1991 PLP 1818 (MLD)

SYED ABDUR REHMAN, J.

This is an acquittal appeal under section 417(1), Cr.P.C.

2. The brief facts forming the background of this appeal are that respondent, Inamur Rahman Alvi, held foreign exchange to the tune of 2,13,749.03 at the time of promulgation of Foreign Exchange Repatriation Regulation 1972. He, however, declared and repatriated into Pakistan only 1,70,000 and is thereby said to have committed offences punishable under para. 5 thereof. Accordingly a complaint was made to Special Police Establishment by the State Bank of Pakistan, which was registered vide F.I.R. No.77 of 1973 on 23-6-1973. After requisite sanction and usual investigation challan was put up before the Court of Sessions Judge (South) Karachi and Ex -Officio F.E.R. Tribunal, where the respondent was tried and acquitted on 21-12-1989. An acquittal appeal (103/1990) was presented before this Court on 19-4-1990, which came up for katcha peshi on 7-10-1990 and had been dismissed in limine for want of sanction by the Provincial Government for filing an appeal and direction to the Public Prosecutor to present the same. Having obtained such sanction of the Provincial Government on 5-8-1990, and the necessary direction, this acquittal appeal has been presented. The charge against the respondent reads as under:-- "I, Syed Ally Madad Shah, Sessions Judge, Karachi sitting as the Tribunal under the Foreign Exchange Regulation Act, 1947, do hereby charge you:-- Inamur Rahman son of Muhammad Suleman Alvi as under:

That you, in the month of January, 1972 held foreign exchange to the tune of 2.22 lacs in the United Kingdom; but you declared your foreign exchange holding under Martial Law Regulation No.104 of 1972 to the extent of 1.70 lacs only and did not declare the remaining holding in Foreign Exchange as required under the said Martial Law Regulation No.104 of 1972, and thereby committed an offence punishable under section 5 of the said Martial Law Regulation No.104 of 1972 (Foreign Exchange Repatriation Regulation) and within the cognizance of this Tribunal. And I hereby direct that you be tried by me on the said charge." The respondent pleaded not guilty to the charge and claimed to be tried, whereupon evidence of P.Ws. Muhammad Walimuddin Farooqui Ext.3, Muhammad Iqbal Hussain Ext.6, Muhammad Ghiasuddin Khan Ext.8 and Muhammad Zamir Khan Ext.33 was recorded and then the prosecution closed its side. The respondent professed his innocence in his statement under section 342, Cr.P.C. He did not examine himself on oath, nor led any defence before the learned Tribunal. The learned Tribunal framed the following points for determination. "(1) Whether the present accused held foreign exchange in the month of January 1972 to the tune of 2.22 lacs in the United Kingdom? (2) Whether the accused made false declaration by surrendering only 1,70,000 and thus contravened the provisions of M.L.R. 104? (3) Whether the Tribunal is competent to try the cases pertaining to the violation of M.L.R. 104 of 1972? (4) Whether necessary sanction was accorded for the prosecution of the accused? (5) What offence, if any, the accused has committed?

3. The impugned judgment consists of two parts. In the first part points Nos.3 and 4 have been discussed, and it has been held as follows:-- "Summing up the above, I am of the considered opinion that since the offence said to have been committed by the accused in this case is not covered by the provisions of F.E.R. Act of 1947, his trial by a Tribunal created under section 23-A of F.E.R. Act of 1947 is without jurisdiction. Points Nos.3 and 4 are answered accordingly."

4. The bare reading of the above conclusion of the learned Tribunal makes it quite clear that it has given a categorical finding that the cognizance of the case of the respondent by it, was without jurisdiction. The second part of the judgment relates to the remaining issues which touch the factual merits of the case itself. The learned Tribunal on factual merits came to the conclusion that the evidence led by the prosecution was not convincing and the accused could not be held guilty on the basis of such evidence, which was only in the nature of presumptions and conjectures.

5. We are of the clear view that having come to the conclusion that the Tribunal had no jurisdiction to try the respondent, the learned Judge presiding over it was not justified into entering upon the merits of the evidence adduced by the prosecution. It was his duty to have stopped then and there and to have acquitted the accused on the basis of his finding that tribunal had no jurisdiction to take cognizance of the case: In that event the prosecution was at liberty to take the course legally open to it. The tribunal having not done so and having given findings on the merits of the case and having acquitted the respondent on the basis of these findings of fact as well, has compelled the appellant to file the acquittal appeal.

6. Mr. Azizullah Shaikh, Advocate for the respondent, has raised two preliminary objections to this appeal. First objection is that having filed Cr. Acquittal Appeal No.103/1990, which was dismissed in limine by a Division Bench of this Court consisting of my learned brothers Saleem Akhtar, J:(as he then was) and Imam Ali G. Kazi, J. on 19-1-1991, this second acquittal appeal (38/1991) was not competent.

7. To this reply of Mr. K.M. Nadeem was that the dismissal of the Cr Acquittal Appeal No.103/1990 was not on merits but it was on the technical ground that the sanction of the Provincial Government was not obtained before the filing of the appeal and that no direction was given to the Public Prosecutor to file acquittal appeal by the Provincial Government. Hence the said appeal will have to be ignored and a fresh appeal can be filed after the sanction and the directions are given by the Provincial Government in that behalf.

8. Mr. Azizullah Shaikh next contended that the present appeal was barred by limitation as it has been filed after more than eight months of the acquittal of the respondent by the learned trial Court. In that connection he has relied upon 1981 S C M R 410 Hussain Bux v. Allah Bux, which reads as under:-- "It must also be stated that it has been the consistent view of this Court, as expressed in Nazar v. The State (1968 S C M R 715), Jalal Khan v. Lakhmir (1968 S C M R 1345), Muhammad Khan v. Sultan (1969 SCMR 82), Piran Ditta v. The State (1970 S C M R 282) and Nur Muhammad v. The State (1972 S C M R 331), that in petitions against acquittal delay cannot be condoned unless it is shown that the petitioner was precluded from filing his petition in time due to some act of the acquitted respondents, or by some circumstances of a compelling nature, beyond the petitioner's control. The reason for taking the strict view is that in most jurisdictions an acquittal once recorded by a competent Court is final, and the matter cannot be reopened at the instance of any party including the State. However, under our law an acquittal can be challenged in certain circumstances, but if it is not challenged within the period allowed by law, it becomes final. In these circumstances it is only just and proper that a petition against acquittal must not be entertained if it is filed beyond time, unless it be shown that the petitioner was prevented from moving the same by an act of the acquitted 'accused, or by some circumstances of a compelling nature beyond the control of the petitioner. Now, in the present case, these requirements are not fulfilled, on the contrary we have found that the delay could easily have been avoided if the petitioner and his lawyer, had acted with due diligence in accordance with the rules of this Court." In the reported case the petition challenging the acquittal of respondent by the High Court was barred by three days for which explanation was also given. The Supreme Court did not accept the explanation and refused to condone the delay. It will be useful to reproduce the following relevant observations of the Supreme Court as under:-- "The petition is barred by three days, and the explanation furnished for this delay is that although the petition was ready to be filed in this Court on the 2nd June, 1980, which was the last day of limitation but on that day it was discovered that the certified copy of the grounds of the criminal appeal, which was necessarily to be filed alongwith this petition, was not on the record, and an application was, therefore, made on the same day, the 2nd June, 1980, and the present petition was filed three days later on the 5th of June, 1980, after obtaining the same. It is asserted on behalf of the petitioner that there was no lack of diligence or bona fides on his part; and that at best it was a bona fide mistake on the part of his Advocate-on-Record or his counsel."

9. Mr. K.M. Nadeem, learned AA.-G. submitted that the order of the learned trial tribunal deciding the issues of fact and entering into the factual merits of the case was without jurisdiction and as such a nullity in the eyes of law, and therefore, requires no appeal to be filed against it and had to be ignored as if it was non-existent. In this connection he relied upon P L D 1974 Lah. 434 (Nazir Hussain v. The State), where it was held relying upon Muhammad Aslam Riaz's case reported in P L D 1958 SC (Pak) 104, that a void order will have no value whatever and is simply to be ignored and consequently, no question of limitation will arise against such order.

10. After taking into consideration the contentions raised by the learned counsel for the parties we feel that whereas the acquittal of the respondent on factual merits cannot stand, but his acquittal for want of jurisdiction cannot be interfered with. We are also of the view that it will not be conducive to the interest of equity and justice to direct the re-trial of the respondent, for his failure to declare an amount of 52,000 foreign exchange, when he had already declared as much as 1,70,000 and repatriated the same, particularly when the respondent has suffered the agony of a protracted trial for the same, for as many as 19 years, which is a sufficient punishment for the above dereliction. We, therefore, dispose of this acquittal appeal accordingly. MA.K./S-749/K Appeal dismissed.