IN THE SUPREME COURT OF PAKISTAN 
         (APPELLATE JURISDICTION) 
 
 
 
PRESENT: 
 
 
MR. JUSTICE EJAZ AFZAL KHAN. 
 
 
MR. JUSTICE QAZI FAEZ ISA. 
 
 
CIVIL APPEALS NOs.  139  to 144 of 2013 AND  
CIVIL PETITION NO. 1384 of 2011. 
(On appeal against the judgment dated 
21.01.2009 
of 
the 
Islamabad 
High 
Court, 
Islamabad passed in FAO Nos. 7, 11 & 13 of 2008 
and WP Nos.705,706,741,763 and 1526 of 2008) 
 
 
World Call Telecom Ltd thr. its Chief Executive Officer. 
(in CAs. 139-140/13). 
 
 
Wi-Tribe Ltd. Pakistan Ltd. thr. its Director. 
(in CA. 141/13) 
 
 
Telecard Ltd. World Trade Center thr. its Director. 
(in CA.142/13) 
 
 
DV com Limited. 
(in CA.143/13) 
 
 
Telecard Limited. 
(in CA.144/13) 
 
 
M/s Dancom Pakistan (Pvt) Limited.  
(in CP.1384/11) 
 
 
 
 
 
 
  
    …Appellants/Petitioner. 
 
 
 
 
 
Versus 
 
Pakistan Telecommunication Authority (PTA) thr. its Chairman.  
(in CAs. 139, 140, 143 and 144/13) 
 
 
Federation of Pakistan thr. Secy. Information Technology, etc. 
(in CAs. 141-142/13 and CP. 1384/11) 
 
 
 
 
 
 
 
 …Respondents 
 
 
 
 
 
For the appellants/petitioners: Mr. Khalid Anwar, Sr. ASC.  
 
 
 
 
 
Mr. M. Ali Raza, ASC. 
C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 
2
 
Mr. Shahzad Shoukat, ASC 
 
Kh. Ahmed Tariq Rahim, ASC 
 
Mr. Afnan Karim Kundi, ASC 
 
Raja Abdul Ghafoor, AOR. 
 
Mr. Tariq Aziz, AOR. 
 
Syed Safdar Hussain AOR. 
 
For the respondents: 
 
Ch. Aamir Rehman, Addl. A. G. 
 
 
 
 
 
Mr. Waseem Sajjad, Sr. ASC.  
 
 
 
 
 
Mr. M. Ikram Ch., Sr. ASC. 
 
 
 
 
 
Mr. Azid Nafees, ASC. (For PTCL) 
 
Mr. Asim Hafeez, ASC 
Sardar M. Aslam, ASC. 
 
Mr. Shamshadullah Cheema, ASC (For FAB) 
 
Mr. M. S. Khattak AOR. 
 
Mr. Waseem Anwar, A. D. Law (PTA) 
 
 
 
 
 
Mr. M. Khurram Siddiqui, Dir. Law. (PTA) 
 
 
 
 
 
Mr. Bilal Afzal Khokhar, Consultant, PTA. 
 
 
 
 
 
Syed Sibt-e-Hassan Gardezi, AGM (Law), USF. 
 
Mr. Nasir Ayyaz, Director, Legal, M/o IT. 
 
 
Mr. Arif Sargana, Director (C.A.) Law, M/o IT 
 
 
 
 
 
Ms. Ameena Sohail, Member (Legal), M/o IT 
 
Dates of hearing: 
 
16.4.2013, 
17.04.2013, 
06.05.2013, 
 
23.05.2013, 
18.9.2013, 
23.9.2015, 
 
12.10.2015, 
13.10.2015, 
15.10.2015, 
 
26.10.2015, 04.11.2015 and 05.11.2015. 
 
(Judgment Reserved).  
 
 
 
 
 
J U D G M E N T    
    
 
EJAZ AFZAL KHAN, J.- Vires of Access Promotion Rules, 
2004 was challenged on the grounds that they are outside the orbit 
of Section 57 of the Pakistan  Telecommunication (Re-Organization) 
Act, 1996; that Access Promotion Contribution being insertion of 
Pakistan Telecommunication (Re-Organization) (Amendment) Act, 
2006 (Act II of 2006) could not precede the amendment especially 
C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 
3
when the provision regulating it was also inserted in Section 4(k) 
through the above mentioned Amendment Act in 2006; that though 
the term Access Promotion Contribution was also defined by the 
Access Promotion Rules, 2004 but in the absence of any clear 
provision in the Act, it could not be exacted from the licencees; that 
Rules under Section 57 of the Act could be made for carrying out the 
purposes of the Act provided therein as the words “and where 
provided for herein before” clearly exclude what has not been 
provided by the Act; and that as the rules requiring payment of APC 
are ultra vires, no action could be taken against the appellants 
under 
Section 
23 
of 
the 
Pakistan 
Telecommunication 
(Re-
Organization) Act, 1996 on account of their failure to pay APC. Even 
establishment of the USF, according to Mr. Ali Raza, ASC for 
appellants in Appeal No. 141 of 2013 which is required to be made 
by a notification in the Official Gazette under Section 33A of the 
Pakistan Telecommunication (Re-Organization) Act, 1996, cannot 
precede the insertion of the provision providing therefor, therefore, 
the USF exacted under the rules 2004 is also ultra vires. Functions and 
powers of the Authority have been listed in Section 4 and 5 of the 
Act respectively, therefore, performance of any other function or 
exercise of any other power according to the learned ASC shall be 
outside the scope of this Act.  
2. 
 
Mr. Khalid Anwar, learned Sr. ASC appearing on behalf 
of the appellants in Appeals Nos. 139 to 140 of 2013 contended that 
the Authority did not have any power to levy fee, other charges and 
fix rates in respect of the services, before the passing of Pakistan 
Telecommunication (Re-organization) (Amendment Act), 2006, 
therefore, no amount in any form could be exacted from the 
C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 
4
appellants. Licence, the learned Sr. ASC contended, is subject to the 
terms and conditions of the Act, rules and regulations and that in the 
event of any conflict or inconsistency between the provisions of the 
lincence and provisions of the Act, rules or regulations, the latter shall 
prevail; that revenue could be shared from international calls, from 
LDI and LL licences according to the formulas specified by the 
Authority from time to time but it cannot remain static when the rates 
vary from time to time. The amount exacted in the form of APC for 
the USF cannot be spent anywhere but to promote the availability of 
a 
wide-range 
of 
high 
quality, 
efficient, 
cost-effective 
and 
competitive telecommunication services throughout Pakistan. The 
Federal Government, the learned Sr. ASC went on to argue is not 
always supposed to be on the receiving end as it is also required to 
credit sums mentioned in sub-Section 4 of Section 33A of the Act. The 
mainstay of the learned Sr. ASC was that Access Promotion 
Contribution could not be exacted just for the heck of it; that if it is a 
tax, it cannot be imposed without express provision of the statute 
and that in case it is a fee, some service should have been provided 
in lieu thereof; and that where it lacks the essential attributes of tax as 
well as fee it has no statutory foundation. The APC, the learned Sr. 
ASC maintained, could have been treated as a fee, had it been 
spent on the development of the infrastructure or on the welfare of 
the Contributors, but where it is not known where does it go and who 
spends it, not only proceedings against the petitioner under Section 
23 of the Act be dropped but the amount received so far be 
restored to coffers it has come from. Another strange anomaly, the 
learned Sr. ASC argued, is that the Access Promotion Contribution 
has been made part of Federal consolidated fund vide notification 
C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 
5
dated 29.06.2013 which is not justified under any canons of law and 
the Constitution. Arguing further, the learned Sr. ASC contended that 
if the amount exacted from the appellants is shown to have been 
spent on the purpose it is exacted for a greater part of his grievance 
shall stand redressed but where it has neither been audited nor 
accounted for in accordance with the relevant provisions of the Act 
and the rules, its retention by the Federation would be absolutely 
unjustified. He next contended that even Approved Account Rates 
which are the main sources of APC for the USF are also prescribed 
without considering the grave ground realities with the result that the 
licensees instead of gaining anything out of the business are loosing 
even what they have invested. The learned Sr. ASC further argued 
that the learned Single Judge erred by construing the word “and” as 
disjunctive without considering the justification therefor; that such 
conversion is justified only when it leads to absurdity or gives rise to a 
conflict. The learned Sr. ASC to support his contentions placed 
reliance on the cases of C. E. Gibbon, Deputy Speaker, National 
Assembly. Vs. Pakistan (through the Secretary Ministry of Law, etc 
(PLD 1957 (W.P.) Karachi 956), Imtiaz Ahmed Lali. Vs. Ghulam 
Muhammad Lali (PLD 2007 S.C. 369) and Salehon and others. Vs. The 
State (PLD 1969 SC 267). He lastly argued that notification enforcing 
the USF issued under the Pakistan Telecommunication 
(Re-
Organization) Amendment Ordinance, 2005 would die with the 
death of the Ordinance and cannot continue unless another 
notification in terms of Section 33A of the Act is issued by the Federal 
Government soon after the commencement of the Pakistan 
Telecommunication 
(Re-Organization) 
Amendment 
Act, 
2006, 
notwithstanding the provisions contained in Article 264(b) of the 
C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 
6
Constitution. The learned ASC to support his contention placed 
reliance on the case of Government of Punjab through Secretary, 
Home Department. Vs. Zia Ullah Khan and 2 others (1992 SCMR 602).  
3. 
 
The learned Sr. ASC appearing on behalf of the USF 
contended that licencee cannot provide any telecommunication 
service 
or 
system, 
establish, 
maintain 
or 
operate 
in 
telecommunication system unless authorized by the Authority; that 
grant of licence is subject to fulfillment of terms and conditions 
stipulated in the licence and that no person has any locus standi to 
enter the realm of telecommunication without a license. The learned 
Sr. ASC next contended, that the appellants whose existence in the 
field of telecommunication is on account of the licence would stand 
nowhere if the licence which has its origin in the draft Rules of 2004 is 
withdrawn. Though the Rules, the learned Sr. ASC maintained, were 
given legal attire in 2004 nevertheless they being in draft form were 
accepted as such at the time of grant of licence. The learned Sr. 
ASC next contended that though the definition of Access Promotion 
Contribution was inserted in the Act through the Amendment Act, 
2006, but it was all along present in the rules framed under Section 57 
of the Act. The learned Sr. ASC went on to argue that Access 
Promotion Rules, 2004 are fully covered by Section 57 of the Act, 
even if the word “and” used therein is read conjunctively. The 
learned Sr. ASC, however, conceded that APC for the USF exacted 
from the contributors cannot be made part of consolidated fund nor 
can it be used for a purpose not mentioned in the statute. The 
learned Sr. ASC next contended that appellants cannot approbate 
the terms and conditions of licence as well as the rules where they 
benefit them and reprobate the same where they bring them under 
C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 
7
some obligation. The learned Sr. ASC contended that Section 33A of 
the 
Act 
provides 
for 
issuance 
of 
a 
notification 
after 
the 
commencement of the amendment Act, 2006 but it does not mean 
that the notification issued under the provision of the Ordinance 
which is in para materia with the above mentioned provision would 
cease to have effect. Such notification, the learned Sr. ASC added, 
would continue under Article 264(b) of the Constitution. The learned 
Sr. ASC by concluding his argument contended that the efficacy or 
legitimacy of the terms and conditions of the licence or even the 
rules cannot be challenged at such a belated stage when the very 
establishment of the appellants in the field owes its origin and whole 
existence to the said terms and conditions as well as rules. 
4. 
 
The learned Addl. A. G. appearing on behalf of the 
Federation contended that a great deal of the amount exacted 
through APC for the USF has been spent on the increase of 
teledensity, development of infrastructure and betterment of 
contributors, therefore, its restoration to the coffers it has come from 
is unthinkable. He, however, conceded that the amount exacted 
through APC for the USF could not be made a part of the Federal 
Consolidated Fund. He next contended that the appellants cannot 
take a U-turn to deny the whole dispensation when their presence in 
the field of telecommunication originated therefrom and one of 
them availed subsidies from the USF to the tune of 1.12 billion for 
different projects.  
5. 
 
We have gone through the entire record carefully and 
considered the submissions of the learned Sr. ASCs and ASCs for the 
parties as well as learned Addl. A. G. for the Federation.  
C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 
8
6. 
 
The first and foremost question arising for consideration is 
as to what is the true meaning of the word “and” used in sub-Section 
(1) of Section 57 of the Act and whether Access Promotion Rules of 
2004 can be held to have been enacted in accordance with the 
said Section of the Act. Before we deal with the arguments 
addressed at the Bar it is worthwhile to refer to Section 57 as it stood 
before amendment. It thus reads as under: 
 
"57. Power to make rules.__ (1) For carrying out the 
purposes of this Act [“and where provided for 
hereinbefore”], the Federal Government may, from 
time to time, by notification in the official Gazette, 
make rules not inconsistent with this Act. 
 
(2) 
Without prejudice to the foregoing powers, the 
Federal Government may make rules_ 
 
a) 
extending 
the 
categories 
of 
telecommunication 
systems 
or 
telecommunication services or which a 
licence is not required under Section 20; 
 
b) 
regulating the use of encryption 
apparatus or software by requiring use of 
approved apparatus or software or such 
appropriate apparatus or software be 
lodged with the Authority free of cost; and 
 
c) 
restricting or prohibiting the use of 
any public switched network for signaling 
purposes 
in 
circumstances 
in 
which 
charges 
otherwise 
payable 
may 
be 
avoided or reduced, or the advertising of 
means or services for such use.” 
   
 
 
7. 
 
The above quoted provision in clear and unambiguous 
terms provides for rules making power of the Authority. The purpose 
behind making these rules is to carry out the purposes of this Act and 
“where provided for hereinbefore”. The word “and” as contended 
by the learned Sr. ASC for the appellants is conjunctive and has to 
be read as such. We agree that it is conjunctive and has to be read 
as such but still it does not support the deduction that the rules of 
C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 
9
2004 have been framed outside the scope of Section 57. The 
legislature by using the word “and” intended to include and 
encompass the rules framed for carrying out the purposes of the Act 
and the rules envisaged by Section 29(4) thereof. Given that the 
expression APC has been defined as the payment made by LDI 
licencees to LL Licencees or to the USF pursuant to the rules made 
under this Act, by 2(a) of the Act of 1996 which was inserted by the 
Amendment Act, 2006, but as is evident by the definition itself, it was 
already in existence and in force ever since 2004. It was in this 
context that the learned Sr. ASC for the appellant went to the extent 
of calling it inconsistent with the Act of 1996, but they cannot be held 
to be inconsistent on any account. It would have been inconsistent 
with the Act, had its levy been prohibited by the Act express and 
unequivocal terms. But when there is nothing in the Act prohibiting its 
levy, we don’t agree with the learned Sr. ASC for the appellants that 
the APC or the rules providing therefor are either ultra vires the Act or 
inconsistent therewith. The judgments rendered in the cases of C. E. 
Gibbon, Deputy Speaker, National Assembly. Vs. Pakistan (through 
the Secretary Ministry of Law, etc, Imtiaz Ahmed Lali. Vs. Ghulam 
Muhammad Lali and Salehon and others. Vs. The State (supra) are 
not relevant to the case in hand when by reading the word “and” as 
conjunctive the status of the rules remains much the same. Even if we 
assume for a while that rules were not in force at the time of grant of 
licence, it would not have much effect when even instructions 
contained in memoranda issued by the Government could be 
regarded as statutory in nature where they are expressed with 
precision and have been acted upon. Reference can well be made 
C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 
10
to the case of Faiz Ullah Khan. Vs. Government of Pakistan (PLD 1974 
SC 291).     
8. 
 
The argument that APC for the USF cannot be imposed 
even as a fee when no service is provided in lieu thereof, is absolutely 
devoid of force when a great deal of money so exacted is spent on 
the development of infrastructure, increase of teledensity and 
betterment of contributors which widen the gamut of their business 
and in turn bring them more and more profits. The argument that the 
Approved Account Rates which are the main sources of APC for the 
USF are not prescribed after taking stock of the dynamics in the 
international market of telecommunication is mere conjectural than 
real as nothing has been brought on the record to substantiate this 
argument. The argument that the fund exacted through APC for the 
USF has neither been audited nor accounted for in accordance with 
the relevant provisions of the Act and the rules has a lot of force in it 
but the instant litigation has not been initiated for the audit the 
amount so exacted. The argument that when it is not known as to 
where does the fund exacted through APC for the USF goes, 
proceedings against the appellants under Section 23 of the Act be 
dropped is also nothing but a subterfuge to cover up their failure to 
do what they are required to do under the terms and conditions of 
the licence, the rules and the Act. The argument that where 
establishment of the USF is required to be made by notification in the 
official gazette under Section 33-A of the Act, it cannot precede the 
insertion of the provision is also devoid of force when it was already 
established by a notification in the official gazette under Section 33-
A 
of 
the 
Pakistan 
Telecommunication 
(Re-organization) 
C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 
11
(Amendment) Ordinance which continues as is clearly provided by 
Article 264(b) of the Constitution which reads as under:- 
“264. Effect of repeal of laws.—Where a law is 
repealed, or is deemed to have been repealed, 
by, under, or by virtue of the Constitution, the 
repeal shall not, except as otherwise provided in 
the Constitution,-- 
 
a) 
……………………………… 
 
b) 
affect the previous operation of the 
law 
or 
anything 
duly 
done 
or 
suffered under the law;  
c) 
……………………………… 
d) 
……………………………… 
e) 
……………………………… 
 
………., as if the law had not been 
repealed.”  
 
 
 
 
 
 
 
 
 
 
 
 
The judgment rendered in the case of Government of Punjab through 
Secretary Home Department. Vs. Zia Ullah Khan and two others when 
read carefully does not support the contention of the learned Sr. ASC 
for the appellants. The argument that licence is subject to the terms 
and conditions of the Act, rules and regulations and that in the event 
of any conflict or inconsistency between the provisions of the licence 
and the provisions of the Act, rules and regulations, the latter shall 
prevail is, no doubt correct but we don’t think there is any conflict or 
inconsistency between the terms and conditions of the licence and 
the provisions of the Act or the rules and regulations made 
threreunder. The argument that functions and powers of the 
Authority have been listed in Sections 4 and 5 of the Act, therefore, 
performance of any other function or exercise of any other power 
shall  be outside the scope of the Act is also devoid of force, when 
acts done, orders passed, rights acquired or liabilities incurred 
pursuant to the rules framed under Section 57 of the Act cannot be 
held to be outside the scope of the Act. The more so when we have 
C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 
12
observed above, that rules of 2004 are by no stretch of imagination 
inconsistent with the provisions of the Act.  
9. 
 
We, however, don’t understand why do the appellants 
question the terms and conditions of the licences which emanate 
from the rules and why do they question the rules when they 
emanate from the provisions contained in Sections 20, 21, 23 and 24 
of the Act. No  person, in view of the provision contained in Section 
20 
of 
the 
Act, 
can 
establish, 
maintain 
or 
operate 
any 
telecommunication system or provide any telecommunication 
service unless he has obtained a licence under this Act. All the 
licences are granted by the Authority as it alone has the exclusive 
power to grant them under Section 21 of the Act on the terms and 
conditions enumerated therein. It is the Authority which, in view of 
the provision contained in Section 22 of the Act, has the power to 
modify a licence or its conditions with the consent of the licencee. 
Orders and penalties are also enforced by the Authority in view of 
the provision contained in Section 23 of the Act and again it is the 
Authority which wields the powers of Administrator under Section 24 
of the Act. We don’t understand why do the appellants approbate 
the rules when they benefit them and reprobate them when they 
bring them under obligation. The appellants don’t understand that 
by questioning vires of the rules they not only embark on a self 
defeating exercise but hack the branch they are resting on when 
they minus the rules are just non-entity. Leaving apart the question of 
acquiescence or estoppel where one of the appellants availed 
subsidies from the USF to the tune of rupees 1.2 billion for different 
projects, it does not behove it to bite the hand that feeds it.  
C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 
13
10. 
 
The argument that the amount exacted from the APC 
cannot be made part of the Federal Consolidated Fund has not 
been disputed by the learned Sr. ASC for the USF and the learned 
Additional Attorney General and rightly so because neither the 
parameters prescribed by Articles 78 and 79 of the Constitution for 
the fund, nor the purpose of APC for the USF prescribed by the Act 
can be enlarged or extended without amendment in the 
Constitution and the Act. Even the Secretary, Ministry of Finance, 
Govt. of Pakistan has assured the Court through a statement duly 
signed by him that the USF shall be used for the purposes it has been 
exacted for and that the USF amount transferred earlier to the 
Federal Consolidated Fund is also available for transfer to the USF as 
per the current mechanism in place. We would, however, observe 
that it be transferred to the USF as early as possible.  
11. 
 
Having thus considered, we don’t feel inclined to 
interfere with the impugned judgment, notwithstanding the reasons 
recorded in support of the conclusions are different.  
12. 
 
For the reasons discussed above, these appeals as well 
as petition being without merits are dismissed.     
Judge 
 
Judge 
 
Announced in open Court at Islamabad on 22.12.2015. 
 
 
 
 
 
 
 
 
Judge 
‘Not Approved For Reporting’ 
M. Azhar Malik