1. ' Being aggrieved and dissatisfied with the order dated 20-2-2008 passed by single Judge of this Court in Suit No,1386 of 2007, whereby C.M.A. No,8947 of 2008 was granted and the respondent was allowed to import machinery by the end of March, 2008.
2. ' Brief facts of the suit are that the plaintiff has been manufacturing non-prohibited bore shot gun cartridge and besides local supplies also exporting the same and earning foreign exchange.
3. However, under letter dated 1-1-2005 N.O.C. Was granted by the defendant/appellant for import of parts of ammunition of non-prohibited bore on one time basis. Plaintiff (present respondent) once again applied for N.O.C. For import of empty cases for non-prohibited short-gun cartridges on 8-6- 2006, but in spite of reminder, defendant failed to respond. With main suit, C.M.A. No,8947 of 2008 was also submitted with a prayer that defendant No,1 may be directed to issue N.O.C. To plaintiff/respondent for import of empty cases for use of manufacturing of cartridge of non- prohibited bore. After service of process, parawise comments/written statement was submitted by the defendants Nos.1 and 2 separately, submitting that the plaintiff/respondent is entitled to import raw material and components for manufacturing in accordance with the trade policy. Further case of defendant No,1 is that, as per para 60 of Appendix "B" of I.P.O., parts and accessories of arms and ammunition of non-prohibited bore are restricted items and can be imported, irrespective of import status by export oriented units sanctioned as such for manufacturing of arms and ammunition meant for 100% export. Whereas defendant No,2 states that the issue relates to importability of arms and ammunition, since the goods have not yet imported, no cause of action accrued against defendant No,2.
4. ' However, both learned counsel were heard and finally C.M.A. No,8947 of 2007 allowed with direction to issue required N.O.C./ relaxation to the plaintiff/respondent, within a period of 15 days, from the receipt of the order.
5. ' However being aggrieved and dissatisfied with the aforesaid order passed on 12-2-2008, by the learned single Judge of this Court, filed present appeal.
6. ' Heard learned counsel for the parties, with their assistance have gone through the material available on record Ms. Sofia Saeed learned counsel for the appellant mostly repeated the same facts and grounds, as disclosed by the appellant in the memo. Of plaint. She further states that by impugned order, entire suit has been disposed of. She has relied on the cases of Islamic Republic of Pakistan through Secretary Establishment Division Islamabad and others v. Muhammad Zaman Khan and others 1997 SCM R 1508, Pakistan. International Airlines Corporation v. Messrs Hazir (Pvt.)
7. Ltd. And another PLD 1993 Kar. 190, Firozuddin Ahmed v. Trading Corporation of Pakistan Ltd. 1987 M LD 124 respectively.
8. ' On the other hand learned counsel for the respondent states that, order passed by a Single Judge is proper, legal and passed in accordance with law and no illegality or irregularity has been committed by learned Single Judge of this Court as such same is to be maintained else respondent will suffer irreparable loss and will be inconvenience for respondent, though have a good prima facie case. Law referred by learned counsel for the appellant is mostly in respect of settled principle of law having distinguishable facts and not similar and identical.
9. ' It is well-settled principle of law that every case is to be decided on its own merits. So far grant and refusal of injunction/stay application is concerned, there are three ingredients/essentials which are to be considered.
10. ' So far injunction/stay application is concerned, even it is not necessary that plaintiff must have a strong, good prima facie case, but an arguable case is sufficient, though the injunction/stay application is allowed by the learned Single Judge after providing opportunity of hearing to the parties.
11. ' Main grievance of the respondent is that, they cannot import raw material for manufacturing of non-prohibited bore shot gun cartridge without N.O.C. From the defendant (Federation of Pakistan) and further that Import Policy Order does not prohibit the import of empty shells, and even if the same are prohibited, the defendant under Import Policy Order is competent to relax prohibition and restrictions which have not been exercised in the present matter. Keeping in view the advancement of purposes of Import Policy Order, admittedly defendant No,1 has power to grant N.O.C. As previously ordered, and for refusal there must be a sufficient reason which prima facie is missing at this stage. Even otherwise, law does not allow discrimination, when appellant has allowed other commercial importer N.B.P. To import arms and ammunition, and placed on record a letter dated 14-11-2007 in favour of Malik Muhammad Akhtar. The arguments advanced by the learned counsel carry weight and are reasonable, when cartridge can be imported, why empty cases of cartridge may not be imported, though no prejudiced will be caused to the Government and public exchequer.
12. ' Even otherwise Federal Government must record the reasons of refusal as prior to this N.O.C. Was issued. Furthermore, admittedly there is no restriction for issuance of N.O.C. Once again, and Government has to act in the public interest and discretion vested by the Federal Government to be exercised reasonably, fairly, justly and free from any mala fide and public functionaries had to exercise discretionary power in accordance with law and it cannot depend on their sole will/pick and choose, and discretion must be exercising judiciously and not arbitrarily as stated above. So far plea of jurisdiction raised before Single Bench, it is pointed out that official order is challenged and Civil Court is a Court of ultimate jurisdiction even if jurisdiction is barred. Civil Court can see illegality, mala fide done by any, forum, Tribunal or authority. In this respect reliance is placed on the case of Hamid Hussain v. Government of West Pakistan and others 1974 SCM R 356, Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another PLD 1970 SC 180 respectively. Further more legality of the order and other factors required framing of issues and evidence and matter will take sufficient time and by virtue of time plaintiff naturally will suffer at large though have a good prima faice case though arguable case of grant of injunction/stay is sufficient. For passage of time for the purpose of filing of present suit as stated above become infructuous and there be new cause of action for fresh suit, as such prima facie plaintiff was entitled to relief as extended by learned Single Judge, as merits and demerits are to be considered subsequently.
13. ' Under the aforesaid circumstances, we are of the view that order dated 20-2-2008 passed by the learned Single Judge of this Court is proper, legal, valid and in accordance with law, and present appeal merits no consideration, as such same is dismissed in limine.
14. ' These are the detailed reasons of short order dated 3-6-2008.