ATHAR MINALLAH, C.J.---Through this consolidated order, I shall dispose of the instant petition along with W.P. No. 1633/2020, titled "Attock Petroleum Limited v. Federation of Pakistan, etc."
2. The constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 [hereinafter referred to as the "Constitution") has been invoked by incorporated juridical persons. The latter are, inter-alia, engaged in the business of storing, marketing and supplying petroleum products. They have been granted licenses by the competent regulatory authorities. The petitioner companies are aggrieved on account of the proceedings of a committee constituted by the Ministry of Energy (Power Division) vide notification, dated 08.06.2020. The committee was constituted in the wake of the crisis due to fuel shortages which had followed the announcement of reduction in prices. The said crisis has severely affected the general public throughout the country. The committee was constituted to inquire and probe into the factors that had led to the fuel shortages, particularly whether hoarding or black marketing had contributed thereto. The committee has been mandated to verify the stocks of the marketing companies. The committee has, therefore, been given a specific task that essentially involves collation of facts and on the basis thereof to identify the reasons which had led to the crisis of fuel shortages throughout the country and the persons/entities who may have been responsible in this regard.
3. The learned counsel for the petitioner companies have been heard at length. They have argued that the latter have been granted licenses by the regulator under the Oil and Gas Regulatory Authority Ordinance, 2002 [hereinafter referred to as the "Ordinance of 2002"]. They have stressed that the activities of the petitioner companies are regulated under the said statute and the regulations made there under. They have also referred to the Pakistan Oil (Refining, Transportation, Storage and Marketing) Rules, 2016 [hereinafter referred to as the "Rules of 2016"]. It is the case of the petitioner companies that the Ministry of Energy (Power Division) was not competent to issue notification, dated 08.06.2020 and, therefore, the proceedings are without lawful authority and jurisdiction. The learned counsel, however, have not denied that the committee was constituted to inquire/probe the causes for the severe fuel shortages throughout the country after the government had announced reduction in prices. The victims of this extraordinary crisis were obviously the consumers i.e. the general public. Moreover, no action has been taken against the petitioner companies nor their officials/employees.
4. The learned counsel for the petitioner companies and the learned Additional Attorney General have been heard and the record perused with their able assistance.
5. It is an admitted position that after an announcement was made regarding reduction of prices there was a sudden acute shortage of fuel/petroleum products throughout the country and which persists in some parts till today. The consumers, particularly the general public have been severely affected and their constitutionally guaranteed fundamental rights have been prejudiced. There is also no cavil to the proposition that the Executive branch of the State is responsible as well as answerable to the people for such a crisis. It was, therefore, inevitable that the Executive branch of the State should have responded diligently in order to ensure uninterrupted supply and availability of fuel/petroleum products to the general public at the notified reduced prices. It was also within the exclusive domain of the executive authorities to identify the factors and persons responsible for the crisis. It is noted that be it inflation or availability of essential commodities to the general public, it falls within the exclusive domain of the Executive branch of the State. In the case of the petitions in hand, the Executive branch of the State had the exclusive responsibility to ensure uninterrupted supply of fuel to the public at the reduced prices. The sudden disappearance of fuel from the market and queuing up of agitating consumers at the gas stations was indeed a serious concern for the executive authorities. Pursuant to their -obligations, the executive authorities took measures to alleviate the hardship caused to the general public throughout the country and constitution of the impugned committee was a part thereof. Such a response was not only expected from the executive but it was inherent in its assigned role contemplated under the constitutional scheme.
Moreover, the scope of the committee is to the extent of placing its fact finding report before the competent forum for consideration. The latter will then decide how to proceed further and the actions required to be taken in accordance with law. The constitution of a committee for the purposes of discovering the facts and collation thereof can by no stretch of the imagination be treated as prejudicial to the rights of the petitioner companies.
6. It has been consistently held by the august Supreme Court that the Constitution of Pakistan has been framed on the foundation of trichotomy of powers between three distinct branches i.e. the Legislature, Executive and Judiciary. In the case titled "Dosani Travels Pvt. Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others" [PLD 2014 SC 1] it has been observed and held that one of the seminal principles of the Constitution of Islamic Republic of Pakistan is the concept of trichotomy of powers between the Legislature, Executive and the Judiciary. This principle underpins the rationale that framing of a government policy is to be undertaken by the Executive which is in a better position to decide such matters on account of its mandate, experience, wisdom and sagacity. The Judiciary, on the other hand, is entrusted with the task of interpreting the law and to play the role of an arbiter in cases of disputes between the individuals inter se and between individual and the State. It has been emphasized that the Judiciary neither has sword nor power over the purse. The legitimacy and respect of the judgments rendered by the judiciary is dependent on peoples' confidence and in its strict adherence to the Constitution, its integrity, impartiality and independence. In the case titled "Syed Yousaf Raza Gillani, Prime Minister of Pakistan v.
Assistant Registrar, Supreme Court of Pakistan and another" [PLD 2012 SC 466] the apex Court has eloquently stressed that the constitutional order is founded on the fundamental instruction that each organ must give effect to and act in accordance with the Constitution; insofar as an act of any one of the organs of the State travels beyond the limits laid down in the Constitution, the said organ can be said to have strayed from representing the 'will of the people of Pakistan' and as long all organs remain within the limits prescribed by the Constitution, they have a legitimate claim to being enforcers and exponents of the will of the people. The august Supreme Court in the case titled "Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others" [1994 SCMR 2142] has emphasized that the power vested under Article 199 of the Constitution is a great weapon in the hands of Judges, but the latter must observe the constitutional limits set in the parliamentary system under the principle of trichotomy of powers. It has been explicitly observed as follows: "The power under Article 199 of the Constitution is the power of judicial review. That power "is a great weapon in the hands of Judges, but the Judges must observe the Constitutional limits set by our parliamentary system on their exercise of this beneficial power, namely, the separation of powers between the Parliament, the Executive and the Courts". (Lord Scarman in Nottinghamshire C.C. v. Secretary of State) (1986) (All) ER 199, 204). Judicial review must, therefore, remain strictly judicial and in its exercise, Judges must take care not to intrude upon the domain of the other branches of Government."
Moreover, the august Supreme Court in the case titled "Messrs Elahi Cotton Mills Ltd. and others v.
Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 6 others" [PLD 1997 SC 582] has cautioned against unnecessary intrusions by the courts in matters relating to utilities, tax and economic regulation. Likewise, in the case titled "Messrs Power Construction Corporation of China Ltd. through Authorized Representative v. Pakistan Water and Power Development Authority through Chairman WAPDA and 2 others" [PLD 2017 SC 83] the august Supreme Court has observed that the courts in exercise of their powers ordinarily avoid to interfere with the public policy decisions and rather exercise judicial restraint. It is, therefore, obvious that exercising judicial restraint in matters which fall within the exclusive domain of the Executive and for which the latter is answerable to the people of Pakistan is inherent in the scheme of the Constitution. We as Judges are not representatives of the people nor accountable for those functions that fall within the exclusive jurisdiction and domain of the Executive branch of the State.
In such matters, intervention would only be justified if an aggrieved petitioner can demonstrably show violation of constitutionally guaranteed rights. Moreover, the interests of the public at large will prevail over individual rights or interests. The Executive is answerable to the people for performance of its duties and functions assigned under the scheme of the Constitution and, therefore, it should be free from unnecessary interference and intrusions thus warranting exercise of judicial restraint.
7. In case of the petitions in hand, a mere fact finding inquiry/probe is being conducted by the concerned executive authorities to identify the factors which have led to acute fuel shortages by exposing the general public to extreme inconvenience and hardship. The petitioner companies definitely have a pivotal role in ensuring uninterrupted fuel supply to the general public. It cannot be ruled out that hoarding or black marketing could be one of the factors that may have led to the crisis of fuel shortages. The executive authorities in the circumstances were indeed justified to take timely measures including initiation of a probe/inquiry in order to ascertain the factors that had led to the unprecedented crisis causing extreme hardship and inconvenience to the general public.
There is no force in the argument of one of the learned counsel that probe/inquiry could only have been conducted under the Pakistan Commission of Inquiries Act, 2017 [hereinafter referred to as the "Act of 2017"]. Accepting this argument will amount to denying to the Executive branch of the State its prerogative to inquire or probe into matters of public importance in any manner as it deems appropriate. Conducting an inquiry or probe is definitely not an adverse action nor can by any stretch of the imagination amount to prejudicing the rights of those who may be called upon to give information. The constitution of a commission under the Act of 2017 is one of the many modes available to the executive authorities to inquire or probe into a matter of public importance.
It is inherent in the functions/obligations and duties assigned to the executive authorities to probe or inquire into any matter of public importance which falls within its exclusive domain. Taking away this prerogative will cripple the functioning of the Executive branch. The executive authorities will not be able to function nor discharge their obligations and duties if they are denied the liberty to inquire or probe matters in any manner they deem appropriate provided the proceedings are conducted in accordance with law and without infringing fundamental rights guaranteed under the Constitution. There is no bar on the executive authorities to probe or inquire into the causes that had led to the crisis of fuel shortages and to identify and proceed against the persons responsible or who may have contributing thereto, merely because an entity has been licensed by the regulator under the Ordinance of 2002. No detrimental action has been taken against the petitioner companies nor its officials/employees as yet So as to give rise to a grievance, which may be justiciable under Article 199 of the Constitution by way of judicial review. As noted above, keeping in view the nature of the crisis and its public importance, judicial restraint ought to be exercised because intervention by this Court in any manner may impede or interfere with the functions, duties and obligations of the executive authorities having consequences for the general public. Nonetheless, this Court expects that the executive authorities while conducting the probe/inquiry will proceed strictly in accordance with law, in a fair and transparent manner and avoid causing, unnecessary harassment to the officials/employees of the petitioner companies.
This Court further expects that the authorities will have regard to the principles of fair trial and refrain from making statements that could prejudice the rights of the petitioner companies. The Court also expects from the petitioner companies to co-operate in the matter so that the inquiry/probe could be concluded at the earliest.
8. These petitions are, therefore, disposed of in the above terms.