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Criminal Appeal No.240 of 1986, decided on 16th July, 1987.

---Ss.12 & 23--Non-realization of export proceeds--Prosecution case proved through witnesses beyond doubt--Overwhelming ocular and documentary evidence, existing against accused, remained unshaken--Accused admitted most of allegations in their statements--Finding of trial Court based on proper appreciation of evidence which was not challenged by counsel for accused who prayed only for reduction in sentence--Conviction of accused maintained.

---Ss.12 & 23--Sentence--Accused, a respectable businessman and had undergone agony of protracted trial--Substantive sentence of accused reduced to one already undergone.

Dewan Bashir Ahmad for Appellants.

Hayat Qureshi for the State.

The appellants were charged under section 12 read with section 23 of the Foreign Exchange Regulation Act, 1947, and were tried before the learned Sessions Judge and Tribunal Foreign Exchange Regulation Act, Karachi (South), who has convicted and sentenced the appellant No. 1 to suffer simple imprisonment for three months, and to pay fine of Rs.5,000 in default to undergo simple imprisonment for one month more, and the appellant No. 2 has been sentenced to pay a fine of Rs.5,000 or in default to undergo S.I. for one month vide judgment dated 4th December, 1986.

The brief facts of the prosecution case are that on 24-5-1985, Mr. Muhammad Sharif, P.D. Director, Exchange Control Department, State Bank of Pakistan, Karachi, sent a written report to Inspector F. I. A., S. B. C. Karachi, alleging therein that in July 1982, M/s. Silver Unicorn Limited, Hotel Metropole, Room No.123/14,- Exported Hand knitted Woollen Carpets to Saudi Arabia valued at U.S. Dollar 14,264. That under the Rules, they were required to repatriate the sale proceeds within a period of four months from the date of shipment. They, however, failed to repatriate the entire sale proceeds and the entire amount was outstanding against the said firm. A show-cause notice was issued to the said Firm by the State Bank of Pakistan on 22-3-1983 regarding non-realisation of exports proceeds their explanation was not received, hence, the matter was referred to Agency for investigation. On receipt of the above complaint, the matter investigated and after due inquiry it was revealed that the appellants/ accused Muhammad Nasim Qureshi, Surayya Nasim Qureshi, and one Mr. Tanveer Javed Qureshi, the proprietors and the partners of the above firm have not realised the above amount. Since the above facts disclosed non-repatriation as mentioned above by the above three accused and as such, they had committed offence under section 12 of the Foreign Exchange Regulation Act, 1947 punishable under section 23 of the said Act. Therefore, under the orders of the Deputy Director F . I . A , S . R . C . Karachi, the case was registered against the accused by Mirza Nabi Jab Baig Inspector F. I . A . , S. B.C. Karachi on 26-5-1985.

Since accused Tanvir absconded, therefore, a formal charge was framed, against the present appellants who pleaded not guilty.

2. At the trial, the prosecution examined Abdul Latif P. W. 1, he had introduced accused /appellants for opening their account in H.B.D. Nursery Branch, Karachi. The photostat copy of account opening Form of the account of M/s. Silver Unicorn Limited produced as Ex.7, which bears his signature. This witness was not cross examined by the defence.

Muhammad Sharif P. W. 2 has deposed that he was working as Assistant Director, Exchange Control Department, State Bank of Pakistan at Karachi, M/s. Unicorn Limited was registered firm of export, having export registration No. WO-4003 from C.C.L.& E, Karachi. He has produced "E" Form of the firm as Ex. 10. Under which the Firm had exported hand knitted woollen carpets to Riyadh. Saudi Arabia at the invoice value of U.S. Dollar 14,264. The goods were sent through ship on 26-2-1982. According to the Foreign Exchange Regulation Rules the Exporters had to repatriate the sale proceeds of the goods within four months from the date of shipment, but the firm failed to do so. The entire sale proceeds were still outstanding. He gave notices to the firm which have been produced as Ex.11 and Ex.12, but no reply was received from the firm. He has also produced the photostat copy of the postal-receipt as Ex.13 on 24-5-1984. He filed a complaint with F.I.A. which was produced as Ex 14. He had produced the "E" Form and the photostat of postal receipt to the Investigating Officer in this case. In cross-examination he has depose that his office did not receive the postal A.D. receipt of the notice sent to the firm. Ex.13 does not show the address of the firm by the name. He was in possession of documentary evidence from Habib Bank Ltd. to show that goods had reached the consignee. The H. B Ltd. was the Banker of the Exporters. The sale proceeds had to be repatriated through H.B. Ltd. He denied a suggestion that the period of four months was to be counted from the date when the goods were delivered to the consignee.

Nazir Ahmed P.W. 3 has deposed that he was Vice-President, in Habib Bank Ltd. The firm of M/s. Silver Unicorn had exported Goods to Riyadh Saudi Arabia for the invoice value of U.S. dollars 14,264. Firm has failed uptilnow to repatriate the sale proceeds. The Directors of the firm according to the documents are Mr.&.Mrs. Nasir;r Qureshi, and Tanvir Qureshi. Their branch had been writing to the firm of the accused for the repatriation of the sale proceedings. The letters issued by the bank 'were produced as Exs.17 to 23. He hay also produced the reply of 'the firm as Ex.24. The documents of the transaction were sent to Saudia through National Commercial Bank. Riyadh. Their bank received a reply dated 21-2-1984 which was produced by him as Ex. 25, alongwith letter Ex.25. The Bank had enclosed photostat copy of a1etter of accused Muhammad Nasim Qureshi showing that he himself received goods on behalf of the firm in Saudia. This letter was produced as Ex.26. Similar letter alongwith writing of the accused were received from the National Commercial Bank which were produced by him as Exs.27 and 28. He also produced photostat copy of a letter sent by the accused Muhammad Nasim, Qureshi to the same effect as Ex.29.

Abdul Sattar P.W. 4 has deposed that he was serving as an Officer in Habib Bank Cloth Market Branch. In 1982 he was serving in Nursery Branch. According to him Ex.7 was account opening form of M/s. Silver Unicorn. He-has produced photostat copy of the minute of the meeting dated 27th May, 1981 passed by the firm as Ex.31. According to him 'E' Form Ex.10 was certified by him on 17-6-1982. It was also signed by Manager Shahid Hussain. The signature of Mrs.Nasim Qureshi on (E) Form was attested by the Bank Officer Mr. Dara. The firm had exported Goods mentioned in Form 'E' valued at 14,264 of U.S. dollars.

Bashir Ahmed Bhutta P.W. 5 had deposed that in March, 1986 he was posted as Inspector in F.I.A. State Bank Circle. On transfer of Inspector Nabi Jan Baig he was entrusted with further investigation of this case. Three accused were shown as absconders in the challan. He arrested accused Nasim Qureshi on 13-3-1980. Mrs. Nasim Qureshi was granted pre-arrest bail by the Court. The third accused was still absconding. He recorded further statements of the witnesses verified the investigation, and submitted challan in the Court.

Mirza Nabi Jan Baig P. W.6 has deposed that on 21-5-1985 he was posted as Inspector F.I.A. (SBC). On that day he received orders from Dy. Director for registration of case against accused Naseem and others. He collected the papers and registered the F.I.R. on 26-5-1985 which was produced by him in Court as Ex.34. He examined complainant Muhammad Sharif and collected 'E' Form Ex. 10 from him. He examined the remaining witnesses and collected Account Opening Form, from Habib Bank Nursery Branch and the said Form was already produced as Ex.7. He could not arrest the accused persons as they were not traceable. He submitted charge-sheet in the Court, through Inspector Bashir Ahmed.

After close of the prosecution case the statements of the appellants were recorded in which they admitted the opening of the account, and that they were Directors of the firm of M/s. Silver Unicorn. They also admitted the export of Carpets worth U.S; dollars 14.264 it was also admitted by them that the amount could not be realized with the explanation that the consignee did not send the amount although previously he had sent the amount of other consignment. It was also admitted that the said amount was not repatriated. It was also admitted that the State Bank of Pakistan had sent notices Ex. 11 to Ex.13, and Habib Bank Ltd. had sent notices Exs.17 to 23 but the same could not be replied to as Officer of the appellants was closed.

3. The learned trial Judge while relying upon the above evidence convicted the appellants as described above. The present appeal is directed against the said judgment and conviction.

4. I have heard Mr. Dewan Bashir Ahmed learned counsel for the appellants, and Mr. Hayat Qureshi learned counsel for the State.

Mr.Dewan Bashir Ahmed learned counsel for the appellants has not challenged the judgment of the trial Court on merits, but has contended that the appellants are respectable businessmen, they have undergone agony of protracted trial for mere that 11 years, and therefore the sentence awarded to them may be reduced.

Mr.Hayat Qureshi learned counsel appearing for the State has contended that the case against the appellants was proved beyond any reasonable doubt. However, he was also of the view that the sentence awarded to the appellants may be reduced looking to the circumstances of the case and the fact that they were first offenders.

5. I have considered the contentions of the learned counsel, and have gone through the record and proceedings of the case. The prosecution has proved its case through the above witnesses beyond any reasonable doubt. There is overwhelming occular as well as documentary evidence against the appellants and the same has not been shaken in any way. In fact the appellants have admitted, most of the allegations in their statements. Even the learned counsel appearing for them has not challenged the findings of the trial Court on merits but has only submitted for reduction of sentence. I am therefore of the considered view that the judgment of the trial Court is based on proper appreciation of evidence, and does not call for interference. However looking to the fact that appellants are respectable businessmen, and have undergone agony of protracted trial, the sustentative sentence of imprisonment awarded to appellant No.1 Muhammad Naseem Qureshi is reduced to one already undergone, but the sentence of fine against both the appellants is maintained. In default of payment of fine the appellants shall suffer simple imprisonment for one month each. With this modification, the appeal is dismissed. The fine is to be paid within one month.

I had decided this appeal on 16-7-1987 by a short order and these are the reasons for the same.

M . Y . H . / M-338/ K Appeal partly accepted.

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