ISLAMABAD: The Supreme Court on Thursday turned down the federation's plea to suspend the Sindh High Court's (SHC)'s judgment preventing it from taking action against sugar mill owners in light of the recommendations of the sugar inquiry commission's report.
A two-member bench, headed by Chief Justice Gulzar Ahmed, and comprising Justice Ijazul Ahsan heard the federation's appeal against the SHC judgment. It had urged the apex court to declare the SHC order "null and void".
The SHC's June 23rd stay order restrained the government from taking action against sugar mills in light of the sugar inquiry commission's recommendations.
However, the Islamabad High Court's (IHC's) single-member bench order dated June 20, 2020, allowed the government agencies to take action against the sugar millers responsible for shortage of the commodity earlier this year, and dismissed a petition requesting the court to stop a crackdown started on the basis of the inquiry report.
It declared the constitution of the inquiry commission to probe the cartelisation and price hike of sugar, lawful, and also validated its proceedings and report.
Makhdoom Ali Khan, representing the sugar mills, raised questions regarding the constitution of commission to hold an inquiry into high price of sugar.
He asked: "Was the commission constituted properly in accordance with statutory provisions? Commission members were biased," he added.
The chief justice said, when the government feels expedient it can constitute commissions to conduct inquiries on certain public matters, adding the sugar is a public matter.
He further said that even if they declare that the commission was not constituted in accordance with the law, the report will remain in the file, adding that the report is only compilation of facts.
The CJP inquired whether the report can become a piece of evidence.
Makhdoom replied, "no, unless the commission members are cross-examined about the contents of the report".
Justice Ijaz said sugar mills first approached the IHC, but when the order was passed against them, they moved the SHC, and raised issues which were not in the report.
Makhdoom said that the IHC noted in its judgment that the commission was properly constituted; the individuals' rights were protected, and that the cabinet could not be delegated its power.
The chief justice observed that instead of constituting commission the federation should have filed the cases directly before the proper forums.
Justice Ijaz noted that there was capacity issue as the FBR could take 15 years to investigate them; therefore, the help of specific agencies was taken.
He said that the FBR stated that the sugar mills were over-charging and maintaining double books of accounts.
The chief justice said mills owners were aware of the fact that the commission was going to be constituted, and who would be its members, but no one raised objection at that time.
Makhdoom said no notification about the commission was published in the official gazette, which was a mandatory requirement.
He said there were a number of judgments of the apex court and foreign jurisdiction, which held that notifications should be published in the official gazette.
Justice Ijaz questioned: "is a notification necessary for the start of an inquiry?"
He said it was in the media that the government had constituted a commission to probe the sugar crisis. An inquiry was conducted by the commission, but when the report was published the notification became an issue.
The chief justice questioned if the court held that the commission was not in accordance with the procedure then what will happen?
"Then according to the settled law, the report cannot be relied upon by the statutory agencies and my client's reputation will not be damaged," he contended.
The court observed there was no issue of notification in the Panama and fake account cases; the JIT conducted inquiries and cases proceeded accordingly.
The counsel replied that it was a dangerous precedent.
Makhdoom contended that the report is in the nature of recommendations or opinion.
If the report makes allegations and gives findings, then it damages the reputation of his clients, he added.
He also argued that the government cannot do anything in disregard of the law.
Justice Ijazul Ahsan said the report had been prepared by experts and placed certain facts before the government, adding there was a hue and cry in the country over the increase in the sugar price.
He asked the counsel that the cabinet came to the conclusion that the regulatory bodies have to take action, "but now you [the counsel] want to quash everything and the regulators have to start from zero.
Makhdoom contended that the regulatory agencies have their own statutory procedures, therefore the citizens' rights are protected in the law. He said that the report is far more damaging to individuals.
Attorney General for Pakistan Khalid Jawed Khan said so far nothing has been done against any party.
If any action is taken, then mills owners have reasons to object to the findings, he added.
The AGP said that he has told the government that there should be no "media trial" and the functionaries must avoid making their views about the commission's report in the press.
Makhdoom said the IHC passed the order in a hurry, and did not wait for him to rebut the federation's stance. He said the sugar mills have filed an intra-court appeal against the single judge order in Islamabad High Court.
The case was adjourned until July 14.
Copyright Business Recorder, 2020