Messrs SHAHEEN COTTON MILLS, LAHORE and another vs FEDERATION OF

' SH. AZMAT SAEED, J.---Through this judgment, it is proposed to decide the Writ Petitions Nos. 4396, 6158, 7760, 7320, 7321, 7577, 7579, 7578, 4833, 5595, 7029, 7030, 5477, 5479, 4831, 6155, 4835,5495, 4836, 4837, 6157, 4397, 7031, 7272, 7229, 5496, 8023, 8024, 4832, 6154, 6159, 6156, 6160, 6223, 6222, 4834, 4398 and 7023 of 2010 involving identical questions of law and fact.

2. Brief facts necessary for the adjudication of the lis at hand are; that the writ petitioners in all the above-mentioned Constitutional Petitions are manufacturers and exporters of cotton yarn who have filed these petitions to call into question the validity of the order/notification NoS.R.O.

26(I)/2010 dated 14-1-2010 issued by the Government of Pakistan purportedly under section 3(1) of the Import and Export (Control) Act 1950 placing embargo on the export of cotton yarn by imposing a ceiling on the export thereof. It is provided in the said order/notification that cotton yarn shall only be exported up to 50 Million K.G. Per month from the date of notification till 30th of June, 2010. The writ petitioners have also challenged the subsequent order/notification No S.R.O.

No119(I)/2010 dated 25-2-2010 whereby the aforesaid ceiling was further reduced from 50 Million K.G. To 35 Million K.G. Per month till the 30th of June, 2010.

3. It is contended by the learned counsel that the petitioners are engaged in the business of manufacturing and/or export of yarn for the last many years and prior to the issuance of the notification/order dated 14-1-2010, firm commitments have been made and contracts entered into with various foreign importers by the petitioners. Such commitments have been made in view of the long-standing policy of the Federal Government whereby no restrictions were imposed on the export of yarn and as a consequence of the issuance of the two orders/notifications in dispute the present writ petitioners are likely to suffer huge financial losses upon their failure to meet with their foreign commitments. The petitioners also run risk of being embroiled in international litigation with all its attending complications including financial costs and loss of foreign market. It is further contended by the learned counsel that the orders/notifications in dispute are in fact mala fide and have been issued merely to further depress the yarn prices in the local market for the benefit of the local manufacturers of finished goods. In fact, it is contended the sole purpose appears to be to give unfair advantage to one sector of the textile industry at the expenses of the other. It is contended in this behalf that the said order/notifications are not only discriminatory and, therefore, offends against Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 but also in violation of the fundamental rights of freedom of trade and business guaranteed by virtue of Article 18 of the Constitution. In the above context, it is contended that the right guaranteed under Article 18 of the Constitution can only be curtailed or limited either for the benefit of a State monopoly or through a licensing regime and thirdly in order to nurture and promote free competition. The order/notifications on the face of it does not appear to be for the establishment of the State monopoly for the export of cotton yarn nor create a licensing regime. The said order/notifications do not promote free competition, but in fact, curtails competition. The learned counsel further contended that the fundamental rights guaranteed under. Article 18 of the Constitution is not illusionaty and no interpretation thereof is permitted whereby the same can be taken away by the Government by issuance of a notification or for that matter enactment of a Law.

Such right is Fundamental in nature and any unwarranted impediment to freedom of trade is not acceptable to the Constitution. It is added that while interpreting Article 18 the fairness or otherwise of the trade is irrelevant and in this day and age businesses must live or die by the natural rules of universally accepted free market economy. Hence, the order/notifications in question are ultra vires the Constitution and liable to be struck down and in this behalf this Court is vested with the jurisdiction of judicial review to examine the same and also to enforce the fundamental rights.

4. In the alternative, it is further contended that nevertheless the order/notifications in question are delegated legislation, hence, subject to judicial review including by employing the erstwhile test of reasonableness. In this behalf it is the case of the petitioners that promoting one sector of the industry at the expense of the other is not reasonable by any stretch of imagination. It is added that the mode and method employed in practice would cause disruption of the trade, as it does not discriminate between manufacturer and speculators.

5. It is further contended that several of the writ petitioners have established export-oriented spinning units for manufacturing and export of yarn under various notifications/S.R.Os issued by the Government of Pakistan which enjoin the said writ petitioners to export their products and by way of the impugned order/notifications the said writ petitioners would be forced to commit a default of the terms and conditions of the notifications where under the units were established having unpleasant and far-reaching consequences for the writ petitioners. In fact the order/ notifications in issue, it is contended, are in contradiction to the notifications/S.R.Os whereunder such export-oriented units of the writ petitioners have been established. It is the case of the writ petitioners that in fact the notifications would have an adverse effect in this behalf. Messrs Athar Minallah and Salman Akram Raja Advocates, learned counsel for the petitioner in support of their contention relied upon the judgments reported as Arshad Mehmood and others v. Government of Punjab through Secretary Transport Civil Secretariat, Lahore and others (PLD 2005 SC 193) Director Food, N.-W.F.P. And another v. Messrs Madina Flour and General Mills (Pvt.) Ltd. And 18 others (PLD 2001 SC 1), Muzaffar Khan and others v. Evacuee Trust Property through Deputy Administrator (2002 CLC 1819), Messrs Airport Support Service v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268), Saleh Muhammad v. Traffic Manager, Port Trust, Karachi (PLD 1961 (W.P.) Karachi 349) Hashwani Sales and Service Limited v. Karachi Building Control Authority and 15 others (PLD 1986 Karachi 393), Messrs East and West Steamship Company v. Pakistan, through the Secretary-Government of Pakistan, Ministry of Commerce, Karachi and others (PLD 1958 SC (Pak.) 41), Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan (PLD 1957 SC (Pak.) 9) Pakistan Muslim League (N) through Kh. Muhammad Asif, MNA and others v. Federation of Pakistan through Secretary, Ministry of Interior and others (PLD 2007 SC 642) In re: v. Abdul Azeez and another (AIR 1954 Madras 62) Indian Express Newspapers (Bombay) Private Ltd. And others v. Union of India and others (AIR 1986 SC 515), The State of Madras v. V.G. Rom (AIR 1952 SC 196), LA. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041), Zaheeruddin and others v. The State and others (1993 SCMR 1718), Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341) Federation of Pakistan and others v. Amar Textile Mills (Pvt.)

Limited and others (2002 SCMR 510) and Messrs M.Y. Electronics Industries (Pvt.) Ltd. Through Manager and others v. Government of Pakistan through Secretary Finance, Islamabad and others (1998 SCMR 1404).

6. Ch. Aamir Rehman, learned Deputy Attorney-General for Pakistan entered appearance pursuant to notice issued by this Court in terms of Order 27-A, C.P.C. And also to represent the respondents.

7. The learned Deputy Attorney-General for Pakistan has strongly controverted the contentions raised on behalf of the writ petitioners. It is contended that the textile industry is the backbone of the economy of the country, which provides substantial portion of employment and earns substantial foreign exchange. It is the case of the respondents that the orders/notifications were issued in view of the peculiar situation pertaining to yarn. There was a dramatic increase in the export of yarn from Pakistan. It was noticed that yarn export in the month of January, 2010 was 50% more than the yarn exported in January, 2009. Similarly, it was also noticed that the export of value-added textile products declined. The indicators of the export of yarn revealed that unless remedial measures were taken by the Government restricting the export of yarn, the local value- added textile industry would be faced with a huge shortage of its raw material i,e,, yarn, thereby forcing them out of business. Thus, it was believed the uncontrolled export of yarn would not only adversely effect the balance of payment but would also lead to wide spread unemployment. In the above perspective initially the quantum of cotton yarn permitted to be exported per month was fixed at 50 million Kg. Even with the said ceiling it appeared that the local value added textile industry would run short of yarn, and consequently the said ceiling was further reduced to 35 million Kg per month vide the second order/notification. It is contended that the amount of yarn now being permitted to be exported is more than the yarn that in fact was exported in the preceding year. In the above context, it is further contended that the aforesaid action was taken by the Federal Government after extensive discussion with stakeholders including the APTMA (All Pakistan Textile Manufacturing Association). It was contended that said order/ notifications were necessary and in consonance with the best economic and social interest of Pakistan.

8. On the legal plane it is contended that these Constitutional Petitions are not maintainable as Article 18 of the Constitution only confers rights on citizens and not the companies. It is further added that the said Article protects only the lawful trade or business, and after the issuance of the order/notifications in question, the export of yarn in violation thereof would be unlawful, hence, not protected by Article 18 of the Constitution. The order/notifications are a valid exercise of powers vested in the Federal Government in this behalf which have been exercised by it in accordance with its policy and in the best interest of the people of Pakistan. Learned DAG submits that these notifications are the manifestations of the policy of the Government of Pakistan, hence, perhaps beyond the pale of Judicial Review. It is further contended that said order/notifications issued are not only intra vires the parent statute i,e,, the Import and Export (Control) Act 1950 but also withstands the test of reasonableness. In the above perspective, it is prayed that these Writ Petitions be dismissed.

9. During the course of the hearing of these petitions, various applicants, who are engaged in the manufacturing and export of Value Added Textile, filed civil miscellaneous applications through Messrs Ali Sibtain Fazali and Raashid Anwar Advocates. Both the learned counsel supported the stand taken by the learned Deputy Attorney-General for Pakistan in defence of the order/notifications in question. It was contended that fundamental rights guaranteed under Article 18 of the Constitution of Islamic Republic of Pakistan, 1973, in its application was limited to citizens, and did not extend to companies, hence, the Constitutional Petitions on behalf of various public and private limited companies were not maintainable, and liable to be dismissed on this short point alone. It was further contended that the rights so granted under the aforesaid Article 18 was limited to the conduct of any lawful trade or business. That section 3 of the Import and Export (Control) Act, 1950 empowered the Federal Government to issue order published in the official Gazette to prohibit, restrict or otherwise control the export of any goods outside Pakistan. In exercise of the said powers, the Federal Government has issued the order/notification under reference. And upon issuance whereof, by Virtue of section 5 of the Import and Export (Control) Act 1950, any export in violation thereof, would be a crime and therefore also illegal and unlawful.

Consequently, upon issuance of the order/notification in question, the export of yarn in violation thereof, would cease to be a lawful business, and therefore, the provisions of Article 18 of the Constitution of Islamic Republic of Pakistan 1973 would cease to be applicable. It is further contended that it is settled law that issuance of order/notifications under section 3 of the Import and Export (Control) Act, 1950 is a matter of the Policy, which is in the executive domain of the Government. And that this Court cannot sit in appeal upon such policy matters so as to substitute its findings or views for that of the Government, and therefore, these petitions are not maintainable, and any order passed by this Court in favour of the petitioners would transgress into the realm of the Executive and therefore offends against the tracheotomy of powers as envisaged by Constitution of Islamic Republic of Pakistan, 1973. Learned counsel have further added that unlike the parallel Article in the Constitution of India i,e,, Article 19, the concept of 'Reasonable Restrictions' is conspicuous by its absence in Article 18 of the Constitution of Islamic Republic of Pakistan, 1973.

Therefore, the order/notifications in question cannot be subjected to Judicial Review on the ground of Reasonableness as is being canvassed by the learned counsel for the writ petitioners.

10. In the alternative, learned counsel have further argued that even if the test of reasonableness is to be applied in the instant cases, the only aspect thereof which this Court may examine is whether the person making the policy or issuing the order/notifications had the relevant material before him or took any action which a man of ordinary prudence would not have taken in similar circumstances. It is not the subjective test of reasonableness which is to be employed in such a situation. Further added that the obvious purpose of the notifications/order was to ensure that the entire yarn produced in the country is not exported leaving the value added textile sector starved of yarn, and forced to import the same at higher prices, and thereby becoming uncompetitive in the international market. Such a course of action would result in wide spread unemployment reduction in the export of the country further widening the trade deficit. It is contended that about 18.4 million people are employed in the value added textile sector, while in the spinning sector represented by the writ petitioners only 0.2 million people are employed. It is also contended that 1 Kg yarn exported by writ petitioners on an average fetches return of USD 2.03, while on an average finished product exported by value added textile sector earns an average of 5.38 USD per Kg. It is contended that in the last year value added textile exported goods worth 7.72 billion USD, while the spinning sector only earned 1.13 billion USD. In the above context, restrictions imposed by notifications/order in question are not only reasonable in every sense of the word, but also in the national interest. Learned counsel have further argued that the notifications/order did not apply to processed or fine yarn which fetches higher rates in the international market thereby earning foreign exchange for the country. It is also contended that such spinning units that were export oriented and were under obligation to export their product in view of the notifications' issued by the Federal Government have been catered for -in the orders/notifications in issue.

11. That it is the case of the applicants that the notifications/order in question was prompted by sudden increase in the export yarn from Pakistan which forebode an impending shortfall. Said yarn is being exported to countries which compete with Pakistan in the value added textile sector in the international market, hence, the restrictions imposed was imperative.

12. Messrs Ali Sibtain Fazli and Mr. Raashid Anwar Advocates for the applicants also relied on the judgments reported as PLD 1975 SC 667, Government of Pakistan v. Zamir Ahmed PLD 1958 SC 437, The Tariq Transport Company Lahore v. Sargodha Bhera Bus Service Sargodha, 1986 SCMR 680, Muhammad Iqbal Rafi v. The Province of Punjab, PLD 2002 Lahore 359, Nisar-ul-Haq v. Tehsil Municipal Administrator City, 1978 SCMR 327, Zamir Ahmed Khan v. Government of Pakistan, 1995 CLC 1687(Lahore), MD Tahir v. Chief Secretary Government of Pun jab, 2006 YLR 229, Shehzad Riaz v.

Federation of Pakistan, 2004 MLD 1372, Rehmat Filling Station v. Government of Pakistan, 2003 MLD 1133 (Lahore), Muhammad Saleem v. Federal Public Service Commission of Pakistan, 2008 SCMR 17, New Shaheen Trading Company v. Government of Pakistan, 2007 PTD 1005, Molasses Trading and Export Co. v. Government of Pakistan, 2005 PTD 1670, Cynamid Pakistan Ltd. v. Collector of Customs, PLD 1988 SC 670 Abdul Rahim Allah Ditta v. Federation of Pakistan PLD 1993 Lahore 752, Ahmad Abdullah v. Government of Punjab 1999 SCMR 412, Collector of Customs v. Ravi Spinning- Mills Ltd., 1947 (2) All ER 680, Associated Provincial Picture House Ltd. v. Wednesbury Corporation, 1984(3) All ER 935 In the Council of the Civil Service Unions and others.

13. Heard. Record perused.

14. Learned counsel for the Interveners and the learned Deputy Attorney-General for Pakistan relying upon the judgment reported as Progress of Pakistan supra has contended that the right guaranteed under Article 18 is available only to the citizens and does not to companies, hence, the petitioners who are limited companies cannot maintain the instant Constitutional Petitions. In the instant case and several connected Writ Petitions citizens i,e,, the shareholders of the company also appeared and figured as the petitioners. Moreover in all the connected Writ Petitions challenge to the orders/notification in question is not limited to the alleged violations of Article 18 but encompasses other grounds pertaining to the vires, legality and validity of the said orders which are available to the company's independent of Article 18, consequently this Court is persuaded to sustain the said objections or dismiss these petitions on account thereof.

15. The main thrust of the arguments of the learned counsel for the petitioners was that the impugned order/notification issued under section 3(1) of the Import and Export (Control) Act 1950 offends against the fundamental rights of the petitioners as guaranteed by Article 18 of the Constitution of Islamic Republic of Pakistan. Said Article reads as follows:-- "(18) Freedom of, trade, business or profession-Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business: Provided that nothing in this article shall prevent -

(a) the regulation of any trade or profession by a licensing system, or

(b) the regulation of trade, commerce or industry in the interest of free competition therein, or

(c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial of other persons."

16. In pith and substance, petitioners' case appears to be that every citizen inter alia has been granted a fundamental rights to carry on any trade or business subject only to regulation either by a licensing system or for the interest of free competition. Said right may be curtailed by creation of State Monopoly for such trade or industry. No other restriction can be imposed upon the conduct of any trade or business by a citizen, and the word 'lawful' as mentioned in the said Article is controlled by the (a)(b) and (c) of the Proviso. In the above perspective, it is the case of the petitioners that the offending Order/notification under section 3(1) of the Import and Export (Control) Act, 1950 neither envisages a licensing system nor creates a State Monopoly for the export of yarn, and also by no stretch of the imagination can be in the interest of free competition, hence are ultra vires Article 18 of the Constitution.

17. If the contentions of the learned counsel for the petitioners are accepted, the expression 'lawful' in Article 18 of the Constitution would become meaningless and of no legal consequence. If said Article is be as is being advanced and canvassed by the learned counsel for the interpreted without reading the word 'lawful', the effect perhaps would petitioners, i,e,, that a citizen can carry on any trade or business (lawful or otherwise) subject only to the limitations mentioned in the provisions i,e,, the licensing system advancing of free competition and by way of State monopoly.

Such an interpretation would make the word 'lawful' irrelevant and superfluous. It is settled law that surplusage is not to be easily imputed or attributed to any Statutory instrument least of all a Constitutional documents. This Court cannot be persuaded that the word 'lawful' in Article 18 is a surplus age and has been inserted therein by the Framers of the Constitution accidentally and not attending it to be read therein. Article 18 must necessarily be interpreted so as to give effect to it in its entirety by giving meaning to every word and expression used therein including the expression 'lawful trade or business'.

18. That incidentally the said expression 'lawful trade or business' were also mentioned in Article 12 of the erstwhile Constitution of 1956. In fact said Article 12 of the Constitution of 1956 is legally identical to Article 18 of the Constitution of 1973. Said Article reads as under:-- "(12) Every citizen, possessing such qualifications, if any, as may be prescribed by law in relation to his profession or occupation, shall have the right to enter upon any lawful profession, or occupation, and to conduct any lawful trade or business: Provided that nothing in this Article shall prevent ---

(a) the regulation of any trade or profession by a licensing system, or

(b) the carrying on, by the Federal or a Provincial Government or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial of other persons.

19. The expression 'lawful trade or business' as used in Article 12 of the Constitution of 1956 came up for interpretation before this Court in the case reported as PLD 1958 (W.P.) Lahore 887. The Progress of Pakistan Co., Ltd. v. Registrar Joint Stock Companies, Karachi, 2) the Islamic Republic of Pakistan wherein Mr.Justice BZ Kaikaus (as he then was) held as follows:--

(41) For my part, I have never had any doubt as regards the effect of the word "lawful" in Article 12 and the extent of the guarantee granted by this Article. The Article entitles the citizens of Pakistan to carry on any business, trade, or profession with this condition only that the individual acts involved in it are not unlawful. If an act involved in a business, trade, profession or occupation, is such that if performed otherwise than as a part of a business trade, profession or occupation, it is unlawful, then it cannot become lawful just because it is performed as a part of a business, trade or profession, that is, as a part of activity indulged in for the purpose of profit or income That is the meaning of saying that the citizens can carry on any lawful business etc. It is lawful if the activity involved in it, is not, apart from its being carried on as a profession, unlawful.

20. In another case reported as PLD 1958 (W.P.) Lahore 929 Mehtah Jan and another v. Municipal Committee Rawalpindi, this Court while dilating upon the same expression 'lawful trade or business' as used in Article 12 of the Constitution of 1956 was interpreted by Mr.Justice Kayani (as he then was) in the following terms: "(9) Next in Part III, the Constitution laid down the "Directive Principles of State Policy". The State which includes the Legislature, was to guide itself in the formulation of its policy by the provisions of this Part and Article 28(e), which is in this Part provides that "the State shall endeavour to prevent prostitution" ...

(17) That is why the matter has been left at the stage of endeavour. And the word 'lawful' would be properly interpreted if the ultimate goal of the Legislature to prevent prostitution is not excluded from its meaning.

21. In the aforesaid judgment the learned Judge also interpreted 'lawful' in contra distinction to the word 'legal' in the following terms:--

(19) In Roland Burrow's "words and Phrases Judicially Defined" the following is to the same effect: - "By section 70 of the Indian Contract Act, three conditions are required to establish a right of action at the suit of a person who does anything for another, (1) the thing must be done lawfully ** the term 'lawful' no doubt has a wider meaning than the term 'legal'. Legal is what is in conformity with the letter or rules of the law administered in the Courts; 'lawful' is what is in conformity with (or frequently not opposed to) the principle of spirit of the law, whether moral or judicial ***"

(20) These interpretations further the arguments on which I have primarily relied that every law has a moral or ethical setting.

22. In Zamir Ahmed's case ibid, the honourable Supreme Court of Pakistan while dealing with the order issued under section 3 of the Imports and Exports (Control) Act, 1950 in the context of Article 18 of the Constitution in general expression of the term 'lawful trade or business' held as follows:-- "it will be appropriate to examine in the first instance, whether the respondent can invoke any provision of the Constitution in the Chapter relating to the Fundamental Rights for the grant of licence for the import of films. Article 18 of the Constitution, which relates to the freedom of trade, business or profession, which corresponds to Article 15 of the Interim Constitution, and which incidentally held the field at the relevant time, assures the citizens the right to enter upon any "lawful profession or occupation" and "to conduct any lawful trade or business". It is important to point out that the word "lawful" qualifies the right of the citizen in the relevant field. This clearly envisages that the State can by law ban a profession, occupation, trade or business by declaring it to be unlawful which in common parlance means anything forbidden by law. Prostitution, trafficking in women, gambling, trade in narcotics or dangerous drugs are common place instances of unlawful profession or trade. These are inherently dangerous to public health or welfare. Therefore, on the wording of Article 18 of the Constitution, the right to enter upon a profession or occupation or to conduct trade or business can hardly be described to be a constitutional or fundamental right when such right may be denied by law. In this respect our Constitution stands in sharp contrast with the corresponding provision of the Indian Constitution which omits the use of word "lawful" in the relevant provision."

' In the aforesaid case, writ of mandamus seeking issuance of a licence to import films was dismissed in view of order/notification issued under section 3(1) of the Act ibid.

23. In Arshad Mehmood's case supra section 69-A of the Motor Vehicles Act crating a franchise was challenged. The Hon'ble Supreme Court of Pakistan concluded that such a franchise is a privileged contract creating a monopoly, whereby the Government had attempted to regulate the business.

Such regulation did not pass the test of reasonability and was not in the aid of free competition and created a private monopoly. The impugned provision was struck down for several reasons.

However, Zamir Ahmed's case was not over ruled, and in this behalf it was held as under: "The above judgment was maintained in review petition in the judgment reported as Zamir Ahmed Khan v. Government of Pakistan and another (1978 SCMR 327). Aforesaid decision seems to be in consonance with the judgment in the case of Municipal Corporation of the City of Toronto (ibid)".

24. As has been stated above, the Constitution must be interpreted as one organic complete whole and no part thereof can be read in isolation including the fundamental rights. Thus Article 18 of the Constitution must be read in the context of the entire Constitution. There is a possibility that a fundamental right granted under one particular Article of the Constitution may read in isolation collide with or transgress upon another fundamental right also guaranteed by the Constitution. In such an eventuality the two fundamental rights must be read in a manner that each is subject to the other as has been held in the judgment reported as AIR 1978 Supreme Court 597 Sint. Maneka Gandhi v. Union of India and another in the following manner:- "but it is sufficient to state for the present that according to this decision, which was a decision given by the full Court, the fundamental rights conferred by Part-III are not distinct and mutually exclusive rights. Each freedom has different dimensions and merely because the limits of interference with one freedom are satisfied, the law is not freed from the necessity to meet the challenze of another guaranteed freedom."

25. Fundamental rights do not exist in isolation nor such rights are exercised in a vacuum. Such rights cannot must necessarily be enforced in the context not only of the fundamental rights of other individuals but also the requirements and interests of the State and society at large and need to be harmonized therewith. The honourable Supreme Court of Pakistan in the case reported as PLD 2007 SC 642 Pakistan Muslim League (N) through Khawaja Muhammad Asif M.N.A. And others v. Federation of Pakistan through Ministry of Interior and others held as follows:-- "The fundamental rights can neither be treated lightly nor interpreted in a casual or cursory manner but while interpreting Fundamental Rights guaranteed by the Constitution, a cardinal principle has always to be borne in mind that these guarantees to individuals are subject to the overriding necessity or interest of community. A balance has to be struck between these rights of individuals and the interests of the community. If in serving the interests of the community, an individual or number of individuals have to be put to some inconvenience and loss by placing restrictions on some of their rights guaranteed by the Constitution, the restrictions can never be considered to be unreasonable."

26. Before proceeding further it would perhaps be appropriate at this juncture to examine the contentions being raised on behalf of the Interveners as well as by the learned Deputy Attorney- General for Pakistan to the effect that if any act or omission is prohibited by law it would cease to be lawful for purposes of Article 18 of the Constitution. In this behalf perhaps reference may be made to the observations by the Honorable Supreme Court in the case reported as PLD 1957 Supreme Court (Pak) Jibendra Kishore Achharyya Chowdhury and 58 others v.

' The Province of East Pakistan and Secretary; Finance and Revenue (Revenue) Department, Government of East Pakistan. While interpreting Article 12 of the Constitution of 1956 it was observed as under:-- "The very conception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law, and it is not only technically inartistic but a fraud on the citizens for the makers of a Constitution to say that a right is fundamental but that it may be taken away by the law."

27. While interpreting the Constitution and its provisions it must be born in mind that it i,e, the Constitution of Islamic Republic of Pakistan, 1973 is a living document catering for the progress peace, welfare and amity amongst the citizens. The social and economic needs of the country, growing requirements of the society and the ever changing and complex issues faced by the people cannot be ignored. Therefore, the judicial interpretation must necessarily be dynamic rather than strategic, elastic rather than rigid, as has been held by the Hon'ble Supreme Court of Pakistan in the judgments reported as Government of Balochistan v. Aziz Ullah Maiman and 16 others (PLD 1993 SC 341), Messrs Ilahi Cotton Mills and others v. Federation of Pakistan (PLD 1997 SC 582), and Arshad Mehmood v. Government of Punjab (PLD 2005 SC 193). Consequently, Article 18 of the Constitution must also be examined and interpreted while keeping in mind the above perspective, conscious of evolving nature of the rights guaranteed thereby necessitated by the ever changing problems for increasing complexities.

28. The freedom of trade, business and profession as guaranteed under Article 18 of the Constitution must be interpreted in the light of the aforesaid judgments. It appears that every citizens of Pakistan has been guaranteed a right to enter upon any lawful profession or occupation and to conduct any lawful trade or business. This J fundamental right may be exercised subject to qualifications if any imposed and is liable to regulation through a licensing system or for free competition. However, such qualifications and regulations must necessarily be reasonable. The said Article does not prohibit the Government from creating a State monopoly in respect of any trade, business, industry or service to exclusion of the citizens.

29. Fundamental rights should not be treated lightly or permitted to constitutional measures. In the absence of requirement of qualifications or regulation through licensing or for advancement of free competition, the right guaranteed under Article 18 may be curtailed where the carrying on of such trade or business is not lawful. The expression lawful as employed in Article 18 is not meaningless or surplusage and must be given effect to. The said expression lawful has been used in contradistinction to the expression "legal" and the two words are not synonymous. Any act or omission which otherwise is not prohibited by law may not be treated as unlawful merely because it is undertaken during conduct of any trade, business or profession. However, limitation may be imposed by law on the right to undertake any trade or business in order to harmonize the said right with a competing fundamental right of another person also guaranteed by the Constitution or to fulfil a positive command of the Constitution, say to give effect to Article 3 or in an endeavour to achieve the high goals and aspirations of the people of Pakistan as mentioned in the Constitution including in the Principle of Policy or for public security and safety or for the advancement of public health or morality and for the welfare of the people or to create a balance between the rights of individuals and the interest of the community and the State. Needless to say that such limitations must be rational and proportionate to the end sought to be achieved. The purposes of the offending law, its moral and ethical foundation and its social and economic impact must necessarily be identified and examined in the above context.

30. Where such limitations are purported to be imposed through a statute promulgated by the Federal or Provincial Legislature, the said Law must also stand the test of constitutionality by not being in violation of the Constitution or the other fundamental rights guaranteed thereby. If the limitations are purported to be imposed through delegated legislation, the additional test of not being uncertain, not unreasonable or ultra vires the parent statute and not in conflict with any other law would also apply. In case of executive action, the same must necessarily be taken in exercise of powers vested on it by Law and in accordance therewith without offending any other law or the Constitution or the fundamental rights guaranteed thereby.

31. The learned Deputy Attorney-General as well as the learned counsel for the Interveners have taken the plea that the impugned Order/notification issued by the Government under Section 3(1) of the Import and Export Control (Act) 1950 is a policy matter, hence the same are not subject to judicial review by this Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. No doubt it is now well-settled law that our Constitution is based on trichotomy of power, whereunder it is the right of the Government to lay down a policy and enforce the same. It is an equally well settled principle of law, as has been repeatedly enunciated by the Hon'ble Supreme Court of Pakistan that this Court can neither sit in appeal in respect of any policy matter nor substitute the policy decisions of the Government by its own. Reference in this behalf may be made to inter alia on judgments reported as: Govt. Of Pakistan v. Zamir Ahmad Khan supra, and Muhammad Iqbal Rafi and 2 others v.

' The Province of Punjab, Lahore and others (1986 SCMR 680) and Nisarul-Haq v. The Tehsil Municipal Administration (PLD 2002 Lahore 359).

However, it may not be correct to hold that there is an absolute bar to the exercise of judicial review by this Court in all matters pertaining to a policy of the Government. The Hon'ble Supreme Court of Pakistan in the judgment reported as: Muhammad Iqbal Rafi v. The Province of Punjab (1986 SCMR 680) was pleased to hold as follows:-- "Whatever be the thinking on either side, the Government has the right of laying down the policy and if it chooses to do so and there is no law on the subject which it offends, it is not the right of any Court to throw it out, other than hold, in any genuine case, that the same is unreasonable or arbitrary."

32. In Arshad Mehmood's case the Hon'ble Supreme Court of Pakistan has observed as follows:-- ' If any law is promulgated in derogation of fundamental rights, it would be declared void because at the cost of fundamental rights guaranteed by the Constitution, the executive Government is not empowered to frame a policy.

33. Thus, in cases where the policy collides with the Law or the Constitution or it arbitrary or unreasonable, this Court, in view of the afore-quoted judgments of the Hon'ble Supreme Court of Pakistan, can intervene though it may not substitute the policy of the Government by laying down a 'new policy on the subject. Thus, this Court is not persuaded to hold that it has no jurisdiction to examine the offending Order/notification or the policy of the. Government that it manifests. Even in policy matters, this Court can always exercise its powers of judicial review so as to ascertain that the said policy does not violate any law or the Constitution and that the same is not arbitrary or unreasonable.

34. There is yet another aspect of the matter. All government policies eventually must be translated into Legislative or Executive actions. In order to implement the policy, laws have to be made and/or executive orders have to be passed or direction given. In the absence thereof, the policy would merely remain an intention good or bad of the Government with no real effect on the citizens, hence may not provide any ground for grievance there against. In such an eventuality, any controversy regarding such policies perhaps would only be academic in nature.

35. When, in order to implement or give effect to a policy, the Legislature promulgated a Law, such Statutory Instrument is obviously subject to judicial review. It is a well settled law that its Constitutionality can always be examined and if necessary the same can be struck down inter alia for offending against the provisions of the Constitution for absence of legislative competence or for being in violation of the Fundamental Rights.

36. In order to implement the policy, the delegated legislation may also require to be resorted to by framing of rules and regulations and issuance of notifications etc. (as has happened in the instant case). It is settled law that the vires of such delegated legislation are subject to judicial review and the grounds available for striking down such delegated legislation have also crystallized.

37. Policies in the ultimate analysis tend to be translated into Executive action. It is equally settled law that Executive has no inherent power to pass any order or take any action, as has been repeatedly held by the Hon'ble Supreme Court of Pakistan including in the judgment reported as: Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. And others v. Federation of Pakistan through Secretary Ministry of Interior and others (PLD 2007 SC 642) in the following terms:- - "There is no inherent power in the Executive, except what has been vested in it by law, and that law is the source of power and duty."

' Therefore, executive action would necessarily have to be such that it could not possibly violate a Fundamental Right. The only power of the Executive to take action would have to be derived from law and the law itself would not be able to confer upon the executive any power to deal with a citizen or other persons in Pakistan in contravention of a Fundamental Right. Functionaries of State, are to function strictly within the sphere allotted to them and in accordance with law. No Court or Authority is entitled to exercise power not vested in it and all citizens have an inalienable right to be treated in accordance with law. Therefore, an action of an Authority admitted to be derogatory to law and Constitution, is liable to be struck down."

Thus every Executive action must be justified by disclosure of the powers so vested in the Executive under the law and can always be subject to judicial scrutiny. Furthermore, all such actions must not only necessarily be intra vires the law i,e, the statute, rules or regulations whereunder they are purportedly taken, but also the fair free from mala fides of fact and law.

38. In the above circumstances, the order/notification in dispute cannot be hidden from the scrutiny of judicial review by creating law smoke screed of government policy.

39. There can be no escape from the fact that at the end of the day the offending order/notification in generic terms are delegated legislation. It is an order issued by the Government in purported exercise of powers vested in it by section 3(1) of the Import and Export (Control) Act, 1950 and every piece of delegated legislation can be subject to judicial review by this Court and struck down on the following grounds:--

(a) The statutory procedure prescribed for making them, has not been followed.

(b) They are repugnant to a provision of some other Statute.

(c) They must not conflict with the Parent Act itself.

(d) They are uncertain.

(e) They are unreasonable.

' 2002 CLC 1819 (Muzaffar Khan and others v. Evacuee Trust Property).

40. In the instant case, the petitioners have challenged the validity of the order/notification inter alia on the grounds mentioned above including reasonableness. The challenge thrown in this behalf by the petitioners must necessarily be adjudicated upon by this Court.

41. The rationale of the policy decision of the Government which manifested itself in the offending orders/notifications has been examined in the context of the contentions of the counsel, pleadings of the parties and the report and parawise comments furnished by the learned Deputy Attorney General along with the trade policy and the extracts from the economic survey of Pakistan therewith. It appears that Pakistan is currently faced with trade deficit, and in order to bridge those yarning gap between the export and import it is found necessary to increase the proceeds from the goods exported outside Pakistan. The backbone of Pakistan export economy is the textile sector, which alone contributes 55% of Pakistan's total export earnings. The current trade policy endeavours to increase the earnings from textile sector to 25 billion. USD which is only possible by increase of export of value added goods. Converting of lint cotton into cotton yarn results a value addition of 59% while its conversion into finished goods, the value addition dramatically increases varying from 142% for towels to 846% for woven goods. It is of necessary not only maintain but increase the production an export of value added textile. It appears that during the early months of the season, the Government noticed a dramatic increase in the export of yarn from Pakistan, which was spurred by shortage of yarn in the international market and an unpredicted increase in the import of cotton yarn by China. It appeared that a substantial quantity of cotton yarn would depart from the local market with the result that the requirements of the indigenous value added textile sector would not be met. The primary purpose of the Government of Pakistan appears to be an effort to limit the export of yarn from Pakistan so as to ensure that needs of the value added textile sector are met. The export were initially, capped at 5 million Kg per month, but revised projections suggested that said measures were insufficient to achieve the ends of the policy. Consequently, subsequent orders/notification was issued further reducing the export quota to 35 million Kg per month. It is also stated that with the current quota in place the projected export from Pakistan will still be more than the export of cotton yarn during the preceding year and the requirements of value added sector would barely be met. In the absence of such restrictions, there would be a flight of cotton yarn from Pakistan leaving the value added textile sector starved of its raw material. On the one hand, export earnings would be reduced substantially, the cotton yarn obviously will be exported to the countries which use the same for production of value added textile of competitors in the international market. In the above eventuality the value added textile sector would become uncompetitive leading to wide spread closure of units and unemployment. The textile sector is one of the largest industrial employers in the country. Only 8% of workers are employed in the spinning industry while remaining 92% are employed in the value added textile sector.

42. The policy of the Government in the instant case ex facie appears to be motivated by the need to increase the export earnings so as to decrease/control the trade deficit and to avoid mass unemployment by closure of the units of the value added textile sector. Hence, this Court is not persuaded to hold that the said policy to be arbitrary, and unreasonable.

43. The offending orders/notification have purportedly been issued under section 3(1) of the Import and Export (Control) Act 1950, which authorizes the Federal Government to issue the orders/notification for limiting, regulating or controlling the export of goods from Pakistan. Thus ex facie, the powers exercised are intra vires the parent statute, whereunder impugned orders/notification have been issued. The orders/ notification impugned are clear and unequivocal and do not suffer from any uncertainty. As already stated above the purpose to be achieved not only appears to be permitted by law but also the reasonable response to an emergent situation.

The primary effort was only to secure availability of the needs of the local downstream industry Surplus yarn is permitted to be exported. The restraint imposed is proportionate to the end sought to be achieved. Fine yarn fetches a higher price in the international market has been permitted to be exported. With reference to the anxiety expressed by the petitioners that some of them had imported machinery under various S.R.Os issued by the F.B.R. Granting tax exemption to export oriented units it has been clearly stated in the report and parawise comments that the quota policy will respect the obligations of the petitioners to export the yarn in terms of the said S.R.Os. In these circumstances this Court is not persuaded to hold that the orders/notification in question are unreasonable or uncertain or ultra vires the parent statute.

44. Article 18 of the Constitution of the Islamic Republic of Pakistan, 1973 guarantees to the citizens the right to carry on any lawful trade or business. The restrictions in the instant case have been imposed through orders/notifications issued under section 3(1) of the Import and Export (Control)

Act, 1950 and by virtue of section 5 thereof any export in violation of any such orders would be liable to prosecution, hence the restrictions in question have been imposed by law. The apparent purpose of the said orders/notifications and its social and economic impact has been discussed in great details above and the right claimed by the petitioners must be examined in context thereof.

Article 18 and the right guaranteed thereby cannot be interpreted by excluding or ignoring any other provisions of the Constitution including Article 38 which casts responsibility upon the State to secure the wellbeing of the people and to promote and protect employment. In this behalf, categorical command of Article 3 of the Constitution can also not be ignored. The right claimed by the petitioners must necessarily be exercised in harmony with the overriding needs and interest of the community and the State and its responsibilities under the Constitution. A balance in this regard has to be struck between the rights of individuals and the interest of the community and the State. The petitioners cannot claim to exercise the right under Article 18 in a manner which would result in a dramatic loss to export earnings of the country further widening in trade deficit with all its attending adverse, impacts on the economy and resulting in increase of unemployment. The interest of the State and the community cannot be ignored or sacrificed for the profits sought to be made by the individual at the cost of great hardship to a significant segment of the population. In the above perspective, this Court is not persuaded to hold that the offending orders/notifications contravene or violate Article 18 of the Constitution of Islamic Republic of Pakistan.

45. It is not the first time that a quota has been imposed on the export of cotton or its products including yarn. Similar quota was imposed in the past. The orders/notifications issued in this behalf under section 3(1) of the Import and Export (Control) Act, 1950 were allowed to be enforced by the Hon'ble Supreme Court of Pakistan, vide judgment reported as: Federation of Pakistan and others v.

Ammar Textile Mills (Pvt.) Ltd. And others (2002 SCMR 510).

46. If the contentions raised on behalf of the petitioners are accepted, it may have unacceptable consequences. Restriction on export of wheat and other essential food items imposed to ensure food security for the people of Pakistan may not be possible. Similarly, other law enacted to secure the overriding Right to life of citizens e.g. Environmental laws may be exposed to unnecessary challenges.

47. In view of the aforesaid, this Court is not persuaded to hold that the impugned orders/notifications offend against Article 18 of the Constitution or otherwise invalid or illegal.

Consequently, these constitutional petitions must fail and are dismissed accordingly.