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Petitioner: EXPORT PROMOTION BUREAU and others VS Respondent: QAISER SHAFIULLAH
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Ajmal Mian, Saad Saood Jan Title: EXPORT PROMOTION BUREAU and others vs QAISER SHAFIULLAH Case No.:Constitutional Petition No, D-1073 of 1991Civil Appeals Nos. 242 and 243 of
JUDGMENT
Reported As: 1994 SCMR 859 Result: Order accordingly Judgment JUDGMENT AJMAL MIAN, J.---By this common judgment, we intend to dispose of the above two appeals which have been filed with the leave of this Court against a common judgment dated 24-12-1991 passed by a Division Bench of the High Court of Sindh, Karachi in Constitutional Petition No, D-1073 of 1991 filed by the respondent in the above First Appeal, namely, Qaiser Shafiullah hereinafter referred to as 'Qaiser', inter alia, against Export Promotion Bureau, hereinafter referred to as the Bureau against the order dated 24-7-1991 of the Vice-Chairman of the Bureau cancelling the quota of Qaiser, allowing the same. Leave to appeal was granted to consider the contentions raised by the learned counsel for the Bureau and Qaiser. 2. The brief facts are that United States and other European countries have been allocating yearly quotas to Pakistan for importing, inter alia, textile products including garments and other items. It appears that Government of Pakistan i,e. Appellant No,2 in the above first appeal issued Notification SRO No, 948(i)/87 dated 8-12-1987 under subsection (1) of section 3 of the Imports and Exports (Control) Act, 1950, hereinafter referred to as the Act in supersession of its earlier SRO No, 1140(i)/86 dated 31-12-1986, hereinafter referred to as the 'notificationprescribing the procedure for management and allocation of textile quotas with effect from 1st January, 1988 to 31st December, 1991, hereinafter referred to as the 'Scheme'. Clauses 1, 2, 5, 6, 12, 13 and 14 of the Scheme read as follows: "1. The objectives of the textile quota management policy shall be the fulfillment of Pakistan's obligation under bilateral textile, agreements with importing countries, maximisation of foreign
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exchange earnings through improvement in quality. Encouragement of value addition, promotion of edicted business practices and prevention of misuse of quota allocations. 2. The Management of textile quotas shall be the responsibility of the Export Promotion Bureau. For this purpose EPR pursuant to the provision of this order, shall issue Public Notices from time to time. 5. Quotas allocated will be transferable. Allocations made to tariff area and garment manufacturing units in KEPZ for only MMF products will be mutually transferable. KEPZ units shall purchase quota of MMF products from the tariff area against evidence of encashment of foreign exchange by KEPZ units. 6. Export Visas/Certificate will be issued by the EPB on the basis of shipment made. In case where advance licensing is required by importing country the EPB will issue pre-shipment export Visa/licence. 12. If an Association is unable to function under the process of law or the Federal Government decides to withdraw Association's functions/powers in respect of textile quota management the responsibility of quota allocation entrusted to that Association shall revert to the Bureau. 13.---(1) No allocation shall be valid unless it is in accordance with the provisions of this order. (2) Any exports made in contravention of the provisions of this Order shall not count towards the performance of the exporters and shall be treated as irregular and void. (3) Cases of shipments in contravention of this Order and other malpractices such as excess shipment over the allocated quantity misdeclaration of weight and category, shall lead to cancellation of quota and or the penalty provided for in the Imports and Exports (Control) Act, 1950 (XXXIX of 1950). 14. If an exporter has made shipment in excess of his entitlement such excess shipment shall be adjusted against his entitlement of next year on such terms and conditions as the Export Promotion Bureau may determine." 3. It appears that Qaiser received orders from the exporters in U.SA. For the import of various textile items including knitted shirts, T. Shirts, Blouses etc. He exported the same under the Scheme. It further appears that the Bureau's Director issued a show-cause notice, dated 3rd May, 1990 to Qaiser alleging therein that he made a shipment of 483 dozens under category 647/8 (Trousers) to M/s. Cherry Stix Ltd. 1350 Broadway N.Y., U.S.A. Under faked repeatfate Visa No, OPK-3528 dated 24- 3-1990 which was a forgery of Government documents and violation of the policy. He was called upon to explain, as to how he managed to acquire the Government stamps and affixed forged signatures of a Government officer on the U.S.A Visa. In response to the above show-cause notice, Qaiser submitted first letter dated Nil with reference to his discussion with the Director-General of the Bureau which reads as follows: "Subject: Regarding Shipment of 483 Dozens under Cat-647/8 to U.SA. Dear Sir, Please refer to our discussion regarding above shipment, we hereby undertake to state that: . (1) 100% F.O.B. Value of above shipment already submitted against Pay Order No, 022626 for Rs,1,65,368. (2) 483 dozens quota of Cat. 647/8 may be deducted from our Pass Book. (3) In future we will be very careful. Meanwhile we will keep finding with our Ex-Manager the facts regarding above shipment. We assure your honour that we will fully cooperate in any manner. Therefore, it is requested to your kind honour to revive our Quota-Service. Thanking you in anticipation. We remain." Then he submitted his reply, dated 6th May, 1990 in which he inter alia, stated that the above shipment was effected and the shipment was arranged by his Manager Muhammad Farooq who used to deal the export documentations and the allied matters with the Association and the Bureau. It was also stated that it was not to his knowledge that fake stamp and forged signature had been used in he shipment of the above consignment. He also referred to the deposit of
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Rs,1,65,368 through Pay Order as a security deposit referred to in the earlier above-quoted letter. He also assured that he will fully cooperate in any manner of investigation of the above matter. It seems that while the above matter was still pending Qaiser was served with another show-cause notice dated 19-1-1991 in which it was alleged that upon reconciliation of Visa documents in respect of Visas under various U.S.A. Categories furnished by U.S.A. Customs, it came to light that five Visas used by him for exporting the items mentioned therein were not issued by the Bureau. He was informed that by his above act he has rendered himself liable for the following punishments: "(1) Cancellation of entire quota held by you or your sister concerns. (ii) Levy of penalty equivalent to 100% of FOB value. (iii) Imprisonment under the Import Export Control Act, 1950 for a term which may extend to one year or fine or both." Consequently he was called upon to show cause within 14 days as to why penal action should not be taken against him. The above show-cause notice was. Responded to by him through his letter, dated 31st January, 1991. He stated therein that it was not to his knowledge that fake Visas were used for the above consignment. He was shocked and surprised to note about the same. He pointed out that his performance in the past was satisfactory; and that he had been purchasing quotas from the market. He also stated that he did not know that how did it happen; and that-the same were old case and the punishment to the previous staff was already being given in May, 1990. He promised to be more careful in future. It appears that the Bureau set up a Committee to examine the cases of fake/forged Visas against which shipments were made to U.SA. By the various parties. Qaiser was informed by the Deputy Director Bureau through his letter, dated 14th February, 1991 that the Committee found that the above five shipments were made by him against fake/forged Visas. He was also informed that on the recommendation of the respective Associations the competent authority had decided to impose the following punishments: (i) Surrender of double the quantity of 1,740 dozens in Cat. 338 and 1003 Doz. In Cat. 339. (ii) Payment of penalty equivalent to 200% of FOB value of the consignments." 4. It appears that he filed Constitutional Petition No,D-233 of 1991 challenging the above decision. The above petition alongwith other petitions were disposed of by the following consent order dated 8-5-1991: "The main grievance of the petitioners is that the impugned orders have been passed without hearing them by the Authority concerned. Mr. Khalid Anwar, learned counsel for the respondent appearing in all the above cases states that the impugned orders in the above cases will not be enforced against any of the petitioners and that the respondents will re-hear the matter, re- consider the same and after hearing and allowing an opportunity to the petitioners of going through the official record, if they so desire, will pass fresh ordeRs, The learned counsel for the respondents further states that these cases will be heard on 19-5-1991 either by the Vice-Chairman or the Director-General (Textile), Export Promotion Bureau, as may be permissible under the law and if any of the petitioners so desire they or their counsel will be allowed to inspect the official record and take notes before 19-5-1991. The learned counsel for the respondents also stated that the petitioners, if they so desire, may add any further, ground to their written representation already filed and they will be at liberty to raise any legal objection available to them under the law before the authority hearing the petitions. The miscellaneous applications fixed today alongwith the main petitions are accordingly disposed of in the light of the above statement of Mr. Khalid Anwar, the learned counsel for the respondents. As jointly agreed by the learned counsel, the petitioners are directed to appear before respondent No, 1 on 19th May, 1991 at 10-00 a.m. On which date these petitions will either be heard by respondent No, 1 or any other officer competent under the law to
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hear them or they may be fixed thereafter on any other date according, to the convenience of parties for hearing and disposal in accordance with the law." After the above remand order, there was controversy between the parties as to the documents which Qaiser was entitled to inspect pursuant to the above consent order. However, eventually he and the other exporters inspected some documents and the matter was proceeded with by the Vice-Chairman of the Bureau, who by his above order cancelled his quota. Thereupon, he filed the present Constitutional petition in which, inter alia, it was urged that the Vice-Chairman had no jurisdiction in the matter as only the Commercial Court in view of sections 5(A) and 5(B) of the Act was competent. On merits, it was urged that the reasons found favour with the Vice-Chairman were not sustainable. The Division Bench through the impugned judgment decided the above legal point against Qaiser but upheld his contentions on the merits. Against the above judgment the Bureau and Qaiser filed separate petitions for leave to appeal, which were granted for the above reason. 5. We have heard Mr. Khalid Anwar and Mr. Sharaf Faridi, learned counsel for the Bureau and Qaiser respectively. They have not cited any case but submitted list of cases to the Court Officer before the arguments. Reference to the relevant case-law has been made. We are inclined to agree with the conclusion arrived at by the High Court that the Vice-Chairman of the Bureau under the Scheme had jurisdiction to deal with the above irregularities/illegalities. It is true that section 5(A) of the Act contemplates establishment of one or more Commercial Court consisted of a person who is or has been a Sessions Judge (who is to act as the Chairman) and two members appointed from out of a panel of businessm en, executives and officers of scheduled Banks drawn up by the Federal Government in consultation with the Federation of Pakistan Chambers of Commerce and Industry and the Pakistan Banking Council. Whereas section 5(B) envisages that a Commercial Court will have exclusive jurisdiction to try the cases of contravention of an order made under section 3 relating to export trade upon a complaint made to it in writing by an officer of the Bureau authorised by its Chairman by a general or special order in this behalf. It also empowers a Commercial Court upon the proof of breach on the part of an exporter to direct him to deposit in Court within the specified time the amount of compensation to be paid to the foreign buyer for the loss suffered by him on account of the above breach. It may also be pointed out that section 5 provides penalty by laying down that if any person contravenes any provision of the Act or any order made or deemed to have been made under the Act and the rules made therein or makes use of an import or export licence other than in accordance with any condition in that behalf imposed under the Act, he shall without prejudice to any confiscation or penalty to which he may be liable under the provisions of the Customs Act, 1969 as applied by subsection (3) of section 3 of the Act to be punishable with imprisonment for a term which may extend to one year or with fine or with both. The proceedings before the Commercial Court are of criminal nature, inter alia, for the reason that it has been empowered to award imprisonment by above section 5 besides the fact that subsection (5) of section 5(A) provides that a Commercial Court shall have all powers conferred by the Code of Criminal Procedure, 1898 (Act V of 1898) on a Court of Session exercising original jurisdiction. Reference may be made in this behalf to the case of Muhammad Moin Siddiqi v. The Commercial Court of Sindh and Balochistan, Government of Pakistan and another (1989 CLC 1415) and the case of Hashim v. Commercial Court of Sindh and Balochistan (1989 CLC 2019) wherein a Division Bench of the Sindh High Court has aptly dilated upon the scope, and the nature of the Commercial Court's jurisdiction under the Act. The Commercial Court has exclusive jurisdiction to try a case under the above provisions of the Act. However, the above criminal proceedings cannot be equated with a proceeding which the Vice-Chairman of the Bureau may initiate by virtue of the fact that under the Scheme the Bureau has been made responsible for the management of textile quotas. The power to manage contained in above-quoted clause (2) of the
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Scheme read with above-quoted paras. 13 and 14 empowers the Vice-Chairman of the Bureau to take action contemplated by the above two latter clauses, namely, clauses (13) and (14). This power is different from the power of a Commercial Court to try a case under the Act. 6. In this behalf it will be advantageous to refer to the case of the State through Collector, Central Excise and Land Customs, Lahore v. Abdul Ghafoor and another (1971 P.Cr.LJ 965), the case of Adam v. Collector of Customs, Karachi (PLD 1969 SC 446) and the case of Central Board of Revenue and another v. Khan Muhammad (PLD 1986 SC 194). In the above first case a learned Single Judge of the Lahore High Court has held that trial of an accused person for an offence under the Sea Customs Act which may result in conviction or acquittal is not a bar to the subsequent adjudication proceeding by the Customs Authorities under the aforesaid Act, whereas in the above second case, this Court has held that a verdict of confiscation of goods by Customs Authorities cannot be regarded as punishment by a Court after regular trial; and that proceedings of criminal prosecution for offence under the Customs Act in relation to the same goods are judicial proceedings; and that both are concurrent remedies each independent of the other. In the above third case this Court reiterated the above principle propounded in the above second case that criminal prosecution of a person who commits an offence under the Customs Act, 1969 in relation to the goods which are seized under the said Act by the Customs Authorities falls in a separate category from the proceeding for confiscation of the above goods taken by the Customs Authorities. The above cases indicate that proceedings before the Customs Authorities under the Customs Act, inter alia, for confiscation of the goods seized are treated as different and independent proceedings from criminal proceedings for trial of an offence under the said Act. In this regard, it may also be pointed out that it has been consistently held by the Superior Courts that a departmental proceeding against a civil servant for the misconduct involving commission of an offence is different from criminal proceedings before a criminal Court for the trial of the above offence; and that they are independent from each other and one does not exclude the other. Thus, the proceedings under the Scheme before Vice-Chairman of the Bureau are different from proceedings which may be initiated against Qaiser under the Act before a Commercial Court or before a Criminal Court of general jurisdiction. However, we may point out that under the Customs Act even for a departmental proceedings various forums and remedies have been provided which include the right of filing of an appeal and revision etc. But there is no right of appeal or revision provided under the Scheme. Against an order passed by the Vice-Chairman of the Bureau for the contravention of the terms of the Scheme. The only remedy available to an aggrieved party is to file a Constitutional petition on a ground which can be subject-matter of a Constitutional petition i,e. Generally the grounds relating to jurisdictional defects.... This remedy cannot be equated with a right of First Appeal in which a finding of fact can also be challenged as a matter of right. This aspect we intend to deal in detail hereinafter at an appropriate stage. 7. As regards the merits of the case, it may be advantageous to reproduce the following extract from the parawise comments filed by the Bureau in response to Qaiser's above first Constitutional Petition which described the procedure of acquiring quota: "Textile quota could be acquired through--(1) performance of preceding year; (ii) auction notified through Public Notice; (iii) transfer. Quota acquired by any of the above processes is recorded by the respective Associations in the Pass Book of respective exporters, which is in turn authenticated by respondent No, 1. Against holding of quota shipment Visas to that extent are obtained by the quota holders from respondent No, 1 through the respective Association, the details of which are recorded in his Category Pass Book like a Bank Account. Likewise, transfer-in and transfer-out through transfer deeds duly signed by the transferor and the transferee containing signatures verified by their banks are forwarded by
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the concerned Associations to respondent No, 1 for authentication and these are recorded in the Pass Book." A perusal of the above-quoted extract from the Bureau's comments indicates that there are three modes of acquiring of a quota entitling an exporter to export textile items, namely, on the basis of exportersperformance of the preceding year, (2) through purchase in an auction held by the Bureau and (3) purchase from the other exporteRs, It is also evident that every exporter has a Pass Book in which respective Association records the quotas acquired by him through above one or more modes. The above entry recorded by an Association is to be authenticated by the Bureau. It is also apparent that the shipment Visas are obtained by the Association concerned on behalf of an exporter from the Bureau for shipment. Transfer of quotas is made through transfer deeds duly signed by the transferor and transferee and authenticated by the Banks. The above transfers are also to be recorded by the Association concerned in the Pass Book of the exporter concerned and the same is to be authenticated by the Bureau. 8. During the hearing of the above proceedings before the Vice-Chairman of the Bureau Qaiser was shown the photostat copies of original five Visas which were issued to five different firms and of the forged five Visas used by him for exporting his five consignments. A comparative statement of the fake and genuine Visas bearing same number has been given by the Vice-Chairman in his impugned order. It may be advantageous to reproduce the same which reads as follows: COMPARATIVE STATEMENT SHOWING FAKE AND GENUINE VISAS OF SAME NUMBER Fake Visas presented at U.S. Customs: Name of Exporter Visa No, Cat No,QuantityValue (US$) M/s. Ghurba Textiles 9PK009437 338 1002 Doz14,529. " 9PK010692 338 738 " 10,701. " 9PK009652 339 902 " 28,413. " 9PK009396 339 301 8,729. " 9PK009398 339 600 17,400. Genuine Visas issued by E.P.B. Name of Exporter. Visa No, Cat No,Quantity Value M/s. Dadabhoy Silk Mills (P) Ltd. 9PK009437 339 983 Doz 36,823.10 M/s. Sajid Textile Indus. (Pvt.) Ltd. 9PK010692 313/226 71,071" 19,830. M/s. Afroze Textile Ind. (P) Ltd. 9PK009652 239 1429Kgs 8,330.77 M/s. Shamsi Indus. (P) Ltd. OPK009396363 77940Kgs67,911.82 M/s. Sally Textile Mills Ltd. 9PK009398 607 100245SME40,700 The above table is based on the documents furnished by the Customs Department of U.SA. To the Government of Pakistan pursuant to its complaint lodged with the Government of Pakistan that more than allocated quota for export had been utilised by Pakistan. The Vice-Chairman after hearing the parties for the following reasons concluded that the above five Visas used by Qaiser were forged: "Firstly, there are no entries in his export quota pass book which indicate that he had acquired this additional quota from some other exporter, secondly,, the name of the transferring quota exporter has not been disclosed, thirdly, the transaction has not been routed through the textile associations concerned and, fourthly, the export quota pass book was never presented to the Export Promotion Bureau for the issuance of an export Visa. Instead a forged visa was used to get the goods cleared into the United States. Forgen of an official document of the Government of Pakistan is an extremely serious matter especially in view of the fact that such forgeries have an
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adverse effect on the country's reputation, standing and prestige abroad. In addition there is the fact that the exporter had illegally benefited at the expense of other genuine exporters since the United States Government has deducted Pakistan's Export Entitlement for the subsequent year." 9. The High Court in the impugned judgment has set aside the above finding as the learned Judges of the Division Bench were of the view that none of the above-quoted reasons was sustainable in law. At this juncture we may point out that the High Court was not hearing a regular appeal against the impugned order of the Vice-Chairman of the Bureau but was dealing with a Constitutional petition. It is well-settled proposition of law that Constitutional jurisdiction is not designed and intended to be used as a substitute for a regular appeal or to be equated with a regular appeal. In a Constitutional petition the High Court cannot interfere with a finding of fact merely on the ground that the reasons which found favour with the Authority whose order is under scrutiny were not such which would have been accepted by the High Court. The Constitutional jurisdiction can be invoked to rectify jurisdictional defects. It is to be pressed into service against an order which is without jurisdiction or tainted with malice or is violative of a provision of the Constitution/Law and not to correct a finding of fact. However, even in Constitutional jurisdiction the High Court may interfere with a finding of fact, if it is founded on no evidence or is contrary to the evidence. Applying the above principle to the present case, we find that none of the above-quoted reasons recorded by the Vice-Chairman of the Bureau could be said to be unfounded. It is an admitted position that none of the five consignments against which unauthorised export Visas were used reflected in Qaiser's Pass Book. It also seems to be true that in the first reply to the show-cause notice dated 19- 1-1991 he did not disclose the name of the transferring quota exporter nor he was able to bring anything on record to indicate that the above transactions were routed through the Associations concerned nor he could demonstrate that the Export Quota Pass Book was presented to the Export Promotion Bureau for obtaining above five Visas. We failed to understand as to how the learned Judges concluded that the finding based on the above reasons is not sustainable. We may point out that in the proceedings before the…
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