Abdul Saboor Vs Federation of Pakistan etc

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Intra-Court Appeal No.68139/2022

Abdul Saboor Vs. Federation of Pakistan etc.

S. No. of Date of Order with signature of Judge, and that of parties or order/ order/ counsel, where necessary.

proceedings proceedings

08-10-2025 Barrister Muhammad Umer Riaz, Omer Wahab, Muhammad Sohail Dar, Muhammad Akram Shaikh, Muhammad Imran Rasheed, Muhammad Mansha Sukhera, Ghulam Hussain Awan, Imran Muhammad Sarwar, Mudassar Shuja-ud-Din, Ch. Qamar-uz-Zaman, Abuzar Hussain, Hafeez-ur-Rehman Ch., Shahid Pervez Jami, Amjad Javaid Hashmi, Waseem Ahmad Malik, Muhammad Naeem Shah, Hashim Aslam Butt, S.M. Raheel, Saeed-ur-Rehman Dogar, Malik Asif Ahmad Nissoana, Irtaza Shaukat, Shahid Hafeez Dogar, Rana Muhammad Faisal, Rana Rehan, Rao Qasim Ali Khan and Ms. Saba Shaheen, Advocates for the appellants. M/s Rafey Altaf, Shahzad Ahmad Cheema, Malik Abdullah Raza, Muhammad Yahya Johar, Ch. Muhammad Zafar Iqbal, Sardar M.S. Tahir, Barrister Osama Zafar, Muhammad Nawas Amin, Barrister Muhammad Nauman Khan, Syed Zain-ul-Abidien, Tabassum Ali, Ms. Riaz Begum, and Sheikh Muhammad Ali, Advocates for the respondents.

Mirza Nasar Ahmad, Additional Attorney-General for Pakistan.

Ms. Deeba Tasnim Anwar, Assistant Attorney-General of Pakistan.

The instant Intra-Court Appeal and thirty-nine connected Intra-Court Appeals, as enumerated in 'Appendix-A' annexed hereto (hereinafter collectively referred to as "ICAs"), involving the common questions of law and fact, have been instituted under Section 3 of the Law Reforms Ordinance, 1972 ("Ordinance") to call into question the consolidated judgment dated 02.09.2022 (hereinafter referred to as "impugned judgment") pronounced in open Court by the learned Single Judge-in-Chamber in Writ Petition No.16567 of 2021.

Intra-Court Appeal No.68139 of 2022

2.Learned counsel for the respondents raised preliminary objections to the maintainability of all these ICAs on the grounds:

i. that the same are hit by the proviso to sub-section (2) of Section 3 of the Ordinance, inasmuch as all the Writ Petitions decided by the learned Single Judge-in- Chambers pertained to proceedings in which the applicable law expressly provides at least one statutory remedy by way of appeal, revision, or review. In pith and substance, by way of Writ Petitions the appellants had impugned the call-up notices, attachment of bank accounts, lodging of FIR, and the vires of certain provisions of the Anti-Money Laundering Act, 2010 (the "Act"). Contend that, since a right of appeal is specifically available under Section 23 of the Act, all the impugned orders arising out of the proceedings under the Act are not amenable to challenge through these ICAs;

ii. that, in addition, under Section 435 of the Code of Criminal Procedure, 1898 ("Cr.P.C"), read with Section 22 of the Act, an order of attachment of accounts is revisable before the competent forum. In support of their contention, they placed reliance upon the judgments of the Hon’ble Supreme Court reported as "Mst. Karim Bibi and others Vs. Hussain Bakhsh and another" (PLD 1984 Supreme Court 344), "JS Bank Limited, Karachi and others Vs. Province of Punjab through Secretary Food, Lahore and others" (2021 SCMR 1617), and the judgment of this Court in "Messrs. Nishat (Chunian) Ltd. through Chief Financial Officer Vs. Federal Board of Revenue through Secretary and 3 others" (2015 PTD 1385);

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iii. that even where the vires of a statute are assailed concurrently with other reliefs, the remedy of an ICA remains unavailable, reliance being placed upon the dictum laid down by the Hon’ble Supreme Court in "Pakistan International Airlines Corporation through Chairman and others Vs. Samina Masood and others" (PLD 2005 SC 831);

iv. that the appellants have already invoked the jurisdiction of the Supreme Court; consequently, the simultaneous pursuit of parallel remedies amounts to duplication, which is impermissible in law.

3.Learned counsel for the appellants, conversely, contended that the vires of an enactment or of any rules, regulations or notification issued thereunder cannot be called into question before an appellate forum constituted under the same enactment. Likewise, the legislative competence or constitutional authority of a statutory functionary to undertake any act or perform any function, when tested on the touchstone of the constitutional provisions, cannot be assailed before such an appellate authority. All such questions, involving constitutional invalidity, ultra vires acts, or illegality of statutory instruments, can only be agitated before this Court in its constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"). Further submitted that, in such circumstances, an ICA against an order passed by a learned Single Bench of this Court remains maintainable, irrespective of whether the statute under challenge provides any remedy by way of appeal, review or revision. In support of this contention, placed reliance upon the Order dated 20.11.2017 passed by the Hon’ble Supreme Court in C.P. No.4325 of 2017, as well as its judgments reported as "Pakistan International Airlines Corporation through Chairman and others Vs. Samina Masood and others" (PLD

Intra-Court Appeal No.68139 of 2022

2005 Supreme Court 831) and "Pakistan Oilfields Limited, Rawalpindi Vs. Province of Punjab, through Secretary Finance Department, Lahore and others" (2010 SCMR 328).

4.Learned counsel further elaborated that in Writ Petitions, the appellants had impugned different provisions of the Act i.e. Explanation-II to Section 3, and Section 42, as well as the vires of Statutory Regulatory Order No.425(I)/2016 dated 20.05.2016 (hereinafter referred to as the "SRO"), seeking a declaration that Section XII-A of the Schedule-I to the Act, inserted through the aforesaid SRO, is prospective in its operation. The appellants also sought direction to the Federal Government for framing of rules and regulations, along with other consequential and ancillary reliefs. It is contended that, in view of the above- referred case law, it stands settled that where the vires of a statute are assailed along with other prayers for consequential relief, an ICA is maintainable. In this regard, reference is made to the judgment of the learned Single Judge-in-Chamber reported as "Messrs Colony Sugar Mills Ltd. through Deputy Manager Vs. Province of Punjab and 5 others" (2017 PTD 406), wherein the vires of a statute were challenged together with the consequential relief of exemption from Excise Duty. An Intra-Court Appeal preferred against the said judgment was held to be non- maintainable by the Division Bench of this Court in "Messrs Tandlianwala Sugar Mills Ltd. Vs. Province of Punjab through Excise and Taxation and 5 others" (2018 PTD 75), however, the Hon’ble Supreme Court, vide its Order dated 20.11.2017 passed in Civil Petition No.4325 of 2017, held that the ICA was maintainable, observing that the vires of the law had been challenged on distinct constitutional grounds raised therein.

5.Regarding the Constitutional Petitions seeking quashment of the FIR(s), argued that such relief was sought merely as a consequential relief. Learned counsel submitted that the reliance placed by respondents upon the judgments reported as "Nawazul

Intra-Court Appeal No.68139 of 2022

Haq Chowhan Vs. The State and others" (2003 SCMR 1597) and "Dr. Abdul Qadir Vs. Assistant Commissioner (City), Islamabad and another" (2004 MLD 1594) is misconceived, as the said judgments were rendered in an entirely different factual and legal context. The question of law decided therein pertains to the maintainability of an ICA against a judgment rendered in a Writ Petition seeking quashment of an FIR, whereas the case of present appellants stands on a distinct and different footing. In the instant matters, the FIRs against appellants were registered on the allegations of committing offence under Section XII-A of Schedule-I to the Act. It is pertinent to mention that Section XII-A ibid was inserted into Schedule-I of the Act by virtue of the SRO, the legality and vires of which were specifically challenged by the appellants in Writ Petitions. It is a well-settled principle of law that where the very foundation of an action is held to be illegal, the entire superstructure built thereupon collapses. Reliance, in this regard, is placed upon "Muhammad Khalid Javed and others Vs. Lahore Development Authority and others" (PLD 2021 Lahore 211). In view of the foregoing principle of law, the appellants sought quashment of FIRs only as consequential relief, contingent upon the declaration of the SRO as void and without lawful authority. The principal relief sought in the Writ Petitions was a declaration to the effect that the SRO is illegal, unlawful, and ultra vires. Therefore, when the vires of the subordinate legislation were under challenge in the Writ Petitions, the ICAs arising out of the judgment passed therein are legally maintainable.

6.So far as the filing of Civil Petition for Leave to Appeal ("CPLA") by some of the appellants before the Supreme Court is concerned, it has been argued that the appellants instituted the CPLAs purely as a measure of abundant caution, as they deemed it appropriate, notwithstanding the pendency of these ICAs, in view of the dictum laid down by the Hon’ble Supreme Court in

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"Muhammadi Steamship Co. Ltd. Vs. The Commissioner of Income-Tax (Central), Karachi" (PLD 1966 SC 828). Further contended that the Directorate of Intelligence and Investigation has previously adopted a similar course before the Hon’ble Supreme Court by filing CPLA No.20762/2022 as a measure of abundant caution during the pendency of ICAs No.170 and 171 of 2021 before this Court. Submit that the appellants do not intend to pursue remedies concurrently before both the forums, but rather seek to preserve their right to proceed before the appropriate forum contingent upon determination of the question of maintainability presently under adjudication before this Court. Reference, in this regard, is also made to paragraph 21 of the proposed CPLAs, wherein it was averred that the CPLAs are filed merely as a measure of abundant caution. It is further clarified therein that the appellants shall avail only one remedy against the impugned judgment, subject to and depending upon the outcome of the present proceedings before this Court.

7.Arguments heard. Regarding the first objection that some of the appellants have instituted CPLAs before the Supreme Court, suffice it to note that the said appellants have duly apprised this Court that the CPLAs were preferred merely as a measure of abundant caution during the pendency of these ICAs, in view of the law enunciated by the Supreme Court in case of Muhammadi Steamship Co. Ltd. supra, and upon a decision in their favour on the question of maintainability of these ICAs, the said CPLAs shall accordingly be withdrawn from the Supreme Court. The above contention has legal substance, and these ICAs cannot be held to be non-maintainable on this score alone.

8.Regarding the maintainability of the instant appeals on touchstone of proviso to sub-section (2) of Section 3 of the Ordinance, there is no cavil with the well-settled proposition of law (laid down in case of Mst. Karim Bibi supra and followed consistently) that where the impugned order/notices in Writ

Intra-Court Appeal No.68139 of 2022

Petitions emanates from the proceedings in which the remedies of appeal, review, or revision are available against the original order, an ICA does not lie in terms of the proviso to sub-section (2) of Section 3 of the Ordinance. On the contrary, where the vires of a statute are assailed in a Constitutional Petition, the aforesaid bar is inapplicable, and an ICA would be maintainable. However, the primary legal question that requires determination in the present matters is that where the appellants in Constitutional Petitions before the learned Single Bench had impugned purely on legal grounds the call-up notices, inquiries and FIRs, arising out of the proceedings in which statutory remedies of appeal, review, and revision are available against the original orders, and had also simultaneously challenged the vires of the law, whether the ICA will be maintainable or not.

9.The instant ICAs have been preferred against the impugned judgment rendered in various Writ Petitions. For the sake of convenience, prayer clause from one of the Writ Petitions i.e. Writ Petition No.60206 of 2021, which is substantially identical to the prayers contained in most of the connected Writ Petitions, is reproduced hereunder:

"In the view of what has been stated above it is most humbly and respectfully prayed that this Honorable Court may be pleased to:

i. Declare call up notice dated 13.01.2021 issued by the Respondent No.4 on the behest of Respondent No.3 to be illegal and without lawful authority.

ii. Declare the Inquiry conducted by the Respondent No.4 as premature and registration of FIR as illegal and without jurisdiction.

iii. Declare Explanation II of the Section 3 as unconstitutional, illegal and unlawful

OR

Alternatively, Explanation II may be read down in the light of other provisions of AMLA

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iv. Declare the Section 42 of AMLA 2010 as illegal and unconstitutional being a case of excessive delegation

OR

Alternatively, a direction may be given to Federal Government to frame Rules before invocation of jurisdiction under Section 42 of

AMLA 2010.

v. Direct the Federal Government to frame rules and regulation as mandated under Section 43 and 44 of AMLA 2010 for effective and just operation of the act.

vi. Declare the SRO No.425(I)/2016 dated 20.05.2016 unlawful and to strike it down. vii. Declare that the Sections 192, 192-A, 194 and 199 of the Income Tax Ordinance added to Schedule-I to AMLA as well as amendment made in Section 2(xviii) of AMLA dated 24.09.2020 viz a viz in the matters pertaining to Predicate Offences committed earlier has prospective effect.

viii. Refrain the Respondents to take any coercive measure against the Petitioner."

From the above-quoted prayer, it is manifest that indeed the appellants had challenged the call-up notices, the initiation of inquiries, and lodging of FIRs, besides assailing the vires of Explanation-II to Section 3, Section 42 of the Act. They had also sought direction to the Federal Government to formulate rules and regulations. The main reasons for the said challenge and the legal questions framed in the aforesaid Constitutional Petitions are also reproduced hereunder for ease of reference: a. Whether the Delegation of Power upon the Federal Government u/s 42 of the AMLA 2010 without any contours/limits to amend the Schedule to the Act is unconstitutional, unbridled, naked and amounts excessive delegation of power?

b. Whether the Explanation II of the Section 3 of AMLA 2010 whereby Conviction of a Person in respective predicate offence is not required for

Intra-Court Appeal No.68139 of 2022 proving an offence under AMLA 2010 is patently illegal and against the fundamental rights guaranteed in the Constitution of Islamic Republic of Pakistan 1973?

c. Whether the SRO 425(I)/2016 dated 14.05.2016 by virtue of which Sections 192, 192-A, 194 and 199 of the Income Tax Ordinance 2001 (hereinafter referred to as The Ordinance 2001) were listed in the Schedule-I of the AMLA 2010 as Section XII-A is bad in law under the light of Mustafa Impex Case (PLD 2016 SC 808) as the requisite approval from Federal Government (Cabinet) was not obtained?

d. Whether the issuance of Notice bearing No.1926 dated 13.01.2021 by Respondent No.4 is bad in law as the same has been issued after striking down of SRO No.115(I)/2015 dated 09.02.2015 by Honorable Lahore High Court vide judgment dated 29.12.2020 passed in W.P No.4361 of 2017 Nestle Pakistan judgment wherein it was held that the power can only be exercised by the Officers of Directorate General Investigation & Intelligence (hereinafter referred to as DG I&I) Inland Revenue after conferment of respective functions and jurisdiction in accordance with law.

e. Whether issuance of SRO 272(I)/2021 dated 02.03.2021, conferring functions, powers and jurisdiction Officers of DG I&I Inland Revenue being prospective in nature, cannot cure the inherent defect in notice bearing no. 1936 dated 13.01.2021 in the light of afore referred Nestle Pakistan judgment?

f. Whether the provisions of Income Tax Ordinance 2001 namely 192, 192-A, 194 and 199 inserted through amendment to Schedule to Act by virtue of SRO 425(I)/2016 has prospective and not the retrospective effect and any action including issuance of Notice and Registration of FIR against the Petitioner for acts/omissions committed before

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the amendment in law is ultra vires to Article 12 of the Constitution of Pakistan?

g. Whether proving of offence of Tax Evasion in the terms of Section 192, 192-A, 194 and 199 of Income Tax Ordinance 2001 and determination of liability to pay the same, if any, is essential prerequisite before cognizance of an offence by the Office of DG I&I Inland Revenue and in the absence of the same it amounts to usurpation of powers, functions and jurisdiction of respective Income Tax Authorities?

h. Whether the amendment dated 24.09.2020 in Section 2(xviii) of AMLA 2010 defining DG I&I Inland Revenue as Investigating and Prosecuting Agency viz a viz investigation of the matters pertaining to Predicate Offences committed earlier (before amendment) has prospective effect?

i. Whether investigating a person for money laundering without proving commission of Predicate Offence or without determining of liability in the manner provided is a roving and fishing expedition which is barred under the law?"

10.The appellants, in addition to challenging the vires of the impugned statutory provisions and seeking a direction to the Federal Government for the formulation of requisite rules and regulations, had also assailed the call-up notices, inquiries, and registration of FIRs on the grounds of lack of lawful authority and jurisdiction. These challenges arise from the proceedings wherein the statutory remedies such as appeal, review, or revision are available. However, the objections have been raised solely on the legal grounds, and not on the merits of the call-up notices, inquiries, or FIRs themselves. Admittedly, no original or appellate order has been passed, and the challenge is purely to the legislative competence of the authority and the vires of the law, which do not fall within the domain of the appellate or

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revisional authority. From review of the Constitutional Petitions indicates that the principal focus of the appellants’ challenge pertains to the vires of the impugned legal provisions and the alleged absence of the lawful authority. Acceptance of these arguments would consequently render the call-up notices, inquiries, and FIRs void and of no legal effect. In such circumstances, where no original or appellate order has been passed, and the primary relief pertains to the constitutionality of the statutory provisions, and the challenge to the notices is merely ancillary and purely on the legislative competence, the Supreme Court has held, in Civil Petitions No. 4325 to 4334, 4357 to 4363, 4400, and 4401 of 2017 vide order dated 20.11.2017, that an Intra-Court Appeal is maintainable. The relevant extract from the aforesaid order is reproduced hereunder for ready reference:

"When questioned, the learned Additional Advocate General concedes that there is no order in original or the appellate order passed in these cases, which could be assailed in appeal, rather pursuant to the Notification, a demand notice was issued to the petitioners which was also challenged though as an ancillary/ incidental relief and, therefore, against that demand notice, the right of appeal being available to the petitioners, resultantly under the proviso to Section 3(2) of the Law Reforms (Amendment) Ordinance, 1997 the ICAs by the petitioners are not competent. Suffice it to say that the right of appeal is a statutory right and has to be considered and interpreted strictly. When the provisions of Section 14 of the Act are taken into account, it clearly. stipulates that an appeal shall lie from an original or appellate order of an excise officer in such cases or classes of cases and to such authority as the Provincial Government shall by notification declare. Whereas, in the present case, as has been conceded before us today by learned Additional Advocate General Punjab, no order in original or by an appellate authority has ever been

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passed by the functionaries of the excise department. Obviously, in such a situation, the attack of the petitioners was purely upon the legislative competence of the authority issuing the Notification on the touchstone of the constitutional provisions. There was also an attack on the provisions of Section 31 (ibid) on the same premise. To answer, settle and dilated upon these issues, was not within the domain of the appellate authority as envisaged by Section 14 of the Act. Undoubtedly, no right of appeal was available to the petitioners in the instant case; therefore, the ICAs filed by the petitioners were valid and competent in law, which were dismissed for untenable reasons."

11.Where the sole and substantive challenge in a Writ Petition pertains to the vires of a statute, the bar under the said provision is inapplicable, and an ICA shall be maintainable. However, in the circumstances where both the impugned administrative action, such as call-up notices and FIRs and the constitutional validity of the law are simultaneously assailed, the determination of maintainability must firstly rest upon the dominant character of the challenge and the incidental nature of the relief sought, and secondly whether the grounds of challenge to administrative action would fall within the domain of the appellate or revisional authority. Applying these principles to the present cases, it clearly emerges that the principal challenge of the appellants is directed against the constitutional validity of certain provisions of the Anti-Money Laundering Act, 2010 and the subordinate legislation framed thereunder, whereas the call-up notices, inquiries, and FIRs (in absence of original or appellate order) have been impugned only as ancillary and the consequential to the alleged ultra vires nature of the impugned law purely on legal grounds, not following in domain of the appellate or revisional authority.

12.For what has been discussed above, the preliminary objections raised by respondents regarding the maintainability of

Intra-Court Appeal No.68139 of 2022

the instant ICAs are turned down. Let this ICA, along with the connected ICAs fixed today, be listed for arguments on merits on a date to be fixed by the office in the month of November, 2025.

MALIK JAVID IQBAL WAINS ABID AZIZ SHEIKH

JUDGE JUDGE

APPROVED FOR REPORTING

JUDGE JUDGE

Arsalan*

"APPENDIX-A"

to order dated 08.10.2025 in ICA No.68139/2022 (Abdul Saboor Vs. Federation of Pakistan etc.)

Sr. No. Case No. Sr. No. Case No.

1.ICA No.58765/2022 2. ICA No.58767/2022 3. ICA No.58773/2022 4. ICA No.58778/2022 5. ICA No.59790/2022 6. ICA No.63934/2022 7. ICA No.63938/2022 8. ICA No.63945/2022 9. ICA No.63948/2022 10. ICA No.63952/2022 11. ICA No.63955/2022 12. ICA No.63959/2022 13. ICA No.63961/2022 14. ICA No.63965/2022 15. ICA No.63972/2022 16. ICA No.68072/2022 17. ICA No.68074/2022 18. ICA No.68084/2022 19. ICA No.68090/2022 20. ICA No.68094/2022 21. ICA No.68101/2022 22. ICA No.68103/2022 23. ICA No.68105/2022 24. ICA No.68128/2022 25. ICA No.68134/2022 26. ICA No.68135/2022 27. ICA No.68140/2022 28. ICA No.68147/2022 29. ICA No.68156/2022 30. ICA No.68369/2022 31. ICA No.73662/2022 32. ICA No.77416/2022 33. ICA No.79471/2022 34. ICA No.81931/2022 35. ICA No.81934/2022 36. ICA No.1319/2023 37. ICA No.16473/2023 38. ICA No.24358/2023 39. ICA No.28222/2023

MALIK JAVID IQBAL WAINS ABID AZIZ SHEIKH

JUDGE JUDGE

Arsalan*