1. 'WAJIHUDDIN AHMED, J.--This High Court Appeal arose from an order dated 26-5-1996, where the respondent (Daewoo) was plaintiff and the appellants were defendants. Such was a suit for recovery of US $27,329,669.80. In the suit, C.M.A. No,6078 of 1995 was filed by the plaintiff and the defendants jointly. The main provision in the application, without prejudice to the rights of either party, stipulated that 4670 cars (Racer Taxis) were to be "maintained, repaired and sold as an interim measure" and the sale proceeds were to "be deposited in a joint/escrow account to be opened by consent in a Bank". The decision pertaining to the maintenance, repair and sale of the Racer (a Daewoo brand) Taxis was to be of the Official Assignee with the consent of both parties and failing that subject to the orders of the original side Court. The respondent-plaintiff was authorised to commence the repair and maintenance and costs thereof was to be the first charge on the sale proceeds. Per C.M.A. No,6078 of 1995, leave was granted to the defendants to appear and defend the suit. On 22-10-1995, the Court recorded that the sales of the cars were in progress and they were being sold at the rate of Rs,245,000. Per order dated 26-10-1995, the Official Assignee was permitted to invest the moneys received by him and to make payment to godown-keepers with whom, apparently, the cabs were housed. It would appear from the impugned order, which was passed on Official Assignee's reference dated 30-11-1995, that the sales aforesaid were being effected at the aforesaid rate to Government servants under circumstances that we would presently see. However, the appellants-defendants, in course of time, objected to such price and, in the first instance, maintained that the disposal and delivery of the remaining vehicles be held in abeyance pending the disposal of Constitutional Petition No,D-2608 of 1993, which seems to have been pending. Alternatively of the appellants-defendants was that the sales may take place in accordance with SRO 920(1)/94, dated 22-9-1994. By the date of the impugned order which, as seen, as passed on 26-5-1996, out of 460 cars, the Official Assignee had, through banks, received proceeds of 2429 cars from which number, 1086 stood delivered whereas 1343 still remained in hand. Mr. Farooq H. Naek, D.A.G., it may be pointed out, had also appeared before the learned Single Judge and stated that, at the time, there was no proposal with the Government of Pakistan for increase of the price of the vehicles and submitted that the sales should continue at the rate mentioned. The learned Single Judge, through the impugned order, denied the pleas of the appellants and the position taken by the respondent-plaintiff and the D.A.-G. Found favour with him.
2. ' In course of time, this appeal was brought. After several dates of hearing, when ad interim orders were passed and remained operative in the appeal, the matter was laid before us on 8-8-1996, when Mr. Farooq H. Naek appeared and claimed notice on behalf of the Federal Government.
3. Copies were directed to be supplied to him. On 22-8-1996, the Federal Government was again represented by Mr. Farooq H. Naek, D.A.-G., and the case was adjourned to 27-8-1996. On that date, no appearance was made from the side of the Federal Government nor any request for time was made and an application under Order XXIII, Rule 3, C.P.C. Was submitted by the parties, which, in extenso, is as under:-- "APPLICATION UNDER ORDER 23, RULE 3, C.P.C. AND SECTION 151, C.P.C.
4. ' It is prayed on behalf of the parties above named that this Honourable Court may be pleased to dispose of the appeal on the following terms:--
(i) That the appellants will be at liberty in their sole discretion to sell and delivery all the remaining cars at whatever price they obtain in the market not below the price under SRO 565 of 1995 to any person or persons of their choice subject to the following:--
(a) Custom duty at 25% under SRO 920 of 1994 will be deposited in Court by them alongwith the sale price. The procedure adopted will be that the Official Assignee will issue a delivery order to the purchaser on payment of the above price and Customs duty to him:
(b) It is confirmed that there will be no harassment from any quarters and the Official Assignee will issue Delivery Orders immediately on receipt of money notwithstanding any objection from any authority or person including Government servants.
(ii) The Official Assignee will promptly proceed to make an inventory of all undelivered cars irrespective of where they are lying and to take over their custody forthwith and take full measures to prevent any pilferage and theft or removal of cars, Any attempt by any person to implead the Official Assignee in the performance of his function set out above will be treated as disobedience of this Hon'ble Court's order.
(iii) All cars remaining unsold on the expiry of 5 months from 1st September, 1996 will then be sold by the Official Assignee in accordance with the provisions of SRO 565 of 1995 or any other applicable notification at that time without any objection from the appellants;
(iv) That the order is without prejudice to any pending suit and all sales of cars including sales made hereunder and furthermore that it will be open to the appellants to take appropriate legal action for and in relation to losses if any, caused to it by the sales of the cars which has so far taken place. Similarly, the respondent will also be at liberty to take fresh legal proceedings for damages, if any, suffered by it."
5. ' On the said application, in the presence of Mr. Khalid Anwar and Mr. Abdul Hafeez Pirzada, the following consent order was passed on 27-8-1996 and the High Court Appeal, together with pending C.M.As. Was disposed of:-- "1 to 3. The learned counsel have submitted an application under Order XXIII, Rule 3, C.P.C. In terms whereof and by consent the matters at Sr. Nos. 1 to 3 are disposed of but with a clarification that the Customs, F.I.A. And other relevant authorities would act in accordance with the consent order and further that the sales in terms of the compromise application would be limited to such vehicles in relation to which, upon an examination of the details, the Official Assignee submits a report to the learned Single Judge on the original side that title therein has not passed and such being done, orders of the original side Court are obtained. This, however, would not impede in the sales of such vehicles with regard to which none of the parties claims that title has so far passed.
6. ' Disposed of accordingly."
7. ' On 22-9-1996, the Official Assignee made a reference, whereas Syed Tariq Ali, Standing Counsel for the Federal Government of Pakistan, moved C.M.A. 1068 of 1996 on behalf the Federal Government under section 12(2), C.P.C. For recall of the order dated 27-8-1996 and a corresponding application for stay' viz. C.M.A. 1069 of 1996. Such three matters coming up before a Bench, of which I was a member, on 23-10-1996, notices on the two applications were ordered and ad interim relief was administered to the effect that, till the next date viz. 31-10-1996, the Official Assignee would not take any action prejudicial to the interest of the Government of Pakistan. Since then, such orders have been extended from time to time and we have heard the learned counsel.
8. ' We may add here that because serious allegations of collusion and misrepresentation were made in the application under section 12(2), C.P.C., we required the officer, who authorised the filing of the application, to be present in Court. We also directed the filing of an additional affidavit from the side of the Federal Government and that alongwith the relevant notifications has been brought on record.
9. ' Coming back to the facts of the case, it would seem that the then Prime Minister of Pakistan, Mr. Muhammad Nawaz Sharif, fleated a scheme known as the Prime Minister's Scheme for Revamping Public Transport. Such scheme, popularly came to be known as the "Yellow Cab Scheme". It was rescinded by the Caretaker Prime Minister, Mr. Moeen Qureshi. Evidently, because vested interests had come into being and fundamental rights were involved, the affectees, directly, approached the Supreme Court of Pakistan, where the dispute was examined in due detail and a comprehensive order was passed, which is also reported as Syed Wasey Zafar and others v. Government of Pakistan PLD 1994 SC 621. The applicable part of the Supreme Court order is reproduced below:-- "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 markup 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.And 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. 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,"
10. ' Their Lordships of the Supreme Court in the concluding part of the order, however, also referred to a decision of the Economic Coordination Committee of the Cabinet dated 24-1-1994 in respect of the vehicles imported under the Yellow Cab Scheme which was found to be unexceptionable. As the Office Memorandum dated 7-7-1994, placed before us, would show an agreement on 27-1-1994 followed between the Government and dealers/importers but neither the Standing Counsel nor the Official Assignee was able to produce the same before us.
11. ' It would seem that, in course of time, SRO 920(1)/94, dated 22-9-1994 was issued and operated, for the same vehicles, to exempt the whole of the sales tax but customs duty, relevant for our purposes, in excess of 25% ad valorem.
12. ' Matters, however, do not seem to have carried too long at this juncture. The controversy was taken up again by the Economic Coordination Committee (ECC) of the Cabinet in its meeting held on 29- 5-1995. The applicable portion of the ECC decision is reproduced hereunder:- "5(iv)&(v). The principal amount (landed cost) would be charged in full alongwith 10% customs duty and a flat rate of Rs,2,500 per vehicle to cover bank/financial charges, storage, wharfage etc. 5(vi). The vehicles would be sold to the serving and retired Government servants both Civil and 'Armed Forces irrespective of payscale/rank on first-come-first-served basis and not more than one vehicle per family on payment of the full cost."
13. ' As a follow up measure the Ministry of Finance and Economic Affairs, on 27-6-1995, issued SRO 565(0/95, whereby, in exercise of powers under section 19 of the Customs Act, 1969, and section 13(1) of the Sales Tax Act, 1990, the vehicles under the Prime Minister's Scheme were exempted from so much of the customs duty as be in excess of 10% from the landed cost and whole of the sales tax, but the vehicles were to be sold to "persons specifically authorised by the Ministry of Commerce subject to a flat rate of Rs,2,500 by the purchaser to cover the bank and other financial charges including storage, wharfage etc." This notification was rescinded on 13-6-1996 through SR0.441(0/96. At the same time, through another SRO of the same date namely, SRO.439(I)/96, the earlier SRO 920(1)/94 dated 22-9-1994, was also rescinded. It is the case of the Government of Pakistan before us that on 15-91996, per SRO.773(I)/96, the notification bearing No,SRO 565(1)/95, dated 276-1995, rescinded by SR0.441(1)/96, dated 13-6-1996, was resurrected because that had mistakenly been rescinded. This was done by giving retroactive effect to the notification dated 15- 9-1996 as from 13-6-1996 and by virtually reproducing verbatim the said notification dated 27-6- 1995 in the body of the notification dated 15-9-1996. The intervenor-Government's application under section 12(2), C.P.C., therefore, proceeds to bringforth that the order dated 27-8-1996 has adversely affected its interest. Such adverse effect is claimed to have been brought about without hearing the intervenor, which was neither a party in the suit nor in this appeal. The parties to the appeal have, it is maintained, colluded in misrepresenting the factual position, thereby causing wrongful loss to the., Government and arrogating wrongful gain to themselves. When asked, the learned Standing Counsel was unable to pin-point any loss other than the loss of the cabs having become unavailable to the designated officials. We, therefore, take the application to be so limited.
14. ' Several other questions, correspondingly, arise in relation to the said application under section 12(2), C.P.C. The first question is as to whether a notification of the kind in contemplation here can be made operative retroactively. Another question is that if the notification dated 22-9-1994 was rescinded on 13-6-1996 could not the appellants or for the matter of that the parties to this appeal take advantage of the same notification which was operative on the date of the impugned order dated 26-5-1996 when in so far as the appellants are concerned, they had expressly opted to act upon it. Yet another question is whether the Federal Government, in the face of the final order passed in this appeal on 27-8-1996 of which it would be deemed to be aware, could promulgate the notification dated 15-9-1996 and that too with retrospective effect. Last but not the least, can a Government, run democratically and controlled by a Constitution etc. In derogation of rights of others manifestly not in public interest but to benefit a handful of Government functionaries beyond the scope of their lawful entitlements.
15. ' It is, largely, in the light of the foregoing pleas and factors that the application under section 12(2), C.P.C. Has to be decided. It would, however, be unnecessary to decide all the questions, which have been raised either from the side of the Intervenor-Government or the parties to this appeal. This arises from the circumstance that the order dated 27-8-1996, whereby this appeal was disposed of, was passed by consent and merits did not arise to be touched. Even at this stage in these proceedings under section 12(2), C.P.C., it may be counter-productive to determine merits except to the bare minimum extent.
16. It is correct on the part of the Federal Government to urge that such Government was neither a party in the suit nor in this appeal. Even so, its interest was represented by the Deputy Attorney- General, who appeared before the learned original side Judge, when the impugned order was passed and he was also present when this-appeal was taken up prior to 27-8-1996. Under what circumstances he did not appear on the crucial date when the consent order was passed has not been explained. Accordingly, it cannot be said that the interest of the Federal Government has been effected behind its back. What is more, there was nothing to preclude the Government to seek to be impleaded in the suit and even in this appeal but that it never did. It is not for us to speculate the reasons.
17. ' As to merits of the case, at the time when the impugned order was passed by the learned Single Judge viz. 26-5-1996, the two crucial notifications, namely, SRO.920(I)/94, dated 22-9-1994, envisaging 25% ad valorem customs duty and SRO .565(1)195, dated 27-6-1995, prescribing 10% ad valorem customs duty for sales to persons specifically authorised stood side by side. Significantly, SR0.565(1)/95, which was later in time did not retract from SRO 920(1)/94, which was subsisting on its advent. As .Seen, both these notifications were rescinded through separate SROs., each issued on 13-6-1996. The impugned order of the learned Single Judge had come to be passed earlier on 26-5-1996. This appeal, arguably, was accordingly to be decided upon the facts prevailing on the date the impugned order was passed because it was at that juncture and in the then state of facts that, according to Mr. Khalid Anwar, the appellants had taken the plea of adherence to the general notification, exempting customs duty beyond 25% ad valorem and corresponding sales in the market in preference to restricted and controlled sales to specific "Government functionaries'.
18. When, therefore, the matter came up for recording of the compromise it ex facie appeared to be all round beneficial to allow general sales in preference to the, apparently, unwarranted favours to a special class of individuals connected with the Government. The compromise application itself an apprehension was expressed that unnecessary harassment may ensue that an appropriate safeguard was, on the joint request of M/s. Khalid Anwar and Abdul Hafeez Pirzada, visualised in the order dated 27-8-1996. We have, upon hearing, also noted with regret that the very scheme for allocation of Racer Taxis to specific individuals has not got along, as postulated. Allocations have, allegedly, been made to more members of a family than one and besides many a beneficiaries are reported to have sold off the allocated vehicles before the expiry of the prescribed period of one year. No meaningful watch at any level is shown to have been maintained and we have called for the learned Official Assignee's report, which is awaited. We have, therefore, reserved closer examination of the scheme pertaining to Government functionaries, past and present, at a later date, when facts are fully available.
19. ' Even though we have come to be of the view, upon due hearing, that the compromise entered into and recorded before us on 27-8-1996 was sustainable in law, certain reservations require to be placed on record at this stage. In the first plea, though both the above-noted notifications stood rescinded, an event apparently of insignificant legal effect because the case was to be decided on the facts prevailing on the date of the impugned order, yet for some reason we were not informed on 27-8-1996 by any of the parties that such notifications no longer occupied the field. For this an explanation may well be that the rescission was not in their knowledge. A notification under a statute, unless carrying delegated legislation, unlike the notified statute itself, is to be proved rather than be taken judicial notice of. This arises pursuant to Article 112 of the Qanun-e-Shahadat which postulates judicial notice only of all Pakistan Law" but omits from its scope the exercise of executive functions under such laws. Even so, the parties should have known about the rescinding notifications and ought to have apprised us. On the other hand, however, a still bigger lapse occurred at' the level of the Federal Government itself and, as pointed out earlier SRO.565(I)/95, dated 27-6-1995, favouring special interests, since rescinded on 13-6-1996, was revived and resurrected retroactively with effect from 13-6-1996. This is something, which has consistently been decried and held by Courts to be inpermissible on the ground that a notification of the character cannot be retrospective. What is more, all this took place in face of the order of this Court passed on 27-8-1996. If solemn Court orders and proceedings are side-tracked and even disregarded by the executive functionaries in a Constitutional set-up, what becomes of the rule of law? The equities or inequities, as the case may be, are therefore, more than matched, when pitched against each other.
20. ' Even so, in spite of the conduct of the Intervenor-Government, the fact remains that the Racer Taxis were meant to benefit the disadvantaged citizens and the cabs became available on account of the withdrawal of the Yellow Cab Scheme. The disadvantaged individuals, as the Official Assignee stated before us, were not prepared to pay the full price, bereft of the bank loans preferred under the Yellow Cab Scheme. The vehicles having thus become available, it has been shown to us in full measure only now that the same became a windfall either to favoured Government functionaries to whom they were being allocated bit by bit or to one or both of the parties, who were enabled to pay only 25% by way of customs duty i,e, if SRO 920(1)/94 remained to be applied, even though lapsed. Full implications were not clear to us when the consent order was passed. Having applied our minds, we have noted that each of such vehicles was admitted before the learned Single Judge to be worth Rs,3,50,000 to Rs,4,00,000, a quantum ex facie substantially higher than either of the parties to the appeal would have borne as expense, even when taking into consideration the long waiting period for the transaction to bear fruit. For this reason when we, on 5-12-1996 through a short order, dismissed the application under section 12(2), C.P.C. Together with the injunction application attached to it, we also created a first charge on the price actually fetched by each sale of the vehicles, if and when a claim to that effect was brought and agitated.
21. This was all that could be done in the circumstances because, according to the information laid the vehicles already stood cleared by the customs and due claim, if any, remained be raised. What is more the price was always postulated to be deposited even in terms of the earlier consent order.
22. It would now remain for the Official Assignee, who through the' ending reference has reported that no further progress yet been made, to, at all times, verify the actual price for which each sale has been made and ensure that deposit of the entire price received is effected. The relevant part of the short order is reproduced hereunder for ready reference:-- "2 & 3. Having heard the learned counsel, we are of the view that the order passed by us, upon consent of parties, on 27-8-1996 does not suffer from any infirmity. While reasons for such conclusion would be recorded separately, at the same time, we would like to stipulate that in the event there is any demand or claim on the part of the Federal Government, by way of customs duty or other taxes, in relation to the vehicles in dispute, in excess of what has been provided in the consent order, to that extent such demand or claim shall be the first charge on the amounts received, pursuant to the sales effected under the referred orders dated 27-8-1996. However, before such a demand or claim is met from the aforesaid realisations there shall have to be a proper determination in relation thereto in this Court, in one or the other of its various jurisdictions or in a yet higher forum on the basis of the determination here."
23. Before parting, we would like to make mention of the observations of their Lordships in the referred reported case where it was said that if the vehicles were to be used for purposes other than those of the rescinded scheme the importers/dealers here shall have to bear the usual duties and charges. Some observations were also made regarding improprieties in the imports. These aspects, again, we have been constrained to note on our own and none, at any stage, made us wiser about them. Nothing that has anywhere been said in these proceedings shall atone for any illegalities or improprieties, which would remain actionable as always before. As to normal duties, taxes and charges their Lordship's orders was passed on 5-4-1994 and such shall have to be interpreted in the prevailing and applicable state of facts and law at a subsequent date. If that ultimately comes in the way of any of the parties, so be it.
24. ' The foregoing were the reasons for the short order of dismissal of the two applications brought by the Federal Government aforementioned.