Law: Foreign Exchange Regulation Act, 1947

Section: 23C(4)

Foreign Exchange Regulation Act (VII of 1947)---

----S. 23C(4)---Adjudication Proceedings and Appeal Rules, 1998, R. 8---Constitution of Pakistan, Arts. 4, 10-A & 199---Order of penalty imposed by the Adjudicating Officer of State Bank of Pakistan, assailing of---Appeal before the Foreign Exchange Regulation Appellate Board, admitting of---Deposit of surety of the equivalent amount of the penalty by the appellant---Pre-condition, vires of---Right to fair trial---Due process---Scope---Appellant invoked constitutional jurisdiction of the High Court as the Presiding Officer of the Appellate Board, while relying upon S. 23C (4) of the Foreign Exchange Regulation Act, 1947 ("the Act, 1947"), had required the petitioner/ appellant to deposit before the Appellate Board a surety equivalent to the amount of penalty imposed upon him holding the same as a sine qua non for the appeal to be entertained and decided---Petitioner prayed for holding the provisions of S. 23C(4) to be unconstitutional on the ground that the same offended the rights of the petitioner/accused to be treated in accordance with law fairly and justly and his right to access of justice was also infringed---Validity---Provisions set out in S.23C(4) of the Act, 1947 provides that no appeal shall be admitted for hearing unless the appellant before the Appellate Board deposits in cash amount of penalty or at the discretion of the Appellate Board furnishes security equal in value to such amount of penalty, therefore, there is a complete prohibition enacted by subsection (4) of S. 23C of the Act 1947 to the hearing of the appeal unless the pre-condition is satisfied by an appellant, which is an infringement of the right which inheres in the petitioner to access to justice---One of the most important planks of the right of access to justice is the right to file at least one appeal against the order which affects the rights of a person---Right to file an appeal must be unimpeded and should not be circumscribed by a condition which surely takes away that right---Subsection (4) of S. 23C of the Act 1947 is one such provision which in fact is tantamount to taking away the right of the petitioner in not only filing of the appeal but also the hearing to be granted on that appeal irrespective of whether it fulfills the condition or not---It is one thing to say that petitioner may be burdened with a condition in case he seeks the suspension of the determination of a liability against him pending the appeal but another aspect entirely to provide in the law that the hearing of the appeal will be contingent upon the fulfillment of a condition precedent which if unfulfilled takes away the right of appeal---Distinction will have to be drawn between the two circumstances---Surely, under civil law a money decree can only be suspended if adequate security is provided by the judgment debtor and as determined by Appellate Court, but that mere fact does not mean that in case of failure to do so the appeal shall not be heard on its merits and that the appellant will be deprived of grant of hearing in the appeal itself unless he deposits the security equivalent to the amount of penalty---Subsection (4) of S. 23C of the Act 1947is a clog on the right of the petitioner to be dealt with in accordance with law---Petitioner has the right of filing at least one appeal and for that appeal to be heard without any pre-conditions attached to it, which is a fundamental right under the Constitution and springs from Art. 10A of the Constitution which provides, inter alia, that for the determination of civil rights and obligations, a person shall be entitled to due process, which also emanates from Art. 4 of the Constitution---Said right is absolute and cannot be taken away by laying down a condition which undermines that right---Rule 8 of the Adjudication Proceedings and Appeal Rules, 1998, makes the receipt of an appeal by the Appellate Board subject to compliance with subsection (4) of S. 23C of the Act, 1947, thus, said Rule too prohibits the Appellate Board from hearing the appeal unless the condition is satisfied---High Court set-aside the impugned orders, and struck down subsection (4) of S. 23C of the Foreign Exchange Regulation Act, 1947, as well as R. 8 of the Rules 1998 (to the extent said Rule makes the receipt of an appeal subject to the compliance with subsection (4) of S. 23C of the Act 1947) holding the same as unconstitutional and violative of the fundamental rights of the petitioner/appellant---Constitutional petition was allowed, in circumstances.

Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Messrs Chenab Cement Product (Pvt.) Ltd. and others v. Banking Tribunal Lahore and others PLD 1996 Lah. 672 and Messrs Eastern Rice Syncicate v. Central Board of Revenue, Government of Pakistan and others PLD 1959 SC (Pak.) 364 ref.