1. ' MUHAMMAD YAQUB ALI, J.-On hearing Mr. Usman Ghani, Assistant Advocate-General, we see no reason to differ with the view expressed by the High Court that in the absence of proof that Najibullah on whose instructions, Hamidullah, respondent, had paid Rs, 1,900 to one Noor Muhammad of Pasni, was a person resident outside Pakistan within the purview of modified Notification dated 14-10.1963 issued under clause (a) of subsection (i) of section 20 of the Foreign Exchange Regulation Act (VII of 1947), his conviction under section 5(1) (c) of the Act was not justified. In arriving at this conclusion, the learned Judge has relied upon an earlier decision of this Court in Muhammad All v. State Bank of Pakistan (1). It was observed in that case :- "In the present case, however, the prosecution must fail as it has taken no steps whatsoever to prove that Irfanullah was a resident of a place outside Pakistan, which fact must have been established by some pr. Of 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 Bank that lrfanullah 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."
2. In the instant case the prosecution has neither proved that Najibullah was a national or domicile of Pakistan nor shown that being a national of Pakistan, he had gone to Abu Dhabi with the intention or taking up an abode outside Pakistan howsoever temporary or provisional it may be. In view of this material omission, the High Court was right in setting aside the conviction of Hamidullah, respondent, under section 5(1) (c) of the Foreign Exchange Regulation Act.
3. ' Leave to appeal is refused.