' SH. IJAZ NISAR, J.---Leave is sought against the judgment, dated 27-1-1999, passed by the Lahore High Court, Lahore, in Intra Court Appeals Nos.925/98 and 679/98.
2. The facts, in brief, are that on 28-5-1998 Pakistan conducted nuclear tests. On the same date Government of Pakistan promulgated Foreign Exchange (Temporary Restrictions) Ordinance VII of 1998 with immediate effect. State Bank of Pakistan issued Circular No,12 on 29th May, 1998, modifying the rules relating to the maintenance and operation of private foreign currency accounts. Later, the Majlis-e-Shoora passed Foreign Exchange (Temporary Restrictions) Act IV of 1998, on 25-9-1998, as money Bill, effective from 28th May, 1998. The legislative/executive measures mentioned supra suspended the rights of holders of foreign currency accounts to hold, sell, withdraw, transfer, pay or take out foreign exchange held by them as on 28th May, 1998. Pursuant to the Foreign Exchange (Temporary Restrictions) Act IV of 1998, the State Bank of Pakistan issued Circular No, 23 on 2nd July, 1998, to the following effect:-- "Please refer to Section A (III) of BCD Circular No,5 dated the 5th July 1987 read with Section (2) of BCD Circular Letter No,7/121-00-92 dated the 4th June, 1992 and rule 10 (iii) of Rules of Business for NBFIs regarding margin requirement prescribed for advances against bank deposits and deposit certificates it has been decided that encumbrance of lien of any kind upon any foreign currency deposit/foreign currency certificate as a cover against any direct or indirect liability of the depositors must be removed by July 31, 1998 though set off or direct liquidation of the liabilities so covered by the borrowers, ' Now new encumbrance of lien should thereafter be created against foreign currency deposit/certificates held on May 28, 1998.
' All Banks/NBFIs are further directed to give a compliance report to the State Bank within 3 days of the expiry of the deadline."
3. Feeling aggrieved, the foreign account holders filed Constitutional petitions in the Lahore High Court. On 30th July, 1998, a learned Single Judge upheld the vires of Circular No,23 and dismissed the writ petitions. The said order was challenged in Intra-Court Appeals. Since questions of legal importance were involved, a Full Bench was constituted to hear the said appeals.
4. In Intra-Court Appeals validity of Circular No,23, dated 2nd July, 1998, issued by the State Bank of Pakistan and validity of section 2 of Foreign Exchange (Temporary Restriction) Act IV of 1998, were assailed. The learned Full Bench allowed the Intra-Court Appeals, Amir Alam Khan, J. Concurred with the judgment authored by Mian Allah Nawaz, J. However, Karamat Nazir Bhandari, J. Recorded a separate note. Operative part of the judgment delivered by Mian Allah Nawaz and Amir Alam Khan, JJ. Was to the following effect:-- "28. As a result of our foregoing conclusions, the above-noted causes/comprising 67 Intra-Court Appeals and writ petitions noted in para. No,3 of this judgment, are bound to succeed. In the light of our conclusions and having regard to all the circumstances of litigation in hand, we hereby allow the afore-noted ICAs. And Constitutional petitions in following terms:--
(1) Declaration is granted that section 2 of Foreign Exchange (Temporary Restrictions) Act (IV of 1998) is ultra vires of Article 4 and Article 2A of the Constitution being repugnant to equality protection clause as well as on account of conferment of naked, arbitrary, unstructured power on the functionaries of the State Bank. This section so is declared as of no lawful consequences.
(2) Declaration is granted to the effect that Circular No,23 is confiscatory in nature and is violative of equality protection clause and that the same is so repugnant to Article 4 and Article 2A of the Constitution. The State Bank of Pakistan, however, will be well within its right to direct the lending institutions to call for fresh securities from borrowers if they find that the securities/collaterals of their foreign currency deposits as furnished by the petitioners/appellants are not satisfactory or contrary to its credit policy.
(3) The Circular No,23 is, so, declared contrary to law to the extent of directing the lending institutions to liquidate the foreign currency deposits of borrowers/petitioners/appellants at the rate of 46 rupees for a dollar and then get fresh securities, if so needed.
(4) Having regard to economic indicators as given in the report of State Bank and having regard to suggestion of Mr. Javed Shaukat/one of the petitioners; and having not been objected by any one of appellants/petitioners, we are persuaded to direct State Bank to treat the foreign currency account held by petitioners on 28th May, 1998 under section 4 of Protection of Economic Reforms Act (XII of 1992) as fixed account for a period of 3 years and frame rules with regard to that type of fixed deposits/permitting account-holders to withdraw any amount, so permitted, from these accounts to be utilized for their necessary expenses to be incurred by account holders on the education of their issues outside the country, on medical expenditures and so forth, The State Bank shall frame rules in line with the policy of such fixed accounts within a period of three weeks commencing from this order so as to clear the mist of uncertainty. We are also inclined to direct the Federal Government to get the Act XII of 1992 so amended by the Federal Legislature that it may eliminate the two classes of economy as permitted by it and subject foreign currency accounts to payment of income-tax, wealth tax and compulsory deduction of Zakat and so as to eliminate the manipulative power of dollars/sterling pounds or any other foreign currency over rupee. All these causes are so allowed with the grant of the above reliefs."
5. Karamat Nazir Bhandari, J. Though concurred generally with the majority judgment, did not agree with the other learned Members of the Bench to the extent of issuing a directive to the State Bank of Pakistan to treat the foreign currency accounts of the account-holders under section 4 of the Protection of Economic Reforms Act (XII of 1992) as fixed account for a period of 3 years and to frame the necessary rules in that behalf. He also did not subscribe to the issuance of direction to the Federal Government as contained in para. 4 of the judgment.
6. Feeling aggrieved, the Federation of Pakistan and the State Bank of Pakistan, have petitioned to this Court against the judgments passed in Intra-Court Appeals, inter alia, raising the following legal questions:-
(i) Whether the learned Full Bench of the High Court has erred in law in declaring the provisions of sections 2 and 4 of the Foreign Exchange (Temporary Restrictions) Act IV of 1998 without a proper judgment specially when it only consists of opinion of one learned Judge with which another learned Judge has partly agreed and partly disagreed and the third learned Judge has agreed with the dissenting Judge and there is, no final order of the Full Bench of the High Court?
(ii) Whether the learned High Court has erred in law in declaring Circular No,23 dated 2-7-1998 issued by the State Bank of Pakistan as illegal in complete disregard of the provisions of section 25, 41 and 91-A of the Banking. Companies Ordinance, 1962?
(iii) Whether the learned High Court has erred in law in ignoring that the Foreign Exchange (Temporary Restrictions) Act IV of 1998 and Circular No,23 dated 2-7-1998 were issued during the Emergency proclaimed by the President of Pakistan under Article 232 of the Constitution of Islamic Republic of Pakistan, 1973, and the State as defined in Article 7, has the power under Article 233(1), to make any law or to take any executive action i11 deviation of anything contained in Articles 15, 16, 17, 18,`19 and 24 of the Constitution?
(iv) Whether the learned High Court has erred in law in ignoring that Circular No,23 dated 2-7-1998 issued by the State Bank of Pakistan contains the credit policy which has been issued by it in exercise of its powers under the State Bank of Pakistan Act, 1956, Banking Companies Ordinance, 1962 and Foreign Exchange Regulations Act VII of 1947?
(v) Whether the learned High Court has not given full effect to the provisions of Article 150 of the Constitution which contemplates that full faith shall be given throughout Pakistan to Public Acts of competent Organs of the State like Legislature and Executive?
(vi) Whether the learned High Court has erred in law in ignoring the doctrine of trichotomy of powers laid down in the Constitution by carrying out judicial review of a legislative instrument passed by a competent Legislature?
(vii) Whether the learned High Court has erred in law in ignoring that the Foreign Exchange (Temporary Restrictions) Act IV of 1998 was passed by the Parliament in exercise of its powers under Article 142 of the Constitution?
(viii) Whether the learned High Court has erred in law in undertaking judicial review of a legislative instrument in utter disregard of the settled principle of law that the powers of the Legislature are absolute and are only subject to the Constitution alone?
(ix) Whether the learned High Court has completely ignored the law laid down by the Honourable Supreme Court of Pakistan that the vires of a Statute cannot be tested on the touchstone of Article 2A or Article 4 of the Constitution?
(x) Whether the learned High Court has erred in law in declaring the entire provisions of sections 2 and 4 of the Foreign Exchange (Temporary Restrictions) Act IV of 1998 as repugnant to Articles 2A and 4 of the Constitution on the basis of defect of excessive delegation of legislative authority to the State Bank of Pakistan which is only a part of the provisions?
(xi) Whether the High Court has erred in law in ignoring that the State Bank of Pakistan is a Statutory functionary and is regulated bythe Foreign Exchange Regulations Act, 1947, State Bank of Pakistan Act, 1956 and Banking Companies Ordinance, 1962 and the doctrine of excessive delegation of powers under a Statute is not applicable to it?
(xii) Whether the learned High Court has erred in law in declaring section 2 of Act IV of 1998 as discriminatory and violative of Articles 4 and 25 of the Constitution?
(xiii) Whether learned High Court has erred in law in ignoring that Act IV of 1998 only places temporary restrictions on the Foreign Currency Accounts and under section 3 of the immunities guaranteed by Protection of Economic Reforms Act XII of 1992 and the property rights envisaged by Article 24 of the Constitution are intact?
(xiv) Whether the learned High Court has erred in law in striking down the entire provisions of sections 2 and 4 on the so-called infirmity of giving unbridled authority to the State Bank of Pakistan under the said provisions?
(xv) Whether the learned High Court has erred in law in ignoring the settled principles followed in judicial review of a legislative instrument that mala fides cannot be attributed to the Legislature, the wisdom of the Legislature cannot be examined and the law should be saved and not destroyed in the judicial review?
(xvi) Whether the learned High Court has erred in law in exercising the discretion in favour of respondent No,1 in utter disregard of the material factors i.e, the conditions prevailing in the country after the Nuclear Explosion on 28-5-1998, the economic sanctions and the economic crunch faced by the country, the Forex Reserves with State Bank of Pakistan on 27-1-1999 were only U.S. Dollars L6 billion, the economic viability and the national interest?
7. Naseer Ahmad etc., and M/s. Ali Naseer & Company (Pvt.) Limited seek leave to appeal, inter alia, on the points of issuance of direction by the learned High Court to the Federal Government to get the Protection of Economic Reforms Act XII of 1992, so amended by the Federal Legislature so that it may eliminate the two classes of economy as permitted by Act XII of 1992 and subject foreign currency accounts to payment of income-tax, wealth tax and compulsory deductions of Zakat so as to eliminate the manipulative power of dollars/sterling pounds or any other foreign currency over rupee. They have also challenged the direction issued to the State Bank of Pakistan to treat the foreign currency accounts as fixed amount for a period of 3 years and to frame rules with regard to such fixed deposits. The issuance of direction by the State Bank of Pakistan to the lending agencies to call for fresh securities from the borrowers/petitioners has also been assailed.
8. Leave is granted to consider the legal questions raised in the aforementioned petitions.
9. Office is directed to fix the appeals alongwith the other connected matters arising out of the impugned judgment before the Summer Vacation of this year. The interim stay granted by this Court on 28-1-1999 shall continue in all respects till the disposal of the matters,
10. The grievance of the Foreign Currency Account-Holders voiced before us that, under the instructions of the State Bank of Pakistan they are not being paid profit on the accounts maintained by them, shall be looked into when formal applications are moved by them in this behalf.