1. The only controversy articulated at the bar by the learned ASCs for the parties is whether the Rules framed under Section 15 of the National Command Authority Act, 2010 (hereinafter referred to as the Act) are statutory or otherwise. Mr. Ahmer Bilal Soofi, learned ASC appearing on behalf of the National Command Authority contended that the Rules framed under Section 15 of the Act cannot be treated as statutory as they have not been approved by the Federal Government. There are as many as two judgments of this Court rendered in the cases Rector National University of Science and Technology (NUST) Islamabad and others. Vs. Driver Muhammad Akhtar (Civil Appeal No.495 of 2010 decided on 28th April, 2011) and Muhammad Zubair and others Vs. Federation of Pakistan thr. Secretary M/o Defence and others (Civil Petition No.1563/2013 decided on 26.2.2013) holding them statutory but they are essentially per incuriam inasmuch as the judgments interpreting the provisions of other enactments which are in pari materia with Section 15 of the Act have not been considered. Such precedents, the learned ASC contended, are also sub silentio inasmuch as they have not been fully argued and the judgments interpreting the provisions of the other enactments which are in pari materia with Section 15 of the Act have not been cited.
2. The learned ASC by referring to the cases of Muhammad Tariq Badr and another. Vs. National Bank of Pakistan and another (2013 SCMR 314), Zarai Taraqiati Bank Limited. Vs. Said Rehman (2013 SCMR 642), Pakistan Defence Officers Housing Authority and others. Versus. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707), Shoua Junejo. Versus. PIA (2012 SCMR 1681), Muhammad Nawaz. Versus. Civil Aviation Authority and others (2011 SCMR 523), Pakistan Telecommunication Co. Ltd. through Chairman. Versus. Iqbal Nasir (PLD 2011 SC 132), Abdul Rashid Khan. Versus. Registrar, Bahauddin Zakaria University, Multan (2011 SCMR 944), Pakistan International Airline Corporation. Versus. Tanweer-ur-Rehman, (PLD 2010 SC 676), State Bank of Pakistan. Versus. Muhammad Shafi (2010 SCMR 1994), Asad Bashir. Versus. Chairman Board of Intermediate and Secondary Education, Lahore and 2 others (2006 PLC (CS) 110), Pakistan Red Crescent Society. Versus. Syed Nazir Gillani (PLD 2005 SC 806), Zia Ghafoor Pirach. Versus. Chairman, Board of Intermediate and Secondary Education, Rawalpindi (2004 SCMR 35), Muhammad Ishaq Waheed Butt. Versus. Chairman, Bank of Punjab (2003 PLC (C.S.) 963), Pakistan International Airlines Corporation (PIAC). Versus. Nasir Jamal Malik (2001 SCMR 934), Ijaz Hussain Suleri. Versus. The Registrar and another, (1999 SCMR 2381), Chairman, Pakistan Council of Scientific and Industrial Research, Islamabad. Versus. Khalida Razi (1995 SCMR 698), Chairman WAPDA. Vs. Jameel Ahmed (1993 SCMR 346), Raziuddin. Versus. Chairman, PIA CORPN. (PLD 1992 SC 531), Karachi Development Authority. Versus. Wali Ahmed Khan (1991 SCMR 2434), Abdul Ghaffar. Versus. WAPDA (1990 SCMR 1462), Sindh Road Transport Corporation Chairman. Versus. Muhammad Ali G. Khohar (1990 SCMR 1404), Principal Cadet College. Versus. Muhammad Shoaib Qureshi (PLD 1984 SC 170), Anwar Hussain. Versus. ADBP (PLD 1984 SC 194), Muhammad Yusuf Shah. Versus. Pakistan International Airlines Corporation (PLD 1981 SC 224) and R.T.H. Janjua. Versus. National Shipping Corporation (PLD 1974 SC 146); contended that jurisdiction of the High Court cannot be invoked under Article 199 of the Constitution of Islamic Republic of Pakistan where the Rules are non-statutory. Learned ASC by referring to a two-member bench judgment rendered in the case of Muhammad Nawaz. Vs. Civil Aviation Authority and others (2011 SCMR 523) contended that Rules made without the intervention and approval of the Federal Government cannot be termed as statutory, therefore, their violation is not amenable to the constitutional jurisdiction of the High Court.
The learned ASC by referring to another two-member Bench judgment rendered in the case of State Bank of Pakistan. Vs. Muhammad Shafi (2010 SCMR 1994) contended that where by virtue of an amendment in Section 54 of the State Bank of Pakistan Act, 1956, the words “subject to the approval of the Federal Government were omitted” the Rules framed after the said amendment in the Section were not treated as statutory. The learned ASC by referring to a three-member Bench judgment rendered in the case of Pakistan Red Crescent Society. Vs. Syed Nazir Gillani (PLD 2005 SC 806) contended that the Rules framed by the Red Crescent Society under the rulemaking powers without the intervention of the Federal Government were held to be non-statutory, therefore, their violation was not amenable to the writ jurisdiction of the High Court. The learned ASC by referring to a three-member Bench judgment rendered in the case of Sindh Road Transport Corporation Chairman versus Muhammad Ali G. Khokhar (1990 SCMR 1404) contended that Sindh Road Transport Corporation Service Rules 1971 were treated as non-statutory as they were not approved by the Authority delegating such power notwithstanding language used in the rule making provision of the Ordinance was almost similar to the language used in Section 15 of the Act, therefore, the judgments rendered in the cases of Rector National University of Science and Technology (NUST) Islamabad and others. Vs. Driver Muhammad Akhtar and Muhammad Zubair and others Vs. Federation of Pakistan through Secretary M/o Defence and others (Supra) have no binding or even persuasive force.
The judgments rendered earlier on similar proposition, the learned ASC maintained, could not be ignored by subsequent benches with the same number of Judges. The learned ASC to support his contention placed reliance on the cases of Pir Bakhsh represented by his legal heirs and others Vs. The Chairman, Allotment Committee and others (PLD 1987 SC. 145), Multiline Associates Vs. Ardeshir Cowasjee and two others (PLD 1995 SC 423) and Chaudhry Muhammad Saleem Vs. Fazal Ahmad and two others (1997 SCMR 315). The learned ASC next contended that while enacting Section 15 of the Act, the legislature was aware of the dicta and trend of the Supreme Court interpreting the provision of different enactments which are in pari materia with Section 15 of the Act, otherwise it would have phrased the section differently. Restraint on the part of the Government, the learned ASC argued, to gazette the Rules in terms of Section 20A of the General Clauses Act would also show as to what status the legislature intended to assign to the Rules. Approval of such Rules, the learned ASC contended, by the Federal Government to give them statutory attire in view of Rule 14 of the Rules of Business is also a must, therefore, in the absence of such approval they cannot be treated as statutory. The scheme of the Act, the learned ASC maintained, also shows that the legislature intended to make it autonomous on all accounts. Sections 9 and 21 of the Act, the learned ASC maintained, further show that the legislature wanted to make the orders of the Authority immune from justiciability. The learned ASC while giving finishing touch to his submissions contended that the purpose behind conferring full autonomy on NCA was to enable it to have effective control over its activities and maintain secrecy of its sensitive programmes in line with Pakistan’s International Legal Obligation, in particular UNSC Resolution 1540, which could not have been achieved otherwise.
3. As against that learned ASCs appearing from the other side contended that when it has been held in the cases of Rector National University of Science and Technology (NUST) Islamabad and others. Vs. Driver Muhammad Akhtar and Muhammad Zubair and others Vs. Federation of Pakistan thr. Secretary M/o Defence and others (supra) that Rules framed under Section 15 of the National Command Authority Act, 2010 are statutory, the controversy has been set at rest, therefore, another exercise to determine their status is not called for. The learned ASC by referring to Section 3 of the Act contended that where the Chairman of the Authority is the Prime Minister and its other Members include, besides Minister for Foreign Affairs, Minister for Defence, Minister for Finance, Minister for Interior, Chairman Joint Chiefs of Staff Committee, Chief of Army Staff, Chief of Naval Staff and Chief of Air Staff, approval of the Rules by any other Ministry is hardly called for.
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