The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Muhammad Gul, J.

(a) Constitution of Pakistan (1973), Articles 4, 8 AND 199:

Articles 4 & 8 — Interpretation of statutes — Words and phrases — term “Law” as used in Article 4 — Also used in Article 8 but in contradistinction with any “custom or usage having the force of law” — Word “Law” in Article 4 must therefore be given same limited connotation in Article 4 as in Article 8 — Usages or practices observed in relevant fields and recognised by Courts having to be proved by evidence as facts, such practices, usages, or customs, Held, cannot be equated with statute law or given any higher validity — Interim relief cannot be granted on basis of past practice of High Court in similar cases — [Words and phrases — Interpretation of statutes]. CHAUDHRY MANZOOR ILAHI V. PUNJAB GOVERNMENT PLD 1975 SC 66 Held reversed.

The term “Law” as used in Article 4 has also been used in Article 8 of the Constitution, in contradistinction with any “custom or usage having the force of law” and must therefore, be given the same limited connotation in Article 4 as well. For instance the expressions like “proper law of the contract”, “law merchant”, “Maritime Law”, “Law of Domicile” and “the practice of the Court”, which are essentially in the nature of usages or practices observed in the relevant fields and are well recognised by Courts of law. In the even of any question as to the existence of any one these, it has to be proved by evidence as a fact. It will be erroneous to equate these practices or usages or custom with a statute law or to attach to them any higher validity. The practice, in the House of Lords which by its rigid observance over the centuries, had acquired the reverence of law was not treated as “law” by an announcement of the Lord Chancellor so as to require legislative intervention for saying good-bye to the old practice. therefore, it would be futile to build any argument on the basis of any past practice of the High Court in the matter granting interim relief in similar cases. [pp. 405, 406] A & B

CHAUDHRY TEXTILE MILLS LTD. V. CENTRAL BOARD OF REVENUE PLD 1976 LAHORE 1392; F.B. ALI V. THE STATE PLD 1975 SC 506; ASMA JILANI’S CASE PLD 1972 SC 199. Ref.

Article 199 (4-A) [As inserted by Constitution (Fourth Amendment) Act (LXI of 1975), Section 8 — Legislature’s object behind insertion of clause (4-A) in Article 199: To stop indefinite abeyance of recovery of enormous sums due to State as taxes. [p. 406]C

Article 199(4-A) — Object behind insertion of clause (4-A) being to stop indefinite abeyance of recovery of enormous sums due to State as taxes, to hold that High Court would have power to repeat order for interim relief after expiry of previous order, held, would reduce provision of clause (4-A) to complete farce — Clause (4-A), held further, does not stultify judicial power of High Court, merely regulates its jurisdiction, and does not control manner of exercise of such abridged jurisdiction.

Once we reach the conclusion that the clause (4-A) of Article 199 of the Constitution (1973) intended to put an end to gross abuse of process of Court by which enormous sum of money recoverable by the State as taxes are held in abeyance for indefinite period as a result of stay orders and were to hold at the same time that the High Court will also have the power to repeat the order for interim relief after the expiry of the previous order, it will reduce the constitutional provision of clause (4-A) otherwise competently made to a complete farce. It is wholly wrong to think that clause (4-A) stultifies the judicial power of the High Court, for it does not control the manner in which the abridged jurisdiction of the High Court will be exercised. The correct view is that the provision is merely regulatory of the jurisdiction of the High Court. [p.407]D

Article 199, clause (4-1) read with General Clauses Act (X of 1897), Section 14 — Contention that clause (4-A) of Article 199 read with Section 14, General Clauses Act, 1897 would not prevent making of a fresh order by High Court on expiry of previous order. Held, not correct. [p. 407]E

Article 199 (4-A) [as inserted by Constitution (Fourth Amendment) Act (LXXI of 1975), Sections 8 & 14] — Amendment in Constitution — Vires of statutes — Contention that unless Section 14 actually made any verbal or textual alteration in any of existing provisions or inserted any fresh provision identifying it as part of Constitution, such cannot be treated
as amendment of Constitution — Amending Act being titled as Constitution (Fourth Amendment) Act (LXXI of 1975) and passed by Parliament by following prescribed procedure for amendment by prescribed majority as laid down in article 239. Constitution of 1973, contention, Held, tenuous — Section 14, held further, not designed to made any substantive change in Constitution but in nature of “Parliamentary exposition” of earlier provision in clause (4-A) — [Interpretation of statutes] (p. 408)G

Article 199 (4-A) [as inserted by Constitution (Fourth Amendment) (LXXI of 1975), Sections 8 & 14] — Vires of statutes — Amendments not questioned for want of competency or any other formal defect but challenged for having made serous inroad in judicial power of High Courts and thereby giving jolt to principle of separation of powers — Power of making final decision remaining with High Courts and not transferred to executive; power to afford interim relief not entirely taken away and its operation merely being curtailed; laws relating to recovery of public revenues generally being very stringent; Constitution of Pakistan not providing for rigid separation of powers, in actual practice separation being only functional, and not creating watertight compartment within Government; amendments, held, unassailable.[p. 410]I et seq GOLAKNATH’S CASE AIR 1967 SC 1943; KASAAVANIDA’S CASE AIR 1973 SC 1461; ZIA-UR-REHMAN’S CASE PLD 1973 SC 49. Ref.