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Criminal Appeal No. 544 of 1967, decided on 25th May, 1983.

---S. 167-Land Customs Act (XIX of 1924), S. 9-Foreign Exchange Regulation Act (VII of 1947), Ss. 2(d) & 8(2)-Accused arrested while proceeding towards India at a distance of 250 yards from Indo-Pakistan Border having seven Indian Currency notes of denomination of Rs. 100 each-Prosecution witnesses having no reasons to perjure themselves against accused-No inherent infirmity found in their statements-Accused, held, rightly convicted under S. 167, Sea Customs Act.

--S. 167-Land Customs Act (XIX of 1924), S. 9-Foreign Exchange Regulation Act (VII of 1947), S. 9-Offence commit ted by accused more than 16 years ago-Enlarged on bail within a month and a half of his conviction-Sentence of five years' R.I. reduced to six months, in circumstances.-[Sentence].

Petitioner in person.

M. Saleem Shah for the State.

The appellant, Ghulam Muhammad, was convicted by a Magistrate exercising enhanced powers under section 30 of the Code of Criminal Procedure at Lahore of an offence under section 167 of the Sea Customs Act, read with section 9 of the Land Customs Act on 16-8-1967. For the said off.-ace be was sentenced to suffer rigorous imprisonment for a period of five years. He has filed this appeal against his conviction and sentence.

2. According to the prosecution on the night between 7th and 8th of February, 1967 a picket of the Sutlej rangers was patrolling in the area of Post Thatha Dalwan within the jurisdiction of Police Station Manawan. At about 5-00 a.m. the appellant was seen proceeding towards India at a distance of 250 yards from the Indo-Pakistan border. H. was arrested. On his search seven Indian currency notes of the denomination of Rs. 100 each were recovered. He was later challaned for an offence under section 167 of the Sea Customs Act, read with section 9 of the Land Customs Act.

3. The appellant pleaded not guilty to the charge against him. He stated that he had been falsely implicated under some misapprehension. He produced two witnesses in his defence.

4. In support of its case the prosecution examined S.I. Taus Khan (P.W. 1), Sepoy Rasool Jan (P.W. 2) and Lc. Nk. Namdar Khan (P.W. 3). They were all members of the picket and stated that they had arrested the appellant at a distance of 250 yards from the Indo-Pakistan border and that he was carrying seven Indian currency notes of the denomination of Rs. 100 each. It is to be noticed that these witnesses had no reason to prejure themselves against the appellant and there is no inherent infirmity in their testimony. The two defence witnesses examined by the appellant, namely, Shah Muhammad (D. W. 1) and Ashiq Ali (D. W. 2) had no personal knowledge with regard to the circumstances under which the appellant was arrested. As such their evidence does not in any way detract from the credibility of S. I. Taus Khan (P. W. 1), Sepoy Rasool Jan (P. W. 2) and Lc. Nk. Namdar Khan (P. W. 3). I am, therefore, satisfied that the appel lant was arrested while in possession of Indian currency notes in the circumstances described by the prosecution. The time and the place of the arrest and the fact that the appellant had no satisfactory explanation to offer with regard to his presence near the Indo-Pakistan border. I have no hesitation in holding that he intended to smuggle the Indian currency notes to India.

5. Under section 8(2) of the Foreign Exchange Regulation Act no person can without the permission of the State Bank or of a person autho rised by the said Bank take or send out of Pakistan any foreign exchange. The expression "foreign exchange" has been defined by section 2(d) of the same Act to include foreign currency as well. The prohibition created by section 8(2), ibid, is to be deemed to be, under subsection (3) of the same section, a restriction imposed under section 19 of the Sea Customs Act Section 167(8) (a) of the Sea Customs Act makes any attempt to export goods out of Pakistan, the export of which is prohibited or restricted under the Act, to be an offence. This being the position the appellant was rightly convicted by the learned Magistrate of an offence under section 167 of the Sea Customs Act.

6. The question of sentence requires some consideration. The offence was committed by the appellant more than 16 year ago. He was enlarged on bail within a month and a half of his conviction. It will hardly serve the interest of justice if his sentence of five years imprisonment should being now after a lapse of such a long period. Accordingly, I will reduce his sentence to rigorous imprisonment for a period of six months. The appellant may be informed accordingly.

M. A. K. Order accordingly.

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