INDO PAK CORPN. LTD. Versus GOVT. OF PAKISTAN

1. Indo‑Pakistan Corporation Ltd. is a public limited company which was incorporated in August 1948 under the Companies Act, 1913. It had its registered office in Lahore but in the year 1957 it was shifted to Chittagong (East Pakistan) (now Bangla Desh) but again in the year 1962 it was shifted back to Lahore. The Federal Government on the 5th November 1973, issued a Notification bearing No. S. R. O. 0000(1)‑73 under Rule 185(1) of the Defence of Pakistan Rules directing that all the assets and properties of the companies mentioned therein‑(the petitioner‑Company being one of those companies)‑which were enemy firms, shall vest in the Custodian of Enemy Property for Pakistan. It is worthwhile to reproduce the actual Notification, a copy whereof has been filed in the form of Annex. `C'. It reads as follows :‑--

2. "To be published in the Gazette of Pakistan, Extraordinary,

3. Government of Pakistan

4. Ministry of Political Affairs and Communications

5. (Communications Division)

6. Islamabad, the 5th November 1973

7. Notification

8. S. R: O. (I)‑73.‑In exercise of the powers conferred by clause (b) of sub‑rule (1) of rule 185, Defence of Pakistan Rules, the Federal Government is pleased to direct that all the assets and properties of the undermentioned companies, which are enemy firms, shall vest in the Custodian of Enemy Property for Pakistan;

(1) Indo‑Pakistan Corporation Ltd. 9‑Fane Road, Lahore ; and

(2) Dry Ice and Carbonic Gas Company Ltd., 9‑Fane Road, Lahore.

9. (Sd.) MUHAMMAD SABED QURESHI,

10. Deputy Secretary.

11. No. 3(12) CEP‑1/73

12. The Manager,

13. Printing Corporation of Pakistan, Islamabad.

14. Copy to Mian Zaheer, Assistant Collector (Excise) Excise and Land Customs Collectorate, Lahore. He is authorised to assume control of the two firms immediately on behalf of the Custodian of Enemy Property for Pakistan and manage their affairs directly.

15. (Sd.) MUHAMMAD SAEED QURESHI,

16. Deputy Secretary.

17. Copy also to‑

(1) The Secretary Indo‑Pakistan Corporation Ltd., 9‑Fane Road, Lahore; and

(2) The Secretary, Dry Ice and Carbonic Gas Co. Ltd., 9‑Fane Road,

18. Lahore.

19. (Sd.) MUHAMMAD SAEED QURESHI,

20. Deputy Secretary.

2. The Indo‑Pakistan Corporation Ltd.‑(hereinafter called the company or the petitioner)‑has come up in writ petition making the following prayer :‑‑

21. "It is, therefore, respectfully prayed :‑

(a) that the order contained in the impugned notification (Annexure C) may kindly be declared to be illegal, having been passed without lawful authority, void and consequently of no legal effect on the rights of the petitioner and its shareholders;

(b) that all the acts of the respondent No. 3, in pursuance of the notification in question may also be declared as aforesaid;

(c) any other relief which in the facts and circumstances of the case this Honourable Court may deem fit, may also be granted;

(d) costs may also be allowed.

22. It is further prayed that pending the disposal of this petition, the operation of the impugned order (Annexure `C') may kindly be suspended and respondent No. 3 may kindly be restrained from further continuing in control of, the firm. Respondent No. 3 may further be directed to vacate the office and restore the same alongwith every thing to the petitioner."

3. Raja Mohammad Anwar, learned Deputy Attorney‑General, submitted in the form of a preliminary objection that the petitioner has an adequate remedy of filing an application against the impugned order under para. 6 of the M. L. R. 70 which was enforced on 30‑9‑1970. For this purpose he actually referred to paras. 5 and 6 of that Regulation which read as follows;---

23. "Para. 5.‑(1) No order made or action taken in relation to an enemy property under the Defence of Pakistan Rules, or under those Rules as continued fn force by the Enemy Property (Continuance of Emergency Provisions) Ordinance, 1969 (1 of 1969), shall, save as provided in paragraph 6, be called in question by or before any Court or other authority including the Supreme Court and High Court;

24. Provided that nothing in this sub‑paragraph shall affect the continuance of any proceedings which, immediately before the commencement of this Regulation, were pending in or before any Court or other authority.

(2) No order made under paragraph 3 shall, save as provided in paragraph 6, be called in question by or before any Court or other authority including the Supreme Court and High Court.

(3) No Court or other authority, including the Supreme Court and High Court, shall grant an injunction or make any interim order in relation to any order or action referred to in sub‑paragraphs (1) and (2) or anything done or purporting to be done under this Regulation.

(4) Any injunction or other interim order that may have been granted by a Court or other authority prior to the commencement of this Regulation, in relation to‑---

(a) any enemy property transferred to or in the possession of any person, or

(b) any property belonging to such person, shall be without force and effect against any order for possession or attachment made by a Custodian under sub‑paragraph (2) of paragraph 3 and any such order of the Custodian shall affect as if the said injunction or other interim order had not been made.

25. Para. 6.‑(1) Any person aggrieved by any such order or action as is referred to in sub‑paragraph (i) of paragraph 5 may. within the period specified in sub‑paragraph (2), make an application to a Special Tribunal constituted under sub‑paragraph (3).

(2) The period within which an application under sub‑paragraph (1) may be made shall be‑

(a) in the case of an order or action under the Defence of Pakistan Rules, or under those Rules as continued in force by the Enemy Property (Continuance of Emergency Provisions) Ordinance, 1969 (I of 1969), if the order was made or action was taken before the commencement of this Regulation, within thirty days of such commencement and, if it is made or taken after such commencement, within thirty days of the making of such order or taking of such action; and

(b) in the case of an order under paragraph 3, within thirty days of the making of such order.

(3) The Central Government shall, for the purposes of this Regulation, constitute a Special Tribunal consisting of such number of members, not exceeding there as it may appoint;

26. Provided that where a Special Tribunal consists of only one member, that member, and where it consists of more members than one, at least one of them, shall be a person who is or has been or is qualified to be, a Judge of a High Court."

27. (Paragraph 3 referre4d to in the above rules dealt with the recovery of money due by any person to an enemy firm or enemy subject or to the Custodian of enemy property).

28. Learned Deputy Attorney‑General argued that the Defence of Pakistan Ordinance XXIII of 1965, was promulgated and enforced on 6‑9‑1965. Similarly Defence of Pakistan Rules were promulgated under section 3 of that Ordinance with effect from the same date. The said Ordinance and Rules ceased to have effect on 17‑2‑1969 when the Enemy Property (Continuance of Emergency Provisions) Ordinance I of 1969 was enacted. The preamble of this Ordinance stated;

29. "Whereas it is expedient to provide for the continuance of certain provisions of the Defence of Pakistan Rules relating to the control of trading with enemy and control of enemy firms and the administration of the property belonging to them ----

30. Now, therefore, in exercise of the powers conferred by Article 29 of the Constitution and of all other powers enabling him in that behalf, the President ii pleased to make and promulgate the following Ordinance:"

31. Section 2 of the aforesaid Ordinance reads as follows :‑ ---

32. "Section 2. Continuance of certain emergency provisions.‑Notwithstanding the Defence of Pakistan Ordinance, 1965 (XXIII of 1965), ceasing to have effect ;

(a) the provisions of the Defence of Pakistan Rules mentioned in the first column of the Schedule to this Ordinance shall continue in force and shall have effect subject to the modifications specified in the second column thereof ;

(b) any order or other instrument made or deemed to be made under or in pursuance of any of the said provisions and in force immediately before the commencement of this Ordinance shall continue in force so far as consistent with the provisions as continued in force by this section and be deemed to be made under or in pursuance of the provisions so continued in force."

33. The Schedule hereinbefore referred to, contained a list of the "Provisions of the Defence of Pakistan Rules continued in force." It indicated that rules 1, 3 (with certain modifications) 5, 161 to 187, 194 to 197 and 205 (with certain modifications) were to continue. On 23‑I1‑1971 was enforced the Defence of Pakistan Ordinance XXX of 1971. On the same day were promulgated Defence of Pakistan Rules under that Ordinance (These Rules for the purposes of this judgment will be called Defence of Pakistan Rules, 1971 or simply 1971 Rules, whereas the earlier Rules which were promulgated under the Defence of Pakistan Ordinance XXIII of 1965 will be called the Defence of Pakistan Rules, 1965 or simply 1965 Rules). The rules which are relevant in the instant case are Rules 172, 184 and 185 of 1971 Rules.

34. They read as follows :----

35. "Rule 172. Definitions.‑In this Part ----------

(1) "enemy subject" means‑--------

(a) any individual who possesses the nationality of a State at war with, or engaged in military operations against, Pakistan, or having possessed such nationality at any time lost it without acquiring another nationality, or

(b) any body of persons constituted or incorporated in or under the laws of such state ;

(2) "enemy firm" means ‑(a) any enemy subject who is carrying on any business in Pakistan, or

(b) any firm, whether constituted in Pakistan or not, of which any member or officer is an enemy subject, and which is carrying on business in Pakistan, or

(c) any company, whether incorporated in Pakistan or not, of which any member, shareholder or officer is an enemy subject, and which is carrying on business in Pakistan, or

(d) any firm, whether constituted in Pakistan or not, of which any member which in the opinion of the Central Government is carrying on business in Pakistan‑--

(i) under the control whether direct or indirect of any enemy subject, or

(ii) wholly or mainly for the benefit of enemy subjects generally or any class of enemy subjects or any individual enemy subject

(3) "enemy currency" means any such notes or coins as are for the time being declared by an order of the Central Government to be enemy currency ;

(4) "enemy property" means any property, including any rights under a contract or otherwise, for the time being vested in, or belonging to, or held or managed on behalf of, an enemy as defined in rule 164, an enemy subject or any enemy firms, but does not include property which is "evacuee property" under the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957);

36. Provided that where an individual enemy subject dies in Pakistan any property which, immediately before his death, belonged to or was held by him, or was managed on his behalf, may notwithstanding his death continue to be regarded as enemy property for the purposes of rule 185.

(5) "Securities" includes shares, stocks, bonds, debentures and debenture stock, but does not include bills of exchange."

37. Rule 184. Power to carry on business of enemy firm.‑(1) Where it appears to the Central Government that the control or management of an enemy firm has been or is likely to be, so affected by the state of war as to prejudice the effective continuance of its trade or business, and that it is in the public interest that the trade or business should continue to be carried on, the Central Government may by order authorize a person to carry on the trade or business in such manner and to such extent as may be prescribed.

(2) While a person authorized under sub rule (1) is carrying on the trade or business of an enemy firm,‑

(a) such person shall be deemed to be acting as the agent of the firm and, subject only to such restrictions as the Central Government may impose, shall have in relation to the management of the affairs of the firm all such powers and authority as the firm itself would have if it were not an enemy firm, provided that any person having any commercial, financial or other intercourse or dealings with such person while so acting, shall not, merely by reason of such intercourse or dealings, be deemed to have contravened the provisions of rule 165 or rule 173 ;

(b) such person shall be entitled to the management of the affairs of the firm to the exclusion of any other person acting or purporting to act on behalf of the firm, and for the purposes of such management shall be entitled to employ such staff or other agency as he thinks fit ;

(c) such person shall not, in respect of such matters relating to the said management as may be specified by order of the Central Government, be bound by any obligation or limitation imposed on him as agent of the firm by or under any law, instrument or contract ;

(d) such person shall be entitled to retain out of the assets of the firm all costs, charges and expenses of, or incidental to, the said management, and such remuneration as may be prescribed ; and

(e) the firm shall not have the right to control the carrying on of the trade or business.

(3) No person authorised under sub‑rule (1) to carry on the trade or business of an enemy firm shall be personally liable for acts done by him in good faith in the course of management of such trade or business.

(4) The provisions of this rule shall apply also in relation to a body of persons, whether incorporate or un-incorporate, which is an enemy as defined in rule 164 and which is carrying on business in Pakistan, as they apply in relation to an enemy firm.

38. Rule 185. Collection of debts of enemy firms and administration of property.‑--(I) With a view to preventing the payment of moneys to an enemy firm, and to provide for the administration and disposal by way of transfer or otherwise of enemy property and matters connected therewith or incidental thereto, the Central Government may appoint a Custodian of enemy property for Pakistan and one or more Additional Custodians, Deputy Custodians and Assistant Custodians of Enemy Property for such local areas as may be prescribed and may by order‑--

(a) require the payment to the prescribed Custodian of none which would but for these rules be payable to or for the benefit of an enemy firm or which would but for the provisions of rule 180 and rule 183 be payable to any other person. and upon such payment the said money shall be deemed to be property vested in the prescribed Custodian ;

(b) vest, or provide for and regulate the vesting, in the prescribed Custodian of such enemy property as may be prescribed ;

(c) vest in the prescribed Custodan the right to transfer such other enemy property as may be prescribed, being enemy property which has not been, and is not required by the order to be, vested in the Custodian ;

(d) confer and impose on the Custodian and on any other person such rights, powers, duties and liabilities as may be prescribed as respect;‑

(i) property which has been, or is required to be, vested in a Custodian by or under the order,

(ii) property of which the right of transfer has been, or is required to be, so vested,

(iii) any other enemy property which has not been, and is not required to be, so vested;

(iv) money which has been, or is by the order required to be, paid to a Custodian ;

(e) require the payment of the prescribed fees to the Custodian in respect of such matters as may be prescribed and regulate the collection of and accounting for such fees ;

(f) requires any person to furnish to the Custodian such returns, accounts and other information and to produce such documents, as the Custodian considers necessary for the discharge of his functions under the order ;

39. And any such order may contain such incidental and supplementary provisions as appear to the Central Government to be necessary or expedient for the purposes of the order.

(2) Nothing in any order under sub‑rule (1) made by the Central Government or by any authority empowered in this behalf vesting any enemy property in a prescribed Custodian shall be construed as preventing or restricting the Central Government from amending, varying, rescinding or super3eding such order at any time by a like order so as to impose conditions on, vary the terms of, or otherwise regulate, such vesting or to vest such property in another Custodian ; but the amendment, variation, rescission or supersession of an order shall not affect anything done, or any right, interest, obligation or liability created by anything dome, by the prescribed Custodian in pursuance of, or under any authority flowing from, such order.

(3) Where any order with respect to any money or property is addressed to any person by a Custodian and is accompanied by a certificate of the Custodian that the money or property is money or property to which an order under sub‑rule (1) applies, the certificate shall be evidence of the facts stated therein, and if that person complies with the order of the Custodian, he shall not be liable to any suit or other legal proceeding by reason only of such compliance.

(4) Where, in pursuance of an order made under sub‑rule (1)‑

(a) any money is paid to a Custodian, or

(b) any property, or the right to transfer any property is vested in a Custodian, or

(c) an order is given to any person by a Custodian in relation to any property which appears to the Custodian to be property to which the order under sub‑rule (1) applies, neither the payment, vesting nor order of the Custodian nor any proceedings in consequence thereof, shall be invalidated or affected by reason only that at a material time‑--

(1) some person who was or might have been interested in the money or property, and who was an enemy firm, had died or had ceased to be an enemy firm, or

(ii) some person who was so interested, and who was believed by the Custodian to be an enemy firm, was not an enemy firm.

(5) Where in pursuance of an order made under sub‑rule (1) the assests of a company are vested in the Custodian, no proceedings, civil or criminal, shall be instituted under the Companies Act, 1913 (VII of 1913), against the company or any director, manager or other officer thereof except with the consent in writing of the Custodian.

(6) Where, in pursuance of an order made under sub‑rule (1), any enemy property is vested in, or any money is payable to, the Custodian, any amount which is due to the Custodian in respect of such property and any money so payable shall be recoverable as an arrear of land revenue.

(7) In pub‑rules (1), (2), (3), (4), (5) and (6), "Custodian" includes an Additional Custodian of Enemy Property, a Deputy Custodian of Enemy Property and an Assistant Custodian of Enemy Property and every reference to an enemy firm shall be construed as including a reference to a person who is an enemy as defined in rule 164.

(8) Every Additional Custodian of Enemy Property, Deputy Custodian of Enemy Property and Assistant Custodian of Enemy Property shall exercise his powers and perform his functions under these rules or any order made thereunder under the general supervision and control of, and in accordance with such directions as may be given in this behalf by the Custodian of Enemy Property for Pakistan.

(9) The Custodian of Enemy Property for Pakistan may, at any time, call for the record of any proceedings pending before, or disposed of by, an officer subordinate to him for the purpose of satisfying himself as to the legality or propriety of any order passed in such proceedings, and may pass such order in relation thereto as he thinks proper ; and every such order of the Custodian shall be final.

40. (l0) If any person pays any debt or deals with any property to which any order under sub‑rule (1) applies otherwise than in accordance with the provisions of the order, he shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both and the payment or dealing shall be void.

(11) If any person without reasonable cause fails to produce or furnish in accordance with the requirements of an order under sub‑rule (1) any document or information which he is required under the order to produce or furnish, or furnishes information which he knows or has reason to believe to be false or incorrect, he shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both."

41. It is a common ground between the parties that new rule 171 (of 1971 Rules) corresponds to old rule 169 (of 1905 Rules), new rule 184 corresponds to old rule 181 and new rule 185 to old rule 182 of 1965 Rules. The learned Deputy Attorney‑General submitted that when in Para. 6 of M. L. R. 70 a right to file an application‑(or representation) against an order made or action taken referred to in para. 5 of that Regulation was given it meant that it was a right against an "order made or action taken in relation to an enemy property under the Defence of Pakistan Rules or under those rules as continued in force by the Enemy Property (Continuance of Emergency Provisions) Ordinance I of 1969." It was submitted that the impugned order which purported to have been passed under Rule 185 of the Defence of Pakistan Rules, 1971 was also challengeable under pira. 6 ibid. The argument, to clarify was of a dual nature. Firstly, it was contended that the sentence "order made or action taken in relation to an enemy property under the Defence of Pakistan Rules" in para. 5(1) of M. L. R. 70 meant such Defence of Pakistan Rules which may at any relevant time‑(for example in the instant case in year 1973)‑be in force and not necessarily the Rules of 1965. Secondly it was submitted in the alternative, that if for any reason this construction of para. 5(1) was not acceptable, then since present rule 185 corresponded in all respects, to old rule 182 of 1965 Rules which continued under section 2 of the Enemy Property (Continuance of Emergency Provisions) Ordinance I of 1969 read with the‑ relevant Schedule, therefore, despite the impugned order quoting only rule 185 as basis of its authority the same could well be said to fall also under old rule 182 of 1965 Rules and would thus be challengeable under para. 5(1) quoted above.

4. Taking up the first limb of the argument of the learned Deputy Attorney‑General I think that it is not well founded. The sentence in para. 5(1) of M. L. R. 70 "order made or action taken in relation to an enemy property under the Defence of Pakistan Rules" has reference' to order of action made or taken under 1965 Rules, and not any Rules which may come into force at any future time unknown and were to be called the Defence of Pakistan Rules. Ordinance I of 1969 clearly stated that the Defence of Pakistan Ordinance, 1965 and Defence of Pakistan Rules, 1965 had ceased to be operative and further indicted that it was expedient to enact a law for the continuance of some of those Rules relating to the control of trading with enemy and control of enemy firms and the administration of the property belonging to them. In that context section 2 continued certain Rules and also continued the orders previously made thereunder. In this background when Para. 5(1) of M. L. R. 70 talks of orders made or actions taken under the Defence of Pakistan Rules and makes them challengeable under Para. 6 it has obvious reference to 1965 Rules and not any future Rules which nobody f knew as to how they will be framed and what was to be their pattern or design etc. This is further clear from the next sentence (which has been underlined hereinafter) contained in para. 5(1) of M. L. R. 70 which when read with para. 6 will show that application could be filed against an order made or action taken m relation to an enemy property, under the Defence of Pakistan Rules, or under those Rules as continued in force by the Enemy Property (Continuance of Emergency Provisions) Ordinance 1 of 1969. The words "order made or action taken under those Rules as continued in force" leave no room for doubt that those Rules are 1965 Rules out of which certain rules are allowed to continue. This is consistent with section 2 o Ordinance I of 1969 which makes mention of such rules which were to continue and orders whereunder even if passed previously were to be deemed to be made under it in pursuance of the provi4ons so continued. The word "those" particularly indicates that in the earlier part of the relevant sentence of para. 5(1) of M. L. R. 70 the rules intended to be referred to are Rules of 1965 and not any future Rules.

5. As regards the second alternative argument of the learned Deputy Attorney‑General, I am, however, inclined to agree with the same. No doubt the order presently impugned‑ quotes rule 185 of 1971 Rules, but it can equally be called an order under rules 182 of 1965 Rules which verbatim is in the same form and shape as rule 185. If an order falls under two provisions of law, one of which is appealable while the other is not, I think that it can safely be considered to fall under that law whereunder it is appealable, provided otherwise neither in the relevant text, or context, nor on the facts and circumstances there takes place any different involvement, complication or difficulty. Cases are not lacking where for instance an order quotes certain provision of law as basis for its making, which apparently does not fit in the context, but the Courts have ample jurisdiction to hold that really the order concerned fails under a different provision which too can protect that order. In Lahore Improvement Trust, Lahore through its Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others (P L D 1971 S C 811), at page 837 there occurs an instructive passage where it is written that "another principle attracted in the case is that before an order passed by a public authority is struck down it is the duty of the Court to explore every possible explanation for its validity and examine the entire field of powers conferred on the authority in pursuance to which the impugned order has been passed. See The Chairman, East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar, Ticket Collector (P L D 1966 S C 725). It was remarked in this judgment "Act performed and orders made by public authorities deserve due regard by Courts and every possible explanation for their validity should be explored and the whole field of powers in pursuance to which the public authorities act or perform their functions examined and only then if it is found that the act done, order made or proceeding undertaken is without lawful authority should the Courts declare them to be of no legal effect."

42. To satisfy the requirement of this rule it is the duty of the Court to examine the entire record pertaining to the action taken, order passed and proceedings undertaken which are challenged as without lawful authority under Article 98 of the Constitution. Otherwise grave miscarriage of justice may take place in the exercise of this beneficial jurisdiction." Respectfully invoking the said principle even in situation of the kind involved in the instant case. I am of the view that if the order impugned falls under rule 182 of 1965 Rules‑(which is also continuing rule under the Enemy Property (Continuance of Emergency Provisions) Ordinance I of 1969) then the mere fact that the authority concerned quoted only rule 185 of 1971 (whereas he could have quoted both the rules) that by itself is no bar on the part of the Court to hold that the impugned order falls under rule 182 of 1965. Rules as well and is thus challengeable under Para. 6 read with para. 5 of M. L. R.

70. Such a construction will result in advancement of justice rather than defeating it. After all if the law itself allows such cases to be taken up before a Tribunal, there is no justification to shut out this particular case due to the mere fact that rule 182 of 1965 Rules has not been quoted or that the authority concerned quoted only rule 185 of 1971 Rules. Holding accordingly I am of the view that the petitioner having another remedy available to him under M. L. R. 70 against the impugned order, resort to writ jurisdiction straightway at this stage without exhausting that remedy was not justified.

6. When confronted with this situation, Mr. S. M. Zafar, learned counsel for the petitioner, who presented the case of his client with great ability and zeal, submitted that the aforesaid remedy was neither unambiguous nor was it on the facts and circumstances of the present case adequate. So far as the objection regarding the alleged ambiguity of the remedy is concerned, it has no merit inasmuch as I have already demonstrated with reference to the relevant law that the remedy of approaching to the Tribunal is competently and clearly available in the instant case. As regards the adequacy of that remedy one has simply to take note of Para. 7 of M. L. R. 70, which reads as follows;----

43. "Para. 7.‑(1) A special Tribunal may, after giving to the person interested an opportunity of being heard, pass such order on an application made to it as it may deem just and proper ; and the decision of the Special Tribunal shall be final and shall not be called in question by or before any Court, including the Supreme Court and High Court.

(2) A Special Tribunal shall, for the purpose of a proceeding under this Regulation, have the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), for the trial of a suit in respect of the following matters, namely :‑

(a) the summoning and enforcing the attendance of any witness and examining him on oath ;

(b) the discovery and production of any document or other material object adduceable as evidence ;

(c) the reception of evidence on affidavit;

(d) the requisitioning of any public record from any Court or office ; and

(e) the issuing of commissions for the examination of witnesses and documents.

(3) Any proceeding before a Special Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Pakistan Penal Code (Act XLV of 1860), and the Special Tribunal shall be deemed to be a civil Court for the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898 (Act V of 1898).

(4) A Special Tribunal may follow such procedure as it may deem fit having regard to the nature of the case or proceedings before it."

44. This provision of law will show that jurisdiction of the Tribunal is very wide. It can examine cases on merits in detail. It can summon and enforce the attendance of any witness. It can direct discovery and production of any document or other material object adducible as evidence. It can receive evidence even on affidavit. It can requisition arty public record from any Court or office and can even issue commissions for the examination of witnesses and documents. It is not bound by any set of stereo‑typed procedure and can rather follow any such procedure as it may deem fit having regard to the nature of the case and proceeding before it. The Tribunal has thus very wide powers and jurisdiction. It can do complete justice between the parties. It is adorned by an ex‑learned Judge of this Court who is possessed of great judicial experience and acumen and I cannot see as to how ‑the remedy of approaching such a Tribunal on the facts and in the circumstances of the present case is not an adequate remedy. From the arguments advanced to me of the bar, I notice that the matter even otherwise is such which may need thrashing out of various factual and legal controversies for which the aforesaid Tribunal is the only appropriate form at this stage and not this Court. For all these reasons I feel no justification to let the petitioner by‑pass that Tribunal or to deprive that Tribunal an opportunity to express its view which it cannot be doubted will be of great assistance and benefit to this Court and all others concerned if at all a need for approaching this Court thereafter arises.

7. Learned counsel for the petitioner tried to argue (a) that the impugned order was vitiated because it was passed without giving a prior hearing to the petitioner, (b) that it suffered from malice, (c) that the rule applicable to such cases was rule 184 of 1971 Rules‑(which corresponds to rule 181 of 1965 Rules)‑and not rule 185 of 1971 Rules, (d) that the petitioner firm was not an enemy firm, (e) that none of its shareholders, officers or directors was an enemy or enemy subject, (f )that a case regarding inheritance of certain deceased shareholders who no doubt were Indian nationals was pending in the original jurisdiction of the Karachi High Court where an Administrator has been appointed‑(though the other side argued that there was no receiver of the shares of the deceased shareholders involved in this company and in the register of shareholders those shares still stood in the names of Indian nationals), (g) that the rules relevant in this case applied only where there was a state of war with India but after Tashkent Declaration Pakistan could no longer be called to be at war with India and that evidence to this effects should be summoned by me from the Federal Government, (h) that on factual plane the facts pleaded by the respondent or even contained in the departmental file‑(which was produced before this Court)‑were factually incorrect and even if established could have no connection with the requirements of law applicable wherein it was essential to prove certain conditions precedent for passing an order of the kind involved herein and which conditions precedent in the instant case were hopelessly lacking (i) that rule 185 did not authorise the Custodian of Enemy Property or his nominee to run a business of a company of the present kind, because for carrying on business of an enemy firm the rule applicable was 184 and not 185(j) that the departmental file shows that the accusation against the petitioner‑Company was of having evaded income‑tax and under‑invoiced its products for which there was, however, not an iota of evidence anywhere. There was no order of any income‑tax agency accusing the petitioner‑Company of the evasion of income‑tax. All tax returns were duly authenticated and were never found to be incorrect in any manner supported as they always were from the relevant account books. Similarly there was not a single proof of any under‑invoicing. There was no proof of any alien enemy control or of any money remittance to that enemy etc. etc. (the other side refuted all these objections and also made reference to various articles contained in the memorandum of association of the petitioner‑Company to show that even according to the company's own charter it was doing business with or in India and was rather formed with such an ulterior motive by setting its factory near the Wagah Border which in no manner was a place suitable for doing an honest business etc. etc.). These and other similar points which were advanced at the Bar from both sides on this very face are such which need proper sifting by leading appropriate evidence by either party. For all these' reasons the most adequate remedy for the petitioner is to approach the Tribunal in the first instance and not this Court straightaway. Holding accordingly I dismiss this petition with the clarification that if after the decision of the ;Tribunal, the petitioner still feels the necessity to approach this Court, the present order will not stand in his way and the matter will then be attended to on its own merits, facts and law relevant. There shall be no order as to costs.

45. S. A. H. Petition dismissed.