(
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE SAYYED MAZAJ4AR ALl AKEAR NAQVI
CIVIL PETITION NO.5646 OF 2021
(Against the order of the Peshawar High Court
dated 16.092021 passed in Writ Petition
No.3794-P of 2021)
M/s Sadiq Poultry (Pvt.) Ltd.
.Appellant(s)
VERSUS
Government of Khyber Pukhtunkhwa
thr. its Chief Secretary & others
...Respondent(s)
For the Appellant: 
Sardar Muhammad Latif Khan Khosa,
Sr. ASC
Mr. Kamran Murtaza,
Sr. ASC
Syed Rifaqat Hussain Shah,
AOR
For the Respondents: Mian Shafqat Jan,
Additional AG KP
Dr. Kaniran Farid
District Director Livestock, Peshawar
Date of Hearing: 27.09.2022
]IJAZ UL ABSAN, J-. This Petition arises out of an order
passed by the Peshawar High Court, Peshawar dated
16.09.202 1 in Writ Petition No.3794-P/2020 (the "Impugned
Order"). The Private Respondents, aggrieved of the prices and
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quality inter alia of poultry products/diary products,
approached the High Court by filing a Writ Petition. The
learned High Court, vide the impugned order, made several
directions, inter a/ia, that a committee should be formed to
review prices of livestock and poultry products and that
officials of the government ought to make regular visits to the
market to ensure that adulterated milk and other items which
are not consumable are not sold in the market.
2. The necessary facts giving rise to this Us are that
due to a purported rise in the prices of livestock and dairy
products, the private respondents herein filed a writ petition
before the Peshawar High Court and prayed that prices be fixed
according to the prevailing pricing policy. The learned High
Court sought various reports from government officials of the
Khyber Pukhtunkhwa (the "KP") and made certain directions
inter alia that a policy should be made to bring down prices of
livestock, dairy and poultry products. It was further directed
that exports of dairy and poultry products be banned till such
time that the prices are lowered. The Petitioner-Company,
being a poultry company in Pakistan, specifically the KP, is
aggrieved of the directions of the High Court. The Petitioner
filed a CMA before the High Court for irnpleadment as a
necessary party which was allowed vide order dated
08.09.2021. On 16.09.2021, the Petitioner's counsel explained
to the High Court that a complete ban on exports was causing
colossal losses to its business and that the High Court's
interference insofar as it concerned fixation of prices was
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unwarranted. The learned High Court, vide order dated
16.09.2021, recalled its earlier order. However, while doing so,
the learned High Court directed the formation of a committee
to review the prices of livestock and poultry to calculate prices
under a formula whereby prices of livestock by-products like
hide, viscera, feathers, legs/wings etc. were deducted.
Aggrieved of the impugned order, the Petitioner has
approached this Court.
3. The learned Senior ASCs on behalf of the Petitioner
have argued that the High Court does not have suo motu
powers and, therefore, exercise of suo mow jurisdiction by the
High Court was legally unjustifiable. The learned Senior ASCs
have further argued that the learned High Court exceeded its
jurisdiction in going beyond the prayers made in the writ
petition and granting relief which was not even prayed for. The
learned ASCs have further argued that the High Court could
not have interfered in policy matters of the executive by
ordering the formation of committees to review livestock prices
based on a formula provided by the High Court. They maintain
that such matter fell within the domain of the executive and
judicial interference in the matter militates against the
constitutional scheme of trichotomy of powers. It has further
been argued that import and export is a federal subject and the
High Court overstepped its jurisdiction by issuing directions in
a matter which could not be entertained by it.
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4.
The Additional AG KP, who appeared on behalf of
the official Respondents, has argued in favour of the impugned
order.
5.
We have heard the learned Counsel for the parties
and perused the record. The basic question which needs
adjudication is whether the High Court could exercise suo moW
jurisdiction and issue orders relating to policy matters which
squarely fall within the domain of the executive.
6.
It is settled law that the High Court does not have
suo moW jurisdiction under Article 199 of the Constitution of
the Islamic Republic of Pakistan (the "Constitution") as
compared to this Court which has been conferred exclusive
jurisdiction in the matter by the Constitution in terms of Article
184(3). Reliance in this regard is placed on Miart Irfan Bashir v.
Deputy Commissioner (DC), Lahore (2021 PLD SC 571). The
prayer of the private respondents was essentially limited to the
pricing of products. To the contrary, the learned High Court
passed a series of suo rnotu orders, such as the orders dated
25.02.202 1 and 01.07.2021, whereby a ban was imposed on
the export of dairy and poultry products. It is pertinent to
mention here that banning imports or exports of products is
not the domain of the Courts but falls under the exclusive
domain of the executive. The learned High Court could not have
transgressed its jurisdiction under Article 199 of the
Constitution by passing an order which not only amounts to
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exercise of suo motujurisdiction, but also an encroachment on
the jurisdiction of the executive.
7. Article 184 of the Constitution provides that the
power to exercise suo motu jurisdiction vests only with the
Supreme Court. The learned High Court has not cited any law
or precedent on the basis of which it exercised suo moW
jurisdiction. It is pertinent to mention here that the learned
High Court was not competent to even fix the prices of
products. The only course of action available to it, if necessary,
was to direct the Government to do what it is required to do
under the law in case its officials /functionaries were not doing
that. The High Court, under Article 199, cannot devise a
formula for pricing. Doing so is not permitted under the law
and does not fall in the domain of the Courts and goes against
the principle of trichotomy of powers envisaged under the
Constitution. The act of issuing directions with respect to an
issue or dispute which was not before the High Court
constitutes overstepping jurisdictional limits which cannot be
countenanced. The learned High Court could only pass
appropriate and lawful orders on matters which have a direct
nexus with the us before it and could not overstep or digress
therefrom. The impugned order not only goes against the
mandate of Article 199 but is also against settled principles of
law. As such, the learned High Court could not have, suo moW,
provided a formula for the calculation of prices nor could the
High Court direct that a pricing committee be formed to
implement the formula provided by the High Court. These
CMLPtfl7flNO 5M OF 2020 
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matters clearly relate to the executive and ought to be left to
the policy makers to regulate.
8. Even otherwise, Item No.27 of the Federal
Legislative List clearly and categorically provides that import
and export are a federal subject. Further, Section 3 of the
Pakistan Imports and Exports (Control) Act, 1950 clearly states
that the power to prohibit or restrict imports and exports vests
with the Federal Government. As such, directing the Provincial
Government to do so did not have any legal or constitutional
basis or sanction behind it. For ease of convenience, Section 3
of the ibid Act is reproduced below:-
"3. POWERS TO PROHIBIT OR RESTRICT IMPORTS
AND EXPORTS
(1) The Federal Govt. may, by an order published in the
Official Gazette and subject to such conditions and
exceptions as may be made by or under the order,
prohibit, restrict or otherwise control the import and
export of goods of any specified description, or regulate
generally all practices (including trade practices) and
procedure connected to the import or export of such
goods and such order may provide for applications for
licenses under this Act, the evidence to be attached
with such applications, the grant, use, transfer, sale or
cancellation of such licenses, and the term and manner
in which and the periods within which appeals and
applications for review or revision may be preferred
and disposed of and the charging of fees in respect of
any such matter as may be provided in such order.
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(2) No goods of the specified description shall be
imported or exported except in accordance with the
conditions of a license to be issued by the Chief
Controller or any other officer authorized in this behalf
by the Federal Government.
(3) All goods to which any order under subsection (1)
applies shall be deemed to be goods of which the import
or export has been prohibited or restricted under
section 16 of the Customs Act, 1 969(IV of 1969), and
all the provisions of that Act shall have effect
accordingly.
(4)
Notwithstanding anything contained in the
aforesaid Act the Federal Government matj, by an
Order published in the official Gazette, prohibiL restrict
or impose conditions on the clearance whether for home
consumption or warehousing or shipment abroad of
any imported goods or class of goods."
(Underlining provided)
The aforenoted provision of law clearly states that the subject
of restriction or prohibition of imports and exports falls within
the domain of the Federal Government. As such, the High
Court clearly exceeded its jurisdiction by formulating a policy
regarding pricing of goods or commodities and banning exports
of livestock, poultry, dairy products or products derived
therefrom. It is necessary to note that Section 5B of the ibid Act
provides that in case of violation of an order restricting or
prohibiting imports or exports, the jurisdiction to adjudge the
same would exclusively vest with a Commercial Court. The
High Court, acting under Article 199, cannot be termed as a
Commercial Court. This is because civil/ criminal jurisdictions
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of the High Court are separate from the constitutional
jurisdiction of the High Court. In the former, evidence is
recorded by the competent Court and then the High Court sits
in appeal/revision over a decision of the lower fora. In the
latter, the High Court is the Court of first instance, does not
ordinarily record evidence regarding factual matters, and is
acting as a constitutional court inter cilia to ensure that there
is no infringement of the Constitution or the rights guaranteed
to citizens by the Constitution.
9.
We are of the view that the learned High Court has
incorrectly applied the law. There are patent jurisdictional
errors in the impugned order which warrant interference. The
Learned Additional AG KP has been unable to persuade us to
endorse the view taken by the High Court. We have repeatedly
asked the Additional AG KP to show us how the impugned
order is legally sound. However, he has been unable to do so.
As such, the impugned order is found to be unsustainable.
10.
For aforenoted reasons, this Petition is converted
into an Appeal and allowed. The impugned order dated
16.09.021 passed by the Peshawar High Court, Peshawar is set
aside.
ISLAMABAD, THE
271h of September, 2022
Hans lshtiaq LC/*
Øc"APPROVED FOR REPORTI