JAWAD HASSAN, J. This judgment will examine Privatisation Policy, Privatisation Programme and Privatisation Process in the light of certain provisions of Privatization Commission Ordinance, 2000 (the "Ordinance") and the Privatization Commission (Amendment) Ordinance, 2023 (the "Amended Ordinance") alongwith provisions of The Privatization (Modes and Procedure) Rules, 2001 (the "Rules 2001"), Privatisation Commission (Government to Government Agreement Mode-Manner and Procedure) Rules, 2023 (the "Rules 2023"), Privatisation Commission (Valuation and Property) Rules 2007 (the "Rules 2007"), Privatisation Commission (Hiring of Financial Advisers) Regulations, 2018 (the "Regulations 2018"), Privatisation Commission (Hiring of Valuers) Regulations, 2001 (the "Regulations 2001"), The Privatisation Commission (Confidentiality and Secrecy of Documents) Regulations 2003 (the "Regulations of 2003") and The Pakistan International Airlines Corporation (Conversion) Act, 2016 (the "Conversion Act of 2016") as through the petition in hand, a challenge is made to the procedure provided under Section 23 and 24 of the "Ordinance" qua privatization of Pakistan International Airlines Corporation Limited (the "PIACL").
I. OVERTURE OF THE CASE
2. This petition, pro bono publico, was filed by the Petitioner, a practicing advocate, seeking directions to the Secretary of the Privatization Commission (the " Privatisation Commission")/ Respondent No.2, Secretary Aviation, Government of Pakistan (the "Respondent No.3") and Pakistan International Airlines Corporation Limited through its Chief Executive (the "Respondent No.4") to ensure strict compliance of statutory requirement envisaged under Section 23 and 24 of the "Ordinance". During the pendency of this writ petition, the Petitioner also filed C.M.No.01 of 2025 for summoning of record qua evaluation of the "PIACL" assets under Article 19A of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"). Though notice, in the above said application, was issued to the other side yet the same remained pending which is now being decided today through this judgment.
II. PETITIONER'S SUBMISSIONS
3. Learned counsel for the Petitioner inter alia argued that neither the "Privatisation Commission" published notice of intent to privatize the "PIACL" as per mandate of Section 23 of the "Ordinance" nor its assets were properly evaluated in terms of Section 24 of the "Ordinance"; that the "Privatisation Commission" is legally bound to conduct the process of privatisation of the "PIACL" in a transparent and fair manner; that the Respondents have failed to provide complete evaluation reports alongwith details of properties and complete assets of the "PIACL" and non-disclosure of the same, renders the entire process arbitrary and unlawful; that non-provision of such details constitute an essential part of assets of the "PIACL" being privatized; that the principle of transparency requires disclosure of complete evaluation record of the "PIACL" domestic as well as international, failure to do so constitutes a violation of the fundamental right to information guaranteed under Article 19-A of the "Constitution". He has relied on "ARSHAD WAHEED versus PROVINCE OF PUNJAB and others" (PLD 2010 Lahore 510).
III. SUBMISSIONS OF FEDERATION/RESPONDENT NO.1.
4. Barrister Zain Mansoor, Assistant Attorney General submitted that this petition is liable to be dismissed on the ground that it does not disclose any action or violation of law and that it was also not properly documented.
IV. SUBMISSION ON BEHALF OF PRIVATIZATION COMMISSION (RESPONDENT NO.2)
5. Barrister Sardar Kalim Ilyas, ASC inter alia submitted that no violation of any law/rules have been committed rather all the necessary requirements have been fulfilled; that the requirement of Section 23 of the "Ordinance" was fully met with by the "Privatisation Commission" as intent of "PIACL" privatization was given by the "Privatisation Commission" in consultation with the Federal Government vide advertisement dated 02.04.2024 in three international dailies i.e. "Financial Times", "China Daily" and "The Wall Street Journal" and four national newspapers (English and Urdu) i.e. "Business Recorder", "Dawn", "Daily Express" and "Daily Jang" (Annex-A to C); that this was also published on official website of PPRA and same was re-advertised on 15.04.2024, extension whereof was also advertised on 03.05.2024; that Financial Advisor Ernst & Young Consulting LCC, Dubai was appointed by the "Privatisation Commission" strictly as per Section 24 of the "Ordinance" for evaluation of "PIACL" local and international assets and such evaluation is still under process and same will be submitted to the "Privatisation Commission" for review and necessary approval. In order to strengthen aforesaid submission, he has referred to Section 3 of the "Rules 2001", Rule 4 of the "Rules 2007" and Regulation 3 of the "Regulations 2018".
6. Barrister Minaal Tariq has adopted the arguments of Sardar Kalim Ilyas, ASC and argued that the Petitioner has wrongly cited the case law reported in "Dr. AKHAR HASSAN KHAN versus FEDERATION OF PAKISTAN etc" (2012 SCMR 455) wherein the powers of the executive to enter into contracts and discouraged the use of judicial review in the policy making domain of the executive have specifically been upheld. Barrister Minaal Tariq further argued that this petition is devoid of merit and liable to be dismissed, as the privatisation process of the "PIACL", which forms its basis, has concluded with the rejection of bid and consequently, the privatisation proceedings stand annulled, rendering the Petitioner's cause of action as infructuous. She added that the Supreme Court of Pakistan in various judgments has held that a public interest litigation must transparently establish bona fides and should not be driven by private or vested interests, but must evidently seek to advance public welfare and interest. She has placed reliance on "PREMIER BATTERY INDUSTRIES versus KARACHI WATER AND SEWERAGE BOARD" (2018 SCMR 365), "MUHAMMAD SHAFIQUE KHAN SWATI versus FEDERATION OF PAKISTAN etc" (2015 SCMR 851), "ECHO WEST INTERNATIONAL versus GOVERNMENT OF PUNJAB etc" (PLD 2009 SC 406) and "MOULVI IQBAL HAIDER versus CAPITAL DEVELOPMENT AUTHORITY etc" (PLD 2006 SC 394). While relying on the principles enunciated in aforesaid judgments, Barrister Minaal Tariq stated that this petition is liable to be dismissed for lack of bona fides and for its apparent purpose to impede the privatisation process of "PIACL" because this petition does not qualify as public interest litigation, as opposing the privatisation of a loss-making entity, in line with the Federal Government's economic policy aimed at economic revival and improving the investment climate, does not advance public interest or welfare. She further added that the privatisation of "PIACL" is being carried out under the constitutional mandate enshrined in Article 173 of the "Constitution". While making reference to Pakistan International Airlines Corporation (Conversion) Act, 2016 (the "Act of 2016"), she emphasized that the "PIACL" was transformed from a statutory corporation into a public limited company, wherein approximately 96% of the shares are held by the Federal Government and under Article 173 of the "Constitution", the executive authority of the Federation encompasses the power to enter into contracts and dispose of government property, which includes State-Owned Enterprises such as "PIACL".
V. SUBMISSIONS ON BEHALF OF SECRETARY AVIATION (RESPONDENT NO.3)
7. Barrister Haseeb Shakoor Piracha, Additional Attorney General objected to maintainability of this petition on the grounds that the Petitioner is not an aggrieved person and that the Secretary Aviation is neither proper nor necessary party as the process of privatization of "PIACL" is being undertaken by the "Privatisation Commission" under the "Act of 2016" and the "Ordinance".
VI. SUBMISSION OF PAKISTAN INTERNATIONAL AIRLINES CORPORATION LIMITED (RESPONDENTS NO.4&5)
8. Barrister Pirzada M. Aurang Zaib, Advocate and Haroon Rasheed Abbasi, DGM, Legal Services/Attorney Pakistan International Airlines objected to maintainability of this petition and stated that the Petitioner has neither locus standi to file this petition nor her grievance relates to process of privatization as this process is being undertaken by the "Privatisation Commission" under the "Ordinance" and the Rules framed thereunder. They further stated that the process of privatisation is undertaken by the "Privatisation Commission" and all necessary legal formalities under the "Ordinance", the Rules framed thereunder and the "Conversion Act of 2016" have been duly complied with.
9. Haroon Rasheed Abbasi, DGM Legal, during the course of arguments, informed the Court that the bidding process to privatise the "PIACL" has been cancelled and consequently, the petition in hand has become infructuous.
VII. REPORT OF COMPETITION COMMISSION OF PAKISTAN.
10. As per report submitted by the "CCP", a premerger application under Section 11 of the Competition Act, 2010 (the "Act of 2010") read with the Merger Control Regulations, 2016, was filed on 08.04.2024 by the "PIACL" and PIA Holding Company Limited (Holdco) in relation to the acquisition of 100% shareholding of the "PIACL" by Holdco pursuant to a Scheme of Arrangement approved by the Federal Government as part of the privatisation process. Holdco, a government- owned company incorporated in March 2024, was created to succeed to specified assets, liabilities and subsidiaries of the "PIACL", whereas "PIACL" continues as a listed company engaged in aviation and allied services. The Scheme envisaged transfer of non-core assets and liabilities to Holdco, cancellation of existing shareholders' stakes, and their replacement with equivalent shares in Holdco, with a view to enabling subsequent divestment of equity through induction of a strategic investor. Upon competition assessme nt, the Competition Commission defined the relevant market as "Real Estate" in Pakistan, noting that only non-core real estate assets were being transferred, which represented an insignificant portion of the market, thereby raising no presumption of dominance under the Act. Consequently, the Commission held that the proposed transaction raised no competition concerns and authorised it under Section 31(1)(d)(i) of the Act.
VIII. UPSUM OF THE PRIVATIZATION OF THE "PIACL".
10. It has been informed by Barrister Sardar Kalim Ilyas, ASC that the privatisation of the "PIACL" has been a subject of national discourse spanning several decades. Initially having established as a statutory corporation, PIA served as the national flag carrier of Pakistan and played a pivotal role in the country's aviation industry. With the passage of time, due to financial mismanagement, mounting operational losses, and increasing debt, the performance of PIA significantly deteriorated, prompting successive governments to consider restructuring and privatisation as viable remedies. In 2016, the Parliament enacted the PIAC Conversion Act, transforming the entity from a statutory corporation into a public limited company to facilitate its eventual privatisation.
Despite several policy declarations and attempts, the process faced considerable delays due to political, economic, and legal challenges. The recent government initiatives have revived the privatisation agenda, with the objective of improving efficiency, reducing fiscal burden, and attracting private sector investment through the transparent sale of government-held shares in PIACL. The primary objective of this conversion was to enable restructuring and potential privatisation to improve operational efficiency, financial viability, and to reduce the burden on the national exchequer.
IX. NUB OF THE MATTER
11. The nub of the matter in this case is the determination as to whether the process of privatisation undertaken by the "Privatisation Commission" is in conformity with Section 23 and 24 of the "Ordinance", the Rules and the Regulations framed thereunder or whether the same is tainted with arbitrariness, procedural impropriety or lack of lawful authority. The controversy thus essentially calls for judicial scrutiny of the legality, propriety and fairness of the privatisation of the "PIACL" within the framework of the governing enactments.
X. ROLE OF COMPETITION COMMISSION OF PAKISTAN.
12. Before discussing the issue raised in this petition by the Petitioner regarding alleged non- compliance of mandatory requirements in terms of Section 23 and 24 of the "Ordinance" alongwith the Rules and Regulations made thereunder, it is pertinent to discuss the role of the Competition Commission in this regard. This Court has already strengthened the role of Competition Commission of Pakistan as a 'Regulator' in the case of "DILSONS (PRIVATE) LIMITED and others versus SECURITY & EXCHANGE COMMISSION OF PAKISTAN and another" (2021 CLD 1317) regarding its importance to strengthen the commercial arrangements by holding as under: "21. It is noted that the CCP was established under Section 12 of the Competition Act, with the intent to ensure free competition and economic efficiency and to carry out the administrative function of the executive to promote consumer welfare with the sole objective to regulate anti-competitive behaviour. Purpose of the CCP is to ensure fair competition by regulating the prohibitions set out in Chapter-II of the Competition Act. Therefore, it has a regulatory objective to promote free competition and prevent anti-competitive behaviour and prescribe enforcement mechanisms to ensure compliance. Even for mergers, the CCP is concerned with the effect of the merger on competition as to whether it would lessen competition by creating or strengthening a dominant position in the relevant market. It is a regulatory authority with administrative functions which included giving advice, creating awareness, impart training, review of policy frameworks to foster competition as well as decision making to enforce the regulatory policy.
22. Section 11 of the Competition Act contains detailed provisions concerning the approval of mergers by the CCP. Under Section 11(1) of the Competition Act, no undertaking can enter into a merger which substantially lessens competition by creating or strengthening a dominant position in the relevant market. Similarly, under Section 11(2) of the Competition Act, where undertakings intend to merge whole or part of their business and meet the pre-merger notification thresholds stipulated in the Regulations, such undertakings are required to apply for clearance from the CCP of the intended merger. Under Section 11(3) of the Competition Act, the undertakings are required to submit a pre-merger application to the CCP as soon as they agree in principle or sign a non- binding letter of intent to proceed with the merger. Under Section 11(4) of the Competition Act, the undertakings cannot proceed with the merger until they have received clearance from CCP. On the other hand, under Section 11(5) of the Competition Act, the CCP is required to decide on whether the intended merger meets the threshold and presumption of dominance and is also required to make such order within thirty (30) days of receipt of the application".
Moreover, in this case, as per report submitted by the Competition Commission of Pakistan, the scheme of merger filed by the "PICAC" and by Holdoc was allowed. Based on the comprehensive review of the submitted documents, the role of the Competition Commission of Pakistan (the "CCP") in the privatisation of the "PIACL" is both pivotal and exemplary, reflecting its statutory mandate as an independent, quasi-judicial regulatory authority established under Section 3 of the "Act of 2010". The CCP's involvement in the acquisition of 100% shareholding of the "PIACL" by PIA Holding Company Limited (Holdco) underscores its critical function in scrutinizing mergers and acquisitions to prevent any appreciable adverse effect on competition within relevant markets. In this specific transaction, the "Privatisation Commission" diligently applied its powers under Section 11 of the "Act of 2010" and the Merger Regulations of 2016 to conduct a Phase-I competition assessm ent, meticulously examining the nature of the undertakings, the structure of the Scheme of Arrangement, and the transfer of non-core assets, primarily real estate to ensure that the reorganization did not alter market dynamics or confer undue market power. By defining the relevant product market as "Real Estate" and the geographic market as "Pakistan," and concluding that the transferred assets constituted a statistically insignificant portion of the market, the "CCP" authoritatively determined that the transaction raised no competition concerns, thereby authorizing it under Section 31(1)(d)(i) of the "Act of 2010". This decision not only facilitated the government's privatisation agenda by enabling a streamlined, legally compliant restructuring but also demonstrated the Privatisation Commission's commitment to preserving competitive integrity, protecting consumer welfare, and fostering an environment conducive to investment and economic efficiency, all while upholding its broader responsibilities to educate market participants and enforce compliance with competition principles in alignment with the legislative framework.
XI. DETERMINATION
13. Pertinently, though the Petitioner has filed this pro bono petition challenging the privatisation of the "PIACL", yet without mentioning any ground in this petition except alleged violation of Sections 23 and 24 of the "Ordinance" and violation of fundamental rights. Thus, this Court will determine the fate of such litigation under the strict mandate of Article 199 of the "Constitution". Public Interest Litigation is an extraordinary jurisdiction enabling this Court under Article 199 of the Constitution to address questions of public importance involving the enforcement of fundamental rights of the public at large, particularly where disadvantaged or unorganized segments of society are unable to approach the Court themselves. Such jurisdiction has been exercised in matters of environment, human rights, detention, labour, prisoners, health, education, and transparency in governance.
However, it is settled by now that Public Interest Litigation cannot be misused for private motives or publicity and the Petitioner must establish bona fide intent supported by credible material to justify judicial intervention. Before proceeding further, it would be advantageous to reproduce the prayer made by the Petitioner which reads as: "It is reverentially prayed that the Privatisation Commission (Respondents) may be restrained from the proceedings of privatization of PIA, its National & International assets till constitution of Privatization Appellate Tribunal.
It is further prayed that Privatization Commission may be restricted to ensure compliance of action within the parameter of Privatization Commission 2000 & Privatization Commission (Amendment) Ordinance, 2003".
14. With regard to first limb of prayer, it is admitted by all that the Privatization Appellate Tribunal established under Section 28 of the "Amended Ordinance" has not been constituted till date. It is a settled principle of law that ordinarily when a statute provides for an alternate forum, a party must first exhaust such remedy before invoking constitutional jurisdiction. However, where the statutory forum is non-existent or has not been constituted, the litigant cannot be left remediless. The extraordinary jurisdiction of this Court under Article 199 is therefore available in such exceptional circumstances to ensure that justice is not defeated merely on account of the failure of the executive to establish the requisite forum. As the Privatization Appellate Tribunal has not been constituted therefore, this petition is being entertained on the ground of non-availability of the alternate forum. This Court, after 26th Amendment in the "Constitution", in the case of "KAKAKHAIL TRADERS versus PROVINCE OF PUNJAB etc" (PLD 2025 Lahore 630) has held that "the vague and ambiguous nature of the prayer, coupled with the lack of a clearly established legal right, precludes the grant of any relief. Consequently, the writ petition is dismissed in limine. This Court cautions against the filing of frivolous petitions that serve no legitimate purpose and unnecessarily consume judicial time".
15. With regard to second prayer, the core contention raised by the Petitioner is that the mandatory procedure laid down under Sections 23 and 24 of the "Ordinance" regarding advertisement of privatisation were not duly followed, thereby violating the principles of transparency and fair competition. i. Legal Anthropology of the Privatisation in Pakistan
16. Before deciding the second prayer of the Petitioner, it is important to discuss the privatisation in Pakistan. The legislative scheme governing privatisation of the "PIACL" in Pakistan has evolved progressively over the years. Its genesis may be traced to the Economic Reforms Order, 1972, which was later substituted by the Transfer of Managed Establishments Order, 1978. In order to strengthen investor confidence and to provide for a liberalized economic regime, the legislature thereafter enacted the Protection of Economic Reforms Act, 1992. These enactments collectively provided the foundation, policy framework, and objectives relating to privatisation, which ultimately culminated in a comprehensive statutory regime through the promulgation of the "Ordinance". Section 3 of the Ordinance formally established the Privatisation Commission as a statutory body, while Section 5 thereof delineates its powers and functions. The most significant amongst these is the mandate to frame a privatization policy and to prepare a privatization programme for approval of the Cabinet, as well as to provide overall direction for implementation of privatization activities and to take operational decisions in relation thereto. It must be underscored that these statutory provisions are not merely procedural in nature but are reflective of the broader economic policy of the Government, which has been constitutionally recognized under Article 18 of the "Constitution" guaranteeing freedom of trade, business, and commerce. The role of the Court, in this context, is not to interfere in matters of economic policy per se, but to ensure that the process of privatization, as mandated by law, is carried out in strict conformity with statutory requirements, principles of transparency, and constitutional guarantees, so that public assets are disposed of in a manner that safeguards both public interest and investor confidence. ii. Relevance of Preamble of the "Ordinance"
17. It is evident from the first prayer made by the Petitioner qua challenging the privatisation and restraining the "Privatisation Commission" from proceeding of privatisation under the "Ordinance" and the Rules framed thereunder but before examining the provisions of the "Ordinance", the Court has to fist look into the object of the preamble of the "Ordinance" which starts from the wording "Federal Government is carrying out a programme of privatisation in a fair and transparent manner". Since the preamble of the "Ordinance" provides for the establishment of the Privatisation Commission for implementing the privatisation policy of the Federal Government and to provide for matters connected therewith or incidental thereto which is in line with the powers of the Privatisation Commission under Section 5 of the "Ordinance". The preamble of the "Ordinance" further provides a fair and transparent process of privatisation to secure transaction resulting therefrom. The preamble of the "Ordinance" further provides for the utilization of the proceeds of privatisation for the retirement of Federal Government debt and for poverty alleviation. It is well- settled principle of interpretation that the preamble to a statute is though not an operational part of the enactment but it is a gateway, which opens before us the purpose and intent of the legislature, which necessitated the legislation on the subject and also sheds clear light on the goals which the legislator aimed to secure through the introduction of such law. The preamble of a statute, therefore holds a pivotal role for the purposes of interpretation in order to dissect the true purpose and intent of the law. The Supreme Court of Pakistan in DIRECTOR GENERAL, FIA AND OTHERS Versus KAMRAN IQBAL and others (2016 SCMR 447) has laid down the similar principle by holding that "indeed, preamble to a Statute is not an operative part thereof, however, as is now well laid down that the same provides a useful guide for discovering the purpose and intention of the legislature. It may also be noted that this Court in its earlier pronouncements has already elaborated and discussed in detail the importance of the preamble of an enactment in the cases of "Ms. Tradhol International SA Sociedad Unipersonal Versus Ms Shakarganj Limited" (2023 CLD 819 Lahore), "ABWA KNOWLEDGE PVT LTD etc Versus FEDERATION OF PAKISTAN etc" (PLD 2021 Lahore 436), "CHENAB FLOUR AND GENERAL MILLS etc Versus F.O.P through SECRETARY REVENUE DIVISION etc (PLD 2021 Lahore 343), "Messrs Jet Green (Pvt.) Limited Versus FEDERATION OF PAKISTAN and others" (PLD 2021 Lahore 770), "M.C.B. Versus ADEEL SHAHBAZ etc" (2023 CLD 655 Lahore), "Pakistan Tehreek e Insaaf through Asad Umar Versus Governor Punjab through Principal Secretary" (PLD 2023 Lahore 179=PLJ 2023 Lahore 467), "M/S BAHRIA TOWN PVT Versus DISTRICT CONSUMER COURT etc" (PLJ 2022 Lahore 199 ,PLD 2022 Lahore 488), "F.O.P Versus NASIR MUNIR AHMED etc" (2022 CLC 2072 LAHORE), "ADDL REGISTRAR COMPANY Versus AL-QAIM TEXTILE MILLS LTD" (2021 CLD 931), "Ch Fayya z Hussain Wains Versus Province of Punjab etc"
(PLD 2022 Lahore 1) and "Shaheen Merchant Versus Federation of Pakistan etc" (2021 PTD 2126 Lahore). In view thereof, it is quite evident that the privatisation of the "PIACL" by the "Privatisation Commission" is quite in line with the preamble of the "Ordinance". iii. Role of the "Privatisation Commission" regarding privatisation in view of the Preamble and Section 5 read with Section 23 and 24 of the "Ordinance"
18. Pertinently, the Privatisation Commission was established under Section 3 of the "Ordinance which perform its functions under Section 5 of the "Ordinance" for implementing the privatisation policy of the Federal Government as is evident from its preamble which provides for establishment of the Privatisation Commission and also provide a fair and transparent process of privatisation to secure transactions resulting therefrom. Section 5 of the "Ordinance" reads as under:
5. Functions and Powers of the Commission.- The Commission shall:
(a) recommend privatization policy guidelines to the Cabinet;
(b) prepare for the approval of the Cabinet, a comprehensive privatization programme;
(c) plan, manage, implement and control the privatization programme approved by the Cabinet;
(d) prepare and submit reports to the Cabinet on all aspects of the privatization programme;
(e) facilitate or initiate legislation as approved by the Cabinet by or on behalf of concerned Ministry in connection with the privatization programme;
(f) provide overall directions for the implementation of privatization related activities including, restructuring, deregulation and post-privatization matters in sectors designated by the Cabinet;
(g) take operational decisions on matters pertaining to privatization, restructuring, deregulation, regulatory issues including approval of licensing and tariff rules and other related issues pertaining to the privatization programme approved by the Cabinet;
(h) issue directions and instructions to the management of a business undertaking falling within the purview of the privatization programme approved by the Cabinet on all major important administrative, financial, reporting and policy matters;
(i) publicize the activities of the privatization programme;
(j) propose a regulatory framework, including the establishment and strengthening of regulatory authorities, to the Cabinet for independent and fair regulation of each industry sector falling within the purview of the privatisation programme;
(k) advise the Federal Government in selection and appointment of the head and a member of a regulatory authority;
(l) advise the Federal Government that monopolies are not created in the process of privatisation;
(m) appoint advisors, consultants, valuers, lawyers and such other staff, both local and foreign, on such terms as it may determine to discharge its functions under this Ordinance;
(n) approve and take decisions and perform all acts to implement pre-privatization restructuring, labour rehabilitation and severance schemes, and all other related matters as approved by the Cabinet;
(o) invite applications for the privatization and ensure widest possible participation;
(p) evaluate bids received according to criteria determined by the Commission from time to time and formulate recommendations for consideration by the Cabinet;
(q) recommend to the Federal Government such labour and manpower rehabilitation programmes as may be necessary during privatisation and to develop a roster of such employees who may need rehabilitation;
(r) advise measures to the Federal Government for improvement of public sector units till their privatization;
(s) assist in the implementation of Federal Government policies on deregulation and privatization and advise the Federal Government on deregulating the economy to the maximum possible extent; and
(t) perform such other functions that are incidental or ancillary to carry out the privatization programme approved by the Cabinet.
Overture and Scope of Section 5 of the "Ordinance".
The above provision of law enumerates the functions and powers of the Privatisation Commission and reflects the legislative intent of conferring upon it a wide mandate, albeit subject to the approval and policy control of the Federal Cabinet. Sub-clause (a) of Section 5 of the "Ordinance" obliges the Privatisation Commission to act as a policy advisor by recommending privatisation guidelines to the Cabinet, whereas under subclause (b), it is mandated to prepare a comprehensive privatisation programme, the approval of which rests solely with the Cabinet.
Clause (c) of the Section ibid empowers the Privatisation Commission to plan, manage, implement and control the privatisation programme once approved, thereby making it the executing arm of the Government. Section 5 subclause (d) imposes a reporting duty, requiring the Privatisation Commission to submit reports to the Cabinet on all aspects of privatisation, thereby ensuring transparency and accountability. Subclause (e) of Section 5 of the "Ordinance" contemplates situations where legislative changes are needed, and authorizes the Privatisation Commission to facilitate or initiate such legislation, though only through or on behalf of the relevant Ministry and with the Cabinet's approval, maintaining fidelity to constitutional requirements. Similarly, subclause
(f) entrusts the Privatisation Commission with the responsibility to provide overall directions for restructuring, deregulation and post-privatisation matters in designated sectors, demonstrating that its functions are not confined to the mere sale of assets but extend to broader economic reforms. By virtue of subclause (g) of Section 5 of the "Ordinance", the Privatisation Commission enjoys operational autonomy in taking decisions on restructuring, deregulation, licensing and tariff rules, though such powers remain circumscribed by the framework of the Cabinet approved programme. Subclause (h) vests in the Privatisation Commission supervisory authority over the management of entities included in the programme, enabling it to issue directions on major administrative, financial and policy matters to align operations with privatisation objectives.
Moreover, subclause (i) underscores transparency by requiring public dissemination of activities, while subclause (j) casts upon the Privatisation Commission the duty to propose regulatory frameworks and strengthen regulatory bodies, ensuring that privatisation is coupled with fair and independent regulation of industry sectors. Subclauses (k) and (l) of Section 5 of the "Ordinance" reinforce this regulatory safeguard, the former requiring the Commission's advice in the selection of regulators and the latter obligating it to prevent the creation of monopolies in the process of privatisation. Under subclause (m), the Privatisation Commission is conferred authority to appoint advisors, consultants, valuers and lawyers, whether local or foreign, to secure technical and professional assistance. Subclause (n) empowers the Privatisation Commission to approve labour rehabilitation and severance schemes, thereby ensuring that employees affected by privatization are not left uncompensated or unsupported. Subclauses (o) and (p) highlight the need for fairness and competition, mandating open invitations for participation and evaluation of bids against criteria fixed by the Privatisation Commission, though the final decision rests with the Cabinet.
Subclause (q) further strengthens labour protection by requiring the Privatisation Commission to develop rehabilitation programmes and rosters for affected employees. Subclause (r) of Section 5 of the "Ordinance" emphasizes that until privatisation is effected, public sector units must continue to function efficiently, for which the Privatisation Commission is to advise the Government on necessary measures. Subclause (s) broadens the Privatisation Commission's role by making it a vehicle for implementing Federal Government policies on deregulation, thereby facilitating transition from a controlled economy to a market-based one. Lastly, subclause (t) acts as a residuary provision, empowering the Privatisation Commission to undertake all incidental and ancillary functions necessary for the fulfillment of the privatization programme approved by the Cabinet. A careful and joint reading of Section 5 of the Ordinance makes it abundantly clear that the Privatization Commission has been entrusted with a broad spectrum of functions. Its role is twofold: firstly, to act as an advisory body to the Federal Cabinet by recommending policy guidelines, preparing comprehensive programmes, and suggesting necessary legislative or regulatory measures; and secondly, to serve as an implementing agency to plan, manage and control the privatization process once it has been duly approved by the Cabinet. This provision further ensures transparency, accountability and fairness by requiring the Commission to submit reports, invite public participation, evaluate bids on predetermined criteria, and prevent the creation of monopolies. Equally important is the Commission's responsibility to safeguard labour interests through rehabilitation and severance schemes, while also advising on the efficient functioning of public sector units pending privatization. Thus, the legislative scheme strikes a balance between operational autonomy of the Commission and supervisory control of the Cabinet, ensuring that privatization is conducted not only in accordance with law but also in line with constitutional principles of transparency, competition, and protection of public interest.
19. Privatisation falls under Part-V of the "Ordinance" which deals with privatisation programme (Section 22), advertisement of privatisation (Section 23), valuation of property (Section 24), modes of privatisation (Section 25), publication of privatisation transaction (Section 26) and investigations (Section 27). Since a challenge is primarily made to Sections 23 and 24 of the "Ordinance"; thus both these Sections are being discussed separately. a. Whether there is any violation by the Privatisation Commission in privatizing the "PIACL" under Section 23 of the "Ordinance".
20. The above provision of law deals with advertisement of privatisation that was initiated by the Respondent No.2 after issuing invitation for express of interest in terms of Section 23 of the "Ordinance" which reads as follows:
23. Advertisement of privatisation.- The Commission shall, in consultation with the Federal Government and any concerned enterprise owned or controlled wholly or partially, directly or indirectly by the Federal Government, give notice of its intent to privatize. The Commission shall for each proposed privatisation publish, in at least two English newspapers and two Urdu newspapers with a national circulation on at least two occasions not less than seven days apart, notice of the availability of the subject-matter of the privatisation and of the salient terms and conditions thereof. Advertisements for privatisation, where necessary, will also be placed in newspapers with an international circulation.
The plain reading of Section 23 of the "Ordinance" reveals that consultation with the Federal Government and the concerned enterprise is not optional but a mandatory precondition to the issuance of any privatisation notices and such publication of advertisements in four national newspapers (two English and two Urdu), on two separate occasions with at least a seven-day gap is also compulsory to ensure the widest possible dissemination of information. The international advertisement requirement is context-dependent but becomes necessary where foreign investment is anticipated. The Section ibid mandates two essential procedural requirements for the Privatisation Commission before proceeding with privatisation. First is with regard to consultation which the Commission is legally bound to consult both the Federal Government and the concerned enterprise, (whether fully or partially owned/controlled by the Government), prior to issuing any privatisation notice. Second requirement is regarding public notice, which the Privatisation Commission must advertise its intention to privatise in at least two English and two Urdu newspapers having national circulation and such advertisements must appear on separate occasions with a minimum interval of seven days. For the said purpose, the advertisement must also be placed in international newspapers to attract foreign investors. The purpose of this section is to ensure transparency, competitive bidding, and wide public participation in the privatisation process. It protects against secretive or discriminatory deals and ensures that all stakeholders, including the general public and potential investors (domestic and international), are adequately informed and given a fair opportunity to participate. Failure to comply with these procedural requirements would render the privatisation process legally defective and open to judicial review.
Bare reading of Sections 23 of the "Ordinance" read with Section 5(o) of the "Ordinance" makes it abundantly clear that it is the duty of the Privatisation Commission to invite open applications for the purpose of privatisation, after consultation with the Federal Government, for making the process transparent and competitive by preventing favoritism and ensuring fair competition. It is evident from the record that the required newspaper advertisements were published in national newspapers "Daily Express", "Daily Jang" (Urdu Newspapers) and "Dawn" and "Business Recorder"
(English Newspapers) on 02.04.2025. Notice of invitation was also got published in international dallies "Financial Times" (03.04.2024), "China Daily" (02.04.2024) and "The Wall Street Journal"
(02.04.2024) by the Commission. The said advertisement was also got published on 15.04.2025 with at least thirteen days gap on "Daily Express", "Daily Jang" (Urdu Newspapers) and "Dawn" and "Business Recorder" (English Newspapers). In this view of the matter, the record demonstrates that advertisement of privatisation of the "PIACL" was issued in consultation with the concerned enterprise in accordance with requirement of the Section ibid. b. Whether there is any violation by the Privatisation Commission in privatizing the "PIAC" under Section 24 of the "Ordinance"
21. Second ground agitated by the Petitioner is with regard to violation of Section 24 of the "Ordinance" which reads as under:
24. Valuation of property. The valuation of the property shall be performed, in the prescribed manner, by independent valuers who shall issue a valuation report to the Commission.
A careful reading of the above provision of law indicates that the requirement for appointment of independent valuers is a mandatory statutory safeguard with sole purpose to prevent conflicts of interest, bias, and any undue influence in the assessment of the value of public assets. The phrase "in the prescribed manner" signifies that the valuation process must strictly adhere to the procedure laid down in the applicable rules, regulations, or guidelines framed by the Privatisation Commission. The issuance of a formal valuation report is a condition precedent for the progression of the privatisation process which ensure that the Commission, bidders, and the public are fully aware of the independently assessed value of the asset being privatised. It is evident from the notice of advertisements that the Privatisation Commission had appointed EY Consulting LLC, as the Financial Advisor alongwith other consortium members to conduct the transaction. Though the term 'Financial Adviser" was not present under the "Ordinance" yet Section 2(h) of the "Ordinance" denotes the word "prescribed" which means prescribed by the rules made under this Ordinance.
The "Rules 2001" were framed under the "Ordinance" and as per Rule 2(b) of the "Rules 2001", 'advisor' means an external advisor hired by the Commission with the approval of the Board to advise on a major privatisation process or any other ancillary activity leading to privatisation. The term 'financial advisor' is defined under Regulation 2(b) of the "Regulations 2018" which means an external advisor hired by the Commission with the approval of the Board to advise on a major privatisation [and include a prequalified FA]. The term 'financial advisor' is defined under Rule 2(b) of the "Rules 2023" which means an external advisor hired by the Commission with the approval of the Board to advise on a major privatisation. The term 'advisor' is defined under Rule 2(a) of the "Rules 2007" which means the Advisor as defined in the Privatisation Commission Hiring of Financial Advisors Regulations 2007. The term 'valuer' is defined under Regulation 2(b) of the "Regulations 2001" which means a firm of Chartered Accountants, chartered Surveyors, Surveyors, Engineers, other expert in the relevant field in which the entity to be privatised falls, hired by Privatisation Commission and includes a firm of experts hired by the valuer. If we read Section 24 with Section 23 read with Section 5(o) and 5(p) of the "Ordinance", it transpires that Privatisation Commission is empowered to evaluate the bids against the criteria fixed by it. Record is indicative of the fact that the Privatisation Commission had appointed EY Consulting LLC, as the Financial Advisor to conduct the transaction in the prescribed manner after seeking proper approval from the Cabinet and hence this requirement is also fully met with by the Respondents. In view of above, it is held that the "Privatisation Commission" has conducted the process of privatisation as per Sections 23 and 24 of the "Ordinance".
22. Furthermore, it is manifest from the record that the Petitioner has not appended any document in support of the averments made in the writ petition. Public interest litigation, though entertained with a liberal approach, must be founded upon some credible material demonstrating violation of law or infringement of fundamental rights. Mere bald assertions, unaccompanied by documents or evidence, cannot constitute a valid cause for invoking the extraordinary jurisdiction of this Court under Article 199 of the Constitution. The Petitioner must place before the Court at least some credible documents or evidence so as to demonstrate any alleged violation of Section 23 and 24 of the "Ordinance" or a question of public importance with reference to the enforcement of fundamental rights actually arises. This Court, after 26th Amendment in the "Constitution", in the case of "KAKAKHAIL TRADERS versus PROVINCE OF PUNJAB etc" (PLD 2025 Lahore 630) has held that "the vague and ambiguous nature of the prayer, coupled with the lack of a clearly established legal right, precludes the grant of any relief. Consequently, the writ petition is dismissed in limine. This Court cautions against the filing of frivolous petitions that serve no legitimate purpose and unnecessarily consume judicial time".
XII. JUDICIAL ANTHOLOGY QUA PROTECTION OF FOREIGN INVESTMENT AND JUDICIAL RESTRAINT a. Protection of foreign investment
23. In order to protect the process of privatisation by the "Privatisation Commission", this Court discussed judicial anthology of the Courts in protecting the foreign investment and process of privatisation. The privatization policy aims to create a mechanism for generation of funds for the retirement of government debt while ensuring improvements in service and operational capacity of utilities in a transparent manner for effective management of domestic industry, greater domestic investment and economic growth. The objectives of privatization are to improve the operational efficiency and overall performance of entities, to reduce the fiscal burden of the Government, to promote and strengthen the capital market, the creation of a conducive economic environment and improve overall efficiency. The process of privatization is enshrined in Section 25 of the "Ordinance" and the "Rules 2001". The Board of the Privatisation Commission and the Cabinet Committee on Privatisation determine the process after deciding one of the modes viz a) sale of assets and business; b) sale of shares through public auction or tender; c) public offering of shares through a stock exchange; d) management or employee buyouts by management or employees of a SOE; e) lease, management or concession contracts; f) any other method as may be prescribed. Privatization is often seen as a solution to improve efficiency and reduce government burden, but it is not a panacea for all societal and economic problems. While private enterprises can bring innovation, better management, and customer-focused services, the drive for profit can sometimes overshadow public welfare. Barrister Minaal Tariq, the counsel for the "Privatisation Commission", has relied on the judgment of the Supreme Court of Pakistan cited in "DR. AKHTAR HASSAN KHAN AND OTHERS versus FEDERATION OF PAKISTAN and others" (2012 SCMR 455) which focuses on the financial and commercial transaction and authority of the Government in policy making on award of contracts. Therefore, while privatization can play a useful role in reforming certain public services, it must be approached with caution, ensuring that the broader public interest remains at the center of policy decisions. Privatization, when carried out transparently and in the public interest, can serve as a legitimate and effective tool for economic reform, a position that has been recognized by the judiciary over the globe upholding the government's right to disinvest from public sector undertakings, stating that economic policy decisions fall within the exclusive domain of the executive, and courts should not interfere unless the process violates constitutional or legal provisions. The Court emphasized that the objective of privatization is not merely profit-making, but to enhance productivity, attract investment, and reduce inefficiency in loss-making enterprises. It has also been acknowledged globally that privatization could bring about managerial autonomy and operational flexibility, enabling enterprises to compete in a globalized economy. These decisions affirm that privatization, if conducted within the framework of law and with appropriate safeguards, aligns with the constitutional mandate of economic development and public welfare. Therefore, rather than being viewed with skepticism, privatization deserves protection and support when it is pursued with accountability, fairness, and the broader goal of national progress.
24. As earlier mentioned, the preamble of the "Ordinance" clearly states to provide for an expeditious mechanism to resolve all disputes relating to privatisation. It is a well-established constitutional principle that this Court is empowered under Article 199 of the Constitution to review executive actions for illegality, mala fides, or infringement of fundamental rights, unwarranted judicial interference in complex economic and foreign investment matters may disturb the balance between the judiciary, executive, and market economy.
In this case, the Petitioner, without filing any proper documents, or impugned order, actions of the "Privatisation Commission", has filed this petition merely praying that the "Privatisation Commission" be restrained from proceeding with the privatisation of the "PIACL". Under Article 199 of the "Constitution", the Court can only examine proceeding taken and act done but none of these has been brought by the Petitioner. The only general prayer made by the Petitioner is the cause of creating hurdles in privatisation process and cases of such nature are also pending in other High Courts which require judicial intervention in such like matters. Excessive judicial intervention in contractual and investment affairs has historically contributed to regulatory uncertainty, impairing investor confidence and hindering foreign investment. Therefore, constitutional courts must exercise judicial restraint in economic and commercial matters, particularly in relation to the ongoing privatisation policy, to prevent disruption of national economic objectives and divestment from loss-making State-Owned Enterprises. This Court cannot ignore the instances of judicial overreach wherein extensive interference by courts in contractual and investment matters has, over time, contributed to uncertainty in the regulatory landscape, adversely affecting Pakistan's ability to attract and retain foreign investment. Investor confidence, both domestic and international, hinges upon the predictability and stability of legal frameworks. The constitutional courts of Pakistan must exercise judicial restraint in matters that impact foreign investment in Pakistan. A pattern of judicial overreach in economic policy or commercial arrangements undermines this stability, jeopardizing much-needed foreign investment and frustrating national economic objectives such as the current privatization policy of the Federal Government, resulting in divestment from loss-making State-Owned Enterprises. The role of the Court in matters of economic policy is necessarily limited. The judicial review of economic decisions is confined to assessing whether the policy is arbitrary, irrational, discriminatory, or violative of constitutional mandates. Article 173 of the Constitution extends the executive authority of the Federation and Provinces to the grant, sale, disposition, or mortgage of any property vested in, and to the purchase or acquisition of property on behalf of, the Federal Government or, as the case may be, the Provincial Government, and to the making of contracts. The Supreme Court of Pakistan in several rulings has advocated for the creation of specialised commercial courts for the speedy and expeditious resolution of commercial disputes and the necessity to exercise judicial restraint in the invocation of constitutional jurisdiction, particularly in matters of economic policy. A three members bench of the Supreme Court attempted to maintain the balance between the executive and judicial intervention in economic policy decisions, and judicial intervention in "THE COMMISSIONER INLAND REVENUE and others versus MEKOTEX PVT LTD and others" (PLD 2024 SC 1168) by observing that "In complex economic matters, the best solutions are not easily discernible; the wisdom of any choice may be debated or criticized, but mere errors of policy judgement are not subject to judicial review. Only clear and definite violations of fundamental rights or other constitutional provisions warrant judicial intervention. The legislative and executive branches of the State are entitled to make pragmatic adjustments which may be called for by particular circumstances. Courts cannot strike down an economic policy decision taken by them merely because they feel that another policy decision would have been fairer, wiser, or more scientific or logical. It is for the legislature, not the courts, to balance the advantages and disadvantages of various economic concerns." The Supreme Court in the case of the privatisation of HBL cited as "DR. AKHTAR HASSAN KHAN AND OTHERS versus FEDERATION OF PAKISTAN and others" (2012 SCMR 455) has held that "The Courts, while dealing with cases relating to financial management by the government or awarding of contracts, must appreciate that these are either policy issues or commercial transactions requiring knowledge in the specialized fields. The courts lack the expertise to express any opinion on the soundness or otherwise of such acts/transactions.
The question whether a contractual transaction or decision taken in the exercise of executive authority by the Government can be subjected to judicial review has engaged the attention of constitutional courts in several countries and the judicial consensus generally has been that the Courts should ordinarily refrain from interfering in policy making domain of executive authority or in the award of contracts unless those acts smack of arbitrariness, favoritism, and a total disregard of the mandate of the law." This Court in the case of "M.C.R. (PVT.) LTD. FRANCHISEE OF PIZZA HUT versus MULTAN DEVELOPMENT AUTHORITY and others" (2021 CLD 639), elucidated the significance of foreign investment for the economic growth of a country and right of business under Article 18 of the "Constitution" observed that "With each passing day, the World is becoming more global and more interconnected, particularly in the affairs of trade and commerce. The volume of foreign investment and the number of such business initiatives are taken as one of the determining traits for measuring the economic growth of a country, and it also has a direct bearing upon the financial prosperity of the citizens of a country." In the judgment supra, it was also held that "Undoubtedly, freedom of trade, business, and commerce is a fundamental right guaranteed under Article 18 of the Constitution, which states that every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business.
One of the basic purposes behind provision of this fundamental right is certainly to advance culture of socio-economic progress and to protect and promote business and trade activities and, at the same time, to encourage simplification of the process of establishing and carrying out new business ventures throughout the country because activities of business and trade create opportunities for the masses around and provide job options, financial stability and progress in the area. Since the Pizza Hut is an international chain and entered into lease agreement with WASA, it is the duty of the Courts in Pakistan to see the rights of the parties and to protect their interest to build confidence of investors in Pakistan but at the same time the interest of government functionaries has also to be examined regarding financial interest of the Government." In China Harbour Engineering Company Ltd. and others vs Z. Z. Enterprises and others (2024 CLD 917), this Court strengthened the concept of establishing commercial courts for the protection of foreign investment by providing expeditious disposal of commercial disputes, with the objective being to protect foreign investment in Pakistan. The courts in Pakistan, as reaffirmed by the judgments above, have since then enshrined the protection of foreign investment in Pakistan within the jurisprudence emanating from such actions on behalf of the State. The objective has been to ensure expeditious disposal of commercial disputes, protection of Government interests in financial and economic policy matters, and the use of ADR in commercial disputes.
25. This Court has also stressed the welfare of projects involving the public at large and examined the interplay between public welfare, expeditious disposal of disputes through ADR, and the need to protect foreign investment in M/S 5 H INSAAT VE TICARET ANONIM SIRKETI versus SECRETARY LOCAL GOVERNMENT etc" (2025 CLD 813) and held that "Another important aspect of the matter is that the project relates to the welfare of the public at large, and it would not be wrong to say that a public interest project only aims to benefit society as a whole, often addressing social, environmental, or economic issues because it improves quality of life and promotes sustainable development. If such like projects are delayed, then it will negatively impact the quality of life for the individuals who are to benefit from it, particularly when the project is to provide essential services or infrastructure. It can decimate public trust in government agencies, project directors, and other stakeholders, besides making it harder to secure funding or support for future projects.
Especially when the foreign investment is involved, then delay in such projects will jeopardise the tendency of new technologies entering, management practices, and marketing techniques in the country. This court has discussed the scope of foreign investment and the role of foreign investors in Pakistan in the judgment reported as M.C.R Pvt Ltd Franchisee of Pizza Hut vs Multan Development Authority 2021 CLD 639". Thus, the wisdom of privatization, and the decision to open certain sectors to foreign investment, lies primarily within the competence of the elected branches of government, provided the process complies with the law and respects constitutional boundaries.
26. In the present case, the government has followed a transparent process of valuation, due diligence, and bidding, inviting both domestic and foreign investors under a pre-declared framework. The record discloses no evidence of mala fides, arbitrariness, or favoritism. This Court reiterates that for foreign investment to flow consistently and responsibly, there must be judicial recognition of policy stability, legal clarity, and regulatory predictability. An investment climate that is disrupted by litigation in the absence of constitutional violations can deter genuine investors and delay economic progress. The judiciary must therefore guard against substituting policy wisdom with judicial preference, particularly when the executive has acted within its constitutional and statutory mandate. b. Judicial Restraint in Economic Matters/Privatisation
27. The scope, purpose, and limits of the concept of judicial restraint have been vastly elaborated by the Hon'ble Supreme Court of Pakistan in the case of "DOSSANI TRAVELS (PVT.) LTD. and others versus Messrs TRAVELS SHOP (PVT.) LTD. and others" (PLD 2014 SC 1), by holding that "In the contemporary age, there has been a significant growth in the judicial review of administrative actions, and the grounds on which the Courts interfere have been expanded. This expansion, however, "has taken place in the shadow of competing concerns of 'vigilance' and 'restraint' and it is faithfulness to these dual concerns of vigilance and restraint which produces the unique supervisory jurisdiction which is the hallmark of judicial review." It was further held that "If the Courts fail to maintain this delicate balance, no one else but people's confidence in the judiciary would be the worst victim. As aptly observed by Radford: One of the principal aims of a system of judicial review must be to maintain a high level of public confidence in the administrative decision-making process, and this must also be borne in mind in assessing the level of judicial intervention which is desirable. It can be argued that the courts' desire to achieve a fair and just result in an individual case must be tempered with a commitment not to interfere unduly with the achievement of policy objectives."
In another judgment, reported as Human Rights Case No.14392 of 2013 (2014 SCMR 220), the Hon'ble Supreme Court of Pakistan has held that "the Court exercises judicial restraint in matters of government policy except where fundamental rights are violated. In his treatise "Judicial Review of Public Actions" (second Edition p. 639), Justice Fazal Karim has quoted the passage from the book "Taking Rights Seriously" by Ronald Dworkin (p. 137-149) wherein he described that the term "Judicial Restraint argues that the court should allow the decisions of other branches of government to stand, even when they offend the judge's own sense of the principles required by the broad constitutional doctrines, except when those decisions are so offensive to political morality that they should violate the provisions on any plausible interpretation, or, perhaps, when a contrary decision is required by clear precedent".
28. This Court has also cautioned against passing any adverse orders which can potentially impact any government endeavours to promote investment in the same vein in the case of "MUHAMMAD AZAM versus PROVINCE OF PUNJAB etc" (2022 CLC 532) and has held that "In the absence of any glaring illegality, or violation of fundamental rights, the Courts must exercise judicial restraint for passing any adverse order, which can potentially hinder or nullify any government initiative to encourage and promote the investment process because judicial restraint encourages the judges to exercise their powers with restraint and wisdom and to limit the exercise of their own powers to intervene in the matters relating to policy of the Government having financial perspective and outcome and exercise. As noted above, in the absence of any obvious illegality and deviation from law, any interference by this Court within the purview of Article 199 of the Constitution will badly hamper the initiatives to enhance business activities being carried out by the LCBDDA or CAA and will put the whole scheme of actions for promotion of business and trade for the public, a fundamental right provided under Article 18 of the Constitution, to a standstill. Under Article 199 of the Constitution, the Court is thought competent to exercise the power of judicial review to examine administrative actions from the touchstone of violation of law and breadth of the Constitution, yet the power of judicial review is regulated by the principle of Judicial Restraint, the purpose and extent of which has already been discussed supra. While using powers under Article 199 of the Constitution relating to a policy of the Government with financial layout and implications, the Court exercises the power of judicial review with judicial restraint as a substantive approach to interfere in such matters within the contemplation of judicial review while exercising Constitutional Jurisdiction.".
29. This Court in "MUHAMMAD UMAIS versus CANTONMENT BOARD RAWALPINDI and others" (PLD 2022 Lahore 148) has also held that "In the absence of any glaring illegality or violation of fundamental rights, the Courts must exercise judicial restraint for passing any adverse order, which can potentially hinder or nullify any initiative taken by government or any Statutory Body/Board to encourage and promote the business activities and to ensure the provision of places of public entertainment for the general public as mandated by Article 26 of the Constitution."
30. In another case, this Court has reaffirmed the principle of judicial restraint, "SYED FAISAL MEHBOOB versus FEDERATION OF PAKISTAN and others" (2022 CLC 1153) wherein it has been held that "Any restraining order, if issued by this Court, while exercising powers under Article 199 of the Constitution, can possibly put a complete halt and hiatus to the initiatives taken by the Government for encouraging security plans/activities in the country by enhancing the security environment through the aviation industry to avoid any incident. In the absence of any glaring illegality or violation of fundamental rights, the Courts must exercise judicial restraint for passing any adverse order, which can potentially hinder or nullify any government initiative, particularly, taken for the security enhancement because judicial restraint encourages the judges to exercise their powers with restraint and wisdom and to limit the exercise of their own powers to intervene in the matters relating to policy of the Government having financial perspective, outcome and exercise. Since one of the prayer of the Petitioner was made with regard to restraining the "Privatisation Commission" to proceed with the privatization till the constitution of the Privatisation Appellate Tribunal which means that the Petitioner has invoked the jurisdiction of this Court for restraining the "Privatisation Commission to proceed in the privatisation of the "PIACL" wherein huge expenses on the process of privatisation has been incurred and Financial Advisor has also proceeded with the evaluation process of the privatisation. In such a situation this Court cannot restrain the "Privatisation Commission" to restrain from proceedings and such manner will effect adversely the economic outlook of Pakistan, its privatisation programme and will create hurdle in betterment of both local and foreign investment. It is the duty of the Court to strengthen the foreign investment in such programme for the betterment of the economy of Pakistan.
Decision on the Application for summoning of record C.M.No.01 of 2025
31. This application seeks summoning and production of record pertaining to the assets, valuation reports, and financial particulars of the "PIACL" regarding process of its privatization. Learned counsel for the Petitioner put much emphases that in order to ensure transparency in the privatisation process, the complete record relating to the assets of the "PIACL" should be made available for public scrutiny and the Petitioner, being an interested citizen, is entitled to access the same for which he had already filed application on 22.06.2024 before the Respondent No.2 (Annex- C) of this petition but the required information has not been provided so far. On the other hand, learned counsel appearing for the Federation and the Privatisation Commission submitted that the information sought by the Petitioner is protected under The Privatisation Commission (Confidentiality and Secrecy of Documents) Regulations, 2003 (the "Regulation of 2003"), Regulation 3 whereof expressly prohibits disclosure of confidential documents including valuation reports, due diligence findings, financial assessments, and other related records. Regulation 3 of the "Regulation of 2003" reads as under:
3. Maintenance of reports and documents. --- (1) The following documents shall be considered as confidential documents namely---
(a) summaries for the Cabinet, Cabinet Committee on Privatisation (CCOP), ECC or other committees of the Cabinet;
(b) summaries for the Board of the Commission;
(c) minutes of the meetings;
(d) noting on files;
(e) intermediary opinions, recommendations and negotiations;
(f) record declared as classified by the Federal Government;
(g) all agreements deeds executed during the course of a privatization including sale agreements, sale or conveyance deeds, financial advisory agreements;
(h) documents submitted to the Commission for the purpose of evaluation or review by the Commission in relation to prequalification;
(i) valuation and due diligence reports; and
(j) any other document classified as such with specific approval of the Secretary.
(2) The confidential documents shall be kept secret and no document shall be given to any person, agency or body outside the Commission unless its disclosure is---
(a) required by law;
(b) required for the purpose of carrying out the purposes for which the confidential documents have been submitted;
(c) required for the purposes of confirmation or verification; or
(d) specifically authorized in writing by the Secretary.
(3) If the confidential documents are to be so disclosed, complete particulars of the same shall be kept in the Commission.
(4) The documents, other than the confidential documents, shall be publicized and shall remain open for information of the public during business hours and the Secretary may authorize one or more persons from whom such information may be obtained.
32. From above provision of law it is quite obvious that documents mentioned under sub- Regulation (1) of Regulation 3 are confidential documents and include summaries for Cabinet, summaries for the Board, minutes of meetings, internal file noting, intermediary opinions, recommendations and negotiation records, record declared as classified documents by Federal Government, all privatisation agreements, evaluation documents, valuation/due diligence reports, and any other document as declared by the Secretary. A plain reading of the Regulation ibid leaves no doubt that valuation and due diligence reports fall squarely within the statutory definition of "confidential documents." Regulation 3(2) further mandates that such documents must be kept secret and cannot be disclosed to any person, body, or agency outside the Commission unless one of the four narrow exceptions applies viz (a) disclosure required by law; (b) disclosure required for the purpose for which the document was submitted; (c) disclosure necessary for confirmation or verification; or (d) disclosure specifically authorised in writing by the Secretary. Sub-Regulation (3) of Regulation 3 ensures accountability and traceability, preventing misuse or unauthorised leaks, and allows for subsequent audit or review of how sensitive information was handled. Notably, Regulation 3(4) draws a distinction between confidential documents and non-confidential documents whereas the latter remain open for public inspection during business hours, the former are expressly withheld from disclosure. The balancing of confidentiality and transparency has thus been carefully structured by the legislature, and this Court cannot override that statutory balance under the guise of constitutional jurisdiction. The intent of law is to protect the integrity of privatisation, prevent undue influence, and safeguard commercially sensitive/state-sensitive information and all critical documents relating to the decision-making process, negotiations, financial assessments, and contractual arrangements from disclosure. The scheme of the Regulations thus reflects a deliberate legislative intent to create a regime of restricted disclosure, under which sensitive documents containing financial evaluations, due diligence assessm ents, and negotiation details are insulated from public domain in order to protect the integrity of the privatisation process, preserve the confidentiality of commercial information, and safeguard national interests. Transparency, though a fundamental principle of governance, must operate within the statutory boundaries laid down by the legislature.
Record is indicative of the fact that the Petitioner has sought the summoning of valuation of the "PIACL" properties and related records as is evident from the application submitted to the Respondent No.2 (Annex-C) of this petition and strenuously argued by learned counsel for the Petitioner. The counsel for the petitioner has not demonstrated any of the exceptions contained under Regulation 3(2) of the "Regulations of 2003" therefore, the bar on disclosure remains absolute and the Petitioner is not entitled to the summoning or disclosure of the record of assets, valuation reports or due diligence documents relating to the "PIACL" as the same are protected under the Regulation ibid. In view thereof, the objection of the Petitioner carries no weight, hence turned down.
XIII. CONCLUSION
33. In view of the above discussion and examining the provisions of the "Ordinance" in detail, it is held that no violation of the following laws has been made.
Sr.#Name of Laws Subject Matter Compliance 1 Article 173 of the "Constitution"Selling, disposal of property by Federal GovernmentFully Complied with.
2 Privatisation Commission Ordinance, 2000Advertisement of Privatisation (Section 23)Fully Complied with.
3 Privatisation Commission Ordinance, 2000Valuation of Property (Section 24) Fully complied with.
4 PIAC Conversion Act 2016 Conversion from statutory Corporation to public limited company by shares (Section 3)Fully complied with.
5 Privatization (Modes and Procedure) Rules, 2001Manner and procedure for privatisation (Rule 3)Fully complied with.
6 Privatization Commission (Hiring of Financial Advisers)
Regulations, 2018Advertising for Financial Advisors (Regulation 3)Fully complied with.
34. Furthermore, requirements of Section 23 and 24 of the "Ordinance" and process of privatisation by the "Privatisation Commission" was strictly followed as per criteria prescribed in the the "Ordinance", the "Amended Ordinance", the "Rules", the "Rules 2023", the "Rules 2007", the "Regulations 2018" the "Regulations 2001", the "Regulations of 2003" and the "Conversion Act of 2016" discussed above and in light of the judgments of the Supreme Court of Pakistan cited in "DR. AKHTAR HASSAN KHAN AND OTHERS versus FEDERATION OF PAKISTAN and others" (2012 SCM R 455) and "THE COMMISSIONER INLAND REVENUE and others versus MEKOTEX PVT LTD and others" (PLD 2024 SC 1168). Consequently, petition is dismissed being devoid of any force.`