1987 P Cr (PLP)

The learned trial Judge while relying upon the above evidence convicted and sentenced the appellant as described above. The present appeal is directed against the above judgment of conviction, I have heard Mr. Diwan Bashir Ahmed for the appellant, Mr. Imam Bux Shaikh for the State, and have also gone through the R&P of the case. It was contended by Mr. Diwan Bashir Ahmed that the mashirs did not belong to the locality from where the recovery was made, inasmuch as mashir Khalil was resident of Mehmoodabad, while the accused resides near Stadium. It was further contended that the charge against the appellant was that he was found in possession of foreign currency, and that according to notification dated 17‑10‑1979, which was further amended or. 20‑8‑1985 it had to be proved that accused after becoming owner of foreign exchange failed to offer same for sale within one year. In support of his contention he has relied upon 1978 P Cr. L J 155, 1984 P Cr. L J 2083. Mr. Imam Bux Shaikh, learned counsel appearing for the State has contended that in view of the legal position taken by the learned counsel for the appellant, he does not support the conviction. I have considered the contentions of the learned counsel and have also gone through the case law cited at the Bar. So far, the recovery of foreign currency was concerned, it stood proved from the evidence of masher Khalil and complainant Shaharyar Mughal. Their evidence was straight forward, natural and reliable. It was not shaken in any way in cross‑examination. However, the important point raised in the present case by the learned counsel for the appellant was that the prosecution had failed to prove that the appellant after becoming owner of foreign exchange failed to offer same for sale within one year of his acquisition as required under the notification dated 20‑8‑1985. Section 9 of the Foreign Exchange Regulation Act, 1947 reads as under:‑‑ "S. 9 The Federal Government may, by notification in the Official Gazette order every person in, or resident in (Pakistan). (a) who owns or holds such foreign exchange as may be specified in the notification to offer it, or cause it to be offered for sale to (the State Bank) on behalf of the Federal Government or to such person as (the State Bank) may authorise for the purpose, within such time as may be specified in the notification, and as such price as the (Federal Government) may fix, being the price which is in the opinion of the (Federal Government) not less than the market rate of the foreign exchange when it is offered for sale; (b) who is entitled to assign any right to receive such foreign exchange as may be specified in the notification, to transfer that right to (the State Bank) on behalf of the Federal Government on payment of such consideration therefor as the Federal Government may fix. Provided that the Federal Government may by the said notification or another order exempt any person or class of persons from the operation of such order; Provided further that nothing in this section shall apply to any foreign exchange acquired by a person from an authorised dealer and retained by him with the permission of (the State Bank) for any purpose:" In Jalil v. the State 1978 P Cr. L J page 155 it was held:‑‑ "As regards the alleged offence under section 9 of the Foreign Exchange Regulation Act is concerned, the same has also not been conclusively proved. because merely coming into possession of foreign exchange by itself does not constitute an offence. Section 9 of the Foreign Exchange Regulation Act lays down that the Federal Government may by notification in the Official Gazette, order every person in, or resident in, the Provinces and the Federal territory who owns such foreign exchange as may be specified in the notification to offer it or cause it to be offered for sale to the State Bank or to such person, as the State Bank may authorise for the purpose at such price as the Federal Government may fix." It is further held:‑ ?In order to succeed in its case, prosecution was required to strictly prove that the appellant after becoming owner of foreign exchange had failed to offer the same for sale within a particular period as envisaged by the notification issued under section 9, to an authorised dealer:' In Muhammad Saleem v. The State Bank of Pakistan and another case in 1984 P Cr.L J 2083 it was held by this Court:‑‑ Mere possession of foreign exchange, held, by itself constitutes no offence within the meaning of section 4 of the Act, but prosecution is bound to prove for conviction under section 9, that accused after becoming owner of foreign exchange, failed to offer same for sale within particular period from his acquisition as required under notification: From the above factual and legal position it is clear that the prosecution had failed to prove that the appellant had failed to offer the foreign currency for sale within one year of the day he became its owner as envisaged by notification dated 20‑8‑1985, and, therefore, he was entitled to the benefit of doubt. I, therefore, allow this appeal, set aside conviction, and sentence of the appellant and acquit him. He is on bail, his bail bonds stand discharged. However, in view of the fact, that the appellant has denied the recovery of foreign currency and has not claimed the same, the property order confiscating the above currency to the Government is hereby maintained. M.Y.H./H‑34/K ????????????????????????????????????????????????????????????????????????????????? Appeal accepted.