' This will dispose of Criminal Appeals Nos.
373. 376, 378, 379, 380 and 381 of 1989 by the State Bank of Pakistan; they are directed against a consolidated judgment dated 15-1-1989 of the learned Sessions Judge, Lahore exercising the powers of Foreign Exchange Regulation Tribunal under section 23A of the Foreign Exchange Regulation Act, 1947 (to be referred to as the Act), whereby the respondents were acquitted in special cases Nos. 7, 10, 30, 31, 37, 38, and 39 of 1988.
2. The respondent, Mr. Khalid Rashid Sheikh, is one of the Directors of Messrs Miraj Sons Limited, Lahore. Messrs Miraj Sons Limited (hereinafter to be referred to as the company) deals in canvas goods, carpets etc. In 1974, the company exported their goods to Hong Kong through the City Bank, Lahore. On 14-9-1988, challans were filed in the Court of the learned Sessions Judge as the Tribunal under the Act (hereinafter in this judgment to be called the Tribunal), the allegations being that the respondent had failed to realise the sale proceeds of the goods so exported within the stipulated period of four months and had, therefore, committed an offence against section 12 read with section 23 of the Act. The cases against the respondent had been registered on 20-5-1984. The respondent made an application under section 249-A of the Cr.P.C., praying for his acquittal. The learned Tribunal accepted the application by its order dated 15-1-1989. In so doing, the learned Tribunal among others held that 'there is nothing to militate against the assertion of the petitioner that he did not delay the disposal of the exported goods. Neither section 4 nor section 12 is attracted nor any offence under the Act is made out. Mere breach of undertaking to repatriate sale proceeds of exported goods does not make exporter criminally liable for offence under sections 12 and 23 of the Act". For this view, the learned Tribunal relied upon Abdul Ghaffar v. State (1977 Pakistan Criminal Law Journal 119), where it was held that "guilty intention of the exporter is a condition precedent for criminal prosecution". In that behalf, the learned Tribunal referred to the statements under section 161 of the Cr.P.C. Of prosecution witnesses and noticed that those witnesses had not "alleged that the exporter was knowingly a party to the offence or he had guilty intention". The learned Tribunal went on to say that "there is nothing to controvert the assertion of the petitioner that in fact the Company had suffered huge losses in these transactions, having not received foreign exchange at all and in fact, it had been trying its utmost to effect its recovery but without any success".
3. The appeals are admittedly barred by time. As has been noticed above, the judgment of the learned Tribunal was handed down on 15-1-1989. Under section 23-A, subsection (6) of the Act, the State Bank of Pakistan had a period of three months commencing from the date of judgment to prefer appeal. The Bank applied for copies on 14-3-1989 and the copies were delivered on 27-3- 1989. Thus, time for the appeals expired on 28-4-1989. The appeals were, however, preferred on 4- 5-1989. The appeals are accompanied by applications under section 5 of the Limitation Act; it is stated that the appellants' counsel could not "file the aforesaid appeal within the stipulated period for the reason that he was confined to bed from the 24th of April to 3rd May, 1989 because of severe low back pain and thus was confined to bed on medical advice" and that "the delay of seven days, was neither intentional nor deliberate but it was due to the aforesaid reason". It is said that "since the matter in the aforesaid case is an important one, in which huge foreign exchange is involved, it would be in the interest of justice that the delay is condoned".
4. The applications are supported by the affidavits sworn to by Mr. Rehan Nawaz, counsel for the appellant.
5. The applications were opposed by learned counsel for the respondents on the ground that these are appeals against acquittal; that sickness of the counsel is not a good ground for condoning the delay, for the appellant State Bank of Pakistan has given no explanation for not preferring the appeal within the time limited by law. He argued that for the purposes of limitation, the State Bank of Pakistan is to be treated on par with other litigants.
6. I confess to my reluctance to accept the explanation furnished by the appellant, namely, that the appellant's counsel had fallen sick, for no reason has A been adduced by the appellant itself for not ensuring that the appeals were filed within the prescribed period. However, as will be presently seen, the learned Tribunal had long before the judgment in question ceased to have jurisdiction to try and decide these cases and that in my opinion is a sufficient ground for thecondonation of the delay.
7. Learned counsel for the appellant conceded that the offence, of which the respondent was accused, was an offence against Section 12, sub-section (1) of the Act. As observed above, the offence was committed somewhere in the year 1974 and the challans were filed before the learned Tribunal in 1988. At those dates, Section 23, sub-section (1) was as follows: "Whoever contravenes, attempts to contravene or abets the contravention of any of the provisions of this Act or any rule, direction or order made thereunder, shall notwithstanding anything contained in the Code of Criminal Procedure, 1898, be tried by a Tribunal constituted by section BA, and shall be punishable with imprisonment for a term which may extend to two years or with fine or with both, and any such Tribunal trying any such contravention may, if it thinks fit, and in addition to any sentence which it may impose for such contravention, direct that any currency, security, gold or silver, or goods or other property in respect of which the contravention has taken place shall be confiscated."
' By section 23-A, subsection (1) of the Act, every Sessions Judge is, for the areas within the territorial limits of his jurisdiction, a Tribunal for trial of an offence punishable under section 23 and by sub-section (6) thereof, "the State Bank of Pakistan or any other person aggrieved by a judgment of a Tribunal may, within three months from the date of judgment, appeal to the High Court".
8. When the appeals first came on for hearing, neither of the parties' counsel appeared to be cognizant of the fact that by Act VI of 1987, section 23 had been amended and a number of other consequential amendments had been made in the Act. Act VI of 1987 came into force on 30-6- 1987. The amended section 23 reads: "Whoever contravenes, attempts to contravene or abets the contravention of any of the provisions of this Act or of any rule, direction or order made thereunder other than the provisions of sub- sections (2) (3) and (5) of section 3, subsection (3) of section 4, section 10, subsection j1) of section 12 and subsection (3) of section 20 or any rule, direction or order made thereunder, shall notwithstanding anything contained in the Code of Criminal Procedure, 1898, be tried by a Tribunal constituted by section 23-A, and shall be punishable with imprisonment for a term which may extend to two years or with fine or with both, and any such Tribunal trying any such contravention may, if it thinks fit, and in addition to any sentence which it may impose for such contravention, direct that any currency, security, gold or silver, or goods or other property in respect of which the contravention has taken place shall be confiscated."
' (The underlining shows the amendments made and are mine.)
By Act VI of 1987, new sections 23-b to 23-J were inserted in the Act. The sections relevant for the purposes of these appeals are section 23-B, 23-C and 23- E. Section 23-B empowers the Federal Government by notification in the Official Gazette to authorize in relation to any area specified in the notification any officer of the State Bank to act as the Director of Adjudication, an Additional Director of Adjudication, a Senior Deputy Director of Adjudication, a Deputy Director of Adjudication and an Assistant Director of Adjudication (referred to as the Adjudicating Officer). An Adjudicating Officer may exercise the powers and discharge the duties conferred or imposed on him by the Act "and shall also be competent to exercise the powers and discharge the duties conferred upon any Adjudicating Officer subordinate to him". Subsection (4) of section 23-B of the Act provides: "Save as provided in subsections (5) and (6), if any person contravenes or attempts to contravene or abets the contravention of the provisions of subsections (2), (3) and (5) of section 3, subsection
(3) of section 4, section 10, subsection (1) of section 12 or subsection (3) of section 20 or any rule, direction or order made thereunder, he shall be liable to such penalty not exceeding five times the amount or value involved in such contravention or five thousand rupees, whichever is more, as may be adjudged by the Director or Additional Director of Adjudication or any other Adjudicating Officer having jurisdiction under subsection (8) to take cognizance of such contravention, and, if he persists in such contravention or where the contravention or default is continuing one, to a further penalty which may extend to two thousand rupees for every day during which the offence or, as the case may be, the contravention or default continues."
' Subsection (7) of section 23-B makes provision for calculating the amount or value of the foreign exchange and subsection (8) provides for the jurisdiction and powers of the Adjudicating Officer.
Subsection (9) of section 23-B provides: "For the purpose of determining whether a person has contravened any of the provisions of subsections (4), (5) or (6), the Adjudicating Officer shall hold an inquiry in the manner prescribed, if any, after giving such person a reasonable opportunity for making a representation in the matter and if, on such inquiry, he is satisfied that the person has committed any contravention, he may impose the penalty provided for in this section."
' Boards, each to be called the Foreign Exchange Regulation Appellate Board, as it may think necessary, and where it establishes more than one Appellate Board, to specify in the notification the territorial limits within which each one of them shall exercise jurisdiction. The Appellate Board "shall consist of a person who is, or has been, or is qualified for appointment as a Judge of a High Court or a District Judge or any Additional District Judge". Section 23-C further enacts that a person aggrieved by an order of the Adjudicating Officer may, within 30 days of such order, prefer an appeal to the Appellate Board within whose jurisdiction the order is passed. Subsection (4) of section 23-C says that "no appeal shall be admitted for hearing unless the appellant deposits in cash with the Appellate Board the amount of penalty or, at the discretion of the Appellate Board, furnishes security equal in value to such amount of penalty". Section 23-E enacts that the Adjudicating Officer and the Appellate Board shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908, while trying a suit in respect of the matters enumerated therein and section 23-F says that the proceedings before an Adjudicating Officer or Appellate Board shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Pakistan Penal Code and an Adjudicating Officer and Appellate Board shall be deemed to be a Court for the purposes of Sections 480 and 482 of the Code of Criminal Procedure, 1898.
9. Unfortunately, I had not had the advantage of hearing the appellant's counsel on the effect of the amendments referred to above on the jurisdiction of the learned Tribunal to try these offences and to make the impugned orders, for he did not care to appear before me on 15-12-1990, the date fixed for the purpose. Learned counsel for the respondent referred to section 6, clause (e) of the General Clauses Acts, 1897, to contend that pending proceedings such as the proceedings in these cases were saved.
10. The amending Act VI of 1987 did not make any provision for pending proceedings and the question whether despite the amendment of section 23 and the enactment of sections 23-B to 23- J by Act VI of 1987, the learned Sessions Judge, under section 23-A, continued to have jurisdiction to try these offences is a question of interpretation. Section 6 of the General Clauses Acts provides: "Where this Act or any Central Act repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not:--
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed."
11. One begins, therefore, by asking the question--whether "a different intention appears" from the amendments effected by Act VI of 1987. The answer E appears to be in the affirmative.
12. It has been seen that under section 23-A of the Act, every Sessions Judge is a Tribunal "for trial of an offence punishable under section 23". To put differently, the Sessions Judge is, under section 23- A, a Tribunal to try only those offences as are punishable under section 23. If an offence is not an offence punishable under that section, the Sessions Judge is not, as regards that offence, a Tribunal. Thus, it is a necessary condition precedent to the Sessions Judge acting as the Tribunal under section 23-A that the offence is one of the offences punishable under section 23. The effect produced by the amendment made in section 23 by Act VI of 1987 was that as from 30-6-1987 the offence under Section 12, subsection (1), ceased to be an offence punishable under that section. It follows inevitably, therefore, that the learned Sessions Judge had ceased to be a Tribunal for the trial of the offence, for which the respondent was being tried and that at the date of the impugned judgment he had no jurisdiction to try that offence and to decide these cases.
13. On general principle also, the offence under section 12, subsection (1) of the Act had, with the amendments made in section 23 and the enactment of sections 23-B to 23-J, ceased to be triable by the learned Sessions Judge as the Tribunal under section 23-A of the Act. It is a fundamental principle that "if the matter in question be a matter of procedure only, the provisions would be retrospective; on the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, then in accordance with a long line of authorities the legislation would not operate retrospectively, unless the legislature had either by express enactment or by necessary intendment given the legislation retroactive effect." (See Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187). In that c ase, it was held that "matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure". Thus, a statute purporting to transfer jurisdiction over certain causes of action may operate retrospectively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. It was, ho wever, pointed out that "if in this process any existing rights are affected or the giving of retroactive operation causes inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retrospective application will tend to promote justice without any consequential embarrassm ent or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively."
14. In the precedent case, an application for maintenance under section 488 of the Cr.P.C. Was pending, when the West Pakistan Family Courts Act, 1964, came into force, conferring exclusive jurisdiction to "entertain, hear and adjudicate upon matters specified in the schedule" upon the Family Court, `maintenance' being one of those matters, and the question was whether this affected the jurisdiction of the Magistrates in pending matters. It was held that the matter related to the change of forum and was a matter of procedure; that the Family Courts Acts had retrospective effect and that the Magistrates had ceased to have jurisdiction in the matters specified in the schedule, including maintenance. A comparison of the provisions of section 488 of the Cr.P.C. With the provisions of the Family Courts Act indicated that the provisions of the latter act were of a more beneficial nature, "which enlarge not only the scope of the enquiry but also vest the Court with powers of giving greater relief with a right of appeal either to the District Court or to the High Court. Furthermore, the combined effect of sections 5 and 20 of the Act is clearly to give exclusive jurisdiction to the Family Courts without, in any way, diminishing or curtailing the rights already possessed by a litigant with regard to the scheduled matters".
15. It has been seen that before its amendment, section 23 of the Act punished an offence under section 12, subsection (1) of the Act with imprisonment for a term, which could extend to two years, with fine or with both and the offence was a cognizable offence. Further, the Tribunal under section 23-A had the powers of a Magistrate of the Ist Class in relation to criminal trials and was to follow the procedure provided in the Code of Criminal Procedure before such Magistrates and had all the powers provided in that Code in respect of arrests, warrants, investigation etc. Under the newly- enacted section 23-B, subsection (4) , the jurisdiction to try certain offences, including the offence under section 12, subsection (1) of the Act vests in the Adjudicating Officer. By subsection (4) of that section, a person guilty of such an offence is liable "to such penalty not exceeding five times the amount or value involved in such conravention or five thousand rupees, whichever is more" and "if the person persists in such contravention or where the contravention or default is continuing one, to a further penalty which may extend to two thousand rupees for every day during which the offence or, as the case may be, the contravention or default continues". Section 23-C provides an appeal to the Appellate Board, which consists "of a person who is, or has been, or is qualified for appointment as a Judge of a High Court or a District Judge or an Additional District Judge" and under section 23-E, the Adjudicating Officer and the Appellate Board have all the powers of a Civil Court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the matters enumerated therein. This comparison of the unamended provisions of Sections 23 and 23-A of the Act and the provisions of the Act as amended by Act VI of 1987 shows, and shows clearly, that the amended provisions are more beneficial to the person accused. The offence such as an offence under section 12, subsection (1) is under the amended law not punishable with imprisonment and the Adjudicating Officer and the Appellate Board, in whom the power to try the offence and to hear the appeal is now vested do not do so under the Code of Criminal Procedure and the powers that they exercise are powers exercisable by a Civil Court while trying a suit.
16. In the result, I would hold that the learned Sessions Judge had no jurisdiction to try the offence under section 12, subsection (1) of the Act at the date of his impugned judgment dated 15-1-1989. I, therefore, accept the appeals and set aside the impugned judgment as being without jurisdiction.