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Criminal Revision Applications Nos, 48 and 49 of .1965, decided on 31st August 1965,
S. 23‑Juris diction of ordinary Courts to try Foreign Exchange cases‑No longer kept alive.
Waris Meah v. The State P L D 1957 S C (Pak.) 157 and Kalipada Shaha v. The State P L D 1959 S C (Pak.) 322 ref.
Riaz Hashmi for Petitioner.
N. A. Farooqui for Respondent No. 1.
Nemo for the State.
Dates of hearing: 23rd and 24th August 1965.
Two cases, i.e., under section 5 read with section 23 and under section 9 read with section 23 of the Foreign Exchange Regulation Act, 1947 are pending against the petitioner, Haji Muhammad Amin Khan, in the Court of Foreign Exchange Tribunal constituted under section 23‑A of the Foreign Exchange Regulation Act, 1947. The petitioner has filed two separate applications (Criminal Revision Applications Nos. 48 and 49 of 1965) under section 561‑A of the Code of Criminal ‑ Procedure for the quashment of proceedings pending against him before the Foreign Exchange Tribunal. Since both the applications are of one person and the grounds on which the proceedings are sought to be quashed are the same, they will be disposed of by one
2. It is contended on behalf of the petitioner that section 23(1) of the Foreign Exchange Regulation has also kept alive the jurisdiction of the ordinary Court to try the Foreign Exchange cases by a Magistrate. In other words a person accused of a contravention of the Act could be proceeded against under the ordinary law or before a Tribunal. According to the learned counsel for the petitioner the Foreign Exchange Tribunal is harsher in sentence, procedure, powers and as such inconsistent with and in derogation of Fundamental Rights and, therefore, void. In support‑of his arguments he cited the case, Waris Meah v. The State (P L D 1957 S C (Pak.) 157), wherein it was held:--
"That the Foreign Exchange Regulation (Amendment) Act (XXXII of 1956), which, by adding sections 22‑A, 23‑A and 23‑B to the original Act gave power to the Central Government or the State Bank to determine whether an offender, under the original Act, was to be tried under the ordinary law (section 23), or by an adjudication Officer (section 23‑A), or by a Tribunal (section 23‑B), the three sections prescribing three different punishing authorities, each with different power and procedure and entailing punishments of unequal nature and description, offended against Article 5 of the Constitution and was for that reason void.
The amending Act makes the principal Act ex facie discriminatory and infringes the subjects' fundamental right to equal protection of the law guaranteed by Article 5 of the Constitution of Pakistan.
The Act confers discretion of a very wide character upon State authorities, to act in relation to subjects falling within the same class in three different modes varying greatly in severity. By furnishing no guidance whatsoever in regard to the exercise of this discretion, the Act, on the one hand, leaves the subject, falling within its provisions, at the mercy of the arbitrary will of such authority, and on the other, prevents him from invoking his fundamental right to equality of treatment under the Constitution.
Held, further, that the scope of the unguided discretion was too great to permit of application of the principle that equality was not infringed by the mere conferment of unguided power, but only by its arbitrary exercise. For, in the absence of any discernible principle guiding the choice of forum among the three provided by the law, the choice must always be, in the judicial view point, arbitrary to a greater or less degree. The Act, as it is framed, makes provisions for discrimination between persons falling, qua its terms, in the same class and it does so in such manner as to render it impossible for the Courts to determine, in a particular case whether it is being applied with strict regard to the requirements of Article 5 (1) of the Constitution."
Now the position has changed because the Foreign Exchange Regulation Act has been amended by Act XL of 1957. Section 23 reads as follows:‑--
(1) "Whoever contravenes, attempts to contravene or abets the contravention of any of the provisions of this Act or of any rule, direction or order made thereunder, shall notwithstand ing anything contained in the Code of Criminal Procedure, 1898, be tried by a Tribunal constituted by section 23‑A, and shall be punishable with imprisonment for a term which may extend to two years or with fine or with both and any such Tribunal trying any such contravention may, if it thinks fit, and in addition to any sentence which it may impose for such contravention, direct that any currency, security gold or silver, or goods or other property in respect of which the contravention has taken place shall be confiscated.
(2) Notwithstanding anything contained in the Code. of Criminal Procedure, 1898, any offence punishable under this section shall be cognizable for such period as the Central Government may, from time to time, by notification in the official Gazette declare."
Section 23‑A reads as follows:‑
(1) Every Sessions Judge shall, for the areas within the territorial limits of his jurisdiction, be a Tribunal for trial of an offence punishable under section 23.
(2) A tribunal may transfer any case for trial to an Additional Sessions Judge within its jurisdiction who shall, for trying a case so transferred, be deemed to be a Tribunal constituted for the purpose.
(3) A Tribunal shall have all the powers of a Magistrate of the First Class in relation to criminal trials, and shall follow as nearly as may be the procedure provided in the Code of Criminal Procedure, 1898, for trial before such Magistrate, and shall also have powers as provided in the said Code in respect of the following matters, namely:‑
(a) directing the arrest of the accused;
(b) issuing search warrants;
(c) ordering the police to investigate any offence and report;
(d) authorizing detention of a person during police investigation;
(e) ordering the release of the accused on bail.
(4) All proceedings before a Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Pakistan Penal Code, and for the purposes of section 196 thereof, and the provisions relating to the execution of orders and sentences in the Code of Criminal Procedure, 1898, shall, so far as may be, apply to orders and sentences passed by a Tribunal.
(5) As regards sentences of fine, the powers of a Tribunal shall be as extensive as those of a Court of Session.
(6) The State Bank of Pakistan or any other person aggrieved by a judgment of a Tribunal may, within three months from the date of the judgment, appeal to the High Court.
(7) Save as provided in the proceeding subsection, all judgments and orders passed by a Tribunal shall tae final.
From the wording of section 23(1) it is clear that there is only one forum, i.e., as given under section 23‑A of the Act, in which an offence punishable under Foreign Exchange Regulation Act can be tried. It does not keep alive the jurisdiction of the ,4 ordinary Courts also to try Foreign Exchange cases by a Magistrate. In case Kalipada Shaha v. The State (P L D 1959 S C (Pak.) 322) the appellants were convicted by a Tribunal under section 23 of the Foreign Exchange Regulation Act (VII of 1947) (as amended by Foreign Exchange Regulation (Amendment) Act (XL of 1957), the offence with which they were charged having been committed after the amending Act (XXXII of 1956) but before the amending Act of "1957 (XL of 1957). It was contended by 'appellant's counsel that the conviction was illegal in view of the decision in Waris Meah's case (P L D 1957 S C (Pak.) 157). In that case (P L D 1959 S C (Pak.) 322) it was held:
"That the contention was without substance. Section 23 as amended by the Act of 1956 was in no way affected by the decision in Waris Meah's case and under that section read with section 29 of the Criminal Procedure Code the offence was triable by a Court of Session and liable to be punished with unlimited fine. The change of procedure brought about by Act XL of 1957 under which the appellants had been convicted by a Tribunal did not amount to a retrospective enhancement of punishment and the sentences imposed by the Tribunal were perfectly legal."
3. In the result I find no merit in these applications, which are hereby dismissed.
K.B.A. Petition dismissed.
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