' Pervaiz Iqbal Bhatti, convict-respondent had been convicted under section 23(1) of the Foreign Exchange Regulation Act (VII of 1947) (hereinafter called as the Act) and sentenced to pay a fine of Rs,1,000 by Mr. Fazalur Rehman Khan, the then learned Sessions Judge and Ex-Officio Tribunal under the Regulation vide his judgment and order dated 8-2-1992. Feeling aggrieved, tbe State Bank of Pakistan has filed this appeal to question the jurisdiction of the Tribunal in view of/the amendment of section 23 of the Act.
2. Admittedly, the convict-respondent was the Proprietor of Bhatti Trading Company, 19-Saddar Road, Peshawar and in such name used to carry on business in gems and precious stones. It is a common ground between the parties that in the course of business, the respondent was granted special permission by the State Bank of Pakistan to export 'Lapis-Lazuli' cough and cut stones worth U.S. Dollars 32400 to Hongkong with an undertaking to repatriate within ninety days the sale proceeds. It is also not denied that the respondent had failed to carry out his aforesaid undertaking for more than two years and seven months notwithstanding repeated notices by the State Bank of Pakistan. In consequence, at the instance of the State Bank of Pakistan, a case was registered by the FIAI/C.B.C., Peshawar vide F.I.R. No,44/86, dated 11-11-1986.
3. The respondent despite repeated efforts by the F.I.A. Did not join investigation. By way of coercive measures, therefore, warrants for his arrest under section 204, Cr.P.C. And proclamation under section 87, Cr.P.C. Were issued but of no avail. Resultantly, the respondent was declared a proclaimed offender. On completion of investigation, complete challan under section 12/23 of the Act read with section 512, Cr.P.C. Was submitted against the respondent. On 24-5-1990 supplementary challan was filed against him after the respondent had surrendered. On 17-9-1990, he was charged under section 12/23 of the Act by the Foreign Exchange Tribunal, Peshawar and while pleading not guilty took the stance that follows:-- "I had exported the stone and under special permission of the State Bank, had obtained a period of 90 days for the repatriation of sale proceeds but the importer at Hongkong (Stoner Hong Kong Company) had been wound up. The proprietors of the firm had run away and thus I could neither find them nor get the repatriation despite my efforts."
' The prosecution examined Zafar Hussain Birlas, Exchange Control Officer, State Bank of Pakistan at Peshawar (P.W.1), Syed Muizuddin Manager, United Bank Limited, Urmar Payan Branch (P.W.2), Fazal Malik Khan, Assistant Director Passport Cell, F.I.A., Rawalpindi (P.W.3) and Zulfiqar Shah, D.S.P. Special Branch, Peshawar (P.W.4).
4. The appellant in his statement admitted to have exported the stones under the special permission of the State Bank of Pakistan vide Exh.D.1.
5. The learned Tribunal, as stated earlier, convicted the respondent under section 23(1) of the Act and sentenced him to pay a fine of Rs,1,000 or in default to undergo simple imprisonment for one month.
6. Mr. Hidayatullah Khan, learned counsel for the appellant Bank, placed reliance on an unreported judgment of Lahore High Court in Criminal Appeal No,380 of 1989 titled State Bank of Pakistan v.
Khalid Rashid, Chairman Miraj Sons Limited, 1991 M LD 692 = 1991 PCr.LJ Note 205 at p.147 Lahore, decided on 22-124990 by Fazal Karim, J., as 'his Lordship then was and contended that in pursuance of substitution of new sections 23-B to 23-J of the Act by virtue of section 4 of the Finance Act (VI of 1987) for old section 23(1) ibid, the jurisdiction to try certain offences including the offence under section' 12(1) vested in the Adjudicating Officer and that the learned Tribunal was no more seized of any jurisdiction on 24-5-1990 when the respondent was challaned to stand his trial before the Tribunal or on 17-9-1990 when he was charged or on 8-2-1992 when he was convicted and sentenced.
7. Mr. Abdul Sattar Khan, learned counsel for the respondent, on the other hand, placed reliance on
(i) New Singhal Dal Mill v. Firm Sheo Prasad Jainti Prasad (AIR 1958 Allahabad 404), (ii) Deep Chand v. State of U.P. (AIR 1959 SC (India) 648) and (iii) Saeed Ahmad v. The State (PLD 1964 SC 266) to contend that under section 6 of the General Clauses Act (X of 1897) all rights, liabilities etc., continue in spite of repeal and all proceedings can be taken and continued which could have been taken or continued as if the repealing Act had not come into force. In the last-mentioned precedent case of Saeed Ahmad it was held that a person who commits an offence incurs a liability at the time when he commits it. That liability sticks to him and does not disappear by any subsequent amendment or repeal unless to . The amendment or repeal is added something that expressly takes away the liability. It appears that neither the learned counsel for the parties at the stage of trial nor the learned Tribunal was cognizant of the Act that by Act VI of 1987, sections 23-B to 23-J had been substituted for section 23 and a number of other consequential amendments had been brought about in the Act. As stated earlier, Act VI of 1987 came into force on 30-6-1987.
The sections relevant for the purpose of this appeal are sections 23-B, 23-C and 23-E. Section 23-B empowers the Federal Government by notification in the Official Gazette to authorise in relation to any area specified in the notification any officer of the State Bank to act as Director of Adjudication, a Senior Deputy Director of Adjudication, a Deputy Director of Adjudication and an Assistant Director of Adjudication (to be referred to as the Adjudicating Officer). An Adjudicating Officer may exercise the powers and discharge the duties conferred or imposed on him by the Act "and shall also be competent to exercise the power and discharge the duties conferred upon any Adjudicating Officer subordinate to him. Subsection (4) of section 23-B also provides that 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 one of the Adjudicating Officers specified therein having jurisdiction under subsection (8) to take cognizance of such contravention and, if he persists in such contravention or default is continuing one, to a further penalty which may extend to two thousand rupees for every day during which the offence, or as the case may be, the contravention or default continues. Subsection (7) of section 23-B makes provision for calculating the amount or value of foreign exchange and subsection (8) provides for jurisdiction and powers of the Adjudicating Officer. Subsection (9) provides for holding an inquiry by the Adjudicating Officer for the purpose of determining whether a person has or has not contravened any of the provisions of subsection (4), (5) or (6) and imposition of penalty provided for in the section. Section 23-C empowers the Federal Government to constitute as many Appellate Boards, each to be called the 'Foreign Exchange Regulation Appellate Board', as it may think necessary and when it establishes more than one Appellate Board, to specify in the notification the territorial limits within which each one of them shall exercise jurisdiction. The Appellate Board shall consist of a person who is, or has been or is qualified for appointment as a Judge of a High Court or a District Judge or an Additional District Judge. A person aggrieved of an order of the Adjudicating Officer may, within 30 days of such order, prefer an appeal under section 23-C to the Appellate Board within whose jurisdiction the order is passed. Under subsection (4) of section 23-C, provision has been made for cash deposit of amount of penalty or at the discretion of the Appellate Board furnishing of security equal to such amount of penalty. Section 23-E enacts that the Adjudicating Officer and the Appellate Board shall have all powers of a Civil Court under the Code of Civil Procedure, 1908, while trying a suit in respect of the matters enumerated therein and section 23-F says that the proceedings before an Adjudicating Officer or Appellate Board shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Pakistan Penal Code and an Adjudicating Officer and Appellate Board shall be deemed to be a Court for the purpose of sections 480 and 482 of the Code of Criminal Procedure, 1898.
8. Mr. Abdul Sattar Khan, learned counsel for the accused respondent invoked the provisions of section 6 of the General Clauses Act, 1897 and contended that the pending proceedings such as the proceedings in this case were saved
9. The question whether the repeal of section 23 ibid and substitution of new sections 23-B to 23-J would affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as provided for in section 6 of the General Clauses Act, 1897, was answered in the affirmative by his Lordship Ch. Fazal Karim, J., in the case of State Bank of Pakistan v. Khalid Rashid, 1991 M LD 692 = 1991 PCr.LJ Note 205 at p.147 cited by the learned counsel for the appellant. In para. 12 of the unreported judgment his Lordship held:-- "It has been seen that under section 23-A of the Act, every Sessions Judge is a Tribunal for trial of an offence punishable under section 23. To put differently, the Sessions Judge is, under section 23- A a Tribunal to try only those offences as are punishable under section 23. If an offence is not an offence punishable under that section, the Sessions Judge is not, as regards that offence, a Tribunal. Thus, it is a necessary condition precedent to the Sessions Judge acting as the Tribunal under section 23-A that the offence is one of the offences punishable under section 23. The effect produced by the amendment made in section 23 by Act VI of 1987 was that as from 30-6-1987 the offence under section 12, subsection (1) ceased to be an offence punishable under that section. It follows inevitably, therefore, that the learned Sessions Judge had ceased to be a Tribunal for the trial of the offence, for which the respondent was being tried and that at the date of the impugned judgment he had no jurisdiction to try that offence and to decide these cases."
' Again in para. 15 of the said judgment it was rightly observed and to which I respectfully subscribe that the comparison of section 23 and section 23-A of the Act and provisions of the Act as amended by Act VI of 1987 shows that the amended provisions are more beneficial to the person accused and further that the offence such as an offence under section 12, subsection (1) is under the amended law not punishable with imprisonment and the Adjudicating Officer and the Appellate Board, to whom the power to try the offences and to hear the appeal is now vested, do not do so under the Code of Criminal Procedure and the powers that they exercise are the powers exercisable by a Civil Court while trying a suit. It was, therefore, held that the learned Sessions Judge therein had no jurisdiction to try the offence under section 12, subsection (1) of the Act on the date of his judgment dated 15-1-1989.
9. The legal and factual background of this case is identical to that of the precedent case of Khalid Rashid aforesaid.
10. The contention raised on behalf of the respondent that section 6(e) of the General Clauses Act, will apply and the amended sections 23-B to 23-J will not apply to the case of the respondent and that the Tribunal would still have the power to try the offence having been committed before the amendments is even otherwise untenable. Assuming, but not conceding, that section 6 of the General Clauses Act applies to the circumstances of this case, I have to see what clause (e) of that section provides. It lays down that the repeal shall not affect any investigation, legal proceeding or remedy in respect of any such right, privilege etc. In an identical proposition, clause (e) of section 6 of the General Clauses Act was construed by a Division Bench of Rajasthan High Court in a case from Indian jurisdiction reported as Purshotam Singh v. Narain Singh and State of Rajasthan (AIR 1955 Rajasthan 203) in the following paragraph at page 206:-- "This clause has, in our opinion, nothing to do with the forum where the investigation, legal proceeding or remedy has to be pursued. If the repealing Act provides a new forum where a legal proceeding coming on from before the repealing Act came into force can be pursued thereafter, the forum must be as provided in the repealing Act, and no party can insist that the forum of the repealed Act must continue." . In the instant case, the amending Act VI of 1987 did not make any provision for pending proceedings. It can, therefore, safely be inferred that the amending Act would apply retrospectively, apart from the reasons highlighted in the above paragraph on the additional ground that the forum of Tribunal under the repealed law had not only been omitted but a new forum had been constituted with change in the nature of proceedings from criminal to civil and from punishment of imprisonment to penalty. The repealing Act, as has been noted earlier, provides a new forum where the case coming on from before the repealing Act came into force can be pursued therefore, the forum must be the one as provided in the repealing Act. The respondent cannot, therefore, insist that the forum of the repealed Act must continue.
11. As a sequel to what has been stated above, I am of the considered view that the learned Tribunal (Sessions Judge, Peshawar) was devoid of jurisdiction to try the offence under sections 1tand 23(1) of the Act on the date of passing the impugned judgment dated 8-2-1992. In consequence, this appeal is accepted and the impugned judgment is set aside as being without jurisdiction.
12. Before parting, I would like to bring on record my profound appreciation of the assistance rendered by Mr. Saifur Rehman Kiyani, the learned Advocate-General, N.-W.F.P., who had appeared in response to my short notice. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.