1. SAEEDUZZAMAN SIDDIQUI, J.---The petitioners in the abovementioned Constitution petitions and Human Rights cases are private individuals as well as Motor Car Dealers. They imported taxi cars, mini buses and buses under the Scheme known as 'Prime Minister's Incentive Scheme for Revamping Public Transport' (hereinafter to be referred as 'the Yellow Cab Scheme') approved by the Federal Government headed by Mian Nawaz Sharif as its Prime Minister, on 6-10-1991. To give effect to the Yellow Cab Scheme, the Federal Government issued SRO No, 1046(1)191 dated 14-10- 1991, under section 19 of the Customs Act, 1969 which permitted import of new taxi cars with or without radio sets and new mini buses with seating capacity of 22 to 40 persons and new buses with seating capacity over 40 persons in CKD conditions without payment of any customs duty, sales tax and surcharge, and new mini buses and new buses of the above description in CBU conditions on payment of custom duty and surcharge at the rate of 5 per cent. And 10 per cent.
2. Respectively. However, Iqra surcharge at the rate of 5 per cent. Was payable on import of all the above vehicles under the above SRO. Subsequently, the scope of Yellow Cab Scheme was enlarged and vehicles of various other descriptions and sizes were also included in the Scheme. The salient features of the Yellow Cab Scheme were that, it permitted import of vehicles of specified descriptions free of customs duty, sales tax and surcharge; the imported vehicles could only be used as taxi cars or public transport vehicles as the case may be till it is scrapped after obtaining prior permission from the Ministry of Communications; the designated vehicles could be imported either by an individual or a firm; and loan facilities were made available to supplement the import of these vehicles through nationalised banks on a debt equity ratio of 70:30 percent. Which was subsequently changed to 90:10 per cent. Originally 30th day of June 1992 was fixed as the cut off date for import of vehicles under Yellow Cab Scheme but this date was extended from time to time and finally by Notification No, SRO 493(1)/93 dated 14-6-1993, the Government withdrew the time limitation provided for import of vehicles under the Yellow Cab Scheme. The Yellow Cab Scheme was aimed at the revamp the public transport system and to provide employment to the unemployed youths in the country. Since the import of all the designated vehicles under the Yellow Cab Scheme was allowed through car dealers and local representatives of the automobile manufacturers, who were also permitted through latters amendments in the Scheme to book order on behalf of individuals desirous of importing the vehicles and process their applications, majority of these vehicles which are subject-matter of above petitions were imported through car dealers.
3. The procedure adopted in all these cases was, that the 10 per cent. Equity ratio deposited by individuals, desirous of importing a vehicle under the Yellow Cab Scheme, with the bank, was made over to car dealers who out of their own resources arranged opening of letters of credit for importation of the vehicles booked by the individuals and balance 90 per cent. Of the loan component was to be paid by the banks, which accepted deposits of 10 per cent. Equity ratio from individuals, to these dealers, after the vehicles were imported in Pakistan. To give effect to the provisions of Yellow Cab Scheme, the Federal Government issued from time to time Notifications under section 19 of the Customs Act and the last Notification in the series was SRO No, 251(1)/93 issued on 3-4-1993. The Yellow Cab Scheme in its modified form remained operative until dissolution of Assemblies on 18-7-1993. After dissolution of the Assemblies, the Caretaker- Government headed by Mr. Moeen Qureshi, which succeeded the former Government of Mian Nawaz Sharif, decided to discontinue the Yellow Cab Scheme in the form it then existed. As a sequence to the decision of Caretaker-Government of Mr. Moeen Qureshi, the State Bank of Pakistan issued a directive to all the banks not to open any further letters of credit for import of vehicles under the Yellow Cab Scheme. Simultaneously, Ministry of Fmance also issued directions to all nationalised banks not to disburse any further loan component to persons who had registered their applications for import of vehicles and deposited 10 per cent. Debt equity ratio under the Yellow Cab Scheme. This was followed by two Notifications Nos. SRO 815(1)/93 dated 16- 9-1993 and SRO No, 825 (1)/93 dated 20-9-1993 which inter alia provided that all the vehicles imported under the Yellow Cab Scheme on or after 16-91993 shall be subject to the payment of 75 per cent of leviable custom duty as specified in the schedule in cases of new taxies with or without radio sets, up to 1800 cc capacity, and vehicles with capacity above 1800 cc subject to 90 per cent.
4. Of the leviable customs duty. The import of pickups, coasters, buses, trucks etc. Under the Yellow Cab Scheme was made subject to payment of 50 per cent. Of the leviable customs duty as specified in the schedule to the Customs Act, 1969. In addition to the above two Notifications issued by the Government under section 19 of the Customs Act, a Customs General Order (C.G.O.) No, 13 of 1993 was also issued by the Central Board of Revenue (C.B.R.) which amongst others provided that all vehicles imported in terms of Notification No, SRO 251 (I)/93 dated 3-4-1993, will now be allowed to be used either a taxi car or as a private vehicle subject to the payment of customs duty recoverable in terms of SRO No, 815(1)/93 dated 16-9-1993 read with SRO No,825(I)/93 dated 20-9- 1993. The C.G.O. Referred to above further provided that vehicles already cleared from the customs in accordance with the provisions of SRO No,251(I)/93 dated 3-4-1993 but not yet delivered to the buyers so far, and were in possession of the importers, will either be reported out of Pakistan or if these vehicles were imported with prior booking of individuals they would only be released subject to payment of customs duty and other charges in terms of SRO No,815(I)/93 dated 16-9-1993. As a result of the above steps taken by the Caretaker Government in respect of Yellow Cab Scheme, a large number of vehicles which were already imported and cleared through custom and were in the custody of importers/dealers for delivery to the individual buyers, who had booked the same by depositing 10 per cent. Equity ratio, could not be delivered to them. Similarly, a large number of vehicles which were imported under the Yellow Cab Scheme and which arrived at Karachi Port before the target date namely, 16-9-1993, were also not allowed clearance from customs on payment of customs duty etc. Under Notification SRO No,251(I)/93 dated 3-4-1993 and Customs Authorities demanded duty and other charges according to SRO No,815(1)/93 dated 16-9-1993. The nationalised banks which had accepted 10 per cent. Debt equity ratio from applicants and had agreed to finance the import of vehicles under the Yellow Cab Scheme by providing balance 90 per cent. Of the loan component also refused to honour their commitment. As a result of these developments, the vehicles already imported and cleared from custom and were in the custody of the importers/car dealers and those which arrived at the Karachi Sea Port in time but were awaiting clearance from custom, were struck up and individuals who had booked these vehicles by depositing 10 per cent. Equity ratio with the banks under the Yellow Cab Scheme were not given delivery of these vehicles. In this background, the abovementioned petitions were filed before this Court under Article 184(3) of the Constitution of Islamic Republic of Pakistan to challenge the action of the Government obstructing delivery of the imported vehicles to them and seeking direction against the banks, which had accepted 10 per cent. Equity ratio at the time of booking of the vehicles, to make available the remaining loan component to the extent of 90 per cent of the value of the vehicles in accordance with the terms of the Yellow Cab Scheme. During pendency of these cases, through an interim order this Court allowed shifting of all vehicles lying at the Karachi Port, imported under the Yellow Scheme, to the Customs Common Pool Bonded Warehouse at Maripur, as these vehicles were incurring heavy demurrage at the Sea Port. In terms of the interim order of this Court, the banks through which these vehicles were imported provided bank guarantee in favour of Karachi Port Trust in respect of the claim of demurrage against these vehicles. The above cases, thereafter, came up for hearing before the Court on different dates but time was allowed to the Government to consider and resolve the controversy in a manner acceptable to all concerned.
5. The learned counsel for the parties, however, reported that the Federal Cabinet considered the whole matter in depth and an understanding was also arrived at between the parties but on the manner of implementation of the understanding the parties have differences. The learned counsel for the Federal Government in this background asked for further 6 weeks time to investigate all the cases of import of vehicles under the Yellow Cab Scheme which was vehemently opposed by the learned counsel for the petitioners. As considerable time has passed since these vehicles were imported and they are lying stored in an open space exposed to weather which is likely to affect their conditions, we declined to adjourn the hearing of the cases any further and proceeded to hear the learned counsel for the parties.
6. The maintainability of the above petitions under Article 184(3) of the Constitution is challenged by the learned counsel for the Federal Government. It is contended on behalf of Federal Government by its learned counsel that the controversies raised in the above cases relate to the enforcement of contractual liability against the banks which is outside the scope of Article 184(3) of the Constitution. On merits the learned counsel for the Federal Government contended that Yellow Cab Scheme was primarily meant for providing employment to unemployed youth, whereas the provisions of the Scheme were abused by the car dealers and importers who imported the designated vehicles in large numbers under fictitious names in order to enrich themselves. It is, accordingly, contended by the learned counsel for the Federal Government that on investigation of these cases by F.IA., several irregularities in the import of vehicles under Yellow Cab Scheme were discovered which entitled the Government to impound all such vehicles which have been imported in contravention of the provisions of Yellow Cab Scheme.
7. In reply to the preliminary objection raised by the learned counsel for the Federal Government, the learned counsel for the petitioners jointly contended that the Government held out to the petitioners that in case they contributed 10 per cent. Of the cost of vehicles, they would be entitled to import a vehicle free of customs duty, sales tax and surcharge, for use as a taxi or as a public transport vehicle as the case may be, under Yellow Cab Scheme and that 90 per cent. Of the cost of vehicle would be contributed by providing loan component through banks. The petitioners acting on the above representation of the Government invested their lifelong savings and deposited 10 per cent. Equity ratio with the banks which in turn was made over to the dealers for import of the vehicle under the Yellow Cab Scheme. The petitioners thus acquired a valuable vested right under the Yellow Cab Scheme which could not be taken away if the Government later on changed its policy or discontinued the Scheme. It is further contended by the learned counsel for the petitioners. That the disputed vehicles having been imported by the petitioners under duly established letters of credit, the action of the Government in obstructing delivery of these vehicles to the petitioners besides constituting a breach of statutory duty under the Yellow Cab Scheme, also amounted to an encroachment on the fundamental rights of the petitioners to freedom of trade, business or profession and the right to acquire, hold. And dispose of the property in accordance with the law, guaranteed under Articles 18 and 23 of the Constitution. Replying to the contention of learned counsel for the Federal Government that the petitioners had violated the terms of Yellow Cab Scheme by importing some of the vehicles in fictitious names, and therefore, such vehicles were liable to be impounded by the Government, the learned counsel for the petitioners contended that under the Yellow Cab Scheme the banks were made responsible to scrutinize individual applications for import of vehicles and to accept the deposit equal to 10 per cent. Equity ratio. The banks accordingly accepted the applications from individuals for import of vehicles under Yellow Cab Scheme alongwith the deposit equal to 10 per cent. Equity ratio and after satisfying themselves as to the genuineness of the application made over the amount equal to 10 per cent. Equity ratio deposited with the bank to the petitioners for import of vehicles under the scheme with the commitment to contribute the balance of 90 per cent. Equity ratio on importation of vehicles into Pakistan. In these circumstances, it is contended by the learned counsel for the petitioners that the allegation of fraud against the petitioners could not be sustained as they had nothing to do with the processing of individual applications for import of vehicles under the Yellow Cab Scheme. The fraud, if any, committed in entertaining the individual application for import of vehicles under Yellow Cab Scheme, in the circumstances, was the responsibility of banks, and not that of the petitioners.
8. ' It is contended by the learned counsel for the petitioners that the import of all the vehicles in the above cases was covered by letters of credit duly established by the petitioners and as such the property in these vehicles passed on them under the law. It is, accordingly, contended that to the extent the Federal Government interfered with the rights of petitioners to deal with these imported vehicles in accordance with the provisions of the Yellow Cab Scheme, the same amounted to interference with the rights of the petitioners to carry on a lawful trade or business freely besides their right to acquire, hold and dispose of the property in accordance with the law, guaranteed under the Constitution.
9. After hearing the learned counsel for the parties at length, we are of the view that the reliefs claimed by the petitioners in the above cases can be divided in two distinct and separate categories. The first category comprises of those reliefs which the petitioners have asked against the Government and the banks on the basis of the rights which they claim to have acquired as a result of the representation made to them in the form of Yellow Cab Scheme and on which they acted in good faith. In this category the relief claimed by the petitioners against the banks to compel them to contribute 90 per cent. Of loan component promised under the Yellow Cab Scheme would fall. Similarly, the relief sought by the petitioners against the Federal Government that on account of its representation in the form of Yellow Cab Scheme the petitioners changed their position and thus acquired a vested right for import of vehicles in accordance with the provisions of Yellow Cab Scheme will also fall in this first category. The grant of these reliefs to the petitioners do not require enforcement of any of the fundamental rights mentioned in Chapter I of Part II of the Constitution and as such to the extent of these reliefs the above petitions are not maintainable under Article 184(3) of the Constitution. We, accordingly, leave these controversies open for the petitioners to agitate before any competent forum, if they are so advised.
10. The second category of the grievances of the petitioners in the above cases relate to the enforcement of their fundamental rights of freedom of trade, business or profession and the right to acquire, hold and dispose of the property in accordance with the law. From the documents placed, before us by the parties in the above cases, it, is established that all the vehicle's which are subject-matter of these cases, were imported by the petitioners by establishing valid letters of credit. The learned counsel for the Federal Government and the banks have raised objection that under terms of the letters of credit, the property in the goods did not pass on to the petitioners and, therefore, it could not be said that the petitioners had acquired proprietary rights in these vehicles.
11. We have carefully examined the terms of letters of credit, under whinier these vehicles have been imported by the petitioners. We could not find any term in the contract of letters of credits which reserved the right of disposal of these vehicles to the seller after they were shipped for transmission to the petitioners (buyers). Section 23 of the Sales of Goods Act, 1930 which governed the sale in the present cases reads as follows:-- "23. Sale of unascertained goods and appropriation.--(1) Where there is a contract for the sale of unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriate to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer.
12. Such assent may be express or implied, and may be given either before or after the appropriation is made.
(2) Delivery to carrier.--Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier Or other bailee (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract."
13. We are, therefore, of the view that in terms of section 23 of the Sales of Goods Act, as soon as these vehicles were put on board for shipment to the petitioners and the bill of lading and invoices were drawn in their names, the property in the goods passed to the petitioners and the only right which the seller possessed in respect of these vehicles was the right to claim the balance price of these vehicles from petitioners. We, are, therefore, of the view that to the extent the right of petitioners to dispose of these imported vehicles in accordance with Yellow Cab Scheme, was obstructed or denied by the Government, it constituted violation of their right of freedom to follow a lawful trade and business and their right to acquire, hold and dispose of property in accordance with law which was granted under Articles 18 and 23 of the Constitution. It is not denied by the learned counsel for the Federal Government that the question raised in the above cases of public importance. The jurisdictional requirements of Article 184(3) of the Constitution in respect of the second category of reliefs claimed in the above petitions are, therefore, satisfied and the petitions to that extent are maintainable.
14. Having dealt with the preliminary objection in the above cases, we now proceed to examine these cases on merits. As stated earlier the petitioners have imported all the vehicles which are subject- matter of these cases, under the Yellow Cab Scheme which remained in force until it was varied by the Government by SRO 815(1)/93, dated 16-9-1993 and SRO 825(1)/93 dated 20-9-1993. The reading of the abovementioned 2 notifications makes it clear that the Yellow Cab Scheme as such was not abandoned or discontinued but only the duty structure on the vehicles imported under the scheme after 16-9-1993 was changed. It is relevant to reproduce here these two Notifications which read as follows:-- S.R.O. Dated 16-9-1993: "S.R.O. 815(I)/93.--In exercise of the powers conferred by section 19 of the Customs Act. 1969 (IV of 1969) and subsection (1) of section 13 of the Sales Tax Act, 1990, the Federal Government is pleased to exempt customs duty specified in the First Schedule to the Customs Act, 1969 (IV of 1969) as is in excess of the rates specified in column (3) of the table below and whole of the sales tax on import of vehicles imported under the Prime Minister's Scheme for Re-vampting of Public Transport (hereinafter called the Scheme) on or after the 16th September, 1993.
15. S.No,Type of Vehicles. Customs Duty
(1) (2) (3)
1. New taxis with or without radio sets up to 1800 cc of petrol and diesel models fully air-conditioned. Latest model and right hand drive.75% of the leviable customs duty as specified in the First Schedule of the Customs Act 1969.
2. New taxis with or without radio sets above 1800 cc of petrol and diesel models fully air-conditioned latest model and right hand drive.90% of the leviable customs duty as specified in the First Schedule of the Customs Act, 1969.
3. Pickups Coaster Buses Trucks and Chassis.50% of the leviable customs duty as specified in the First Schedule of the Customs Act 1969.
2. This notification shall not apply to such vehicles as are imported without prior booking in a manner specified by the Ministry of Communication in this behalf.
16. (Sd.)
17. (Mumtaz Ali), Additional Secretary".
18. S.R.O. Dated 20-94993: "S.R.O. No, 825(I)/93,--In exercise of the powers conferred by section 19 of the Customs Act, 1969 subsection (1) of section 13 of the Sales Tax Act, 1990 and subsection (2) of section 5 of the Finance Act, 1985 (I of 1985), the Federal Government is pleased to direct that the following further amendment shall be made in this Ministry's Notification SRO No,251(I)/93, dated the 3rd April, 1993, namely:-- In the aforesaid Notification:--
(i) after condition No, (x), the following new condition shall be inserted, namely: `(x-A) Every yellow cab holder shall have a bank pass book in such form as may be specified by the Pakistan Banking Council and shall keep such pass book in the vehicle at all the times for inspection by any officer of Customs or Police.'
19. (Sd.)
20. (Mumtaz Ali)
21. Additional Secretary."
22. We are, therefore, of the view that all those vehicles which were imported under Letters of Credit established before 26-7-1993 and were cleared before 16-9-1993 were not subject to payment of any customs duty, sales tax or surcharge as provided under Notification S.R.O. No,251(I)/93, dated 3-4-1993 provided the bills of entry for their clearance were filed with the customs before coming into force of Notification S.R.O. No,815(I)/93, dated 16-9-1993. It is admitted before us that all the vehicles which are subject-matter of the above cases were booked by individuals who had deposited 10 per cent. Equity ratio with the banks, which was subsequently paid by the banks to the petitioners to enable them to establish letters of credit for import of these vehicles from various countries. These vehicles, therefore, on clearance have to be first offered at the price either already fixed by the Government or to be fixed by the Government, for sale to the persons who had deposited 10 per cent. Equity ratio for import of these vehicles, on condition of payment of the balance of 90 per cent. Price. In case the individuals who had booked the vehicles are not ready to take delivery of these vehicles on payment of 90 per cent. Balance price the importers may after returning their deposit with mark up of 15 per cent., may dispose of these vehicles to any other person who is willing to ply these vehicles either as taxis or as a public transport as the case may be, in accordance with the provisions of Yellow Cab Scheme. In case end user of these vehicles is changed by the importers they will be liable to pay statutory duty on these vehicles as prescribed under the law. The petitioners before obtaining delivery of these vehicles will settle the dues of L.C.
23. Opening banks and will also settle the claim of demurrage with the K.P.T. Authorities. The banks which provided bank guarantee under the orders of this Court, to the K.P.T. In respect of its claim of demurrage, will continue to hold lien on these vehicles until such time the claim of demurrage is settled or discharged by the petitioners.
24. With regard to the contention of learned counsel for the Federal Government that various irregularities were committed by the petitioners while importing vehicles under the Yellow Cab Scheme, we may observe that consequences for violating the provisions of the Scheme are clearly provided in the Scheme itself. Therefore, any person who is found to have violated the provisions of the Yellow Cab Scheme can be proceeded against in accordance with these provisions. We may, however, state here that from the documents filed before us it is quite clear that the individuals who desired to import vehicles under Yellow Cab Scheme deposited 10 per cent. Equity ratio aiongwith their applications with the banks. The banks after scrutinising these applications forwarded the 10 per cent. Equity ratio deposited with them to the petitioners/dealers for import of vehicles. Therefore, while examining the allegation and fixing the liability regarding import of vehicles under fake and fictitious names, the concerned agencies will keep the above procedure prescribed wider the Yellow Cab Scheme in their view. Mr. Aitzaz Ahsan, learned counsel for the Federal Government, towards the end of his arguments in the above cases very fairly and candidly referred to the decision of Economic Coordination Committee of the Cabinet dated 24-1-1994 taken in respect of the vehicles imported under the Yellow Cab Scheme and stated that the concessions mentioned in the above decision will be applied to all cases covered by it without reservations. The decision referred by Mr. Aitzaz Ahsan reads as follows:- "The Economic Coordination Committee of the Cabinet approved the proposal contained in para. 2 of the Summary, dated 23rd January, 1994, submitted by the Ministry of Industries and Production with the following modifications:--
(1) Duty on CKD Kits till 30-6-1995 should be reduced to the following level:-- Cars Duty on CKD Under 1000 CC10 % Under 1300 CC10 % Under 1600 CC10 %
(2) In the proposal at Para. 2(v) words 'twenty-five per cent..' in the first line be omitted and in the third line word `for' be substituted by the word 'of'.
(3) In the proposal at pm. 2 (viii) concessional duty rate on CKD will continue for one and half years instead of one year.
(4) The following proposal not contained in the summary was also approved:-- Penal surcharge on the warehouse automotive vehicles (CBU/CKD) and accessories (meters, air- conditioners, racks) which could not be disposed of due to complications caused by the termination of the. Prime Minister's Scheme should be waived."
25. In view of the statement of Mr. Aitzaz Ahsan made before us, the concessions mentioned in the above decision of E.C.C. Will be available to the petitioners wherever applicable.
26. The above petitions/Human Rights cases stand disposed of in terms of the above judgment, with no order as to costs.
27. (Sd.)
28. Nasim Hasan Shah, C.J.
29. (Sd.)
30. Abdul Qadeer Chaudhry, J.
31. I agree subject to my note enclosed hereto.
32. (Sd.)
33. Ajmal Mian, J.
34. (Sd.)
35. Saeeduzzaman Siddiqui, J.
36. (Sd.)
37. Wali Muhammad Khan, J.
38. AJMAL MIAN, J---I have had the advantage to read the draft of the 'proposed judgment of my learned brother, Saeeduzzaman Siddiqui, J. Though I am inclined to agree with the conclusion, but I would like to add my own note on certain points.
39. 2.It is not necessary to restate the peculiar features of the Yellow Cab Scheme, hereinafter referred to as the Scheme, as my learned brother has already referred to in the above proposed judgment.
40. It will suffice to observe that the L.Cs. For the vehicles which are the subject-matter of the present petitions, were opened agatnst the orders booked from individuals, hereinafter referred to as the applicants, under the Scheme after receiving 10 % of their contribution towards the price and after obtaining a letter from a nationalised bank for an undertaking to contribute 90 % of the costs of the vehicles as loan advanced to the applicants. It is an admitted position that while opening L.Cs. For the vehicles in dispute, inter alia 10 % amounts contributed by the applicants were utilized by the distributors/suppliers.
41. 3.The above petitions have been filed under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution. The above provision reads, as follows:-- "(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
42. A perusal of the above-quoted provision of the Constitution indicates that without prejudice to the provisions of Article 199, the Supreme Court has been conferred with the power to entertain a petition under the above provision directly if the following two conditions are fulfilled:-
(i) The case involves a question of public importance; and
(ii) The question so involved pertains to the enforcement of any of the Fundamental Rights contained in Chapter I of Part II of the Constitution.
43. 4.It may further be noticed that if the above two conditions are met, the above provision of the Constitution confers power on the Supreme Court to make an order of the nature mentioned in above Article 199 of the Constitution. It may be pertinent to point out that the scope of Article 199, which confers jurisdiction on the High Courts, is much wider than the jurisdiction conferred on the Supreme Court under the above-quoted provision of the Constitution inasmuch as a High Court not only can enforce a Fundamental Right under clause (2) of the above Article, but can also pass an appropriate order in the matters covered by sub-clauses (a), (b) of clause (1) of Article 199 of the Constitution, which provide as follows:-- "199.--(1) Subject to the Constitution, a High Court may, if it. Is satisfied that no other adequate remedy is provided by law,--
(a) on the application of any aggrieved party, made an order--
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceedings taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order--
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in.An unlawful manner, or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office;"
5. A High Court, while passing an appropriate order for the enforcement of Fundamental Rights or under the above sub-clauses (a) and (b) of clause (1) of Article 199 of the Constitution, is not required to go into the question, whether the case involves a question of public importance and, secondly, under the above sub-clauses (a) and (b) of clause (1) of Article 199, it is not necessary that the impugned action must be relatable to the enforcement of Fundamental Rights.
44. However, I may observe that the Supreme Court as the appellate Court against the judgments of the High Courts, irrespective of the fact that they may have arisen out of the exercise of Constitutional jurisdiction by the High Court or any other jurisdiction has been conferred more power than the High Courts as under Article 187(1) of the Constitution, it has power to issue such directions, orders, or decrees as may be necessary for doing complete justice in any matter pending before it. In this regard, it may be pertinent to refer the following observation of Muhammad Haleem, C.J in the case of Election Commission of Pakistan through its Secretary v.
45. Javaid Hashmi and others PLD 1989 SC 396:- "The Supreme Court can in the exercise of its appellate power correct all legal errors or defects or disabilities and its powers are wider in scope than the powers exercised by the High Court under Article 199, to correct the defects of the kind mentioned above. To emphasise the distinction, I would refer to the observations of Cornelius, C.J. In Jamal Shah's case as under:-- `Anything in the nature of the exercise of full scale appellate jurisdiction must be rigorously avoided by the High Court, for that would be to override the requirement of the Constitution that the power under Article 98, should be exercised so as to give full effect to the terms of such a provision as that contained in Article 171."
6. In the present case since the scheme was intended to cover the entire Pakistan and as under the Scheme people from all the provinces booked, vehicles which were intended to be used as taxis for the benefit of the public at large, I am of the view that the above first requirement is met, namely, that the case involves a question of public importance.
46. However, as regards the above second requirement i,e, the question involved should pertain to the enforcement of any of the Fundamental Rights contained in Chapter I of Part II of the Constitution. It may be stated that it has two aspects, namely:-
(i) The provision in the Scheme relating to the grant of loan to the extent of 90 % cost of vehicle by any one of the named nationalised banks coupled with an express undertaking given by the nationalised bank' concerned before opening of L.C. To provide above loan;
(ii) the provision in the Scheme pertaining to exception from the payment of customs duty etc. Backed by S.P.Os. Under the relevant provisions of the relevant law.
47. I am inclined to hold that the above provision in the scheme for loan of 90 per cent. Of the cost of a vehicle backed by an express undertaking by the nationalised bank concerned cannot be enforced under Article 184(3) of the Constitution as the alleged breach on the part of Government and the named nationalised Banks has no nexus with the enforcement of Fundamental Rights.
48. However, as regards the above second aspect, I had initially some reservation, but after hearing the learned counsel for the parties, I am inclined to hold that the same has nexus with the enforcement of the above Fundamental Rights.
49. 7.Mr. Abdul Hafeez Pirzada, learned counsel for the petitioners in two of the above petitions, pressed into service Article 14 of the Constitution, which provides that:- "(1) The dignity of man and, subject to law, the privacy of home, shall be inviolable.
(2) No person shall be subjected to torture for the purpose of extracting evidence."
50. The above contention is not tenable as the above, breach on the part of the Government and the Nationalised banks concerned has not in any way violated the dignity or the privacy of home of the petitioners.
51. 8.Whereas Mr. Khalid Anwar has inter alia pressed into service Article 18 of the Constitution, which guarantees subject to such qualifications as may be prescribed by law, that every citizens shall have the right of enter upon any lawful profession or occupation and to conduct any lawful trade or business.
52. If the above Article is to be read in isolation, one may say that it has no relevance to the above second aspect, but it is to be considered in conjunction with Article 23 of the Constitution which was also pressed into service by Messrs Abdul Hafeez Pirzada and Khalid Anwar, it has nexus with the same. Their contention was that as the L.Cs. Were opened by the distributors/suppliers of the vehicles and as the. Vehicles arrived in Pakistan and in the above two petitions, namely, Constitution Petitions Nos. 28 of 1993 and 1 of 1994, the vehicles were cleared from the port after making all the payments, the property in the same had passed in them and, therefore, any illegal constraint imposed by the Government to deal with the vehicles would be violative of Article 23 of the Constitution.
53. 9.It may be stated that Article 23 guarantees that every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan subject to reasonable restrictions imposed in public interest. The Government's action not to allow this distributors/suppliers or the applicants to deal with the vehicles in accordance with the Scheme would amount to interference with the right of property guaranteed under the above Article. It will also be violative of Article 18 as it amounts to interference with lawful trade and business. The above conclusion can be reinforced by giving an example, Suppose "N' has invested his entire working capital in the import of 500 vehicles under the Scheme as a distributor, the Government does not allow him to deal with them in accordance with law. This will not only be violative of Article 23 but will also being breach of Article 18 of the Constitution.
54. 10.In the other petitions though the vehicles have arrived at Karachi pursuant to the L.Cs. Opened by the distributors/suppliers, but the same have not been cleared from the Port. However, this does not make any difference as in view of subsections (1) and (2) of section 23 of the Sale of Goods Act, which read as follows:-- "23. Sale of unascertained goods and appropriation.--(1) Where there is a contract for the sale of unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be express or implied, and may be given either before or after the appropriation is made.
(2) Delivery to carrier.-- Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract." the property in the said vehicles has also passed in favour of the distributors/suppliers as there is no material on record to indicate that the exporters of vehicles at the time of handing over vehicles to the carriers for transporting the same to Pakistan had reserved .The right of disposal in the vehicles. In this view of the matter, the above cases are also covered by the above reasoning.
55. 11.However, I may point out that though the property in the imported vehicles had passed in favour of distributors/suppliers but they hold the same in trust for the benefit of the applicants as they were booked against their orders under the Scheme and their deposits of 10 % towards the cost of the vehicles were utilized for opening of the above L.Cs. It is true that the applicants' above orders were booked on the condition that in terms of the Scheme the balance of 90 % of the cost of a vehicle would be paid by a nationalized bank by advancing loan to the applicant concerned against the security of the vehicle involved, for which letter of guarantee was issued by the nationalised bank concerned as stated above but the above factum does not make any difference as regards the above aspect. The legal position, which emerges is that the applicants are entitled to take the delivery of vehicles if they can arrange the balance price of the vehicles as already ordered by this Court. However, as regards the applicants, who may not be able to arrange resources for making payment of the balance price of the vehicles, an appropriate order is incorporated in the proposed judgment of my learned brother Saeeduzzaman Siddiqui, J.