2000SCMR65 (PLP)

IRSHAD HASAN KAHN, ACTG. CJ.

This judgment shall dispose of Civil Petitions Nos.952-L of 1999, and 1188-L of 1999 to 1211-L of 1999 arising out of a consolidated judgment dated 8-6-1999 and involving identical questions of law and facts, passed by a learned Single Judge of the Lahore High Court in Writ Petitions Nos. 15482 of 1998 and 16399 to 16422 of 1999.

2. It is pleaded that the petitioners herein were registered as Exporters with the Chief Controller of Imports and Exports, Karachi. They started exporting ready-made garments to what was then West Germany, through M/s Piracha Import Export Grosshandle Wurzel Sir, Frankfurt Main Germany. Each time goods were exported, the petitioners were required to fill-in form E, declaring the quantity of the goods being exported, its invoice value in foreign currency, and giving an undertaking that the amount in foreign currency when received, shall be paid into the State Bank of Pakistan. Petitioners allegedly continued their said export business from 1986 onwards, and paid into the Government Treasury a huge amount of foreign exchange. It is alleged that after the unification of East and West Germany in 1989, for reasons over which the petitioner had no control, the business in Germany of the petitioners started falling and finally in 1996-97 it reached such a low ebb that the firm had to go into liquidation. It is also alleged that the Banks, namely, Faisal Bank Limited, City Bank Limited and Standard Chartered Bank Limited, Faisalabad, through which the business of the petitioners was being conducted reported the matter of default to the State Bank, as required by law. The complaint was then referred under section 12(1) of the Foreign Exchange Regulation Act, 1947 (hereinafter called the Act), to the office of Mr. Asghar Ali Tahir, Additional Director of Adjudication for Punjab, State Bank of Pakistan Building, 11th Floor, Shahrah e-Quaid-e-Azam, Lahore. It is further pleaded that the matter was heard under the Adjudication Proceedings and Appeal Rules, 1988 and finally an order was passed on 30-6-1998 whereby a fine of Rs.63,695,000 (Rupees Sixty three Million, Six Hundered and Ninety five thousand only) was imposed on the petitioners "with the direction to deposit the said amount of penalty in Government Account maintained with the State Bank of Pakistan immediately, failing which the same shall be recovered from them through the District Collector as Arrears of Land Revenue".

3. The petitioners being aggrieved with aforesaid order, approached the Lahore High Court through Constitutional petitions, which were dismissed through consolidated order dated, 8-6-1999 being not maintainable; on the ground that the remedy of appeal under section 23-C(4) of the Act, 1947, was not invoked. On merits, it was also observed that the petitioners were unable to show that under the German Law a mere declaration of bankruptcy without any order of the competent Authority was enough to confer the status of bankruptcy upon the declarant. It was further observed that in view of the evidence on record the petitioners had directly received foreign currency from the importer.

4. Mr. Maqubl Elahi Malik, Senior Advocate Supreme Court, learned counsel for the petitioners vehemently argued that the learned Judge in Chambers after having held that the exercise of jurisdiction under Article 199 of the Constitution was dependent upon non-availability of adequate remedy, there was no justification for recording findings on merits, which has resulted inter grave prejudice to the petitioners.

5. After hearing the learned counsel for the petitioners and Mr. Khawaja Saeeduz Zafar, learned Deputy Attorney-General, we find that the contention; raised by the learned counsel for the petitioners is' not without force. Resultantly, we convert these petitions into appeals and set aside the impugned judgment of the High Court to the extent of findings on merits of the case. In consequence, the petitioners are allowed to avail remedy of appeal before the proper forum within 20 days from today, which, if filed, the said forum shall give benefit as regards delay of the period during which writ petitions remained pending before the High Court and shall decide the appeal on merits as well as the prayer for interim relief.. Meanwhile, no coercive measures will be taken against the petitioners for a period of 20 days from today to enable them to approach the appropriate forum. The appeals are allowed in the above terms. There shall be no order as to costs. M.B.A./A-192/S Appeals allowed.