' SHAH JEHAN KHAN, J.---Writ Petitions Nos.841, 869, 936, 1134, 1168, 1169, 1180, 1191, 1195, 1208, 1212, 1239, 1246, 1247, 1260, 1283 of 2004, 5, 6, 157, 158 of 2005, 222, 223, 50, 51, 844, 854 and 1845 of 2006, the, same question is involved, therefore, disposed of through this common judgment.
2. The petitioners are running ghee and oil factories located in the Tribal Areas. Their grievance is that the respondents are demanding from them customs duty and regulatory duty under clauses
(1) and (2) of section 18 of the Customs Act, 1969 at the rate specified through subsequent amendments which are not applied to the Tribal Areas as required under sub-clause (3) of Article 247 of the Constitution of Islamic Republic of Pakistan, 1973. In rebuttal, case of the respondents as spur out from their written statement placed on Writ Petitions Nos.869, 936, 1246, 1195, 1134 of 2004 and 6 of 2005 is that the main statute i,e, Customs Act, 1969 has already been applied to FATA as well as PATA and all the subsequent amendments made in the Customs Act, 1969 extend to those Tribal Areas automatically and there is no constitutional requirement to extend the Amendment Acts in the. Tribal Areas as the amendment becomes part of the statute and there is no need of its' extension independently to Tribal Areas. As preliminary objection, the jurisdiction of this Court is also challenged but the same is found evasive in view of this Court judgment in Writ Petition No,657 of 2002 whereafter replying on AIR 1986 SC .513 quoting the following passage of this judgment and repelled the objection:-- "A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made . It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable but in the sense that it is manifestly arbitrary."
3. The controversy agitated by the parties can be culminated in the following manner:-- "Whether the petitioners are legally required to pay customs duty and regulatory duty calculated on the basis of amendment Acts of the Parliament in the Principle Statute i,e, Customs Act, 1969 despite and admitted fact that the Amendment Acts of Parliament or Provincial Assembly were not extended to the Tribal Areas in terms of Article 247(3) of the Constitution 1973?"
4. ' Since the attendance of senior counsel could not be procured despite numerous adjournments and despite Supreme Court of Pakistan direction through order dated 23-8-2004 to decide these cases within a month, parties were directed to produce written arguments for the disposal and these cases pending since 2004 and require early disposal. In,compliance of Court direction, senior counsel for the petitioner Mr. Khalid Anwar, Mr. M. Sardar Khan and Mr. Isaac Ali Qazi, Advocates, submitted their written arguments, copies whereof were also delivered to D.A.-G. For onwards sending to learned Attorney General of Pakistan but written arguments were not filed by the respondents after lapse of more than two weeks (the time given as requested), although it was directed on the previous date that non-filing of written arguments shall raise a presumption that there is nothing for the respondents to offer in rebuttal. In these circumstances, there is no other way but to dispose of those cases on the available record.
5. Mr. Khalid Anwar, Senior Advocate, Supreme Court of Pakistan states in his written arguments that the Government has made successive attempts to demand sales tax on the RBD Palm Oil etc. Raw material for vanaspati ghee and oil imported at Sea Ports Karachi. The raw material for consumption in Provincially Administered Tribal Areas and Federally Administered Tribal Areas were tried to be subjected to Sales Tax Act, 1990 and the units established to the said Tribal Areas (T.As.) were forced to be registered under the said Act which action was questioned in Writ Petition No,1180 of 2004 wherein it was held that the unit established in the tribal areas are not subjected to Sales Tax and their registration under the said Act is not required because the Sales Tax Act has not been applied to T.As in terms of Article 247. In order to achieve the aforesaid object, the Government malafidely suspended the bonded warehouse licences of those companies established in the T.As. Through order dated 13-4-2002 which action was again questioned in a contempt of Court proceedings, resulting in withdrawal of the suspension order but the same day another attempt was made and it was notified that bonded ware-houses could only be established in areas where Customs Act, 1969. Central Excise Act and Sales Tax Act, 1990 were all applicable and thus the warehouses established in the tribal areas were deleted from S.R.O.
111/1983. This action was again challenged in this Court and vide judgment dated 25-2-2003, the action of withdrawing the warehouse facilities from the Tribal Areas due to non-extension of Sales Tax Act was declared arbitrary unjust and mala fide, thus strike it down and the S.R.O. Where under bonded warehouses were established in the limits of FATA and DATA was restored. There was another attempt through holding that in order to provide level playing field, central excise duty would be recovered in Value Added. Tax (VAT) Mode from FATA Ghee Units. This attempt was made through Finance Act 2004 whereunder S.R.O. 503(I)/2004 dated 12-6-2004 and S.R.0.502(1)2004 dated 12-6-2004 were issued through amendment in S.R.0.333(I)/2002 dated 15-6-2002 (whereunder there was general exemption of excise duty on the import except those specified in modification).
6. For the interpretation, it is well settled that the Court is empowered to look at the intent and purpose behind the legislative device (PLD 1975 SC 397-433, 1993 SCMR 1905-1923). The Federation has attempted through S.R.Os. 503 and 502 of 2004 noted above, to levy for all intent and purposes, sales tax on units established in T.As although Sales Tax Act has no application in the T. As. A thing which cannot be done directly cant' be allowed indirectly. Thus the aforesaid S.R.Os. Are ultra vires and against the command and spirit of Article 247 of the Constitution.
7. It was held by august Supreme Court of Pakistan that the excise duty even if given a broad meaning do not cover sales tax. Transmission of excise duty into sales tax is unwarranted under the law (1993 SCMR 1342-1346).
8. The learned counsel has dug out the historical background of Tribal Areas and Article 247 of the Constitution 1973. They have elaborately discussed the:--
(1) Government of India Act 1935. (G.O.I.A)
(2) India Independence Act 1947. (LI.A)
(3) Central Excise Act/Central Excise & Salt Act 1944.
(4) Notification No,137-F dated 20-6-1947
(5) Independence Day 15-8-1947.
9. There are two possibilities either amendment in the principal statute would become enforceable in the tribal area only if the amendment is also extended to the tribal areas to which the principal statute was already extended (the contention of petitioners). The other possibility would be that when the principal statute is extended to tribal area all subsequent amendments should automatically apply to the tribal area (the contention of respondents). In the second possibility either amendment would become applicable on its own force of it would become applicable only after notifying the same in terms of Article 247(3) of the Constitution. At the time of extension of the principal statute if also provide for future amendments would require consideration, as to whether such direction regarding future enactment in the shape of amendment in the Principal Statute is or is not permissible under Article 247?
10. For analysis of the status of Tribal Areas (T.As), the learned counsel have thrashed the history of T.As and submitted that under the Government of India Act (GOIA) 1935, section 311 British India was defined as all territories for the time being comprised within what were then known as Governors'
Provinces and the Chief Commissioner's Provinces. "India" was distinctly defined as British India together with the territories of Indian States and the T.As, thus the concept of both "British India" and "India" quite different. T.As were not included in the "British India" and it was defined in GOIA as follows:-- "Tribal Area means the areas along the Frontier of India or in Balochistan which are not part of British India or of Burma or of any Indian State or of any Foreign States."
11. T.As areas were simply those territories along Borders of India which neither formed part of British Dominions or possession nor fell within the powers of any other State whether Foreign or Indian.
Then the question arises that how the British Government came to exercise control and jurisdiction over the T.As? It seems that in the 19th Century, British Empire continued to grow certain areas and territories came within the control and jurisdiction of the British Empire. This control was acquired through various means such as treaty, capitulation, grant, usage or sufferance etc.
12. The British Parliament had from time to time legislated upon matters relating to such territories and areas. In 1890 Foreign Jurisdiction Act (FJA) was enacted. In its preamble it was stated that the "British Sovereign" had by means of treaty, capitulation, grant, usage, sufferance and other similar means acquired jurisdiction with various foreign countries and it was expedient to consolidate the law in respect thereof relating to the exercise of jurisdiction by the "British Sovereign". The "Sovereign Country" as defined in section 6 of the FJA is a Country or place out of her Majesty Dominions. Under section 1 it was lawful for "Her Majesty the Queen" to hold exercise and enjoy and jurisdiction which Her Majesty have within a Foreign Country in the same manner as Her Majesty acquired that jurisdiction by the session or concur of a territory. Through FJA, the Crown by virtue.
Of its prerogative had full powers to establish such executive, legislative and judicial arrangements as the Crown may deem fit and generally to act both executively and legislatively.
13. Pursuant to FJA, an Order in Council was made in 1902 respecting relevant Indian Territories known as Indian (Foreign Jurisdiction) Order-in-Council 1902. This order dealt with the manner in which the powers and jurisdiction of British Crown were to be exercised in the T.As.
14. With the enactment of GOIA 1935 an alteration was made regarding the manner and exercise of jurisdiction and power in the T.As. Section 313(I) of GOIA 1935 provides that such executive authority as was mentioned in the said section to be exercised by the Governor-General in Council on behalf of "British Crown". Subsection 2(c) provides that the Executive Authority so conferred upon the Governor-General in Council shall include the exercise of such rights, authority and jurisdiction as exercisable by "His Majesty, the British Crown" through any Treaty, Grant, Usage, Sufferance, Capitulation or otherwise in relation to the T.As. Governor-General Order-in Council 1902 was amended through Order of 1937 whereunder Paragraph 3 it was provided that the 1902 Order would cease to apply and have effect with respect to the Tribal Areas in India. A change was brought about through section 313 of the GOIA in relation to the exercise of powers and jurisdiction in respect of Tribal Areas and now these powers were to be exercised by the Governor-General in Council.
15. The Governor-General in Council issued Notification No,137-F dated 20-6-1945. Central Excise and Salt Act 1944 was made applicable to the T.As. Not because the said areas were part of British India but in exercise of the Crown powers relating to. Tribal Areas. Thus it was expressly provided that all references to British India in the Act ibid were to be construed as Tribal Areas.
16. The powers of Governor-General in Council under the GOIA namely sections 91 - and 92 of GOIA relates to Excluded Areas and Partially Excluded Areas (subsequently named as special areas, Tribal Areas and now FATA and PATA). The British Crown was made competent to pass an order in council declaring any part of the Province to be Excluded or Partially Excluded Areas. Section 92 reads as under:-- "92(1) The executive authority of a Province extends to "Excluded" and "Partially Excluded" Areas therein, but notwithstanding anything in this Act, no Act, of the Federal Legislature or of the Provincial Legislature, shall apply to an excluded area or a partially excluded area, unless the Governor by public notification so directs, and the Governor in giving such a direction with respect to any Act may direct that the Act shall in its application to the area, or to any specified part thereof, have effect subject to such exceptions or modifications as he thinks fit.
(2) The Governor may make regulations for the peace and good government of any area in a Province which is for the time being an excluded area, or a partially excluded area, and any regulations so made may repeal or amend any Act of the Federal Legislature or of Provincially Legislature, or any existing India Law, which is for the time being applicable to the area in question.
' Regulations made under this subsection shall be submitted forthwith to the Governor-General and until assented to by him in his discretion shall have no effect and the provisions of this part of this Act with respect to the power of His Majesty to disallow Acts shall apply in relation to any such regulations assented to by the Governor-General as they apply in relation to Acts of a Provincial Legislature assented to by him.
(3) The Governor shall, as respects any area in a Province which is for the time being an excluded area, exercise his functions in his discretion."
17. The "Excluded Areas" which were part of a Province of British India and all existing laws shall remain in force even after its notifying as Excluded Area but for the laws made in the future, the Governor of the Province was to extend the same under section 92(1) to that Excluded Area and until such an order is issue the subsequent Acts would have no implementation in the Excluded Area. Under subsection (2), Governor was made empowered to repeal or amend any law applicable in Excluded Area either already extended being a part of the Province or extended to it by Governor-General-in-Council after its declaration as Excluded Area.
18. Upper Tanawal in the Hazara District of the N.-W.F.P. Was declared Excluded Area by Order in Council of 1936 dated 3-3-1936 under section 91 of GOIA. On the date of declaration, all laws of the British India as in force in N.-W.F.P. Were applicable in the Upper Tanawal being part of the Province (not Excluded or Partially Excluded) but thereafter section 92 took effect, no Act of Parliament or Provincial Assembly applied thereto unless the Governor of the Province extended the same through an Order in Council.. A number of Acts including amendments Acts were extended from time to time in terms of section 92(1) of the GOIA. Through Notification dated 20-1-1941, Indian Finance Act 1940 and Currency Ordinance 1940 (both enacted and promulgated after 3-3-1936) were applied to Upper Tanawal. The subsequent three amendment Acts in the Indian Coinage Act 1906 and three Acts amending the Reserve Bank of India Act 1934 (all existing laws on 3-3-1936 and applied to Upper Tanawal before its declaration as Excluded Area) were made applicable to Upper Tanawal through Notification. Meaning thereby that amending acts were not regarded as automatically applicable to Upper Tanawal because the Principal Acts were already in force in that area being part of the Province and before its declaration as Excluded Area. The laws were extended with such amendment and modifications as applicable in British India. Penalties (Enhancement) Ordinance, 1942 promulgated on 2-1-1942 amended through Penalties (Enhancement) Amendment Ordinance, 1942 promulgated on 29-1-1942 was extended to Upper Tanawal on 26-2-1942 and there was specifically mentioned about the Amending Ordinance. For the purpose of section 92 mere reference to the principal law was not sufficient and the amendment made therein before its extension to Upper Tanawal was specifically mentioned. Thus it is clear that while extending a law, it was required to specifically refer to the amendments already made or at least some language to that effect was to be used.
19. On 15-8-1947 two independent dominions of Pakistan and India were set up through Indian Independent Act, 1947 (I.I.A) and the territories of British India were divided in the two dominions.
The dominions of Pakistan comprised of five Provinces i,e, East Bengal, West Punjab, Sindh, Balochistan and the N.-W.F.P. But the Tribal Area being not a part of any of the Province was not included in the dominion of Pakistan. Under section 7 of the I.I.A. It was made clear that any Treaty or Agreement in force between the British Crown and any person having authority in the Tribal Areas and all obligations of the powers, rights, authority or jurisdiction of the British Crown in respect of Tribal Area by reason of any Treaty, Grant, Usage, Sufferance, Capitulation or otherwise lapsed completely with certain exceptions mentioned in the proviso to clause (c) of subsection (1).
The Crown prerogative in respect of the Tribal Areas under section 313(2)(c) of the GOIA and section 8(1)(c) were omitted from GOIA through GGO 22 dated 14-8-1947. The said GGO also omitted section 123 empowering the Governor-General to direct Governor of any province to discharge any functions in relation to the Tribal Area as specified by the Governor-General as his agent. Creating the two Dominions, the British Empire who had de facto administration, legislative and judicial powers was not, going to transfer the same to the new dominions because the control of the T.As. Was not acquired through conquest or cessation but through treaty rights or capitulation or grant of usage or sufferance etc. And it was left open for the newly-created dominions to enter into such arrangements with the Tribal Area. Thus on 9-10-1950, the Government of India (Seventh Amendment) Act, 1950 was enacted with retrospective effect from 15-8-1947 whereby section 123 of the GOIA whereunder the Governor-General of Pakistan could direct the Governor of a Province to discharge as his agent functions in relation to the Tribal Areas as specified by the Governor-General was restored on the statute book right from the independence day (keeping in view the retrospective effect of amendment Act 1950) Government of India has de facto position while the dejure position of the tribal area had been a foreign country within the meaning of FJA 1890 and since the British Crown was withdrawing from the said foreign country, all legal powers and jurisdiction vested in the British Crown were held to be ceased to exist and lapsed. Thereafter Government of Pakistan took a number of steps to regularize its dejure position in the tribal areas.
20. ' Under section 9 of the I.I.A. Governor-General was made empowered to make such provisions deemed necessary to expedient to give full effect to the partition of British India between the India and Pakistan. These powers were exercisable up to 31-3-1948 which was extended by one year in Pakistan and on the last date i,e, 31-3-1949 the Governor-General issued GGOs 5 and 6. Under section 5 of the GOIA (adapted by Pakistan) its dominion was a Sedation of five Provinces. Through GGO 6 of 1949 clause (bb) was added to section 5 enabling Governor-General to add any other area in the Federation and the Governor General issued notification on 27-6-1950 (gazetted on 6- 7-1950) whereby the tribal areas Were formally included in and as integral part of the dominion of Pakistan with retrospective effect from the independence day i,e, 15-8-1947 and in this way Government of Pakistan got demure control over the tribal areas as integral part of Pakistan.
Making the tribal area as integral part of the Pakistan, there arose three issues, 1, regarding administration of the tribal areas 2 applicability of laws of Pakistan in those areas and 3 continuity of authority. There was no provision in the GOIA with regard to the administration of tribal area so under GGO 5 titled as "Extra Provincial Jurisdiction Order 1949, the administration powers was extended to all territories of Pakistan which were not included in any province or the federal capital and a frame-work was provided for its governing and administration notified through gazette on 6-7-1950. In this Administration Powers were acquitted in the T.As. So far as second issue is concerned, laws can be divided in two categories 1, the existing law means all those laws which were in force in British India were made applicable to dominion of Pakistan. The second category is of those laws made by legislature after Independence Day. Both the categories applied to the whole of Pakistan without exception. The existing British India Laws were not applicable in the tribal area but applied through piecemeal by the Governor-General in Council in exercise of Crown Prerogative. Government of Pakistan considered it undesirable that the laws in force in Pakistan should generally become applicable to the tribal area and thus section 95-A was inserted in the GOIA which reads as under:-- "95A. (1) The executive authority of the Federation extends to the areas included in the Federation under clause (bb) of section 5, but notwithstanding anything in this Act, no existing law, no Act of the Federal Legislature and no notification rule or other instrument whether made before or after the fifteenth day of August. 1947 shall apply to any such area unless the Governor-General by public notification so directs, and the Governor-General in giving such a direction with respect to any such law. Act, notification, rule or other instrument may direct that the law, Act, notification or other instrument shall in its application to that area or to any part thereof have effect subject to such exceptions or modifications as he thinks fit.
(2) Any direction given under this section may be given so as to be retrospective to any day not earlier than the fifteenth day of August, 1947 and may continue in force on and after that day and subject as aforesaid any such law, notification, rule or to the instrument in force immediately before that day."
21. The aforesaid provision is modeled on section 92 of the GOIA reproduced earlier and the same was kept alive in the shape of clause 3 of the Article 247 of the Constitution 1973. Regarding third issue, since after the withdrawal of British sovereignty of India, the Crown prerogative in respect of Tribal area had lapsed and the measures taken by Governor-General under section 313 of the GOIA had ceased to exist, the Government of Pakistan to overcome the legal flaw regarding administration of tribal area, specific provision in terms of section 95-A was inserted in GOIA where under subsection (2) it was provided that any direction by the Governor-General under subsection
(1) could be made retrospective from the independence day i,e, 15-8-1947 and shall continue in force. All laws, notifications, rules or other instrument already enforced in the T.As. Shall continue.
22. By means of retrospective legislation after independence, the Tribal Areas become integral part of the dominion of Pakistan with effect from 15-8-1947 before the creation of Pakistan, technically speaking the status of T.As. Were that of a foreign country within the meaning of FJA 1890. Since a fundamental change was brought in the status of T.As. By making it integral part of the Pakistan, specific provision had to be made with regard to its administration, the continuity of pre-partition laws and the continuity of Authority in the tribal areas, a constitutional arrangement was made to the effect that laws of Pakistan would not apply to the tribal areas unless specifically issued by the Governor General.
23. Through West Pakistan Act, 1955, the four provinces i,e, Punjab, Sindh, Balochistan and N.-W.F.P.
Were merged into newly-created of West Pakistan and the tribal areas were also incorporated in it as special area. The position that applied to tribal areas under section 95-A of the GOIA was specifically provided under the Act ibid, which provided that no Federal or Provincial Act would apply to special area unless a specific direction was made by the Government with the previous approval of the Governor-General with certain exceptions or modifications deemed appropriate.
24. ' In the Constitution, 1956 through Article 104 it was again provided that no Federal or Provincial Act shall apply to any special law unless a specific direction to this effect is made by the competent authority. The same mechanism was kept alive in the 1962 Constitution under Article
223. Through West Pakistan Dissolution Order, 1970, newly-created Province of West Pakistan was dissolved and the tribal area was divided into FATA and PATA and the mechanism for application of laws in both these areas were kept intact.
24-A. Article 1 of the Constitution 1973 defined the territories of Pakistan as four Provinces, the Federal Capital and FATA. Under clause (1) of Article 247, the Executive Authority of the Federation extends to FATA and the Executive Authority of the Province extends to the Tribal Areas situated therein. Under clause (2), the President, may give direction to the Governor of a Province in respect of PATA as he deems fit and the Government shall follow those directions. Under clause (4), the Governor with the approval of President makes Regulations for the peace and good governance with respect to PATA. Under clause (5),the President is empowered to make regulations for peace and good government for FATA while under clause (6), the President has been empowered to order that the whole or any part of the Tribal area shall cease to be a Tribal area.
25. Clause (3) of Article 247- is important for resolution of the question under consideration which reads as under:-- "No Act of Majlis-e-Shoora (Parliament) shall apply to any FATA or to any part thereof, unless the President so directs, and no Act of Majlis-e-Shoora (Parliament) or a Provincial Assembly shall apply to PATA or to any part thereof, unless the Governor of the Province in which the Tribal Area is situate, with the approval of the President, so directs; and in giving such a direction with respect to any law, the President or, as the case may be, the Governor, may direct that the law shall, in its application to the tribal area, or to a specified part thereof, have effect subject to such exceptions and modifications as may be specified in the direction."
26. This Article is almost the same as envisaged in section 95-A of the GOIA and section 92(1) of GOIA (already quoted in preceding paras). Under this Article, the President or Governor of the Province has been empowered to make applicable to the law enacted by the Parliament for the settled areas of the country and for extending an Act of the Parliament or Ordinance promulgated under Article 89 or 128 of the Constitution to the Tribal Areas. Constitution has imposed certain duties upon the President and Governor of the Province i,e, he shall satisfy himself about the interest of the people and necessity of the extension of the Act to the Tribal Areas and he shall also consider as to whether the Act of Parliament or Provincial Assembly or Ordinance as the case may be is to be extended to FATA or PATA be in the same form or with modifications therein or exceptions thereto. The powers of the President under Article 247 is not to be exercised as prerogative powers which is not supported by the Constitution. In case reported as 1995 SCMR 529 (Controller of Patents and Designs, Karachi v. Muhammad Qadir Hussain) it was observed by the august Supreme Court of Pakistan that the Government of Pakistan or for that matter any office holder or any government functionary do not enjoy any conventional prerogative as it was available to the Crown in British India except those discretionary powers which are specifically conferred upon by the Constitution or under an Act of Parliament. The powers under Article 247 is co-relative duties and obligations conferred upon the President. Being special status of T.As., the Parliament or Provincial Assembly cannot directly legislate for the Tribal Areas and the legislation enacted by the Parliament or Provincial Assembly shall be extended to those area after examining the same by the President or Government of the Province and thus if an Act of Parliament or Provincial Assembly cannot legislate directly for the Tribal Areas then it cannot be done even indirectly.
27. It is an established principle of interpretation of statutes that when a law is amended it shall be presumed to be altered. If principal Act is amended by an amending Act of the Parliament, it shall be presumed that the former has changed/altered. In such circumstances, the amendments made by the Parliament or Provincial Assembly shall not apply to the Tribal Area automatically but with due process as envisaged in Article 247. By holding that Amendment Act of the Parliament shall automatically extend to the Tribal Area, if the Principal Act has already been extended, it shall negate the command of Article 247 as the amending Act is nothing but an Act to alter the principle which was extended to Tribal Area after due consideration and it shall amount legislation for the Tribal Area by the Parliament which is not permitted by the Constitution. By extending the Principal Act to the Tribal Area with modifications or exceptions and the Amending Act is held to be automatically extended it shall undo modification or exceptions found essential by the President or the Governor while extending Principle Act to Tribal Area. Under clause (3) of the Article 247, it is the President and not the Parliament to decide which Act is to be applied in the Tribal Area and can also make modifications or exceptions in the Act of Parliament. Accepting automatic extension of the amendment Acts would amount to empower the Parliament to legislature for the Tribal Area which is not permissible under the Constitution.
28. Under clause (7) of Article 247, the Parliament has been given a limited power to legislature for the Tribal Areas in respect of jurisdiction of the Supreme Court of Pakistan or High Court. Any Act of the Parliament in this regard shall not require the scrutiny and approval of President for its applications to the Tribal Areas. Under such powers which was also envisaged in Article 261(1) of the Interim Constitution, 1972, the Supreme Court and High Court (Extension of Jurisdiction tocertain Tribal Areas) Act 1973 was enacted by the Parliament. Neither the President nor Parliament can empower the Parliament in future to legislate of the Tribal Areas. Thus the President while extending an Act of Parliament to the Tribal Areas in terms of clause (3) of Article 247 cannot notify that the law which is going to be extended to the Tribal Areas shall also include the subsequent amendment made through Act of Parliament. The words "As amended from time to time if mentioned in a Notification issued under clause (3) of Article 247 regarding a Principal Statute will have no effect on the future amendments brought in the Principal Statute by the Act of Parliament and it shall include only the amendments made before the date of extension of Principal Statute.
The President may in his wisdom and discretion apply the whole statute or its part to the Tribal Area. The Parliament may have imposed 15% duty on a commodity through an Act of Parliament but if its extension to the Tribal Area is found necessary by the President, he may extend it to the Tribal Area as it is or may reduce it to 10% or may increase it to 20%. By doing so the President shall consider the issue as it was considered by the Parliament for its application in the country (settled districts). Now if an Amending Act is mechanically applied to Tribal Areas on the strength of extension of the Principal Statute, it shall amount usurpation of constitutional powers of the President relating to Tribal Areas while under Constitution it is the President who shall apply his mind, shall scrutinize, examine and consider the best interest of the people and the State in extending with or without modification of an Act of Parliament amending the Principal Statute and on acceptance of such mechanism the President would become just a spectator and would not be in a position to amend the same. Once an Act of Parliament is extended to the Tribal Areas, it can only be repealed by extending the repealing Act to the T.As only and in no other way.
29. The Governor-General (subsequently designated as President) decided in 1945 that the Principal Act of Central Excise and Salt Act, 1944 (I of 1944) shall apply to the Tribal Areas.
Subsequently, the Parliament in Pakistan amended the said Act which was a new legislation and required extension to PATA as only the Principal Act was enforced in that Area. When the Principal Act is applied to Tribal Area which is subsequently repealed by an Amending Act of the Parliament, it shall still remain in force in the Tribal Area unless the subsequent amendment Act repealing the Principal Act is extended to PATA in terms of clause (3) of Article 247. There are countless examples that without extension of amending or repealing laws, the Principal Statute already extended remains in force as such for want of extension of subsequent legislation in terms of Article 247 of the Constitution. C.P.C. Was extended to PATA through Regulation I of 1974 which was subsequently amended in 1976 and 1980 but for want of extension of Amending Act to PATA it remain in force in unamended form till the extension of Amending Acts to PATA through Regulation II of 1994 and Regulation I of 1999 on 14-11-1994 and 16-1-1999 respectively. Likewise, the different Hudood Laws of 1979 were extended to FATA and PATA on 23-4-1979 and 31-5-1979 respectively. The amendments brought therein was not automatically extended by those were formally extended through Regulation II of 1994 and Regulation I of 1999. A list of Amending Laws extended to PATA shall be noted later in this judgment.
30. The contention that the Amending Act merged into Original or Principal Act and if the Principal Act is duly applied to Tribal Areas after the amendment,. It shall in force in the amended form is not correct. Had it been so the two different amendments in the W.P. Motor Vehicle (Amendment)
Ordinance (IX of 1970) and W.P. Amendment of the Amending Ordinance (XVI of 1970) should not have been extended through the same Notification distinctly to PATA dated 19-4-1976. Under the Constitution, the consent of the President is required for extension of an Act of the Parliament and the Amending Act passed by the Parliament. No distinction can be drawn between the Principal Statute and amending Act so far application of Article 247(3) of the Constitution is concerned. The Act of Parliament amending or repealing the principal statute cannot be extended to Tribal Area without the approval of the President and in accordance with the prescribed procedure under clause (3) of Article 247.
31. It is always legislative powers of the State vests in the Parliament but keeping in view Article 89 of the Constitution and Article 246 read with 247, the Parliament is not exclusively empowered.
Under Article 89, the President can pass an ordinance which shall have the same force and effect as an Act of Parliament. The President also enjoys limited legislative powers to promulgate an Ordinance obviously for a specified period and when the Parliament is not in the session and circumstances so demand. The President has also got the powers either to in force the Act passed by the Parliament wholly or partly with or without modifications or exceptions in the Tribal Areas.
The President can also make law in the shape of regulation for peace and good government in the Tribal Areas. These provisions made the Parliament not exclusively empowered to legislate as these provisions of Constitution also empowered the President in certain circumstances and enforcement of the laws of the country to Tribal Areas. Since this is legislative powers of the President to extend an existing law in the Tribal Areas, there is co-relative constitutional duty of the President to apply his mind and then to decide the form and shape of legislation, either to extend an existing law as it is or without modifications or exceptions.
32. Once the President after applying his mind and keeping in view the best interest of the people and the State decide to extend an Act of Parliament to the Tribal Areas, it cannot be withdrawn/repealed through a subsequent Act of Parliament named as Amendment in the Principal Statute already extended to T.As.
33. Under GGO 20 of 1947,the laws of British India were adapted in Pakistan with effect from the Independence Day. Any Act, Ordinance, Regulation, Rule, Order or Bye-law which had the force of law immediately before the Independence day in the whole or any part of the territories falling within the Dominion of Pakistan, but on the Independence day, the Tribal Area was not a part of the Dominion of Pakistan thus the 1945 Notification regarding extension of Central Excise and Salt Duty Act 1944 to Tribal Areas, remain no more existing. Pakistan Law despite the fact that 1945 Notification was kept alive but subject to the Constitution of Pakistan i,e, GOIA as amended from time to time.
34. The 1945 Notification had to be construed and applied after the said Areas became part of the Dominion of Pakistan in the manner consistent with GOIA. In terms of section 95-A(1) GOIA no direction could be issued by the Governor-General in terms of which amendments made to a principal Statute would apply automatically to the Tribal Area.
35. The legislative powers of the President under Article 247 could not be delegated to the Parliament or Provincial Assembly. The President possessed two-fold powers in the Tribal Area i,e, the power to apply act of the Parliament or an Ordinance and the power to make regulation for peace and good government of the Tribal Areas. These powers cannot be delegated to the Parliament or Provincial Assembly. The contention that the Amendment Act of the Parliament or Provincial Assembly stands automatically extended to the Tribal Areas, if the Principal Act had already applied to that area would amount to delegation of legislative powers of the President under Article 247 of the Constitution. Under the Statute, the powers to frame rule can be delegated but it shall not be derogatory of, or conflict with the Principal Statute and if rules are found violative of the any provision of the Statute is always struck down by the Courts under its constitutional obligations. Holding automatic extension of the Amendment Acts of the Parliament to Tribal Areas is certainly in conflict with the basic statute which is extended to Tribal Areas,. Under Article 247 this is a constitutional duty cost on the President to determine whether the concerned Act of Parliament (whether original or amending) is to be applied as it is or with certain modifications and exceptions which he deemed appropriate thus the Constitution itself deems Parliament inappropriate forum of determining what legislation is. Suited or non-suited for the Tribal Areas then how the President divest himself of his power and duty and delegate the same to the Parliament if the Amendment Acts are held to be applied to the Tribal Areas automatically.
36. The Customs Act 1969 was extended to PATA through Regulation III of 1975 issued through Gazette of Pakistan Extraordinary Part I, dated 22-7-1975 without any specific reference to any subsequent amending Acts of the Parliament. Section of the Regulation reads as follows:-- "Application of certain Laws to the Provincially Administered Tribal Areas of the North-West Frontier Province.--The laws specified in the second column of the schedule as in force in the North-West Frontier Province immediately before the commencement of this regulation and, so far as may, be, all rules, notifications and orders made or issued thereunder, shall apply to such Provincially Administered Tribal Areas of the North-West Frontier Province as are specified in the third column of the schedule."
37. At serial No,11 of the Schedule appended with Regulation III of 1975, Customs Act, 1969 was applied to the District of Chitral, Dir and Swat and Malakand protected area only (now to entire PATA) as mentioned in column three of the schedule.
38. The unamended Customs Act extended to the 4 Districts of PATA, section 18 of the Customs Act 1969 reads as follows:-- "18. Goods dutiable.---Except as hereinafter provided, customs duties shall be levied at such rates as may be prescribed under the Tariff Act 1934 (XXXII of 1934) or under any law for the time being in force on--
(a) goods imported into or exported from Pakistan;
(b) goods brought from any foreign country to any customs station and without payment, of duty, through shipment or transported for, or thence carried to, and imported at, any other customs- station, and
(c) goods brought in bond from one customs-station to another."
39. The preamble of the Tariff Act, 1934 says "whereas it is expedient to consolidate the law relating to customs duties on goods imported into, or exported from, Pakistan by sea and to custom duty on goods imported into or exported from Pakistan by land. It is hereby enacted as follows:-- "S.2 (1) Duties specified in schedule to be levied.-(1) There shall be levied and collected in every port to which this Act applied, the duties specified in the first and second schedule.
(2) The Central Government may by notification in the official Gazette fix, for the purpose of levying the said duties, tariff values of any articles enumerated either specifically or under general headings, in the said schedule as chargeable with duty ad valorem and may alter any tariff values for the time being in force.
(3) Different tariff values may be fixed for different classes of descriptions of the same article.
(4) Nothing in this Act shall authorize the levy of customs duty on any articles carried from one customs port in Pakistan to another such port except salt, opium or spirit".
Duties on imports and exports by land.-S.
5. Where a custom duty at any rate prescribed by or under this Act or any other law for the time being in force is leviable on any article when imported into or any article when exported from a port in Pakistan, the Central Government may by notification in the official. Gazette direct that a duty of custom at the like rate shall be leviable on any such articles when imported or exported as the case may be by land from or to any territory outside Pakistan which it may, by a like notification declared to be foreign territory for the purpose of this section.
40. By the aforesaid Tariff Act only section 5 was extended to Khyber Agency through Gazette of India Part I dated 14-1-1939 which reads as follows:- "In exercise of the powers conferred by subsections (1) and (2) of section 313 of the Government of India Act, 1935 and all other powers enabling him in this behalf, the Governor-General in Council is placed to apply section 5 of the Indian Tariff Act, 1934 (XXXII of 1934) to the Khyber Agency."
41. Section 5 read with the aforesaid extension notification is evidence to show that Khyber Agency
(PATA) was treated as foreign territory which necessitated the issuance of aforesaid gazette notification.
42. Customs Act 1969 was extended to FATA through Regulation I of 1984. Section 2 of the Regulation reads as follows:--- "2. Application of Customs Act 1969 (IV of 1969) to the Federally Administered Tribal. Areas.-The Customs Act, 1969 (IV of 1969) as in force in Pakistan immediately before the commencement of this regulation and all amendments which may be made therein after such commencement, and all rules, notifications and orders which may have been or may be made or issued thereunder, shall apply to the Federally Administered Tribal Area, subject to modification that section 185 thereof shall have effect as if in subsection (2) after the word "he" the words "is a Political agent or" were inserted".
43. The aforesaid section 2 in Regulation III of 1975 and Regulation I of 1984 are substantially different from one another . In Regulation III of 1975 Customs Act on the date of issuance of the Regulation with all rules, notifications and orders made which already issued thereunder were applied to PATA district mentioned in column 3 of the Schedule. While in Regulation I of 1984 all amendments which may be made in the Customs Act after commencement of regulation and all rules, notifications and orders which may have been made or may be made or issued thereunder (in future) shall apply to FATA and section 185 as it exists on the statute book was also extended with amendments wherefrom it can be said with certainty that at the time of extension of any existing law, the President/Governor could competently extend the law with modification.
44. Through N.-W.F.P. Regulation II of 974 certain laws specified in column 2 of the schedule with the modifications and exceptions specified in column 3 were extended to PATA. At serial No,40 West Pakistan Finance Act, 1963 with exceptions of sections 3 to 13 and 15, at serial No,41 West Pakistan Finance Act, 1964 was extended, exception sections 3 to 9, West Pakistan Finance Act, 1965 was extended with exceptions of sections 3 to 9. At serial No,43 West Pakistan Finance Act, 1966 was extended with exceptions of sections 3 to 8. At serial No,44 West Pakistan Finance Act, 1967 was extended exception sections 3 to 6. At serial No,45 West Pakistan Finance Act, 1968 was extended except sections 2 to 5.At serial No,47 West Pakistan Finance Ordinance, 1969 was extended with exception of sections 2 to 5.At serial No,48 West Pakistan N.-W.F.P. Finance Ordinance, 1970 was extended with exception of sections 2 to 5. At serial No,49. N-W.-F.P. Finance Ordinance 1971 was extended with exception of sections 3 to 5. At serial No,50 N.-W.F.P. Finance Act, 1972 was extended with exception of sections 3 to 6 and at serial No,52, N.-W.F.P. Finance Act, 1973 was extended with exception of section 3. If the contention of respondent is accepted then there was no need of extending the said Finance Acts whereby the laws already extended to T.As. Were unnecessarily extended.
45. The Central Excise and Salt Act 1944 (I of 1944) was extended to the Tribal Areas beyond the boundaries of N.-W.F.P. Through Gazette of India dated 23-6-1945 which reads as follows:- "Notification No,137-F dated 20-6-1945.--In exercise of the powers conferred by subsections (1) and
(2) of section 313 of the Government of India Act, 1935,and of other powers enabling him in that behalf, the Governor General-in-Council is pleased to direct that the Central Excise and Salt Act, 1944 (1 of 1944) shall apply to the Tribal Areas beyond the western and northern boundaries of the N.-W.F.P., insofar as the same may be applicable and subject to any amendments to which it is for the time being subject in British India: ' Provided that all references in the said Act to British India shall, unless there is something repugnant or context be construed as reference to the said Tribal Area.
' Provided further that any Court or authority may construe the provisions of the said Act with certain modifications not affecting the substance as may be necessary or proper to adopt them to the matter before the Court or authority."
46. N.-W.F.P. Finance Act, 1995 and Amending Customs Act, 1969 were extended to PATA with exceptions of sections 3, 4, 5, 6, 8, 9, 10, 11, 12 through Extraordinary Gazette Notification dated 12-1-2001. N.-W.F.P. Finance Ordinance, 1983 was also extended but with exception of sections 4, 5, 6 and 8 and N.-W.F.P. Finance Act, 1998 was extended to PATA but with exception of sections 1, 2, 3(c), 10, 11 and 12 through the same notification.
47. Finance Act, 1986 to the extent of sections 4, 9 and 11 and Finance Act, 1987 to the extent of sections 2 and 9 were extended to PATA through Extraordinary Gazette Notification dated 7-9-1997.
48. The Finance Acts 1989, 1992, 1994 and Customs (Amendment) Act, 1999 were not applied either to PATA or FATA in terms of Article 247(3) of the Constitution, 1973.
49. There are numerous examples of extension of Amending Laws to T.As while Principal Statute was already extended. Some of them are noted below:--
(1) W.P. General Clauses (Amendment) Act, 1957 through Notification dated 8-9-1958 (The unamended W.P. General Clauses Act, 1956 and W.P. General Clauses Act, 1957 both were extended).
(2) Presidential Election (Amendment) Ordinance 1964 extended to Tribal Areas through notification dated 30-11-1964.
(3) West Pakistan Motor Vehicle (Amendment) Amending Ordinance, 1970 (XVI of 1970 and West Pakistan Motor Vehicle (Amendment) Ordinance, 1970 (IX of 1970) were extended to PATA through notification dated 19-4-1976.
(4) Labour Laws (Amendment) Act 1972 (Act V of 1972) and Labour Laws (Amendment) Ordinance, 1972 (IX of 1972) were extended to PATA through Notification dated 31-12-1973.
(5) Criminal Law (Amendment) Act, 1973 was extended to PATA through Notification dated 20-5- 1974.
(6) Land Reforms (Amendment) Act, 1973 was extended to PATA through Regulation dated 22-11- 1978.
(7) West Pakistan Industrial and Commercial Employment (Standing Orders) (Amendment) Act, 1973 was extended to PATA through Regulation dated 31-12-1973.
(8) Industrial Relations (Amendment) Act, 1975, Labour Laws (Amendment) Act, 1975, Labour Laws (Amendment) Act, 1976, Labour Laws (Amendment) Act, 1977, Road Transport Workers (Amendment) Act, 1975, the Industrial Statistics (Amendment) Act, 1980, the Industrial Relations (Amendment) Ordinance, 1984, the Labour Laws (Amendment) Act, 1985, the Labour Laws (Amendment) Act, 1994 and the Employees Cost of Living (Relief) (Amendment) Act, 1992 were extended to PATA through Notification dated 31-7-1997.
(9) Code of Criminal Procedure (Amendment) Act, 1976 was extended to PATA through Notification dated 6-7-1978.
(10) Representation of the People (Amendment) Act, 1977, Representation of the People (Third Amendment) Act, 1977 and Representation of the People (Fourth Amendment) Act, 1977 were extended to PATA through Notification dated 14-8-1977.
(11) Delimitation of Constituencies (Amendment) Ordinance, 1978 were extended to PATA and FATA through separate Notification dated 8-2-1979 and 6-11-1978 respectively.
(12) Electoral Rolls (Amendment) Ordinance, 1978 and Electoral Rolls (Second Amendment)
Ordinance, 1978 were extended to PATA through separate Notification dated 8-2-1979.
(13) Land Acquisition (N.-W.F.P. Amendment) Ordinance, 1978, the Employees Cost of Living (Relief)
(Amendment) Ordinance, 1980 (XXXII of 1980), the Employees Cost of Living (Relief) (Amendment)
Ordinance, 1981 (XXV of 1981) and the Employees Cost of Living (Relief). (Amendment) Ordinance, 1985 were extended to PATA through Notification dated 16-3-1987.
(14) Code of Criminal Procedure (Amendment) Ordinance, 1979 was extended to FATA and PATA through separate Notification dated 23-4-1979 and 31-5-1979.
(15) Electricity (Amendment) Ordinance, 1979 was extended to PATA through Notification dated 23- 10-1993.
(16) Representation of the People (Amendment) Ordinance, 1979 was extended to FATA through Notification dated 6-12-1979.
(17) Land Reforms (N.-W.F.P. Amendment) Ordinance, 1981 was extended to PATA through Notification dated 11-8-1982.
(18) Zakat and User (Amendment) Ordinance, 1980 was extended to PATA through Notification dated 13-10-1980.
(19) Criminal Law (Amendment) Acts, 1989 and 1991 were distinctly extended to FATA through Notification dated 17-8-2001.
50. The questions raised herein for determination were also examined in (1) Sharbat Khan and others v. Haji Lal Gul and others 1984 PCr.LJ 411, (2) Hazrat Muhammad v. The State PLD 1988 Pesh. 11 and (3) Sadbar Khan v. Amir Hussain and others PLD 1995 Pesh. 14, the respective conclusion were drawn as under:-- "(1) As Ordinance LXXI of 1979 by which the proviso has been added has not been extended to the Tribal Area, the petitioners cannot claim the benefit of the proviso for their release. The learned A.A.-G. Has supported the contention of the learned counsel for the respondent No,
1. We agree with the contention raised by the learned counsel for the respondent No,1 that the amendment in the Cr.P.C. In section 497 has not been extended to the Tribal Area, therefore, the petitioner are not entitled to the benefit of this provision."
(2) As for Act of a Parliament is concerned including the amending Act or Ordinance, the same shall be applied independently to PATA by the Governor of the Province in which the tribal area is situate with the approval of the President. Since the Code of Criminal Procedure (Second Amendment) Ordinance, LXXI of 1979, an Act of the Parliament has not been applied by the Governor of N.-W.F.P. To PATA with the approval of the President, as .Such, they said law effecting amendment in section 497(1), Cr.P.C. Shall not apply to the PATA of the Province and the unamended Code of Criminal Procedure still holds the field.".
(3) "A plain reading of the above Article has made it clear that any law or Act of Parliament has to be extended to PATA by virtue of President's or Governor's order. Thus it has been established that without an independent Notification by the Governor for the application and extension of amendment made in the manner required by Article 247(3) of the Constitution, the jurisdiction of the District Court is still not restored, therefore, the objection of the learned counsel for the respondents being without any force must fail."
Concluding the above discussion, we while accepting the assertion of the petitioners and repelling the contention of Collector Customs, answer the formulated question as follows:-- "The respondents cannot demand the excessive customs duty under subsection (1) and excessive regulatory duty under subsection (2) of section 18 of Customs Act, 1969 imposed through Amendment Acts which ware not enforced in Tribal Areas defined in Article 247 in contemplation of Article 247(3) of the Constitution 1973 and the demand of respondents for custom and regulatory duty specified through those unextended Amendments Acts in the T.As is unconstitutional, arbitrary, mala fide and unjust. Thus they are directed to refrain from such illegal demand.
' Post dated cheques or indemnity bonds if obtained from petitioners as consequence of interlocutory order shall stand discharge and be returned to the petitioners. However, the respondents would be competent to ask for assurance that the raw material shall be taken to T.As where their units are established and that the manufactured goods are sold in the T.As. No order as to costs."