2013 MLD 433




Per Muhammad Shafi Siddiqui, J

(a) Constitution of Pakistan, 1973 Article 199.

The issue regarding the jurisdiction, as raised by the learned counsel for respondents, needs to be thrashed out first in order to proceed further in the matter, if the law permits. The objections of the learned counsel for the respondents that a similar petition with the same prayer by almost the same petitioners is sub judice before  Lahore High Court and that the petitioners in Constitutional Petitioner No. D-3364 of 2010 who have availed the jurisdiction of Lahore High Court cannot maintain the instant petition bearing no. 3364 of 2010 has compelled us to focus our mind on this crucial point. [p. 443] A

As far as those petitioners who have availed and surrendered to jurisdiction of Lahore High Court (having concurrent jurisdiction) and who have challenged the same act of respondent, the petitioner cannot avail remedy by filing petitions in two different Courts even having concurrent jurisdiction. On a similar question the Hon’ble Supreme Court in the case of Muslim Commercial Bank Limited v. Momin Khan and others reported in 2002 PLC (C.S.) 898, clarified that the petitioners cannot approach two different forums simultaneously be it concurrent or otherwise. The Hon’ble Supreme Court held at page last para as under:-

“We may point out that the respondent being in contest with the appellants in the Constitutional petition pending before the High Court of Sindh on the same subject could not maintain an independent/similar petition before the Peshawar High Court and since the matter was sub judice before the High Court of Sindh at Karachi, therefore, the respondent neither should agitate the implementation of recommendations made by the Review Board in his favour on the basis of which ombudsman disposed of his complaint against the Bank or should have filed a separate petition before the High Court which had already taken cognizance of the matter. The invoking of Constitutional jurisdiction of the different High Courts on the same subject seeking the same relief either on the same grounds or on different grounds is not permissible. The relief being sought by the respondent from the Peshawar High Court was substantively under adjudication in the Constitutional petition filed by the appellants in the High Court of Sindh and the result of said petition in either way would be relevant to determine the rights of parties. Since the same matter was under adjudication in both the petitions on different grounds, therefore, we are of the considered view that pending disposal of Constitutional petition filed by the appellants before the High Court of Sindh, the Constitutional petition on the same subject before the High Court of Peshawar was not maintainable.”

We are therefore of the view that petitioners who have not approached Lahore High Court for the same issue challenging the same act can maintain petitions before this Court since the respondent No. 3 is perating within the jurisdiction of this Court and pursuant to whose authority notifications have been issued and also demand notices pursuant to the said S.R.O., were issued to the petitioners by respondent no. 3 or on its behalf who operates within territorial jurisdiction of this Court. [pp.445 and 446] F & G

There is no bar under the law to adjudicate a controversy pending or agitated by some parties in one province and some parties chose to invoke constitutional jurisdiction of courts in other province. [p. 447] K

(b) Constitution of Pakistan, 1973 Articles 143 & 144

Likewise, legislative competence (i.e. authority to legislate and pass statute on any given subject) of Federal Government through National Assembly and by the Provincial Government through respective Provincial Assemblies is regularized and controlled by Chapter I Part V of the Constitution of Islamic Republic of Pakistan, 1973. Federal Government through National Assembly has exclusive authority to make laws with respect to any matter in the Federal Legislative List including power to make law in respect of criminal law, criminal procedure and evidence and so also with respect to all matters pertaining to such areas in Federation as are not included in any province. Likewise legislative competence or authority of Provincial Government through Provincial Assemblies has exclusive authority to legislate on all matters not enumerated in the Federal Legislative List Provincial Assembly criminal law, criminal procedure and evidence, however last mentioned coextensive authority and legislative instruments are subject to Article 143. Pakistan is governed by and under written Constitution. Power and authority to legislate law is very well defined. Neither the Federal Government can legislate on any matter beyond Federal Legislative List nor the Provincial Government/Assembly can overstep on any matter which is covered by Federal Legislative List. Only exception to this constitutional limitation of legislative authority is catered under Article 144 of the Constitutional of Islamic Republic of Pakistan, 1973; where the Parliament may legislate on residuary subject only when one or more Provincial Assemblies pass resolutions requiring or entrusting such authority on the Parliament and even in such case authority to amend such Stature remains with the Provincial Assembly and not on Parliament. Thus, it becomes very clear that Parliament and Provincial Assembly exercise legislative competence to the extent conferred under Constitution of Islamic Republic of Pakistan, 1973. [p. 444] C

From the scheme of the Constitution of Islamic Republic of Pakistan, 1973, as regard legislative competence one thing is very clear that the Parliament could frame law on subject not provided in Federal Legislative List, provided it is so requested or authorized by Resolution of Provincial Assembly. The Authorization to legislate by the Parliament could only emanate from Provincial Assembly in the form of Resolution, and by none else. Therefore, contention of learned counsel for respondent that Association of which the petitioners are members, has consented to such course of impugned levy is of no consequence. Legislative competence on residuary matter or mater that fall out of Legislative List cannot be conferred on the Parliament by any person, group of persons, authority, representative body etc. except by the Provincial Assembly in the manner provided under Article 144 i.e. through Resolution and by no other means. [p. 444] D

(c) Constitution of Pakistan, 1973 Article 199.

As far as question of laches is concerned it is a fact that the action of respondents have been challenged to be as without jurisdiction and mala fide. [pp. 446 & 447] I

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