AJMAL MIAN, C.J.-1. By this common order we intend to dispose of above two writ petitions which were fixed for katcha peshi, as they involve common points of law. In both the above petitions, the petitioners have imported iron and steel scrap from abroad. There are two aspects of the above cases, namely, under which heading of PCT the above scrap fall whether they are re-rollable and not re-rollable and whether they were in accordance with the import policy etc. The other aspect is whether Section 31-A of the Customs Act (hereinafter referred to as the Act), can be pressed into service for the purposes of imposing the customs duty and other charges.
2. As regards the first aspect, we are not inclined to examine the case as the proper remedy available to the petitioners is to agitate the above questions of facts before the hierarchy of forums provided under the Act and then to approach this Court in case the petitioners are dissatisfied.
However, we are inclined to examine the merits of the submission of the learned counsel for the parties on the above second aspect, which is purely a legal aspect.
3. Mr. Rasheed Akhund, whose submissions were adopted by Mr. Raja Qureshi, in support of his contention that Section 31-A of the Act cannot be applied to the consignments in respect of which the contracts were made or Letters of Credit were opened etc. Before the enactment of above section has urged as follows:
(i) That since in Al-Samrez Enterprise v. The Federation of Pakistan (1986 SCM R 1917), the Honourable Supreme Court has held that the exemption from the payment of customs duty or any increase in the rate of the customs duty etc. Cannot be withdrawn or made applicable in respect of the consignments of which the firm commitments were made by the importers prior to the withdrawal of exemption or increase in the rate of customs duty, the legislature cannot nullify the effect of the above Supreme Court's case as it affects the independence of judiciary.
(ii) That the application of Section 31-A of the Act to the consignments in respect of which firm commitments were made prior to its enactment, violates Articles 18, 23 and 24 of the Constitution.
(iii) That the application of Section 31-A of the Act violates grounds norms of Islamic tenets which have now become enforceable because of Article 2-A of the Constitution.
On the other hand Mr. H.A. Rehmani who had appeared for DAG Office in response to pre- admission notice has contended as under:-
(i) That, in Al-Samrez case the point in issue was whether by a Notification a vested right can be taken away, but the competency of the legislature even to deprive the vested rights was not in issue.
(ii) That it has been consistently held by the superior Courts that the legislature has the power to validate invalid acts or to enact retrospectively or to take away vested rights if so expressly enacted.
(iii) That the application of Section 31-A of the Act to consignments >in respect of which firm commitments might have been made does not violate any Articles of the Constitution or injunction of Islam.
4. Before dealing with the above contentions of the learned counsel for the parties, it- may be appropriate to reproduce Section 31-A of the Act, which was enacted by the Finance Ordinance 1988 On 1st July, 1988, which has now been re-affirmed by the Finance Act, which reads as follows: "31-A. Effective rate of duty.-(l) Notwithstanding anything contained in any other law for the time being in force or any decision of any Court, for the purposes of Sections 30 and 31, the rate of duty applicable to any goods shall include any amount of duty imposed under Section 18, Section 2 of the Finance Ordinance, 1982 (XII of 1982), and Section 5 of the Finance Act, 1985 (I of 1985), and the anti-dumping or countervailing duty imposed under the Import of Goods (Anti-Dumping and Countervailing Duties) Ordinance, 1983 (III of 1983), and the amount of duty that may have become payable in consequence of the withdrawal of the whole or any part of the exemption or concession from duty whether before or after the conclusion of a contract or agreement for the sale of such goods or opening of a letter of credit in respect thereof.
(2) For the purpose of determining the value of any imported or exported goods, the rate of exchange of which any foreign exchange is to be converted into Pakistan currency shall be rate of exchange in force.
(a) in the case of goods referred to in clause (a) of Section 30, on the date referred to in that clause;
(b) in the case of goods referred to in clause (b) of the aforesaid section, on the date referred to in that clause, and
(c) in the case of goods referred to in Section 31, on the dates referred to in that section."
A perusal of the above Section indicates that notwithstanding anything contained in any law for the time being in force or any decision of any Court for the purposes of Sections 30 and 31, the rate of duty applicable to any goods -shall include any amount of duty imposed under Section 18, Section 2 of the Finance Ordinance, 1982 and Section 5 of the Finance Act, 1985 and the anti- dumping or countervailing duty imposed under the Import of Goods (Anti-Dumping and Countervailing Duties) Ordinance, 1983 and amount of duty that may have become payable in consequences of the withdrawal of the whole or any part of the exemption or concession from duty whether before or after the conclusion of a contract or agreement for the sale of such goods or opening of a letter of credit in respect thereof. In other words the effect of subsection (1) of Section 31-A of the Act is that an importer and an exporter of goods is made liable to pay customs duty for the import or export at the rate of customs duty obtaining on the date referred to in Sections 30 and 31 of the Act i.e. In case of import on the date on which a bill of entry is presented under Section 79 for home consumption and in case of goods cleared from a warehouse under Section 104 on the date on which a bill of entry for clearance of such goods is presented and in respect of the export at the rate and amount of duty applicable at the time of delivery of bill of export under Section 131. It is, therefore, evident that it has intended to nullify the effect of the above Supreme Court case namely, Al-Samrez.
5. Adverting to Mr. Rasheed Akhund's above first submission that since in the case of Al-Samrez the Honourable Supreme Court has held that the exemption from the payment of customs duty or any increase in the rate of the customs duty etc. Cannot be withdrawn or made applicable retrospectively in respect of the consignment of which the firm commitments were made by the importers prior to the withdrawal of exemption or increase in the rate of customs duty, the legislature cannot nullify the effect of the above Supreme Court's case as it affects the independence of judiciary, it may be observed that in support of the above submission he has referred to the case of Mofizur Rahman Khan vs. Government of Bangladesh (Appeal No.73 of 1981), Govt, of Bangladesh vs. Mofizur Rahman Khan (Appeal No. 74 of 1981), and Govt, of Bangladesh vs. Borhanuddin Ahmed (Appeal No. 124/1981), reported in DLR 1982 page 312, in which the facts were that the action of retirement of Civil Servant was challenged in the High Court which was declared as ultra vires of the Constitution of Bangladesh being violative of Articles 27 and 29. The High Court accepted the petition and declared the order of retirement as null and void being violative of Articles 27 and 29 of the Constitution. Against the above order the Government filed an appeal before the Supreme Court and also promulgated Ordinance No. VI bf 1981 on 28th July, 1981, namely, Public Servants (Retirement) (Amendment) Ordinance, 1981, retrospectively amending Section 9 (2) of Civil Servants Act, XII of 1974, which provided as follows:- "S. 9 (2).-The Government may, at any time, retire from service a public servant who has completed twenty-five years of service without assigning any reason."
While considering the above amendment in the background of the above facts the Supreme Court of Bangladesh held that the legislature was not empowered to reverse the court's decision as it did not possess judicial power. In this regard it is pertinent to reproduce para. 22 from the judgment of Shahabuddin Ahmed, J. Who delivered the leading judgment and para 4 from the judgment of K.
Hussain, CJ which read as follows:-- "Para. 22 of the judgment of Shahabuddin Ahmed, J. On consideration of these decisions, we find that there is no dispute that the legislature got power to make a law not retrospectively and also to validate actions retrospectively. Retrospective validation may also be conferred upon an Act notwithstanding anything contained in any judicial decision, but to make such retrospective validation the legislature must have competence to make law on the subject within the Constitutional limitation. The tests of such validation, besides legislative competence, are that the defect in the previous invalid law has been removed and the Validation law does not contravene any provisions of the Constitution. Again, in conferring retrospective validation the legislature cannot encroach upon judicial powers of the Court. The legislature cannot reverse or set aside the Court's judgment, order or decree but it can render the judgment, order, or decree ineffective by removing their basis. This may be done by making a valid law with retrospective operation and the making an action valid retrospectively by deeming this action to have been taken under the new Act. Retrospective validations were conferred in this way in the cases discussed above excepting the cases reported in AIR 1969 (S.C.) 394 and A.I.R. 1970 (S.C.) 1970. In these two cases actions previously taken under invalid law's were sought to be validated without making any valid law to support those actions."
Para. 4 of the Judgment of K. Hussain, CJ.
"Keeping this principle in view, it is to be observed that Parliament is the supreme legislative authority subject to the constitutional limitations set out earlier. One of the attributes of legislative supremacy is its power to pass any law on any subject, not prohibited by the Constitution both prospectively and retrospectively. It can equally validate, subject to the Constitution, any law earlier found invalid either prospectively or retrospectively. We should concentrate here more on the question of power of Parliament to validate a law found or declared incompetent by a Court of law. Parliament has the power to validate a law declared by a Court illegal by removing the cause of illegality or infirmity. The basic condition of validation is that Parliament must possess the power to legislate on the subject and having the legislative competence Parliament can validate a law by removing the infirmity and, in so doing, has the power of giving it a retrospective operation, prospective operation always being presumed."
In our view the above case is distinguishable from the facts of the present case inasmuch as in the.
Former the amendment made in Section 9 (2) of Act XII of 1974 was with the object to render the judgment obtained by one of the parties to the case as set aside, whereas in the instant cases there is no judgment in favour of the petitioners which was sought to be rendered null and void. On the contrary the above judgment indicates that the legislature has plenary power to legislate subject to the constraints provided by a Constitution. Mr. Rasheed Akhund has also invited our attention to the fact that the English rule that the Parliament is sovereign and it can make any law without being questioned is not applicable, as in Pakistan we have a Constitution which specifies the power of the legislature. In this regard he has referred to the following two cases:
(i) Cheney v. Conn (Inspector of Taxes) Same V Inland Revenue Commissioners, 1968, the All England Law Reports, Volume 1 page 779, in which inter alia it was observed by Ungoed Thomas, J.
That "what the statute itself enacts cannot be unlawful, because what the statute says and provides is itself the law, and the highest form of law that is known to this country. It is the law which prevails over every other form of law, and it is not for the Court to say that a parliamentary enactment, the highest law in this country, is illegal. The result therefore is that on this ground, also, the tax-payer's case fails".
(ii) Madzimbamuto vs. Lardner-Burke and another 1968 the All England Law Reports. Volume 3 page
561. In the above case the Privy Council observed as follows as to the power of the Parliament: "It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other persons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do .Such things. If Parliament chose to do any of them the Courts could not hold the Act of Parliament invalid. It may be that it would have been though before 1965 that it would be unconstitutional to discharge this convention. But it may also be that the unilateral declaration of independence released the United Kingdom from any obligation to observe the convention. Their Lordships in declaring the law are not concerned with these matters. They are only concerned with the legal powers of Parliament."
On the other hand the judgments which had been relied upon by Mr. H.A. Rehmani in support of his above submission seems to be directly on the point in issue, which are:
(i) Tofezzal Hossain and others vs. The Province of East Pakistan and others (PLD 1963 Supreme Court 251), in which the Hon'ble Supreme Court while dilating upon the identical arguments which have been advanced by Mr. Rasheed Akhund, on the basis of the above Dacca Case, observed as follows: "Some other arguments were put forward which have to be noticed. It was urged that the amending Ordinance was ultra vires of the Governor because he had no jurisdiction to curtail the jurisdiction of the Supreme Court and an amendment of the Act which nullifies a decision given by the Supreme Court amounts to an interference with the jurisdiction of the Supreme Court. The argument is altogether misconceived. The jurisdiction of this Court is the jurisdiction to decide and the Ordinance does not provide that the Supreme Court shall not have jurisdiction to decide any matter which it was otherwise empowered to decide. A Legislature which has power to make laws regarding rights of persons can make such laws whether during the pendency of a proceeding before a Court or after a decision has been given by the Court and it cannot be said that the Legislature has by exercising such power affected the jurisdiction of the Court. A statute which changes rights of parties and does not relate to any procedural matter does not affect the jurisdiction of any Court. It affects only rights of parties. The power of the Legislature is not affected by the pendency of a proceedings before a Court or the existence of judgment by a Court."
(ii) Messrs Mamukanjan Cotton Factory vs. The Punjab Province and others (PLD 1975 Supreme Court 50) . In the above case also the Hon'ble Supreme Court while dealing with somewhat similar arguments observed as follows: "Mr. A.K. Brohi, appearing in support of these two petitions, frankly conceded, that he did not find it possible to question the vires of the validating Ordinance on the grounds canvassed in the High Court. With the permission of this Court, learned counsel, however, attacked the vires of the Ordinance and the resultant action of the Provincial Government on a fresh ground. His argument in nutshell was that the validating Ordinance purports to enable the Provincial Government to retain and claim, what according to the judgments of the High Court, the Government could not have at the material time, levied and collected. These judgments are rendered by the High Court, in exercise of its jurisdiction conferred by the Constitution itself. The validating Ordinance on the other hand, is sub-Constitutional legislation, which according to learned counsel cannot undo or destroy, what he described as the "end product" of the Constitutional jurisdiction.
The argument, in my opinion, is without substance and which if accepted would indeed lead to startling results, it would strike at the very root of the power of Legislature, otherwise competent to legislate on a particular subject, to undertake any remedial or curative legislation after discovery of defect in an existing law as a result of the judgment of a superior Court in exercise of its constitutional jurisdiction. The argument overlooks the fact, that the remedial or curative legislation is also "the end product" of constitutional jurisdiction in the cognate field. The argument if accepted would also seek to throw into serious disarray the pivotal arrangement in the Constitution regarding the division of sovereign power of the State among its principal organs, namely, the executive, the Legislature and the judiciary, each being the master in its own assigned field under the Constitution."
(iii) The State Vs. Zia-ur-Rahman and others (PLD 1973 Supreme Court 49). In which the Hon'ble Supreme Court made following observations as to the competency of the Legislature: "On the other hand it is equally important to rememberer that it is not the function of the judiciary to legislate or to question the wisdom of the Legislature in making a particular law if it has made it competently without transgressing the limitations of the Constitution. Again if a law has been competently and validly made the judiciary cannot refuse to enforce it even if the result of it be to nullify its own decisions. The Legislature has also every right to change, amend or clarify the law if the judiciary has found that the language used by the Legislature conveys an intent different from that which was sought to be conveyed by it. The Legislature which establishes a particular Court may also, if it so desires, abolish it." The above view was reiterated by the Honourable Supreme Court in the case of Fauji Foundation and another v. Shamimur Rehman (PLD 1983 S.C. 457).
Reference may also be made to the case of Messrs Haider Automobile Ltd. v. Pakistan and Province of West Pakistan through Advocate-General West Pakistan vs. Manzoor Qadir, Advocate and another (PLD 1969 Supreme Court 623), in which Hamoodur Rahman, C.J. Inter alia observed that "the Legislature, however which is competent to make a law, has full and plenary powers in that behalf and can even legislate retrospectively or retroactively and that there is no such rule that even if the Legislature has, by the use of clear and unambiguous language, sought to take away a vested right yet the Courts, must hold that such a Legislation is ineffective or strike down that Legislation on the ground that it has retrospectively taken away a vested right."
The same view was taken by a Division Bench of this Court to which one of us (Ajmal Mian, C.J.) was a party, in the case of Mst. Anwar Jehan and 7 others V5. Additional Member, Board of Revenue and 2 others (1987 C.L.C. 976 (Karachi).
6. From the above-cited cases, it appears that the position of the British Parliament is different from legislature in Pakistan, inasmuch as the British Parliament can pass any law without any constraint, whereas the Legislature in Pakistan is subject to the restrictions contained in the Constitution.
However it seems that by now it is a settled law that a Legislature which has power to make laws regarding rights of persons can make such laws whether during the pendency of a proceeding before a Court or after decision has been given and that it cannot be urged that the legislature has by exercising such power has affected the jurisdiction of the Court. In other words, the power of the legislature is not affected by the pendency of a proceedings before a Court or existence of a udgment. It is also equally well settled principle that the legislature may validate a recovery, which the government could not have at the material time levied and curative and that legislature can legislate any remedial or curative legislation after discovery of defect in an existing law as a result of the judgment of a superior Court in exercise of its Constitutional jurisdiction and that such legislation would not amount to interference with the exercise of judicial power. It may also be observed that the function of the judiciary is not to legislate or to question the wisdom of Legislature in making a particular law nor it can refuse to enforce it even if the result of it be to nullify its own decisions provided the law is competently made. In this view of the matter, unless and until we hold that Section 31-A of the Act is violative of any of the provisions of the Constitution, we cannot question its validity on the ground that it would nullify the judgment of the Hon'ble Supreme Court. The above judgment of Bangladesh Supreme Court is distinguishable as pointed out hereinabove. Even otherwise the view taken by the Hon'ble Supreme Court of Pakistan in the above cited cases is binding on us.
The question whether Section 31-A has contravened any of the provisions of the Constitution has been dilated upon in detail hereinbelow.
7. As regards Mr. Rasheed Akhund's contention that Section 31-A of the Act violates Articles 18, 23 and 24 of the Constitution, we are unable to subscribe to the above submission. The above Articles have no application. Article 18 guarantees the freedom of trade, business and profession. In our view, Section 31-A does not violate the above guaranteed freedom. Whereas Article 23 guarantees that every citizen shall have a right to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest has also not been violated as Section 31-A provides the method of computation of customs duty. It does not prohibit either acquiring or holding of any property, nor Article 24 which provides that no person shall be compulsorily deprived of his property save in accordance with law, has any application to the instant case.
8. Reverting to Mr. Rasheed Akhund's submission that the application of Section 31-A of the Act violates grand norms of tenets of Islam which have now become enforceable because of Article 2- A of the Constitution, it may be observed that we are unable to understand as to how the application of Section 31-A can be construed as violation of any injunctions of Islam. It was urged by Mr. Rasheed Akhund that Quran enjoins the State to give rights to the people and that right is affected by enacting a provision which takes away the vested right of the petitioners to pay customs duty on the basis of Al-Samrez case of the Hon'ble Supreme Court. The above contention is untenable.
On the other hand, Mr. H.A. Rehmani has submitted that providing uniformity in the rate of customs duty between a person who might have entered into a contract prior to the imposition of a particular customs duty or increase in the rate and a person who might have entered into a contract subsequent to- such imposition or increase is more in consonance with the tenets of Islam as it is more equitable to place all the persons on equal footing.
In our view, it is not necessary to go into the above question more in detail as we have already held that the enactment of Section 31-A or making its application to a particular consignment does not violate any injunctions of Islam.
9. Before parting with the above discussions, we may observe that the ratio of Al-Samrez case was that a subordinate legislative act such as a Notification cannot be made applicable in the manner which may affect the vested rights but the power of the legislature was not in issue and therefore reliance upon the above case is out of context.
The upshot of the above discussions is that the petitions have no merits and, therefore, they are dismissed in limine.