P L D 1959 (W (PLP)

H. Abdul Rahman, S. M. Nasim and Khurshid Ahmad for Appellant. Sultan Ahmad and Zahur Ahmad for Respondent. Dates of hearing :12th, 15th, 17th and 26th June 1959. Hafiz Abdul Karim, a Fruit Merchant of Lahore, exported to India via Wagha, two consignments of fresh fruit valued at Rs. 1,340 and Rs. 1,407 on the 17th of July, 1956, and one consignment of the value of Rs. 2,838 on the 17th of August, 1956. As was required by section 12 of the Foreign Exchange Regulation Act VII of 1947, he put in three declara tions to the effect that he shall receive the proceeds of the exported fruit within two months of the date of the export in Foreign Exchange from Lloyds Bank Ltd., Lahore. The money was not repatriated from India within the specified time and, therefore, Abdul Karim was challaned and tried on three counts by a one‑man Tribunal consisting of Mr. M. M. Aslam under section 12, subsection (1) read with section 23 of the aforementioned Act, and eventually convicted and sentenced to one year's rigorous on each count and to pay a fine of Rs. 2,000 on the first count, Rs. 3,000 on the second, and Rs. 1,500 on the third. He was to undergo further rigorous imprisonment for three months in case of the default of the payment of each fine. Abdul Karim has come up in appeal to this Court, and the only question which has been argued before me is purely technical.

2. In order to appreciate the question argued it is necessary to set out here the change which the original section 23 of the Foreign Exchange Regulation Act has undergone since the Independence which took place in August, 1947. Ordinarily, under this section, whoever contravened or attempted to con travene any of the provisions of this Act, or of any rule, or direction, or order made thereunder, was punishable with imprison ment for a term which may extend to two years or with fine or with both. The case was triable by an ordinary Court constituted by the Criminal Procedure Code and it was within the competency of such Court, if it thought fit, in addition to any sentence which it might impose, to order the confiscation of the property or goods in respect of which the contravention had taken place. By Ordinance XIX of 1955, section 23, was split up in four parts. Section 22‑A was added which laid down that whoever contravened or attempted to contravene or abetted the contravention of any of the provisions of the Foreign Exchange Regulation Act, or of any rule, or direction, or order made thereunder shall be tried and proceeded against and punished according to the provisions of the newly‑framed section 23 or section 23‑A or section 23‑B. According to these sections, a person committing an offence against the Act could be proceeded against in the ordinary Courts created by the Code of Criminal Procedure, or before an Adjudication Officer, or before a Tribunal as the Central Government or the State Bank of Pakistan decided. If the case was proceeded against in ordinary Court under the ordinary law, then the sentence on conviction could be that of imprisonment, and if the case was committed to the Court of Session, of a fine of any amount. If the case was to be tried by a Tribunal, the accused could be sentenced to imprisonment and fine of any amount, but if the accused was taken before an Adjudication Officer, he could not be sentenced to imprisonment and the maximum penalty that could be imposed upon him was up to the three times the value of the amount involved in the commission of the offence. This ordinance was published in the Gazette (Extraordinary) of the 7th of July, 1955. It was subsequently replaced in exactly the same words by the Foreign Exchange Regulation (Amendment) Act XXXII of 1956. The Supreme Court of Pakistan in the famous Waris Meah v. The State (P L D 1957 S C (Pak.) 157) case held that the amending Act in so far as it amended section 23, was hit by article 5 of the Constitution, and was, therefore, bad in law. Thereafter, first by an Ordinance (IX of 1957) promulgated on the 15th of August, 1957, and then by Act XL of 1957 published in the Gazette (Extraordinary) of the 13th of September, 1957, section 23 of the Act was further amended, according to which a person committing an offence against the Act, notwithstanding anything contained in the Code of Criminal Procedure, was to be tried by a Tribunal constituted under section 23 of the Act, and the offence was made punishable with imprisonment for a term which may extend to two years, or with fine, or with both. The authority was given to such a Tribunal to order the confiscation of the property if it thought it fit to do. According to section. 23‑A, every Sessions Judge for the area within the territorial limits of his jurisdiction was to be a Tribunal for trial of an offence punishable under section

23. It is under this section that the one‑man Tribunal consisting of Mr. Muhammad Aslam has tried this case.

3. The objection which has been taken to the trial of the accused by his learned counsel is that Act XXXII of 1956, though not expressly but by implication, had repealed section 23 as it originally stood by replacing it by sections 22‑A, 23, 23‑A and 23‑B. On the day, therefore, when the late Constitution of Pakistan came into being, the existing law was the one which was contained in Act XXXII of 1956. No sooner this Act was found by the Lords of the Supreme Court to be ultra vires than the old section 23 did not revive. Right from the date, therefore, it is contended, when the late Consti tution came into force, which was on the 23rd of March, 1956, to the 15th of August, 1957, when Ordinance 1X of 1957 came into force, although the Act called upon the people who intended to export goods to the foreign countries to abide by certain rules, directions, and orders, there was no provision to punish the contra vention of such rules, directions, or orders. The accused, therefore, when he exported the fruit to India on the 17th July, 1956 and 17th August, 1956, did violate the provisions of the Act and the rules framed thereunder, but he committed no punish able offence under the law as it then stood, and therefore, the conviction of the appellant was completely bad.

4. The whole argument is based on the wording of Article 6 of the late Constitution of Islamic Republic of Pakistan which was to the following effect :‑ "No person shall be punished for an act which was not punishable by law when the act was done, nor shall any person be subject to a punishment greater than that prescribed by law for an offence when the offence was committed ".

5. This argument, in view of the abrogation of the Con stitution and the judgment of their Lordships of the Supreme Court in Doso's case (P L D 1958 S C (Pak.) 533) that the Fundamental rights contained in Chapter II of the Constitution, including Article 6, are destroyed, is not now available to the learned counsel. Not withstanding the abrogation of the Constitution and the judgment of their Lordships of the Supreme Court, there is well‑established principal of natural justice which is practised by all civilized countries and there is no reason why should it not be enforced here, that no person shall be punished for an act which was not punishable by law when the act was done. The same, however, cannot be said with regard to the punishment which is not fundamental right based on natural justice, but is purely a procedural matter, and if increased, will be regarded only as a cumulative, and as having not superseded the pre‑existing law.

6. The question, therefore, which has to be decided in this case is whether the contravention of the Act or the rules made thereunder was punishable on the two dates when the appellant exported the fruit to India in spite of the judgment of their Lordships of the Supreme Court in Waris Meah's case. As has already been mentioned, section 23 of the Foreign Exchange Regulation Act as it originally stood did make the contravention of the Act, or of any rule, direction, or order made thereunder as a punishable offence. It was then triable by an ordinary Court following the ordinary procedure laid down in the Criminal Procedure Code. What Ordinance XIX of 1955 which was subsequently replaced by Act XXXII of 1956 actually did was to add certain provisions to section 23 by splitting it up in sections 22‑A, 23, 23‑A, and 23‑B, creating two other Tribunals with different powers and procedures to function simultaneously with the Courts of ordinary jurisdiction. The Ordinance or the Act did not repeal section 23, nor did it have the effect of revoking or abrogating the section. A dis tinction shall have to be made between an enactment which adds to or withdraws a provision from a certain enactment or a section and the enactment which revokes or abrogates the entire enactment or the section, whether by replacing it by an absolutely new provision or leaving it just at that. In each case separate rules of construction shall have to be applied. In case the law is completely revoked or abrogated, it is altogether dead and is completely destroyed. In case it is replaced by a new law, such new law takes its birth as a new baby. In cases, however, where some provision has been withdrawn from an enactment or a section or some provision has been added thereto, then the old law is neither destroyed nor revoked. Only the addition comes in as a new law and the withdrawal of a provision means the total destruction of such provision. If the law which makes an addition to an existing law or withdraws some of its provisions is found to be unconstitutional or void, then it will be void to that extent alone and no more. The rigid application of the principle of invalidity that the whole of the law, including the one which was already in existence, has become void would lead to serious injustice. To put it in the words of Chief Justice Hughes quoted at pages 247 and 248 of Cushman, Leading Constitutional Decisions, 9th Edition, " the actual existence of a statute prior to such a determination (of uncon stitutionality) is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subse quent ruling as to invalidity may have to be considered in various aspects with respect to particular relations, individual and corporate, and particular conduct, private or official ".

7. Referring to the case in hand, it would lead to absurd results if one was to hold that their Lordships of the Supreme Court by their Judgment in Waris Meah's case completely deleted section 23 of the Act as it originally stood. It is perfectly clear to my mind that their Lordships found Act XXXII of 1956 to be void to the extent of inconsistency with Article 5 of the late Constitution, thus, holding that the two further Tribunals created by this Act were an infringement of the law of Constitution. The violation of the Act was not taken out of the category of offence. The argument of the learned counsel, therefore, that the violation of the Act was not an offence on the two dates when the appellant exported the fruit is misconceived and must be repelled.

8. The question whether the appellant should be convicted by the Tribunal constituted under Act XL of 1957 which was not in force when the alleged offence was committed should not detain us for long. As a general rule no statute shall be construed to have retrospective operation unless such operation appears very clearly in the terms of the statute or arise by necessary implication, meaning thereby that it is open to the Court to look into the intention of the legis lature and where it is made clear in some known way that the enactment will have a retrospective effect then the Courts will be bound to give effect to this intention of the legislature. There is, however, one exception to this general rule and that is with regard to the statutes which affect only the procedure and the practice of the Court. Such statutes have a retrospective action. It is perfectly settled law that if the legislature forms a new procedure that instead of proceeding in this form or not the case should proceed in another and different way, then clearly the bygone transactions are to be enforced according to the new form and procedure. The trial of a particular offence by a particular Tribunal, the imposition of a particular kind of punishment and the procedure to be adopted by the Court have to be those which are in vague at the time of the trial. It is possible that the Court may be given jurisdiction for an offence which was committed before the jurisdictional statute was passed. It would be a perfectly valid law and the accused would be tried by such Court. In accordance with the general principles the statutes which create new liabilities in connection with the past transactions should not be given a retrospective operation, that is to say, if an act when committed, is not an offence, then it should not be made punishable after it has been committed, but if a certain offence is an offence as the case here, then the punishment provided therefore can be altered and it can take effect in pending cases. The technical objection, therefore, taken against the trial of the accused has no substance and is hereby rejected.

9. Precisely, the offence which the accused committed was that he did not repatriate the price of the fruit exported to India within two months as he was bound to do under noti fication No. F. E./53 SB, dated the 8th of January, 1953, pub lished in pursuance of Rule 3 of the Foreign Exchange Rules, 1952, by the State Bank of Pakistan.

10. It is argued that the accused has done his best to get the money but has failed to do so for reason beyond his control. No person has a right to export anything outside Pakistan unless he can be cent per cent sure that the amount of the exported goods will be repatriated to Pakistan within the time specified in the declaration. The responsibility entirely rests upon the shoulders of the exporter, and if he is unable to get the amount repatriated within the time specified, he commits an offence under section 23 of the Foreign Exchange Regulation Act. To hold otherwise would seriously damage the interests of the country as a whole. The argument advanced at the bar that the appellant had honestly tried his level best to get the money repatriated, but had failed to do so, and therefore, he had committed no offence, is completely irrelevant. If such an excuse is accepted then it would become difficult for the authorities to get the money repatriated from foreign countries to Pakistan and it would eventually endanger the foreign exchange of this country. 1, therefore, uphold the conviction of the accused‑appellant.

11. Keeping in view all the circumstances which have appeared on the record, I think the ends of justice will be met if the accused is sentenced to the term of imprisonment already undergone and to the fine imposed on him by the trial Court in addition to the imprisonment in default thereof. The appeal is, therefore, accepted only to this extent. K. B. A./A. H. Appeal partly accepted.