1999 PLP 607 (CLC)

(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not require him to do."

55. According to Salahuddin, 1. in Manzoor Elahi's case at page 101;

Pakistan is based on the rule of law, which is embodied in Article 4 of the Constitution. The same position is reflected in some of the Fundamental Rights enshrined in the Constitution. The Constitution is framed to be followed. It creates no right and imposes no duty in vain. Article 5 of the Constitution specifically provides that obedience to the Constitution and law is the basic obligation of every citizen wherever he may be and of every other person for the time being within Pakistan. The commitment is clear and unambiguous, and nobody can get away from or be relieved of this obligation under any circumstance

61. The present case is placed at a better footing. The so‑called executive notice in the form of notifications had been published in this case on a date when no order under Article 233(2) was in the field. As discussed above, there was not law in operation authorising the respondents to have issued those notifications either. The law under which those two notifications were issued is admittedly inconsistent with the Fundamental Right No. 17 and was void and so unenforceable. It, therefore, was no available for any executive action in the light of the discussion already made. It was never revived so as to be operative once again on the issuance of the Proclamation Emergency. The two notifications, therefore, could be scrutnized by the High Court and we respectfully agree with the learned Single Judge that they were issued without lawful authority and of no legal effect."

16. In this survey we reach, Inamur Rehman's case 1992 SCMR

563. In this case section 6‑A as amended by Foreign Exchange (Prevention of Payments) (Amendment) Act (VI of 1974) was considered on touchstone of above‑noted principles. As the relevant time, country was under Martial Law. The Chief Martial Law Administrator promulgated the Foreign Exchange Repatriation Regulation, 1972 (M.L.R. 104). This happened on 13‑1‑1972. Under this dispensation, the petitioner/appellant declared and repatriated Foreign Exchange amounting to $ 1,70,000 through the Standard Bank Limited/respondent No.4 of which the appellant was the Managing Director at that time. Resultantly, Standard Bank, received an amount of Rs.20,90,486.77 as principal amount. In addition, Standard Bank received a further amount on behalf of Inamur Rehman appellant equivalent to Rs.19,55,157.49, as bonus amount. Later amount was transferred under instruction of the appellant by two separate entries. The principal amount was also withdrawn from the Standard Bank and transferred to National and Grindlays Bank. The appellant then drew some cheques on his bank but the same were not cashed on account of instructions of State Bank of Pakistan. Therefore, the President of Pakistan promulgated Foreign Exchange (Prevention of Payments) Ordinance (XXX of 1972), which empowers the State Bank to direct any authorised dealer in Foreign Exchange through whom any person had repatriated any foreign exchange under M.L.R. 104 to deposit with the State Bank the rupee equivalent of the amount so repatriated and any other amount payable on account of such repatriation. Resultantly, the Statg Bank asked Grindlays Bank on 28th August, 1972 to deposit the principal amount with the State Bank. On 25th September, 1972 Ordinance (XXX of 1972) was repealed and replaced by the Foreign Exchange (Prevention of Payments) Act (XXII of 1972) whereby State Bank was invested with powers to direct not only to an authorised dealer through whom such repatriated amount or any part thereof. Subsequently under Statute, namely, Foreign Exchange (Prevention of Payments) (Amendment) Ordinance, 1973 was promulgated on 10th October, 1973. This Act was later passed on 10th March, 1972 with retrospective effect. This was even not sufficient. The Foreign Exchange (Prevention of Payments) (Amendment) Act, 1974 was passed which contained the provision/validating the all directions and instructions issued by the State Bank of Pakistan. This happened on 25th September, 1972.

17. Feeling aggrieved, the appellant Inamur Rehman preferred a Writ Petition questioning the actions of State Bank of Pakistan. Meanwhile Act (XXII of 1972) was amended by Ordinance, 1972, so amended petition was filed. This petition was dismissed by a Division Bench of the High Court of Sindh. Against that decision, the appellant preferred Civil Petition No.8‑K of 1978 which was converted as appeal and allowed by the Supreme Court in the following terms:‑‑ "In view of the foregoing discussion, it is held that the impugned legislation being violative of Article 25 is void and unconstitutional. It may be clarified that as we have mainly dealt with section 2(2) for the purpose of testing the validity of the provisions, it does not mean that the provisions not expressly mentioned are free from illegality. Subsection (2) of section 2 is an integral part of the entire section 2 and, therefore, if that is struck down, the rest of the subsection (2) which are mainly ancillary cannot stand and operate independently. Similarly, sections 6 and 6‑A are. interconnected with action taken under section 2 and would similarly suffer from the same Constitutional infirmities." From the foregoing discussion the following propositions of law are clearly deducible:‑‑

(1) That this Court has power even during emergency, Articles 4 and 2A of the Constitution are in the field to determine vires of legislative measures/executive fiat of Federal Government/Provincial Government, and Statutory instrumentality of State Bank, on the touchstone of doctrine of equality before law and equality protection of law and conferment of naked unrestricted arbitrary powers on Government authorities or officials of Statutory instrumentalities of State Bank.

18. In order to weigh the merits of the contentions of the parties noted above, it is imperative to have a rapid survey of pertinent laws/namely Foreign Exchange Regulation Act (VII of 1947), the Protection of Economic Reforms Act (XII of 1992) and Foreign Exchange (Temporary Restrictions) Act, 1998 (Act No. IV of 1998). The first Act (VII of 1947) owes its origin to British C Masters. In 1939, the World War, in the shape of unprecedented human calamity, hit the universe. In order to conserve deposits of foreign exchange and restricted outflow, the Defence of India Rules were framed under the Defence of India Act, 1939. These Rules restricted the outflow of the foreign exchange. These rules were followed by Act, 1947 when Emergency came to an end on 30th September, 1946. With the advent of Pakistan this Act was continued and adopted. These, however, became operational when in year 1956 State Bank of Pakistan Act (Act XXXIII of 1956) was promulgated. Thus, our land, which had become independent/sovereign Islamic Republic on 14th August, 1947 had its own Bank designated as State Bank of Pakistan. The task of structuring monetary system was allocated to it. This Act has 27 sections out of which, for the present controversy three sections namely sections Nos.4, 5 and 9 are relevant. Before we proceed further, we are inclined to reproduce the statement of reasons and object of the aforesaid Act to understand its underlying objective. The same read as under:‑‑ "A system of exchange control was set up in India on the outbreak of war in September, 1939 for the purpose of conserving and directing to the best uses the limited supplies of foreign exchange available. The control was made effective to a series of rules under the Defence of India Act, 1939. These rules expired on 30th September, 1946, but have been retained in force for another six months under the Emergency Provisions (Continuance) Ordinance, 1946. The shortage of foreign exchange is likely to continue in view of the disruption of the internal economy of so many nations, and the interruption of established channels of trade. It is, therefore, necessary that the system of exchange control should be continued in the general interest of the country. Also, the adherence of the country in the International Monetary Fund required her to take certain measures to regulate transactions in foreign exchange in order to fulfil the obligations of membership. Legislation is, therefore, necessary to give Central Government powers to continue to control transactions in foreign exchange, securities and gold. The provisions of the Act have been drafted in such a manner that the degree of restriction on foreign exchange transactions can be relaxed or increased by executive orders, either generally or for particular foreign currencies in accordance with the need of the trade and finance or international agreements thus, ensuring that flight of capital or wild speculation which proved so injurious to foreign trade in the period between the two wars, can be immediately controlled.", (Gazette of India, 9th November, 1946, Part V). Manifestly, the basic object of this Act was to conserve foreign exchange deposits and to control deposits outflow. Section 4 placed restrictions on dealings of the foreign exchange. It enacted that except with the previous permission of S.B.P., no person resident in Pakistan other than an authorised dealer shall, outside Pakistan, buy, or borrow or sell or lend to, or exchange with any person not being an authorised dealer, any amount of foreign exchange. This section has four subsections which embody restrictive edicts. Its subsection (3) postulated that when any foreign exchange is acquired by any person other than an authorised dealer for any particular purpose, or where any person has been permitted conditionally to acquire foreign exchange, the said person shall have to use the foreign exchange so acquired for that purpose alone and not otherwise. If he fails to do so, the said person shall without delay sell the foreign exchange to an authorised dealer. Subsection (4) is also in the same vein. The reading of these Articles clearly demonstrate that Pakistan started its life with a mixed economy as opposed to free market and the Act placed restrictions on the outflow of foreign exchange. Naturally, under this Act, there were no mercantile transactions of foreign exchange in market. Mr. Minto was right to say that Pakistan had started its journey with a mixed economy and that was necessitated due to socio‑economic conditions of newly born State. It, therefore, follows that this Act of 1947 completely prohibited commercial operations of foreign exchange in what is now known to Kerb market. The objective of the Act, so, was to conserve the deposit of foreign exchange and prohibit its flight. Section 4 also provides restrictions on the aforesaid business activities. The important section, that matters in this litigation, is section

9. It reads as under:‑‑

"

9. Central Board of Directors.‑‑‑ (1) The general superintendence and direction of the affairs and business of the Bank shall be entrusted to the Central Board or Directors which may exercise all the powers and do all acts and things that may be exercised or done by the Bank and are not by this Act expressly directed or required to be done by the Bank in general meeting in annual general meeting. (2) The Central Board shall consist of‑‑ (a) the Governor, . (b) Secretary, Finance Division, Government of Pakistan; and (c) seven Directors, including one Director from each Province, to be nominated by the Federal Government ensuring representation to agriculture, banking and industrial sectors. (3) The Governor shall be the Chairman of the Central Board. (4) All decisions of the Central Board shall be taken by majority of members present and voting and in the event of equality of the votes, the Governor may exercise a casting vote." A plain look at this section will show that the Federal Government was empowered to issue a notification/commanding any person resident of Pakistan or who comes to Pakistan and who owns or holds foreign exchange as may be specified in notification, shall offer it to or cause it to be offered for sale to State Bank of Pakistan or such person as tray be specified in notification. This, however, was subject to a further condition that Federal Government will not purchase/acquire the said foreign exchange except on the market rate which was available at the time of its offer for sale. It will be very pertinent to note that on the strength of section 9, the appellants/petitioners contended, that the Stag: Bank of Pakistan was entitled to purchase, acquire foreign exchange/mostly dollars at market rate and Circular No.23 was repugnant to this statutory mandate. This Act was followed by Foreign Exchange Loans (Rate of Exchange) Order (3 of 1982). In this order, vide para. No.3, it was stated that notwithstanding anything contained in any other law, the judgment of any Court or, any agreement, contract or other instrument, the rate of exchange, for the purpose of conversion into Pak Currency for repayment, shall be the rate of exchange in force fixed by State Bank of Pakistan under section 23 of the State Bank of Pakistan Act, 1956. This was M.L.R.

102. This Act was repealed and replaced by Foreign Exchange (Prevention of Payments) Ordinance, 1972 (XXXIII of 1972). This did not end the matter. The mixed economy, as ordained in Act of 1947, was done away and free market was allowed in year 1992 when Act XII of 1992 was enforced. This Act actually laid the foundation of open market instead of restricted economy. This was radical legislative measure of considerable significance which altered the blue print of our economy. This was promulgated on 28th July, 1992. Statedly, this Act was passed on the initiative of International Organisations like the World Bank, I.M.F. and so on and so forth. Its section 4 permitted all citizens of Pakistan/residents or non‑residents and all other persons to bring, hold, sell, transfer and take out any foreign exchange within or out of Pakistan in any form. This section gave sovereign commitment that such citizens shall not be required to make a foreign currency declaration at any stage nor the source, of so brought foreign exchange, shall be called in question in any manner. Section 5 conferred immunities on foreign currency accounts so opened, held by residents, non‑residents and any other person in Pakistan. These accounts were made immune from any inquiry from Income‑tax Department or any other Taxation Authority with regard to source of financing of foreign currency accounts. The balance of these accounts and income derived therefrom was also exempted from wealth tax, income‑tax and compulsory deduction of Zakat. Under subsection (3) of section 5 of this Act, the Banks were required to maintain complete secrecy in respect of transactions in the foreign currency accounts. Subsection (4) of section 5 even restrained the State Bank or any other bank to impose any restrictions on inflow and outflow of foreign exchange and restrictions upon such movement were withdrawn forthwith. All those restrictions, which had been imposed by the Act of 1947 and various circulars of S.B.P. came to an end immediately. Sections 6, 7 and 8 also embodied the immunity/protection to the foreign currency accounts. Under section 10 of this Act, all the financial obligations incurred under any instrument or any financial or contractual commitment made by or on behalf of Government were protected and it was specified that this shall not be altered to disadvantage of the beneficiaries. Although, the Act XII of 1992 was very brief statute, yet it brought radical changes and opened our market to world with regard to inflow and outflow of foreign exchange. As a result of the above statutory incentives, which, in our view, were not congruent with the fundamental conditions of our developing country. Statedly more than nine billion dollars allowed in State from 1992 till the proclamation of emergency i.e. 28th May, 1998. It is painful to state that remittances i.e. hard earned foreign exchange of expatriate was not more than one billion dollars at the relevant time. These figures speak for themselves and are convincing testimony of dollarisation. We also find it necessary to note that in 1992, the price. of dollar was equal to 23 rupees while in 1998 it was 46 rupees while in kerb market it was more than 62 rupees. We are inclined to agree with the Governor of State Bank of Pakistan, who stated that the holders of foreign currency accounts started to dollarise our economy at the costs of rupee; that they opened foreign currency accounts with authorised dealers/various banks, obtained facility on Rupee loan against the securities of those deposits, again purchased dollars from so acquired loan from open market or nearby Dubai and deposited it again in bank to secure more loan in Rupees. Manifestly, this vicious process led to unprecedented rush for dollars and corrosion of our currency. Even Governor State Bank brought this alarming trends in our economy and pernicious effect of Act XII 1992 to Government of Pakistan.

20. Having analysed Act VII of 1992 and Act XII of 1992, we now reach the assailed statute and Circular No.23, dated 2‑7‑1998. On 28th May, 1998, the nuclear device was detonated. It was a red‑letter day in our history. Our State joined the nuclear club and so our security was made impregnable. However, this was also black day in our economy. From the statement of State Bank, it is very clear that huge amounts were withdrawn from the foreign currency accounts on 11‑5‑1998, 14‑5‑1998 and 28th May, 1998. This statement shall form the part of our order Appendix A. Consciously, we did not enquire about the names of account‑holders who were involved in that nefarious unpatriotic activities. We did not undertake that exercise by following rule of judicial restraint. This outflow of foreign currency, at that occasion, led to promulgation of Ordinance VII of 1998. Its section 3 reads as under:‑‑

"

2. Notwithstanding anything contained in the Protection of Economic Reforms Act, 1992 (XII of 1992) but subject to section 3 it is hereby provided that during the period in which a Proclamation of Emergency under Article 232 of the Constitution of the Islamic Republic of Pakistan is in force, the various protections contained in the said Act, or in any other law for the time being in force, or in any agreement or contract, for or in relation to foreign exchange, or the right to bring, hold, sell, withdraw, transfer, pay or take out foreign exchange, shall remain suspended. (1) The Federal Government may by rules make provision for regulating dealings and payments in foreign exchange and such rules may, without prejudice to the generality of the foregoing, empower the State Bank of Pakistan to grant permissions to make or receive payments in foreign exchange, or to permit the conversion of foreign exchange into rupees, either on a case to case basis or on the basis of a classification of various types and categories. (2) Pending the framing of rules under subsection (1) withdrawals' remittances or payments in foreign exchange shall be made with the prior permission of the State Bank of Pakistan." Subsequently, a draft bill, as recommended by the Standing Committee was introduced and was passed by the Majlis‑e‑Shoora on 26th September, 1998. The most significant feature of the draft bill was/is that its section 2 was couched mathematically in the same language of section 2 of the Ordinance. However, the Act, that was passed by Majlis‑e‑Shoora after parliamentary deliberations did not retain that language and eliminated any reference to Emergency Proclamation, dated 28th May, 1998. The Act, so passed by the Majlis‑e Shoora, comprises of five sections. The first section relates to title and commencement. It says that it shall be deemed to have come into force on 28th day of May, 1998. Clearly, the Act was made retroactive with the above specified date. Section 2 is the most crucial and important provision. It suspended the rights of Foreign Currency Accounts‑holders to hold, sell, withdraw, transfer, pay, take out the foreign exchange held by any such person on 28th May, 1998 without the permission of State Bank. However, State Bank was/is empowered to allow/permit any one of F.C.A. holders to hold sell, withdraw, transfer, pay or take out foreign exchange from his account. This section postulates that the right shall remain suspended notwithstanding that provisions of (Act XII of 1992). The same section says that there shall be no legal restraint on any person converting his foreign exchange as held above, into rupees on officially notified rate of exchange, the next section 3 reassures that protections/immunities/ conferred under Economic Reforms Act, 1992 shall remain unaffected and it further invest power on the Federal Government in following terms: "(1) Subject to the provisions of this Act all the protections and immunities conferred in terms of the Protection of Economic Reforms Act, 1992 (XII of 1992) shall remain unaffected. 2. (a) Make provisions for the grant of further concessions for, or in relation to amounts converted from the foreign exchange referred to in section 2 held as on the specified date into rupees, or assets acquired therefrom, and. (b) issue financial instruments including bonds of varying maturities against the aforesaid foreign exchange which shall carry with them not less than the same entitlements, protections and immunities as the foreign exchange held on the aforesaid date save and except for the rights to immediate repayment in foreign exchange." Section 4 authorised the Government to make rules which empowers the State Bank to‑‑ (a) pass general orders suspending the right of persons to repayment except in rupees in relation to the foreign exchange referred to. in section 2 as on the specified date; (b) make provision for the payment of profit to persons holding foreign exchange referred to in section 2 as on the specified date in foreign exchange or in rupees; and (c) classify citizen of Pakistan on the basis of their status being resident or non‑resident of Pakistan or other, persons on the basis of residence or nationality or otherwise for the purpose aforesaid. Subsection (2) of section 4 gives powers to State Bank to permit, withdraw, remittance or payment of foreign exchange. Section 5 is repealing and saving provisions. On the strength of section 2 (ibid), it was contended on behalf of bank that right of F.C.A.‑holders ceased to exist and‑so the collateral offered by them lost their efficacy; that the bank was, so, fully competent to issue Circular No.23 under section 25 of State Bank Act, 1956. The case of other side/F.C.A. holders was/is that section 2 of the Act confers nakedly arbitrary power on the bank to permit any F.C.A.‑holders to hold, withdraw, and send his foreign exchange outside, that this power was clearly whimsical and furthermore the banks were directed to liquidate the foreign deposits against their loans and demand for fresh security by a particular date. According to F.C.A.‑holders, this was totally discriminatory with a confiscatory purpose. It was further stated by them that this restriction was not even applied to the new foreign currency accounts to be opened by any person.

21. Before we proceed further we find it necessary to examine inter‑action and inter‑relation amongst three statutes namely, Foreign Exchange Regulation Act (VII of 1947), Protection of Economic Reforms Act (XII of 1992) and Foreign Exchange (Temporary Restrictions) Act (IV of 1998). Clearly, the Act VII of 1947 provided/provides curbs on holding, purchase, sale of foreign exchange and it envisages/envisaged restricted economy as opposed to free economy on the theory of laissez fairee. Sections 3 and 4 of Act 1992 fully did away restrictive mechanism and opened our market to rules of free market. It is well‑settled rule of construction of statute that if two positive Acts are in field, that the latter will be considered as having repealed that provisions of earlier Act which is inconsistent. Craies says at page 365 that:‑‑ "Where two Acts are inconsistent or repugnant, the latter will be, read as having impliedly repealed the earlier. The Court leans against' implying a repeal, unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time; a repeal will not be implied. Special Acts are not repealed by general Acts unless there is some express reference to the previous legislation or unless there is a necessary inconsistency in the two Acts standing together. 'The latest expression of the Will of Parliament must always prevail. It does not personal, or private, or is penal or deals with civil rights only, and the rule is equally applicable to Orders in Council or Rules of Court if they have statutory force and are made under authority empowering the rule-makers to supersede prior enactments as to procedure.". He further says at page 367:‑‑

' "Where a new Act is couched in general affirmative language and the previous law can well‑stand with it, and if the language used in the latter Act is all in the affirmative, and therefore, the old and the new laws may stand together." He also says At page 368:‑‑ "In R. v. Judge of Essex County (1887) 18 QBD 704, 707), Esher M.R. laid it down as an ordinary rule of construction, that 'where the Legislature has passed a new statute giving a new remedy, that remedy alone can be followed'. But the phrase 'new' as applied to a statute is either needless or ambiguous. The old distinction between vetera and nova statuta is obs9lete; and 'new' is insensible unless applied to statutes creating rights or remedies unknown to the common law or to previous enactments. And the rule could perhaps be more accurately laid down, thus. In the case of an Act which creates a new jurisdiction, a new procedure, new forms, or new remedies, the procedure, forms, or remedies there prescribed, and no others, must be followed until altered by subsequent legislation." In the later treaties Crawford also deals with above rules in following terms:‑‑‑ "Repeals of this type are those which take place when a subsequently enacted law contains provisions contrary to those of an existing law but not provisions expressly repealing them. Such repeals have been divided into two general classes, those which occur where an Act is so consistent or irreconcilable with an existing prior set that only one of the two can remain in force, and those which occur when an Act covers the whole subject of an earlier Act and is intended to be a substitute therefor. As has been suggested, a repeal takes place under these circumstances, even though the new act contains no repealing clause, and in face of the fact that there may be Constitutional provision prohibiting the repeal of any law simply by reference to its title or section number. The validity of such a repeal is sustained on the ground that the last expression of the Legislative Will/should prevail. Technically, there is perhaps a violation of the Constitutional provision but from a practical stand‑point the circumvention can be easily justified." The reasons, for the rule that implied repeal will take place in the event of cleat inconsistency are well‑settled in a famous case of Crosby v. Patch (18 Cali 438):‑‑

"As laws are presumed to be passed with deliberation, and with full knowledge of all existing ones on the same subject, it is but reasonable to conclude that the Legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. Brown v. Lease, 5 Hill

226. It is a rule, says Sedwick that a General Statute without negative words will not repeal the particular provisions of a former one, unless, the two Acts are irreconcilably inconsistent. 'The 3 reason and philosophy of the rule', says the author, is, the when the mind of the Legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms, or treating the subject in a general manner, and not expressly contradicting the original Act, shall not be considered as intended to affect the more particular or positive previous provisions, unless it is absolute necessary to give the latter Act such a construction, in order that its words shall have any meaning at all. " The above‑noted rules of construction of statute, were followed by superior judiciary in sub‑continent in reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan PLD 1957 SC 219 Mst. Maryam v. Dost Muhammad PLD 1958 Lah. 229, Abu A'ala Maudoodi v. Government of West Pakistan PLD 1964 SC 673, Abdul Samad v. Iqbal Ahmad Khan PLD 1972 Lah. 41, Mehtab Khan v. Rehabilitation Authority PLD 1973 SC 451, Kohinoor Sugar Mills Ltd. v. Market Committee, Jauharabad PLD 1976 Lah. 1284, Allah Wasaya v. Federal Land Commission PLD 1979 SC 44, Dharanagadhra Chemical Works v. Charangadhra Municipality AIR 1983 SC 1729, Mehboob Ahmad v. First Additional District Judge, Karachi. PLD 1976 Kar. 978, Emperor v. Ranchbodial AIR 1948 Bom. 370, Western Coalfield Ltd. v. Special Area Development Authority AIR 1982 SC 697, JK Steel Limited v. Union of India AIR 1970 SC 1173, Dollani Ores v. State of Orissa AIR 1975 SC 17 and Mithan Lal v. State of Delhi AIR 1958 SC 682.

22. Applying the above doctrine of implied repeal to the facts and circumstances of the case in hand, it is quite clear that Act XII of 1992 and Act VII of 1947 relate to same subject; that Act of 1992 is a latter Act; that sections 4 and 5 of the Act of 1947 are inconsistent and in patent conflict with the parameters of sections 4 and 5 of the Act XII of 1992. Sections 4 and 5 of Protection of Economic Reforms Act of 1992 would completely do away with the curbs put down by sections 4 and 5 of the Act of 1947. This being the position, we have no difficulty in saying that on relevant date sections 4 and 5 of Act VII of 1947 had already stood repealed and were replaced by sections 4 and l of Act XII of 1992. As regards, Act IV of 1998, its section 4, according to Preamble of the Act, temporarily suspends the right of foreign currency account holders to bring, hold, sell, transfer, take out foreign exchange within or out of Pakistan in any form as held on 28th May, 1998. The expression "suspend", according to Black's Law Dictionary, means:‑‑ to interrupt; to cause to cease for a time; to postpone, to stay, delay, or hinder; to discontinue temporarily, but with an expectation or purpose of resumption. As a form of censure or discipline, to forbid a public officer, attorney, employee, or ecclesiastical person from performing his duties or exercising his functions for a more or less definite interval of time. To postpone, as a judicial sentence. To cause a temporary cessation, as of work by an employed; to cause a temporary cessation, as of work by an employed; to lay off." Clearly, this expression embraces two concepts: Firstly, discontinuance temporarily; secondly: expectation of resumption of what has ceased temporarily under law. Naturally, suspension connotes a temporary phase and does not pertain to state of permanency. Irrespective of the vires of this Act, it is, thus, clear that certain curbs were put on the rights of currency account to hold, sell any amount of their foreign exchange or send it to outside the country, under section 2 of the Act of 1998. This section even does not put any curb on the right of any person whether resident/non‑resident, Pakistanis or non‑Pakistanis to bring. foreign exchange in the country and open fresh account. This being the position, it is crystal clear that the rights of F.C.A.‑holders acquired under section 4 of Act XII of 1992 were put under a temporary eclipse. The contention of the learned counsel for State Bank that the conditions, set down in section 2 of the Act of 1998 may be taken to be permanent, did not impress us. The learned counsel for the Federation was correct to say that this was a temporary legislation with temporary curbs. However, it is very difficult to discover the true nature of this statutory instrument. No specific date has been given for the cessation of temporary curbs. Moreover, this Act has been de-linked from emergency proclamation. However, we are not inclined to examine the nature of the Act of 1998 as it is not much germane to the controversies in issue. In sum and substance, we find that Act IV of 1992 was in field with a temporary eclipse on the right of F.C.A.‑holders of deposits of 28th May, 1998 to operate their accounts. The theory of doctrine of their partial eclipse is thus, the anchor‑sheet of Act IV of 1998.

23. The stage is now set to examine the vires of Act IV of 1998. Whether this Act suffers from the doctrine of equality as guaranteed by Article 4 of the Constitution? Whether this Act confers naked arbitrary powers on State Bank and so it is bad in law. We will first examine the contention of equality clause. We have already analysed this Act. From a bare reading of its section 2, it is quite clear that it singles out only foreign currency accounts held by their owners on 28th May, 1998. The restriction, so imposed, is not even applicable to any foreign currency account to be opened by any person resident/non‑resident. Pakistani citizen or non‑Pakistani citizen on 28th May, 1998. Practically, speaking any person who held foreign currency on 28th May, 1998 was causally of this Act. It cannot be said that foreign currency accounts which were opened after target date, were dissimilar. No classification on the basis of 28th May, 1998 and 29th May, 1998 was male in impugned Act on the basis of any rational and intelligent differentia. The F.C.A. holders of 28th May, 1998, holder of such accounts after that date were treated quite differently and so the doctrine of equality protection clause was manifestly violated. We are, thus, very clear in our mind that section 2 of the Act is in patent violation of the doctrine of equality of law as enshrined in Article 4 read with Article 2A of the Constitution. There is yet another angle of section 2 of the Act. Section 2 (ibid) confers naked, unstructured arbitrary power on the functionaries of the State Bank to permit any one of the F.C.A.‑holders to hold, sell, withdraw, transfer, pay, or take out the foreign exchange held by any such person. It is true that section 4 (ibid) provides that Federal Government will frame rules. However, no rules had been framed at all. This was the case of State Bank. On this analysis, we have no hesitation in reaching the conclusion that section 2 of the Act IV of 1998 equips the functionaries of State Bank with manifestly arbitrary, unstructured power and is bad in law. Very clearly, the functionaries of State Bank has power to select any person from F.C.A.‑holders, permit him to hold, sell, withdraw, transfer, pay or take out foreign exchange held by any person in Pakistan. This is not warranted by any rule of fairness and structured discretion as noted and enunciated in para.(sic) of our judgment. Seen from these perspectives, we have no option but to hold that the section 2 of the Act IV of 1998 is repugnant to the doctrine of equality and the principle of fairness delegations as incorporated in Article 4 and Article 2A of the Constitution. As regards Circular No.23, it is sufficient to say that this, according to Bank is an executive directive issued under section 23 of the State Bank of Pakistan Act. Clearly, it is apparent from the foregoing discussion that section 9 of the Act IV of 1947, is in field. Although it is true that State Bank has a power to issue circular in pursuance of its trade/credit policy with the collateral, yet it cannot ask the authorised dealers/lending institutions to liquidate the liabilities of F.C.A.‑holders, who had obtained the facility of rupee loan and ask them to liquidate their liability by converting collateral at the fixed rate of 46 rupees qua dollar and asked for fresh securities in respect of the remaining amount. This directive has practically interfered with the terms of loan agreed between F. C. A.‑holders and the lenders. We do not find any provision of, law which can support this course. The conversion/liquidation of liability of F.C.A.‑holders who had obtained loan tantamounts to deprivation of their valuable property without payment of fair compensation according to section 9 of Act of 1947. Add to it, this circular, which is manifestly executive fiat cannot act retroactively. Contemporaneously, we find that all those circumstances, which we have pointed out earlier and which, according to our opinion, had vitiating effect on the vires of the Act IV of 1998, are applicable to Circular No.23. We accordingly hold that Circular No.23 suffers from the reasons already given above. Additionally it cannot act retrospectively and so cannot be sustained. For the aforesaid reasons, we have no option but to declare that the section 2 of the Act of 1998 and Circular No.23 are without jurisdiction, without any lawful authority and of no lawful consequences upon the rights of the petitioners/ appellants/as acquired under section 4 of the Economic Reforms Act (XII of 1992).

24. Now this brings us as to what relief the petitioners/appellants are entitled. This is not free from difficulties. The learned counsel for the bank as well as leaned Deputy Attorney‑General for the Federation took up unanimous stand that foreign currency deposits of F.C.A.‑holders had been utilised by successive Governments of Pakistan for the purposes of debit‑servicing and purchase of defence equipments and so on and so forth. Neither the Banks nor the Federal Government was so in position to repay these deposits to their owners, immediately. This stand was totally amazing. Substantially speaking this tantamounted to a plea of insolvency before Court of law. However, we do not share their perception. Our State is possessed of huge home as well as material resources and tan rise up to the occasion provided course of simplicity and austerity and is followed. No doubt, we are under vicious debit trap. The economy indicators have comprehensively painted the annual report of 1997‑98 by Governor State Bank of Pakistan under section 40(2) of the State Bank of Pakistan Act, 1995. We are inclined to reproduce extract from this report. The relevant passages, according to our views are as follows:‑‑ "As of 30th of June, 1998, total national debt stood at Rs.2,518.3 billion compared with Rs.2,169.2 billion as of 30th June, 1997. As a ratio of G.D.P., the national debit also rose to 91.2 per cent. of G.D.P. at the end of June, 1998 as compared to 90.2 per cent. a year earlier. Of the total outstanding national debit, domestic debt stood at Rs.1,151.4 billion and external debt at Rs.1,366.9 billion ($ 29.7 billion as on 30th June, 1998. The domestic debt has been by 10.5 per cent. while external debit by 21.3 per cent. (.66 per cent. in dollar terms) over last year. Consequently, the share of external debt has gone up to 54.3 per cent. in ,total debit outstanding.' The domestic debt as a ratio to G.D.P. declined from 43.3 per cent. in the preceding year to 41.7 per cent. at the end of June, 1998 while the external debit has increased to 49.5 per cent. from 46.9 per cent. in last year. The larger growth of external debt during 1997‑98 could be attributed to increase in foreign and, lower amortization and downward adjustment of Pak rupee against US dollar. The total debt servicing stood at increase of 7.5 per cent. Total debit servicing accounted for 61.5 per cent. of revenue receipts and 46.4 per cent. of total expenditure." Financing of persistent lie current account deficit through external borrowings over the years, an the face of low reserves, resulted in heavy accumulation of external debit. Pakistan total external debit stood at $ 29.7 billion at the end of June, 1998, indicating rise of 1/3 1.9 billion or 6.6?" Pakistan debit servicing liability has increased in recent years a combined result of large accumulation of external debt, decline in the share of concessional loans and increasing resources to short/medium term borrowings from the international market. That service payments (principal repayments and interest payment) at $ 4.7 billion during 1997‑98 stood lower by 6.8 per cent. as compared to 1/3 5.1 billion which had registered a sharp rise of 16.9 per cent. in the previous years. The decline was due to lower repayment of principal, particularly of short/medium terms debit which declined by 23.1 per cent. repayments of principal which represented 76.5 per cent of the total debt service payments, decline by 10.2 per cent. to dollar 3.6 billion during 1997‑98 in contrast to 'US $ 4 billion which registered an increase of 23.8 per cent. over 1995‑

96. Interest payments borrowers rose by 6.5 per cent. to 1/3 1.1 billion and constituted 23.5 per cent. of the total debit service payments of external debt. Ratios of debt service, payments to export earnings and foreign exchange earnings declined from 62.8 per cent. and 39.3 per cent. respectively in 1996‑97 to 56.3 per cent. and 35.5 per cent. in 1997‑

98. Major indicators of external debt during 1993‑94 through 1997‑98 are given in Table VII

3. Seen in the context of standard debt ratios, Pakistan has become highly indebted developing country. Pakistan's ratio of external debt to export of goods and services (including workers' remittances) at 256.1 per cent. during 1997‑98 was much higher than 135.8 per cent. of developing countries and 186.7 per cent. of South Asia, as a group. Similarly debit service ratio at the level of 14.8 per cent. was also higher when compared with 17.0 % of developing countries and 21.5 per cent. of South Asia. Pakistan's external debit and debt service ratio also exceeded the prescribed debit sustainability normal limits of 225.250 per cent. and 20.25 per cent. respectively. A comparison of nominal interest rate on outstanding external debt and growth rate of exports of goods and services, which measures debit servicing sustainability, reveals that average annual interest rate was much higher than growth rate of exports of goods and during this period stood at 4.1 per cent. as against negative growth of 0.4 per cent. recorded in export of goods services. The break‑up of interest rate on external debit reveals that annual interest rate on short/medium term debt averaged 5.6 per cent. and 3.6 per cent. on long terms debt. Growth in Foreign Currency Deposits (F.C.Ds.) Foreign currency deposits rose at a rapid rate after their introduction, to stand at 1 /3 1 billion in 1986. In 1991, when residents were allowed to participate in the scheme, the total outstanding deposits came to $ 2.6 billion. In the five years since the liberalisation in 1991, foreign currency deposits have risen at a rate of 26 per cent per year to dollar 8.4 billion in July, 1996. Growth in resident accounts accounted for two‑thirds of the increase, while non‑bank financial institutions, which were allowed to accept such deposits starting in 1992, accounted for 20 per cent. of the increase. The amounts held by non‑residents outside of those held with the non‑bank financial institution rose only slightly over this period. " Currency Composition of Foreign Currency Deposits. Dollar accounts have by far been the most popular, never falling below 75 per cent. of the total and standing at 87 per cent. in June, 1996. Deposits in pounds sterling have been the next most popular accounting for 7 to 9 per cent. of the total in recent year. These have been followed by markets, currently at 4.56 per cent. of the total and yet, currently at 2.72 per cent. (12) The liberalization of the foreign exchange markets in 1991, especially the introduction of foreign currency accounts for residents, has been a key factor behind dollarization, which had started to become a matter of serious concern by 1995 resident holdings of foreign currency accounts rose from a negligible amount in 1991 to over $ 4.3 billion or over 17 per cent. of money supply." (26) The foreign currency deposits also hamper the conduct of a flexible exchange rate policy. Although there are many determinants of the movement of foreign currency deposits, exchange rate expectation play an important role. The large build up of F.C.Ds. can be a problem in terms of self‑fulfilling expectations and the creation of an artificial foreign exchange shortage. There are times when even though the fundamental determinants of exchange rate are pointing to an equilibrium rate but the private sector may have concerns for various non‑economic reasons that the domestic currency might be depreciated. Alternatively, sometimes after a realignment of the exchange rate and even though it has been brought to the equilibrium level, the private sector forms its expectations about further depreciations not on the basis of the equilibrium rate but the most recent past behaviour of the exchange rate. It has happened several times in the free market rate has instead of narrowing actually widened. Since F.C.Ds. have made it easier to move from domestic currency denominated assets into foreign assets, the substitution of foreign cash for domestic cash during the time of perceived shortages in the foreign exchange market can worsen the problem of exchange rate management. (27) The sharp increase in F.C.Ds. can have potentially destabilizing effects on domestic borrowing costs, international reserves and exchange rate management. A shift from F.C.Ds. into foreign cash or capital outflow creates a shortage of liquidity in the domestic banking system and thus, raises the cost of borrowing in the economy. This shift also creates foreign exchange market measures, and leads either to a draw down of international reserves or rupee depreciation. Since F.C.Ds. make it easier to transfer funds abroad, or to substitute foreign cash for saving held in the banking system, in the event of a shortage of foreign exchange, the difficulties are compounded because of the very time when the country wishes to preserve its foreign exchange resources, there are leakages of foreign exchange from the banking system. When there is a balance of payments crisis, owners of resident and non resident foreign currency, accounts become concerned about country risk, then they would convert their holdings into foreign cash or shift them abroad, which would accelerate the depletion of international reserves. (28) As is the case with other forms of short‑term capital inflows, foreign currency deposits held by non‑residents not only caused the stock of foreign debt to increase relative to C.D.P. but also create additional difficulties in terms of the need to roll over maturing deposits on a continuing basis. The average interest rate on foreign currency deposits is more than twice that on Pakistan's medium and huge term external debt. With the volume of such debt being about double that of short terms deposits, debit servicing on foreign currency deposits is of the same magnitude as on medium and long terms foreign debt. Thus, the increase in foreign currency deposits may pose both the 'destabilizing' and a debit servicing burden for the country. Experience in many developing countries suggests an upper bound on the potential magnitude and sustainability of short term capital inflows. A key factor that influences the sustainability of those inflows in the degree to which external resources add to overall investments in the economy and whether the profitability of these investments is higher than the cost of external borrowing. Furthermore, the form of the capital inflow foreign direct investment, protfollio capital, a short term bank lending has a bearing on the sustainability of capital inflows. With regard to sustainability two issues need to be stressed about the rising levels of F.C.Ds. in Pakistan. First if would be a case of mismanagement of maturities if Pakistan has and continue to incur short term financial liabilities to finance long terms investments in physical capital. Second foreign capital inflows such as non‑resident F.C.Ds. can substitute for domestic savings and the date for Pakistan show that at least a part of the foreign physical investment." The evaluation of report has also suggested certain remedial measures to be taken by the Government of Pakistan in order to resurrect economy. We find these as of considerable .worth as they come from Bank of Government. We are unable to give any opinion with regard to these. Let the Parliament/Federal Government take all necessary steps to correct the fundamental of economy.

25. Needless to state that Pakistan was achieved by ceaseless efforts of Muslims of undivided India and at the loss of colossal Muslim lives and destruction of their properties. That country, though broken into two pieces, yet this part of that State/Pakistan is possessed‑of colossal human as well as material resources like agricultural land, plenty of irrigational water and mineral resources. It has all seasons suitable for productive activities. Briefly speaking it is a beautiful country with rich resources and is in position to pay not only holders of foreign currency accounts but also external lenders. We were informed, credible supportive documents, that almost 30 billion dollars were lying with the banks of so‑called civilised States. We are confident that Federal Government will take all possible measures to seek repatriation of that amount if so lying with the foreign banks and will make the names of holders of amount public. Be that as it may, the economic plight of the State was well‑responded by the petitioners/appellants. Mr. Slaman Akram Raja, Advocate, who represented (mostly the foreign currency accounts‑holders who had availed of facility of rupees loan collateral of F.C.Ds. stated that the petitioners/appellants were not in a hurry to withdraw their forax and put the country into an embarrassing condition. Mr. Javed Shaukat, Advocate, in highly patriotic spirit, suggested that the foreign currency deposits of holders of these accounts kept as fixed accounts and rules be framed permitting them to withdraw such amounts which were/are necessary for the payment of educational expenses of their issues outside the country and for medical care and so on so forth. This suggestion was put by him in Court as well as in his written note. None opposed it. We were/are impressed by the high sense of patriotism on the part of Mr. Shaukat Javed and other appellants/petitioners. At this juncture, we find it our duty to remind every one/may be in office or not, that our economy is in bad shape; that our only solution lies in the path of austerity and simplicity. At this occasion, we are reminded of late Muhammad Khan Junejo, the then Prime Minister of Pakistan who had decided to abandon big luxury cars and himself decided to travel in Toyota Corolla (1600 CC) car. Let the all who matter, resurrect that decision and follow that path in every walk of life. No doubt spectacle of Pajero, Land Cruisers, Mercedes and B.M.W. and huge cosmetics in departmental stores are not in line with indicators of our economy. At the same time we are clear in our mind that parameters of Act XII of 1992 are not conducive to our economy. Suffice it to note that dollar was equivalent to rupees twenty in year 1992 and now is equivalent to above fifty rupees in kerb market. This Act encouraged speculators, take black‑marketeers and tax evaders to purchase dollar from open market or from nearby free ports and this vicious mechanism started to dollarise our economy at the costs of our currency. This Act has actually introduced two economies in our State. One who is possessed of dollar and other who has rupees. Account‑holders of dollars/Sterling Pound enjoy immunities from payment of income‑tax, wealth tax even compulsory deduction of Zakat. This Act so creates/created a climate in which our own currency was humiliated and dollars were prided. This has caused collosal damage to our economic growth and living condition of our peoples. We should not close our eyes at these aspects of Act XII of 1992. The vires of Act XII of 1992 was not subject matter of instant litigation, so we are not in a position to dilate upon it more than what we have said.

26. It is well‑settled proposition that judiciary always acts within the sphere of powers completely enumerated in the Constitution. The task of judiciary is to interpret law; the Legislature makes the law; the task is given to executive administer laws as interpreted by judiciary. It is established that judiciary finds some omission or defect in law, it has a duty to point out them to Legislature so that this defect/omission can be removed by Parliament after deliberation. Our above findings are in line with the above settled role of judiciary.

27. In view of the afore‑noted discussion, we are not inclined to agree with the conclusions rendered by learned Single Judge in Writ Petition No. 14364 of 1998 by which he dismissed the said petition alongwith all connected writ petitions pertaining to validity of impugned Circular No.23, dated 2‑7‑1998. This happened by a consolidated judgment. The equality protection clause and principle of excessive delegation was not considered (with due respect) by our learned brother. The precedents from superior judiciary of India are on dissimilar facts and are not applicable to the points raised in the instant litigation.. We have already found that perception of State Bank and Federation, was very different. As regard the Act IV of 1998 and Circular No. 23, we have agreed with the perception of State Bank that neither Act IV of 1998 nor Circular No.23 was issued in the wake of Emergency Proclamation nor they had any nexus with it. These being our conclusions, we accordingly set aside the decision of learned Single Judge, dated 30‑7‑1998 rendered in Writ Petition No. 14364 of 1998 and all connected writ petitions.

28. As a result of our foregoing conclusions, the above‑noted causes/comprising 67 Intra‑Court Appeals and writ petitions noted n para. No.3 of this judgment, are bound to succeed. In the light of our conclusions and having regard to all the circumstances of litigation in hand, we hereby allow the afore‑noted I.C.As. and Constitutional petitions in following terms:‑‑ (1) Declaration is granted that section 2 of Foreign Exchange (Temporary Restrictions) Act (IV of 1998) is ultra vires of Article 4 and Article 2A of the Constitution being repugnant to equality protection‑clause as well as on account of conferment of naked, arbitrary, unstructured power on the functionaries of the State Bank. This section so is declared as of no lawful consequences. (2) Declaration is granted to the effect that Circular No.23 is confiscatory in nature and is violative of equality protection clause and that the same is so repugnant to Article 4 and Article 2A of the Constitution. The State Bank of Pakistan, however, will be well within its right to direct the lending institutions to call for fresh securities from borrowers if they find that the securities/collaterals of their foreign currency deposits as furnished by the petitioners/appellants are not satisfactory or contrary to its credit policy. (3) The Circular No.23 is, so, declared contrary to law to the extent of directing the lending institutions to liquidate the foreign currency deposits of borrowers/petitioners/appellants at the rate of 46 rupees for a dollar and then get fresh securities, if so needed. (4) Having regard to economic indicators as given in the report of State Bank and having regard to suggestion of Mr. Javed Shaukat/one of the petitioners; and having not been objected by any one of appellants/petitioners, we are pursuaded to direct State Bank to treat the foreign currency account held by petitioners on 28th May, 1998 under section 4 of Protection of Economic Reforms Act (XII of 1992) as fixed account for a period of 3 years and frame rules with regard to that type of fixed deposits/permitting account‑holders to withdraw any amount, so permitted, from these accounts to be utilized for their necessary expenses to be incurred by account‑holders on the education of their issues outside the country, on medical expenditures and so on and so forth. The State Bank shall frame rules in line with the policy of such fixed accounts within a period of three weeks commencing from this order so as to clear the mist of uncertainty. (5) We are also inclined to direct the Federal Government and to get the' Act XII of 1992 so amended by the Federal Legislature that it may eliminate the two classes of economy as permitted by it and subject foreign currency accounts to payment of income‑tax, wealth tax and compulsory deduction of Zakat and so as to eliminate the manipulative power of dollars/sterling pounds or any other foreign currency over rupee. All these causes are so allowed with the grant of the above reliefs. (Sd.) Ameer Alam Khan, Judge (Sd.) Mian Allah Nawaz, Judge (Sd.) Karamat Nazir Bhandari, Judge KARAMAT NAZIR BHANDARI, J.‑‑‑ I have the advantage of going through the very elaborate and lucid judgment prepared by my very learned brother Mian Allah Nawaz, J. I am in respectful agreement with the conclusions/ findings on the basic issues. However, and with utmost respect, I have reservations in respect of the directions to State Bank/Federal Government contained in paras. (4) and (v) at pages 82/83 of his Lordship's judgment. Also in view of importance of legal issues, I have considered it advisable to append my own note on all the issues.

2. Number of Constitutional petitions were filed for calling in question the validity of Circular No.23, dated 2nd of July, 1998, issued by the State Bank of Pakistan and addressed to all Banks/N.B.F.Is. Under the. Circular, Banks/ N.B.F.Is. were required to change the foreign currency collateral by 31st July, 1998 and further desist from accepting such deposits/certificates held on 28th May, 1998 as collateral for advancing rupee loans. While such petitions were being heard, number of other petitions were filed for calling in question the so called "freezing" of the Foreign Currency Accounts under Foreign Currency (Temporary Restrictions) Ordinance, 1998. A learned Single Judge of this Court vide judgment, dated 30‑7‑1998, dismissed the petitions directed against Circular No.23. Number of Intra‑Court Appeals were preferred against the dismissal of the petitions. Some of the petitions concerning Circular No.23 were also pending before another Single Bench when the judgment of dismissal, dated 30th July, 1998 was delivered. Such petitions were directed to be heard alongwith the Intra‑Court Appeals, since it was felt that this would be a more appropriate way of decision of petitions. Later on all the I.‑C.As. and Constitutional petitions were entrusted for disposal to a Full Bench. The cases were heard on number of occasions when the learned Senior Judge of the Full Bench excused himself on the ground of pre‑occupation with Ehtesab cases. This Full Bench was, therefore, constituted, which commenced hearing of all these cases w.e.f. 3rd of December, 1998, afresh.

3. The factual background may be noted before proceeding further. Until the enforcement of Protection of Economic Reforms Act, 1992 (XII of 1992), the holding and use of foreign currency/foreign exchange was regulated under the provisions of Foreign Exchange Regulation Act, 1947 (VII of 1947) enacted on 11‑3‑1947 and adopted in Pakistan. This Act will be referred to hereinafter as "Foreign Exchange Regulation Act". Under this Act inter alia, no citizen could hold any foreign currency/foreign exchange without the permission of the State Bank and holding of such currency was made a penal offence. With the enforcement of Protection of Economic Reforms Act, 1992, hereinafter referred to as "1992 Act" a complete departure from previous policy was made. Under 1992 Act, holding and selling of foreign currency/exchange was made permissible, the Authorized commercial banks were permitted to open foreign currency accounts and these accounts could be freely operated like other accounts in Pakistan Currency. In fact under 1992 Act certain incentives were advanced for opening and maintaining foreign currency deposits. This was doe to increase the flow of foreign currency into Pakistan. Incentives included exemption from payment of income‑tax, Zakat and absolute immunity from scrutiny of source of acquisition of the foreign currency. Under the directive of the State Bank, foreign currency deposits/accounts were accepted as collateral for advancing rupee loans. The uncontested claim of the appellants/petitioners challenging Circular No.23 is that under arrangements with their bankers, they had enjoyed rupee loans on the strength of the security of foreign currency deposits and that for all this period, they had absolutely no problem with their bankers. The loan agreements are being worked well and that maturity dates have not yet arrived.

4. This state of affairs prevailed until 28th of May, 1998 when the Foreign Currency (Temporary Restrictions) Ordinance,. 1998 (VII of 1998), hereinafter referred to as "the Ordinance" was promulgated. It may be noticed that in the afternoon of 28th of May, 1998, Pakistan exploded its Nuclear Bomb. By the evening the President had issued a Proclamation of Emergency under Article 232 of the Constitution. The Ordinance was issued in the wake of Emergency and it provided that during the period for which the Proclamation of Emergency remained in force and notwithstanding any thing contained in 1992 Act or any agreement or contract for or in relation to foreign exchange, the right to bring, hold, sell, withdraw, transfer, pay or take out foreign exchange shall remain suspended. Under section 3 of the Ordinance, the Federal Government was authorised to make rules for regulating and dealing and payments in foreign exchange. It was further provided that pending the framing of rules withdrawals etc., will be made with the prior permission of the State Bank of Pakistan. Later on, regular Act namely Foreign Exchange (Temporary Restrictions) Act, 1998 (IV of 1998) was passed by National Assembly as a Money Bill as certified by the Speaker of the Assembly. This Act repealed the Ordinance and gave permanence to the embargo placed upon holding etc., of the foreign exchange deposits as held on 28th of May, 1998. This Act hereinafter will be referred to as "1998 Act". Since it is the provisions of this Act, which are seriously challenged, the same will be noticed in extenso at the appropriate place. It may, however, be noted at this juncture that 1998 Act is making some departure from the provisions of the Ordinance inasmuch as while the provisions of the Ordinance were to remain in force during the subsistence of Proclamation of emergency, no such restriction is laid down in 1998 Act. It may further be noticed here that the Proclamation of Emergency has since been upheld as valid by the Supreme Court of Pakistan vide its short order, dated 28‑7‑1998, although the order of the President under clause (2) of Article 233 of the Constitution, dated 28‑5‑1998.and modified order, dated 13‑7‑1998, suspending the enforcement of fundamental rights has been declared as without lawful authority. Although the points of law have not been formally referred to this Bench for decision, for the sake of convenience I would formulate such questions as follows:‑‑ (i) Whether the provisions of section 2 of 1998 Act enabling 'Freezing' of the Foreign Currency Accounts is valid and it does not suffer from the vice of impermissible delegation of legislative authority? (ii) Whether the same is violative of principle of equal protection of law as enshrined in Article 4 of the Constitution? (iii) Whether Circular No.23 can validly and lawfully undo the contracts/ existing arrangements between the appellants/petitioners/foreign currency accounts‑holders and their bankers. In other words whether Circular No.23 can operate retrospectively so as to undo the existing contracts and, thus, take away vested rights? (iv) If Circular No.23 is valid, the direction that in the event the appellants/ petitioners failing to substitute the collateral, the deposits/collaterals be converted into Pak Rupees at the rate of Rs.46 US Dollar and utilised for clearing the rupee liability/loans obtained against the same, is lawful? (v) If direction noted in question No.IV (ibid) is valid, whether fixation of c6nversion rate of US Dollar at Rs.46 is valid? If not what is the legal rate? Apart from the above major questions there may be some subsidiary questions, which will be dealt with during the course of this judgment.

6. In support of the appeals, major arguments were addressed by Messrs Suleman Raja and Mr. Manzoor Ali Shah, Advocate. These two learned Advocates mostly attacked Circular No.23. Freezing of accounts/deposits was challenged by Messrs Asad Ullah Siddiqui and Malik Javid Shaukat, Advocates, who were incidentally themselves the petitioners in their respective Constitutional petitions. Mr. Abid Hassan Minto, Advocate defended the impugned Circular while Mr. Sher Zaman Khan, Deputy Attorney‑General presented the case of the Federal Government. It is relevant to state here that the Bench was informed that learned Attorney‑General himself would like to appear and assist the Court, if a convenient date was fixed the Bench did fix such a date but the learned Attorney‑General did not come to address the Court and the learned Deputy Attorney‑General proceeded to do so after having full authority from the learned Attorney‑General, as per his claim.

7. Mr. Asad Ullah Siddiqui, Advocate challenged the validity of section 2 of 1998, Act on the ground that this provision confers unguided power on the State Bank of Pakistan, which is not permissible. By relying on Kh. Muhammad Safdar, M.P.A., Lahore v. Province of West Pakistan through Secretary, Government of West Pakistan and others PLD 1964 Lah. 718, he asserted that this section confers unguided powers on the State Bank to permit or to withhold permission for withdrawal, which according to the learned counsel, cannot be done under the present Constitutional dispensation. In the reported case section 2 of the West Pakistan Use of Loudspeaker (Prohibition) Ordinance (XXXI of 1963) was held to be bad piece of law as it did not guide the Deputy Commissioner on the question of grant and withholding of the permission to use the loudspeaker. Mr. Abid Hassan Minto, Advocate while maintaining that he was mainly engaged to defend Circular No.23, rebutted this argument by asserting that the guidelines have already been provided in the Foreign Exchange Regulation Act, and therefore, no fresh guidance was required to be provided. In his submissions the State Bank was well‑aware of the problems and it knew when to grant permission or to withhold the same. He elaborated that section 2 of the 1998 Act read with provisions of Foreign Exchange Regulation Act makes complete law on the subject, and therefore, it cannot be said that it is a case of excessive delegation or impermissible delegation.

8. The provisions of 1998 Act, which consists of only 5 sections are reproduced below:‑‑ "(1) Short title, extent and commencement.‑‑‑ (i) This Act may be called the Foreign Exchange (Temporary Restrictions) Act, 1998. (ii) It extends to the whole of Pakistan. (iii) It shall be deemed to have come into force on the twenty‑eighth day of May, 1998. (2) Restriction on withdrawal of foreign exchange etc.‑‑‑ Notwithstanding anything contained in the Protection of Economic Reforms Act, 1992 (XII of 1992) or in any other law for the time being in force, or in any agreement or contract, it is hereby provided that the right to hold, sell, withdraw, transfer, pay or take out foreign exchange held by any person in Pakistan as on the twenty‑eighth day of May, 1998 (the 'specified date') without the prior permission of the State Bank of Pakistan shall remain suspended: Provided that there shall be no legal restriction on any person converting his foreign exchange held as above into rupees at the officially notified rate of exchange. Explanation.‑‑‑ For the purpose of this section 'foreign exchange' means foreign exchange held in a foreign currency account or in such other form as the Federal Government may specify. (3) Certain protection to remain unaffected.‑‑‑ (i) Subject to the provisions of this Act all the protections and immunities conferred in terms of the Protection of Economic Reforms Act, 1992 (XII of 1992) shall remain unaffected. (ii) The Federal Government may‑‑(a) make provision for the grant of further concessions for, or in relation to amounts converted from the foreign exchange referred to in section 2 held as on the specified date into rupees, or assets acquired therefrom; and (b) issue financial instruments including bonds of varying maturities against the aforesaid foreign exchange which shall carry with them not less than the same entitlements, protections and immunities, as the foreign exchange held on the aforesaid date save and except for the right to immediate repayment in foreign exchange. (4) Power to make rules.‑‑‑ (i) The Federal Government may by rules empowers the State Bank of Pakistan to‑‑ (a) pass general orders suspending the right of persons to repayment except in rupees in relation to the foreign exchange referred to in section 2 as ' on the specified date; (b) make provision for the payment of profit to persons holding foreign exchange referred to in section 2 as on the specified date in foreign exchange or in rupees; and (c) classify citizen of Pakistan on the basis of their status being resident or non‑resident of Pakistan or other persons on the basis of residence or nationality or otherwise for the purpose aforesaid. (ii) Pending the framing of rules under subsection (1) withdrawals, remittances or payments in foreign exchange shall be made with the prior permission of the State Bank of Pakistan. (5) Repeal and saving.‑‑‑ (i) The Foreign Exchange (Temporary Restrictions) Ordinance, 1998 (VII of 1998) is hereby repealed. (ii) Any rules, orders or instructions regarding foreign exchange made or issued by the Federal Government or the State Bank of Pakistan and in force before the commencement of this Act shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to have been made or issued this Act. "

9. The Peru‑ A of the 1998 Act shows that section 2 is the most material. Section 2 suspends the right to hold, sell, withdraw, transfer, pay or take out foreign exchange held by any person in Pakistan as on 28th day of May, 1998, without the prior permission of the State Bank of Pakistan. In other words the suspension/freezing (the expression freezing is not used in the statutory provisions but has been frequently used during the addresses of the learned counsel and as such there is no harm in using it, since it clarifies the situation more appropriately), is not straightway under the command of the law giver but is tagged with the prior permission of the State Bank. In other words the State Bank can permit withdrawal and holding of foreign exchange and in its discretion can also refuse the permission and upon such refusal the right to hold/withdraw foreign exchange as held by any person in Pakistan on 28th of May, 1998 shall remain suspended. It is clear that the section itself nor for that matter any other provision in the 1998 Act offers any guidelines to the State Bank muchless lay down any principle by following which the State Bank should or should not grant permission. Even no rules under section 4 have been framed. The question, therefore, as to whether the provision of section 2 suffers from the vice of impermissible/excessive delegation, is not only extremely pertinent but critical to the decision of petitions/appeals.

10. Unfortunately none of the learned counsel provided the Bench with detailed assistance on this aspect of the case. My own research shows that the question has been examined frequently by our own Courts in number of cases including Sobho Gyanchandani v. Crown PLD 1952 FC 29; Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan PLD 1957 SC 9, Waris Meah v. The State etc. PLD 1957 SC 157, Messrs East and West Steamship Company v. Pakistan through Secretary to Government of Pakistan, Ministry of Commerce, Karachi and others PLD 1958 SC 41, District Magistrate and Commissioner, Lahore Division v. Syed Raza Kazim PLD 1961 SC 178, Haji Ghulam Zamin and others v. A.B. Khondkar PLD 1965 Dacca 156 (FB), Sh. Muhammad Ismail & Co. Ltd., Lahore v. The Chief Cotton Inspector, Multan Division, Multan and others PLD 1966 SC 388, Province of East Pakistan and others v. Sirajul Haq Patwari and others PLD 1966 SC 854, Ch. Manzoor Elahi v. Federation of Pakistan etc. PLD 1975 SC 66, Zaibtun Textile Mills Ltd. v. Central Board of Revenue and others PLD 1983 SC 358, Miss Benazir Bhutto v. Federation of Pakistan and others PLD 1988 SC 416, Shaukat Ali v. Government of Punjab and 8 others PLD 1997 Lah. 617 and Province of the Punjab and others v.. Mian Manzoor Ahmad Wattoo 1998 CLC 1585. The above question will have to be answered in the light of the principles as laid down and applied in the above judgments.

11. What transpires after the survey of the case‑law on the subject is that the question whether the Legislature abdicated its basic function is not a very easy question to answer. No hard and fast rule is laid down. Facts and circumstances of each case will have to be considered. The Courts will be reluctant to strike down the law on this ground. In some of the judgments reference has been made to classical literature on the subject, which need not be reproduced, for the sake of brevity. Suffice it to say that the doctrine of excessive/impermissible delegation is the product of written constitution, which provides for three separate organs of the State and also provides for the functions and powers of each. In theory each organ has to remain within its own limits. The Legislature has only to make laws, the Executive has to enforce the same and the Judiciary has to interpret the law and also see that the other two organs function within the spheres allotted to each of them by the Constitution. Our Constitution, which is Parliamentary and Federal in nature acknowledges the bifurcation of the functions of the State into legislative, executive and judicial and duly describes the functions of the 3 organs viz. Legislature, Executive and Judiciary. It is inherent in the scheme of the Constitution that each organ will work within its own sphere. Articles 141 and 142 read with Articles 70 to 7.6 of Constitution prescribe that law making is the function of the Majlis‑e‑Shoora. Since the Legislature is representative of the people and it is they who send them to the Assemblies for making laws, therefore, the Assemblies cannot pass ‑on this function to any other person/organ and whenever it is found that the Legislature has entrusted its basic function to another organ, it is said that the Legislation suffers from the vice of delegation, excessive or impermissible.

12. However, it also transpires that with the growth of complexities in running a modern State particularly with the advent of the idea of welfare State, some room/laxity is provided to the Legislature to allow legislation by other organs/persons. This is so because the Legislature may not comprehend all possible eventualities faced in enforcing the law. While it is absolutely necessary that basic policy of law be laid down by the Legislature, the details may be allowed to be filled in by other functionaries including executive, for efficient administration of law. The difficulty, however, arises in ascertaining in a given case as to whether the Legislature has laid down the basic policy of law or whether it has left even such function to the Executive or any other organ. If in the given case the Court finds that the Legislature has transgressed the limits of permissible delegation, the Court intervenes so that the Constitutional provision is upheld and deviation from the same is forbidden. Before proceeding to answer the question in this case, I would briefly like to refer to some of the cases noted above, which will help in answering the question.

13. In the case of Sobho Gyarichandani PLD 1952 FC 29 the proviso to section 1(3) of Pakistan Public Safety Ordinance (XIV of 1949), authorising Central Government to extend life of Ordinance was held as ultra vires as this provision amounted to delegation of legislative function, which cannot be done. Abdul Rashid, Chief Justice held that "A Legislature cannot delegate its powers of making, modifying or repealing any law to an external authority. If it does sox it would be creating a parallel Legislature. The power of extending the duration of an enactment which would have terminated but for the interference of the external authority, is the exercise of legislative power by an external authority and invalid ....". In the case of Waris Meah PLD 1957 SC (Pak.) 157 section 22‑A inserted in Foreign Exchange Regulation Act, 1947. came under examination. This provision delegated the powers to Central Government or the State Bank to determine whether an offender should be tried under ordinary law (section 23) or by an Adjudication Officer (section 23‑A) or by a Tribunal (section 23‑B). The Court took the view that although provision did not amount to unconstitutional delegation of legislative function, however, it held the provision to be ex facie discriminatory and violative of equal protection of law guaranteed by Article 5 of the Constitution (1956 Constitution, now Article 4 of 1973 Constitution). In the case of Messrs East and West Steamship Company (PLD 1958 SC (Pak.) 41) the Court considered the provision of Control of Shipping Act (XXVI of 1947) in the light of the objection that conferment of vast unguided powers violated Article 5 of 1956 Constitution which guaranteed equality before law. It was held by majority"...of course, unauthroised delegation of legislative powers is as bad under our Constitution as under the American Constitution ....In this respect the generally accepted position is that no provision of the law can fall within the rule against the delegated legislation if it is based on policy discoverable from that provision itself, which has to be implemented by the person against whom the charge of unauthorised legislation is made

". In the case of Khawaja Muhammad Sardar, M.P.A. PLD 1964 Lah. 718, a case relied upon by Mr. Siddiqui, Advocate, a Full Bench of this Court held section 2 of the West Pakistan Use of Loudspeakers (Prohibition) Ordinance (XXXI of 1963) as violative of Fundamental Right No.9 of 1962 Constitution. Section 2 provided that "no person shall use or cause to be used a loudspeaker in a public place for any purpose except with the permission of the Deputy Commissioner, and subject to such terms and conditions as the Deputy Commissioner may impose ...." It was further held (at page 725) that "section 2 of the Ordinance places a previous restraint on the right to public speaking and to be heard. It not only places a previous restraint on the right, but also an arbitrary and an uncontrolled discretion in an executive authority to refuse a licence or the permission for any reason or no reason at all. The section is also capable of being used discriminately, as the Deputy Commissioner may grant permission to one person or party and refuse it to another, there being no guiding principles laid down by the Legislature, no check and no objective standard or control on the exercise of the power"

14. Similarly in the case of Ch. Manzoor Elahi (PLD 1975 SC 66), the Court held the provision of section 11 of the Frontier Crimes Regulation, 1901 to be discriminately, and therefore, violative of Articles 4 and 5 of the 1973 Constitution. In the case of Miss Benazir Bhutto (PLD 1988 SC 416), the Court examined some provisions of Political Parties Act, 1962 and concluded that section 3‑B of the Act requiring compulsory registration was violative of the Article 17(2) of the Constitution. It further held that an Act can be challenged if its provisions are ex facie discriminatory, in which case actual proof of discriminatory treatment is not required to be shown. It further held that where the act is not ex facie discriminatory but is capable of being administered discriminately then the party challenging it has to show that it has actually been administered in a partial, unjust and. oppressive manner. It also declared that "when the impugned legislation by reference to its provisions is ex facie violative of Fundamental Rights of an individual ....proceedings lie for the enforcement of those rights irrespective of the fact whether any prejudicial order has been passed by the Executive under the law as the Constitution treats the Fundamental Rights as superior to ordinary legislation

". In 1998 CLC 1585, A Division Bench of this Court held the provisions of sections 12‑B and 12(2) of Punjab Local Government Ordinance VI of 1979, as introduced by Punjab Local Government Ordinance, I of 1998, which provided for nomination of members of the Punchiat by the Government and Constitution of Union Councils by nomination, as discriminatory and violative of Article 25 of the Constitution.

15. I now proceed to apply the above principles of law to the provision (section 2 of 1998 Act) in question. The provisions have been reproduced in extenso in para. No.7 above. Under section 2 it has been provided that the right to hold, sell, withdraw or take out foreign exchange held by any person in Pakistan as on 28th of May, 1998 without the prior permission of the State Bank of Pakistan shall remain suspended. Admittedly no rules under section 4 of the 1998 Act have been framed. The provision does not lay down any guidelines whatsoever as to in what cases the State. Bank should give permission and in what cases it should not give permission. There is no clue at all muchless any definite criteria, which the State Bank is required to follow while deciding to give or to refuse permission. The Legislature in fact in asking the State Bank to act in its complete, absolute unqualified, unguided and uncontrolled discretion, has effaced itself and this is not permitted by the Constitution. As noted above Articles 141 and 142 exclusively enjoin the Majlis‑e‑Shoora to make laws. Majlis‑e‑Shoora has passed on this exercise to State Bank of Pakistan inasmuch as suspension of right to hold/withdraw etc. is not instant and automatic but dependent upon permission of an external agency (State Bank) which discretion is unguided. There is a case of self‑effacement by Parliament and therefore, unconstitutional.

16. Mr. Minto, Advocate in his elaborate address has submitted that no guidelines or criteria is needed as the same is provided under the provisions of Foreign Exchange Regulation Act. In fact he went to the extent of saying that section 2 of 1998 Act impliedly revived the provisions of Foreign Exchange Regulation Act.

17. The examination of Foreign Exchange Regulation Act shows that even that Act does not throw any light as to how to deal with the foreign exchange deposits held on specified date, i.e.,. 28th May, 1998. The Foreign Exchange Regulation Act deals with the regulation of Foreign Exchange/Currency generally and naturally does not talk of the foreign currency/exchange deposits held on 28th May, 1998, having been framed in 1947. Therefore, if the State Bank was to search those provisions of Foreign Exchange Regulation Act to decide the question of granting permission in respect of the deposits held on specified date, it will find no guidance or policy or criteria. Though Mr. Minto made the submission but he could not show as to how any provision of Foreign Exchange Regulation Act guided the State Bank in carrying out the mandate of section 2 of 1998 Act, in respect of grant or refusal of permission of deposits to withdraw "held on specified date i.e., 28‑5‑1998. Learned Deputy Attorney-General, of course only adopted the submission of Mr. Minto. I, therefore, conclude that section 2 of the 1998 Act is a case of excessive delegation and, therefore, violative of our Constitution, and therefore, of no legal effect. The principles of law laid down in cases Waris Meah, Kh. Muhammad Safdar, Ch. Manzoor Elahi and Miss Benazir Bhutto (supra) are clearly attracted.

18. I further hold that the provision of section 2 (ibid) conferring unguided powers on State Bank is ex facie discriminatory and, therefore, violative of Article 4/25 of the Constitution, which guarantee equal treatment before law. It is not only discriminatory on the face of it but it has the potential of being used in a highly discriminatory manner, inasmuch as the State Bank can grant permission without giving reasons and can withhold permission also without giving reasons. The power is further capable of being used in arbitrary manner and, therefore, invalid on this ground also, as in the case of section 2 of West Pakistan Use of Loudspeakers (Prohibition) Ordinance, 1963 which conferred unguided power on Deputy Commissioner to grant or refuse the permission.

19. The above finding that the law contained in section 2 of the 1998 Act is discriminatory is further fortified from the peculiar facts obtaining in these cases. It is admitted by Mr. Minto, Advocate that after 28th May, 1998, the foreign currency accounts can be opened and operated and there is no restriction from bringing foreign exchange into Pakistan and from holding the same and operating accounts in the authorised commercial banks. Both Mr. Minto as well as the learned Deputy Attorney‑General failed to show as to how the foreign currency/exchange held on 28th May, 1998 is bad/impure while the foreign currency/exchange brought in and held on 29‑5‑1998 and, thereafter, is good/pure and is entitled to the protection available under the Act, 1992. This discrimination and classification is irrational and is clearly violative of Article 4/25 of the Constitution, both of which remain unaffected by the Proclamation of Emergency.

20. Both however, did state that the restraint against holding and withdrawal was necessitated on account of what was described as "ground reality", that there was no foreign exchange in the kitty since such deposits had already been consumed and utilised. They, therefore, further pleaded that while deciding the cases, this Court should keep the above "ground reality" in view. Both in fact pleaded that as because of "ground reality", there was no chance of the writ of the Court being honoured, the same should not be issued. It is difficult to agree with this submission although the "ground reality" in fact may be as has been stated. If there is no foreign exchange in the kitty and all the amounts accumulated between 1992 to 28‑5‑1998, amounting to something like 11 billions U.S. Dollars Have already been utilised, it only lends support to the argument of Mr. Salman Raja, Advocate that the provision it: the Ordinance/Act is meant for confiscation/appropriation of the foreign exchange belonging to appellants/petitioners and the same is being done in a mala fide manner, under the cover of Emergency. It is not for this Court to determine whether the amount of 11 billions Dollars has been properly utilised or not. But it need be stated that the foreign currency/exchange lying in bank deposits, belonged to depositors and did not belong to the Government. The 1992 Act gave the depositors/citizens a clear guarantee that the foreign exchange can be freely brought into the country, accounts can be opened maintained and duly operated. That Act in fact gave incentives for bringing in such money and for keeping it in' Pakistan. I do not agree with the argument of Mr. Salman Raja, Advocate that', the so called sovereign guarantee in respect of such deposits could not have been' withdrawn under any circumstances. If the 1992 Act gave such deposits the protection, the same law‑giver, at least in theory could withdraw the protection, of course in accordance with Constitution and law. However, the withdrawal of protection and suspension of right to hold and withdraw did not mean automatic extension of ownership rights of depositors/holders and their vesting in the respondent Government. For this purpose, a separate legal formality, may be by way of Notification in the official Gazette under section 9 of Foreign Exchange Regulation Act or otherwise, was required to be completed.

21. Mr. Minto relied on Notification SRO No.1016(1) of 1979, dated 17th October, 1979, as amended up to 10th April, 1991, to claim that this Notification issued under section 9 of the Foreign Exchange Regulation Act, obliged every citizen to sell foreign exchange to the State Bank on the rates determined by the State Bank under section 4(2) of the Foreign Exchange Regulation Act. He, therefore, argued that the State Bank rightly purchased the foreign exchange deposits from authorised dealers and allowed the Government to utilise the same. The argument cannot be accepted for the reasons that the Notification itself exempts the foreign exchange held by authorised dealers within the scope of their authority, from the operation of the Notification. But, by far the most important reason to reject this argument is the enforcement of the provision of Act. XII of 1992. Section 3 of 1992 Act gave overriding effect to the provisions of the Act, and thus, excluded the application of Foreign Exchange Regulation Act, 1947. The Notification, dated 27th October, 1979 being contrary to section 4 of the 1992 Act cannot prevail over the same. In my judgment, the acquisition of foreign exchange held in bank accounts on specified date i.e., 28‑5‑1998 will have to take place, if at all, through a fresh legislative measure and not on the strength of 1979 Notification. No such measure has been referred to by Mr. Minto or for that matter Mr. Sher Zaman Khan. Section 2 of 1998 Act only suspends the right but does not and cannot operate to "vest" the deposits in the State Bank or the Federal Government, so as to enable it to consume the foreign exchange. In any case, undisputedly consumption of foreign exchange had taken place earlier to the enforcement of the Ordinance and the 1998 Act. Under what authority? As noted it could not have been under 1979 Notification, the same having been overridden by 1992 Act. No other law was cited either by Mr. Minto or by Deputy Attorney‑General. Utilization of foreign exchange of petitioners and other depositors which has taken place as asserted by learned Deputy Attorney‑General and Mr. Minto (and as is ever. clear from the article of Mr. Sartaj Aziz, the then Finance Minister appearing in 'Daily Dawh', dated 5th of August, 1998) would be entirely illegal, and if I may add or immoral. The 'ground reality' should not and cannot deter the Court from declaring the actual legal position.

22. Under proviso to section 2 of the 1998 Act, there is no legal restriction on any person converting his foreign exchange into rupees at the officially notified rate of exchange. During the course of lengthy hearing, learned counsel on both sides were repeatedly asked to explain as to what is officially notified rate of exchange and further as to how rate of exchange at Rs.46 per Dollar came to be determined. This rate finds mention in the Circular No.12, dated 29th May, 1998, issued by the State Bank of Pakistan. At one stage Mr. Minto, Advocate stated that this rate has been fixed by the Federal Government and State Bank has nothing to do with it. He, however, also placed one file an order/decision of the State Bank, dated 27th June, 1998, which shows the rate of exchange to be at Rs.46 per US Dollar. According to Mr. Minto, Advocate, this gas been done under section 4(2) of the Foreign Exchange Regulation Act. The aforesaid provision does authorise the State Bank to fix the rate of exchange at which a person can enter into a transaction of conversion of Pakistan Currency into foreign currency or foreign currency into Pakistan Currency and if this was clone on 27th June, 1998, it still does not answer the question as to how Circular No.12 of the State Bank authorised withdrawal of the frozen dollars at the rate of Rs.46 per dollar from 29th May, 1998 to 27th June, 1998. Under the proviso to section 2 of 1998 Act, this rate has to be a rate officially notified, but the Act does not define the expression "officially notified". It can mean fixed by Federal Government and it could equally mean by State Bank. Why has the law‑giver kept this ambiguity, is not discernible nor explained by learned Deputy Attorney‑General.

23. Mr. Salman Raja, Advocate strenuously argued that this rate has to be not less than market rate' and for this purpose relied on section 9 of the Foreign Exchange Regulation Act and some judgments from Indian Jurisdiction. He argued that if at all the "Freezing" is valid, the rate has to be the rate prevailing in open currency market (presently around Rs.54 per U.S. dollar). This argument need be determined vis‑a‑vis proviso to section 2 of the 1998 Act, which talks of 'officially notified rate' and certain other provisions of Foreign Exchange Regulation Act but I would not decide this question as I have already reached the conclusion that section 2 itself is discriminatory and suffers from vice of delegation.

24. Now I take up the question of Circular No.23. The major attack launched by Mr. Salman Raja, Advocate against the validity of the Circular is that it being an executive order can only have prospective effect and cannot undo the transactions already entered into nor take away the vested rights of the parties. It is urged that under the legal dispensation prevailing, the appellants/petitioners duly entered into the contracts of obtaining rupees loan with their bankers‑respondents on the security of the foreign exchange deposits held by them. The agreements are being duly worked by both the contracting parties and the dates of repayment of the rupees loan has not yet reached. It is stated that acting under the impugned Circular, the bankers of the appellants/petitioners are compelling the appellants/petitioners to give fresh security, failing which they have threatened that the security of foreign exchange will be utilised for liquidating the rupee liability at the rate of Rs.46 per US Dollar. It is vehemently urged that the foreign exchange deposits of the appellants/petitioners is property in full juristic sense and this property cannot be appropriated in the threatened manner under the force of the Circular. It is contended that this purpose, if at all, can only be achieved by a legislative measure and not through an executive fiat like the Circular. It is argued that the foreign exchange deposits have already been consumed by the Government/State Bank and this device of forced conversion is being resorted to, to legalise the consumption already taken place. Some of the learned counsel during the course of their addresses described the situation as a State dacoity and urged that this Court should declare it so and further condemn the various Governments responsible for consuming the property of the citizens, in an illegal, immoral and sinful manner. It was also urged that if at all substituted security is necessary, the respondents‑banks have to return the original security to the appellants/petitioners while demanding substituted security. It has been claimed that because the foreign exchange deposits have been consumed and the banks are unable to return the original security, the device of forced conversion has been resorted to. Some of the learned counsel described the exercise as highly motivated and ill‑intentioned and were particularly aggrieved that as per press reports, persons enjoying close links with relevant quarters, managed to withdraw their deposits and take them out of country before 'freezing'. In this connection reference was also invited to section 9 of the Foreign Exchange Regulation Act to show that whenever the foreign exchange is acquired, it is done by paying at the market rate. It is claimed that market rate of Dollar is much more in the open market than Rs.46 being offered to the depositors and on which rate the security of foreign exchange deposits is threatened to be adjusted/liquidated. Some of the learned counsel also challenged this exercise by describing it as un‑Islamic. Large number of cases including Mian Manzoor Ahmad Wattoo v. Federation of Pakistan and 3 others PLD 1997 Lah. 38, Messrs Wak Orient Power and Light Ltd. v. Government of Pakistan, Ministry of Water and Power, Islamabad, and 2 others PLD 1998 Lah. 665, Qazalbash Waqf v. Chief ,and Commissioner, Punjab and others PLD 1990 SC 99 and Hashwani Hotels Limited v. Federation of Pakistan and others PLD 1997 SC

315. Mr. Saman Raja, Advocate also referred to the case‑law from Indian and American jurisdiction.

25. The validity of impugned Circular has been canvassed by Mr. Minto, Advocate by urging that the issuance of Circular has nothing to do either with the Proclamation of Emergency or with the enforcement of the Ordinance or 1998 Act. He has maintained that under the State Bank of Pakistan Act, 1956 and the Banking Companies Ordinance, 1962, the State Bank has not only the powers but also obligation to regulate monetary and credit policy and in this connection to issue directions to the Banking Companies, which directions are binding on these companies. He has argued that the impugned Circular has been issued under section 25 read with section 41 of the Banking Companies Ordinance, 1962. To the arguments that the impugned Circular cannot apply retrospectively nor can it take away or adversely affect the vested rights, Mr. Minto has relied on section 91‑A of the Banking Companies Ordinance, 1962 and according to him on account of section 91‑A the provisions of section 25 will prevail notwithstanding any law or contract to the contrary. He, therefore, claimed that the impugned Circular can validly destroy the existing contracts and can also take away the vested rights. He relied on PLD 1998 Karachi 22 for the proposition that in such matters the Court will not sit in appeal nor substitute its own view for that of the State Bank. He referred to AIR 1962 SC 1371 and AIR 1992 SC 1033 for the proposition that the opinion of the Reserve Bank in such matters is respected and not interfered with in judicial review. He also relied on M/s. China Pain Industries Ltd. v. Industrial Development Bank of Pakistan (1990 CLC 1865) and standard pro forma of agreement to contend that if circumstances change fresh security can be called upon. In this connection he also urged that because the right of the depositors to hold the foreign exchange has been suspended, the deposits were no longer good security in the eye of law and the State Bank, therefore, has acted prudently in calling upon the commercial banks to ask for removal of lien of the foreign exchange deposits.

26. Mr. Sher Zaman Khan, learned Deputy Attorney‑General urged that because there was a Proclamation of Emergency, which has been upheld by the Supreme Court, Fundamental Rights 15 to 19' and 24 are not available in view of Article 233(1) of the Constitution and the State as defined in Article 7 could pass any law or take any executive action in violation of the above‑noted fundamental rights. He maintained that State Bank fell within the expression, "State" and, therefore, the 1998 Act as well as the impugned Circular are valid and legal and all these appeals and petitions are to be dismissed as not maintainable. He further adopted the line that the Court may not interfere in policy decision. He refuted the arguments of mala fide by relying on Article 150 of the Constitution, which says that full faith and credit has to be extended to official acts.

27. While I have noted above the elaborate contentions, in my view all of them need not be examined in detail because the question of the retrospectively of Circular has already been decided and this determination suffices to dispose of all the cases. In Hashwani Hotels Ltd. v. Federation of Pakistan (PLD 1997 SC I 315) question whether the circular issued by the State Bank of Pakistan untie IIIr section 25` can apply retrospectively, has been examined and answered‑in the negative. The appellants in the Supreme Court were claiming the benefit of reduced rate of interest on the strength of Circular No.BCD‑6, dated 15‑2‑1981. The appellants had obtained advances in the year 1977‑78, much before the issue of Circular. The argument was that the loan agreement were subsisting and as such the appellants were entitled to the benefit of the Circular. It was held at pages 333/334 as follows:‑‑‑

"It may also be observed that the authority i.e., the State Bank of Pakistan which had issued the above Circulars including of 15‑2‑1981, has taken the stand that the same were not intended to cover the loan agreements which were entered into prior to the date of the above Circular. In presence of the above written clarification by the authority which has the power under section 25 of the Ordinance to issue direction as to the rate of interest and to vary or to withdraw the same, it would not be legal for a Court to hold that the above Circular of 15‑2‑1981 would be applicable to the loan agreements already concluded and wholly or partly acted upon prior to the date of the above Circular by the parties on the ground that certain amounts pursuant thereof were disbursed by the banks to the party concerned subsequent to the date of the Circular. It must, therefore, follow that no writ could be issued against respondent No.4 and/or the remaining banks/financial institutions directing them to charge interest at the rescued rate of interest in breach of the terms of the loan agreements. " In para.22 of the judgment their lordships reproduced, with approval the view of Division Bench of Mysore High Court to the effect that:‑‑‑ "(1) The directions, if any, issued by the Reserve Bank of India under section 21(2) must operate prospectively and it will not affect the existing contracts or advances made by the Banking Companies with their customers. The direction issued by the Executive Director of the Reserve Bank to operate retrospectively will be clearly in excess of the authority given to the Reserve Bank by section 21(2). (1967) 10 Law Rep. 767 (772) (Mys.) (DB)."

28. In the light of above declaration of law, there is hardly anything for me to add except to state that I have to respectfully follow the same. It is correct that the above judgment does not notice the effect of section 91‑A as argued by Mr. Minto. However, it is not for this Court to avoid the application of declared law of Supreme Court on this ground. Doctrine of 'per incuriam' can only be canvassed in the Supreme Court, in this case. Besides, in my view, the submission of Mr. Minto is open to serious objections. Section 91‑A only gives primacy to section 25, over other laws, contracts and agreements. For instance, a Commercial Bank would not be able to avoid directive issued under section 25 on the ground that it is violative of its own Articles of Association, or resolutions of Board of Directors or its contracts or agreement with third parties. In my view, this primacy cannot extend to authorising. State Bank to issue directions which can destroy existing rights or ' undo existing contracts/transactions. Language of section 25 itself belies the contention of Mr. Minto: "Whenever the State Bank is satisfied that it is necessary or expedient in the public interest so to do, it may determine the policy in relation to advances to be followed by banking companies generally ....... The use of words to be followed clearly indicates that the policy/directions will apply prospectively. Similarly section 41 of Banking Companies Ordinance, 1962 cannot confer legality to the retrospective operation of Circular No.23, assuming that the provisions of above section are otherwise attracted to the present situation.

29. While learned Deputy Attorney‑General did object to the maintainability of the petitions but he failed to substantiate the objection. It is correct that Proclamation of Emergency has been issued and this Proclamation has been upheld by the Supreme Court vide short order, dated 28‑7‑1998. As a result of Proclamation and by virtue of Article 233(1), the State can make laws and take action in derogation to Fundamental Rights Nos. 15, 16, 17, 18, 19 and

24. The Proclamation of the President under Article 233(2) suspending some other fundamental rights, has been set aside by the Supreme Court vide the same order. Article 199 of the Constitution remains intact even during the subsistence of Proclamation of Emergency and this Court can exercise jurisdiction conferred by that Article. The only effect upon the exercise of jurisdiction in view of Emergency is that this Court will honour the mandate contained in Article 233(1) and will not interfere even if the law/action is found to be derogatory to Articles 15 to 19 and

24. In this petition no argument on the strength of the abovementioned Fundamental Rights has been raised and even if raised, ' I have taken no notice of the same. The petitions/appeals have beer determined independent of Fundamental Rights 15 to 19 and

24. I, therefore, overrule the objection of the learned Deputy Attorney‑General and hold the petitions to be maintainable.

30. Some of the learned counsel argued that the provisions of 1998 Act and the action of "freezing" is un‑Islamic and, therefore, should be struck down by this Court. The submissions on merits need not be examined as it is only the Federal Shariat Court constituted under Chapter 3‑A of the Constitution, which has the exclusive jurisdiction, under Article 203‑D to determine the validity of law on the touchstone of Injunction of Qur'an and Sunnah. Article 203‑G bars the jurisdiction of a High Court and the Supreme Court to entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Federal Shariat Court.

31. For the above‑noted reasons I answer the questions noted in para. No.4 of the judgment as follows:‑‑‑ (i) and (ii) Section 2 and section 4(2) of the 1998 Act is unconstitutional and the consequential suspension of the right of the petitioners/depositors to withdraw and operate their foreign currency accounts is without lawful authority. The action is violative of Article 4/25 of the Constitution. The provision is further discriminatory in nature and has the inherent mischief of being used in a highly arbitrary and whimsical manner. (iii) Circular No.23 cannot operate to undo the existing contracts. Circular No.23 can have only prospective effect. It is valid to the extent that the banks will not, in future, accept foreign currency deposits as collateral for advancing rupees loans. (iv) In any case the direction to convert the collateral at the rate of Rs.46 per US Dollar and liquidate the rupee liability is absolutely without H jurisdiction. I declare the same to be without lawful authority and therefore, of no legal effect. (v) The conversion rate Rs.46 shown to have been fixed by the State Bank on 27th June, 1998 under section 4(2) of the Foreign Exchange Regulation Act, 1947 is valid for purposes mentioned in section 4 but cannot be said to be the rate which is required to be fixed by the Federal Government under section 9 of the Foreign Exchange Regulation Act, the only section under which the foreign exchange belonging to a citizen can be acquired by the Federal Government.

32. Once again with utmost respect to Mian Allah Nawaz, J., I am of the view that in these cases, this Court is and should concern itself with the constitutionality of law and the legality of action impugned. This Court should stop after making considered declarations, even if further consequential directions may not be outside the purview of Article

199. As the Constitution recognises the trichotomy of sovereign power, this Court may leave the situation created by the judgment of this Court, to be dealt with by Executive and Legislature, in accordance with law and their respective wisdom. In my humble view the directive to State Bank to treat the foreign currency account held by petitioner on 28th May, 1998 under section 4 of Protection of Economic Reforms Act (XII of 1992) as fixed account for a period of 3 years and frame rules as contained in para. 4 at page 82 of my learned brother's judgment, is not required to be issued by the Court. Besides, already there is a US Dollar Saving Bonds Scheme (under the Special US Dollar Bonds Rules, 1998) in the field and as informed, 'some of the depositors have already converted their deposits into the Bonds. The Bonds are for the tenure of 5, 7 and 10 years and fetch reasonably good profits. These also enjoy some other immunities and exemptions as contained in F.E. Circular No.42, dated July 21, 1998 as amended by F.E. Circular No.44, dated 4th August, 1998. Depending upon their need, outlook and patriotic sense, depositors can opt for Dollar Bonds. I am clear that after declarations of illegality of impugned law and action, the petitioners/appellants/depositors cannot be compelled to keep their foreign exchange either in fixed accounts or in Bonds. I, therefore, respectfully disagree with the above directions.

33. Similarly, I further do not subscribe to the direction to Federal Government contained in para. (5) at page 653 of my learned brother's judgment. The underlying motive of my honourable brother is laudable (and I may agree with it on personal plane) but because provisions of Act XII of 1992 have not been challenged in these cases, no occasion rises for the Court to rule on its legality, muchless appropriateness.

34. I, therefore, allow all the appeals and the Constitutional Petitions in the above terms. The order of learned Single Bench, dated 30‑7‑1998 is set aside. I would leave the parties to bear their own costs.

35. In the end, I acknowledge the industry and commitment with which all the learned counsel, in particular M/s. Salman Raja and Mr. Mansoor Ali Shah, Advocates, conducted their respective cases. (Sd.) Karamat Nazir Bhandari, Judge. AMIR ALAM KHAN, J.‑‑‑ I agree with the judgment proposed to be delivered by my learned brother Karamat Nazir Bhgandari, J. (Sd.) Amir Alain Khan, Judge. M.B.A./S‑299/L Appeal allowed.