2025 PLP 789 (PTD)

Through this Intra Court Appeal filed under Section 3 of the Law Reforms Ordinance, 1972 (the "Ordinance"), the Appellant has challenged the validity of impugned order dated 10.11.2020 (the "impugned order") passed in Writ Petition No.2132 of 2014 by the learned Single Judge in Chamber whereby the constitutional petition filed by the Appellant was disposed of with following observations:-- "On Court's query, whether claim of petitioner under SRO 575 can be considered and decided by the Collector of Customs (respondents Nos.4 and 5) before charging the proposed tax, through an order in writing. He undertakes, on behalf of respondents Nos.4 and 5 that petitioner shall be provided a fair opportunity of being heard and in case the issue is decided against the petitioner, the same shall be done through an order in writing. A fair opportunity of assailing the adverse order, under the law shall be provided before taking any coercive measures. Order accordingly. Needless to say that bank guarantees submitted on this Court's direction shall be released if decision is passed in favour of the petitioner. In case the decision is against the petitioner the bank guarantee shall not be called unless the petitioner avails an appropriate remedy under the law"

2. Learned counsel for the Appellant argued that learned Signel Judge in Chamber has failed to decide the issue properly and wrongly sent the matter to the Respondent No.4 who has no jurisdiction to decide it.

3. Today learned counsel for the Respondent Nos. 2 to 5 are not present but it was argued by them time and again that this appeal is not maintainable as the directions issued by learned Single Judge in Chamber has been complied with and the Appellant had availed remedy provided under Section 194 of the Customs Act, 1969 (the "Act").

4. We have heard the arguments advanced by the learned counsel for the parties and perused the record.

5. Before proceeding further, it would be advantageous to add that the matter was heard by this Court on 05.12.2022, 07.12.2022, 12.12.2022, 13.12.2022, 15.12.2022, 02.09.2024 and finally on 20.01.2025 whereby the Court made an effort to resolve the issue through mode of mediation upon which learned counsel for the Respondents Nos.4 and 5 sought time to obtain instructions and way forward for amicable resolution of the matter. However, neither they put their appearance today nor any instructions have been communicated to this Court. Therefore, this appeal is being decided as per available record. Pertinently, the Appellant in writ petition challenged the vires of Section 31(A) of the "Act" and Section 6(1) and (1)(A) of the Sales Tax Act, 1990 (the "Act 1990") but it evinces from the "impugned order" that learned Single Judge in Chamber instead of deciding the vires under challenge, referred the matter to the Respondent Nos.4 and 5/Collector of Customs who have no jurisdiction to interfere with vires of law. Reliance is placed on "Abdul Majeed Khan through L.Rs. and others v. Ms. Maheen Begum and others" (2014 SCMR 1524) wherein the Supreme Court has held that "It is also a settled principle that where any orders or judgments passed by any Court or authority who has no jurisdiction or are barred to exercise such jurisdiction, such orders or judgments are deemed to have been passed illegally and in such circumstances the High Courts are justified in exercising its constitutional jurisdiction to rectify the same, thus, in the instant case the High Court has rightly exercised its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973". Reliance is also placed on "Muhammad Ayub and another v. The Member (Judicial-III), BOR, Punjab, Lahore and others" (2021 MLD 2110) wherein the Divion Bench of this Court, while relying on the judgment of Supreme Court of Pakistan, has held as under:-- "

17. We also reached unimpeachable conclusion that the Assistant Commissioner/Collector vide order dated 30.8.1992 allotted the resumed/surrendered land to respondents Nos.5 to 7 without considering the relevant law which is available in the form of Notification dated 3.9.1979 ibid and consulting the revenue record rather it was passed merely on the non-verified report of the concerned Patwari being non-speaking order same is liable to be set aside. It is a principle of law that when the basic order is set aside being declared null and void, all the superstructure shall also automatically fall down. In this regard the Hon'ble Supreme Court of Pakistan in a case titled PESCO, WAPDA House through Chief Executive v. Ishfaq Khan and others (2021 SCMR 637) held as under:- "There can be no doubt that if an order is void, without jurisdiction, ultra vires and passed in disregard of the law, any superstructure raised over it would automatically fall to the ground and it cannot sustain in the eyes of law."

6. Adverting to the issue with regard to vires of the "Act" and the "Act 1990", we would refer to the guidelines and principles laid down by the Supreme Court of Pakistan in the case of "Lahore Development Authority through DG and others v. Ms. Imrana Tiwana and others" (2015 SCMR 1739) wherein it has been held as under: "That power to strike down or declare a legislative enactment void, however, has to be exercised with a great deal of care and caution. The Courts are one out of the three coordinate institutions of the State and can only perform this solemn obligation in the exercise of their duty to uphold the Constitution. This power is exercised not because the judiciary is an institution superior to the legislature or the executive but because it is bound by its oath to uphold, preserve and protect the constitution. It must enforce the Constitution as the Supreme Law but this duty must be performed with due care and caution and only when there is no other alternative. As per the dictum laid down by the worthy apex Court in the judgment (supra), the following rules are sine qua non to be applied in discharging this solemn duty to declare laws unconstitutional:- i) There is a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute is placed next to the Constitution and no way can be found in reconciling the two. ii) Where more than one interpretation is possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favours validity; iii) A statute must never be declared unconstitutional unless its invalidity is beyond reasonable doubt. A reasonable doubt must be resolved in favour of the statute being valid; iv) If a case can be decided on other or narrower grounds, the Court will abstain from deciding the constitutional question; v) The Court will not decide a larger constitutional question than is necessary for the determination of the case; vi) The Court will not declare a statute unconstitutional on the ground that it violates the spirit of the Constitution unless it also violates the letter of the Constitution; vii) The Court is not concerned with the wisdom or prudence of the legislation but only with its constitutionality; viii) The Court will not strike down statutes on principles of republican or democratic government unless those principles are placed beyond legislative encroachment by the Constitution; ix) Mala fides will not be attributed to the legislature.

7. The above referred principles have repeatedly been articulated by the Hon'ble Supreme Court in cases of "Dr. Mobashir Hassan and others v. Federation of Pakistan and others" (PLD 2010 Supreme Court 265), "Federation of Pakistan through Secretary, Ministry of Finance and others v. Haji Muhammad Sadiq and others" (PLD 2007 Supreme Court 133), "Watan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others" (PLD 2006 Supreme Court 697), "Pakistan Lawyers Forum and others v. Federation of Pakistan and others" (PLD 2005 Supreme Court 719), "Yousaf Ali v. Muhammad Aslam Zia and 2 others" (PLD 1958 Supreme Court (Pak.) 104), "Engineer Iqbal Zafar Jhagra and another v. Federation of Pakistan and others" (2013 SCMR 1337) and "Messrs Master Foam (Pvt.) Ltd. and 7 others v. Government of Pakistan through Secretary, Ministry of Finance and others" (2005 PTD 1537).

8. In view of the dictums laid down in aforesaid judgments, we disagree with the findings of the learned Single Judge in Chamber who, instead of deciding challenged vires, referred the matter to the Respondents Nos.4 and 5, who have no jurisdiction or authority to interpret the vires of any law that too is the core function of the higher Courts. Hence, the Appeal in hand is hereby accepted, the "impugned order" is set aside. Consequently, Writ Petition No.2132 of 2014 shall deemed to be pending before the learned Single Judge which shall be decided afresh as per law. It goes without saying that in the light of judgments referred to above, consequential orders (if any) passed in compliance with the "impugned order" shall have no legal effect. MQ/A-23/L Appeal allowed.