This criminal revision under section 439, Cr.P.C. calls in question the order dated 12-11-1997 passed by the Presiding Officer, Foreign Exchange Regulation Appellate Board, Karachi whereby the surety offered on behalf of the applicant was rejected.
2. The circumstances leading to this revision, concisely stated, are that a complaint was filed by State Bank of Pakistan, respondent No,2, through Shamsuddin, Foreign Exchange Officer against Younus Rehmatullah, proprietor/ signatory of M/s. Green Valley Trading Company, Karachi, the applicant, under section 12(1) read with section 23-B of Foreign Exchange Regualtion Act, 1947 (hereinbelow to be referred to as 'the Act') for non-repatriation of exports proceeds of $14280 (first shipment), $ 45305 (second shipment) and $ 106080 (third shipment). The Additional Director of Adjudication, respondent No,1, held proceedings and after examining the evidence recorded by him passed the judgment dated 25-1-1996 against applicant Younus Rehmatullah, Proprietor of M/s. Green Valley Trading Company under section 121(1) read with section 23-B(4) of the Act and imposed penalty of Rs,50,00,000 upon him. The applicant preferred an appeal before the Foreign.
Exchange Regulation Appellate Board under section 23-C of the Act and offered surety on 9-4- 1997, but no final order was passed about acceptance of the surety as there was no proof of the valuation of the property. The order dated 17-9-1997 passed by the Appellate Board indicates that such valuation of the property was to be made by the City Deputy Collector. On 29-10-1997, however, valuation was received from Assistant Commissioner, Karachi South. Since value of the shop was assessed at Rs,1,92,339.99 while the amount of penalty was Rs,50,00,000 the security was rejected and the applicant/appellant was directed to furnish another surety. The applicant/ appellant filed an application requesting the Appellate Board to accept the same surety, but the application was rejected by order dated 12-11-1997. He, therefore, preferred the instant Criminal Revision.
3. I have heard Mr. Suhail Muzaffar, learned counsel for the applicant and Mr. H.A. Rehmani, learned counsel for the respondents.
4. At the outset the maintainability of the criminal revision under section 439, Cr.P.C. was seriously questioned. Mr. Rehmani contended on behalf of the respondents that the Appellate Board, which passed the impugned order, is neither a criminal Court nor a Court inferior to High Court within the meaning of section 435, Cr.P.C., therefore, this Court has no jurisdiction to exercise powers under sections 435 and 439, Cr.P.C. He argued that after introduction of amendments through Finance Act, 1987 (Act VI of 1987) the contravention of, inter alia, the provisions of subsection (1) of section 12 of the Act has been taken out of the purview of the Tribunal constituted under section 23-A of the Act and now the cases of such contravention are to be adjudicated not by the said Tribunal, but by the Adjudicating Officers, and in case of appeal by Appellate Board constituted under sections 23- B and 23-C whose powers have been enumerated under section 23E which expressly spell out the powers of a Civil Court. According to Mr. Rehmani, the orders passed by the said Adjudicating Officer and Appellate Board are not amenable to criminal revision under the Code of Criminal Procedure. In this context he also referred to the provisions of sections 1(2) and 5(2) of, the Code of Criminal Procedure and urged that the said Code is not applicable to the proceedings before the Adjudicating Officer or Appellate Board. He placed reliance on Nasir-ud-Din v. The State (PLD 1956 (W.P,) Lahore 1082), Abdul Hamid Arif v. State (PLD 1974 Karachi 167), Muhammad Rafiq v. State.
(PLD 1980 Lahore 708) and Fida Muhammad v. State Bank of Pakistan (1982 PCr.LJ 779).
5. Learned counsel for applicant, however, arguing in support of the maintainability of Criminal Revision submitted that, in essence, the original order passed by the Additional Director of Adjudication, that was impugned before the Appellate Board (respondent No,1) clearly mentions that the charge against the applicant stood proved and he is, therefore, convicted. Consequently, penalty of Rs,50,00,000 has been imposed on him, therefore, the original order shall be deemed to have been passed by a criminal Court and the proceedings before the Appellate Board shall also be treated as criminal appellate proceedings.
6. The contentions raised by Mr. H.A. Rehmani are initially based on the amendments introduced in the Foreign Exchange Regulation Act, 1947 through Finance Act, 1987 (Act VI of 1987) and vires of the amending Act have, perhaps, been challenged before another Bench of this Court, but nothing has been placed on record to suggest that the Amending Finance Act has been struck down or not, therefore, in view of the observations of the Honourable Supreme Court in the case of Federation of Pakistan v. Aitzaz Ahsan (PLD 1989 SC 61) that a piece of legislation unless finally declared ultra vires possess its normal operation, the amendment so effected shall hold the field.
7. It may, however, be noted that before the said amendments section 23 of the Act wholly encompassed the subject in respect of "penalty and procedure" laying down that the contravention of any of provisions of the Act and the rules etc be tried by a Tribunal constituted under section 23-A of the Act. Under section 23-A, every Sessions Judge of the area would act as Tribunal having powers of a Magistrate of the First Class in relation to criminal trials. Further, as contemplated under subsection (3) of section 23-A the procedure provided in the Code of Criminal Procedure, 1898 was to be followed. After enforcement of the amendments through Act VI of 1987 the contravention of provisions of subsections (2), (3) and (5) of section 3, subsection (3) of section 4, section 10, subsection (1) of section 12 and subsection (3) of section 20 or any rule, direction or order made thereunder have been excluded from the jurisdiction of the Tribunal and consequential amendment has simultaneously been made by inserting new sections 23-B, 23-C, 23-D, 23-F and 23-H. Under these newly-added provisions the adjudication of the contraventions has been bifurcated and in respect of the matters covered by the contravention of the provisions which were excluded from the purview of the Tribunal constituted under section 23-A of the Act a new set-up has been established and adjudication of those contraventions has been entrusted to Adjudicating Officers whose decisions are appealable before a separate forum namely the Appellate Board. A separate procedure under section 23-E has been prescribed laying down the powers of Adjudicating Officers and Appellate Board. Section 23E of the Act runs as under:-- "23E. Powers of Adjudicating Officers and the Appellate Board to summon witnesses, etc.---(1)
Without prejudice to any other provision contained in this Act, the Adjudicating Officers and the Appellate Board shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908) while trying a suit, in respect of the following matters namely:--
(a) Summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any document;
(c) requisitioning any public record or copy thereof from any Court or office;
(d) receiving evidence on affidavits;
(e) issuing commissions for the examination of witnesses or documents;
(f) appointing guardians or next friends of persons who are minors or of unsound mind;
(g) adding legal representatives of the accused person;
(h) consolidation of cases; and
(i) enforcing any order made by him or it under this Act or the rules made thereunder."
8. It may be recalled that the proceedings before Adjudicating Officer and the Appellate Board are deemed to be judicial proceedings within the meaning of section 23F of the Act, but this kind of provision is common to many Tribunals and Courts even to the Civil Court and by itself it does not determine the status of the Court as to whether it is a Civil or Criminal Court.
9. Mr. Suhail Muzaffar, learned counsel for applicant referred to the words used by the Adjudicating Officer in his original order pointedly mentioning that the charge against the applicant stood proved, he was accordingly convicted and penalty imposed on him. In view of the phraseology used in the order he argued that the Adjudicating Board shall be treated as a Criminal Court. I am unable to agree with the learned counsel that for the sole reason that the terminology often used by the Criminal Courts has been employed by the Adjudicating Officer, the forum convened by him shall essentially be treated as a Criminal Court. Indeed, it is the powers conferred on a Tribunal/Forum by statute and the procedure prescribed therein that determine the nature of the Court; and only then upon thorough consideration of all the relevant provisions governing the proceedings it can be said that such forum or Tribunal has the attributes of a Civil or a Criminal Court.
10. It is significant to note that on the subject-matter involved in the instant case the Adjudicating Officer deals with the contravention of aforementioned provisions of the Act and the rules, directions or order made thereunder and upon adopting the procedure laid down in section 23E, which eventually are those of a Civil Court, imposes a penalty in terms of money. Although, in different cases different adjudicating officers have been empowered to pass orders, but a distinct and conspicuous feature that can be marked in these provisions is that in any case the act does not empower them to impose fine or imprisonment in lieu of the penalty. The provisions for recovery of penalty provided in section 23J does, at the most, empower recovery of penalty through Collector of the District as arrears of land revenue, but this section does not by itself equate the penalty with fine nor does it provide any imprisonment in lieu thereof. It may be noted that "penalty" by no stretch of imagination, can be treated as "fine" within the meaning of section 53, P.P.C. unless a statute, by necessary intendment and in specific terms treats it a fine. It is on account of such legal concept of punishment that the Legislature has, in express terms, made the other contraventions covered by subsection (1) of section 23 of the Act (not excluded through the amendments made by Act VI of 1987) punishable with imprisonment and/or fine. Essentially the present case possesses distinguishing features.
11. The provisions of subsection (2) of section 5 of the Code of Criminal Procedure are relevant in this, context for the purpose of determining the question whether the Code of Criminal Procedure would be applicable to a Forum/Tribunal constituted under a special statute or not. These provisions are reproduced as under:-- "1. Short title: commencement.---(1) This Act may be called the Code of Criminal Procedure, 1898.
(2) Extent.---It extends to the whole of Pakistan; but in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
5. Trial of offences under Penal Code.--- (1) All offences under the Pakistan Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) Trial of offences against other laws.---All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
12. A joint reading of these provisions would indicate that the Code of Criminal Procedure is not applicable to the matters governed, by any special or local law unless there is a provision expressly' making the Code applicable to such special or local law wholly or to any extent. Indeed, after the aforementioned amendment through Act VI of 1987 the application of Code of Criminal Procedure within the meaning of subsection (3) of section 23-A of the Act extends only to the Tribunal constituted under section 23-A which essentially is the Sessions Judge exercising the powers under the Code of Criminal Procedure within the territorial limits of his jurisdiction and would not extend to the forum of Adjudicating Officer established under section 23-B and the Appellate Board constituted under section 23-C of the Act. An express and specific provision laying down the applicability of the Code of Civil Procedure, 1908 under section 23 of the Act is by itself sufficient and by no sound reasoning the Code of Criminal Procedure could be applicable to these forums overlooking the express provisions of law.
13. The wisdom behind making such contravention punishable with penalty only and by laying down a moderate machinery for the purpose of adjudication of such case and recovery of penalty under section 23J of the Act is manifest from the scheme of introducing these amendments. To my mind it seems, the commercial morality and the free and liberal commercial and industrial business transactions could be the main object of excluding the contravention of aforementioned provisions of the Act from the purview of a Criminal Court and bringing them within the domain of a Forum/Tribunal exercising the powers of a Civil Court so that the lapses in terms of money be treated as defaults of civil nature and dealt with accordingly. The commerce, trade and, industry spreads over a number of business transactions and the ordinary lapses on the part of businessm an or industrialist shall not so often be treated as crimes unless the mens rea to perpetrate a crime and commit fraud, mischief or misappropriation of money, criminal breach of trust etc. and loss to public exchequer is evidence in unequivocal terms. Irrespective all this, as already discussed, the adjudication of the aforementionedcontravention has intentionally been brought within the domain of Code of Civil Procedure, the Adjudicating Officer, therefore, cannot be treated as a Criminal Court.
14. In result of the foregoing discussion I am inclined to hold that the Adjudicating Officer constituted under section 23-B and the, Appellate Board constituted under section 23-C are neither criminal Courts nor Courts of inferior jurisdiction within the meaning of section 435, Cr.P.C.
Even if the Adjudicating Board has used the terminology of 'charge' and 'conviction' the proceedings are manifestly beyond criminal jurisdiction of this Court under sections 435/439, Cr.P.C. The instant application under the aforesaid provisions of Code of Criminal Procedure is not maintainable and is, therefore, dismissed.