1. SYED RAIDER ALI PIRZADA, J.--The petitioner through this petition has claimed the following reliefs:- "(A) Declare that the order dated 24-7-1991 passed by the Vice-Chairman of Respondent No.1 (Annexure "H" hereto) is without lawful authority and of no legal effect; (B)Restrain the Respondents and/or any of them and/or person or persons acting through and/or under any one of them from giving ' effects to and/or from enforcing the order dated 24-7-1991 (Annexure "H" hereto) passed by the Vice-Chairman of Respondent No.1; (C)Direct the Respondents and/or any of them and/or person/persons acting through or under any one of them to restore the quota services of the Petitioner; (D)Direct the respondents No.1 and 2 and/or any one of them and/or person/persons acting through or under any one of them to release the security deposit lying with Respondent No.2 in respect of quota. Entitlement of the petitioner as entered in the pass book of the Petitioner; (E)Award costs of the petition; and/or (F)Grant such additional, alternate, further and/or other relief or reliefs that this Hon'ble Court may be pleased to grant in view of the nature and circumstances of the case."
2. The facts leading to the filing of the above petition are that the petitioner is the sole proprietor of a concern under the name and style of Ghurba Textiles which concern is engaged in the business of export of knitted garments of various types and commenced its said business from November 1988. In December 1987 the third respondent in exercise of the powers conferred by subsection (1) of Section 3 of the Imports and Exports (Control) Act of 1950 (hereinafter referred to as 'the Act') issued a notification SRO No.948 (i)/87 dated 8th December 1987 in suppression of its Notification No. SRO No. 1140 (i)/86 dated 31-12-1986 prescribing the procedure for management and allocation of Textile Quotas with effect from 1st January, 1988 to 31st December, 1991.
3. The objective of the textile quotas management policy as laid down the above Notification was the fulfilment of Pakistan's obligations under bilateral textile agreements with importing countries, maximization of foreign exchange earnings through improvement in quality and encouragement of value addition etc. It will not be out of place to mention here that under the said scheme, the quotas allocated were transferable.
4. It is the case of the petitioner that in 1989, he received orders from importers in U.S.A. For the import of various textile items including knitted shirts including T-shirts against category No. 338 and knitted shirts and blouses category No.339 and the importers from U.S.A. Had established Letters of Credit in respect. Of the said orders. Due to the non-availability in the market of outright quota, the petitioner purchased in 1989 quota as one time use from Anwar Kazi of New Pak Hosiery, Karachi, through Arif Jilani. Details thereof are given in para 3 of the petition. In addition to the quota as one time use, the petitioner in 1989 and 1990 also purchased from the market outright quota details of which are given in Annexures "B" and 'B-1' to the petition. The out right quota purchased by the petitioner was duty entered in the Pass Book of the petitioner kept and maintained by the second respondent.
5. It is the further case of the petitioner that during the year 1989, he exported 2,742 dozens against category No. 338 vide their visas Nos. 9PK--009437, 9PK-60%58 and 9 PK-010692 while against category No.339 the petitioner exported 11,206 dozens vide visa Nos: 9 PK-008597, 008601, -- 008604, -- 008608, -- 008612. -- 009398, -- 009396, -- 009650, -- 009652, -- 10854, -- 010756, -- 012676, -- 012914, -- 013136 and -- 013265.
6. It is the further case of the petitioner that on the basis of shipments against outright quota purchased by him, he received quota on account of export performance during the year 1989. In the months of March and April 1990 the petitioner through broker Arif Jilani again purchased quota to be one time use quota from Anwar Kazi of Messrs New Pak Hosiery, the quantities against category No.647/8 and category No.338, details of which along with visas issued against each are given in para 7 of the petition. The export visas were utilized by the petitioner. However, the first respondent issued a show --cause notice dated 3-5-19% alleging that the petitioner had got cleared goods by submitting forged Export Visas at U.S. Customs, contravening both SRO--948 (i)/87 dated 8-12-1989 as well as Import and Export (Control) Act, 1950 and called upon the petitioner to show cause within 14 days as to why penal action should not be taken against him.
7. The petitioner sent a reply. The petitioner in the reply requested respondent No.1 to hand over the case to legal agencies for further investigation and interrogation while assuring that he was prepared to co-operate in any manner to unearth the foul play. It is the further case of the petitioner that various consignments were held up to the non---issuance of visas by the first respondent on account of the alleged fake and forged visa, the petitioner enclosed with the said letter a Pay-order for Rs.1,65,368 as security deposit till the finalization of enquiry.
8. The first respondent sent a show-cause notice dated 19-1-1991 in which it was alleged that five visas under category Nos.338 and 339 of 1989. Were not issued by the respondent No.1 against goods exported by the petitioner and that the petitioner made himself liable for cancellation of entire quota held by him or his sister concern, levy of penalty equivalent to 100% of FOB value and imprisonment under the said Act. The petitioner sent a reply dated 31-1-1991. He required the respondent No.1 to revive his quota services as he had Letters of Credit in hand. The above decision was challenged in Constitutional Petition No.D-233 of 1991. The first respondent sent a letter dated 14-2-1991 wherein he informed the petitioner that a committee has been set up to examine the cases of alleged fake/forged shipment to U.S.A. It was alleged that the petitioner had exported shipments against the following five alleged false/forged visas:- S.No,Visa No, CAT No, Quantity.
1. 9 PK-009437 338 1002 Dozens
2. 9 PK-009652 339 738 Dozens
3. 9 PK-009652 339 902 Dozens
4. 9 PK-009396 339 301 Dozens
5. 9 PK-009396 339 600 Dozens It was further alleged that on the recommendation of the respective Associations, the Competent Authority decided to impose the following punishments:- (i)Surrender of double quantity of 1,740 dozens in category No. 338 and 1803 in category No.339.
9. (ii)Payment of penalty equivalent to 200% of FOB value of the consignment .
10. The respondent filed parawise comments in Constitutional Petition No. 233/91. The first respondent addressed a letter dated 28-3-1991 to the Deputy Director, F.IA. Alleging therein that the petitioner had shipped 21) consignments in the years 1989 and 1990 against forged/fake export visas and the Deputy Director, F.I.A. Was requested that deterrent and exemplary punishment should be given to the petitioner's concern in order to prevent them and other exporters from committing such mal- practices ins future.
11. It is the further case of the petitioner "that when the above rive visas were submitted to the U.S. Customs, the U.S. Customs, after duly I processing the visas, allowed clearance of the exported goods without objection and/or asking the first respondent to reconfirm the visas". It is the case of the petitioner "that the said visas were genuine and had the same been fake, U.S. Customs would not have allowed the foreign buyers of the petitioner to clear the goods, as was done in the case of M/s. Kalani Textile". ---The Constitutional Petition No. 233 of 1991 was disposed of on 8-5-1991 on the basis of the statement made at the bar by Mr. Khalid Anwar, learned counsel appearing for the respondents. It is necessary to reproduce the order which is as follows:-- "The main grievance of the petitioners is that the impugned orders have been passed without hearing them by the Authority concerned. Mr. Khalid Anwar, learned counsel for the respondent appearing in all the above cases states that the impugned orders in the above cases will not be enforced against any of the petitioners and that the respondents will rehear the matter, reconsider the same and after hearing and allowing an opportunity to the petitioners of going through the official record, if they so desire, will pass fresh orders. The learned counsel for the respondents further states that these cases will be heard on 10-'i-1991 either by the Vice-Chairman or the Director-General (Textile), Export Promotion Bureau, as may be permissible under the law and if any of the petitioners so desire they or their counsel win be allowed to inspect the official record and take notes before 19-5-1991. The learned counsel for the respondents also stated that the petitioners, if they so desire, may add any further ground to their written representation already filed and they will be at liberty to raise any legal objection available to them under the law before the authority hearing the petitions. The miscellaneous applications fixed today. Along with the main petitions are accordingly disposed of in the light of the above statement of Mr. Khalid Anwar, the learned counsel for the respondents. As jointly agreed by learned counsel, the petitioners are directed to appear before respondent No.1 on 19th May 1991 at 10-00 a.m. On which date these petitions will either be heard by respondent No. I or any other officer competent under the law to hear them or they may be fixed thereafter on any other date according to the convenience of parties for hearing and disposal in accordance with the law."
12. The petitioner along with other six exporters approached the first respondent on 16-5-1991 for inspection of official record in terms of the order of this Court and stating in the letter the documents which they wanted to inspect. The first respondent sent a reply dated 19-5-1991. The first respondent stated that the petitioner and other exporters were at liberty to inspect the relevant record and the hearing may be fixed on 25-5-1991. It is necessary to reproduce the relevant portion from the letter which is as under:- "(a)Since the allegation against you relates to your having made exports against a forged export visa, you may inspect the entire record relating to the genuine export visa in question. In other words you may see the record pertaining to and including the name of the party, category of the goods, the particulars of the export consignment and all documents relating to the genuine visa which are in possession of the Export Promotion Bureau.
13. (b)You may also inspect copies of all relevant documents received from the United States Government on the basis of which the show-cause notices were issued to you.
(c) I You have already been provided photostat copies of the genuine seal of the Export Promotion Bureau and the forged seal through the parawise comments filed in the High Court.
14. It has been noted that you were not interested in inspecting the official record, relating to the above on Thursday, the 16th May, as well as on Saturday, the 18th May, 1991 when you came to EPB.
15. The case is now fixed for hearing on 19-5-1991. Although under the High Court order, your entitlement to inspect the official record only existed prior to 19-5-1991, you are being given one final opportunity to avail yourself of the right of inspection and for this reason the final date of hearing is now being fixed for 25th May, 1991 which you may please note."
16. The petitioner and other exporters wrote a letter dated 23-5-1991 wherein they reiterated that they wanted to inspect the entire record and without perusal of the same they could not disprove the allegation of the visas being fake or having been forged. The hearing was adjourned to 28-5-1991.
17. The petitioner was heard and fresh order was passed on 24-7-1991 by the Vice-- Chairman of the first respondent whereby the petitioner was found guilty of the charge and the export quota was cancelled and further action was deferred till the decision of the Commercial Court to which the case was to be referred. In these circumstances, the petitioner being aggrieved, has filed the present Constitutional Petition.
18. It is pertinent to note that the respondents have not controverted the claim of the petitioner by filing a detailed counter-affidavit. It was contended on behalf of the petitioner that one time quota is not to be entered in the Quota Pass Book. The submission of the respondents was that one Time Quota is entered in Pass Book. In support of this submission, a counter---affidavit along with photostat copies of Pass Book of petition was filed on 13-11-1991.
19. In support of the above petition, Mr. Sharaf Faridi, learned counsel for the petitioner raised the following contentions:-
(1) The Commercial Court has exclusive jurisdiction to try the contravention of the SRO and the provisions of the said Act.
(2) The said Act does not authorise the Federal Government of Export Promotion Bureau to impose a punishment in addition to punishment provided under the said Act. Therefore, the alleged power to cancel the quota is ultra vires the Act.
20. (3)Clauses 13 and 14 of the SRO only provide the cancellation of excess quota.
21. (4)The petitioner was condemned unheard.
(5) The order is hit by provisions of Article 24 of Constitution.
22. On the other hand, Mr. Khalid Anwar, learned counsel appearing for the respondents supported the impugned order. He submitted that the petitioner is not entitled to any relief as he has contravened the SRO.
23. We have heard the learned counsel appearing for the parties at length. Before considering the questions at issue, it will be useful to refer to Notification/Order and to take a cursory look at the said Act. The objectives of the textile quota management policy shall be the fulfilment of Pakistan- --s obligation under bilateral textile agreement with importing countries, maximization of foreign exchange earning through improvement in quality; encouragement of value addition, promotion of ethical business practices and prevention of quota allocations. The management of textile quotas shall be the responsibility of the Export Promotion Bureau.
24. Para 3.1 of the Order provides that the performance holders will receive allocation of quotas for 1988 to 1991 period on the basis of performance holder's earnings and quantity exported ,under each category during the preceding year to a specific quota country in the percentages mentioned therein. Para 5 provides that quotas allocated will be transferable. Allocations made to tariff area and garment manufacturing units in KEPZ for only MMF products will be mutually transferable. Export Processing Zone (KEPZ) units shall purchase quota of MMF products from the tariff area against evidence of encashment of foreign exchange by KEPZ units. Para 6 thereof provides that Export Visas/Certificate will be issued by the EPB on the basis of shipment made. In case where advance licensing is required by importing country, the EPB will issue pre-shipment export Visa/License. Para 13 provides that- "(1)No allocation shall be valid unless it is in accordance with the provisions of this Order.
25. (2)Any exports made in contravention of the provisions of this Order shall not count towards the performance of the exporter and shall be treated as irregular and void.
26. (3)Cases of shipments in contravention of this Order and other mal-practices such as excess shipment over the allocated quantity, mis---declaration of weight and category, shall lead to cancellation of quota and/or the penalty provided for in the Imports and Exports (Control) Act, 1950 (XXXIX of 1950)."
27. Para 14 provides for adjustment of over-shipment under quota policy and is in the following terms:- "14.If an exporter has made shipment in excess of his entitlement such excess shipment shall be adjusted against his entitlement of next year on such terms and conditions as the Export Promotion Bureau may determine."
28. Para 13(l) provides that no allocation shall be valid unless it is in accordance with provisions of the Order. Sub-para (2) thereof provides that any export made in contravention of the provisions of the Order shall not count towards the performance of the exporter and shall be treated as irregular and void. Sub-para (3) thereof provides that cases of shipments in contravention of the Order and other malpractices such as excess shipment over the allocated quantity, misdeclaration lead to cancellation of quota and/or the penalty provided for in the said Act.
29. Para 14 thereof provides that if an exporter has made shipment in excess of his entitlement, such excess shipment shall be adjusted against his entitlement of next year on such terms and conditions as the Export Promotion Bureau may determine.
30. The statutory regulations of imports and exports are contained in the said Act. Section 2 of the said Act defines various expressions. Clause 'C' defines import and 'export' means respectively bringing into and taking out of Province or Capital of the Federation or any According State, if the Federal legislature has power to make laws for such State, by sea, land or air. Section 3 of the Act is the pivotal section. Section 3(4) empowers the Federal Government, notwithstanding anything contained in the aforesaid Act by order published in the Official Gazette, to prohibit, restrict, or impose conditions on the clearance whether for home consumption or warehousing or shipment abroad of any imported goods or class of goods. Section 5 makes contraventions of any order made or deemed to be made under the said Act or the rules made thereunder or any condition of a licence granted under such order punishable with imprisonment or with fine as mentioned in that provision. Section 5A empowers the Federal Government to establish Commercial Courts. Section 5B provides jurisdiction to the Commercial Courts and provides that the contravention of an order made under Section 3 relating to export trade, shall be tried exclusively by a Commercial Court.
31. Before taking action under paras 13 and 14, the Export Promotion Bureau has to form an opinion that there are circumstances suggesting that the exporter has made shipments such as excess shipment over the allocated quantity; has misdeclare the weight and category. In these circumstances, it will lead to cancellation of quota and/or the penalty provided for in the said Act.
32. A perusal of para 14 would show that if an exporter has made shipment in excess of his entitlement, such excess shipment shall be adjusted against his entitlement of next year on such terms and conditions as the Export Promotion Bureau may determine.
33. Clause 13, we have seen, empowers the competent authority to cancel the quota and/or impose the: penalty provided for in the said Act if such exporter is guilty of any of the acts of commission or omission enumerated in the clause. An order of this immensity cannot be obviously made without the due investigation and without giving a reasonable opportunity to the affected party. Clauses 13 and 14 do not prescribe the procedure to be followed before a final order is made. How a show- cause notice is to be issued first, then followed by an investigation and finally concluded by yet another show-cause notice or is it enough if a show-cause notice, is issued after the investigation is concluded and the person concerned is asked to explain the evidence gathered against him?
34. When may investigation be said to have commenced? Should investigation be necessarily preceded by a show-cause notice? We do not think that the Export Promotion Bureau or the Vice-Chairman, Export Promotion Bureau is bound to follow any rigid, hide bound, pre-determined procedure. The procedure may be different in each case and may be determined by the facts and circumstances and exigencies of each case. The procedure must be fair and not so designed as to defeat well-known principles of justice and thus deny justice. The word 'investigation' is not defined but in the context it means no more than the process of collection of evidence or gathering of material. It is not necessary that it should commence with the communication of an accusation to the person where affairs are to be investigated. That may be done later. When facts come to the notice of the Export Promotion Bureau which prima facie disclose an act of omission of the nature mentioned in clause 13 or 14, the authority may straightaway communicate the allegations to the person concerned, seek his answer and proceed to further investigate or the authority may consider it more prudent to further satisfy itself by seeking other evidence or material before communicating the allegation to the person concerned. Investigation commences as soon as the authority decides to take the first step, whether by way of seeking evidence or by way of seeking an explanation from the person concerned.
35. In the instant case, the respondent No.1 sought explanation from the petitioner. The petitioner sent a reply. The petitioner submitted a reply dated 31-1-1991. The Export Promotion Bureau appointed a committee to examine cases of fake/forged documents to U.S.A. The committee found that the petitioner shipped goods against fake/forged visas. The Competent Authority decided to impose the following punishments:-- (i)Surrender of double the quantity of 1,740 dozens in Category 338 and 1803 Dozens in Category 339.
36. (ii)Payment of penalty equivalent to 200% of FOB value of the consignments.
37. The petitioner challenged the order in Constitutional Petition No.238/91. Ultimately on the basis of the statement at Bar of Mr. Khalid Anwar, the case was remitted for disposal in accordance with law. The action under clause 13 is of an interim nature in which case suitable representation bringing out all the outweighing circumstances in his favour is real remedy of the party. Courts do not enter into the picture at that stage unless the action is mala fide or patently without jurisdiction.
38. The action will be patently without 1 C jurisdiction if. It is not based on any relevant material whatsoever. If the authority declines to consider the representation, or if the authorities after consideration of the representation eschew relevant considerations or from oblique motive, or the decision is such as no reasonable man properly directed on the law would arrive at on the material facts, it will be open to the party to seek the intervention of the Court at that stage.
39. In the present case, the party instead of presenting his case to the appropriate authority chose the path of litigation. Ultimately the Constitution petition No. 233/91 was disposed of on 8-5-1991.
40. Consequently the Competent Authority's decision to impose the punishment, was set aside.
41. It was vehemently argued on behalf of the petitioner that only the Commercial Court has exclusive jurisdiction to try the contravention of an order made under Section 3 of the Act and the Vice- Chairman of respondent No.1 has neither any authority or jurisdiction nor is competent to cancel the quota as contemplated by clause 13(3) of the Order. The contention is devoid of force for more than one reason. The Vice-Chairman of respondent No.1 does not function as Commercial Court or as a Judicial Tribunal. All criminal offences are offences but all offences in the sense of infringement of a law or order, are not criminal offences. Likewise, the other expressions have been used in their general sense and not as they are understood in the Pakistan Penal Code or other laws relating to criminal offences. Section of the Act or clauses 13(3) speaks of cancellation of a quota and/or the penalty provided for in the Import and Export (Control) Act, 1950. Clause 13(3) provides for cancellation of quota in respect of the contravention of the order or the Sections of the Act. The provisions of Section 5 provide for penalty. The provisions of Section make it clear that the Export Promotion Bureau or its Vice-Chairman have not been empowered to try offences. The Export Promotion Bureau or its Vice- Chairman have been only given limited power of cancellation of quota. The Vice-Chairman has been empowered to start proceedings in respect of suspected infringements of the provisions of the Act or the Order, and to cancel quota of exporter, but when a trial on a charge of an offence is under any of the provisions of the said Act or order made under an Act, it is only the Commercial Court having jurisdiction, which is empowered to impose a sentence of imprisonment for a terms which may extend to one year, or with fine or with both.
42. It is true that the petitioner was dealt with by the Vice-Chairman of respondent No.1 for contravention of the Order and a deterrent punishment, "that is, cancellation of quota" but he had not been vested with the powers of Commercial Court, his proceedings against the petitioner were in the nature of departmental proceedings with a view to detect the infringement of the provisions of clause of the Order, and cancelling quota when it was found that he had been guilty of those infringements. That action, the Vice Chairman had been empowered to impose in order to prevent a recurrence of such infringement. in view of these conditions and particularly in view of the decisions of Hon'ble Supreme Court in the case of Adam v. Collector of Customs, Karachi (PLD 1969 S.C. 446) and of Lahore High Court in the case of State through Collector, Central Excise & Land Customs, Lahore v. Abdul Ghafoor and another (1971 P Cr. L J 965), there is no scope from the conclusion that the proceedings for infringement o' f the provisions of clause 13 of the Order are exclusively triable by the Commercial Court. In this view of the matter, the first two contentions are rejected.
43. We have carefully read the impugned order dated 24-7-1991 and find that the Vice-Chairman proceeded to dispose of the question in an entirely unwarranted manner. He took the view that no serious attempt was made t~ dispute the fact that the exports had been made on the basis of a forged visa. He said that the names, category numbers and amounts of consignments relating to the genuine visas were shown to the exporter.
44. In his opinion firstly there are no entries on his export quota Pass Book which indicate that he had obtained this additional quota from some other exporter, secondly, the name of the transferring quota exporter has not been disclosed, thirdly, the transaction has not been routed through the Textile Associations concerned and fourthly, the export quota Pass Book was never presented to the Export Promotion Bureau for the issuance of an export visa., He drew inference that forged visa was used to get the goods cleared into the United States. He observed that forgery of an official document of the Government of Pakistan is an extremely serious matter especially in view of the fact that such forgeries have an adverse effect on the country's reputation, standing and prestige abroad. In addition there is a fact that the exporter had illegally benefited at the expense of other genuine exporters since the United States Government has deducted Pakistan's export entitlement for the subsequent year.
45. In the case of Salim Mal v. Pakistan through the Secretary, Ministry of Commerce, Government of Pakistan, Islamabad and others in Constitutional Petition No.D-312 of 1991, a Division Bench of this Court observed as under:- "10.For developing countries like Pakistan exports are vital for their economic development, Foreign exchange earned through exports from Pakistan is utilized inter alia for imports of plant, machinery, oil and other items essential for our industries and agriculture.
11. Export is a very sensitive and competitive field. On account of poor quality of goods, delays in shipment, and violations of international agreements between Pakistan and other importing countries restricting export of certain types of goods, can adversely affect export from Pakistan. For instance, if quota restrictions are contravened on the basis of forged or fake export visas, the importing country may reduce or even cancel the overall quota of imports from Pakistan. If complaints are received from importing countries about the use of fake or forged visas, Pakistani authorities are justified in making enquiries to determine whether in fact fake/forged visas have been used in connection with export of goods from Pakistan in violation of the international agreement with the importing country and in case the concerned exporter in Pakistan is found to be involved in such illegal activities, it is expected that requisite action, criminal and otherwise, is taken against the exporter."
46. It was further observed that "Export Promotion Bureau had not acted in an illegal and arbitrary manner by refusing to provide any services to the ' petitioner on account of initiation of the proceedings against the petitioner for the alleged use of a vague/forged export visa".
47. It is to be noted that before the Export Promotion Bureau can take action under clause 13(3), certain preconditions have to be satisfied. From the provisions contained in clauses 13 and 14, it is clear that the Federal Government considered that cancellation of quota is a very serious matter. It is true that the investigation under clause 13 is of a fact finding nature. The reconciliation of visa documents in respect of visas under various U.S.A. Categories furnished by U.S. Customs, revealed that Visa No. 9PK-009437, category 338 for 1,002 dozens, 9PK-010692, category 338 for 738 dozens, 9PK--009652, category 339 for 902 dozens, 9PK-009396, category 339 for 301 dozens and 9PK- 009398, category 339 for 600 dozens presented by the petitioner to the U.S. Customs were not issued by the Export Promotion Bureau although the goods were not only exported but cleared under the forged visas by the petitioner. The Export Promotion Bureau is not required to act on the basis of that information; the exporter has to be called upon for the explanation.
48. Before taking action under clause 13(3) the Export Promotion Bureau has to form an opinion that the exporter exported goods against the forged/fake visas.
49. From the facts placed before us, it is clear that the Vice-Chairman of respondent No.1 had not bestowed sufficient attention to the material before--him before passing the impugned order. It seems that he had taken action that the record conclusively establishes that the fraud was perpetuated by the exporters themselves. He had come to this conclusion only on the ground that there are no entries appearing in the export quota Pass Book of the exporter showing that he had acquired that additional quota against the forged export visa issued to him. In that view of the matter, he found that "it is, therefore, impossible for an exporter to claim that he had obtained the forged visa in good faith for following reasons: "Firstly, there are no entries in his export quota Pass Book which indicate that he had acquired this additional quota from some other exporter, secondly, the name of the transferring quota exporter has not been disclosed, thirdly, the transaction has not been routed through the textile associations concerned and, fourthly, the export quota Pass Book was never presented to the Export Promotion Bureau for the issuance of an export visa. Instead a forged visa was used to get the goods cleared into the United States. Forgery of an official document of the Government of Pakistan is an extremely serious matter especially in view of the fact that such forgeries have an adverse effect on the country's reputation, standing and prestige abroad. In addition there is a fact that the exporter had illegally benefited at the expense of other genuine exporters since the United States Government had deducted Pakistan's export entitlement for the subsequent year."
50. It has come on record that printed Visa Forms are issued to the exporters through the Associations.
51. A perusal of printed form would show that it bears printed serial number. Each of printed visas consists of a set namely, one original and three copies. The fourth copy bears the seal of the Association and signature of either the Secretary of Association or one of the authorised persons in that behalf.
52. The Vice-Chairman had come to the conclusion that there were no entries in the Export Pass Book of the exporter. On this finding, he observed that the fraud was perpetuated by the exporter himself.
53. The exporter contended before the Vice-Chairman that he had purchased quota as one time, use from Anwar Kazi of Messrs New Pak Hosiery. This purchase was made through Arif Jilani. This aspect was not at all considered by the Vice---Chairman. The third reason was that the transaction had not been routed through the Textile Associations concerned. This could only be verified from the fourth copy of the Visa which was not at all supplied to the petitioner and/or placed before us. The last reason was that the quota Pass Book was never presented before the Export Promotion Bureau.
54. It has come on record that the Quota Pass Books always remain with the Association concerned.
55. A comparative chart of genuine visa and forged visas is appearing in the impugned order. Besides this comparative chart, Mr. Khalid Anwar has produced before us a paper showing discrepancies in fake visa stamp and official stamps. These discrepancies in fake visa stamp and in official stamps are of no consequence for more than one reason. Firstly, original visa stamps and official stamps were not produced before us. Secondly, the Vice-Chairman himself had not pointed out any discrepancy in the impugned order. Thirdly, the Fake Visa Stamp and official stamps which have been shown to us were the photostat copies and could not be compared with the admitted or proved writing of any of the alleged authors to establish that the original contained or did not contain their writing and bore stamps/official. See PLD 1959 Dacca page 756.
56. A perusal of show-cause notice would show that there is no allegation, that the petitioner perpetuated fraud himself. The impugned order does not contain discussion on the forgery of fake visas and is focused on non-appearing of the entries in Pass Book. The findings arrived at by the Vice-Chairman do not find basis on any logical consequences which he derived from the evidence on the record. The entire order gives the impression that burden of proving innocence was cast upon the petitioner rather than laying burden of proving allegation of fake/forged visa.
57. As far as the allegation of forgery is concerned, there was no direct' evidence to prove that the petitioner had himself committed forgery on 'VISAS'. There is no evidence to indicate that the petitioner had used forged/fake visas, he cannot be found guilty of using the forged/fake visas.
58. The impugned order suffers from another lacuna as well that the cancellation of quota was dropped by the committee and only two punishments were awarded to him which was also set aside on the statement of Mr. Khalid Anwar. Accordingly, the cancellation of quota of the petitioner without its specific mention or without securing fresh show-cause notice is against the principles of natural justice and has prejudiced the petitioner. The impugned order is liable to be set aside.
59. In the circumstances, there is nothing on record even to suggest that the fraud was perpetuated by the exporter himself. On the other hand, the petitioner has positively denied that the five visas are forged ones. The petitioner has positively stated in his letter dated 14-1-1991 that he purchased one time quota from Anwar Kazi of Messrs New Pak Hosiery through broker Arif Jilani. In this state of the evidence, the decision on the important question whether five visas were not genuine, was disposed of by the Vice-Chairman solely upon the basis of comparative chart and the relevant entries were not made in the Quota Pass Books of the purchaser and seller. We are unable to accept this as a safe mode of reaching a conclusion on the question of fact requiring determination in the present case. The inference drawn by the Vice-' Chairman is purely subjective and totally lacking reasons which impelled him to hold that the five Export Visas were fake/forged.
60. There is thus no rational basis discernible in the impugned order for holding that the fraud was perpetuated by the exporter himself.
61. The power of cancellation of quota in clause 13 has been conferred on the Export Promotion Bureau on the faith that it will be exercised 'in a reasonable manner. The department of Federal Government which deals with export is presumed to be an expert body in export matters. Therefore the standard that is prescribed under clause 13 is not the standard required of an ordinary citizen but that of an expert.
62. Mr. Khalid Anwar placed reliance on an unreported decision dated 24-10-1991 of a Division Bench of this Court in the case of Salim Mall v. Pakistan through Secretary, Ministry of Commerce, Government of Pakistan, Islamabad and another. The decision is not applicable to the facts of the instant case because the petitioner was required to explain his position within 14 days and during the pendency of the proceedings initiated on the basis of the said show-cause notice, the Export Promotion Bureau suspended its-- services to the petitioner in respect of exports. While dismissing the petition, the learned Judges of the Division Bench observed that the Export Promotion Bureau could validly declined to issue any certificate in respect of other exports by the petitioner. It was further held that the decision of Export Promotion Bureau in suspending services to the petitioner pending the aforesaid enquiry is neither illegal nor mala fide..
63. We are in agreement with the above observations. In our view action is of an interim nature and it may be ex parte in which case the affected party may make a suitable representation bringing out all the over weighing circumstances in his favour. This is the real remedy of the party. Courts do not enter the picture at that stage unless the action is mala fide or patently without jurisdiction if it is not based on any relevant material whatever. If the authority declines to consider the representation, or the reply to the show-cause notice or if the authority after considering the representation eschews relevant considerations and prefers to act on irrelevant considerations or from oblique motive or the decision is such as no reasonable man properly directed on the law would arrive at on the material facts, it will be open to the party to seek the intervention of the Court at that stage.
64. Mr. Khalid Anwar had drawn our attention to an unreported decision dated 26-11-1991 of a Division Bench of this Court in the case of AI-Munaf Corporation v. Export Promotion Bureau and another. In that case, the petitioner raised two contentions namely the Vice-Chairman was not competent to pass the impugned order and the petitioner was penalised without the process of law. Both these contentions were rejected for cogent reasons. This decision also does not help the respondents in the facts and circumstances of the instant case.
65. We do not think that any reasonable person much less any expert body like the Export Promotion Bureau on the material before it, could have jumped to the conclusion that the fraud was perpetuated by the petitioner himself and the petitioner exported the goods on fake/forged visas. If the Export Promotion Bureau had any suspicion about the fake/forged visas, it should have probed into the matter further before cancelling the Quota. The cancellation of quota has the effect of preventing the exporter from pursuing his business, he cannot export the goods, may have substantial serious and even disastrous consequences to him and may expose him to grave risk and hazard.
66. Mr. Khalid Anwar cited two decisions of Hon'ble Supreme Court which are reported in 1986 SCMR 1071 and PLD 1990 SC 504. These decisions are applicable to the facts of the instant case.
67. We are convinced that the precipitate action taken by the Export Promotion Bureau was not called for nor could be justified on the basis of the material before it. On this view of the matter, we do not propose to deal with the last contention raised by Mr. Sharaf Faridi.
68. In the result, we allow the petition and set aside the impugned order. Since the impugned order has been set aside, if the respondents are so advised, they are at liberty to proceed against the petitioner in accordance with law after serving fresh show-cause notice.