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Official Citation: 2024 PLD 1028
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 2025
Decision Date: 2025-02-07
Parties: Federation of Pakistan through Revenue Division & others vs Dewan Motors (Pvt) Ltd. and others
Ruling Summary: This decision was rendered by the Supreme Court of Pakistan on 2025-02-07, officially reported as 2024 PLD 1028. In this matter between Federation of Pakistan through Revenue Division & others and Dewan Motors (Pvt) Ltd. and others, 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 PLD 2024 Supreme Court 1028
Court Name: Supreme Court of Pakistan Judge(s):Amin-Ud-Din Khan, Shahid Bilal Hassan, Muhammad Ali Mazhar, Jamal
Khan Mandokhail, Naeem Akhtar Afghan, Syed Hasan Azhar Rizvi, Mussarat Hilali Title:Federation of Pakistan through Revenue Division & others vs Dewan Motors (Pvt) Ltd. and others Case No.:Civil Petitions No.836-K To 887-K, 951-K,1056-K,1296-K Of 2020 and Civil Petitions No.741-K To 743-K, Of 2021 And Civil Petition No.165-K Of 2022 And Civil Petitions No.1143-K To 1173-K Of 2024 Date of Judgment:2025-02-07 Reported As: 2025 SCP 26, 2025 SCP 33 Result: Appeal Granted Judgment
ORDER Amin-ud-Din Khan, Senior Judge.-- We have heard learned Attorney General for Pakistan as well as learned counsel for the parties and also gone through the files so also the orders. The orders dated 13.01.2025 and 16.01.2025, passed in these cases, are unanimously declared to be without jurisdiction and lawful authority, therefore, the same are hereby recalled and the superstructure built thereupon also falls on the ground. As the subject matter of these civil petitions for leave to appeal is challenging the vires of sub-section (2) of section 221-A of the Custom Act 1969, therefore, under Article 191A(4) of the Constitution of Islamic Republic of Pakistan, 1973 ('Constitution'), these CPLAs were mistakenly/inadvertently fixed before the regular Bench and the regular Bench has assumed the jurisdiction without lawful authority. Accordingly, the above noted orders passed by the regular Bench in these CPLAs are non est. The Committees constituted under Article 191A(4) of the Constitution and under Section 2(1) of the Supreme Court (Practice and Procedure) Act, 2023 are the legal and Constitutional fora to determine which Bench shall hear what matters. The exercise of powers and performance of legal and Constitutional functions by both the Committees do not impinge upon the judicial functions of any Bench.
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2. During the proceedings of these cases, Criminal Original Petition No.1/2025 was also initiated, wherein a notice was issued to the Additional Registrar (Judicial) of this Court as to why contempt proceedings may not be initiated against him. Later on, the said notice was challenged by the Additional Registrar in Criminal Intra Court Appeal No.1/2025, which was fixed before a Larger Bench. Later on, the notice was withdrawn vide order dated 27.01.2025 issued in Criminal Original Petition No.1/2025 by the Regular Bench. Criminal Intra Court Appeal No.1/2025 was also disposed of by the Larger Bench with majority of 4 to 2 (two Judges simply dismissed the ICA as withdrawn) vide order dated 27.01.2025. 3. Contentions raised before us and in the light of the points raised in the orders of this Court dated 07.02.2023 as well as dated 06.05.2021, leave to appeal is granted in these CPLAs. Office to issue notices to the respondents. Notice be also issued to the Attorney General for Pakistan under Order XXVII-A of the Code of Civil Procedure, 1908. Let the appeals arising out of the instant CPLAs be fixed before the Constitutional Bench after completing the codal formalities. Office is also directed to tag the file of Criminal Original Petition No.1/2025 on the next date of hearing.
Dated: 07 February 2025 Concurring Note Muhammad Ali Mazhar, J. Though I am in agreement with the Order dated 28.01.2025, unanimously rendered by the Constitutional Bench of this Court, whereby the orders dated 13.01.2025 and 16.01.2025, passed by the Regular Bench of this Court in Civil Petitions No.836-K to 887-K, 951-K, 1056-K, 1296 K/2020 & Civil Petitions No.741-K to 743-K/2021 and Civil Petition No.165-K of 2022 and Civil Petitions No.1143-K to 1173-K of 2024 have been recalled. However, for the sake of attending to some fine points which require amplification for the future, being one of the members of the Constitutional Bench, which has been constituted under Article 191A of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"), I feel it my utmost sense of duty to contribute through this concurring note. Heading Page Number Paragraph Number I. Preface 1-4 1-6 II. Without Prejudice 5 7 III. Cases Involving the Interpretation of Constitutional Provisions by this Court Post- SC (Practice & Procedure) Act, 20236 8 IV. Article 191A in the Present Scheme and Framework of the Constitution6-7 9-10 V. Is there any Ambiguity in the Plain Text of the present Article 191A of the Constitution that requires further interpretation7-9 11-12 VI. Jurisdiction of Regular Bench and Constitutional Bench within the present Framework & Scheme of the Constitution9-13 13-17 VII. Role of Two Committees 13-16 18-20 VIII. Due Diligence Measures 16-17 21 IX. Effect of Cognizance Without Jurisdiction 17-20 22-28
I. Preface In the Sindh High Court, Civil Petition ("CP") No. D-4658/2018 (Dewan Motors (Pvt.) Ltd. and another versus Federation of Pakistan & others) was filed along with 52 other Constitution
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Petitions to challenge the vires of sub-section (2) of Section 221-A of the Customs Act, 1969, inserted by means of the Finance Act, 2018. The petitioners entreated for the declaration inter alia that: (1) the aforesaid sub-section is ultra vires the Constitution; (2) neither any regulatory duty could be levied, charged, or collected on imports under the Customs Act, 1969, nor was any validation thereof permissible for the period starting from the date of commencement of the Finance Act, 2017, until the date of commencement of the Finance Act, 2018; (3) the petitioners also sought directions from the learned High Court against the respondents/petitioners to immediately refund the amount collected by them in the name of regulatory duty under Section 18 (3) of the Customs Act, 1969, as it stood until the date of commencement of the Finance Act, 2018; (4) they also sought directions against the respondents/petitioners to immediately return the security or refund the equivalent amount collected from them under the orders passed by the Court in the earlier round of litigation challenging the levy and collection of regulatory duty. 2. The learned Division Bench of the Sindh High Court comprising Mr. Justice Aqeel Ahmed Abbasi and Mr. Justice Abdul Maalik Gaddi, vide a consolidated judgment, dated 03.08.2020, disposed of the aforesaid bunch of Constitution Petitions in terms of paragraph 15, which is reproduced as under: - "15. The aforesaid petitions are, therefore, disposed of in the following terms: - (i) The impugned sub-section (2) of Section 221-A of the Customs Act, 1969, as added vide Finance Act, 2018, is ultra vires to the Constitution of Islamic Republic of Pakistan, 1973, as through impugned amendment the legislature has attempted to validate constitutional defect while making amendment in sub-section (3) of Section 18 of the Customs Act, 1969, and issuance of SRO 1035(I)/2017 dated 16.10.2017, through Finance Act, 2017, however, without making the required constitutional amendment. (ii) The Regulatory Duty charged and collected pursuant to amendment in sub-section (3) of Section 18 of the Customs Act, 1969, and issuance of SRO 1035(I)/2017, through Finance Act, 2017, has already been declared by the Divisional Bench of this Court in the case of Premier Systems (Pvt) Ltd. v. Federation of Pakistan and others (2018 PTD 861), as illegal and unconstitutional in the light of judgment of the Hon'ble Supreme Court of Pakistan in the case of Mustafa Impex, Karachi & others vs. The Government of Pakistan & others, (PLD 2016 SC 808), therefore, in the absence of any constitutional amendment, cannot be validated through subsequent amendment in law, while giving it retrospective effect in respect of past and closed transaction, therefore, no Regulatory Duty can be charged, collected or recovered for the period starting from the date of commencement of Finance Act, 2017 till the date of commencement of Finance Act, 2018. [Emphasis Applied] 3. The aforesaid consolidated judgment has been challenged by the Federation of Pakistan through the Revenue Division and the Collector of Customs vide CP Nos.836-K to 887-K, 951-K, 1056-K, 1296-K of 2020; CP Nos.741-K to 743-K, of 2021; CP No.165-K of 2022 and CP Nos.1143-K to 1173- K of 2024. The CP Nos.836-K to 887 K, 951-K, 1056-K and 1296-K of 2020 were fixed in this Court on 06.05.2021, before a Bench comprising Mr. Justice Maqbool Baqar, Mr. Justice Sajjad Ali Shah, and Mr. Justice Munib Akhtar, when the Bench was pleased to pass the following order: - "Since the question involved in the matter is, as to whether or not the impugned amendment is ultra vires of the Constitution, we find it appropriate to issue notice to learned Attorney General for Pakistan as well. Let notice be issued accordingly. To come up so soon a three member bench is available. Parties to maintain status-quo till the next date of hearing" [Emphasis Applied] 4. Once again the Civil Petitions were fixed before this Court on 07.02.2023, before a Bench comprising the then-Chief Justice, Mr. Justice Umar Ata Bandial, Mrs. Justice Ayesha A. Malik, and Mr. Justice Athar Minallah, when the Bench was pleased to pass following order: -
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"Learned Additional Attorney General submits that the basis on which Section 18(3) of the Customs Act, 1969 was struck down is for its failure to satisfy the Constitutional requirement providing for cabinet approval for delegation of taxing power which is permissible only to the Federal Government and not to the Minister In charge. In the year 2018, a validation clause in the Finance Act, 2018 is purported to correct that error and validate the past actions taken under the defective legislation that has been struck down. Submits that such validation can lawfully cure a defect and therefore cure the procedural defect in the law. There is no violation of the Constitution with respect to legislative competence or breach of fundamental rights. Therefore, the impugned judgment has misinterpreted the import of the expression "constitutional violation". He relies on the cases reported as Molasses Trading & Export (Pvt.) Limited Vs. Federation of Pakistan and others (1993 SCMR 1905) and Messrs. Khurshid Soap and Chemical Industries (Pvt) Ltd through Sheikh Muhammad Ilyas and others Vs. Federation of Pakistan through Ministry of Petroleum and Natural Resources and others (PLD 2020 SC 641). We would be assisted better if the scope and effect of validation clause in the law are explained to us with reference to case law from Pakistani and other jurisdictions. Raja Muhammad Iqbal, ASC submits that his cases involve the same point, therefore, be clubbed with these petitions in the meantime. Notices have not been issued in CPs No.740 to 743 2021 and 165-K of 2022 which involve the same point as the present civil petitions No.836-K of 2020, etc. Issue notice to the respondents. Re-list after two weeks. Status quo to continue till the next date of hearing". [Emphasis Applied] 5. However, on 13.01.2025, when the aforementioned Civil Petitions were fixed in this Court before a Regular Bench comprising Mr. Justice Syed Mansoor Ali Shah, Mrs. Justice Ayesha A. Malik, and Mr. Justice Irfan Saadat Khan, the Bench was pleased to pass the following order: - "At the very outset, the learned counsel for the petitioners submitted that the present regular bench of the Court cannot hear these cases, as they involve a challenge to the constitutionality of a law, namely, subsection (2) of Section 221-A of the Customs Act, 1969. When asked why this bench cannot hear these cases, the learned counsel referred to the provisions of Article 191A, which was added to the Constitution of the Islamic Republic of Pakistan through the 26th Constitutional Amendment. In response to the petitioners' objection regarding the lack of jurisdiction of the present bench of the Court, the learned counsel for the respondents contended that Article 191A, the basis of the objection regarding jurisdiction, is constitutionally invalid as it infringes upon the salient features of the Constitution, including the independence of the judiciary and the separation of powers among the three organs of the State. He further submitted that a constitutionally invalid amendment cannot oust the constitutionally valid conferment of jurisdiction on the regular benches of the Court. 2. When asked how the present bench of the Court can decide upon the constitutional validity of the newly added Article 191A, the learned counsel for the respondents took the position that since the objection raised and the basis thereof pertain to the jurisdiction of the present bench, it must be decided by it. In support of his stance, he referred to Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66), Fazlul puader Chowdhry v. Abdul Haque (PLD 1963 SC 486) and Marbury v. Madison (5 US 137 [1803]) and sought time to further assist the Court on this point. 3. Given the objection raised and the reply thereto, we find that it would be necessary to first decide upon the same before proceeding further in the matter at hand. Therefore, the learned counsel for the parties are granted time to prepare their arguments and assist the Court on the said points. The hearing for arguments on those points is adjourned to 16.01.2025." [Emphasis Applied] 6. When the matter was again fixed on 16.01.2025 before the regular Bench, the following order was passed:
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"These cases were heard on 13.01.2025 by a bench comprising Mr. Justice Syed Mansoor Ali Shah, Mrs. Justice Ayesha A. Malik and Mr. Justice Irfan Saadat Khan and were posted for 16.01.2025, however, the bench today cannot hear this matter, as the impugned judgment has been authored by one of us (Aqeel Ahmed Abbasi, J.). Considering that it was a part heard matter, let these cases be posted for 20.01.2025 at 01:00 p.m. before the same bench comprising Mr. Justice Syed Mansoor Ali Shah, Mrs. Justice Ayesha A. Malik and Mr. Justice Irfan Saadat Khan. Notice shall also be issued to the Attorney General for Pakistan under Order XXVII-A of the Code of Civil Procedure, 1908 ("CPC"). [Emphasis Applied] II. Without Prejudice 7. No doubt, various Constitution Petitions have been filed in this Court for challenging the Constitution (Twenty-sixth Amendment) Act, 2024 ("26th Amendment"), and the Constitutional Bench has also issued notices to the other side, including the Attorney General for Pakistan, under Order 27A of the Code of Civil Procedure, 1908. Without prejudice to the pleas raised in such pending Constitution Petitions, and without making any remarks on issues of maintainability or the constitutionality of constitutional amendments, whether they offend or transgress the basic features, scheme, or basic structure of the Constitution, including the newly inserted Article 191A, these matters are already sub judice before the Constitutional Bench of this Court. Notices have been issued, and all such matters, including applications moved for the formation of a full court and live streaming of proceedings, will be decided on their own merits. However, in the intervening time, neither can one ignore the ground reality nor turn a blind eye or a deaf ear to the present amendments made to the Constitution, which is a hard fact with its physical existence that is as clear and open as the pages of a book, and will remain in the field unless and until they are either withdrawn/omitted by Parliament through further amendments or struck down by this Court as prayed for in the pending petitions. For all intents and purposes, this additional note may be read in the context of the present controversy. However, until the final adjudication of the aforesaid pending petitions, we cannot shut our eyes to and ignore a ground reality that not only is the Constitutional Bench of this Court being assembled regularly under the current framework of the Constitution, but cases are also being fixed and heard regularly. The present proceedings are confined solely to the question of the alleged vires of sub-section (2) of Section 221-A of the Customs Act, 1969, inserted through the Finance Act, 2018. Therefore, neither can the Constitutional Bench in the Tax matter decide the validity or invalidity of amendments made to the Constitution, whether such amendments are intra vires or ultra vires, or whether they were made in disregard of other constitutional provisions or against the basic scheme or structure of the Constitution as it existed in its original form, nor does any such jurisdiction is otherwise vested in any Regular Bench of this Court to decide the validity of constitutional amendments or vires of any law. III. Cases Involving the Interpretation of Constitutional Provisions by this Court Post-Supreme Court (Practice and Procedure) Act, 2023 8. Prior to the promulgation of the Supreme Court (Practice and Procedure) Act, 2023 ("Practice and Procedure Act"), the Chief Justice was the master of the roster. However, by virtue of the provision encapsulated in the Practice and Procedure Act, a collegium system was introduced whereby every cause, appeal, or matter before the Supreme Court was to be heard and disposed of by a Bench constituted by a committee comprising the Chief Justice of Pakistan and the two next most senior Judges in order of seniority. Before its amendment, for all intents and purposes, the role of regulating the roster and constitution of benches was assigned to this Committee, which would take decisions by majority vote. Although Section 4 was omitted through Act No. XXXI of 2024, dated 04.11.2024, it was significant during its lifetime. The original text of the Practice and Procedure Act provided that in the cases involving the interpretation of constitutional provisions,
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the Committee shall constitute a Bench comprising not less than five Judges of the Supreme Court. Being mindful of this provision, whenever any question regarding the interpretation of a constitutional provision arose in a case, the Judges of this Court unremittingly referred the matter, along with their opinions, to the Committee for the constitution of a bench comprising not less than five Judges of the Supreme Court. However, under no circumstances did a bench seized of a matter ever constitute a larger bench by its own judicial order rather than referring the matter to the Committee for consideration and further orders. It is also a matter of record that upon reference by the Court, the learned Committee constituted several five-member benches to hear such matters in terms of Section 4 of the Practice and Procedure Act, which has now been omitted. IV. Article 191A in the Present Scheme and Framework of the Constitution 9. It is well-known that a new Article 191A has been inserted into the Constitution through the 26th Amendment, dated 21.10.2024, which pertains to the Constitutional Benches of the Supreme Court. For ease of reference, Article 191A of the Constitution is reproduced as under: - "(1) There shall be Constitutional Benches of the Supreme Court, comprising such Judges of the Supreme Court and for such term, as may be nominated and determined by the Judicial Commission of Pakistan, from time to time: Provided that the Constitutional Benches may comprise equal number of Judges from each Province. (2) The most senior Judge amongst Judges nominated under clause (l) shall be the most senior Judge of the Constitutional Benches. (3) No Bench of the Supreme Court other than a Constitutional Bench shall exercise following jurisdictions vested in the Supreme Court, namely: - (a) original jurisdiction of the Supreme Court under Article 184; (b) appellate jurisdiction of the Supreme Court under clause (3) of Article 185, where a judgment or order of a High Court passed under Article 199 involves constitutionality of any law or a substantial question of law as to the interpretation of the Constitution; and (c) advisory jurisdiction of the Supreme Court under Article 186. (4) For the purposes of clause (3), a Bench consisting of not less than five Judges, to be nominated by a committee comprising the most senior Judge of the Constitutional Benches and next two most senior Judges from amongst the Judges nominated under clause (1), shall hear and dispose of such matters. (5) All petitions, appeals or review applications against judgments rendered or orders passed, to which clause (3) applies, pending or filed in the Supreme Court prior to commencement of the Constitution (Twenty-sixth Amendment) Act, 2024 (XXVI of 2024), forthwith stand transferred to the Constitutional Benches and shall only be heard and decided by Benches constituted under clause (4). (6) Notwithstanding anything contained in the Constitution but subject to law, the Judges nominated under clause (1) may make rules regulating the practice and procedure of the Constitutional Benches". [Emphasis Applied] 10. According to the present substratum of Article 191A, the original jurisdiction of the Supreme Court under Article 184; its appellate jurisdiction under clause (3) of Article 185, where a judgment or order of a High Court passed under Article 199 involves the constitutionality of any law or a substantial question of law as to the interpretation of the Constitution; and its advisory jurisdiction under Article 186, can only be exercised by the Constitutional Bench of this Court. In all fairness, in my view, there is no room for difference of opinion: any exercise of this jurisdiction outside the Constitutional Bench at present would be coram non judice, a matter I will discuss in the latter part of this note.
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V. Is there any ambiguity in the plain text of the present Article 191A of the Constitution that requires further interpretation? 11. It is a general principle of interpretation that courts should avoid an interpretation not envisioned by the framers and should not limit or restrict the provisions. While interpreting the Constitution, it must be read as a whole without obliterating or annihilating other provisions to ensure harmony and should be interpreted liberally. The doctrine of pith and substance emphasizes identifying the distinct attributes of constitutional provisions, while the doctrine of purposive interpretation imposes a duty on the courts to interpret a statute or the Constitution in light of the purpose for which the provision was enacted, adopting a result-oriented approach rather than construing it in a restrictive or stringent sense. According to Salmond on Jurisprudence (12th ed.) by P. J. Fitzgerald, M.A., at page 132, interpretation or construction is the process by which the courts seek to ascertain the meaning or intention of the legislature through the medium of the authoritative forms in which it is expressed. When the text of the Constitution is unequivocal and unambiguous, it can be easily interpreted in its literal sense, adhering to the theory of textualism. Any variation or transformation of clear provisions through interpretation weakens the Constitution. On the contrary, the Court is duty-bound to ascertain and elucidate the present-day meaning of the Constitution through purposive interpretation rather than applying the doctrine of reading down without purpose. In my view, the benchmarks of constitutional interpretation are, for all intents and purposes, the same as the principles of statutory or judicial interpretation. The legal maxim "a verbis legis non est recedendum" means that there must be no departure from the words of the law. When the language of a statute is plain and unambiguous, there can be no assumption that the legislature made a mistake. No word in a statute should be treated as a surplusage or rendered ineffective or purposeless if the Court is to carry out the legislative intent fully and completely [Ref: Hardeep Singh Vs. State of Punjab (2014) 3 SCC 92]. Similarly, the legal maxim "nemo aliquam partem recte intelligere potest antequam totum perlegit" states that no one can properly understand a part until they have read the whole. Unless there is vagueness or ambiguity, there is no occasion to interpret a term in a way that adds meaning beyond its ordinary definition. 12. In Hamza Rasheed Khan Vs. Election Appellate Tribunal (PLD 2024 Supreme Court 1028), while the main judgment was authored by then-Chief Justice, Honorable Mr. Justice Qazi Faez Isa, Honorable Mr. Justice Mansoor Ali Shah also contributed a separate note, which was concurred with by five other members of the Bench, including the then Chief Justice and myself. In this regard, the relevant excerpt from paragraph 9 of the Note is quite relevant, which is reproduced as under: - 9. We are fully cognizant of, and also agree with, the well-settled approach of this Court in the matter of interpreting the constitutional provisions, i.e., while interpreting constitutional provisions, the judicial approach should be dynamic…
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