2000 PLP 1576 (MLD)

(i) To take action under Foreign Exchange Regulation Act, 1947 against all those who are residents of Pakistan and who have remitted the foreign exchange out side Pakistan and holding the same in their accounts abroad. (ii) That declare the restoring the license of authorised money changers to hold, sale, bring, withdraw, transfer, pay or take out foreign exchange from Pakistan is violation of section 2 of the Foreign Exchange (Temporary Restrictions) Ordinance, 1998 and as such illegal and without lawful authority. (iii) Declare that all letters FE circulars and directions issued by the respondent No.2 compelling the foreign exchange account holders in Pakistan to encash their foreign exchange within a specified date or directing the banks to liquidate such foreign exchange to adjust the loan which such persons have taken against the security of foreign exchange is illegal unlawful and mala fide. (iv) Declare that the Pakistan resident who holds foreign exchange account has a right to remit their foreign exchange to their dependants who are out side Pakistan for higher studies. (v) To allow remittance of money to the dependant students who are out side Pakistan for higher studies in accordance with the prevailing rules and regulations. (vi) Direct the respondent No.1 to take appropriate disciplinary action against the officers of the respondent No.2 for not acting in accordance with the, law 'and for restoring the licenses of the authorised money changers and for issuing legal and mala fide circulars, letters, and directions to the authorised dealers of foreign exchange/banks. (vii) Grant cost of petition. (viii) Any other better efficacious relief or reliefs as this Hon'ble Court may deem fit and proper in this circumstances of the case.

2. The petitioner, who argued his case personally, vigorously attacked several circulars issued by the State Bank of Pakistan pursuant to the Foreign Exchange (Temporary Restrictions) Ordinance, 1998 (hereinafter mentioned as the 1998, Ordinance). He stressed that all transaction in foreign currency were suspended upon the enforcement of the 1998, Ordinance with effect from 28‑5‑1998, the respondent No.2 (State Bank of Pakistan) unlawfully restored the licenses of authorised money changers allowing them to hold, sell, transfer or take out foreign exchange from Pakistan. These money changers transferred substantial amount of foreign currency into the foreign bank accounts of influential politicians and businessmen though such bank accounts could not be maintained by citizen of Pakistan in terms of S.R.O. No.1016(I)/79, dated 17‑10‑1979. As a consequence, according to the petitioner, the national economy was put under severe pressure and while influential persons managed to enrich themselves by transferring huge amount into foreign currency account abroad, genuine claimants needing to remit such exchange to their dependants obtaining higher education abroad were required to obtain foreign exchange by paying far more than the official exchange rate.

3. We requested Agha Faqir Muhammad to show, apart from the respective merits or otherwise of the policy decision reflected through State Bank circulars as to how, in his opinion, such circulars were invalid. He argued that whereas the Foreign Exchange Regulation Act, 1947 conferred certain powers upon State Bank to issue directives and circulars relating to foreign exchange no such powers was conferred by the 1998, Ordinance and once the right to hold, transfer or take out foreign exchange was suspended, the State Bank could not issue circulars in derogation thereof conferring such powers upon authorised dealers. Alternatively, he argued that the powers to issue directive and policy circulars by the State Bank could only be exercised in terms of the Foreign Exchange Regulation Act, 1947, and not under any other law. To appreciate the contention, it may be pertinent to reproduce the text of the Ordinance which reads as under‑‑ 1(1) This Ordinance may be called the Foreign Exchange (Temporary Powers Ordinance, 1996. (2) It shall come into force at once. (2) Notwithstanding anything contained in the protection of Economic Reforms Act, 1992, (XII of 1992) but subject to section 3 it is hereby provided that during the period in which a proclamation of emergency under Articles 232 of the Constitution of the Islamic Republic of Pakistan is in force, the various protections contained in the said Act, or in any other law for the time being in force, or in any agreement or contract, for or in relation to foreign exchange, or the right to bring hold, sell, withdraw, transfer, pay or take out foreign exchange, shall remain suspended (1) The Federal Government may by rules make provision of regulating dealing and payments in foreign exchange and such rules may, without prejudice to the generality of the foregoing, empower the State Bank of Pakistan to grant permission to make or receive payments in foreign exchange, or to permit the conversion of foreign exchange into rupees, either on a case to case basis or on the basis of a classification of various types and categories. (2) Pending the framing of rules under subsection (1) withdrawals remittances of payment in foreign exchange shall be made‑with the prior permission of the State Bank of Pakistan.

4. We regret we are unable to subscribe to the view canvassed. The opening words of section 2 of the Ordinance notwithstanding, anything contain in protection of Economic Reforms Act, '1992, but subject to section 3 (underlining ours) clearly show that restriction imposed in section 2 were not absolute but qualified by the provision of section

3. In this context it may be mentioned that though the figure 3 does not appear in the gazette but it is apparent that the Ordinance consisted of three sections, the last one comprising of 2 subsections. We are inclined to hold that so because the text of the two subsections appearing after section 2 indicates the nature of exception to the embargo created by section

2. We have also examined the text of section 3 of the protection of Economic Reforms Act, 1992 and found that the same is altogether irrelevant in the context. We are, therefore, of the view that it is one of those cases where casus omissus ought to be provided by the Court and the figure 3 should be read before (1) in the line following the words "suspended" appearing in section 2.

5. It is, therefore, evident that the restrictions imposed by section 2 were subject to the exception provided for in section

3. Admittedly, no rules in terms of section 3(1) have been framed and, therefore, under section 3(2) withdrawals and remittances could be made with the permission of State Bank It cannot, therefore, be argued that State Bank had no authority to issue circulars permitting remittance.

6. As regards the contention that Pakistani citizen not residing abroad for a period of more than 180 days Agha Faqir Muhammad appears to be right in so far as the embargo created by S.R.O. 1016(1)/79, dated 17‑10‑1979 is concerned. The aforesaid notification, in our humble opinion, however, proceeded upon the consideration that restriction of remittance of foreign exchange were in force. Nevertheless, section 4 of the Protection of Economic Reforms Act, 1992 conferred an unfetted right upon all citizen of Pakistan residing in or outside Pakistan to take out foreign exchange out of Pakistan in any form. Indeed section 3 of the Act stipulated with the provision thereof would override in other law including the Foreign Exchange Regulation Act, 1947. Indeed it would be highly anomalous to assume that while a citizen and resident of Pakistan could transfer or take out foreign exchange in any form without any restriction to any other country, he could not deposit the same in a bank in that country. We are, therefore of the view that the notification in question stood superseded by the overriding provision of the Act.

7. Coming to the question of relief, Mr. Kazim Hussain learned counsel for the respondent No.2 pointed out that most of the issues raised had already been decided by the Hon'ble Supreme Court in Federation of Pakistan v. Shaukat Ali Mian (PLD 1999 SC 1026). As far as a direction to take appropriate action against those who might have legally remitted foreign exchange outside Pakistan or those bank officials who might have facilitated the same in terms of prayers (1) and (61 it may be observed that no particulars of such persons have been placed before the Court. In any event a list was placed before the Hon'ble Supreme Court and their lordships directed that suitable action warranted by law may be taken. Therefore, such direction through this Court is uncalled for. Prayer No.2 cannot be granted because, as discussed above, the restriction under section 2 of the Ordinance was not absolute but subject to qualification laid down in section 3(2). Prayer No.3 already stands granted in terms of the judgment of Hon'ble Supreme Court and withdrawal of circular in question and the petitioner is under no obligation to encash his foreign exchange account in rupees terms. As regards the right to remit foreign exchange to their dependants abroad for educational purposes, the matter, if we may say, with respect has been exhaustedly dealt with and the Hon'ble Supreme Court has issued appropriate directive in terms of para. 1 (b) of its order, dated 18‑6‑1999 and we would respectfully follow the same. Accordingly, the petition is disposed of in terms of the above judgment of the Hon'ble Supreme Court in Federation of Pakistan v. Shoukat Ali Mian. ' Q.M.H./M.A.K./F‑7/K Order accordingly.