PLJ 1997 Quetta 1 (DB)

PLJ 1997 Quetta 1 (DB)

Present : /MUNAWAR AHMAD MlRZA, CJ AND IFTIKHAR MUHAMMAD

chaudhary, J.

SENATOR DR. ABDUL HAYEE-Petitioner versus

GOVT. OF PAKISTAN through SECRETARY MINISTRY OF PETROLEUM AND NATURAL RESOURCES ISLAMABAD and 3 others-Respondents

C.P. No. 176/1996, decided on 10.10.1996.

(i) Constitution of Pakistan, 1973--

—- Art. 199 read 184 (1) (3)--Jurisdiction--Question of-Whether after riling of civil suit by Provincial Government of Balochistan against Federal Government of Pakistan, present proceedings (Constitutional Petition under Article 199) stand terminated, within perview of Article 184 (1)(3) of Constitution-Question of-There is no expi-ess provision which excludes High Court from exercising jurisdiction in a matter which is prior in time and was already subjudice, before filing, civil suit by Provincial Government-There is no doubt about it that a private party is debarred to seek remedy before Hon'ble Supreme Court under Article 184 of Constitution and except approaching High Court under Article 199, no other remedy is available to him, therefore, relief cannot be denied to him, merely for reason that another party, subsequent to filing of instant Constitutional petition has invoked original jurisdiction of Honble Supreme Court-Held : Exclusory clause incorporated therein debar jurisdiction of any other court, where dispute is in between any other or more Governments and in such events no other court shall exercise jurisdiction-Howewer, where there are private parties, remedy is available to them, to seek relief before eveiy other court, functioning tinder ordinary law as well as Constitution and as on factor of priority in time, instant Constitutional petition was subjudice, when subsequently Prpvincial Government, instituted civil suit against Federal Government of Pakistan, without joining petitioner and remaining private respondents, as party, therefore, instant proceedings cannot be
terminated. [Pp. 27 & 29] I, J & L

(ii) Constitution of Pakistan, 1973--

—Art. 184 (1) and (2)-Jurisdiction-Question of-On bare perusal of sub- Article (1) of Art. 184 of Constitution, it emerges that exclusory clause has been inserted therein to bestow original jurisdiction upon Hon'ble Supreme Court of Pakistan, concerning dispute between any two or more Governments-It is manifest that Framers of Constitution, with intent to provide an exclusive Judicial Forum to Federating Units and Federation itself, to settle their disputes, has conferred original jurisdiction upon Hon'ble Supreme Court, to pronounce Declaratory judgments, in terms of Sub-Article (2) of Article 184 of Constitution-Apparently object and aim of conferring such jurisdiction upon Hon'ble Supreme Court is that within frame-work of Constitution, at any juncture, when two Federating Units i.e. Provincial Governments or Federation itself are at variance on any particular point, High Court functioning within Province, would not be in a position to effectively resolve dispute, especially for want of territorial jurisdiction. [P. 29] K

(Hi) Words and Phrases-

—The Oxford Encyclopedic English Dictionaiy, P. 495. Exclusion: The act or an instance of excluding the state of being excluded. Exclusion Order: An Official order preventing a person (esp. a suspected terrorist) from entering the UK. [P. 22] D

(iv) Words and Phrases-

—West's Legal Thesaurus/Dictionary, Special Delux Edition by William Stateky, P. 293. Exclusion: Denial of entry or admittance (the exclusion of evidence).
Ban, rejection, dismissal, nonadmission, preclusion, prohibition, disallowance, elimination, omission, exclusion, purge, segregation, repudiation, boycott, bar, non-acceptance, banishment, blackball, eviction, prevension. See also exception (2), romoval. [P. 22] E

(v) Words and Phrases--

-CORPUS JURIS SECUNDUM Vol. 33. P. 112: Exclusion : The act of excluding or shutting out, whether by thrusting out or by preventing admission ; a debarring rejection; extension; prohibition; rejection. In the plural, the word has been defined as meaning things barred and not admitted. [P. 23] G

(vi) Words and Phrases-

—Legal Thesaurus/Dictionary by William Stateky page 294. "Exclusive: Not allowing others to participate; belonging to one person or group (exclusive possession). Restricted, closed limited, selective, sole, private, personal individual, shuttingout, unique, complete, entire, whole, all, total, Ant. Unrestricted. [P. 22] A

(vii) Words and Phrases-

—-Oxfort Encyclopedic English Dictionaiy page 495, column 2; Exclusive: 1 excluding other things. 2. not including; except for, 3 tending to exclude others, esp. socially select. 4 catering for few or select customers; high class, 5a (of a commodity) not obtainable elsewhere, b (of a newspaper article) not published elsewhere, 6
restricted or limited to; existing or available only in, 7 (of terms etc.) excluding all but what is specified. 8 employed or followed or held to the exclusion of all else (my exclusive occupation; exclusive rights), an article on stoney published by only one newspaper or periodical, Exclusive Brethren a mere exclusive section of the Plymouth
Brethren, exclusively exclusiveness exclusivity. [P. 22] C

(viii) Words and Phrases-Black's Law Dictionary Sixth Edution page 564, column 1 & 2.

Exclusive, Appertaining to the subject alone, not including, admit ting, or pertaining to any others, Sole, Shutting out, debarring from interference or participation, vested in one person alone. Apart from all others without the admission of others to participation, people on complaint of samboy V. Sherman, 158 N.Y.S. 2d 837. [P. 23] H

(ix) Words and Phrases-

Exclusively: Apart from all other (exclusively used for chartiable purposes). Only solely, substantially all, for the greater part, to the exclusion of all others, fully, entirely, completely. [P. 22] B

(x) Words and Phrases'—Words And Pharases, Permanent Edit on ISA, P.179: "Exclusively" since "wholly" is but a synonym of "exclusivity," ts definition being to the exclusion of other things"; and hence, where the use made of city property has direct reference to the purposes for which it was authorized to be owned and held, and tends to directly promote such purposes, such use is within the provision exempting the property from taxation, though revenue or profit is derived from it. [P. 23] F

M/s. Muhammad Aslam Chishti and Mian Saqib Nisar, Advocates for Petitioner.

M/s Abdul Hafeez Pirzada, Muhammad Riaz Ahmad, Zahid Hussain Burhani, Advocates, Mr. Yaqoob Khan Yousuf Zai A.G. and Raja Rob Nawaz DAG ofPakistan for Respondents.

Date of hearing: 7.10.1996.

judgment

Munawar Ahmad Mirza, C.J.--The facts giving rise to present Constitutional Petition briefly stated are, that large deposits of petroleum and gas fields exist in various parts of Balochistan, Functions, concerning exploration and production of petroleum or gas is controlled and regulated by Ministry of Petroleum and Natural Sources. Pakistan Petroleum Limited (hereinafter referred as "PPL") a Company registered under the Companies Act 1939 (presently Companies Ordinance, 1984) is engaged in exploration, production and transmission of petroleum and gas within the country. This company is sole lessee and operator of Sui-Gas field in Balochistan, besides having considerable interest in gas fields located at Qadirpur, Kandh Kot, Adhi, Kandra and Mazarani covering more than 50% supply of gas within Pakistan.

2. It is the case of petitioner that Burmah Castrol pic a public limited company incorporated in UK (formerly known as Burmah Oil
Company) was also engaged in exploration and production of Petroleum and Gas at different places since last Century, Burmah Castrol pic, is majority
shareholder of P.P.L. in Sui-Gas Project.

Respondent No. 4 (Hashoo Holdings (Pvt.) Ltd.) is a private Company incorporated in Pakistan under the Companies Ordinance, 1984, primarily interested towards hotel industiy, but has started participation in the exploration of several petroleum and gas fields.

3. Averments in the petition expressly suggest that Hashoo Holdings are intending to acquire from Burmah Castrol its shares in P.P.L. by resorting to various collusive and maiafide measures. Petitioner has also referred to indirect arrangement regarding manipulation of acquiring 7% shares of P.P.L. in Qadirpur Gas Field by "Hashoo Holdings" through Australian Company known as Broken Hill Property. Relevant details necessary for determination of controversy between the parties, are mentioned in Paras "(6) to (10)" of Constitution Petition which are reproduced hereunder:-- "6. That in order to under stand the hackdrop to the present transaction it is necessary to refer to a very important development which took place in 1981. At that time P.P.L. needed to finance the installation of a gas compression plant. As Burmah Castrol refused to introduce fresh equity the Government of Pakistan arranged a loan from the IFC and guaranteed repayment, This was done under the terms of Gas Price Agreement which the Government signed with Burmah Castrol. This Agreement provided that:

(a) All cash inflows from all of P-P.L's operations would be lumped together. The Government would set the gas price for sui. thereby determining revenue. It would then deduct operating expenses, debt servicing, cash dividend to share-holders, payment of royalties, corporate income tax, etc. The balance would accrue to the Government of Pakistan as Gas Development Surcharge (hereinafter referred to as "GDS")

(b) The dividend paid but by P.P.L. to Burmah Castrol was fixed at 22\^c>t. This was later increased to 25% thereby currently giving Burmah Castrol an annual dividend of Rs. 60 million.

7. That under the terms of the loan agreement between P.P.L., IFC and the Government of Pakistan Burmah
Castrol would require a No Objection Certificate from the Government of Pakistan before it could sell its shares in P.P.L.

8. That under Article 161 of the Constitution, all royalties in relation to gas, go to the Provinces. The GDS (which is far greater than the royalties) is dividend between the Federal Government and the provinces in accordance with the terms of a National Finance Commission Award. Under the
current award the Provinces get 99% and the Federal Government gets 1% as handling charges.

9. That currently the Government sets the producer price at which gas producers can sell their gas to the gas distribution companies namely Sui Northern Gas Pipelines Ltd. and Sui Southern Gas Co. The Government also sets the seller price at which SNGPL and SSGC sell the gas to the final consumer.

10. That P.P.L. owns a 7% share in the Qadirpur gas field which is the second largest gas field in the country. Therefore P.P.L. gets 1% of the gas produced there. It then sells this gas, alongwith the gas it gets from other fields. Then, in accordance with the terms of the 1981 Agreement referred to earlier, its production costs, royalties, taxes, and then Rs. 60 million divided in substracted from the revenue it gets and the balance is given to the Government of Pakistan as GDS. Last year this came to Rs. 7 billion (out of which Rs. 300-400 million came from the Qadirpur gas field. The important point to note is, of course, that although Burmah Castrol, the majority share holder of P.P.L. only receives Rs. 60 million, it is the Government which is the main beneficiary to the extent of 7 billion. It is this entitlement which is now in question because of the illegal and malafide acquisition of Burmah Castrol's shares by the Hashoo Group and B.H.P.

4. Petitioner depicting various aspects of national interest, expressed that after certain limit, under regulatory ^obligations profits eventually, stand transferred to Federal Government through 'P.P.L.' which is maximum and lucrative source of national exchequer. However, for any reasons if complexion, control and management in the existing Company, is changed; same would adversely affect the economy causing devastating results to nation. The assertions made in the petition further disclose that Burmah Castrol during 1986 attempted to sell its share in pic through 'Shell and National Petroleum; but Government of Pakistan declined to grant 'No Objection Certificate'. Again in 1992 efforts were made when The Saudi Baraka Group and Premier Consolidated Oil fields (a British Company)
reportedly gave an offer of 16 million pounds when conditional 'No Objection Certificate' was also issued; but Hashoo Holdings, filed Constitution Petition No. 664/1992 before Sindh High Court challenging legality of such sale ainly on the ground that permission from Council of Common Interest" had not been obtained as contemplated by Article 154 of the Constitution. In this back ground petitioner Dr. Abdul Hayee has specifically averred that Hashoo Holdings without fulfilment of mandatoiy requirement contained in Article 154 of the Constitution, is clandestinely negotiating for purchase of share from Burmah Castrol, which thus has no sanctity.

5. It is alleged that transaction regarding sale of 7% PPL in Qadirpur gas field by Broken Hills Property, which forms part of No Objection Certificate subject matter of challenge, in this petition was placed before The President of Pakistan, who strongly objected to its propriety through a letter dated 4th January, 1996, copy whereof has been placed on record as Annexure 'B'. Some of the extracts from said letter, correctness whereof was not challenged by respondent No. 1 having relevancy to the dispute are reproduced below :--

"Para-1..............................................................................

Para-2......................................................................................................

(a) ..........................................................................................................

(b) ..........................................................................................................

(c) Is the Hashoo Group really appropriate or qualified for the transaction? The seller i.e. Burmah Castrol does not appear to have discussed the transaction with Hashoo Group. Does Hashoo Group possess the required experience, track record and management depth to justify this level of responsibility? After all the deal if it goes through will place half of the countries total gas resources in the hands of one inexperienced private group which has only recently entered the Oil/Gas business. It could have important monopolistic implications leading to potentially and significantly higher prices for the consumers and resultantly low receipts of gas development surcharge revenue for the government.

(3) The sale of Burmah Castrol interest in Qadirpur Gas Field i.e. BONE TO BHP is unrelated to an end out side the P.P.L. transaction. However how is bn it in Pakistan's interest to agree to PPL's 7% share holding in Qadirpur Gas Field to be sold to BHP ? 2/3 The Burmah Castrol sale of BONL to BHP may have been prompted out of distress situation. As the ECC Summary brings out Burmah Castrol is no longer interested to continue to operate in Pakistan, since they have withdrawn from all international exploration and production operatives. But PPL is under no such disress PPL ownership of Qadirpur Gas Field acts as an important cashion for government and contributes significantly to the Gas Development surcharge accruing to the government. The gas Development Surcharge amounted to over Rs. 8 billion in 1994-95. Of this almost Rs. 7 billion came from PPL from its Sui Kandh Kot and Qadirpur Gas Field operations. Qadirpur contributed between Rs. 300 to 400 million in 1994-95. Removal of Qadirpur from PPL shares will immediately impaction of Gas Development Surcharge and place an upward pewaauew on gas prices to the consumers. This will have highly adverse political and revenue implications for the provinces.

(e)

(f)

(g) The importance of any assurance from BHP/Hashoo Group in the matter of gas pricing is equally flawed. It is well known that the Government of Pakistan and International Finance Corporation (IFC the World Bank affiliate) signed a Memorandum of Understanding on Natural Gas Pricing issue about a year ago. The IFC have proceeded to approve a major loan to provide the bulk of financing for PPL's US $80 million Compression project currently under implementation. Any assurance which cut across this Memorandum understanding could expose the Pakistan Government to acting in bad faith. In any event reliance on any such new assurances on natural Gas pricing issue are not credible or consistent with arrangements with IFC already in place.

(h) ..............................................................................

(j) At a fiture date, say in 8 or 10 years time, the Sui Gas fields could be called upon to serve, as an important potential reservoir for gas storage for the country in the event one or more of the gas imports schemes get implemented. It would be in Pakistan's interest to retain the maximum operations so that strategy and policy with regard to this field remain free from interference from any private group acting in its own narrow economic interests.

3. The ECC should have considered the points and implications noted above. The ECC should also have considered this matter in the light of the broad strategy approved by the Cabinet and the Government's Petroleum Policy. I would like to invite their attention also to my note under the subject "Revitalization and re-structuring of Oil & Gas Development Corporation (PGDC)" sent to the Prime Minister under No. 1411/1/President of 10 October, 1994, especially para (vi) wherein I had stated that Oil and Gas Fields already discovered and in production should as a matter of principle never be framed in whether through joint venture partners or otherwise. The recommendations made in that note had subsequently been approved by the Cabinet.

4 5

6. If such an arrangement were to be worked out, the Government of Pakistan would have 82.6% shares and IFC 17.05% Under such circumstances Government and IFC could reach an agreement within (illegible) or so would bring about a major and fundamental restructuring of PPL, with the aim of ; reserving it as an ongoing, independent and professionally managed undertaking. This would also allow existing share holders of PPL (which includes the government) to obtain a fair market value for this asset. Other element of restructuring could include both government and IFC divesting the additional shares accruing to them from purchase of Burmah Castrol shares. Such a divestiture could provide for sale of some of the shares to the employees, induction of a reputable technical partner and a major floatation ^;n Pakistan or in the Foreign Capital Market with suitable safeguards to insure widest dissemination. Since the ECC meeting ft 18 December, 1995 was held in absence of the Prime Minister and in fact chaired by the Advisor 'Finance), It will be appropriate if this note is brought to the notice of the Advisor (Finance) and he also be asked to place it before the Prime Minister who could have the entire matter reviewed in the light of the points made above".

6. Petitioner thus attempted to emphasize that by raising objections the President of Pakistan also proposed to the Government of Pakistan to purchase share of Qadirpur gas field from Burmah Castrol pics., in Pakistan Patroleum Limited. Evidently Sui-Gas field is vaster than Qadirpur gas fields and source of providing enormous benefits to public and government. It is alleged that letter of President referred to above highlights extra ordinary damage to the economy of the country pursuant upon proposed sanction for selling Burmah castrol shares in PPL to any other private company. Considering repercussions the Baluchistan Assembly through unanimous resolution passed in June, 1996 has expressed that any transaction regarding sale of Burmah castrol in P.P.L. to private entrepreneur shall seriously harm the interest of province. Petitioner also strongly objected to the grant of sanction for sale, without approval by the "Council of Common Interests". Genuine fear about adverse effect on the future generation and economic conditions of Balochistan Province, if sale is permitted to any private 'entrepreneur' was felt. Contents of petition further elucidate back drops of real grievance for invoking Constitutional jurisdiction, which appears in Paras "30 to 37" and are reproduced below :—

"30. That the consequences of the proposed deal with be that the country's gas reserves will be handed over to an untested group which has entered this sector only within the last three years. This is an aspect which has caused concern to the President. In this letter at Para 2<c> he asks.

"Is the Hashoo Group really appropriate qualified for the transaction?...Does Hashoo Group possess the required experience, track record and management depth to justify this level of responsibility? After all the deal if it goes through will place half of the country's total gas resources in the hands of one inexperienced private group which has only recently entered the Oil/Gas business. It could have important monopolistic implications leading to potentially and significantly higher prices for the onsumers and resultantly low receipts of gas development surcharge revenue for the government".

31. That one of the reasons for giving the Government the power to block any transfer of Burmah Castrol's shares in P.P.L. was so that the Government could ensure that only a technically competent and financially sound company should buy the shares and hence get control of over 50% of the nation's gas reserves. It is submitted that the Hashoo Group manifestly does not come up to the required standards. The Hashoo Group is run by Mr. Hashwani. In a debate in the National Assembly on June, 10, 1996 on this proposed deal, the House was informed of the following*facts about Mr.
Hashwani by the Opposition. He is a bank defaulter to the tune of Rs. 1.7 billion. He has been served notice by the authorities for evading taxes of Rs. 180 million in his Pearl Continental operations He has been accused of tax evasion of Rs. 10 Million in Exide. duty evasion of Rs. 4.4 million in
Premier Tobacco. Finally he owes U.S $20 million to Habib Bank, New York.

32. That if P.P.L.'s current management is replaced by the Hashoo Group which is inexperienced in managing such a large concern, it may well be the case that there is a drastic fall in P.P.L.'s efficiency. This would firstly result in a fall in the gas supply in the country at a time when supply is barely
sufficient to me the existing needs. Secondly this will adversely affect the realization of the Gas Development Surcharge. Given that in 1994-95 almost Rs. 7 billion of the Gas Development Surcharge came from P.P.L. from its Suit, Kandh Kot and Qadirpur gas field operations, it is very clear
that huge sums of money are involved. Responsibility for realizing these sums would be given to the Hashoo Group, without the Government of Pakistan having any effective system of control to protect the national interest. And this is despite the fact that the Government is aware that Mr.
Hashwani the person in charge of the Hashoo Group, has apparently defaulted on his loans to the extent that he owes Rs. 1.7 billion. As if this were not enough, he is in addition and alleged tax evader. And this is the person, whom the Government in its wisdom, feels is trustworthy enough to
handle billions of rupees belonging to the nation.

33. That since the Government of Pakistan holds 29.41% shares in P.P.L., a fall in productivity and hence profitability would obviously be detrimental to government revenue. This is an additional reason to block the deal.

34. That giving the NOC to Burmah Castrol for the sale of its shares in P.P.L. to the Hashoo Group would result in a single group's gaining control of over 50% of the country's gas reserves. It will thus have a stranglehold over the country's energy resources. This is clearly a potentially
disastrous scenario for the nation.

35. That in his letter the President (at para (h) had also stated that in case there was a change in the producer pricing mechanism of P.P.L. there would be a potential windfall profit of U.S $150-200 million per year. He has voiced the apprehension that given this fact, the
Government will continuously find itself under pressure to change to existing pricing. At this point it would be pertinent to look at some of the arguments advanced by the Hashoo Group when they were urging the Government not to sell P.P.L. to the Premier-Al Baraka consortium. In a
letter to the Secretary, Ministry of Petroleum and Natural Resources, they stated:

"It is also not quite understandable as to why the Premier-Al Baraka consortium is interested at all in acquiring shares in P.P.L. given the "cost-plus formula" generally considered to be rather unattractive to foreign companies. It seems that the real interests of the Premier-Al Baraka consortium lies in enhancing the costs or in the Rs. 2.350 billion reserves of the P.P.L. which appears an attractive proposition to any foreign entity wishing to employ them in the payment of (excessive) managerial and technical fees. Allowing that can hardly, however, be considered in the national interest....

................................... Once they (the Premier-Al Baraka consortium) are allowed to acquire controlling shares in P.P.L. they would only be in a stronger position to, and almost certainly will, ask for a revision of the 'cost plus' formula, since they would then be controlling energy reserves of great strategic importance to Pakistan.

It is submitted that all these factors are applicable with equal force to the Hashoo Group, their disclaimers notwithstanding.

36. That interestingly in 1992-93 when the Hashoo Group was opposing the sale of Burmah Castrol's shares in P.P.L. to the Premier-Al Baraka consortium one of its main objections was that this decision could only be taken by the Council of Common Interests. In the aforementioned letter they stated :

"The matter fal's in terms of the "Constitution, exclusively within the jurisdiction of the Council of Common Interest, and no other authority is competent to take decision in respect thereof. The proceedings before the Secretary Ministry of Petroleum and Natural Resources, Government of Pakistan, thus amounts to an exercise in futility and coram non juiUcc ..a meeting of the Council of Common Interests should be convenied for a consideration of and decision in the matter"

The mala fide of the Ilashoo Group aic therefore beyond doubt.

37. That further more as the- President pointed out in para 2(j) of his letter at a future date the Sui-Gas fields could be needed as a reservoir fcr storing imported gas. It would not then be in the national interest to restrict the Government's options in this field It should be noted that the Government has signed separate deals with Qatar, Iran and Turkmenstan for the supply of gas to Pakistan via pipelines. These pipelines will become operational in about then years time. The Government of Pakistan is committed to pay for a fixed amount of gas regardless of whether or not it actually takes this gas. Given the fact that demand is significantly lower in summer than it is in winter, the Government will almost certainly have large amount of surplus gas during the summer. It. will then have to either return the gas which it is receiving via these piplmes even though it will have paid for this gas, or it will have to store it in some reservoir and then use it during the winter when it will be needed. One of the options being seriously considered is to store this foreign supplied gas at Sui. Obviously if the Sui gas fields are owned by a private party they will be in a position to charge an exorbitant fee and thur pivfit at the nation's expenses."

7. Petitioner alleged that despite disclosure of serious adverse affect to the country's economy and consumers of the Sui Gas, the fellow conspirators of "Hashoo Holdings" in connivance with certain government functionaries by flagrantly violating the requirements of Constitution and law have manipulated No Objection Certificate for selling Burmah Castrol shares in P.P.L. to said private limited concern. Petitioner, a public representative being member of Senate from Balochistan and aggrieved from factors with led to grant of 'No Objection Certificate' for selling P.P.L. shares has approached this Court praying for following reliefs :

(a) Declare that the decision to issue a N.O.C. for the sale of Burmaft Castrol's share in PPL and to permit the sale of P.P.L.'s 7% share in the Qadirpur gas field is contrary to law and of no legal effect.

(b) Declare that the NOC issued by the Government is contrary to law and is null and void.

(c) declare that only the Council of Common Interests can take decisions as to the sale of Bui mah Castrol's shares in PPL and as to the disposal of PPL's 7% share in the Qadirpur gas field.

(d) Declare that if the Council of Common Interest, decides to dispose of the shares, then it can only be on the basis of open, fair and free bidding, or a public auction.

(e) °Such other order as may be deemed appropriate by this Honourable Court.

(f) Costs of the petition.

Respondent No. 4 (Hashoo Holding (Pvt.) Ltd.) filed rejoinder to interim injunction on 8.7.1996 rebutting broadly assertions regarding maneouvering the grant of N.O.C. Several preliminary objections were also raised. However, counter affidavit to main petition was submitted on 8th August, 1996. Maintainability of Constitution Petition was specifically challenged on the ground that :

(i) petition is not an aggrieved person ;

(ii) No Objection Certificate was issued by the Government in exercise of executive discretion which is not justiceable;

(iii) grievance pertaining to Qadirpur Gas field falls beyond the territorial jurisdiction of Balochistan High Court;

(iv) Petitioner has not approached with clean hands;

(v) Controversy relates to benefits of commercial transaction between private parties which is not amenable to judicial review.

Detailed factors justifying propriety and bonafide of purchasing shares of Burmah Castrol in P.P.L. by Hashoo Holdings were explained. It was specifically mentioned that respondent No. 4 is reputable company carrying progressive and successful business through actively participating in Petroleum exploration production and transmission. Hashoo Holdings enjoys comprehensive management and high technical expertise for petroleum and gas exploration. Respondent No. 4 strongly disputing the assertion in Constitutional Petition elucidated that Hashoo Holdings being a Pakistan Based Company is most suitable for economic emancipation in the country and would be more watchful to the benefits of consumers. Allegations regarding malafide, manipulation, or conspiracy were explicitly repudiated.

8. Raja Rab Nawaz, learned Deputy Attorney General filed parawise comments on behalf of respondent No. 1 towards 8th August, 1996.
Preliminary Objections regarding maintainability of Constitution Petition were raised. It is the case of respondent No. 1 that N.O.C. was issued under Rule 68 of Pakistan Petroleum (Exploitation and Production) Rules, 1986 by complying with requisite formalities. Assertions relating to collusion or malafide of Federal Government or its functionaries were strongly refuted. The stand of respondent No. 4 (Hashoo Holdings (Pvt.) Ltd.) for carrying exploration in the field of gas and petroleum, however has not been disputed. The requirement proposed by IFC by laying condition to the existing 'cost- plus-formula' with its possible replacement by market related formula has not been accepted by giving explanation in its reply to paragraph 36. Accord-ing to the Federal Government, issuance of N.&.C. was merely regulatory and not policy matter. It is further mentioned that Government of Pakistan had no concern with commercial transaction amongst private
parties.

It may be pertinent to point out that genuineness of letter by the President, raising serious objections to the sale of Burmah Castrol share referred in the main Constitution Petition has not been specifically disputed. Subsequently on 27th August, 1996 two separate rejoinders to the counter affidavit were filed by the petitioner whereby averments in parawise comments of respondent No. 1 and counter affidavit of respondent No. 4 were expressly disputed re-affirming assertions made in the Constitution Petition. Objections raised by respondents regarding maintainability of petition were also opposed.

9. Respondent No. 2 through Chief Secretary Balochistan field reply on 17th September, 1996. It was pleaded that any potential change in gas prices will have adverse affect on the income of Balochistan keeping in view condition concerning transfer of gas development surcharge. According to stand of respondent No. 1, matter concerning grant of N.O.C. falls within the exclusive jurisdiction of Council of Common Interest and no other authority was competent for said purpose. It was further pleaded that to safe guard strategic national resource-base and ensuring maximum returns, if at all sale of P.P.L. shares in permitted, same should be transparent and profit oriented. Respondent further expressed necessity of associating the Provincial Government for any change of status regarding Sui gas field because same was main revenue generating source of income to Balochistan Province. Respondent No. 2 prominently pleaded that petition under Article
184 of the Constitution for settlement of issues with Federation has been filed before Honourable Supreme Court. Copy of Civil Suit No. 1/96 was also placed on record alongwith said reply.

10. Respondent No. 3 (Pakistan Petroleum Limited) filed written reply towards 8th August, 1996 through Mr. Zahid Hussain Burhani Advocate, explaining its obligation to transfer the shares when duly supported by transfer-deed. While answering paras 6 to 10, respondent No. 3 admitted execution of agreement with Federal Government on 28th July, 1982 where Burmah Castrol was not party. Salient feature of said 1982 agreement have also been enumerated.

11. On 17th September, 1996 after reply was filed by respondent No. 2 (Balochistan Province) Mr. Abdul Hafeez Pirzada, learned counsel for respondent No. 4 urged that on filing the suit by Provincial Government under Article 184 (1) (3) proceedings initiated by the petitioner (Dr. Abdul Hayee) stand terminated.

Mian Saqib Nisar Advocate sought adjournment for examining this aspect being unaware about such plea regarding maintainability which initially was not raised in the counter affidavit. The matter-was however, postponed to 24.9.1994. Mr. Abdul Hafeez Pirzada counsel for respondent No. 4 and D.A.G. appearing for respondent No. 1 concluded arguments on 25th September, 1996. It was inter alia argued by respondent No. 1 that Burmah Castrol Oil Company was necessary party and petition merits dismissal for non-impleading the same. Mian Saqib Nisar Advocate confining himself to jurisdiction within the perview of Article 184(1) and (3) of the Constitution raised by respondent No. 4 concluded his arguments on 7th September, 1996. Similarly Mr. Yousuf Qasim Advocate for respondent No. 3. made submissions supporting his stand taken in written reply. Learned Additional Advocate General emphatically supported the petitioner.

12. Main thrust of arguments addressed by learned counsel for respondent No. 4 revolves around maintainability of present proceedings on filing of civil suit by Provincial Government of Balochistan invoking original jurisdiction of Honourable Supreme Court. It was urged that dispute between Federal Government and or any of the Provinces concerning any controversy is exclusively determinable by Supreme Court and none else. Learned counsel emphatically argued that word "dispute" occurring in Article 184 embraces potential and actual difference. He maintained that Balochistan Provincial Government has admittedly filed suit before Honourable Supreme Court relating to common question of law and fact, which according to him discloses 'Actual' and 'Tangible' dispute, therefore, jurisdiction of all other forums stand completely ousted. To supplement the submissions reliance was placed on observations contained in case, Khawaja
Muhammad Sharif vs. Federation of Pakistan (1989 C.L.C. 13817). Learned Counsel added that original jurisdiction is comprehendable from every Us instituted for the first occasion before competent forum. Reference was made to observation of P.L.D. 1996 Supreme Court 543 (Brother Steel Mills Ltd. and others vs. Mian Ilyas Miraj and others). In this context it was canvassed that Article 199 of the Constitution can be resorted to only if no other alternate remedy is available to aggrieved person. Proper original civil jurisdiction vested in apex court having been invoked the extraordinary Constitutional petition ought to be terminated. Reliance was placed on the observations of Miss Benazir Bhutto vs. Federation of Pakistan and others (P.L.D. 1988 Supreme Court 416). Answering the objection raised by other side Mr. Abdul Hafeez Pirzada stressed that Honourable Supreme Court exercising original jurisdiction was competent to implead any party whose presence is necessaiy for effectual determination of real controversy. Therefore, provisions of Article 184(3) have to be read in conjunction with Order-I Rule 10(2) C.P.C. and Order-V rule 2(3) the Supreme Court Rules, 1956. Reference was also made to case of Murree Brewery Company Limited, and others versus The Province of Punjab and the Province of Sindh (Constitutional Petition No. 19 of 1995) decided on 28.5.1995 through agre2tnent arrived between them.

Learned Deputy Attorney General had also challenged jurisdiction and competency of Constitution Petition on identical points. Additionally question regarding territorial jurisdiction was also passed. Placing reliance on (i) N.L.R. 1990 Civil 184 (Muhammad Jawaid Iqbal (Advocate) versus Pakistan Atomic Energy Commission. Locus standi of petitioner was also challenged referring to observations in case P.L.D. 1956 Federal Court page 72 (The Punjab Province vs. The Federation of Pakistan).

Mr. Saqib Nisar learned counsel for petitioner vehemently opposing jurisdictional questions raised by respondents contended that scope for agitating dispute before Hon'ble Supreme Court under Article 184(3) is restricted only to specified parties. According to him controversy involving interest of private persons is not emanable to original jurisdiction of the Supreme Court. Learned counsel stressed hard that Constitutional provisions have supervening effect over other enactments. He maintained that any substantive law or sub-legislation cannot be imported for changing nature of dispute amongst parties specifically prescribed under the Constitution. Mr. Saqib Nisar laid emphasis for highlightening veriaiy of powers which may be exercised by competent court such as :

(i) inherent jurisdiction (ii) territorial jurisdiction (iii) pecuniary jurisdiction (iv) when subject matter is exclusively specified (v) where parties for raising dispute or expressly nominated. According to him scope of Article 184 is circumvented between two or more Governments for resolving dispute of any nature. But competence of private person to invoke original jurisdiction under Article 184 of the Constitution is conspicuously excluded. Learned counsel also made reference to scope of original jurisdiction exercisable by Supreme Court envisaged in various Constitutions from the creation of Pakistan and comparing the same with American and Indian Constitution.

13. Now in the background of above circumstances we would like to refer below parallel provision from various Constitutions for ascertaining scope of real controversy emerging in the instant matter:--

(2) In the exercise of the jurisdiction conferred on it by this Article, the Supreme Com! shall pronounce declaratory

judgments only.

(3) In this Article, "the Governments" means the Central Government and the Provincial Governments."

"Article-184 Constitution of Islamic Republic of Pakistan, 1973.

184. (1) The Supreme Court shall, to the exclusion of every other court, have original jurisdiction in any dispute between any two or more Governments.

Explanation.--ln this clause, "Governments" means the Federal Government and the Provincial Government.

(2) In the exercise of the jurisdiction by clause (1), the Supreme Court shall pronounce declaratory judgments only,

(3) Without prejudice to the provisions of Article 199, the Supreme shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article."

"The Constitution of India Article, 131

131. Original Jurisdiction of the Supreme Court. -Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute :--

(a) between the Government of India and one or more States, or

(b) between the Government of India and any State or States on one side and one or more other States on the other; or

"The Constitution of the United States of America III.

Section I. The juridical 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.

Section 2. The judicial Power shall extend to all cases, in Law and Equity, arising under this Constitution, the Laws of the United States and Treaties made, or which shall be made, under their Authority to all cases affecting Ambassadors, other public Ministers and Consuls, to all cases of admiralty and maritime Jurisdiction,- to Controversies to which the United States shall be a Party; to controversies between two or more States; between a State and Citizens of another State;-Between Citizens of different States;-- between citizens of the same State claiming Lands under Grants of different States, and between a State Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party the Supreme Court- shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The trial of all Crimes, except in cases of Impeachment, shall be by Jury, and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same Overt Act, or on Confession in open Court."

14. Brief survey of above quoted provisions of different Constitutions is helpful in fixing scope of Article 184 of 1973 Constitution.

Article 204, Government of India Act 1935 regulates determination of dispute by Federal Court in exercise of its original jurisdiction; when same arises between Federation or any of the Provinces (involving law or fact) concerning existence or extent of legal right amongst them. The scope and authority of Federal Court under Article 204(2) is however, restricted for adjudicating upon and pronouncing judgments merely to claims of declatory nature and non-else. Besides, jurisdiction of Federal Court is explicitly barred with regard to agreement where its authority has been mutual!^ excluded.

15. Article 156 of the 1956 Constitution is mostly identical to Article 204 of the Government of India Act, 1935. However, scope of Article 156 has been enlarged to cover questions arising between Federation or Provinces concerning interpretation of Constitution.

16. Whereas Article 57 of 1962 Constitution is considerably narrow in its scope and application, merely envisages determination of dispute relating to declaratory nature between one or more Provincial Governments or the Federation.

17. Article 131 of Indian Constitution has slightly larger ambit, and provides authority to Supreme Couit for embracing all types of disputes arising between Federal Government or any more Provinces. However, factum of exclusivity and specification of parties, is obviously common in all the Constitutions referred above. Significance of dispute between specified parties has been elucidated in cases reported as (i) AIR 1970 S.C. 1446 (relevant para-11) and (ii) AIR 1984 S.C. 1675 (relevant para-12). Relevant paras are re-produced herein below :--

"AIR 1970 S.C. 1446 (Para-11).

11. Although Article 131 does not define the scope of the disputes which this court may be called upon to determinein the same way as Section 204 of the Government of India .Act, and we do not find it necessaiy to do so, this much is certain that the legal right which is the subject of dispute must arise in the context of the Constitution and the Federalism it sets up. However, there can be no doubt that so far as the parties to the dispute are concerned, the framers of the Constitution did intend that they could only be the constituent units of the Union of India and the Government of India itself arrayed on one side or the other either singly or jointly with another unit or the Government of India."

AIR 1994 S.C. 1675 (Para-12)

12. On a careful consideration of the whole matter in the light of the decisions of this Couii referred to above, we feel that Article 131 of the Constitution is attracted only when a dispute arises between or amongst the States and the Union in the context of the constitutional relationship that exists
between them and the powers, rights, duties, immunities, liabilities, disabilities etc. etc. flowing therefrom. Any dispute which may arise between a State in the capacity of an employer in a factoiy, a manufacturer of goods subject to excise duty, a holder of a permit to run a stage carriage, a trader or businessman carrying on business not incidental to the ordinary functions of Government, a consumer of railway services etc., like any other private party on the one hand and the Union f India on the other cannot be construed as a dispute arising between the State and the Union in discharge of their respective executive powers attracting Article 131 of the Constitution. It could never have heen the intention of the framers of the Constitution that any ordinary dispute of this nature would have to be decided exclusively by the Supreme Court: It is well to remember that the constitutional proposals of the Sapru Committee advocated the strengthening of the position of the Federal Court in India and widening its jurisdiction on the original side so that the Federal Court could act as an interpreter and guardian of the Constitution and as a Tribunal for the determination of the disputes between the constituent units of the Federation. The Joint Committee on Indian Constitutional Reforms was also of opinion that the object of conferring exclusive original jurisdiction on the Federal Court was that the dispute of the kind specified between the Federation and the Provinces as the constituent units of the Federation should not be left to be decided by Courts of law of a particular unit but be adjudicated upon only by the highest Tribunal in the land which would be beyond the influence of any one constituent unit. The Special Committee consisting of Sriyuts S. Varandachariar, Alladi Krishnaswami Ayyar, B.L. Mitter, K.M. Munshi and B.N. Rau appointed by the Constituent Assembly to consider and report on the Constitution and powers of the Supreme Court suggested "that the Supreme Court, like the Federal Court under the 1935 Constitution, would be the best available forum for the adjudication of all disputes between the Union and a unit and between one unit and another and proposed that the Court should have an exclusive original jurisdiction in such disputes. (Vide The Framing of India's Constitution--A Study by Shri B. Shiva Rao at p. 483). Considered in the light of the foregoing the conclusion becomes inevitable that disputes of the nature involved in this case could not have been in the contemplation of the framers of the Constitution when they adopted Art. 131 of the Constitution.

18. Article III Section 2 from American Constitution has a very large scope for resolving disputes of various natures between Federation, States and States or Citizens of no State and that of other. Therefore, same will be of little benefit for examining legal point involved in present petition.

19. Now examining afore-quoted parallel provisions from different Constitutions it is quite clear that Article 184 (1) of 1973 Constitution has broader scope encompassing jurisdiction for deciding any dispute. But Article 184 (2) conceives merely grant of declaratory judgment for variety of dispute which might crop-up amongst Federation and one or more Provinces. Nevertheless there appears community of feature in all the parallel provisions of above-referred Constitutions suggesting total exclusion of all other Courts for adjudicating 'disputes' specified in the respective articles which exist between the Federation and Provinces or any of the Provinces. Therefore, it is necessary to attach real meaning to word 'Exclusion' or exclusivity keeping in view 'prescribed parties' and 'scope of powers' for arriving at correct conclusion.

20. Definitions or meanings of words 'Exclusive' 'Exclusion' or 'Exclusivity' contained in law books and dictionaries are mentioned below for convenience and guidance :--

(i) Legal Thesaurus/Dictionary by William Stateky page 294.

(a) "Exclusive: Not allowing others to participate; belonging to one person or group (exclusive possession). Restricted, closed limited, selective, sole, private, personal individual, shuttingout, unique, complete, entire, whole, all, total, Ant. Unrestricted.

(b) Exclusively: Apart from all other (exclusively used for chartiable purposes). Only solely, substantially all, for the greater part, to the exclusion of all others, fully, entirely, completely.

(ii) Oxfort Encyclopedic English Dictionary page 495, column 2;

Exclusive: 1 excluding other things. 2. not including; except for, 3 tending to exclude others, esp. socially select. 4 catering for few or select customers; high class, 5a (of a commodity) not obtainable elsewhere, b (of a newspaper article) not published elsewhere, 6 restricted or limited to; existing or available only in, 7 (of termsetc.) excluding all but what is specified. 8 employed or followed or held to the exclusion of all else (my exclusive occupation; exclusive rights), an article on stoney published by only one newspaper or periodical, Exclusive Brethren a mere exclusive section of the Plymouth Brethren, exclusively exclusiveness exclusivity, (iii) The Oxford Encyclopedic English Dictionary, P. 495.

Exclusion: The act or an instance of excluding the state of being excluded. Exclusion Order: An Official order preventing a person (esp. a suspected terrorist) from entering the UK.

(iv> West's Legal Thesaurus/Dictionary, Special Delux Edition by William Stateky, P. 293.

Exclusion: Denial of entiy or admittance (the exclusion of evidence). Ban, rejection, dismissal, nonadmission, preclusion, prohibition, disallowance, elimination, omission, exclusion, purge, segregation, repudiation, boycott, bar, nonacceptance, banishment, blackball, eviction, prevension. See also exception (2), removal.

(v} Words and Pharases, Permanent Edit on ISA, P. 179 :

"Exclusively" since "wholly" is but a synonym of "exclusivity," its definition being to the exclusion of other things"; and hence, where the use made of city property has direct reference to the purposes for which it was authorized to be owned and held, and tends to directly promote such purposes, such use is within the provision exempting the property from taxation, though revenue or profit is derived from it.

(vi) CORPUS JURIS SECUNDUM Vol. 33. P. 112: Exclusion : The act of excluding or shutting out, whether by thrusting out or by preventingadmission ; a debarring rejection; extension; prohibition; rejection. In the plural, the word has been defined as meaning things barred and not admitted.

(vii) EXCLUSIVE, EXCLUSIVE AGENCY, Black's Law Dictionaiy Sixth Edution page 564, column 1 and 2.

Exclusive, Appertaining to the subject alone, not including,' admitting, or pertaining to any others. Sole, Shutting out, j H debarring from interference or participation, vested in one j person alone. Apart from all others without the admission of others to participation, people on complaint of samboy . Sherman, 158 N.Y.S. 2d 837.

Thus examining above terminologies and meaning attached thereto, we are persuaded to observe that original civil jurisdiction bestowed upon Supreme Court under Article 184 (1) shuts-out and entirely takes away authority of other courts subject to condition specified in said provision and Article 184 (2) of the Constitution. It therefore, suggests that if parties to dispute are two or more Governments, than invocation of original civil jurisdiction shall operate as complete ouster of other forums.

21. Mr. Abdul Hafeez Pirzada attempting to emphasise this aspect strenuously argued that original civil jurisdiction supervenes authority exercizeable by court having ordinary original civil jurisdiction under the statute or special original jurisdiction of High Court by invoking writ.

22. These aspects and implication of above referred variety of jurisdiction has been authoritatively discussed in case. PLD 1966 S.C. 543; (Brother Steel Mills Ltd. vs. Ilyas Mirza). The crux of above phraseologies appears at pages 558 and 561 said judgment. It would be highly instructive to reproduce below relevant portion for understanding :-

"The same view was expressed in Eastern Co. (Pvt.) Ltd. It may be noted that in that case the entire judgment turned on the interpretation of the expression "Ordinary jurisdiction" used in section 202 and not "original civil jurisdiction" as contained in section 3 of the Law Reforms Ordinance which convey a completely different meaning. A close scrutiny of the judgments holding that the Court under the Ordinance does not exercise original civil jurisdiction shows that they are based on the observation made in Ahmad Khan (supra), in which Cornlius, CJ. has specifically mentioned that the ordinary original civil jurisdiction is confined to trial of suits. Although in some judgments the word ordinary has not been used, yet where the proceedings are initiated by filing a plaint as provided by the Code of Civil Procedure, it should be termed as ordinary original civil jurisdiction and not merely original civil jurisdiction. To clearly understand the meaning and impact of the term "original civil jurisdiction", it is necessary to differentiate between these two terminologies. The original civil jurisdiction cannot be restricked to proceeding initiated by filing plaint which in my view is ordinary original civil jurisdiction of a court, as jurisdictions are conferred on the High Courts by statutes which provide for initiating proceedings before the High Court itself. It has been emphasised that such jurisdiction should be called statutory jurisdiction, but in any even it has to be considered whether it is an original jurisdiction or an appellate jurisdiction within the framework of even a statutory jurisdiction conferred by a statute. In Hussain Bakhsh v. Settlement Commissioner PLD 1970 SC 1 it was observed that "as proceeding which deals with a right of a civil nature does not cease to be so merely because the right is sought to be enforced by having recourse to the writ jurisdiction. Judged from these aspects a proceeding under Article 98 of the Constitution relating to a civil matter is a civil proceeding although the High Court's jurisdiction in such a proceeding is Constitutional jurisdiction of an original kind". It clearly indicates that Constitutional or statutory jurisdiction can be of original nature having all the characteristics of an original jurisdiction. It was followed in D.F. Hasan v. Habib Bank Ltd. PLD 1974 Lahore 117 where Nasim Hasan Shah, J. (as he then was) observed that "the exercise of what is commonly termed as the writ jurisdiction, was considered to be a special original jurisdiction of the High Court and not ordinary original civil jurisdiction".

8. Under Article. 175 of the Constitution a Court is vested with jurisdiction "as is or may be conferred on it by the Constitution or by or under any law". Therefore, the jurisdiction can be conferred on any Court including a High Court by a statute which may provide for initiating the proceedings in that Court as a Court of first instance having power to entertain and decide it. Such Court will thus be vested with original jurisdiction. If it relates to civil dispute it will be termed as original civil jurisdiction. It is not uncommon that statutes are promulgated conferring jurisdiction on the High Court to initiate proceedings as a Court of first instance for purpose of exercises of jurisdiction. For instance under section 2(i) (ii) of the Banking Companies (Recoveiy of Loans) Ordinance, 1979, in respect of cases in which the amount of loan exceeds Rs. 1 million, the High Court in exercise of original civil jurisdiction is the Special Court. Hereby statute jurisdiction has been conferred on the High Court to exercise original civil jurisdiction and tiy the cases as specified. All the High Courts are exercising this jurisdiction. If a technical meaning to the term original civil jurisdiction (i.e. having authority to entertain suits and try it) is given, then Lahore High Court, High Court of Balochistan and Peshawar High Court not having original civil jurisdiction in this technical sense cannot exercise jurisdiction conferred by the Banking Companies (Recovery of Loans) Ordinance. This will create absurdity which cannot be attributed to law. Therefore, in the statute under consideration the term 'Original civil jurisdiction' has been used in the general sense."

23. Now we would revert to pivotal question, considering whether ouster with regard to matter being examined under special Original jurisdiction between private parties and two Governments having similarity of fact shall stand automatically terminated when 'Original Civil jurisdiction is invoked for settlement of dispute between two Governments.

24. It may be seen that various legislations specify nature of parties or subject matter exclusively triable by prescribed forums. We are aware that Rent Restriction Laws primarily regulate the dispute between landlord and tenant and none else can seek relief through said enactments. Family Courts under the Family Courts Act have exclusive jurisdiction merely for settling the dispute specified in the Schedule. Out sider may have remedy by invoking jurisdiction of ordinary Civil Courts. Frontier Crimes Regulation empowers District Magistrate to take cognizance and refer the matter for adjudication to Council of Elders where parties are indigenous tribesmen or the incident emanates from blood fuels amongst such parties. Likewise Banking Tribunals under Ordinance LVIII of 1984 deal with only those
categories of disputes which are mentioned in the said enactments. Factually survey of different legislations reveal that some times status of parties to be arrayed is prescribed and some case subject matter is specified. However, case under consideration before us obviously does not have any controversy with regard to subject matter and relates to parties competent for invoking original civil jurisdiction of Honourable Supreme Court.

25. Now looking to arguments; learned counsel for respondent No. 4 has emphatically urged that subject matter of present Constitution Petition and civil suit instituted by Provincial Government of Balochistan before Supreme Court are identical. This aspect has not been seriously controverted by learned counsel for petitioner. However, question arises whether any of the parties not specified under Article 184 could invoke the jurisdiction or arrayed during adjudication of grievance under Article 184 (1) of the Constitution and said provision can be extended to private persons. We have noticed with great caution that in normal circumstances where parties are expressly described such as :

(i) landlord and tenant in Rent laws;

(ii) landlord and lessee (bazgar) under the Balochistan Tenancy Ordinance, 1978.

(iii) spouses in Family Courts and similarly other legislation, outsider could not claim relief. The Controller obviously will have no jurisdiction if parties arrayed before the court, does not enjoy status of landlord and tenant. Similarly the persons other than spouses cannot legitimately seek relief before the Family Court and so forth. There is plethora of reported judgments of superior Courts to supplement this aspect. It is thus quite apparent that even ordinary legislation when regulate claim between the specific parties does not permit different categoiy of persons than expressly specified. On this analogy we would now examine constitutional dictates expressly mentioning about type or status or parties who may invoke jurisdiction which is obviously Federal and Provincial Governments. According to our humble view provisions of Order I Rule-10 C.P.C. and Order-V Rule 2(3) of Supreme Court Rules, 1956 may be attached if any province or Federal Government likely to affect by proceedings instituted before Supreme Court under Article 184(1) we feel that said provision cannot be utilized for impleading private person. We would not like to dilate further on this aspect because same primarily deals with competency powers and jurisdiction of Honourable Supreme Court. Nevertheless we may express that reference to Murree Brewary's case instituted under Article 184(1) of the Constitution which had been concluded through settlement, no objection about competency of private person or invoking jurisdiction was ever raised. Therefore, reference to said petition is inapt.

Iftikhar Muhammad Chaudhary, J.--I have had an opportunity to go through proposed Judgment written by his lordship, the Hon'ble Chief Justice and respectfully I am in agreement with the conclusion drawn therein. However, I add following additional reasons thereto.

26. Since facts and relevant Constitutional Provisions have already been noted, therefore, I would only state that Senator Dr. Abdul Hayee Baloch, being a chosen Representative, instituted instant Constitutional Petition on 19th June, 1996, wherein, besides Federal Government of Pakistan and Provincial Government of Balochistan, Pakistan Petroleum Limited, a Company incorporated under the Companies Ordinance, 1984 and Hashu Holdings (Pvt.) Limited, were also arrayed as Respondents, for the purpose of claiming relief against them in terms of Prayer Clause of petition. The petition having been found prima facie competent on merits, not only was admitted for regular hearing on 20th June, 1996, but at the request of petitioner, while passing order on C.M. 699/96, Respondent No. 1,
was restrained from allowing sale, transfer or delivering of shares, directly or indirectly to unofficial Respondent; Hashu Holdings (Pvt.) Limited. After filing and exchanging pleadings by parties, during hearing, on 17^th September, 1996, Mr. Abdul Hafeez Pirzada, learned Senior Counsel, pointed out that Provincial Government of Balochistan has invoked the jurisdiction of Hon'ble Supreme Court under Article 184 (1) read with Article 187 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as 'Constitution'). Copy of petition filed by Provincial Government of Balochistan, was also submitted, which indicates that subsequent to filing of instant petition, a Civil Suit No. 01/1996, was instituted by Provincial Government, wherein except Government of Pakistan, no one else amongst Respondent in the Constitutional Petition, have been arrayed as Party.

27. The learned Counsel for parties were heard, in support of their respective contentions, relating to Constitutional jurisdiction of this Court,
after filing of suit by Provincial Government.

28. Precisely the question for determination is; whether after filing of Civil Suit No. 01/96, by the Provincial Government of Balochistan against Federal Government of Pakistan, present proceedings stand terminated, within the perview of Article-184(l)(3) of the Constitution?

29. On bare perusal of sub-Article (1) of Article 184 of the Constitution, it emerges that exclusionary clause has been inserted therein
to -bestow original jurisdiction upon Hon'ble Supreme Court of Pakistan, concerning dispute between any two or more Governments. It is manifest that Framers of the Constitution, with intent to provide an exclusive Judicial Forum to the Federating Units and Federation itself, to settle their disputes, has conferred original jurisdiction upon the Hon'ble Supreme Court, pronounce Declaratory Judgments, in terms of sub-Article (2) of Article 184 of the Constitution. Apparently object and aim of conferring such jurisdiction upon the Hon'ble Supreme Court is that within the frame-work of the Constitution, at any juncture, when two Federating Units i.e. Provincial Governments or Federation itself are at variance on any particular point, the High Courts functioning within the Province, would not be in a position to effectively resolve the dispute, especially for want of territorial jurisdiction. It is known principle of interpretation of Constitution that its all parts should be understood, according to their practical significance and the phrases and words used therein should be defined in plain and unambiguous manner, in order to construe them in their original sense, without stretching them to cover the cases, which are never intend to govern. It may be seen that expression 'jurisdiction' has not been defined by any Statutory provision, except its Dictionary meaning, or by the Superior Courts. Since question of exclusionary clause, is under consideration, therefore, it would be appropriate to reproduce following para from the case of State vs. ZiaurRehman (P.L.D. 1973 S.C. 49), hereinbelow :--

"It may well be asked at this stage as to what is meant by 'jurisdiction'? How does it differ from 'judicial power'? Apart from setting up the organ the Constitution may well provide for a great many other things, such as, the subjects in respect of which that power may be exercised and the manner of the exercise of that power. Thus it may provide that the Courts set up will exercise revisional or appellate powers or only act as a Court of a cessation or only decide Constitutional issues. It may demarcate the territories in which a particular Court shall function and over which its Writs shall run. It may specify the persons in respect of whom the judicial powers to hear and determine will be exerciseable. These are all matters which are commonly comprised in what is called the jurisdiction of the Court. It expresses the concept of the particular res or subject-matter over which the judicial power is to be exercised and the manner of its exercise. Jurisdiction, therefore, a right to adjudicate concerning a pai ueular subject-matter in a given case, as also the authority to exercise in a particular manner the judicial power vested in the Court." —

The Hon'ble Supreme Court in above quotation has specifically laid down that jurisdiction demarcate the territories in which a particular Court shall function and over which its Writs shall run. It may specifies the person, in respect of whom, judicial powers to hear and determine, will be exerciseable.

30. It was emphasized by Mr. Abdul Hafiz Pirzada, learned Advocate that petitioner had no personal interest in reliefs claimed by him, as he invoked Constitutional jurisdiction of this Court, in capacity of a Public Probono to motivate the Provincial Government of Balochistan, either to initiate legal proceedings to challenge action of Federal Government in granting 'No Objection Certificate' to Burma Cestrol Oil Company, to sell their share to Hashu Holdings (Pvt.) Limited, on any permissible ground or to offer its own bid for purchasing the share and as now he had succeeded to activate the Provincial Government, as a suit has been filed on its behalf, therefore, no further relief, as prayed for, can be allowed to him, in view of the fact that except two additional reliefs, same reliefs have been claimed in the original Civil Suit, by the Provincial Government, itself. Thus proceedings be terminated by dismissing the petition.

31. I am afraid that argument raised by learned Counsel to say that instant petition be dismissed, is not based on any recognized principle of rejecting the petition. In this behalf, it is to be seen that solely for the reason that Hon'ble Supreme Court is ceased with the matter, in which neither the petitioner nor respondents 3 and 4 are party, will not divest this Court from exercising jurisdiction, because under Article 184(1)(3) of the Constitution, there is no express provision which excludes this Court from exercising jurisdiction in a matter which is prior in time and was already subjudice, before filing of• Civil Suit, by the Provincial Government of Balochistan. There is no doubt about it that a private party is debarred to seek remedy before the Hon'ble Supreme Court under Article 184 of the Constitution and
except approaching this Court under Article-199 of the Constitution, no other remedy is available to him, therefore, the relief cannot be denied to him, merely for the reason that another party, subsequent to filing of instant Constitutional Petition has invoked the original jurisdiction of Hon'ble Supreme Court. In this behalf, it is to be mentioned that even under general rule of res-subjudice, a suit which is prior in time will not be abeted, because another Hon'ble Court has concurrent jurisdiction in respect of same remedy, but it can only be availed by the parties, specified in the Statute, which confers jurisdiction on said Court.

32. Thus, I am inclined to conclude that on strictly contruing to Article 184(1) of the Constitution, it is held that the exclusionary clause incorporated therein debar the jurisdiction of any other Court, where dispute is in between any two or more Governments and in such event, no other Court shall exercise jurisdiction. However, where there are private parties, the remedy is available to them, to seek relief before every other Court, functioning under ordinary law as well as Constitution and as on the factor of priority in time, instant Constitutional Petition was subjudice, when subsequently Provincial Government of Balochistan, instituted Civil Suit No. 01/96, against Federal Government of Pakistan, without joining the petitioner and remaining private respondents, as party, therefore, instant
proceedings cannot be terminated.

COURT ORDER

33. For the above reasons we are inclined to over-rule the objection causing termination of present proceeding. Matter should be listed for
regular hearing to a date in office.

(K.K.F.) Order accordingly