IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: MR. JUSTICE MIAN SAQIB NISAR 
 
 
MR. JUSTICE IQBAL HAMEEDUR RAHMAN 
 
 
MR. JUSTICE MAQBOOL BAQAR 
 
 
CIVIL APPEALS NO.1428 TO 1436 OF 2016 
(Against the order dated 9.3.2016 of the Islamabad High Court, 
Islamabad passed in ICAs No.204, 205, 210/2014 and 793/2013, 
W.Ps.No.3025 to 3027/2014 and ICAs No.201 & 202/2014) 
 
 
M/s Mustafa Impex, Karachi 
…in C.As.1428 & 1429/2016 
M/s SSS Enterprises, Karachi 
…in C.A.1430/2016 
M/s Fact International, Karachi 
…in C.A.1431/2016 
M/s Broadways, Karachi 
…in C.A.1432/2016 
M/s M. A. Enterprises, Karachi 
…in C.A.1433/2016 
M/s Bulash Enterprises, Karachi 
…in C.A.1434/2016 
Muhammad Rehman & another 
…in C.A.1435/2016 
Naveed Gaba Proprietor of “G Mobile”, 
Karachi and another 
 
…in C.A.1436/2016 
 
…Appellant(s) 
VERSUS 
 
The Government of Pakistan through Secretary Finance, Islamabad etc. 
 
…Respondent(s) 
(in all cases) 
 
For the petitioner(s): 
Mian Muhammad Athar, ASC 
Mr. Shafqat Mahmood Chohan, ASC 
(in C.As.1428 to 1434 & 1436/2016) 
 
Mr. Farhat Nawaz Lodhi, ASC 
Syed Rifaqat Hussain Shah, AOR 
(in C.P.1435/2016) 
 
 
For the respondent(s): 
Sh. Izhar-ul-Haq, ASC 
Mr. M. S. Khattak, AOR 
(for Respondent No.3 in C.As.1428 & 1430/2016 & 
Respondent No.2 in C.As.1429, 1431, 1432 & 1433/2016) 
 
Raja Muhammad Iqbal, ASC 
(for Respondent No.5 & 6 in C.As.1428 & 1430/2016 
& Respondent No.4 & 5 in C.As.1429 & 1431/2016) 
 
Ms. Misbah Gulnar Sharif, ASC 
Mr. M. S. Khattak, AOR 
(for Respondent No.4 in C.As.1428, 1430 & 1433/2016 
& Respondent No.3 in C.As.1429, 1431, 1435 & 1436/2016) 
 
Mr. Khalil Dogar, ASC 
(for Respondent No.7 in C.As.1432 & 1434/2016 
& Respondent No.6 in C.A.1433/2016) 
 
C.As.1428 to 1436 of 2016 
-: 2 :-
Ch. Muhammad Zafar Iqbal, ASC 
(for Respondent No.7 in C.As.1429 & 1431/2016, Respondent 
No.8 in C.As.1428, 1430 & 1433/2016,  
Respondent No.4 in C.As.1432 & 1434/2016) 
 
 
On Court’s call: 
Mr. Muhammad Waqar Rana, 
Additional Attorney General 
Mr. Abid Hussain Channa, S.O. M/o Finance 
Mr. Sajid Javed, Legal Assistant M/o Finance 
 
 
Amicus Curiae: 
Syed Ali Zafar, ASC 
 
 
Dates of hearing: 
23.5.2016 & 24.5.2016 
… 
JUDGMENT 
 
 
MIAN SAQIB NISAR, J:- These appeals with the leave of the 
Court entail the following facts:- the appellants are importers of cellular 
phones and textile goods. Earlier they enjoyed certain exemptions from 
sales tax granted by the Federal Government. Subsequently the 
exemptions were either withdrawn or the tax rates were modified vide 
notifications No.280(I)/2013, 460(I)/2013 (both relating to cellular phones) 
issued pursuant to Sections 3(2)(b), 3(6), 8(1)(b), 13(2)(a) and 71 of the 
Sales Tax Act, 1990 (the Act), and 682(I)/2013 (relating to textile goods) issued 
under Sections 4(c), 3(2)(b), 3(6), 8(1)(b) and 71 of the Act dated 
4.4.2013, 30.5.2013 and 26.7.2013 respectively. Aggrieved of this 
withdrawal and/or modification (in the rate) of sales tax, the appellants 
challenged the same through constitution petitions before the learned 
Islamabad High Court on the primary ground that such notifications had 
not been issued by the Federal Government in accordance with Section 3 
of the Act. The petitions were dismissed by the learned High Court 
through a consolidated judgment. The Intra-Court Appeals (ICA) initiated 
by the appellants also failed (note:- some constitution petitions were decided through 
the impugned judgment in ICA). Leave in these matters was granted to consider 
inter alia the following points:- 
 
C.As.1428 to 1436 of 2016 
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“Learned counsel for the petitioners while attacking the 
impugned judgment of the learned Division Bench of the 
High Court affirming the judgment of the learned single 
Judge-in-Chambers submits that the petitioners have no 
cavil to the proposition that the Federal Government does 
have the power, jurisdiction and authority to issue the 
notification, however his argument is that the notifications 
in question dated 4.4.2013 and 30.5.2013 challenged in the 
constitution petitions were not issued by the Federal 
Government rather by the Additional Secretary who was 
not competent to do so. It is also submitted that to grant the 
exemption is only the privileged authority of the Cabinet as 
per the provisions of Article 90 of the Constitution of 
Islamic Republic of Pakistan, 1973 and even the Secretary 
or Advisor to the Prime Minister has no competence to 
issue such notifications and grant exemption. It is also 
submitted that the notification dated 4.4.2013 was issued 
before the approval was granted by the Advisor to the 
Prime Minister which was done ex-post facto. This again 
renders the said notification as nullity in the eyes of law.” 
 
Notice was also issued to the learned Attorney General for Pakistan in 
terms of Order 27A of the Code of Civil Procedure, 1908 (CPC); and in 
view of the importance of the matter Mr. Ali Zafar, learned ASC was 
appointed as an amicus curiae. 
2. 
 
Learned counsel for the appellants has argued that only the 
Federal Government has the authority to issue notifications under 
Section 3(b) of the Act. Federal Government is not defined in the Act, but 
according to the provisions of Article 90 of the Constitution of the Islamic 
Republic of Pakistan, 1973 (the Constitution) the Prime Minister and the 
Ministers, i.e. the Cabinet as a whole, constitute the Federal Government 
for all intents and purposes. Neither the Prime Minister nor any Minister 
singularly has the authority to exercise the power(s) provided in Section 
C.As.1428 to 1436 of 2016 
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3 ibid. He submitted that as per Article 90 as it existed prior to the 18th 
Amendment, the President was to exercise the executive authority either 
directly or through the officers subordinate to him, but after the noted 
amendment such exercise can only be done by the Cabinet which has 
not been so done. He submitted that approval was sought from and 
granted by the Advisor to the Prime Minister on Finance, as has been 
conceded by the respondents in their comments (before the learned High Court), 
as opposed to the Cabinet which he (Advisor) was not authorized in law to 
give. Further, Rules 3 and 5 of the Rules of Business, 1973 (Rules of 
Business) only provide for the transaction and allocation of business, and 
there is nothing in the said Rules which empowers any individual to act 
or take decisions on behalf of the Federal Government, particularly with 
regard to levy of tax or grant of exemptions, etc. Learned counsel 
contended that there has been non-compliance with Rule 16(d) of the 
Rules of Business according to which proposals for levy/alteration of tax 
must be brought before the Cabinet. Learned counsel has relied upon 
Watan Party and another Vs. Federation of Pakistan and others (PLD 
2011 SC 997) to support his concept of the executive. 
3. 
 
On the other hand, the crux of the collective arguments of 
the learned counsel for the respondents is that the impugned 
notifications have been lawfully issued. According to them, the purport of 
Article 90 of the Constitution, as is made clear by sub-article (2), is that 
the Prime Minister or a Minister is empowered to exercise the executive 
authority, and not the Cabinet as a whole. According to Article 99 of the 
Constitution executive actions shall be taken by the Federal Government 
in the name of the President and pursuant to the article ibid the Rules of 
Business have been framed which specify the manner in which orders 
and instruments made and executed in the name of the President are to 
C.As.1428 to 1436 of 2016 
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be authenticated, and also provides for the allocation of business. They 
submitted that Division has been defined in Rule 2(vi) of the Rules of 
Business as the administrative unit responsible for the conduct of 
business of the Federal Government. Rule 3(3) provides that the business 
of the government would be allocated to the Divisions in accordance with 
Schedule II, which in turn provides that tax policy and tax 
administration fall within the domain of the Revenue Division (Entries 1 and 
2 of Clause 35 of Schedule II). Therefore the Chairman FBR, who is the ex-officio 
Secretary of the Revenue Division is duly empowered under Rule 4(2) 
read with Rule 3(3) to issue notifications pertaining to modification of tax 
which falls within the purview of tax policy and tax administration. 
Reference was also made to Rule 7(2) read with Schedule IV which allows 
the Secretary to authenticate by signature all orders and other 
instruments made and executed in the name of the President. It was 
further argued that despite the fact that the Secretary was competent to 
issue such notification under the Rules of Business, he sought approval 
of the Advisor by issuing the note for the Advisor to the Prime Minister 
on Finance dated 24.5.2013. They submitted that there is no 
requirement for matters pertaining to tax administration to be routed to 
and approved by the Cabinet.  
4. 
 
The summary of the submissions of the learned Additional 
Attorney General is that:- 
 
(i) 
The Federal Government consists of the President and the 
Cabinet. The Federal Government conducts its business in 
accordance with the Rules of Business framed pursuant to 
Article 99(3) of the Constitution. 
(ii) 
The levy and exemption of tax is the function of Parliament 
under Article 77 of the Constitution and grant of exemption 
C.As.1428 to 1436 of 2016 
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by the competent authority under the relevant law is in the 
nature of subordinate legislation. 
(iii) 
The power of exemption if given to the executive per se, 
would 
amount 
to 
the 
negation 
of 
the 
doctrine 
of 
parliamentary supremacy and the doctrine of separation of 
powers. 
(iv) 
If the proposition that exemption is not subordinate 
legislation is rejected and it is held that on the contrary it is 
an executive act, even then the Federal Government would 
conduct its business in accordance with the Rules of 
Business. 
(v) 
The impugned notification has been competently issued by 
the Secretary in exercise of the powers conferred upon him. 
 
Learned law officer stated at the very outset that Federal Government 
has not been defined, therefore the meaning of Federation, Federal 
Government, and executive authority of the Federation all need 
elucidation. In this context he gave us a broad view of the Constitution. 
Part III of the Constitution deals with the Federation which (part) consists 
of 3 chapters. Chapter 1 relates to the President, his term of office and 
his powers, etc. (Articles 41-49; particularly Article 48); Chapter 2 deals with the 
Parliament (Articles 50-89); and Chapter 3 pertains to the Federal 
Government (Articles 90-100). In the context of the matters at hand, he also 
made reference to Articles 7 (definition of the State) and 77 (deals with taxation 
power of the State which is to be “by or under the authority of law”).  
5. 
 
In elucidating the meaning of “executive authority” the 
learned Additional Attorney General submitted that it was the residuary 
power after accounting for legislative and judicial power. The rationale 
behind this contention was that the earliest powers surrendered by the 
British Crown were the legislative and judicial powers, thus the only 
C.As.1428 to 1436 of 2016 
-: 7 :-
power left with the British Crown, and keeping in mind the fact that our 
Constitution is based upon the British Parliamentary form of government 
with modifications according to our needs, was the executive power 
which was two-fold – prerogative powers and powers vesting in the 
Crown. With a written constitution such as ours the only powers are 
those which are provided in the Constitution and there are no inherent 
powers. Therefore according to him the source of the executive authority 
of the Federation is the Constitution itself and the laws enacted by 
Parliament. With this background, he referred to the judgment reported 
as Rai Sahib Ram Jawaya Kapur and others Vs. The State of Punjab 
(AIR 1955 SC 549 at page 554 paragraph 7) in which the interpretation 
of Article 73 of the Indian Constitution was involved which (article) is pari 
materia to Article 90 of our Constitution except that the phrase “subject 
to the Constitution” was not present, and that the executive authority of 
the Federation “vests in the President”. The ratio of the case of Rai 
Sahib1 (supra), that the executive authority in Article 73 ibid is the residue 
of the legislative and judicial authority has been recently upheld in Pu 
Myllai Hlychho and others Vs. State of Mizoram and others (AIR 
2005 SC 1537) and Satya Narain Shukla Vs. Union of India and 
others [(2006) 9 SCC 69]. He stated that there is a similar provision in 
the Australian Constitution and the Australian High Court has defined 
“executive authority” in the case reported as The State of Victoria and 
another and The Commonwealth of Australia and Hayden [(1975) 
134 CLR 338]. Further, Article 2 of the US Constitution provides that 
the “executive power” shall vest in the President, however according to 
the 
learned 
law 
officer, 
power 
and 
authority 
can 
be 
used 
interchangeably. The judgment from the US jurisdiction cited in this 
                                       
1 AIR 1955 SC 549 = (1955) 2 SCR 225 
C.As.1428 to 1436 of 2016 
-: 8 :-
regard is the seminal case of Lois P. Myers, Adninistratix of Frank S. 
Myers, Appt. Vs. United States [272 U.S. 52 (1926) at 128 and 129]. 
6. 
 
As regards the definition of “Federal Government”, he 
submitted that the President is the Head of the State (Article 41 of the 
Constitution), exercising the sovereign power of the State. According to 
Article 48(2) of the Constitution the President is to act upon the advice of 
the Cabinet, which could mean two things:- one is the Cabinet itself, the 
other is in Article 90 which very specifically refers to the Prime Minister 
and Federal Ministers. Article 91 defines the Cabinet as including the 
Ministers of State (Article 92), who have been deliberately omitted from 
Article 90. Therefore according to him, the Federal Government is the 
President along with the Cabinet headed by the Prime Minister. The 
Federal Government conducts its business in accordance with the Rules 
of Business framed pursuant to Article 99(2) of the Constitution. The 
word “business” has been defined in Rule 2(iii) of the Rules of Business 
as all work done by the Federal Government, which he submits includes 
both executive and legislative work. When the Federal Government 
conducts its business which includes the business which has been 
conferred on it pursuant to an Act of Parliament (reference was made to Article 
77 whereby the Parliament is empowered to levy tax), that Act or law becomes 
relevant. The Sales Tax Act, 1990 provides that the grant of exemption is 
to be made by the Federal Government. Therefore this is not the 
executive, but legislative business. Levy of tax (which includes exemption from 
tax) is a legislative business, and accordingly the grant of exemption itself 
is a part of subordinate legislation. To conduct the business of 
subordinate legislation, the Federal Government has allocated this 
business to the Divisions concerned, in this case the Revenue Division. 
In this regard he relied upon the judgment reported as Tanveer A. 
C.As.1428 to 1436 of 2016 
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Qureshi Vs. President of Pakistan, President House, Islamabad and 3 
others (PLD 1997 Lahore 263). In support of the above contention he 
referred to the Pakistan Telecommunication (Re-Organisation) Act, 1996 
which defines “Federal Government” as the Ministry of Information 
Technology and Telecommunication Division. By making reference to 
Article 97 of the Constitution, he submitted that once a law made by 
Parliament occupies the field then the authority is to be exercised in the 
manner provided by the law itself. While referring to Article 99(3) of the 
Constitution, he stated that granting exemption from tax is in the nature 
of subordinate legislation, therefore Article 90 which pertains to the 
exercise of executive authority, would not be relevant.  
7. 
 
In Article 90, the phrase “officers subordinate” was replaced 
by “Prime Minister and Federal Ministers”. He referred to Emperor Vs. 
Sibnath Banerji and others (AIR 1945 PC 156) and The Crown Vs. 
Muhammad Afzal Bangash (PLD 1956 FC 1). He submitted that though 
the phrase “officers subordinate” as opposed to “Prime Minister and 
Federal Ministers” was used in our previous constitutions, the former 
phrase still included Ministers. He submitted that rationale behind the 
insertion of the words “subject to the Constitution” in Article 90, as in 
other articles of the Constitution beginning with the same phrase, was to 
differentiate the extent of the executive authority of the Federation in 
those situations from what was provided in Article 99. Article 90 of the 
Constitution starts with “subject to the Constitution”, which is a 
departure from the corresponding articles in the previous constitutions 
and the Indian Constitution. This phrase was never used earlier. 
Therefore the Federal Government constitutes the President along with 
the Cabinet headed by the Prime Minister and the business of the 
Federal Government is to be conducted in the manner provided and 
C.As.1428 to 1436 of 2016 
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mandated by the Constitution in Article 99. As far as exemption is 
concerned, that falls under the power to levy tax which is dealt with by 
Article 77 and such power vests with Parliament, thus it is Parliament 
which will determine the manner in which such power is to be exercised. 
Since, according to him, the grant of exemption from sales tax is 
subordinate legislation it falls within the business of the executive which 
is to be exercised in the manner provided in the Rules of Business. 
Ministers have been accorded protection in terms of Article 248 of the 
Constitution. Finally while referring to Rules 4(2), 3(3), Schedule II, Rules 
5(8) and 5(9) of the Rules of Business, learned law officer submitted that 
the business pertaining to tax has been allocated to the Revenue Division 
whose official head is the Secretary. In support of his contentions, he 
referred to the judgments reported as M. Afzal & Son and others Vs. 
Federal Government of Pakistan and another (PLD 1977 Lah 1327 at 
1330 paragraph 7), Collector of Customs, Sales Tax and Central 
Excise etc. Vs. M/s Sanghar Sugar Mills Ltd., Karachi etc. (PTCL 
2007 CL 565 at page 591 paragraph 24), Principles of Statutory 
Interpretation (14th Ed.) by Justice G. P. Singh, Indian Express 
Newspapers (Bombay) P. Ltd. and others Vs. Union of India and 
others (AIR 1986 SC 515), Union of India Vs. Paliwal Electricals (P) 
Ltd. and another (AIR 1996 SC 3106), British India Corporation Ltd. 
Vs. Collector of Central Excise, Allahabad and others (AIR 1963 SC 
104), A. Sanjeevi Naidu etc., etc. Vs. State of Madras and another 
(AIR 1970 SC 1102 at paragraphs 10 and 11), Islamic Republic of 
Pakistan through the Secretary, Ministry of Defence, Government of 
Pakistan, Rawalpindi and another Vs. Amjad Ali Mirza (PLD 1977 SC 
182 at page 192), Aman Ullah Khan and others Vs. The Federal 
Government of Pakistan through Secretary, Ministry of Finance, 
C.As.1428 to 1436 of 2016 
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Islamabad and others (PLD 1990 SC 1092), Mohtarma Benazir 
Bhutto Vs. The President of Pakistan through the Secretary to the 
President (PLD 1992 SC 492 at page 516). 
8. 
 
The learned amicus stated at the very outset that the State is 
like a ship and the Government its crew. The State has to be run by 
natural persons. The impugned notifications were purportedly issued 
under the provisions of the Act and have been challenged on the ground 
that the decision to issue them was not taken by the Federal Government 
i.e. the Prime Minister and the Cabinet. In this context the questions 
which require resolution are, first, who is the Federal Government/who 
are the natural persons who will run the State; secondly, what is the 
business that these persons, i.e. the Federal Government, are to 
run/what is their executive authority/what is the extent or limit of that 
authority; and thirdly, how does the Federal Government conduct this 
business/how does it exercise the power to decide and how does it then 
implement the law and the decision. 
9. 
 
The learned amicus submitted that in a Parliamentary 
system, the Federal Government consists of the Prime Minister and 
Cabinet who are elected under the Constitution and they run the 
business of the State. In doing so, they have to exercise executive 
authority. Within the realm of such executive authority they may also be 
called upon by law to exercise legislative functions also known as 
delegated legislation and quasi-judicial functions as well. All such 
functions fall within the business of the State which they have to 
perform. The issuance of notifications and grant of exemptions pertaining 
to tax are an executive function given to the government as delegated 
legislation. 
C.As.1428 to 1436 of 2016 
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10. 
 
After tracing a brief history of executive authority in 
Pakistan, learned amicus submitted that the position presently is that 
the executive authority no longer vests in the President although it is to 
be exercised in his name, but it is now to be exercised directly by the 
Federal Government which consists of the Prime Minister and Federal 
Ministers. This Federal Government is to act through the Prime Minister 
who is the Chief Executive. Therefore direct executive authority has been 
given to the Federal Government. However he very candidly stated that 
whether the executive authority vests in the President or in the Prime 
Minister and Cabinet is not relevant for the decision of the third question 
(identified hereinabove) which is how that executive authority is to be 
exercised.  
11. 
 
The framers of the Constitution envisaged that if every 
decision were to be taken by the President himself or the Cabinet as a 
whole, the business of the government would fail. Thus the Constitution 
provides for making of rules for allocation of business. These rules create 
a cascading hierarchy of authority with the Prime Minister and the 
Cabinet at the top, then Ministers, under whom there are Ministries, 
then Divisions which have a Secretary in charge with officers subordinate 
to the Secretary and each Division is given a business. Every Division is 
divided into sections with an officer and such sections also have 
businesses allocated thereto. Finally there are departments. The most 
important binding force according to the learned amicus is the concept of 
collective responsibility, enshrined in our Constitution. The scheme 
whereby, for example, a Minister is responsible for the acts of his 
Ministry; this is not delegation of power, but acting on behalf of. 
C.As.1428 to 1436 of 2016 
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12. 
 
The learned amicus referred to the Watan Party2 case (supra) 
(at paragraph 108) and Mian Muhammad Nawaz Sharif Vs. President 
of Pakistan and others (PLD 1993 SC 473) to elucidate the meaning of 
executive authority. According to him, executive authority is the 
administration of the government in accordance with law. There is no 
inherent executive authority and such authority has to be as provided for 
in the Constitution or the law, as held by Kaikaus, J. in Mian Jamal 
Shah Vs. (1) The Member Election Commission, Government of 
Pakistan, Lahore (2) The Returning Officer, Constituency of the 
National Assembly of Pakistan No. NW-II, Peshawar II, and (3) Khan 
Nasrullah Khan (PLD 1966 SC 1). Further, delegated legislation of 
exemption from tax or modification of rates under the umbrella of the 
general law is permissible. In this regard he referred to Zaibtun Textile 
Mills Ltd. Vs. Central Board of Revenue and others (PLD 1983 SC 
358) and Messrs Sh. Abdur Rahim, Allah Ditta Vs. Federation of 
Pakistan and others (PLD 1988 SC 670).  
13. 
 
The learned amicus made extensive reference to Articles 90, 
91, 92, 97 98, 99, 41 and 48 of the Constitution and the relevant Rules 
of Business (as amended up to 16.1.2016). According to him, Article 90 provides 
that:- (i) executive authority is to be exercised in the name of the 
President (as he is the head of the State as per Article 41); (ii) executive authority is 
to be exercised by the Federal Government through the Prime Minister 
and the Federal Ministers; and (iii) the Federal Government shall act 
through the Prime Minister who shall be the Chief Executive of the 
Federation. He stated that the corresponding Article 39(1) of the 
Constitution of 1956 used to provide that:- (i) executive authority shall 
vest in the President; (ii) executive authority shall be exercised by the 
                                       
2 PLD 2011 SC 997 
C.As.1428 to 1436 of 2016 
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President; and (iii) that he may do so directly or through officers 
subordinate to him. Previously there was no concept of Federal 
Government. Article 31 in the Constitution of 1962 corresponded to the 
current Article 90; in which the position was the same as Article 39(1) of 
the Constitution of 1956. The same position was reflected in the 
Constitution of 1972. However, in the Constitution of 1973 (as originally 
enacted) the scheme was the same as it is today. In the Constitution of 
1985, the old 1956 provision(s) was brought back. Article 53 of the 
Indian Constitution corresponds with and reflects the position at the 
time of our Constitution of 1956. However learned amicus submits that 
the issue as to how the President (when the power previously vested in him), or the 
Prime Minister and/or the Cabinet is to exercise that power (when the power 
is to be exercised by them) will remain the same. The jurisprudence may 
change as to who is to exercise decision making powers but the concept 
of allocation of powers will not change. 
14. 
 
He then referred to Article 91 of the Constitution which also 
reflects the concept that executive authority would be exercised by the 
Prime Minister and the Cabinet. Article 91(6) provides for the concept of 
collective responsibility, which was there in Article 37(1) and (5) in the 
Constitution of 1956, but interestingly was absent in the Constitution of 
1973 as originally enacted, rather it was reintroduced in the 
Constitutional amendment of 1985. Article 74 of the Indian Constitution 
is more or less the same as Article 91 of our current Constitution. Going 
further, our Constitution also defines the limits of executive authority in 
Article 97; the same is restricted to the items contained in the Federal 
Legislative List. 
15. 
 
He then moved on to the question of how the executive 
authority is to be exercised for which he referred to Article 99 of which 
C.As.1428 to 1436 of 2016 
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sub-article (3) is the most important and relevant according to which 
framers of the Constitution deemed it fit to empower the Federal 
Government to make rules for the allocation and transaction of business. 
However in the Constitution of 1973 (as originally enacted) the language was 
slightly different and rather clearer according to him which provided that 
the Federal Government was empowered to delegate its functions to 
officers or authorities. In 1985, the article was shortened, empowering 
the President to make such rules, but such powers were then given to 
the Federal Government through the 18th Amendment. Therefore the 
concept of delegation contained in the original Constitution of 1973 does 
not exist anymore and this departure is most relevant. Now the officers 
exercise executive authority on behalf of the Federal Government as 
opposed to acting in delegation of such powers (note:- Article 77 of the Indian 
Constitution provides for allocation of business). 
In view of the foregoing, he concluded as follows:- executive 
authority is to be exercised in the name of the President; executive 
authority is to be exercised by the Prime Minister and the Cabinet; the 
Federal Government may act through the Prime Minister who is the Chief 
Executive of the Federation; this executive authority extends to subjects 
enumerated in the Federal Legislative Lists; and that the Federal 
Government can make rules for the allocation of its business, i.e. the 
Rules of Business. He referred to the judgments reported as Tariq Aziz-
ud-Din and others: in re (2010 SCMR 1301), Government of Punjab 
through Secretary, Industries Mines and Minerals Development, 
Department, Lahore and another Vs. Shakeel Ahmad (2006 SCMR 
485), Ahmad Nawaz Shah, Senior Intelligence Officer, Director 
General, Intelligence and Investigation (Customs and Excise), 
Islamabad Vs. Chairman, Central Board of Revenue, Islamabad and 
C.As.1428 to 1436 of 2016 
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10 others (2002 SCMR 560) and The State Vs. Anwar Saif Ullah Khan 
(PLD 2016 SC 276) which held that the Rules of Business have been 
framed under the Constitution and are therefore to be followed.  
16. 
 
Coming to the Rules of Business, learned amicus referred to 
the definitions of the words “business”, “Cabinet”, “case”, “Division”, and 
“Ministry” provided in Rule 2. He discussed Rules 3, 4, 5 [particularly 5(9)(d) 
as per the same the Secretary is empowered to dispose of some business, Rule 5(10) and Rule 
5(11)], and 6. He then read extensively from a book titled “The 
Government and the Law” authored by Professor Griffith. He relied upon 
the cases of Sibnath Banerji3 (supra) and Afzal Bangash4 (supra). He also 
referred to a series of seven cases that have arisen from this very issue in 
India, they are:- Rai Sahib’s5 case (supra), M/s Bijoya Lakshmi Cotton 
Mills Ltd. Vs. State of West Bengal and others (AIR 1967 SC 1145), 
A. Sanjeevi Naidu, etc. Vs. State of Madras and another [1970 (1) 
SCC 443], U.N.R. Rao Vs. Smt. Indira Gandhi [1971 (2) SCC 63], Bk. 
Sardari Lal Vs. Union of India and others [1971 (1) SCC 411], 
Samsher Singh Vs. State of Punjab and another (AIR 1974 SC 2192) 
and State of Sikkim Vs. Dorjee Tshering Bhutia and others [(1991) 4 
SCC 243], Gulabrao Keshavrao Patil and others Vs. State of Gujarat 
and others [(1996) 2 SCC 26], MRF Ltd Vs. Manohar Parrikar and 
others [(2010) 11 SCC 374] and Delhi International Airport Ltd. Vs. 
International Lease Finance Corpn & others (AIR 2015 SC 1903) 
which pertain to allocation as opposed to delegation. He concluded that 
because there is allocation under the Rules of Business, the decisions 
have to be taken in accordance with it. 
                                       
3 AIR 1945 PC 156 
4 PLD 1956 FC 1 
5 AIR 1955 SC 549 = (1955) 2 SCR 225 
C.As.1428 to 1436 of 2016 
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Finally he referred to Rule 16 of the Rules of Business which 
provides for Cabinet Rules and according to him sub-rule (d) which 
pertains to levy, alteration etc. of tax seems to be applicable to the 
instant matter, according to which the proposal may have been made by 
the relevant Division but has to eventually be brought before the 
Cabinet.  
17. 
 
Heard. This case raises important and interesting questions 
of constitutional significance in relation to various key concepts found 
embedded in the Constitution of Pakistan. The most important of these is 
the connotation of the term “Federal Government”.  Furthermore, we are 
also required to examine the concept of “executive powers” exercised by 
the Federal Government in addition to the various allied provisions, all of 
significant constitutional import, which are referred to below. Analysis is 
also required for, and in relation to, the Rules of Business. 
18. 
 
Prior to analyzing the constitutional provisions we need to 
make a quick survey of their constitutional predecessors in the earlier 
constitutional arrangements in the subcontinent. For this purpose a 
convenient take off point is provided by the Government of India Act, 
1935. However, prior to examining it closely, a brief reference to earlier 
Government of India Acts would be advantageous.   
19. 
 
The first significant Government of India Act was passed in 
1833, the Preamble whereof reads, “as an Act for effecting an 
Arrangement with the East India Company and for the better government 
of His Majesty’s Indian territories”. It was to remain in force till the 30th 
day of April 18546. This Act was followed by the Government of India Act, 
                                       
6 Prior to the enactment of the 1833 Act the East India Company had certain rights of governance in 
relation to the territories in India. These rights were given statutory effect by means of the East Indian 
Company Act, 1773, which, however, is not relevant for our purposes. These rights were then surrendered 
by the Company to the British Government for various considerations 
C.As.1428 to 1436 of 2016 
-: 18 :-
1853. The necessity for this enactment was obvious since the previous 
arrangement was due to expire in 1854.    
20. 
 
It was followed by the Indian Councils Act, 1861, the 
preamble whereof stated that it was an Act to make better provision for 
the constitution of the Council of the Governor General of India and for 
various other contingencies. The 1861 Act was amended in 1892 to effect 
certain changes in the constitution of the Councils.   
21. 
 
The next major development took place in 1915 through the 
enactment of the Government of India Act, 1915. This was the forerunner 
of the Government of India Act, 1935. Section 1 of the 1915 Act dealt 
with the powers of the Crown and stipulated that the territories for the 
time being vested in the Crown shall be governed in the name of the King 
and the rights which were previously exercised by the East India 
Company prior to the 1853 Act would be exercised by, and in the name 
of, the King (this is a formulation, which, in a modified form, persists till today). Section 2 
dealt with the Secretary of State and Section 3 related to the constitution 
of the Council of India. Under Section 6 all powers required to be 
exercised by the Secretary of State in Council were to be exercised by the 
Council of India. Part-IV provided that the superintendence, direction 
and control of the civil and military government of India was to vest in 
the Governor General in Council who, in turn, was required to obey 
orders passed by the Secretary of State. The Governor General was 
authorized to set up an Executive Council under Section 35. Section 40 
has bearing on the present case inasmuch as it is the legislative 
predecessor, and forerunner, of subsequent corresponding articles in the 
successive constitutions of Pakistan. Section 40 is reproduced below: 
 
C.As.1428 to 1436 of 2016 
-: 19 :-
“40. – (1) All orders and other proceedings of the Governor-
General in Council shall be expressed to be made by the 
Governor-General in Council, and shall be signed by a 
Secretary to the Government of India, or otherwise, as the 
Governor-General in Council may direct. 
 
(2)  The governor-general may make rules and orders for the 
more convenient transaction of business in his executive 
council, and every order made, or act done, in accordance with 
such rules and orders, shall be treated as being the order or 
the act of the Governor-General in Council.” 
 
It is not necessary for purposes of the present case to examine the other 
provisions of the Act.   
22. 
 
We may note in passing that the 1915 Act was the first 
comprehensive legislation for, and in relation to, the governance of India 
and marked an attempt, perhaps a tentative first step, towards the rule 
of law as opposed to actions taken in exercise of the royal prerogative or 
based on the decisions of the Secretary of State. By means of the Fourth 
Schedule thereto the previous enactments dealing with the governance of 
India, beginning with the East India Company Act, 1770 onwards, were 
repealed.   
23. 
 
The 1915 Act was succeeded by the Government of India Act, 
1924, which was essentially intended as a consolidating Act and hence 
does not require any further discussion. Then followed the Government 
of India Act, 1935. Part-I of the Act was essentially introductory in 
nature and provided, in terms of Section 2, for the Government of India 
by the Crown. Part-II related to the Federation of India and conferred 
authority on the Crown to declare, by Proclamation, that from the 
appointed date the Federation of India would be created. However, in 
C.As.1428 to 1436 of 2016 
-: 20 :-
terms of Section 320 it was stipulated the Act would come into force in 
separate stages. It read as under:- 
 
“320(1) 
Part II of this Act shall come into force on such 
date as His Majesty may appoint by the Proclamation 
establishing the Federation and the date so appointed is the 
date referred to in this Act as the date of the establishment of 
the Federation.  
 
(2) 
The remainder of this Act shall, subject to any express 
provision to the contrary, come into force on such date as His 
Majesty in Council may appoint and the said date is the date 
referred to in this Act as the commencement of Part III of this 
Act.”  
 
24. 
 
Due to various political vicissitudes which were an integral 
part of the struggle for freedom it was Part-III of the Act, which related to 
the Provinces, which came into full force. The part relating to the 
Federation was not enforced in pre-partition India (after partition the 
Government of India Act, 1935, as radically re-structured by Governor General’s Order No.22, 
was applied in Pakistan as a precursor of the 1956 Constitution. However, for purposes of our 
analysis it is the original version of the Act which is material).  
25. 
 
The Federal Executive is the title of Chapter-II of the Act. 
Section 7 related to the functions of the Governor General on behalf of 
the King and Section 9 related to the Council of Ministers and its 
functions. Both sections are reproduced below in order to illustrate the 
striking similarity with their constitutional successors in Pakistan:-  
 
“7(1) Subject to the provisions of this Act, the executive 
authority of the Federation shall be exercised on behalf of His 
Majesty by the Governor-General, either directly or through 
officers subordinate to him, but nothing in this section shall 
prevent the Federal Legislature from conferring functions upon 
C.As.1428 to 1436 of 2016 
-: 21 :-
subordinate authorities, or be deemed to transfer to the 
Governor-General any functions conferred by any existing 
Indian law on any court, judge or officer, or on any local or 
other authority.  
 
(2) 
References in this Act to the functions of the Governor-
General shall be construed as references to his powers and 
duties in the exercise of the executive authority of the 
Federation and to any other powers and duties conferred or 
imposed on him as Governor-General by or under this Act, 
other than powers exercisable by him by reason that they have 
been assigned to him by His Majesty under Part I of this Act. 
 
(3) 
The provisions of the Third Schedule to this Act shall 
have effect with respect to the salary and allowances of the 
Governor-General and the provision to be made for enabling 
him to discharge conveniently and with dignity the duties of his 
office.”  
 
 
 
--------------------------------------- 
“9(1) There shall be a council of ministers, not exceeding ten 
in number, to aid and advise the Governor-General in the 
exercise of his functions, except in so far as he is by or under 
this Act required to exercise his functions or any of them in his 
discretion: 
 
 
Provided that nothing in this subsection shall be 
construed as preventing the Governor-General from exercising 
his individual judgment in any case where by or under this Act 
he is required so to do.  
 
(2) 
The Governor-General in his discretion may preside at 
meetings of the council of ministers.  
 
(3) 
If any question arises whether any matter is or is not a 
matter as respects which the Governor-General is by or under 
this Act required to act in his discretion or to exercise his 
individual judgment, the decision of the Governor-General in 
C.As.1428 to 1436 of 2016 
-: 22 :-
his discretion shall be final, and the validity of anything done 
by the Governor-General shall not be called in question on the 
ground that he ought or ought not to have acted in his 
discretion, or ought or ought not to have exercised his 
individual judgment.”  
  
26. 
 
Section 17 is also relevant and stipulated that all executive 
actions of the Federal Government shall be expressed to be taken in the 
name of the Governor General. The said section is reproduced below:- 
 
“17 - (1) 
All executive actions of the Federal Government 
shall be expressed to be taken in the name of the Governor-
General.  
 
(2) 
Orders and other instruments made and executed in the 
name of the Governor-General shall be authenticated in such 
manner as may be specified in rules to be made by the 
Governor-General, and the validity of an order or instrument 
which is so authenticated shall not be called in question on the 
ground that it is not an order or instrument made or executed 
by the Governor-General.  
 
(3) 
The Governor-General shall make rules for the more 
convenient transaction of the business of the Federal 
Government, and for the allocation among ministers of the said 
business in so far as it is not business with respect to which the 
Governor-General is by or under this Act required to act in his 
discretion.  
 
(4) 
The rules shall include provisions requiring ministers 
and secretaries to Government to transmit to the Governor-
General all such information with respect to the business of the 
Federal Government as may be specified in the rules, or as the 
Governor-General may otherwise require to be so transmitted, 
and in particular requiring a minister to bring to the notice of 
the Governor-General, and the appropriate secretary to bring 
C.As.1428 to 1436 of 2016 
-: 23 :-
to the notice of the minister concerned and of the Governor-
General, any matter under consideration by him which 
involves, or appears to him likely to involve, any special 
responsibility of the Governor-General. 
 
(5) 
In the discharge of his functions under subsections (2), 
(3) and (4) of this section the Governor-General shall act in his 
discretion after consultation with his ministers.” 
 
27. 
 
We propose to begin with the term “Federal Government”. It 
has been submitted before us on behalf of the Government, that the 
concept of Federal Government had not been defined and hence was 
required to be determined. This, we must point out, is less than 
accurate. The General Clauses Act, 1897, at Section 3(8-ab) contains a 
compendious description of the meaning of the said term for, and in 
relation to, five different time periods. In brief, it will be noted that the 
concept of Federal Government has not remained static but has varied 
with the passage of time. The definition in the General Clauses Act thus 
provides a convenient overview of the concept. The said definition is 
reproduced hereinbelow:- 
 
“Federal Government”.  Federal Government shall –  
 
(a) in relation to anything done before the commencement of 
Part III of the Government of India Act, 1935 mean the 
Governor General in Council or the authority competent at 
the relevant date to exercise the functions corresponding to 
those subsequently exercised by the Governor General;  
 
(b) in relation to anything done after the commencement of 
Part III of the said Act, but before the establishment of the 
Federation of Pakistan, mean, as respects matters with 
respect to which the Governor General was by or under the 
C.As.1428 to 1436 of 2016 
-: 24 :-
provisions of the said Act then in force required to act in 
his discretion, the Governor General and as respects other 
matters, the Governor General in Council; 
 
(c) in relation to anything done after the establishment of the 
Federation of Pakistan but before the twenty third day of 
March, 1956, mean the Governor General; and shall 
include- 
 
(i) 
in relation to functions entrusted under subsection 
(1) of section 124 of the said Act to the Government 
of a Province, the Provincial Government acting 
within the scope of the authority given to it under 
that subsection; and  
 
(ii) 
in relation to the administration before the 
fourteenth day of October, 1955, of a Chief 
Commissioner’s Province, the Chief Commissioner 
acting within the scope of the authority given to him 
under subsection (3) of section 94 of the said Act, 
and  
 
(d) 
In relation to anything done or to be done, after the twenty 
third day of March, 1956, mean the President; and shall 
include in relation to functions entrusted to the Government 
of a Province, the Provincial Government acting within the 
scope of the authority given to it by the President.  
 
(e) 
In relation to anything done or to be done, after the 
fourteenth day of August, 1973, mean the Prime Minister 
and the Federal Ministers; and shall include in relation to 
functions entrusted to the Government of a Province, the 
Provincial Government acting within the scope of the 
authority given to or power conferred on it by the Federal 
Government;  
 
 
C.As.1428 to 1436 of 2016 
-: 25 :-
28. 
 
It can be observed that the legislature elucidated the concept 
of Federal Government over five phases. The first began prior to the 
commencement of Part-III of the Government of India Act, 1935, and 
refers to the Governor General in Council, or the authority competent, at 
the relevant date, to exercise those functions which were subsequently 
exercised by the Governor General. During this period executive 
authority vested in the Crown was exercised in a manner untrammeled 
by restrictions and at the absolute discretion of the Crown. The second 
time period began after the commencement of Part-III of the said Act but 
before the establishment of the Federation of Pakistan. This was, in 
essence, the nascent functioning of constitutional rule in a country 
which was still subservient to the Crown. It draws a distinction between 
the Governor General (exercising his discretionary power) and the Governor 
General in Council (a concept which is analogous to the functioning of a cabinet). The 
third time period commenced after the creation of the Federation of 
Pakistan but prior to the 23rd day of March, 1956 and refers to the 
Governor General (it is clarified that functions, in relation to provincial administration do 
not concern us in this analysis). The fourth time period began after the 23rd day 
of March, 1956, i.e. with the introduction of the Constitution of 1956, 
and refers to the President, in whom the executive authority of the state 
was vested, in name, to be exercised in accordance with various 
constitutional provisions (as well as certain functions in relation to the provinces). This 
definition omits any specific reference to the Constitution of 1962. 
Finally, we come to the period after the 14th day of August, 1973 which 
refers to the Prime Minister and the Federal Ministers and, once again, 
includes, in relation to the functions entrusted to the Government of a 
Province, the Provincial Government acting within the scope of the 
C.As.1428 to 1436 of 2016 
-: 26 :-
authority given to it, or power conferred on it, by the Federal 
Government.   
29. 
 
This is essentially a descriptive definition. As observed 
earlier, for our purposes it will not be necessary to embark on a 
discussion for, and in relation to, the provincial sphere conceptualized by 
it. However, before we embark upon a normative analysis of the concept 
of Federal Government it will be advantageous to place it within a 
historical perspective. Sections 7, 9 and 17 of the Government of India 
Act, 1935 are of seminal importance for, and in relation to, the 
development 
of 
constitutional 
terminology 
in 
the 
subsequent 
constitutional dispensations relating to the exercise of political power. 
Essentially the 1935 Act furnished the template on which the 
Constitution of Pakistan, 1956, was based, which, in turn laid down the 
architectural framework within which the Constitution of Pakistan, 1973 
was framed.    
30. 
 
Chapter II of Part-II of the 1935 Act bore the heading “the 
Federal Executive”. The term Federal Executive considered contextually 
appears to be a synonym and means exactly the same thing as the 
Federal Government. Section 7 is the first section contained in Chapter-II 
and has been reproduced above.   
 
Section 7 is followed by Section 8 which clarifies the matters in 
relation to which the executive authority of the Federation extends. It is 
coterminous with the Federal legislature’s powers to make laws. It is not 
necessary for purposes of this case to deal with the other topics covered 
by Section 8. Section 8, in turn, is followed by Section 9 which bears the 
heading “Administration of Federal affairs”.   
 
Thereafter we have Section 10 which relates to the appointment of 
Ministers by the Governor General. Travelling further, we come to 
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-: 27 :-
Section 17 which, as noted, provides that all executive action(s) of the 
Federal Government are to be expressed to be in the name of the 
Governor General.  
31. 
 
It can be seen, at a glance, that the above provisions are the 
foundations on the basis of which Articles 90 and 99 of the Constitution 
of 1973 were drafted. However, before we arrive at the 1973 Constitution 
we can examine the comparable provisions of the 1956 Constitution. 
32. 
 
Part-IV of the 1956 Constitution bears the heading “The 
Federation”. Chapter-I, which follows, bears the title “The Federal 
Government”. Article 32 deals with the office of the President and the 
relevant part thereof is reproduced below:-  
“32. 
The President. – (1) There shall be a President of 
Pakistan, in the Constitution referred to as the President, who 
shall be elected by an electoral college consisting of the 
members of the National Assembly and the Provincial 
Assemblies, in accordance with the provisions contained in the 
First Schedule.  
 
 
The Cabinet is dealt with under Article 37 which is reproduced 
below:- 
“37. The Cabinet. – (1) There shall be a Cabinet of Ministers 
with the Prime Minister at its head, to aid and advise the 
President in the exercise of his functions.  
 
(2) 
The question whether any, and if so, what, advice has 
been tendered by the Cabinet, or a Minister or Minister of 
State, shall not be inquired into in any court.  
 
(3) 
The President shall, in his discretion, appoint from 
amongst the members of the National Assembly a Prime 
Minister who, in his opinion, is most likely to command the 
C.As.1428 to 1436 of 2016 
-: 28 :-
confidence of the majority of the members of the National 
Assembly.  
 
(4) 
Other Ministers, Ministers of State and Deputy 
Ministers shall be appointed and removed from office by the 
President, but no person shall be appointed a Minister of State 
or Deputy Minister unless he is a member of the National 
Assembly.  
 
(5) 
The Cabinet, together with the Ministers of State, shall 
be collectively responsible to the National Assembly.  
 
(6) 
The Prime Minister shall hold office during the 
pleasure of the President, but the President shall not exercise 
his powers under this clause unless he is satisfied that the 
Prime Minister does not command the confidence of the 
majority of the members of the National Assembly.  
 
(7) 
In the exercise of his functions, the President shall act 
in accordance with the advice of the Cabinet or the 
appropriate Minister or Minister of State, as the case may be, 
except in cases where he is empowered by the Constitution to 
act in his discretion, and except as respects the exercise of his 
powers under clause (6). 
 
Explanation. – For the avoidance of doubt it is hereby declared 
that for the purpose of clause (4) the appropriate Minister shall 
be the Prime Minister.” 
 
 
 
The next relevant article for our purposes is Article 39 which deals 
with the executive authority of the Federation and reads as under: 
“39. Extent of executive authority of the Federation. – (1) 
The executive authority of the Federation shall vest in the 
President and shall be exercised by him, either directly or 
through officers subordinate to him, in accordance with the 
Constitution. 
C.As.1428 to 1436 of 2016 
-: 29 :-
 
(2) 
The executive authority of the Federation shall extend 
to all matters with respect to which Parliament has power to 
make laws: 
 
 
Provided that, save as expressly provided in the 
Constitution or in any Act of Parliament which Parliament is, 
under the Constitution, competent to enact for a Province, the 
said authority shall not extend in any Province to any matter 
with respect to which the Provincial Legislature also has 
power to make laws.” 
 
 
Thereafter we come to Article 41 which deals with the conduct of 
business of the Federal Government and reads as under:- 
“41. Conduct of business of the Federal Government. – (1) 
All executive actions of the Federal Government shall be 
expressed to be taken in the name of the President. 
 
(2) 
The President shall by rules specify the manner in 
which orders and other instruments made and executed in his 
name shall be authenticated, and the validity of any order or 
instrument so authenticated shall not be questioned in any 
court on the ground that it was not made or executed by the 
President.  
 
(3) 
The President shall also make rules for the allocation 
and transaction of the business of the Federal Government.” 
 
 
33. 
 
The Constitution of 1962 is not really relevant to the present 
discussion since the entire axis was altered from a parliamentary form of 
government into a presidential one. Nevertheless, it is striking that 
despite this, many of the key concepts were borrowed from the preceding 
constitutional instruments.  
C.As.1428 to 1436 of 2016 
-: 30 :-
 
Part-III of the 1962 Constitution bore the heading “The Centre” i.e. 
the Federation. Chapter-III was titled The Central Government, which 
was the original term for the Federal Government. Article 31 dealt with 
the Executive Authority of the Federation and read as under:- 
“31. 
Executive Authority of Republic vests in President. – 
The executive authority of the Republic is vested in the 
President and shall be exercised by him, either directly or 
through officers subordinate to him in accordance with this 
Constitution and the law.” 
 
 
Thereafter, comes Article 32 which relates to the Business of 
Government and is reproduced below:- 
 
“32. 
Execution of instruments, etc. – The President may – 
(a) Specify the manner in which orders and other 
instruments made and executed in pursuance of any 
authority or power vested in the President shall be 
expressed and authenticated; and  
(b) Regulate the allocation and transaction of the 
business of the Central Government and establish 
divisions of that Government.” 
 
34. 
 
The Constitution of 1972, being merely an interim 
arrangement does not require analysis.   
35. 
 
The present Constitution came into force on 12th of April, 
1973. Once again Part-III deals with the Federation of Pakistan.  
Chapter-III bears the heading “The Federal Government”. Article 90, the 
article with which we are primarily concerned, is the opening article of 
Chapter-III and is reproduced below (as originally enacted):- 
 
“90. The Federal Government. – (1) Subject to the 
Constitution, the executive authority of the Federation shall be 
C.As.1428 to 1436 of 2016 
-: 31 :-
exercised in the name of the President by the Federal 
Government, consisting of the Prime Minister and the Federal 
Ministers, which shall act through the Prime Minister who 
shall be the chief executive of the Federation.  
 
(2) 
In the performance of his functions under the 
Constitution, the Prime Minister may act either directly or 
through the Federal Ministers.  
 
(3) 
The Prime Minister and the Federal Ministers shall be 
collectively responsible to the National Assembly.” 
 
 
The important point to note about the original structure of Article 
90 is that the first two clauses are identical to those contained in its 
present version. The third clause, which deals with the subject of 
collective responsibility to the National Assembly no longer remains a 
part of Article 90 since it has been moved to Article 91(6) with a minor 
terminological emendation. However, what is important to note is that in 
the interregnum between the enactment of Article 90, as it originally 
stood, and its present restoration, a radical change was introduced in 
1985. By means of the Revival of the Constitution Order (Presidential Order 
No.14 of 1985, which was the forerunner of the 8th Amendment to the Constitution) Articles 90 
to 95 were substituted therefor. The substituted version of Article 90 
under the 8th Amendment is reproduced below:- 
“90. 
Exercise of executive authority of the Federation. – (1) 
The executive authority of the Federation shall vest in the 
President and shall be exercised by him, either directly or 
through officers subordinate to him, in accordance with the 
Constitution.  
 
(2) 
Nothing contained in clause (1) shall – 
 
C.As.1428 to 1436 of 2016 
-: 32 :-
(a) 
be deemed to transfer to the President any functions 
conferred by any existing law on the Government of any 
Province or other authority; or  
 
(b) 
prevent 
the 
Majlis-e-Shoora 
(Parliament) 
from 
conferring by law functions on authorities other than 
the President.” 
 
36. 
 
Article 91, which currently deals with the Cabinet, at that 
time dealt with the election or appointment of the Prime Minister. It is 
not necessary for our purposes to examine this intermediate version of 
Article 91.   
37. 
 
Article 99 of the constitution was also substituted in 1985.  
The original Article 99 read as under:- 
 
“99. Conduct of business of Federal Government. – (1) 
Orders and other instruments made and executed in the name 
of the President shall be authenticated in such manner as may 
be specified in rules to be made by the Federal Government, 
and the validity of an order or instrument which is so 
authenticated shall not be called in question on the ground that 
it is not an order or instrument made or executed by the 
President.  
 
(2) 
The Federal Government may regulate the allocation 
and transaction of its business and may for the convenient 
transaction of that business delegate any of its functions to 
officers or authorities subordinate to it.” 
 
 
However, in 1985 it was substituted to read as under:  
 
“99. 
Conduct of business of Federal Government:  (1) All 
executive actions of the Federal Government shall be 
expressed to be taken in the name of the President.  
 
C.As.1428 to 1436 of 2016 
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(2) 
The President shall by rules specify the manner in 
which orders and other instruments made and executed in his 
name shall be authenticated, and the validity of any order or 
instrument so authenticated shall not be questioned in any 
Court on the ground that it was not made or executed by the 
President.  
 
(3) 
The President shall also make rules for the allocation 
and transaction of the business of the Federal Government.” 
 
 
At present, after the 18th Amendment it reads as under:- 
 
“99. 
Conduct of business of Federal Government:  (1) All 
executive actions of the Federal Government shall be 
expressed to be taken in the name of the President.  
 
(2) 
The Federal Government shall by rules specify the 
manner in which orders and other instruments made and 
executed in the name of President shall be authenticated, and 
the validity of any order or instrument so authenticated shall 
not be questioned in any Court on the ground that it was not 
made or executed by the President.  
 
(3) 
The Federal Government shall also make rules for the 
allocation and transaction of its business.” 
 
 
It will be observed that except for the substitution of the term 
Federal Government for the President the latter two versions are 
identical. 
38. 
 
The 18th Amendment, which was passed in 2010, made a 
conscious attempt, (albeit not consistently) to eradicate from the text of the 
Constitution amendments which had been made in 1985, as they were 
considered as remnants of a military government. Thus we find that 
Article 90 was returned to its original formulation except for clause (3).  
C.As.1428 to 1436 of 2016 
-: 34 :-
Similarly Article 91 was replaced, although not in identical terms. We are 
not, however, concerned with this aspect of the matter.   
39. 
 
Reverting to Article 99, we note there are two very important 
alterations, which are material in the facts of the present case (however 
learned counsel for the parties did not address any submissions in regard to the same). Article 
99, as originally framed, contemplated two sets of rules: the first were 
intended for the authentication of orders and were thus formal in nature, 
as also mandatory. The second set was very important and served a dual 
purpose:  
(i) 
The first purpose was in relation to the allocation and 
transaction of business, and 
(ii) 
The second was to enable the convenient transaction of that 
business by the Federal Government by conferring on it the 
power to delegate any of its functions to officers or 
authorities. 
 
It is important to note, however, that the word “may”, connoting a 
discretionary element, was used in the original article.   
40. 
 
The two critically important changes which have been made 
in the present formulation are:- 
(a) 
the power of delegation to officers and subordinate 
authorities has been taken away, and  
(b) 
the making of rules has been made mandatory. Two very 
significant inferences follow ineluctably from the changes.   
(i) 
The executive power of the Federal Government has 
now been channelized and the exercise thereof is to be 
through the mandatory modality of Rules of Business. 
These Rules are therefore binding on the Government 
and a violation of the terms thereof can be fatal to the 
exercise of executive power. It needs emphasizing that 
C.As.1428 to 1436 of 2016 
-: 35 :-
the conscious substitution of the word “may” by “shall” 
speaks to the intention of Parliament to leave no doubt 
in the matter.   
(ii) 
Whereas originally the Federal Government had the 
power to delegate any of its functions to officers or 
authorities i.e. it would have been possible to delegate 
functions pertaining to fiscal matters to the Finance 
Ministry; this is no longer possible.  
 
 
There is no discretion left in the Executive in relation to this.  
Obviously, the framers of the 18th Amendment felt so strongly about this 
that, notwithstanding, their reluctance to retain any vestiges of the 1985 
Amendments, in this matter they preferred to retain the phraseology 
adopted in it. There has, therefore, been a radical re-structuring of the 
law. We will revert to this aspect of the matter below.  
41. 
 
We may clarify, in relation to the first set of Rules, that they 
are merely intended to ensure that the genuineness of orders passed by 
the Federal Government cannot be questioned in any court once they 
have been authenticated in accordance with the Rules. However, and this 
is an important point, this does not mean that any or every order passed 
will be held to be valid merely because it has been authenticated. The 
scope of this provision is limited only to questions of formal 
authentication and, in each case, it would have to be independently 
determined whether or not the power exercised was in fact available and 
the exercise was validly made in accordance with law.  
42. 
 
We are now in a position to examine the contents of the 
Rules of Business themselves. The present formulation of the Rules of 
Business dates back to 1973. A quick synoptic overview of the relevant 
Rules would not be out of place at this point of time. Rule 2, clause (iii) 
defines “business” as meaning all work done by the Federal Government.  
C.As.1428 to 1436 of 2016 
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Then follows Rule 3 which relates to the allocation of business and 
clause (3) thereof provides that the business of Government shall be 
distributed among the various Divisions (i.e. the administrative units) in the 
manner indicated in Schedule-II. Rule 4 deals with the organization of 
Divisions and Rule 5 bears the heading “Transaction of Business”. It 
prescribes that no important policy decision is to be taken except with 
the approval of the Prime Minister. The responsibility of a Minister, as 
head of a Division, is to assist the Prime Minister in relation to the 
formulation of policy and also to keep him informed of any important 
cases disposed of by him. Subject to the above, a Minister is responsible 
for the policies of his Division. Clause (8) further clarifies that the 
business of a Division shall ordinarily be disposed of by, and under the 
authority of, the Minister in charge and Clause (9) lays down the 
responsibilities of the Secretary. Clauses (8) and (9) of Rule 5 insofar as 
relevant are reproduced below:- 
“(8) 
The business of the Division shall ordinarily be 
disposed of by, or under the authority of the Minister-in-
Charge. 
(9) 
The Secretary shall –  
(a) 
assist the Minister-in-Charge in the formulation of 
policy;  
(b) 
duly execute the sanctioned policy; 
(c) 
submit all proposals for legislation to the Cabinet with 
the approval of the Minister; 
(d) 
Keep the Minister-in-Charge generally informed of the 
working of the Division and of any important case 
disposed of without reference to the Minister; 
(e) 
be the principal accounting officer of his Division, its 
Attached Departments and Subordinate Offices, and 
ensure that the funds controlled by him are spent in 
C.As.1428 to 1436 of 2016 
-: 37 :-
accordance with the rules laid down by the Finance 
Division;  
(f) 
Subject to the provisions of these rules and with the 
approval of the Minister-in-Charge issue standing 
orders laying down the manner of disposal of cases in 
the Division, including the distribution of work amongst 
the officers of his Division and such orders may specify 
the cases or class of cases which may be disposed of by 
an officer subordinate to him; and  
(g) 
be responsible for the careful observance of these rules 
and, where he considers that there has been any 
material departure from them, either in his own or any 
other division, he shall bring the matter to the notice of 
the Minister-in-Charge and, if necessary, to the notice 
of the Prime Minister or the Cabinet.” 
 
43. 
 
Rule 6 reflects the constitutional concept of individual and 
collective responsibility and reads as under:- 
“6. 
Individual and collective responsibility. – The Cabinet 
shall collectively be responsible for the advice tendered to, or 
the executive orders issued in the name of the President 
whether by an individual Minister or as a result of decision by 
the Cabinet; but the Minister shall assume primary 
responsibility for the disposal of business pertaining to his 
portfolio.” 
 
 
Rule 7 provides that, subject to Article 173, all executive actions of 
the Government shall be expressed to be taken in the name of the 
President. Rule 12 renders consultation with the Finance Division 
mandatory in relation to matters which may involve the relinquishment, 
remission or assignment of revenue or expenditure for which no 
provision exists in the Budget. Rule 14 bears the heading “Consultation 
C.As.1428 to 1436 of 2016 
-: 38 :-
with the Law, Justice and Human Rights Division” and Clause (1) is 
material and is reproduced below insofar as relevant:- 
 
“14. 
Consultation with the Law, Justice and Human Rights 
Division. – (1) The Law, Justice and Human Rights Division 
shall be consulted –  
(a) on all legal questions arising out of any case; 
(b) on the interpretation of any law; 
(c) before the issue of or authorization of the issue of an order, 
rule, regulation, by-law, notification, etc. in exercise of 
statutory powers;” 
 
 
Rule 15 makes it mandatory to obtain the approval of the Prime 
Minister in relation to important policy matters.  
44. 
 
Rule 16 is an important rule and, insofar as material, is 
reproduced below:- 
 
“16. Cases to be brought before Cabinet. – (1) The following 
cases shall be brought before the Cabinet :- 
 
(a) proposals for legislation, official or non-official, including 
money bills; 
(b) promulgation and revocation of Ordinances; 
(c) the budgetary position and proposals before the 
presentation of the Annual Budget Statement and a 
Supplementary Budget Statement or an Excess budget 
Statement under articles 80 and 84. 
(d) Proposals for levy, abolition, remission, alteration or 
regulation of any tax and floatation of loans;  
(e)  to (m) 
 
(2) 
Notwithstanding the provisions of sub-rule (1), the 
Prime Minister may in any case give directions as to the 
manner of its disposal without prior reference to the Cabinet.”  
 
C.As.1428 to 1436 of 2016 
-: 39 :-
 
It will be noted, and this is relevant for purposes of the present 
matter, that it is mandatory to bring any proposal for the levy, abolition, 
remission, alteration or regulation of any tax to the Cabinet. Whilst it is 
no doubt true that the Prime Minister has been given discretionary power 
in the matter it is clear that the exercise thereof is circumscribed by the 
following conditions: 
(i) 
There must be a conscious application of mind by the Prime 
Minister to the existing circumstances justifying the need for 
this departure through passing of a reasoned and formal 
order prior to the action taken, and 
(ii) 
More critically, and definitively, a determination whether the 
constitutional provisions justify such a departure? This is a 
matter which we will examine infra.  
 
 
We note that, ex facie, this Rule has been violated by the Finance 
Division in issuing the impugned notification merely on the basis of the 
approval of the Secretary and the Advisor. This is a matter we will further 
discuss at a later stage in this judgment, when we will also consider the 
question of the constitutionality of Rule 16(2).   
45. 
 
Rule 17 deals with the method of disposal of cabinet cases 
and is reproduced below: 
 
“17. Method of disposal of Cabinet cases.  – (1) Cases referred 
to the Cabinet shall be disposed of –  
 
(a) 
by discussion at a meeting of the Cabinet; or 
(b) 
by circulation amongst Ministers; or  
(c) 
by discussion at a meeting of a committee of the 
Cabinet.  
 
Provided that the decisions of the Committee shall be ratified 
by the Cabinet unless the Cabinet has authorized otherwise.” 
C.As.1428 to 1436 of 2016 
-: 40 :-
 
 
The procedure for the submission of matters for decision making 
by the Cabinet is set out in Rule 18 and again is important.  The relevant 
provisions thereof are reproduced below:-  
 
“18. Manner of submissions of Cabinet cases. (1) In respect of 
all cases to be submitted to the Cabinet, the Secretary of the 
Division concerned shall transmit to the Cabinet Secretary a 
concise, lucid and printed memorandum of the case 
(hereinafter referred to as the “summary”), giving the 
background and relevant facts, the points for decision and the 
recommendations of the Minister-in-Charge.  In the event of 
the views of the Division being different from the views of the 
Minister both the views shall be included in the summary.  
 
Provided that the Executive Director, Higher Education 
Commission, shall be the ex-officio Federal Secretary and may 
submit summaries, or cases to cabinet directly with the 
approval of Chairman, Higher Education Commission, having 
the status of a Federal Minister. (note:- this proviso, however, has 
been deleted vide SRO 226(I)/2010 dated 2.4.2010)  
 
(2) 
In the case of a proposed legislation to which approval 
is sought in principle, the summary shall bring out clearly the 
main issues to be legislated upon. 
 
(3) 
The summary shall be self-contained as far as possible, 
not exceeding two printed pages and may include as 
appendices only such relevant papers as are necessary for the 
proper appreciation of the case.  The number of copies of the 
summary and the form in which it is to be drawn up shall be 
prescribed by the Cabinet Secretary.  
 
(4) 
Where a case concerns more than one Division, the 
summary shall not be submitted to the Cabinet unless it has 
been considered by all the Divisions concerned.  In the event of 
a difference of opinion between them, the points of difference 
C.As.1428 to 1436 of 2016 
-: 41 :-
shall be clearly stated in the summary, a copy of which shall be 
sent by the sponsoring Division to the other Division 
concerned simultaneously with the transmission of the 
summary to the Cabinet Division.  
 
(5) 
All draft Bills, Ordinances or Orders shall be submitted 
to the Cabinet after they have been scrutinized by the Law, 
Justice and Human Rights Division, and no changes shall be 
made therein except in consultation with that Division.  
 
(6) 
No case for inclusion in the agenda of a meeting of the 
Cabinet shall be accepted unless it reaches the Cabinet 
Secretary at least several clear days in advance of the meeting: 
 
Provided that, if a case is urgent and is required to be taken up 
at short notice, the Secretary concerned will obtain approval of 
the Prime Minister for its inclusion in the agenda before it is 
transmitted to the Cabinet Secretary.  
 
(7) 
It shall be the duty of the Cabinet Secretary to satisfy 
himself that the papers submitted by a Secretary are complete 
and in appropriate form.  He may return the case until the 
requirements of the rules have been complied with.  If the 
Cabinet Secretary is satisfied that the case does not merit 
consideration of the Cabinet he may advise the matter to be 
placed before an appropriate forum or require it to be 
submitted to the Prime Minister.” 
 
46. 
 
The procedure to be followed in Cabinet meetings is set out 
in Rule 20 which prescribes that they are normally to be held once a 
week (we note, in passing, that it appears that presently this Rule is being honoured more in the 
breach than in the observance thereof. The political implications of this do not concern us here, 
but we will revert to the question of the constitutional implications flowing from decision making 
lacking the prior sanction of the Cabinet). It may be noted that it is not mandatory 
for the Prime Minister to preside at all meetings of the Cabinet. In this 
C.As.1428 to 1436 of 2016 
-: 42 :-
connection, reference may be made to Clauses (3) and (4) which are 
reproduced below:- 
 
“20. 
Procedure regarding Cabinet Meetings. 
 
(3) 
The Prime Minister may authorize the holding of 
Cabinet meetings during his absence. 
 
(4) 
The Prime Minister shall preside at all Cabinet 
meetings. In the absence of the Prime Minister a Minister 
nominated by the Prime Minister shall preside.  The decisions 
taken in the Prime Minister’s absence shall be subject to the 
approval of the Prime Minister, unless the Cabinet feels that a 
particular case is so urgent that immediate action may be taken 
in anticipation of the Prime Minister’s approval.” 
 
 
Rule 20, clause (6) is an important provision and provides that no 
case shall be discussed in Cabinet, nor any issue raised, without a 
summary relating to it first being circulated. There is a proviso, in terms 
whereof this requirement may be dispensed with but for that purpose a 
formal order of the Prime Minister is required. What is significant about 
the above provisions is that they indicate that a mere formal consent of 
the Cabinet without following the detailed provisions in the Rules may 
render the decision open to question. The Cabinet, being the supreme 
body of the Executive, with a high constitutional status, cannot and ought 
not to be treated as a mere rubber stamp for decision making by the Prime 
Minister. Article 90 envisages a parliamentary form of Government which 
is based on decision making by the Cabinet. To turn the Cabinet into 
such a rubber stamp in pursuit of decision making by the Prime Minister 
to the exclusion of his Cabinet would violate the letter and spirit of our 
Constitution. That would be to reduce a cabinet form of government into 
a prime ministerial one which is a concept which is alien to the 
C.As.1428 to 1436 of 2016 
-: 43 :-
Constitution, as it stands at present. However, it should be noted in 
passing, that the original formulation of the constitution, was certainly 
more amenable to a greater construction of power in the hands of the 
Prime Minister (originally Article 48 of the constitution contained a clause stating that the 
orders passed by the President required for their validity the counter-signature of the Prime 
Minister. It is, on the face of it, a little difficult to reconcile this clause with the dignity and status 
of the head of state). We shall revert to this aspect of the matter later.  
47. 
 
It will be recollected that the word “business” was defined in 
terms of Rule 2 to mean all work done by the Federal Government. This 
necessarily means that the concept of business of Government includes 
not merely executive matters but also those which pertain to legislation.  
This is borne out by the provisions of Part-E of the Rules which bears the 
heading “Legislation”. Rule 27 provides for official Bills relating to 
proposed legislation. The procedure envisages the involvement of the Law 
Division in relation to drafting and so forth. In all cases the draft Bill has 
to be put up before the Cabinet by the concerned Division for its 
approval. Even legislation of a formal nature forms the subject matter of 
the Rules and sub-clauses (7) and (8) of Rule 27 are relevant in this 
context.  
 
“(7) 
Legislation relating to the codification of substantive 
law or for the consolidation of existing enactments or 
legislation of a purely formal character, e.g., repealing and 
amending Bills and short title Bills, may be initiated in the 
Law, Justice and Human Rights Division.  It shall, however, 
consult the Division concerned, if any, which shall consider the 
draft legislation from the administrative point of view and send 
their views to the Law, Justice and Human Rights Division.  
 
(8) 
After taking action in terms of sub-rule (5), the Division 
concerned shall forward to the Law, Justice and Human Rights 
C.As.1428 to 1436 of 2016 
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Division the draft legislation in its final form with a statement 
of objects and reasons duly signed by the Minister-in-Charge.  
The Law, Justice and Human Rights Division, after satisfying 
itself that all legal requirements have been complied with for 
the introduction of the Bill in the Assembly or, as the case may 
be, the Senate, transfer the Bill along with the statement of 
objects and reasons to the Parliamentary Affairs Division  for 
arranging its introduction in the appropriate House.” 
 
48. 
 
Against the above backdrop we can now turn to the facts of 
the present case. As observed earlier, the appellants are importers of 
cellular phones and other goods. Certain exemptions from sales tax were 
granted to them by the Federal Government. They were then either 
withdrawn or the tax rates were modified in terms of different 
notifications issued pursuant to Sections 3(2)(b), 3(6), 8(1)(b), 13(2)(a) 
and 71 of the Act. These notifications relate to cellular phones. Similar 
notifications had been issued earlier in relation to textile goods and, once 
again, the exemptions granted were withdrawn and/or modifications 
took place in relation to the rates of sales tax.   
49. 
 
The sole ground urged before us was that these notifications 
had not been issued by the Federal Government, as that term ought to 
be construed in the light of the constitutional provisions. We will, 
therefore, assume for purposes of the present case, that the notifications 
issued were otherwise in order and not open to any exception save and 
except in relation to the above point.   
50. 
 
The importance of the Rules of Business cannot be 
understated within a constitutional framework. Although, generally 
speaking, it is correct to state that all rules are binding for, and in 
relation to, the powers thereby conferred on the Executive, this is 
especially so in the case of the Rules of Business. The concept of rules, 
C.As.1428 to 1436 of 2016 
-: 45 :-
as is obvious, is subsumed in subordinate or delegated legislation. It is 
an integral part thereof. All legislation is binding and should be acted 
upon. The Federal Government does not have the prerogative to follow, or 
not to follow, legislation, both primary as well as secondary or delegated, 
in its discretion. The authority to frame rules is normally conferred by an 
Act of Parliament. In the case of the Rules of Business this authority 
flows from the Constitution itself. As noted above, Clause (3) of Article 99 
makes it mandatory for the Federal Government to make rules which 
cover two related sub-fields; firstly, for and in relation to the allocation of 
the business of the Government and secondly, for transacting the said 
business. This clause is to be read as essentially ancillary to the 
overarching concept of the rule of law. The Constitution confers vast 
powers on the Government for the transaction of executive business. 
There is no reason to suppose, or believe, that the framers of the 
Constitution intended, in disregard of the explicit language employed, 
that the Federal Government could, in its discretion, either follow, or not 
follow, the provisions of the Rules of Business. The framer of rules is as 
much bound by the content thereof as anyone else is subject thereto. These 
are basic precepts of constitutional interpretation. To allow the Executive 
to depart from the language of the Rules, in its discretion, would be to 
permit, and legitimize, unconstitutional executive actions. Quite 
independently of the above, there is ample case law stressing the 
importance of a structured exercise of discretionary power. In this case 
the discretionary executive powers have already been fettered by the 
Constitution. The framing of rules for this purpose is inextricably linked 
to the guided exercise of official power. The following of the Rules of 
Business is a salutary exercise intended to enhance, and amplify, 
concepts of good governance. We have no doubt that it is mandatory and 
C.As.1428 to 1436 of 2016 
-: 46 :-
binding on the Government, and so hold. A similar view was taken by 
this Court in the case of Ahmad Nawaz Shah7 (supra). 
51. 
 
The argument is sometimes advanced, in order to defeat the 
language of subordinate legislation, that it is merely directory and not 
mandatory. It is necessary to emphasize the point that, in the normal 
course, there is no reason whatsoever why the language of rules should 
not be considered to be mandatory unless it is ex facie discretionary.  
The rules are framed to achieve a certain objective and to achieve this 
within the channels relating to the devolution and flow of statutory 
authority. In the absence of compelling reasons to the contrary all rules 
are, and should be considered to be mandatory and binding. The burden 
of proof lies on anyone asserting that the rules in question are directory 
and not mandatory. He must establish that there is a sound and 
powerful reason why they should not be considered mandatory and 
binding. This principle applies with redoubled force, for and in relation to 
two sets of rules; firstly, constitutionally mandated rules i.e. the Rules of 
Business, and secondly, rules framed under fiscal enactments.   
Constitutionally mandated rules are closely intertwined with the concept 
of good governance for and in the public interest. Allowing a departure 
therefrom would be detrimental to open and transparent forms of 
governance. If a government department admits that although it has 
violated explicit provisions of the rules, its violation should be condoned 
by treating the breach as non-actionable merely on the ground of its 
supposedly being directory, then surely serious questions arise in 
relation to the good faith of the department. In each and every case the 
presumption of law would be that the rules are mandatory and should be 
observed and followed. If, and only if, a compelling public interest is 
                                       
7 2002 SCMR 560 
C.As.1428 to 1436 of 2016 
-: 47 :-
established as a reason for non-compliance with the rules i.e. other than 
inadvertence, or negligence, or incompetence then, and only then, can 
the court consider whether or not to condone the breach in the 
observance of the rules. These considerations are fortified and amplified 
for, and in relation to, fiscal enactments. The reason is twofold; firstly 
Article 77 of the Constitution only enables the levy of tax under law and, 
secondly, the levy of a tax inevitably implies a restriction of a citizen’s 
right to property. Payments of tax amount to a corresponding deprivation 
of property and, since the right to property is a fundamental right, this 
can only be done by means of strict compliance with the law. It follows 
that the breach of Rule 16 is fatal to the case of the Government. 
Although this is sufficient to dispose of the case it is necessary that we 
should also clarify the constitutional position, for which it is necessary to 
revert to the concept of Federal Government.   
52. 
 
Article 90, as pointed out above, states that the executive 
authority of the Federation shall be exercised in the name of the 
President by the Federal Government. The Federal Government is then 
described as “consisting of the Prime Minister and the Federal Ministers”. 
The question is, what is the precise interpretation of this provision? 
53. 
 
The learned Additional Attorney General advanced, at some 
length, his submissions for, and in relation to, the concept of Federal 
Government as well as the allied concept of the executive authority of the 
Federation. He developed his argument by referring to Article 41 of the 
Constitution. The said article provides, in terms of Clause (1) thereof, 
that the President shall be the Head of State and shall represent the 
unity of the Republic. He then travelled to Article 48. Clause (1) of the 
said Article provides that, in the exercise of his functions, the President 
shall act on, and in accordance with, the advice of the Cabinet or the 
C.As.1428 to 1436 of 2016 
-: 48 :-
Prime Minister. Incidentally, at this point we may note, in passing, that 
the original formulation of Article 48(1) stipulated that the President was 
obligated to act on, and in accordance, with the advice of the Prime 
Minister and it was further added that such advice shall be binding on 
him. In brief, the importance and significance of the Cabinet which lies 
at the heart of the parliamentary form of Government, was downplayed 
in the original formulation and an alternate template of virtual prime 
ministerial rule was laid down. We have already referred to this aspect of 
the matter above. By means of the 8th Amendment to the Constitution 
Article 48 was reformulated into its present form so as to give primacy to 
the advice of the Cabinet and thus restore the Cabinet to a pristine 
position at the heart of the Executive. Reverting to the submissions of the 
learned counsel, he then developed his argument by contending that the 
definition of the Federal Government should now be considered to be the 
President along with the Cabinet headed by the Prime Minister. This 
argument certainly has the merit of novelty, if nothing else.   
54. 
 
We are unable to agree with him. Article 90 states 
categorically what the Federal Government is; it consists of the Prime 
Minister and the Federal Ministers (i.e. the Cabinet) and not the President 
who is not mentioned therein (we note, in passing, the similarity with Articles 176 and 
192 which respectively define the Supreme Court and the High Court as consisting of the Chief 
Justice and judges). We are unaware of any principle of constitutional 
interpretation which would allow us to construe Article 41 and Article 48, 
on the basis of a presumed intention, so as to override the explicit 
provisions of Article 90. Neither article purports to do so. The concept of 
the President being the Head of State should not be confused with the 
completely different concept of the Head of Government and nor should 
the two offices be conflated. Article 48 merely stipulates that, in the 
C.As.1428 to 1436 of 2016 
-: 49 :-
discharge of his functions, the President is mandated to act on, and in 
accordance with, the advice of the Cabinet or the Prime Minister. This 
article relates to the performance of the constitutional functions of the 
President by making it binding on him to follow the advice of the Cabinet.  
This is by no means the same as asserting that, by doing so, he becomes 
a part of the Federal Government. He is not. He is the Head of State.  
There are many functions of state which are discharged by different 
organs without their becoming part of the Federal Government. To take 
an obvious illustration; the judicial functions of the State, which lie at 
the heart of the rule of law, are discharged by the Supreme Court and 
the High Courts as well as such other courts as are established by law in 
terms of Article 175. By doing so they do not become part of the Federal 
Government (at least for purposes of the domestic law of the State). Article 175 does 
not in any manner qualify the position stated in Article 90. The concept 
of Head of State is distinct from that of head of government and remains 
as such.   
55. 
 
In English constitutional law, which forms the bedrock on 
which the parliamentary form of government is based, the status of the 
sovereign has been developed over the years. In the classic tome “The 
Law of the Constitution” by A.V. Dicey (first published in 1886) there is a 
detailed exposition of the rule of English law which states that “the King 
can do no wrong.” The following passage is reproduced from page 24 of 
the 9th Edition:- 
“To the law of the constitution belong the following rules:- 
“The King can do no wrong.” This maxim, as now interpreted 
by the courts, means, in the first place, that by no proceeding 
known to the law can the King be made personally responsible 
for any act done by him; if (to give an absurd example) the 
King were himself to shoot the Premier through the head, no 
C.As.1428 to 1436 of 2016 
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court in England could take cognizance of the act. The maxim 
means, in the second place, that no one can plead the orders of 
the Crown or indeed of any superior officer in defence of any 
act not otherwise justifiable by law; this principle in both its 
applications is (be it noted) a law and a law of the constitution, 
but it is not a written law. “There is no power in the Crown to 
dispense with the obligation to obey a law;” this negation or 
abolition of the dispensing power now depends upon the Bill of 
Rights; it is a law of the constitution and a written law. “Some 
person is legally responsible for every act done by the Crown.”  
This responsibility of Ministers appears in foreign countries as 
a formal part of the constitution; in England it results from the 
combined action of several legal principles, namely, first, the 
maxim that the King can do no wrong; secondly, the refusal of 
the courts to recognize any act as done by the Crown, which is 
not done in a particular form, a form in general involving the 
affixing of a particular seal by a Minister, or the counter-
signature or something equivalent to the counter-signature of a 
Minister; thirdly, the principle that the Minister who affixes a 
particular seal, or countersigns his signature, is responsible 
for the act which he, so to speak, endorses; this again is part of 
the constitution and a law, but it is not a written law. So again 
the right to personal liberty, the right of public meeting, and 
many other rights, are part of the law.  
 
56. 
 
In England the Government is often referred to as Her 
Majesty’s Government. Everything is done in the name of the sovereign, 
although the actual and effective power of the Crown is strictly limited. 
Hence the distinction between the sovereign and the Government. The 
Government is carried on in the name of the Crown. The courts of law 
are described as the Royal Courts of Justice although the Crown has no 
influence over them. In brief, the Crown is considered theoretically as the 
fountainhead of all authority and power. This goes back to the time when 
the monarch wielded absolute power and authority.  
C.As.1428 to 1436 of 2016 
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57. 
 
The underlying concept that government is to be carried on 
in the name of the President was borrowed from English constitutional 
practices as embodied in the Government of India Act, 1935, which was 
then followed in successive constitutional dispensations. However, formal 
terminology is one thing, the constitutional reality is another. Thus, 
under Articles 90 and 99 although all executive actions are to be 
expressed to be taken in the name of the President, this does not change 
the underlying reality.  
58. 
 
The learned Additional Attorney General also submitted, in 
relation to the concept of “business”, as defined in Rule 2, that it 
includes both executive and legislative work. So far the argument is 
unexceptionable and we have no difficulty in accepting it. It is obvious 
that an important part of the functions of the Government relates to the 
formulation and initiation of legislative measures. Thus the Rules of 
Business must encompass both executive as well as legislative business.  
However, the inference drawn by him from this premise is not justifiable.  
There is a vast gulf between considering, or taking, policy decisions 
regarding legislative measures and the actual power to frame or enact 
legislation, whether primary or secondary. Although the overwhelming 
majority of legislation is proposed by the Government, which enjoys the 
majority to pass the same in parliament, the Executive, as such, cannot 
make laws. This is the legislative function. It is distinct from the 
executive function. Indeed, the Rules of Business themselves make this 
clear although the proposition is obvious even otherwise (we will separately 
deal with the ordinance making power of the State at a later stage of this judgment). 
59. 
 
Part-E of the Rules of Business deals specifically with 
legislation. Rule 27 stipulates that the Division concerned shall be 
responsible for determining the contents of the proposed legislation and 
C.As.1428 to 1436 of 2016 
-: 52 :-
for consultation with other Divisions. Other rules further develop, and 
lay down, in some detail, the procedure to be adopted. All this is part of 
the legislative business which is governed by the Rules of Business.  
However, once the proposed legislation is finalized and then placed 
before the House, the powers of the Executive, as such, come to an end.  
The legislature takes over. It is inconceivable that on account of the fact 
that the Rules of Business cover legislative work they could also be 
deemed to confer power on the Executive to enact legislative measures. 
All statutory rules, including those of a fiscal nature, are subordinate 
legislation. The power to enact subordinate legislation has to be 
conferred by substantive law. The Rules of Business, which merely 
regulate procedural modalities, cannot conceivably do so.  
60. 
 
His further argument that Rule 3(3) provides that the 
business of government is to be allocated to Divisions in accordance with 
Schedule-II, 
which 
in 
turn 
provides 
that 
tax 
policy 
and 
tax 
administration falls within the Revenue Division is, confined to that 
extent, and that extent alone, correct. It cannot be stretched any further, 
and it by no means follows that the Chairman, FBR, who is the ex officio 
Secretary of the Revenue Division is empowered, ipso facto under Rule 
4(2) read with Rule 3(3) to issue notifications pertaining to modifications 
of tax merely because the subject falls within the scope of his 
responsibilities. The conferment of power, the exercise of power and the 
formal notification of the exercise of power are all independent (albeit 
interlinked) concepts. The Chairman FBR, in his capacity as Secretary to 
the Revenue Division can no doubt make proposals pertaining to 
modification of tax policy. He can either directly, or through his 
subordinate officials, process proposals. If the processing of tax 
proposals were, for example to be done by another Division that would 
C.As.1428 to 1436 of 2016 
-: 53 :-
quite clearly be illegal. However, his power does not extend any further.  
The power to make fiscal changes is a substantive power, and moreover, 
one of great constitutional importance. It has to be clearly spelt out from 
the scheme of the constitution and the language used in any enactment.  
The Rules of Business neither confer such a power, and nor can they, on 
any meaningful interpretation of the constitution, conceivably confer 
such a power. If the Rules of Business were to be amended to 
purportedly confer such a power, the amendment would be clearly ultra 
vires.  
61. 
 
His reference to Rule 7(2), read with Schedule-IV which 
allows the Secretary to authenticate by signature all orders and other 
instruments made, or executed, in the name of President disregards the 
fact that this is a purely formal power. The exercise of this power 
establishes the genuineness of the document. It does not confer the 
statutory power to issue such a document. 
62. 
 
The continuation of his argument to the effect that the 
Secretary sought, and obtained, the approval of the Advisor is equally 
flawed. Neither the Secretary, nor the Advisor, has any power to make 
subordinate or delegated legislation. This power has been conferred 
solely and exclusively on the Federal Government in terms of Section 3 of 
the Sales Tax Act. Indeed it could not have been conferred on any other 
subordinate authority, or body, without violating the Constitution. We 
have already noted that the constitutional power to delegate functions to 
officials or other authorities has been taken away.  
63. 
 
It needs to be stressed, with clarity and precision, that the 
allocation of business, i.e. by whom, and how a matter is to be dealt 
with, is not equivalent to the grant of power. Allocation of business is 
merely a matter of inter-departmental procedure to indicate which 
C.As.1428 to 1436 of 2016 
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Division of the Government is going to deal with a certain subject. The 
mere fact that a certain Division is going to deal with a specified subject 
does not confer any extra, or additional, constitutional or statutory 
powers on the said Division. In each and every case it has to be 
established as to what power has been conferred and in what manner it 
is to be exercised. Certain powers have been conferred under the Sales 
Tax Act. They have been conferred, and rightly so, on the Federal 
Government. The conferment of such a power on any other authority 
would have been clearly unconstitutional. Now it is up to the Federal 
Government to allocate, through the modality of the Rules of Business, 
which of the different Divisions is to deal with the matter. But this most 
emphatically does not mean that the Revenue Division has been 
transformed into the Federal Government. It has not. It remains what it 
always was. The concept of Federal Government is a foundational 
concept of the Constitution and must be interpreted and construed 
exactly as specified in Article 90. The Secretary of the Revenue Division 
has full power and authority to process a case relating to fiscal matters.  
Once he has processed it, he then has to forward it, in accordance with 
the normal constitutional channels, to the Federal Government, for 
decision. In other words, the decision would then be taken by the 
Cabinet comprising of the Prime Minister and the Ministers. The mere 
fact that the Secretary of the Revenue Division has processed the case 
does not elevate his status to that of the Federal Government. 
64. 
 
The above clarification is further fortified by the language of 
Article 97 of the Constitution which is reproduced below:- 
“97. 
Extent of executive authority of Federation. --- Subject 
to the Constitution, the executive authority of the Federation 
shall extend to the matters with respect to which [Majlis-e-
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Shoora (Parliament)] has power to make laws, including 
exercise of rights, authority and jurisdiction in and in relation 
to areas outside Pakistan. 
Provided that the said authority shall not, save as expressly 
provided in the Constitution or in any law made by [Majlis-e-
Shoora (Parliament)], extend in any Province to a matter with 
respect to which the Provincial Assembly has also power to 
make laws.” 
 
 
It will be noted that this Article lays down the extent of the 
executive authority of the Federation i.e. the powers of the Federal 
Government. It begins with the qualifying phrase “subject to the 
Constitution”, which is significant, for reasons to be explained below, 
and goes on to state that the executive authority of the Federation is 
coterminous with Parliament’s power to make laws. The exercise of both 
powers falls within a congruent sphere. If Parliament can make laws 
about a certain matter, the Federal Government can take executive 
action in relation thereto. The executive authority of the Federation vests 
in the Federal Government and it can operate within the corresponding 
legislative sphere. However, it should be noted that it is the Federal 
Government – as constitutionally defined - which is the repository of this 
executive power and no one else. Article 99 carries the argument logically 
forward by stating that all executive actions of the Federal Government 
(and no one else) are expressed to be taken in the name of the President.  
The use of the phrase “subject to the constitution” in Article 97 indicates  
that the executive authority of the Federation, as exercised by the 
Federal Government, is subordinated to the constitutional schema in 
relation to the conferment of constitutional powers and responsibility on 
the three great organs of the State. It would be recollected that all 
executive actions of the Federal Government are expressed to be taken in 
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the name of the President. It is not the actions of the Secretary, or head 
of a Division, as such, but the executive actions of the Federal 
Government which are to be taken in the name of the President.   
65. 
 
We now turn to a consideration of the status of “subordinate 
authorities” which is a matter dealt with in Article 98. This article 
provides that, on the recommendation of the Federal Government, 
Parliament may, by law, confer functions upon officers, or authorities, 
subordinate to the Federal Government. It is reproduced below:- 
“98. 
Conferring of functions on subordinate authorities. – 
On the recommendation of the Federal Government, [Majlis-e-
Shoora (Parliament)] may by law confer functions upon 
officers 
or 
authorities 
subordinate 
to 
the 
Federal 
Government.” 
 
66. 
 
This article, read contextually with the other relevant 
articles, envisages a multi-stage procedure. Each stage has to be strictly 
complied with.  
The sequence of developments is as follows:- 
(i) 
The original concept in Article 90 (which now stands restored 
to its initial configuration) was that the executive authority 
of the Federation was to be exercised in the name of 
the President by the Federal Government. 
(ii) 
The Federal Government was defined to be the Prime 
Minister and the Federal Ministers (i.e. the Cabinet). 
(iii) 
The Cabinet was to act through the Prime Minister 
who was to be the Chief Executive. 
(iv) 
The Prime Minister could act directly or through 
Federal Ministers. 
(v) 
This hierarchical exercise of powers was stated to be 
subject to the constitution i.e. the exercise of 
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governmental 
power 
was 
subjected 
to 
the 
constitutional 
provisions 
in 
their 
totality. 
This 
obviously 
postulates 
a 
referential 
base 
of 
a 
parliamentary democracy with the Cabinet at the heart 
of the Executive.   
(vi) 
In 1985 a radical change was made in Article 90 by 
vesting the totality of executive authority in the 
President instead of the Federal Government i.e. the 
Cabinet.  The flow of authority was then the following: 
(a) 
The President now became the constitutional 
repository of all executive authority. 
(b) 
He could exercise this authority, either directly 
or through officers subordinate to him (this would 
obviously include the exercise of power through ministers). 
(c) 
There was no delegation of power as such.  
When powers were exercised by officials it was, 
in the eye of law, the President acting through 
them.   
(d) 
The effective restraint on the President was that 
power was to be exercised in accordance with 
the constitution. This, therefore, restored the 
power of the Cabinet, albeit by a rather 
circuitous route. However, the formulation as a 
whole, was really a reversion to the structure of 
the Government of India Act, 1935 which we 
have already discussed above.   
(vii) 
By the 18th Amendment the original language of Article 
90 was restored, but other changes were also made.  
When it came to Article 99, which in its original 
formulation, conferred the power on the Federal 
Government to delegate its functions to subordinate 
officials, this power was not restored. It is, however, 
important to bear in mind that in the original 
constitution the power to delegate was purely 
discretionary. It could be exercised, or not exercised, 
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at the will of the Government.  In actual practice it was 
perhaps rarely exercised. It follows from the above that 
the mere taking away of a discretionary power to 
delegate does not make any substantial difference to 
the exercise of constitutional power as matters stand 
at present. 
 
It is important to note that designated functions can only be 
conferred on officers or authorities who are subordinate to the Federal 
Government. They cannot, for example, be conferred on private entities 
or companies. Official power can only be exercised through official 
channels.  However, as is obvious, even the passing of a law to such 
effect would not elevate the status of officers of the Federal Government 
and enable them to be treated as the Federal Government itself. 
Furthermore, this provision very clearly does not contemplate the 
transfer of legislative powers of any nature whatsoever to subordinate 
officials. All it permits is the discharge of certain functions by designated 
officials. The transfer of legislative powers would be a clear cut violation 
of the structure of the constitution and the concept of separation of 
powers. We are, therefore, unable to agree with the contention of the 
learned Additional Attorney General in this behalf. Neither the 
constitutional provisions, nor the Rules of Business, confer power on a 
Secretary or head of a Division, to be treated as the Federal Government. 
Contrary to what he has submitted, the phrase “subject to the 
constitution” used in Article 90 was not intended to differentiate the 
extent of the executive authority of the Federation from that as set out in 
Article 99. Both articles are to be read in conjunction with each other 
and not in opposition thereto. There is no conflict between the two 
articles which requires resolution by reference to the phrase “subject to 
the constitution”. Article 99 supplements the contents of Article 90.  
C.As.1428 to 1436 of 2016 
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67. 
 
He has, however, correctly contended that the levy of tax is 
the function of Parliament under Article 77 of the Constitution and the 
regulation and issuance of fiscal notifications is in the nature of 
subordinate legislation. He has further, again correctly, contended that 
such powers, if given to the Executive per se, would amount to a 
negation of the doctrine of parliamentary supremacy and the doctrine of 
separation of powers. Both these propositions are valid and make the 
distinction between executive and legislative power clear.   
68. 
 
We may now refer to the provisions of the Pakistan 
Telecommunication (Re-Organization Act), 1996 to which reference was 
made by the learned Additional Attorney General to buttress his 
submissions. While it is perfectly true, as stated by him, that the said Act 
does contain a definition of the Federal Government as being the 
Ministry of Information Technology and Telecommunication we have no 
doubt about the fact that a statutory definition must yield before the 
provisions of the Constitution of Pakistan. These provisions, as discussed 
above, leave no doubt in the matter as what the term Federal 
Government means. It means the Prime Minister and the Ministers.  
Hence, this statutory definition is clearly violative of Article 90 of the 
Constitution and, therefore, is ultra vires.   
69. 
 
There was a sharp difference of opinion between the learned 
Additional Attorney General and the learned amicus appearing in the 
matter as to the meaning of the phrase “executive authority”. The learned 
Additional Attorney General submitted that the executive power of the 
state was the residue of legislative and judicial power. In support of his 
contention he relied on English parliamentary practice in terms of which, 
although initially all powers were concentrated in the monarch, they 
were gradually subjected to the rule of law which implied that legislative 
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and judicial powers were essentially surrendered to parliament and the 
judiciary. Thus the executive power left with the Crown was essentially a 
residuary power. The executive power of the Crown was further modified 
with the passage of time. He has, in support of his submissions relied on 
Rai Sahib’s8 case (supra) as reaffirmed in two subsequent decisions of the 
Indian Supreme Court. Paragraph 12 of the former judgment is 
reproduced below:- 
 
“It may not be possible to frame an exhaustive definition of 
what executive function means and implies. Ordinarily the 
executive power connotes the residue of governmental 
functions that remain after legislative and judicial functions 
are taken away.  
The Indian Constitution has not indeed recognized the doctrine 
of separation of powers in its absolute rigidity but the functions 
of the different parts or branches of the Government have been 
sufficiently differentiated and consequently it can very well be 
said that our Constitution does not contemplate assumption, by 
one organ or part of the State, of functions that essentially 
belong to another. The executive indeed can exercise the 
powers of departmental or subordinate legislation when such 
powers are delegated to it by the legislature.   
It can also, when so empowered, exercise judicial functions in 
a limited way. The executive Government, however, can never 
go against the provisions of the Constitution or of any law. 
This is clear from the provisions of Article 154 of the 
Constitution but, as we have already stated, it does not follow 
from this that in order to enable the executive to function there 
must be a law already in existence and that the powers of the 
executive are limited merely to the carrying out of these laws.” 
  
70. 
 
As against the above contention, the learned amicus 
contended that the argument that the executive power is the residual 
                                       
8 AIR 1955 SC 549 = (1955) 2 SCR 225 
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power is fallacious. He relied on various decisions in support of his 
contention. According to him, the executive authority is set out in the 
constitution and is the administration of the Government in accordance 
with law.   
71. 
 
In our opinion the difference between the two learned 
counsel is largely semantic in nature. One has traced the origin of 
executive power in the light of the history of the parliamentary form of 
government which indicates that although the sovereign enjoyed powers 
which were originally an amalgam of executive, legislative and judicial 
power, but gradually with the passage of time it is the executive power 
alone which has remained with the government of the day. The 
Constitution of Pakistan, which essentially accepts the separation of all 
power into three broad divisions (albeit without a formal statement to this effect) by 
treating legislative, executive and judicial powers separately arrives at 
the same conclusion, not as a historical process but on an analytical 
plane. Both paths converge. The conclusion in both cases is the same. 
There is no conflict between the two approaches; one is predicated on the 
evolutionary process while the other is descriptive of the culmination of 
that process in the form of three separate categories of power in terms of 
the present constitution.   
72. 
 
It should, however, be clarified that the above noted division 
of power which is sometimes referred to as the trichotomy of powers, is 
not rigidly adhered to in our Constitution. The term is in that sense 
somewhat misleading. The parliamentary form of government essentially 
envisages a broad categorization of power but not the erection of rigid 
walls 
of 
separation. 
The 
distinction 
is 
of 
great 
significance 
jurisprudentially. There are no impassable barriers between the different 
types of power. There is often an overlapping or blurring of boundaries. 
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The executive also exercises some legislative powers while the judiciary is 
not entirely devoid of other forms of power including the power to make 
rules. A rigid division, or separation, is sometimes to be found in 
presidential forms of government although there too, in practice, there is 
often some blurring of boundaries. In this connection, reference may be 
made to the opening sections of Articles 1, 2 and 3 of the Constitution of 
the United States which are reproduced below:- 
Article I  
“Section 1 
All legislative Powers herein granted shall be 
vested in a Congress of the United States, which shall consist 
of a Senate and House of Representatives.  
 
Article II 
Section 1 
The executive power shall be vested in a 
President of the United States of America. He shall hold his 
office during the term of four years, and, together with the 
Vice-President, chosen for the same term, be elected, as 
follows…. 
 
Article III 
Section 1 
The judicial power of the United States, shall be 
vested in one Supreme Court, and in such inferior courts as the 
Congress may from time to time ordain and establish. The 
Judges, both of the Supreme and inferior Courts, shall hold 
their offices during good behaviour, and shall, at stated times, 
receive for their services a compensation, which shall not be 
diminished during their continuance in office.” 
 
73. 
At this point we can conveniently revert to the question of 
the constitutional classification of the ordinance making power. We 
should note, at the very inception, that this question raises formidable 
issues of interpretation. It is located in Article 89, and is only exercisable 
under clause (1) thereof when the National Assembly or Senate are not in 
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session. This provision by itself gives a hint as to the nature of the power.  
Clause (2) then follows and is reproduced below:- 
 
“(2)  An Ordinance promulgated under this Article shall 
have the same force and effect as an Act of Majlis-e-Shoora 
(Parliament) and shall be subject like restrictions as the power 
of Majlis-e-Shoora (Parliament) to make law, but every such 
Ordinance- 
 
(a) 
shall be laid- 
 
(i) before the National Assembly if it contains provisions 
dealing with all or any of the matters specified in clause (2) of 
Article 73, and shall stand repealed at the expiration of one 
hundred and twenty days from its promulgation or, if before 
the expiration of that period a resolution disapproving it is 
passed by the Assembly, upon the passing of that resolution: 
 
Provided that the National Assembly may by a resolution 
extend the Ordinance for a further period of one hundred and 
twenty days and it shall stand repealed at the expiration of the 
extended period, or if before the expiration of that period a 
resolution disapproving it is passed by the Assembly, upon the 
passing of that resolution: 
 
Provided further that extension for further period may be made 
only once; and 
 
(ii) before both Houses if it does not contain provisions dealing 
with any of the matters referred to in sub-paragraph (i), and 
shall stand repealed at the expiration of one hundred and 
twenty days from its promulgation or, if before the expiration 
of that period a resolution disapproving it is passed by either 
House, upon the passing of that resolution: and 
 
Provided that either House may by a resolution extend it for a 
further period of one hundred and twenty days and it shall 
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stand repealed at the expiration of the extended period, or if 
before the expiration of that period a resolution disapproving it 
is passed by a House, upon the passing of that resolution: 
 
Provided further that extension for a further period may be 
made only once;  
 
(b) 
may be withdrawn at any time by the President. 
 
(3) without prejudice to the provisions of clause (2),- 
 
(a) an Ordinance laid before the National Assembly under 
subparagraph (i) of paragraph (a) of clause (2) shall be 
deemed to be a Bill introduced in the National Assembly; and  
 
(b) an Ordinance laid before both Houses under sub-
paragraph (ii) of paragraph (a) of clause (2) shall be deemed 
to be a Bill introduced in the House where it was first laid.” 
 
 
The following characteristics of an ordinance may be noted:- 
 
(i) 
It has “the same force and effect as an Act of Parliament.” It 
is important to note a subtle distinction at this point. The 
language does not state that an ordinance is an Act of 
Parliament. It also, more importantly, does not state that it 
is to be deemed an Act of Parliament – it only has the same 
force and effect as an Act of Parliament. This distinction is 
important from the jurisprudential point of view. It raises a 
taxonomic issue of importance.  
(ii) 
It is mandatory that it be laid before Parliament.  The reason 
is obvious – we are now in the constitutionally mandated 
legislative field.  
(iii) 
It shall stand repealed on the expiry of 120 days (unless 
extended) i.e. it is not that it shall be repealed (since only Parliament 
can repeal a law), nor that it shall be deemed to be repealed (since 
the word repeal is limited in its application to an Act of Parliament and an 
ordinance is not deemed to be an Act of Parliament). It follows necessarily 
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that an ordinance falls into an anomalous category, all by 
itself.  
(iv) 
The question is, how is an ordinance to be classified? Is it 
legislative in nature? Or, is it executive in nature? Or, is it 
quasi-legislative? In order to resolve this issue it is 
imperative to bear a crucial jurisprudential distinction in 
mind. This is the distinction between the nature of a 
constitutional power and the person who is exercising it.  
These are conceptually distinct matters. This distinction 
points the way forward to resolving the issue.  
 
74. 
 
The nature of the power is clearly legislative, since it 
contemplates a change, or alteration, in the corpus of laws in the 
country. Thus there is no ambiguity on this point. It is not quasi-
legislative. The other, essentially independent, although inter-linked, 
question is as to who is exercising this power. The answer is the 
Executive. However, this mere fact will not transform the nature, or 
classification, of the power. The power to make laws is ex hypothesi a 
legislative power irrespective of who is exercising it.  Clause (2) of Article 
260 further corroborates this inference by explicitly providing that Act of 
Parliament includes an ordinance. However, it has to be added that the 
legislative drafting of the above provisions is by no means free from 
ambiguity since it should not be forgotten that Article 89 has already 
declared that an ordinance is to be deemed to be a bill pending in 
Parliament. The question is, how can an ordinance (i.e. an Act of Parliament) 
be at the same time a bill pending in Parliament? The only way to resolve 
this dilemma is to hold that for purposes of Article 89, it is deemed to be 
a Bill pending in Parliament, which, however, is to be treated as having 
the same force and effect as an Act of Parliament and Article 260 is 
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merely a brief re-statement of the position, although set out in a different 
terminology.   
75. 
 
We may now deal with the submission of the learned amicus 
to the effect that previously there was no concept of the Federal 
Government. He has developed this argument by referring to Article 39(1) 
of the Constitution of 1956 which stipulates that the executive authority 
shall vest in the President, and that he may exercise the same either 
directly or through officers subordinate to him. He has stressed the fact 
that this article does not mention the Federal Government at all. He has 
contrasted this with the language of Article 90 to contend that it follows 
that there was previously no concept of Federal Government. This is 
clearly erroneous, both factually as well legally. The implied conclusion 
that a parliamentary form of government can exist without a government 
is inconceivable. The word government, in its normal connotation, is 
equivalent to the term Executive. It is one of the three principal organs of 
the State. Contrary to his contention, the term Federal Government has 
been explicitly used in the constitution of 1956 and indeed it is hardly 
possible that it could not have been used. Part-IV of the said 
Constitution bearing the heading “The Federation” sets out the title of 
Chapter-I as being “The Federal Government”. Article 41 of the 
constitution explicitly deals with the Federal Government. The said 
Article is reproduced below:- 
“41. 
Conduct of business of the Federal Government. --  
(1) All executive actions of the Federal Government shall be 
expressed to be taken in the name of the President.  
(2) 
The President shall by rules specify the manner in 
which orders and other instruments made and executed in his 
name shall be authenticated, and the validity of any order or 
instrument so authenticated shall not be questioned in any 
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court on the ground that it was not made or executed by the 
President.  
(3) 
The President shall also make rules for the allocation 
and transaction of the business of the Federal Government.” 
 
76. 
 
His further contention that the concept of collective 
responsibility which is found in Article 91(6) of the present Constitution 
(as well as in Article 37(1) and (5) of the Constitution of 1956) was absent in the 
Constitution of 1973, as originally enacted, and was only introduced for 
the first time by means of the amendments made in 1985, is equally 
erroneous. If reference is made to Article 90 clause (3)9 of the 1973 
Constitution, as originally enacted, it will be found that this concept is 
clearly set out therein.   
77. 
 
At this stage we may also clarify another confusion. This is 
in relation to the concept of delegation of power. It was contended before 
us that in the Constitution of 1973, as originally enacted, the Federal 
Government was empowered to delegate its functions to officers and 
authorities. It was further contended that in 1985 the provisions of 
Article 99 were amended and the power of delegation was taken away.  
The contention was that the concept of delegation contained in the 
original constitution does not exist anymore and hence that officers 
exercise executive authority on behalf of the Federal Government as 
opposed to acting in delegation of such powers. The implied inference 
that the taking away of the power of delegation by itself amounts to the 
conferment of power to act directly through someone is certainly not 
justified. There has to be an independent conferment of power. It needs 
to be clarified that there is a significant conceptual distinction between 
the exercise of power through a designated person and the delegation of 
                                       
9 90(3), “The Prime Minister and the Federal Ministers shall be collectively responsible to the National 
Assembly”. 
C.As.1428 to 1436 of 2016 
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powers to him. If reference is made to the provisions of the 1973 
Constitution, as enacted originally, it will be seen that Article 90(1) 
explicitly stated two things. Firstly, it was stated that the executive 
authority of the Federation was to be exercised in the name of the 
President. This is merely a question of nomenclature and nothing 
substantial turns on it. The mere fact that the executive authority was to 
be exercised in the name of the President does not amount to an explicit 
conferment of powers either on the President or anyone else. It is the 
further statement in Article 90 to the effect that the executive authority 
shall be exercised by the Federal Government consisting of the Prime 
Minister and the Federal Ministers which creates conferment of 
constitutional power. This power is conferred on the Prime Minister and 
the Federal Ministers who are authorized to act through the Prime 
Minister who is to be the chief executive of the Federation. This is a 
direct conferment of power on the constitutional plane. The question of 
delegation arises, however, when powers are transferred from one person 
to another person and is constitutionally and analytically quite distinct 
from the exercise of power by one person through another person (in a 
delegation of power, there is a transfer of power from the donor to the donee). By way of 
illustration (but only of illustration, since the constitutional position in England is 
distinguished from that prevailing in Pakistan) we may refer to the position in 
England, as set out in Halsbury’s Laws of England (4th edition) on page 
748, which is reproduced below: 
“748.   Ministers of the Crown and local authorities.  Where 
functions entrusted to a minister are performed by an official 
employed in the minister’s department there is in law no 
delegation because constitutionally the act or decision of  the 
official is that of the minister.  Similarly where a local 
authority appoints a committee for the discharge of certain of 
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its functions, the committee is merely machinery for the 
discharge by the authority of the business entrusted to the 
committee all of whose acts are subject to the authority’s 
approval.” 
 
78. 
 
At this stage it would be convenient to also deal with the 
position of the Prime Minister. He was, and still is, described as the Chief 
Executive. This formulation is unknown to all the prior constitutions. It 
was introduced in 1973 but no definition was given of the term. His 
powers and responsibilities accordingly have to be determined on the 
basis of the overall structuring of power in the constitution. The concept 
of a Chief Executive is a familiar one in corporate law. The Companies 
Ordinance, 1984 contains a definition of the term, but, as is obvious, 
this was not in force in 1973 and so one cannot infer that the legislature 
had the statutory definition in mind when using the term Chief Executive 
(prior to the enactment of the Companies Ordinance, 1984, the Companies Act, 1913, was in 
force and it was customary at that time to appoint a managing director under the articles of 
association). Even otherwise, it would be manifestly inappropriate, both 
analytically as well as historically, to equate the position of a Head of 
Government with that of an executive head of a limited liability company 
engaged in protecting the financial interests of his shareholders. 
Furthermore, the powers of a corporate chief executive, at present, are 
statutorily conferred and defined, while no such definition exists in the 
constitution. Accordingly, we set aside this analogical mode of reasoning 
and proceed to discuss the matter solely on the basis of the language 
used which, as stated above, lacks clarity and precision.   
79. 
 
We begin with the postulate that the constitutional definition 
of Federal Government under Article 90 is absolutely clear in its scope 
and ambit – it means the Prime Minister and the Federal Ministers, 
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which, in turn, means the Cabinet. The Cabinet is a composite concept 
and its components are the Prime Minister and the Federal Ministers.  
Together they constitute the Cabinet. Article 91, as it stands at present, 
bears the heading “The Cabinet”, and restates the same proposition from 
a slightly different perspective. Under Article 90 it was posited that the 
executive authority was to be exercised by the Federal Government i.e. 
the Cabinet. But, it was added that the Cabinet was to exercise the 
executive authority in the name of the President. In brief, the executive 
authority of the state was to be exercised by the Cabinet, as a collective 
entity, in the name of the President. Another way of articulating this 
proposition, is to state that whatever the Cabinet did was to be described 
not as its action but the action of the President. Article 91 then re-states 
this, and amplifies it, by placing it within a different framework by 
positing that the function of the Cabinet is to aid and advise the 
President. In either case, the actions would be of the Cabinet but in the 
name of the President. The central role in both theoretical formulations is 
played by the Cabinet which is, in fact, a re-description of the Federal 
Government. The Prime Minister is the head of the Cabinet but he can 
neither supplant it nor replace it. In Article 90 he is described as the 
Chief Executive while in Article 91 his description is that of the Head of 
the Cabinet. He is the single most important person in the Cabinet, but he 
does not stand in the position of the Cabinet. He is neither a substitute nor 
a surrogate for the Cabinet. He cannot exercise its powers by himself. The 
reason that he cannot stand in the position of the Cabinet is because the 
Cabinet is, in fact, the Federal Government and is so described in article 
90. If we treat the office of the Prime Minister as being equivalent to that of 
the cabinet, it would follow that the Prime Minister, by himself, as a single 
individual, becomes the Federal Government. This is simply inconceivable. 
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It is the antithesis of a constitutional democracy and would amount to a 
reversion to a monarchical form of Government reminiscent of King Louis 
XIV’s famous claim that “I am the State” (literally “L’etat, c’est moi”). It is 
most emphatically not the function of this court to surrender the hard 
won liberties of the people of Pakistan to such a fanciful interpretation of 
the constitution which would be destructive of all democratic principles.  
We have no doubt in rejecting it, in its entirety. It follows from the above 
that Rule 16(2) which enables the Prime Minister to dispose of matters by 
by-passing the Cabinet is ultra vires and it is so declared.  
80. 
 
It only remains, in this context, to examine what precisely is 
the meaning to be assigned to the term Chief Executive and it is to this 
that we now turn. Article 90, as stated above, describes the Prime 
Minister as Chief Executive and contemplates the Cabinet acting through 
him. Clause (2) of Article 90 adds that he may act either directly or 
through Federal Ministers. This is his discretionary choice. From the 
above the logical inference follows that the function of the Chief 
Executive is to execute and implement the policy decisions taken by 
Cabinet i.e. the Federal Government. He executes policy decisions, he 
does not take them by himself. The executive function, even on a literal 
basis, is to execute or implement decisions. On this interpretation the 
whole structure now falls into place. The Prime Minister cannot take 
decisions by himself, or by supplanting or ignoring the Cabinet because 
the power to take decisions is vested with the Federal Government i.e. the 
Cabinet, and unilateral decisions taken by him would be a usurpation of 
power. As our parliamentary system of government is based on the 
British system it would be more useful to relate the term ‘Chief 
Executive’ to the British concept of the Prime Minister as “primus inter 
pares” or a first among equals. The Rules of Business, if they carry, or 
C.As.1428 to 1436 of 2016 
-: 72 :-
imply, a different impression, must yield to the superior mandate of the 
Constitution. The decisions of the Federal Government are the decisions 
of the Cabinet and not of the Prime Minister. Any decisions taken by the 
Prime Minister on his own initiative lack the authority of the law or the 
Constitution.   
81. 
 
The above views are buttressed by the provisions of Article 
91(6) which provide that the Cabinet shall be “collectively responsible to 
the Senate and the National Assembly”. It should be noted that it is not 
the Prime Minister by himself who is responsible to Parliament. It is the 
body known as the Cabinet, which is collectively responsible. It follows 
that to allow him to act on his own would enable him to escape from 
responsibility to Parliament for the consequences of his actions, which 
cannot conceivably be the intention of the constitution. The underlying 
substratum of any representative form of government is to link 
acceptance of responsibility with the exercise of power. This principle 
applies across the board. It applies with special force in relation to fiscal 
or budgetary matters. He cannot make fiscal changes on his own and nor 
can he engage in discretionary spending by himself. Furthermore, the 
Prime Minister is not constitutionally mandated to authorize expenditure 
on his own. In all cases the prior decision of the Cabinet is required since 
it is unambiguously that body alone which is the Federal Government.  
All discretionary spending without the prior approval of the Cabinet is 
contrary to law. We clarify that an ex post facto approval by the Cabinet 
will not suffice since money once spent cannot be unspent. An attempt to 
confront the court with a fait accompli by contending that since the 
money has already been spent it should be regularized is unacceptable. 
Any provisions of the Rules of Business to the contrary are ultra vires 
since there is no constitutional provision to justify them. It appears that, 
C.As.1428 to 1436 of 2016 
-: 73 :-
at the bare minimum, an Act of Parliament would have to be passed to 
grant retrospective approval for the illegal expenditure (we leave aside for 
consideration on another occasion the question of constitutionality of such a law). Such a 
law would have to set out the full particulars of the illegal spending, from 
time to time, to enable Parliament to consider the advisability of 
validating the expenditure and to try and bring it in line with normal 
constitutional principles. It would of course have to be passed by the 
National Assembly as well as the Senate since it would not be a normal 
money bill.  
82. 
 
What is the procedure to be followed, in case the need arises 
for unforeseen spending. The answer is to be found in Article 84 of the 
Constitution which is reproduced below:- 
 
“84. 
Supplementary and excess grants:  If in respect of any 
financial year it is found – 
 
(a) 
that the amount authorized to be expended for a 
particular service for the current financial year is 
insufficient, or that a need has arisen for expenditure 
upon some new service not included in the Annual 
Budget Statement for that year; or 
(b) 
that any money has been spent on any service during a 
financial year in excess of the amount granted for that 
service for that year;  
 
The Federal Government shall have power to authorize 
expenditure from the Federal Consolidated Fund, whether the 
expenditure is charged by the Constitution upon that Fund or 
not, and shall cause to be laid before the National Assembly a 
Supplementary Budget Statement or, as the case may be, an 
Excess Budget Statement, setting out the amount of that 
expenditure, and the provisions of Articles 80 to 83 shall apply 
to those statements as they apply to the Annual Budget 
Statement.” 
C.As.1428 to 1436 of 2016 
-: 74 :-
 
 
Once again, it would be noted that the power has been conferred 
not on the Prime Minister but the Federal Government i.e. the Cabinet.  
Similarly, Article 85 confers power, not even on the Federal Government, 
but on the National Assembly to make a grant in advance for a period not 
exceeding 4 months pending completion of the budgetary procedure laid 
down in Article 82, and Article 86 confers a similar power on the Federal 
Government but only during the period when the National Assembly 
stands dissolved. Clause (3) of Article 82 explicitly states that no demand 
for a grant shall be made except on the recommendation, not of the 
Prime Minister, but of the Federal Government i.e. the Cabinet. What are 
the powers of the Prime Minister in relation to such matters? They are 
set out in Article 83 and are confined to a mere authentication of the 
grants made by signing a schedule setting them out. These provisions 
are clearly articulated and must not be violated in any circumstances. 
This court has already dealt with the question of the constitutionality of 
discretionary spending by the Prime Minister in the case reported as 
Action against distribution of development funds by Ex-Prime 
Minister Raja Pervaiz Ashraf (PLD 2014 SC 131) paragraph 52 of 
which reads as follows:  
“52. 
For the foregoing reasons it is held as under:- 
(1) 
The National Assembly, while giving assent to a 
grant which is to be utilized by the Executive at 
its discretion, has to follow the procedure 
provided in Articles 80 to 84 of the Constitution 
as well as the Rules of Procedure, 2007.  
However, such discretionary grant cannot be 
spent at the absolute discretion of the Executive 
C.As.1428 to 1436 of 2016 
-: 75 :-
and the discretion has to be exercised in a 
structured manner;  
(2) 
The 
Constitution 
does 
not 
permit 
the 
use/allocation of funds to MNAs/MPAs/Notables 
at the sole discretion of the Prime Minister or the 
Chief Minister. If there is any practice of 
allocation of funds to the MNAs/MPAs/Notables 
at the sole discretion of the Prime Minister/Chief 
Minister, 
the 
same 
is 
illegal 
and 
unconstitutional.  The government is bound to 
establish 
procedure/criteria 
for 
governing 
allocation of such funds for this purpose;  
(3) 
Though funds can be provided for development 
schemes by way of supplementary grant but for 
that purpose procedure provided in Articles 80 
to 
84 
of 
the 
Constitution 
and 
the 
rules/instructions noted hereinabove has to be 
followed strictly;  
(4) 
Funds can be allocated by way of re-
appropriation but the procedure provided in the 
Constitution and the rules has to be followed in 
its true perspective; 
(5) 
No bulk grant can be made in the budget without 
giving detailed estimates under each grant 
divided into items and that every item has to be 
specified; 
(6) 
The amounts as approved in the budget passed 
by the National Assembly have to be utilized for 
the purpose specified in the budget statement.  
Any re-appropriation of funds or their utilization 
for some other purpose, though within the 
permissible limits of the budget, are not justified.  
In such circumstances, the supplementary budget 
statement has to be place before the Parliament 
following the procedure provided in Articles 80 
C.As.1428 to 1436 of 2016 
-: 76 :-
to 
84 
of 
the 
Constitution 
and 
the 
rules/instructions noted hereinabove.” 
   
 
It follows from the above that any discretionary spending at the 
initiative of the Prime Minister alone is manifestly unconstitutional and 
contrary to law. This illegality will continue until such time when, at the 
very least, the procedure set out in paragraph 66 above is adopted and 
followed. Failure to do so would mean that the Prime Minister would 
remain personally responsible. 
83. 
 
Having decided the questions of law on the plane of principle 
we now turn to a brief consideration of the case law. A large number of 
cases were cited before us. Many of them were only peripherally relevant 
or merely contained generalized propositions of law or stray observations.  
A number of Indian authorities were also cited before us, some of which 
dealt with some similar issues. We were referred to a series of seven 
cases decided by the Indian Supreme Court. These included the cases of 
B.K. Sardari Lal (supra) and Samsher Singh (supra). However, we noted 
that the latter judgment explicitly overruled the view expressed in the 
former case. In fact, the latter case was explicitly taken up by a larger 
bench for the express purpose of re-considering the earlier view. We have 
not found it necessary to discuss those cases either since it would merely 
prolong this judgment. There is, however, one case to which we would 
like to make specific reference since it is a decision of the Federal Court. 
In the case of Afzal Bangash10 (supra) the Court had occasion to consider 
the provisions of the NWFP Public Safety Act, 1948. The facts of the case 
were that the Court of the Judicial Commissioner struck down the order 
of detention which had been passed by the Chief Minister which, 
according to him, was without jurisdiction and ultra vires. The Judicial 
                                       
10 PLD 1956 FC 1 
C.As.1428 to 1436 of 2016 
-: 77 :-
Commissioner was of the opinion that in respect of matters as important 
as the liberty of the subject, the responsibility of curtailing that liberty by 
means of an executive order was intended by the Constitution to rest 
upon the Governor and his Ministers and not the Chief Minister alone.  
Under the Act in question the duty of satisfaction regarding the existence 
of the conditions necessary for the making of an order of detention rested 
upon the Provincial Government. His view was that the use of the term 
provincial government implied the Governor conducting the affairs of the 
government of a Province as aided and advised by his Council of 
Ministers. In doing so he followed the views expressed by the Federal 
Court in the case of Emperor Vs. Sibnath Banerji and others (AIR 
1943 FC 75). He, apparently inadvertently, omitted to note that the 
decision of the Federal Court in that case had been set aside by the 
Judicial Committee of the Privy Council (reported in 72 IA 241). In 
arriving at his conclusion the Judicial Commissioner placed a strangely 
limited interpretation on the phrase “business of the provincial 
government”. He arbitrarily restricted the definition of the word 
“business” to confine it only to day to day and routine work of the 
Government. He considered matters relating to the liberty of a subject as 
being of such great importance as not to fall within the said term. This 
was rather surprising since, on the face of it, there is no reason to 
exclude important matters from the “the business of the provincial 
government.” The Federal Court had no difficulty in setting aside his 
views, basing itself on the earlier decision of the Privy Council. The 
admitted facts were that under the Rules of Business the Chief Minister 
had been allocated the subject of preventive detention (quite apart from an 
office memorandum to the said effect as well). The order passed by the Chief 
Minister clearly fell within the ambit of the relevant provisions of the 
C.As.1428 to 1436 of 2016 
-: 78 :-
Government of India Act, 1935 and the Rules of Business made under 
Section 59.  The discussion deals with this aspect of the matter alone 
and not the wider constitutional issues and hence is distinguishable. 
84. 
 
We may now summarize our conclusions:- 
(i) 
The Rules of Business, 1973 are binding on the Government 
and a failure to follow them would lead to an order lacking 
any legal validity. 
(ii) 
The Federal Government is the collective entity described as 
the Cabinet constituting the Prime Minister and Federal 
Ministers.  
(iii) 
Neither a Secretary, nor a Minister and nor the Prime 
Minister are the Federal Government and the exercise, or 
purported exercise, of a statutory power exercisable by the 
Federal Government by any of them, especially, in relation to 
fiscal matters, is constitutionally invalid and a nullity in the 
eyes of the law. Similarly budgetary expenditure, or 
discretionary 
governmental 
expenditure 
can 
only 
be 
authorized by the Federal Government i.e. the Cabinet, and 
not the Prime Minister on his own.  
(iv) 
Any Act, or statutory instrument (e.g. the Telecommunication (Re-
Organisation) Act, 1996) purporting to describe any entity or 
organization other than the Cabinet as the Federal 
Government is ultra vires and a nullity.  
(v) 
The ordinance making power can only be exercised after a 
prior consideration by the Cabinet. An ordinance issued 
without the prior approval of the Cabinet is not valid.  
Similarly, no bill can be moved in Parliament on behalf of the 
Federal Government without having been approved in 
advance by the Cabinet. The Cabinet has to be given a 
reasonable opportunity to consider, deliberate on and take 
decisions in relation to all proposed legislation, including the 
Finance Bill or Ordinance or Act. Actions by the Prime 
Minister on his own, in this regard, are not valid and are 
declared ultra vires.     
C.As.1428 to 1436 of 2016 
-: 79 :-
(vi) 
Rule 16(2) which apparently enables the Prime Minister to 
bypass the Cabinet is ultra vires and is so declared.  
(vii) 
Fiscal notifications enhancing the levy of tax issued by the 
Secretary, Revenue Division, or the Minister, are ultra vires.  
(it is clarified, in passing, that this court has in the past consistently held that a 
greater latitude is allowed in relation to beneficial notifications and that 
principle still applies). 
(viii) In consequence of the above findings the impugned 
notifications are declared ultra vires and are struck down.  
 
 
Prior to concluding this judgment we would like to express our 
appreciation for the valuable assistance provided by the learned counsel 
who have appeared in this matter. We are grateful to each one of them. 
85. 
 
In view of the above by accepting these appeals and while 
setting aside the impugned judgment(s), all the writ petitions filed by the 
appellants are allowed. 
 
 
JUDGE 
 
 
 
 
JUDGE 
 
 
 
 
JUDGE 
Announced in open Court 
on 18.8.2016 at Islamabad 
Approved For Reporting 
Ghulam Raza/*