WIQAR AHMAD, J.- Through this judgment, we intend to dispose of W.P. No. 946-M/2019, W.P. No. 947-M/2019, W.P. No. 948-M/2019, W.P. No. 953-M/2 019, W.P. No. 981-M/2019, W.P. No. 982-M/2019, W.P. No 992-M/2019, W.P. No. 1004-M/2019, W.P. No. 449-M/2020, W.P. No. 811-M/2020 and W.P. No. 966-M/2020. In all these cases the respective petitioners have challenged vires of Item No. 152 of Sixth Schedule to the Sales Tax Act 1990 (hereinafter referred to as "the Act" ). The exemptions in Item No. 151 as well as Item No. 152 of Sixth Schedule had a background which is also necessary to be stated here briefly . Federally Administered Tribal Areas (hereinafter referred to as "Ex-F ATA") as well as Provincially Administered Tribal Areas (hereinafter referred to as "Ex-P ATA") had not been part of the province of Khyber Pakhtunkhwa and were governed in tribal pattern through special dispensations provided under the repealed Article 247 of Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as "the Constitution" ), where under the laws extended and regulations made and promulgated in the respective areas from time to time either by the President or the Governor of Khyber Pakhtunkwa, (issued with previous approval of the President provided the legal structure for regulating these areas). Under sub-article (1) of Article 247 of the Constitution executive authority of the Federation extended to the areas falling in Ex-FATA while executive authority of the province extended to the areas falling in Ex-P ATA.
Legislative authority of the parliament or Provincial Assembly of Khyber Pakhtunkhwa as well as judicial authorities could only be made applicable to these areas by resorting to the mechanism provided for extension of the laws and jurisdictions as provided in sub-article (3) and sub-article (7) of Article 247 of the Constitution (repealed) respectively . Sales Tax Act as well as Income Tax Ordinance had never been extended to the areas falling in Ex- FATA or Ex-P ATA under sub-article (3) of Article 247 of the Constitution, as a result thereof these two laws had got no extent and operation in these areas. The people had not been liable to paymen t of sales tax leviable under the Sales Tax Act, 1990 as well as income tax leviable under the Income Tax Ordina nce 2001. With promulgation of "The Constitution (Twenty-fifth Amendment) Act, 2018" (hereinafter referred to as "Twenty-fifth Amendment' )
Article 247 of the Constitution was repealed and both these laws became automatically extended to the areas falling in Ex-F ATA as well as Ex-P ATA, as held in earlier judgment of this Court rendered in the case of "M/S Hadi Khan Silk Mils & others v/s Govt: of Pakistan through Secretary Finance & others" ("W.P. No. 442-M of 2020"). Certain exemptions had however been provided from payment of sales tax by promulgation of SRO No. 890 (1)/2018 dated 23.07.2018, which had subsequently been substituted by issuing another SRO No. 1212 (1)/2018 dated 05.10.2018 of the Federal Board of Revenue Government of Pakistan (hereinafter referred to as "SRO No. 1212/2018" ). On the basis of exemptions granted through the SRO this Court in its earlier judgment given in the case of "M/S Abid Foundry & another v/s Govt: of Pakistan through Federal Secretary Finance & others" reported as 2019 PTD 1652 had also held that electricity bills of all the industrial concerns in PATA had been exempt from levy of sales tax. Thereafter vide Finance Act, 2019 Items No. 151, 152 and 153 were added to Sixth Schedule of the Act. Entry No. 151 of the Sixth Schedule had been providing for exemptions and the method of claiming such exemptions at the stage of imports of goods, Machinery and industrial inputs for industrial units situated in Ex-FATA as well as Ex-P ATA. Entry No. 152 was providing for exemptions of sales tax on electricity consumption of domestic and commercial consumers which included industrial units situated in the areas falling in Ex-F ATA and Ex-P ATA with the exception of steel, ghee and cooking oil industries.
2. Petitioners in all these connected petitions are aggrieved of part of Entry No. 152 of Sixth Schedule to the Act, whereby supplies of electricity has been made exempt from levy of sales tax under section 13 of the Act for all residential and commercial consumers in tribal areas, (the industries in the tribal areas which were set and had started their industrial production before 31st May 2018), with the exception of steel and ghee or cooking oil industries. The exemptions have also been provided for five years starting from the day of presidential assent was given to the Twenty-fifth Amendment. Petitioners in all these petitions are having their industrial concerns in these two areas i.e. steel, ghee and cook ing oil industries. That is the main reason that they have challenged vires of Item No. 152 of the Act.
3. Mr. Isaac Ali Qazi learned counsel for petitioners in some of the connected cases started his arguments by submitting that at the time of inserting Entries No. 151 as well as 152 in Sixth Schedule to the Act, exemptions had been available under the earlier issued SRO No. 1212/2018 and people in the area had been exempt from payment of sales tax as held by this Court in its earlier judgment given in the case of "M/S Abid Foundry & another v/s Govt: of Pakistan through Federal Secretary Finance & others" reported as 2019 PTD 1652 . He added that with malafide intention of taking back said benefits from people of this area Entries No. 151 and 152 were put in place in Sixth Schedule to the Act. He further contended that such malafide was evident from the fact that exemptions were normally granted by the government under section 13 of the Act, but in the case in hand the matter had been referred to parliament, so as to divest the petitioners from raising a challenge thereto and making it difficult for the Courts of law to adjudicate thereupon. He also contended that steel, ghee and cooking oil industries had been discriminated as exemptions had been provided to rest of the industries but these two industries had been deprived of the benefits of exemptions, rather the benefits/e xemptions earlier available had been withdrawn, which was discriminatory and squarely hit by the doctrine against discrimination enshrined in Article 25 of the Constitution. He further contended that exemptions earlier granted to the petitioners had become their personal property and its unilateral withdrawal, without furnishing any reason and justification, had also been violative of Article 24 of the Constitution. In this respect, he also placed reliance upon the judgment reported as PLD 2018 Lahore 255. The learned counsel further contended that even if Entry No. 152 is not found ultra vires out-rightly then same may be read down so as to ward off the discrimination and conflict of the law with provisions of the Constitution and other laws. In this respect, he placed reliance upon the judgment reported as PLD 2014 Supreme Court 531.The learned counsel also stated that Entry No. 151 contained a legal fiction where it had stated that import of plants etc. by the industrial concerns located in tribal areas, to which the provisions of the Act or the notifications issued thereunder would have not applied, had Article 247 of the Constitution not been omitted under the Twenty-fifth Amendment . Building on his arguments on said premise, he added that the deeming clause had , the effect of continuing the mandate of sub-article (3) of Article 247 of the Constitution for the purpose of sales tax laws and the situation would remain that sales tax laws would not be deemed applicable in respect of petitioners, who should be treated entitled to all the exemptions and tax benefits which had been availed by them prior to repeal of Article 247 of the Constitution, and therefore Item No. 152 exclu ding steel, ghee and cooking oil industries had not been sustainable. In this regard, he placed reliance on the judgments reported as PLD 1975 Supreme Court 397 and PLD 2006 Supreme Court 602. Muhammad Akbar Khan learned counsel for petitioners in some of the petitions relied upon an unreported judgment of this Court given in W.P. No. 657 of 2002 and contended that once a benefit is extended its withdrawal may be tested on the touchstone of unreasonableness and arbitrariness. He also relied upon judgment of the august Supreme Court of Pakistan rendered in the case of "Commissioner Inland Revenue Peshawar v/s Tariq Mehmood & others" reported as 2021 SCMR 440 and contended that the impugned legislation had been discriminatory . Mr. Abdul Rahim Jadoon, Advocate also adopted and relied upon arguments of Mr . Isaac Ali Qazi, ASC.
4. Mr. Ishtiaq Ahmad, learned counsel representing some of the respondents in these connected cases, contended that the impugned levy of sales tax has been adjustable as federal excise duty, which is being received in the sales tax mode. He in this respect referred to section 7 of the Federal Excise Act, 2005 (hereinafter referred to as "the FED Act" ) as well as Second Schedule to the FED Act Wherein edible oil, vegetable ghee, cooking oil and steel billets etc. had been included in the Schedule. The learned counsel added that same was the reason that electricity consumption of other industries had been given exemptions under Entry No. 152, but since these three industries had been included in the Second Schedule and the sales tax received from them had been adjustable as federal excise duty leviable on them separately , therefore they had not been granted the exemptions. Mr. Mukhtiar Ahmad Maneri, Advocate added that Entry No. 49 of Fourth Schedule to the Constitution provided for powers of the parliament in respect of levying taxes and parliament had not exceeded its powers in any manner in imposing the levy. He also contended that the levy was in-fact entirely adjustable against federal excise duty and no prejudice was likely to be caused to the petitioners. Mr. Ghulam Shoib Jally, Advocate also rebutted arguments of learned counsel for petitioners and contended that the classification of these three industries had fully been based upon intelligible differentia as the sales tax on electricity paid by the petitioners has fully been adjustable against federal excise duty. The learned counsel also placed reliance upon earlier judgment of this Court given in the case of "M/S Hadi Khan Silk Mils & others v/s Govt: of Pakistan through Secretary Finance & others" ("W.F. No. 442-M of 2020"), as well as judgment in the case of "Mian Nazir Sons Industries Ltd. and another v/s Govt of Pakistan & others" reported as 1992 SCMR 883. Mr. Noroz Khan, the learned Deputy Attorney General appearing on behalf of Federation, submitted that malafide cannot be attributed to the legisl ature and that a valid piece of legislation cannot be called in question before this Court.
5. We have heard arguments of learned counsel for the parties, learned Deputy Attorney General appearing on behalf of Federation and perused the record. Learned Attorney General for Pakistan had been noticed but in his place the learned DAG appeared and argued the case.
6. We will first deal with contentions of learned counsel for the petitioners regarding discrimination. On the face of text of Entry No. 152 of Sixth Schedule to the Act it appears starkly discriminatory , as all the industries have been shown entitled to the benefit of exemptions of sales tax on supplies of electricity for the given period i.e. the day when assent was given to the Twenty-fifth Amendment till 30th June, 2023. The learned counsel for petitioners in such perspective have raised the arguments that there had not been intelligible differentia for the classification which had also been unreasonable according to him and violative against the doctrine against discrimination, embodied in Article 25 of the Constitution. But it has not been the real situation of the case in-fact. Entries No. 151 & 152 inserted in the Act through Finance Act 2019 are reproduced hereunder for ready reference; "151 (a) Supplies; and
(b) Import of plant, machinery , equipment for installation in tribal areas and of industrial inputs by the industries located in the tribal areas, as defined in the Constitution of Islamic Republic of Pakistan, .... as made till 30th June, 2023, to which the provisions of the Act or the notification issued thereunder , would have not applied had Article 247 of the Constitution not been omitted under the Constitution (T wenty-fifth Amendment) Act, 208 (XXXVII of 2018); Provided that, in case of imports, the same shall be allowed clearance by the Customs authorities on presentation of a post-dated cheque for the amount of sales tax payable under the Sales Tax Act, 1990, and the same shall be returned to the importer after presentation of a consumption or installation certificates, as the case may be, in respect of goods imported as issued by the Commissioner Inland Revenue having jurisdiction.
Provided further that if plant, machinery and equipment, on which exemption is availed under this serial number , is transferred or supplied outside the tribal areas, the tax exempted shall be paid at applicable rate on residual value.Respective heading 152 Supplies of electricity , as made from the day of assent to the Constitution (T wenty-fifth Amendment) Act,2018 till 30th June, 2023, to all residential and commercial consumers in the tribal areas which were set and started their industrial production before 31st May , 2018, but excluding steel and ghee or cooking oil industries.2716.0000"
Section 7 of the FED Act has provided for application of the provisions of the Sales Tax Act. Sub-section (1) thereof provides that in case of goods specified in the Second Schedule the duty shall be payable in sales tax mode, whereby the person paying such duty shall be entitled to deduct the tax paid during the tax period, from the amount of duty of excise due from him, in the mode and manner as provided in clauses (a), (b), (c) and (d) of sub-section
(1) of section 7 of the FED Act. In explanation to the section it had also been provided that the input tax, output tax and tax period shall have same meaning as assigned to them in the Sales Tax Act, 1990. In Second Schedule to the FED Act Item No. (2) contains the entry of vegetable; ghee and cooking oil while item No. (4) thereof bears entry of steel billets, ingots, ship plates, bars and other long rolled products. In other words, the sales tax being paid by these three industries on electricity bills, is completely adjustable towards the federal excise duty. Such a facility has not been available to industries other than those mentioned in the Second Schedule of the FED Act nor has it been specifically notified by the Federal Board of Revenue through a notification in the official gazette under sub-section (1) of section 7 of the FED Act. If any industry in the area is so notified same would obviously be made subject to same mode of tax collection of the sales tax, but till date no such notification could be brought to the notice of this Court. The other industries have therefore not been provided to be entitled to adjustment of sales tax against federal' excise duty and therefore they have reasonably been put in a separate class, while the industries of vegetable, ghee, cooking oil and steel, to whom such facility of adjustment of the sales tax against federal excise duty has been available constituted a distinct class, which can reasonably be classified as such. An intelligible differentia has therefore been existing in/the case of the subject classification having rational nexus to the object achieved. The object had been ensuring a seamless recovery of the taxes, which parliament is otherwise fully empowered to levy on the subject area, after repeal of Article 247 of the Constitution by way of the Twenty-fifth Amendment . No case for discrimination was therefore found available in the impugned legislation, making it liable to be declared ultra vires to Constitution. It has been held by Hon'ble Supreme Court of Pakistan in the case of "Messrs Elahi Cotton Mill Ltd. and others v/s Federation of Pakistan through Secretary Finance & others" reported as PLD 1997 Supreme Court 582 that legislature is competent to classify persons or properties into different categories subject to different rates of tax. It has also been held in said judgment that where same class of property similarly situated was subject to an incident of taxation, which results in inequality amongst holders of the same kind of property , it was liable to be struck down on account of infringement of the fundamental right relating to equality , but in the cases in hand the situation as explained above is not such which subjects the petitioners to an extra burden of taxation. The reason for treating them differently , was very much available as discussed above.
Further ahead in the Elahi Cotton Mills judgment it had also been held;- "A State does not have to tax everything in order to tax something. It is allowed to pick and choose districts, objects, persons, methods and even rates for taxation if it does so reasonably".
The judgment has also laid down that the tests of vice of discrimination in a taxing law had been less rigorous. If there was equality and uniformity within each group founded on intelligible differentia having a rational nexus with the object sought to be achieved by the law, the constitutional mandate that a law should not be discriminatory , is fulfilled. It goes on saying that a policy of a tax in its operation might result in hardships or advantages or disadvantages to individuals assessees which are accidental and inevitable, but this fact simpliciter was not constituting violation of any of the fundamental rights.
7. Another argument of learned counsel for petitioners regarding introduction of a deeming clause in Entry No. 151 of the Sixth Schedule and reading it to the effect that Article 247 of the Constitu tion should be deemed to have continued for the purpose of levy of sales tax, is also difficult to be agreed with. A deeming clause has been inserted in Entry No. 151 by the legislature, but for limited purposes. It is itself clear from express words contained in Item No. 151 where it provides; (exemption by specifying that) imports of plant, machinery , equipments and industrial inputs by the industries located in the tribal areas, to which the provisions of the Act or the notifications issued thereunder would have not applied, had Article 247 of the Constitution not been omitted under the Constitution through Twenty-fifth Amendment . Purpose of insertion of the deeming clause has been no other than, identifying those plants, machinery , equipments and industrial inputs which were aimed to be exempted from levy of sales tax. Intention of the legislatu re in inserting the words had not been giving a blanket exemption from sales tax. It stands further clarified when read with Entries No. 152 & 153 where in Entry No. 152 has separately been dealing with supplies of electricity to all residential and commercial consumers in the tribal areas, which had been exempted from levy of sales tax (but exception has been provided for to steel, ghee and cooking oil industries). Entry No. 153 has also been put in place in purview of the mechanism provided in section 7 of the FED Act which had made the federal excise duty (collectable under sales tax mode) adjustable against sales tax and has also made the sales tax received in such a case adjustable against federal excise duty leviable there-against.
The net effect has been no other than, providing a regime where in the given cases the assessees are made to pay either of the two taxes. Intention of the legislature has been very much clear from the text contained in Items No. 151, 152 and 153, which bears testimony to the truth that the legislature has never intended giving a blanket exemption from provisions of the whole of sales tax by insertion of such entries.
8. The purpose of interpretation is reaching at the true intention of the legislature and when it is manifestly clear from the express words, employed by the legislature, then it cannot be given any other meaning unless the situation of conflict with other law exists or absurd consequences are apprehended. While relying upon the case law developed in England it had been opined in leading treaties on the subject i.e. "Maxwell on the Interpretation of Statutes", Twelfth Edition by P.St. J. Langan that the object of all interpretations was to discover the intention of Parliament and that it must be deduced from the language used, particularly when such words were found conveying the real intention. Relevant part of the discussion is reproduced hereunder for ready reference; "The first and most elementary rule of construction is that it is to be assume d that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and otherwise in their ordinary meaning, and the second is that the phrases and sentences are to be construed according to the rules of grammar . "The length and detail of modern legislation," wrote Lord Evershed M.R., "has undoubtedly reinforced the claim of literal construction as the only safe rule" . If there is nothing to modify , alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences. "The safer and more correct course of dealing with a question of construction is to take the words themselves and arrive if possible at their meaning without, in the first instance, reference to cases."
The rule of construction is "to intend the Legislature to have meant what they have actually expresses."
The object of all interpretation is to discover the intention of Parliament, "but the intention of Parliament must be deduced from the language used, for it is well accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law ."
Hon'ble Supreme Court of Pakistan while giving its judgment in the case of "Syed Mehmood Akhtar Naqvi v/s Federation of Pakistan through Secretary Law and others" reported as PLD 2012 Supreme Court 1089 has also held that words, phrases and sentences used in a statute should be construed according to their normal meaning unless such an interpretation leads to some absurdity or where the context or object of the statute suggest something to the contrary . Relev ant part of observations of the august Court, given in said judgment, are reproduced hereunder for ready reference; "It is a cardinal principle of construction that the words of a statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning unless that leads to some absurdity or unless there is something in the context - or in the object of the statute to suggest the contrary by necessary implication. The intention of the Legislator is primarily to be gathered from the language used, which means that attention should be paid to what has been said and also to what has not been said. As a consequence a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided.
The courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of statute should have effect. The Court has to discover true legislative intent while interpreting statutes.
It was held in the case of Tata Consultancy Services v. State of Andhra Pradesh (AIR 2005 SC 371), that literal construction not to be denied only because the same may lead to penalty . It is not the duty of Court to either enlarge scope of legislation or the intention of the Legislators when the language of the provision is clear . While construing the provisions of statutes no provision should be rendered meaningless and there is no scope of placing unnatural interpretation on the meaning of language used by the legislators."
In the case of "Baz Muhammad Kakar and others v/s Federation of Pakistan through Ministry of Law and justice and others" reported as PLD 2012 Supreme Court 923 Hon'ble Supreme Court of Pakistan had also held that words used in a statute should be literally construed by giving them their ordinary and plain meaning. We have therefore no reason, in the case in hand, to depart from literal meaning of the impugned legislation.
09. Learned counsel for the petitioners has also argued that exemptions had been available to the petitioners under SRO No. 1212/2018 and its unilateral withdrawal, without giving any reason and justification, had also been violative of their rights. The principles for judging withdrawal of some facility in executive or administrative capacity or by way of subordinate legislation are different, than the principles that applies to withdrawal of such a facility through legislation competently enacted by parliament. The criteria for testing vires of a legislative instrument has only been the constitutional provisions and fundamental rights enshrined therein. Such a criteria can be found embedded in Article 8 of the Constitution. Unreasonableness or other grounds available for judging an act done in executive capacity or through subordinate legislation have not been valid grounds for testing the validity of a valid piece of legislation, competently enacted. The judgments relied upon by learne d counsel for petitioners in this respect have also been given in cases of withdrawal through executive orders or subordinate legislation, but same cannot be relied upon for striking down a primary law. The principles of promissory estoppel cannot be invoked for striking down legislation. Hon'ble Supreme Court of Pakistan in its judgment given in the case of "Mian Nazar Sons Industries v/s Government of Pakistan and others" reported as 1992 SCMR 883 has held that the doctrine of promissory estoppel could not be invoked in case of withdrawal of exemption from payment of custom duties. While relying upon ratio in the case of "Pakistan v/s Sala-ud-Din" reported as PLD 1991 Supreme Court 546 it had also been held that doctrine of promissory estoppel could not be invoked against legislature, which could not make a representation. Relevant part of observations of august Court are also reproduced hereunder for ready reference; Learned counsel in support of his arguments has also placed reliance on Federation of Pakistan v.
Muhammad Aslam (1986 SCMR 916), Union of India v. Anglo Afghan Agencies (AIR 1968 SC 718) and Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh (AIR 1979 SC 621). The two Indian decisions proceed on the basis of promissory estoppel in respect of governmental action. In the case of M.P. Sugar Mills the question was whether a representation made with regard to the exemption from payment of sales tax, which was acted upon could be withdrawn to the detri ment of the person so acting.
The case of Ango Afghan Agencies also dealt with the question of promissory estoppel in relation to import trade policy notified under section 3 of the Imports and Exports (Control) Act, 1947. A distinction was drawn in these cases between actions or representations of the Government which are in the domain of executive or administrative authority and those that are legislative in character . In a recent case which specifically dealt with the doctrine of promissory estoppel, this Court in Pakistan v. Salahuddin (PLD 1991 SC 546) has held that the same cannot be invoked against Legislature or laws framed by it because the Legislature cannot make a representation."
Ratio of the above cited judgment in the case of Mian Nazir Sons Industries Supra .had also been followed by Hon'ble Apex Court in the case of "M/S Abdul Wahid v/s Govt: of Pakistan and others" reported as "1993 SCMR 17" by reiterating same principle that doctrine of promissory estoppel could not be invoked against legislature, as it could not make a representation. An exemption may be withdrawn through legislation, as held by Hon'ble Apex Court in the above cited judgment, and it cannot be equated with private property protected under Article 24 of the Constitution, and arguments of learned counsel for petitioners in this respect has also been misplaced.
10. Arguments of learned for the petitioners regarding malafide is also lacking substance. Though malafide cannot be attributed to legislature, but the reason advanced by the learned counsel is also not found plausible. According to them, powers of exemption had been vested in Federal Government under section 13 of the Act, but instead of utilizing such powers the matter had been taken to legislature with an aim of depriv ing the petitioners from raising a challenge thereto, beside divesting a Court of law from striking it down. By devolving powers to the Federal Government under sub-section (1) of section 13 of the Act for granting exemptions, parliament has not divested itself of the authority of amending any provision of the Sales Tax Act or Schedule thereto. Schedule has been a part of the statute and the legislature retains the powers to amend or repeal not only any provision of a statute including the Schedule. Making changes in the Schedule has therefore been fully within the competence of legislature, to which no objection can be raised. Even otherwise, sub-section (6) of section 13 itself provides that the powers utilized by the Federal Government under sub-section (1) or sub-section (2) of section 13 of the Act has been subject to parliamentary oversight. Parliament cannot be held divested of the powers to make changes in the Schedule. In the case of "Fauji Foundation & another v/s Shamimur Rehman" reported as PLD 1983 Supreme Court 457 it had been held that presumption always exist in favour of bona fide of legislature unless express proof is provided by a party shifting the burden to the other party for proving bona fide of the legislature.
Relevant of part of the findings are reproduced hereunder for ready reference; The conclusion that it was willfully withheld did not automatically flow from its non-production. The High Court instead of evaluating the reasons straightaway drew an adverse inference of fact that the impugned legislative instrument was not promulgated in the usual manner . Its reasoning for this conclusion was that had the file been produced the notings therein would have shown the reasons and its denial was referable to its being intentionally withheld. Now, before the drawal of such presum ption, the law required some prima facie express proof and it was then that the onus could shift on to the second appellant to establish the bona fides of the legislation. Except for pleadings and assertions, which are not proof there was nothing else to shill the onus on to the appellants. A cursory reference to the two incriminatory actions alleged against Inamur Rahman and the facts apparently taken by the High Court to be admitted, which reflected in a small measure to the inception of the Mill and the loan advance d to the sponsoring Directors; could not furnish any 'express proof, and the mere taking of judicial notice of incriminatory actions could not unequivocally pass off as proof of mala fides as the veracity of the facts on which these actions were founded was under dispute. Here I may add that the High Court also could not place reliance on the facts pleaded as to the bona fides of the loan of Rs. 90 lacs taken by the sponsoring Directors and so also efforts made by them to secure loans from other sources. As these matters were hotly disputed, they required appraisal and a finding thereon as essentially they were matters of proof Accordingly , they could not be regarded as proof which the. High Court erroneously did, so as to place the onus on the appellants to show the bona fides of legislation."
The fact that parliament had itself made the amendments despite the fact that such powers also stood devolved to the Federal Government under section 13 of the Act, is not sufficient to presume existence of malafide on part of parliament. Malafide cannot be attributed to legislature, on the basis of such a far-fetched presumption.
11. The arguments of learned counsel for the petitioners that the impugned levy has been confiscatory is also difficult to be agreed with, for the reason that same levy has already been adjust able against federal excise duty and it had not been creating any additio nal burden on the petitioners. So far as levy of federal excise duty is concerned, same has neither been impugned in the instant constitutional petitions, nor has its legality been in questioned, before this Court in the instant proceedings, but the levy in hand cannot be termed to be confiscatory .
Even otherwise, levy of sales tax on electricity consumption of industrial output does not have the potential of destroying the business of industrial concerns and such a levy cannot be held to be confiscatory when the rates have not been exorbitant to the extent that it may render conducting of the business impracticable. But without analyzing said aspect of the cases it can safely be held that since the levy of sales tax is adjustable against the federal excise duty under section 7 of the FED Act, therefore it has not at all been putting any additional burden on the registered persons and such a levy cannot be termed to be confiscatory .
12. Petitioners have challenged vires of a legislative instrument, for striking down of which none of the grounds agitated by the petitioners at the bar was found convincing. The impugned piece of legislation has not been violative of Article 8 of the Constitution. While judging vires of a legislative instrument a constitutional Court has to explore all the means through which such a piece of legislation may be saved. Presumption should always be taken in favour of constitutionality and validity of a law and it should be saved rather than destroyed. In the case of "Messrs Elahi Cotton Mill Ltd. and others v/s Federation of Pakistan through Secretary Finance & others" reported as PLD 1997 Supreme Court 582 it, had also been held by Hon'ble Supreme Court of Pakistan that law should be saved rather than destroyed and the Court must lean in favour of upholding the constitutionality of a legislation. Regarding testing the vires of laws relating to economic activities and taxation a much more stringent criteria has been provided for striking down such laws. Relevant part of observations of the august Court given in this respect are as under; From the above case-law and the treatises, inter alia the following principles of law are deducible;
(i) That in view of wide variety of diverse economic criteria, which are to be considered for the formulation of a fiscal policy , Legislature enjoys a wide latitude in the matter of selection of persons, subject-matter , events, etc. for taxation. But with all this latitude certain irreducible desiderata of equality shall govern classification for dif ferential treatment in taxation law as well.
(ii) That Courts while interpreting laws relating to economic activities view the same with greater latitude than the laws relating to civil rights such as freedom of speech, religion etc., keeping in view the complexity of economic problems which do not admit of solution through any doctrinaire or straitjacket formula as pointed out by Holmes, J. in one of his judgments.
(iii) That Frankfurter J., in Morey v. Doud (1957) U.S. 457 has remarked that "in the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to the legislative judgment."
Further reliance in respect of existence of presumption of constitutionality of a law, may also be placed on ratios of judgments given in the case of "Dr. Tariq Nawaz and another v/s Govt: of Pakistan through Secretary Ministry of Health & another" reported as 2000 SCMR 1956 , the case of "Federation of Pakistan through Secretary Finance & others v/s Haji Muhammad Sadiq & others" reported as PLD 2007 Supreme Court 133 and the case of "Dr. Mobashir Hassan & others v/s Federation of Pakistan & Others" reported as PLD 2010 Supreme Court 265 .
13. The learned counsel for petitioners have also raised a plea for reading down the clause in Item No. 152 providing exclusion of the steel, ghee and cooking industries from the exemption of sales tax given in the subject areas, by relying upon judgment of Hon'ble Supreme Court of Pakistan reported as PLD 2014 Supreme Court
531. The law providing for exception thereof has neither been violative of any provision of the Constitution, nor has same been inconsistent with any other law. No absurdity or illogical consequences are likely to flow from operation of the law, as it have been fitting in the interchangeable regime provided in section 7 of the FED Act, therefore the essential conditions provided, for employing the doctrine of reading down as explained in the case of "Province of Sindh through Chief Secretary and others v/s M.Q.M through Deputy Conv ener and others" reported as PLD 2014 Supreme Court 531 cannot be found forthcoming in the case in hand.
14. In light of what has been discussed above, all the connected writ petitions were found lacking any substance and same are accordingly dismissed.