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Petitions for Special Leave to Appeal Nos. K‑34 to K‑36 of 1966, decided on 8th March 1967.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 3rd May 1966, in Criminal Acquittal Appeals Nos. 194, 195 and 196, of 1963).

(a) Constitution of Pakistan (1962),

Art. 58(3) read with Foreign Exchange Regulation Act (VII of 1947), S. 12(2)‑Number of petitions for Special Leave to Appeal by Supreme Court against acquittal of persons prosecuted for failure to repatriate proceeds under S. 12(2) of Act VII of 1947‑State Bank of Pakistan, at time of hearing of petitions, seeking to withdraw one such petition ‑Supreme Court declined to accede to request holding that such action was apt to create unfavourable impression of unequal treat ment under law, contrary to requirement of Art. 2 read with Fundamental Right No. 6 of Constitution.

(b) Foreign Exchange Regulation Act (VII of 1947),

S. 141(2)‑ , Repatriation of proceeds as required under S. 12(2)‑Persons selling up factual plea of inability to repatriate any foreign exchange or any more than what was actually repatriated‑‑Plea examined by Foreign Exchange Tribunal as well as by High Court in appeal and accepted‑Held, Supreme Court would not be justified, in appeal, to further consider the same evidence.

Muhammad Hayat Junejo, Advocate Supreme Court (Hyder Ali Pirzada, Advocate Supreme Court with him) instructed by Abdul Hafeez Memon, Attorney for Petitioner. .

Nemo for Respondents.

Date of hearing : 8th March 1967.

This order will dispose of the under men tioned petitions by the State Bank of Pakistan, seeking leave to appeal against the acquittal of the respondents in each case by the Foreign Exchange Tribunal, Karachi, which was upheld by the High Court in appeal.

(1) PSLA No. K‑34 of 1966. The State Bank of Pakistan

versus

Ismail, son of Usman

(2) PSLA No. K‑35 of 1966. The State Bank of Pakistan

versus

Mustafa Karim and another

(3) PSLA No. K 36 of 1966. The State Bank of Pakistan

versus

R. B. Birdie, son of Bahram

Mr. Muhammad Hayat Junejo has instructions from the State Bank to withdraw the first‑mentioned petition. 'This action is apt to create an unfavourable impression, for the alleged offences are substantially the same, and in the absence of the only valid reason being put forward, viz. that the respondents in the first case has made good the amount of foreign exchange he had contracted to repatriate, there would appear to be unequal treatment under law, which is contrary to the requirement of Article 2 read with the Sixth Fundamental Right.

In each case, the respondent or respondents had contracted to repatriate foreign exchange to be earned by the sale of goods exported from Pakistan under a promise given to the State Bank to so repatriate the proceeds, as required by section 12(2) of the Foreign Exchange Regulation Act. In each case, the accused per son had set up a factual plea of inability to repatriate .any foreign, exchange, or any more than was actually repatriated. These pleas, had been examined by the Tribunal, and had been accepted,' and the High Court, in appeal, had reviewed the evidence, and come to the same conclusion. We are not shown any ground on which further consideration of the same evidence can be justified within the jurisdiction of this Court in criminal matters.

Mr. Muhammad Hayat Junejo seeks to argue that the liability to repatriate was one of absolute obligation. We are unable to accept this view. The law never requires achievement of the impossible as a condition of withholding its sanctions.

The petitions are dismissed. Leave refused.

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