ISLAMABAD - Attorney General for Pakistan Monday submitted the reply on behalf of the federal government against Sindh High Court (SHC) verdict to grant stay to sugar mills against the inquiry commission report.
A three-member bench of the apex court headed by Chief Justice of Pakistan Justice Gulzar Ahmed will take up federation petition against the Sindh High Court interim order today.
The AGP stated in the reply that the interim order passed by the Sindh High Court (SHC) was contrary to well settled principles of law. He said that the SHC had no jurisdiction to stop inquiry or investigation conducted in lawful manner. He said that the Commission of Inquiry was lawfully constituted and its report was only ‘Fact Finding’ along with certain recommendations in the public interest for the consideration of federal government.
He added that no direct adverse action was taken or penalty imposed against any party on the basis of the inquiry report without proceeding further under the law. He said that the inquiry report was being sent to different statutory authorities including FBR, SECP, NAB, CCP, FIA etc to examine the facts and if in their opinion it disclosed any violation of the law under which the respective authority was functioning, then action be taken strictly in accordance with that law.
He maintained that the SHC could not grant injunction unless the three ingredients stipulated under Order 39 Rule 1 & 2, CPC, 1908 were fulfilled. The petition filed in SHC being premature as filed only under apprehension of adverse action in future is not maintainable.
The AGP contended that the petition filed by the sugar mills (respondent) in Sindh High Court being motivated by ulterior consideration of stifling lawful proceedings by different statutory bodies/authorities under different statutes was liable to be dismissed by the apex court.
Regarding the contention that the notification was not published timely in gazette, the attorney general submitted that sugar mills were fully aware about the constitution of Commission and PSMA even interacted with the Commission during the probe and exchanged correspondence, and thus, it was in the knowledge of all the stakeholders including sugar mills. The AGP further submitted that the requirement of publication of notification in official gazette was to be treated as ‘directory’ unless it directly, immediately and adversely affected vested rights of the parties aggrieved by it. He said that when the notification related to the performance of duties or function by public functionaries or authorities then publication in the official gazette was to be treated as merely directory and not mandatory.
He argued that the actions, thus, could not be challenged on the ground of non-publication of the notification in the official gazette. He said that it was settled law that delay in publication of notification was not fatal. It was submitted that even otherwise the notification having been published in gazette subsequently with retrospective effect, this was perfectly lawful and being procedural in nature, no objection could be raised on that ground.
About sugar mills’ claim that the members of the Committee constituted earlier and then joining the Commission were biased as they had formed opinion earlier, the attorney general submitted that this was a misconceived submission as the members of the Committee had neither formed any final opinion of found facts nor even completed the probe.
He continued that the sugar mills’ further claimed that the federal government lacked competence vis-à-vis the subject matter of inquiry as only province could have formed the commission on the subject matter. The AGP stated that this was completely misconceived as the TORs/matter was not only trans-provincial in character, it inter alia, fell under entries 27, 48,49, 57 and 58, Part 2, 4th Schedule of Constitution. He said that it also affected the fundamental rights of the people all over the country. Thus, the constitution of the commission by the federal government was lawful and indeed fully warranted.
