Shahid Jamil Khan, J:- Mr. Khalid Ishaq, Advocate General Punjab and Mr. Asad Ali Bajwa, Deputy Attorney General for Federation are present before the Court in response to the query raised in order dated 23.10.2023, relevant excerpt is reproduced:- "2. The Attorney General Office and Advocate General Office are confronted that constitutional jurisdiction of this Court is primarily for enforcement of fundamental rights. It is duty of the Provincial Government even if not of Federal Government to provide essential commodities to the citizen on controlled and affordable rates. Both the offices shall assist the existing constitutional and legal position, presuming that the power is not with the Federation and why this Court in these proceedings cannot direct the provincial government to enforce the fundamental rights of providing essential commodities on controlled and affordable rates even if there is any lacuna in law."
2. In this and connected petitions (W.P.Nos.595, 3095, 4007, 4012, 4030, 4083, 51039 and 53071 of 2022), lack of action on part of Provincial Government to control and regulate the prices of essential commodities is being examined. The Provincial Government had taken various steps under the law and on directions by this Court. The Government has stopped enforcement of Price Control, upon decision by a learned Division Bench in ICA No.61692 of 2021 dated 05.10.2023, declaring Price Control Prevention of Profiteering and Hoarding Act, 1977 ("Act of 1977") as ultra vires of Federal Legislature. The Government of Punjab has stopped enforcement of price control in presence of the judgment, ibid and by pleading gap in law.
3. Both the learned Advocate General Punjab and Deputy Attorney General for Federation have not disputed that to provide essential commodities on controlled and affordable price is the Constitutional duty of the Government qua the fundamental rights under Articles 9, 14 read with Article 38 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution").
Supreme Court in the matter of Enormous increase in the price of flour reported as (2014 SCMR 329) has already directed the Provincial and Federal Governments for price control of essential commodities by enforcing Article 38.
4. Enforcement of fundamental rights and protection of the Constitution is the primary function of a High Court under the Constitution and as per the oath the Judge of this Court has sworn accordingly. Article 199(2) of the Constitution gives unabridged power to this Court for enforcement of fundamental rights under Chapter 1, Part-II, which is subject only to the Constitution, not law.
Article 199(2) is reproduced:- "(2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged."
August Supreme Court in judgment Human Rights Commission of Pakistan and 2 others vs. Government of Pakistan and others (PLD 2009 SC 507) endorsed this view while examining rights of bounded labours;
33. The reach of clause (c) however is wider. It not merely enables a Court to declare an action of a State functionary inconsistent with fundamental rights to be unlawful but also enables the Courts to practically enforce such rights by issuing appropriate directives as is evident from its language.
Accordingly, this Court after having earlier held that the fundamental rights guaranteed by Article- 17 included the right of a political party to contest elections as a collective entity was able to issue mandatory directives in the case of Benazir Bhutto v. Federation of Pakistan reported in (PLD 1989 SC 66) to the election authorities to amend the election rules to provide for the same under its powers to enforce fundamental rights under Article-184(3) of the Constitution. Moreover, such directives could be issued to any person including the Government. In the case of Peoples Union for Democratic Rights v. Union of India reported in (AIR 1982 SC 1473) it was held that though some of the fundamental rights imposed negative obligation on the part of the mate not to encroach upon individual's liberty etc., there were others, which were positively enforceable against the whole world. We are therefore clearly of the view that the High Court has plenary powers to positively enforce fundamental rights not merely against public authorities but even private parties. Accordingly direction for positive enforcement of fundamental rights against private parties could only be given by the High Court in respect of rights guaranteed, inter alia, by Articles 11, 22 etc. which might in most cases require enforcement against such parties.
[Emphasis supplied] It is apprised by both law officers of the Court that they have instruction to challenge the judgment, ibid. Till the decision by Apex Court, enforcement of fundamental rights cannot be left in lurch. The respondents are directed to continue following the directions for price control of essential commodities under the direction by this Court, even if there is any gap or absence of relevant law.
5. Re-list for 16.11.2023. This order shall also be read in all connected petitions.