P L D 1965 (W (PLP)

Exhibit 1/F was intercepted by the police in the post office at Karachi in a letter addressed to one Yousuf Haji Dada in an envelope Exh. 1/C. Also enclosed in this envelope was a letter Exh. 1/B in Gujrati. This letter Exh. 1/B shows the names of the three prosecution witnesses Manzur Ahmed, Nasim Ahmed and Shaikh Muhammad Umar to whom the amounts of Rs. 400, 400 and 500 are said to have been paid. The appellant had produced three letters from his house before the police. These letters are covered under Exh. 8/A dated 3-8-61, 20-8-61 and 20-8-61 respectively to be found at pages 54, 55 and 56 of the paper book. The letters at page 54 and 56 are addressed to the appellant while the one at page 55 is addressed to one Iqbal. The letter dated 20-8-61, at page 56 is important because in this letter the appellant is directed to pay the amount of Rs. 400 to Nasim Ahmed and Rs. 500 to Muhammad Umer. Besides the appellant had also at the same time produced before the police Exh. 2/B-14 a letter written by the appellant to his brother Younis at Dubai. In this letter which appears not to have been posted till then the appellant has mentioned that payments of Rs. 400 to Manzur Ahmed, Rs. 400 to Nasim Ahmed and Rs. 500 to Muhammad Umer has been made by him. This letter bears no date, but all the four letters 3 under Exh. 8/A and one under Exh. 2/B-14 were secured by the police on 21-10-61, under mashirnama Exh. 2./B as is testified by mashir P. W. Abdul Rahim.

3. The evidence of P. W. 7 Shaikh Muhammad Umer is more direct. His evidence shows that he received Rs. 1,000 from the appellant on two different occasions in the sums of Rs. 500 each time. The witness had received letter Exh. 7/1 dated 23-9-61, from his son Shaikh Abdul Rahim in Dubai advising him that "I am sending 5 articles very soon. Please inform me as soon as you receive the same. Do not worry for money. These articles will reach you through the same person who had given the things to you earlier". From the word five articles is meant Rs.

500. The first amount of Rs. 500 appears to have been paid to P. W. Umar in view of letter dated 20-8-61, (at page 56) received by the appellant.

4. The learned counsel for the appellant conceded that he could not get out of the evidence that the appellant had in fact made the respective three payments in view of the evidence mentioned above. The learned counsel however questioned the conviction of the appellant on legal grounds. In the first place he contended that the show-cause notice Exh. 3/A issued to him by the State Bank mentioned that the payments were made by the appellant at the behest of one Siddik a person residing outside Pakistan whereas in the evidence produced before the Court this Siddik does not figure as a person at whose behest the payments were made but entirely three different persons are mentioned. I find no substance in this contention since the conviction of the appellant is not based on Exh. 3/A but is based on the charge Exh. 10 which only says that at the behest of a person in Pakistan. Since the charge was framed after the evidence was recorded in the case the appellant knew what persons were mentioned in evidence as being the persons at whose behest the payments were made.

5. The important legal point raised by Mr. Mufti is that there was no clear evidence at whose behest these amounts were paid to the three witnesses Manzur Ahmed, Nasim Ahmed and Muhammad Umer. The letter dated 20-8-61, at page 56 under Exh. 8/A is addressed to the appellant by his brother Younus. The appellant himself has written Exh. 2/B-14 at page 29 to his brother Younus in which the payments as mentioned have been made to the three witnesses as mentioned above. It becomes clear that Younus is the person at whose behest the payments appear to have been made. The learned counsel for the appellant relied on section 20 (a) of Act VII of 1947, for his contention that on the assumption that the payments were made at the behest of Younus brother of the appellant, no offence can be committed unless the State Bank under section 20 (a) has notified Younus brother of the appellant a Pakistan to be a person residing outside Pakistan. Section 20 (a) reads : "Until the State Bank by general or special order otherwise directs, any person who has at any time after the commencement of this Act been resident in Pakistan shall be treated as still being resident in Pakistan and if such direction is given in relation to any such person the State Bank may by the same or a subsequent direction, declare the territory in which he shall be treated as being resident." He then referred to Notification No. F.E. 1/63-S.B. 120, dated the 14th October 1963. This Notification reads:- "In pursuance of clause (a) of subsection (1) of section 20 of the Foreign Exchange Regulation Act, 1947 (VII of 1947), and in partial modification of the State Bank of Pakistan Notification No. F.E. 13/48-S.B., dated the 1st July 1948, the State Bank of Pakistan is pleased to direct that a person, other than a person holding any office in the service of Pakistan and residing outside Pakistan for the time being either on duty or on leave, being domiciled in, or a national of Pakistan, who is for the time being resident outside Pakistan, shall, unless otherwise authorized or exempted under the said Act, be treated, for purposes of section 5 of the said Act, as a person resident outside Pakistan, for so long as he is so resident." The learned counsel's argument is that before this Notification was issued on 14-10-1963, Younus could not be considered to be a Pakistani residing outside Pakistan at the time of the offence in September 1961. The learned counsel for the State Mr. Hyder Bux referred me to Notification No. F.E. 13 dated 1-7-1948, which reads: "In pursuance of clause (a) of subsection (1) of section 20 of the Foreign Exchange Regulation Act, 1947 (VII of 1947), the State Bank of Pakistan is pleased to direct that any subject of His Majesty other than a person domiciled in Pakistan, who has been resident in Pakistan but who leaves Pakistan and becomes resident in any country or territory for the time being specified in the Schedule appended hereto shall be treated as being resident in the country or territory to which he has gone . . . . ." The plain reading of this notification shows that persons domiciled in Pakistan were not covered by the mischief of this Notification dated 1-7-1948. It was, therefore, conceded by Mr. Hyder Bux that if Younus was held to be a Pakistani he would not be a person as being the person outside Pakistan on whose behest the payments were made. He however, stressed that there was no evidence that Younus was a Pakistani. I find that there is no evidence either that he is not a Pakistani. The legitimate inference will be that being brother of the appellant who is a Pakistani Younus also is a Pakistani. The burden is however on the Prosecution to prove that the person at whose behest the payments are made is a person who comes within the A mischief of section 5(1) (c). It being not so proved in the present case, no offence is established against the appellant. He is acquitted. The amount of fine, if paid, shall be refunded. K.B.A.???????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.