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Criminal Appeal No. 58 of 1985, decided on 5th May, 1987.

‑‑‑Ss. 23‑A(6) & 24(4)‑‑Recovery evidence‑‑Appreciation of‑‑Indian currency, (Rs.200) recovered from accused‑‑Evidence of F.I.A. Inspector and one Mashir of ordinary status, a hawker‑witness not resident of locality‑‑Prosecution evidence, held, was not credible‑ Proceedings were one man show and evidence was not sufficient to prove guilt of accused‑‑Acquittal ordered in circumstances.‑ [Recovery Witness].

1978 P Cr. L J 155; P L D 1978 Kar. 117 and 1984 P Cr. L J 2083 ref.

S.Maqsoom Hassan Rizvi for Appellant.

Khan Sanaullah Khan for the State.

Dates of hearing:, 26th, 28th August, 4th, 7th, 21st September, 5th October, 7th and 14th December, 1986

The appellant Alley Hadi has preferred this appeal under section 23‑A (6) of the Foreign Exchange Regulation Act, 1947 (hereinafter abbreviately referred to as the F.E.R. Act) against his conviction for an offence under section 9/23 of the F.E.R. Act and sentence therefor of imprisonment till rising of Court and fine of Rs.1,000 or to suffer R.I. for 3 months in default, awarded by learned Sessions Judge/F.E.R. Tribunal, Karachi by judgment dated 4‑3‑1985 in F.E.R. Case No. 64 of 1984.

Prosecution case against the appellant is that Raja Ajaib Khan, an Inspector F.I.A. State Bank of Pakistan Circle, Karachi, working on information that foreign currency was being sold in front of old building of State Bank of Pakistan, detected him carrying on his person Rs.200 in Indian currency, Rs.10 in Pakistani currency, 4 identity cards and 5 driving licences, in front of old building of State Bank of Pakistan in Karachi city on 30‑8‑1984, in presence of two mashirs Syed Badruddin and Muhammad Saeed. The case under the F.E.R. Act was registered against him. Subsequently, he was challaned in the Court of Sessions Judge/F.E.R. Tribunal, Karachi. He was tried on the charge of an offence punishable under section 9 read with section 23 of the F.E.R. Act, Prosecution examined at the trial Muhammad Saeed Mashir P.W.1 and Raja Ajaib Khan, Inspector F.I.A. P.W.2. Both implicated him that he was found carrying on his person Indian currency Rs.200 and Pakistani currency Rs.10 and some other articles. The appellant denied that he was found carrying Indian currency. He examined one witness Mehdi Hassan in his defence. The learned Sessions Judge/F.E.R. Tribunal held the appellant guilty of the offence punishable under section 23 of the F.E.R. Act and convicted him therefor and awarded him the sentence appealed against.

The learned counsel for the appellant has urged that the appellant was made victim of false implication and the evidence adduced by the prosecution did not prove the case against him as entire case rests on the evidence of only an Inspector of F.I.A. and a Mashir Muhammad Saeed who was just a Hawker. He has next urged that even if it were proved that the appellant was found carrying Indian currency, there was no evidence that he had contravened any provisions of the F.E.R. Act and committed any offence. He has relied upon the cases reported in 1978 P Cr. L J 155; P L D 1978 Kar. 117; 1984 P Cr. L J 2083; 1986 P Cr. L J 1834 and another unreported case of this Court viz. Cr. A No. 72 of 1984 decided on 20‑5‑1986.

The learned counsel for the State has urged that the evidence of Raja Ajaib Khan, Inspector F.I.A. and Muhammad Saeed Masheer does prove that the appellant had in his unauthorised possession the Indian currency Rs.200 and he thereby committed an offence he has been convicted of and sentenced for. According to him, the cases relied upon by the learned counsel for the appellant would not be attracted in view of provisions of subsection (4) of section 24 of the F.E.R. Act, which casts burden on the accused possessing foreign currency that he had not contravened any provisions of the F.E.R. Act. It was this argument which seems to have impressed the learned Tribunal in holding that the appellant had not discharged the burden cast upon him that he had held the Indian currency without contravening the provisions of the F.E.R. Act.

It appears that the provisions of subsection (4) of section 24 of the F.E.R. Act do need consideration as it does not seem to have been considered in the cases relied upon by the learned counsel for the appellant. But it appears that the evidence adduced by the prosecution against the appellant is not so credible as to rely thereupon and maintain the judgment of the learned Tribunal. There is evidence of only Raja Ajaib Khan Inspector F.I.A. and mashir Muhammad Saeed that the appellant was found carrying Indian currency unauthorizedly. Raja Ajaib Khan has stated that he was acting on spy information that foreign currency was being exchanged when he detected the appellant carrying foreign currency. But surprisingly he chose to pick up two mashirs of ordinary status. Muhammad Saeed Mashir was a fountain pen Hawker. His residential address is shown as New Karachi. Another Mashir Badruddin is shown resident of Kasba Colony, Manghopir Road, Karachi and his profession has been shown as cutlery seller. It is obvious that it was only one man's show and the evidence led by the prosecution is not sufficient to prove the guilt of the appellant. Accordingly, the appeal is allowed and the impugned judgment of the learned Tribunal is set aside and the appellant is acquitted. Fine, if paid shall be refunded to him.

S.A./A-158/K Appeal accepted.

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