' Appellant Jalil has filed this appeal against his conviction by the Foreign Exchange Tribunal, Karachi, as per judgment dated 27th April, 1974. The learned Tribunal convicted the appellant of offences under sections 4 and 9 of the Foreign Exchange Regulation Act read with section 23 of the Act, and sentenced him to suffer rigorous imprisonment for six months and a fine of Rs, 3,000 on each count and in default to suffer rigorous imprisonment for a period of three months on each count. The sentence of six months on each was ordered to run concurrently.
2. The story of the prosecution was that B. K. Durrani, Inspector, Special Police Establishment, State Bank Circle, Karachi, had received information on 17th August, 1973, that the appellant, who was a Taxi Driver, was indulging in selling and purchasing of foreign exchange at Karachi Airport. Mr. Durrani accordingly organised raid with the help of witnesses Ismail Chand, Abdur Rehman and Abdur Rasheed. Ismail Chand was set up as a bogus purchaser and the appellant was given Rs, 500 in Pakistan currency after the numbers of the currency notes had earlier been noted down as Mashirnama Exh.
4. Thereafter, the Inspector alongwith the witnesses is said to have proceeded to the Airport where Ismail Chand in the presence of the witnesses contacted the appellant, who agreed to sell 16 at the rate of Rs, 26.50 per pound. After the bargain was settled, Ismail Chand passed on Pakistani marked currency to the appellant and Inspector Durrani apprehended the appellant and recovered from his possession 16 and marked currency notes of Rs, 500. On search a sum of Rs, 1,550 was also recovered from the pocket of the appellant. A mashirnama was prepared in the presence of PWs. Ata Hussain and Syed Abdul Rehman.
3. The appellant pleaded not guilty, although he admitted that 16 were found on his person. His defence was that the foreign currency was given to him by a foreigner on account of taxi hire for whom he had been engaged for some time. The learned tribunal disbelieved the defence story and relying upon the evidence led by the prosecution, passed the sentence and convicted the appellant as aforesaid.
4. Mr. Nasiruddin, learned counsel for the appellant contended that the prosecution had completely failed to comply with the mandatory provisions of law and the case against the appellant was not proved beyond reasonable doubt. He contended that Ismail Chand. The alleged bogus purchaser, was not examined by the prosecution and in so far as the evidence of P. Ws. Ata Hussain and Abdur Rehman was concerned the same was contradictory as to the time of arrest of the appellant. He also contended that on the face of it the prosecution had not established any case of sale of foreign exchange against the appellant inasmuch as both the amount of Rs, 500 as well as foreign exchange of 16 were allegedly recovered from the possession of the appellant whereas if the transacion had actually gone through, the amount of 16 ought to ha, a been found in the possession of Ismail Chand. On this premises he submitted that the prosecution had failed to bring home the guilt to the appellant beyond reasonable doubt. There is force in the contention of the learned counsel for the appeliant that in the absence of any evidence of Ismail Chand the very fabric of the prosecution story had broken and further the recovery of 16 not having been made from the possession of the alleged bogus purchaser it was not established that the foreign currency had actuall changed hands which was essential for proof of commission of offence under the Foreign Exchange Regulation Act. According to the prosecution the the appellant had agreed to sell foreign currency at the rate of Rs, 26. 50 per pound and according to calculation the cost of 16 works out to Rs, 424. It was not alleged, much less proved, the prosecution that the appellant had returned the balance amount of Rs, 76 to the bogus purchaser Ismail Chand. This coupled with the fact that the foreign currency was also recovered from the possession of the appellant clearly goes to prove that transaction was not in any manner complete and, therefore, the case of sale of foreign exchange is not established within the meaning of section 4 of the Foreign Exchang Regulation Act. As regards the alleged offence under section 9 of the Foreign Exchange Regulation Act is concerned, the same also has not been conclusively proved because merely coming into possession of foreign exchange by itself does not constitute any offence. Section 9 of the Foreign Exchange Regulation Act lays down that the Central Government may by notification in the official Gazette, order every person in, or resident in, the Provinces and the Federal Territory who owns 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 or to such person, as the State Bank may authorise for the purpose, at such price as the Central Government may fix. The relevant notification issued under section 9 of the Foreign Exchange Regulation Act bearing No, 1 (1)-2-EF/56 dated 1st August, 1956, provides that every citizen of Pakistan who owns or who may hereafter become the owner of any foreign exchange shall before the expiration of one month from the date of this notification or in the case of a person hereafter becoming such owner, within one month of his so becoming, offer such foreign exchange or cause it to be offered for sale to an authorised dealer. In order to succeed in its case, the prosecution was required to strictly comply with the provisions of this notification inasmuch as it should have proved that the appellant after becoming owner of foreign exchange had failed to offer the same for sale within one month of his acquisition, as required in the notification, to an authorised dealer. No attempt was made by the prosecution to prove the same and therefore the case of the prosecution fails on this count also. The story of the defence that 16 were given to the appellant by a foreigner cannot be discarded as improbable because the foreigners who arrive at Karachi, may sometime feel it convenient to part with ready foreign exchange available with them instead of getting it exchanged in local currency and therefore the appellant is entitled to benefit of doubt also.
5. For the reasons mentioned hereinabove, the appeal is accepted, the impugned judgment is set aside and the appellant stands acquitted. He is already on bail and his bail bonds will stand discharged.