1. ' NASIM HASAN SHAH, J.--.Leave was granted in the above-noted appeal to examine the scope and effect of paragraph 7(5) of Import Policy Order dated 1-7-1979 as also the effect of the amendment in this behalf introduced by S.R.O. 1040(1)/80, dated the 13th October, 1980.
2. ' The facts which form the background to the above order and the findings of the High Court necessitating the petition for leave to appeal to this Court can be appreciated by reference to the following extracts from the judgment of the High Court: "In order to appreciate the contentions of the learned counsel for the parties, it would be appropriate to trace out the brief legislative history of trade relations between Pakistan and India. It is an admitted fact that there were no trade restrictions between India and Pakistan, both on private as well as public sector before 1965-War. Thereafter, the trade relations remained suspended for a period of about ten years and were resumed in 1975 under the India Pakistan Trade Protocol of the 30th November, 1974, which has since expired in January, 1978. Status quo was, however, maintained till 30-6-1978 in view of the trade talks between India and Pakistan."
3. ' It may be pointed out that according to the petitioners (respondents herein), there was no bar on the import of goods of Indian origin from any other country during the currency of India Pakistan Trade Protocol of 1974. From 1-7-1976, till the promulgation of Import Policy Order, 1979, bilateral trade was allowed to private sector. Neither the Deputy Attorney-General nor the Assistant Controller of Imports and Exports were, in a position to specifically deny this assertion of the petitioners (respondents herein). It may be further pointed out that the Chief Controller of Imports and Exports was required to issue Notification in respect of import of goods from India, the importing agencies and the procedure for imports. No Notification has been produced by the respondents (appellants herein) to show that the import of goads of Indian origin from any country other than India by the private sector was banned.
4. ' Under Para. 7(1) of the Import Policy Order, 1974, there was total ban on the import of goods from India and of goods originating from India. The aforesaid provision reads thus:- "7. SOURCES OF IMPORT.--(1) General Import under Cash will be permissible from all countries except where otherwise specified. In case of loan credit, US-PL-480, barter or trade agreement, import shall be made only from the source specified. No import shall be permissible from Israel, South Africa, Taiwan Province of the People's Republic of China, India, Rhodesia or of goods originating from any of these countries. (Underlining is mine)
5. ' In the year 1975, a change was made in the import policy and import of goods from India (including goods of Indian origin) was made permissible by modifying para 7(1) and (7) of the Import Policy Order, 1975, which read thus:- "7. SOURCES OF IMPORT (I) GENERAL.--Import under Cash will be permissible from all countries except where otherwise specified. In case of loan credit US-PL-480-barter or trade agreement, import shall be made only from the source specified. No import shall be permissible from Israel, South Africa, Taiwan Province of the People's Republic of China, Rhodesia or of goods originating from these countries.
(7) Import of goods from India (including goods of Indian origin) will be permissible in accordance with the India-Pakistan Trade Protocol of 30th November, 1974. The goods, the importing agencies and the procedure for imports will be notified by the Chief Controller of Imports and Exports."
6. ' The position was further changed in the Import Policy Order, 1976, wherein para. 7 did not contain any corresponding provision of Para 7(7) of Import Policy Order, 1975. Para. 7 of the Import Policy Order, 1976, reads thus:- "7. SOURCES OF IMPORT.-- (1) General Import under Cash will be permissible from all countries except where otherwise specified. In case of loan credit US-PL-480, barter or trade agreements, import shall be made only from the source specified. No import shall be permissible from Israel, South Africa, Taiwan Province of the People's Republic of China, Rhodesia, or of goods originating from any of these countries.
(2) FERRO-CHROME.--Import from any country of ferror-chrome manufactured from materials exported from Rhodesia shall not be permissible. No clearance of ferro-chrome will be allowed unless the importers concerned furnish the Customs authorities with certificates from the suppliers abroad to the effect that their imports are not attracted by this ban.
(3) Import of the items listed in Annex. IV shall be permissibleexclusively from Turkey.
(4) Import of dates shall be allowed exclusively under the trade agreement with Iraq, on the basis to be announced by the licensing authority."
7. ' The position remained unchanged under the Import Policy Order 1977 and 1978. Para. 7(5) of the Import Policy Order 1979 restricts import of goods from India (including goods of Indian origin) to public sector agencies. However, no restriction has been placed Under para. 7(1) for the import of goods of Indian origin from any, country other than. India by the private sector.
8. ' The relevant provision of the Import Policy Order 1979 reads:- "7. SOURCE OF IMPORT.-- (1) General.- Import under _cash will be permissible from all countries except where otherwise specified. In case of loan credit US-PL-480, barter or trade agreements import shall be made only, from the source specified. No import shall be permissible from Israel, South Africa, Taiwan Province of the People's Republic of China, Rhodesia or goods originating from any of these countries
(5) Import of goods from India (including goods of Indian origin) will be allowed to public sector agencies. While trade on Pakistan side will be conducted through public sector agencies only, on the Indian side both the private as well as public sectors may participate in such trade."
9. ' The same position was maintained in the Import Policy Order 1980 on trade with India. However, amendment was made under Para. 8(1) wherein import from Israel, South Africa or of goods originating from these countries was totally banned but the restrictions earlier imposed on the import of goods from Taiwan Province of the People's Republic of China and Rhodesia of goods originating from any of these countries were deleted. The relevant provisions read thus:- SOURCE OF IMPORT-- (1) General-- Import under cash will be permissible from all countries except where otherwise specified. In case of loan, credit, US-PL 480, barter or trade agreements, import shall be made only from the source specified. No import shall be permissible from Israel, South Africa or of goods originating from these countries.
(4) Import of goods' from India (including goods of Indian origin) will be allowed to public sector agencies. While trade on Pakistan side will be conducted through public sector agencies only; on the Indian side both the private as well as public sectors may participate in such trade."
10. ' Para. 8(4) 'of the Impot Policy Order, 1980, was further amended vide Notification dated 13-10-1980.
11. The amended provision reads thus:- "8(4) Import, of goods from India (including goods of Indian origin from any country) will be allowed to public sector agencies. While trade on Pakistan side will be conducted through public sector agencies only, on the Indian side both the private as well as public sectors may participate in such, trade."
12. ' It is evident from the history of the Import Policy that the Government has in the past not totally banned trade relations between India and Pakistan in private sector. In the absence of specific denial by the respondents (appellants herein), I am inclined to agree with the stand taken by the petitioners (respondents herein) that bilateral trade between India and Pakistan was allowed to private sector from 1st July, 1976 and before Import Policy Order 1979. It is, therefore, difficult to hold that there is any ambiguity in para. 7(5) of the Import Policy Order, 1979. There is nothing in the said provision to show which could indicate to the trade circles that there was ban on the import of goods of Indian origin from any country. In these circumstances, recourse may be made to the general rules of the interpretation of statutes and documents having statutory validity in discovering the true intention of the legislature.
13. ' It is amply clear from the pharaseology used in Para. 7(5) of the Import Policy Order, 1979, that the import of goods whether or not of Indian origin was restricted from India only and not goods of Indian origin through any other source. The omission of the phrase "from any other country" within parenthesis in para. 7(5) was not merely accidental. This conclusion is fortified on reference to the pharaseology used in para. 7(1) wherein the import is not permissible from Israel, South Africa, Taiwan Province of People's Republic of China and Rhodesia but also of goods, originating from any of these countries. If the intention of the legislaure was that the import of goods from India including goods of Indian origin from any other country will be restricted to public sector agencies alone, it would have used the unambiguous pharaseology of para. 7(1) in subparagraph (5) thereof as was rightly done by amending para. 8(4) of the Import Policy Order, 1980. By no stretch of imagination, the scope of Para. 7(5) could be extended to import of goods of Indian origin from countries other than India. The provisions of para. 7(5) of the Import Policy Order, 1979, are in the nature of an exception clause which must, be strictly construed in accordance with the accepted principles of interpretation.
14. ' Coming to the effect of the amendment introduced by S.R.O. 1040(1)/80, dated the 13th October, 1980, the, learned Judge observed, "The change in the Import Policy 'Order 1980, through the amending provisions cannot affect past and closed transactions and the petitioners (respondents herein) have a vested right to demand that their case be decided according to the law as it existed when the action was begun, unless the amendment shows a clear intention to the contrary.r I am, however, of the considered view that the amendment does not operate retrospectively."
15. ' As a result of these findings the orders for the confiscation of the goods imported by the respondents herein were held to be without lawful authority and of no legal effect and these were ordered to be released forthwith subject to the payment of import duty in accordance with law.
16. ' In support of this appeal, Mr. M.Bilal, Deputy Attorney-General, submitted that the view of the High Court that under the Import Policy Order, 1979, "the import of goods from India (including the goods of Indian origin) will be conducted through public sector agencies" does not have the effect of prohibiting import of goods of Indian origin by the private traders and that clause (5) of para. 7 of the Order is only in the ,nature of an exception to this rule, which must be strictly construed, is not correct.
17. ' According to him, goods of Thdian origin whether imported directly from India or from the countries other than India are banned under the Import Policy Order 1979 and the amendment made on 13-10-1980 only clarifies this position-- a position which obtained even before. But we are not inclined to agree with him.
18. ' It is manifest that the expression "origin of goods" connotes something different from and cannot be equated with the expression "place from which the goods are imported". A look at the show- cause notice issued to the respondents itself bears out this difference. It shows that the respondents were charged for having imported goods of Indian origin" but from a country other than India i.e, from Dubai. According to the respondents what was forbidden by the Policy Order was import of goods from India (including goods of Indian origin) but there was no prohibition against the import of goods of Indian origin which are not imported directly from India but are imported from any other country because import of goods of Indian origin from any country was not banned then, but this was done much later by the issuance of the Notification, dated 13th October, 1980. By this Notification import of goods from India (including goods of Indian origin from any country) could be made only through the public sector agencies. The submission is that this was not the law at the time when the goods were imported and no express prohibition to import of Indian goods was provided in the Import Policy Order, 1979. According to clause (1) of para. 7 thereof import only from certain named countries namely Israel, South Africa, Taiwan Province of the People's Republic of China, Rhodesia or goods originating from any of these countries was impermissible., ' So far as import of goods from India was concerned it is conceded that some restrictions were placed under clause (5) of para. 7 in that import of goods from India (including goods of Indian origin) was confined to public sector agencies only. But clause (5) of para. 7 aforecited, it is submitted, is in the nature of a permissible provision and not a prohibitory provision and does not nullify the ampleur of the provisions of clause (1) of para.
7. Furthermore, it is concerned with direct trading between public sector agencies in Pakistan and is not concerned with import of goods of Indian origin by private agencies. Moreover, it was confined to import of goods from India i.e it is confined to those goods which are directly imported from India. Since there is no ban to import of goods originating from India but coming from other countries, such goods do not become contraband goods.
19. ' There is force in these submissions. As already stated the ban contained in the Import Policy Order, 1979, was directed only to goods of Israel, South Africa, Taiwan a province of the People's Republic of China, Rhodesia or goods originating from any of these countries. It was only later on i.e, on 13-10-80 that a similar ban was imposed` for the first time in relation to goods originating from India. The Government apparently was becoming wiser by lapse of time and by stages, but the amendment made on 13-10-1980 could not, as rightly pointed out by the High Court, apply to the goods which were imported much earlier.
20. ' In the result when the disputed goods were imported by the respondents and arrived in Pakistan notwithstanding the fact that they were goods of Indian origin having been lmported not from India but from another country (Dubai) they were not liable to confiscation in terms of Import Policy Order, 1979, then in force.
21. ' The upshot is that the conclusions of the High Court are upheld and we find no force in this appeal.
22. It is accordingly, dismissed with costs.
23. Appeal dismissed.