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Petition for Special Leave to Appeal No. K‑58 of 1974, decided on 4th March 1975.
(On appeal from the order, of the High Court of Sind & Baluchistan, Karachi, dated 27‑6‑1974, in Criminal Appeal No. 133 of 1973).
‑‑ S. 5(t)(c) read with S. 20(i)(a) and modified notification issue there under on 14‑30‑1963‑Prosecution: neither proving N to be a national or domicile of Pakistan nor showing him to have gone to a foreign country with intent to take up abode outside Pakistan howsoever temporary or provisional‑‑‑Charge of accused having paid a certain amount of Pakistan currency to P on instructions of he V, held not sustainable under S. 5(i)(c) in circumstances.
Muhammad Ali v. State Bank of Pakistan 1973 S C M R 140 ref.
Usman Ghani Rashid, Assistant Advocate‑General (Sind) instructed by M. 1. Memon, Advocate‑on‑Record for Petitioners.
Nemo for Respondent.
Date of hearing : 4th March 1975.
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(i) (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 (1973 S C M R 140). 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 proof 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 Irfanullan 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."
In the instant case the prosecution was neither proved that Najibullah was a national car domicile of Pakistan nor shown that being a national Pakistan, he had gone to Abu Dhabi with the intention o taking up abode outside Pakistan howsoever temporary or provisional it may be vies of this material omission, the High Court was right in setting aside conviction of Hamidullah, respondent, under section (1) (c) of the foreign Exchange Regulation Act.
Leave to appeal is refused.
Leave refused.
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