Human Rights Case

Observations and directions recorded by the Supreme Court in the matter stated.

Limestone crushers (applicants), who held valid mining leases, were aggrieved of the orders passed by the Supreme Court by virtue of which crushing operations in the entirety of Margalla Hills had been stopped

Applicants contended that pursuant to the orders passed by the Supreme Court, the Government had taken steps to prevent them from conducting their lawful business despite the fact that they were in possession of valid mining leases; that the prohibition against stone crushing and Iimestone mining was limited to the areas of Margalla Hills National Park and buffer zones/prohibited area around it, whereas the applicants were operating their business beyond said areas; that the applicants had invested heavily at the site and employed a large number of workers with the legitimate expectation that they would continue with their activities till expiry of the term of their leases, and that preventing the applicants from conducting their business was violative of their legal rights

Validity

Impugned order of the Supreme Court was in line with a chain of orders passed by the Court in the interest of environmental protection and to protect Margalla Hills ('the Hills') from indiscriminate misuse by breaking the Hills and converting them into (stone) crush which not only created environmental pollution but also destroyed the landscape and natural beauty of the Hills irreparably and on permanent basis

After due consideration of all the said factors and to preserve and protect a gift of nature that had been bestowed upon the residents of the city, further operation of crushing and mining activities in Margalla Hills were directed to be stopped

No reason was found to recall, alter or modify the said order

Application was dismissed with the directions that unless there was any other legal impediment, the concerned authorities shall under their direct supervision and ensuring that no further damage was done to the area and the Margalla Hills allow removal of the machinery and equipment from the area owned by the applicants.

Applicants sought issuance of directions to the Federal Government to promulgate appropriate legislation at the national level to provide for all affairs relating to mountain delimitation, mountain development, mountain protection, preservation of mountain ecosystem of the country including but not limited to Margalla Hills in the interest of public at large

Held, that as far as the legislation was concerned, the applicants could take up the matter with the concerned authorities directly who may take appropriate steps in such regard in accordance with law, keeping in view the protection and preservation of mountain areas

Supreme Court observed that the applicants may also brief the office of Attorney General who shall use his office for the purpose of providing the requisite information, know how and data to the concerned agencies with the assistance of the applicants

Application was accordingly disposed of.

Limestone crushers (applicants), who held valid mining leases, were aggrieved of the orders passed by the Supreme Court by virtue of which crushing operations in the entirety of Margalla Hills had been stopped

Applicants contended that pursuant to the orders passed by the Supreme Court, the Government had taken steps to prevent them from conducting their lawful business despite the fact that they were in possession of valid mining leases; that the prohibition against stone crushing and Iimestone mining was limited to the areas of Margalla Hills National Park and buffer zones/prohibited area around it, whereas the applicants were operating their business beyond said areas; that the applicants had invested heavily at the site and employed a large number of workers with the legitimate expectation that they would continue with their activities till expiry of the term of their leases, and that preventing the applicants from conducting their business was violative of their legal rights

Validity

Impugned order of the Supreme Court was in line with a chain of orders passed by the Court in the interest of environmental protection and to protect Margalla Hills ('the Hills') from indiscriminate misuse by breaking the Hills and converting them into (stone) crush which not only created environmental pollution but also destroyed the landscape and natural beauty of the Hills irreparably and on permanent basis

After due consideration of all the said factors and to preserve and protect a gift of nature that had been bestowed upon the residents of the city, further operation of crushing and mining activities in Margalla Hills were directed to be stopped

No reason was found to recall, alter or modify the said order

Application was dismissed with the directions that unless there was any other legal impediment, the concerned authorities shall under their direct supervision and ensuring that no further damage was done to the area and the Margalla Hills allow removal of the machinery and equipment from the area owned by the applicants.

Applicants sought issuance of directions to the Federal Government to promulgate appropriate legislation at the national level to provide for all affairs relating to mountain delimitation, mountain development, mountain protection, preservation of mountain ecosystem of the country including but not limited to Margalla Hills in the interest of public at large

Held, that as far as the legislation was concerned, the applicants could take up the matter with the concerned authorities directly who may take appropriate steps in such regard in accordance with law, keeping in view the protection and preservation of mountain areas

Supreme Court observed that the applicants may also brief the office of Attorney General who shall use his office for the purpose of providing the requisite information, know how and data to the concerned agencies with the assistance of the applicants

Application was accordingly disposed of.

Applicants sought issuance of directions to the Federal Government to promulgate appropriate legislation at the national level to provide for all affairs relating to mountain delimitation, mountain development, mountain protection, preservation of mountain ecosystem of the country including but not limited to Margalla Hills in the interest of public at large

Held, that as far as the legislation was concerned, the applicants could take up the matter with the concerned authorities directly who may take appropriate steps in such regard in accordance with law, keeping in view the protection and preservation of mountain areas

Supreme Court observed that the applicants may also brief the office of Attorney General who shall use his office for the purpose of providing the requisite information, know how and data to the concerned agencies with the assistance of the applicants

Application was accordingly disposed of.

Limestone crushers (applicants), who held valid mining leases, were aggrieved of the orders passed by the Supreme Court by virtue of which crushing operations in the entirety of Margalla Hills had been stopped

Applicants contended that pursuant to the orders passed by the Supreme Court, the Government had taken steps to prevent them from conducting their lawful business despite the fact that they were in possession of valid mining leases; that the prohibition against stone crushing and Iimestone mining was limited to the areas of Margalla Hills National Park and buffer zones/prohibited area around it, whereas the applicants were operating their business beyond said areas; that the applicants had invested heavily at the site and employed a large number of workers with the legitimate expectation that they would continue with their activities till expiry of the term of their leases, and that preventing the applicants from conducting their business was violative of their legal rights

Validity

Impugned order of the Supreme Court was in line with a chain of orders passed by the Court in the interest of environmental protection and to protect Margalla Hills ('the Hills') from indiscriminate misuse by breaking the Hills and converting them into (stone) crush which not only created environmental pollution but also destroyed the landscape and natural beauty of the Hills irreparably and on permanent basis

After due consideration of all the said factors and to preserve and protect a gift of nature that had been bestowed upon the residents of the city, further operation of crushing and mining activities in Margalla Hills were directed to be stopped

No reason was found to recall, alter or modify the said order

Application was dismissed with the directions that unless there was any other legal impediment, the concerned authorities shall under their direct supervision and ensuring that no further damage was done to the area and the Margalla Hills allow removal of the machinery and equipment from the area owned by the applicants.

Under S. 12A of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, the Federal Government was required to constitute an Appellate Tribunal

Notification of constitution of the Appellate Tribunal had already been issued but Members of the same had not been appointed yet

Supreme Court directed that Federal Government shall appoint Members of the Appellate Tribunal within 10 days and make the same functional and provide all necessary infrastructure for its immediate working

Case was adjourned.

Whether it was in the public interest for the utility company to have the exclusive right to generate and distribute electricity

Observations and directions recorded by the Supreme Court to resolve the issue of excessive and unannounced load shedding.

Observations recorded by the Supreme Court regarding the dismal state of affairs of the operation, infrastructure and safety measures adopted by Pakistan Railways.

On the basis of the report of a Joint Investigation Team (JIT) and recommendations made therein, the Federal Government had placed the names of certain persons on the Exit Control List, which included the names of Provincial Chief Minister and Chairman of a political party

Counsel for the JIT conceded that the material against the said two persons may need re-examination to arrive at the correct conclusions

Names of said two persons may have been included in the Exit Control List without careful examination of the material available on record and the ramifications and consequences of such action for the said persons

Counsel for the Chief Minister had also apprised the court that it would cause serious problems in performance of his official functions in case his name was placed on the Exit Control List and his movements were restricted

Supreme Court directed that the names of the Provincial Chief Minister and Chairman of a political party for the time being be removed from the Exit Control List, however this would not prevent the National Accountability Bureau to probe their cases further and in case sufficient material was found connecting the said persons with cognizable offences, it shall not be precluded from making an appropriate request to the Federal Government to place their names on the Exit Control List or take any appropriate action provided by law.

During investigation several suspicious/fake bank accounts were uncovered showing transactions in excess of billions of rupees undertaken through various banks

Ostensible owners of such bank accounts denied opening or operating the accounts

Said accounts were opened by misusing National Identity Cards of different unsuspecting persons without their knowledge or consent, and huge sums of money running into billions of rupees had been deposited in the said accounts by or on behalf of persons who were under investigation or entities controlled by them, and this appeared to have been done in order to undertake illegal rotation, layering and movement of huge sums of money through the said accounts presumably for money laundering of tainted money obtained through kickbacks, bribes and other unlawful means and methods

Money laundering mechanism had been devised to legitimize funds whose source and legitimacy was highly questionable

Further, evidence of huge sums of money being remitted out of Pakistan, possibly through hawala/hundi transfers added an additional dimension to the investigation

Joint Investigation Team (JIT) formed on directions of the Supreme Court to probe into the matter had opined that prima facie cognizable offences had been made out involving corruption, corrupt practices and money laundering; that public sector institutions had been remiss negligent and heedless in following laws, rules and regulations and in some instances working in complete disregard of the same for years on end

Prima facie, a case for referring the report of the JIT, along with all relevant documents, evidence, statements and the recommendations of the JIT as well as various aspects of violation of the laws, rules and regulations, receipt of bribes, kickbacks, misappropriation of public funds, misuse of authority, criminal breach of trust and related matters to the National Accountability Bureau (NAB) for initiating proceedings under the National Accountability Ordinance, 1999 was made out

Supreme Court directed that the complete report of the JIT along with all material and evidence collected by the JIT shall be transmitted to NAB immediately; that all members of the JIT shall be associated with NAB for the purposes of assisting in any further probe, inquiry or investigation that NAB may consider necessary or appropriate in order to satisfy itself about the fulfillment of legal and procedural requirements and to complete the investigation in its entirety; that all cases which had not been concluded or in the opinion of the JIT required further probe shall remain within the jurisdiction of the JIT which shall continue its probe and investigation under the mandate granted by the Supreme Court and complete such investigation/probe within a reasonable time whereafter its report together with all material and evidence collected shall be transmitted to NAB without the need for any further orders from the Supreme Court for action in accordance with law; that funds deposited or circulated through the fake accounts had also been used for other unlawful activities, which did not strictly fall within the parameters of the mandate granted to JIT by the Supreme Court, however, considering that all such transactions, activities, acts and omissions constituted a part of or arose out of the same set of events and transactions which had a direct, indirect or incidental nexus to questionable funds and their movement, the acts of the JIT in probing these matters was endorsed and it would be deemed that the original mandate of the JIT as granted in the original order of the Supreme Court included within its scope and parameters a direction to probe such other activities, acts and or transactions.

History of family planning programmes initiated in Pakistan stated.

Recommendations provided by the Supreme Court and a Committee formed on its directions for managing the high population growth rate of Pakistan detailed.

Problems caused by Pakistan's alarmingly high population growth rate highlighted by the Supreme Court.

Overview of efforts made by countries such as Iran, Bangladesh, India and China for population control and planning and the role of their legislature, executive, judiciary, public functionaries and other stakeholders in this task recorded.

Record of present case revealed irregularities/illegalities in the appointment of "Q" as a Director and the Chairman of PTV and the fixation of his terms and conditions

Record further showed that there was nepotism and misuse of authority regarding "Q's" appointment as Director/MD PTV, therefore it was well within the powers of the Supreme Court to determine the validity of such appointment and fixation of salary etc.

Summaries were moved for relaxation of the upper age limit of 65 years for appointment of "Q" and for the approval of an immensely generous salary package for him

On account of complete lack of skill and experience of running a company, PTV, once a profitable institution, experienced a sharp decline both financially and in its reputation as a major player in the electronic media market

Pakistan Television Corporation ("PTV") was burdened with an exorbitant amount of expenses on account of inefficient and inept management

Business management skills and experience of running a big company were the basic requirements for an MD/Chairman to efficiently run a huge commercial enterprise, such as PTV, but nowhere from the record produced it was evident that the Federal Government considered such criteria while nominating "Q" as a Director of PTV

Post of Director, PTV did not fall within the definition of 'tenure post', therefore the conditions and procedure for appointment provided under Cl.(iii) of Sl. No.141 of the Civil Establishment Code (Esta Code) applied to it

Said conditions provided for publishing an advertisement to gauge the talent pool available for such post, filtering and then assessing the best candidates for the post in accordance with the criteria laid down in the Public Sector Companies (Corporate Governance) Rules, 2013

Admittedly, in the present case, there was no advertisement for appointment thus there was no consideration of any pool of potentially capable candidates from which "Q" was chosen

Disregard of the procedure laid down in Cl.(iii) of Sl. No.141 of the Civil Establishment Code (Esta Code) by the Federal Government in the present case was meant to benefit a predetermined candidate, "Q", whose appointment as Director, PTV was illegal as it was made in violation of the prescribed legal criteria and procedure

Meeting of Board of Directors for appointment of Chairman, PTV was held after the notification of appointment of "Q" as Chairman had already been issued and after he had assumed his charge as a Director and Chairman

Appointment of "Q" as Chairman, PTV, was, thus, also illegal

Furthermore remuneration and other benefits/allowances of "Q", being a Director who also held the additional charge of Chairman, had to be determined by the Directors of PTV in a duly constituted Board meeting, which was absent in the present case

Instead remuneration of Q was determined by the Ministry of Information, Broadcasting and National Heritage in a summary for the Prime Minister, which was seen and approved by the then Minister of Information

Said summary was subsequently approved by the Finance Division and thereafter was seen and approved by the Prime Minister through an approval signed by the then Secretary to the Prime Minister

Besides salary approved for "Q" was also far beyond the salary admissible to MP-I public office holders

Certain unlimited benefits/allowances granted to the office of the Chairman of PTV were not in line with the policy of the 'best interests of the public sector company'

Despite the fact that PTV had suffered colossal losses during the past few years, "Q" was awarded with a generous salary and exorbitant perks and privileges

Payment of salary and the benefits/allowances to "Q" was unlawful and unauthorized under the Public Sector Companies (Corporate Governance) Rules, 2013, and Pakistan Television Corporation's Memorandum and Article of Association, therefore, he was not entitled to such payments and could not retain the same

While holding office of Director and Chairman, PTV, "Q" also hosted a programme for his own self-promotion and personal aggrandizement by utilizing public money

Furthermore, "Q" breached his fiduciary duties when he hired his own son as a scriptwriter for a drama aired on PTV, used two instead of one official car and got maintenance and running allowances for a third personal car, used PTV funds to pay the membership and subscription fees of a club, incurred exorbitant expenses for renovation of various offices and for entertainment of guests inside and outside the office, and used public funds to attend a book exhibition completely unrelated to his duties as a Director and Chairman of PTV

Minister for Information, Minister for Finance and the then Secretary to the Prime Minister were all responsible for the appointment of "Q" as Director and Chairman of PTV, and for the illegal fixation of his terms and conditions of service

Supreme Court directed that on account of lack of fiduciary behavior, "Q" was ineligible to be appointed as a Director of any company [as per S. 153(g) of the Companies Act, 2017] from date of present judgment; that administrative actions taken by "Q" were beyond the scope of duties of a Chairman as provided in the Public Sector Companies (Corporate Governance) Rules, 2013, therefore all such orders passed by him during his tenure were declared to be illegal and void ab initio; that the loss caused to PTV (as calculated by the Supreme Court) due to the appointment of "Q" shall be recovered from "Q", the then Minister for Information, Minister for Finance and Secretary to the Prime Minister in the ratios 50% ("Q"), 20% (Minister for Information), 20% (Minister for Finance) and 10% (Secretary to the Prime Minister) respectively; that the Federal Government shall appoint a full-time MD of PTV (if the position was still vacant) after fulfilling all legal, procedural and codal formalities, strictly in accordance with law

Human rights case was disposed of accordingly.

Land/estate located within "rating areas" of the Punjab Urban Immoveable Property Tax Act, 1958, was exempted from the payment of land revenue and the revenue authorities

Patwaries, Kanungos, Tehsildars etc., were not authorized to enter mutations of alienation of such property etc., in their record

Revenue authorities were to refrain from any and all functions (to the extent that these were within the ambit of the (Punjab Urban Immoveable Property Tax Act, 1958) in the said areas particularly with regards to entering mutations, etc.

Supreme Court directed that all the urban areas to which the Punjab Land Revenue Act, 1967 did not apply shall be governed by the Transfer of Property Act, 1882 and the Registration Act, 1908 for the purposes of transfer of property or devolution of any rights in property; that no oral mutations for the purposes of the transfer of property shall be valid in law in such urban areas (which had become part of settled areas including municipalities, towns, etc.); that the patwaarkhanas or revenue records could only be maintained for record keeping and not for the transfer of property under any of the modes recognized by the Transfer of Property Act, 1882 or any other law prevalent at the time; and, that since the revenue authorities of the Province of Khyber Pakhtunkhwa (KPK) were already compliant with the said directions, the findings and directions of the present case shall also apply to the Provinces of Sindh and Balochistan as well as that of the Federal Capital.

Matter regarding non-registration of Christian marriages with the Union Councils of the Province of Punjab and the National Database and Registration Authority (NADRA)

Person authorized to register Christian marriages in Punjab province

Scope

Issue of non-registration of Christian marriages by the Union Councils and the subsequent non-issuance of computerised marriage certificates by NADRA, was because the Union Councils refused to register marriages solemnised by those persons mentioned in S.5(1) & (2) of the Christian Marriage Act, 1872 ('the Act'), as they, and the Human Rights & Minorities Affairs Department (HR&MA Department), were under the wrong impression that such persons required a license to do so

Christian Marriages Act, 1872 was clear in that individuals falling under S.5(1) & (2) of the Act were not required to apply for a formal license from the HR&MA Department to solemnise marriages because under canon law, ordination itself conferred an inherent power to solemnize marriages and this position was reflected in the Act, and it was only those individuals mentioned in S.5(3), (4) & (5) of the Act who required a license under the Act to solemnize marriages

Both sets of persons, i.e. those under S.5(1) & (2) of the Act on one hand and those under S.5(3), (4) & (5) on the other, were eventually authorised to solemnise marriages, the former of whom derived their power to solemnize marriages from ordination and the latter from the Act

Human Rights and Minorities Affairs Department (HR&MA Department) and/or the local government could not refuse to recognize certain classes of individuals who solemnised Christian marriages as this was disregarding the law

Additionally, the local government statutes of the other Provinces [Sindh, Khyber-Pakhtunkhwa and Balochistan] all contained similar provisions which empowered the local government to register Christian marriages

Supreme Court directed that HR&MA Department was to introduce a procedure whereby they received the names of all the persons who fell within the provisions of S.5(1) & (2) of the Act and were duly authorised to solemnise marriages after which the said Department shall prepare lists of such names based on the jurisdiction of the concerned local government; that such lists were to be forwarded to the concerned local government (including Union Councils) so that they were aware that such individuals were duly recognised as persons authorised to solemnise marriages according to the law and capable of registering such marriages with the local government without holding a formal license to that effect; that thereafter, the local government shall, in accordance with law, report/pass on such information of a Christian marriage to NADRA which shall issue the requisite computerised marriage certificate; and, that the Local Government and Community Development Department (LG&CD Department) and the HR&MA Department of the (Punjab) Provincial Government were to promulgate the necessary rules, etc. and make the necessary amendments in the by-laws, notifications, letters, etc. to reflect the legal position outlined in the present judgment.

Federal Investigation Agency ("FIA") which was investigating the fake/benami bank accounts contended that progress of investigation was slow on account of huge quantity of electronic data that required unravelling and interpretation; that in order to conduct effective, in-depth and incisive investigations to discover the truth, a broad based, multidimensional and technically skilled team of experts was required which at present was not available with FIA; that on account of alleged involvement of high profile and powerful political and business figures with the tainted transactions, who had powerful connections within the government, investigation was being seriously hampered and at times wilfully obstructed at every stage, and that the Supreme Court should, therefore, form a Joint Investigation Team ("JIT") to investigate the present matter

Held, that record produced prima facie showed that fake accounts had been opened in various Banks in the names of persons whose Computerized National Identity Cards (CNICs) had been misused without their consent or knowledge

Many such persons appeared before the Supreme Court and categorically stated that they had no knowledge of the accounts in question

Huge sums of money running into billions had been deposited in the said accounts by or on behalf of the persons who were under investigation or entities controlled by them

After being deposited in the said accounts, such funds had either been routed to other accounts which were traceable with some due diligence or withdrawn without any ostensible trail available

Evidence of large sum of foreign exchange being routed out of the country through hawala transfers by one of the arrested suspects had added an additional dimension to the investigation

Specialized knowledge of financial transactions and expertise in identifying and tracing movement of funds through banking channels and otherwise was required, in order to conduct a proper probe and investigation in the matter

Expertise in working of companies, banking transactions, electronic transactions and cyber activities relating to money transfers was needed along with knowledge of reporting requirements and monitoring regime put in place by the State Bank

Modes of discovering and tracing suspicious transactions and modes utilized for unlawful circulation and movement of money within the country and abroad were also required

Such specialized expertise was not presently available within the FIA

In the interest of justice and to ensure that national resources and national wealth which belong to people of the country was not looted, plundered or misappropriated, a high powered and highly skilled Joint Investigation Team ("JIT") was required to be set up

Supreme Court ordered constitution of a JIT, consisting of officials from the FIA, Regional Tax Office, State Bank, National Accountability Bureau, Securities and Exchange Commission of Pakistan and Inter-Services Intelligence, for the purpose of conducting a thorough, in-depth and incisive investigation and probe into the matter of fake Bank accounts to uncover the persons involved and collect all material evidence for the purpose of ensuring that in case an offence was made out, the persons involved therein are properly prosecuted

Supreme Court directed that the JIT shall have all powers relating to inquiries and investigations including those available in the Code of Criminal Procedure, 1898, the National Accountability Ordinance, 1999, the Federal Investigation Agency Act, 1974 and the Anti-Corruption Laws, etc; that all executive authorities or agencies in the country shall render assistance and provide support to the JIT in its working, if required; that the JIT shall submit periodic reports before the Supreme Court qua the progress made in the investigation on fortnightly basis; that the Additional Director General, FIA, who shall head the JIT may co-opt any other expert who may in his opinion be necessary to complete the investigation in an effective and timely manner; that the first report of the JIT shall be filed within a period of 15 days; that in order to ensure that the investigation was conducted in a professional, transparent and effective manner, neither the JIT nor FIA nor any of the members of the JIT shall issue press releases or provide information relating to the investigation to the media; that owing to the apprehensions about the safety of the investigators, the Pakistan Rangers shall provide adequate and effective security to the investigators and to ensure that they performed their functions without any fear to their life or liberty or that of their families, and that such protection shall also upon request be provided to the witnesses.

Exercise of jurisdiction under Art. 184(3) of the Constitution by the Supreme Court on newspaper clippings regarding unprecedented load-shedding in the country and increase in electricity prices

Electricity tariff

Subsidy on electricity tariff taken-away by the Government

Constitutionality

Subsidy that was afforded to consumers was taken-away under S. 31 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997

Although the Government had the power to take away subsidies, however, such power must be exercised in consonance with the command of Art. 38 of the Constitution

Article 38 of the Constitution commanded the State to act for the welfare of its citizens

Large part of population in the country was living below the poverty line, therefore, it was difficult to comprehend as to how a raised electricity tariff which did not afford any subsidy, was in the benefit of the people

Provision of electricity was a substantive part of the right to life

Due to load-shedding and high electricity tariffs, government policy in regard to taking away subsidy was violative of Art.9 of the Constitution

Supreme Court observed that subsidy already being given to consumers should not have been withdrawn; that although subsidy was not the right of consumers, the Government might consider in near future to increase the rate of subsidy by extending its benefits to consumers who were not in a position to pay high charges of the electricity.

Exercise of jurisdiction under Art. 184(3) of the Constitution by the Supreme Court on news paper clippings regarding unprecedented load-shedding in the country and increase in electricity prices

Gap between demand and supply of electricity

Electricity theft

Non-availability of Residual Fuel Oil (RFO) and gas

Power plants performing below-capacity

Non-preference of hydro-power

Mismanagement

Factors responsible for electricity short-fall in the country and solution therefor stated.

Exercise of Jurisdiction under Art. 184(3) of the Constitution by the Supreme Court on news paper clippings regarding unprecedented load-shedding in the country and increase in electricity prices

Validity

Right to life

Scope

Electricity and gas load-shedding

Provision of electricity came under the guarantee of right to life enshrined in Art. 9 of the Constitution

Any country without energy was a country paralysed

Pakistan was constantly faced with massive load-shedding, particularly of electricity in the summer season and of gas in the winter season

Thriving industries of the country were presently reduced to a state of non-functionality

Everyday life of the common man was hampered by massive load-shedding

Economic sector could not be expected to run without the provision of energy

Present matter was thus one of public importance concerning the fundamental rights of the people

Supreme Court had jurisdiction to adjudicate on the provision of energy to the people

Human rights case was held to be maintainable accordingly.

Exercise of jurisdiction under Art. 184(3) of the Constitution by the Supreme Court on news paper clippings regarding unprecedented load-shedding in the country and increase in electricity prices

Concessions and subsidies granted by State

Scope

Captive Power Plants supplied gas at subsidized rates

Propriety

Captive Power Plants received gas at subsidized rates whereas they sold electricity at marked-up prices to the National Transmission and Despatch Company (NTDC)

Such electricity was thus more expensive than normal rates and was often used to give an uninterrupted supply of electricity to affluent cooperative societies

Concessions and subsidies should not ordinarily be withdrawn as envisioned in Art.38 of the Constitution, however, concessions and subsidies must be focused on what was most important to the downtrodden classes

Concessions and subsidies in case of Captive Power Plants were not being made with the interest of the common man as the goal

Such subsidies were also against the gas allocation policy of the Government

Supreme Court observed that the Government must revise its policy in relation to Captive Power Plants and without any justification such plants could not be supplied gas to produce electricity, as they supplied electricity at a much higher rate to National Transmission and Despatch Company Limited (NTDC)

Supreme Court directed that supply of gas to Captive Power Plants should be revised to a lower priority and not at a subsidized rate

Human rights case was disposed of accordingly.

Exercise of jurisdiction under Art. 184(3) of the Constitution by the Supreme Court on news paper clippings regarding unprecedented load-shedding in the country and increase in electricity prices

Lack of availability of gas for production of electricity

Gas load-management policy of the Government

Priority list of Government regarding supply of gas to different sectors

Fertilizer companies were supplied gas at subsidized rates and in priority to some other sectors

Plea that major reason for lack of availability of gas for production of electricity was that bulk of the gas was being supplied to fertilizer companies at subsidized rates

Plea on behalf of fertilizer companies that by providing cheaper gas to fertilizer companies, such companies were able to price their products independently of international market forces so as to make fertilizer available at cheaper rates to local farmers; that scientifically it was proven that gas was utilised with greater efficiency in the production of urea

Validity

Court exercised judicial restraint in matters of Government policy except where fundamental rights were violated

Government should follow the priority list for allocation of gas and provide the fertilizer sector with gas at the No. 3 priority instead of supplying more gas to the Compressed Natural Gas (CNG) sector, which was clearly against the policy set out by the Government itself

Providing gas to power generation sector at No. 2 priority was necessary due to the acute load-shedding problem currently faced by the country

Supreme Court observed that supply of gas at subsidized rates to fertilizer companies may continue but at the same time there must be a policy to ensure that production of fertilizers like urea etc. was sold in the market to farmers at a subsidized rate

Human rights case was disposed of accordingly.

Exercise of jurisdiction under Art. 184(3) of the Constitution by the Supreme Court on news paper clippings regarding unprecedented load-shedding in the country and increase in electricity prices

Supreme Court observed that load-shedding of electricity in the country was manageable subject to dedicated and committed efforts to ensure the maximum possible generation of electricity which was sufficient to cater to the requirement of all categories of stakeholders/consumers; that competent authority must concentrate on efforts to minimise suffering of consumers by endeavouring to provide uninterrupted supply of electricity; that if, however, load-shedding was the only way out, it must be administered without having distinction between rural and urban areas as well as domestic, commercial and industrial sectors; that a formula must be put in place to ensure the distribution of electricity on an equitable basis; that it was responsibility of National Electric Power Regulatory Authority (NEPRA) and Pakistan Electric Power Company Limited (PEPCO) to reduce prices of electricity while ensuring that electricity was generated through less-costing hydel power

Supreme Court directed that the competent authority should take steps to control all kinds of losses after supply of generation like line losses, theft, etc., by using modern devices like introducing smart meters and supplying electricity only to consumers, who were ready and willing to make payment; that efforts should be made to persuade all kinds of unauthorized consumers to make payments of bills, failing which action under relevant laws/rules should be taken against them; that a policy should be announced by the National Transmission and Despatch Company Limited (NTDC) and Distribution Companies (DISCOS) under which the supply of electricity to consumers, who believed in law and made payment in time, was encouraged and supply to unauthorized consumers was discouraged; that preference must be given to generate electricity by using coal and gas, and unless there was no compulsion, electricity should not be generated from Residual Fuel Oil (RFO) as it was costly, and that renewable sources for generating electricity including wind and solar power must be utilized

Human rights case was disposed of accordingly.

Exercise of jurisdiction under Art. 184(3) of the Constitution by the Supreme Court on newspaper clippings regarding unprecedented load-shedding in the country and increase in electricity prices

Price of petroleum products, fixing of

Increase in domestic price of petrol despite steady decrease in petrol prices in the international market

Constitutionality

No policy justification existed for such an increase

Prices of petrol, diesel, petroleum products, etc. were being fixed arbitrarily by Oil and Gas Regulatory Authority without taking into consideration the rate in the international market

Petrol prices should be set in consonance with the international market

Petrol and diesel were of imperative need to the economy and to the populace

Article 38 of the Constitution directed the State to act for the welfare of the people

Fixing high petrol/diesel rates without justification was clearly not in the welfare of the people

Supreme Court directed that in future all necessary steps should be taken in such behalf to fix prices strictly in accordance with the prevailing rates in the international market.

Additional sales tax of 9% imposed on Compressed Natural Gas (CNG) by way of S. 3(8) of the Sales Tax Act, 1990 (added by the Finance Act, 2013)

Legality

Additional sales tax of 9%, which was not prescribed under S.3(1) of the Sales Tax, 1990, was being recovered on CNG

Sale price of CNG was increased by virtue of the added 9% sales tax

Held, only a charging section could be used to impute taxes

Section 3(1) of the Sales Tax Act, 1990 was a charging section, and under S. 2(46) no other section of the Sales Tax Act, 1990 could be utilised to charge tax other than a charging section

Section 3(8) of the Sales Tax Act, 1990 (added by the Finance Act, 2013) was thus contradictory with respect to S. 3(1) of the Sales Tax Act, 1990

Levy of extra tax at the rate of 9% could not be charged except the rate which had been fixed under S.3(1) of the Sales Tax Act, 1990

Supreme Court declared S.3(8) of Sales Tax Act, 1990 as ultra vires of S.3(1) of the same Act and struck it down

Supreme Court directed that Oil and Gas Regulatory Authority (OGRA) should issue a revised notification to recover only 16% or 17% sales tax on CNG as early as possible but not beyond the period of seven days; that extra sales tax (recovered on CNG) should be deposited by Federal Board of Revenue within three months in the manner as directed in the judgment of Iqbal Zafar Jhagra v. Federation of Pakistan (2013 SCMR 1337)

Human rights case was disposed of accordingly.

Exercise of jurisdiction under Art. 184(3) of the Constitution by the Supreme Court on news paper clippings regarding unprecedented load-shedding in the country and increase in electricity prices

Gap between demand and supply of electricity

Electricity theft

Non-availability of Residual Fuel Oil (RFO) and gas

Power plants performing below-capacity

Non-preference of hydro-power

Mismanagement

Factors responsible for electricity short-fall in the country and solution therefor stated.

Exercise of Jurisdiction under Art. 184(3) of the Constitution by the Supreme Court on news paper clippings regarding unprecedented load-shedding in the country and increase in electricity prices

Validity

Right to life

Scope

Electricity and gas load-shedding

Provision of electricity came under the guarantee of right to life enshrined in Art. 9 of the Constitution

Any country without energy was a country paralysed

Pakistan was constantly faced with massive load-shedding, particularly of electricity in the summer season and of gas in the winter season

Thriving industries of the country were presently reduced to a state of non-functionality

Every day life of the common man was hampered by massive load-shedding

Economic sector could not be expected to run without the provision of energy

Present matter was thus one of public importance concerning the fundamental rights of the people

Supreme Court had jurisdiction to adjudicate on the provision of energy to the people

Human rights case was held to be maintainable accordingly.

Exercise of jurisdiction under Art. 184(3) of the Constitution by the Supreme Court on news paper clippings regarding unprecedented load-shedding in the country and increase in electricity prices

Concessions and subsidies granted by State

Scope

Captive Power Plants supplied gas at subsidized rates

Propriety

Captive Power Plants received gas at subsidized rates whereas they sold electricity at marked-up prices to the National Transmission and Despatch Company (NTDC)

Such electricity was thus more expensive than normal rates and was often used to give an uninterrupted supply of electricity to affluent cooperative societies

Concessions and subsidies should not ordinarily be withdrawn as envisioned in Art.38 of the Constitution, however, concessions and subsidies must be focused on what was most important to the downtrodden classes

Concessions and subsidies in case of Captive Power Plants were not being made with the interest of the common man as the goal

Such subsidies were also against the gas allocation policy of the Government

Supreme Court observed that the Government must revise its policy in relation to Captive Power Plants and without any justification such plants could not be supplied gas to produce electricity, as they supplied electricity at a much higher rate to National Transmission and Despatch Company Limited (NTDC)

Supreme Court directed that supply of gas to Captive Power Plants should be revised to a lower priority and not at a subsidized rate

Human rights case was disposed of accordingly.

Exercise of jurisdiction under Art. 184(3) of the Constitution by the Supreme Court on news paper clippings regarding unprecedented load-shedding in the country and increase in electricity prices

Lack of availability of gas for production of electricity

Gas load-management policy of the Government

Priority list of Government regarding supply of gas to different sectors

Fertilizer companies were supplied gas at subsidized rates and in priority to some other sectors

Plea that major reason for lack of availability of gas for production of electricity was that bulk of the gas was being supplied to fertilizer companies at subsidized rates

Plea on behalf of fertilizer companies that by providing cheaper gas to fertilizer companies, such companies were able to price their products independently of international market forces so as to make fertilizer available at cheaper rates to local farmers; that scientifically it was proven that gas was utilised with greater efficiency in the production of urea

Validity

Court exercised judicial restraint in matters of Government policy except where fundamental rights were violated

Government should follow the priority list for allocation of gas and provide the fertilizer sector with gas at the No. 3 priority instead of supplying more gas to the Compressed Natural Gas (CNG) sector, which was clearly against the policy set out by the Government itself

Providing gas to power generation sector at No. 2 priority was necessary due to the acute load-shedding problem currently faced by the country

Supreme Court observed that supply of gas at subsidized rates to fertilizer companies may continue but at the same time there must be a policy to ensure that production of fertilizers like urea etc. was sold in the market to farmers at a subsidized rate

Human rights case was disposed of accordingly.

Exercise of jurisdiction under Art. 184(3) of the Constitution by the Supreme Court on news paper clippings regarding unprecedented load-shedding in the country and increase in electricity prices

Supreme Court observed that load-shedding of electricity in the country was manageable subject to dedicated and committed efforts to ensure the maximum possible generation of electricity which was sufficient to cater to the requirement of all categories of stakeholders/consumers; that competent authority must concentrate on efforts to minimise suffering of consumers by endeavouring to provide uninterrupted supply of electricity; that if, however, load-shedding was the only way out, it must be administered without having distinction between rural and urban areas as well as domestic, commercial and industrial sectors; that a formula must be put in place to ensure the distribution of electricity on an equitable basis; that it was responsibility of National Electric Power Regulatory Authority (NEPRA) and Pakistan Electric Power Company Limited (PEPCO) to reduce prices of electricity while ensuring that electricity was generated through less-costing hydel power

Supreme Court directed that the competent authority should take steps to control all kinds of losses after supply of generation like line losses, theft, etc., by using modern devices like introducing smart meters and supplying electricity only to consumers, who were ready and willing to make payment; that efforts should be made to persuade all kinds of unauthorized consumers to make payments of bills, failing which action under relevant laws/rules should be taken against them; that a policy should be announced by the National Transmission and Despatch Company Limited (NTDC) and distribution companies (DISCOS) under which the supply of electricity to consumers, who believed in law and made payment in time, was encouraged and supply to unauthorized consumers was discouraged; that preference must be given to generate electricity by using coal and gas, and unless there was no compulsion, electricity should not be generated from Residual Fuel Oil (RFO) as it was costly, and that renewable sources for generating electricity including wind and solar power must be utilized

Human rights case was disposed of accordingly.

Exercise of jurisdiction under Art. 184(3) of the Constitution by the Supreme Court on news paper clippings regarding unprecedented load-shedding in the country and increase in electricity prices

Price of petroleum products, fixing of

Increase in domestic price of petrol despite steady decrease in petrol prices in the international market

Constitutionality

No policy justification existed for such an increase

Prices of petrol, diesel, petroleum products, etc. were being fixed arbitrarily by Oil and Gas Regulatory Authority without taking into consideration the rate in the international market

Petrol prices should be set in consonance with the international market

Petrol and diesel were of imperative need to the economy and to the populace

Article 38 of the Constitution directed the State to act for the welfare of the people

Fixing high petrol/diesel rates without justification was clearly not in the welfare of the people

Supreme Court directed that in future all necessary steps should be taken in such behalf to fix prices strictly in accordance with the prevailing rates in the international market.

Exercise of jurisdiction by the Supreme Court under Art. 184(3) of the Constitution in regard to persons confined at internment centers who were allegedly taken away by Army authorities

Enforced disappearance of persons

Crime against humanity

Scope

Illegal detention of persons

Letter issued by superintendent of concerned internment center prima facie showed that 35 persons were taken away from the internment center by Army authorities, therefore such persons were in the custody of Army

Army authorities had no authority to retain custody of such persons

Missing persons in question were confined in internment center under Actions (in Aid of Civil Power) Regulation, 2011, which was applicable to Provincially Administered Tribal Areas

Under the said Regulation an internee/detainee came under the control of civil administration, but the regulation was silent as to how Army authorities were authorized to remove internees without seeking permission of competent authority

Except Actions (in Aid of Civil Power) Regulation, 2011, applicable to Provincially and Federally Administered Tribal Areas, there was no law or authority available to any of the agencies including Inter-Services Intelligence (ISI), Military Intelligence (MI), Intelligence Bureau (IB), Frontier Constabulary (FC), Rangers or police to detain persons in question unauthorizedly

No law enforcing agency could forcibly detain a person without showing his whereabouts to his relatives for a long period, as had happened in the present case

Article 10 of the Constitution provided direct protection to people from enforced disappearance

Enforced disappearance of persons was considered to be a crime against humanity all over the world in view of Art. 1 of United Nations General Assembly Declaration on the Protection of All Persons from Enforced Disappearances, 1992, and Art. 5 of International Convention for the Protection of All Persons from Enforced Disappearance (ICCPED), 2006

Supreme Court declared that missing persons in question had been removed by Army authorities from internment centers in Provincially Administered Tribal Area, and whereabouts of such persons would only be known to Army authorities; that Army had no authority to detain missing persons in question illegally, and that there must be some legislation in the country to control unauthorized detention of persons

Supreme Court directed that Chief Executive of Federal Government and concerned Provincial Chief Executive and Governor should ensure recovery of missing persons within seven days, and persons responsible for their disappearance should be dealt with strictly in accordance with law; that the Federal Government through the Chief Executive must ensure that in future no enforced disappearances took place

Human rights case was disposed of accordingly.

Supreme Court had ample powers and jurisdiction to adjudicate upon a case if the same fell within the ambit of inquisitorial proceedings.