P L D 2011 Lahore 120

Before Sh. Azmat Saeed, J

Messrs SHAHEEN COTTON MILLS, LAHORE and another---Petitioners

Versus

FEDERATION OF PAKISTAN, MINISTRY OF COMMERCE through Secretary and

another---Respondents

Writ Petitions Nos. 4396, 6158, 7760, 7320, 7321, 7577, 7579, 4833, 5595, 7029, 7030, 5477,
5479, 7578, 4831, 6155, 4835, 5495, 4836, 4837, 6157, 4397, 7031, 7272, 7229, 5496, 8023,
8024, 4832, 6154, 6159, 6156, 6160, 6223, 6222, 4834, 4398 and 7023 of 2010, decided on 18th
May, 2010.

(a) Import and Export (Control) Act (XXXIX of 1950)---

----Ss. 3(1) & 5---Constitution of Pakistan, Arts. 3, 18, 25, 38 & 199---Constitutional petition---
Notification of Federal Government restricting export of cotton yarn upto 35 million K.G., per
month from 4-1-2010 till 30-6-2010---Petitioners being manufacturers and exporters of cotton
yarn alleged such notification to be unreasonable and violative of Arts.18 & 25 of the
Constitution--Validity---In absence of impugned restriction, there would be a flight of cotton
yarn from country leaving value-added-textile sector starved of its raw material resulting into
reduction of export earnings and wide spread closure of textile units and creation of
unemployment---Only 8% of workers were employed in spinning industry, while remaining 92%
were employed in value-added-textile sector---Policy of Government to impose impugned
restriction was not arbitrary and unreasonable---Impugned notification was issued under Import
and Export (Control) Act, 1950 and was not suffering from any uncertainty---Purpose of
impugned notification was to secure availability of cotton yarn for local industry, while surplus
fine yarn fetching higher price in international market was permitted to be exported---Right
guaranteed by Art. 18 of the Constitution could not be interpreted by excluding or ignoring any
other provisions thereof including Art. 38 casting responsibility upon State to secure well-being
of its citizens and promote and protect employment---Right claimed by petitioner would
necessarily be exercised in harmony with overriding needs and interest of community and State
and its responsibilities under the Constitution---Petitioners could not claim to exercise right
under Art.18 of the Constitution in a manner, which would result in a dramatic loss to export
earnings further widening in trade deficit with all its attending adverse impacts on economy and
resulting in increase unemployment---Interest of State and community could not be sacrificed for
profits sought to be made by an individual at cost of great hardship to a significant segment of
population--Impugned notification was not violative of Art.18 of the Constitution---High Court
dismissed constitutional petition in circumstances.

Arshad Mehmood and others v. Government of Punjab through Secretary Transport Civil
Secretariat, Lahore and others PLD 2005 SC 193; Director Food, N.-W.F.P. and another v.
Messrs Madina Flour and General Mills (Pvt.) Ltd. and 18 others PLD 2001 SC 1; Muzaffar
Khan and others v. Evacuee Trust Property through Deputy Administrator 2002 CLC 1819;
Messrs Airport Support Service v. The Airport Manager, Quaid-e-Azam International Airport,
Karachi and others 1998 SCMR 2268; Saleh Muhammad v. Traffic Manager, Port Trust, Karachi
PLD 1961 (W.P.) Kar. 349; Hashwani Sales Service Limited v. Karachi Building Control
Authority and 15 others PLD 1986 Kar. 393; Messrs East and West Steamship Company v.
Pakistan, through the Secretary, Government of Pakistan, Ministry of Commerce, Karachi and
others PLD 1958 SC (Pak.) 41; Jibendra Kishore Achharyya Chowdhury and 58 others v. The
Province of East Pakistan and Secretary, Finance and Revenue (Revenue) Department,
Government of East Pakistan PLD 1957 SC (Pak.) 9; Pakistan Muslim League (N) through Kh.
Muhammad Asif, MNA and others v. Federation of Pakistan through Secretary, Ministry of
Interior and others PLD 2007 SC 642; In re: v. Abdul Azeez and another AIR 1954 Madras 62;
Indian Express Newspapers (Bombay) Private Ltd. and others v. Union of India and others AIR
1986 SC 515; The State of Madras v. V.G. Rom AIR 1952 SC 196; I. A. Sharwani and others v.
Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR
1041; Zaheeruddin and others v. The State and others 1993 SCMR 1718; Government of
Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993
SC 341; Federation of Pakistan and others v. Amar Textile Mills (Pvt.) Limited and others 2002
SCMR 510; Messrs M.Y. Electronics Industries (Pvt.) Ltd. through Manager and others v.
Government of Pakistan through Secretary Finance, Islamabad and others 1998 SCMR 1404;
Government of Pakistan v. Zamir Ahmed PLD 1975 SC 667; The Tariq Transport Company
Lahore v. Sargodha Bhera Bus Service Sargodha PLD 1958 SC 437; Muhammad Iqbal Rafi v.
the Province of Punjab, 1986 SCMR 680; Nisar-ul-Haq v. Tehsil Municipal Administrator City
PLD 2002 Lah. 359; Zamir Ahmed Khan v. Government of Pakistan 1978 SCMR 327; MD
Tahir v. Chief Secretary Government of Punjab 1995 CLC 1687; Shehzad Riaz v. Federation of
Pakistan 2006 YLR 229; Rehmat Filling Station v. Government of Pakistan 2004 MLD 1372;
Muhammad Saleem v. Federal Public Service Commission of Pakistan, 2003 MLD 1133; New
Shaheen Trading Company v. Government of Pakistan 2008 SCMR 17; Molasses Trading and
Export Co. v. Government of Pakistan 2007 PTD 1005; Cynamid Pakistan Ltd. v. Collector of
Customs 2005 PTD 1670; Abdul Rahim Allah Ditta v. Federation of Pakistan PLD 1988 SC 670;
Ahmad Abdullah v. Government of Punjab PLD 1993 Lah. 752; Collector of Customs v. Ravi
Spinning Mills Ltd. 1999 SCMR 412; Associated Provincial Picture House Ltd. v. Wednesbury
Corporation 1947(2) All ER 680 and In the Council of the Civil Service Unions and others
1984(3) All ER 935 ref.
Federation of Pakistan and others v. Ammar Textile Mills (Pvt.) Ltd. and others 2002 SCMR 510
rel.

(b) Constitution of Pakistan---

----Arts. 18 & 38---Expression "lawful trade or business" as used in Art. 18 of the

Constitution---Connotation---Surplusage would not be easily attributed to a statute least of all a
constitutional document---Such Article must be read in context of entire Constitution and
interpreted by giving effect to every word and expression used therein including expression
"lawful trade or business"---Expression "lawful trade or business" was not surplusage,
meaningless, irrelevant or superfluous---Fundamental Rights guaranteed under the Constitution
could neither exist in isolation nor be exercised in a vacuum, thus, they must be read in a manner
that each right being subject to other right, otherwise one right would collide with another
right---Constitution being a living document, thus, interpretation of its provisions must be
dynamic rather than strategic and elastic rather than rigid---Right guaranteed under such Article
might be exercised subject to reasonable qualifications and regulations-Government not
prohibited by such article from creating a State monopoly in respect of any trade, business,
industry or service in exclusion of citizens---Right guaranteed under such Article could not be
interpreted by excluding or ignoring any provisions of the Constitution including Art. 38 thereof
casting responsibility upon State to secure well-being of its citizens and promote and protect
employment---Expressions "lawful" and "legal" were not synonymous---Limitations might be
imposed by law on right to undertake any trade or business in order to harmonize such right with
a competing fundamental right of another person or fulfil a positive command of the
Constitution---Such limitations must be rational and proportionate to end sought to be
achieved---Such limitations, if imposed through a Federal or Provincial legislation, must stand
test of constitutionality by not being in violation of the Constitution or fundamental rights
guaranteed thereunder---Such limitations, if imposed through delegated legislation, then
additional test of same not being uncertain, not unreasonable or ultra vires parent statute and not
in conflict with any other law would apply---Such limitation, if imposed through an executive
action, then such action must necessarily be taken in exercise of powers conferred by law and in
accordance therewith without offending any other law or Constitution or fundamental rights
guaranteed thereunder.

Arshad Mahmood and others v. Government of Punjab through Secretary, Transport Civil
Secretariat, Lahore and others PLD 2005 SC 193; Zamir Ahmad Khan v. Government of
Pakistan 1995 CLC 1687; The Progress of Pakistan Co., Ltd. v. Registrar Joint Stock Companies
Karachi PLD 1958 (WP) Lah. 887; Mehtab Jan and another v. Municip0al Committee
Rawalpindi PLD 1958 (WP) Lah. 929; Smt. Maneha Gundhi v. Union of India and another AIR
1978 SC 597 and Pakistan Muslim League (N) through Khawaja Muhammad Asif MNA and
others v. Federation of Pakistan through Ministry of Interior and others PLD 2007 SC 642 rel.
(c) Interpretation of statutes---

----Surplusage would not be easily imputed or attributed to a statute least of all a constitutional
document.

(d) Interpretation of Constitution---

----Constitution must be interpreted as one organic and no part thereof can be read in isolation
including Fundamental Rights.

(e) Interpretation of Constitution---

----Constitution being a living document, interpretation of its provisions must be dynamic rather
than strategic and elastic rather than rigid---Principles.

While interpreting the Constitution and its provisions, it must be borne in mind that the
Constitution is a living document catering for the progress, peace, welfare and amity amongst the
citizens. The social and economic needs of the country, growing requirements of the society and
the ever changing and complex issues faced by the people cannot be ignored. Therefore, the
judicial interpretation must necessarily be dynamic rather than strategic, elastic rather rigid.

Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and
Secretary Finance and Revenue (Revenue) Department, Government of East Pakistan PLD 1957
SC (Pak.) (?) Government of Balochistan v. Aziz Ullah Maiman and 16 others PLD 1993 SC
341; Messrs Ilahi Cotton Mills and others v. Federation of Pakistan PLD 1997 SC 582 and
Arshad Mehmood v. Government of Punjab PLD 2005 SC 193 rel.

(f) Constitution of Pakistan---

----Part II, Chap. 1 [Arts.8 to 28]---Fundamental rights, interference with---Scope---Such rights

should not be treated lightly or permitted to be interfered within a casual or cursory manner
through sub-constitutional measures.

(g) Constitution of Pakistan---

----Art. 199---Constitutional Jurisdiction of High Court---Scope---Policy decisions/matters of

Government---Judicial review of such matters/decisions by High Court Scope---Exercise of
judicial review by High Court in such matters not absolutely barred---Principles.
Constitution of Pakistan is based on trichotomy of power, whereunder it is the right of the
Government to lay down a policy and enforce the same. High Court can neither sit in appeal in
respect of any policy matter nor substitute the policy decisions of the Government by its own.

However, it may not be correct to hold that there is an absolute bar to the exercise of judicial
review by High Court in all matters pertaining to a policy of the Government.

In cases where the policy collides with the law or the Constitution or is arbitrary or unreasonable,
High Court can intervene though it may not substitute the policy of the Government by laying
down a new policy on the subject. High Court has jurisdiction to examine the offending
order/notification or the policy of the Government that it manifests. Even in the policy matters,
High Court can always exercise its powers of judicial review so as to ascertain that said policy
does not violate any law or the Constitution and the same is not arbitrary or unreasonable.

All Government policies eventually must be translated into legislative or executive actions. In
order to implement the policy, laws have to be made and/or executive orders have to be passed or
direction given. In the absence thereof, the policy would merely remain an intention good or bad
of the Government with no real effect on the citizens, hence may not provide any ground for
grievance thereagainst. In such an eventuality, any controversy regarding such policies perhaps
would only be academic in nature.

When in order to implement or give effect to a policy, the legislature promulgated a law, such
statutory instrument is obviously subject to judicial review and its constitutionality can always be
examined and if necessary the same can be struck down inter alia for offending against the
provisions of the Constitution for absence of legislative competence or for being a violation of
the Fundamental Rights.

In order to implement the policy, the delegated legislation may also require to be resorted to by
framing of rules and .regulations and issuance of notifications etc. The vires of such delegated
legislation are subject to judicial review and the grounds available for striking down such
delegated legislation have also crystallized.

Policies in the ultimate analysis tend to be translated into executive action. Executive has no
inherent power to pass any order or take any action.

Every executive action must be justified by disclosure of the powers so vested in the executive
under the law and can always be subject to judicial review. Furthermore, all such actions must
not only necessarily be intra vires the law i.e. the statute, rules or regulations whereunder they
are purportedly taken, but also the fair free from mala fides of fact and law.
An order/notification cannot be hidden from the scrutiny of judicial review by creating a smoke
screed of government policy.

Arshad Mahmood and others v. Government of Punjab through Secretary, Transport Civil
Secretary, Lahore and others PLD 2005 SC 193; Government of Pakistan v. Zamir Ahmad Khan
1995 CLC 1687; Muhammad Iqbal Rafi and 2 others v. Tlie Province of Punjab, Lahore and
others 1986 SCMR 680; Nisar-ul-Haq v. The Tehsil Municipal Administration PLD 2002 Lah.
359 and Pakistan Muslim League (N) through Khawaja Muhammad Asif, MNA and others v.
Federation of Pakistan through Secretary Ministry of Interior and others PLD 2007 SC 642 rel.

(h) Constitution of Pakistan---

----Art. 199---Delegated legislation by Government---Judicial review by High Court---Scope---

Essential grounds stated.

Every piece of delegated legislation can be subject to judicial review by High Court and struck
down on the grounds that (a) the statutory procedure prescribed for making them has not been
followed; (b) they are repugnant to a provision of some other statute; (c) they must not conflict
with the parent Act itself; (d) they are uncertain; (e) they are unreasonable.

Muzaffar Khan and others v. Evacuee Trust Property 2002 CLC 1819 rel.

Athar Minallah, Salam Akram Raja, Muhammad Bashir Mirza and Syed Shahab Qutub for
Petitioners.

Amir Rehman D.A.-G., Ali Sibtain Fazli, Arshad Mehmood, Rashid Anwar and Kanwar
Muhammad Usman Director, Minsitry of Textile, Hasham Ahmad and Nasar Ahmad for
Respondents.

Date of hearing: 22nd April, 2010.

JUDGMENT

SH. AZMAT SAEED, J.---Through this judgment, it is proposed to decide the Writ Petitions
Nos. 4396, 6158, 7760, 7320, 7321, 7577, 7579, 7578, 4833, 5595, 7029, 7030, 5477, 5479,
4831, 6155, 4835, 5495, 4836, 4837, 6157, 4397, 7031, 7272, 7229, 5496, 8023, 8024, 4832,
6154, 6159, 6156, 6160, 6223, 6222, 4834, 4398 and 7023 of 2010 involving identical questions
of law and fact.
2. Brief facts necessary for the adjudication of the lis at hand are; that the writ petitioners in all
the above-mentioned Constitutional Petitions are manufacturers and exporters of cotton yarn
who have filed these petitions to call into question the validity of the order/notification
No.S.R.O. 26(I)/2010 dated 14-1-2010 issued by the Government of Pakistan purportedly under
section 3(1) of the Import and Export (Control) Act 1950 placing embargo on the export of
cotton yarn by imposing a ceiling on the export thereof. It is provided in the said
order/notification that cotton yarn shall only be' exported up to 50 Million K.G. per month from
the date of notification till 30th of June, 2010. The writ petitioners have also challenged the
subsequent order/notification No. S.R.O. No.119(I)/2010 dated 25-2-2010 whereby the aforesaid
ceiling was further reduced from 50 Million K.G. to 35 Million K.G. per month till the 30th of
June, 2010.

3. It is contended by the learned counsel that the petitioners are engaged in the business of
manufacturing and/or export of yarn for the last many years and prior to the issuance of the
notification/order dated 14-1-2010, firm commitments have been made and contracts entered into
with various foreign importers by the petitioners. Such commitments have been made in view of
the long-standing policy of the Federal Government whereby no restrictions were imposed on the
export of yarn and as a consequence of the issuance of the two orders/notifications in dispute the
present writ petitioners are likely to suffer huge financial losses upon their failure to meet with
their foreign commitments. The petitioners also run risk of being embroiled in international
litigation with all its attending complications including financial costs and loss of foreign market.
It is further contended by the learned counsel that the orders/notifications in dispute are in fact
mala fide and have been issued merely to further depress the yarn prices in the local market for
the benefit of the local manufacturers of finished goods. In fact, it is contended the sole purpose
appears to be to give unfair advantage to one sector of the textile industry at the expenses of the
other. It is contended in this behalf that the said order/notifications are not only discriminatory
and, therefore, offends against Article 25 of the Constitution of Islamic Republic of Pakistan,
1973 but also in violation of the fundamental rights of freedom of trade and business guaranteed
by virtue of Article 18 of the Constitution. In the above context, it is contended that the right
guaranteed under Article 18 of the Constitution can only be curtailed or limited either for the
benefit of a State monopoly or through a licensing regime and thirdly in order to nurture and
promote free competition. The order/notifications on the face of it does not appear to be for the
establishment of the State monopoly for the export of cotton yarn nor create a licensing regime.
The said order/notifications do not promote free competition, but in fact, curtails competition.
The learned counsel further contended that the fundamental rights guaranteed under Article 18 of
the Constitution is not illusionary and no interpretation thereof is permitted whereby the same
can be taken away by the Government by issuance of a notification or for that matter enactment
of a Law. Such right is Fundamental in nature and any unwarranted impediment to freedom of
trade is not acceptable to the Constitution. It is added that while interpreting Article 18 the
fairness or otherwise of the trade is irrelevant and in this day and age businesses must live or die
by the natural rules of universally accepted free market economy. Hence, the order/notifications
in question are ultra vires the Constitution and liable to be struck down and in this behalf this
Court is vested with the jurisdiction of judicial review to examine the same and also to enforce
the fundamental rights.

4. In the alternative, it is further contended that nevertheless the order/notifications in question

are delegated legislation, hence, subject to judicial review including by employing the erstwhile
test of reasonableness. In this behalf it is the case of the petitioners that promoting one sector of
the industry at the expense of the other is not reasonable by any stretch of imagination. It is
added that the mode and method employed in practice would cause disruption of the trade, as it
does not discriminate between manufacturer and speculators.

5. It is further contended that several of the writ petitioners have established export-oriented
spinning units for manufacturing and export of yarn under various notifications/S.R.Os issued by
the Government of Pakistan which enjoin the said writ petitioners to export their products and by
way of the impugned order/notifications the said writ petitioners would be forced to commit a
default of the terms and conditions of the notifications whereunder the units were established
having unpleasant and far-reaching consequences for the writ petitioners. In fact the order/
notifications in issue, it is contended, are in contradiction to the notifications/S.R.Os whereunder
such export-oriented units of the writ petitioners have been established. It is the case of the writ
petitioners that in fact the notifications would have an adverse effect in this behalf. Messrs Athar
Minallah and Salman Akram Raja Advocates, learned counsel for the petitioner in support of
their contention relied upon the judgments reported as Arshad Mehmood and others v.
Government of Punjab through Secretary Transport Civil Secretariat, Lahore and others (PLD
2005 SC 193) Director Food, N.-W.F.P. and another v. Messrs Madina Flour and General Mills
(Pvt.) Ltd. and 18 others (PLD 2001 SC 1), Muzaffar Khan and others v. Evacuee Trust Property
through Deputy Administrator (2002 CLC 1819), Messrs Airport Support Service v. The Airport
Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268), Saleh
Muhammad v. Traffic Manager, Port Trust, Karachi (PLD 1961 (W.P.) Karachi 349) Hashwani
Sales and Service Limited v. Karachi Building ,Control Authority and 15 others (PLD 1986
Karachi 393), Messrs East and West Steamship Company v. Pakistan, through the Secretary-
Government of Pakistan, Ministry of Commerce, Karachi and others (PLD 1958 SC (Pak.) 41),
Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and
Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan (PLD
1957 SC (Pak.) 9) Pakistan Muslim League (N) through Kh. Muhammad Asif, MNA and others
v. Federation of Pakistan through Secretary, Ministry of Interior and others (PLD 2007 SC 642)
In re: v. Abdul Azeez and another (AIR 1954 Madras 62) Indian Express Newspapers (Bombay)
Private Ltd. And others v. Union of India and others (AIR 1986 SC 515), The State of Madras v.
V.G. Rom (AIR 1952 SC 196), I. A. Sharwani and others v. Government of Pakistan through
Secretary, Finance Division, Islamabad and others (1991 SCMR 1041), Zaheeruddin and others
v. The State and others (1993 SCMR 1718), Government of Balochistan through Additional
Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341) Federation of Pakistan
and others v. Amar Textile Mills (Pvt.) Limited and others (2002 SCMR 510) and Messrs M.Y.
Electronics Industries (Pvt.) Ltd. through Manager and others v. Government of Pakistan through
Secretary Finance, Islamabad and others (1998 SCMR 1404).

6. Ch. Aamir Rehman, learned Deputy Attorney-General for Pakistan entered appearance
pursuant to notice issued by this Court in terms of Order 27-A, C.P.C. and also to represent the
respondents.

7. The learned Deputy Attorney-General for Pakistan has strongly controverted the contentions
raised on behalf of the writ petitioners. It is contended that the textile industry is the backbone of
the economy of the country, which provides substantial portion of employment and earns
substantial foreign exchange. It is the case of the respondents that the orders/notifications were
issued in view of the peculiar situation pertaining to yarn. There was a dramatic increase in the
export of yarn from Pakistan. It was noticed that yarn export in the month of January, 2010 was
50% more than the yarn exported in January, 2009. Similarly, it was also noticed that the export
of value-added textile products declined. The indicators of the export of yarn revealed that unless
remedial measures were taken by the Government restricting the export of yarn, the local value-
added textile industry would be faced with a huge shortage of its raw material i.e., yarn, thereby
forcing them out of business. Thus, it was believed the uncontrolled export of yarn would not
only adversely effect the balance of payment but would also lead to wide spread unemployment.
In the above perspective initially the quantum of cotton yarn permitted to be exported per month
was fixed at 50 million Kg. Even with the said ceiling it appeared that the local value added
textile industry would run short of yarn, and consequently the said ceiling was further reduced to
35 million Kg per month vide the second order/notification. It is contended that the amount of
yarn now being permitted to be exported is more than the yarn that in fact was exported in the
preceding year. In the above context, it is further contended that the aforesaid action was taken
by the Federal Government after extensive discussion with stakeholders including the APTMA
(All Pakistan Textile Manufacturing Association). It was contended that said order/ notifications
were necessary and in consonance with the best economic and social interest of Pakistan.

8. On the legal plane it is contended that these Constitutional Petitions are not maintainable as
Article 18 of the Constitution only confers rights on citizens and not the companies. It is further
added that the said Article protects only the lawful trade or business, and after the issuance of the
order/notifications in question, the export of yarn in violation thereof would be unlawful, hence,
not protected by Article 18 of the Constitution. The order/notifications are a valid exercise of
powers vested in the Federal Government in this behalf which have been exercised by it in
accordance with its policy and in the best interest of the people of Pakistan. Learned DAG
submits that these notifications are the manifestations of the policy of the Government of
Pakistan, hence, perhaps beyond the pale of Judicial Review. It is further contended that said
order/notifications issued are not only intra vires the parent statute i.e., the Import and Export
(Control) Act 1950 but also withstands the test of reasonableness. In the above perspective, it is
prayed that these Writ Petitions be dismissed.

9. During the course of the hearing of these petitions, various applicants, who are engaged in the
manufacturing and export of Value Added Textile, filed civil miscellaneous applications through
Messrs Ali Sib.tain Fazali and Raashid Anwar Advocates. Both the learned counsel supported
the stand taken by the learned Deputy Attorney-General for Pakistan in defence of the
order/notifications in question. It was contended that fundamental rights guaranteed under
Article 18 of the Constitution of Islamic Republic of Pakistan, 1973, in its application was
limited to citizens, and did not extend to companies, hence, the Constitutional Petitions on behalf
of various public and private limited companies were not maintainable, and liable to be
dismissed on this short point alone. It was further contended that the rights so granted under the
aforesaid Article 18 was limited to the conduct of any lawful trade or business. That section 3 of
the Import and Export (Control) Act, 1950 empowered the Federal Government to issue order
published in the official Gazette to prohibit, restrict or otherwise control the export of any goods
outside Pakistan. In exercise of the said powers, the Federal Government has issued the
order/notification under reference. And upon issuance whereof, by Virtue of section 5 of the
Import and Export (Control) Act 1950, any export in violation thereof, would be a crime and
therefore also illegal and unlawful. Consequently, upon issuance of the order/notification in
question, the export of yarn in violation thereof, would cease to be a lawful business, and
therefore, the provisions of Article 18 of the Constitution of Islamic Republic of Pakistan 1973
would cease to be applicable. It is further contended that it is settled law that issuance of
order/notifications under section 3 of the Import and Export (Control) Act, 1950 is a matter of
the Policy, which is in the executive domain of the Government. And that this Court cannot sit in
appeal upon such policy matters so as to substitute its findings or views for that of the
Government, and therefore, these petitions are not maintainable, and any order passed by this
Court in favour of the petitioners would transgress into the realm of the Executive and therefore
offends against the tracheotomy of powers as envisaged by Constitution of Islamic Republic of
Pakistan, 1973. Learned counsel have further added that unlike the parallel Article in the
Constitution of India i.e., Article 19, the concept of 'Reasonable Restrictions' is conspicuous by
its absence in Article 18 of the Constitution of Islamic Republic of Pakistan, 1973. Therefore, the
order/notifications in question cannot be subjected to Judicial Review on the ground of
Reasonableness as is being canvassed by the learned counsel for the writ petitioners.

10. In the alternative, learned counsel have further argued that even if the test of reasonableness
is to be applied in the instant cases, the only aspect thereof which this Court may examine is
whether the person making the policy or issuing the order/notifications had the relevant material
before him or took any action which a man of ordinary prudence would not have taken in similar
circumstances. It is not the subjective test of reasonableness which is to be employed in such a
situation. Further added that the obvious purpose of the notifications/order was to ensure that the
entire yarn produced in the country is not exported leaving the value added textile sector starved
of yarn, and forced to import the same at higher prices, and thereby becoming uncompetitive in
the international market. Such a course of action would result in wide spread unemployment
reduction in the export of the country further widening the trade deficit. It is contended that
about 18.4 million people are employed in the value added textile sector, while in the spinning
sector represented by the writ petitioners only 0.2 million people are employed. It is also
contended that 1 Kg yarn exported by writ petitioners on an average fetches return of USD 2.03,
while on an average finished product exported by value added textile sector earns an average of
5.38 USD per Kg. It is contended that in the fast year value added textile exported goods worth
7.72 billion USD, while the spinning sector only earned 1.13 billion USD. In the above context,
restrictions imposed by notifications/order in question are not only reasonable in every sense of
the word, but also in the national interest. Learned counsel have further argued that the
notifications/order did not apply to processed or fine yarn which fetches higher rates in the
international market thereby earning foreign exchange for the country. It is also contended that
such spinning units that were export oriented and were under obligation to export their product in
view of the notifications' issued by the Federal Government have been catered for - in the
orders/notifications in issue.

11. That it is the case of the applicants that the notifications/order in question was prompted by
sudden increase in the export yarn from Pakistan which forebode an impending shortfall. Said
yarn is being exported to countries which compete with Pakistan in the value added textile sector
in the international market, hence, the restrictions imposed was imperative.

12. Messrs Ali Sibtain Fazli and Mr. Raashid Anwar Advocates for the applicants also relied on
the judgments reported as PLD 1975 SC 667, Government of Pakistan v. Zamir Ahmed PLD
1958 SC 437, The Tariq Transport Company Lahore v. Sargodha Bhera Bus Service Sargodha,
1986 SCMR 680, Muhammad Iqbal Rafi v. the Province of Punjab, PLD 2002 Lahore 359,
Nisar-ul-Haq v. Tehsil Municipal Administrator City, 1978 SCMR 327, Zamir Ahmed Khan v.
Government of Pakistan, 1995 CLC 1687(Lahore), MD Tahir v. Chief Secretary Government of
Pun jab, 2006 YLR 229, Shehzad Riaz v. Federation of Pakistan, 2004 MLD 1372, Rehmat
Filling Station v. Government of Pakistan, 2003 MLD 1133 (Lahore), Muhammad Saleem v.
Federal Public Service Commission of Pakistan, 2008 SCMR 17, New Shaheen Trading
Company v. Government of Pakistan, 2007 PTD 1005, Molasses Trading and Export Co. v.
Government of Pakistan, 2005 PTD 1670, Cynamid Pakistan Ltd. v. Collector of Customs, PLD
1988 SC 670 Abdul Rahim Allah Ditta v. Federation of Pakistan PLD 1993 Lahore 752, Ahmad
Abdullah v. Government of Punjab 1999 SCMR 412, Collector of Customs v. Ravi Spinning-
Mills Ltd., 1947 (2) All ER 680, Associated Provincial Picture House Ltd. v. Wednesbury
Corporation, 1984(3) All ER 935 In the Council of the Civil Service Unions and others.

13. Heard. Record perused.

14. Learned counsel for the Interveners and the learned Deputy Attorney-General for Pakistan
relying upon the judgment reported as Progress of Pakistan supra has contended that the right
guaranteed under Article 18 is available only to the citizens and does not to companies, hence,
the petitioners who are limited companies cannot maintain the instant Constitutional Petitions. In
the instant case and several connected Writ Petitions citizens i.e., the shareholders of the
company also appeared and figured as the petitioners. Moreover in all the connected Writ
Petitions challenge to the orders/notification in question is not limited to the alleged violations of
Article 18 but encompasses other grounds pertaining to the vires, legality and validity of the said
orders which are available to the companies independent of Article 18, consequently this Court is
persuaded to sustain the said objections or dismiss these petitions on account thereof.

15. The main thrust of the arguments of the learned counsel for the petitioners was that the
impugned order/notification issued under section 3(1) of the Import and Export (Control) Act
1950 offends against the fundamental rights of the petitioners as guaranteed by Article 18 of the
Constitution of Islamic Republic of Pakistan. Said Article reads as follows:--

"(18) Freedom of trade, business or profession-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."

16. In pith and substance, petitioners' case appears to be that every citizen inter alia has been
granted a fundamental rights to carry on any trade or business subject only to regulation either by
a licensing system or for the interest of free competition. Said right may be curtailed by creation
of State Monopoly for such trade or industry. No other restriction can be imposed upon the
conduct of any trade or business by a citizen, and the word 'lawful' as mentioned in the said
Article is controlled by the (a)(b) and (c) of the Proviso. In the above perspective, it is the case of
the petitioners that the offending Order/notification under section 3(1) of the Import and Export
(Control) Act, 1950 neither envisages a licensing system nor creates a State Monopoly for the
export of yarn, and also by no stretch of the imagination can be in the interest of free
competition, hence are ultra vires Article 18 of the Constitution.
17. If the contentions of the learned counsel for the petitioners are accepted, the expression
'lawful' in Article 18 of the Constitution would become meaningless and of no legal
consequence. If said Article is interpreted without reading the word 'lawful', the effect perhaps
would be as is being advanced and canvassed by the learned counsel for the B petitioners, i.e.,
that a citizen can carry on any trade or business (lawful or otherwise) subject only to the
limitations mentioned in the provisions i.e., the licensing system advancing of free competition
and by way of State monopoly. Such an interpretation would make the word 'lawful' irrelevant
and superfluous. It is settled law that surplusage is not to be c easily imputed or attributed to any
Statutory instrument least of all a Constitutional documents. This Court cannot be persuaded that
the word 'lawful' in Article 18 is a surplus age and has been inserted therein by the Framers of
the Constitution accidentally and not attending it to be read therein. Article 18 must necessarily
be interpreted so as to give p effect to it in its entirety by giving meaning to every word and
expression used therein including the expression 'lawful trade or business'.

18. That incidentally the said expression 'lawful trade or business' were also mentioned in Article
12 of the erstwhile Constitution of 1956. In fact said Article 12 of the Constitution of 1956 is
legally identical to Article 18 of the Constitution of 1973. Said Article reads as under:

"(12) Every citizen, possessing such qualifications, if any, as may be prescribed by law in
relation to his profession or occupation, 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 carrying on, by the Federal 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.

19. The expression 'lawful trade or business' as used in Article 12 of the Constitution of 1956
came up for interpretation before this Court in the case reported as PLD 1958 (W.P.) Lahore 887.
The Progress of Pakistan Co., Ltd. v. Registrar Joint Stock Companies, Karachi, 2) the Islamic
Republic of Pakistan wherein Mr. Justice BZ Kaikaus (as he then was) held as follows:--

(41) For my part, I have never had any doubt as regards the effect of the word "lawful" in
Article 12 and the extent of the guarantee granted by this Article. The Article entitles the
citizens of Pakistan to carry on any business, trade, or profession with this condition only
that the individual acts involved in it are not unlawful. If an act involved in a business,
trade, profession or occupation, is such that if performed otherwise than as a part of a
 business trade, profession or occupation, it is unlawful, then it cannot become lawful just
because it is performed as a part of a business, trade or profession, that is, as a part of
activity indulged in for the purpose of profit or income .. That is the meaning of saying
that the citizens can carry on any lawful business etc. It is lawful if the activity involved
in it, is not, apart from its being carried on as a profession, unlawful.

20. In another case. reported as PLD 1958 (W.P.) Lahore 929 Mehtah Jan and another v.
Municipal Committee Rawalpindi, this Court while dilating upon the same expression 'lawful
trade or business' as used in Article 12 of the Constitution of 1956 was interpreted by Mr.Justice
Kayani (as he then was) in the following terms:

"(9) Next in Part III, the Constitution laid down the "Directive Principles of State Policy".
The State which includes the Legislature, was to guide itself in the formulation of its
policy by the provisions of this Part and Article 28(e), which is in this Part provides that
"the State shall endeavour to prevent prostitution" ...

(17) That is why the matter has been left at the stage of endeavour. And the word 'lawful'
would be properly interpreted if the ultimate goal of the Legislature to prevent
prostitution is not excluded from its meaning.

21. In the aforesaid judgment the learned Judge also interpreted 'lawful' in contra distinction to
the word 'legal' in the following terms:--

(19) In Roland Burrow's "words and Phrases Judicially Defined" the following is to the
same effect: -

"By section 70 of the Indian Contract Act, three conditions are required to establish a right of
action at the suit of a person who does anything for another, (1) the thing must be done lawfully
****** the term 'lawful' no doubt has a wider meaning than the term 'legal'. Legal is what is in
conformity with the letter or rules of the law administered in the Courts; `lawful' is what is in
conformity with (or frequently not opposed to) the principle of spirit of the law, whether moral
or judicial ******

(20) These interpretations further the arguments on which I have primarily relied that every law
has a moral or ethical setting.

22. In Zamir Ahmed's case ibid, the honourable. Supreme Court of Pakistan while dealing with
the order issued under section 3 of the Imports and Exports (Control) Act, 1950 in the context of
Article 18 of the Constitution in general expression of the term 'lawful trade or business' held as
follows:--
 "it will be appropriate to examine in the first instance, whether the respondent can invoke
any provision of the Constitution in the Chapter relating to the Fundamental Rights for
the grant of licence for the import of films. Article 18 of the Constitution, which relates to
the freedom of trade, business or profession, which corresponds to Article 15 of the
Interim Constitution, and which incidentally held the field at the relevant time, assures
the citizens the right to enter upon any "lawful profession or occupation" and "to conduct
any lawful trade or business". It is important to point out that the word "lawful" qualifies
the right of the citizen in the relevant field. This clearly envisages that the State can by
law ban a profession, occupation, trade or business by declaring it to be unlawful which
in common parlance means anything forbidden by law. Prostitution, trafficking in
women, gambling, trade in narcotics or dangerous drugs are common place instances of
unlawful profession or trade. These are inherently dangerous to public health or welfare.
Therefore, on the wording of Article 18 of the Constitution, the right to enter upon a
profession or occupation or to conduct trade or business can hardly be described to be a
constitutional or fundamental right when such right may be denied by law. In this respect
our Constitution stands in sharp contrast with the corresponding provision of the Indian
Constitution which omits the use of word "lawful" in the relevant provision."

In the aforesaid case, writ of mandamus seeking issuance of a licence to import films was
dismissed in view of order/notification issued under section 3(1) of the Act ibid.

23. In Arshad Mehmood's case supra section 69-A of the Motor Vehicles Act crating a franchise
was challenged. The Hon'ble Supreme Court of Pakistan concluded that such a franchise is a
privileged contract creating a monopoly, whereby the Government had attempted to regulate the
business. Such regulation did not pass the test of reasonability and was not in the aid of free
competition and created a private monopoly. The impugned provision was struck down for
several reasons. However, Zamir Ahmed's case was not over ruled, and in this behalf it was held
as under:

"The above judgment was maintained in review petition in the judgment reported as
Zamir Ahmed Khan v. Government of Pakistan and another (1978 SCMR 327).
Aforesaid decision seems to be in consonance with the judgment in the case of Municipal
Corporation of the City of Toronto (ibid)".

24. As has been stated above, the Constitution must be interpreted as one organic complete
whole and no part thereof can be read in isolation E including the fundamental rights. Thus
Article 18 of the Constitution must be read in the context of the entire Constitution. There is a
possibility that a fundamental right granted under one particular Article of the Constitution may
read in isolation collide with or transgress upon another fundamental right also guaranteed by the
Constitution. In such an eventuality the two fundamental rights must be read in a manner that
each is subject to the other as has been held in the judgment reported as AIR 1978 Supreme
Court 597 Smt. Maneka Gandhi v. Union of India and another in the following manner:--

"but it is sufficient to state for the present that according to this decision, which was a
decision given by the full Court, the fundamental rights conferred by Part-III are not
distinct and mutually exclusive rights. Each freedom has different dimensions and merely
because the limits of interference with one freedom are satisfied, the law is not freed from
the necessity to meet the challenge of another guaranteed freedom."

25. Fundamental rights do not exist in isolation nor such rights are-exercised in a vacuum. Such
rights cannot must necessarily be enforced in the context not only of the fundamental rights of
other individuals but also the requirements and interests of the State and society at large and need
to be harmonized therewith. The honourable Supreme Court of Pakistan in the case reported as
PLD 2007 SC 642 Pakistan Muslim League (N) through Khawaja Muhammad Asif M.N.A. and
others v. Federation of Pakistan through Ministry of Interior and others held as follows:--

"The fundamental rights can neither be treated lightly nor interpreted in a casual or
cursory manner but while interpreting Fundamental Rights guaranteed by the
Constitution, a cardinal principle has always to be borne in mind that these guarantees to
individuals are subject to the overriding necessity or interest of community. A balance
has to be struck between these rights of individuals and the interests of the community. If
in serving the interests of the community, an individual or number of individuals ,have to
be put to some inconvenience and loss by placing restrictions on some of their rights
guaranteed by the Constitution, the restrictions can never be considered to be
unreasonable."

26. Before proceeding further it would perhaps be appropriate at this juncture to examine the
contentions being raised on behalf of the Interveners as well as by the learned Deputy Attorney-
General for Pakistan to the effect that if any act or omission is prohibited by law it would cease
to be lawful for purposes of Article 18 of the Constitution. In this behalf perhaps reference may
be made to the observations by the Honorable Supreme Court, in the case reported as PLD 1957
Supreme Court (Pak) Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of
East Pakistan and Secretary; Finance and Revenue (Revenue) Department, Government of East
Pakistan. While interpreting Article 12 of the Constitution of 1956 it was observed as under:--

"The very conception of a fundamental right is that it being a right guaranteed by the
Constitution cannot be taken away by the law, and it is not only technically inartistic but
a fraud on the citizens for the makers of a Constitution to say that a right is fundamental
but that it may be taken away by the law."
27. While interpreting the Constitution and its provisions it must be born in mind that it i.e. the
Constitution of Islamic Republic of Pakistan, 1973 is a living document catering for the progress
peace, welfare and amity amongst the citizens. The social and economic needs of the country,
growing requirements of the society and the ever changing and complex issues faced by the
people cannot be ignored. Therefore, the judicial interpretation must necessarily be dynamic
rather than strategic, elastic rather than rigid, as has been held by the Hon'ble Supreme Court of
Pakistan in the judgments reported as Government of Balochistan v. Aziz Ullah Maiman and 16
others (PLD 1993 SC 341), Messrs Ilahi Cotton Mills and others v. Federation of Pakistan (PLD
1997 SC 582), and Arshad Mehmood v. Government of Punjab (PLD 2005 SC 193).
Consequently, Article 18 of the Constitution must also be examined and interpreted while
keeping in mind the above perspective, conscious of evolving nature of the rights guaranteed
thereby necessitated by the ever changing problems for increasing complexities.

28. The freedom of trade, business and profession as guaranteed under Article 18 of the
Constitution must be interpreted in the light of the aforesaid judgments. It appears that every
citizens of Pakistan has been guaranteed a right to enter upon any lawful profession or
occupation and to conduct any lawful trade or business. This fundamental right may be exercised
subject to qualifications if any imposed and is liable to regulation through a licensing system or
for free competition. However, such qualifications and regulations must necessarily be
reasonable. The said Article does not prohibit the Government from creating a State monopoly in
respect of any trade, business, industry or service to exclusion of the citizens.

29. Fundamental rights should not be treated lightly or permitted to be interfered with in a casual
or cursory manner through sub-constitutional measures. In the absence of requirement of
qualifications or regulation through licensing or for advancement of free competition, the right
guaranteed under Article 18 may be curtailed where the carrying on of such trade or business is
not lawful. The expression lawful as employed in Article 18 is not meaningless or surplusage and
must be given effect to. The said expression lawful has been used in contradistinction to the
expression "legal" and the two words are not synonymous. Any act or omission which otherwise
is not prohibited by law may not be treated as unlawful merely because it is undertaken during
conduct of any trade, business or profession. However, limitation may be imposed by law on the
right to undertake any trade or business in order to harmonize the said right with a competing
fundamental right of another person also guaranteed by the Constitution or to fulfil a positive
command of the Constitution, say to give effect to Article 3 or in an endeavour to achieve the
high goals and aspirations of the people of Pakistan as mentioned in the Constitution including in
the Principle of Policy or for public security and safety or for the advancement of public health
or morality and for the welfare of the people or to create a balance between the rights of
individuals and the interest of the community and the State. Needless to say that such limitations
must be rational and proportionate to the end sought to be achieved. The purposes of the
offending law, its moral and ethical foundation and its social and economic impact must
necessarily be identified and examined in the above context.
30. Where such limitations are purported to be imposed through a statute promulgated by the
Federal or Provincial Legislature, the said Law must also stand the test of constitutionality by not
being in violation of the Constitution or the other fundamental rights guaranteed thereby. If the
limitations are purported to be imposed through delegated legislation, the additional test of not
being uncertain, not unreasonable or ultra vires the parent statute and not in conflict with any
other law would also apply. In case of executive action, the same must necessarily be taken in
exercise of powers vested on it by Law and in accordance therewith without offending any other
law or the Constitution or the fundamental rights guaranteed thereby.

31. The learned Deputy Attorney-General as well as the learned counsel for the Interveners have
taken the plea that the impugned Order/notification issued by the Government under Section 3(1)
of the Import and Export Control (Act) 1950 is a policy matter, hence the same are not subject to
judicial review by this Court in exercise of its Constitutional jurisdiction under Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973. No doubt it is now well-settled law that our
Constitution is based on trichotomy of power, whereunder it is the right of the Government to lay
down a policy and enforce the same. It is an equally well settled principle of law, as has been
repeatedly I enunciated by the Hon'ble Supreme Court of Pakistan that this Court can neither sit
in appeal in respect of any policy matter nor substitute the policy decisions of the Government by
its own. Reference in this behalf may be made to inter alia on judgments reported as: Govt. of
Pakistan v. Zamir Ahmad Khan supra, and Muhammad Iqbal Rafi and 2 others v. The Province
of Punjab, Lahore and others (1986 SCMR 680) and Nisar ul-Haq v. The Tehsil Municipal
Administration (PLD 2002 Lahore 359).

However, it may not be correct to hold that there is an absolute bar to the exercise of judicial
review by this Court in all. matters pertaining to a policy of the Government. The Hon'ble
Supreme Court of Pakistan in the judgment reported as: Muhammad Iqbal Rafi v. The Province
of Punjab (1986 SCMR 680) was pleased to hold as follows:--

"Whatever be the thinking on either side, the Government has the right of laying down
the policy and if it chooses to do so and there is no law on the subject which it offends, it
is not the right of any Court to throw it out, other than hold, in any genuine case, that the
same is unreasonable or arbitrary."

32. In Arshad Mehmood's case the Hon'ble Supreme Court of Pakistan has observed as follows:--

If any law is promulgated in derogation of fundamental rights, it would be declared void

because at the cost of fundamental rights guaranteed by the Constitution, the executive
Government is not empowered to frame a policy.
33. Thus, in cases where the policy collides with the Law or the Constitution or it arbitrary or
unreasonable, this Court, in view of the afore-quoted judgments of the Hon'ble Supreme Court of
Pakistan, can intervene though it may not substitute the policy of the Government by laying
down a new policy on the subject. Thus, this Court is not persuaded to hold that it has no
jurisdiction to examine the offending Order/notification or the policy of the. Government that it
manifests. Even in policy matters, this Court can always exercise its powers of judicial review so
as to ascertain that the said policy does not violate any law or the Constitution and that the same
is not arbitrary or unreasonable.

34. There is yet another aspect of the matter. All government policies eventually must be
translated into Legislative or Executive actions. In order to implement the policy, laws have to be
made and/or executive orders- have to be passed or direction given. In the absence thereof, the
policy would merely remain an intention good or bad of the Government with no real effect on
the citizens, hence may not provide any ground for grievance thereagainst. In such an
eventuality, any controversy regarding such policies perhaps would only be academic in nature.

35. When, in order to implement or give effect to a policy, the Legislature promulgated a Law,
such Statutory Instrument is obviously subject to judicial review. It is a well settled law that its
Constitutionality can always be examined and if necessary the same can be struck down inter alia
for offending against the provisions of the Constitution for absence of legislative competence or
for being in violation of the Fundamental Rights.

36. In order to implement the policy, the delegated legislation may also require to be resorted to
by framing of rules and regulations and issuance of notifications etc. (as has happened in the
instant case). It is settled law that the vires of such delegated legislation are subject to judicial
review and the grounds available for striking down such delegated legislation have also
crystallized.

37. Policies in the ultimate analysis tend to be translated into Executive action. It is equally
settled law that Executive has no inherent t power to pass any order or take any action, as has
been repeatedly held by the Hon'ble Supreme Court of Pakistan including in the judgment
reported as: Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others
v. Federation of Pakistan through Secretary Ministry of Interior and others (PLD 2007 SC 642)
in the following terms: --

"There is no inherent power in the Executive, except what has been vested in it by law,
and that law is the source of power and duty."

Therefore, executive action would necessarily have to be such that it could not possibly
violate a Fundamental Right. The only power of the Executive to take action would have
to be derived from law and the law itself would not be able to confer upon the executive
 any power to deal with a citizen or other persons in Pakistan in contravention of a
Fundamental Right. Functionaries of State, are to function strictly within the sphere
allotted to them and in accordance with law. No Court or Authority is entitled to exercise
power not vested in it and all citizens have an inalienable right to be treated in accordance
with law. Therefore, an action of an Authority admitted to be derogatory to law and
Constitution, is liable to be struck down."

Thus every Executive action must be justified by disclosure of the powers so vested in the
Executive under the law and can always be subject to judicial scrutiny. Furthermore, all such
actions must not only necessarily be intra vires the law i.e. the statute, rules or regulations
whereunder they are purportedly taken, but also the fair free from mala fides of fact and law.

In the above circumstances, the order/notification in dispute cannot be hidden from the. scrutiny
of judicial review by creating al\ smoke screed of government policy.

39. There can be no escape from the fact that at the end of the day the offending
order/notification in generic terms are delegated legislation. It is an order issued by the
Government in purported exercise of powers vested in it by section 3(1) of the Import and Export
(Control) Act, 1950 and every piece of delegated legislation can be subject to judicial review by
this Court and struck down on the following grounds:

(a) The statutory procedure prescribed for making them, has not been followed.

(b) They are repugnant to a provision of some other Statute.

(c) They must not conflict with the Parent Act itself.

(d) They are uncertain.

(e) They are unreasonable.

2002 CLC 1819 (Muzaffar Khan and others v. Evacuee Trust Property).

40. In the instant case, the petitioners have challenged the validity of the order/notification inter
alia on the grounds mentioned above including reasonableness. The challenge thrown in this
behalf by the petitioners must necessarily be adjudicated upon by this Court.

41. The rationale of the policy decision of the Government which manifested itself in the
offending orders/notifications has been examined in the context of the contentions of the counsel,
pleadings of the parties and the report and parawise comments furnished by the learned Deputy
Attorney General along with the trade policy and the extracts from the economic survey of
Pakistan therewith. It appears that Pakistan is currently faced with trade deficit, and in order to
bridge those yarning gap between the export and import it is found necessary to increase the
proceeds from the goods exported outside Pakistan. The backbone of Pakistan export economy is
the textile sector, which alone contributes 55% of Pakistan's total export earnings. The current
trade policy endeavours to increase the earnings from textile sector to 25 billion. USD which is
only possible by increase of export of value added goods. Converting of lint cotton into cotton
yarn results a value addition of 59% while its conversion into finished goods, the value addition
dramatically increases varying from 142% for towels to 846% for woven goods. It is 'of
necessary not only maintain but increase the production an export of value added textile. It
appears that during the early months of the season, the Government noticed a dramatic increase
in the export of yarn from Pakistan, which was spured by shortage of yarn in the international
market and an unpredicted increase in the import of cotton yarn by China. It appeared that a
substantial quantity of cotton yarn would depart from the local market with the result that the
requirements of the indigenous value added textile sector would not be met. The primary purpose
of the Government of Pakistan appears to be an effort to limit the export of yarn from Pakistan so
as to ensure that needs of the value added textile sector are met. The export were initially, capped
at 5 million Kg per month, but revised projections suggested that said measures were insufficient
to achieve the ends of the policy. Consequently, subsequent orders/notification was issued
further reducing the export quota to 35 million Kg per month. It is also stated that with the
current quota in place the projected export from Pakistan will still be more than the export of
cotton yarn during the preceding year and the requirements of value added sector would barely
be met. In the absence of such restrictions, there would be a flight of cotton yarn from Pakistan
leaving the value added textile sector starved of its raw material. On the one hand, export
earnings would be reduced substantially, the cotton yarn obviously will be exported to the
countries which use the same for production of value added textile of competitors in the
international market. In the above eventuality the value added textile sector would become
uncompetitive leading to wide spread closure of units and unemployment. The textile sector is
one of the largest industrial employers in the country. Only 8% of workers are employed in the
spinning industry while remaining 92% are employed in the value added textile sector.

42. The policy of the Government in the instant case ex facie appears to be motivated by the
need to increase the export earnings so as to decrease/control the trade deficit and to avoid mass
unemployment by closure of the units of the value added textile sector. Hence, this Court is not
persuaded to hold that the said policy to be arbitrary, and unreasonable.

43. The offending orders/notification have purportedly been issued under section 3(1) of the
Import and Export (Control) Act 1950, which authorizes the Federal Government to issue the
orders/notification for limiting, regulating or controlling the export of goods from Pakistan. Thus
ex facie, the powers exercised are intra vires the parent statute, whereunder impugned
orders/notification have been issued. The orders/ notification impugned are clear and
unequivocal and do not suffer from any uncertainty. As already stated above the purpose to be
achieved not only appears to be permitted by law but also the reasonable response to an emergent
situation. The primary effort was only to secure availability of the needs of the local downstream
industry Surplus yarn is permitted to be exported. The restraint imposed is proportionate to the
end sought to be achieved. Fine yarn fetches a higher price in the international market has been
permitted to be exported. With reference to the anxiety expressed by the petitioner's that some of
them had imported machinery under various S.R.Os issued by the F.B.R. granting tax exemption
to export oriented units it has been clearly stated in the report and parawise comments that the
quota policy will respect the obligations of the petitioners to export the yarn in terms of the said
S.R.Os. In these circumstances this Court is not persuaded to hold that the orders/notification in
question are unreasonable or uncertain or ultra vires the parent statute.

44. Article 18 of the Constitution of the Islamic Republic of Pakistan, 1973 guarantees to the
citizens the right to carry on any lawful trade or business. The restrictions in the instant case have
been imposed through orders/notifications issued under section 3(1) of the Import and Export
(Control) Act, 1950 and by virtue of section 5 thereof any export in violation of any such orders
would be liable to prosecution, hence the restrictions in question have been imposed by law. The
apparent purpose of the said orders/notifications and its social and economic impact has been
discussed in great details above and the right claimed by the petitioners must be examined in
context thereof. Article 18 and the right guaranteed thereby cannot be interpreted by excluding or
ignoring any other provisions of the Constitution including Article 38 which casts responsibility
upon the State to secure the wellbeing of the people and to promote and protect employment. In
this behalf, categorical command of Article 3 of the Constitution can also not be ignored. The
right claimed by the petitioners must necessarily be exercised in harmony with the overriding
needs and interest of the community and the State and its responsibilities under the Constitution.
A balance in this regard has to be struck between the rights of individuals and the interest of the
community and the State. The petitioners cannot claim to exercise the right under Article 18 in a
manner which would result in a dramatic loss to export earnings of the country further widening
in trade deficit with all its attending adverse impacts on the economy and resulting in increase of
unemployment. The interest of the State and the community cannot be ignored or sacrificed for
the profits sought to be made by the individual at the cost of great hardship to a significant
segment of the population. In the above perspective, this Court is not persuaded to hold that the
offending orders/notifications contravene or violate Article 18 of the Constitution of Islamic
Republic of Pakistan.

45. It is not the first time that a quota has been imposed on the export of cotton or its products
including yarn. Similar quota was imposed .in the past. The orders/notifications issued in this
behalf under section 3(1) of the Import and Export (Control) Act, 1950 were allowed to be
enforced by the Hon'ble Supreme Court of Pakistan, vide judgment reported as: Federation of
Pakistan and others v. Ammar Textile Mills (Pvt.) Ltd. and others (2002 SCMR 510).
46. If the contentions raised on behalf of the petitioners are accepted, it may have unacceptable
consequences. Restriction on export of wheat and other essential food items imposed to ensure
food security for the people of Pakistan may not be possible. Similarly, other law enacted to
secure the overriding Right to life of citizens e.g. environmental laws may be exposed to
unnecessary challenges.

47. In view of the aforesaid, this Court is not persuaded to hold that the impugned
orders/notifications offend against Article 18 of the Constitution or otherwise invalid or illegal.
Consequently, these constitutional petitions must fail and are dismissed accordingly.

S.A.K./S-91/L Petition dismissed.