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WP No.9518/2009

Stereo. H C J D A 38.
Judgment Sheet
IN THE LAHORE HIGH COURT AT LAHORE
JUDICIAL DEPARTMENT

WP No.9518/2009
LPG Association of Pakistan Vs Federation of Pakistan etc.

JUDGMENT
Date of Hearing 19.6.2020, 24.6.2020, 25.6.2020, 30.6.2020,
1.7.2020, 7.7.2020, 8.7.2020, 9.7.2020, 13.7.2020,
15.7.20 and 16.7.2020.
Petitioners By: Mr. Uzair Karamat Bhandari, Mian Muhammad
Kashif and Mr. Imran Iqbal,
Mr. Ali Sibtain Fazli, Mr. Hasham Ahmad Khan,
Mr. Abad ur Rehman and Mr. Eisa Jalil,
Mr. Salman Akram Raja, Mr. Tariq Bashir and Mr.
Arslan Riaz,
Mr. Imtiaz Rashid Siddiqui, Mr. Shehryar Kasuri,
Mr. Jamshaid Alam and Mr. Raza Imtiaz Siddiqui,
Mr. Ijaz Ahmad Awan and Mr. Shahzad Ahmad
Cheema,
Barrister Muhammad Umer Riaz and Mr.
Muhammad Waqas Umar,
Barrister Ahmed Pervaiz and Mr. Javed Ahmed
Tarar,
Syed Hassan Ali Raza, Mr. Asad Javed and Mr.
Sikandar Abbas Jajja,
Mr. Omer Tariq Gill and Mr. Abad ur Rehman,
Mansoor Usman Awan, Mr. Mohsin Mumtaz and
Ms. Shazeen Abdullah,
Mr. Mohammad Azhar Siddique, Mian Shabir
Ismail, Mian Asghar Ali and Ms. Salma Riaz,
Mr. Muhammad Raza Qureshi, Mr. Asad Hussain
and Mr. Qadeer Ahmad Kalyar,
Mr. Zaki ur Rehman and Mr. Zaheer A. Cheema,
Mr. Muhammad Jawwad Khan Lodhi and Mr. Asad
Raza,
Mr. Muhammad Yasin Hatif and Ms. Seemab
Aslam,
Raja Muhammad Bashir,
Sardar Shahbaz Ali Khan Khosa and Rai Mudassir
Iqbal,
Mr. Sikandar Bashir Mahmand,
Mr. Afnan Karim Kundi,
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Mr. Tariq Kamal Qazi and Mr. Ali Raza Kabir,

Mr. Fahad Malik,
Mr. Mujtaba Jamal,
Mian Hamid Ullah Khan,
Syed Shahid Hussain,
Mr. Haseeb Zafar,
Mr. Muhammad Haroon Mumtaz,
Mr. Ghulam Mujtaba and Mr. Ahmad Raza,
Mr. Asad Ahmad Ghani,
Mr. Asad Abbas Butt and
Mr. Muhammad Azam Jan Leghari.
Respondents By: The Federation:
Barrister Khalid Jawed Khan, Attorney General for
Pakistan, assisted by Ms. Amber Lakhani,
Advocate,
Ch. Ishtiaq Ahmad Khan, Additional Attorney
General for Pakistan,
Mr. Asad Ali Bajwa, DAG,
Ms. Ambreen Moeen, DAG,
Mr. Azmat Hayat Khan Lodhi, Assistant AGP,
Mr. Monim Sultan, Assistant AGP,
Ms. Zarish Fatima, Assistant AGP and Mr. Zahid
Sikandar, Assistant AGP.

Province of Punjab
Mr. Akhtar Javed, Additional Advocate General,
Punjab.

The Competition Commssioin of Pakistan

Mr. Azid Nafees,
Barrister Waqqas Ahmad Mir,
Mr. Muqtedir Akhtar Shabir and Dr. Azeem Raja,
Mr. Muhammad Ahmad Qayyum,
Mr. Rizwan Mushtaq, Mr. Ashfaq Qayyum Cheema
and Mr. Morris Nadeem,
Mr. Salman Mansoor,
Mr. Ahmad Hassan Anwari,
Mr. Babur Suhail,
Mr. Imran Muhammad Sarwar,
Mr. Ahmed Hassan Khan,
Mehr Muhammad Iqbal and Mr. Imran Khan Klair,
Mr. Nasir Mahmood Qureshi,
Mr. Amjed Hameed Ghauri,
Mr. Sultan Qamar Afzal
Ms. Shaista Bano, Chairperson, CCP, Ms. Bushra
Naz Malik, Member CCP and Mr. Noman Amir
Farooqi, Legal Advisor for Respondent CCP.
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OGRA
Mrs. Samia Khalid, Mr. Haroon Duggal,
Mr. Muhammad Akram Khawaja, Advocates
PTA
Mr. Asim Akram Khan, Advocate
GEPCO
Mr. Aurangzeb Mirza, Advocate
Applicant in CMs No.7339 and 3/2015
in WP No.24863/2015
Mr. Hasan Irfan Khan and Ms. Khadija Yasmin
Bokhari, Advocates

Ayesha A. Malik J: This judgment decides upon the issues raised in

the instant Petition as well as connected Petitions detailed in Schedule “A”
as all Petitions raise common constitutional issues. The Petitioners lay
challenge to the legislative competence of Parliament to legislate the
Competition Ordinance, 2007 (“2007 Ordinance”), the Competition
Ordinance, 2009 (“2009 Ordinance”), the Competition Ordinance, 2010
(“2010 Ordinance”) (“Collectively referred to as the Ordinances”) and
the Competition Act, 2010 (“Act”). The Petitioners also challenge the vires
of Section 43, 44 and 62 of the Act for being unconstitutional and they also
challenge the Ordinances and the Act on the ground that the Competition
Commission of Pakistan (“CCP”) exercises judicial power which is ultra
vires the Constitution of the Islamic Republic of Pakistan, 1973
(“Constitution").
2. The instant Petition has been filed by the LPG Association of Pakistan
through its Chairman, on account of Show Cause Notice No.51 dated
20.3.2009 issued under Section 30 of the 2007 Ordinance, alleging
cartelization and exclusionary conduct in the liquefied petroleum gas
(“LPG”) sector by the Liquefied Petroleum Gas Association of Pakistan
(“LPGAP”) and its members. They have challenged the show cause notice
and the proceedings thereafter which resulted in an order dated 14.12.2009
by the CCP. By way of background the instant Petition was filed before this
Court on 18.5.2009 and notices were issued for 27.5.2009. On 27.5.2009
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notice was issued to the Attorney General for Pakistan (“AGP”) and the
operation of the impugned show cause notice was suspended. The issue of
jurisdiction of this Court was raised and in terms of the order dated 2.7.2009,
it was decided that the High Court has jurisdiction in the matter. Thereafter
the case was taken up on 5.8.2009 with respect to the constitutional issues
raised by the Petitioners as well as the objections of the Respondents on
maintainability and it was directed that in the meanwhile no adverse action
be taken against the Petitioners. By order dated 3.7.2015 this Petition was
referred before the then Hon’ble Chief Justice for placing the matter before a
Full Bench and since then arguments have been made before the Full Bench.
In the meanwhile several Petitioners filed similar petitions, raising the same
constitutional issues before this Court, which are before us on the vires of
the Ordinances and the Act.
3. The Petitioners before this Court do business in different sectors and
hence challenged orders of the CCP, show cause notices, inquiry
proceedings, details of which are given herein below:
Oil and Gas
4. Connected to the issue of the Petitioners in the same sector against the
same show cause notices WP Nos.15493/09 and 14287/09 were filed. It is
important to note that these Petitions have been filed against show cause
notice dated 20.3.2009 under the 2007 Ordinance wherein it was alleged that
the Petitioners abused their dominant position by excluding Progas from
competing in the relevant market; that they formed a cartel engaged in price
fixing and that they are charging premium and third party commission from
marketing companies without allocations. The relevant market for the
purposes of these cases is Pakistan. In the case of WP No.14287/09, the
Petitioner has challenged exemption proceedings.
Fertilizer
5. Similarly Petitioners from the Fertilizer Sector have challenged show
cause notices alleging abuse of dominant position for which the relevant
market is Pakistan.
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Power
6. The Petitioners from the Power Sector have challenged show cause
notices where the allegation is of bid rigging as these companies procure
High and Low Tension Concrete Poles. It is alleged that they intentionally
reduced the price in the bidding process for the High Tension Pre-stressed
Concrete Poles and Low Tension Pre-stressed Concrete Poles. In these
cases, the CCP has passed order dated 13.5.2011 which is appealable under
the Act. The relevant market for this is also Pakistan.
Healthcare
7. The Petitioners from the Healthcare Sector have challenged show
cause notices in which the allegation is of price fixing and cartel like
behaviour under the Act and the CCP passed order dated 29.6.2012 for
which appeals are pending before the Competition Appellate Tribunal
(“CAT”). In these cases the relevant market is Pakistan.
Cement
8. A large number of Petitions have been filed by the Cement Sector
where the allegation is of price manipulation and cartel like behaviour where
the relevant market is Pakistan. It is noted that in these petitions show cause
notices have been challenged even though the CCP has passed the order
dated 27.8.2009 under the 2007 Ordinance which is appealable. WP
No.4574/12 has been filed by APCMA against inquiry proceedings with
reference to its members.
Oil Refinery
9. Four Petitions have been filed by oil refineries who have been issued
show cause notices on the allegation of their refusal to deal with bitumen,
where the relevant market is Pakistan. They have also filed petitions in
relation to filing of pre-merger applications.
Sugar
10. Some Petitioners own sugar mills and have been issued show cause
notices for cartelization, price fixing and collusive bidding in tendering
process. The relevant market is the product market where refined sugar is
sold which is essentially throughout Pakistan.
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Telecom
11. Petitioners from the telecom sector have challenged show cause
notices alleging violation of Section 4 of the 2009 Ordinance for price
manipulation with respect to the balance inquiries services, SMS rate and
call charges. The relevant market again is Pakistan, AJK and the Northern
Areas where PTA has its jurisdiction as regulator. WP No.13892/12 has
been filed by the PTCL wherein the matter was referred to the CCP by the
august Supreme Court of Pakistan vide order dated 21.2.2013 passed in
CPLA No.102-L/2013. The allegation against them was cartel like behaviour
for fixing the rate of incoming traffic and quota allocation of revenues to be
shared and no new entrant was allowed. The relevant market is Pakistan as it
was alleged that they are distorting competition in Pakistan not only amongst
LDI Operators but other related markets as well. In WP No.221542/18 the
Petitioner Transworld Associates (Private) Limited has challenged inquiry
proceedings.
Educational
12. There are some Petitioners representing different schools where the
CCP took notice of unreasonable increase in fee by private educational
institutions and also practices of bundling of uniforms and school books.
Hence the allegation of abuse of dominant position were raised. In these
petitions inquiry proceedings have been impugned.
Paints, Infant Milk, Juices
13. The Petitioners who manufacture paint, infant milk and juices have
also filed Petitions. These Petitioners are all multinationals who supply
products throughout Pakistan. The allegation against these Petitioners is of
deceptive marketing practices and abuse of dominant position. Show cause
notices have been impugned in these Petitions.
Real Estate
14. Some of the Petitioners are in the real estate business who have been
issued show cause notices for deceptive marketing practices in the real estate
sector.
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Arguments of the Petitioners

15. The common ground taken by the Petitioners in this Petition as well as
in the connected Petitions is that the Act and the Ordinances are ultra vires
the Constitution as Parliament lacks legislative competence to enact a statute
on the subject of competition. The Petitioners also allege that the Act and the
Ordinances create a parallel judicial system in violation of Article 175 and
203 of the Constitution by creating an authority which is to exercise judicial
powers but is not a court. Consequently the right of fair trial and due process
and the right to access justice has been infringed, hence violative of the
Constitution. In this regard, the Petitioners have also argued that the Act
provides for a right of appeal before the august Supreme Court of Pakistan
which is in violation of Article 185 of the Constitution which envisions an
appeal to the august Supreme Court of Pakistan only against judgments,
decrees and orders of the High Courts. Hence it is their case that there is
nothing in the Constitution which will justify a direct appeal to the august
Supreme Court of Pakistan from orders, judgments of CAT. The Petitioners
have also argued that Section 62 of the Act does not save or give
continuance to any of the proceedings, decisions, orders and actions taken
under the Ordinances. Further that the lapse of one Ordinance cannot be
extended by another Ordinance. Hence all show cause notices and orders
passed by the CCP cease to exist as they were never saved by the
Ordinances or the Act.
Arguments of the Respondent Federation

16. Notices under Order XXVII-A of CPC were issued to the AGP to
respond to the constitutional questions arising out of these Petitions. In
response thereto, report and parawise comments have been filed on behalf of
the Federation along with written submissions. Barrister Khalid Jawed Khan,
AGP argued that constitutional goal is to provide free trade and commerce
throughout Pakistan and not locally. That competition law by its very nature
and scope is national in character as the geographic stretch of the market
extends beyond territorial limits of any particular area or Province. He
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argued that a cumulative reading of several Articles of the Constitution and

Entries in the Federal Legislative List in the Fourth Schedule to the
Constitution (“FLL”) gives Parliament competence to enact the Ordinances
and the Act. That section 62 of the Act should be read in the form of a
declaratory statement by the legislature to give legal cover to actions,
proceedings, orders etc. by the CCP during the period 2.10.2007 to
5.10.2010 which includes the gap periods uptil the promulgation of the Act.
On the exercise of judicial power by the CCP, he states that this is in line
with the work of regulatory authorities, created in terms of Entry 14 of the
FLL of the Constitution. He also argued that an appeal before the Supreme
Court of Pakistan is permissible under Article 175 read with Entry 55 of the
FLL of the Constitution against any order by CAT. Therefore he argued that
Act and the Ordinances are not ultra vires the Constitution as the Parliament
is competent to promulgate an Act.
17. A preliminary objection was also raised in terms of order dated
5.1.2010 passed in WP No.9518/2009 that on account of order dated
14.12.2009 passed by the CCP, the cartel issue has been decided by the CCP
and remedy of appeal is available to the Petitioner under the law, therefore
the present petition is not maintainable. At this stage we were informed by
the Counsel for CCP that the position is similar with reference to several
Petitions before this Court where the CCP has passed an order which is
appealable under the Act. It was also clarified that all proceedings have
stopped on account of the interim orders passed by this Court. The second
objection raised is that the instant Petition has been filed by an Association
of LPG Dealers through their Chairman, which is not a registered body and
therefore not a legal entity who can agitate the grievances of its members
before this Court. This objection has been raised with respect to other
Petitions as well which have been filed by Associations on behalf of their
members. Reliance was placed on Anjuman Araian Bhera v. Abdul Rashid
and 5 others (PLD 1973 Lahore 500) and Pakistan Steel Re-Rolling Mills
Association v. Province of West Pakistan (PLD 1964 Lahore 138). It was
also argued that independent members of the Association have also filed
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Petitions which are pending before this Court on the basis of their
independent rights, hence the Association cannot take up the matter on
behalf of its members.
Arguments of the Respondent CCP

18. Report and parawise comments have also been filed on behalf of the
CCP along with written submissions. Learned Counsel adopted the
arguments of the AGP with reference to the constitutional challenge and
stated that there can be no effective regulation of trade and commerce in
Pakistan unless competition is free and fair throughout Pakistan. They
argued that regulation of inter-provincial trade and commerce would in itself
be meaningless as a free market throughout Pakistan is at the heart of the
concept of freedom of trade and commerce and its regulation, in the interest
of free competition, is exactly what the competition law aims at achieving.
Learned Counsel argued that CCP was established by the 2007 Ordinance,
continued through the 2009 and 2010 Ordinances and was given permanence
through the Act. During this time the CCP has taken effective action against
anti-competitive practices in sugar, cement, telecom, banking, fertilizer,
paints, automotive industry and other major sectors. Learned Counsel argued
that across all spheres of commercial and economic activity, CCP acts to
ensure free and fair competition. The law aims to protect consumers by
prohibiting anti-competitive behaviour. Competition law checks and
regulates market conduct in order to ensure that market forces allow for
healthy competition to ensure economic efficiency. They explained that
there are four main categories of market conduct that the Act aims to
regulate:
(a) Abuse of dominant position. This is covered by Section 3 of the
Act. The said section offers illustrative instances of abuse of
dominant position (such as unreasonable increase in prices by a
dominant market actor, refusal to deal, boycotts etc) but the list
of abusive conduct does not claim to be exhaustive.

(b) Prohibited agreements. Section 4 of the Act prohibits collusive

conduct between two or more market actors who enter into an
agreement that as its object (i.e purpose) or effect (i.e is result),
adversely affects competition. This includes but is not limited
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to horizontally placed market actors agreeing to engage in price

fixing, limiting output, division of markets and bid rigging.
Horizontally placed competitors mean those operating at the
same level of the supply chain.

(c) Deceptive marketing. Section 10 of the Act prohibits false or

misleading information about the quality, characteristics,
suitability of use, method of production etc, of goods and
services. The aim is to ensure that false or misleading
information does not prejudice consumer sovereignty.

(d) Merger control. Unlike other provisions of the Act which kick
into effect after particular conduct takes place, merger control
ensures that transactions where size of the parties involved
(their turnover, assets) and size of the transaction (percentage of
shareholding, value of assets involved) meet certain prescribed
thresholds, the market actors apply to the CCP for clearance of
the transaction.

19. The Counsel for the CCP argued that competition law only comes into
action when market actors violate clearly defined standards of prohibited
conduct. There is no on-going regulation of daily activities and no burden is
placed on market actors. However, when their market conduct falls on the
wrong side of clearly defined legal provisions (Sections 3, 4, 10 and 11 of
the Act) CCP conducts inquiries, issues show-cause notices, provides
opportunity of hearing as well as written responses and then passes speaking
orders imposing penalties which commensurate with the violation. In
addition, the CCP is also entrusted with other functions to promote
competition, through various means such as to conduct studies and training
for promoting competition in all sectors of commercial and economic
activity; to give advice to the undertakings, asking for the same, as to
whether any action proposed to be taken by such undertakings is consistent
with the provisions of the Act; to engage in competition advocacy by
creating awareness and imparting training; to review the policy frameworks
and recommend amendments in the Act and other laws to the Federal or
Provincial Governments, holding open hearings on any matter affecting the
state of competition in Pakistan or affecting the Country’s commercial
activities.
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20. Finally they explained that Pakistan is a member of the United

Nations which established the Set of Principles and Rules on Competition.
All Member States agreed to establish a domestic regime which would
ensure free and fair competition within their systems. The Act is in line with
the UN Set of Principles and similar to the regulatory regimes promoting
free and fair competition around the world. Pakistan is also a member of the
World Trade Organization and signatory to the Doha Declaration, the
Agreement on South Asian Free Trade Area (“SAFTA”) for promoting
conditions of fair competition in the Free Trade Area (“FTA”). Hence in
order to fulfill its international commitments the Federal Government is
responsible to ensure compliance of its Federal obligations.
21. The Counsel also informed the Court that in several Petitions the
Petitioners have challenged the vires of the Act and have also filed appeals
against the order of the CCP. The detail of appeals is given in Schedule B,
which are also pending before this Court. As per their contention which
supported by the AGP, the appeals should be sent to CAT which is the
competent forum to hear the appeals. That against the decision of CAT the
Petitioners have the right to appeal before the august Supreme Court of
Pakistan. Hence no right is prejudiced if the proper forum under the Act
hears the appeals.
Issues before the Court

22. Based on what has been argued before us the following issues require
our deliberation:

A) Whether Parliament has legislative competence to enact the Act and

the earlier Ordinances?
B) Whether the Act and the Ordinances create a parallel judicial system
in violation of Articles 175 and 203 of the Constitution such that the
CCP and CAT exercise judicial power which is in violation of the
Mehram Ali and others v. Federation of Pakistan and others (PLD
1998 SC 1445) (Mehram Ali Case).?
C) Whether Section 43 and 44 of the Act are unconstitutional as they
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provide for an appeal before the august Supreme Court of Pakistan

which is in contravention to Article 185 of the Constitution?
D) Whether the proceedings and orders etc. under the Ordinance have
been saved revived or continued pursuant to Section 62 of the Act;
and whether Section 62 of the Act is unconstitutional?

Opinion of the Court

(A) Legislative Competence
23. The Petitioners’ case is that there is no entry in the FLL which allows
Parliament to enact law on the subject of competition. They argue that
Parliament does not have the power to make laws on matters which are not
enumerated in the FLL as all residue power is vested with the Provinces
after the Eighteenth Amendment to the Constitution vide the Constitution
(Eighteenth Amendment) Act, 2010 (“18th Amendment”). That the FLL
does not contain any entry on the subject of competition or monopolies or in
any manner with reference to anti-trust restrictions. The counsel argued that
the Constitution of the Islamic Republic of Pakistan, 1956 (“1956
Constitution") contained a specific entry with reference to commercial and
industrial monopolies in Entry No.10 of the Concurrent List. Furthermore
the Constitution of the Islamic Republic of Pakistan, 1962 (“1962
Constitution") provided in Article 131 that the Central Legislatures shall
have exclusive powers to make laws with respect to any matter enumerated
in the Third Schedule and Article 131(2) of the 1962 Constitution provided
that the Central Legislature can make laws in national interest in relation to
economic and financial stability of Pakistan, planning or coordination or for
the purposes of achievement of uniformity as required. That the Monopolies
and Restrictive Trade Practices (Control and Prevention Ordinance), 1970
(“MRTPO”) was promulgated specifically with reference to the powers
conferred on Parliament under Article 131(2) of the 1962 Constitution.
However there is no similar provision under the Constitution and in the
absence of any similar Article or Entry in the Constitution, competition law
is specifically and intentionally excluded from the legislative domain of
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Parliament. That the omission of these provisions from the Constitution is

deliberate so as to confer power on the Provinces. Hence the Ordinances and
the Act are ultra vires the Constitution as Parliament does not have
legislative competence to legislate on this subject. Further that Article 151 of
the Constitution does not give legislative authority to Parliament as the said
Article relates to the movement of goods and allows Parliament to impose
restrictions on trade and commerce between the Provinces. They argue that
on its own, it is not an independent source of legislative authority as the only
source of legislative authority under the Constitution is Article 142.
24. Conversely the AGP argued that there are various legislative entries in
the FLL as well as specific Articles of the Constitution which when read
cumulatively empowers Parliament to legislate law which regulates and
controls anti-competitive behaviour and ensures free competition. He argued
that the very nature of the Act is to ensure free competition by regulating
anti-competitive behaviour throughout Pakistan as the Act is national in
character and in its reach. The AGP explained that the Act aims to protect
consumers and the public at large and is directly related to the national
economy hence falls within the domain of Parliament. He explained that
historically Parliament has always legislated on the subject of competition
and that throughout this time the Provinces have neither questioned the laws
nor enacted one. Even throughout the history of this case the Provinces have
not come forward to state otherwise. That legislative entries must be read
liberally and it is not necessary that the subject matter falls in any one
distinct entry but can be read into several entries. So far as the relevant
legislative entries are concerned, he relied upon Entries No.3, 27, 32, 58 and
59 of Part-I of the FLL and Entries No.6, 7 and 13 of Part-II of the FLL. He
also relied upon Articles 18, 142 and 151 of the Constitution in support of
his arguments in favour of Parliaments competence to legislate on the
subject of competition. The AGP argued that regulating anti-competitive
behaviour so as to ensure free competition falls within the legislative domain
of Parliament, hence the Ordinances and the Act are not ultra vires the
Constitution.
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25. On behalf of the CCP it was argued that the parties before the Court in
many cases are Associations, who have filed petitions on behalf of their
members who have business all over the Pakistan. This fact alone suggests
that the argument of the Petitioners that Parliament is not competent to make
law is flawed as the nature of the dispute has crossed Provincial borders and
the relevant market in all the cases before this Court is Pakistan and not
confined to any market within the Province of Punjab. They argued that the
Constitution envisages economic unity through a national economy under
Article 151 of the Constitution which requires a free market throughout
Pakistan and carries a constitutional mandate to Parliament to remove
barriers to free trade and commerce so as to ensure free competition. By way
of Article 151(2) of the Constitution only Parliament can legislate to impose
restrictions on the freedom of trade, commerce or intercourse between the
Provinces. The Counsel explained that the object of the Act and the CCP is
to remove all barriers to free competition and maintain free competition in
all commercial and economic activity.
26. For ease of reference, the relevant provisions of the Constitution are
reproduced hereunder:-

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.
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 shall have power to make laws with respect
to criminal law, criminal procedure and evidence;]
(c) Subject to paragraph (b), a Provincial Assembly shall,
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and Majlis-e-Shoora (Parliament) shall not, have

power to make laws with respect to any matter not
enumerated in the Federal Legislative list;]
(d) [Majlis-e-Shoora (Parliament)] shall have exclusive
power to make laws with respect to all matters
pertaining to such areas in the Federation as are not
included in any Province]
Article 151 (1) Subject to clause (2), trade, commerce and
intercourse throughout Pakistan shall be free.
(2) [Majlis-e-Shoora (Parliament)] may by law impose
such restrictions on the freedom of trade, commerce or
intercourse between one Province and another or within any
part of Pakistan as may be required in the public interest.
(3) A Provincial Assembly or a Provincial Government
shall not have power to:
(a) make any law, or take any executive action,
prohibiting or restricting the entry into, or the export from,
the Province of goods of any class or description, or
(b) impose a tax which, as between goods manufactured
or produced in the Province and similar goods not so
manufactured or produced, discriminates in favour of the
former goods or which, in the case of goods manufactured or
produced outside the Province discriminates between goods
manufactured or produced in any area in Pakistan and similar
goods manufactured or produced in any other area in
Pakistan.
(4) An Act of a Provincial Assembly which imposes any
reasonable restriction in the interest of public health, public
order or morality, or for the purpose of protecting animals or
plants from disease or preventing or alleviating any serious
shortage in the Province of any essential commodity shall
not, if it was made with the consent of the President, be
invalid.

Federal Legislative List:- (Part-I)

Entry No.3. External affairs; the implementing of treaties and agreements,

including educational and cultural pacts and agreements, with other
countries; extradition, including the surrender of criminals and accused
persons to Governments outside Pakistan.
Entry No.27. Import and export across customs frontiers as defined by the
Federal Government, inter-provincial trade and commerce, trade and
commerce with foreign countries; standard of quality of goods to be
exported out of Pakistan.
Entry No.32. International treaties, conventions and agreements and
International arbitration.
Entry No.58. Matters which under the Constitution are within the
legislative competence of [Majlis-e-Shoora (Parliament)] or relate to the
Federation.
Entry No.59. Matters incidental or ancillary to any matter enumerated in
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this Part.
Legislative Entries:- (Part-II).
Entry No.6. All regulatory authorities established under a Federal Law.
Entry No.7. National planning and national economic co-ordination
including planning and co-ordination of scientific and technological
research.
Entry No.13. Inter-provincial matters and co-ordination.

27. With reference to legislative competence, the Petitioners have stressed

on the historical context stating that the Constitution does not have any
provision similar to the 1956 Constitution or the 1962 Constitution which
authorizes Parliament to legislate on the subject of competition. They argued
that the subject of competition is expressly missing from the FLL which
means that it cannot be implicitly interpreted, as such interpretation takes
away the fundamental scheme of the Constitution, especially after the 18th
Amendment to the Constitution which gave greater authority to the
Provinces. They stated that historically there were entries and provisions in
the constitutions which have been deliberately omitted from the
Constitution, meaning thereby that the intention of the framers of the
Constitution was to exclude the subject of competition from the legislative
domain of Parliament. As regard this contention, it is necessary to look at the
historical context of the legislative power of Parliament to make law on free
trade and competition under the different constitutions.
28. Section 297 of The Government of India Act, 1935 is reproduced
hereunder:

Section 297 - Prohibition of certain restrictions

(1) No Provincial Legislature or Government shall---
a) by virtue of the entry in the Provincial Legislative List
relating to trade and commerce within the Province, or the
entry in that list relating to the production, supply, and
distribution of commodities, have power to pass any law or
take any executive action prohibiting or restricting the entry
into, or export from, the Province of goods of any class or
description; or
b) by virtue of anything in this Act have power to impose any
tax, cess, toll, or due which, as between goods manufactured
or produced in the Province and similar goods not so
manufactured or produced, discriminates in favour of the
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former, or which, in the case of goods manufactured or

produced outside the Province, discriminates between goods
manufactured or produced in one locality and similar goods
manufactured or produced in another locality.
(2) Any law passed in contravention of this section shall, to the extent of
the contravention, be invalid.

Article 119 of the 1956 Constitution is reproduced hereunder:

Article 119 – Inter-Provincial Trade. No Provincial Legislature or Provincial

Government shall have power
(a) to pass any law, or take any executive action, prohibiting or
restricting the entry into, or export from, the Province of goods
of any class or description; or
(b) to impose any taxes, cesses, tolls or dues which, as between
goods manufactured or produced in the Province and similar
goods not so manufactured or produced, discriminate in favour
of the former, or which, in the case of goods manufactured or
produced outside the Province, discriminate between goods
manufactured or produced in any locality and similar goods
produced in any other locality:
Provided that no Act of a Provincial Legislature which
imposes any reasonable restriction in the interest of public health,
public order or morality shall be invalid under this Article if it is
otherwise valid under the Constitution; but any Bill for this purpose
passed by the Provincial Assembly shall be reserved for the assent of
the President, and shall not become law unless the President assents
thereto.
Entry No.4 of the Federal List of the 1956 Constitution
Trade and commerce between the provinces, and with foreign
countries; import and export across customs frontiers.
Entry No.10 of the Concurrent List of the 1956 Constitution
Commercial and industrial monopolies, combines and trusts.

Articles 131 and 142 of the 1962 Constitution are reproduced hereunder:

Article 131. Central law-making powers—(1) The Central Legislature shall have
exclusive power to make laws (including laws having extra-territorial operation) for
the whole or any part of Pakistan with respect to any matter enumerated in the Third
Schedule.
(2) Where the national interest of Pakistan in relation to—
(a) the security of Pakistan, including the economic and financial
stability of Pakistan; or
(b) planning or co-ordination; or
(c) the achievement of uniformity in respect of any matter in different
parts of Pakistan,
so requires, the Central Legislature shall have power to make laws (including
laws having extra-territorial operation) for the whole or any part of Pakistan
with respect to any matter not enumerated in the Third Schedule.
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(3) If—
(a) it appears to the Assembly of a Province to be desirable that a matter
not enumerated in the Third Schedule should be regulated in the Province by
an Act of the Central Legislature; and
(b) a resolution to that effect is passed by the Provincial Assembly, the
Central Legislature shall have power to make laws having effect in the
Province with respect to that matter, but any law made in pursuance of this
power may be amended or repealed by an Act of the Provincial Legislature.
(4) The Central Legislature shall have power (but not exclusive power) to
make laws for the Islamabad Capital Territory and the Dacca Capital
Territory with respect to any matter not enumerated in the Third Schedule.
(5) The Central Legislature shall have power to make laws for any part of
Pakistan not forming part of a Province with respect to any matter.

Article 142. Inter-Provincial Trade—(1) Subject to clause (2) of this Article, the
Legislature of a Province shall not have power—

(a) to make any law prohibiting or restricting the entry into, or the export
from, the Province of any goods or;
(b) to impose a tax which, as between goods manufactured or produced
in the Province and similar goods not so manufactured or produced,
discriminates in favour of the former goods or which in the case of
goods manufactured or produced outside the Province, discriminates
between goods manufactured or produced in any locality in Pakistan
and similar goods produced in any other locality in Pakistan.
(2) No Provincial Law which imposes any reasonable restriction in the interest
of public health, public order or morality or for the purpose of protecting animals or
plants from disease or preventing or alleviating any serious shortage in the Province
of any essential commodity shall, if it was made with the consent of the President,
be invalid by reason of this Article.

1972 Interim Constitution of Islamic Republic of Pakistan

No provision on inter-provincial trade and commerce existed in the 1972

Interim Constitution.

Parliamentary Debates on Article 151 of the Constitution, 1973

The 1972 Interim Constitution did not include a clause regarding inter-
provincial trade. Mr. Abdul Hafeez Pirzada, expressed regret over this
omission and explained the significance and purpose of this provision while
addressing the National Assembly:-
“Mr. Abdul Hafeez Pirzada: sir, this is an extremely import Article. We were
guilty of certain omissions in a similar Article under the Interim Constitution
which resulted in some very serious troubles between the Province. Goods
manufactured in one Province were put at disadvantage by imposition to
taxes so as to destroy the market for those goods in a particular Province. It
makes the price so high and incompetitive that people would refrain from
buying those goods. In one country, with one economic system and with one
economy, this Article is absolutely necessary, and I am glad to see that there
is no serious resistance to this Article inasmuch as mere nominal
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amendments have been suggested by one or two persons, a few amendments

which were not even moved. Now here, Sir, I consider it appropriate because
this has been an important matter and a very important matter dealing with
the Federation-Provinces relationship and also the distribution to power and
check authority that is to be exercised by the Federation over the Provinces.
I would like to read from paragraph 9 of the Charter of Demands submitted
by Prof. Ghafoor Ahmad on behalf of the so-called United Democratic Front
to the President of Pakistan, and I would like this to go on record, because
Opposition are failing in their duty to come and participate in the task of
Constitution- making and in their absence, it is my duty to inform the House
what the Opposition, or certain members of the National Assembly sitting
across the floor, think about these provisions and what there so-called
supporters, political supporters outside the House, under the name of the so-
called United Democratic Front also think. This is all that has been said in
respect of the relations between the Centre and the Provinces in the Charter
of Demands, and I would not have made in public, but since they have
themselves made it public in their press conference on the 24th, I will be
justified in reading out before this august House,. “No change in the
Legislative List both Federal and Concurrent is desired”. This is the stand
taken by them. Only minor procedural adjustments are suggested. That is all
that they have to say with regard to the distribution of power and division of
subjects between the Centre and the provinces and inter-Provincial or
Federation-Provinces relationship. They have only suggested very very
minor amendments of procedure and legislation and that particular Article
has been deferred and no discussion has taken place. Therefore, if no
amendments are coming forward on this part of the Constitution, it is
understandable because only deduction that we can draw is that no one has
any serious objection on this very tricky and sensitive part.”(Emphasis
added)

Section 297 of the Government of India Act, 1935 imposed restrictions on

the Provincial Legislature and Government from making law which will
restrict entry into or export from the Province, of goods of any class or
description. It also restricted the Provincial Assembly and Government from
imposing any tax, cess, which discriminates in favour of the Province.
Similar provisions were also seen in the 1956 Constitution in Article 119
and Article 142 of the 1962 Constitution. These Articles are similar to
Article 151(3) of the Constitution where similar limitations have been placed
on the Provincial Assembly and Provincial Government. Accordingly the
relationship between the Provinces and the Federation with reference to
inter-provincial trade and commerce was governed by these provisions.
There was no such provision under the 1972 Interim Constitution. This led
to the Parliamentary Debates on Article 151 of the Constitution. As per the
Debates, Article 151 of the Constitution was necessary to define the
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relationship between the Federation and the Provinces and also to maintain
some check by the Federation on the Province. The Debates also highlight
the intent of the framers of the Constitution to have one economic system
with one economy. This goes to the essence of Article 151 of the
Constitution which is federalism as it sets out a national objective for a
national economy. Article 151 was introduced in the Constitution where Sub
Clause 1 and 2 of the said Article were in addition to Sub Clause 3 which is
similar to the earlier provisions setting restrictions on the Provincial
Assembly and Provincial Government. Article 151(1) and (2) of the
Constitution requires trade, commerce and intercourse to be free throughout
Pakistan. Only Parliament has the authority to impose restrictions on free
trade and commerce between Provinces or within any part of Pakistan, that
too in the public interest. We note that Entry 10 of the Concurrent List in the
1956 Constitution specifically provided for the subject of commercial and
industrial monopolies, combines and trust. Historically, this is the only
Entry which mentioned the subject of monopoly however no law was made
pursuant to this entry. In the 1962 Constitution there was no such Entry,
however Article 131(2) specifically gave the central legislature authority to
make law on economic and financial matters to achieve uniformity
throughout Pakistan. The Petitioners rely on Article 131(2) of the 1962
Constitution to urge the point that the central legislature was authorized to
make laws related to the economy of Pakistan and that the MRTPO was
promulgated in terms thereof. This reliance of the Petitioners testifies to the
fact that the MRTPO being a law to prevent the growth of monopolistic
power and restrictive trade practices was in the national interest for
economic stability, consequently it required federal legislation. This was the
first legislation relating to competition in Pakistan. We have gone through
the provisions of the MRTPO and find that the preamble to the MRTPO
clearly states that the Ordinance is to provide for measures against undue
concentration of economic power, growth of unreasonable monopoly power
and restrictive trade practices which are injurious to the economy of
Pakistan. This means that regulating monopolistic power and restrictive
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trade practices is for the economic welfare of the country, hence it was
considered a federal subject falling under Article 131 of the 1962
Constitution which authorized the central legislature to make laws in the
national interest, for the economic and financial stability of Pakistan. So
while Entry No.10 of the Concurrent List in the 1956 Constitution was
directly on the subject of monopolies, combines and trust, Article 131(2) of
the 1962 Constitution referred to the more general legislative power of the
Central Legislature to make law on matters of national interest which
included the economic and financial stability of Pakistan. Consequently even
in the historical context, having a free market and regulating monopolistic
behaviour was a federal subject as it was in the national interest of the
country. The objective of the MRTPO came up before the august Supreme
Court of Pakistan in Sanaullah Woolen Mills Ltd. and Another v. Monopoly
Control Authority (PLD 1987 SC 202) while hearing an appeal against an
order under the MRTPO wherein the august Supreme Court of Pakistan held
that:
This legislation is the first of its kind in Pakistan and was intended to provide
measures against undue concentration of economic power, growth of
unreasonable monopoly power and unreasonably restrictive trade practices to
secure national interest of Pakistan in relation to its economic and financial
stability. It was enacted before the Constitution, but is now referable to Article
38(a) of the Constitution of the Islamic Republic of Pakistan, in Chapter 2,
relating to Principles of Policy.

Such legislations became an important aspect of economic policies of almost all

the western countries.

Economic power belonging to the genus monopoly was commonplace with the
economy but the enacting sections of our Ordinance regulating the undertaking’s
undue concentration of power has no analogous in the world, and should,
therefore, be regarded exceptional in the context of monopoly or antitrust
legislations in the various countries of the world. (Emphasis added)

As per the Supreme Court judgment the MRTPO was promulgated so as to

promote economic welfare, financial stability and to prevent the
concentration of economic power in the hands of a few. The constitutional
backing given to the MRTPO was in Chapter 2 under Principles of Policy,
now referable to Article 38(a) of the Constitution which requires the State to
provide for the well being of the people by preventing concentration of
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wealth and means of production and distribution in the hands of a few to the
detriment of general interest. But the MRTPO proved to be ineffective and
was considered obsolete given the changing economic dynamics around the
world. The global focus had shifted from curbing monopolies to promoting
free and fair competition, hence the same focus was considered necessary
for Pakistan. This led to the promulgation of the 2007 Ordinance, which
established the CCP in place of the Monopoly Control Board and set its
regulatory objective as maintaining free competition in all spheres of
commerce and economic activity to improve economic efficiency and
protect the consumer from anti- competitive behaviour. This objective was
maintained in the 2009 and 2010 Ordinances and the Act. Consequently the
Ordinances and the Act are broader in scope when compared with the
MRTPO as the law aims to create a healthy market which serves the
consumers interest and structures behaviour so as to encourage economic
activity for a more equal distribution of resources and wealth. Hence even in
the historical context the MRTPO was a federal law, enacted in the national
and economic interest of Pakistan.
29. Now coming to the present Constitution, the scheme of the
Constitution on Federal-Provincial relationship is set out in Part V being
Articles 141 to 159. Article 141 provides for the jurisdictional extent that
Parliament and the Provincial Assemblies can make law. Accordingly
Parliament can make law for the whole of Pakistan whereas the Provincial
Assembly can make law for the Province. This means that the Province
cannot make law which operates beyond its territorial limits. Article 142
gives legislative competence to Parliament and the Provincial Assemblies by
setting out the subject matters which fall under the Federal and Provincial
domain. As per the Article, Parliament has exclusive power to make law on
subjects enumerated in the FLL and Parliament shall not make laws with
respect to matters not enumerated in the FLL. The Petitioners argued that
competition is not a specified subject under the FLL, hence it does not fall in
legislative domain of Parliament. The AGP argued that competition is a
federal subject and falls within Parliament’s legislative authority under the
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provisions of the Constitution. Hence the question before us is can

Parliament make law on matters not provided in the FLL? The answer to this
question is in the Constitution itself, which can mandate legislative
competence through specific provisions, as is evident from the opening lines
of Article 142 which states ‘Subject to the Constitution' meaning that the
legislative powers as distributed in Article 142 of the Constitution are
subject to other provisions of the Constitution and not limited to Article 142
of the Constitution. This Article has come up before the august Supreme
Court of Pakistan in several cases as detailed hereinafter:
In the case Lahore Development Authority through D.G. and others v.
Ms. Imrana Tiwana and others (2015 SCMR 1739), the august Supreme
Court of Pakistan while interpreting Article 142 of the Constitution held that
where the Constitution itself creates a bar on the exercise of legislative
authority by the Province, then it must be exercised in the manner prescribed
by the Constitution. The august Supreme Court of Pakistan held that:
52. The words “Subject to the Constitution” in Articles 142 and 137 of the
Constitution simply mean that where the Constitution itself places a bar on the
exercise of legislative or executive authority by the Province such authority
cannot be exercised in spite of its conferment by these Articles. For instance,
while the Province has executive authority under Article 137, this authority must
be so exercised so as to secure compliance with federal laws, which apply in that
Province [Article 148(1)]. It must also be so exercised so as not to impede or
prejudice the executive authority of the Federation [Article 149(1)]. Likewise, the
legislative authority of the Province under Article 142 of the Constitution can be
conferred on the Federation under Article 144. Further, neither the executive nor
the legislative authority of a Province can be exercised in a manner which violates
Fundamental Rights. Any such exercise would fall foul of Article 8 of the
Constitution.

53. The words “Subject to the Constitution” do not, therefore, make Articles
137 or 142 subservient to the remaining provisions of the Constitution. All that
these mean is that where the Constitution creates a specific bar to the exercise of
such executive or legislative authority or provides a different manner for such
exercise then that authority must either not be exercised at all or exercised in such
manner as the Constitution permits. It does not mean that the provision prefaced
with such words is a subordinate constitutional provision. It also cannot mean that
once the Province has devolved certain powers on the Local Government, its
legislative and executive authority is effaced by that of the Local Government.
The said provisions are not subordinate, but provisions, the exercise of authority
under which, is untrammeled except where the Constitution itself creates a
specific and overriding bar. (Emphasis added)
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In Sindh Revenue Board through Chairman, Government of Sindh and

another v. The Civil Aviation Authority of Pakistan through Airport
Manager (2017 SCMR 1344), the august Supreme Court of Pakistan while
deliberating over the imposition of sales tax by the Province discussed
legislative domain of the Federation and the Provinces and concluded that
the pith and substance of a subject should be looked at. The Court held that:
37. The Constitution, which is characterized as a living and organic thing, is
not to be interpreted narrowly or restrictively, and a pedantic interpretive
approach is to be avoided. Whilst the provincial legislatures are
independent, they must operate within the sphere allotted to them and
within their prescribed limit. Neither the Federation nor the provinces
should invade upon the rights of the other nor encroach on the other’s
legislative domain. The pith and substance of the legislated subject is to be
examined to determine in whose legislative sphere a particular subject
comes under. And above all a reasonable interpretation which does not
produce impracticable results should be adopted. (Emphasis added)

In the judgment reported as Pakistan Flour Mills Association and

another v. Government of Sindh and others (2003 SCMR 162), while
deliberating on Entry 49 and 54 of the FLL of the Constitution, the august
Supreme Court of Pakistan examined Article 142 of the Constitution prior to
the 18th Amendment, and observed that Parliament can make laws on matters
in the FLL or the Concurrent Legislative List whereas in view of Article
142(c) of the Constitution, the Provincial Assembly can legislate with
respect to matters not enumerated in the FLL or the Concurrent Legislative
List. However, after the 18th Amendment in Fiaqat Hussain and others v.
Federation of Pakistan through Secretary, Planning and Development
Division, Islamabad and others (PLD 2012 SC 224), the august Supreme
Court of Pakistan, while answering the question as to whether after
abolishing the Concurrent Legislative List the Federation is empowered to
make legislation on the subject of education, held that fundamental rights are
to be enforced by the State and the word ‘State’ includes the Federal
Government. In this case the issue was of the right to education and whether
the Federation is empowered to make legislation relating to the subject of
education. The august Supreme Court of Pakistan concluded that the Federal
Government is responsible to enforce the fundamental right to education
under Article 25A of the Constitution notwithstanding the 18th Amendment
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and it cannot be argued that because the Concurrent Legislative List has
been omitted through the 18th Amendment and education has devolved on
the Provinces that the Federation cannot legislate on the matter. Hence the
Federal Government is not absolved of its duty to ensure that this
fundamental right is duly enforced.
In Government of Sindh through Secretary Health Department and
others v. Dr. Nadeem Rizvi and others (2020 SCMR 1), the august Supreme
Court of Pakistan while interpreting ‘Subject to the Constitution' in Article
142 of the Constitution reiterated the duty of the Federal Government is to
enforce fundamental rights, which gives it legislative competence with
respect to the respective fundamental rights under Article 9 of the
Constitution. In this case the august Supreme Court of Pakistan read the
right to healthcare in the fundamental right to life and placed an obligation
on the Federal Government to carry out all necessary steps to ensure the
enforcement of this right. The Court also clarified that the intent of the 18th
Amendment was not to curtail the powers of the Federation under the
Constitution simply because the Concurrent Legislative List had been
deleted under the 18th Amendment. The august Supreme Court of Pakistan
held that:

26. This Court in the foregoing cases has to a great extent examined and laid
down the constitutional contours of the legislative competence of the
Federal and Provincial Legislatures which in turn determines the executive
authority of the Federal and Provincial Governments respectively as per
Articles 97, 137 and 142 of the Constitution read with the Federal
Legislative List. However, we find it pertinent to clarify that in the broader
scheme of things, notwithstanding the fact that it has been held in the
earlier portion of this opinion that the various institutions involved in this
matter fall within the respective entries of the Federal Legislative List,
these institutions draw constitutional and legal validity from a very
significant and core feature of our democratic constitution, i.e.
fundamental rights. With respect to the medical institutions in particular,
i.e. JPMC, NICVD, NICH and SZPMI, the relevant fundamental right is
the right to life enshrined in Article 9 of the Constitution which provides
that “No person shall be deprived of life or liberty save in accordance with
law.” As highlighted above in the case of Province of Sindh supra, this
Court held that the right to life is a positive right thereby entitling the
holder of such right to provision of some good or service; and being a
positive right, it placed a positive duty on the state to act. Therefore the
State, which undoubtedly includes the Federal Government as per Article
7 of the Constitution, is duty-bound and is under an obligation to
guarantee the enforcement of the fundamental rights enshrined in the
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Constitution, with the most important one being the right to life. The
significance of such right cannot be overstated and the plethora of
Pakistani judgments on the various shapes and forms this right can take is
evidence of such fact. The right to life undoubtedly entails the right to
healthcare which means that everyone has the right to the highest
attainable standard of physical and mental health and this comprises of
access to all kinds of medical services including but not limited to
hospitals, clinics, medicines and services of medical practitioners which
must not only be readily available and easily accessible to everyone
without discrimination, but also of high standard. As the State, the Federal
Government has an obligation to carry out all necessary steps to ensure
realization of this goal.

27. As held by this Court in Liaqat Hussain’s case supra, the Federal
Government is not absolved from conferring the fundamental rights
contained in the Constitution upon its citizens and the State is required to
enforce such rights. We find that this duty prevails, notwithstanding the
respective domain of Federal and Provincial executive authority as
determined by the respective Federal and Provincial legislative
competence in light of the provisions of Articles 97, 137 and 142 of the
Constitution read in conjunction with the Federal Legislative List. It is a
duty that transcends and surpasses other provisions of the Constitution and
cannot, in any circumstance whatsoever be curtailed or abridged. The
more one scrutinizes the argument that the Federal Government cannot set
up and run hospitals or similar facilities/institutions providing medical and
healthcare services in any of the Provinces, the more unsustainable and
flawed it becomes. Surely, the intention behind the 18th Amendment could
not have been to prevent the Federal Government from opening healthcare
facilities in any of the Provinces of Pakistan, for concluding so would be
tantamount to attributing absurdity to a constitutional provision,
something which we are not prepared to do bearing in mind the well
known canons of statutory and constitutional interpretation. (Emphasis
added)

In Sui Southern Gas Company Ltd. and others v. Federation of

Pakistan and others (2018 SCMR 802), the august Supreme Court of
Pakistan held that Entries 58 and 59 which fall at the end of Part 1 of the
FLL are independent sources of legislative competence for Parliament with
respect to matters which under the Constitution are within the legislative
competence of Parliament or relate to the Federation. The august Supreme
Court of Pakistan held that:

Thus, from the above provisions of the Constitution it is clear that the Federal
Legislature has extra-territorial authority to legislate, but no such extra-territorial
authority has been invested with the Provincial Legislature. Thus, the Provincial
Legislature has no legislative competence to legislate law regulating the trade
unions functioning at trans-provincial level. Needless to observe that to deal with
such a matter, the Constitution itself has provided a mechanism i.e. entries Nos.58
and 59 in Part-I of FLL, whereby the Federal Legislature has been mandated to
legislate in order to preserve and regulate a right, which in its exercise transcends
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provincial boundaries, especially one guaranteed under Article 17 of the

Constitution. The scope of Entries Nos.58 and 59 shall be discussed in detail at
the latter part of the judgment, considering the scope of the Entries in the FLL.

17. Additionally, Entries Nos.58 and 59, which fall at the end of the Part-I of
the FLL, have their own significance. These two entries are independent and
unfettered. Entry No.58 ibid covers the “Matters which under the Constitution are
within the legislative competence of Majlis-e-Shoora (Parliament) or relate to the
Federation”. Further, Entry No.59 deals with the “Matters incidental or ancillary
to any matter enumerated in this Part”. From the plain reading of these two
Entries, it is clear that besides the subjects enumerated in the previous Entries,
these Entries provide extended powers to the Federal Legislature; inasmuch as, by
means of these Entries, the legislative competence of the Federal Legislature
extends not only to the matters which under the Constitution are within the
legislative competence of the Parliament but also to the matters which relate to
the Federation and also the matters incidental or ancillary thereto. Thus, in
addition to the matters specifically enumerated in any of the Entries in Part-I of
the FLL, the matters which in some way relate to the Federation would also fall
within the legislative competence of the Parliament. This interpretation also finds
support from the fact that in terms of Article 141 of the Constitution, a Provincial
Legislature does not possess extra-territorial legislative competence and therefore,
cannot legislate with regard to a subject which in its application has to transcend
the provincial boundaries. It is to be noted that as clarified by the learned High
Court the resort to Entry No.58 ibid could only be made to deal with an extra-
ordinary situation i.e. when a matter may fall within the legislative competence of
the Province but when it comes to its application it has to travel beyond the
territorial boundaries of the Province, bringing it into the domain of the Federal
Legislation. Thus, it is held that the federal legislature has the competence to
legislate relating to the Establishment/Trade Unions functioning at the Federal as
well as trans-provincial level. (Emphasis added)

30. In the above cited cases the august Supreme Court of Pakistan while
interpreting ‘Subject to the Constitution' in Article 142 has declared that
legislative authority can be derived from the provisions of the Constitution
stating that legislative authority is to be exercised in a manner the
Constitution permits and is not limited to Article 142 of the Constitution.
The august Supreme Court of Pakistan declared that ‘matters related to the
Federation’ under the Constitution would give legislative competence to
Parliament by way of Entry 58 of the FLL. They used the pith and substance
test on the subject matter legislated when examining legislative competence
to determine if the subject matter relates to the Federation or the Province.
The august Supreme Court of Pakistan has held that where a subject has
application beyond provincial boundaries, the Provinces could not legislate
on such subjects, as the subject would fall within the Federal domain. The
above cited cases highlight the fact that legislative competence for
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Parliament comes from several sources; firstly the FLL of the Constitution;
secondly express provisions of the Constitution; and finally on subjects
which relate to the Federation. In this regard, we also note that legislative
competence cannot be restricted to just the entries in the FLL, because the
entries in the FLL are not sources of power, rather a list of subject matters
on which Parliament can legislate. This is why the august Supreme Court of
Pakistan has repeatedly held that Entries in the FLL should be given the
widest of meaning and should be liberally construed as the Constitution is a
living document and should be interpreted with the widest possible meaning
to ensure continuity and balance amongst the organs of the state. Reliance is
placed on Pir Rashid-ud-Daula and 3 others v. The Chief Administrator of
Auqaf, West Pakistan (PLD 1971 SC 401), Fauji Foundation and another v.
Shamimur Rehman (PLD 1983 SC 457), Allah Ditta and 2 others v. The
State (1997 SCMR 891), Messrs Elahi Cotton Mills Ltd and others v.
Federation of Pakistan through Secretary, M/o Finance, Islamabad and 6
others (PLD 1997 SC 582). In 2018 SCMR 802 (supra) the august Supreme
Court of Pakistan held that after considering the legislation as a whole in
pith and substance, it has to be seen to which category or topic the
legislation relates, whether substantially or directly and not whether it would
in actual operation affect an item in the prohibited fields in an indirect way.
So an Entry should be given the widest possible meaning and include all
ancillary and subsidiary matters so as to give meaning to the legislative
power and the fact that there may be an overlap will not preclude the
Federation from having legal competence .
31. We now proceed to examine whether Parliament can legislate on the
subject of competition. Article 18 of the Constitution provides for the
fundamental right of every citizen to enter upon any lawful profession or
occupation to conduct any lawful trade or business. This right is subject to
the regulation of trade, commerce or industry in the interest of free
competition therein. So the right to enter into lawful trade, business or
profession is subject to regulations against anti-competitive behaviour which
will ensure that competition is free. The question arises who can make these
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regulations, that is who can regulate trade, commerce or industry in the

interest of free competition. As per the dicta of the Supreme Court laid down
in PLD 2012 SC 224 (supra) and in 2020 SCMR 1 (supra), the Federation is
not absolved of its duty to enforce fundamental rights notwithstanding the
18th Amendment or the fact that the subject is not listed in the FLL, as
enforcement of fundamental rights is the duty of the State, which includes
the Federal Government. Therefore, Article 18 imposes a duty on the
Federation to enforce the fundamental right and consequently requires
Parliament to regulate trade, commerce and industry to ensure free
competition. Hence regulating competition becomes a matter related to the
Federation which falls under Entry 58 of the FLL and as per the dicta of
2018 SCMR 802 (supra). This in itself is an independent source of
legislative competence as the subject matter relates to the Federation. On the
basis of Article 18 of the Constitution regulating competition is a
constitutional command to the Federal Government. Interestingly Article 18
(b) of the Constitution was introduced for the first time in the Constitution as
the freedom of trade, business or profession were never made subject to the
regulations in the interest of free competition in any of the previous
constitutions.
32. We are fortified in our view while reading Article 151 of the
Constitution. Sub-clause (1) of the said Article prescribes a constitutional
command that subject to clause (2), trade, commerce and intercourse
throughout Pakistan shall be free. Sub-clause (2) authorizes Parliament to
impose restrictions on the freedom of trade, commerce or intercourse
between one Province and another or within any part of Pakistan, in the
public interest. To our mind, the constitutional command is to Parliament
because Article 151(1) requires trade, commerce and intercourse throughout
Pakistan to be free and Article 141 of the Constitution gives Parliament the
authority to make law for the whole of Pakistan. Essentially Article 151(1)
of the Constitution is a command to remove all barriers to free trade,
commerce and intercourse throughout Pakistan and prevents the Provinces
from creating any hurdle in the way of trade, commerce and intercourse
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throughout Pakistan. While Article 151 of the Constitution casts a duty on

the Federal Government to ensure that trade, commerce and intercourse
throughout Pakistan is free, it also prohibits legislative or executive actions
by the Province which may prevent free exchange and free movement of
articles of trade and commerce throughout Pakistan. Any constraints on
these subjects by the Province would be in derogation to the constitutional
guarantee of free trade, commerce and intercourse throughout Pakistan. In
this context the use of the words ‘trade, commerce and intercourse’ are
important as is the concept of ‘throughout Pakistan’ and the use of the word
‘free’ in Article 151 (1) of the Constitution. ‘Trade, commerce and
intercourse’ refers to a class of economic activities which includes buying,
selling, transport, distribution and consumption. Essentially it includes acts,
transactions and conduct related to these activities. The emphasis on the
term ‘intercourse throughout Pakistan’ in Article 151(1) of the Constitution
is also significant as it entails a broad spectrum of commercial activities
throughout Pakistan and not just between Provinces. The definition of
‘intercourse’ in Basus’s Commentary on the Constitution of India (8th
Edition Reprint 2012) is as follows:
The expression ‘intercourse’ means commercial intercourse. According to
eminent juris H.M. SEERVAI, since Art. 301 is a fetter on legislative power, it
must follow that there was some legislative power which required a fetter. In none
of the legislative lists is “intercourse” by itself a subject of legislative power,
although trade and commerce appear in all legislative lists. Therefore,
“intercourse” must mean “commercial intercourse” and is covered by the
legislative entries relating to trade and commerce.

So commercial intercourse may cover all activities which are not included in
the ambit of trade and commerce, being instrumentalities of trade and
commerce. Furthermore, Article 151(1) of the Constitution declares that
trade, commerce and intercourse must be free throughout Pakistan which
means that the command is not limited to any territorial boundaries, but must
be effective throughout the country. Therefore, Article 151 (1) and (2) of the
Constitution is not limited to interprovincial trade and commerce as stated in
Entry 27 of the FLL as its application is beyond interprovincial acts,
transaction and conducts within the ambit of trade, commerce and
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intercourse. The term ‘free’ in Article 151(1) and ‘freedom’ in Article

151(2) means not only should there be no barriers, hurdles or interference
but the right to exercise the freedom is also without any constraints. The
significance of trade, commerce and intercourse being free is that it calls for
unification and promotes a national interest as these activities are a part and
parcel of the national economy. Article 151(1) and (2) of the Constitution
therefore propounds the constitutional mandate of a national economy and a
free market. The intent of the framers of the Constitution is clear from the
debates on Article 151 of the Constitution which calls for one economic unit,
one economic system. The requirement that the specified class of economic
activity be free, essentially means free from all barriers, structural and
behaviour, free from any interference and restraints and includes free
exchange and movement of goods, persons and things (tangible or
intangible). Article 151(2) of the Constitution provides that if at all any
restrictions are to be imposed on the declared freedom, it can only be by
Parliament. Hence the Constitution gave Parliament the authority to restrict
the freedoms declared in Article 151(1), but only in the public interest. The
word ‘restrictions’ relates directly to the declared freedom meaning thereby
that Parliament can impose limitations or prohibitions on the freedom, if
required. The nature of the restrictions will depend on the act, transaction or
conduct which is part of trade, commerce and intercourse if questioned and
the test will always be does the law in question leave trade, commerce and
intercourse free.
33. The Petitioners have argued that Article 151 of the Constitution does
not confer legislative competence on Parliament but merely allows
Parliament the imposition of restrictions on the free flow of goods and
services between Provinces because if Article 151 of the Constitution is
considered as an independent source of legislative power it will allow the
Federation to enforce subjects which are not in the FLL of the Constitution.
The Petitioners also argue that Article 151 is relatable to Entry 27 of the
FLL which provides that Parliament can make laws related to inter-
provincial trade and commerce, therefore at best Parliament can make law
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on competition so long as it relates to inter-provincial trade and commerce

but not intra-provincial trade and commerce. So the Petitioners argue that
Parliament can legislate on competition, but only to the extent of inter-
provincial trade and commerce. Consequently the Petitioners do not dispute
the position that to the extent of matters related to anti-competitive
behaviour which transcends Provincial boundaries, Parliament is competent
to make laws on the subject of competition. During the course of arguments
they stated that the subject of competition is not in the FLL of the
Constitution, because this subject falls exclusively in the provincial domain,
however where the impact of the act, transaction or behaviour transcends
provincial boundaries then the Act will have effect subject to the fact that its
application is construed to the extent of interprovincial trade and commerce.
34. We have heard the learned counsel for the Petitioners at length,
however we do not agree with their interpretation of Article 151 of the
Constitution. In the first instance Article 151 declares a constitutional policy
for the whole of Pakistan, in the national interest and for its economic well
being. Article 151 requires that there are no barriers on trade, commerce and
intercourse throughout Pakistan which means that there is a free market
throughout Pakistan for the benefit of the public, to ensure economic
efficiency and consumer welfare. It essentially calls for an open market to
protect the economy from different legislations or executive acts which can
act as an impediment or a restriction or a barrier or embargo on the act,
transaction or behaviour in furtherance of the freedom of trade, commerce
and intercourse throughout Pakistan. Accordingly the freedom so declared
by Article 151 (1) of the Constitution is in the interest of uniformity and
national interest giving the Federal Government control over the national
economy, while allowing the Provinces to operate within the scheme of a
single economic unit. The Constitutional declaration for free trade and
commerce is a declaration which authorizes the Federation to regulate the
national market in whatsoever way that best serves the nation’s welfare. As
the constitutional command calls for free trade, commerce and intercourse
throughout Pakistan, the subject matter of trade, commerce and intercourse
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throughout Pakistan is directly related to the Federation (Entry 58). This is

amplified by the fact that Article 151(2) authorizes Parliament to impose
restrictions on the free flow of goods and services and on the free market in
the public welfare. Furthermore, when seen in the context of Article 18,
where Parliament can regulate the individual’s freedom to trade, business
and profession so as to ensure that this right be enjoyed with free and fair
competition in the market, Article 151(1) and (2) is in the national interest,
for the benefit of the public, to promote economic welfare and efficiency. It
calls for a free and fair national economic market, which is for the benefit of
the public at large. Furthermore Article 151(1) provides for freedom of
trade, commerce and intercourse throughout Pakistan which means reliance
on Entry 27 of the FLL is misplaced as the said Entry refers to inter-
provincial trade and commerce, meaning that only matters confined to inter-
provincial trade and commerce fall within its ambit. Article 151(1) of the
Constitution however applies throughout the country and is not limited to
inter-provincial trade and commerce and its application is not limited to
inter-provincial matters. While interpreting the Constitution, its application
and meaning cannot be limited on account of an Entry in the FLL. Hence the
application of Article 151(1) of the Constitution to just inter-provincial trade
and commerce goes against the constitutional mandate in Article 151 of the
Constitution. In this context, it is important to note that Entry 27 refers to
‘inter-provincial trade and commerce’ whereas Article 151(1) and (2)
provides for ‘trade, commerce and intercourse throughout Pakistan’ making
it clear that Article 151(1) and (2) is not relatable to Entry 27 of the FLL. As
already stated the use of the word ‘intercourse’ is a deliberate attempt to
bring all activities being instrumentalities of trade and commerce within the
ambit of Article 151(1) of the Constitution and keeping it distinct from Entry
27 of the FLL. Even when compared in the historical context, Article 131(2)
of the 1962 Constitution gave the central legislature the power to make law
for the national interest of Pakistan where economics and financial stability
was involved. Hence as per the constitutional mandate, the subject of trade,
commerce, industry and intercourse between Provinces is related to the
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Federation. Parliament can regulate trade, commerce and industry and it can
impose restrictions on the freedom of trade, commerce or intercourse
between the Provinces or within any part of Pakistan in the interest of free
trade, commerce and intercourse throughout Pakistan. This shows that a
uniform economic policy geared to economic efficiency for consumer
welfare is at the very root of Pakistan being a federal state. Therefore Article
151 (1) and (2) of the Constitution balances the power between the
Federation and the Provinces giving the Federation control over a set of
economic activities which have a direct nexus or effect on the national
economy, in the public interest. Furthermore, Article 151(1) and (2) of the
Constitution are not just limited to inter-provincial trade and commerce
rather requires trade, commerce and intercourse to be free throughout
Pakistan which means that this free market is not limited to just
interprovincial trade and commerce rather it takes the constitutional
command beyond the realm of inter-provincial trade and commerce and calls
for a free market and a national economy which has to be protected by the
Federation, within which the Provinces can legislate subject to the
provisions of the Constitution. When seen in the context of the Act, it is
noted that the issue before the CCP will always be the prohibitions contained
in Chapter II of the Act. These prohibitions essentially prevent anti-
competitive behaviour. Hence where the behaviour is seen as being anti-
competitive, it will be seen in the context of the relevant market, be it
product or geographic. In this context the application of the Act is not
limited to inter-provincial disputes but disputes where anti-competitive
behaviour will impact the relevant market. One of the key features of
competition law is market integration by protecting market structures and
economic freedom. Hence the Act cannot be restricted in its application to
inter-provincial issues as the Act applies to the whole of Pakistan.
35. The Act was promulgated on 6.10.2010 after the 18th Amendment
which was promulgated on 19.4.2020. The Petitioners argue that provincial
autonomy was at the heart of the 18th Amendment and that if at all trade,
commerce and commercial intercourse is to be regulated then based on
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Article 142 (c) of the Constitution it can only be by the Provinces. A lot has
also been said with reference to regulating in the interest of free trade under
Article 18 and imposing restrictions on the freedom of trade, commerce and
intercourse under Article 151 of the Constitution. However, we find that the
central theme of the Petitioners’ argument is that all legislative authority has
to be read in conjunction with Article 142 of the Constitution, specifically
Article 142(a) and (c). We have already held that the provisions of Article
142 of the Constitution are subject to other provisions of the Constitution
and as per the dicta laid down by the august Supreme Court of Pakistan,
legislative competence is not restricted to Article 142 of the Constitution. In
this context Article 18 read with Article 151 and Entry 58 of the FLL of the
Constitution gives Parliament the authority to legislate on the class of
economic activities which fall under trade, commerce, industry and
intercourse for the benefit of the national economy. We also find that Article
151 (1) and (2) of the Constitution does not impede on the autonomy of the
Provinces post 18th Amendment, because the purpose of Article 151 (1) and
(2) of the Constitution has always been the ability to have a single economic
unit giving the Federation the authority to act in the interest of the national
economy notwithstanding the 18th Amendment. Accordingly after the 18th
Amendment it calls for a balance of power between the Federation and the
Provinces such that the goals of the national economy are maintained.
36. In view of the aforesaid, Parliament can legislate on the subject of
trade, commerce, industry and intercourse so as to keep it ‘free’ throughout
the country and in the interest of free competition. What needs to be seen is
whether the subject of competition falls within Parliament’s competence that
is whether the subject of competition is related to Article 18 or Article 151
of the Constitution that is trade, commerce and intercourse throughout
Pakistan. In order to answer this question, it is necessary to ascertain
whether the subject of competition falls within the scope of trade, commerce
and intercourse (Article 151) and industry (Article 18). Essentially we have
to determine whether the Act or the subject matter of the Act falls within the
federal domain for enforcement of the command under Article 151 and
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Article 18 of the Constitution. The US experience with the ‘commerce

clause’ best highlights the difficulties in defining the limits of Congress to
regulate commerce amongst the several States. The United States
Constitution, Section 8(3) authorizes Congress to regulate commerce with
foreign nations and amongst the several states and with Indian tribes. The
United State Constitution specifically authorizes regulating between the
States hence, its powers are to regulate interstate commerce. The central
question before the United States Supreme Court with respect to the
commerce clause has been what constitutes commerce amongst the States. In
Gibbons v. Ogden 22 U.S 1 (1824), the question before the Supreme Court
was whether a state law is invalid because it infringes upon Congress
authority to regulate interstate commerce. The U.S Supreme Court held that
interstate commerce includes navigation of steam boats amongst the several
States. The Supreme Court allowed Congress to regulate the navigation of
steam boats due to its impact on commerce, which was held to be a complete
power with no limitation other than that prescribed by the court. After a long
period of holding in favour of Congress, in United States v. Lopez, 514 U.S
549 (1995), the Supreme Court of the United States held a statute to be
unconstitutional because it exceeded Congress’ power to regulate commerce.
At the time the court took a narrow meaning of the word ‘commerce’,
relating it to the original or textual meaning of commerce which was limited
to trade and exchange of goods and transportation. The Supreme Court held
that the test is whether regulated activity substantially affects interstate
commerce. If it does not affect commerce then Congress cannot make law
on the subject. Over the years, this view evolved with a more liberal
interpretation of the word ‘commerce’. In NLRB v. Jones and Laughin Steel
Corp. 301 U.S. 1 (1937), the Court used the substantial and economic effect
test and the cumulative effect test on commerce to determine Congress
authority. In Gonzales v. Raich, 545 U.S. 1 (2005), the Supreme Court
upheld federal regulations by linking it to economic activity. Raich stated
that commercial activity was a subset of economic activity which can be
regulated by Congress. The Court observed that Congress can regulate local
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activities that are part of the economic class of activities that affect interstate
commerce. The problem then centered on, the definition of economic
activity and how to characterize it. So the Supreme Court used the
substantial effects test and the cumulative effect test to ascertain whether the
challenged statutes were related to national economic activity. If so, it would
fall in Congress’ domain. In Wickard v. Filburn (317 US 111 (1942), the
Supreme Court increased the regulatory domain of Congress by holding that
Congress could regulate local economic activity in ways in which the States
cannot effectively control the national economy. Hence the Court also
looked at whether the law or regulation had some nexus or impact on the
economy. Essentially through the cases it appears that the Supreme Court of
the United States looked for some palpable connection with the national
economy to give Congress authority. Furthermore, the Supreme Court of the
United States used the ‘commerce clause’ essentially to balance the power
between the Federal and State governments. Accordingly the objective of the
commerce clause has evolved to enforce a national economy and all matters
related to it.
37. The commerce clause is similar to Article 151(2) of the Constitution
but there is no parallel to Article 151(1) of the Constitution in the
Constitution of United States. In the above context, the august Supreme
Court of Pakistan has applied the pith and substance test to ascertain the
purpose of the law and to ascertain whether the subject matter legislated on
is related to the Federation. While construing legislative competence, this
Court must preserve the basic scheme of the Constitution which is embodied
in Article 151(1) and (2) of the Constitution. It is the essence of a federal
constitution that legislative authority is demarcated between the Federation
and the Provinces so that each functions within its domain. Therefore it is
the duty of this Court to determine whether Parliament has the authority to
deal with the subject matter of ‘competition’ while applying the pith and
substance test to the Act to ascertain whether the Act is Federal or Provincial
by its construct and if the application of the Act is beyond territorial
boundaries, it will fall within the Federal domain. The preamble of the Act
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provides the intent of the legislature to make a law to provide free

competition in all spheres of commercial and economic activities to enhance
economic efficiency and to protect consumers from anti-competitive
behaviour. Hence the objective of the Act is economic welfare and consumer
welfare. The Act sets out to improve economic efficiency through its
regulatory mechanism by prohibiting anti-competitive behaviour as it
impacts all spheres of commercial and economic activity. By its very intent
the Act has a national interest. It calls for a uniform approach to anti-
competitive behaviour so as to improve the economy and protect the
consumer by ensuring that free competition prevails. Consumer welfare
means all things that are good for the consumer such as price, quality and
choice which is why the Act is designed to promote economic growth. When
seen in the comparative context of the MRTPO which was promulgated in
pursuance of Article 131(2) of the 1962 Constitution it also aimed to ensure
economic and financial stability in the national interest. Therefore both laws
aimed to ensure a free market with free competition in all spheres of
commercial and economic activity to boost economic efficiency and
required a unified approach to this subject as it involves the welfare of all
consumers. The Act prohibits certain anti-competitive behaviour which
impacts the product market and the geographic market which in turn can
impact the economy. The Act prohibits abuse of a dominant position in the
relevant market by controlling practices in which a dominant organization
may engage in order to increase its position in the market. Such dominance
can impact prices, productivity and quality which affects economic welfare.
Since the relevant market is either product based or geographic, its reach is
not confined to provincial boundaries. In the same way, the Act prohibits
anti-competitive agreements and deceptive marketing practices and regulates
mergers as a means to increase consumer welfare. Hence, the Act aims to
promote free competition between undertakings and to remedy structural and
behavioural problems and it advances an economic policy aimed at
protecting consumer interests. This in turn means that the behaviour sought
to be controlled and its effects are not contained in any one territory as the
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impact is based on the market and the market players have presence based
on the market they serve. Consequently, the structures and behaviour sought
to be regulated has its nexus with trade, commerce, industry and intercourse
throughout Pakistan. Therefore, the Act by its very nature is federal in
character because it is not confined to any territorial limits since it regulates
the market, which can be geographic or based on the product. The relevant
market is part of the larger scheme of one economic unit, which means that
any anti-competitive behaviour in the relevant market must be regulated as
per the Federal policy for the benefit of the economy due to its impact on the
national economy.
38. Accordingly the Act eliminates activities that reduce competition in
the market place and embodies a scheme of economic regulation to achieve
the purpose of economic efficiency. In this way it is directly related to trade,
commerce and industry and is in furtherance of economic and consumer
welfare. It also ensures that trade, commerce and intercourse are free as
required under Article 151 (1) of the Constitution and allows the freedom
under Article 18 of the Constitution to be effectively enforced. Competition
as a subject cannot be effectively regulated if it is confined to territorial
boundaries, because competition law regulates anti-competitive behaviour
which can take place in one geographic market and effect another
geographic market. Anti-competitive behaviours may exert substantial
economic effect which is why it requires federal regulation. It is therefore,
part of the constitutional scheme aimed at preventing unfair market
practices, which hamper free and fair competition and affect trade and
commerce along with all its instrumentalities, as the presence of healthy
competition will affect the welfare of the national economy. As per the
United Nations Set of Principles and Rules on Competition, free competition
enhances economic efficiency and protects the consumers. Therefore the
purpose of the Act is federal and its enforcement is related to the Federation
as the Act was promulgated for the benefit of the national economy.
39. Accordingly we find that Parliament is competent to legislate on the
subject of competition as the very purpose of the said subject relates to the
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Federation since it impacts and benefits the national economy and

consumers at large. Not only is this in furtherance of the fundamental right
under Article 18 of the Constitution, it is also in furtherance of Article 151
of the Constitution that is to ensure that trade, commerce and intercourse
throughout Pakistan is free. This mandate travels beyond the territorial limits
of the Provinces and is a specific command to the Federation. Since the
requirement of maintaining free competition throughout Pakistan is beyond
the territorial limits of the Province, the subject matter of ‘competition’ falls
within the federal domain. In this context, it is important to note that the
entire dispute before us is that competition is a provincial subject after the
18th Amendment. However, we find that the true spirit of the 18 th
Amendment was to balance power between the Federation and the
Provinces, such that the Provinces have an equitable share in the Federation.
This is evident from the debates on Article 151 of the Constitution. The
constitutional mandate under Article 151 and the constitutional duty in terms
of Article 18 have not eroded post 18th Amendment and continue to require
the Federation to exercise its authority on the subject of competition as it is
the duty of the Federation to enforce fundamental rights and act in the
national interest to promote economic efficiency. This freedom is not limited
to just movement of goods, but entails the requirement of a free market
throughout Pakistan. The freedom of trade and commerce is not just
amongst the Provinces but will include areas within the Provinces. Situations
may require the Federation to impose restrictions within the Province, to
maintain uniformity and efficiency, because centers of production of certain
commodities may be situated within one Province but the market for
consumption may be located outside the Province. Hence Article 151 of the
Constitution calls for a dynamic process of government with shared
responsibilities in line with the structure of a Federal Government. The 18th
Amendment did not intend to take away the constitutional authority of the
Federal Government and Parliament rather it enhanced the authority of the
Provinces by giving everything in the Concurrent Legislative List to the
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Provinces. Whether the Provinces can also legislate on the subject of

competition is not before us, hence we have not deliberated on this issue.
40. Having held that Parliament is competent to make law on the subject
of competition, in this context, it is also necessary to examine Entry 3 and
Entry 32 of the FLL which also creates an obligation on the Federation to
make law on the subject of competition. Entry 3 relates to external affairs
which include implementing treaties and agreements and Entry 32 is the
subject of international treaties, conventions and agreements as well as
international arbitration. Pakistan has signed several international
agreements in which it has committed to ensure free and fair competition
within its borders. The World Trade Organization requires free trade
amongst Member States and in this regard requires that Member States make
laws to discourage monopolies with a view to promote competition. In a
meeting of the World Trade Organization held in Doha, a declaration was
adopted known as Doha Declaration in 2001 which focused on core
principles such as transparency, non-discrimination and competition.
Pakistan is required to comply with the same. The United Nations
Conference on Trade and Development and the United Nations Set of
Principles and Rules on Competition (“UNCTAD”) requires that Member
States make appropriate legislation on the subject of competition. The
objective of the UNCTAD is to ensure that restricted business practices do
not impead or negate the realization of benefits that should arise from the
liberalization of trade and to attain greater efficiency in international trade,
particularly that of developing countries, by stressing on economic structures
that encourage and protect free and fair competition and prohibit the
concentration of economic power or capital in a few hands. Some of the
other agreements executed by the Federal Government with respect to free
trade is the SAFTA and the trade agreements with Sri Lanka and China.
These agreements also require the Federation to fulfil its obligation to
provide fair conditions of competition for trade in goods and services
between these countries. Therefore the Federation is obligated to fulfill its
commitments under international treaties and agreements and since the
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subject of competition is the subject matter of international agreements and

treaties, Parliament can make law on the subject of competition. Reliance is
placed on 2018 SCMR 802 (supra).
41. Counsel for CCP pointed out that WP Nos.15624/2009, 4574/2012,
20280/2012, 21105/12 and 39346/2015 have been filed by Associations such
as All Pakistan Cement Manufacturers Association, GCC Approved Medical
Centres Association, GCC Approved Medical Diagnostic Centres
Administrative Office. These Associations represent their members from
across Pakistan, hence their entire claim that they cannot be governed by the
Act because the law should be Provincial is without basis given that their
own cases transcend provincial borders. We also note that from amongst the
Petitioners before the Court, several represent multi-nationals who have
businesses throughout Pakistan and their challenge with respect to
Parliament’s competence is also without basis given that these Petitioners
have businesses throughout Pakistan and by their own admission Parliament
can legislate on competition law when the matter transcends provincial
borders. The Petitioners in WP Nos.3530/10, 3534/10, 3537/10, 93165/17,
3538/10, 3750/10, 25296/15, 104015/17, 63067/19, 26929/15, 30824/15 and
24863/15 have been filed by multi-nationals such as Telenor, Mobilink,
Warid, UFone and Zong, Nestle, Unilever, Shezan International, Master
Paints. These Petitioners have offices throughout Pakistan and as per the
information provided by the Counsel for the CCP, the relevant market in all
these cases is throughout Pakistan. Similarly the Petitioners falling under the
healthcare sector were issued show cause notices on 9.2.2012 alleging price
fixation and cartel like behaviour. Subsequently an order was passed under
the Act on 29.6.2012. The GCC Approved Medical Centres Association
(WP No.20280/12) have medical centres located throughout Pakistan in the
cities of Islamabad, Karachi, Multan, Lahore and Peshawar, hence the
relevant market in this case, as concluded by the CCP was Pakistan. In the
same way with reference to the Cement Sector, the All Pakistan Cement
Manufactures Association is before this Court in WP No.15624/09 along
with separate petitions filed by its members. Show cause notices were issued
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to all members on 28.10.2008 containing allegations of cartel like behaviour,

where the geographic market was throughout Pakistan. In the telecom sector,
the Petitioners before the Court are Telenor, Mobilink, Warid, UFone and
Zong who have been issued show cause notice on 4.2.2010 for violation of
Section 4 of the Act and again the relevant geographic market is Pakistan,
AJK and the Northern Areas. The Petitioners such as Nestle Pakistan,
Master Paints, Shezan International, Meezan International and Unilever have
all been issued show cause notices for deceptive market practices and they
all have businesses throughout Pakistan, hence the relevant market is
Pakistan. With respect to the oil and gas sector, fertilizer sector, power
sector, the position is the same. Hence the case of the Petitioners that
Parliament cannot legislate on competition law is without basis given that by
their own admission Parliament is competent to legislate on a competition
law when it relates to matters beyond provincial borders.
42. In view of the above neither the Ordinances nor the Act are ultra vires
the Constitution for want of legislative competence nor can the
Constitutional mandate be read down limiting the application of the Act to
interprovincial matters. The Federal legislature is therefore competent to
enact law on the subject of competition under the Constitution.
(B) Exercise of judicial powers by the CCP which is not a court
43. Counsel for the Petitioners argued that the CCP as established under
the Act exercises judicial power which is against the mandate of Article 175
read with Article 203 of the Constitution. It is their case that the CCP is not
independent from the executive, hence it cannot exercise judicial powers as
laid down in Government of Balochistan through Additional Chief Secretary
v. Azizullah Memon and 16 others (PLD 1993 SC 341) and Mehram Ali
Case. The Counsel argued that the CCP exercises judicial power because it
decides on factual disputes after examining evidence and passes orders
holding individuals and entities liable for various ‘wrongs’ specified in the
Act and subjects them to penal fines. They argued that these functions of the
CCP do not involve the implementation of any policy or exercise of
administrative discretion. As to the other functions of the CCP, they are
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distinct and severable from the CCP’s judicial functions. Consequently the
provisions of the Act, in particular, Sections 14(2), 14(4), 17, 19 related to
the composition of the CCP and appointment of members that purely are
through an executive decision, without consultation with the Chief Justice of
Pakistan, makes the Act ultra vires the Constitution as laid down in the
Mehram Ali Case. Learned counsel further argued that CAT as established
under Section 43 of the Act also exercises judicial power of the State. It
hears appeals from the order of the CCP, examines the evidence and decides
on the basis of law whether the orders made by the CCP are in accordance
with the law or not. Even the appointment process of members of CAT is not
independent from the executive as there is no consultation with the Chief
Justice of Pakistan. Consequently Section 43 of the Act is ultra vires the
Constitution. The Counsel further argue that the CCP is a complainant,
investigator, prosecutor, judge, appellate body and executioner all at the
same time which by itself is unconstitutional and offends the requirements of
due process. They argue that the CCP also fails to meet the test laid down in
Mehram Ali Case for exercise of judicial power as it is not subject to the
supervision and control of the High Court as required under Article 203 of
the Constitution. Therefore the grievance of the Petitioners is that the Act
and the Ordinances are ultra vires the Constitution as they create a parallel
judicial system in violation of Article 175 and 203 of the Constitution.
44. The AGP argued that the CCP is a regulatory authority established to
achieve a regulatory objective. That regulatory authorities are constituted
under different laws such as Oil and Gas Regulatory Authority (“OGRA”),
National Electric Power Regulatory Authority (“NEPRA”) under the
Securities and Exchange Commission of Pakistan (“SECP”), the Drug
Regulatory Authority of Pakistan (“DRAP”) Pakistan Telecommunication
Corporation, (“PTA”) Pakistan Electronic Media Regulatory Authority,
(“PEMRA”) and the Regulation of Generation, Transmission and
Distribution of Electric Power (“NTDC”) to quote a few. All have similar
functions and also have an appellate authority to hear appeals against its
orders, as does the Act. That laws such as Income Tax Ordinance, 2001,
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Customs Act, 1969, Sales Tax Act, 1990, Anti-Dumping Duties Act, 2015,
Trade Mark Ordinance, 2001 also provide for similar mechanism of inquiry,
investigation and adjudication by the statutory authority, departmental
appeals followed by an appeal to the High Court or in the case of Election
Laws an appeal to the Supreme Court of Pakistan. He has placed reliance on
the Army Welfare Trust (Nizampur Cement Project), Rawalpindi and
another v. Collector of Sales Tax (Now Commissioner Inland Revenue),
Peshawar (2017 SCMR 9) (Army Welfare Trust Case) to urge the point
that the CCP and CAT established under the Act are not a ‘court’ under
Article 175 of the Constitution nor a ‘tribunal’ under Article 212 of the
Constitution. He argued that there is no prohibition under the Constitution to
set up tribunals under a regulatory statute as the same is not covered under
Article 175 or 212 of the Constitution.
45. The counsel for the CCP explained that the functions of the CCP are
quasi-judicial and not equivalent to that of a Court, as contemplated in
Article 175 of the Constitution. The CCP is a regulatory authority with a
given regulatory objective. All actions taken are pursuant to the regulatory
objective, which is to regulate anti-competitive behaviour. Hence where an
undertaking acts as per the prohibited sections, the CCP is required to
regulate the undertaking and restore free competition. In doing so the CCP
issues notices and gives an opportunity of hearing, which is in line with the
principles of due process which is mandatory in any decision making
process. The CCP also performs administrative functions as detailed in the
Act which is why it’s a quasi-judicial authority. So far as CAT is concerned
it decides matters against the orders of the CCP which orders are based on
market dynamics and economics which is why CAT has two technical
members and one legal member. Therefore, they argue that there is no merit
in this argument.
46. The relevant provisions of the Constitution are Articles 175, 202 and
203 which are as under:-

Article 175 (1) There shall be a Supreme Court of Pakistan, a High Court for
each Province and a High Court for the Islamabad Capital Territory
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and such other courts as may be established by law.

(2) No court shall have any jurisdiction save as is or may be
conferred on it by the Constitution or by or under any law.
(3) The Judiciary shall be separated progressively from the
Executive within fourteen years from the commencing day.

Provided that the provisions of this Article shall have no

application to the trial of persons under any of the Acts mentioned at
Serial No.6 and 7 of sub-part III of Part I of the First Schedule, who
claim, or are known, to belong to any terrorist group or organization
misusing the name of religion or a sect.
Article 202 Subject to the Constitution and law, a High Court may make rules
regulating the practice and procedure of the Court or of any court
subordinate to it.
Article 203 Each High Court shall supervise and control all courts subordinate to it.

The thrust of the Petitioners’ case lies in the Mehram Ali Case wherein five
Hon’ble Judges of the august Supreme Court of Pakistan deliberated on the
issue of establishment of special courts under the Anti-Terrorism Act, 1997
(“ATA”) and whether these courts are ‘courts’ contemplated under Article
175 of the Constitution. In the Mehram Ali Case, the august Supreme Court
of Pakistan, while considering special courts established under the ATA,
essentially examined whether the special courts meet the requirements of
Article 175 and 203 of the Constitution. The context being that under the
Constitution courts as provided in Article 175 have to be independent from
the executive so as to maintain separation of power and independence of
judiciary as interpreted in the Government of Sindh through Chief Secretary
to Government of Sindh, Karachi and others v. Sharaf Faridi and others
(PLD 1994 SC 105) and Sharaf Faridi and 3 others v. The Federation of
Islamic Republic of Pakistan through Prime Minister of Pakistan and
another (PLD 1989 Karachi 404). In the Mehram Ali Case, the august
Supreme Court of Pakistan concluded that Articles 175, 202 and 203 of the
Constitution provide the framework and hierarchy of the judiciary, which
includes the Supreme Court of Pakistan, the High Court of each province
and such other courts as may be established by law. The Mehram Ali Case
specifically held that:

(i) That Articles 175, 202 and 203 of the Constitution provide a framework of
Judiciary i.e. the Supreme Court, a High Court for each Province and such
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other Courts as may be established by law.

(ii) That the words “such other Courts as may be established by law”
employed in clause (1) of Article 175 of the Constitution are relatable to
the subordinate Courts referred to in Article 203 thereof.
(iii) That our Constitution recognises only such specific Tribunal to share
judicial powers with the above Courts, which have been specifically
provided by the Constitution itself Federal Shariat Court (Chapter 3-A of
the Constitution), Tribunals under Article 212, Election Tribunals (Article
225). It must follow as a corollary that any Court or Tribunal which is not
founded on any of the Articles of the Constitution cannot lawfully share
judicial power with the Courts referred to in Articles 175 and 203 of the
Constitution.
(iv) That in view of Article 203 of the Constitution read with Article 175
thereof the supervision and control over the subordinate judiciary vests in
High Courts which is exclusive in nature, comprehensive in extent and
effective in operation.
(v) That the hallmark of our Constitution is that it envisages separation of the
Judiciary from the Executive (which is founded on the Islamic Judicial
System) in order to ensure independence of Judiciary and, therefore, any
Court or Tribunal which is not subject to judicial review and
administrative control of the High Court and/or the Supreme Court does
not fit in within the judicial framework of the Constitution.
(vi) that the right of “access to justice to all” is a fundamental right, which
right cannot be exercised in the absence of an independent judiciary
providing impartial, fair and just adjudicatory framework i.e. judicial
hierarchy. The Courts/Tribunals which are manned and run by executive
authorities without being under the control and supervision of the High
Court in terms of Article 203 of the Constitution can hardly meet the
mandatory requirement of the Constitution.
(vii) That the independence of judiciary is inextricably linked and connected
with the process of appointment of Judges and the security of their tenure
and other terms and conditions (Emphasis added)

The august Supreme Court of Pakistan concluded that where a court or

tribunal is established under the Constitution, it must be separate from the
executive to ensure independence of the judiciary. The reason as explained
in the judgment is that the judiciary is a branch of government which is
vested with the judicial power of the State in the same way as the executive
exercises executive power and the legislature has legislative power. Hence
Article 175(3) of the Constitution requires independence of the judiciary
from the other branches of the State so that it can perform its functions
effectively, in the constitutional spirit. The Petitioners’ case is that any
forum that seeks to exercise judicial power, must comply with the
requirements of independence and separation of the judiciary from the
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executive and the legislature as mandated under Article 175 of the

Constitution. In support of their contentions, the Petitioners argue that the
CCP exerts judicial power which can be derived from the nature of the
orders it passes, enforcement powers and the adversarial nature of
proceedings. The AGP however disagreed with their contentions on the
ground that the CCP is not a ‘court’ as it is a regulatory authority which
decides specialized matters strictly under the Act and as such their functions
do not fall under the concept of ‘judicial power’. Further that the Act is
regulatory in nature in pursuance of a regulatory policy, hence disputes can
be decided by the statutory authority and its regulatory tribunals.
47. In the Army Welfare Trust Case, the constitutionality of the Sales Tax
Appellate Tribunal was not under challenge. The question before the Court
was with reference to the nature of the orders of the appellate tribunal under
the Sales Tax Act in order to answer the question of maintainability of the
CPLA. Three Hon’ble Judges of the august Supreme Court of Pakistan
concluded that the Sales Tax Act does not establish an Appellate Tribunal
rather uses the Appellate Tribunal established under the Customs Act, 1969;
that the Tribunal comprises of one Judicial and one Technical Member
appointed by the Federal Government. The Federal Government also
appoints the Chairman and determines the terms and conditions of the
Judicial and Technical Members. Therefore by its very composition, the
Appellate Tribunal is not a ‘court’ as contemplated in Article 175 of the
Constitution. The august Supreme Court of Pakistan also concluded that the
Appellate Tribunal cannot be equated with the Tribunal under Article 212 of
the Constitution which exercises judicial powers. The Court held that the
Sales Tax Appellate Tribunal was not mentioned or provided for under the
Constitution, therefore it cannot be equated to the Tribunal envisioned under
the Constitution. Reliance was placed on Sh. Riaz-ul-Haq and another v.
Federation of Pakistan through Ministry of Law and others (PLD 2013 SC
501) (“Riaz ul Haq Case”) where the appointment of the Chairman and
Members of the Service Tribunal were under challenge on the ground that
the service tribunal performs judicial functions and falls within the definition
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of ‘court’ under Article 175 of the Constitution, hence should be separated

from the executive. The august Supreme Court of Pakistan clarified that
Federal and Provincial Service Tribunals are established pursuant to Article
212 of the Constitution, hence they must be independent from the executive
as contemplated under Article 175 of the Constitution because they have
been established by way of a constitutional mandate and exercise judicial
powers. Hence their separation from the executive is imperative for exercise
of judicial power.
48. We have heard the Counsel for the Petitioners, the CCP and the AGP
and have gone through the precedents relied upon. We find that the
application of the Mehram Ali Case is misconceived when seen in the
context of the CCP. It is important to note that the Mehram Ali Case was
examining a special court, established under the law, in the context of
Article 175 of the Constitution. Hence the august Supreme Court of Pakistan
concluded that ‘courts’ established under the law as per Article 175(1) of the
Constitution fall within the hierarchy of the judiciary hence relatable to
subordinate courts referred to in Article 203 of the Constitution, because the
courts that are established have to be subordinate to the High Courts. Article
212 of the Constitution establishes Administrative Courts or Tribunals to
exercise exclusive jurisdiction with reference to the matters listed in Sub-
Clause (a) to (c) of the said Article. The Mehram Ali Case states that
tribunals established under Article 212 of the Constitution, having a
constitutional mandate, must also be separate from the executive and fulfil
the conditions of being independent from the executive as stated in Article
175 (3) of the Constitution. The raison d’etre as per the Mehram Ali Case is
that the specific tribunals established under the Constitution exercise the
judicial power of ‘courts’ under Article 175 of the Constitution, such as the
tribunals under Article 212, the election tribunal under Article 225 and the
Federal Shariat Court under Article 203C of the Constitution. The Court also
clarified that any tribunal or Court not founded on any provision of the
Constitution cannot exert judicial power. Therefore the Mehram Ali Case
examined a special court, which was established to carry out judicial
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functions and in the context of the exercise of its judicial power required
independence from the executive.
49. The word ‘judicial power’ has not been defined under the
Constitution, but it is related to the functions of the judiciary under Article
175 of the Constitution. It is important to also note that there is no vesting of
judicial power in the courts under the Constitution rather it has been
interpreted as the constitutional concept when construed in comparison to
the functions of the legislature and executive. Reliance is placed on
Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad
(1997 SCMR 141). A distinction therefore has to be drawn between ‘courts’
which form part of the judicial system and the functions of regulatory or
administrative authorities established under the law. In this regard, Justice
Fazal Karim opined in Fauj Din and another v. Akhtar Mahmood Khan,
Additional District Judge, Multan and 4 others (PLD 1988 Lahore 352)
that:
10. In Attorney-General v. B.B.C.(1981) A C 303) the question before the
House of Lords of England was whether the local valuation Court was a Court
coming within R.S.C. Ord.52, rule I, which empowered the Divisional Court of
the Queen’s Bench Division to make an order of committal where the contempt of
Court was committed in connection with “proceedings in an interior Court”. Local
Valuation Courts were created by section 44 of the Local Government Act 1948.
It was held that the local valuation Court was a Court but this lavel did not
necessarily mean that it was an “inferior Court”; the Divisional Court’s
jurisdiction did not extend to all Courts created by the State; a distinction has to
be drawn between Courts which discharge judicial functions and those which
discharge administrative functions, between Courts of law which form part of the
judicial system of the country on the one hand and Courts which are to resolve
problems which arise in the course of administration of the Government of the
country. A local valuation Court has to act judicially, that is to say its proceedings
must be conducted with the fairness and impartiality which characterise
proceedings in Courts of justice and are proper to the functions of a Judge, but
that does not make it a Court of law, for there are many tribunals with many of the
trappings of a Court and upon which the Parliament has put the “Court” label, yet
they are not Courts in the strict sense of exercising judicial power. Judicial power
is an exercise of sovereign power; and a Court of law means a Court of judicature,
as a body established by law to exercise, either generally or subject to defined
limits, the judicial power of the State. In this context, judicial power is to be
contrasted with legislative and executive (i.e. administrative) power. If the body
under review is established for a purely legislative or administrative system of the
State, it is part of the legislative or administrative system of the state, even though
it has to perform duties which are judicial in character. Therefore, unless the body
excising judicial functions can be demonstrated to be part of the judicial system, it
is not a Court of law.
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11. Thus the test is not whether the authority under review is required to act
judicially, that is to say, act with such fairness and impartiality as characterise
proceedings in Courts of justice; nor whether it has the label of Court attached to
it. For, as Lopes L.J. said in Royal Aquarium and Summer and Winter Garden
Society Limited v. Parkinson (1892) I.Q.B 431, the word “judicial” has two
meanings. It may refer to the discharge of duties exercisable by a Judge or by
justices in Court, or to administrative duties which need not be performed in
Court, but in respect of which it is necessary to bring to bear a judicial mind – that
is, a mind to determine what is fair and just in respect of the matters under
consideration. The test is whether the authority under review is required to
perform the act in question as a Court in the proper sense of the word and whether
the authority under review was performing the act judicially as a Court in the
exercise of the judicial power of the State, as distinguished for executive
(administrative) or legislative power of the State. Judicial power, in this context,
has a well-known meaning, particularly in countries having a written Constitution
like Pakistan, namely, the power which every sovereign authority must of
necessity have to decide controversies between its subjects, or between itself and
its subjects, whether the rights relate to life, liberty or property (Griffith C.J. in
Huddart, Parker & Co. v. Moorehead (1909) 8 C.L.R 303,357) (Emphasis
added)

This case lays down that the fundamental test to determine whether a forum
is acting as a ‘court’ and is required to exercise judicial power or whether it
was established to perform administrative functions as part of the functions
of the executive. The reason as explained is that judicial power entails
several characteristics which must be construed in the context of the purpose
of the forum created because while it may seem as if the function is judicial,
it may not necessarily be so, in the Constitutional context of ‘court’. The
judgment goes on to provide that the test is not whether the authority is
exercising judicial power rather the test is to determine the purpose for
which the forum was established. The reason being that judicial power
entails several characteristics which must be construed in the context of the
purpose of the forum created. This brings us to the moot question that is
whether the CCP and CAT are exercising judicial power and whether they
are a ‘court’ as per Article 175 of the Constitution.
50. The Petitioners have argued that the CCP exercises judicial power as
it issues orders under Section 31 of the Act and can enforce its orders under
Section 38 and 41 of the Act by way of imposing penalty and recovering
penalties. They have also suggested that the proceedings are adversarial in
nature by relying on Section 37(2) and Section 30(2) of the Act. In this
context, they argue that the CCP is not independent as its members lack
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independence from the executive and that it is neither impartial nor free
from institutional bias in its proceedings. So far as CAT is concerned, they
argue that it cannot exercise judicial power as it is not a court, that it is not
under the supervision of the High Court and that it is not an adequate
substitute for the High Court in terms of Article 203 of the Constitution.
Hence they argue that the CCP cannot be regarded as an administrative body
passing administrative orders and CAT being a court must be separate from
the executive. In order to appreciate the arguments made about the CCP, it is
necessary to understand the objective and nature of the functions of the CCP.
This goes to the purpose for which the CCP was established and the nature
of its functions. The preamble of the Act states that the Act is to provide for
free competition in all spheres of commercial and economic activities, to
enhance economic efficiency and to protect consumers from anti-
competitive behaviour. As per the preamble the Act ensures free competition
in all spheres of commercial and economic activity by defining anti-
competitive behaviour, which is regulated by the CCP. Chapter-II of the Act
sets out the prohibitions which make for anti-competitive behaviour.
Consequently, the abuse of dominant position in the relevant market,
entering into a prohibited agreement, engaging in deceptive marketing
practices and approval of mergers falls within the domain of anti-
competitive behaviour to be mimed by the CCP. Chapter-III establishes the
CCP and provides for the terms and conditions of service of the members of
the CCP amongst others. Section 28 provides for the powers and functions
of the CCP which includes initiating proceedings in case of contravention of
the provisions of the Act and passing orders in terms thereof conducting
inquiries for the purposes of this Act, to conduct studies for promoting
competition and giving advice to undertakings for maintaining the objective
of the Act and to engage in competition advocacy. As per Section 29 of the
Act, competition advocacy includes creating awareness and imparting
training about competition issues and reviewing policy frameworks,
soliciting public opinion and keeping the public updated through its website.
Therefore, the functions of the CCP essentially involve compliance and
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enforcement of the regulatory objective, which is to ensure that anti-

competitive behaviour does not prevail in the market such that an
undertaking does not engage in the prohibited behaviours set out in Chapter-
II of the Act. For compliance the CCP can initiate an inquiry, conduct
proceedings and pass an order seeking compliance of the provisions of the
Act as well as impose penalty because it is in furtherance of its regulatory
objective. In this regard Section 31 of the Act provides for the nature of the
orders passed by the CCP. As per this section if an undertaking is in
contravention of any of the provisions provided in Chapter-II of the Act, the
CCP can pass an order requiring an undertaking to restore competition and
not repeat the prohibition set out in Chapter-II or engage in similar practice.
So far as, mergers are concerned, the CCP can authorize the merger or undo
a prohibited merger in terms of Section 11 of the Act to ensure that it does
not result in a prohibited act. As per Section 11 no undertaking shall enter
into a merger which substantially lessens competition by creating or
strengthening a dominant position in the relevant market. Hence even with
reference to orders passed and regulating mergers the objective of the CCP
is to control anti-competitive behaviour by issuing restorative orders and
correctional orders. The scope of the orders passed is therefore limited to the
scope of Section 31 of the Act which requires the CCP to ensure that anti-
competitive behaviour if at all is being carried out, it should be corrected and
restored to bring it in compliance with the Act. In this context penalties are
provided for in Section 38 of the Act and can be imposed if an undertaking
has been engaged in any prohibited activity under the Act or has failed to
comply with the orders of the CCP or has failed to supply copies of the
agreement or any other document or information or has made a false
statement before the CCP or in any manner has interfered or obstructed the
process of the CCP. Therefore, the CCP imposes penalty for contravention
or non-compliance and for obstructing its process. The orders of the CCP
can be appealed before the Appellate Bench of the Commission under
Section 41 of the Act and an appeal lies against the order of the Appellate
Bench of the Commission before CAT under Section 42 of the Act. The
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order of CAT may be appealed before the Supreme Court of Pakistan in

terms of Section 44 of the Act.
51. The objective of the Act is consumer welfare that is to ensure that
commercial and economic activities are free from anti-competitive
behaviour. The Act also aims to ensure economic efficiency by regulating
mergers and prohibiting certain agreements which may result in cartelization
or allow a dominant position in the market. The purpose of the CCP is to
ensure fair competition is maintained by regulating the prohibitions set out
in Chapter-II. Therefore, the Act has a regulatory objective, to promote free
competition and prevent anti-competitive behaviour and prescribe
enforcement mechanisms to ensure compliance. The CCP’s legal framework
is such that it involves some decision making process when behaviour
becomes anti-competitive, that is behaviour is against the provisions of the
Act. Therefore, the CCP is a regulatory authority, with a regulatory objective
and its purpose is not to exercise judicial power. Furthermore, by the
Petitioners own arguments, not all functions of the CCP are judicial
functions, only those related to the decision making process under Section
31 of the Act are alleged to be judicial powers. Therefore the question is
whether on account of this decision making function it can be said that the
CCP exercises ‘judicial power’ of the State so as to bring it within the realm
of the Mehram Ali Case. We are of the opinion that the very nature of the
orders which the CCP can issue under Section 31 of the Act establishes that
its scope is limited to being preventive and restorative. The CCP seeks
compliance of the prohibitions and where there is a violation, it seeks to
restore competition and ensure that the prohibited behaviour is not repeated.
Even for mergers the CCP is concerned with the effect of the merger on
competition as to whether it will lessen competition by creating or
strengthening a dominant position in the relevant market. This shows that
the nature of the orders are not judicial per se rather it involves a more
technical understanding of the market, economics, commerce and finance,
amongst others. We find by its very nature the CCP does not perform
judicial functions akin to a ‘court’. It is a regulatory authority with
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administrative functions which includes giving advice, creating awareness,

impart training, review of policy frameworks to foster competition as well as
decision making to enforce the regulatory policy.
52. It has been argued at great length that separation of power between the
executive, legislature and judiciary is a core principle of the Constitution and
must be upheld to retain the spirit of the Constitutional structure. We
understand that every government function can be classified as either
executive, legislature or judicial and accordingly carried out by the
respective arm of the government. However we find that such rigid
separation of functions as has been argued, is not only difficult but also
impractical. The fundamentals of separation of power is engrained in the
constitutional framework, however the complexity of modern government
requires some over lapping of functions, within permissible limits. In this
context, we note that all three functions of the state require to ‘hear and
decide’ issues based on facts. The legislature may do so through committees
and the executive through its officers make determinations by ascertaining
the facts. In fact this Court in its constitutional jurisdiction can direct the
relevant authority of the executive branch to decide controversies based on
the facts, through a speaking order. Accordingly for each function, the State
is entitled to carry out its business by adopting procedures and methods
suited to it and can set out processes to carry out its functions which includes
the decision making function. The question is whether the function to ‘hear
and decide’ controversies is merely incidental to the regulatory objective
hence administrative in nature or can all instances of ‘hear and decide’ be
termed as judicial function.
53. A similar issue was brought before the Dehli High Court in the case of
Mahindra Electric Mobility v. CCI And ANR in the year 2019 wherein the
Dehli High Court while deciding on the issue of whether the Competition
Commission of India (“CCI”) is a tribunal exercising judicial powers held
that the proceedings before the CCI are akin to departmental proceedings
making their opinion formation an administrative function. The court
concluded in the following terms:
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83. In view of these specific functions, this court is of opinion that there
can be no manner of doubt that the CCI does not perform exclusive
adjudicatory functions to be called a tribunal. A tribunal and one entrusted
solely with the judicial power of the state (the touchstone on which L.
Chandra Kumar v. Union of India and Ors. 1995 (1) SCC 400, R. Gandhi
(supra) and Madras Bar Association (supra) are premised is seen as a
substitute for courts. However, the creation of CCI and investing it with a
multifarious functions, which extend to directing (and overseeing)
investigation and fact gathering, advising the government on policy (as an
expert body) and advocating competition, in addition to issuing directions or
orders against specific entities or companies with the aim of eliminating a
practice found pernicious or one which constitutes a barrier to competition
and fair dealing in the marketplace.
84. However, the above finding that the CCI is not a tribunal exercising
exclusive judicial power, does not lead to the conclusion that its orders are
any less quasi-judicial at the stage when they attain finality. They are, for the
simple reason that the consequences are far reaching, to those entities and
companies which are subjected to directions (cease and desist orders,
directions to alter agreements, etc). The right to freedom of trade, to the
extent that it impinges on the right of the entity, to exercise free choice about
contractual terms, or whom to associate with (in regard to association and
merger) are undeniably implicated. These orders, however, are subject to
appeal, to a tribunal (COMPAT). CCI is also amenable to judicial review
under Article 226 of the Constitution of India as regards the directions it
makes procedurally. For instance, if it can be shown that investigation has
been launched without a reasoned prima facie expression of its opinion,
under Section 26(2) the CCIs orders can be corrected in writ proceedings.
Similarly, in regard to conduct of proceedings during investigation (i.e. the
fact gathering exercise) the jurisdiction of the High Court to ensure fair
procedure and compliance with natural justice is assured [Ref. Competition
Commission of India and Anr. v Oriental Rubber Industries Pvt. Ltd. 2018
(251) DLT 137 and Cadila Healthcare Ltd and Anr v. Competition
Commission of India and Ors. 2018 (252) DTL 6471).

As already explained, the term judicial power is not defined anywhere in the
Constitution nor is judicial power vested in the courts. It is by way of the
constitutional scheme that we understand judicial power to be the power
exercised by the judiciary. In The Tariq Transport Company, Lahore v.
(1)The Sargodha-Bhera Bus Service, Sargodha (2) The Regional Transport
Authority, Lahore and (3) The Provincial Transport Authority, Lahore (PLD
1958 SC (Pak.) 437) the august Supreme Court of Pakistan while
considering the concept of judicial functions held that it is extremely
difficult to define ‘judicial power’ and that there is no clear cut definition of
the term with reference to administrative authorities or tribunals. The august
Supreme Court of Pakistan again reinforced the purpose test to ascertain the
reason for the establishment of the forum notwithstanding the fact that it
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may exercise judicial functions in some context. The august Supreme Court
of Pakistan held as follows:
the question whether an act is judicial, quasi-judicial or administrative is clouded
by a confusion which it is extremely difficult to resolve and no clear-cut
distinction between these three functions can be discovered from the large number
of reported cases and the divergent opinions expressed therein. In modern States
where expertise is the dominating feature of Government more than one function
is combined in administrative tribunals, and more often than not an administrative
agency discharges not only legislative and administrative but also judicial
functions. The true question in the case of such tribunals always is whether the act
which is complained of is a judicial act and not whether the procedure adopted by
the tribunal is judicial or quasi-judicial or whether the dominant or general aspect
of the tribunal is that of a judicial, quasi-judicial or administrative body. A
tribunal is not always furnished with the trappings of a Court, nor will such
trappings make its action judicial. The character of the action taken in a given
case and the nature of the right on which it operates must determine whether that
action is judicial, ministerial or legislative or whether it is simply the act of a
public agent. A tribunal acts judicially in the full sense of the term if:
(1) it has to determine a dispute;
(2) the dispute relates to a right or liability, which whatever its immediate aspect,
is ultimately referable to some right or liability, recognised by the Constitution or
statute or by custom or equity which by the domestic law is declared to be the rule
of decision;
(3) since every right or liability depends upon facts the tribunal is under an
obligation to discover the relevant facts;
(4) the ascertainment of the facts is in the presence of the parties either of whom
is entitled to produce evidence in support of its respective case and to question the
truth of the evidence produced by his opponent; and
(5) after an investigation of the facts and hearing legal arguments the tribunal
renders a judgment which so far as the tribunal is concerned terminates the
dispute. In the case of an administrative tribunal, however, the emphasis is on
policy, expediency and discretion to enable it to achieve the object with which it
was set up. In the case of such a tribunal the approach in determining the relevant
facts is therefore often subjective and not objective, there being generally no lis
before it in which the parties are arrayed against each other for the enforcement of
a private right or liability and who for that purpose are entitled to produce
evidence and adduce legal argument. The word ‘quasi’ as prefixed to the word
‘judicial’ may either indicate that the tribunal is not acting purely administratively
or that it is acting in a manner in which a judicial tribunal is expected to act.

In Iftikhar Ahmad v. The Muslim Commercial Bank Ltd and another

(PLD 1984 Lahore 69) the Lahore High Court held that a court adjudicates
by fixed standard objectives upon a controversy or dispute, as regards pre-
existing legal rights and liabilities, conferred or imposed by a statute, usage
or agreement recognised by law, and long settled principles, on the basis of
the evidence produced by the parties before it. In contrast a non-judicial or
administrative tribunal may adopt the same procedure as the courts but its
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decisions or orders are incidental to an obligation to administer law to

regulate or supervise matters and are based not on fixed objective standards
but on subjective considerations, policy and expediency. A court looks for
some law to guide it but an administrative tribunal, within its domain, is law
unto itself. In this case the formality of the procedures and processes adopted
was considered relevant as courts are bound by a strict procedural code and
by the letter of the law whereas tribunals are less formal and do not always
require to adhere to the formalities of a court process.
In Mir Rehman Khan and another v. Sardar Asadullah Khan and 14
others (PLD 1983 Quetta 52), the Baluchistan High Court defined a ‘court’
as a forum which is dependent on the manner and method in which
proceedings are regulated before it. This process embraces all procedural
laws, which bind it in its functions and determine its course of action. For
evidence which is the deciding factor in all kinds of disputes, courts are
bound by Evidence Act. Ordinarily the decision of a dispute by an arbitrator
and a conciliatory body etc. may be termed as decision by a court but that is
not so because such forums are not bound by any law with regard to
procedure and evidence as such, they only settle the dispute but do not
administer justice according to law, and are not, therefore, courts. Hence, as
per this judgment courts are such organs of the State which follow legally
prescribed scientific methodology as to procedure and evidence in arriving
at just and fair conclusions. It thus manifests that although the term ‘court’ is
at times used for quasi-judicial or administrative tribunals also but on this
premises it cannot be inferred that such forums can be equated with a court
of law. The Baluchistan High Court concluded that ‘courts’ are such organs
of the State which administer justice strictly in accordance with law,
meaning thereby that while applying laws to the controversies, they follow
certain rules with regard to procedures and evidence.
In Messrs Ranyal Textiles through Proprietor/Employer v. Sindh
Labour Court No.2, Karachi and 3 others (PLD 2010 Karachi 27) the
Sindh High Court held that ‘judicial power’ is the ability and authority to
hear and decide cases, objectively after allowing the parties an opportunity
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to produce evidence, argue on the rights, duties or interest at stake and pass
an authoritative decisions which is the parties binding on and will include
the authority to execute its decision and prevent and redress wrongs and
punish offences through legal process. The court also found that judicial
power must be conferred by the State under the Constitution or law and not
the mere consent of parties, on persons who are paid by the State and
removable by it only. The authority or body in which this power is vested is
generally called a court and in performing its functions it declares, construes
and applies law or custom or usage, having the force of law. The ‘judicial
power’ is thus the instrument to be used by the court.
In the Riaz ul Haq Case the august Supreme Court of Pakistan
concluded that a tribunal does not always function as a ‘court’ nor are its
actions always judicial. The Supreme Court held that the determining factor
is the nature of dispute and the rights and liabilities that have to be decided.
54. These cases highlight that in order to understand judicial power, the
purpose for which the forum was established is relevant; the process and
procedures the forum follows is relevant; the finality given to its decision is
relevant; and the rights and liabilities decided upon are relevant and the
manner in which a dispute is brought to the forum is relevant. These
decisions also attempt to distinguish between judicial power and functions
which may have the characteristics of judicial power but not in the
constitutional scheme of the term ‘court’. Hence the decisions have looked
at the various attributes of a ‘court’ in comparison with that of a tribunal or
authority where all the attributes of a court are not prevalent yet some form
of ‘hear and decide’ is involved. The referred to decisions of the august
Supreme Court of Pakistan find that the only function of a ‘court’ is to
adjudicate as per the law, whereas a tribunal or authority may have to decide
upon issues as one of its functions, that too being incidental to its
administrative objective. As per the dicta of the august Supreme Court of
Pakistan we find that the CCP was not established as part of the judicial
hierarchy of courts nor are its function to exercise judicial power. It is
established to carry out the administrative function of the executive to ensure
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economic efficiency and promote consumer welfare and in doing so it

discharges quasi-judicial functions with the sole objective to regulate anti-
competitive behaviour. Although the process followed by the CCP while
hearing cases must follow due process, they are not bound by the formal
laws of evidence and procedure. Furthermore, the members of the CCP are
not necessarily trained in law, as they require expertise in economic,
commerce, finance and industry. The CCP was established under the Act,
with the intent to ensure free competition and economic efficiency, so the
function of hearing and deciding issues only occurs where the prohibitions
have been violated, that to with the intent to restore competition in the
relevant market. Hence while exercising its functions under the Act the CCP
is not a ‘court’ under Article 175 of the Constitution.
55. Even in the context of CAT, we are not inclined to agree with the
contentions of the Petitioners. CAT is constituted under Section 43 of the
Act and consists of a Chairperson and two Technical Members having the
requisite special knowledge and expertise as required under the Act. The
Chairperson and the Members are appointed by the Federal Government on
such terms and conditions of service as established by the Federal
Government. Any person aggrieved of any order of CAT may prefer an
appeal to the Supreme Court of Pakistan under Section 44 of the Act. CAT
hears appeals against orders passed by the Appellate Bench of the
Commission under Section 41 of the Act. It is noted that members of the
CCP can initiate proceedings in accordance with the procedure set out under
the Act and pass orders in cases of contravention of the provisions of the
Act. The nature of the orders and the proceedings in cases of contravention
are preventive and restorative as per Section 31 of the Act. These orders are
appealable under Section 41 and again under Sections 42 and 43 of the Act.
As the nature of the orders passed by the CCP are preventive and corrective,
aimed at restoring competition, the nature of the order remains the same in
the appellate process. Consequently CAT comprises of two technical
members with the relevant experience and one judicial member to decide the
cases as per the regulatory objective. Article 175 of the Constitution
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provides for the establishment and jurisdiction of the Supreme Court of

Pakistan, the High Court for each Province and such other courts as may be
established by law. It provides that no court shall have jurisdiction save as
may be conferred on it by the Constitution or under any law and that the
judiciary shall be separated from the executive. CAT is not a ‘court’
established under the law as contemplated under Article 175 of the
Constitution. The Act does not establish a court rather it establishes an
Authority and an Appellate Tribunal, that too with only one Judicial
Member and two Technical Members with the special expertise required to
achieve the objective of the Act. Article 212 of the Constitution establishes
administrative courts or tribunals to exercise jurisdiction in respect of
matters enumerated under the said Article. CAT is not an Administrative
Tribunal as contemplated under Article 212 of the Constitution as it does not
decide upon any of the stated matters in the said Article. Hence it does not
fall under the mandate of Article 212 of the Constitution. The Act
establishes an Appellate Tribunal which has to adjudicate upon matters
arising out of and pursuant to the matters set out in the Act, hence it is not
working as a ‘court’ as contemplated in Article 175 or a tribunal under
Article 212 of the Constitution. In this regard, we are of the opinion that the
Army Welfare Trust Case has sufficiently addressed this question in the
following terms:

6. Therefore, the question arises whether the Appellate Tribunal is a

court established by law. The Act does not set up the Appellate
Tribunal, but utilizes the “Customs, Excise and Sales Tax Appellate
Tribunal” already set up under section 194 of the Customs Act, 1969
(see subsection (1) of the Act). The Federal Government constitutes
the Appellate Tribunal which comprises of judicial and technical
members (subsection (1) and (2) respectively of section 194 of the
Customs Act. The qualification of a judicial member is provided in
subsection (2) and of a technical member in subsection (3) of section
194 of the Customs Act. The Federal Government also appoints the
Chairman and determines the terms and conditions of appointment of
the judicial and technical members (subsection (4) and (5) respectively
of section 194 of the Customs Act). Neither through the Sales Tax
Act, 1990 (“the Sales Tax Act” or the Act”) nor through the Customs
Act a court was established, therefore, the Appellate Tribunal cannot
be categorized as a court.
7. The Appellate Tribunal can also not be equated with the tribunals
envisaged in the Constitution which exercise judicial powers, such as
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the tribunals established under Article 212 and election tribunals under
Article 225 of the Constitution. Ajmal Mian, CJ, heading a five
member bench of this Court in the case of Mehram Ali v. Federation
of Pakistan (PLD 1998 Supreme Court 1445) held, “that any Court or
Tribunal which is not founded on any of the Articles of the
Constitution cannot lawfully share judicial power with the Courts
referred to in Article 175 and 203 of the Constitution” (subparagraph
(iii) of paragraph 11, page 1477). A more recent judgment of a three
member bench of this Court authored by Iftikhar Muhammad
Chaudhry, CJ, in the case of Riaz-ul-Haq v. Federation of Pakistan
(PLD 2013 Supreme Court 501) held, that, since the Federal and
Provincial Service Tribunals perform judicial functions and are set up
pursuant to Article 212 of the Constitution they have to be made
autonomous and independent of the Executive arm of the
government/s in compliance with the mandate of the Constitution
(clause (3) of Article 175) which provides for the separation of the
Judiciary from the Executive. The Appellate Tribunal is not mentioned
or provided for in the Constitution, therefore, it can not be categorized
or be deemed to be a court in terms, of paragraph (d) of clause (2) of
Article 185 of the Constitution. When through the impugned judgment
the High Court set aside the Appellate Tribunal’s order it did not do so
of a court immediately below. Consequently the Petitioner acted in
accordance with the Constitution when it preferred a petition seeking
leave to appeal the impugned judgment. The above mentioned office
objection is therefore, overruled.

The Army Welfare Trust Case recognizes that there can be administrative
tribunals other than that contemplated under Article 212 of the Constitution
and also recognizes that every administrative tribunal is not a court as
defined under Article 175 of the Constitution. Although the Petitioners have
argued at length that by accepting the Army Welfare Trust Case, it would
mean reading down the Mehram Ali Case, their argument is premised on the
understanding that even if a forum is not mandated under Article 175 or 212
of the Constitution it must comply with the requirement of independence and
separation from the executive because it exercises some forum of judicial
decision making. However we do not agree with these contentions as the
Mehram Ali Case was specifically about special courts created under the
ATA, hence falling squarely within Article 175 of the Constitution because
it was a forum established as a court, and was made to exercise judicial
functions as part of the judicial hierarchy under the Constitution.
56. In this context, the august Supreme Court of Pakistan declared in the
Riaz ul Haq Case that a tribunal does not always function as a court nor are
its actions always judicial. In this case, the issue was the appointment of the
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chairman and members of the service tribunals which was not statedly free
from the executive. The Supreme Court concluded the service tribunals were
‘courts’ capable of exercising judicial functions as per the constitutional
mandate of Article 212 of the Constitution in the following terms:
58. On having discussed the cases supra it is concluded that Service Tribunals
(Federal and Provincial) falling in the category of Court capable to exercise
judicial powers are bound to follow the principle of independence judiciary for
the purpose of ensuring enforcement of fundamental rights of access to justice
under Article 9 of the Constitution, thus, are required to be separated from the
Executive under Article 175 (3) of the Constitution. These listed constitutional
objects ought to have been redressed by the Legislature in making suitable
amendments in the law governing the Tribunals and the rules framed thereunder
to the extent as noted hereinabove, any of the provisions of the law contrary to the
fundamental and constitutional provisions if any.

Hence on reading this case there is a distinction between tribunals under

Article 212 of the Constitution and all other tribunals formed under a statute
for a specific purpose. As the service tribunals are constitutional tribunals
which exercise judicial powers, hence they must be independent and
separate from the executive. However that does not apply for all tribunals as
was elaborated upon in the Army Welfare Case. CAT is established under
the Act in furtherance of the regulatory objective. As it is a specialized area
of law which calls for corrective and restorative action, the appellate forum
CAT hears appeals in the same context as the CCP, meaning thereby that it
exercises quasi-judicial functions.
In Dr. Zahid Javed v. Dr. Tahir Riaz Chaudhary and others (PLD
2016 SC 637), the august Supreme Court of Pakistan deliberated on quasi-
judicial powers when examining the revisional powers of the chancellor
under the University of the Punjab Act, 1973 as to whether such functions
were judicial or administrative functions. The Supreme Court concluded
that:
34. The word “Quasi” is defined ‘as if’, as though, as it were, in a manner, in a
certain sense or degree, seeming, seemingly, analogous to and it may mean
resemblance. The quasi judicial power is a duty conferred by words or by
implication on an officer to look into facts and to act on them in the exercise of
discretion, and it lies in the judgment and discretion of an officer other than a
judicial officer. A “quasi judicial power” is one imposed on an officer or an
authority involving the exercise of discretion, judicial in its nature, in connection
with, and as incidental to, the administration of matters assigned or intrusted to
such officer or authority. A “quasi judicial act” is usually not one of a judicial
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tribunal, but of a public authority or officer, which is presumably the product or

result of investigation, consideration, and human judgment, based on evidentiary
facts of some sort in a matter within the discretionary power of such authority or
officer. A quasi judicial power is not necessarily judicial, but one in the discharge
of which there is an element of judgment and discretion; more specifically, a
power conferred or imposed on an officer or an authority involving the exercise of
discretion, and as incidental to the administration of matters assigned or entrusted
to such officer or authority.

In Shafaatullah Qureshi v. Federation of Pakistan (PLD 2001 SC

142), the august Supreme Court of Pakistan held that quasi-judicial
authorities have certain attributes of a court and are required to act fairly and
impartially but are not necessarily courts under Article 175 of the
Constitution. Relevant para is reproduced hereunder:
Performance of quasi-judicial functions by itself does not
convert an authority into Court, whether an act is quasi-judicial or purely
executive depends on the interpretation of rules/law under which the authority
exercises its jurisdiction. It is true that the administrative authority also is to act
bona fide, but is different from saying that it must act judicially. Many authorities
are not Court, although they have to decide questions and have to act judicially in
the sense that the proceedings shall be conducted with fairness and impartiality. In
order to constitute a Court in strict sense, it shall have power to give a decision or
a definitive judgment, which has finality and authoritativeness.

In all these cases the courts examined the functions of the forum which
statedly was exercising judicial powers. The crux of these decisions is that
while Parliament can establish courts under the law, courts exercising
judicial power must be separate from the executive. Loosely put a forum is a
‘court’ under Article 175 of the Constitution if it has been established as part
of the judicial hierarchy, to adjudicate upon disputes as per the law.
However there can be other forums which exercise quasi-judicial functions,
which are not ‘courts’ under Article 175 of the Constitution and are not
tribunals under Article 212 of the Constitution but may perform functions
similar to judicial functions. Specifically a regulatory authority, created
under a statute, to carry out its objectives can exercise quasi-judicial
functions. In this regard, the ultimate authority is with Parliament which can
establish a regulatory authority to achieve its administrative objectives. The
establishment of regulatory authorities falls within Parliament’s domain
where it is a federal subject as per Entry 6 of Part II of the FLL of the
Constitution.
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57. We are of the opinion that CAT is an administrative tribunal formed

to conduct quasi-judicial proceedings related to issues which arise under the
Act. The dispute under the Act is always between an ‘undertaking’ and the
CCP as the undertaking challenges the order of the CCP before CAT. The
nature of the order before CAT will be restorative or corrective as per
Section 31 of the Act that is why there are two technical members of CAT
specialize in the area of international trade, economics, law, finance and
accountancy and not trained in law. The scheme of the Act is that it prevents
abuse of dominant position, prohibits agreements which restrict reduce or
prevent fair competition and prevents deceptive market practices. The CCP
makes orders in cases of contravention of the provisions of the Act and
imposes penalty in terms of Section 38 of the Act. These orders are then
appealable within the regulatory framework under Section 41 and 42 of the
Act, meaning that even CAT is to decide upon the legality of the
‘preventive’ or ‘restorative’ orders. In this context the purpose of an
administrative tribunal is that it is an expert body, qualified to resolve
disputes in a specialized area. Hence even for the purposes of the appellate
forum, its function remains quasi-judicial. Furthermore, administrative
tribunals are a common feature in several regulatory regimes as in OGRA,
NEPRA and the SECP to name a few. The establishment of administrative
courts and tribunals for federal subjects is provided for in Entry 14 of Part I
of the FLL of the Constitution which authorizes Parliament to establish
administrative courts and tribunals in relation to federal subjects. As
Parliament is competent to legislate on competition, which is a federal
subject, it can establish a regulatory authority for regulating anti-competitive
behaviours and provide a tribunal to resolve disputes arising under the Act.
Consequently tribunals established pursuant to Entry 14 of Part I of the FLL
ae distinct from ‘courts’ under Article 175 of the Constitution. We therefore
do not agree with the Petitioners’ contentions that a parallel judicial system
has been created or that administrative tribunals cannot be established for
any other purpose other than Article 212 of the Constitution or that CAT is a
‘court’ under Article 175 of the Constitution.
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58. The Petitioners have also questioned the appointment of the

Chairperson of CAT who is a retired Judge of the Supreme Court of Pakistan
or a retired Chief Justice of a High Court without the consultation of the
Chief Justice of Pakistan. Although the Petitioners’ case is that CAT falls
under the governance of the High Court under Article 203 of the
Constitution, the said argument is not relevant for the purposes of
governance by the High Courts as the CCP and CAT are established under a
federal law. So far as the argument that the members of CAT should be
appointed after meaningful consultation with the Hon’ble Chief Justice of
Pakistan, as per the information provided, the Federation did consult with
the Hon’ble Chief Justice of Pakistan on the appointment of the judicial
member of CAT before appointing him earlier this year. So far as terms and
conditions of service, Section 43(2) of the Act provides for a three year term
for its members which is extendable until the age of 68 years. Hence its a
three year appointment made in consultation with the Hon’ble Chief Justice
of Pakistan. However, in terms of Section 43(3), the Federal Government is
required to make rules with respect to the terms and conditions of service of
the members of CAT, which rules have still not been made. In order to
ensure that the process of consultation with the Hon’ble Chief Justice of
Pakistan is undertaken and that the terms and conditions are provided for,
the Federal Government is directed to take all necessary steps to issue the
required rules as per Section 43(3) of the Act within six months which
should provide for consultation with the Hon’ble Chief Justice of Pakistan in
the appointment of the judicial member of CAT and should require the
selection process of the technical members to be done through a selection
committee.
(C) Unconstitutionality of Sections 43 and 44 of the Act
59. The challenge against the constitutionality of Section 43 and 44 of the
Act is that the Act vests appellate functions in CAT and bypasses the High
Court, as the appeal is before the august Supreme Court of Pakistan; that
there is nothing in the Act that indicates that CAT is subject to the
supervisory control of the High Court under Article 203 of the Constitution;
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that it provides for an appeal to the Supreme Court of Pakistan which is in

violation of Article 185 of the Constitution and that it is not an effective,
independent mechanism before which an aggrieved person can challenge the
orders of the Commission itself. The Counsel argued that there is nothing in
the Constitution which justifies a direct appeal to the Supreme Court of
Pakistan as Article 185 of the Constitution envisions appeals to the Supreme
Court of Pakistan only against the judgments, decrees and orders of the High
Court. The only exception is contained under Article 212 of the Constitution
which is not applicable to the present case.
60. On behalf of the Federation, the AGP argued that as per Article 175 of
the Constitution an appeal before the Supreme Court of Pakistan is
maintainable. There is no constitutional provision which requires all appeals
of administrative tribunal to be before the High Court. He argued that Article
175 of the Constitution read with Entry 55 of Part I of the FLL allows the
legislature to provide for a direct appeal to the Supreme Court of Pakistan.
He relied on the appeal under the Companies Act, 2017 (“2017 Act”) under
Section 5(14) which provides for an appeal to the Supreme Court of
Pakistan. He also relied on The Province of Punjab and another v. National
Industrial Cooperative Credit Corporation and another (2000 SCMR 567)
on this point stating that this issue has already been decided by the august
Supreme Court of Pakistan.
61. Articles 175, 184, 185 and 186 of the Constitution are reproduced
below:

Article 175 (1) There shall be a Supreme Court of Pakistan, a High Court for
each Province and a High Court for the Islamabad Capital Territory
and such other courts as may be established by law.
(2) No court shall have any jurisdiction save as is or may be
conferred on it by the Constitution or by or under any law.
(3) The Judiciary shall be separated progressively from the
Executive within fourteen years from the commencing day.
Provided that the provisions of this Article shall have no
application to the trial of persons under any of the Acts mentioned at
Serial No.6 and 7 of sub-part III of Part I of the First Schedule, who
claim, or are known, to belong to any terrorist group or organization
misusing the name of religion or a sect.
Article 184 (1) The Supreme Court shall, to the exclusion of every other court,
have original jurisdiction in any dispute between any two or more
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Governments.

(2) In the exercise of the jurisdiction conferred on it by clause (1), the

Supreme Court shall pronounce declaratory judgments only.

(3) Without prejudice to the provisions of Article 199, the Supreme

Court shall, if it considers that a question of public importance with
reference to the enforcement of any of the Fundamental Rights
conferred by Chapter I of Part II is involved, have the power to make
an order of the nature mentioned in the said Article.
Article 185 (1) Subject to this Article, the Supreme Court shall have jurisdiction
to hear and determine appeals from judgments, decrees, final orders
or sentences of a High Court.

(2) An appeal shall lie to the Supreme Court from any judgment,
decree, final order or sentence of a High Court:

(a) if the High Court has on appeal reversed an order of acquittal of

an accused person and sentenced him to death or to transportation for
life or imprisonment for life; or, on revision, has enhanced a sentence
to a sentence as aforesaid; or

(b) if the High Court has withdrawn for trial before itself any case
from any court subordinate to it and has in such trial convicted the
accused person and sentenced him as aforesaid; or

(c) if the High Court has imposed any punishment on any person for
contempt of the High Court; or

(d) if the amount or value of the subject matter of the dispute in the
court of first instance was, and also in dispute in appeal is, not less
than fifty thousand rupees or such other sum as may be specified in
that behalf by Act of [Majlis-e-Shoora(Parliament)] and the
judgment, decree or final order appealed from has varied or set aside
the judgment, decree or final order of the court immediately below;
or

(e) if the judgment, decree or final order involves directly or

indirectly some claim or question respecting property of the like
amount or value and the judgment, decree or final order appealed
from has varied or set aside the judgment, decree or final order of the
court immediately below; or

(f) if the High Court certifies that the case involves a substantial
question of law as to the interpretation of the Constitution.

(3) An appeal to the Supreme Court from a judgment, decree, order

or sentence of a High Court in a case to which clause (2) does not
apply shall lie only if the Supreme Court grants leave to appeal.
Article 186 (1) If, at any time, the President considers that it is desirable to obtain
the opinion of the Supreme Court on any question of law which he
considers of public importance, he may refer the question to the
Supreme Court for consideration.

(2) The Supreme Court shall consider a question so referred and

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report its opinion on the question to the President.

Similarly Section 43 and 44 of the Act are also reproduced hereunder:

Section 43 (1) As soon as may be within thirty days of the commencement of this
Act, the Federal Government shall constitute the Competition Appellate
Tribunal which shall consist of a Chairperson who shall be a person
who has been a Judge of the Supreme Court or is a retired Chief Justice
of a High Court and two technical members who shall be persons of
ability, integrity and have special knowledge and professional
experience of not less than ten years in international trade, economics,
law, finance and accountancy.
(2) The Chairperson and members shall hold office for a period of three
years and shall be eligible for reappointment for a similar term and
shall cease to hold office on attaining the age of sixty eight years or the
expiry of the term whichever is earlier.
(3) The Chairperson and the members shall be entitled to such salary
and other terms and conditions of service as the Federal Government
may by rules prescribe.
(4) The Competition Appellate Tribunal may, in consultation with the
Federal Government, make rules governing procedure in proceedings
before the Tribunal.
(5) The Competition Appellate Tribunal shall decide an appeal
expeditiously within six months of its presentation to the Tribunal.
Section 44 Any person aggrieved by an order of the Competition Appellate
Tribunal may prefer an appeal to Supreme Court within sixty days.

62. Article 184 of the Constitution refers to the original jurisdiction of the
Supreme Court of Pakistan, Article 185 of the Constitution to its appellate
jurisdiction and Article 186 provides for the advisory jurisdiction of the
Supreme Court of Pakistan. The argument is that Section 43 and 44 of the
Act are violative of Article 185 of the Constitution, which envisages appeals
against judgments, decrees and final orders or sentences of the High Court
before the Supreme Court of Pakistan. Meaning that a statute cannot provide
for an appeal before the Supreme Court of Pakistan unless the Constitution
mandates it. The only exception is Article 212 of the Constitution, as the
said Article specifically provides for an appeal to the Supreme Court of
Pakistan from a judgment, decree, order or sentence of the Administrative
Courts or Tribunal under Article 212 of the Constitution. The case of the
Petitioners is that if at all the jurisdiction of the Supreme Court of Pakistan is
to be enlarged it must have constitutional underpinning. The AGP has relied
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on Entry 55 of Part I of the FLL to urge the point that an appeal before the
Supreme Court of Pakistan is as per the Constitution. Entry 55 is as follows:

55. Jurisdiction and powers of all Courts, except the Supreme Court, with
respect to any of the matters in this list and, to such extent as is expressly
authorized by or under the Constitution, the enlargement of the jurisdiction of
the Supreme Court, and the conferring thereon of supplemental powers.

There are two parts to Entry 55; the first part allows Parliament to legislate
on the jurisdiction and powers of all courts with respect to matters in the
FLL. The Supreme Court of Pakistan has been excluded from this part,
meaning that Parliament cannot legislate on the jurisdiction and power of the
Supreme Court of Pakistan in so far as the entries in the FLL. The second
part of Entry 55 deals with the enlargement of the jurisdiction of the
Supreme Court of Pakistan and the conferring of supplemental powers
thereon. This has been made subject to that which is authorized by or under
the Constitution, meaning that where the Constitution confers authority on
Parliament, it can enlarge the jurisdiction and power of the Supreme Court
of Pakistan and confer supplemental powers as well. Article 175(2) of the
Constitution states the no court shall have jurisdiction save as is conferred
on it by the Constitution or by or under the law. Article 175(2) of the
Constitution gives Parliament competence to confer jurisdiction on the
courts by or under a law. The question is does this include the jurisdiction of
the Supreme Court of Pakistan. When Article 175(2) is read with Entry 55 of
the First Part of the FLL and Article 142 of the Constitution, Parliament is
competent to make law enlarging the jurisdiction of the Supreme Court of
Pakistan and conferring supplemental powers, where it is provided by or
under the Constitution meaning that the constitutional jurisdiction of the
Supreme Court of Pakistan cannot be taken away but where the Constitution
authorizes Parliament on jurisdiction it can be enlarged.
63. The same issue was discussed in great detail in 2000 SCMR 567
(supra) where the august Supreme Court of Pakistan held as follows:-

15. As regards Section 22 of the impugned legislation providing for an

appeal before the Supreme Court of Pakistan against the orders
passed by the Cooperative Judge, it has been held in the impugned
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judgment of the High Court that in the light of the aforesaid

provisions of the Constitution read with Entry No.55 of the Federal
Legislative List, enlargement of the jurisdiction of the Supreme
Court and conferring thereon of any supplemental power falls
within the exclusive domain of the Parliament and the Provincial
Legislature has no power whatsoever to deal with or to legislate on
any matter in the Federal Legislative List and therefore, section 22
providing for an appeal before the Supreme Court is violative of the
Constitution.
16. Reference may also be made to the relevant entries in the previous
Constitutions of Pakistan. In 1956 Constitution, there were three
Legislative Lists (in the Fifth Schedule), i.e Federal List, the
Concurrent List and the Provincial List. Relevant entries are Entry
No.29 in the Federal List, Entry No.19 in Part II of the Concurrent
List and Entry No.92 in the Federal List. All these entries gave
powers in relation to jurisdiction and powers of the Courts except
the Supreme Court. The jurisdiction on the Supreme Court was
conferred by the Constitution but there was one Article 160 which
gave additional jurisdiction to the Supreme Court.
17. Coming now to the present Constitution of 1973, it may be observed
that, according to Mr. Abid Hassan Minto, learned counsel for the
Government of Punjab, in view of Article 175 (2) of the
Constitution, under which jurisdiction can be conferred on any
Court including the Supreme Court by or under any law, in relation
to matters in respect of which Provincial Legislatures have power to
make laws (including Cooperative Societies),
additional/supplemental jurisdiction or powers can be conferred on
the Supreme Court by the Provincial Legislatures as the “law”
mentioned in Article 175 (2) includes a Provincial law and
additional/supplemental jurisdiction or powers in the form of an
appeal to the Supreme Court under Section 22 of the impugned
legislation was being conferred on the Supreme Court in respect of
a matter on which Provincial Legislatures have exclusive
jurisdiction under the Constitution to enact laws.
In our view there is no ambiguity in interpreting Entry No.55 of
Part I of the Federal Legislative List (Fourth Schedule) of the 1973
Constitution. Such Entry read with Articles 175 (2) and 142 (a) of
the Constitution confers exclusive powers on the Parliament to
make laws for enlargement of jurisdiction of the Supreme Court or
conferring on it supplemental powers.
If Entry No.55 was not there in the FLL, it could be argued that
under Article 175 (2) of the Constitution, in respect of matters
relating to Cooperative Societies exclusively falling under the
competence of the Provincial Legislature, a law can validly be
made by a Provincial Legislature enlarging jurisdiction of the
Supreme Court and conferring on its supplemental powers but
Article 175(2) is not to be interpreted in isolation. It has to be read
and interpreted along with Article 142 (a) and the Entries in the
Legislative Lists. Under Entry No.55 of the Federal List, Federal
Legislature is competent to make laws regarding jurisdiction and
powers of all Courts (except the Supreme Court) with respect to any
of the matters in such list. The other part of this entry makes the
Federal Legislature competent to make laws enlargement of the
Supreme Court and the conferring thereon the supplemental powers
with the proviso that this is to such extent as is expressly authorised
by or under the Constitution. Powers and jurisdiction conferred on
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the Supreme Court by the Constitution can neither be interfered

with or varied nor taken away by Legislature. However, jurisdiction
of the Supreme Court can be enlarged and supplementary powers
can be conferred on the Supreme Court by “law” in view of the
Article 175 (2) of the Constitution and Entry No.55 read with
Article 142 (a) of the Constitution leave no doubt that such
enlargement of the jurisdiction and conferment of supplementary
powers can only be done through law made by Federal Legislature.
We are, therefore, of the view that section 22 of the impugned
legislation is ultra vires the Constitution. The Provincial Governor
and the Provincial Assembly are not competent to enact any law
whereby jurisdiction of the Supreme Court could be enlarged by
providing an appeal to the Supreme Court against the orders of the
Cooperative Judge. (Emphasis added)

In the aforementioned case the law under question was the Punjab
Undesirable Cooperative Societies (Dissolution) Ordinance, 1992 in which
Section 22 provided for an appeal before the Supreme Court of Pakistan
against orders passed by a Cooperative Judge. The august Supreme Court of
Pakistan concluded that the Federal Legislature can enlarge the jurisdiction
of the Supreme Court under a law as contemplated in Article 175(2) of the
Constitution. As per the judgment of the august Supreme Court of Pakistan,
Parliament can enlarge the jurisdiction of the Supreme Court of Pakistan but
the Provincial Assemblies are not competent to enlarge the jurisdiction of
the Supreme Court of Pakistan by any law. Essentially the rational is that the
subject of enlargement of jurisdiction of the Supreme Court of Pakistan
under the FLL is a subject which exclusively falls within Parliament’s
domain, so Parliament can confer jurisdiction on the Supreme Court of
Pakistan, by law, if the Constitution permits it.
64. In this regard, it is important to note that Article 225 of the
Constitution provides that election disputes shall be called into question
under an Act of Parliament. The Article does not require or authorize that an
appeal lie to the Supreme Court of Pakistan. Yet the Election Act, 2017
provides for a direct appeal to the Supreme Court of Pakistan even though
Article 225 of the Constitution only confers competence on Parliament to
make a law dealing with election disputes. In the same way Article 6 of the
Constitution deals with the crime of high treason and Sub-Clause 3 provides
that Parliament can by law provide for punishment of high treason. The High
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Treason (Punishment) Act, 1973 tries the offence of high treason by special
courts constituted under the Criminal Law Amendment (Special Court) Act,
1976 where Section 12(3) provides for an appeal against final judgment to
the Supreme Court of Pakistan. Again the Constitution declared Parliament
competent to make law to provide for the punishment of high treason. On
reading both Articles it leads us to conclude that where the Constitution
declares Parliament competent to make law which regulates jurisdiction,
Parliament can confer jurisdiction on the Supreme Court of Pakistan through
a law as per Entry 55 of the FLL. We have already held that Parliament is
competent to make law to regulate trade, commerce or industry in the
interest of free competition under Article 18 of the Constitution. The power
to regulate the fundamental rights includes the jurisdiction of the court
because the august Supreme Court of Pakistan has jurisdiction to ensure the
enforcement of fundamental rights in the public interest under Article 184
(3) of the Constitution. So if Parliament can make a law on the subject of
competition to regulate trade, commerce and industry, it can confer appellate
jurisdiction on the Supreme Court of Pakistan, as the Supreme Court of
Pakistan is already vested with the jurisdiction to enforce any of the
fundamental rights mentioned in Chapter I and II of the Constitution. This
view was taken by the august Supreme Court of Pakistan in Baz Muhammad
Kakar and other v. Federation of Pakistan through Ministry of Law and
Justice and others (PLD 2012 SC 923) where five Hon’ble Judges of the
august Supreme Court of Pakistan were considering the jurisdiction of the
Supreme Court of Pakistan with reference to the Contempt of Court Act,
2012 and held that the jurisdiction of the Supreme Court of Pakistan and
High Courts includes enforcement of fundamental rights enshrined in the
Constitution under Article 184 (3) and 199 respectively. Hence based on a
reading of Article 175(2) read with Entry 55 of Part I of the FLL read with
Article 184 (3) of the Constitution, Sections 43 and 44 of the Act are not
ultra vires the Constitution.
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(D) Lapses of Ordinances and consequently lapses of all proceedings and

orders

65. Learned counsel argued that prior to the promulgation of the Act,
there were the Ordinances. As per the given timeline there are three periods
when there was a gap in the legal regime provided by the Ordinances but no
savings or continuance or revival clause in the subsequent law. Hence the
proceedings initiated under one Ordinance were never saved under the
subsequent Ordinance. As the proceedings and orders were not saved under
the Ordinances, they could not continue under any of the subsequent
Ordinances or under the Act. Furthermore, the 2009 and 2010 Ordinances
purports to establish the CCP afresh; hence there can be no continuity with
the establishment of the CCP. The effect of this lapse and the gaps between
the promulgation of the Ordinances is such that all actions, proceedings and
orders cease to exist and cannot be resumed or continued with under the
subsequent laws. As the CCP ceased to exist, no continuity can be given to
the power it exercised during the gap period, or even in the continuation of,
after its fresh establishment under the 2009 and 2010 Ordinances and then
the Act. In this regard, it was argued that there is nothing in the Act to save
the actions, proceedings and orders under the Ordinances nor can they
continue with the proceedings or orders passed under the earlier Ordinances.
Section 62 of the Act is the validation clause which merely stipulates that
orders, proceedings pending since 2007 are valid but there is nothing in
Section 62 which can validate proceedings which ceased to exist on account
of the gaps between the 2007, 2009 and 2010 Ordinances and then the Act.
Hence they argue that Section 62 does not have the effect of covering any of
the time gaps nor can the Act save the proceedings which were never saved
in the first instance under the relevant Ordinances.
66. The AGP argued that the first gap period between the 2007 Ordinance
and the 2009 Ordinance is covered by the judgment passed by the august
Supreme Court of Pakistan in Sindh High Court Bar Association through
Secretary and another v. Federation of Pakistan through Secretary, Ministry
of Law and Justice, Islamabad and others (PLD 2009 SC 879) (“Sindh
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High Court Bar Case”). The second gap period between the 2009
Ordinance and the 2010 Ordinance is of 24 days and is covered by giving
retrospective effect to the 2010 Ordinance. Similarly, the third gap period
between the 2010 Ordinance and the Act is covered under Section 62 of the
Act. He further argued that Section 62 of the Act gives legal cover to all gap
periods from 2007 in the form of a declaration by Parliament. He has also
relied on the defacto doctrine to urge the point that the defacto doctrine
covers all actions and decision taken by the CCP in the gap period. In this
regard, he has relied on Mahmood Khan Achakzai and others v. Federation
of Pakistan and others (PLD 1997 SC 426), Malik Asad Ali and others v.
Federation of Pakistan through Secretary, Law, Justice and Parliament
Affairs, Islamabad and others (PLD 1998 SC 161) and Pakistan Medical
and Dental Council through President and 3 others v. Muhammad Fahad
Malik and 10 others 2018 SCMR 1956). However, he has placed great
emphasis on Federation of Pakistan and others v. M. Nawaz Khokhar and
others (PLD 2000 SC 26) (“Nawaz Khokhar Case”) in which he states
that a similar issue was considered with reference to the Ehtesab Act and the
Court has upheld all proceedings while relying on the intent of the
legislature.
67. In order to appreciate the arguments of the parties, it is necessary to
first illustrate the gap period:

Law Date of Promulgation Date of Expiry

Competition Ordinance 02.10.2007 02.02.2008

2007
Competition Ordinance 26.11.2009 26.03.2010
2009
Competition Ordinance 20.04.2010 18.08.2010
2010

Competition Act, 2010 6.10.2010

In this respect it is also important to reproduce the repeals and savings

clauses in the Ordinances:
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2007 Ordinance:
Section 59 Repeals and savings.-On the commencement of this Ordinance-

(a) the Monopolies and Restrictive Trade Practices (Control and

Prevention) Act, 1970 (V of 1970), hereinafter referred to as the
repealed Ordinance, shall stand repealed;
(b) the Monopoly Control Authority established under the repealed
Ordinance shall stand dissolved;
(c) all assets, rights, powers, authorities and privileges and property,
movable and immovable, cash and bank balances, reserve funds,
investments and all other interests and rights in, or arising out of, such
property and all debts, liabilities and obligations of whatever kind of
the Monopoly Control Authority subsisting immediately before its
dissolution shall stand transferred to and vest in the Competition
Commission of Pakistan established under this Ordinance;
(d) no officer, employee, servant, or any other person holding any post in
connection with the affairs of the Monopoly Control Authority shall
have any right or lien to appointment to any post in the Competition
Commission of Pakistan established under this Ordinance;
(e) officers, employees, servants, or any other person holding any post in
connection with the affairs of the Monopoly Control Authority, not
considered for appointment in the Commission shall have the option to
be discharged from service on payment of admissible relieving benefits
or alternatively, their services shall be placed at the disposal of the
Finance Division for absorption on the terms and condition to be
determined by that Division but not less favourable than those which
they were entitled to in Monopoly Control Authority, and unless sooner
they are absorbed elsewhere, they shall continue to draw their pay,
allowances, privileges or other benefits from the Commission as they
were drawing while holding their posts in the Authority;
(f) save as otherwise provided in clause (c), all the debts and obligations
incurred or contracts entered into or rights acquired and all matters and
things engaged to be done by, with or for the Monopoly Control
Authority before the enforcement of this Act shall be deemed to have
been incurred, entered into, acquired or engaged to be done by, with or
for the Commission, established under this Act, as the case may be; and
(g) all suits and other legal proceedings instituted by or against the
Monopoly Control Authority before the commencement of this
Ordinance shall be deemed to be suits and proceedings by or against
the Competition Commission of Pakistan as the case may be and may
proceed and be dealt with accordingly.

2009 Ordinance:

Repeals and savings:

Nil

2010 Ordinance:

Section 59 Repeals and savings.-On the commencement of this Ordinance-

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(a) the Monopolies and Restrictive Trade Practices (Control and

Prevention) Act, 1970 (V of 1970), hereinafter referred to as the
repealed Ordinance, shall stand repealed;
(b) the Monopoly Control Authority established under the repealed
Ordinance shall stand dissolved;
(c) all assets, rights, powers, authorities and privileges and property,
movable and immovable, cash and bank balances, reserve funds,
investments and all other interests and rights in, or arising out of, such
property and all debts, liabilities and obligations of whatever kind of the
Monopoly Control Authority subsisting immediately before its
dissolution shall stand transferred to and vest in the Competition
Commission of Pakistan established under this Ordinance;
(d) no officer, employee, servant, or any other person holding any post in
connection with the affairs of the Monopoly Control Authority shall
have any right or lien to appointment to any post in the Competition
Commission of Pakistan established under this Ordinance;
(e) officers, employees, servants, or any other person holding any post in
connection with the affairs of the Monopoly Control Authority, not
considered for appointment in the Commission shall have the option to
be discharged from service on payment of admissible relieving benefits
or alternatively, their services shall be placed at the disposal of the
Finance Division for absorption on the terms and condition to be
determined by that Division but not less favourable than those which
they were entitled to in Monopoly Control Authority, and unless sooner
they are absorbed elsewhere, they shall continue to draw their pay,
allowances, privileges or other benefits from the Commission as they
were drawing while holding their posts in the Authority;
(f) save as otherwise provided in clause (c), all the debts and obligations
incurred or contracts entered into or rights acquired and all matters and
things engaged to be done by, with or for the Monopoly Control
Authority before the enforcement of this Ordinance shall be deemed to
have been incurred, entered into, acquired or engaged to be done by,
with or for the Commission, established under this Ordinance, as the
case may be; and
(g) all suits and other legal proceedings instituted by or against the
Monopoly Control Authority before the commencement of this
Ordinance shall be deemed to be suits and proceedings by or against the
Competition Commission of Pakistan as the case may be and may
proceed and be dealt with accordingly.
Section 60.Validation of actions, etc. Anything done, actions taken, orders
passed, instruments made, notifications issued, agreements made,
proceedings initiated, processes or communication issued, power
conferred, assumed or exercised, by the Commission or its officers on
or after the 2nd October, 2007 and before the commencement of this
Ordinance, shall be deemed to have been validly done, made, issued,
taken, initiated, conferred, assumed and exercised and provisions of this
Ordinance shall have, and shall be deemed always to have had effect
accordingly.

Sections 61 and 62 of the Competition Act, 2010 are reproduced below:

Section 61 Repeals and savings.-On the commencement of this Act-

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(a) the Monopolies and Restrictive Trade Practices (Control and

Prevention) Act, 1970 (V of 1970), hereinafter referred to as the
repealed Act, shall stand repealed;
(b) the Monopoly Control Authority established under the repealed Act
shall stand dissolved;
(c) all assets, rights, powers, authorities and privileges and property,
movable and immovable, cash and bank balances, reserve funds,
investments and all other interests and rights in, or arising out of, such
property and all debts, liabilities and obligations of whatever kind of the
Monopoly Control Authority subsisting immediately before its
dissolution shall stand transferred to and vest in the Competition
Commission of Pakistan established under this Act;
(d) no officer, employee, servant, or any other person holding any post in
connection with the affairs of the Monopoly Control Authority shall
have any right or lien to appointment to any post in the Competition
Commission of Pakistan established under this Act;
(e) officers, employees, servants, or any other person holding any post in
connection with the affairs of the Monopoly Control Authority, not
considered for appointment in the Commission shall have the option to
be discharged from service on payment of admissible relieving benefits
or alternatively, their services shall be placed at the disposal of the
Finance Division for absorption on the terms and condition to be
determined by that Division but not less favourable than those which
they were entitled to in Monopoly Control Authority, and unless sooner
they are absorbed elsewhere, they shall continue to draw their pay,
allowances, privileges or other benefits from the Commission as they
were drawing while holding their posts in the Authority;
(f) save as otherwise provided in clause (c), all the debts and obligations
incurred or contracts entered into or rights acquired and all matters and
things engaged to be done by, with or for the Monopoly Control
Authority before the enforcement of this Act shall be deemed to have
been incurred, entered into, acquired or engaged to be done by, with or
for the Commission, established under this Act, as the case may be; and
(g) all suits and other legal proceedings instituted by or against the
Monopoly Control Authority before the commencement of this Act shall
be deemed to be suits and proceedings by or against the Competition
Commission of Pakistan as the case may be and may proceed and be
dealt with accordingly.
Section 62 Validation of actions, etc. Anything done, actions taken, orders
passed, instruments made, notifications issued, agreements made,
proceedings initiated, processes or communication issued, power
conferred, assumed or exercised, by the Commission or its officers on
or after the 2nd October, 2007 and before the commencement of this
Act, shall be deemed to have been validly done, made, issued, taken,
initiated, conferred, assumed and exercised and provisions of the Act
shall have, and shall be deemed always to have had effect accordingly.

68. The issue therefore, in the light of the timeline is one of continuance,
saving and validation. In particular the 2007 Ordinance lapsed on
02.02.2008, the 2009 Ordinance makes no reference to the 2007 Ordinance
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nor does it propose to continue the proceedings initiated or save the orders
made under the 2007 Ordinance. The 2007 Ordinance repeals the MRTPO
but so does the 2009 Ordinance and the 2010 Ordinance and the Act without
any reference to the CCP when at the time, under the relevant law, being the
2009 Ordinance the relevant authority was the CCP and not the Monopolies
Control Authority. Even though actions taken by the Monopolies Control
Authority could have continued, so should have proceedings, decisions and
actions of the CCP. So far as the Act is concerned, it repeals the MRTPO
and dissolves the Monopolies Control Authority and gives continuity to suits
and legal proceedings by the Monopolies Control Authority as well as the
CCP. Therefore, in the light of what the Petitioners have argued their
contentions can be summed up in the following terms:
a) The proceedings initiated under the 2007 Ordinance on 20.03.2009
cannot continue as the 2007 Ordinance did not exist on that date
having expired on 02.02.2008;

b) The life of one Ordinance cannot be extended by another

Ordinance;

c) The proceedings initiated under the 2007 Ordinance have not

continued under the 2009 Ordinance or the 2010 Ordinance and
there is nothing in the Act to save, revive or continue the
proceedings or the orders passed under the Ordinances.
69. In the Sindh High Court Bar Case, the Proclamation of Emergency
issued by General Pervez Musharaf on 03.11.2009 was declared
unconstitutional and the validity conferred on saved Ordinances, under
Article 270AAA of the Constitution was such that the Ordinances were
given an extension in time to preserve continuity so that the matter be placed
before Parliament to make temporary legislation into permanent legislation.
The Court decided the matter in the following terms:-
It may be noted that such Ordinances were continued in force throughout under a
wrong notion that they had become permanent laws. Thus, the fact remains that
on the touchstone of the provisions of Articles 89 and 128 read with Article 264
of the Constitution and Section 6 of the General Clauses Act, 1897, only such
rights, privileges, obligations, or liabilities would lawfully be protected as were
acquired, accrued or incurred under the said Ordinances during the period of four
months or three months, as the case may be, from their promulgation, whether
before or after 3rd November, 2007, and not thereafter, until such Ordinances were
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enacted as Acts by the Parliament or the concerned Provincial Assembly with

retrospective effect.
In the light of the above, the question of validation of such Ordinances would be
required to be decided by the Parliament or the concerned Provincial Assembly.
However, the period of four months and three months mentioned respectively in
Articles 89 and 128 of the Constitution would be deemed to commence from the
date of short order passed in this case on 31st July, 2009 and steps may be taken to
lay such Ordinances before the Parliament or the respective Provincial
Assemblies in accordance with law during the aforesaid periods. This extension of
time has been allowed in order to acknowledge the doctrine of trichotomy of
powers as enshrined in the Constitution, to preserve continuity, to prevent
disorder, to protect private rights, to strengthen the democratic institutions and to
enable them to perform their constitutional functions, which they were
unconstitutionally and illegally denied under PCO No.1 of 2007. Needless to say
that any validation whether with retrospective effect or otherwise, shall always be
subject to judicial review on the well recognized principles of ultra vires, non-
conformity with the Constitution or violation of the Fundamental Rights, or on
any other available ground. (Emphasis added)

70. The 2007 Ordinance was promulgated on 02.10.2007 and lapsed on

02.02.2008. However, in terms of the Sindh High Court Bar Case, the time
was extended with effect from 31.07.2009 for 120 days, until 30.11.2009.
The 2007 Ordinance was initially covered under the Provisional
Constitutional Order 2007 as a saved Ordinance and the judgment in Tika
Iqbal Muhammad Khan v. General Pervez Musharaf and others (PLD 2008
SC 178) and then the Sindh High Court Bar decision. The Sindh High Court
Bar judgment extended the time to place the 2007 Ordinance before
Parliament and gave legal cover for the extended period. The 2007
Ordinance was not placed before Parliament, rather was re-promulgated as
the 2009 Ordinance on 26.11.2009. The 2009 Ordinance was made
applicable with effect from 02.10.2007, hence covered the gap period
including the period covered under the Sindh High Court Bar Case with
retrospective effect. This means that proceedings, orders and actions under
the 2007 Ordinance continued under the 2009 Ordinance till its lapse on
25.03.2010. The 2010 Ordinance was promulgated on 20.04.2010 and lapsed
on 18.08.2010. As per the Repeals and Savings section of all three
Ordinances all suits and other legal proceedings instituted by or against the
Monopoly Control Authority before the commencement of the Ordinance
shall be deemed to be suits and proceedings by or against the CCP, as the
case may be, and may proceed and be dealt with accordingly. Section 60
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validated all actions taken, orders passed and proceedings initiated on or

after 02.10.2007 and Section 1 (3) of the 2010 Ordinance provided that it
shall be deemed to take effect from 26.03.2010. Hence Section 1(3) of the
2010 Ordinance gives retrospective effect to the 2010 Ordinance from the
date of lapse of the 2009 Ordinance. The gap period is therefore covered by
the deeming provision of Section 1 (3) of the 2010 Ordinance. Hence the
claim of continuity remained with the repeated promulgation of the 2007,
2009 and 2010 Ordinances.
71. The Act was promulgated on 06.10.2010 and came into force at once.
The 2010 Ordinance lapsed on 18.08.2010, hence there is a gap of 50 days
between the lapse of 2010 Ordinance and the promulgation of the Act. There
is no savings section or continuation of earlier proceedings, actions and
orders under the Repeals and Savings Section of the Act. The validation
Section of the Act is Section 62 which deems to validate everything from
02.10.2007, which is the date of promulgation of the 2007 Ordinance. The
Petitioners argue that Section 62 is merely a validation clause and does not
save or revive or continue orders, actions or proceedings. They argue that a
repeal without a saving section will quash all proceedings, orders and
actions because they have not been saved. The AGP argued that Section 62
is not just a validation simplictor it is a declaration by the legislature to give
continuity to all actions, orders, proceedings under the Ordinance and then
the Act. He argued that it should not be read strictly as a validation clause
but rather as a declaration by Parliament, with the intent to save all actions
and decisions and give continuity from 02.10.2007 to the decisions, actions
and exercise of power by the CCP. Essentially the AGP argued that the
intent of the legislature should be considered as was done in the Nawaz
Khokhar Case.
72. In the Nawaz Khokhar Case a seven member bench of the august
Supreme Court of Pakistan considered the successive promulgations of the
Ehtesab Ordinances in the following terms:-
The next contention of the learned counsel for the private appellants in
the above cases is, that Ordinance XX having repealed and replaced
Ordinance CXI, the proceedings pending on the date of repeal of
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Ordinance CXI, could not be saved and continued under Ordinance XX

in the absence of a specific clause in the repealing Ordinance saving the
proceedings pending under Ordinance, CXI. It is contended by the
learned counsel for the private appellants that section 28 of the
Ordinance XX which repealed Ordinance CXI, Ordinance VII and
Ordinance XI, did not specifically save the proceedings which were
pending under Ordinance CXI and therefore, all proceedings pending
under Ordinance CXI came to an end with the repeal of Ordinance, CXI,
and the same could not be continued or saved under Ordinance XX. In
support of this contention, reliance is placed by the learned counsel on
Government of Punjab v. Zial Ullah Khan 1992 SCMR 602 and
Muhammad Arif v. State 1993 SCMR 1589.

Before considering the above contention, it may be stated here that if

any Ordinance stands repealed under the Constitution, the consequences
of repeal are provided under Article 264 of the Constitution. However, if
a law is repealed by a subsequent Act, the consequences flowing from
such repeal are to be determined with reference to the provisions of
Section 6 of the General Clauses Act. The contention of the learned
counsel for the private appellant is, that Ordinance XX while repealing
Ordinance CXI, though contained a saving clause, did not provide for
continuation of the proceedings pending under Ordinance CXI, which
shows that the Legislature did not intend to keep the pending
proceedings alive under Ordinance XX. Repeal of Ordinance CXI, by
Ordinance XX was not a case of simple repeal but it was a case of
simultaneous repeal and re-enactment of a legislation, and therefore,
besides consequences mentioned in section 6 of the General Clauses
Act, section 24 of the General Clauses Act were also attracted.
Ordinance XX was a verbatim reproduction of Ordinance CXI.
Ordinance CXI, was still enforced when it was repealed by Ordinance
XX. It may also be mentioned here that Ordinance XX was finally
converted into a permanent legislation when the Legislature passed it as
Act IX of 1997. It is, therefore, quite clear to us that although Ordinance
CXI, was a temporary legislation but the Legislature intended to provide
continuity to its provisions by first repealing it by Ordinance XX and
then converting the later into an Act of Legislature by passing it as Act
IX of 1997. (Emphasis added)

73. The Nawaz Khokhar Case relies on the intent of the legislature in
giving continuity to temporary legislation which eventually became
permanent legislation. The august Supreme Court of Pakistan held that there
was clear intent on the part of the legislature while enacting the Act, to give
continuity to the provisions of the Ordinances, proceedings initiated in spite
of the fact that there was no saving clause in the Ordinances. The
circumstances of this case are similar with the instant cases before us with
the repeated promulgation of the Ordinances and eventually the Act. Section
62 of the Act gives the clear intent of Parliament to give continuity and
permanence to the actions, proceedings and orders, amongst others of the
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CCP under the Ordinances which suggests that the intent was there to give
continuity to the exercise of power by the CCP. Section 62 supports the
intent of Parliament by deeming everything to be validly done as of
02.10.2007 and by declaring that the Act shall have, and shall be deemed
always to have had effect accordingly. So the legislature by way of a
deeming provision has declared that actions, proceedings orders etc. which
were not saved due to the defect caused by the gaps and lack of a saving
clause, will deem to exist by way of legal fiction. The use of a deeming
provision is not uncommon in our jurisdiction. In Mehreen Zaibun Nisa v.
Land Commissioner, Multan (PLD 1975 SC 397) the august Supreme Court
of Pakistan concluded that when a statute contemplates that a state of affairs
should be deemed to have existed, it clearly proceeds on the assumption that
in fact it did not exist at the relevant time but by a legal fiction we are to
assume as if it did exist. The classic statement as to the effect of a deeming
clause is to be found in the observations of Lord Asquith in East End
Dwelling Company Ltd. v. Finsbury Borough Council (1952) AC 109)
namely where the statute says that you must imagine the state of affairs, it
does not say that having done so you must cause or permit your imagination
to boggle when it comes to the inevitable corollaries of that state of affairs .
In Begum B.H. Syed v. Mst. Afzal Jahan Begum and another (PLD
1970 SC 29) the august Supreme Court of Pakistan found that certain limits
have to be determined within which the legislature can create legal fiction.
Consequently, the Court is bound to ascertain for what purposes the
statutory fiction is to be resorted to.
In Molasses Trading and Export (Pvt.) Limited v. Federation of
Pakistan and others (1993 SCMR 1905) it was held that:-
When a legislature intends to validate a tax declared by a Court to be illegally
collected under an invalid law, the cause for ineffectiveness or invalidity must be
removed before the validation can be said to take place effectively. It will not be
sufficient merely to pronounce in the statute by means of a non obstante clause
that the decision of the Court shall not bind the authorities, because that will
amount to reversing a judicial decision rendered in exercise of the judicial power
which is not within the domain of the legislature. It is therefore necessary that the
conditions on which the decision of the Court intended to be avoided is based,
must be altered so fundamentally, that the decision would not any longer be
applicable to the altered circumstances. One of the accepted modes of achieving
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this object by the legislature is to re-enact retrospectively a valid and legal taxing
provision, and adopting the fiction to make the tax already collected to stand
under the re-enacted law. The legislature can even give its own meaning and
interpretation of the law under which the tax was collected and by “legislative
fiat” make the new meaning binding upon Courts. It is in one of these ways that
the legislature can neutralise the effect of the earlier decision of the Court. The
legislature has within the bounds of the Constitutional limitations, the power to
make such a law and give it retrospective effect so as to bind even past
transactions. In ultimate analysis therefore the primary test of validating piece of
legislation is whether the new provision removes the defect which the Court has
found in the existing law and whether adequate provisions in the validating law
for a valid imposition of tax were made.

In this case, the deeming provision was to neutralise the effect of a Court
decision. The concept of a deeming provision has been relied upon by the
august Supreme Court of Pakistan in several decisions so as to import the
intent of the legislature and give effect to it. Reliance is placed on
Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through
Secretary, Ministry of Defence and others (PLD 2006 SC 602), Federation
of Pakistan and others v. Mian Muhammad Nawaz Sharif and others (PLD
2009 SC 644) and All Pakistan Newspapers Society and others v.
Federation of Pakistan and others (PLD 2012 SC 1). The august Supreme
Court of Pakistan has held in these cases that by way of the deeming
provision the legislature has declared its intent, which is to remove any
doubts, defects or errors and the courts are bound by this intent.
74. The Supreme Court of India has also considered deeming provisions
as declaratory clauses where the legislature declares its intent in a statute to
remove doubt or error. In The Central Bank of India and others v. Their
Workmen etc (AIR 1960 SC 12) held that:-
For modern purposes a declaratory Act may be defined as an Act to remove
doubts existing as to the common law, or the meaning or effect of any statute.
Such Acts are usually held to be retrospective. The usual reason for passing a
declaratory Act is to set aside what Parliament deems to have been a judicial
error, whether in the statement of the common law or in the interpretation of
statutes. Usually, if not invariably, such an Act contains preamble, and also the
word declared as well as the word enacted.

In this case the declaratory provision under the statute was used to overcome
a judicial error. The point being that a declaration is made by Parliament to
correct or clarify a situation. In the cases before us the declaratory provision
under Section 62 of the Act does not change the effect of any judicial
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decision rather aims to correct a defect caused by the legislature itself. It

declares that which is the law and has always been the law since 2007, under
the 2007 Ordinance. As Parliament is the supreme law maker, Parliament
can correct an error in a former statute and it can explain and remove
ambiguity in a subsequent statute. In M. Venugopal v. Divisional Manager,
Life Insurance Corporation of India, Machilipatnam, A.P. and another
(1994 2 SCC 323) it was stated that a deeming clause is one where the
legislature can introduce a statutory fiction and courts must proceed on the
assumption that such statutory fiction relates to the accepted state of affairs,
which are real and consequences and incidents, which inevitably flow from
such state of affairs are also real. In Commr. Of Income-tax, Bombay
Presidency v. Bombay Trust Corporation, Ltd (AIR 1930 PC 54) the court
concluded that when a provision is deemed to be something the only
possible meaning of a deeming clause is that Parliament requires something
which is not real to be treated as if it is real. In Consolidated Coffee Ltd and
another. v. Coffee Board Bangalore (1980) 3 SCC 358) the court held that
the word deemed is used a great deal in modern legislation not only in
creating legal fiction but also made to include that which is uncertain or
obvious or to impose for the purpose of the statute an artificial construction
that would not otherwise prevail but is relevant for the intent of the
legislature. On the basis of these precedents it follows that a deeming
provision must be looked at with respect to its intent that is to uphold a non-
existent situation as being existing. The legislature is competent to enact a
deeming provision for the purposes of assuming the existence of facts or
state of affairs which did not exist at the time and the court must assume that
the facts or state of affairs which the legislature wants to be treated as legal
fiction, are real and all consequences and incidents which inevitably flow
therefrom should be given effect to. In State of Maharashtra v. Laljit Rajshi
Shah (2000) 2 SCC 699) the Supreme Court held that it is a well known
principle of construction that when interpreting a provision creating a legal
fiction the court is to ascertain the purpose for which the legal fiction is
created and thereafter to assume that the facts and consequences which are
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incidental or inevitable from the legal fiction are real. We find that the only
intent that has come forward with reference to Section 62 of the Act is that
continuity be given to all proceedings, decisions and actions taken by the
Monopolies Control Board and the CCP from the promulgation of 2007
Ordinance. Hence the intent of Parliament is clear, which is to give legal
cover to proceedings, decisions, actions and orders, amongst others, of the
CCP. The effect of this declaration is simply to give continuity to the
exercise of authority by the CCP with reference to the show cause notices,
orders and proceedings challenged before the Court.
75. While looking at the vires of a statute all effort must be made to
protect the statute and preserve the intent of the legislature. There is always
a presumption of its constitutionality and a more liberal interpretation can be
given in order to uphold the vires of the statute. A statute must be construed
to preserve its intent, ut res magis quam pereat. The legal maxim requires
courts to make legislation operative, given reasonable intendment and
construction. The meaning of this maxim that a deed should never be
avoided where the words may be applied to make it good, requires that every
effort be made by the court to find a meaning capable of interpretation to
uphold the vires of the law because it is better for a law to have effect than
be void. This maxim is a rule of construction which requires the Court to
give effect to the law and not destroy it, so if two constructions are possible,
the court should always adopt that construction which will uphold the law
and not the one which will render the law a nullity. Reliance is placed on
Sardar Farooq Ahmad Khan Leghari and others v. Federation of Pakistan
and others (PLD 1999 SC 57) and Lahore Development Authority through
D.G and others v. Ms. Imrana Tiwana and others (2015 SCMR 1739).
76. We are therefore of the opinion that by giving supremacy to the intent
of the legislature, the Nawaz Khokhar Case has sufficiently addressed the
issue of continuity. However, in the cases before this Court, Section 62 of
the Act provides for the intent of the legislature in the clear words of a
deeming provision. Although the Petitioners have attempted to distinguish
the Nawaz Khokhar Case on account of the express repeal by Ehtesab
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Ordinance No.XX of the Old Ehtesab Ordinance No.CXI and Section 31 of

the Ehtesab Act, 1997, and have also relied on cases to urge the effect of the
expiry of an Ordinance, we find that Section 62 of the Act is distinguished as
the intent of the legislature is evident from the statute itself, that by giving
continuity to the actions, proceedings, decisions and orders initiated by the
CCP, the legislature has not decided any dispute or settled any issue, it has
merely given continuity, to correct the lapse of there being no savings clause
in the Ordinances. Hence Section 62 of the Act removes the flaw by creating
the legal fiction of continuity which gives legal cover to the proceedings,
show cause notices and orders challenged before us. As such the Petitioners
rights under the Act if any, to challenge the proceedings or orders before
CAT or any legal forum remain intact and no prejudice is caused to them.
77. In view of the aforesaid, for the reasons stated, this Writ Petition
along with connected Writ Petitions are dismissed. Separate orders have
been passed in the appeals.
78. Although the other two learned members of this Bench (Shahid Jamil
Khan and Muhammad Sajid Mehmood Sethi, JJ.) have concurred with me
on the issues of “Appellate jurisdiction of Supreme Court” and “Validation
Clause in the Competition Act, 2010” but are not in agreement with me on
the findings on “Federal and Provincial Legislative Competence” and
“Parallel Judicial System” and have given their reasons through separate
notes which are part of this judgment. ][[[[

(Ayesha A. Malik)
Judge

(Muhammad Sajid Mehmood Sethi) (Shahid Jamil Khan)

Judge Judge
Approved for Reporting

Judge

Judge Judge
th
Announced in an open Court on 26 day of October, 2020.

Judge
Allah Bakhsh/Anwaar
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Shahid Jamil Khan, J:- Before expressing my opinion, I

acknowledge the labour put in for assimilating the arguments and material to
shape up the issues by learned Senior Member (Ayesha A. Malik, J.), while
authoring main judgment, therefore, I have luxury of not repeating much.

After reading the main judgment, with respect and reverence, I have a
different opinion and decision on the issues, “Federal and Provincial
Legislative Competence” and “Parallel Judicial System”.

1. Competence and Extent of Federation to Legislate on Competition

Law.

Federation is political entity, consisting of self-governing regions

(states or provinces) with a central government. Division of power
between the constituent states or provinces and centre is, in recent
times, defined by the Constitution of a Federal State. Collective goal
of the Federation should be, as per recent political science studies, to
achieve trio of social virtues: (i) political participation, (ii)
protection of the sovereign rights of citizens and (iii) economic
welfare and efficiency. The scholars, called Federalist, argue that
democratically elected central government is generally more effective
to ensure political participation, protection of the rights of citizens and
for more efficient and equitable resource allocations. However,
careful balancing of legislative and executive power between centre
and constituent states is key to achieve the goals, which varies in
different Federalists structures according to their own cultural and
political circumstances.

1.2 In Pakistan, state is defined by Article 7 of the Constitution of the

Islamic Republic of Pakistan, 1973 (“Constitution”), which includes
Federal Government, Provincial Government and local or other
authorities i.e. three tier governing system to achieve and ensure the
trio of social virtues. Besides having an effective and efficient central
government, modern times approach favours devolution of power to
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grass root level. There was a longstanding demand for Provincial

Autonomy, in particular by smaller Provinces other than Punjab,
which was finally answered through the Constitution (Eighteenth
Amendment) Act, 2010 (“Eighteenth Amendment”). A new Article
140A is inserted in the Constitution, through this amendment, which
commands ‘each Province to establish a local government system and
develop political, administrative and financial responsibility and
authority to the elected representatives of the local governments’.
Though the Provincial Autonomy, extent of which is discussed infra,
has been given by the Eighteenth Amendment but its implementation
is in process, which is raising questions of legislative competence and
the Constitutional Courts are enduring to answer under the facts and
circumstances of each case. It will not be out of place to observe that
the command of Article 140A is not being rationalized by devolving
political, administrative and financial responsibility and control to the
local governments.

1.3 There is no doubt that Federal nature of the Constitution is intact,

even after the Eighteenth Amendment. But to understand the extent
and spirit of Provincial Autonomy, the amendments brought in
Chapter 1 of Part V of the Constitution, titled ‘Distribution of
Legislative Powers’ need to be examined.

The basic structure of Federal Constitution has not been

compromised, despite abolishing Concurrent Legislative List
(“CLL”) through amendment in Article 142, for giving power to the
Provinces only for legislation on the subjects enunciated in erstwhile
CLL. Nevertheless, Basic Rule, as contained in Article 141, remained
unchanged that Majlish-e-Shura (Parliament) shall have power to
make laws for whole or any part of Pakistan, including laws having
extra-territorial operations, and a Provincial Assembly may make
laws for the Province or any part thereof. It is important to note that
this rule is not subject to the Constitution, however, elaboration of this
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rule in Article 142 is Subject to the Constitution. Article 142 defines

the extent of Federal and Provincial legislative power; which before
amendment through the Eighteenth Amendment was giving exclusive
legislative power to Provinces only on the matter not enumerated in
either Federal Legislative List (“FLL”) or CLL. However, the post
amendment Clause (c) to Article 142 has extended the exclusive
legislative power to the matters not enumerated in FLL. The CLL,
was omitted from Fourth Schedule, however, the rule of Federal
Supremacy was maintained in the substituted Article 143 that in case
of inconsistency between Federal and Provincial law, if the Parliament
is competent to enact that law, the Provincial legislation to the extent
of inconsistency shall be void. Importantly, while referring to
Parliament’s competence, FLL is not referred, which strengthens the
finding in main judgment that Parliament’s legislative competence can
be gathered from the Constitution in addition to the subject matters
enumerated in FLL [Entries 58 and 59]. Federal character of the
Constitution is further fortified, through amendment in Article 144, by
replacing the word ‘two’ with ‘one’ for the number of Provincial
Assemblies to pass resolution for the Parliament to legislate for
regulating a matter not listed in FLL. Even this amendment does not
diminish the Basic Rule of legislative competence.

1.4 Petitioner side’s arguments are correct to the extent that after the
Eighteenth Amendment, Provincial Assemblies have legislative power
on matters not listed in FLL. But their assertion that Federal
legislature’s power is restricted within Article 142 and FLL, is a
pedantic approach and self-destructive in view of Entries 58 and 59 of
FLL, besides ignoring opening phrase ‘subject to constitution’ used in
Article 142. Article 151, justifies the phrase ‘Subject to the
Constitution’ as used at the beginning of Article 142, which curtails
the legislative power of a Provincial Assemble or executive authority
of Provincial Government [Article 151(3)], prohibiting or restricting
‘Free trade, commerce and intercourse throughout Pakistan’.
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Free trade, commerce and intercourse throughout a State, or

amongst its constituent states, is a hallmark of a Federation, be it
Commerce Clause of United States of America’s Constitution [Article
I, Section 8] or European Union’s Convention.

1.5 Though Article 151(2) is itself giving legislative power to the

Parliament for imposing restriction, to regulate or ensure ‘freedom of
trade, commerce and intercourse throughout Pakistan’, yet if we read
it with Entry 27, the legislative power of the Parliament over ‘inter-
provincial trade and commerce’ becomes absolute. Entry 59 and
Article 18, if read along, would enhance the scope of Parliament’s
legislative power over inter-provincial trade and commerce, for
ensuring free competition. To conduct a lawful trade and business is a
fundamental right guaranteed in Article 18, along with lawful
profession or occupation. This right is eclipsed through “regulation of
trade, commerce and industry in the interest of free competition” i.e.,
this fundamental right can be restricted if it is tainted with any
anticompetitive behaviour under the law. Free competition is, in a
way, a ‘fundamental right in contrast’ to safeguard the consumers and
small business entities from anticompetitive behaviour, therefore, is to
be read in or along with the phrase ‘trade and commerce’ being
ancillary or incidental, if mandate of Entry 59 is invoked.

The question whether Parliament has power to legislate on

competition law is answered in affirmative in backdrop of analysis
hereinabove.

1.6 The question, however, remains whether Parliament has exclusive

power to legislate on Competition Law. I do not agree with the
finding or observation, in main judgment, that this question is not
before us and not required to be deliberated. Because while deciding
upon the legislative power of the Federation, its extent and balancing
its competence with Provincial Legislative Power, after the Eighteenth
Amendment, cannot be ignored.
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Entry 27 is empowering the Parliament to legislate over “inter-

provincial trade and commerce”, along with ‘import and export’,
‘trade and commerce with foreign countries’ and ‘standard of quality
of goods to be exported’. Similar is subject of Article 151, which
ensures ‘freedom of trade, commerce and intercourse throughout
Pakistan’, which necessarily includes interprovincial trade and
commerce, but does not include ‘intra provincial trade and
commerce’ by any stretch of interpretation. The Constitution does not
suggest, in FLL or elsewhere, that “trade and commerce” is
exclusively a Federal subject. While explaining goal of the
government, supra, it is explained that political participation,
protection of citizen’s rights and economic efficiency and welfare is
duty of every component of the Federation. This observation is
fortified from the language of Article 140A, which commands
Provinces to establish local government system and devolve political,
administrative and financial responsibilities.

Though Article 151 envisions one National Economy by

ensuring free trade, commerce and intercourse, yet it is not
obliterating existence of regional or local economies. Trade and
commerce can be limited; within territory of a local government
which may not necessarily effect comparatively a bigger economy,
such trade and commerce at lowest level has to be governed and
controlled by the local government, by imposing licence fee, local
taxes or fine etc. Any anticompetitive behaviour within local
government’s limit has to be restricted by it. However, trade and
commerce having regional effect, beyond territorial limits of a local
government, would become a provincial subject. Any administrative
object or subject, effect of which spills over the local government’s
geographical limits shall be within legislative and executive authority
of the Province. The Spillover doctrine is recognized by August
Supreme Court in Imrana Tiwana Case (2015 SCMR 1739), while
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examining Lahore Development Authority’s powers and extent,

relevant excerpt is:

“74. The solution, therefore, lies in reading the provisions of the

two statutes in harmony. The LDA Act, 1975 is to be regarded as an
enabling statute. It allows LDA to act in support of and to
complement the Local Government in the exercise of its functions
and responsibilities. Where the Local Government is unable to act
because of a lack of resources or capacity, or where the project is
of such a nature that it spills over from the territory of one
Local Government to another or where the size of the Project is
beyond the financial capacity of the Local Government to execute;
the LDA can step in and work with the Local Government.
Economies of scale, spillovers and effectiveness are merely
illustrative of the situations in which the LDA can act in the exercise
of its functions to carry out developmental and other work and
perform its statutory functions. These are not exhaustive. Life and
time may throw up other situations and create circumstances which
may warrant LDA action to be taken in consultation with the Local
Government within the purview of PLGA, 2013. Closing the
categories today will freeze growth and retard progress.”
(emphasis supplied)

1.7 ‘Spillover Effect’ is an economic term, used for positive or negative

effect of an economic activity, causing benefit without paying or
suffer without compensation. It is also termed as externality or
neighbourhood effect. In law; Spillover Effect may be referred to a
situation where laws, regulations or polices of one governing unit
effects the people outside its territorial limits. In the instant case if an
anticompetitive behaviour is not affecting the trade and commerce of
another Province, it does not come with the phrase ‘interprovincial
trade and commerce’, as used in Entry 27 and discernible in Article
151. Conversely, if any act or omission, between anticompetitive
behaviour, committed within geographical boundaries of a Province,
has its effect beyond such territorial limits, would be subject of a
Federal legislation and within its executive competence.

This doctrine seems to have been invoked by August Supreme

Court in Sui Southern Gas Case (2018 SCMR 802) also. Vires of
Industrial Relations Act 2012 (a Federal Legislation after Eighteenth
Amendment) were in question. Eighteenth Amendment was observed
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to be ‘an iron cladding’ for balance between the authority of

Federation and autonomy of the Provinces. However, in absence of
the subject of the Act of 2012, in FLL, Federation’s competence to
legislate was upheld, because the Provinces and local authorities
lacked competence to ensure and enforce Fundamental Right under
Article 17 (right to form association and unions), as impact of this
right was spilling over the territorial boundaries of the Provinces, for
labour unions of the industrial establishments, having inter provincial
operations. The principle, for legislative competence, recognized or
developed in this judgment is that, ‘Federation can always legislate
for enforcement of constitutionally recognized Fundamental Rights,
even in absence of any Entry in FLL or competence in the
Constitution, if Province lacks competence to enforce it due to
geographical limit on legislative power. The interpretation is in
conformity with Basic Rule of legislative competence under Article
141 or in other words, where other components of State [Article 7]
lack legislative competence, the Federation has legislative power to
enforce fundamental rights.

1.8 The entries referred in main judgment are no exception. Entry 3 starts
with words “external affair” and while explaining it include
implementation of treaties and agreements. Entry 32 covers
International treaties, conventions, agreements and International
arbitration. These entries, through the window of implementing
treaties and agreements, cannot take away legislative competence of a
Provincial Assembly, unless it relates to interprovincial matter or
foreign affairs. For legislation on Competition Law in the light of an
international treaty, distribution of legislative powers between
Federation and Provinces, under Part V Chapter 1, cannot be
compromised. Even otherwise, it is nowhere suggested, in main
judgment or arguments of the parties that any international treaty, to
maintain standards of Competition Law, have called for only a central
legislation.
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1.9 For what has been discussed above, my decision on this issue is that;

Parliament though have power to legislate for ensuring

“Free Competition” through Competition Act 2010 (“Act of
2010”) but only to the extent of ‘Inter Provincial Trade and
Commerce’ [Entry 27]; Any anticompetitive behaviour, within
the territory of Pakistan, if it affects the National Trade and
Commerce, beyond territorial limits of a Province, shall be
cognizable by the Competition Commission under provisions of
the Act of 2010. Every notice under the Act of 2010 should
contain the reasons disclosing that effect of the anticompetitive
behaviour is spilling over territorial limits of respective Province.
For the notices already issued, and are under challenge, the
proceedings shall continue, however, the issue of jurisdiction
shall be decided at first instance.

As conceded by learned Attorney General of Pakistan,

on a specific question, that the Provinces have legislative
power to ensure Free Competition within the territorial limits of
the Province, either through provisions in existing general laws
or through a special legislation. If such law is enacted or exists,
the Executive Authority shall not be exercised by a Province on
a matter, cognizance of which is taken by the Competition
Commission under the Act of 2010 and If cognisance is taken
by both, Provincial and Federal Authorities, the proceedings
initiated by Federal Authorities shall prevail, unless it is
established that the anticompetitive behaviour does not have
the spillover effect. [Provisos to Articles 97 and 137 read with
Article 148].

In view of above, this and connected petitions are allowed on the

issue, ibid, in terms noted above.
2. Parallel Judicial System.

I agree, with the finding in main judgment, that Competition

Commission and Appellate Authority under its control [Section 41 of
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the Act of 2010] are performing administrative functions, therefore,

are not covered under Article 175(3), but I do not agree with the
conclusion that Competition Appellate Tribunal (“CAT”) is an
Administrative Tribunal.

Before supporting my opinion by discussing law from Pakistani

jurisdiction, it seems necessary to understand the development and
spirit of Administrative Law, which empowers the authorities to make
rules, prosecute for violating these rules and then adjudicate itself on
the consequential disputes. Whereas, scheme of our Constitution is
separation of Judiciary from the Executive and Legislature, to protect
constitutional and statutory rights of citizens from being violated by
the Executive and to ensure that laws enacted by the Legislature are
within competence and in accordance with the Constitution.

2.2 In twentieth century, concept of Administrative Agencies of the

Executive (Regulatory Authorities under Entry 6 Part II of FLL) developed
for governance on specialized matters like, taxation, environment,
broadcasting or free competition etc. To achieve a specified regulatory
agenda of the Executive, such semi-independent executive bodies are
conferred, through legislation, with powers of rulemaking,
adjudication and decision making through Boards, Commissions and
Tribunals. The law defining purpose, structure, functions and powers
of the Administrative organs is called ‘Administrative Law’. As a
recognized branch of Public Law, it deals with relationship of
individuals with Government, through its agencies, and to safeguard
the rights and privileges of the individuals, which might be wronged
by operations of the authorities under Administrative Agencies.

The Administrative Law is differently applied in Civil Law

Countries, like France, Germany, China etc., and Common Law
Countries, like United Kingdom, United States and Australia etc. In
Civil Law Countries procedural rules are specifically designed for
adjudication by such authorities and to check correctness of their
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decision an independent or parallel hierarchy of forums like tribunals

and courts are established. Whereas in Common Law Countries the
decisions and actions of administrative authorities are subject to
judicial review by the courts of general jurisdiction, in addition to
internal review through appeal or revision by the administrative
authorities themselves. While reviewing judicially, the administrative
actions or decisions, courts of general jurisdictions ensure that
principles of due process are observed and fundamental rights are not
violated, besides looking into fairness and vires of the actions.
Needless to say that material from Civil Law jurisdictions cannot be
taken as reference or precedent for countries from Common Law
jurisdictions. In Pakistan, being a Common Law Country, power of
judicial review is embedded in the Constitution; for High Courts
under Article 199 and for Supreme Court of Pakistan under Article
184(3). Being constitutional power, it cannot be abridged, curtailed or
compromised by any legislation, provincial or federal, therefore is not
in issue before us in these cases.

The issue, in these cases, is of Parallel Judicial System in the

name of Administrative Tribunals, which are mostly creation of the
same legislation through which the Regulatory Authority is
established. Like, CAT under Section 43 of the Act of 2010, control
of which i.e., appointments of the Chairman and Member and
financial dependency lies with the Executive (Ministry of Law) and not
the authorities under the same statute, unlike an Appellate Authority,
under Section 41, within such administrative entity. Appellate Bench
of the Commission, under Section 41 of the Act of 2010, is constituted
by the Commission itself and its financial control is also with it. The
appellate, or any other forum, within control of the authority, poised
to achieve the administrative goal, is a perfect form of Administrative
Tribunals. Any other forum, not in control of the Regulatory
Authority, if controlled, administratively or financially, by the
Executive would offend and prejudice the mandate of ‘Separate and
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Independent Judiciary’, as commanded by Article 175 (3) and ruled

by August Supreme Court of Pakistan in Sharaf Faridi (PLD 1994 S.C.
105), Mehram Ali (PLD 1998 S.C. 1445) and Sh. Riaz-Ul-Haq (PLD
2013 S.C. 501) Cases. In Tariq Transport Company Case (PLD 1958
S.C. 437), though being a judgment of the period before the Constitution of
1973, the difference between Administrative and Judicial Tribunals, is very
eloquently highlighted in the following excerpt:-

“The question whether an act is judicial, quasi-judicial or

administrative is clouded by a confusion which it is extremely difficult
to resolve and no clear-cut distinction between these three functions
can be discovered from the large number of reported cases and the
divergent opinions expressed therein. In modern States where
expertise is the dominating feature of Government more than one
function is combined in administrative tribunals, and more often than
not an administrative agency discharges not only legislative and
administrative but also judicial functions. The true question in the
case of such tribunals always is whether the act which is complained
of is a judicial act and not whether the procedure adopted by the
tribunal is judicial or quasi-judicial or whether the dominant or
general aspect of the tribunal is that of a judicial, quasi-judicial or
administrative body. A tribunal is not always furnished with the
trappings of a Court, nor will such trappings make its action judicial.
The character of the action taken in a given case and the nature of
the right on which it operates must determine whether that action is
judicial, ministerial or legislative or whether it is simply the act of a
public agent. A tribunal acts judicially in the full sense of the term if:
(1) it has to determine a dispute;
(2) the dispute relates to a right or liability which, whatever its
immediate aspect, is ultimately referable to some right or
liability, recognised by the Constitution or statute or by
custom or equity which by the domestic law is declared to be
the rule of decision;
(3) since every right or liability depends upon facts, the
tribunal is under an obligation to discover the relevant facts;
(4) the ascertainment of the facts is in the presence of the
parties either of whom is entitled to produce evidence in
support of its respective case and to question the truth of the
evidence produced by his opponent; and
(5) after an investigation of the facts and hearing legal
arguments the tribunal renders a judgment which so far as
the tribunal is concerned terminates the dispute.
In the case of an administrative tribunal, however, the
emphasis is on policy, expediency and discretion to enable it to
achieve the object with which it was set up. In the case of such a
tribunal the approach in determining the relevant facts is therefore
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often subjective and not objective, there being generally no lis

before it in which the parties are arrayed against each other for the
enforcement of a private right or liability and who for that purpose
are entitled to produce evidence and adduce legal argument. The
word `quasi' as prefixed to the word `judicial' may either indicate that
the tribunal is not acting purely administratively or that it is acting in
a manner in which a judicial tribunal is expected to act.”
2.3 Powers of Regulatory Authorities; to make rules having force of law,
prosecute for violation of these rules and adjudicate on the disputes
resulting from such prosecution are apparently in conflict with ‘Rule
of Natural Justice’; that no one can be a judge in his own cause,
‘nemo judex in causa sua’ (Doctrine of Bias), which comes after the rule
‘audi alteram partum’ (listen to the other side), in common parlance ‘no
one can be condemned unheard. Yet, regulatory authorities are vested
with the adjudicatory powers, quasi-judicial, to decide on the disputes
arising out of their own actions, with justification of effective,
specialized and prompt resolution of disputes, need of which is
universally accepted now. But to check the Bias, as Administrative
Tribunals and Authorities are likely to have, being judge of their own
cause while pursuing administrative goal, an independent forum
controlled by judiciary is the scheme of our Constitution.

2.4 The scheme, ‘Independence of Judiciary’ can be gathered, in the

Constitution, from Objective Resolution in preamble, Articles 9 and
175(3).

This concept of independence or separation of judiciary from

executive is borrowed from ‘Separation of Powers’ model, also called
‘trias politica’, for governing a state. It is in contrast with ‘fusion of
powers’ model wherein executive and legislative powers overlap. The
theory of trias politica is based on the goal to avoid concentration of
power with Legislature, Executive or Judiciary, by creating checks
and balances in a constitution. Fusion of powers model is found,
mostly, in the parliamentary democracies; United Kingdom is
considered the country with strongest fusion of powers, where until
2005, Lord Chancellor was speaker in House of Lords, a government
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minister heading Lord Chancellor’s Department and also head of the

Judiciary. However, separation of powers model, or tripartite system,
is salient feature of the Constitution of United States. Its first three
Articles embody the doctrine of separation of powers. The legislature
consists of bicameral Congress (Article I), Executive consists of
President and subordinate officers (Article II) and Judiciary consists
of Supreme Court and other federal courts (Article III). The
Constitution of United States is said to be influenced by
Montesquieu’s (a French Scholar) treatise on political theory “Spirit of
the Laws”, an excerpt of which is reproduced;

“When the legislative and executive powers are united in the

same person, or in the same body of magistrates, there can
be no liberty; because apprehensions may arise, lest the
same monarch or senate should enact tyrannical laws, to
execute them in a tyrannical manner.
Again, there is no liberty, if the judiciary power be not
separated from the legislative and executive. Were it joined
with the legislative, the life and liberty of the subject would
be exposed to arbitrary control; for the judge would be then
the legislator. Were it joined to the executive power, the
judge might behave with violence and oppression.
There would be an end of everything, were the same man or
the same body, whether of the nobles or of the people, to
exercise those three powers, that of enacting laws, that of
executing the public resolutions, and of trying the causes of
individuals.”
2.5 History of Independence of Judiciary in Pakistan is discussed in
Mehram Ali’s Case (para 4); starting with preamble of the Constitution
(now substantive part of the constitution Article 2A) which says, “the

independence of the judiciary shall be fully secured”, the original

provisions of Article 175(3) are referred, which stipulated three years’
time for progressive separation of Judiciary from Executive. This
period was substituted with five years and then fourteen years, but no
step was taken by any Government for separating Judiciary
progressively from Executive, therefore, constitutional petitions were
filed before the High Court of Sindh for implementing the mandate of
the Constitution, which were decided by the Full Bench through
 101
WP No.9518/2009

judgment in Sharaf Faridi Case (PLD 1989 Karachi 404) with

directions. This decision was assailed by Provincial Government of
Sindh and Federation of Pakistan before Supreme Court and were
disposed of though famous judgment in Sharaf Faridi Case (PLD 1994
S.C. 105). The Apex Court while defining ‘Independence of Judiciary’
held;

“(a) that every Judge is free to decide matters before him in

accordance with his assessment of the facts and his understanding
of the law without improper influences, inducements or pressures,
direct or indirect, from any quarter or for any reason; and
(b) that the judiciary is independent of the Executive and
Legislature, and has jurisdiction, directly or by way of review, over all
issues of a judicial nature.”

Mehram Ali’s Case (PLD 1998 S.C. 1445), is the next milestone
judgment by August Supreme Court, wherein vires of various
provision of Anti-Terrorism Act, 1997 (“ATA”) were examined, on a
ground, inter alia that a parallel judicial system is constituted through
ATA by giving finality to the judgment of Special Courts, subject to
decision by Appellate Tribunal Constituted therein. The then Attorney
General gave statement before Lahore High Court (Five Members Bench)
that a further right of appeal would be made available to both, the
State and the convict by making suitable amendment in the law. The
basic question examined by Supreme Court was, whether the
provisions of ATA in their original form fit in the Constitutional
framework relating to Judiciary.

Supreme Court endorsed the law laid down in Iftikhar Ahmad Case
(PLD 1984 Lahore 69), wherein the vires of certain provisions of the
Banking Companies (Recovery of Loans) Ordinance (XI of 1979)
were examined and material change brought by Article 175 of the
Constitution were highlighted by referring its Article 212, in contrast
with relevant provisions of Indian Constitution, in following words;

“Thus, while the Indian Constitution recognises existence of

Tribunals sharing judicial power with Courts, it is conspicuously
absent in the Constitution. This appears to be a very important
 102
WP No.9518/2009

departure from the previous Constitutional position as even Article

98(5) of the 1962 Constitution recognise Tribunals alongwith Courts.
Strangely enough, however, the power of superintendence of High
Courts was conferred only with regard to the Courts subordinate to
them and not for Tribunals as in the Indian Constitution. It is thus
clear that the 1973 Constitution of Pakistan recognises only such
specific Tribunals to share judicial power with Courts, as are
particularly mentioned in Article 212 or elsewhere but none else.”
It would not be out of place to refer the recent judgments by superior Courts
of India. Despite that Indian Constitution recognizes Tribunal along with
Court, yet it is consistently ruled that control of the Tribunal, for
appointment or financial, shall not be with the Executive. The judgments
from Indian jurisdiction ensuring Separation of Judiciary from Executive
are:-
“Roger Mathew v. South Indian Bank Limited (2019 SCC OnLine SC 1456),
Mahindra Electric Mobility Ltd. v. CCI (2019 SCC OnLine Del 8032), Brahm
Dutt v. Union of India (AIR 2005 S.C. 730), Competition Commission of
India v. Steel Authority of India Limited & another [(2010) 10 SCC 744],
Union of India and another v. R. Gandhi, President, Madras Bar Association
& another [(2010) 11 SCC 1], Madras Bar Association v. Union of India &
another [(2014) 10 SCC 1] and Madrass Bar Association v. Union of India
and another [(2015) 8 SCC 583].”

In Mehram Ali, Case (PLD 1998 S.C. 1445), besides discussing some other
judgments from High Courts of Pakistan, the Apex Court relied on its earlier
judgments in Azizullah Memon Case (PLD 1993 S.C. 341) and Al-Jehad Trust
Case (PLD 1996 S.C. 324) to lay down following principles:-
“11. From the above case-law the following legal position obtaining in
Pakistan emerges:-

(i) That Articles 175, 202 and 203 of the Constitution provide a
framework of Judiciary i.e. the Supreme Court, a High Court for
each Province and such other Courts as may be established by law.

(ii) That the words "such other Courts as may be established by law"
employed in clause (1) of Article 175 of the Constitution are relatable
to the subordinate Courts referred to in Article 203 thereof.

(iii) That our Constitution recognises only such specific Tribunal to share
judicial powers with the above Courts, which have been specifically
 103
WP No.9518/2009

provided by the Constitution itself Federal Shariat Court (Chapter 3-

A of the Constitution), Tribunals under Article 212, Election Tribunals
(Article 225). It must follow as a corollary that any Court or Tribunal
which is not founded on any of the Articles of the Constitution cannot
lawfully share judicial power with the Courts referred to in Articles
175 and 203 of the Constitution.

(iv) That in view of Article 203 of the Constitution read with Article 175
thereof the supervision and control over the subordinate
judiciary vest in High Courts, which is exclusive in nature,
comprehensive in extent and effective in operation.

(v) That the hallmark of our Constitution is that it envisages

separation of the Judiciary from the Executive (which is founded on
the Islamic Judicial System) in order to ensure independence of
Judiciary and, therefore, any Court or Tribunal which is not subject
to judicial review and administrative control of the High Court and/or
the Supreme Court does not fit in within the judicial framework of the
Constitution.

(vi) That the right of "access to justice to all" is a fundamental right,

which right cannot be exercised in the absence of an independent
judiciary providing impartial, fair and just adjudicatory framework i.e.
judicial hierarchy. The Courts/Tribunals which are manned and run
by executive authorities without being under the control and
supervision of the High Court in terms of Article 203 of the
Constitution can hardly meet the mandatory requirement of the
Constitution.

(vii) That the independence of judiciary is inextricably linked and

connected with the process of appointment of Judges and the
security of their tenure and other terms and conditions.”

In Sh. Riaz-Ul-Haq Case (PLD 2013 S.C. 501), the Apex Court went a step
ahead to examine whether Service Tribunals, Federal and Provincial,
established under Article 212(1)(a) are judicial forums and are performing
their functions within the meaning of Article 175 of the Constitution. After
relying on various judgments, including judgment in Tariq Transport
Company Case (supra), the August Court held:-

“40. The perusal of above case-law makes it abundantly clear that a

tribunal is not always function as a 'Court', nor its action is always judicial;
however, the determining factor is the nature of the dispute to be resolved
by the Tribunal. If the Tribunal has to determine a dispute relating to a
right or liability, recognised by the Constitution or law and is under an
obligation to discover the relevant facts, in the presence of the parties,
in the light of the evidence produced by them, it acts judicially.
Besides, whenever judicial power is vested in a forum, be it called a Court
 104
WP No.9518/2009

or Tribunal, for all legal intents and purposes it is a Court. Further, such
Tribunals have to be manned, controlled and regulated in accordance with
the established judicial principles.
41. It is pertinent to mention here that as the Service Tribunals are not
only deemed to be a civil Court but also exercise judicial powers, therefore,
they are included in the term 'Court' mentioned in Article 175 of the
Constitution. As such, these Tribunals are to be manned, controlled and
regulated in accordance with the law relating to management, regulation
and control of Courts in Pakistan.
50. From the above case-law, it is manifest that whenever the
appointment of a 'judicial officer' or the Chairman/Member of a Tribunal
performing 'judicial functions' is made, the consultation with the
concerned Chief Justice is prerequisite. Thus, the appointments of the
Chairman/Member of the Service Tribunal, Federal or Provincial, must be
made in consultation with the Chief Justice of Pakistan or the Chief Justice
of concerned High Court, as the case may be and all appointments made
without such consultation are void.
58. On having discussed the cases supra it is concluded that Service
Tribunals (Federal and Provincial) falling in the category of Court
capable to exercise judicial powers are bound to follow the principle of
independence judiciary for the purpose of ensuring enforcement of
fundamental rights of access to justice under Article 9 of the Constitution,
thus, are required to be separated from the Executive under Article 175(3)
of the Constitution. These listed constitutional objects ought to have been
redressed by the Legislature in making suitable amendments in the law
governing the Tribunals and the rules framed thereunder to the extent as
noted hereinabove, any of the provisions of the law contrary to the
fundamental and constitutional provisions if any.
59. To make the Chairman and the Members of the Service Tribunal
independent, it is necessary to make their appointment with the
meaningful consultation of the Chief Justice i.e. for the purpose of
Federal Service Tribunal, with the Chief Justice of Pakistan and for
Provincial Service Tribunals, with the Chief Justice of the respective High
Court. It is to be noted that compliance of such condition seems to be
necessary, because if the Chairman has to be appointed amongst the
sitting Judges of a High Court, without consent of the Chief Justice,
judicially and administratively, no Judge of the High Court can relinquish the
post of Judge of High Court without the approval of the concerned Chief
Justice as he has to discharge his function as a Judge of High Court under
the administrative control of the Chief Justice. Similarly, a person qualified
to be the Judge of High Court, either a District Judge or an advocate, has to
be appointed with the meaningful consultation of the Chief Justice of the
High Court because the District Judge, if is allowed to hold the charge of
Provincial Service Tribunal, can only be released, if permission is granted
by the Chief Justice. As far as the appointment of an advocate who is
qualified to be the Chairman of a Tribunal or the Member is concerned,
his performance or capability can only be evaluated during the period when
he had been practicing law because a person who had obtained enrollment
but had never appeared before the High Court or Supreme Court cannot
claim to have legal experience.
 105
WP No.9518/2009

60. As far as a sitting Judge of the High Court acting as Chairman of

the tribunal is concerned, there is no difficulty in determining the tenure
during which he shall hold the charge in addition to his own functions,
simultaneously performing as a Judge of the High Court and the Chairman
of the Tribunal. Preferably, it would be appropriate and in the interest of
institution if a sitting Judge is not asked to perform his duties as Chairman of
a Federal or Provincial Service Tribunals. However, appointments for the
position of Chairman can conveniently be made from amongst the Judges
who had been a Judge of the High Court. If a retired Judge of the High
Court is to be appointed as Chairman of the Tribunal, selection should
be made in consultation with the Chief Justice of the High Court in the
case of a Provincial Service Tribunal and in consultation with the Chief
Justice of Pakistan in the case of Federal Service Tribunal, who may
nominate a retired Judge. The tenure of such incumbent should not be for
a period of more than three years for one time only. By adopting these
measures, the object of ensuring the principle of independence of judiciary
and also enforcement of the right of access to justice could be achieved,
otherwise such Hon'ble retired Judges would try their best to continue to
hold such post for an indefinite period against the principle of independence
of judiciary, which also speaks about the tenure of such post. Reference in
this behalf may also be made to the Notification No. F.38(1)/2012-A.II, dated
3-9-2012, whereby the incumbent Chairman of Federal Service Tribunal,
Mr. Justice (R) Abdul Ghani Shaikh, was appointed contrary to the rules, for
an indefinite period, as a Chairman, whereas, the Federal Service Tribunal
Chairman and Members Service Rules, 1983, provide that a Chairman shall
not continue to hold office for a period over three years at a time. However,
when the petitioner and his counsel objected on issuance of such a
notification by filing a Civil Miscellaneous Application, then the same was
rectified and a fresh notification has been issued on 22-9-2012. It may not
be out of context to point out that the incumbent Chairman had been holding
the same position earlier for the period of three years from 5-6-2009 to 4-6-
2012. Prior to it, he had remained as Chairman, Sindh Service Tribunal
w.e.f. 11-11-2000. Had the Chief Justice of Province or the Chief Justice of
Pakistan been consulted, they would have advised to nominate someone
else for the purpose of said appointment. Therefore, the Executive cannot
be allowed to interfere in the process of appointment of such important
functionaries of Tribunals i.e. Chairman, who is required to be appointed
independently because while discharging its functions the tribunal does not
act as an executive body rather performs judicial functions. If such a
body/tribunal is not in a position to enforce Fundamental Rights, including
the right to have access to justice because of the reason that when the
appointments have to be made, they remain at the mercy of the executive,
which is itself a litigant party in most of the cases before the Tribunal, and
no hope can be pinned on such a tribunal to discharge its functions
independently.
70. The Service Tribunals Acts do not contain any specific provision
providing for the financial autonomy of the Tribunals. Thus, on this score as
well, the Service Tribunals cannot discharge their functions independently.
The Tribunals must be duly empowered to disburse their annual
funds, allocated by the Parliament and the Provincial Assemblies,
in their respective annual budgets, within the prescribed limit by the
 106
WP No.9518/2009

Chairman of the respective Tribunals, without the need to seek approval

of the Finance Ministry or Provincial Finance Department.
71. The Service Tribunals both Federal and Provincial perform vital
judicial functions by adjudicating upon issues pertaining to the terms and
conditions of Civil Servants, therefore, it is imperative that appropriate
legislation action be taken post-haste. Consequently, to avoid denial of
access to justice to them, the Federal and the Provincial Governments
through their respective Law Secretaries are hereby allowed 30 days'
time to give effect to the above conclusions/findings and implement
this judgment forthwith by making fresh appointments of
Chairmen/Members of the Tribunals, following the observations made
hereinabove. If no steps are taken within the stipulated time, either through
temporary or permanent legislation, the provisions of the legislation which
have been declared void under Article 8 of the Constitution shall seize to
have effect. As a consequence whereof, the incumbent Chairman/Members
of the Tribunals, whose cases are not covered under the above-said
proposed provisions, shall also seize to hold said positions, as the case may
be. Similarly, independent budgetary allocation for annual
expenditures of the Service Tribunals shall be provided for in
accordance
with the constitution, enabling the Tribunals to function
independently.”
(emphasis supplied)

In Army Welfare Trust Case (2017 SCMR 9), the issue addressed was not of
Independence of Judiciary. Appeal was filed against judgment by Division
Bench of Peshawar High Court, whereby judgment of Customs Excise and
Sales Tax Appellate Tribunal was set aside. An office objection was raised
that instead of CPLA a Direct Appeal lie before Supreme Court. The
question whether petition for leave to appeal was correctly filed, was
answered in affirmative, while observing;
“The Appellate Tribunal is not mentioned or provided for in the Constitution,
therefore, it cannot be categorized or be deemed to be a court in terms, of
paragraph (d) of clause (2) of Article 185 of the Constitution. When through
the impugned judgment the High Court set aside the Appellate Tribunal's
order it did not do so of a court immediately below. Consequently, the
petitioner acted in accordance with the Constitution when it preferred a
petition seeking leave to appeal the impugned judgment. The above
mentioned office objection is therefore overruled.”

The judgments in Mehram Ali and Sh. Riaz-ul-Haq Cases were relied upon
but not distinguished, therefore, this judgment cannot be placed against the
law laid down in both the judgments.
 107
WP No.9518/2009

The test of a Judicial Tribunal or a Court, as enshrined in Sh. Riaz ul

Haq Case by the Apex Court, fully applies, because CAT’s jurisdiction is to
determine disputes relating to rights and liabilities, recognized by the
Constitution and law, by discovering the relevant facts in light of the
evidence produced by the parties in their presence, therefore, its separation
and independence from executive is mandatory under constitutional
command. The legislature has authority to establish Judicial or
Administrative Tribunals, other than Tribunals under Articles 212 and 225,
but a Judicial Tribunal, if performing judicial functions has to be
independent and separated from the influence of executive.

The administrative authorities, including Administrative Tribunals,

are to act in furtherance of regulatory objective, for which they are formed,
however CAT, having a judicial member and has power to judicially review
all Administrative actions and decisions, by exercising judicial power, has to
hear and decide (adjudicate) independently.

For the reasons and case law discussed above, the decision on this
issue is as under:-

I agree that Competition Commission is performing

administrative functions, therefore, its functions and appellate authority
under its control [Section 41 of the Act of 2010] are not covered under
Article 175(3) of the Constitution, but in my opinion CAT [Section 43 of
the Act of 2010] is a Judicial Tribunal, hence is to be separated from
executive influence for being mandatory under constitutional
command. The legislature though has authority to establish
Administrative Courts and Tribunals for federal subjects [Entry 14 of
FLL], other than Tribunals under Articles 212 and 225. Since CAT is
determining disputes relating to a right or liability, recognized by the
Constitution or law and is under obligation to discover the relevant
facts, in the light of evidence and by interpreting the law, therefore, is a
Judicial Tribunal. [Sh. Riaz-ul-Haq Case (PLD 2013 S.C. 501)].
 108
WP No.9518/2009

The judgment and directions, in Sh. Riaz-ul-Haq Case (PLD

2013 S.C. 501) apply for the CAT constituted under the Act of 2010,
therefore, following the ratio, provisions of Section 43 of the Act of
2010, to the extent of appointment of Chairperson, Members and
financial control by the Executive, are declared ultra vires and if the
directions contained in Sh. Riaz-ul-Haq Case, reproduced and
highlighted supra, are not complied with in 60 days from the date of
this judgment, it shall cease to have effect along with Executive
actions thereunder.

In view of above, this and connected petitions are allowed on

the issue, ibid, in terms noted above.

(Shahid Jamil Khan)

Judge

MUHAMMAD SAJID MEHMOOD SETHI, J:- I have had the

privilege of going through the judgment as well as Additional Note handed
down by my learned senior colleagues. I find myself in agreement with the
conclusions drawn by my learned sister Ayesha A. Malik, J. on Issues of
“Appellate Jurisdiction of Supreme Court” and “Validation Clause in the
Competition Act of 2010” and concur with the opinion and decision on the
Issues of “Federal and Provincial Legislative Competence” and “Parallel
Judicial System”, rendered by my learned brother Shahid Jamil Khan, J.

(Muhammad Sajid Mehmood Sethi)

Judge
 109
WP No.9518/2009

Schedule-A

Details of Writ Petitions mentioned in judgment

Dated 26.10.2020 passed in WP No.9518/2009

Sr. WP Nos. Parties Name Relevant Sector

No.
1 9518/09 LPG Association of Pakistan Oil and Gas
v. Federation of Pakistan etc
2 15745/09 National Refinery Limited etc Oil Refineries
v. Federation of Pakistan etc
3 15746/09 Pakistan Oilfields Limited v. Oil Refineries
Federation of Pakistan etc
4 15747/09 Attock Refinery Limited v. Oil Refineries
Federation of Pakistan etc
5 15638/09 Mustehkam Cement Limited v. Cement
Federation of Pakistan etc
6 15639/09 Bestway Cement Limited v. Cement
Federation of Pakistan etc
7 15620/09 Lafarge Pakistan Cement Cement
Limited v. Competititon
Commission of Pakistan etc
8 15670/09 Dandot Cement Company Cement
Limited v. Federation of
Pakistan etc
9 15668/09 Kohat Cement Company Limited Cement
v. Federation of Pakistan etc
10 15669/09 Fauji Cement Company Limited Cement
v. Federation of Pakistan etc
11 15640/09 Askari Cement Nizampur v. Cement
Federation of Pakistan etc
12 15618/09 Maple Leaf Cement Factory Cement
Limited v. Competititon
Commission of Pakistan etc
13 15623/09 Dewan Cement Limited v. Cement
Federation of Pakistan etc
14 1122/10 Shahtaj Sugar Mills Limited etc Sugar
v. Federation of Pakistan etc
15 1175/10 Gojra Samundari Sugar Mills Sugar
Limited v. Federation of
Pakistan etc
16 1176/10 Chishtia Sugar Mills Limited v. Sugar
Federation of Pakistan etc
17 3530/10 Telenor Pakistan Private Telecom
Limited v. Federation of
Pakistan etc
18 3531/10 Rashid Khan v. Competititon Telecom
Commission of Pakistan etc
 110
WP No.9518/2009

19 3532/10 Pakistan Mobile Communication Telecom

Limited v. Competititon
Commission of Pakistan etc
20 3533/10 Abdul Aziz, CEO Pak Telecom
Telecom Mobile Limited v.
Federation of Pakistan etc
21 3534/10 Qian Li, CEO CMPak Limited v. Telecom
Federation of Pakistan etc
22 3535/10 CMPak Limited v. Federation Telecom
of Pakistan etc
23 3536/10 Pak Telecom Mobile Limited Telecom
v. Federation of Pakistan etc
24 3537/10 Jon Eddy Abdullah, CEO Telecom
Telenor Pakistan Private
Limited v. Federation of
Pakistan etc
25 3538/10 Warid Telecom Private Telecom
Limited v. Federation of
Pakistan etc
26 3750/10 Syed Tariq Gulzar, CFO Telecom
Warid Telecom Private
Limited v. Federation of
Pakistan etc
27 2556/10 Pattoki Sugar Mills Limited Sugar
etc v. Federation of Pakistan etc
28 2654/10 National Sugar Industries Sugar
Limited v. Federation of
Pakistan etc
29 2761/10 Shakargang Mills Limited v.
Federation of Pakistan etc
30 1173/10 Sheikhoo Sugar Mills Limited Sugar
v. Federation of Pakistan etc
31 93165/17 Telenor Pakistan Private Limited Telecom
v. Federation of Pakistan etc
32 1174/10 Koinoor Sugar Mills Limited Sugar
v. Federation of Pakistan etc
33 17786/10 Fauji Fertilizer Company Fertilizer
Limited v. Federation of
Pakistan etc
34 1441/17 Fauji Fertilizer Company Fertilizer
Limited v. Federation of
Pakistan etc
35 28931/11 Javid Ishaq v. Federation of Power
Pakistan etc (transformers)
36 23640/11 AB Ampere Private Limited v. Power
Federation of Pakistan etc (transformers)
37 23743/11 Pak Elektron Limited etc v. Power
Federation of Pakistan etc (transformers)
 111
WP No.9518/2009

38 23860/11 Siddique Sons Engineering v. Power

Federation of Pakistan etc (transformers)
39 22575/11 Transfopower Industries Power
Private Limited v. Federation of (transformers)
Pakistan etc
40 27488/11 KBK Electronics Private Power
Limited etc v. Competititon (transformers)
Commission of Pakistan etc
41 22633/11 Transfab Lahore v. Federation Power
of Pakistan etc (transformers)
42 13500/11 NAM International Private Power
Limited etc v. Federation of
Pakistan etc
43 13499/11 Amin Brothers Engineers Pak Power
Private Limited etc v.
Federation of Pakistan etc
44 13498/11 Redco Pakistan Limited v. Power
Federation of Pakistan etc
45 13497/11 M.R. Electric Concern Private Power
Limited etc v. Federation of
Pakistan etc
46 13496/11 Creative Engineering Private Power
Limited etc v. Federation of
Pakistan etc
47 14287/19 OTO Pakistan private Limited Oil and Gas
etc v. Federation of Pakistan etc
48 15621/09 Askari Cement Limited v. Cement
Federation of Pakistan etc
49 15622/09 Attock Cement Pakistan Limited Cement
v. Federation of Pakistan etc
50 15629/09 Facto Cement Limited v. Cement
Federation of Pakistan etc
51 15762/09 Al-abbas Industries Cement Cement
Limited v. Federation of
Pakistan etc
52 15630/09 D.G. Khan Cement Limited v. Cement
Federation of Pakistan etc
53 15631/09 Cherat Cement Limited v. Cement
Federation of Pakistan etc
54 15637/09 Lucky Cement Limited v. Cement
Federation of Pakistan etc
55 15619/09 Flying Cement Company Cement
Limited v. Federation of
Pakistan etc
56 15614/09 Gharibwal Cement Company Cement
Limited v. Federation of
Pakistan etc
57 15616/09 Poineer Cement Limited v. Cement
Federation of Pakistan etc
 112
WP No.9518/2009

58 15493/09 Jamshoro Joint Venture Limited Oil and Gas

v. Federation of Pakistan etc
59 22965/11 Elmetec Private Limited v. Power
Federation of Pakistan etc (transformers)
60 20729/12 Canal View Diagnostic etc v. Healthcare
Federation of Pakistan etc
61 21106/12 Urgent Medical Diagnostic Healthcare
Center etc v. Federation of
Pakistan etc
62 RP 16/13 Institute of Chartered Accountancy
Accountants of Pakistan v.
Federation of Pakistan etc
63 33407/13 Karrs Paint Industries Private Paints
Limited v. Federation of
Pakistan etc
64 4412/13 Institute of Chartered Accountancy
Accountants of Pakistan v.
Federation of Pakistan etc
65 39344/15 Medical Diagnostic Center etc Healthcare
v. Federation of Pakistan etc
66 26929/15 Educational Services Private Education (School
Limited etc v. Federation of fees)
Pakistan etc
67 30824/15 City Schools Private Limited Education (School
etc v. Federation of Pakistan fees)
etc
68 24863/15 Master Paints Industries Paints
Private Limited etc v.
Federation of Pakistan etc
69 25296/15 Nestle Pakistan Limited etc v. Infant Milk, Juices
Competititon Commission of
Pakistan etc
70 89423/15 CITROPAK Limited v. Food
Federation of Pakistan etc
71 104015/17 Nestle Pakistan Limited etc v. Infant Milk, Juices
Competititon Commission of
Pakistan etc
72 241159/18 Mezan Beverages Private Juices and Energy
Limited v. Federation of drinks
Pakistan etc
73 63067/19 Friesland Campina Engro Infant Milk, Juices
Pakistan Limited v. Federation
of Pakistan etc
74 8772/20 Urban Developers Private Developers
Limited v. Federation of
Pakistan etc
 113
WP No.9518/2009

75 6532/20 Millanium Land Development Real estate

v. Federation of Pakistan etc
76 12540/20 At Tahur Limited v. Dairy
Competititon Commission of
Pakistan etc
77 129136/18 Vision Developers Private Delevopers
Limited v. Competititon
Commission of Pakistan etc
78 29868/20 Pakistan Red Crescent Soceity Developers
etc v. Competititon
Commission of Pakistan etc
79 7064/20 Al-Kabir Town Private Developers
Limited Company v.
Federation of Pakistan etc
80 21105.12 GCC Approved Medical Healthcare
Diagnostic Center etc v.
Federation of Pakistan etc
81 39346/15 GCC Approved Medical Healthcare
Center Association etc v.
Federation of Pakistan etc
82 20280/12 GCC Approved Medical Healthcare
Center Association etc v.
Federation of Pakistan etc
83 28090/12 Khawaja Saad Saleem etc v. Telecom
Federation of Pakistan etc
84 4574/12 All Pakistan Cement Cement
Manufaturers Association v.
Federation of Pakistan etc
85 15624/09 All Pakistan Cement Cement
Manufaturers Association v.
Federation of Pakistan etc
86 3641/14 Uneeza Mehboob v. Accountancy
Federation of Pakistan etc
87 19204/15 Toyota Sahara Motors Private Automobile
Limited v. Federation of
Pakistan etc
88 14816/13 National Transmission Power
Company v. Federation of (Transformers)
Pakistan etc
89 17702/10 Riaz Ahmad & Company v. Accountancy
Federation of Pakistan etc
90 24570/16 Attock Petroleum Limited v. Oil and Refineries
Federation of Pakistan etc
91 31892/12 Pakistan Telecummnication Telecom
Company Limited v.
Federation of Pakistan etc
 114
WP No.9518/2009

92 221542/18 Transworld Associates Private Telecom

Limited v. Competition
Commission of Pakistan etc

(Ayesha A.Malik)
Judge

(Muhammad Sajid Mehmood Sethi) (Shahid Jamil Khan)

Judge Judge
 115
WP No.9518/2009

Shedule-B
Details of Appeals mentioned in judgment Dated 26.10.2020 passed in
WP No.9518/2009
Sr. No. CCA Nos. Parties Name

1 CCA1/10 LPG Association of Pakistan v. Competititon

Commission of Pakistan etc
2 CCA 2/10 Jamshoro Joint Venture Limited v.
Competititon Commission of Pakistan etc
3 CCA 3/10 Maple Leaf Cement Factory Limited v.
Competititon Commission of Pakistan etc etc
4 CCA04/10 Flying Cement Company Limited v.
Competititon Commission of Pakistan etc
5 CCA05/10 Gharibwal Cement Company Limited v.
Competititon Commission of Pakistan etc
6 CCA06/10 Al-abbas Cement Industries Limited v.
Competititon Commission of Pakistan etc
7 CCA07/10 Dewan Cement Limited v. Competititon
Commission of Pakistan etc
8 CCA08/10 Poineer Cement Pakistan Limited v.
Competititon Commission of Pakistan etc
9 CCA09/10 Cherat Cement Company Limited v.
Competititon Commission of Pakistan etc
10 CCA10/10 Lucky Cement Limited v. Competititon
Commission of Pakistan etc
11 CCA11/10 DG Khan Cement Limited v. Competititon
Commission of Pakistan etc
12 CCA12/10 Facto Cement Limited v. Competititon
Commission of Pakistan etc
13 CCA13/09 All Pakistan Cement Manufaturers Association
v. Competititon Commission of Pakistan
14 CCA14/10 Fauji Cement Company Limited v. Federation
of Pakistan etc
15 CCA15/10 Dandot Cement Company Limited v.
Federation of Pakistan etc
16 CCA16/10 Kohat Cement Company Limited v. Federation
of Pakistan etc

(Ayesha A.Malik)
Judge

(Muhammad Sajid Mehmood Sethi) (Shahid Jamil Khan)

Judge Judge

Asif