P L D 1961 Supreme Court 112 (PLP)

"no person in, or resident in (Pakistan) shall make any payment to or for the credit of any person by order or on behalf of any person resident outside Pakistan", unless there be some general or special exemption granted con ditionally or unconditionally by the State Bank. For a prosecution under section 23, it is necessary that the accused should have been given an opportunity of showing that he had permission to do the act which is complained of as a contravention. In the present case, notice was sent to the appellant in the following terms, viz.:‑ "There is enough evidence to establish that you acting on the advice of your brother Mr. Roza Din, Shinwari of Kabul, who was following the instructions of "Messrs Deak & Company, New York" sent a draft for Rs. 50) payable to Mr. Muhammad Amin of Karachi." It has been proved on the record that this amount was transmitted through Messrs Deak & Company by a member of the Pakistan Mission in the United States named Mujahid Ali Jafri to the aforesaid Muhammad Amin, who was an acquaintance of the sendor, in order that the line of transmission of the currency between the two countries, in violation of the Regulations, should be discovered. Deak & Company accepted the money in dollars and undertook to transmit Rs. 500 Pakistani to the address of Muhammad Amin. The latter received the money through the Habib Bank by way of a draft for Rs. 500 sent from Peshawar by the appellant Akhtar Shah. The quotation from the notice sent by the State Bank to Akhtar Shah is a clear indication that the inves tigations of the State Bank of Pakistan had revealed that Akhtar Shah had not sent the money of his own accord, but that he had done so to the order of his brother Roza Din, who was described firstly, as a resident of Kabul, and secondly as a person acting on the instructions of Deak & Co. In the proceedings on the com plaint of the State Bank, evidence was given by Mr. Mujahid Ali Jafri, who, while he was in New York, had transmitted the money :through Deak & Co. to Muhammad Amin, and Muhammad Amin appeared and testified that he received a bank draft in the amount .of Rs. 500 from Akhtar shah which he acknowledged by means of a letter, Exhibit P. W. 2/6. This letter was dictated to Muhammad Amin, who is a student in an Intermediate college, by an officer of the Special Police Establishment, Faqir Syed Moizuddin. It acknowledged receipt of a letter, Exhibit P. W. 2/2 along with the draft. This letter was written by Habibullah Munshi to the appellant Akhtar Shah, who was accused along with him, but was acquitted in appeal by the High Court. Habibullah in his statement as an accused person admitted having written this letter which was to the effect that Akhtar Shah Automobiles which is the appel lant's company had received information from Kabul that Rs. 500 were to be sent to the addressee, namely, Muhammad Amin, and accordingly a bank draft had that day been obtained and was being sent. It was requested that the receipt of this draft should be acknowledged so that Akhtar Shah Automobiles may be enable to send information to the "Kabul people" and further that Muhammad Amin himself should inform the Kabul people that he had received the money. In his reply, Muhammad Amin said that he did not know the person from Kabul who had ordered the money to be sent to him, but on the other hand, his "brother, M. A. Jafri" had informed him from New York that he had sent this money to him through Deak & Co. To this letter, Muhammad Amin received no reply. Akhtar Shah's reply to the notice which he had received from the State Bank is Exhibit P. W. 1/3, which he has admitted to be correct. It contains the following statement :‑ "That I have got my brother named Roza Din in Kabul, who is doing his business in plying lorries etc. This brother of mine sent three thousand Afghanis through Muhammad Alam a driver of Khyber Agency who sold these Afghanis for Rs. 500 (Pak. currency) in the open market of Peshawar City. He had instructions to give the amount to Habibullah, a munshi in my firm for sending this amount through a Bank draft in favour of Muhammad Amin of Karachi. My, munshi acted accordingly and the amount was sent through Habib Bank to the said person Muhammad Amin . . . . . . . . I do not know anything about Messrs Deak & Co. of New York. I also do not know who is Mr. Muhammad Amin. It was simply on the advice of my brother in Kabul that I asked my munshi to remit the said amount to the man in Karachi. I may also add that there is no restriction over the movement of the Afghan Currency between Pakistan and Afghanistan." At the trial, he admitted having sent the draft and gave the following explanation :‑ "The money had been sent to Muhammad Amin, but I was not present at the time in my shop. In fact I was in Kabul and when I returned to Peshawar, Habibullah my co‑accused told me that Muhammad Alam a driver had brought from Kabul Rs. 3,000 Afghanis, which he exchanged here for Rs.

500. Habibullah my co‑accused also told me that Muhammad Alam Khan came to my shop, paid the amount to him (Habibullah) with the instruction to remit the same to Muhammad Amin," The charge framed against Akhtar Shah by the Tribunal under the Act was expressed as follows :‑ "That you, on or about the 4th day of August 1959, obtained draft No. 105279/1858 in exchange for Rs. 500 from Habib Bank, Peshawar for transmission to P. W. Muhammad Amin, having been authorised to do so by Deak & Company of U. S. A., and thereby contravened the provisions of section 5, etc." There is a significant difference between the allegation in the notice and that in the charge. In the notice it was said that Roza Din was the agent of Messrs Deak & Co., and it was at Roza Din's instance that the money was sent to Muhammad Amin. No evidence whatsoever was led to show that Roza Din was or was not the agent of Deak & Co., or that he had been at all in touch with that Company in connection with this remittance. Nor was any evidence led to show that Akhtar Shah had received any direct authorisation from Deak & Co., to remit the money to Muhammad Amin. It may be that the allegation of authorisation was made in these plain terms on the strength of the provision contained in subsection (2) of section 24 of the Foreign Exchange Regulation Act, which places the burden of proof upon persons accused under the Act, in the circumstances appearing from the subsection whose wording is as follows :‑ "(2) If in a case in which the proof of complicity of a person resident in Pakistan with a person outside Pakistan is essential to prove an offence under this Act, then after proof of the circumstances otherwise sufficient to establish the commission of the offence, it shall be presumed that there was such complicity, and the burden of proving that there was no such complicity shall be on the person accused of the offence." It could be said that after proof of the fact of a certain sum of money having been paid to Muhammad Amin by Akhtar Shah by order of Mr. M. A. Jafri who was then resident in New York, the burden of showing that Akhtar Shah was not in complicity with Mr. Jafri or Deak & Co., lay upon Akhtar Shah, and until he could prove the contrary, he would be thought to have acted in contravention of the law. The case for the prosecution in this regard cannot but be affected by the clear admission in the initial notice that in the belief of the State Bank, the agent of Deak & Co., was Roza Din of Kabul. The case for the defence remained throughout that which was offered in reply to the State Bank's notice at the very outset, and in support of this case, and apparently in implementation of the duty of avoiding the con clusion of complicity, defence evidence was produced, namely, Roza Din and Muhammad Alam driver whose name has been mentioned above, and Saeed Khan, Hashim Khan and Abdur Rashid Khan, who supported Roza Din's case that he had bought a truck from one Haji Abdur Rahim of Kabul, and that it was under the instructions of the said Haji to whom he still owed some part of the price of the truck, that be directed his driver to pay Rs. 500 to Akhtar Shah Automobiles for onward transmission to Muhammad Amin in Karachi. The name of Muhammad Amin was furnished to him by Haji Abdur Rahim, who is a resident of Kabul and an Afghan national. On the other hand, Roza Din and his brother belong to Pakistan, and are Pakistan nationals. A question which immediately attracts attention is why, when the State Bank believed that Roza Din was the agent of Deak & Co. as appears from the notice, they did not prosecute him rather than his brother. For, it is evident that the money which was paid to Deak & Co. in New York did not directly reach Muhammad Amin in one single movement, as by a bank cheque remitted by post or in the shape of currency notes. It passed through a complicated channel of transmission, and it is not necessary to suppose that every person who took part in the process of handing the money on was aware of the nature of the transaction and that it contravened Pakistan law. Thus, the Habib Bank which evidently paid to money to Muhammad Amin was one of the agents through whom the remittance was operated and yet, it was not thought fit to require them to shift the burden which is laid upon all such agents by section 24 (2) of the Act which has been reproduced above. The mere fact of Roza Din and Akhtar Shah being brothers does necessarily imply that Akhtar Shah could not carry out a simply direction from his brother to transmit a sum of money to a certain person, within Pakistan, without being aware that the money had come from a source outside Pakistan. But, for the purposes of the present case, it is not enough to establish that the source from which the money came to Roza Din was or the order for the payment of the money was issued by a person living outside Pakistan. It is necessary on the face of the initial notice and the charge which Akhtar Shah was called upon to answer, that it should be shown that the money came to him from Deak & Co. of New York. For, according to the initial reply of Akhtar Shah, his brother Roza Din lives in Kabul outside Pakistan and had sent the money from there through Muhammad Alam, for payment to Muhammad Amin. Our attention was invited at the hearing by the Attorney‑General to a statement by Mr. Fayazulhaq, P. W. 1, Assistant Controller of the State Bank of Pakistan that "if a person exchanges Pakistani currency with foreign currency even if it is the currency of Afghanistan, and even if the exchange takes place in Pakistan, he commits an offence". That statement would, in the present case, affect only the driver Muhammad Alam who has admitted that he exchanged 3,000 Afghanis for Rs. 500 Pakistani at Peshawar, but Muhammad Alam is not an accused person in this case, and Mr. Fayazulhaq had also stated in his cross‑examination that there was "no restriction on the entry of Afghan currency in the country except that at the time of its entry it must be declared in the Custom Office at Torkham". The statement by Akhtar Shah that the 3,030 Afghanis had been sent by his brother from Kabul is not borne out by Roza Din's statement which is that the money was in‑the possession of his father, who lives at Landi Kotal in Pakistan, and he had instructed Muhammad Alam to take the money from his father, Muhammad Alam has supported this statement. Therefore, it would seem that there was no case of bringing Afghan currency into Pakistan, but even if there were, the statement of Mr. Fayazulhaq would save the person bringing in the money provided that it had b,‑en reported at Torkham, and there is nothing to indicate that that was not done. In any case, Roza Din is not being tried for any offence, and it is not this offence that has been laid at the door of Akhtar Shah. But, the question still remains‑how on the evidence, does the case stand in relation to the allegation of the prosecution that in transmitting the money to Muhammad Amin, Akhtar Shah acted under the authority of Deak & Co.? There is no iota of evidence from which this conclusion can be drawn. The learned Attorney -General attempted to base the possibility of such an inference upon certain discrepancies between the statement of Muhammad Alam, the driver on the one side, and those of Roza Din, D. W. and Habibullah accused persons on the other. The principal difference is that while the others say that Muhammad Alam brought instructions to Akhtar Shah Automobiles that the money was be transmitted to Muhammad Amin of Karachi, Muhammad Alam himself denies having given any such instructions. An explanation, which was consistent with Muhammad Alam's denial, is furnished by Roza Din, namely, that shortly after despatching Muhammad Alam to Peshawar for the purpose, he met his brother Akhtar Shah who was going in the opposite direction i.e., to Kabul and told him about the remittance and to whom it had to be made. But the important thing is not that the defence case should be examined for consistency, but whether on the face of it and reading into it all the reasonable implications arising there out, the case affords any support to the prosecution allegation that money was American money originally, and not Afghan money. There is absolutely nothing in the evidence for the prosecution to support this allegation directly, or even indirectly. The point is of importance, for as will have been apparent from certain observations already made, we are of the opinion that a case of the same kind under section 5 could on the evidence have been successfully made out by the prosecution, for the payment of money to Muhammad Amin at Karachi to the order of Haji Abdur Rahim, a person resident outside Pakistan. It has not been made to appear on the record how the State Bank discovered that Akhtar Shah had received the money in question from Roza Din. It is apparent that there were investigations which went beyond the mere appearance of the documents, namely the Bank draft and the letters, Exhibits P. W. 2/2 and P. W. 2/6. It is quit conceivable that the authorities were already aware of Roza Din's case, for it does not appear from his cross‑examination which was sufficiently lengthy, that he was questioned at all regard ing any earlier statement made by him. His case that he owed money to Haji Abdur Rahim is supported by documentary proof that he bought a motor lorry from the Haji in 1956 for 2 lakhs of Afghanis and there was oral evidence as well to the same effect, namely, the statements of the three defence witnesses other than Roza Din and Muhammad Alain. Something was sought to be made by the Attorney‑General of the fact that under the agreement of sale which is Exhibit D. A. the price of the lorry was to have been paid up within a year that is by the 3rd of May 1957, but that consideration alone is not sufficient to negative the evidence of Roza Din that at the material time, he still owed about 30,000 Afghanis to the Haji out of the price of the truck. The position of the case is thus that the prosecution evidence proved no more than that Akhtar Shah was one of the several agents through whom the money remitted by Deak & Co. reached Muhammad Amin, and that the line of transmission was through Kabul. On the strength of this evidence, the rule in section 24 (2) of the Act which curiously enough finds no mention in either of the judgments of the Courts below, would require raising of the pre sumption that Akhtar Shah was involved as an accomplice of the persons outside Pakistan by whom the money had been remitted, unless he could establish the contrary. The evidence that he has led is undeniably sufficient to fix the source qua him at Kabul But is this an offence, in view of the looseness by which the enforcement of the Exchange Regulations between Kabul and Peshawar appear to be characterised? One witness has stated that Afghanis are openly exchanged for Pakistan rupees in the bazar at Peshawar, and it is officially admitted that Afghanis in any amount may be imported through the Khyber‑pass pro vided they are reported at Torkham. Accordingly, while it is clear that a charge could have been framed against Akhtar Shah, placing the source of the money in Kabul, it is by no means certain that a conviction could have been had. It was strenuously urged before us by Mr. Mahmud Ali that in practice, as well as by the force of proper Regulations, the State Bank does not enforce as between Kabul and Peshawar any of the restrictions which are laid by the Act upon the passing of money over other borders of Pakistan. If therefore a charge for paying money to the order of Haji Abdur Rahim were preferred, it would be open to the accused person to defend himself by reference to the practice and the instructions which are in force between Kabul and Peshawar. In any case, it is clear that the charge of acting upon the authority of Deak & Co. remains unproved by evidence, nor does the presumption of complicity carry) the source any further west than Kabul. We find that the charge against Akhtar Shah was not sustained upon the present record, and we accordingly allow this, appeal and acquit him. A. H. Appeal allowed.