' NAZIM HUSSAIN SIDDIQUI, J.---This judgment will dispose of C.Ps. Nos.D-1212/1994, 63/1995 and 1744/1995, in which common questions of facts and law are involved. The facts relevant for decision of these petitions are as follows.
2. In C.P.No,D-1212/1994 Farogh Ahmed Siddiqui, who is a Journalist, is the petitioner. The respondents Nos.1, 2, 3, 4 and 5 are Provincial Government of Sindh, Director Excise and Taxation Department, M/s. Murree Brewery and M/s. Quetta Distillery respectively. The Petition No,D-63/1995 has been filed by Murree Brewery Company Ltd. And Province of Sindh, Director-General Excise and Taxation, M/s. Beach Brewery and Federation of Pakistan are respondents Nos.1, 2, 3 and 4 respectively. In C.P. No,D-1744 of 1995, Zaheerullah Khan Afridi is the petitioner and the Province of Sindh, Director-General Excise and Taxation, Government of Pakistan and M/s. Beach Brewery are respondents Nos.1, 2, 3 and 4 respectively. C.Ps. Nos.D-1212 of 1994 and 1744/1995 are on the basis of Public Interest Litigation, while C.P. No,D-63/1995 has been filed by M/s. Murree Brewery for the enforcement of their alleged fundamental rights.
3. The case of petitioner Farogh Ahmed Siddiqui in C.P. No,D-1212 of 1994 is that he is a devoted Muslim and strictly believes in the tenets of Islam. He states that Pakistan being an Islamic Republic its all laws shall be according to Qur'an and Shariah and the use of intoxicant be totally prohibited.
Referring to the Prohibition (Enforcement of Hadd) Order 4 of 1979, hereinafter referred to as the "Prohibition Order", which came in force on 10-2-1979, he maintained that, ex facie, the alcoholic drinks are intoxicants and it being so, on the basis of the Prohibition Order, no licence could be granted for the purposes prohibited therein. It is alleged that M/s. Murree Brewery and Mis. Quetta Distillery are of pre-partition origin and were designed to supply alcoholic drinks to the whole undivided India and also to the troops during World War Second, stationed in the Middle East/South Asia Zone. He claimed that since the date of promulgation of the Prohibition Order, the production of M/s. Murree Brewery and Quetta Distillery has been reduced to a bare 20% which fully caters the need of 3% non-Muslim minority of Pakistan. The Government of Pakistan, on the advice of the Council of Islamic Ideology, has also banned the export of alcoholic drinks and now even non- alcoholic beer cannot be exported. In these circumstances, the production capacity of Murree Brewery and Quetta Distillery to the extent of 80% is unutilised. According to the petitioner, in view of above background, there was no economic feasibility or reason for sanctioning any other unit in the face of unutilised capacity of the two existing century old establishments well known for their quality of products, and if there was any genuine demand for further production their said idle capacity could easily be revised and activated.
4. The petitioner therefore, has challenged the Notification No,DG-2 (244)/89/Excise/481 dated 5-4- 1994, issued by the Director-General, Excise and Taxation, whereby the Government of Sindh accorded approval for the grant of licences in favour of M/s. Beach Brewery namely, Distillery licence, Manufacturing of Pak-made Foreign Liquor Licence (Brewery), Ordinary trade and import (rectified spirit) licence, under Article 17 of the Prohibition Order, Rule 23(1) of Sindh Prohibition Rules, 1979 read with section 15(a) of Sindh Abkari Act, 1978 and para. 218(1) of Sindh Excise Manual, Volume I. Accordingly, the petitioner has prayed that those licences be declared as illegal and ultra vires.
5. The vase of the respondents Nos. 1 and 2 is that the Provincial Government is competent to grant such licences under Article 17 of the Prohibition Order read with Rule 23 of Sindh Prohibition Rules, 1979. Further it is the case of these respondents that existing Breweries are situated within the jurisdiction to other provinces and there is brewery in this province, although the consumption of this province far exceeds the collective demand of other provinces. These respondents have asserted that they have received complaints against M/s. Murree Brewery for sending substandard goods and some time spurious stuff was found by the Chemical Examiner which was unfit for human consumption. According to the respondents, the amount of Rs,15,00,00,000 as Excise Duty is outstanding against Punjab Province, which in spite of repeated demands has not yet been paid to the Provincial Government of Sindh.
6. The case of M/s. Beach Brewery is that the petitioner is not an aggrieved party within the meaning of Article 199 of the Constitution and is a stranger to this matter. It is alleged, the petitioner is/was an Editor of an irregularly published 'eveninger' i,e, "Daily Parliament" and had published a scurrilous and defamatory matter against the Avari Hotel Ltd., a sister concern of Beach Brewery, and the defamed party was constrained to file in this Court, the Suit No,449/1990 titled 'Avari Hotel Ltd. And others v. Farogh Ahmed Siddiqui', seeking therein damages amounting to Rs,10 crores, which is still pending for decision. The respondents have alleged that since the filing of the said suit, the petitioner was looking for ways to hurt and cause damage to B.D. Avari and to any company or business he is associated with, and this petition is the result of personal vendetta against B.D. Avari.
The respondents have asserted that this petition has been filed at the instance of Murree Brewery as to enable them (M/s. Murree Brewery) to continue their monopolistic hold over alcoholic productions in Pakistan. According to the respondents, although ostensibly the petition is motivated by the love of Islam, but, in fact, it is all in all in favour of Murree Brewery.
7. The respondents (M/s. Beach Brewery) have further stated that on 29-6-1994 at the 126th Annual General Meeting (AGM) of Murree Brewery it was proclaimed that "notwithstanding total liquor prohibition, the Company did better last year than at no time in the past 50 years "(Review for 1993). Also, it was noted that Murree Brewery's turnover recorded an impressive increase of 41% over the previous year and the turnover in Brewery division increased from 174 million to Rs,248.44 million and that a new potable liquor packing plant was installed at a cost of Rs,10 million and that the gross profit for the year under review i,e, up to 31-12-1993 was Rs,85.333 million an increase approximately to 33% over the figure for the previous year (Rs,64.61 million) Out of the aforesaid profit of Rs,85.33 million the contribution of the liquor division was Rs,55.417 million (66.77%) i,e, almost two-thirds of the Murree Brewery's gross profit came from the sale of liquor division. It is also said that Murree Brewery's Directors had complained that Punjab Excise Department had not allowed high season second shift operation in the Murree Brewery/Distillery. The respondents No,5 have claimed that Murree Brewery's sale of alcoholic over the past years have shown a consistent increase as indicated by the table below:-- "Sale of Liquor Division only ' 1991 Rs,143.778 million ' 1992 Rs,174.114 million (increase 21%)
' 1993 Rs,248.422 million (increase 41%)."
8. The respondents No, 5 have stated that according to Circular dated 5-1-1995 issued by Murree Brewery there was acute shortage of bottles, as such, it was proposed to make sales, of Pakistani- made foreign liquor against return of empty bottles. The respondents have claimed that Murree Brewery had also issued a Circular dated 7-12-1994 conveying the "good news" to their customers that their Murree Beer would be canned in aluminium can in addition to the regular bottled supply.
9. The respondent No,5 concluded that the business of Murree Brewery is flourishing and their business and profits are increasing regularly. They have claimed that monopolistic hold of Murree Brewery would no longer be possible with the start of the business of respondent No,5.
10 Petitioner Zaheerullah Afridi, who is a Social Worker, has filed C.P. No,D-1744/1995, which is still at the stage of admission, and has challenged the legality of the order/notification dated 5-4-1994, granting licences to M/s. Beach Brewery mentioned earlier. He has asserted that those licences could not be granted to the respondents (Beach Brewery) as consumption of liquor as an intoxicant was prohibited in Islam. It is also the case of the petitioner that the Legislature both Federal, and Provincial have no power to enact a law or issue a licence to manufacture for sale of intoxicating liquor in Pakistan and the powers of two Legislatures are limited and circumscribed by the mandate contained in the Objectives Resolution of Pakistan, which shall not be transgressed.
Accordingly, the petitioner prayed that said licences issued in favour of Beach Brewery be cancelled.
11. The case of the respondent No,2, the Director-General, Excise and Taxation, is that the licences issued to the Beach Brewery are valid and according to law. Further, it is said that the terms and conditions of those licences are specified therein and before issuing those licences all the facts were thoroughly examined.
12. The case of the respondent No,3 is that the provisions of Article 17 of the Prohibition Order are valid piece of legislation and are not violative of Article 2A or any other provision of the Constitution.
13. The case of M/s. Murree Brewery in C.P. No,D-63/95 is that their company was established in the year 1861 and since then is functioning admirably. They have claimed that by promulgation of Prohibition Order their production capacity has been reduced to 20% although they can produce 80% more if restrictions imposed in pursuance of Prohibition Order are withdrawn. According to them, the Chief Minister of Sindh by an unspeaking order dated 5-4-1994 has granted licences to M/s. Beach Brewery which they have challenged in this petition on the grounds, amongst others, that issuance of those licences is in violation of Circular No, 6(159)/90 Policy dated 5-1-1991 of Government of Pakistan Ministry of Industries which is as follows: ' NO .6(159)/90-POLICY ' GOVERNMENT OF PAKISTAN ' MINISTRY OF INDUSTRIES ' Islamabad, the 5th January, 1991.
' CIRCULAR ' Subject: DE-REGULATION OF SANCTIONING PROCEDURE.
' I am directed to say that to simplify and deregulate the sanctioning procedure for setting up industrial units in the country to provide maximum free-hand to the entrepreneur in selection and establishment of industries of his own choice the Government have taken following decisions as:
(i) Specified list will now consist of the following industries:
(a) arms and ammunition;
(b) security printing, currency and mint;
(c) radioactive substances;
(ii) Sanction will only be required for industries which are on the specified list.
(iii) No sanction for any other project irrespective of its cost and size will be required.
(iv) Manufacturing of alcohol has been placed on restricted list. In future, no new unit for alcohol manufacture will be permitted. However, this restriction will not apply to industrial alcohol, (Sd.)
(Muhammad lqbal), Chief Research Officer. Tele:825774
14. It is pertinent to point out here that Murree Brewery had filed C.P.No,D-19/95 before the Hon'ble Supreme Court about the alleged dispute between the Province of Punjab and Sindh as to the mode and manner of collection of Excise Duty leviable on Pakistan-made foreign liquor and the Supreme Court disposed of said petition by order dated 28-5-1995 in the following words:-- ' ORDER "Parties in this petition have arrived at consensus and have filed in writing settlement of dispute in which the terms and conditions are mentioned. This compromise is signed by the parties and on behalf of Governments of Sindh and Punjab by their representatives, who are learned Advocate- General. Sindh and the learned Additional Advocate General. Punjab. Learned Attorney-General for Pakistan has used his good offices in the resolution of this dispute. This petition is disposed of in the terms stated in the settlement of dispute in writing, which is placed on the record."
15. The case of respondents Nos.1 and 2 is that before granting the licences to Beach Brewery the following points were considered.:--
(i) The consumption of liquor/beer in Sindh Province exceeds the collective demand of other three provinces.
(ii) The Duty of Sindh Province recovered by Punjab Province and the problem faced by the Sindh Government for its delayed transfer to Sindh Province.
(iii) Several complaints from the licensees of Sindh Province about the substandard stuff being supplied by the petitioner.
(iv) Receipt of substantial revenue of licence fee establishment charges.
(v) Possibility of healthy competition of trade rather than adverse effects.
' The respondents have also stated that the principle of trade is based on demand and supply and it does not mean that the licensee will manufacture unlimited quantity. Further it is said that the Excise Staff has been appointed exclusively to supervise production and sale of liquor within the legal framework. It is also their case that, although presently there are two distilleries/breweries in.
Pakistan one at Rawalpindi and the other at Quetta, but the Quetta Distillery has not challenged these licences and it is only Murree Brewery, which, on unjustified grounds, have challenged their validity. These respondents have claimed that Article 17 of the Prohibition Order clearly provides that licences for the bona fide purposes of medical, scientific, industrial, for consumption by a non- Muslim of Pakistan as a part of religious ceremony or by a non-Muslim Foreigner could be granted, and, in fact, the licences in question have been granted strictly for the purposes specified in said Article.
16. The case of the respondents No,3 M/s. Beach Brewery is almost the same as that of in C.P.No,D- 1212/1994 which has already been mentioned earlier. The respondents No,3 have also claimed that, after the introduction of Prohibition Order, the petitioner's licence was also cancelled and subsequently fresh licences were issued to them subject to the prevailing laws, rules, and regulations of Punjab which are either identical, or in pari materia with the laws governing the case of the Beach Brewery. They have claimed that the petitioners cannot seek to have the licences of Beach Brewery cancelled as they themselves are enjoying the same. The respondents have also mentioned, that five out of the petitioner's seven directors, are Muslims which is flagrant violation'of the rules and Regulations.
17 The provisions of Article 17 of the Prohibition Order are as follows: "17. Licences for bona fide medical or other purposes.--The Provincial Government, or subject to the control of the Provincial Government, the Collector, may issue licences to any person in respect of any institution, whether under the management of Government or not,--
(a) for the manufacture, import, transport, sale or possession of any intoxicant or article containing intoxicating liquor on the ground that such intoxicant of article is required by such person in respect of such institution for a bona fide medicinal, scientific, industrial or similar other purpose or for consumption by a non-Muslim citizen of Pakistan as a part of a religious ceremony or by a non- Muslim foreigner, or.
(b) for the export of any intoxicant or article containing intoxicating liquor."
18 Mr. Aziz A. Munshi learned counsel for the petitioner contended that the licences granted to Beach Brewery are against the Constitutional provisions of Article 2A, the Objectives Resolution, and Article 37-H. According to learned counsel, it is the duty of the State to discourage the sale, and consumption of liquor. Article 37-H is as follows: "Article 37. The State shall--(h) prevent the consumption of alcoholic liquor otherwise than for medicinal and, in the case of non-Muslims, religious purposes, and."
19. Learned counsel submitted that the provisions of Objectives Resolutions are the grund norm of the Constitution and the pleas on which the impugned licences have been issued are un- Constitutional and against the Injunctions of Islam. He also submitted that the Prohibition Order is an invalid piece of legislation, un-Constitutional, and ultra vires to the Constitution. He contended that licences issued under Article 17 of the Prohibition Order, are contrary to the spirit of said Article and that Prohibition Order itself as a whole is violative to the provisions of the Constitution. He argued that since the subject in question is not covered by the Legislative and Concurrent list as contained in the Fourth Schedule as such the Prohibition Order ceased to be operative from 30-12- 1985, when the Martial Law was lifted. He relied upon the Articles 141 and 142 of the Constitution, which, are as follows: "Article 141. Subject to the Constitution, Majlis-e-Shoora (Parliament) may make laws (including laws having extra-territorial operation) for the whole or any part of Pakistan, and a'Provincial Assembly may make laws for the province or any part thereof."
' Article 142. Subject to the Constitution--
(a) Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to any matter in the Federal Legislative List;
(b) Majlis-e-Shoora (Parliament), and a Provincial Assembly also, shall have power to make laws with respect to any matter in the Concurrent Legislative List;
(c) a Provincial Assembly shall, and Majlis-e-Shoora (Parliament) shall not, have power to make laws with respect to any matter not enumerated in either the Federal Legislative List or the Concurrent Legislative List, and
(d) Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to matters not enumerated in either of the lists for such areas in the Federation as are not included in any Province."
20 Although, the learned counsel in petition has challenged section 15-A of the Sindh Abkari Rules 23-A of Sindh Prohibition Rules, 1979, para. 218 of the Sindh Excise Manual No,1, but during the course of arguments he confined his attack to the provisions of said Article 17 on the ground that other provisions were only procedural, while the provisions of Article 17 were substantive in nature and that if the Article 17 is struck down, the aforesaid other laws, rules, would automatically become ineffective. He submitted that the provisions of Prohibition Order are in the nature of sub- Constitutional legislation and in case of conflict with the Constitutional provisions they would have to give way to the provisions of the Constitution. Making his submission on Article 270-A, he submitted that validity provided under sub-Article (1) of Article 270-A to sub-Constitutional laws was up to 30-12-1985 and after the said date the Prohibition Order ceased to be operative as its provisions were directly in conflict of the Constitution. Article 270-A is as follows: "Article 270-A. (1) The Proclamation of the fifth day of July, 1977, all President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, including the Referendum Order, 1984 (P.O. No,11 of 1984), under which, in consequence of the result of the referendum held on the nineteenth day of December, 1984, General Muhammad Zia-ul-Haq became the President of Pakistan on the day of the first meeting of the Majlis-e-Shoora (Parliament) in joint sitting for the term specified in clause
(7) of Article 41, the Revival of the Constitution of 1973 Order, 1985 (P.O. No,14 of 1985), the Constitution (Second Amendment) Order, 1985 (P.O. No,20 of 1985) the Constitution (Third Amendment) Order, 1985 (P.O. No,24 of 1985) and all other laws made between the fifth day of July, 1977, and the date on which this Article comes into force are hereby affirmed, adopted and declared, notwithstanding any judgment of any Court, to have been validly made by competent authority and, notwithstanding anything contained in the Constitution, shall not be called in question in any Court on any ground whatsoever: ' Provided that a President's Order, Martial Law Regulation or Martial Law Order made after the thirtieth day of September, 1985, shall be confined only to making such provisions as facilitate, or are incidental to, the revocation of the Proclamation of the fifth day of July, 1977.
(2) All orders made, proceedings taken and acts done by any authority or by any person, which were made, taken or done, or purported to have been made, taken or done, between the fifth day of July, 1977, and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation, President's Orders, Ordinances, Martial Law Regulations, Martial LaA Orders, enactments, notifications, rules, orders or bye-laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taker, or done and shall not be called in question in any Court on any ground whatsoever.
(3) All President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent authority.
' Explanation.--In this clause, "Competent Authority" means,--
(a) in respect of President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders and enactments, the appropriate Legislature, and
(b) in respect of notifications, rules, orders and bye-laws, the authority in which the power to make, alter, repeal or amend the same vests under the law.
(4) No suit, prosecution or other legal proceedings shall lie in any Court against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed n exercise or purported exercise of such powers.
(5) For the purposes of clauses (1), (2) and (4), all orders made, proceedings taken, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby.
(6) Such of the President's Orders and Ordinances referred to in clause (1) as are specified in the Seventh Schedule may be amended in the manner provided for amendment of the Constitution, and all other laws referred to in the said clause may be amended by the appropriate Legislature in the manner provided for amendment of such laws.
' Explanation.--In this Article 'President's Orders' includes 'President and Chief Martial Law Administrator's Orders' and 'Chief Martial Law Administrator's Orders' ."
21. Relying upon the case of Ms. Benazir Bhutto v. Federation of Pakistan and others PLD 1988 SC 416, learned counsel submitted that in this case Political Parties Act was considered and the Hon'ble Supreme Court laid down parameters which were to be applied for a sub-Constitutional legislation in order to be valid after lifting of Martial Law. He also submitted that these parameters are that the law enacted during the periods between 5-7-1977 till 30-12-1985 must not be in conflict with the fundamental rights or any other provisions of the Constitution. He argued that every citizen of Pakistan has a legal right to approach the Courts to enforce the mandate of the Constitution in public interest and both the petitioners availing said rights have filed these petitions.
22. Mr. Abdul Haleem Pirzada learned counsel for Murree Brewery contended that the notification dated 5-1-1991, quoted above, has put the manufacture of liquor on the restricted list of industries and it being so, the licences in question could not be issued as by doing so the Provincial Government of Sindh violated Articles 148, 149 of the Constitution, which are as follows:-- "Article 148.--(1) The executive authority of every Province shall be so exercised as to secure compliance with Federal Laws which apply in that Province.
(2) Without prejudice to any other provision of this Chapter, in the exercise of the executive authority of the Federation in any Province regard shall be had to the interests of that Province.
(3) It shall be the duty of the Federation to protect every province against external aggression and internal disturbances and to ensure that the Government of every Province is carried on in accordance with the provisions of the Constitution.
' Article 149. (1) The executive authority of every Province shall be so exercised as not to impede or prejudice the exercise of the executive authority of the Federation, and the executive authority of the Federation shall extend to the giving of such directions to a Province as may appear to the Federal Government to be necessary for that purpose.
(2) The executive authority, of the Federation shall also extend to the giving of directions to a Province as to the carrying into execution therein of any Federal law which relates to a matter specified in the Concurrent Legislative List and authorises the giving of such directions.
(3) The executive authority of the Federation shall also extend to the giving of directions to a Province. As to the construction and maintenance of means of communication declared in the direction to be of national or strategic importance.
(4) The executive authority of the Federation shall also extend to the giving of directions to a Province as to the manner in which the executive authority thereof is to be exercised for the purpose of preventing any grave menace to the peace or tranquillity or economic life of Pakistan or any part thereof."
23. Mr. Abdul Haleem Pirzada also submitted that the impugned licences have been issued without having taken into consideration the unutilised manufacturing capacity of Murree Brewery, and this according to the learned counsel was done in violation of Article 18 of the Constitution. He argued that those licences have been granted with the object of earning more revenue, but this was diametrically against the purpose for which Prohibition Order was promulgated. According to him, mere fact that the Federal Government delegated powers under the Prohibition Order to the Provincial Government, this by itself does not mean that the Federal Government has ceased to have any power to change the rules, or to give direction to the Sindh Government.
24. Mr. Khalid Anwar learned counsel for Beach Brewery submitted that, the Hon'ble Supreme Court has in the case of Federation of Pakistan v. Nausher Rustam Sidhwa 1988 SCMR 1417 held that Article 17 of the Prohibition Order was not un-Islamic, and as such neither it is legal, nor justified to reopen the said issue which has already been finally and authoritatively decided by the highest Court of the country. He submitted that in these circumstances there is no need for interpreting the Objectives Resolution. Dealing with the scope of Article 37-H learned counsel submitted that the principle enshrined in the Article 37 about the promotion of social justice and eradication of social evils cannot be judicially enforced and it is not the responsibility of the Court to enforce this Article.
Learned counsel also argued that the main object of Article 37-H is prevention of consumption of liquor and it does not deal with the manufacturing stage and has no nexus with Article 17 of the Prohibition Order. Learned counsel also argued that there could not be any monopoly with regard to the manufacturing business, as Article 17 of the Prohibition Order has been upheld by the Supreme Court in relation to non-Muslims. On the point of granting of licence to Beach Brewery, learned counsel submitted that, in fact, it was done to end the monopoly of Murree Brewery and in this regard referred to section 2(1-G) of Monopolies Restriction Trade Practice (Control and Prevention) Ordinance, 1979, and stated that Murree Brewery controlled 70 to 80% of the total market of alcoholic beer. According to the learned counsel, the dispute between Beach Brewery and Murree Brewery is a business dispute, and the two petitioners namely Farogh Ahmed Siddiqui and Zaheerullah Khan Afridi have just been set up to change the complexion of the dispute under the garb of Islamic tenets and to block the way for Beach Brewery to enter in this business and to compete with Murree Brewery and Quetta Distillery.
25. Referring to the Notification dated 5th January, 1991, learned counsel submitted that it was a policy decision, which could be altered. He argued that the Prohibition Order conferred statutory powers on the Provincial Government to grant licence as such the theory of delegation of power would not apply. Learned counsel specifically referred to the affidavit of Khalid Mehmood Mughal, Chief Research Officer in the Ministry of Industries, Government of Pakistan, who stated that the Provincial Government has statutory power to issue such licences.
26. Learned counsel also urged that petitioner Furrukh Ahmed Siddiqui has filed the petition in his personal capacity and was apparently interested only in enforcement of Injunctions of Islam, but at the same time he has gone to the extent of certifying the high quality of the product of Murree Brewery, and even has gone to the extent of pleading the cause of Murree Brewery that if licence was granted to Beach Brewery it would cause financial loss to Murree Brewery.
27 Mr. Abdul Ghafoor Mangi. Learned A.-G. Submitted that Article 17 of the Prohibition Order, gave the statutory power to Provincial Government to issue licences and the circular dated 5-1-1991 of the Federal Government Prohibiting Establishment of Alcohol Industries has no force and the Provincial Government is not bound by any circular, because, firstly, such circular cannot override the statute i,e, the Prohibition Order, and secondly such circular is in violation of the Provincial autonomy, which has been granted by the Constitution. He stated that five licences have been granted to Beach Brewery by the Government, (1) to process the rectified spirit imported from Punjab, (2) was a licence for blending, conversion and colouring the spirit into potable liquor, (3) was a licence for manufacture Pakistan-made potable foreign liquor under Foreign licence, (4) was the licence to bottle to sell to the wholesaler, and (5) to sell it to the licensed retailers who are to sell it to permit-holder.
28. Mr. Farooq H. Naik learned Deputy Attorney-General confirmed that notice issued by this Court under Order 27-A of C.P.C. Was served upon the Attorney-General and stated that he represented both the Federal Government and the Attorney-General. Mr. Naik learned D.A. -G. Contended that the circular dated 5th January, 1991 was a directive in nature and not mandatory. He submitted that circular could not override the law, contained in the Prohibition Order. According to him, said Circular was not an executive directive within the meaning of Articles 148 and 149 of the Constitution.
29. Mr. R.F. Virjee learned counsel for respondent No,4 Quetta Distillery submitted that in these petitions no relief was claimed against said respondent and that in the Constitution the right of minorities were protected.
30. Mr. Sharifuddin Pirzada learned counsel for Murree Brewey respondent No,3 in C.P. No,1212/1994 submitted that the licences in question were granted to Beach Brewery in absolute secrecy and surreptitiously so that others, who were interested in such projects were not allowed to compete.
He also submitted that this was done in complete violation of the declared policy of the Government not to encourage the use of the liquor in the country. He argued that if the Government policy has been changed it should have been made known to the public.
31. He contended that Prohibition Order is "wholly un-Constitutional" and it ceased to be operative on 30th December, 1985 when Martial Law was lifted. Learned counsel submitted that Mr. B.D. Avari owner of Beach Brewery was a M.N.A. And he had utilized his public officer for his personal benefit.
He stated that Mr. Avari got re-scheduled bank debts of Rs,672 million, which according to him was merely an eye-wash and this in fact was in the nature of write off which was the largest so-called re-scheduling allowed by the Pakistan Banking System to any debtor. Learned counsel submitted that the Government of Sindh by different methods stopped the import of Murree Brewery product and one of the pleas was that the Government of Punjab has not repatriated Excise Duty to the Government of Sindh. Learned counsel also submitted that Murree Brewery had already paid full payment to the Government of Punjab and they could not be held responsible for the dispute between the Government of Punjab and Sindh. He submitted that validation under Article 270-A of sub-Constitutional laws was only for the specified period and Prohibition Order being sub- Constitutional law was subject to all provisions of the Constitution including legislative competence. He also submitted that it was significant that the words "notwithstanding anything contained in the Constitution" which appeared in Article 270-A, Clause (1) were deliberately omitted from Clause (3) of said Article, as such, the blanket of validity conferred by Clause (1) had slipped away from laws affected by Clause (3) of said Article, which meant that Prohibition Order became open for examination to determine that whether it was valid under the provisions of the Constitution.
32. Learned counsel submitted that on the basis of law laid down by the Hon'ble Supreme Court in the case of Benzair Bhutto it could be held that the Prohibition Order had lapsed as still born, and was not in existence consequent upon the withdrawal of Martial Law. He argued that there should have been enactment by appropriate Legislature on this subject after the withdrawal of Martial Law.
33. Relying upon the case PLD 1991 SC 14, he submitted that seven conditions laid down by the Supreme Court to justify structuring of discretion by those exercising public authority were not followed in this case.
34. On the point of effects of the Notification dated 5th January, 1991 learned counsel argued that if there is a Federal Law appropriate directions can be given by the Central Government, which are binding on the Provinces as according to the Supreme Court the Federation has a position of pre- eminence. He submitted that liquor production requires special permission and it cannot be equated with any other industry. According to him, since alcohol production has been placed on prohibitive list as such this policy of Federation should have been maintained by the Provincial Government of Sindh. About monopoly Mr. Pirzada submitted that liquor is covered under the doctrine Res Extra Commercium being obnoxious and dangerous, as such, the State has a right to regulate, control, and its manufacturing. He submitted that monopoly applied to business which was open to all and there could be monopoly only when a trade which could be done by all persons was entrusted by law to one or more to the exclusion of the general public. According to him, this does not apply to the trade of liquor, which is dangerous and obnoxious in nature. Liquor falls within the scope of Res Extra Commercium (outside commerce) as such, the principle of monopoly cannot be applied in case of liquor.
35. The respective contentions of the learned counsel of the parties are summarised in the following points which are discussed as follows.
36. The first point to be considered is about Article 2A of the Constitution, which speaks about the Objectives Resolution whose principles and provisions reproduced in the Annex., were made substantive part of the Constitution. This resolution was adopted by the First Constituent Assembly on 7th March, 1949. It provides tangible guidelines for having adecAte provisions for granting fundamental rights, safeguarding the interest of minorities and backward and depressed classes, and also unequivocally postulates about the independence of Judiciary. These high ideals were to be incorporated in the Constitution on the basis of guidelines provided in it. It is evident from the Constitution itself that the provisions of Objectives Resolution in one way or the other have been incorporated in the Constitution. Article 227 lays down that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, and no law shall be enacted which is repugnant to such Injunctions. Clause (2) of said Article gives a further direction that Article 227(1) can be enforced and implemented only in the manner as specified in Part IX of the Constitution. Necessary procedure for this purpose is provided in Articles 229 and 230.
37. Under Article 229, the President or the Governor of a Province may, or if two-fifths of its total membership so requires, a House or a Provincial Assembly shall refer to the Islamic Council for advice any question as to whether a proposed law is or is not repugnant to the Injunctions of Islam.
According to Article 230, it is functions of the Islamic Council to make recommendations to the Parliament and the Provincial Assemblies as to the ways and means of enabling and encouraging the Muslims of Pakistan to order their lives individually and collectively in all respects in accordance with the principles and concepts of Islam, as enunciated in the Holy Qur'an and Sunnah. As per proviso of sub-Article (3) of Article 230 where a law is referred for advice to the Islamic Council and the Council advises that the law is repugnant to the Injunctions of Islam, the House, the Provincial Assembly, the President or the Governor shall reconsider the law so made. As per sub-Article (4) of the said Article, the Islamic Council was required to submit final report within seven years of its appointment and was also required to submit an annual interim report.
38. Above provisions of the Constitution clearly show that already there are provisions in the Constitution for bringing the laws in conformity with the Injunctions of Islam and it is the function of the Legislature to bring the existing laws in conformity with the Injunctions of Islam. It is significant to note that for achievement of the said purpose rather expeditiously Articles 203-A to 203-J, were incorporated, under Chapter 3-A of Part VII of the Constitution, creating Federal Shariat Court and Shariat Appellate Bench of the Supreme Court.
39. Article 2A came under discussion in various cases and it appears from the case-law that very contradictory views were taken with regard to its scope and meaning. In the case of M/s. Bank of Oman Ltd. v. M/s. East Trading Co. Ltd. And others PLD 1987 Karachi 404, a learned Single Judge of this Court took the view that Article 2A can be regarded as supra Constitutional document. In spite of the dictum laid down by the Supreme Court in the cases reported (1) The Federation of Pakistan, through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151. (2) Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457 that Judiciary being itself the creation of the Constitution it cannot declare a provision of the Constitution as void, the following observation was made in Bank of Oman case at page 445, which is as follows: "The upshot of the entires discussion is that the Courts in Pakistan are bound by the Constitution, and any law repugnant to the Constitution is void. The principles and provisions of the Objective Resolution, by virtue of Article 2A, are now part of the Constitution and justifiable. Any provisions of the Constitution or law, found repugnant to them, may be declared by superior Court, as void, subject, however, to the limitations imposed by Articles 203-A, B(c), 203-D, 203-G and 203-GG of the Constitution, whereby special and specific jurisdiction has been conferred on the Federal Shariat Court to declare the law (as defined by Article 203-B(c) read with Article 203-G or any provision thereof, as repugnant to the Injunctions of Islam laid down in Holy Qur'an and Sunnah of the Holy Prophet (p.h.u.h.), and that the said law or any provision thereof has been so declared by it (Article 203-GG)."
40. In the case of Irshad H. Khan v. Mrs. Parveen Ajax PLD 1987 Karachi 466 a learned Single Judge of this Court held that provisions of Article 2A being in the nature of paramount clauses and supra- Constitutional instrument, covers Article 189 and that law declared by the Supreme Court either prior to insertion of Article 2A or without considering the said Article is also subservient to the provisions of Article 2A. In the case of Malik Ghulam Mustata Khar and others v. Pakistan and others PLD 1988 Lahore 49 it was held that Objectives Resolution as embodied in Article 2A is not to be given a status higher than that of other provisions nor it can be used for defeating other provisions of the Constitution. Further it was held that one provision of the Constitution cannot be struck down on the basis of another provisions.
41. In the case of Aijaz Haroon v. Inam Durrani PLD 1989 Karachi 304, a learned Single Judge of this Court took the view that Article 2A is not just another Constitutional provision and, even if it were so, all Constitutional provisions do not carry equal status. Further it was observed that provisions of Article 2A operate by their own force and any law, which came in conflict with the laws of Qur'an and Sunnah, whether it be a law subsisting prior to the Constitution or one that surfaced subsequent to it, could simply be disregarded and denied any effect for the reason that effect was to be given to Article 2A.
42. In the case of Habib Bank Limited v. M/s. Waheed Textile Mills Limited PLD 1989 Karachi 371, a learned Single Judge of this Court took the view that Article 2A is not self-executing and that no legislation in Pakistan can be tested and struck down by the Courts on the touchstone of Article 2A.
Further, it was held that Objectives Resolution is no more than a Declaration defining the ideology of Pakistan, not capable of being enforced by the Courts. In the case of Tyeb v. M/s. Alpha Insurance Co. Ltd. And another 1990 CLC 428, it was held that Objectives Resolution would control the Constitution and that the Article 2A is a self-executing provision.
43. In the case of Mst. Sakina Bibi v. Federation of Pakistan PLD 1992 Lahore 99, it was held by a Full Bench of the Lahore High Court that Objectives Resolution is a mandate given by the people to their representatives to frame a Constitution in the light of the guideline supplied therein and that tenor of the Objectives Resolution is that it is an acknowledged command of the people directed against their representatives to act in the manner given therein and that the Objective Resolution is grund norm of Pakistan. It was also held that Article 2A stands on a higher pedestal than the Constitutional provisions and Courts are duty bound to uphold wholly provisions of the Qur'an and Sunnah. Further, it was held that Courts of Pakistan would have the jurisdiction and power to perform their duties by implementing the Objectives Resolution as enshrined in Article 2A of the Constitution.
44. Hon'ble Supreme Court having into consideration the contrary views expressed in various cases finally authoritatively determined the scope of Article 2A of the Constitution. In the case of Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others PLD 1992 SC 595, it was held by the Supreme Court that Article 2A is not a Supra-Constitutional provision nor it is self-executing nor the Courts have power to apply the test of repugnancy by invoking this Article viz. 2A. It was also observed that if any Article of the Constitution is not in conformity with the Article 2A the appropriate procedure is to have it amended in accordance with the Constitutional provisions for the purpose. Further, it was held that a Constitution is an organic whole and all its Articles have to be interpreted in a manner that its soul or spirit is given effect to by harmonising various provisions. The Supreme Court considered the cases reported in:
(1) Mirza Ghulam Hussain and another v. Ch. Iqbal Ahmad PLD 1991 SC 290.
(2) Messrs Mumtaz Industries through Haji Karim Bakhsh and 2 others v. Industrial Development Bank of Pakistan and another PLD 1991 SC 729.
(3) Mst. Resham Bibi and 4 others v. Mst. Elahi Sain and 8 others PLD 1991 SC 1034.
(4) Messrs Macdonald Layton Constrain Limited, West Wharf, Karachi v. Punjab Employees' Social Security Institution, Lahore and 2 others PLD 1991 SC 1055.
(5) Mian Aziz A. Sheikh v. The Commissioner of Income-tax, Investigation, Lahore PLD 1989 SC 613.
(6) Ahmad v. Abdul Aziz PLD 1989 SC 771.
(7) Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287.
(8) Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416.
(9) Government of Pakistan through Secretary, Ministry of Religious Affairs, Islamabad and 3 others v. Zafar Iqbal and 3 others 1992 CLC 219 (Lahore).
(10) Allah Ditta v. The State PLD 1992 Lah.
45.
(11) Muhammad Ashraf v. National Bank of Pakistan and others 1991 CLC 1018.
(12) The State v. The Senior Superintendent of Police, Lahore and others PLD 1991 Lah.
224.
(13) Ittefaq Foundry v. Federation of Pakistan PLD 1990 Lah.
121.
(14) Massu and 27 others v. United Bank Limited 1990 MLD 2304 (Lahore).
(15) Allah Banda v. Mst. Khurshid Bibi and 2 others 1990 CLC 1683 (Lahore).
(16) Malik Ghulam Mustafa Khar and others v. Pakistan and others PLD 1988 Lah.
49.
(17) Muhammad Sharif v. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others PLD 1987 Lahore 58.
(18) Sindh High Court Bar Association, Karachi and another v. The Islamic Republic of Pakistan through the Secretary, Ministry of Justice and Parliamentary Affairs, Islamabad and another PLD 1991 Karachi 178.
(19) Tyeb v. Messrs Alpha Insurance Co. Ltd. And another 1990 CLC 428 Karachi.
(20) Abdul Mujeeb Pirzada v. Federation of Islamic Republic of Pakistan and 87 others PLD 1990 Kar.
9.
(21) Miss Farhat Jaleel and others v. Province of Sindh and others PLD 1990 Kar.
342.
(22) Saghir Ahmad Warsi v. Industrial Development Bank of Pakistan 1989 MLD 968 (Lahore).
(23) Jagan and others v. The State PLD 1989 Kar.
281.
(24) Aijaz Haroon v. Inam Durrani PLD 1989 Kar.
304.
(25) Messrs Yaseen Sons v. Federation of Pakistan and another PLD 1989 Kar.
361.
(26) Habib Bank Limited v. Messrs Waheed Textile Mills Limited and 5 others PLD 1989 Kar.
371.
(27) Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar.
404.
(28) Shaukat Hussain v. Mst. Rubina and others PLD 1989 Kar.
513.
(29) Mirza Qamar Raza v. Mst. Tahira Begum and others PLD 1988 Kar.
169.
(30) Bank of Credit and Commerce International v. Messrs Ali Asbestos Industries Ltd. And 5 others 1988 MLD 2088.
(31) Algements Bank Nederland N.V. v. Fort Super Pakistan Ltd. And 3 others 1989 MLD 1058 (Karachi).
(32) The Muslim Commercial Bank Limited v. Messrs Republic Industrial Corporation and 4 others 1987 MLD 2794 (Karachi).
(33) Muhammad Bachal Memon v. Government of Sindh through Secretary, Department of Food and 2 others PLD 1987 Kar.
296.
(34) Messrs Bank of Oman Ltd. v. Messrs East Trading Co. Ltd. And others PLD 1987 Kar.
404.
(35) Irshad H. Khan v. Mrs. Parveen Ajaz PLD 1987 Kar.
466.
(36) Habib Bank Limited v. Muhammad Hussain and others PLD 1987 Kar.
612.
(37) Muhammad Salahuddin and others v. Government of Pakistan PLD 1990 Federal Shariat Court 1.
(38) Muhammad Sarwar and another v. The State PLD 1988 FSC 42.
(39) Muhammad Naseer v. The State PLD 1988 FSC 58.
' Having taken into consideration the aforesaid cases on the point of Article 2A the Supreme Court observed as follows: "The Court's primary duty is to adjudicate by reference to positive law in a manner to lend certainty, clarity and precision to the application of law to concrete questions of law and fact necessarily required to be decided. The Court should not undertake examination of theoretical academic questions nor should ordinarily look for anomalies in the Constitution with a view to suggest to Parliament amendment or improvement in the Constitution. If the introduction of Article 2A of the Constitution as a substantive provision of the Constitution does not by itself authorise the Court to adopt it as a test of repugnancy with regard to the other Constitutional provisions it would be better for the Superior Courts not to undertake this exercise or to record opinions on merits with regard to such repugnancy. That would be a commitment not conducive to the purely judicial functions that the Courts are required to perform under the Constitution."
45. In the case of Mst. Kaneez Fatima v. Wali Muhammad and another PLD 1993 SC 901. The Supreme Court held that the Courts are not vested with the jurisdiction to declare a law void on the touchstone of Article 2A as distinguished from Article 8 of the Constitution, as such provision has not been made to enforce Article 2A in the same manner as the fundamental rights can be enforced or the law can be tested on the touchstone of fundamental rights. The relevant observation is at page 914 and is as follows: "The situation which crystallizes is that for existing laws and proposed laws Constitutional dispensation has been provided to bring them in conformity with the Injunctions of Islam which is required to be followed. At this stage it is pertinent to point out that the Courts are not vested with the jurisdiction to declare a law void on the touchstone of Article 2A as distinguished from Article 8.
There seems to be marked difference in the phraseology of Article 2A and the fundamental rights conferred by Part II of the Constitution. Article 8 makes any law which is inconsistent with the fundamental rights to the extent of such inconsistency void. Article 2A is not couched in similar language with similar effect. Article 8(2) imposes a restriction on the State which includes Federal Government, Majlis-i-Shoora (Parliament), a Provincial Government or Provincial Assembly or such local or other authorities in Pakistan as required by law empowered to impose any tax or cess, not to make any law which in any manner takes away or abridges the fundamental rights. Again, similar provisions are not provided in Article 2A."
46. Coming back to the facts of the instant case it is noted that the contention of Mr. Aziz A. Munshi that Article 2A being grund norm of the Constitution and Articles 8 to 40 in his words 'being the extension of Article 2A', and that the Article 2A primarily being the fundamental source of Islamic law, the Prohibition Order was against the spirit of this Article and as such was to be struck down, has no force. Article 2A as pointed out earlier, is like any other Article of the Constitution and on its strength the Prohibition Order cannot be declared void. Within the meaning of Article 227, it is an existing law and can be repealed, amended or modified as laid down in the Constitution.
47. Next point to be considered is about the scope and effect of Article 270-A of the Constitution.
This Article was inserted by P.O. No,14 of 1995. It was substituted by Act XVIII with effect from 31-12- 1985. Under this Article all laws made between 5th July, 1977 and 30th December, 1985 were affirmed, and declared, notwithstanding any judgment of any Court, to have been validly made by competent authority and, notwithstanding anything contained in the Constitution, shall not be called in question in any Court on any ground whatsoever. This Article came under discussion in the cases reported in
(1) Muhammad Bachal Memon v. Government of Sindh PLD 1987 Karachi 296,
(2) Malik Ghulam Mustafa Khar v. Pakistan and others PLD 1988 Lahore 49,
(3) Ms. Benazir Bhutto v. Federation of Pakistan and others PLD 1988 SC 416,
(4) PLD 1989 SC 26. The ratio of these cases is that purpose of Article 270-A(1) was to validate the legal measures that were taken during the period from 5-7-1977 to 31-12-1985 notwithstanding any Constitutional defect, and the jurisdiction of the Courts was completely ousted to question the vires of said legal measures.
48. Article 270-A at length has been examined by the Supreme Court in Ms. Benazir Bhutto case and the counsel appearing on behalf of respective parties in this case have heavily relied upon said case in support of the contentions advanced by them. The petitioner in the said case had challenged the amendment made in the Political Parties Act, 1962 as violative of Article 270-A of the Constitution which were introduced by President Order 20 of 1978. Certain provisions of the Political Parties Act, 1962 were declared void the extent stated in the judgment on account of being inconsistent with the Fundamental Rights enshrined in Article 17(2) and (3) of the Constitution.
49. It was held in Ms. Benazir Bhutto case that Legislature owned the legal instruments and legal measures made between the specified dates as if enacted by itself so as to give validity and competency to those legal instruments and measures and while adopting principles of ratification such validity and competence was proclaimed. It was observed that during the specified period the Constitution was in abeyance and so were the fundamental rights, as such, the power to enact legal measures was drived from the proclamation of 5th day of July, 1977 and the Laws (Continuance in Force) Order and it was without any limitation as to the subject of legislation and there was no occasion whatsoever of any conflict of legal measures in the state of things then existing without any Constitution, norms. It was also observed that the provision of Article 270-A were different in many respect from the earlier provisions viz. Article 281(1) of the Interim Constitution and Article 269(1) of the 1973 Constitution. Further it was observed that the expression 'notwithstanding any judgment of any Court' indeed referred to Begum Nusrat Bhutto case in which the 1973 Constitution was held to be the supreme law of the land subject to certain portions having been held in abeyance and the Chief Martial Law Administrator to have validly assumed power by means of Extra-Constitutional steps in the interest of the State and for the welfare of the people.
50. The contention raised by Mr. Aziz A. Munshi and Mr. Sharifuddin Pirzada is that the Prohibition Order ceased to be operative since December, 30, 1985 when the Martial Law was lifted. Both the learned counsel argued that it being sub-Constitution Law and having not been enacted in accordance with Articles 141 and 142 was void, as the Prohibition Order was Federal law but was not on the Legislature and the Concurrent Legislative List. Precisely stated the contention is that it was the subject on which only Provincial Assembly could enact the law, but in this particular case it was done by the President. Mr. Munshi has drawn a parallel between Article 8 and the aforesaid two Articles viz. 141 and 142 and submitted that any law as per Article 8 which is inconsistent with the right conferred by Chapter No,1, Part II of the Constitution, to the extent of such consistency is void.
He argued that on this premises the Prohibition Order is illegal and in any case not valid law from 30th December, 1985.
51. Above argument is contrary to the provisions of Sub-Article (3) of Article 270-A, which clearly envisages that all President Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by Competent Authority, which has been defined in this Article as the "Appropriate Legislature". The expression "Appropriate Legislature" means both i,e, Federal and Provincial. Since the subject of the Prohibition Order is neither in the Legislative List nor in Concurrent Legislative List, therefore, it is the Provincial Legislature which can alter, repeal or amend the Prohibition Order. The contention of learned counsel that the Prohibition Order automatically becomes invalid law from 30th December, 1985 is misconceived inasmuch as for taking that view the provisions of sub-Article (3) would have to be totally ignored. Sub-Article (3) of Article 270-A is also a Constitutional provision and on the basis of any other provision of the Constitution this sub-Article cannot be struck down.
52. It is well-settled rule of interpretation that except for very valid reason, the Court should not be prompt to hold superfluity to the language of any statute and instead be inclined to suppose that every word, is intended to have some effect and that the legislature does not use the words redundantly. It being so the Court must avoid a construction which would render the words used in the statute as meaningless and futile.
53. It is pertinent to note that the Prohibition Order was made by the President on 10th February, 1979 in pursuance of the proclamation of 5th day of July, 1977 read with Laws (Continuance in Force) Order, 1977 and at that time the Constitution was in abeyance and the Federal and Provincial Assemblies were not functioning. The President had power to enact laws both for the Federal and the Provincial Legislature. It is not disputed nor it could be disputed that during the specified period so many laws were enacted by the President and if the contention of learned counsel is accepted the result would be that all Provincial Laws enacted during the specified period would have to be struck down, which in turn would create chaos of unprecedented nature. The power which the President had in those days to enact the legal measures was without any limitation to the subject of legislation and was derived from the proclamation of 5th July, 1977 and the Laws (Continuance in Force). Order. The argument of the learned counsel in fact proceeds on the basis as if the prohibition Order was promulgated by the President by exercising the Constitutional power, which factually is not correct. The proclamation of the fifth day of July, 1977 cannot be challenged as it has already been validated by virtue of sub-Article (1) of Article 270-A.
In fact this proclamation is the source of all the laws enacted during the specified period. We do not see any force in this contention and it is repelled accordingly.
54. Besides above, there is another ground on which the Prohibition Order cannot be struck down.
This Prohibition Order was first examined by the Federal Shariat Court on 27-4-1981 in Shariat Petition No,1 of 1980. Appeal against said judgment was preferred before the Shariat Appellate Bench Supreme Court being the case of Federation of Pakistan v. Nosher Rustom Sidhwa 1988 SCMR 1417. The Full Shariat Appellate Bench having examined in detail the provisions of the Prohibition Order, held as under: "Section 17 of the Order as at present worded permits the Government itself or a licensee from it to manufacture liquor, import, transport, sell or possess it even for the purposes of consumption by non-Muslim citizens of Pakistan or as a part of their religious ceremonies or by non-Muslim foreigners. The human consumption of liquor as intoxicant being prohibited in Islam, a Muslim cannot be permitted to engage himself in the manufacture etc. Of such an offensive material for its being meant for human consumption as an intoxicant. Therefore, this part of section 17 is clearly violative of the Injunctions of Islam, the other part where bona fide manufacture, import, transport, sale or possession for medicinal scientific, industrial or similar other purposes is concerned, there is no such requirement which may render this provision repugnant to the Injunctions of Islam.
' This appeal is, therefore, partly allowed and that portion of the section is declared to be against Injunctions of Islam which leaves a scope for the Government or a Muslim licensee to manufacture, import, transport, sell or possess any intoxicant or article containing intoxicating liquor meant for human consumption by a non-Muslim citizen of Pakistan as a part of religious ceremonies or by a non-Muslim foreigner. But such an act of manufacture, import, transport, sale or possession will not be against the Injunctions of Islam if the material is for bona fide use for medicinal, scientific, industrial or similar other purposes as provided for in section 17 of the Order. The necessary amendment shall be made in section 17 within six months from today failing which the provisions declared to be repugnant shall cease to have effect."
55. Since Shariat Appellate Bench already examined the provisions of the Prohibition Order and found them valid to the extent mentioned in the judgment, as such the said provisions cannot be questioned muchless struck down in these proceedings.
56. Next point to be considered is whether the Prohibition Order is a Federal or Provincial Law. Both Mr. Aziz A. Munshi and Mr. Sharifuddin Pirzada argued that right from its inception it is a Federal Law and still, if it is presumed to have survived after 30th December, 1985, it is a Federal Law as the President orders are always deemed to be the Federal laws. Mr. Abdul Hafeez Pirzada, who also appeared for Murree Brewery, and Mr. Khalid Anwar learned counsel for Beach Brewery, however, argued that for all practical purposes Prohibition Order is a Provincial Law and not the Federal Law.
Mr Khalid Anwer submitted that liquor does not fall under the Federal and Concurrent Legislative List, and it being so it comes in the residuary list and as such only the Provincial Assembly could make the law on this subject. He submitted that in Benazir case the Supreme Court upheld the validity of all laws made during the specified period, as if they were made by the appropriate Legislature. According to the learned counsel, it meant that Prohibition Order was to be treated as if it was made by the Provincial Legislature, He also contended that the Prohibition Order though enacted by the President was to be deemed a Provincial Law because in those days there were no Assemblies. Mr. Munshi, however, argued that the Constitution does not provide any magic formula or mechanism or any provisions through which a Federal Law can automatically be converted into a Provincial Law.
57. A bare reading of the Prohibition Order shows that, though it was enacted by the President, but it was meant for the Province. Under its Article 2(b) the Authorised Medical Officer means a Medical Officer designated by the Provincial Government. Likewise, Collector, who is to perform various duties under this order, is a Provincial Officer. Article 17 of the Order, authorizes the Provincial Government to issue licences. The licences can also be issued by the Collector on behalf of the Provincial Government. Article 31 of this Order empowers the Provincial Government to make rules for the purposes of this Order. By Article 33 several laws were repealed including the Sindh Prohibition Order, 1978 (Sindh Ordinance No,IV of 1978). In fact, the Prohibition Order has come in place of Sindh Ordinance No,IV of 1978. Agreeing with Mr. Abdul Hafeez Pirzada and Mr. Khalid Anwar, we hold that for all practical purposes it is a Provincial Law and appropriate legislature for this purpose is the Provincial Assembly.
58. Now we come to the point if the two petitioners Frough Ahmed Siddiqui and Zaheerullah' Afridi are entitled to the reliefs which they have claimed in their respective petitions. Both have asserted that, under Article 199 of the Constitution it is their fundamental right to ask for the reliefs mentioned in their petitions. Petitioner Farough Ahmed Siddiqui, though called himself to be a devoted Mulsim, but it is evident from his petition that instead of seeking enforcement of his alleged rights, he is more interested in pleading the cause of Murree Brewery. He is worried that full production capacity of Murree Brewery is not being utilised. He even praised the quality of liquor produced by Murree Brewery. In his affidavit-in-rejoinder, dated 6-4-1995, he even stated that he would have no cavil regarding grant of licence to Beach Brewery if in open manner and by speaking order the licence would have been granted to Beach Brewery. He also stated that the grant of licence to Beach Brewery would have been justified, if the existing production capacity was found to be lesser than consumption. This simply shows that all in all, he is in favour of Murree Brewery. It is significant to note that neither in the petition nor in his application filed on 5-9-1995 under Order 6, Rule 17, C.P.C. He made any prayer against Murree Brewery. Under the circumstances, we have no doubt in our mind that petitioner Farough Ahmed Siddiqui has no personal interest in this matter and his is pleading the cause of others under the disguise of public interest litigation.
59. Public interest litigation is permissible under the law but it could not be made a cloak to hide personal interest and to pursue a private vendetta.
60. During the course of hearing of the Petitions Nos.D-1212/1994 and 63/1995, when the infirmities of Petition No,1212/1994 were highlighted, thereafter, on 5-5-1995 was filed by petitioner Zaheerullah Khan Afridi and in these Petitions even Murree Brewery has not been cited as a party. This petition is almost on the same lines as that of Petition No,D-63 of 1995, which has been filed by Murree Brewery. Mr. Sharifuddin Pirzada submitted that, the reliefs have not been claimed by the petitioner Farough Ahmed Siddiqui and Zaheerullah Afridi against Murree Brewery and Quetta Distillery for the reason that these Breweries are not in Sindh and this Court has no jurisdiction to pass an order in respect of these Breweries, which are not within the territorial jurisdiction of this Court. In reply, Mr.Khalid Anwer submitted that at least the above petitioners could pray that the product of these two Breweries may not be allowed to be brought in this Province. No such prayer has been made in these petitions which have been filed on the ground of Public Interest Litigation.
61. Main prayer in Petition No,D1744/1995 is that Article 17 of the Prohibition Order is violative of the Objectives Resolution. The scope of Objectives Resolution has already been discussed in the earlier paragraphs. In the case of Nosher Rustom Sidhwa cited above Article 17 of the Prohibition Order was examined. It was held that the Prohibition concerns the use and consumption of liquor by human beings as an intoxicant. Further it was observed in the said case by the Shariat Appellate Bench of the Supreme Court that there was not other indication in any Injunctions of Islam, express or implied that the Prohibition extended to its manufacture or sale for a purpose which is permissible in Shariat for Muslims also. Also, it was observed that the exclusion of the Muslims from its bona fide, medicinal, scientific, industrial or other such use would not be strictly in conformity with the Injunctions of Islam. In view of the above categorical finding of the Supreme Court, which is binding on us, it cannot be argued that Article 17 of the Prohibition Order for all purposes is against the Injunctions of Islam. It is violative of Injunction of Islam only to the extent as pointed out by the Shariat Appellate Bench in the said judgment.
62. Mr. Sharifuddin Pirzada argued that the discretion exercised in favour of Beach Brewery by the Government of Sindh is not according to law. Learned counsel submitted that every thing was kept in secrecy and no opportunity was given to the other persons to represent their cases. In support of his contention he cited the case of Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Corporation, Rawalpindi PLD 1991 SC 14. According to above-cited case, seven conditions are useful in the structuring of discretionary power i,e, open plans, open policy statement, open rules, open findings, open reasons, open precedents, and fair informal procedure.
Learned counsel contended that, in this particular case, none of them was followed by the Government of Sindh and complete secrecy was maintained and others were not afforded an opportunity to submit their points of view. It is noted that after the licences were granted, Murree Brewery, by their letter dated 19-3-1994 addressed to the Chief Minister of Sindh, requested him for the cancellation of those licences. In this letter they had not applied for grant of such licences to them nor prayed for personal hearing in support of the grounds taken in the letter.
63 There is vast difference between a licence of liquor and of any other item. Since it is a business from which emanates the danger to the Society, it may be entirely prohibited or be permitted under such conditions as may be imposed by the concerned authorities, No law has been cited by the learned counsel on the point that when a licence is granted to one party the others shall be informed about it before the licence is issued. In this particular case since admittedly Murree Brewery has not applied for the licence nor prayed for personal hearing as such they could not challenge the discretion exercised in favour of Beach Brewery. It is not an inherent right of a person or group of persons to manufacture or sell intoxicant liquor by retail or wholesale. Mr. Khalid Anwar learned counsel for Beach Brewery pointed out that licence to Murree Brewery has also been issued in the same way as to Beach Brewery, although Murree Brewery were operating for more than 100 years.
64 Mr. Sharifuddin Pirzada learned counsel for Murree Brewery laid great emphasis on the point that Circular dated 5th January, 1991 was the policy decision of the Federal Government and presumably it was taken after consultation with all the provinces of the country. Learned counsel added that said circular carries in itself the executive authority of the Federation and it was the reason that copies of said circular were circulated, amongst others, to all Ministries/Divisions, Chief Secretaries of the Provincial Government etc. Relying upon Articles 148 and 149, he proceeded to argue that the executive authority of every Province shall be so exercised as to secure compliance with Federal laws which applied in that Province. He also submitted that the executive authority of every Province shall be exercised as not to impede or prejudice the exercise of Executive Authority of the Federation. Further, he added that the Federation can give direction to a Province as to carrying into execution therein of any Federal Law which relates to a matter specified in the Concurrent Legislative List. The Federation can also give direction to the Province for the purpose of preventing any grave menace to the peace or tranquillity of the people of Pakistan.
65. In support of above contentions learned counsel relied upon (1) Anant Baburao Sawant and others v. State AIR 1967 Bombay 109, (2) State of Rajasthan and others v. Union of India AIR 1977 SC 1361, (3) Col. A.S. Sangwan v. Union of India and others AIR 1981 SC 1545, (4) Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others 1991 SCMR 2193, (5) The Boeing Company v. R.M. Investment and Trading Co. Pvt. Ltd. AIR 1993 Calcutta 184.
66. In Anant Baburao Sawant's case, an order of detention was passed in respect of a person, who was already in jail and who, in the expectation of the detaining authority was likely to come out of the jail within a short period, It was held that detention order was valid provided the said order was passed with a view to forestall the indulging in of prejudicial activities by that person as soon as he regained his freedom. But such an order could be served on him only when he was a free man, free to indulge in prejudicial activities. Referring to the various Articles of Indian Constitution particularly 256 it was noted that the executive power of the State shall be so exercised as to ensure compliance with the laws made by the Parliament.
67. In the case of State of Rajasthan it was observed that each organ of the Republic is expected to know the limits of its own powers, and the Union Government under certain circumstances could give direction to the State Government. Further, it was pointed out that Articles 256 and 257 of the Indian Constitution mentioned a wide range of subjects on which the Union Government may give executive directions to the State Government and Article 73(1)(a) of the Indian Constitution says that the Executive power of the Union extends to all matters on which Parliament has power to make laws. Article 248 of the Indian Constitution vests exclusively in the Parliament residuary powers of making laws on any matter not enumerated in the Concurrent or State Lists. Article 256 which covers cases where the President may want to give directions in exercise of the executive power of the Union to a State Government in relation to a matter covered by an existing law made by Parliament which applies to that State.
68. In Col. A.S. Sangwan's case, it was held that a policy once formulated is not good for ever and it is perfectly within the competence of the Union of India to change it, rechange it, adjust it and readjust it according to the compulsions of circumstances and imperatives of national consideration. The only condition put on the change of the policy is that it should not be for ulterior motives.
69. In Iftikhar Hussain Shah's case, Supreme Court of Pakistan while dealing with Article 149 of the Constitution, held that this Article empowers the Federal Government to give directions to the Provincial Government so as to protect and advance its own executive authority in discharging its responsibilities under the Constitution and the laws, obliging thereby the Provincial Government to comply with such directions.
70. In the Boeing Company's case, it was held that policy of State must have received proper and adequate publicity through reasonable publication.
71. Coming back to the facts of the instant case it is noted that said circular was not issued under any provision of law and at best it was a policy matter particularly in respect of sanctioning procedure for setting up industrial unit in the country to provide maximum free hand to the entrepreneur in selection and establishment of industry of his own choice. It does not seem to be a directive to the Provincial Government of Sindh. This is evident from the counter-affidavit dated 15- 5-1995 filed by Khalid Mehmood Mughal on behalf of the Government of Pakistan, wherein he clearly stated that the matter was referred to Justice Division, which is of the view that Provincial Government has got statutory powers, under Article 17 of the Prohibition Order, to issue licences as mentioned earlier. Further, it is said in said Affidavit that circular was directive in nature and it has no binding effect on the Provincial Government.
72. It is significant to note that neither Federal Government nor Provincial Government among themselves has any dispute about the nature of said circular and both unanimously are of the view that it does not curtail the statutory power of the Provincial Government, as conferred upon it under Article 17 of the Prohibition Order. A bare study of said Article shows that the Provincial Government has absolute power in respect of the items mentioned therein. It becomes more clear by perusal of Article 29 of the Prohibition Order, which lays down that this order shall have effect notwithstanding anything contained in any other law for the time being in force. By a Circular, whatever its nature may be the provisions of the Prohibition Order cannot be rendered ineffective.
73. Articles 148/149 of the Constitution speak about the compliance of Federal Laws, which apply in the Province. The Federal Government can give a direction to the Provincial Government in respect of laws which are listed in Federal and Concurrent Legislative List. The Prohibition Order is a Provincial law and is not in conflict with any Federal Law as such no direction can be given by the Federation to the Province in respect of implementation of said law. In any case the circular is a policy decision and policy can be changed by the Government as the circumstances may require.
In view of these circumstances, the cases cited by Mr. Sharifuddin Pirzada are distinguishable and the dictum laid down therein would not apply to this case.
74. Mr. Abdul Hafeez Pirzada contended that by virtue of Article 18 of the Constitution it is the fundamental right of petitioner Murree Brewery to carry on their lawful profession and the Government of Sindh by issuing the licences in question without realising the present production capacity of Murree Brewery in fact has restrained the petitioners to carry on their business in the Province of Sindh. Article 18 of the Constitution is as follows: "Article 18. Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business: ' Provided that nothing in this Article shall prevent--
(a) the regulation of any trade or profession by a licensing system, or
(b) the regulation of trade, commerce or industry in the interest of free competition therein, or
(c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons."
75. A bare reading of the aforesaid Article shows that every citizen of Pakistan is entitled to engage in any lawful profession and occupation and to conduct any lawful trade or business, but it is always subject to reasonable restriction imposed by law. For example any trade or profession can be regulated by a licensing system. The trade of liquor cannot be carried out without licence issued by the competent Authority, and in this trade there is a possibility that the community at large may be affected. The principles which are applicable to other trades, would not apply in case of trade of liquor.
76. In the case of Cooverjee B. Bharucha v. Excise Commissioner and the Chief Commissioner, Ajmer and others AIR 1954 SC 220, it was held that Legislature of a State is fully competent to regulate the business of vending intoxicating liquor, to mitigate its evils or to suppress it entirely, and that there is no inherent right in a citizen to sell intoxicating liquor. It is not a privilege of a citizen. Under the circumstances of the case Article 18 of the Constitution cannot be invoked.
77. In view of above discussion, we do not find any merit in these three petitions. Accordingly, these petitions are dismissed with no order as to costs.