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Criminal Appeals Nos. 72 and 127 of 1986, decided on 26th November, 1986.

‑‑‑Ss. 4, 8, 9, 12 & 23‑‑Alleged illegal dealing in foreign exchange‑ Evidence, admissibility of‑‑Accused allegedly obtaining loan from a foreign national‑‑Only photo copy of receipt of such loan produced‑‑No evidence showing original receipt having been lost or impossibility of its production‑‑Transaction taking place in a foreign country and witness admitting to have not gone there although negotiations allegedly had taken place in his presence but payment of any amount was made in his presence‑‑Witness contradicting himself vis‑a‑vis copy of said receipt‑‑Copy of receipt shown to him first time by F.I.A.‑‑Foreign national allegedly advancing loan, not produced in Court‑‑Photo copy of receipt produced at trial, could not be relied upon and there was no evidence of receiving loan by accused‑‑Prosecution, held, had absolutely failed to bring home charge against the accused in circumstances.

Usman Ghani Rashid for Appellant.

Ayub Khanzada and Abdul Said Khan Ghori for the State.

Date of hearing: 26th November, 1986.

The appellant has been convicted by Sessions Judge and F.E.R. Tribunal South, Karachi, vide his judgment, dated 24‑3‑1986 and sentenced to imprisonment till rising of the Court and to pay a fine of Rs.3,000 or in default to undergo simple imprisonment for 3 months.

2. It is alleged that one Mr. M.A. Hadari a Palestinian National sent a complaint to the President of Pakistan stating therein that the appellant during the stay at Tripoli had borrowed a sum of U.S. dollars 9,254 from him and a part of it was remitted through National Commercial Bank, Tripoli to Messrs Imran Enterprises in Habib Bank, Bunder Road Branch at Karachi. On or about 10‑4‑1980 on the above complaint, the case was registered at Karachi. After usual investigation the appellant was sent up to face his trial and the charge was framed as under:‑---

I, Mukhtar Ahmed Junejo, Sessions Judge and Tribunal F.E.R. Act Karachi do hereby charge you;

Muhammad Yamin Khan son of M.U. Khan as follows:‑---

That you being proprietor of Messrs Imran Enterprises, in the year 1980 participated in the Tripoli International Fair at Tripoli (Libya) with a shipment of Merchandise of the total value of 38,000 U.S. dollars and that during your stay at Tripoli you had on or about 1‑3‑1980 borrowed a sum of 11,054 U.S. dollars and 40 cents, remitted to your account in Habib Bank Limited Bunder Road Branch on or about 10‑4‑1980 through National Commercial Bank Tripoli and that you received from Muhammad Ahmed Hadari at Tripoli (Libya) 9,254 dollars as loan;

And that during the period 1‑3‑1980 to 15‑3‑1980. you sold consignment garments at Tripoli International Fair, which consignment was carried by you from Pakistan to Libya against invoice value of 29, 865 U.S. dollars 87 cents but you realised 37,838 U.S. dollars and 20 cents as sale proceeds which were in excess of the invoice value;

And you accused Muhammad Yamin of Imran Enterprises repatriated a sum of 7,972 U.S. dollars and 33 cents out of the borrowed amount of 9,254 U.S. dollars by covering your under hand dealings of foreign exchange in the shape of realisation of taxes, sale proceeds;

And in the aforesaid manner you illegally dealt with foreign exchange without permission of the State Bank of Pakistan and committed the offences under sections 4, 8, 9 and 12 of Foreign Exchange Regulation Act punishable under section 23 of the said Act and within the cognizance of my Court.

And I hereby direct that you be tried by me on aforesaid charge."

The accused did not plead guilty to the charge.

3. At the trial the prosecution examined B.W.1 Ittefaquddin, P.W.2 Laiq Ahmad and P.W.3 Inspector F.I.A. Raja Ajaib Khan. The accused in his statement under section 342, Cr.P.C. admitted that he had gone to participate in the International Fair at Tripoli with exported merchandise of the total value of U.S. dollars 29,865.87 but the allegations as stated by Mr. M.A. Hadari were denied. The learned trial Judge on the assessment of the evidence came to the conclusion that the appellant has violated the provisions of section 4(I) of the Act and convicted and sentenced him as stated above.

P.W.1 Ittefaquddin is an Officer of the Habib Bank. He is only a formal witness. He has stated that they had received from Jamhoorie Bank Tripoli Libya an amount of 37,838 U.S. dollars and 20 cents in account of Messrs Imran Enterprises.

P.W.2 Laiq Ahmad is the important witness and he has stated that the talks were finalised between the appellant and Mr. Hadari for payment of loan by Mr. Hadari in his presence and according to the agreement Mr. Hadari was to pay Libyan Dinars to the accused and such receipt was executed in advance and the witness had signed it. Exh.9 was placed on record. It is a photostat copy of the original receipt, which was not produced and an objection was taken by the learned counsel about the admissibility of this document but this objection was not decided by the trial Court. Original receipt has not been produced and there is no evidence that the original receipt had been lost or could not be produced, therefore, the secondary evidence of the original receipt may be taken into consideration. No reliance can be placed on this photostat copy of the receipt. Even otherwise it is stated by P.W.1 that Mr. Hadari was to pay Libyan Dinars but Exh. 9, the alleged receipt shows that amount was to be paid in U .S. dollars. The witness has stated that the negotiations took place after 20‑3‑1980 but the receipt is, dated 1‑3‑1980. Thus, the witness has contradicted himself. According to the receipt the transaction took place at Saudi Arabia Taif and the witness has admitted that he had not gone to Taif.' The witness has further admitted that only negotiations took place between the accused and Mr. Hadari in his presence but there was no payment of any amount in his presence by Mr. Hadari to the accused. He has also admitted that Exh.9 was shown to him for the first time by the F.I.A. during investigation. Thus, there is no evidence that the loan was received by the appellant from Mr. Hadari. Mr. Hadari has not been examined as a witness. The appellant in his statement under 'section 342, Cr.P.C. has denied the prosecution allegations.

4. As the prosecution has absolutely failed to him home the charge against the appellant, the appeal is accepted and the conviction and sentences recorded against the appellant are set aside. The appeal filed by the State for enhancement of the sentence is consequently rejected. The amount of fine, if paid by the appellant be returned to him.

S. A. Appeal accepted.

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