1989 PLP 2019 (CLC)

Muhammad Aslam v. Mst. Gulraj Begum 1989 SCMR 1 ref. (d) Imports and Exports (Control) Act (XXXIX of 1950)‑‑ ‑‑‑Ss. 5A, 5B & 5C‑‑Customs Act (IV of 1969), Preamble‑‑Import of goods‑ Customs Authorities are concerned only with the realisation of duties and contravention of such provisions of the Customs Act which might be applicable to the export consignment‑‑Customs Authorities are not concerned whether goods were in terms of contract or not‑‑Commercial Court would be competent to take action whenever complaint is made that any order relating to export trade had been contravened. The Customs Authorities are concerned with the realisation of duties and contravention of such provisions of the Customs Act which may be applicable to the export consignment. They are not concerned whether the goods are in terms of the contract or not. They would certainly intervene in the matter where goods are completely different from the one mentioned in the export document. In cases where goods being the same are of inferior quality, the Customs Authorities will take action if it prejudicially affects the duty. The provisions of section 5A, 5B and 5C are intended to regulate the practices in export trade and also to see that malpractices are eliminated and goods are exported according to contract and specification. With this view in object whenever complaint is made that any order passed under section 3 of the Act relating to export trade has been contravened, whether it is before the shipment or after the shipment of the goods, the Commercial Court will be competent to take such action against such exporters as provided under law. Muhammad Hanif Khan for Petitioner. S. Shamim Raza for Respondents. Dates of hearing: 28th February; 1st and 6th March, 1989. SALEEM AKHTAR, J.‑‑The petitioner is engaged in business of export and import as proprietor of M/s. Hashmi Trading Corporation. He entered into an oral agreement with foreign buyers namely Abu Dhabi National Food Stuff Company for supply of 1000 cases = 10 metric tons, superior quality green raising (Kishmish No.l). The inner packing was to be of polythene bags and outer packing in strong wooden cases, each containing 10 Kg net fresh crop for US. Dollar 19,000 C.F. value. A sample of the goods was also sent to the buyers. The buyers opened a letter of Credit dated 24‑2‑1982 with Bank of Credit and Commerce International (Overseas) Ltd. Before the goods were exported the petitioner got them surveyed by S. Ali Anwar a government licensed Marine Insurance surveyor who inspected them on 27‑3‑1972 and certified that the goods and the packing were in accordance with the terms of the agreement. After conducting the survey he scaled the goods by affixing slip thereon. Before shipment the petitioner called the said surveyor on 30‑3‑1982 to supervise the loading of the goods on trucks and taking them to the Customs Authorities. At that time the seals were found in tact but at the time of loading the goods on the truck he removed the seals from the cases. The gods were loaded on the truck and discharged in the port premises for shipment. The goods were then shipped on board PRESIDENT EISENHOWER VH 90 AMR. When the goods arrived at destination the buyers by a cable dated 27‑2‑19$2 complained about the quality of the goods which was not in conformity with the sample provided by the petitioner. It has been alleged that without further contacting the petitioner the buyers wrote a letter to Mr. Niaz A. Naik, Chairman Rice Export Corporation of Pakistan complaining against the petitioner that the goods sent to them were of inferior quality. He forwarded this letter to the Vice Chairman Export Promotion Bureau under his covering letter dated 26‑6‑1982. The Director Export Promotion Bureau addressed a letter dated 13‑6‑1982 to the petitioner calling upon him to explain and also to suggest proposal for amicable settlement within 10 days failing which legal action was threatened. The petitioner replied the letter and suggested that the buyers may get the goods surveyed by a representative of General Superintendent Company in Abu Dhabi. He also suggested that a sample be drawn from the goods and laboratory test report should be obtained and forwarded to him along,‑with the sample and the other sample be sent to Export Promotion Bureau. He assured to cooperate in the matter. No reply was received by the petitioner, and respondent No.2 filed a complaint dated 13‑9‑1983 before the respondent No.l alleging that the petitioner exported the goods to the buyers which were of inferior quality as compared to the sample supplied by him. Along with the complaint survey report dated 15‑8 1982 issued by Mr.A.J. Green Land, at the request of M/s. Gray Mackenzie and Partners and 17 photographs were filed before respondent No.l. A bailable warrant was issued against the petitioner who appeared on 3‑10‑1983 and was released on bail. After framing charge respondent No.l examined S. Nasimuddin Research Officer of Export Promotion Bureau. The petitioner an6 Syed Ali Anwar, the surveyor were examined as defence witnesses. After hearing the arguments respondent No.l passed the judgment convicting the petitioner with simple imprisonment for three months with a line of Rs.10,000 and in default of payment of fine, the petitioner was to suffer imprisonment of one month. The petitioner was further ordered to pay compensation of U.S. $.9,443 plus survey fee of UAE Dirham 1050 in equivalent Pakistan currency. The Court also ordered to pay compensation to the foreign buyers out of the revolving fund and after recovery from the petitioner the same shall be deposited by way of replenishment.

2. Mr. Muhammad Hanif Khan, the learned counsel for the petitioner has contended that the order has been passed without jurisdiction and conviction has been recorded on no evidence at all. Before discussing the contention of the learned counsel for the petitioner, it would be proper to first examine the constitution and jurisdiction of the Commercial Court, i.e. the respondent No.l The Commercial Courts were first constituted by amendment in the Imports and Exports (Control) Act 1950 by Ordinance V of 1980 whereby sections 5A, 5B and 5C were added. Under section 5A the Federal Government is empowered by notification to establish Commercial Courts and specify the territorial limits within which or the class of cases in respect of which they were to exercise jurisdiction. The Commercial Court consists of a Chairman who is or has been a Sessions Judge and two other members to be appointed out of a penal of businessmen executives and Officers of Scheduled Banks to be appointed in consultation with the Federation of Pakistan Chamber of Commerce and Industry and the Pakistan Banking Council. The Commercial Court exercises its jurisdiction in respect of contravention of Order made under section 3 of the Act relating to export trade. This is the exclusive jurisdiction of the Commercial Court. It has been authorised to exercise all powers conferred by the Code of Criminal Procedure on a Court of Sessions exercising original jurisdiction. However where no procedure is prescribed by the Act the procedure prescribed by Criminal Procedure Code shall be adopted by‑the Commercial Court. A! special rule of evidence has been provided by section 5B subsection 3 that photo copy of any document produced to support of a claim made to a Commercial Court is admissible in evidence provided such copy is duly attested by the Pakistan Mission in the country in which such document was written or by an Officer of the Export Promotion Bureau authorised by its Chairman in this behalf. The Commercial Court therefore exercises jurisdiction where an order made under section 3 relating to export trade only has been contravened, following the procedure laid down by the Criminal Procedure Code and applying a rule of evidence for admitting photo copy of document attested in the prescribed manner. Section 5B subsection 5 empowers the Commercial Court to impose punishment as provided by section 5 of the Act and in addition to that may also direct the exporters to deposit in Court within the time specified by the Court a sum determined by it for payment to the foreign buyer as compensation. Such compensation should be equivalent in value to the loss or damage suffered by the foreign buyer. A revolving fund has been set up by the Federal Government which would make payment of compensation determined by the court to the foreign buyer and on recovery from the exporter the same has to be deposited in it: Under section 5 of the Imports and Exports (Control) Act 1950 any person who contravenes the provisions of the Act ( )r an order made or rules framed or the conditions of the import licence, in addition to the confiscation and penalty to which he shall be liable under the Customs Act as applied by section 3 subsection 3, be punishable with imprisonment for a term which may extend to one year, with fine or with both. The Commercial Court has been constituted with a view to restrict the malpractice in export trade. It further intends to provide speedy relief to the importer so that the export business of the country may develop. The Commercial Court has been constituted and consists of representative of trade industry and businessmen, as well as a banker. Therefore, its constitution ensures that not only the legal aspects are to be taken care of by its Chairman but even business and banking practices and traditions are also to be looked after by its members who have knowledge and experience in that field. The Commercial Court takes cognizance of wilful breach of order made under section 3 of the Act relating to export. The Federal Government has promulgated Export (Quality Control) Order 1973 which provides that no exporter shall wilfully fail to fulfil export orders. A breach of this order is an offence triable by the Commercial Court. It is pertinent to note that the order passed by the Commercial Court is not appealable and for this reason the petitioner has invoked the Constitutional jurisdiction of this Court.

3. While exercising constitutional jurisdiction the Court does not act as an appellate Court. It can only examine the facts broadly to consider whether the Commercial Court has exercised its jurisdiction lawfully and the order passed is not without jurisdiction. The function of the High Court in exercising such jurisdiction is not to enter into disputed facts of the case, or scrutinise the evidence as an appellate Court or substitute its own finding to that of the trial Court. Therefore while perusing the evidence the restriction placed in exercise of such jurisdiction has to be kept in mind and is not to be swayed away by minor irregularity or insignificant misappreciation of evidence which does not affect the result of the case.

4. Mr. Muhammad Hanif Khan, the learned counsel contended that one Mr. Nasimuddin had tiled the complaint and as he did not know any fact himself his evidence was of no value and no conviction could be made on that basis. Section 5B subsection 2 of the Act provides that a Commercial Court shall not take cognizance of an offence except on a complaint in writing made by the Officer of the Export Promotion Bureau authorised by its Chairman by a general or special order in this behalf. Therefore, so far the competence of the complainant is concerned, it has not been questioned. He has filed complaint as provided under law. He has also produced several documents in support of the claim which include the correspondence and the survey report. The entire evidence was based on these documents. The documents were produced through this witness, but no objection to their admissibility was raised at the time of production. Along with the complaint the complainant had filed the correspondence, invoice, bill of lading, letter of credit, survey reports, photographs of the exported goods and claim bill. All these documents have been attested by the Commercial Secretary, Embassy of Pakistan, Abu Dhabi. These photo copies were admissible as provided by section 5B subsection

3. The learned counsel has also contended that these documents were inadmissible in evidence particularly the survey report which certifies that the goods were not according to the samples and specification. This objection cannot sustain because it should have been raised at the time of production of the document. Although the photo copies duly attested by the Pakistan Mission have been made admissible in evidence it may require proof provided objection to its proof is raised at the time of production of these documents. In this regard reference can be made to Muhammad Aslam v. Mst. Gulraj Begum 1989 SCMR 1.

5. As in the present case, the documents have been admitted in accordance with law and no objection was raised at the time of their production in Court, it is not necessary to prove them by producing their author. The contention of the learned counsel for the petitioner that the judgment is based on no evidence was advanced on the presumption that the documents produced by the complainant were not admissible in evidence. This not being the situation, the documents' prove the importer's case and in arriving at the decision the Commercial Court does not seem to have violated any principle which may vitiate its judgment.

6. Mr. Muhammad Hanif Khan the learned counsel for the petitioner has contended that once the goods have been exported and reach the port of destination in a foreign country, the Commercial Court is not competent to exercise jurisdiction. He has contended that it is for the Customs Authorities to see that the import and export regulations are duly complied with and there are government machineries and examiners to inspect the goods before shipment and if they had cleared the consignment the Court ceases to have jurisdiction. If this interpretation of the learned counsel is accepted then it means that if the irregularities and illegalities committed by an exporter are not detected by the Customs Authority or any other agency before shipment or they fail to check it then the exporter cannot be punished on the basis of the complaint made by the importer in respect of goods he has received at a foreign port. The Customs Authorities are concerned with the realisation of duties and contravention of such provisions of the Customs Act which may be applicable to the export consignment. They are not concerned whether the goods are in terms of the contract or not. They would certainly intervene in the matter where goods are completely different from the ones mentioned in the export documents. In cases where goods being the same are of inferior quality, the Customs Authorities will take action if it prejudicially affects the duty. The provisions of sections 5A, 5B and 5C are intended to regulate the practices in export trade and also to see that malpractices are eliminated and goods are exported according to contract and specification. With this view in object whenever complaint is made that any order passed under section 3 of the Act relating to export trade has been contravened whether it is before the shipment or after the shipment of the goods the Commercial Court will be competent to take such action against such exporters as provided under law.

7. Mr. Syed Shamim Raza the learned counsel has referred to 1980 CLC 1196 and PLD 1976 SC 244 and contended that the jurisdiction of this Court is limited and if the order passed is within jurisdiction no writ will be issued. It is well settled that the jurisdiction under Article 199 of the Constitution is not as wide as in appeal where the appellate Court is entitled to scrutinize the evidence j in detail and can even substitute its own finding for the finding of the trial Court. In exercising writ jurisdiction the Court will examine the facts to ascertain whether the impugned order is without jurisdiction, mala fide, based on surmises and conjecture that there is no evidence to support the judgment. If any one of these defects are found, the High Court will not hesitate to exercise the constitutional jurisdiction. Although it has been held that misreading of evidence can be a ground for interfering but to find out whether there is a misreading of evidence or not the Court will not scrutinize the record as an appellate Court. Such misreading of evidence should be found floating on record, and if two possible and reasonable conclusions can be drawn from evidence on record the n the High Court will refrain from interfering with the impugned judgment. We have examined the record produced by the respondent's Advocate and do not find any illegality or defect in the impugned judgment. The petition is therefore dismissed with no order as to cost. AA./H‑164/K Petition dismissed.