Per Faqir Muhammad Khokhar, J.Constitution of Pakistan (1973) Art.
Constitution of Pakistan (1973) Arts 1,151,268 & 199
r/w Ss. 3 & 4-Punjab Wheat, Wheat Atta, Maida and Suji
Movement (Control) Order, 1976, para 2 of West Pakistan
Foodstuffs (Control) Act (V of 1958)-
It will, thus, be seen that the executive power to regulate and prohibit
the movement and transportation of the foodstuffs is clearly spelt out by the provisions of the Act as well as the Order, 1976. The expressions “to control” “to regulate” or “to prohibit” are interchangeable in some case.
There is no doubt that subject to reasonable restrictions in the public
interest, the Constitution affords a guarantee for the free trade, commerce and intercourse throughout Pakistan as well as inter-Provincial. But the word “free” in Article 151 does not mean to be free from all laws or regulations or other provisions of the Constitution. Article 151 cannot mean absolute freedom from any restrictions or regulatory measures of the state whatsoever. It must be understood in the context of an orderly society and as a part of the Constitution which envisages a distribution of powers between the Federation and the Provinces. In the very nature of things, it must recognize the need and legitimate chanalization of regulatory control whether by the Parliament or by a Provincial Legislature.
Every citizen has a fundamental right guaranteed by Article 18 of the
Constitution to conduct any lawful trade or business subject to such qualifications, if any, as may be prescribed by law. The said Article also permits the regulation of any trade or profession by a licensing system. There is, thus, no fundamental right to conduct any and every trade or business but only if it is lawful. This means that a trade or a business can be prohibited in the public interest by declaring it to be unlawful.
The object of Article 151 seems to be to bring about the economic unity
of Pakistan so that its citizens are assured that they are the members of one nation. One of the reasons to achieve this object is the freedom of movement and residence throughout Pakistan as guaranteed by Article 15 of the Constitution. Undoubtedly, the freedom of movement or the passage of goods from one part of the country to another is also important. But Article 151 nowhere says that there can be no restrictions or limitations to be imposed by law for regulating the subject of trade or commerce by he Federal Government or the Provisional Government in accordance with law and in the public interest. Article 151, in my view, is required to be read in harmony with Article 18 and other Article of the Constitution so that the rights of an individual for the freedom of trade and commerce are balanced. The progress of the country as a whole requires free flow of trade and commerce. At the same time, the State should have the power to check and curb the out-flow and hoarding of essential commodities which is not permitted by the Constitution and the law. Regulatory measures and measures imposing compensatory taxes do not come within the purview of the limitations as contemplated by Article 151.
The impugned notified order by the District Magistrate merely prohibited
the movement of wheat and wheat products from the District of Rahimyar Khan in the public interest. The same, therefore, cannot be said to be a restriction on inter-Provincial trade and commerce. Such as restriction would equally apply for taking out wheat and its products to the adjacent Districts of Bahawalpur and Rajanpur of the Province of Punjab. At the most it is a case of reasonable restriction on inter-provincial business and not the inter-Provincial trade validly imposed under the Act which is an existing law within the meaning of Article 268 of the Constitution.
The impugned order could not be invalidated as being violative of
Article 151 of the Constitution merely because the out-flow of food grains from Rahimyar Khan District to the Province of Balochistan was also incidentally obstructed in addition to the other Districts of Province of Punjab.
It may also be relevant to point out that the act, namely, the Punjab
Foodstuffs (Control) Act, 1958, is an existing law within the meaning of Article 268. Necessary adaptations of the Constitution have to be read into as required by clause (6) of Article 268 of the Constitution. The consent of the President is not required to be obtained.
The upshot of the discussion is that the provisions of Article 151 of
the Constitution have to be construed in juxtaposition with other provisions of the Constitution. The freedom of trade, business, commerce or intercourse throughout Pakistan as also between the Provinces can be regulated by imposition of non-discriminatory, reasonable restrictions in the public interest by or under the law without creating unnecessary economic barricades. However, blanket protection cannot be conceded for each and every restriction. The validity of such measures will be a matter for judicial review in he contact of each case whether the tests of reasonableness, public interest or equality of treatment are satisfied or not. Neither the vires of the act nor of the Punjab Wheat, Wheat-atta, Maida and Suji Movement (Control) Order, 1976, were called in question by the petitioner. The impugned order dated 20-12-1995 temporary in nature was validly passed by the District Magistrate in the public interest in conformity with law and the Constitution in view of prevailing situation. No valid exception could be taken to the impugned order and the registration of the criminal case in pursuance thereof. The criminal case would, however, be decided on its merits and in accordance with law.
For the foregoing reasons, I do not find any substance in the writ
petition which is hereby dismissed in limine. [PP. 300, 302, 303, 304, 305, 306] A, C,D,E,F,G,H & I