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Criminal Appeals Nos. 145 and 207 of 1960, decided on 19th January 1960.

‑Foreign Exchange Regulation Act (VII of 1947), S. 23‑Price offish exported to India not repatriated because of delivery to wrong person‑Sentence reduced.

‑Complainant's Advocate also Advocate for State‑Practice disapproved‑[Counsel for State Bank of Pakistan also counsel for the State, in Criminal appeal from conviction under Foreign Exchange Regulation Act (VII of 1947), S. 23].

S. M. S. Rahman with Fazlur Rahman for Appellant is Appeal No. 145.

Zinnur Ahmad for Md. Nurul Huq for Appellant in Appeal No. 207.

M. Hakim for The State Bank of Pakistan and the State.

There are two appeals before us. Both of them are from the judgment and order dated the 15th of January 1960, of Mr. M. Idris, Sessions Judge Dacca, passed in Tribunal Case No. 25 of 1958. Criminal Appeal No. 145 of 1960 is by M. Lutfor Rahman, who has been represented before us by Mr. Syedur Rahman, counsel. Criminal Appeal No. 207 of 1960 is by Md. Yunus Ali who has been represented before us by Mr. Zinnur Ahmad, counsel. Mr. M. Hakim, counsel, claims to appear on behalf of the State Bank of Pakistan as well as the State. We shall have something to .say about the dual capacity in which Mr. Hakim tried to appear before us.

2. Both the appellants have been convicted under section 23 of the Foreign Exchange Regulation Act, 1947 and each of them has been sentenced to rigorous imprisonment for one year and six months and also to pay a fine of Rs. 5,000, in default of the payment of fine, to a ‑further term of rigorous imprisonment for six months.

3. The learned c6unsel appearing on behalf of the two appellants have addressed us on the question of sentence only. It is, therefore, not necessary for us to go into the facts of the case in very great detail.

4. The prosecution case, in brief, is that appellant Lutfor Rahman is the sole proprietor of Messrs Havan Verghese & Co., Terribazar, Chittagong and appellant Md. Yunus Ali is his autho rised agent. They exported fresh fish to India by Railway in these different consignments on three different days, namely, February 16th, 21st and 23rd in the year 1957, and under three different I.R.P. 4 forms through the Land Customs Station, Goalundo. The total value of the fish amounted to Rs. 1,65,506‑3‑0. The appellants gave an unequivocal undertaking in the three I.R. P. 4 forms that they would repatriate within the prescribed period the value of the fish through the authorised dealers, namely, the Central Bank of India Ltd., Dacca, and Habib Bank Ltd., Narayanganj. The appellants, however, failed to repatriate the value of the fish within the said period. The appellants were given an opportunity under section 23, subsection (3) of the Foreign Exchange Regula tion Act to explain their failure to repatriate the value of the fish ; but they failed to give any satisfactory explanation or prove any permission exempting them from bringing the value of the fish.

5. Both the appellants pleaded not guilty. The defence of appellant Lutfor Rahman is that he made all attempts to repat riate the value of the goods but failed. The goods were addressed and sent to their agents in Calcutta, namely, Autul Chandra Das and Bhuban Gain, but they did not receive the goods ; instead the consignments were taken delivery of at the Sealdah Station in Calcutta by Sealdah Fish Aratdar's Association in collusion with the Railway staff and without making any‑payment of the price of the goods. The appellant has himself suffered loss. His further case is that at the time of execution of the power‑of -attorney, authorizing appellant Yunus to act as his agent, Lutfor Rahman was temporarily insane and, therefore, he is not liable for any action of Yunus on the basis of the said power‑of‑attorney.

6. The defence of Yunus Ali is that he was an employee of Lutfor Rahman and signed the I. R. P. 4 forms as his agent. Yunus could not repatriate the value of the goods because he had neither any account with any bank nor had he any right to operate the account of his principal. He asserted that under the power‑of -attorney he had no authority to repatriate the money from Calcutta ; nor had he any right to receive the money from the foreign buyers.

7. Various questions of law and facts were raised by the two accused persons before the Tribunal. The learned Sessions Judge who constituted the Tribunal, however, after a careful scrutiny of the points of law and the facts and circumstances of the case, found the prosecution case duly proved and overruled the defence of the two accused persons on points of facts as well as law.

8. As the question of sentence only has been pressed before us, we do not consider it necessary to consider the merit of the case.

9. In regard to the sentence of appellant Lutfor Rahman, it has been urged that the case is a pesaliar one, in that the exporter, i.e., Lutfor Rahman, took extra‑precaution and incurred addi tional costs in covering the risks of carriage and misdelivery of goods by an expensive insurance policy and his further case is that although the plea of insanity has not been accepted by the Tribu nal, the evidence, particularly that of defence witness No. 1, shows that off and on he suffered from mental stress and strain which necessitated his visit to doctors and hospitals. It has also been submitted before us that the facts and circumstances of the case show that Lutfor Rahman took all possible steps to get the value of the fish‑repatriated, but failed and that there was no mala fide on his part. It', appears that Lutfor Rahman remained in jail for about one month twenty days. The learned counsel appearing on his behalf is in a bad state.

10. In regard to the sentence passed on appellant Md. Yunus Ali, it has been urged that he was a mere agent of Lutfor Rahman and that he was a petty employee drawing a salary of Rs: 180

per month. He appears to have remained in jail for about three months. ,

I1. Having given our anxious consideration to the facts an circumstances of the case, we think that the ends of justice will be amply met in the present case if we reduce the sentences of imprisonment passed upon the two appellants to the period already A undergone by them. The sentences of fine and in default to rigorous imprisonment for six months passed upon each of the two appellants will, however, be maintained.

12. In the result, therefore, the sentences of imprisonment passed upon the two appellants are reduced to the period already undergone by them. The sentences of fine in default to rigorous imprisonment for six months passed upon each of them are maintained. The fines, if not already realised, must be realised at once. With these modifications, the appeals are disposed of. We direct that the appellants be discharged from their bail bonds.

13. Before, however, eve part with these oases, we think it our duty to give our opinion in regard to the dual capacity in which Mr. Maksumul Hakim, counsel, wanted to appear before toss in these cases. Mr. Hakim filed a vakalatnama on behalf of the State Bank of Pakistan and represented before us that he had been appointed by the State to represent the State as well. It may be mentioned that Mr. M. Hakim has been a retained lawyer of the State Bank of Pakistan for several years past. This seems

to us to be rather carious, and we, therefore, asked the learned Deputy Legal Remembrancer to appear before us and to enlighten us on the unenviable situation is which Mr. Hakim put himself in. We heard both the learned Deputy Legal Remembrancer and Mr. Hakim on this point, and we are of opinion that how highsoever the status the State Bank of Pakistan occupies ; its position is no better than a private complainant before a Court of law. It is true that under the Foreign. Exchange Regulation Act, 1947, as amended up to date, the State Bank of Pakistan has been delegated some of its powers by the Central Government of Pakistan : but the said delegation does not put the State Bank of Pakistan in the position of the State in all matters. May be, in prosecution for contravention of the provisions of the Foreign Exchange Regulation Act, the interests of the State Bank tray be similar to the interests of the State in some respects, but certainly they are not identical. It is not difficult to visualize a situation in which a lawyer appearing on behalf of the State Bank of Pakistan as well as the State, may find himself in conflict between his duties to the State Bank of Pakistan and his duties to the State. We think that ,such a situation should be avoided. It is hardly necessary for us to say that the lawyer, particularly a retained lawyer, of a party will consciously or unconsciously have a bias in favour of his employer. Therefore, appointing such a person to represent the State as well and expecting him to do his duty as such, is to expect the impossible. Chief Justice Jenkins in the case of Ram Rajan Roy v. Emperor (ILR 42 Cal. 422, 428),observed that the purpose of a criminal trial was not to support at all costs a theory, but to investigate the offence and to determine the guilt or innocence of the accused, and the duty of a Public Prosecutor was to represent not the police, but the crown, and his duty should be discharged by him fairly and fearlessly, and with a full sense of the responsibility that attached to his position. We fail to understand how could this duty be discharged by Mr. Hakim, a retained lawyer. of the State Bank of Pakistan.

14. The decision in the case of Hyder Bux Jafferi v. The Crown (P L D 1951 Sind 29), supports our points of view. In this case also a lawyer who had earlier appeared for the complainant was appointed to appear for the Crown. It was said in that case that one of the main principles of criminal law was that justice should not only be done, but should seem to be done and that it would be con trary to that principle to allow an accused ground to think that the person conducting the prosecution on behalf of the Crown was resolved to secure a conviction by fair means or by foul. In that same case Tyabji, C. J., in a separate judgment held that the interests of the Crown were not identical with the interests of a private complainant. He further held that it was essential to the proper conduct of a criminal case, that the Public Prosecutor should be entirely free from any private bias against the accused and any personal interest in the case resulting in a conviction, and that in his opinion the Public Prosecutor was expected to strive to the utmost of his ability to secure that justice and nothing but justice was done.

15. We are, therefore, of the opinion that this practice of appointing a complainant's lawyer also a lawyer for the State should be discontinued, and the sooner the better.

16. Let an extract from the judgment containing our dis approval of the practice of appointing a complainant's lawyer also a lawyer for, the State be sent to the Secretary, Judicial Depart ment and Superintendent, Remembrancer of Legal Affairs, East Pakistan.

‑I agree.

A. H. Order accordingly.

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