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Criminal Appeal No. 82 of 1982, decided on 13th November, 1986.

‑‑Ss. 4, 9 & 2.3‑‑Complainant corroborating contents of first information report‑ ‑Mashir who supported complainant in all material particulars not stock witness but independent witness‑‑Other witnesses also truthful and natural‑‑Accused arrested from a public place and fact that foreign currency was secured from his person stood established‑‑Complainant a responsible officer‑‑No enmity alleged against any of prosecution witnesses and their statements remaining unchallenged‑‑Sufficient evidence‑available on record against accused‑‑Conviction maintained, in circumstances.

Mohammad Khan v. Dost Mohammad and 17 others P L D 1975 SC 607 ref.

‑‑Ss. 4, 9 & 23‑‑Conviction‑‑Sentence‑‑Accused facing trial since long and foreign exchange recovered from him seized‑‑Sentence of imprisonment reduced to one already undergone.

Abdul Alim K. Talib for Appellant.

Makhdoom Ashraf Khan Tanoli for the State.

Dates of hearing: 11th and 13th November, 1986.

Report Exh.6 was lodged by Ghulam Hussain, Pakistan Coast Guards under section 4/9, Foreign Exchange Regulations Act read with section 23 of the Act to the effect that the appellant had been dealing in foreign exchange on 31‑3‑1975. At about 1130 hours he alongwith his party and Mashirs went to a place in Federal B' Area near Noor Hospital to purchase the foreign exchange from the appellant. The deal was organised through an informer. The appellant met them. During the course of transaction the appellant offered to sell 3001 American Dollars at Rs.11 per dollar, 200 pounds at Rs.25 per pound and 157 Saudi Arabian Riyals at Rs.3.50 per Riyal. After the settlement of the rate the appellant asked the first informant to show Pakistani currency to him. He opened his brief case and showed the Pakistani currency to him. The accused then took out the above‑mentioned foreign currency from his brief case and offered it to the first informant Major Ghulam Hussain. Ghulam Hussain then disclosed his identity to the appellant and recovered the said foreign exchange from his possession in presence of Mashirs. The report was received by Ghulam Sibtain Inspector F.I.A. recorded by Ziaul Hassan S.P. for investigation. After usual investigation the appellant was sent up to face trial before the Tribunal. The accused ‑did not plead guilty to the charge.

2. At the trial the prosecution examined the first informant Ghulam Hussain as P.W. 1, Mohammad Azeem Mashir as P.W.2 and Ghulam Sibtain, Investigating Officer as P.W.3. The accused in his 342, Cr.P.C. statement denied the allegations. He produced three defence witnesses namely, D.W.1 Mohammad Azam, D.W.2 Himat Ali and D.W.3 Abdul Aziz. The Tribunal after taking into consideration the evidence on record found the appellant guilty under sections 4 and 9 of the Act and punished him under section 23 of the said Act and sentenced him to undergo R.I. for 6 months and pay fine of Rs.2,000 and in default of payment of fine he was sentenced to suffer R.I. for two months more.

3. The complainant Ghulam Hussain corroborated the contents of first information report. The Mashir has supported the complainant in all material particulars. It has been established that the foreign currency was secured from the person of the appellant. The witnesses are natural and truthful. The complainant was responsible officer. No enmity has been alleged against any of the witnesses.

Learned counsel for the appellant has submitted that names of the Mashirs have not been mentioned in the first information report though the recovery has been effected allegedly in presence of the Mashirs. This contention has no force. It has been specifically mentioned that the recovery had been effected in presence of Mashirs. It is not necessary to mention the names of the Mashirs in the first information report. Mashir has appeared as a witness and he has given statement about the facts of the case. The defence has cross‑examined the witnesses but his veracity has not been shattered. The next objection made by the learned counsel for the appellant is that the witnesses have not been secured from the locality. This contention has no force. The search of the house has not been conducted to attract the provisions of section 103, Cr.P.C. Even otherwise it has been held in the case of Mohammad Khan v. Dost Mohammad and 17 others P L D 1975 SC 607 that requirement of section 103 is not absolute in the sense that failure to comply with it will make search illegal. The object is to guard against possible chicanery and concoction. In the present case the Mashir is an independent witness. He is not stock witness of the police or the Coast Guard, therefore, his statement cannot be excluded from consideration. The next objection raised by the learned counsel is that the appellant has been arrested from his house and in support of his contention he has referred to Exs. 19 and 20. In these Exhs. it has been stated that the Major had approached the police for search of a house. After the search has been conducted a report to that effect has been made in the station diary. Learned counsel has submitted that these two exhibits relate to arrest of the appellant from his house. This contention has no force. The appellant has not produced any defence to show that he had been arrested from his house. The defence was rightly excluded by the learned Tribunal. The witnesses have appeared at the trial but they were not confronted with the proposition that the accused had been arrested from his house. It has been categorically stated that the accused has been arrested from near a place in Federal B' Area and this assertion of the prosecution witnesses remained unchallenged. There is sufficient evidence on record and the appellant was rightly convicted. The appellant was sentenced to suffer R.I. for six months and fine of Rs.2,000 and in default of payment of fine he was sentenced to suffer imprisonment for two months more under section 23 of the F.E.R. Act, 1927.

4. Learned counsel for the appellant has submitted that appellant has faced the trial since 1975. The foreign exchange recovered from him has been seized. He was separately tried under the Customs Act. In these circumstances the learned counsel submitted that some lenient view awarding the sentence may be taken.

Keeping in view the above facts the sentence is reduced to already undergone and fine of Rs.2,000 (Rupees two thousand only) in default of payment of fine to suffer R.I. for one month. With this modification in sentence the appeal is dismissed.

M.Y.H./A‑77/K Appeal dismissed.

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