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Criminal Appeal No. 335 of 1965, decided on 12^th February 1968.

S. 517 read with Foreign Exchange Regulation Act (VII of 1947), Ss. 5 & 23 Accused convicted under S. 23 of Act and sentenced to fine‑Bank drafts and cash amount recovered from personal search of accused not alleged to be connected with commission of crime or proceed of crime‑Order of Tribunal in respect of confiscation of Bank draft and disbursement of amount towards fine imposed‑Held, without jurisdiction.

Talmiz Burney for Appellant.

Mazharullah Hassanally (P. P.) for the State.

Date of hearing : 5^th February 1968.

This criminal appeal is directed against the order dated 22nd September 1965, passed by the learned Sessions Judge, Karachi exercising jurisdiction as a Tribunal under section 23‑A of the Foreign Exchange Regulation.

2. The background of the case is that three cases under the Foreign Exchange Regulation Act, 1947 (VII of 1947) were filed against the appellant Mohd. Salman and his son Jafferali Salman under section 5/23 of the Act by the Deputy Assistant Controller of the Exchange Control Department of the State Bank of Pakistan in that the appellant and his son had in collusion made illegal payments to three residents of Pakistan named in the complaint on behalf of residents of Qatar who resided outside Pakistan and had thus contravened the provisions of section 5(1)(c) of the Act punishable under section 23 of the same Act. It was stated that the appellant and his son had been giver opportunity to furnish explanations which were unsatisfactory, and hence the complaint. When the matter came up for trial the appellant and his son pleaded guilty to the charges levelled against them in consequence of which the appellant was convicted and sentenced in each of the three cases to imprisonment till the rising of the Court and to a fine of Rs. 10,450 in default of payment of fine to suffer R. I. for one month. In the other two cases the fines were of Rs. 6,750 and Rs. 8,700 but the sentences to be suffered in default of payment of fill, were the same namely one month's R. I. It transpired that during the course of investigation the State Bank Police had seized from a search of this appellant Salman Bank Drafts of the value of Rs. 13,830 as at that time the prosecution suspected that the Bank Drafts had been used for the commission of the offence with which the appellant and his son were charged.

This Bank Draft was admittedly appellant's personal property. The appellant was convicted in each of the three cases on the 13^th March 1965 but had applied to the Tribunal that the amount recovered from him in the form of Bank Drafts be returned to him. On the day the appellant was convicted the following order was passed by the learned Sessions Judge and Foreign Exchange Tribunal:

"Appropriate it towards fine after cashing the bank drafts. Notice be sent to the P. P. for hearing."

Thereafter a further order was passed on 16th March directing the bank drafts to be encashed and the money credited towards the fines initially in Case No. 5/65 where a fine of Rs. 8,700 had been levied and the balance in Case No. 4/65 to the extent of Rs. 6,750. After undergoing one month's R. I. in etch of the three cases namely a total period of three months tike appellant filed an application on the 21st August 1965 to the learned Tribunal praying that the amount ordered to be adjusted be refunded to him as he had undergone the sentence of imprisonment in default of payment of fine but this application was rejected, the learned Judge ordering that although the appellant had suffered the full punishment and imprisonment in consequence of his convictions : "Section 517, Cr. P. C. applies to property regarding which an offence appears to have been committed or which has been used for the commission of any offence. The property secured from the accused does not come within this definition. I, therefore, reject his application". It is this order with which the appellant is aggrieved and I have heard Mr. Talmiz Burney for the appellant and Mr. Mazhar Hassanally the learned P. P. for the State. It has been conceded at the Bar by the learned P. P. that the order of the learned Tribunal cannot be sustained and that it is an illegal order. Indeed, on the reasoning on which the learned Tribunal has rejected the application the appellant's prayer should have been granted. The State Bank Official Mr. Butt who filed the complaint against the appellant did not state in evidence that it was not their case in Court during the trial that the Bank Drafts which were secured from the person of this appellant were the proceeds of the grime involved nor section 23 of the F. E. R. Act in respect of tile penalty and the procedure to be adopted refers to a Tribunal being empowered, if it thinks fit in addition to any sentence which it may impose for a contravention of any of the provisions of the Act "direct that any currency, security, gold or silver or goods or other property in respect of which the contravention far taken place shall be confiscated". In the context of these provisions of section 23 of the Act as already stated there is not the slightest averment that the bank drafts form part of the pro perty in respect of which contravention has taken place. The Dy. Assistant Controller of the Exchange Control Department of the, State Bank of Pakistan was present at the time this appeal was hard and conceded through the learned Public Prosecutor that 1I these bank drafts were secured from the person of the appellant and further that a cash amount of Rs.9,160 were secured from the person of Jaffar Salman and neither of these two items come within the purview of the provisions of section 23. In the circumstances, therefore the order of the learned Tribunal in respect of the confiscation of the bank drafts amounting to Rs. 13,830 and its disbursement towards the fine imposed was without jurisdiction. Obviously two points had arisen for consideration which escaped the notice of the Tribunal : (1) whether there was any power in him to pass an order for the recovery of fine after the term of imprisonment in default of its payment had been undergone by the convicted person, and (2) whether the amount recovered on a personal search not being then alleged to be connected with the crime or proceeds of the crime could be ordered to be credited towards the unpaid fine. On both these aspects no consideration has been paid and it has been conceded by the learned P. P. that on both grounds the impugned order was not justified in respect of the appellant as well as his son. Only the appellant has appealed against the order. In the circumstances the appeal is allowed in consequence of which the bank drafts of Rs. 13,830 or if it has been cashed the cash amount of this value should be returned to the appellant in person.

Appeal allowed.

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