1980 P Cr (PLP)

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5. A perusel of the judgment would show that the accused was convicted under section 23 of the Foreign Exchange Regulation Act, 1947; as he has not repatriated the value of the goods exported by him and had failed to comply with the undertaking given in the declaration in the GRP‑1 , form. The learned Judge, observed that that the accused had not produced docu ments in support of his plea that he had made efforts to repatriate the amount and further that he did not make an application to the State Bank of Pakistan for extension of time. There is further mention in the judgment that although the accused had undertaken to file list of defence witnesses through his Advocate on 23‑4‑1976, such list had not been filed on 20‑5‑1976.. His counsel bad moved an application for adjournment on the ground that he had some documents in his possession which required examination for production and also he was preparing list of witnesses for defence. The application was however rejected and the side of the accused closed on the ground that no proper mention had been made in the application with regard to the nature of documents to be produced. The learned Judge, further considered the circumstances that even after delay of four years the amount had not been repatriated and, therefore, according to him the presumption was that the accused had refrained from taking steps for the sale and repatriation of the value of the exported goods.

6. In the memo of appeal filed under section 23(C) of the Foreign Exchange Regulation Act, 1947, read with section 410, Cr. P. C. it was inter alia mentioned that the appellant was un-represented by a counsel at first and had engaged one at a very late stage and, therefore, was handicapped in putting his defence. The plea was also raised that certain documents were handed over to the defence counsel and he wanted time to go through them before producing the same in evidence but the application of the counsel for short adjournment was not granted. It is, therefore, contended that a great injustice has been caused to the accused due to non‑appraisal of correct facts as well as absence of documentary evidence on record.

7. It is apparent from the very reply to the notice issued to the accused by the authorities that he had mentioned the efforts made by addressing various authorities for getting the value of the goods exported repatriated, and it was his case at the time he replied to the notice that the consignee was a cheat and was not taking any action on his representations for repatriating the value of goods exported. The appellant has attached with the memo of appeal copy of contract dated 27‑11‑1971, entered into with Messrs M. S. Traders, Manchester, for supply of goods and payment was to be made by drafts drawn on Buyers at 60 days sight through any recognized Bank. He has also filed true copies of correspondence entered into by him with the British Consulate General at Karachi. The London Chamber of Commerce and Industry, The British Ambassador in Pakistan, The Secretary, London Chamber of Commerce and Industry etc. to show that he had made genuine efforts for repatriation of the value of the goods exported but the various efforts made by the authorities and persons addressed by him were in vain due to the attitude of the consignee.

8. It is by now more or less settled position that mere failure to repatriate sale proceeds of exported goods does not constitute criminal liability under section 23 of the Act and that prosecution in the first instance must establish prima facie case showing a breach of undertaking to repatriate sale proceeds.

9. In M. A. Jabbar Chowdhury v. The State and another (P L D 1964 Dacca 20), where it was contended on behalf of the State that mere contravention of the provisions of the Foreign Exchange Regulation Act irrespective of the question of intention constitutes an offence under section 23 of the Act, it was observed that where there was nothing to show that the accused was in complicity with the foreign buyer or that there were mala fides, on his part for delay in repatriating the sale proceeds within the specified period. It had to be .made out by the prosecution that there was intentional delay in repatriation before the accused could be said to have committed offence under. section 23 of the Act. In this connection reference was made to subsection (2) of sec tion 12 of the Foreign Exchange regulation Act which reads as under: "Where any export of goods has been made to which a notification under subsection (1) applies, no person entitled to sell, or procure the sale of the said goods shall, except with the permission of State Bank, do or refrain from doing any act with intent to secure that‑ (a) the sale of the goods is delayed to an extent which is unreasonable having regard to the ordinary course of trade, or (b) payment for the goods is made otherwise than in the prescribed manner or does not represent the full amount payable by the foreign buyer in respect of the goods subject to such deductions, if any, as may be allowed by the State Bank, or is delayed to such extent as aforesaid: Provided that no proceedings in respect of any contravention of this subsection. shall be instituted unless the prescribed period has expired and payment for the goods representing the full amount as aforesaid has not been made in the prescribed manner."' In the precedent case it was observed that the subsection indicates that dela y in repatriation would be an offence under section 23 of the Act, provided it is intentional.

10. In Tawhid Ali Sardar v. The State (P L D 1969 Dacca 395), it was observed that convic tion under section 23 of the Foreign Exchange Regulation Act can only be based upon a finding that the non‑repatriation of the export proceeds was intentional and deliberate and that there cannot be any conviction under section 23 if the exporter was unable to repatriate the sale proceeds for reasons and circumstances beyond his control. It was further observed a that the immunity will not be available to him if his conduct is mala fide.

11. In the State Bank of Pakistan Dacca v. Mahboobur Rehman and another (1971 S C M R 643), it was observed that provisions in section 12(2) prohibit an exporter by act or omission from doing anything to delay the sale of the exported goods to an unreasonable extent, from receiving payment for the goods otherwise than in the prescribed manner, and from receiving less than the full amount payable by the foreign buyer. In the precedent case, there was positive evidence to show that the exporter did not delay disposal of the goods and the goods were delivered to the purchaser after having arranged that payment should be received through bank and there was .nothing to show that such payment had not been received for the goods exported by the accused. It was in those circumstances held that there can be no doubt that no offence punishable under the Foreign Exchange Regulation Act was shown to have been committed.

12. The learned counsel for the appellant has relied on decision in Masood Iqbal Ahmed v. The State and another (P L D 1976 Kar.1141), in which it was inter alia observed that, "the very fact that before filing of the complaint the show cause notice has to be issued and the explanation offered by the accused has to be considered, would show that unless there is reason to believe that the accused had acted in collusion with the foreign exporter and in some manner delayed the repatriation of the sale proceeds, he could not be held liable for the offence".

13. In the precedent case it was contended that the liability of the accused on failure to repatriate the sale proceeds within time prescribed is absolute liability irrespective of any mens rea and that it was not necessary for the prosecution to establish by direct evidence that the exporter had by his act delayed repatriation of sale proceeds. The learned Judge who decided the case after reviewing the decisions on the point came to the conclusion that it is not till the prosecution has established the prima facie case that the accused may be called upon to give an explanation, as in section 114 of the Evidence Act, Illus. (a) the burden shifts and falls on the accused when the fact in question is pre‑eminently or exceptionally within his knowledge. Applying the aforesaid principle to the precedent case it was observed that the prosecution no doubt established a prima facie case of breach of undertaking and circumstances suggesting mala fides on the part of the appellant had been brought out, in that the foreign importer was brother of the exporter and the exporter had sent written instructions to the bank to release the shipping documents to the importer without payment though this was in contravention of the State Bank directives. Except for the principle applied, the precedent case can be distinguished from the facts of this case.

14. Applying the aforesaid principles to the facts of the instant case it i apparent that the prosecution has proved only the non‑repatriation of the value of goods exported within the period agreed to in the declaration mad by the accused but there is no suggestion or any sort of allegation that the accused had acted in collusion with the foreign importer and the only fact that has been brought on record is that the importer was also originally Pakistani now settled in Manchester. No other circumstances suggestin mala fides had been brought on record by the prosecution and it is obvious that due to unfortunate circumstances, the engagement of a counsel at a tat e stage and refusal to grant adjournment on the part of the Court made it difficult for the accused to put in proper defence. The accused at the very outset even in his reply to the notice had suggested that it was the fault of the Habib Bank (Overseas) Limited, Manchester, in handing over the goods without any security and they should be asked to explain the circumstances under which the goods were handed over to Messrs M. S. Traders. Ther was no suggestion even by the prosecution that there was any instruction to the bank on the part of the accused to hand over the goods without demanding security. As already stated there is nothing in the evidence on record against the accused to show mala fide action on his behalf. Prosecution witness, Younus son of Habib, who is working in the Khamisani Clearing and Forwarding Agency, Bombay Bazar, Karachi, and who was examined by the prosecution to prove the export of two consignments to U. K. has admitted in cross -examination that the accused had exported the goods for the first time and further that he has been exporting goods to foreign countries regularly and the value of those goods is being regularly repatriated. Mr. Raza, SI, FIA who investigated the case admitted in the cross‑examination that he did not care to make enquiry whether the importer was a Pakistani or a foreigner and further did not record the statement of Manager, Habib Bank Limited, at Manchester and he does not know whether the importer deposited the value of the goods with the Manager of the Bank which had been specified for receiving the foreign exchange.

15. Although there was nothing on record to show that the accused deliberately failed to repatriate the value of, the exported goods, a question was put to him by the Court while recording his statement that it has come in evidence that the accused had deliberately failed to repatriate the value of the exported goods and had not taken adequate measures for the repatriation thereof and the accused replied that the allegation was incorrect. He had stated that he was not liable for any offence as he had made all the efforts he could for repatriation of the value of goods but the same bad been of no avail.

16. In the circumstances stated above the appeal is allowed, the convic tion is set aside and the accused appellant is acquitted. He is on bail and his bail bond stands discharged. Appeal allowed.