1. ' By this common judgment, I propose to decide the above appeals as common questions of law have been raised by the learned counsel appearing for the appellants.
2. ' The brief facts giving rise to the present appeals are that in Criminal Appeal No,77 of 1988 appellants Basharat A. Shaikh, Farooq A. Shaikh and Sohail Nasim were directors of Dost Muhammad Cotton Mills Limited, situated at A.15, Sindh Industrial Trading Estate, Manghopir Road, Karachi. The allegations against the appellants are that they had exported cotton yarn to M/s. Shahnal Trade Enterprises, Hong Kong and Dubai against Export Forms No,0001666, 0001667 and 0001668, and they failed to repatriate foreign exchange worth U.S. $ 9,04,840. The goods were exported through authorised dealers European Asian Bank, Karachi.
3. ' After' necessary investigation, the appellants were sent before the learned Sessions Judge and Tribunal F.E.R. Act, Karachi (South).
4. ' A formal charge was framed against the appellants, to which they pleaded not guilty.
5. ' After recording the necessary evidence, the learned Sessions Judge/Tribunal has convicted the appellants under section 23 read with section 12 of F.E.R. Act, 1947, and sentenced them to suffer S.I.
6. For three months and to pay fine of Rs,50,000 each in default of payment of fine to suffer further S.I.
7. For one month vide judgment, dated 5th May, 1988.
8. ' In Criminal Appeal No,78 of 1988, appellants Basharat, Farooq A. Shaikh and Tahir Ejaz were sent up under section 23 read with section 12 of F.E.R. Act, 1947, before the learned Sessions Judge/Tribunal F.E.R. Act South, Karachi on the allegation that they were Directors of M/s. International Trade Corporation Limited and they exported printed cotton bed-sheets with pillow covers and Art-silk Fabric to Dubai but failed to repatriate part of sale proceeds thereof within 120 days of the shipment.
9. ' After necessary investigation, the appellants were sent up before the learned Sessions Judge/Tribunal F.E.R. Act Karachi South.
10. ' A formal charge was framed against the appellants to which they pleaded not guilty.
11. ' After' the prosecution evidence was closed, the statements of the appellants were recorded under section 342, Cr.P.C. In which they have admitted the export but maintained that absconding accused Zafar S. Shaikh was managing the affairs of the export, and maintained that the sale proceeds have been repatriated. They have further stated that U.S. $ 3,60,000 were repatriated through Union Bank of Middle East by M/s. Shahal Trade Enterprises Dubai and a request was made to adjust the same against the said sale proceeds under these exports but no action was taken.
12. ' After taking into consideration the evidence produced by the prosecution and the statements of the appellants, the learned Sessions Judge/Tribunal was pleased to convict the appellants under section 23 read with section 12 of F.E.R. Act, 1947 and sentenced them to suffer S.I. For one month and to pay fine of Rs,30,000 each or in default of payment of fine to suffer further S.I. For six months.
13. ' In Criminal Appeal No,79 of 1988, appellants Basharat Shaikh, Farooq and Tahir Ejaz are alleged to have been Directors of International Trade Corporation Limited, and they had exported printed cotton bed-sheets with pillow covers to Dubai but failed to repatriate a part of the sale proceeds within four months of shipment in respect of export against Export Forms No,0016134, 0016710 and 0016712 and, therefore, they were prosecuted and sent up before the learned Sessions Judge/Tribunal F.E.R. Act, Karachi South.
14. ' A formal charge was framed against the appellants, which they pleaded not guilty.
15. ' After the prosecution closed its side the statements of the appellants were recorded under section 342, Cr.P.C. In which they have taken the same stand which they took in Criminal Appeal No,78 of 1988. The learned Sessions Judge/Tribunal after taking into consideration the evidence produced by the prosecution and the statements of the appellants has convicted them under section 12 of F.E.R. Act, 1947 and sentenced them to suffer R.I. For six months and to pay fine of Rs,50,000 each or in default of payment of fine to suffer further R.I. For six months vide judgment, dated 5th May, 1988.
16. ' The above appeals have been filed against the above judgments of convictions.
17. ' I have avoided to give the details of the evidence produced by the prosecution as the learned counsel appearing for the appellants has taken a preliminary objection regarding jurisdiction of the Tribunal, and, therefore, it was not necessary to give facts of each case in detail.
18. ' I have heard Mr. A.Q. Halepota, learned counsel appearing for the appellants in the above three appeals, Mr. Hayat Qureshi, learned counsel appearing for the State, and have gone through the R & Ps of the cases.
19. ' It was contended by Mr. A.Q. Halepota, learned counsel appearing for the appellants that in view of the amendment in the Finance Act, 1987 (Act VI of 1987) and the consequent amendment in the Foreign Exchange Regulation Act, 1947 (Act VII of 1947) which came into affect on 1st July, 1987, section 23-A of the above Act was amended, and the appellants could not be tried before the learned Sessions Judge/Tribunal under the F.E.R. Act, Karachi and consequently their trial and conviction was without jurisdiction. In this connection, the learned counsel has relied upon:--- ' PLD 1969 SC 187 and 1991 M LD 692.
20. ' Mr. Hayat Qureshi, learned counsel appearing for the State has contended that since the appellants did not raise objection before the learned Sessions Judge/Tribunal regarding jurisdiction at the time of their trial, the objection could not be taken at appellate stage.
21. ' I have considered the contentions and have gone through the R & Ps of the cases. In order to appreciate the contentions raised by the learned counsel appearing for the appellants and the State, it will be necessary to refer to the various provisions of the Foreign Exchange Regulation Act, 1947. In Criminal Appeal No,77 of 1988, the offence is alleged to have been committed in the year 1981, and the appellants were sent up before the Court in January, 1986. In Criminal Appeal No,78 of 1988, the incident took place in the year 1983, and the appellants were sent up before the Court in July, 1987, in Criminal Appeal No,79 of 1986, the incident took place in the year 1983 and the appellants were sent up in July, 1986, on the allegations that they committed breach of section 12 of Foreign Exchange Regulation Act, 1947, and as such, had committed an offence punishable under section 23(1) of Foreign Exchange Regulation Act, 1947, which reads 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 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."
22. ' Section 23-A(1) speaks about the setting up of Tribunals and reads as under:--- "Every Sessions Judge shall, for the areas within territorial limits of his jurisdiction, be a Tribunal for trial of offence punishable under section' 23 of the Act."
23. ' Subsection (6) of section 23-A provides forum for appeal and reads as under:--- "The State Bank of Pakistan or any person aggrieved by a judgment of Tribunal may within three months from the date of the judgment appeal to the High Court."
24. ' However, by Finance Act VI of 1987, number of amendments were introduced in various statutes including the Foreign Exchange Regulation Act, 1947, which came into effect on 30th June, 1987, section 23 of subsection (1) as amended up to date reads as under:--- "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 subsections (2), (3) and (5) of section 3, subsection (3) of section 4, section 10, subsection (1) 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."
25. ' Likewise, new subsections 23-B to 23-J were added in the Act. Section 23-B empowers the Federal Government to authorise in relation to any area specified in the Notification any officer of the State Bank to act as Director Adjudication, Additional Direction Adjudication, Senior Deputy Director of Adjudication, or Deputy Director of Adjudication by Notification in the official Gazette. Adjudication 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 Adjudication Officer subordinate to him.
26. ' 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."
27. ' Subsection (9) of section 23-B enjoins upon the Adjudicating Officer to hold enquiry for the purpose of determining whether a person has contravened any of the provisions of subsection (4),
(5) or (6) and reads as under:--- "(9) For the purpose of determining whether a person has contravened any of the provisions of subsection (4), (5) or (6), the Adjudicating Officer shall hold an enquiry 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."
28. ' Section 23-C and subsection (4) of section 23-C empower the Federal Government to constitute as many Appellate Boards, each to be called Foreign Exchange Regulation Appellate Court as it may think necessary, and where it establishes more than one Appellate Court to specify in the notification, territorial limits within which each one of them shall exercise jurisdiction. The Appellate Court shall consist of a person who is or has been or is qualified for appointment as Judge of a High Court or a District Judge or an Additional District Judge. Section 23-C further provides that a person aggrieved by an order of the Adjudicating Officer may within thirty days'of such order prefer an appeal to the appellate Court within whose jurisdiction, the order is passed.
29. 23-C subsection (4) provides that:- "No appeal shall be admitted for hearing unless the appellant deposits in cash with the appellate Court, the amount of penalty or at the discretion of the appellate Court furnish security equal in value to such amount of penalty."
30. ' Section 23-E envisages that the Adjudicating Officer and the appellate Court shall have all the powers of the Civil Court under the Code of Civil Procedure, 1908, while section 23-F provides that the proceedings before Adjudicating Officer or Appellate Court shall be deemed to be judicial proceedings within' the meaning of sections 193, 228, P.P.C. And the Adjudicating Officer and Appellate Court shall be deemed to be Court for the purpose of sections 480 and 482 of the Code of Criminal Procedure.
31. ' However, the amending Act VI of 1987 did not make any provision regarding pending proceedings, and the question arises whether in spite of amendment in section 23 and the enactment of sections 23-B to 23-J of Act VI of 1987, the learned Sessions Judge continued to have jurisdiction to try the offences.
32. ' The bare reading of the above amendments will show that the offence under section 12 was no more triable before the learned Sessions Judge/Tribunal after 30th June, 1987, but if there was any violation of any of the provisions of section 12, the matter had to be referred to the Adjudicating Officer as envisaged by section 23-B(1), and the order passed by the Adjudicating Officer could be challenged in appeal before the Appellate Board as envisaged by section 23-C. The bare perusal of the amendments further show that they are procedural in nature, and in no way the accused/appellants were prejudiced by the said amendments. The amendments in procedure are always retrospective unless the same take away the rights of the parties by taking away or confirming any right of action, its enactments unless they apply to pending action in express terms, do not affect them. It is obvious that the matters relating to the remedy, the mode of trial, the matter of taking evidence' and forms of action, are all matters relating to procedure. In this regard, it will be appropriate to refer to the view taken by Crawford that questions relating to jurisdiction over a cause of action, venue, parties, pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted.
33. ' In this connection reliance is placed on the case of Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 (observation at page 191), wherein it has been observed that:--- "The general principle with regard to the interpretation of statutes as laid down in the well-known case of the Colonial Sugar Refining Company Limited v. Iriving 1905 AC 369 is 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 extending from the time of Lord Coke to the present day', the legislation would not operate retrospectively, unless the legislature had either `by express enactment or by necessary intendment', given the legislation retrospective effect."
34. ' In this connection reliance is also placed on State Bank of Pakistan v. Khalid Rashid 1991 M LD 692 wherein the judgment of Tribunal was set aside on identical ground.
35. In view of the above discussion and the factual as well as legal position, the amendments being procedural in nature, and the same being more beneficial to the appellants, they were retrospective in nature. Thus, the learned Sessions Judge had no jurisdiction to try the appellants for contravention of provisions of section 12 of the Foreign Exchange Regulation. Act, 1947 and, as such the appeals are allowed, the conviction and sentences of the appellants are set aside, and they are acquitted of the charges. They are on bail and their bail bonds stand discharged.
36. ' However, the State Bank will be at liberty to take appropriate action against the appellants under the amended provisions of law.