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Criminal Appeal'No.302 of 1980, decided on 12th May, 1986.

‑‑‑S.12/23‑‑Foreign exchange‑‑Delay in repatriation‑‑No evidence available in support of prosecution in case that accused was responsible for delay in repatriation of foreign exchange‑‑Co‑accused who had been acquitted was partner of firm with accused and his case was not distinguishable from that of accused‑‑Acquittal of co‑accused was bound to react on case of accused‑‑Fact that every penny due on export repatriated indicative of fact that persons running firm were vigilant and not, dishonest‑‑Accused continued to pursue matter regarding repatriation and could not be stated to have conspired with foreign consignee for delaying repatriation‑‑Non‑repatriation involved in case beyond his control‑‑Accused acquitted for charge in circumstances.

State Bank of Pakistan, Dacca v. Sh. Mahboobur another 1971 S C M R 642 rel.

Diwan Bashir Ahmed for Appellant.

A.A. Muhammadally, A.A.‑G. for the State.

Date of hearing: 12th May 1986.

This appeal is from the judgment of Sessions Judge/F.E.R. Tribunal Karachi, dated 5th November, 1980, whereby appellant Kama] Ahmed was convicted under sections 12/23, Foreign Exchange Regulatior Act, 1947 apd sentenced to imprisonment till rising of Court and fin( of Rs.5,000 or in default of payment of fine to suffer S.I. for this months.

The prosecution case is that the firm working in the name and style of Messrs M.A. Footweat Industries, Karachi (hereinafter referred as the said firm) exported 200 cases of leather shoes to London vide G.R.P. Form No.782599, dated 17‑4‑1968. The appellant and co‑accused Rafiq Ahmed who has since been acquitted by the aforesaid judgment were partners of the said firm when it entered into above transaction of export. As per undertaking given by the said firm the foreign exchange to be earned on the export of the leather shoes was to be repatriated within 'four months from the date of shipment. The total value of the goods exported by the firm was L 5,280 However, only L 2,000 were repatriated by 30‑6‑1973. Further amounts of b 900 and 2,380 were respectively received on 14‑5‑1984 and 14‑7‑1985 i.e. much after filing of the present appeal. However, since the repatriation of the foreign exchange due on the export transaction entered into by the said firm was not made in the terms of the undertaking given by the firm, the matter was reported to F.1 A. and after usual investigation the appellant and co‑accused Rafiq Ahmed were placed on trial in the Court of law.

After considering the evidence on record the learned Sessions Judge/F.E.R. Tribunal while acquitting co7accused Rafiq Ahmed convicted the appellant as mentioned above and hence this appeal. It is an admitted position that the entire amount of foreign exchange earned on the export transaction entered into by the said firm has been repatriated but the repatriation is not made within the period stipulated in the undertaking given by the firm. The question would, therefore, arise if the delay in repatriation was intentional and if so it was made by the appellant in collusion with the foreign consignee.

I have examined the material available on record in the light of the impugned judgment, and have also heard the arguments addressed at the Bar. I find no evidence to support the prosecution case that the repatriation of the foreign exchange was delayed deliberately, and that the appellant is responsible for such delay First of all if the punishment was to be based on the ground of the intentional delay made in the repatriation of the foreign exchange then the appellant alone was not responsible; It was said firm which was to blame. The firm means both the partners the appellant as well as co‑accused acquitted by the trial Court. In fact it was co‑accused who had been dealing with the matter on behalf of‑ the firm. The appellant's allegations are that the co‑accused took away important documents of the firm after its dissolution. The allegations may not be true but there is also no evidence that following the dissolution of the firm every paper relating to the affairs of the firm came into possession of the appellant Therefore I am of the view that the trial Court was wrong in distinguishing the case of the appellant from that of the co‑accused. Accordingly the acquittal of the co‑accused is bound to react on the case of the appellant.

Reverting to merits of the case it may be observed that the factl that every penny due on the export has been repatriated, is indicative of the fact that the persons running the said firm were vigilant inasmuch as that they did not spare them efforts until the full amount of foreign money was repatriated. Surely this cannot be regarded as the case of dishonest intention. Further more since the remaining amount of foreign exchange was repatriated after the dissolution of the said firm and during pendency of this appeal the presumption would be that it was the appellant who continued to pursue the matter until he obtained the results. Thus the appellant cannot be held in such circumstances to have‑conspired with the foreign consignee for delaying the repatriation. It appears to me that non‑repatriation of the foreign exchange involved in the case was due to circumstances beyond the control of the appellant. Mr. A.A. Muhammadauy, A.A.‑G. appearing on behalf of the State Bank frankly conceded to the above position and did not oppose the appeal.

I am also referred to unreported judgment of this Court given in Criminal Appeal No.303 of 1980. The facts of the said Appeal are on all fours with the facts of the present case. In fact the 'above case was against the present appellant, who was acquitted in that case. Reasoning adopted therein is applicable in the present case. Reliance is also placed on the case of the State Bank of Pakistan. Dacca v . Sh. Mahboobur Rehman and another 1971 S C M R 642 which also clearly supports the case of the appellant as represented by his learned counsel.

For above reasons the appeal is allowed and the appellant is acquitted of the charge. The amount of fine if already paid by him may be refunded to the appellant. Suo motu notice issued by this Court for enhancement of the sentence also stands, discharged.

M Y.H. Appeal allowed.

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