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Criminal Appeal No. 417 of 1966, decided on 28th May 1969.

S. 23--- Conviction under section‑Non‑repatriation of sale proceeds to be established as wilful and deliberate‑Question whether non- repatriation wilful and deliberate‑Dependent on facts of each case‑Devious tactics adopted by person to defer or avoid payment of foreign exchange proceeds within prescribed period or thereafter within time allowed by State Bank‑Offence under S. 23 complete.

It is true that in order to convict a person under section 23 of the Foreign Exchange Regulation Act, 1947 for non‑repatriation of the sale proceeds it should be established that the non‑repatria tion was wilful and deliberate. This matter requires consideration of facts in each case. The question as to whether the non- repatriation is deliberate or intentional shall be decided by its own facts. Where the evidence on record showed that the accused did not repatriate the foreign exchange proceeds of the goods exported to India within the prescribed period or thereafter in spite of several notices issued to him it was held that an offence punishable under section 23 of the Act was complete when the repatriation of the sale proceeds was not made within the prescribed period or the time extended by the State Bank according to law.

M. A. Jabbar Chowdhury v. The State P L D 1964 Dacca 20 distinguished.

Kalipada Saha v. The State P L D 1959 Dacca 723 ref.

, S. 23 --Complaint regarding offence under section‑State Bank no better than a private complainant‑State Bank's lawyer cannot act as public prosecutor‑State Bank has no right to any notice under S. 422, Cr. P. C. nor to appear under S. 423, Cr. P. C. in criminal appeal filed by person convicted for offence under Foreign Exchange Regulation Act, 1947‑Dual representation, in prosecution of cases, by State as well as by State Bank‑‑Held, unnecessary drain on public exchequer.

It is true that under the Foreign Exchange Regulation Act, 1947 the State Bank of Pakistan has been delegated some powers but that does not put the State Bank in the position of a State in all matters. Thus the status of the State Bank of Pakistan in a criminal proceeding is no better than a private complainant. The complainant's lawyer cannot take up the job of public prosecution nor act as a public prosecutor. He cannot also do the dual functions of the State lawyer as well as State Bank lawyer in the same breath. The State Bank of Pakistan has no right to get any notice under section 422 of the Code of Criminal Procedure nor to appear under section 423 of the Code of Criminal Procedure before the High Court in a criminal appeal filed by the accused against the order of conviction and sentence passed by a Tribunal. It has also no right to file any appeal before the High Court against an order of acquittal made by the Tribunal under the Foreign Exchange Regulation Act. All these are the statutory functions of the public prosecutor and the State lawyer.

M. Lutfur Rahman v. State P L D 1961 Dacca 585 ref.

A. S. M. Shamsuzzaman for Appellant.

Muhammad Ali for the State.

Ruhul Islam with M. R. Khan for the State Bank of Pakistan.

Appellant Nowman Hussain alias Nowan Hussain was convicted under section 23 of the Foreign Exchange Regulation Act, 1947 and sentenced to pay a fine of Rs. 38,000, in default to suffer rigorous imprisonment for two years by the Additional Sessions Judge, 1st Court and Ex‑Officio Foreign Exchange Regulation Tribunal, Sylhet.

The prosecution case, in short, is that the accused Nowan Hussain exported dry fish to India through his constituted attorney, one Muktarul Huq through the Land Customs Station, Sylhet on or about 11th July 1962, 19th October 1962 and 18th October 1962, under 1. R. P. 1.‑1 Nos. KA 032111 (Exh. 8) KA 032273 (Exh. 12) and KA 032272 (Exh. 10) respectively valued at Rs. 13,071 Rs. 16,682 and Rs. 19,845 as per corresponding export Applica tions Nos. 49 dated 11‑7‑62 (Exh. 7), 599 dated 19‑10‑62 (Exh. 11) and 594 dated 18‑10‑62 (Exh. 9). These goods were despatched to India and duly reached there. But the accused did not repatriate the foreign exchange proceeds i.e. the sale proceeds of the goods exported to India through the medium of authorised dealer in Pakistan as prescribed and thus contravened the provisions of section 12 of the Foreign Exchange Regulation Act and committed an offence punishable under section 23 of the said Act.

The State Bank of Pakistan after giving opportunity to the accused by issuing registered notices lodged complaint against him before the Foreign Exchange Regulation Tribunal, Sylhet constituted under the Foreign Exchange Regulation Act on the above allegations. The accused was thus put on trial before the, Additional Sessions Judge, 1st Court, and Ex‑Officio Foreign Exchange Regulation Tribunal, Sylhet to meet three separate charges under section 23 of the said Act.

The plea of the accused was one of innocence. His, defence, in short, was that he did not export the goods in question and as such he was not answerable to those charges.

9 P. Ws. and no D. W. were examined in the case. A number of documents were also produced before the Court. The learned Additional Sessions Judge and Ex‑Officio Tribunal considering the evidence and materials on record, convicted and sentenced the accused appellant in the case as stated above. Being aggrieved thereby he has preferred this appeal before this Court.

Mr. Shamsuzzaman, the learned Advocate appearing for the appellant has contended that the export bill in respect of the consignment covered by I. R. P.‑1 (Exh. 8) and export application (Exh. 7) for Rs. 13,071 having already been deposited by the consignee in an Indian Bank in Karimganj and the accused having not been a party to the other two consignments, he cannot be made criminally liable for violation of provisions of section 12 of the said Act and as such his conviction and sentence under section 23 of the Foreign Exchange Regulation Act are bad in law.

P. W. 1, the Deputy Assistant Controller, Exchange Control Department, State Bank of Pakistan, Dacca is the complainant in the case. He has been duly empowered by the State Bank of Pakistan to lodge complaint before the Tribunal for contra vention of the provisions of Foreign Exchange Regulation Act. He has said in his deposition that before filing the complaint he issued notices to the accused under section 23(3) of the said Act by registered post and those were duly served on him. He has proved the office copy of the notice and the postal acknowledgment receipt Exh. 2(1) which bears the signature of the accused. He has also proved the explanation, Exh. 3 submitted by the accused in reply to the above notices. He has further proved Exhs. 4 and 6, the two other replies made by the accused in this behalf.

P. W. 5, an employee of the Habib Bank, Sylhet has proved the I. R. P. 1 (Exh. 8) issued from his office under signature of one Mr. A. Rashid. He has proved the signature of accused Nowman Hussain, Exh. 8(1) and also the corresponding export application Exh. 7 and the signature of the accused thereon. He has also proved the 1. R. P. 1, Exh. 10 and the corresponding export application Exh. 9. He has similarly proved the I. R. P. 1 form, Exh. 12 and the corresponding export application Exh. 11. The Exhs. 9, 10, 11 and 12 were signed by the accused's constituted attorney Mutarul Huq.

P. W. 8, a record keeper of the local D. S. R's office has proved two powers‑of‑attorney Exhs. 14 and 14(l) executed by accused Nowman Hussain in favour of said Muktarul Huq. Exh. 14(1) was executed on the expiry of the term of Exh. 14. These documents show that the accused was the possessor of an Export Registration Certificate No. E/003214 issued by the Chief Controller of Imports and Exports, Government of Pakistan for the purpose of exporting all sorts of fish etc. All the relevant export applications and the I. R. P.‑1 Forms Exhs. 7 to 12 bear the same Export Registration Certificate numbers.

P. W. 4, a Land Customs Inspector has stated in his deposition that on 11‑7‑62 he examined the consignment covered by Exhs. 7 and 8 in the premises of accused Nowman Hussain at Sheikhghat, Sylhet. He noticed in all 150 bags of dry fish. These goods were taken to Sylhet Railway Station by truck. On the same date the goods were booked and loaded in the wagon which was sealed by him. He thereafter issued a certificate to the effect that the consignment was despatched to Karimganj in India via Latu. He has also proved the signature of accused Nowman Hussain on Exhs. 7 and 8.

P. W. 6, another Inspector of Land Customs has stated in his deposition that on 18‑10‑62 he verified the goods covered by export application Exh. 9 and 1. R. P. 1 Exh. 10 at Sheikhghat and after loading of the goods in the railway wagon at Sylhet Railway Station, he sealed the wagon for despatch to India via Latu. He has also proved the certificate Exh. 9(5) issued by him in this respect. The witness has further stated that on 19‑10‑62 he verified the goods covered by Exhs. 11 and 12 at Sheikhghat and the goods were taken to Sylhet Railway Station by truck and booked in wagon on the same date for despatch to India via Latu. After completion of the booking and sealing of the wagon, he issued the certificate Exh. 11(4) in that behalf.

P. W. 7, a clerk of the local clearing agent has stated that he filled up the export applications and I. R. P. 1 Forms Exhs. 7, 8, 9, 10, 11 and 12 on behalf of the accused. He was pre sent at the time of verification of the goods at the premises of the accused and also at the time of loading of the same in railway wagon. He presented all these applications and 1. R. P. 1 Forms to the Custom Officers on the relevant dates.

The evidence thus discussed above prove beyond reasonable doubt that the consignments were duly despatched to India and those reached the consignee at Karimganj in India. The accused does not challenge this fact. The export bills submitted by the accused through his constituted attorney give clear support to this finding.

The Export Registration Certificate No. E/003214 issued by the Chief Controller of Exports and Imports, Government of Pakistan in favour of the accused shows that accused Nowman Hussain himself is the exporter. Exhs. 14 and 14(1) show that Mutarul Huq is his mere constituted attorney and he is just to carry out the orders and directions of the exporter Nowman Hussain in relation thereto. The Exhs. 7 and 8 bear the signatures of the accused himself. Although the Exhs. 9 to 12 bear the signa tures of the constituted attorney the fact remains that the consign ments covered by those Exhs. were despatched to India on the basis of Export Registration Certificate No. E/003214 standing in the name of the exporter Nowman Hussain. The constituted attorney just carried out the orders of the exporter in terms of the power -of‑attorney and his mere signatures do not mean that he himself was the exporter in these consignments. The Export Registration Certificate standing in the name of the accused the constituted attorney cannot despatch the goods without the knowledge and consent of his master. The constituted attorney, in the circum stances, might be an abettor in the deals but that does not exonerate the accused from his responsibility.

P. Ws. 4, 6 and 7 found all the goods covered by Exhs. 7to 12 in the premises of the accused at Sheikhghat. Verification of the goods by the Customs Officers took place in the said premises of the accused. In the face of these evidence, it does not lie in the mouth of the accused that he did not export the relevant consignments to India.

The accused received the statutory notices issued under section 23(3) of the Act personally. He submitted explanation Exh. 3 in reply to those notices. Curiously enough he never raised any plea in his explanation that he did not despatch the goods of the 2nd and 3rd consignments and those were despatched behind his back, without his consent and knowledge by the constituted attorney Maktarul Huq. In the letters Exhs. 4 and 6 also he did not make any such grievance. There is not an iota of evidence on record that Muktarul Huq despatched those two consignments at his own responsibility and that it was for solely due to the constituted attorney the export proceeds could not be repatriated so long. It is, therefore, clear that the plea now taken by the accused is nothing but a myth.

The conduct of the accused gives an indication of his mind. The evidence on record, as indicated earlier has proved beyond reasonable doubt that the accused himself was the exporter of all the consignments. But now to save his skin he wants to shift the responsibility on the shoulder of the constituted attorney who was merely doing a job under the control. This is a deliberate attempt to avoid repatriation of the sale proceeds of the goods despatched to India by throwing blame on Muktarul Huq.

The export bills against the consignments covered by Exhs. 10 and 12 were presented, as P. W. 5 says, to the dealing Bank long beyond the prescribed period. The State Bank of Pakistan waited for long. They have given enough opportunity to the accused for repatriation of the sale proceeds. The explanation given by the accused through his authorised agent is simply evasive. The accused never made any complaint to the State Bank or to any other authority that his counter part in India was trying to delay payment for avoid repatriation of the sale proceeds. All these things speak volume against the conduct of the accused and in the circumstances it may be presumed that the accused had complicity with his Indian counter part for delaying or avoiding the repatriation of export proceeds beyond, the prescribed period.

It is true that in order to convict a person under section 23 for non‑repatriation of the sale proceeds it should be established that the non‑repatriation was wilful and deliberate. This matter requires consideration of facts. In each case, the question as to whether the non‑repatriation is deliberate or intentional shall be decided by its own facts. In this case as indicated earlier, the tactics adopted by the accused give a clear indication that he wanted to defer or avoid payment of the foreign exchange proceeds within the prescribed period and there was undoubtedly a deliberate and wilful attempt not to repatriate the sale proceeds of the consignments despatched to India. The case of M. A. Jabbar Chowdhury v. The State (P L D 1964 Dacca 20) relied on by the learned Advocate does not therefore, help the accused appellant.

The evidence of P. Ws. 1 and 5 show that the accused did not repatriate the foreign exchange proceeds of the goods exported to India within the prescribed period or thereafter in spite of several notices issued to him. An offence punishable under g section 23 of the Act was complete when the repatriation of the sale proceeds was not made within the prescribed period or the time extended by the State Bank according to law. This view, receives support from the case of Kalipada Saha v. The State (P L D 1959 Dacca 723).

Thus taking an over all view of the entire evidence and materials on record, I think that the charge against the accused has been established beyond all reasonable doubt and he has been rightly convicted in the case.

The evidence of P. W. 5 and the Exh. A show that the sale proceeds against the consignment covered Exhs. 7 and 8 had already been deposited by the Indian consignee to an Indian Bank at Karimganj. That being the position, in my opinion the accused cannot be safely held responsible for the sale proceeds so far that consignment is concerned, although the money has not yet been repatriated in Pakistan. Consider ing this aspect of the matter. I think his sentence with regard to payment of fine should be slightly modified and accordingly his sentence of fine is reduced to Rs. 36,527 only. The position, therefore, is that he is sentenced to pay a fine of Rs. 36,527 in default to suffer rigorous imprisonment for two years.

The appeal is thus dismissed with the slight modification of senesce as indicated above.

Before I part with the matter, I think, I should say some thing about the dual representations of the prosecution case by the State and the State Bank. Both the State and the State Bank of Pakistan have entered appearance in the case on behalf of the prosecution. Similar appearance are made in all cases coming under the Foreign Exchange Regulation Act, 1947. It is not clear to me under what provisions of law two different sets of Advocates are engaged by two different agencies to conduct the same prosecution at the cost of huge expenditure out of the Public Exchequer.

Let us see the legal position of this matter. Under Chap ter XXXI of the Code of Criminal Procedure it is only the accused or the Provincial Government which may prefer an appeal before the appellate Court against an appealable order. The accused prefers an appeal against the order of conviction and the Provincial Government prefers an appeal against the order of acquittal. If the appellate Court does not dismiss the appeal summarily, it shall cause notice to be given to the appellant or his pleader or to such officer as the Provincial Government may appoint in this behalf.

Section 422 of the Code of Criminal Procedure provides for issuance of notices by the Court. It seems, the first part of this section speaks of appeal by the accused and the second part speaks of appeal by the Government. This is the only section under which the appellate Court shall issue notices to the parties. It shows, if the appeal is filed by the accused a notice shall be given to the accused‑appellant or his pleader and to such officer as the Provincial Government may appoint in this behalf and alternatively if the appeal is filed by the Provincial Government the notice shall be given to the accused. In any case under section 422 of the Code of Criminal Procedure the notices of an appeal shall be given to the accused- appellant and the officer of the Provincial Government only and not to any other organisation or authority.

Section 423 of the Code of Criminal Procedure shows that the complainant is nowhere in the picture at all. Under the provisions of this section it is the public prosecutor who is required to be heard by the Court. The Court may, however, in its discretion hear the complainant but there is no hard and fast rule that the complainant be allowed a hearing or is entitled to be heard in law. It will, therefore, be seen that the statute has made it obligatory to hear the public prosecutor, if he appears. It is also in consonance with the general principle that no private party can be interested in upholding conviction. That is why the State is entitled to be served with a notice and be heard and no other party is so entitled to a notice and be heard in the appellate stage.

Section 417 of the Code of Criminal Procedure empowers only the Provincial Government and none else to prefer an appeal against an order of acquittal. The Foreign Exchange Regulation Act, 1947 though has made provisions for appeal against the order of Tribunal it seems doubtful whether the State Bank of Pakistan can at all prefer an appeal against the order of acquittal contravening the provisions of section 417 of the Code of Criminal Procedure.

The Provincial Government has substantive right under section 417, Cr. P. C. to prefer an appeal against the order of acquittal and this right cannot be taken away by the Foreign Exchange Regulation Act and the Rules framed thereunder. Whatever may be the provisions of the Foreign Exchange Regula tions Act, it cannot affect the provisions of the substantive law of the country. It is true that under the Foreign Exchange Regulation Act, the State Bank of Pakistan has been delegated some powers but that does not put the State Bank in the position of a State in all matters. Thus the status of the State Bank of Pakistan in a criminal proceeding is no better than a private complainant. The complainant's lawyer cannot take up the job of public prosecution nor act as a public prosecutor. He cannot also do the dual functions of the State lawyer as well as State Bank lawyer in the same breath. The case of M. Lutfur Rahman v. State (P L D 1961 Dacca 585) supports the above view.

The duty of effective and impartial prosecution in all criminal cases devolves on the State. Sections 492 to 495 of the Code of Criminal Procedure provide for unrestricted power of the State to appoint a public prosecutor, to withdraw a pend ing case and to accord permission to conduct prosecution to any person even though the private complainant has been diligently prosecuting his case in the Court. This is in consonance with the general principle that the offence has to be dealt with as an invasion of public peace and not as a mere contention between the complainant and the accused and it is for that reason that in criminal cases the State through the public prosecutor is the party and not the complainant. The com plainant is never a prosecutor in the eye of law. Therefore, the State cannot abdicate its function of administration of justice in favour of the complainant.

Like section 23‑A (6) of the Foreign Exchange Regulation Act there are also sections in the Prevention of Corruption Act, Pakistan Criminal Law Amendment Act, Sea Customs Act and other Special Acts making provisions for preferring appeals before the High Court. Appeals are usually filed before the High Court against orders of conviction or acquittal under those Special Acts but in all those appeals whether against conviction or acquittal, the State represents the prosecution before the High Court and the State lawyer appears in those cases, as a matter of right, without any interference from any quarter. This being the consistent position, why there should be departure in the cases under the Foreign Exchange Regulation Act.

In my opinion the State Bank of Pakistan has no right to get any notice under section 422 of the Code of Criminal Procedure nor to appear under section 423 of the Code of Criminal Procedure before the High Court in a criminal appeal filed by the accused against the order of conviction and sentence passed by a Tribunal. She has also no right to file any appeal before the High Court against an order of acquittal made by the Tribunal under the Foreign Exchange Regulation Act. All these are the statutory functions of the public prosecutor and the State lawyer.

When the Provincial Government is taking all responsibilities of these appeals and representing the cases before the appellate Court through their lawyers, the State Bank of Pakistan has no business to send another lawyer before the High Court to argue the same thing. The State Bank lawyer may come just to assist the State lawyer with the permission of the Court.

In this connection, I called the learned Advocate‑General to enlighten me on the point and the learned Advocate‑General expressed the view that the status of the State Bank of Pakistan in a criminal proceeding under the Foreign Exchange Regula tion Act is no better than a private complainant and the State Bank lawyer may appear in such cases at the appellate stage, at best to assist the State lawyer with the permission of the Court.

It is strange that since the inception of the Foreign Exchange Regulation Act, double representations of the prosecution case by the state and the State Bank are always made at the huge cost of the public money and nobody is taking any notice of it. In my opinion the practice of such dual representa tions at double expenses should be discontinued for the sake of public interest. The Government and the State Bank may consider the situation and make an amicable solution of the problem.

Let the extracts of the relevant portion of the Judgment be sent to the Chief Secretary of the Provincial Government, East Pakistan and the State Bank of Pakistan, Dacca.

Order accordingly.

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