1. SHAFIUR RAHMAN, J.---The petitions and the appeals listed in the Annexures `A' and `B' to this judgment came up for rehearing before us in the light of decision already given by this Curt in other appeals and petitions (Civil Appeal No.203 of 1983 -- Sohail Jute Mills Limited v. Federation of Pakistan and others decided on 22-10-1990) raising identical questions.
2. Mr. Rasheed A. Akhund and Mr. Akhtar Ali Mehmood, Advocates, reiterated in particular two features of their cases. In the first place it was contended that Article 270-A of the Constitution had a limited efficacy of placing beyond dispute the competence and the validity of legislative instruments specified in that provision and they did not accomplish anything beyond. On the strength of clause
(3) of Article 270-A of the Constitution it was contended by the learned counsel that the laws which continued to remain in force had to satisfy an additional test and that was of their consistency with the provisions of the Constitution as revived. It is this aspect of their cases which has not received full attention, according to them, in the judgment dealing with such cases. The second contention is that paragraph 7 of the Laws (Continuance in Force) Order, 1977 dispensed with the requirement or limitation as to its duration so far as the Ordinances promulgated by the President or a Governor of the Province were concerned. But, Mr. Akhtar Ali Mehmood, Advocate contended that the Provisional Constitution Order 1981 (as amended soon after its promulgation) revived Article 89 of the Constitution. Such a revival of Article 89 of the Constitution, according to the learned counsel for the petitioners /appellants, should be considered as repeal by necessary implications of paragraph 7 of the Laws (Continuance in Force) Order, 1977. Consequently, removal of the limitation or the duration of the validity of such Ordinances came to an end with such revival as from 25th March, 1981. The Finance Ordinance, 1982 could not, therefore be considered to be good law after four months of its promulgation without having received the approval of the Parliament.
3. The difference in language between the earlier constitutional requirement and the provision made in Article 89 of the Constitution of 1973 was highlighted for sustaining this argument.
4. Mr. Rasheed A. Akhund and Mr. Muhammad Ali Sayeed Advocates initially sought to emphasise the effect of the absence of machinery provision for making recoveries of the impositions made by the Finance Ordinance, 1982 and the Finance Act, 1985 and considered it to be sufficient enough to defeat the tax itself. However, on being pointed out that the legislature could not have intended a futile exercise of assimilating these imports to customs duties under section 18 of the Customs Act if the exercise was to stop there and not to be pervasive enough to extend to machinery provisions as well. Both the learned counsel did not further press this ground.
5. Mr. Khurshid Anwar Shaikh, Advocate, has drawn our attention to what he considers conflicting provisions of the Constitution. According to him, Article 77 of the Constitution. Provides that `no tax shall be levied for the purposes of the Federation except by or under the authority of Act of Majlis- e-Shoora (Parliament)'. Article 50 provides that `there shall be a Majlis-e-Shoora (Parliament) of Pakistan consisting of the President and two Houses to be known respectively as the National Assembly and the Senate'. Article 73 provides that `a Money Bill shall originate in the National Assembly and after it has been passed by the Assembly it shall, without being transmitted to the Senate, be presented to the President for assent'. Article 200 defines `Act of Parliament' as `An Act passed by Majlis-e-Shoora (Parliament) or the National Assembly and assented to, or deemed to have been assented to, by the President'. According to the learned counsel the levy itself is not proper because the Senate did not deal with it and without receiving its consideration in view of Articles 50 and 70 of the Constitution such taxation was impermissible.
6. Mr. Mansoor Ahmad, Advocate, has provided us a list of his own classifying the petitions/appeals in which he is appearing into the two categories (`A' and `B') and we are adopting the same as the recitals in the Constitution Petitions in which he is appearing are not so clear as to make classification easy by reference to their contents. His contention with regard to the merits of the cases is, that once it is held that in some form or for some purpose, the duties of Iqra and Additional Surcharge came to be assimilated under section 18 of the Customs Act as customs duties, then any exemption granted under section 19 of the Customs Act where exemption from whole of the customs duties was made without reference to first Schedule of the Act should necessarily be taken to include such Surcharge and Additional duty as well. Incorporation by reference cannot stop at an intermediary stage so as not to include or extend to the grant of exemption.
7. Mr. Abdul Hafeez Lakho, Advocate, in respect of his matters in Annexure `B' contended that remand should be not to the Customs Authorities but to the licencing authority which had permitted the import of the machinery on the understanding that it was not locally manufactured. The Customs Authorities were not the authorities competent to determine whether the machinery was one which was locally manufactured or not locally manufactured.
8. There were certain submissions made by the learned counsels with regard to the classification of their matters into Annexures `A' and `B' which have been taken note of and given effect to wherever necessary.
9. So far as the contention with regard to Article 2,70-A of the Constitution is concerned, the object was never to take it beyond the curing of the competency and the validity of the legislative instruments specified therein. It is also correct that for laws which arc to continue after the revival of the Constitution have to conform to the other Constitutional provisions and must satisfy that test. However, on the strength of such an interpretation of Article 270-A, it cannot be said that on revival of Article 89 of the Constitution by the Provisional Constitution order, 1981, such a contrariety came into existence, as to repeal paragraph 7 of the Proclamation Order of 1977 dispensing with the limitation with regard to the duration of the validity of the ordinance. The Provisional Constitution order, 1981 did not accomplish even by implication the repeal or displacement of paragraph 7 of the Proclamation Order. The two could subsist as they did when the Proclamation itself was made. If Article 89 had not been in the field or is not in the field paragraph 7 of the Proclamation Order would not be necessary and merely because Article 89 is revived, it cannot be argued that it became unnecessary or got repealed impliedly. The two are made to co-exist, paragraph 7 modifying or controlling Article 89. Paragraph 7 of the Proclamation order cannot exist unless Article 89 is in the field. Besides, on no principle of Constitutional interpretation it can be said that the revival of the Constitution had the effect of reviving something which was not in existence immediately before the revival of the Constitution i.e. Need of placing an Ordinance promulgated before the revival of the Constitution before the Assembly within four months of its promulgation after which period it ceased to have effect. Such revival of the Constitution certainly will prospectively bring to life such requirement but would not revive for past matters the requirement which was not in existence immediately before the revival of the Constitution. Such a result is sustainable on the strength of Article 201 of the Constitution.
10. As regards the contradictions noticed in the Constitution by Mr. Khurshid Anwar, Advocate, the learned counsel has himself resolved it by reference to the definition of `Act of Parliament' in Article 260 of the Constitution which has been reproduced above. It is possible in a legal document to provide one definition of `Parliament' and another for `Act of Parliament'. The two need not be coextensive. They are not in this case co-extensive but they do make good sense to cover a situation where under the provisions of the Constitution an `Act of Parliament' is not required to be channellized through the Senate.
11. The argument of Mr. Mansoor Ahmad, Advocate, is correct in so far as it goes but such an argument cannot prevail over the express language of the charging provisions to the contrary. The charging provisions have two specific features which negative any such conclusion. The first is that they levy special and distinct customs duties and what is more important, they expressly provide that no exemption except those granted by reference to these charging provisions shall be of avail to avoid these levies. No such exemption by reference to the charging is forthcoming. For that reason the general exemptions granted under provisions section 19 of the Customs Act cannot be of avail for avoiding them.
12. The argument advanced by Mr. Abdul Hafeez Lakho would have held the field if the question to be determined was whether the import of the specific parts was authorised or not authorised. That is not the issue in these petitions/appeals. The question in issue is the rate of duty leviable, on goods imported. That is a question not reserved for the import licencing authority but for the authorities established under the Customs Act.
13. Further to our judgment dated 22-10-1990 referred to in para. 1 above, we dismiss the petitions and appeals listed in Annexure `A' to this judgment and also the claim to the avoidance of Iqra and Additional Surcharge or any portion of it in respect of Petition and Appeals listed in Annexure `B' to this judgment. However, the petition listed in Annexure `B' is converted into appeal and all the appeals in Annexure `B' in so far as denial of relief from customs duties etc. Has taken place solely on the ground that the machinery or a part of it is locally manufactured or had a local substitute are allowed. On acceptance of the appeals to this extent, the matters shall stand remanded for fresh determination by departmental officers of Customs Department after ascertaining the full facts of each case.
14. ANNEXURE `A'
15. Civil Petitions:
1. 292-K of 1990, 2. 409-K of 1990 and 3. 506-K of 1990.
16. Civil Appeals:
1. 177-K of 1989, 2. 181-K of 1989, 3. 196-K of 1989, 4. 197-K of 1989, 5. 199-K of 1989, 6. 9-K of 1990, 7.10-K of 1990, 8. 11-K of 1990, 9.12-K of 1990,10. 13-K of 1990, 11. 14-K of 1990, 12. 1 6-K of 1990, 13. 18-K of 1990, 14.
17. 19-K of 1990, 15. 21-K of 1990, 16. 22-K of 1990, 17. 23-K of 1990, 18. 25-K of 1990, 19. 26-K of 1990, 20. 28- K of 1990, 21. 29-K of 1990, 22. 30-K of 1990, 23. 31-K of 1990, 24. 32-K of 1990, 25. 36-K of 1990, 26. 37-K of 1990, 27. 39-K of 1990, 28. 40-K of 1990, 29. 41-K of 1990, 30. 42-K of 1990, 39. 43-K of 1990, 32. 45-K of 1990, 33. 46-K of 1990, 34. 48-K of 1990, 35. 49-K of 1990, 36. 52-K of 1990, 37. 53-K of 1990, 38. 54-K of 1990, 39. 55-K of 1990, 40. 56-K of 1990, 41. 57-K of 1990, 42. 58-K of 1990, 43. 59-K of 1990, 44. 61-K of 1990, 45. 62-K of 1990, 46. 63-K of 1990, 47. 64-K of 1990, 48. 60-K of 1990, 49. 67-K of 1990, 50. 68-K of 1990, 51. 69-K of 1990, 52. 70-K of 1990, 53. 71-K of 1990, 54. 72-K of 1990, 55. 73-K of 1990, 56. 74-K of 1990, 57. 75-K of 1990, 58. 78-K of 1990, 59. 81-K of 1990, 60. 82-K of 1990, 61. 83-K of 1990, 62. 84-K of 1990, 63. 85-K of 1990, 64. 89-K of 1990, 65. 90-K of 1990, 06. 91-K of 1990, 67. 95-K of 1990, 68. 96-K of 1990, 69. 97-K of 1990, 70. 98-K of 1990, 71. 99-K of 1990, 72. 100-K of 1990, 73. 102-K of 1990, 74. 104- K of 1990, 75. 105-K of 1990, 76. 106-K of 1990, 77. 107-K of 1990, 78. 111-K of 1990, 79. 112-K of 1990, 80.
18. 113-K of 1990, 81. 116-K of 1990, 82. 117-K of 1990, 83. 118-K of 1990, 84. 120-K of 1990, 85. 121-K of 1990, 86.
19. 122-K of 1990, 87. 123-K of 1990, 88. 124-K of 1990, 89. 125-K of 1990, 90. 137-K of 1990, 91. 138-K of 1990,
92. 139-K of 1990, 93. 141-K of 1990, 94. 142-K of 1990, 95. 143-K of 1990, 96. 144-K of 1990, 97. 145-K of 1990, 98. 161-K of 1990, 99.162-K of 1990, 100. 163-K of 1990 and 101. 267-K of 1990.
20. ANNEXURE `B'
21. Civil, Petition.
22. 1.166-K of 1990.
23. Civil Appeals.
1. 179-K of 1989, 2. 180-K of 1.989, 3. 183-K of 1989, 4. 184-K of 1989, 5 185-K of 1989, 6. 186-K of 1989, 7.
24. 187-K of 1989, 8. 188-K of 1989, 9. 189-K of 1989, 10.190-K of 1989, 11. 191-K of 1989, 12. 192-K of 1989, 13.
25. 194-K of 1989 14. 195-K of 1989, 15. 198-K of 1989, 16. 200-K of 1989, 17. 479 of 1989, 18. 5-K of 1990, 19. 6- K of 1990, 20. 7-K of 1990, 21. 8-K of 1990, 22. 15-K of 1990. 23. 17-K of 1990, 24. 20-K of 1990, 25. 24-K of 1990, 26. 27-K of 1990, 27. 33-K of 1990, 28, 35-K of 1990, 30. 38-K of 1990, 31. 44-K of 1990, 32. 47-K of 1990, 35. 60-K of 1990, 36. 65-K of 1990, 37, 77-K of 1990, 39. 79-K of 1990, 40. 80-K of 1990, 41. 114-K of 146-K of 1990, 44. 266-K of 1990 and 45. 268-K of 1990.