' For a proper appreciation of the points involved in this Constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, which are to be disposed of by this judgment, it is necessary to refer to the relevant facts in some detail.
2. The petitioner was married with respondent No,1 on 11-9-1987 and their marriage was registered under the provisions of Muslim Family Laws Ordinance, 1961. After the marriage the respondent No,1 resided with the petitioner in village Chamber, Taluka Tando Allahyar. It is alleged that on 26-9- 1987 the petitioner was arrested in a case registered at Sehwan P.S., under section 11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and during the course of investigation the respondent No,1 was recovered from his possession. The petitioner was, however, released on bail and thereafter he approached the respondents Nos.2 and 3 for the return of respondent No,1, but they demanded a sum of Rs,10,000 for her return. Having no other alternate the petitioner filed Family Suit No,1 of 1988 in the Court of Family Judge, Tando Allahyar which was decreed ex parte on 31-3-1988. The respondent No,1 also filed a suit for jactitation of marriage against the petitioner in the Court of Family Judge, Jacobabad, being F.C. Suit No,3 of 1988. The petitioner participated in the proceedings but due to his absence at some subsequent stage his side was closed and the suit was decreed on 24-11989. The petitioner filed an appeal under section 14 of the West Pakistan Family Courts Act, 1964, before District Judge, Jacobabad, but that too was dismissed vide judgment dated 27-5-1991. It is in these circumstances that the petitioner has invoked the constitutional jurisdiction of this Court by filing this petition.
3. I have heard Mr. Manzar Alam, learned counsel for petitioner and Mr. Gul Bahar Korai, learned counsel for respondents Nos.1 and 2. The learned counsel for the petitioner has referred to several points but eventually confined his arguments in main to the following contentions:
(i) That the suit, as framed and filed by respondent No,1 could not be said to be a suit for jactitation of marriage and the relief sought could only be granted by competent Civil Court and not by a Family Court.
(ii) That the validity of marriage registered under the Muslim Family Laws Ordinance, 1961, could not be questioned by the Family Court and consequently the decree awarded by it was a nullity in the eyes of law.
(iii) That a decree of restitution of conjugal rights was existing against respondent No,1, and therefore, the Judge of Family Court at Jacobabad had no jurisdiction to grant the relief sought by respondent No,l.
(iv) That the petitioner was condemned unheard and he was not afforded an opportunity to contest the suit filed by respondent No,1 against him for jactitation of marriage.
4. The main object of a suit for jactitation of marriage is to perpetually silence a false allegation or claim put forward by the defendant, of a marriage having taken place between the defendant and the plaintiff. The case of Mirza Qamar Raza v. Mst. Tahira Begum and others, reported in PLD 1988 Karachi 169 appears to lend some colour to the view canvassed by learned counsel for the petitioner wherein a learned Single Judge of this Court observed as follows:- "It is noticeable that the Schedule under section 5 of the West Pakistan Family Courts Act as promulgated in 1964, did not include `Jactitation of Marriage", which was brought in by the amending Act of 1969. It is also noticeable that the Legislature did not include the 'Marriage' or include matters (or all the matters) relating to marriage. It included, specifically, a matter called as lactitation of marriage', thereby excluding all other matters relating to marriage from the jurisdiction of the Family Court. It is settled law that a provision relating to the conferment of jurisdiction on a Special Court or Tribunal and thereby excluding the general jurisdiction of ordinary Courts should be construed strictly. I am, therefore, of the view that the question of determination as to the definition of jactitation of marriage must be given a specific meaning and not an extended meaning as observed in PLD 1974 Lahore 78. Here, it is not that the petitioner (defendant) is making a false claim of marriage and that is why respondent No,1 (plaintiff) is asking for a declaration of the non-existence of the marriage and consequently an injunction, against the petitioner not to call respondent No,1 as his wife. Therefore, the suit, as framed and filed by respondent No,1, cannot be said to be a suit of jactitation of marriage. It is a suit, if I may say so, jactitation of divorce and not the marriage for which it was Civil Court and not the Family Court who had the jurisdiction."
5. There is, however, plenty of authority in support of the view that it is the Family Court alone which is competent to grant relief of this nature. The case of Mst. Amina Begum v. Ghulam Nabi and 2 others, reported in PLD 1974 Lah. 78 is the important judgment on this point, wherein the word jactitation" was defined and it was held that a suit for jactitation of marriage includes a suit for declaration by a person falsely posing to be the spouse of defendant.
6. The same view was reiterated in the case of Tajoo v. Mst. Sattaran, reported in PLD 1974 Lah. 105, wherein the folloiwng observations were made:-- "It is clear from all these citations that a suit for a declaration that the defendant is not the husband or wife of the plaintiff and that the defendant alleges to be the wife or husband of the plaintiff, is a suit for jactitation of marriage. The present suit falls under this category and could, therefore, be filed only before a Family Court."
7. This view was followed in the cases of Mst. Zohran Bibi v. Manzoor Ahmad and 2 others, reported in PLD 1975 Lah. 318, Mst. Sakina and 2 others v. Nasir Ali, reported in PLD 1976 Quetta 97 and Malla v. Mst. Jawai, etc., reported in 1981 CLC 1097.
8. A case which is on all fours with the present case is the case of Muhamamd Azam v. Muhammad lqbal and others reported in PLD 1984 SC 95 decided by a Full Shariat Bench, wherein the entire available case-law was considered and it was held that a suit for jactitation of marriage can be filed before a Family Court even by a person other than the spouses involved in jactitation of marriage. Again the character of a suit for jactitation of marriage is not altered by making additional prayer for adjudging Nikahnama as forged and seeking its cancellation. If any authority is needed, the case of Nazar Qasim v. Mst. Shaista Parveen reported in 1979 CLC 462, may be cited with advantage wherein it was observed:-- "A perusal of the plaint of the respondent's civil suit shows that the respondent's plea is that the applicant falsely alleges that a marriage had taken place between her and the applicant on 17th February 1978 and further that the Nikahnama produced by the applicant as evidence thereof, allegedly bearing her signature, was also a false, forged and spurious document. The main prayer for the respondent's suit is for a declaration that "relationship of wife and husband never existed and does not exist between her and the applicant.' It is true that her subsequent prayers are for adjudging the Nikahnama dated 17th February, 1978 as a forged document and for its cancellation.
But these additional prayers are consequential reliefs and, in my opinion, will not alter the character of her suit, which is essentially for perpetually silencing the alleged false claim of marriage put forward by the applicant. In my opinion, the suit continues to retain its character as a suit for jactitation of marriage, which is exclusively within the jurisdiction of the Family Court to entertain, hear and adjudicate under section 5 of the Family Courts Act, 1964 and, as such, its trial by Civil Court is barred."
' There is, therefore, an air of utter unreality about the first contention raised on behalf of the petitioner.
9. Section 23 of the West Pakistan Family Courts Act, 1964, makes it clear that the validity of marriages registered under the Muslim Family Laws Ordinance, 1961 cannot be questioned by a Family Court, nor shall any evidence in regard thereto be admissible before such Court. This provision of C law, however, does not prevent a party to the marriage from leading evidence to show that a marriage did not in fact take place as alleged or that fraud had been perpetrated against the party or that his/her signature on the alleged Nikahnama was also forged. The cases of Nazar Qasim v. Mst. Shaista Parveen reported in 1979 CLC 462, Malta v. Mst. Jawai, etc., reported in 1981 CLC 1097 and Muhammad Azam v. Muhammad lqbal and others reported in PLD 1984 SC 95 are fully attracted to meet such an exigency. In the last-cited authority, the Supreme Court made it clear that section 23 of the West Pakistan Family Courts Act, 1964, assumes validity of marriage only if it satisfies certain conditions and this section would not prevent a party from showing either that marriage had not taken place at all or that fraud had been committed in connection therewith or for that matter Nikahnama was a forgery and/or that signatures therein were forged. As regards this question, the learned counsel for the petitioner has very little to say.
10. As regards the third contention, it may be observed that a decree for restitution of conjugal rights presupposes existence of a valid marriage between the parties and once a suit for jactitation of marriage is decreed, the decree for restitution of conjugal rights vanishes. The case of Muhammad Rafique v. Family Court reported in PLD 1985 Lah. 613 is a direct authority on this subject, wherein it was held that a decree for restitution of conjugal rights without determining the issue of validity of marriage does not bar a subsequent suit by the wife for jactitation of marriage.
11. The petitioner had contested the suit filed by respondent No, 1 against him for jactitation of her marriage. He was afforded a proper opportunity to contest the suit but he himself had preferred to remain absent and E consequently the argument that he was condemned unheard is clearly misconceived. The petitioner had a remedy by way of an appeal which too was availed of by him and this time also he slept over his right and filed a belated appeal. The judgment of appellate Court makes it clear that the petitioner was only interested to protract the proceedings on one or the other ground and he was never serious to contest the matter. Even otherwise the relief sought by the petitioner is purely discretionary and looking to the past conduct of the petitioner and the fact that the respondent No,1 has contracted second marriage, I am of the view that the present petition merits dismissal and the same is accordingly dismissed with no order as to costs.
1991 CLC 48 [Karachi] Before Nasir Aslam Zahid and Muhammad Hussain Adil Khatri,JJ SALIM MALL---Petitioner versus PAKISTAN through Secretary Ministry of Commerce, Government of Pakistan, Islamadad another---Respondents Constitutional Petition No,D-312 of 1991, decided on 24th October, 1991.
(a) Imports and Exports (Control) Act (XXXIX of 1950)--- ----S. 3(1)---Notification S.R.O. No,949(1)/87, dated 8-12-1987---Management and allocation of textile quotas for specified period---Petitioner an exporter of textile goods having allegedly made shipment to U.SA. Against a fake and forged export visa, quota servicing by Authority in favour of petitioner was suspended---Petitioner having sent non-quota goods, requisite certificates were refused to him---Validity---Requisite certificates viz. Certificate of origin and G.S.P. Certificates were required to be issued by Authority on the basis of control or surveillance by the Export Promotion Bureau on the exporters as well as in respect of shipment of non-quota goods---Such certificates could not be issued as a matter of course---Requisite certificate, however, could not be refused arbitrarily or without any reason---Where quota restrictions were contravened on the basis of forged or fake export visas, importing country could reduce or even cancel overall quota of imports from the exporting country---If concerned exporter/petitioner was involved in illegal activities, requisite action, criminal or otherwise could be taken against such exporter---Where on the basis of definite information received from U.S. Customs Authorities, an enquiry had been commenced against petitioner in respect of a shipment by him of quota goods to U.SA., respondent Authority could validly decline to issue any certificate in respect of other exports by petitioner---Authority's decision in suspending quota servicing to petitioner pending enquiry against him was neither illegal nor mala fide. [pp. 53, 55] A, B & C
(b) Imports and Exports (Control) Act (XXXIX of 1950)--- ----S. 3(1)---Constitution of Pakistan (1973), Art.199---Proceeds of exported goods lying with State Bank of Pakistan---Entitlement to petitioner to receive such proceeds---Petitioner having been charged for fake and forged export visa, enquiry was being conducted against him---If petitioner was cleared in the enquiry, amount lying with the State Bank of Pakistan would be released forthwith to him---Petitioner, if not cleared and found to be involved in illegal activities, the amount in question would remain deposited with the State Bank of Pakistan for a period of four months, and could be attached and utilized for payment of fine under appropriate orders passed by concerned Court or Authority. [p. 56] D J.H. Rahimtoola for Petitioner. Respondent No,1 (absent).
Khalid Anwer for Respondent No,2.
Dates of hearing: 7th and 8th October, 1991.
' NASIR ASLAM. ZAHID, J.---Petitioner, the proprietor of M/s. Mall Overseas Corporation, is a registered exporter of textile goods and has been carrying on the business of export of textile goods. Respondent No,1 is Government of Pakistan, Ministry of Commerce, and respondent No,2 is the Export Promotion Bureau.
2. For export of specified textile goods to USA, E.E.C. (European Economic Community) countries and other countries, system of quota allocation has been in vogue for a number, of years under which system an exporter can export quota goods to specified countries only on the basis of allocation of quota. SRO No,949(1)/87, dated 8-12-1987 was issued by the Ministry of Commerce, Government of Pakistan, in exercise of the powers conferred by section 3(1) of the Imports and Exports (Control)
Act, 1950, prescribing the procedure for management and allocation of textile quotas for the period from 1-1-1988 to 31-12-1991. Although this Notification appears to be restricted to the management and allocation of textile quotas, a perusal of its provisions shows that some of its provisions also relate to non-quota textile goods i,e. Textile items falling outside the purview of the quota restrictions. Clause (1) of the Notification dated 8-12-1987 enumerates the following objectives of the textile quota management policy:--
(a) Fulfilment of Pakistan's obligation under bilateral textile agreements with importing countries;
(b) Maximization of foreign exchange earnings through improvement in quality;
(c) Encouragement of value addition;
(d) Promotion of ethical business practices; and
(e) Prevention of misuse of quota allocations.
' Clause (2) of the said Notification provides that the management of textile quotas shall be the responsibility of the Export Promotion Bureau and that all Pakistan Export Associations in the field of textiles will be associated with the management of textile quotas. Basis of entitlement and allocation of quota is provided in clauses (3) and (4) of the Notification. Clause (5), inter alia, provides that quotas allocation will be transferable. Clause (6) relates to export visas/licences and it reads as follows:-- "Export of 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/licence."
Clause (13) relates to the contravention of the quota management policy and it, inter alia, provides that cases of shipment in contravention of the said Notification and other malpractices such as excess shipment over the allocated quantity, misdeclaration of weight and category, shall lead to cancellation of quota and/or the penalty provided for in the Imports and Exports (Control) Act, 1950.
' Clause (15) of the said Notification is as follows:- "15.--(1) Export of handloom and traditional textile items will fall outside the purview of the quota restriction.
(2) Necessary certificates as prescribed in the agreements (with importing countries) will be issued by the Bureau. Whether or not an item is handloom and traditional textile product is determined by the Customs authorities of the importing countries. Exporters will, therefore, make shipment of such items at their own risk."
' From the examination of the Notification dated 8-12-1987, it follows that most of the provisions of the Notification relate to quota items. In clause 15(1) it has been made clear that export of handloom and traditional textile items will fall outside the purview of the quota restriction. Sub- clause (2) of clause 15, however, provides that necessary certificates as prescribed in the agreements with importing countries will be issued by the Export Promotion Bureau.
3. According to the petitioner, on 2-2-1991 his firm shipped to France, an E.E.0 country, 120 cartons of cotton hosiery goods worth Rs,5,00,000 under Bill-of-Lading and Invoice dated 2-2-1991 and Letter- of-Credit dated 2-1-1991. The said goods are non-quota goods. The Letter-of-Credit, inter alia, required the petitioner to produce the "certificate of origin" and "GSP certificate" issue by Pakistani Authorities i,e. The Export Promotion Bureau. l'hotostat copies of the specimen certificates have been annexed to the memo. Of the petition marked as P-5 and P-6 According to specimen of the certificate of origin, Export Promotion Bureau is required to make the following certification:- "I, the undersigned, certify that the goods described above are originating in the country shown in box No,6, in accordance with the provisions in force in the European Economic Community."
' The specimen of the generalized system of preferences (GSP) certificate shows that after specifying the type, quantity, specification, weight and other relevant description of the goods, the exporter is required to make the following declaration:-- "12. Declaration by exporter. --The undersigned hereby declares that the above details and statements are correct; that all the goods were produced in Pakistan and that they comply with the origin requirements specified for those goods in the Generalised System of Preferences for goods exported to France."
' The competent authority in Pakistan under the agreement between Pakistan and E.E.C. Is the Export Promotion Bureau and on the said GSP Certificates it has to make the following certification:- "It is hereby certified on the basis of control carried out, that the declaration by the exporter is correct."
4. As observed, according to the petitioner, he had shipped the aforesaid non-quota textile goods to France early this year, but on 20-2-1991, when the petitioner approached its Association i,e. M/s. Pakistan Knitwear and Sweaters Exporters Association, for issue and processing of the aforesaid two certificates, he was informed that the Export Promotion Bureau had suspended all services to the petitioner and certification of the two certificates had been refused. The petitioner was informed that this was done by order dated 19-2-1991 on the ground that the petitioner had earlier in 1989 made shipment to U.SA. Against a fake and forged export visa. The order dated 19-2-1991 of the Export Promotion Bureau addressed to the various Textile Associations states that the Export Promotion Bureau having found the petitioner's firm and 9 other firms indulging in the shipments to USA during 1989 against fake/forged visas, the quota servicing by the Export Promotion Bureau of the said exporters had been suspended in the first instance. Prior to that, a show-cause notice dated 14-2-1989 had been issued by the Export Promotion Bureau to the petitioner informing him that reconciliation of visa documents in respect of visas under various U.SA. Categories furnished by U.S. Customs revealed that Visa No,9 PK007032 under Category No,338 for 5000 dozen items of the value of U.S. $60,000 presented by the petitioner to the U.S. Customs was not issued by the Export Promotion Bureau although the said goods were exported under the said forged visa by the petitioner and this contravened the provisions of SRO 948 (1)/87, dated 8-12-1987 and also the Imports and Exports Control Act, 1950. 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.
The petitioner replied by his letter dated 21-2-1991 denying the allegations in the show-cause notice but then stated that it had shipped a non-quota consignment on 2-2-1991 to France and that another consignment of similar type of non-quota goods was ready to be shipped to the same country and the Export Promotion Bureau was requested to grant permission for the two shipments to France i,e. One already made and the other which was expected to be made shortly.
The petitioner also replied in detail to the show-cause notice by his letter dated 27-2-1991 in which the allegations were denied as false and baseless. It was pleaded that the visa in question in respect of shipment of quota goods to U.S.A. Was acquired by the petitioner on rental basis through a broker in 1989 and in the following year the visa was returned to the party and that the said broker was doing business in the market for a long time and transactions through him were also being made by various other exporters in the city. It was also mentioned that the said visa was presented to an officer of Export Promotion Bureau, who signed and stamped the same and as such there was no reason to believe that the visa was fake. It was further informed that visa transactions of sale, purchase and rent in respect of the quota in the market were done through the brokers who did not disclose the names and particulars of the parties and only when the Export Promotion Bureau's staff certified the visa that the transaction was finalised or unless the visa was rejected by the staff of the Export Promotion Bureau there was no way to ascertain the genuineness of the visa. It was also emphasised that the petitioner had been exporting goods for over 17 years.
5. As noted above, during the pendency of the proceedings initiated on the issuance of the said show-cause notice dated 14-2-1991 in respect of shipment of a quota consignment in 1989 by the petitioner on the basis of an allegedly fake visa, the Export Promotion Bureau stopped all services to the petitioner and did not issue the certificates for the shipment of the said non-quota textile goods earlier this year. In the circumstances, the petitioner approached this Court by filing this Constitutional Petition on 9-3-1991 seeking the following reliefs:
(a) Declaration that the order of the Export Promotion Bureau dated 19-2-1991 is mala fide, without lawful authority and of no legal effect and that petitioner's firm is entitled to all services including certificates in respect of non-quota goods; and
(b) An injunction against the Export Promotion Bureau from suspending or withholding the services, namely, issue of G.S.P. Certificates and non-quota certificates in respect of non-quota goods already shipped by the petitioner and also for other non-quota goods that may be shipped by the petitioner's firm from time to time.
6. Comments were called for from the Export Promotion Bureau before the petition was admitted to regular hearing. Comments were filed. Petition was then admitted to regular hearing. Counter- affidavit was filed and then rejoinder affidavit was also filed by the petitioner. The petition has been contested by the Export Promotion Bureau. We have heard at length the arguments of Mr. J.H.
Rahimtoola, learned counsel for the petitioner and Mr. Khalid Anwer, learned counsel who appeared on behalf of Export Promotion Bureau.
7. The first contention of Mr. J.H. Rahimtoola was that under the aforesaid Notification dated 8-12- 1987, the Export Promotion Bureau has no role to play in respect of non-quota goods except that it is under obligation to issue the two certificates (certificate of origin and GSP certificate) as and when any Pakistani exporter approaches the Export Promotion Bureau on shipment of non-quota textile goods. According to the counsel for the petitioner, the control and surveillance that is exercised under the aforesaid Notification dated 8-12-1987 by Export Promotion Bureau is restricted in respect of export of quota goods. We have found it difficult to accept this contention raised on behalf of the petitioner. As noticed earlier, certification by Export Promotion Bureau is required under the agreement between the E.E.C. And Pakistan also for non-quota goods. These certificates are not issued as a matter of course. In the certificate of origin, Export Promotion Bureau is required to certify about the origin of the goods described in the certificate in accordance with the provisions in force in the Europeon Economic Community. If the Export Promotion Bureau has reasons to believe that the said goods do not originate in Pakistan (or some other country as described) in accordance with the concerned provisions in force in E.E.C., it can validly refuse to grant the certificate of origin. As regards GSP Certificate, it has been noticed that the certification required from the Export Promotion Bureau is that "on the basis of control carried out, the declaration by the exporter in the certificate is correct. " The wording of this certificate makes it clear that certification is not to be done as a matter of course or automatically on presentation of the certificate by the exporter but there is an element of control or surveillance involved by the Export Promotion Bureau as it has to certify that the declaration made in the GSP certificate about the description, specification, weight, quantity and other details is correct according to the control carried out by the Export Promotion Bureau.
' We are accordingly of the view that in respect of non-quota goods the two certificates, namely, the certificate of origin and the GSP certificate are required to be issued by the Export Promotion Bureau on the basis of control or surveillance by the Export Promotion Bureau on the exporters as well as in respect of the shipment of the non-quota goods. The contention that as and when these certificates are presented for certification, Export Promotion Bureau is under an obligation to issue these certificates as a matter of course, has no merit. However, we may clarify that the required certification cannot be refused arbitrarily or without any reason. Export Promotion Bureau is a part of the Government and all Government functionaries, while dealing with public, in their official capacities, are required to act justly and fairly and not in an arbitrary fashion.
8. In the instant case, Export Promotion Bureau has refused to provide any service to the petitioner since Feburary, 1991 on the ground that in respect of a shipment of quota goods to USA in 1989, the petitioner had used a fake and forged visa and an enquiry in this connection against the petitioner initiated on the basis of a show-cause notice dated 14-2-1991 is pending and till the enquiry is completed the Export Promotion Bureau will not issue any certificates in favour of the petitioner even in respect of non-quota goods. According to Mr. J.H. Rahimtoola, there is no nexus between the enquiry that has been commenced against the petitioner in respect of the shipment of quota goods to USA in 1989 and the present shipment in 1991 of non-quota goods to France and in any case the enquiry is still pending and during the pendency of the enquiry, petitioner's exports cannot be allowed to be jeopardized on account of non-issuance of certificates in respect of other consignments. According to Mr. J.H. Rahimotoola, there is no valid reason available with the Export Promotion Bureau for refusing to issue the two certificates required for the shipment of non-quota goods to France.
' Mr. Khalid Anwer on the other hand submitted that in respect of export of textile goods there is a very serious charge against the petitioner and that is the use of a fake/forged export visa and till such time the enquiry is completed Export Promotion Bureau is justified in not issuing any certificates in respect of any goods shipped by the petitioner. It has been pointed out by the learned counsel for the Export Promotion Bureau that no doubt export quota is transferable from one exporter to another exporter, in which case requisite entries are made in the export passports of the two exports, but export visa/licence is not transferable and it is issued to the exporter against his entitlement reflected in his export passport. According to Mr. Khalid Anwer, in connection with the export of the consignment made by the petitioner in 1989 to USA, the case of the Export Promotion Bureau is that a valid export visa had been issued under the licence number in question by the Export Promotion Bureau to another party and later, under the same licence number, the petitioner using a fake/forged visa made out in the name of his firm exported the said consignment to U.S.A. And this came to light on information given by U.S. Customs. According to the learned counsel, the petitioner is prima facie involved in this fraud inasmuch as fake/forged visa under which the petitioner made the export to U.SA. In 1989 is shown to have been issued in the name of the petitioner's firm.
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 exports 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.
12. In our view there is a nexus between the shipment of the said quota consignment in 1989 on an allegedly fake/forged visa and further exports by the same party. If during the pendency of the enquiry, Export Promotion Bureau has refused to provide any services to the petitioner in respect of other exports by him i,e. By refusing to issue certificates under the Agreement between E.E.C. And Pakistan even in respect of non-quota goods, such action cannot be termed as arbitrary or illegal.
In our view, in the circumstances of this case, where, on the basis of definite information received from U.S. Customs Authorities, an enquiry has been commenced against the petitioner in respect of a shipment by the petitioner in 1989 of quota goods to U.SA. On the basis of a forged/fake visa, the Export Promotion Bureau could validly decline to issue any certificates in respect of other exports by the petitioner. We are accordingly of the view that the decision of Export Promotion Bureau in suspending services to the petitioner pending the aforesaid enquiry is neither illegal nor mala fide.
13. This petition is accordingly dismissed with costs in favour of respondent No,2. However, the Export Promotion Bureau is directed to finalize the enquiry against the petitioner in respect of the use of fake/forged visa in 1989 within one month from today. The petitioner is free to produce any witness during the enquiry and rely on any documentary or other evidence that he may like to produce in his defence.
14. There is one other matter which requires consideration. In this petition on the application for interim relief (CMA No,624/91), the following order was passed:-- "With the consent of the learned counsel for the parties, it is ordered that respondent No,2 (i,e. The Export Promotion Bureau) shall issue a Certificate of Origin and Non-quota Certificate as provided in SRO No,948(1)/87, dated 8-12-1987 whereupon the petitioner shall deposit all the amounts received from abroad in the State Bank of Pakistan and will assign the Letter-of-Credit in favour of the State Bank of Pakistan which will remain there till further orders. This will be without prejudice to the respective contentions of the parties. Accordingly C.MA. No,624/91 stands disposed of."
15. Pursuant to the aforesaid order on the application for interim relief, the Certificate of Origin and GSP Certificate in respect of the consignment shipped to France were issued by the Export Promotion Bureau, and the amounts received in respect of the consignment shipped to France by the petitioner are lying deposited with the State Bank of Pakistan. Mr. J.H. Rahimtoola had submitted that in case this petition were allowed, there would be no difficulty about the disposal of the amounts lying with State Bank of Pakistan, as the petitioner would then be entitled to withdraw the same. It was then submitted that even if the petition were dismissed, as the goods had been shipped by the petitioner to France, he was entitled to its proceeds. On the other hand, submission of Mr. Khalid Anwer, learned counsel for the Export Promotion Bureau, was that in case this petition were dismissed, petitioner would not be entitled to withdraw the amount, as Certificate of Origin and GSP Certificate had been issued by the Export Promotion Bureau subject to the deposit of the proceeds of the exported goods with State Bank of Pakistan and that Export Promotion Bureau would not otherwice have issued the said Certificates.
16. This petition has been dismissed, as it has been held by us that the 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. The enquiry is still pending and in case in the enquiry it is found that the petitioner was involved in the aforesaid illegal activities, appropriate action can be commenced against the petitioner in which proceedings, if he is found guilty, he can also be fined.
17. In case the petitioner is cleared in the enquiry being conducted by the Export Promotion Bureau, the amount lying with the State Bank of Pakistan will be released forthwith to him. In case, however, he is not cleared and found to be involved in the aforesaid illegal activities in the enquiry being conducted by the Export Promotion Bureau, it is directed that the amount in question will remain deposited with the State Bank of Pakistan for a period of four months from today. In case any fine is imposed on the petitioner on being found guilty in proceedings initiated against him pursuant to the result of the enquiry being conducted by the Export Promotion Bureau, the amount lying with the State Bank of Pakistan, can be attached and utilised for payment of the fine under appropriate orders passed by the concerned Court or Authority. In case attachment of the said amount is not made by any competent Court or Authority or no order is received by the State Bank of Pakistan for payment of the said amount or any part thereof towards any fine imposed on the petitioner within four months from today, the amount lying with the State Bank will be released to the petitioner.