Chairman Privatization Commission Vs M/S Swat Ceramic Company Pvt Ltd and 2 others

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

Intra-Court Appeal No. 01--P/2017

Chairman Privatization Commission Versus M/S Swat Ceramic company (private) limited and 2 others

PRESENT

For Appellant (s): Mr. Rehan Saeed, Advocate.

For respondents Mr. Hamid Hussain, Advocate. For the Federal Govt. Mr. Ashfaq Ahmad Jhagra, AAG and Mr. Khalid Rehman, Advocate, as amicus curiae Date of hearing: 21.01.2026

JUDGMENT

MUHAMMAD NAEEM ANWAR, J.- This appeal has been filed under section 33 (1) of the Privatization Commission Ordinance, 2000 “(the Ordinance, 2000)”, against the judgment and decree dated 27.02.2017 passed by the learned Single Judge of this Court, whereby Original Suit No. 01 of 2005, instituted by M/s Swat Ceramics Company, was decreed.

2.The admitted and undisputed factual position is that a suit was instituted by the plaintiff–company before the learned Senior Civil Judge; however, owing to the bar of jurisdiction contained in section 31 of the Privatization Commission Ordinance, 2000 (“the Ordinance, 2000”), the matter was transferred to this Court. At the relevant time, section 28 of the Ordinance, 2000 conferred exclusive original jurisdiction upon the High Court to adjudicate and settle all matters relating to, arising from, or connected with the Ordinance. After framing of issues and recording of evidence, the learned Single Judge of this Court decreed the suit vide judgment and decree dated 27.02.2017. Feeling aggrieved, the Chairman, Privatization Commission, filed the present intra-court appeal under section 33(1) of the Ordinance, 2000, which, at that time, expressly provided for an appeal from the judgment of a Single Judge of the High Court to a larger Bench of the same Court, and

thereafter, under section 33(2), to the Supreme Court of Pakistan. Subsequently, during the pendency of the present appeal, the Privatization Commission (Amendment) Act, 2024 (Act No. XXII of 2024) was promulgated, whereby section 28 of the Ordinance was substituted and section 33 was omitted, and a new appellate structure was introduced, providing for adjudication by a Privatization Appellate Tribunal and an appeal therefrom to the Supreme Court. For the sake of convenience and proper appreciation of the controversy, the relevant provisions of the Privatization Commission Ordinance, 2000, as well as the Privatization Commission (Amendment) Act, 2024, are reproduced herein below: — Act, 2000 (LII of 2000) “28. Jurisdiction of High Courts. Notwithstanding anything contained in any other law for the time being in force, the High Court shall exercise exclusive civil and criminal jurisdiction-

(a)to adjudicate and settle all matters related to, arising from or under or in connection with this Ordinance;

(b)to adjudicate and settle all matters transferred pursuant to section 31; and

(c)to try offences punishable” Under Privatization Commission (Amendment) Act, 2024, for section 28, the following were substituted.

“28. Privatization Appellate Tribunal. (1) Notwithstanding anything contained in any other law for the time being in force, no court other than the Privatization Appellate Tribunal constituted under this Act, hereinafter called as the Appellate Tribunal, shall exercise jurisdiction under this Act.”

Act, 2000 (LII of 2000)

33.Appeal. (1) Any person, Commission and the Federal Government aggrieved by a final order, judgement, decree or sentence, passed by a single Judge of a High Court may, within thirty days of such order, judgement, decree or sentence prefer an appeal which shall be heard by a larger Bench of a High Court, within whose jurisdiction the order, judgement, decree or sentence is passed.

(2)Any person, Commission and the Federal Government aggrieved by a final order, judgement, decree or sentence, passed by a larger Bench of a High Court may, within thirty days of such order, judgement, decree or sentence prefer an appeal to the Supreme Court of Pakistan.

(3)No appeal, review or revision shall lie from any interlocutory order of the High Court.

Under Privatization Commission (Amendment) Act, 2024, Section 33, Act LII of 2000 was omitted and for section 29, the following were substituted.

"29. Appeal to Supreme Court-Any person aggrieved by an order of the Appellate Tribunal may within sixty days thereof prefer an appeal to the Supreme Court."

In view of the aforesaid statutory amendments and the consequential change in the legal framework governing jurisdiction and appellate remedies, this Court, on the previous date of hearing, appointed Mr. Khalid Rehman, Advocate, as amicus curiae to assist the Court on the question as to whether the instant appeal is maintainable before this Court or is liable to be returned for presentation before the competent forum.

3.Learned counsel for the appellant as well as the learned counsel for the respondents contended that, although by virtue of the Privatization Commission (Amendment) Act, 2024, section 33 of the Ordinance has been omitted and replaced by a new appellate scheme, whereunder an appeal lies to the Supreme Court against an order passed by the Privatization Appellate Tribunal, yet it does not contain any express provision giving retrospective effect to the omission of section 33, nor does it provide for the transfer of pending or concluded matters of the High Court to any other forum. Likewise, the Amendment Act does not confer appellate jurisdiction upon the Supreme Court against judgments rendered by the High Court in its original jurisdiction under the repealed section 28. Learned counsel further argued that the jurisdiction of the Supreme Court cannot be assumed, inferred, or implied, but must be expressly conferred by the Constitution or by statute. According to them, the amended provisions confer appellate jurisdiction upon the Supreme Court only in respect of orders passed by the Appellate Tribunal and not against judgments delivered by the High Court under the erstwhile statutory

regime, consequently, it was contended that the instant appeal is to be treated as a matter governed by section 28 of the Ordinance as it stood prior to the amendment, and, therefore, the instant appeal is maintainable and liable to be heard by this Court.

4.Learned amicus curiae supported the submissions of learned counsel for the parties and contended that the right of appeal is not merely procedural but a vested substantive right, which accrues on the date of institution of proceedings or, at the latest, on the date of the impugned judgment, and cannot be taken away except by express words or necessary implication. He submitted that when the judgment dated 27.02.2017 was passed and the present appeal was filed, section 33 of the Privatization Commission Ordinance, 2000, was fully operative and conferred a statutory right of intra-court appeal before a Larger Bench of this Court; therefore, the appellant’s right of appeal had already accrued. Relying upon Article 264 of the Constitution of the Islamic Republic of Pakistan, 1973, and section 6 of the General Clauses Act, 1897, he invoked the doctrine of continuity, asserting that accrued rights, existing proceedings, and jurisdictions survive statutory amendments unless expressly taken away. According to him, the subsequent omission of section 33 by the Amendment Act, 2024, does not divest this Court of jurisdiction over intra-court appeals arising from judgments passed under section 28. He further argued that any interpretation resulting in the extinguishment of an existing remedy or creation of a forum vacuum would offend Articles 4 and 10-A of the Constitution. It was contended that, in the absence of any express provision conferring appellate jurisdiction upon the Supreme Court, the present appeal remains maintainable before this Court and cannot be returned for presentation before the august Supreme Court of Pakistan. In support of his submissions, reliance was placed upon the judgments of the august Supreme Court reported as Taisei

Corporation and another v. A.M. Construction Company (Pvt.) Ltd. and another (2024 SCMR 640), Muhammad Arif and another v. The State and another (1993 SCMR 1589), and Manzoor Ali and 39 others v. United Bank Limited (2005

SCMR 1785).

5.Arguments heard and record perused.

6.The precise question for determination before this court is as to whether, in view of the omission of section 33 of the Privatization Commission Ordinance, 2000 by the Privatization Commission (Amendment) Act, 2024, this intra- court appeal, filed under section 33(1) prior to the amendment, remains maintainable before this Court, or is liable to be returned for its presentation before the worthy Supreme Court of Pakistan under the amended appellate scheme?

7.The right of appeal, no doubt, is a vested and substantive right which accrues to a litigant on the date of institution of the lis and cannot be taken away except by express words or by necessary implication. However, the forum through which such right is to be exercised is a matter of procedure; therefore, the right of appeal and the forum of appeal are two distinct and separate concepts. A litigant has a vested right of appeal, but no vested right to have that appeal heard by a particular forum, number of judges, or under a specific procedural arrangement. It is a settled principle of law that statutes relating to procedure, including those effecting a change of forum, operate retrospectively and apply to pending proceedings, unless such change prejudicially affects a substantive or vested right, causes injustice, or the legislature expressly provides otherwise. A mere change of forum does not amount to prejudice, nor does it extinguish or curtail the right of appeal; rather, it regulates the mode and machinery through which that right is exercised. Where legislation alters jurisdiction or transfers appellate authority from one forum to another without abolishing the right of appeal itself, such change is

procedural in nature and does not offend constitutional guarantees of due process or fair trial. However, where a statutory amendment results in the complete denial of an appellate remedy, creates a forum vacuum, or leaves the vested right of appeal without an express or effective forum, such interpretation must be avoided, as it would violate Articles 4 and 10-A of the Constitution.

8.The question of retrospective applicability of a law has come before the apex Court in the case reported as Gul Hassan & Co. v. Allied Bank of Pakistan (1996 SCMR 237) wherein the apex court, after reviewing case law, i.e., Muhammad Ishaq v. State PLD 1956 SC (Pak)., 256, State v. Muhammad Jamil, (PLD 1965 SC 681), Adrian Afzal v. Capt. Sher Afzal (PLD 1969 SC 187), Ch. Safdar Ali v. Malik Ikram Elahi and another (1969 SCMR 166) and Muhammad Abdullah v. Imdad Ali (1972 SCMR 173), Bashir. vs. Wazir Ali (1987 SCMR 978), Mst. Nighat Yasmin v. N.B. of Pak. (PLD 1988 SC 391) and Yusuf Ali Khan v. Hongkong & Shanghai Banking Corporation, Karachi (1994 SCMR 1007), held that a statute providing a change of forum, pecuniary or otherwise, is procedural in nature and has retrospective effect unless contrary is provided expressly or impliedly or it affects the existing right or causes injustice or prejudice. Similarly, in the case of Muhammad Shabbir and another vs. Quaid-e-Azam University (2022 SCMR 487) the apex Court, while relying on the dictum laid down in the case of Gul Hassan and Co. vs. Allied Bank of Pakistan (1996 SCMR 237), held that a statute providing change of forum, pecuniary or otherwise, is procedural in nature and has retrospective effect unless contrary is provided expressly or impliedly, or it effects the existing rights, or causes injustice or prejudice. It is a well-settled principle of interpretation of statute that where a statute affects a substantive right, it operates prospectively unless "by express enactment or necessary indictment" retrospective operation has been given. However, a

statute, which is procedural in nature, operates retrospectively unless it affects an existing right on the date of promulgation or causes injustice or prejudice to the substantive right. Likewise, in the case of Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan (2018 SCMR 802) the apex court held that the IRA is a valid piece of legislation and the NIRC has jurisdiction to decide the labour disputes, etc., relating to the employees/ workers of companies, corporations, institutions and establishments functioning in more than one Province. It was further held that the IRA 2012, being a procedural law, would be applicable retrospectively w.e.f. 01.05.2010, when the IRO 2008 ceased to exist. In the recent past in the case of Muslim Commercial Bank limited vs. Punjab Labour appellate tribunal (2025 SCMR 303) the apex court held that the outcome of legislation or changes in law that pertain solely to the procedures or legal remedies indicates that if legislation is enacted with the primary intent to alter or modify procedural aspects without prejudicing the rights of the litigants, then no doubt, it will apply to all pending and future actions and individuals do not possess a vested right in any particular course of procedure, so for all intents and purposes, the change in the law of procedure operates retrospectively. However, laws affecting, curtailing or prejudicing vested rights shall be applied prospectively.

9.In the present case, the omission of section 33 of the Privatization Commission Ordinance, 2000 by the Amendment Act, 2024 has resulted in a procedural change relating to forum, not in extinction of the right of appeal itself. Consequently, this Court, after the omission of section 33, lacks jurisdiction to entertain the present intra-court appeal. The appeal, therefore, cannot be maintained before this Court and is liable to be returned for presentation before the Hon’ble Supreme Court, being the appropriate forum under the amended legal regime.

10.So far as the submissions of learned counsel for the parties and amicus curiae are concerned, section 6 of the General Clauses Act applies only where a law has been expressly repealed by another Central Act or legislative enactment, and contemplates revival of the previously existing law unless expressly excluded. In the present case, the omission of Section 33 under the Amended Act, 2024, constitutes a procedural amendment, altering the forum of appeal, and does not repeal any substantive law or create a right previously vested. Consequently, Section 6 cannot be invoked to revive the old appellate path through a larger Bench of the High Court. Similarly, Article 264 of the Constitution provides that the repeal of a law shall not affect rights, privileges, obligations, or liabilities that have already accrued under that law, nor shall it revive a law that was previously in force. In other words, when a law is repealed under the Constitution, the repeal does not undo past actions unless the Constitution explicitly provides otherwise. It does not revive any law, right, or situation that had already ceased to exist before the repeal, nor does it disturb or invalidate anything that was lawfully done, decided, or suffered while the repealed law was in force. The past operation of the law remains protected even though the law no longer applies for the future. In short, actions legally taken under the old law remain valid, and only future actions are governed by the new legal position, unless the Constitution expressly provides otherwise.

11.In the instant case, as stated earlier, the amendment in the Act merely changes the procedural forum for hearing appeals, without affecting any accrued right, privilege, or liability of the parties. There is no question of revival of any previously existing appellate mechanism, as no substantive right has been taken away. The omission of Section 33 is procedural in nature, intended to streamline the appellate process by directing appeals under Section 29 of the Amended Act, 2024 to the

Supreme Court. It is well-settled that procedural amendments operate retrospectively, unless expressly barred, and change of forum does not affect vested rights. Accordingly, the present amendment cannot be resisted on the ground of Section 6 of the General Clauses Act or Article 264 of the Constitution, as the law does not contemplate those procedural modifications, intended for efficiency and clarity, shall restore the previously existing forum. The appeal shall therefore be heard by the Hon’ble Supreme Court under Section 29 of the Amended Act, 2024, in accordance with the legislative intent. The reliance placed upon 1993 SCMR 1589, 2005 SCMR 1785 and 2024 SCMR 640 is misconceived, as the principle enunciated in the referred to above cases is not applicable to the facts of the instant case.

12.Accordingly for the reasons discussed above, the instant is returned to the appellant along with its enclosure for its presentation before the worthy Supreme Court. Announced on 21.01.2026.

Released on 22.02.2026.

*M Zafral CS* JUDGE

JUDGE

DB (Hon’ble Mr. Justice Muhammad Naeem Anwar) & Hon’ble Mr. Justice Kamran Hayat Miankhel)