ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI.

C.P.No.D-3150/2018.

Date	Order with signature of Judge

Petitioner: Muhammad Imran Khan through Mr. Sohail Hameed,

Advocate.

Respondent No.1: Federation of Pakistan through Mr. Abdul Jabbar Rajput,

Assistant Attorney General.

Respondents No.2 Director Adjudication, Foreign Exchange & Adjudication Court & another through Mr. Hasan Akber, Advocate.

Date of hearing. 12. 09.2018.

Date of order. 19.09.2018

O R D E R

MUHAMMAD IQBAL KALHORO J: Petitioner, who is doing business of export and import of gold and gold jewelry in the name and style of M/s Imran & Brothers is facing adjudicating proceedings before respondent No.2 / Director Adjudication, Foreign Exchange Adjudication Court on the allegations that he exported gold on self-consignment basis but failed to repatriate full export proceeds within stipulated period from the date of shipment in contravention of section 12 (1) of Foreign Exchange Regulation Act, 1947 (FER Act), punishable under subsection (4) of the said Act, has filed this petition with following prayers:-

Declare that the act of framing of charge dated 13.05.2015 by the Respondent No.2 against the petitioner without supplying copy of the complaint to the petitioner to defend his case is in violation of the fundamental right of fair trial of the petitioner enshrined in Article 10-A of the Constitution of Pakistan and, therefore, the act of the Respondent No.2 is without lawful authority, arbitrary, and in colourable exercise of powers and usurpation of authority and as such void ab initio and nullity in the eyes of law.

Suspend the Charge and proceedings before the Respondent No.2 against the petitioner as being conducted against and in violation of the Fundamental right of the petitioner of fair trial under Article 10-A of the Constitution of Pakistan and therefore, void ab initio and nullity in the eyes of law;

Declare that the amendment of section 23-B in the Foreign Exchange Regulation Act, 1947, through Finance Act, 1987, is violative of Articl3e 70 and 73(3) of the Constitution of Islamic Republic of Pakistan and, therefore, without lawful authority, void ab initio and of no legal effect.

Any other relief;

2. On 10.06.2015 this court made an observation in the nature of an interim that respondent No.2 may proceed with the matter but shall not announce final order/ judgment. During the course of hearing, learned counsel for the parties informed that the subject proceedings have been completed and the case is ripe for announcement of judgment but because of the restraining order, respondent No.2 is not announcing the judgment. Learned counsel for the petitioner in his arguments did not emphasize on alleged violation of Article 10-A of the Constitution or that the petitioner was not supplied a copy of the complaint and other relevant documents at the time of framing of charge against him to defend his case. His main objection was on validity of section 23-B of 1947 Act which according to his was unconstitutional as it was not passed by both the house in terms of Article 70 and 73 of the Constitution. His next contention was that respondent No. 2 cannot act as a court and frame charge against the petitioner and that the proceedings before him are Coram non judice, illegal and void ab initio. He in support of his contentions has relied upon case law reported in PLD 2009 SC 879 and PLD 2011 SC 2013.

3. In contra, learned counsel for respondents No.2 & 3 has submitted that section 23B FER 1947 Act was introduced through Finance Act, 1987 in accordance with Article 73 of the Constitution and has been declared by this court a valid piece of legislation in the case of Muhammad Irshad and another Vs. Deputy Director Adjudication and others (2003 CLD 917); that under the said provision of law, the Federal Government is competent to authorize through a notification any officer of the State Bank of Pakistan to exercise powers and discharge the duties conferred and imposed on him by the said law; that respondent No.2, who is duly notified by the State Bank, is holding proceedings against the petitioner under the mandate conferred on him by the said provision of law; that the petitioner did not deposit exports proceeds within stipulated time and thus caused a huge loss to national exchequer; that against the petitioner, adjudicating proceedings have been taken according to law after fulfilling all the formalities. He relied upon 2003 CLD 917, 1991 MLD 692 and 2003 YLR 1185 in support of his arguments.

4. Heard and perused the record including the case law cited at the bar. Respondent No.2 started proceedings against the petitioner on a complaint filed by the State Bank through its authorized officer to the effect that he exported gold on self-consignment basis but failed to repatriate full export proceeds within stipulated period from the date of shipment, which is a contravention of provisions of section 12 (1) of FER Act, and is punishable under subsection (4) of the said Act. On such complaint, initially the show-cause notices containing necessary details of exported gold, and export proceeds worth US$ 3599797.55 and US$ 313,127.00, which the petitioner failed to repatriate, were given to the petitioner. The petitioner filed replies to the said show-cause notices, which are available at page No. 55, 69, 73, 77 and 79 of the file. In his replies, the petitioner does not seem to contest the allegations against him but proceeds to cite some other factors effectuating his failure to repatriate the exports proceeds within time and seeking some waiver in this regard. We are mindful that merit of the allegations against the petitioner is not an issue before us and the same is pending adjudication before respondent No.2, therefore, we would not like to dilate upon the same. The reason however for mentioning above facts is to show that the petitioner was fully aware of the allegations against him and in this regard all the necessary documents were shared with him prior to framing of the charge against him.

5. In regard to the next point about constitutionality or otherwise of section 23B of FER Act, we may state that this question has already been settled by this court in the case of Muhammad Irshad and another Vs. Deputy Director Adjudication and others (supra) whereby the objections to the validity of said provision of law were rejected and it was held that all the proceedings conducted by the officers of State Bank of Pakistan for violations of section 12 (1) of FER Act were within the jurisdiction of the officers duly designated by the State Bank under section 23B FER Act. The relevant Para is reproduced herein below for a reference and convenience.

“ One of the grievances of all the learned counsel appearing for the petitioners was that insertion of section 23-B in the FER Act under the Finance Act of 1987 was un-Constitutional being violative of Articles 70 and 73(3) of the Constitution of the Islamic Republic of Pakistan,1973. Their contention was that an amendment in the ordinary law cannot be made through a money bill which does not go through the procedure of being passed by the Parliament and thereafter by the Senate before it is presented to the President of Pakistan for his assent. It may be stated here that in the case of Hoosen Dawood & Co. v. Government of Pakistan, Civil Petition No.138-K of 1992, petitioner’s counsel advanced a similar plea before the Supreme Court of Pakistan asserting that the inclusion of section 31-A in the Customs Act, 1969, through section 5 of the Finance Act of 1988 (Act VI of 1988), which was a money bill was ultra vires the Constitution. The Honourable Supreme Court of Pakistan in its judgment dated 08.11.1992 repelled the contention and held that the aforesaid amendment in the Customs Act was in accordance with the provisions of the Constitution. The argument of the learned counsel for the petitioners challenging the validity of section 23-B is accordingly rejected. Consequently, it is held all proceedings conducted by the officers of SBP for violation of section 12(1), FER Act by the petitioner were within the jurisdiction of the officers appointed/designated by SBP under section 23B, FER Act and the penalties awarded by them are valid and in accordance with law.”

6. It is obvious from the above reading that objection of the learned counsel for the petitioner to the validity of section 23B of FER Act is not sustainable and is without any merits. Resultantly, we find no merits in the instant petition which is accordingly dismissed along-with pending application.

JUDGE

A.K