2002 P Cr (PLP)

3. The appellant (State Bank of Pakistan) in Criminal Appeal No.83 of 1987 through its Director has assailed the judgment, dated 17‑2‑1987, passed by the Sessions Judge and Tribunal Foreign Exchange Regulation Act, 1947, Karachi South in F.E.R. Case No. 17 of 1986, under section 12 read with section 23 of F.E.R. Act, 1947, whereby he acquitted accused Kalimullah and sentenced accused Zardad H. Khan and Muhammad Anjum Butt till rising of the Court and pay fine of Rs.5,000 each or in default thereof they have to undergo simple imprisonment for 3 months. The appellant in Criminal Appeal No.83 of 1987 has prayed for enhancement of sentence of respondents Nos. 1 and 2 whereas the prayer for respondent No.3 namely Kalimullah is that his acquittal may be converted into conviction.

4. The appellants Akbar M. Paracha and Muhammad Asghar Paracha in Criminal Appeal No. 188 of 1987, have assailed the judgment dated 5‑9‑1987 passed by the learned Sessions Judge and Tribunal F.E.R. Act, Karachi, South in Case No.97 of 1986, whereby he convicted the appellants under section 20(3) read with section 23 of the F.E.R. Act, 1947 and awarded sentence to both the appellants to suffer imprisonment till rising of the Court and pay fine of Rs.10,000 each in default thereof they, have to suffer simple imprisonment for 3 months. The case of accused Haji Saeed Ahmed, Paracha who was absconding at the time of pronouncement, was ordered to be kept on dormant file.

5. The appellants Akbar M. Paracha and Muhammad Asghar Paracha in Criminal Appeal No. 189 of 1987, have assailed the judgment, dated 5‑9‑1987 passed by the learned Sessions Judge and Tribunal F.E.R. Act, Karachi, South' in Case No.70 of 1986 whereby he convicted the appellants under section 20(3) read with section 23 of the F.E.R. Act, 1947 and awarded sentence to both the appellants to suffer imprisonment till rising of the Court and pay fine of Rs.10,000 each, in default thereof they have to suffer simple imprisonment for 3 months. The case of accused Irfan Ellahi Shaikh who was absconding at the time of pronouncement was ordered to be kept on dormant file.

6. The appellants Zardad H. Khan, Zafar Iqbal and Abdul Ghafoor in Criminal Appeal No.7 of 1990 have assailed the judgment, dated 10‑1‑1990, passed by the learned Sessions Judge and Tribunal F.E.R. Act, Karachi, South in Case No.89 of 1986 whereby he convicted the appellants under section 23 of the F.E.R. Act, 1947 and awarded sentence to all the appellants to suffer R.I. for one year and pay fine of Rs.20,000 each, or in default thereof they have to suffer R.I. for 3 months more.

7. The appellants Akbar Paracha, Asghar Paracha, Anwar Paracha, Ismat Naheed and Nasima Anwar in Criminal Appeal No.75 of 1989 have assailed the judgment, dated 4‑6‑1989, passed by the learned Sessions Judge and Tribunal F.E.R. Act, Karachi, South in Case No.81 of 1986 whereby he convicted the appellants under section 23 of the F.E.F. Act, 1947 and awarded sentence to the appellants Akbar Paracha, Asghar Paracha and Muhammad Anwar Paracha R.I. for 6 months and pay fine of Rs.30,000 each, in default thereof they have to suffer. R.I. for 3 months more, while accused Ismat Naheed and Nasima Anwar are sentenced to pay fine of Rs.30,000 each or in default thereof to suffer further R.I. for 3 months.

8. The appellants Farooq A. Shaikh, Basharat A. Shaikh and Rafique Ahmed in Criminal Appeal No. 145 of 1990 have assailed the judgment, dated 28‑8‑1990, passed by the learned Sessions Judge and Tribunal F.E.R. Act, Karachi, South in Case No.60 of 1986 whereby hw convicted the appellants under section 23 of the F.E.R: Act, 1947 and awarded sentence to all the appellants to suffer R.I. for one year and pay fine of Rs.1,00,000 each, or in default thereof they have to suffer R.I. for 3 months more.

9. The appellant Muhammad Asghar Paracha in Criminal. Appeal No. 168 of 1989, has assailed the judgment, dated 23‑11‑1989, passed by the learned Sessions Judge and Tribunal F.E.R. Act, Karachi, South in Case No. 100 of 1986 whereby he convicted the appellant under section 23 of the F.E.R. Act, 1947 and awarded sentence to the appellant to suffer R.I. for one year and pay fine of Rs.50,000 in default thereof to suffer further R.I. for 3 months.

10. The appellants Farooq A. Shaikh, Basharat A. Shaikh and Rafique Ahmed in Criminal Appeal No.144 of 1990 have assailed the judgment dated 28‑8‑1990, passed by the learned Sessions judge and Tribunal F.E.R. Act, Karachi, South in Case No.59 of 1986 whereby he convicted the appellants under section 23 of the F.E.R. Act, 1947 and awarded sentence to all the appellants to suffer R.I. for one year and pay fine of Rs.1,00,000 each, or in default thereof they have to suffer R.I. for 3 months more. 11. 'The appellant Muhammad Asghar Paracha in Criminal Appeal No.49 of 1989 has assailed the judgment dated 28‑3‑1989, passed by the learned Sessions Judge and Tribunal F.E.R. Act, Karachi South in Case No.96 of 1986 whereby he convicted the appellant under section 23 of the F.E.R Act, 1947 and awarded sentence to the appellant to suffer R.I. for six months and pay fine of Rs.5,000 or in default thereof, to suffer R.I. for 6 months more.

12. The brief facts of the case are that the appellants had committed offences under section 12 of Foreign Exchange Regulation Act, 1947 (hereinafter referred to as F.E.R., Act), which are punishable under section 23 of the F.E.R. Act. The appellants had been awarded various sentences under section 12 and section 23 of F.E.R. Act, 1947 and different fines have been imposed upon them. 13, I have heard Mr. Muhammad Iqbal, holding brief for Mr. Obed ur‑Rehman, Advocate for the appellants (State Bank of Pakistan) in Criminal Appeal No.158 of 1987 and Criminal Appeal No.83 of 1987, Mr. I.A. Hashmi, learned counsel for the appellant in Criminal Appeals Nos. 188 of 1987, 189 of 1987, 7 of 1990, 75 of 1989, 145 of 1990, 168 of 1989, 144 of 1990 and 49 of 1989 and for respondents in Criminal Appeals Nos. 158 of 1987 and Criminal Appeal No.83 of 1987, Mr. H.A. Rehmani, learned counsel for the respondents (State Bank of Pakistan) in Criminal Appeals Nos.188 of 1987, 189 of 1987, 7 of 1990, 75 of 1989, 145 of 1990, 168 of 1989, 144 of 1990 and 49 of 1989.

14. It is contended by Mr. H.A. Rahmani, that section 23 of the Foreign Exchange Regulation Act, 1947 was amended on 1‑7‑1987. The cases triable under section 23‑A of the Act were classified in two categories. One category of the cases was triable by the Sessions Judges or Additional Sessions Judges under section 23‑A of the, Act, whereas the other class of the cases was to be tried under section (4) of section 23‑B of the Act, by the Adjudication Officer. It is contended that the learned Sessions Judge had no jurisdiction in the matter to try the offences after the insertion of section 23‑B in the Act on 1‑7‑1987.

15. The cases were, therefore, to be tried under section 23‑B of the Act, by Adjudicating Officer and not by Sessions Judge. The trial of accused was coram non judice and the impugned judgments are illegal and without jurisdiction. It is argued that in these cases the provisions of section 12 of the Act had been violated, as the required amount was not deposited within the prescribed time. It is pleaded that although the jurisdictional point was not raised in the trial Court but since the forum was changed and it being a law point can be agitated at any stage of the case. The reference is made to the, case of Adnan Afzal v. Capt. Sher Afzal PLD 1969. SC

187. It is submitted that since the trial Court had proceeded with the case without jurisdiction, therefore, the sentence be set aside and the matter be sent either to the complainant State Bank for its presentation before the proper forum or directly to the forum having jurisdiction to try the case.

16. Mr. I.A. Hashmi, learned counsel appearing for the respondents Nos.1 to 3 in Appeals Nos.158 of 1987 and Criminal Appeal No.83 of 1987 and for the appellants in remaining appeals has not, controverted the above-stated legal position. He has stated that the same point is resolved in a case of Bashaarat A. Shaikh and 2 others v. The State 1992 MLD

607. The identical law point is involved in the instant cases. He has argued that the plea of jurisdiction is to be raised before the trial Court at the time of trial but it is a law point and the same can be raised at any stage of the proceedings. He pleaded that the convictions be set aside and the appeals be allowed, except Criminal Appeals Nos.83 of 1987 and 158 of 1987.

17. Mr. Muhammad Iqbal holding brief for Mr. Ubedullah, learned counsel for the State Bank states that the case may not be sent to the complainant State Bank but the acquittal may be converted into conviction and the sentence awarded to the respondents may be enhanced.

18. The crux of the arguments of all the learned counsel for the parties is that the trial Court had no jurisdiction in the matter and the impugned judgments were passed without jurisdiction. I am conscious of the fact that the matters are very old, but since all the parties make grievances that their interests and rights have been prejudiced, therefore, in the interest of justice, I think, it would be just and proper for all the parties to have a fair and reasonable opportunity. Although, this plea was not specifically taken in the trial Court but since the forum was created on 1‑7‑1987 and the cases were exclusively triable by the said Tribunal. Section 23‑B, F.E.R. Act was inserted in the Act on the above-said date. The procedural law has always a retrospective effect in absence of any express provision to that effect, therefore, under these circumstances the trial was coram non judice. The reference in this context can be had to a case of Bashaarat A. Shaikh and 2 others v. The State 1992 MLD 607.

19. In this view of the matters, the impugned judgments and conviction are set aside and the matters are remanded to the Adjudicating Officer having jurisdiction in the matter. The respondents/appellants are on bail, their bail bonds shall stand discharged.

20. The evidence is already recorded in the cases, the trial Court shall issue notices against the parties and record the statements of accused and proceed further from that stage in accordance with law. N.H.Q./S‑165/K Cases remanded.