JUDGMENT MAULVI ANWAR-UL-HAQ, J. - This judgment shall decide the instant writ petition, .Writ Petition No. 2119 of 2000, Writ Petition No. 2120 of 2000 and Writ Petition No. 2121 of 2000, as common questions are involved and these were ordered to be heard together.
2. As per contents of these somewhat similarly worded writ petition, all the petitioners therein were served with show-cause notices calling upon. Them to show cause as to why punitive action should not be taken against them under Para 19(3) of SRO 11(l)/99, dated 9.1.1999 and Para 20(3) of SRO 1(l)/2000, dated 6.1.2000. The allegations in the show-cause notices were that the petitioners forged the export licenses Forms and mentioned quantities and values for in excess of the genuine export licenses that had been issued to them by the respondents and to have effected export against the said forged documents. The written replies were- filed by the petitioners in all these cases. After making a statement of the charges leveled against them, the petitioners stated that upon receipt of the show-cause notices, they were shocked to learn that a huge amount of money had not been paid to the Government Treasury/concerned parties, then there is a reference to a probe and the revelation that one Irshad Ahmad who was engaged as an agent/employee of the petitioners and who was the owner/Proprietor of M/s, Hitee International was responsible for all this mess. He was the sole person who was handling all the paper-work for the export of products of the petitioners including the purchase and rent quota/visas for export. According to the petitioners, the said Irshad Ahmad had actually falsified the said documents., It was further urged that the said Irshad Ahmad had been obtaining the signatures of the petitioners on certain documents from time to time whereas they had no knowledge as to what they were signing and all this was done by Irshad Ahmad of his own for his own monetary and personal gains. These activities were detected by the respondents resulting in the disciplinary proceedings against the petitioners, It was then stated that the efforts are being made to trace the said Irshad Ahmad. Legal notices have been served and suits have also been filed wherein Irshad Ahmad has been summoned. Criminal proceedings are also being initiated. Thereafter, the petitioners have stated that they acknowledged that fraud had been committed but this all had happened because of sheer inexperience, and undue reliance on Irshad Ahmad, but there was no guilty intention on their part.
Ultimately, the petitioners accepted their liability and stated that they are ready to make good the losses suffered by the concerned parties and assure that all precautions will be taken so that nothing of this sort could happen in future.
3. The proceedings were conducted by the respondents-Vice Chairman of Export Promotion Bureau. Vide order parsed on 15.3.2000, the said Vice Chairman directed the petitioners to provide the quota for the excess quantity determined therein for EU-Cat-20 from whatever source possible.
The excess shipment was not to be counted towards the performance in the next year or in any subsequent year. The petitioners were also directed to pay fine equal to FOB value of all the illegal exported consignments. I may note here that during the course of proceedings, one Saqib Saeed who alongwith his father represented all the petitioners before the said Vice Chairman was confronted with some further acts of forgery and illegal excess export against forged documents, It was observed that the said person stated that he was aware of the said forgeries and volunteered to provide quotas held by them in the said cases as well. The said order also covers the said additional forgeries and the excess export made against the forged documents. Against the said order dated 8.5.2000, the petitioners filed review applications which were decided by a Secretary (respondent No. 1) on 22.5.2000, who refused to interfere. The petitioners were directed to comply with the orders passed by the Vice Chairman failing which the quota services will remain suspended and the action will be taken against them under the relevant laws and rules.
4. Writ Petition No. 1166/2000 was filed in this Court on 30.5.2000. It came up for hearing before the Court on 5.6.2000 when a report was called for. Writ petition was then taken up on 29.8.2000 when it was admitted to regular hearing. C.M. No. 3546/2000 was taken up when it was stated on behalf of the petitioner that he is prepared to surrender the excess quota and to furnish Bank guarantee for half of the amount of penalty and an adequate security for the remaining half to the satisfaction of the said Vice Chairman. Upon the said representation, the recovery of the penalty was stayed upon fulfillment of the said conditions. I may note here that the remaining writ petitions were filed in this Court on 12.9.2000. These were taken up on 13.9.2000 and were admitted and directed to be heard alongwith Writ Petition No. 1166/00.
5. Vide order of this Court dated 1B. 10.2000, it was noted that none of the said conditions have been performed by the petitioner whereupon the interim relief granted vide order dated 29.8.2000 was accordingly recalled.
6. Mr. Aitzaz Ahsan, learned counsel for the petitioners argued that notwithstanding the fact that the forgery as alleged by the respondents was committed and as' a result excess import was made. Since the penalty was proposed to be imposed upon the petitioners, therefore, the burden of proof was upon the respondents to establish that the forged documents were sued by the petitioners with the said knowledge and intention and unless this was to be done, .The penalty could not have been imposed. He has relied upon Muhammad Yaqoob Gorowara Vs. Mir Muhammad Hasan and another (PLD 1962 (W.P.) 742), State Vs. Sheo Prasad Jaiswal (AIR 1956 Allahabad 610), M/s. Hindustan Steel Ltd. Vs. The State of Orissa (AIR 1970 S.C. 253), Anis Ahmad Vs. Government of Pakistan and 3 others (PLD 1979 Kar. 709), M/s. Kamran The Collector of Customs (Exports) and 4 others (PLD 1996 Kar. 68), Hussain Industries Limited Vs. Textile Quota Management Directorate, Government of Pakistan, Karachi and 2 others (1997 M LD 737) and Muhammad Anar Vs. The State (2004 M LD 144). The precise reliance of the learned counsel is upon the observation of the Vice Chairman that the possibility that the petitioners were in fact defrauded by the said Irshad could not be ruled out. He argues that the element of doubt being there, the benefit was to be granted to the petitioners and the penalty could not have been imposed upon them. Learned counsel has also made out a grievance about the said additional forgeries which were taken up during the course of proceedings by the Vice Chairman and penalty was imposed in respect thereof as well.
7. Mr. Ahmad Naeem Qureshi, learned Federal Counsel for Pakistan, on the other hand, contents that this is a case where forgery was admitted-. According to learned Federal Counsel in view of the admitted fact that not only the excess quantity was exported by and corresponding price/value was also received by the petitioners in Pakistan, it is not believable that they were not aware of the factum of forgery and the corresponding benefits received by them. Learned Federal Counsel further refers to the order in view passed by the Secretary to urge that in the said proceedings as well, the said fact of forgery was not denied and the offer to recompensate particularly with reference to the quota was reiterated. According to the learned Law Officer, illegal export exceeds by millions of kilograms of the corresponding value, therefore, the penalties have been lawfully imposed.
8. I have given some thought to the respective contentions of the learned counsel for the petitioners and the learned Law Officer. I have already reproduced above in some detail the proceedings commenced from the service of show-cause notices and ended in the decision of the said review application by the Secretary. Now upon plain reading of the show-cause notice, the reply and the stance taken by the petitioners during the course of proceedings before the Vice Chairman as well as the matter of review before the Secretary, there is no manner of doubt that the export documents were forged and utilized. Even the learned counsel for the petitioners has not denied the said fact while arguing the case. With reference to some of the judgments cited by him above in the matter of forged currency, learned counsel for the petitioner has sought to draw an analogy that since mere possession of the forged currency is not an offence, similarly the admission of the petitioners that the documents were forged which were. Not in their knowledge and without a criminal intent, they are not liable to any penalty.
9. As noted by me above, the primary reliance by the learned counsel is upon the observations of the Vice Chairman in the said order passed by him on 15.3.2000 to the effect that there is a strong possibility of fraud by the said Irshad Ahmad being perpetrated on the petitioners. However, at the same time, the observations of the Vice Chairman are that the petitioners have certainly been irresponsible, careless, negligent, over-indulgent and connivance in the whole matter inter se the said Irshad Ahmad and the petitioners cannot be completely ruled out. Again the Vice Chairman has observed that since the remittance has been received according to the excessive forged export license quantity, the stance of the petitioners is credible to some extent.
10. The provisions under which the said orders have been passed are contained in the said statutory orders and the same are reproduced as under:- "Contravention of the policy. - (1) No allocation shall be valid unless it is in accordance with the provision of this order.
(2) Any exports made in contravention of the provisions of this order shall not count towards performance of the exporter and shall be treated as irregular and void.
(3) Cases of shipments in contravention of the rules, and other malpractices including circumvention of bilateral agreement, exports against forged, fake visas, export licences, shipment in excess of the allocated quantity, misdeclaration of value, weight and category shall be liable to any or all of the following penalties, namely:-
(a) . Suspension or cancellation of a part or the whole of export quotas whether acquired on the basis of performance or purchase or any other means whatsoever, imposition of a fine upto two hundred percent of the F.O.B, value of the consignment or any or all of the above; and
(b) Suspension or cancellation of export registration or other action under the Registration (Importers and Exporters) Order, 1993.
11. It will be seen that the penalty prescribed in sub-clause (a) of Clause 3 of said Para 20 is to be incurred upon in a case, inter alia, of exports against forged, fake visas, export licenses or shipment in excess of the allocated quantity. To my mind, the determination as to who has forged the documents resulting in the excess shipment is not prima facie contemplated in the said provisions.
The fact that the export in excess shipment was made against forged or fake documents would result in the imposition of the said penalty. As stated by me above, the said fact stands admitted in this case, i.e. Excess shipment against forged documents. The petitioners have not alleged that the products that were so exported did not belong to them 'and they did not receive the value thereof after the said excess shipment. I also find that right from the day one and also- after receipt of the said show-cause notices, the petitioners had throughout been stating that they are ready to recompensate and surrender the excess quota. This was their stance before the Vice Chairman as well as before the Secretary and even before this Court.
12. So far as the imposition of-fine is concerned, the Vice Chairman is authorized under the said statutory order to impose a fine upto two hundred percent of the F.O.B, value of the consignment.
The Vice Chairman has imposed the fine equal to one hundred percent of the F.O.B, value of the said illegal consignment. To my mind, the penalty of fine had to be considered in the light of the circumstances stated by the Vice Chairman in his order. I may further note here that there is no objection as to the quantities worked out by the Vice Chairman vis-a-vis the excess shipment against the said forged documents.
13. The learned Federal Counsel has pointed out that even before the Secretary, the petitioners offered .That the quotas held by them be adjusted against their liabilities in the export EU Cat-20 items and they further offered compensation equal to he quota rent exported against the forged documents. Learned counsel for the petitioners after consulting his client states that they are still bound by the said offer. Learned Federal Counsel after consulting with the concerned Officer is of the opinion that even going by the said officer, the consequences, would be the same as observed in the order by the said Vice Chancellor and was upheld by the Secretary. Be that as it may, as stated by me above, since the petitioners had throughout been stating that they are bound to surrender the excess quota, the same offer is binding upon the, and thus are bound in law as well as equity to abide by any comply the same. However, the matter of fine imposed by the Vice Chairman and the said offer made by the petitioners to pay compensation to the respondents equal to the quota/rent against the excess quantities exported against the forged documents needed to be properly considered by the Secretary, which has not been done.
14. For all what has been stated above, all the writ petitions are partly allowed and disposed of in the following manner:-
(i) The petitioners to surrender the excess quota as ordered by the Vice Chairman in his order and as per their own undertaking.
(ii) So far as the matter of imposition of fine is t concerned, the case is remanded to the Secretary (respondent No. 1) for re-hearing and decision of the review applications afresh after considering all the relevant facts and the offer of the petitioners vis-a-vis the fine imposed by the Vice Chairman.
15. A copy of this order be sent to the Secretary (respondent No. 1) immediately.