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Criminal Appeal No. 50 of 1985, decided on 13th October,1986.

‑‑Ss. 4 & 9‑‑Sentence, reduction in‑‑Besides facing a long trial, accused losing small foreign currency, same having been forfeited‑‑Sentence of 3 months' imprisonment reduced to that already undergone, in circumstances.

Dewan Bashir Ahmad for Appellant.

Akhlaq Ahmad Siddiqui for the State.

Date of hearing: 12th October, 1986.

The appellant has been convicted under sections 4 and 9 of the Foreign Exchange Act for the offence of having sold 100 Saudi Riyal at Rs.410 and having in possession 110 U.S. Dollars on 10‑7‑1984. The raid had been arranged by the Sub‑Inspector, F.I.A. State Bank Circle. He had received spy information and then he had procured one Tehseen Ahmad and he had set him up as a bogus purchaser. The search had been made in presence of P.W. Aslam, who had acted as Mashir in search of Tehseen Ahmed at a distance of 300 paces away from the duty free shop at Shahrah‑e‑Faisal and Tehseen Ahmad had contacted the appellant, who had offered to sell Saudi Riyal. He had given him Rs.410 and the appellant had delivered 100 Saudi Riyal. The bogus purchaser, Tehseen Ahmad then gave signal to the F.I.A. and then they reached at the spot and apprehended the accused and found Rs.410 from his person. He also found 110 U.S. Dollars and Rs.9,600 Pakistani currency upon the appellant. And two notes of 50 Saudi Riyal, were produced by Tehseen Ahmad.

2. The appellant was convicted under section 4 for having sold 100 Saudi Riyal to Tehseen Ahmad and he was also convicted for having possessed 110 U.S. Dollars and having not surrendered the same within the required time. It may be stated here that the appellant had taken up the position that nothing had been recovered from him.

3. I have read the evidence with the assistance of Diwan Bashir Ahmed, counsel for the appellant, and Mr. Akhlaq Ahmed Siddiqui, counsel for the State, and I have come to the conclusion that the prosecution has been able to establish that the appellant had actually sold 100 Saudi Riyal to the bogus purchaser, Tehseen Ahmad, and further, that he had possessed 110 U.S. Dollars. It is interesting to find that the appellant has claimed Rs.9,600 Pakistani currency as having been recovered from him, but had denied the finding of 110 Dollars from his person. There is no reason for the prosecution witnesses to involve the appellant in the fate of this case. Anwarul Haq has not been found to be having unanimous against the appellant and merely because he is the Police Officer, his statement cannot be disbelieved. So also having acted twice for the police Tehseen cannot be dubbed as a pet witness of the police. In respect of Mashir, D.W. Aslam, Mr. Dewan Bashir Ahmad contended that he was not a witness worth being believed as he could not distinguish between Dollar and Riyal. I have read the statement of this witness. He is a labourer and 18 years of age and resides in Jacobline and I have come to the conclusion that he appears to be truthful witness. His feeling to distinguish between Dollar and Riyal establishes that he is an innocent witness. He is only being used as a person corroborating the main testimony of Anwarul Haq and Tehseen Ahmad and he has provided the necessary corroboration by stating that when the person of Tehseen Ahmad were first searched, nothing was found from his person and thereafter 100 Saudi Riyal were produced by Tehseen Ahmad, which clearly proves that there was a sale by the appellant to Tehseen Ahmad as otherwise this currency could not have been found from Tehseen Ahmad. So also he is corroborating the finding of Rs.410 twisted money from person of accused/ appellant. Mr. Dewan Bashir Ahmad has, however, contended that the appellant was found with only a small foreign currency and he has lost the same as it has been forfeited and he has further been sentenced to suffer 3 months' R.I. and paid a fine of Rs.2,000. He submits that the sentence is quite harsh under the circumstances particularly the appellant tortured by the long trial and conviction having continued for a long time.

4. Mr. Akhlaq Ahmad for the State has submitted that if the sentence is considered to be harsh then at least fine should be enhanced. I agree with the two propositions of the learned counsels and I have, therefore, issued oral notice of enhancement of fine to the appellant who is present and they have waived the notice.

Consequently, I reduce the substantive sentence of the imprisonment to the one, which has already been undergone by the appellant as he has already remained in custody for two days and has also lost the foreign exchange. The sentence of fine is however, increased from Rs.2,000 to Rs.3,000 and in default of the same, the appellant is directed to suffer R.I. for one month. The appeal of the appellant is, therefore, dismissed, but the sentence is modified as above. The appellant is allowed a week's time to deposit a sum of Rs.3,000 with the Nazir of this Court. He will continue on the same bail till the deposit is duly made by him and once the deposit is made then his bail bond would stand cancelled.

S. G. D. Order accordingly.

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