SAJJAD ALI SHAH, J. -The learned Single Judge of this Court has formulated a question, reproduced hereunder which has been referred to this Division Bench, specially constituted for the purpose, for reply with regard to the correct interpretation: "Whether provisions of Foreign Exchange Regulation Act, 1947, are not applicable to foreigners but only to Pakistani citizens and the persons in the service of Government, wherever they may be (section 1 (2) of the Foreign Exchange Regulation Act, 1947).
Consequently any Notification issued under the said Act regulating certain matters under the said Act, as far as foreigners are concerned, such Notification would be without lawful authority."
2. The Foreign Exchange Regulation Act was promulgated on 11th March, 1947 (hereinafter to be referred as the said Act). The question referred relates to the interpretation of section 1 (2) of the said Act, which pertains to the application of the law. Since question is purely of interpretation, simple and plain rules of interpretation of statute would provide correct guidelines. The first two such rules are that it is imperative for the Court to discover the intention of the author/Legislature and such intention is to be gathered from the words used in the statute or documents. The second rule is that the intention of the Legislature is enacting a statute is to be derived from a consideration of the whole enactment in order to arrive at a consistent plan. Keeping in view these guidelines now we go back to the said Act. Interpretation of subsection (2) of section 1 of the said Act has been called in question, hence it is neces--sary to reproduce subsection (2) which reads as under :- "It extends to the whole of Pakistan and applies to all citizens of Pakistan and persons in the service of Government wherever they may be."
3. Mr. Raja Qureshi has argued that it appears from the language and the words used in subsection
(2) of section 1 of the Act reproduced above that it is not applicable to foreigners but it is applicable to all citizens of Pakistan and additionally to the citizens of Pakistan and, other persons in the service of Government, who are abroad. It is further argued by- Mr. Raja Qureshi that the word `Foreigner' is purposely not used in this Act in order to exclude him from application of the provisions of this law.
We do not find persuasive force in the argument of Mr. Raja Qureshi for the reason that the first sentence used in subsection (2) mentioned above very clearly and in unequivocal and unambiguous terms extends the juris. Diction under the said Act to the whole of Pakistan and in the ambit of territorial jurisdiction foreigners are also included. The intention of the Legislature behind this Act can be gathered by looking at the title of the Act, preamble and also the other provisions of the said Act. The title of e the Act is `Foreign Exchange Regulation Act'. The subject-matter is very clear that the Act deals- with foreign exchange and in such transactions foreigners can also be included preamble further envisages that this Act has been enacted keeping in view the background that it is expedient in the economic and financial interests of Pakistan to provide for the regula--tion of certain payments, dealings in foreign exchange and securities and the import and export of currency and bullion. It is, therefore, clear that by regulating payments, dealings in foreign exchange and securities and import and export of currency and bullion, involvement of foreigners can--not be ruled out of consideration in totality. Secondly, this Act is made, applicable to the whole of Pakistan, that shows territorial jurisdiction and within that territorial jurisdiction foreigners are fully covered. If the intention was to exclude the foreigners, the Legislature would have specifically said so in express terms that this law extends to the whole of Pakistan with the exception of foreigners. Another angle is that when this law is made applicable to the whole of Pakistan, it indicates territorial jurisdiction and shall most certainly apply to all persons who are in Pakistan including foreigners who indulge in dealings specifically mentioned above and in any such person whether he is a Pakistan or a foreigner, contravenes the pro--visions of this Act he is liable to be proceeded against as contemplated under the Act. The word `and' in subsection (2) mentioned above is used in conjunctive sense and caters for additional extra-territorial jurisdiction for application of this Act to all citizens of Pakistan and persons in the service of Government wherever they may be, which shows that if they are outside Pakistan this law would apply to them extra-territorially.
4. Mr. Aziz Munshi, the learned Deputy Attorney-General has referred us to section 13 (1) of the said Act which relates to regulation of export and transfer or securities. It provides that no person or persons except with the general or special permission of the State Bank take or send any security to any place outside Pakistan or transfer any security or create or transfer any interest in a security to or in favour of a person resident outside Pakistan. We do not propose to reproduce whole sec-- tion 13 here but it clearly appears that foreigners are included in the activities specified in this section. In subsection 5 (d) of this section definition of "a person resident outside Pakistan.' is given as including a foreign national for the time being resident in Pakistan and also includes "a company registered in Pakistan which is directly or indirectly con--trolled by a person resident outside Pakistan."
5. This section stated above restricts export and transfer of securities and envisages several kinds of transactions which are not permissible without he having obtained general or special permission of the State Bank of Pakistan. Securities are further divided into "Pakistani securities" and "Foreign Securities". In the context of securities, carrying or sending insurance policies outside Pakistan for assigning these policies in favour of a person resident outside Pakistan is an offence.
So far securities registered in Pakistan are concerned, the companies interested have to obtain permission of State Bank of Pakistan before effecting their transfer in the name of a person resident outside Pakistan in their registers maintained for this purpose. It is obligatory upon all authorised dealers to obtain permission of the State Bank of Pakistan before purchasing shares and securities registered in Pakistan of above persons resident outside Pakistan. Any person in Pakistan who is holder of foreign securities and he wants to sell these securities abroad through agents, brokers and bankers, has to apply to the State Bank of Pakistan through an authorised dealer for permission to grant necessary export licence.
6. Section 13 also covers the case of foreign national residing tempo--rarily in Pakistan, who wants to purchase N. I. T. Units and other Government securities on the basis of repatriation and such request can be granted with certain conditions.
7. Section 13, therefore, clearly shows involvement of foreign nationals to whom this Act does apply without any reservation.
8. Furthermore, our attention has been drawn to section 4, which deals with restrictions in dealing with foreign exchange, section 5 which relates to restrictions of payments, section 8, which relates to import and export of certain currency and bullion and section 20, which relates to supplemental provisions. Provisions contained in all these sections mentioned above clearly manifest the intention of the Legislature that this Act does apply to foreigners.
9. Section 4 of the said Act contemplates that no person other than an authorised dealer can by or sell or exchange with any person not being an authorised dealer, any foreign exchange. Section 5 empowers the State Bank to save from provisions of this subsection for making payments outside Pakistan. Section 8 contemplates that no person shall except with the general or special permission of the State Bank can bring or end into .Pakistan any gold or silver or any currency notes or bank note or coin whether Pakistan or foreign. Under subsection (s) of this section there is similar provision for sending out from Pakistan any gold, jewellery or precious stones, or Pakistan currency notes or bank notes or coin or foreign exchange. Furthermore, section 20 provides for maintaining the status of non-residents and authorises State Bank to issue directions to ensure compliance with the provisions or this Act and any rules and directions made thereunder.
10. Provisions quoted from the said Act as stated above makes the intention of the Legislature very clear that this law is, applicable to foreigners in Pakistan. After hearing the arguments of Mr. Aziz Munshi as stated above when he quoted different provisions from the said Act and particularly section 13 which relates to securities, Mr. Raja Qureshi half conceded that law is applicable to foreigners who are resident in Pakistan. If 'this is so, then we do not find any basis in the argument of Mr. Raja Qureshi that section 1 (2) of the said Act, when it provides that this Act extends to whole of Pakistan, excludes foreigners from application of this law.
11. For comparison we have seen the Foreign Exchange Regulation Act, 1947, as applicable in India and the provisions are the same and the language used in section 1(2) of that Act is also similar and states that it extends to the whole of India except the State of Jammu and Kashmir and it applies also to all citizens of India outside India. In both these Acts the relevant section and particularly that portion of section which relates to territorial jurisdiction is almost the same and the intention is obvious that in its territorial application foreigners are not excluded.
12. In the said Act which is applicable in Pakistan there is no defect of drafting in section 1(2) and after having considered all the provisions of the said Act we have come to the conclusion that this Act applies to foreigners, who are covered in the territorial application of this Act to the whole of Pakistan.
13. Since we have held above that foreigners are included in the application of the said Act, the second question under reference with regard to the Notification issued under the said Act cannot be said to be without lawful authority. Under section 8 of the said Act the Federal Government D is authorised to issue Notifications to be published in the official Gazette. No exception can be taken to such Notification which has perfect cover of law. In the result reference is answered in the terms stated above.