Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Official Citation: 2025 CLD 813
Court / Jurisdiction: Lahore High Court
Year of Decision: 2025
Decision Date: 2025-06-27
Parties: Sardar Amber Maqood vs Federation of Pakistan, Privatisation Commission, PIACL etc
Ruling Summary: This decision was rendered by the Lahore High Court on 2025-06-27, officially reported as 2025 CLD 813. In this matter between Sardar Amber Maqood and Federation of Pakistan, Privatisation Commission, PIACL etc, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2025 CLD 813
Court Name: Lahore High Court Judge(s): Jawad Hassan Title:Sardar Amber Maqood vs Federation of Pakistan, Privatisation
Commission, PIACL etc Case No.: Writ Petition No.2010 of 2024 Date of Judgment:2025-06-27 Reported As: 2025 LHC 5392 Result: Petition Dismissed Judgment
JAWAD HASSAN, J. This judgment will examine Privatisation Policy, Privatisation Programme and Privatisation Process in the light of certain provisions of Privatization Commission Ordinance, 2000 (the "Ordinance") and the Privatization Commission (Amendment) Ordinance, 2023 (the "Amended Ordinance") alongwith provisions of The Privatization (Modes and Procedure) Rules, 2001 (the "Rules 2001"), Privatisation Commission (Government to Government Agreement Mode-Manner and Procedure) Rules, 2023 (the "Rules 2023"), Privatisation Commission (Valuation and Property) Rules 2007 (the "Rules 2007"), Privatisation Commission (Hiring of Financial Advisers) Regulations, 2018 (the "Regulations 2018"), Privatisation Commission (Hiring of Valuers) Regulations, 2001 (the "Regulations 2001"), The Privatisation Commission (Confidentiality and Secrecy of Documents) Regulations 2003 (the "Regulations of 2003") and The Pakistan International Airlines Corporation (Conversion) Act, 2016 (the "Conversion Act of 2016") as through the petition in hand, a challenge is made to the procedure provided under Section 23 and 24 of the "Ordinance" qua privatization of Pakistan International Airlines Corporation Limited (the "PIACL"). I. OVERTURE OF THE CASE 2. This petition, pro bono publico, was filed by the Petitioner, a practicing advocate, seeking directions to the Secretary of the Privatization Commission (the " Privatisation Commission")/ Respondent No.2, Secretary Aviation, Government of Pakistan (the "Respondent No.3") and Pakistan International Airlines Corporation Limited through its Chief Executive (the "Respondent No.4") to ensure strict compliance of statutory requirement envisaged under Section 23 and 24 of
---
## Page 2
the "Ordinance". During the pendency of this writ petition, the Petitioner also filed C.M.No.01 of 2025 for summoning of record qua evaluation of the "PIACL" assets under Article 19A of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"). Though notice, in the above said application, was issued to the other side yet the same remained pending which is now being decided today through this judgment. II. PETITIONER'S SUBMISSIONS 3. Learned counsel for the Petitioner inter alia argued that neither the "Privatisation Commission" published notice of intent to privatize the "PIACL" as per mandate of Section 23 of the "Ordinance" nor its assets were properly evaluated in terms of Section 24 of the "Ordinance"; that the "Privatisation Commission" is legally bound to conduct the process of privatisation of the "PIACL" in a transparent and fair manner; that the Respondents have failed to provide complete evaluation reports alongwith details of properties and complete assets of the "PIACL" and non-disclosure of the same, renders the entire process arbitrary and unlawful; that non-provision of such details constitute an essential part of assets of the "PIACL" being privatized; that the principle of transparency requires disclosure of complete evaluation record of the "PIACL" domestic as well as international, failure to do so constitutes a violation of the fundamental right to information guaranteed under Article 19-A of the "Constitution". He has relied on "ARSHAD WAHEED versus PROVINCE OF PUNJAB and others" (PLD 2010 Lahore 510). III. SUBMISSIONS OF FEDERATION/RESPONDENT NO.1. 4. Barrister Zain Mansoor, Assistant Attorney General submitted that this petition is liable to be dismissed on the ground that it does not disclose any action or violation of law and that it was also not properly documented. IV. SUBMISSION ON BEHALF OF PRIVATIZATION COMMISSION (RESPONDENT NO.2) 5. Barrister Sardar Kalim Ilyas, ASC inter alia submitted that no violation of any law/rules have been committed rather all the necessary requirements have been fulfilled; that the requirement of Section 23 of the "Ordinance" was fully met with by the "Privatisation Commission" as intent of "PIACL" privatization was given by the "Privatisation Commission" in consultation with the Federal Government vide advertisement dated 02.04.2024 in three international dailies i.e. "Financial Times", "China Daily" and "The Wall Street Journal" and four national newspapers (English and Urdu) i.e. "Business Recorder", "Dawn", "Daily Express" and "Daily Jang" (Annex-A to C); that this was also published on official website of PPRA and same was re-advertised on 15.04.2024, extension whereof was also advertised on 03.05.2024; that Financial Advisor Ernst & Young Consulting LCC, Dubai was appointed by the "Privatisation Commission" strictly as per Section 24 of the "Ordinance" for evaluation of "PIACL" local and international assets and such evaluation is still under process and same will be submitted to the "Privatisation Commission" for review and necessary approval. In order to strengthen aforesaid submission, he has referred to Section 3 of the "Rules 2001", Rule 4 of the "Rules 2007" and Regulation 3 of the "Regulations 2018". 6. Barrister Minaal Tariq has adopted the arguments of Sardar Kalim Ilyas, ASC and argued that the Petitioner has wrongly cited the case law reported in "Dr. AKHAR HASSAN KHAN versus FEDERATION OF PAKISTAN etc" (2012 SCMR 455) wherein the powers of the executive to enter into contracts and discouraged the use of judicial review in the policy making domain of the executive have specifically been upheld. Barrister Minaal Tariq further argued that this petition is devoid of merit and liable to be dismissed, as the privatisation process of the "PIACL", which forms its basis, has concluded with the rejection of bid and consequently, the privatisation proceedings stand annulled, rendering the Petitioner's cause of action as infructuous. She added that the Supreme Court of Pakistan in various judgments has held that a public interest litigation must transparently establish bona fides and should not be driven by private or vested interests, but must evidently seek to advance public welfare and interest. She has placed reliance on "PREMIER BATTERY
---
## Page 3
INDUSTRIES versus KARACHI WATER AND SEWERAGE BOARD" (2018 SCMR 365), "MUHAMMAD SHAFIQUE KHAN SWATI versus FEDERATION OF PAKISTAN etc" (2015 SCMR 851), "ECHO WEST INTERNATIONAL versus GOVERNMENT OF PUNJAB etc" (PLD 2009 SC 406) and "MOULVI IQBAL HAIDER versus CAPITAL DEVELOPMENT AUTHORITY etc" (PLD 2006 SC 394). While relying on the principles enunciated in aforesaid judgments, Barrister Minaal Tariq stated that this petition is liable to be dismissed for lack of bona fides and for its apparent purpose to impede the privatisation process of "PIACL" because this petition does not qualify as public interest litigation, as opposing the privatisation of a loss-making entity, in line with the Federal Government's economic policy aimed at economic revival and improving the investment climate, does not advance public interest or welfare. She further added that the privatisation of "PIACL" is being carried out under the constitutional mandate enshrined in Article 173 of the "Constitution". While making reference to Pakistan International Airlines Corporation (Conversion) Act, 2016 (the "Act of 2016"), she emphasized that the "PIACL" was transformed from a statutory corporation into a public limited company, wherein approximately 96% of the shares are held by the Federal Government and under Article 173 of the "Constitution", the executive authority of the Federation encompasses the power to enter into contracts and dispose of government property, which includes State-Owned Enterprises such as "PIACL". V. SUBMISSIONS ON BEHALF OF SECRETARY AVIATION (RESPONDENT NO.3) 7. Barrister Haseeb Shakoor Piracha, Additional Attorney General objected to maintainability of this petition on the grounds that the Petitioner is not an aggrieved person and that the Secretary Aviation is neither proper nor necessary party as the process of privatization of "PIACL" is being undertaken by the "Privatisation Commission" under the "Act of 2016" and the "Ordinance". VI. SUBMISSION OF PAKISTAN INTERNATIONAL AIRLINES CORPORATION LIMITED (RESPONDENTS NO.4&5) 8. Barrister Pirzada M. Aurang Zaib, Advocate and Haroon Rasheed Abbasi, DGM, Legal Services/Attorney Pakistan International Airlines objected to maintainability of this petition and stated that the Petitioner has neither locus standi to file this petition nor her grievance relates to process of privatization as this process is being undertaken by the "Privatisation Commission" under the "Ordinance" and the Rules framed thereunder. They further stated that the process of privatisation is undertaken by the "Privatisation Commission" and all necessary legal formalities under the "Ordinance", the Rules framed thereunder and the "Conversion Act of 2016" have been duly complied with. 9. Haroon Rasheed Abbasi, DGM Legal, during the course of arguments, informed the Court that the bidding process to privatise the "PIACL" has been cancelled and consequently, the petition in hand has become infructuous. VII. REPORT OF COMPETITION COMMISSION OF PAKISTAN. 10. As per report submitted by the "CCP", a premerger application under Section 11 of the Competition Act, 2010 (the "Act of 2010") read with the Merger Control Regulations, 2016, was filed on 08.04.2024 by the "PIACL" and PIA Holding Company Limited (Holdco) in relation to the acquisition of 100% shareholding of the "PIACL" by Holdco pursuant to a Scheme of Arrangement approved by the Federal Government as part of the privatisation process. Holdco, a government- owned company incorporated in March 2024, was created to succeed to specified assets, liabilities and subsidiaries of the "PIACL", whereas "PIACL" continues as a listed company engaged in aviation and allied services. The Scheme envisaged transfer of non-core assets and liabilities to Holdco, cancellation of existing shareholders' stakes, and their replacement with equivalent shares in Holdco, with a view to enabling subsequent divestment of equity through induction of a strategic investor. Upon competition assessme nt, the Competition Commission defined the relevant market
---
## Page 4
as "Real Estate" in Pakistan, noting that only non-core real estate assets were being transferred, which represented an insignificant portion of the market, thereby raising no presumption of dominance under the Act. Consequently, the Commission held that the proposed transaction raised no competition concerns and authorised it under Section 31(1)(d)(i) of the Act. VIII. UPSUM OF THE PRIVATIZATION OF THE "PIACL". 10. It has been informed by Barrister Sardar Kalim Ilyas, ASC that the privatisation of the "PIACL" has been a subject of national discourse spanning several decades. Initially having established as a statutory corporation, PIA served as the national flag carrier of Pakistan and played a pivotal role in the country's aviation industry. With the passage of time, due to financial mismanagement, mounting operational losses, and increasing debt, the performance of PIA significantly deteriorated, prompting successive governments to consider restructuring and privatisation as viable remedies. In 2016, the Parliament enacted the PIAC Conversion Act, transforming the entity from a statutory corporation into a public limited company to facilitate its eventual privatisation. Despite several policy declarations and attempts, the process faced considerable delays due to political, economic, and legal challenges. The recent government initiatives have revived the privatisation agenda, with the objective of improving efficiency, reducing fiscal burden, and attracting private sector investment through the transparent sale of government-held shares in PIACL. The primary objective of this conversion was to enable restructuring and potential privatisation to improve operational efficiency, financial viability, and to reduce the burden on the national exchequer. IX. NUB OF THE MATTER 11. The nub of the matter in this case is the determination as to whether the process of privatisation undertaken by the "Privatisation Commission" is in conformity with Section 23 and 24 of the "Ordinance", the Rules and the Regulations framed thereunder or whether the same is tainted with arbitrariness, procedural impropriety or lack of lawful authority. The controversy thus essentially calls for judicial scrutiny of the legality, propriety and fairness of the privatisation of the "PIACL" within the framework of the governing enactments. X. ROLE OF COMPETITION COMMISSION OF PAKISTAN. 12. Before discussing the issue raised in this petition by the Petitioner regarding alleged non- compliance of mandatory requirements in terms of Section 23 and 24 of the "Ordinance" alongwith the Rules and Regulations made thereunder, it is pertinent to discuss the role of the Competition Commission in this regard. This Court has already strengthened the role of Competition Commission of Pakistan as a 'Regulator' in the case of "DILSONS (PRIVATE) LIMITED and others versus SECURITY & EXCHANGE COMMISSION OF PAKISTAN and another" (2021 CLD 1317) regarding its importance to strengthen the commercial arrangements by holding as under: "21. It is noted that the CCP was established under Section 12 of the Competition Act, with the intent to ensure free competition and economic efficiency and to carry out the administrative function of the executive to promote consumer welfare with the sole objective to regulate anti-competitive behaviour. Purpose of the CCP is to ensure fair competition by regulating the prohibitions set out in Chapter-II of the Competition Act. Therefore, it has a regulatory objective to promote free competition and prevent anti-competitive behaviour and prescribe enforcement mechanisms to ensure compliance. Even for mergers, the CCP is concerned with the effect of the merger on competition as to whether it would lessen competition by creating or strengthening a dominant position in the relevant market. It is a regulatory authority with administrative functions which included giving advice, creating awareness, impart training, review of policy frameworks to foster competition as well as decision making to enforce the regulatory policy. 22. Section 11 of the Competition Act contains detailed provisions concerning the approval of mergers by the CCP. Under Section 11(1) of the Competition Act, no undertaking can enter into a
---
## Page 5
merger which substantially lessens competition by creating or strengthening a dominant position in the relevant market. Similarly, under Section 11(2) of the Competition Act, where undertakings intend to merge whole or part of their business and meet the pre-merger notification thresholds stipulated in the Regulations, such undertakings are required to apply for clearance from the CCP of the intended merger. Under Section 11(3) of the Competition Act, the undertakings are required to submit a pre-merger application to the CCP as soon as they agree in principle or sign a non- binding letter of intent to proceed with the merger. Under Section 11(4) of the Competition Act, the undertakings cannot proceed with the merger until they have received clearance from CCP. On the other hand, under Section 11(5) of the Competition Act, the CCP is required to decide on whether the intended merger meets the threshold and presumption of dominance and is also required to make such order within thirty (30) days of receipt of the application". Moreover, in this case, as per report submitted by the Competition Commission of Pakistan, the scheme of merger filed by the "PICAC" and by Holdoc was allowed. Based on the comprehensive review of the submitted documents, the role of the Competition Commission of Pakistan (the "CCP") in the privatisation of the "PIACL" is both pivotal and exemplary, reflecting its statutory mandate as an independent, quasi-judicial regulatory authority established under Section 3 of the "Act of 2010". The CCP's involvement in the acquisition of 100% shareholding of the "PIACL" by PIA Holding Company Limited (Holdco) underscores its critical function in scrutinizing mergers and acquisitions to prevent any appreciable adverse effect on competition within relevant markets. In this specific transaction, the "Privatisation Commission" diligently applied its powers under Section 11 of the "Act of 2010" and the Merger Regulations of 2016 to conduct a Phase-I competition assessm ent, meticulously examining the nature of the undertakings, the structure of the Scheme of Arrangement, and the transfer of non-core assets, primarily real estate to ensure that the reorganization did not alter market dynamics or confer undue market power. By defining the relevant product market as "Real Estate" and the geographic market as "Pakistan," and concluding that the transferred assets constituted a statistically insignificant portion of the market, the "CCP" authoritatively determined that the transaction raised no competition concerns, thereby authorizing it under Section 31(1)(d)(i) of the "Act of 2010". This decision not only facilitated the government's privatisation agenda by enabling a streamlined, legally compliant restructuring but also demonstrated the Privatisation Commission's commitment to preserving competitive integrity, protecting consumer welfare, and fostering an environment conducive to investment and economic efficiency, all while upholding its broader responsibilities to educate market participants and enforce compliance with competition principles in alignment with the legislative framework. XI. DETERMINATION 13. Pertinently, though the Petitioner has filed this pro bono petition challenging the privatisation of the "PIACL", yet without mentioning any ground in this petition except alleged violation of Sections 23 and 24 of the "Ordinance" and violation of fundamental rights. Thus, this Court will determine the fate of such litigation under the strict mandate of Article 199 of the "Constitution". Public Interest Litigation is an extraordinary jurisdiction enabling this Court under Article 199 of the Constitution to address questions of public importance involving the enforcement of fundamental rights of the public at large, particularly where disadvantaged or unorganized segments of society are unable to approach the Court themselves. Such jurisdiction has been exercised in matters of environment, human rights, detention, labour, prisoners, health, education, and transparency in governance. However, it is settled by now that Public Interest Litigation cannot be misused for private motives or publicity and the Petitioner must establish bona fide intent supported by credible material to justify judicial intervention. Before proceeding further, it would be advantageous to reproduce the prayer made by the Petitioner which reads as:
---
## Page 6
"It is reverentially prayed that the Privatisation Commission (Respondents) may be restrained from the proceedings of privatization of PIA, its National & International assets till constitution of Privatization Appellate Tribunal. It is further prayed that Privatization Commission may be restricted to ensure compliance of action within the parameter of Privatization Commission 2000 & Privatization Commission (Amendment) Ordinance, 2003". 14. With regard to first limb of prayer, it is admitted by all that the Privatization Appellate Tribunal established under Section 28 of the "Amended Ordinance" has not been constituted till date. It is a settled principle of law that ordinarily when a statute provides for an alternate forum, a party must first exhaust such remedy before invoking constitutional jurisdiction. However, where the statutory forum is non-existent or has not been constituted, the litigant cannot be left remediless. The extraordinary jurisdiction of this Court under Article 199 is therefore available in such exceptional circumstances to ensure that justice is not defeated merely on account of the failure of the executive to establish the requisite forum. As the Privatization Appellate Tribunal has not been constituted therefore, this petition is being entertained on the ground of non-availability of the alternate forum. This Court, after 26th Amendment in the "Constitution", in the case of "KAKAKHAIL TRADERS versus PROVINCE OF PUNJAB etc" (PLD 2025 Lahore 630) has held that "the vague and ambiguous nature of the prayer, coupled with the lack of a clearly established legal right, precludes the grant of any relief. Consequently, the writ petition is dismissed in limine. This Court cautions against the filing of frivolous petitions that serve no legitimate purpose and unnecessarily consume judicial time". 15. With regard to second prayer, the core contention raised by the Petitioner is that the mandatory procedure laid down under Sections 23 and 24 of the "Ordinance" regarding advertisement of privatisation were not duly followed, thereby violating the principles of transparency and fair competition. i. Legal Anthropology of the Privatisation in Pakistan 16. Before deciding the second prayer of the Petitioner, it is important to discuss the privatisation in Pakistan. The legislative scheme governing privatisation of the "PIACL" in Pakistan has evolved progressively over the years. Its genesis may be traced to the Economic Reforms Order, 1972, which was later substituted by the Transfer of Managed Establishments Order, 1978. In order to strengthen investor confidence and to provide for a liberalized economic regime, the legislature thereafter enacted the Protection of Economic Reforms Act, 1992. These enactments collectively provided the foundation, policy framework, and objectives relating to privatisation, which ultimately culminated in a comprehensive statutory regime through the promulgation of the "Ordinance". Section 3 of the Ordinance formally established the Privatisation Commission as a statutory body, while Section 5 thereof delineates its powers and functions. The most significant amongst these is the mandate to frame a privatization policy and to prepare a privatization programme for approval of the Cabinet, as well as to provide overall direction for implementation of privatization activities and to take operational decisions in relation thereto. It must be underscored that these statutory provisions are not merely procedural in nature but are reflective of the broader economic policy of the Government, which has been constitutionally recognized under Article 18 of the "Constitution" guaranteeing freedom of trade, business, and commerce. The role of the Court, in this context, is not to interfere in matters of economic policy per se, but to ensure that the process of privatization, as mandated by law, is carried out in strict conformity with statutory requirements, principles of transparency, and constitutional guarantees, so that public assets are disposed of in a manner that safeguards both public interest and investor confidence. ii. Relevance of Preamble of the "Ordinance"
---
## Page 7
17. It is evident from the first prayer made by the Petitioner qua challenging the privatisation and restraining the "Privatisation Commission" from proceeding of privatisation under the "Ordinance" and the Rules framed thereunder but before examining the provisions of the "Ordinance", the Court has to fist look into the object of the preamble of the "Ordinance" which starts from the wording "Federal Government is carrying out a programme of privatisation in a fair and transparent manner". Since the preamble of the "Ordinance" provides for the establishment of the Privatisation Commission for implementing the privatisation policy of the Federal Government and to provide for matters connected therewith or incidental thereto which is in line with the powers of the Privatisation Commission under Section 5 of the "Ordinance". The preamble of the "Ordinance" further provides a fair and transparent process of privatisation to secure transaction resulting therefrom. The preamble of the "Ordinance" further provides for the utilization of the proceeds of privatisation for the retirement of Federal Government debt and for poverty alleviation. It is well- settled principle of interpretation that the preamble to a statute is though not an operational part of the enactment but it is a gateway, which opens before us the purpose and intent of the legislature, which necessitated the legislation on the subject and also sheds clear light on the goals which the legislator aimed to secure through the introduction of such law. The preamble of a statute, therefore holds a pivotal role for the purposes of interpretation in order to dissect the true purpose and intent of the law.…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.