits that he purchased the demand draft and in answer to a composite question whether he did so at the instructions of Ghulam Hussain and under the fake name of S: M. A.I he denied only that that was a fake name and claimed that it was a real name. At any rate in this answer and the next he is admitting that he did so under the instructions of Ghulam Hussain.
Further on, however, he categorically states that he (Ghulam Hussain) had no concern with it.
Assuming the utmost in favour of the prosecution that this is a categorical admission by Noor Mohammed that he was acting at the behest of Ghulam Hussain, it still amounts to no evidence at all against Ghulam Hussain for it is after all only a statement of co-accused under section 342, Cr.
P. C. A Even if section 30 of the Evidence Act applied, which it does not, this would not be an evidence.
5. In the result, therefore, the matter which the Assistant Advocate-- General has brought to my notice does not affect my reasoning.