P L D 1977 Supreme Court 397 (PLP)

MUHAMMAD GUL, J.-This judgment deals with Civil Appeals Nos. 76 to 79 of 1976 and C. P. S. L. A. No. 152-R of 1976, all of which involve a common question of law as to the interpretation arid effect of clause (4-A) to Article 199 of the Constitution as recently inserted by clause (b) of section 8 of the Constitution (Fourth Amendment) Act, 1975 (Act LX'Xl of 1975), hereinafter called the Amending Act, and also that of section 14 of the same Act. The Act came into force on the 21st November 1975 and made numerous amendments to the Constitution including the above two coming in for interpretation in these five cases. These five cases are a sequel to demand notices for the recovery of duties of excise issued to the various parties concerned under section 11 of the Central Excises and Salt Act, 1944 (Act I of 1944) and the Rules framed under subsection (4) of section 3 of the Act. Subsection (4) and the Rules framed thereunder provide for the levy of the duty of excise on the basis of "the productive capacity" of the manufacturing plant used for the production of excisable goods, instead of the actual production of such goods as was done heretofore under subsection (1) of section 3 of the 1944 Act. The main argument was addressed by Mr. Mumtaz Hussain, learned counsel for the petitioner in C. P. No. 152-R of 1976. The petitioner in that case is manufacturer of cotton yarn and cotton fabrics for sale in the local market and for export and was assessed to excise duty on the basis of the productive capacity of its mills. The petitioner was dissatisfied with the assessment and after exhausting remedy by way of review as provided under the taxing statute and the Rules, on 22-10-1969 filed Writ Petition No. 1607 of 1969 in the late High Court of West Pakistan at Lahore. It also applied for the suspension of the assessment and stay of the recovery of the assessed excise duty pending a decision in the writ petition. The High Court admitted to full hearing, the writ petition and. as a measure of interim relief, allowed the petitioner to pay 75 % of the assessed excise duty on the basis of the productive capacity of the plant .and to hold in abeyance the payment of the remainder 25 % until the final decision in the writ petition. Unfortunately the writ petition remains to be decided till today although more than seven years have gone by. The result is that the balance remaining payable by the petitioner ion the basis of assessment already made, has continuously mounted to a staggering :figure of Rs. 1,42,33,800.21. Because of tree coming into force of the Amending Act on 21-11-1975, which inter alia inserted clause (4-A) in Article 199 of the Constitution and section 14 of the Act, the order of interim stay issued by the High Court on 28-10-1969 was treated by the Department as having lapsed. Therefore, on 23-2-1976 an Assistant Collector, Central Excise and Land Custom issued two notices to the petitioner to pay Rs. 1,42,33,800.21 representing the aggregate of 25 % of the duty of excise payable in respect of cotton .fabrics and cotton yarn manufactured by the petitioner since the order partially staying the recovery of excise duty was made. This obliged the petitioner to move civil miscellaneous application in the High Court on 28-2-1976 calling in question the validity of the fresh notices for the -recovery of the balance on the ground that the order Partially staying the recovery of the excise duty was issued by the High Court in November 1969 and therefore was not hit by the constitutional amendments above mentioned. The civil miscellaneous application was dismissed by the Division Bench on 6-4-1976 following an earlier judgment of the Court in .similar case of Chaudhry Textile Mills Ltd. v. Central Board of Revenue P L D 1976 Lah, 1392 :Civil Petition No. 152-R of 1976 is directed against the order of the High .Court dated 6.4-1976. The four Civil Appeals are by the Federal Government against four different orders by a learned Judge of the Lahore High Court, who following .the fresh demand notices on the commencement of the Amending Act on a motion by the respondent in each appeal, issued fresh order in each case again staying for sixty days or for an unspecified time, the recovery of the excise duty and related dues, on the premise that such orders carp be issued from time to time on the expiry of the previous order under .clause (4-A) of Article 199 of the Constitution. The learned Judge, however, .at the same time directed that the main writ petitions in these four cases shall be heard early. The learned Attorney-General, who appeared for the Federal Government in the four appeals, at the outset stated that Civil Appeals Nos. 76 and 77 have become infructuous, as the impugned orders staying the recovery of excise duty in these two cases have since expired and have not been renewed by the High Court. These two Civil Appeals are therefore, dismissed as having become infructuous with no order as to costs. In the other two appeals namely Civil Appeals Nos. 78 and 79 Mr. Ejaz Ahmad Khan, A. O. R. and Mr. Khalilur Rehman Khan appeared for the respondents and generally adopted the argument of Mr. Mumtaz Hussain. In these two appeals either the High Court or this Court has granted the partial stay on terms, extending beyond the period of sixty days after the commencement of the Amending Act and these orders are still operative. Prior to the coming into force of the Amending Act; Article 199 by clause (1) empowered a High Court to make, in appropriate cases and upon certain conditions being satisfied, directions and orders in the nature of mandamus, prohibition, certiorari, habeas corpus and quo warrantoo. Clauses (3) and (4) ibid however, placed limitations on the exercise of that jurisdiction by the High Court either in relation to certain class of persons or class of disputes in these terms: "(3) An order shall not be made under clause (1) on application made by or in relation to a person or who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or a person subject to such law. (4) Where (a) an application is made to a High Court for an order under paragraph (a) of paragraph (c) of clause (1), and (b) the making of an interim order would have the effect or prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to the public interest or of impending the assessment or collection of public revenues. The Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorised by him in that behalf has had an opportunity of being heard and the Court, for reasons to be recorded in writing, is satisfied that the interim order (i) would not have such effect as aforesaid; or (ii) would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction." By section 8 of the Amending Act the following amendments were made !n .Article 199 of the Constitution : "Amendment of Article 199 of the Constitution.-In the Constitution, in Article 199,- (a) after clause (3), the following new clause shall be inserted, namely: "(3-A) A High Court shall not make an order under clause (1) (a) prohibiting the making of an order for the detention of a person, or (b) for the grant of bail to a person detained under any law providing for preventive detention," and (c) after clause (4), the following new clause shall be inserted, namely :- "(4-A) An interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, "which has been made, taken or done or purports to have been made taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with, assessment or collection of public revenues shall cease to have effect on the expiration of a period of sixty days following the day on which it is made, unless the case is finally decided, or the interim order is withdrawn, by the Court earlier." Section 14 of the Amending Act which per se does not add to, alter or, omit from the text of any existing provision of the Constitution, along with its marginal note reads: "Certain orders shall cease to have effect after specified period.-An interim order such as is referred to in clause (4-A) of Article 199 of the Constitution made by a High Court before the commencement of this Act shall cease to have effect at the expiration of sixty days from such commencement, unless the case is finally decided, or the interim order is withdrawn, by the Court earlier." Mr. Mumtaz Hussain's closely reasoned and somewhat ingenious argument in support of C. P. No. 152-R of 1976 can broadly be divided under the following two main heads; (i) That having regard to the general scheme of the Constitution providing for trichotomy of powers between the three principal organs of the State viz. the Executive, the Legislature and the Judiciary. Articles 238 and 239 in Chapter XI of the Constitution cannot be read as conferring upon the Parliament plenary or unfettered power to so amend the Constitution, that one organ should be able to trench upon the field assigned to another. This limitation according to learned counsel is inherent in what he described as the "juristic philosophy" of the Constitution. (ii) Even if it be assumed that the Parliament has plenary or unrestricted power under the aforesaid two Articles, the two amendments in question, on their proper interpretation do not impair the efficacy of any order for interim relief issued before the commencement of the Amending Act or to prevent the making of a fresh order by the High Court on the expiry of an earlier order if the justice of the case so required. In his address, learned counsel reversed the order of the two limbs of his argument for, as he thought, the question adumbrated under the first head, raised a larger issue, which, if he may, he would rather avoid and which if necessary. he would canvass is a more appropriate case. Accordingly, learned counsel mainly devoted his argument to the interpretation and the effect of clause (4-A) of Article 199 as inserted by section 8(B) of the Amending Act and that of section 14 of that Act. In support of that part of his argument he made the following submissions: (i) On general rule of interpretation which according to learned counsel is so well established, clause (4-A) inserted by the Amending Act in Article 199 does not deprive a High Court of the power to repeat orders for interim relief. if the justice of the case so required. (ii) Section 14 of the Amending Act does not in terms amend Article 199 or any other provision of the Constitution so as to nullify an order granting interim relief, made prior to the 21st November 1975 or for that matter, under any previous Constitution. (iii) The application of section 14 of the Amending Act is confined to an order of the relevant kind made by a High Court as constituted under the present Constitution and does not apply to an order made by a High Court established under any of the previous Constitutions. (iv) Section 14 of the Amending Act must be read subject to the provisions of Article 264 of the Constitution, which inter alia, preserves in force any right accrued or liability incurred under any order validly made under any of the previous Constitutions. Article 264 was not amended and therefore must take effect according to its terms and tenor, section 14 of the Amending Act notwithstanding. In support of his first contention Mr. Mumtaz Hussain submitted that power to grant or refuse interim relief during the pendency of a Us before a Court or a Tribunal of appropriate jurisdiction is essential to the exercise of jurisdiction to finally determine the lis. In other words the power to grant interim relief is an integral part of the judicial powers (as distinguished from jurisdiction) essential to preserve the corpus of Its until final decision in the case: or else, according to learned counsel, the exercise of jurisdiction to decide the main lis would be in vain, if the corpus of lis disappears or is destroyed in the meantime. Learned counsel stressed that if, in the instant case. Central Board of Revenue were to be allowed to resort to coercive measures to recover the arrears of excise duty which at the commencement of this controversy amounted to Rs. 1,42,33 800.21 the petitioner will be forced to close down its manufacturing business altogether. Therefore. it was argued that with a view to avert such dire consequences, according to well recognised principles which form part of the judicial systems of all modern States, a Court or the tribunal otherwise properly seized of a case, has inherent power to grant interim relief with a view to enabling it to effectively determine the dispute. This being also the part the corpus furls of Pakistan, learned counsel submitted must be given effect to while interpreting clause (4-A) inserted by the Amending Act. Hence the power in the High Court to make respected orders of stay in the absence of an express provision to the contrary. In support of this part of argument, learned counsel relied on certain observations made in the case of Chaudhry Manzoor Ilahi v. Punjab Government P L D 1975 S C 66 according to which, the expression "law" as used in Article 2 and Fundamental Right 1 in Chapter T, Part II of the 1962 Constitution was net necessarily confined to statute law or positive law but also covered "judicial principles laid down from time to time by the superior Courts and juridical norms obtaining in Pakistan." But this wider connotation of the word "law" was rejected later in the majority decision in P. B. Ali v. The State P L D 1975 S C 506 wherein according to the view of the majority the expression "law" in Article 4 of the present Constitution which is in pari materia with Article 2 of the 1962 Constitution, means only "positive law" The majority in that case relied on the dictum in the case of Asma Jilani PLD1972SC139 wherein after an elaborate discussion Hamoodur Rehman, C. J. reached the conclusion that connotation of the word "law" is restricted to positive law that is to say, a formal pronouncement of the will of a competent law-giver and did not include what were mere legal precepts or theories. I have further considered this aspect of the matter and remain confirm in my view that the term "law" as used in the above constitutional provisions has also been used in Article 8 of the Constitution, in contra distinction with any "custom or usage having the force of law" and must :therefore be given the same limited connotation in Article 4 as well. For instance the expressions like "proper law of the contract", "law merchant", "Maritime Law", "Law of Domicile" and "the practice of the Court", which are essentially in the nature of usages or practices observed in the relevant fields and are well recognized by Courts of law. In the event of any question as to the existence of any one of these, it has to be proved by evidence as a fact. It will, in my humble opinion, be erroneous tot equate these practices or usages or customs with a statute law or to attach to them any higher validity. What recently happened in relation to the practice observed by House of Lords in England over the past centuries, furnishes a classical illustration to support the above conclusion. The House of Lords had all along until recently felt itself bound by its own decision even on a point of law whether the decision was right or wrong and it was accepted as firmly established principle that the mistake, if any, could only be rectified by the Parliament. However, following the sharp reaction in the legal circles in England and other commonwealth countries over the House of Lords' decision in the notorious case of Smith? 1961 A C 290, the Lord Chancellor on July 26, 1966 announced a departure from the above practice of the House in a statement. The announcement as reported in The Times of July 27, 1966 read as follows: "The Lord Chancellor announced the change in a statement in the Lords yesterday, on behalf of himself and the Lords of Appeal in Ordinary. He said ; Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individual can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the special need for certainty as to the criminal law. This announcement is not intended to affect the use of precedent elsewhere than in this House" This brings into bold relief that the practice, in the House of Lords which by its rigid observance over the centuries, had acquired the reverence of law was not treated as "law" so as to require legislative intervention for saying good-bye to the old practice. Therefore, it would be futile to build any argument on the basis of any past practice of the High Court in the matter granting interim relief in similar cases. As I look at the matter, the question at the root is to ascertain the Parliament's intendment underlying clause (4-A) in Article 199 of the Constitution. It was pointed out by the learned Attorney-General, that C the whole object was to put an end to what he described as gross abuse of process of the Court by which enormous sums of money recoverable by the State as taxes are held in abeyance for indefinite period as a result of the stay orders which are generally secured by big industrialists and businessmen to the detriment of public revenues. Indeed, the amount which has accumulated and has become due since the stay was originally,`. granted by the High Court in C. P. 152-R brings into sharp focus, the' rationale underlying the amendment. Similarly, in the case of Chaudhry Textile Mills (referred to already) in consequence of the stay granted by the High Court, arrears representing 25% of the taxes held in abeyance amounted to Rs. 54,76.650.61. Thus this was the mischief which the Parliament plainly intended to eradicate by restricting the duration of the interim order issued by the High Court to not more than 60 days. Once we reach that conclusion and were to hold at the same time. that the High Court will also have the power to repeat the order for interim relief after the expiry of the previous order, it will reduce the constitutional provision of clause (4-A) otherwise competently made to complete farce. It is wholly wrong to think that clause (4-A) stultifies, the judicial power of the High Court, for it does not control the manner in which the abridged jurisdiction of the High Court will be exercised. The correct view is that the provision is merely regulatory of the jurisdiction of the High Court. It is also important to point out that whenever the intention is to enable an authority or for that matter a Court to repeat an order after the expiry of an earlier like order that is generally done by express terms so as to put matter beyond doubt. For instance the proviso to Article 200 of the Constitution providing for the transfer of a High Court Judge read as follows "Provided that

such consent or consultation --shall not be necessary if such transfer is for a period not exceeding one year at a time

," Similarly section 122 of the Civil Procedure Code, 1908 (Act V of 1908) concerning the rule-mating power of the High Court provides: "The High Courts may, from time to time

make rules regulating their own procedure and the procedure of the civil Courts subject to their superintendence -- -.- Likewise, section 69 of the Registration Act, 1908 (Act VI of 1908) inter alia, empowers the Inspector-General to frame rules, which for the material purpose reads ; "The Inspector-General --???????? have the power from time to time to make rules consistent with this Act

?????? ?Reference could also be made to the rule-making power of the .Provincial Governments in section 50 of the Punjab Laws Act (Act IV of 1872) which is in these terms:- "The Provincial Government may from time to time make rules as to matters mentioned in sections 43 to 48 inclusive." Section 14 of the Government Saving Banks Act, 1873 also empowers a Central Government to make rules "from time to tune." Mr. Mumtaz Hussain did not specifically rely on the provision of section 14 of the General Clauses Act, 1897 (Act X of 1897) m support of ` his argument, that clause (4-A) on its proper interpretation would note prevent the making of a fresh order by the High Court on the expiry on the previous order. But as pointed out in the earlier part of this judgment he relied upon what he described as "general principle universally recognized" and which incidentally finds legislative expression in the section. The section) for the material purpose reads: "Where, by any (Central Act) or Regulation made alter the commencement of this Act, any power is conferred, then, unless a different` intention appears, that power may be exercised from time to time occasion requires ???????? ." Here we are concerned with the interpretation of the Constitution an not of a Central Act or Regulation. Secondly, the provision of the section is subject to the intention of the law-maker to the contrary, which as pointed out already is very much manifest in the instant case having regard to the context in which the amendment in question was made. Moreover Article 264 of the Constitution is a reproduction in the Constitution of section 6 of the General Clauses Act. This is in sharp contrast with the provisions of Article 219 of the 1956 Constitution, which made the whole of the 1897 Act applicable to the interpretation of that Constitution. Article 219 of the 1956 Constitution has not been repeated in any of the subsequent Constitutions. The reason for this omission is not far to seek. In a way Article 219 in the 195b Constitution, made that Constitution -subservient to 1897 Act, in that, any amendment in the Act would have .directly affected the provisions of the Constitution. This explains why only section 6 of the Act was retained and made part of the Constitution to place it beyond the reach of the Central Statute. Or else any amendment of the Central Statute would have inevitably affected the provisions of ,the Constitution also. Against the background of this related constitutional history, it is idle to invoke any "general principle" if at all, there is any. The maxim "expresiounius est exclusio alterius" (express enactment shuts the, door to further implication) also applies to such a situation. On the question of interpretation of clause (4-A), it was lastly submitted by Mr. Mumtaz Hussain. that the inordinate delay in the disposal of Writ Petition No. 1607 of 1969 was entirely due to the fault of the respondent who delayed the filing of their written statements and further that the petitioner had no control over the working of the High Court which did not proceed with the case, notwithstanding the default by the respondents. It was urged that clause (4-A) in essence, is in the nature of a reminder ,to the High Courts not to allow cases of the relevant kind to languish, .and proceed to decide these cases within a period of not more than 60 days. Learned counsel stressed that in the instant case fault squarely lay elsewhere and yet the petitioner is made to suffer the consequences. This according to him could never have been the Parliament's intendment. That there has been sad delay in the decision in this particular case and -in the other cases too is denied. But here we are not to apportion blame and to modulate the interpretation of clause (4-A) accordingly. The interpretation is to proceed on the basis of the text and the principles which are well known and have been referred to already. It was next argued by Mr. Mumtaz Hussain that inasmuch as section 14 of the Amending Act does not carry out any textual amendment in any provision of the Constitution, it would be wrong in principle to treat it as a provision amending the Constitution. The argument was that unless -the section actually makes any verbal alteration in any of the existing :provisions of the Constitution or inserts any fresh provision identifying it as part of the Constitution, it cannot be treated as amendment of the Constitution. The argument if I may say so with due respect, is tenuous and overlooks entirely the fact that the Amending Act incorporating section 14 was titled as the Constitution (Fourth Amendment) Act, 1975 (Act LXXI of 1915). So also the fact that it was passed by the Parliament by following the procedure and by the prescribed majority as laid down in Article 239 of the Constitution for its amendment. It is manifest from a plain reading of the section that it was not designed to make any substantive change in the Constitution it was essentially in the nature of what may be described as "Parliamentary?? exposition" of the earlier provision in clause (4-A) of Article 199 of the Constitution as inserted by the same Amending Act. It is not controverted that but for this explanatory provision, there would have been room for the argument that clause (4-A) operates prospectively and would not affect the interim orders made prior to the commencement of the Amending Act. It was with a view to foreclose any such argument that the Parliament in its wisdom thought it fit to insert a provision to preclude any argument as to the true ambit of the substantive provision contained in clause (4-A) which expressly forbids the making of an order of the relevant kind to operate for a duration of more than 60 days but also to bring within its sweep an interim order already in force. Moreover, it is difficult to understand how if a provision in an enactment made to amend the Constitution after its passage by the Parliament and its authentication along with another provision plainly germane to the exposition of the former provision, can frustrate the legislative intent merely because it is not identified with reference to any existing provision of the Constitution although it merely expounds the earlier provision forming part of the same Constitutional enactment. To hold otherwise would be to frustrate the plain intention of the Parliament. One might say "that perhaps a better way of affectuating the legislative intendment would have been to append the provision of section 12 as explanation to clause (4-A) instead of giving it the shape of an independent section. Bat that is only a matter of form, the substance remaining the same in either case. However that may be, the matter in my opinion is placed beyond doubt by the following statement in paragraph 7 on the subject of "Constitutional Law" at page 35 of Corpus Juris Secundum, Volume 16-- "It is not essential to the validity of an amendment which in effect modifies a constitutional limitation that the limitation be first changed, as the amendment itself works the change. Generally, a Constitution may be amended in any particular, and a new article on a new subject not amending any existing article may be submitted by the Legislature as an amendment. So an amendment need not be germane to any other feature of the Constitution, or to the feature which is thus amended, provided it is clear and definite in its provisions." The next contention of learned counsel for the petitioner, that reference to "a High Court" in section 14 of the Amending Act is confined to a High Court established under the present Constitution and does not attend to a High Court under any of the previous Constitutions in view of the recent judgment in Inayat Khan v. M. Anwar the argument is untenable. That was a contempt case, which arose as a result of derogatory remarks about the judgment of the Chief Justice of the Supreme Court as constituted under the 1956 Constitution and one of the questions debated in that case was, whether the expression of Supreme Court in Article 294 (since repealed) of the present Constitution would cover the Supreme Court established under 1956 Constitution? After a review of the various relevant provisions in the 1956 and later Constitutions, the question was answered in the affirmative. ?here is no reason to allow this question to be recanvassed. I do not find any substance in the last contention of learned counsel in support of the second limb of his argument, that section 14 of the Amending Act must be read subject to the provision of Article 264 of the Constitution. The Article as pointed out already is in the same terms as section 6 of the General Clauses Act, it reads: "Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution,- (a) revive anything not in force or existing at the time at which the repeal takes effect; (b) affect the previous operation of the law or anything duly done or suffered under the law; (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or (e) affect any investigation, legal proceeding or remedy in respect o any such right, privilege, obligation, liability, penalty, forfeiture nil punishment; and any such investigation, legal proceeding or remedy may be instituted continued or enforced, and any such penalty, forfeiture or punishment, may be imposed, as if the law had not been repealed." The phrase "except as otherwise provided in the Constitution" is significant and furnishes ample answer to the argument of learned counsel. Enough has been said already as to the parliamentary intendment underlying the above two provisions in the Amending Act. This brings me to consider the first limb of argument of learned counsel for the petitioner concerning the vies of the two provisions of the Amending Act set out in the beginning. Learned counsel however, did not assail the amendments on the larger ground as was done in Golaknath's case A I R 1967 S C 1943? decided in the Indian Jurisdiction. In that case a narrowly divided Supreme Court ruled that the Indian Parliament lacked the power to amend Part III I of the Indian Constitution which provides for Fundamental Rights. However, the majority view in that case was modified later in the case of Kasavnuda A I R 1973 S C 1461 again by a narrow majority. In Pakistan, this Court in the case of Ziaur Rehman PLD 1973 S C 49 has however firmly laid down the principle that a constitutional provision cannot be challenged on the ground of being repugnant to what are sometimes stated as "national inspirations" or an "abstract concept" so long as the provision is passed by the competent Legislature in accordance with the procedure laid down by the Constitution or a supra constitutional instrument. In the instant case, the two amendments are riot questioned for want of competency or any other formal defect. The argument however, is that the two amendments have made serious inroad in the judicial power of the High Courts and therefore the principle of separation of powers has received a jolt. It is however, not disputed that power of making final decision remains with the High Courts and not transferred to the Executive. Even the power to afford interim relief has not been entirely taken away; its operation has been curtailed to sixty days or until the final decision whichever be earlier. No precedent case has been cited from local or any foreign jurisdiction in which in similar circumstances, a law much less a constitutional amendment has been struck down. On the other hand, it i8 common knowledge that laws relating to the recovery of public revenues are generally very stringent. In many cases right of appeal against assessment is conditioned on prior payment of the assessed tax. It is also important to observe that our .Constitution, like many other modern written Constitutions, does not provide for rigid separation of powers. Indeed there is no direct provision in that behalf except that the Constitution by various provisions provides for the setting up of the principal institutions for the exercise of the sovereign powers of the State in the appointed field. In actual practice in all modern Governments, separation is only functional to subserve the practical necessity of an efficient and enlightened Government by providing for checks and balances to avoid abuse of public power. Nowhere, so far as I am aware, the principle is pushed to its logical conclusion so as to create watertight compartments within the Government. On the subject of "The Separation of Powers" in Willoughby on the Constitution of the United States, Volume 3, 2nd Edition, in paragraphs 1061 and 1062 it is observed: "1061.-While, as has been said, the principle of the separation of powers has generally been accepted as binding in our systems of constitutional jurisprudence--State and National--the practical necessities of efficient Government have prevented its complete application. From the beginning it has been necessary to vest in each of the three Departments of Government certain powers which, in their essential nature, have not belonged to it. Thus, to mention only a few of the more evident example, the Courts have been given the essentially legislative power to establish rules of practice and procedure, and the executive power to appoint certain official-sheriffs, criers, bailiffs, clerks, etc. the executive has been granted the legislative veto power, and the judicial right of pardoning; the Legislature has been given the judicial powers of impeachment, and of judging of the qualifications of its own members and the Senate, the essentially executive power of participating in the appointment of Civil officials 1062.-Thus it is not a correct statement of the principle of the separation of powers to say that it prohibits absolutely the performance by one department of acts which, by their essential nature, belong to another. Rather, the correct statement is that a department may constitutionally exercise any power, whatever its essential nature, which has, by the Constitution, been delegated to it, but that it may not exercise powers not so constitutionally granted, which, from their essential nature, do not fall within its division of governmental functions, unless such powers are properly incidental to the performance by it of its own appropriate functions . . . . . . . ." In the United Kingdom which is a parliamentary democracy there is no strict separation of powers between the Executive and the Parliament. The reigning monarch who is the Chief Executive and an integral part of the Parliament is no more than a ceremonial head by convention, which has acquired the sanctity of law. He acts on the advice of his ministers who are members of the Parliament and Heads of their Departments. Being in the majority in the Parliament, they effectively control it by threat of dissolution. Thus de facto, the executive authority is exercized by the Ministers who are responsible to the Parliament, which in turn is under their control. A singular peculiarity in the British judicial system is that the Lord Chancellor is the head of judiciary in England. At the same time he is an elected member of the parliament and an important member of the Cabinet. It is indeed remarkable that on the one hand he presides over the highest Court in the country and on the other he joins in the Cabinet discussions to formulate policy decision of the Government some of which may be open to judicial scrutiny. This will be a taboo elsewhere. In Pakistan although the superior Courts are established to perform judicial functions yet, as in the United States, they have the power to appoint their own staff and frame Rules of Procedure. Again much of the legislation is done by the executive by Ordinances, although it is primarily the business of the legislative. Again in one significant respect the federal executive authority has been abridged under the Constitution and has been entrusted to a newly created institution called "the Council of Common Interests". It is a body quite apart from the Federal executive. (See Articles 153-156). The administration of matters falling in Part Ii of the Federal Legislative List (Railways, mineral oil, natural gas etc.) and item 34 of the Concurrent List (electricity) are entrusted to the Council of? Common Interests. This is a body consisting of the representatives of the Federal Government and the four Provinces. Any dispute arising between one or more Provinces inter se or between the Federation or a Province regarding aforesaid subjects is referable to the Parliament in joint session for final decision, This Constitutional arrangement also abridges the original jurisdiction of the Supreme Court under Article 184 and correspondingly new power essentially quasi-judicial in character has been conferred on the Parliament in joint sitting. For all the foregoing reasons the Civil Petition No. 152-R of 1976 is hereby dismissed and Civil Appeals Nos, 78/76, 79/76 are accepted. However, the parties are left to bear their own costs. MUHAMMAD YAQUB ALI, C. J.-I agree. ANWARUL HAQ, J.-I agree. MUHAMMAD AKRAM, J.-I agree. MUHAMMAD HALEEM, J.-I agree. S. A. H. ????????????????????????????????????????????????????????????????????????????????? Order accordingly,