Summary: Constitution of Pakistan, 1973—Arts. 141, 142(a), 142(c), 143, 175F(3), 185(3)—Constitution (Eighteenth Amendment) Act, 2010—Constitution (Twenty-Seventh Amendment) Act, 2025—Excise Duty on Minerals (Labour Welfare) Act, 1967—S. 3—Balochistan Finance Act, 2020—S. 7—Legislative competence—Provincial autonomy—Labour welfare—Excise duty on minerals—Doctrine of pith and substance—Doctrine of double aspect legislation—Cooperative federalism—The Federal Constitutional Court considered whether the amendment made through S. 7 of the Balochistan Finance Act, 2020 to S. 3 of the Excise Duty on Minerals (Labour Welfare) Act, 1967, enhancing the rate of duty on minerals, was beyond the legislative competence of the Provincial Assembly of Balochistan on the ground that duties of excise fall within the exclusive federal domain under Entry 44 of the Federal Legislative List. The Court held that, after the Eighteenth Amendment, legislative power is distributed such that the Federation legislates only on subjects enumerated in the Federal Legislative List, while residual subjects vest exclusively in the Provinces; labour welfare, not being part of the Federal Legislative List, is therefore a provincial subject. The Court further held that the 1967 Act, when read as a whole and especially in light of its preamble, was enacted not merely to impose a fiscal levy, but to finance measures for promoting the welfare of labour employed in the mining industry. Accordingly, although the statutory mechanism employed was the levy and collection of excise duty, the dominant constitutional purpose and essential character of the legislation lay in labour welfare, which squarely fell within provincial competence. The amendment made by the Province was, therefore, not unconstitutional merely because it touched upon a fiscal instrument also known to federal legislative entries. Constitutional law—Doctrine of pith and substance—Incidental encroachment—Validity of legislation—The Court reaffirmed that where legislative spheres appear to overlap, the true nature and character of the impugned law must be determined through the doctrine of pith and substance. A law does not become invalid merely because it incidentally trenches upon a field otherwise assigned to another legislature; only a substantial encroachment disturbing the constitutional distribution of powers may render it ultra vires. Applying that doctrine, the Court held that the impugned provincial amendment did not amount to an impermissible invasion of federal legislative authority, because its real object was to support labour welfare in the mining industry and the enhancement of the levy was only a means adopted to advance that constitutionally legitimate provincial purpose. Constitutional law—Doctrine of double aspect legislation—Same subject viewed from different constitutional aspects—The Court also invoked the doctrine of double aspect legislation and explained that a single subject may, in one aspect and for one purpose, fall within federal competence, and in another aspect and for another purpose, fall within provincial competence. Thus, while the levy of excise duty as a fiscal subject may ordinarily fall within the federal domain, the same measure, when examined from the standpoint of labour welfare and public interest in relation to mine workers, may validly operate within the provincial sphere. In such circumstances, both legislative aspects may co-exist in constitutional harmony, and the Court should prefer an interpretation that sustains rather than destroys legislation enacted by democratically elected bodies. Federalism—Post-Eighteenth Amendment constitutional structure—Cooperative federalism—The Court emphasized that the post-Eighteenth Amendment constitutional arrangement broadens provincial autonomy and reflects a commitment to participatory and cooperative federalism. The Federation and Provinces are not to be viewed as functioning in isolated compartments; rather, constitutional interpretation should favour harmonious operation of their respective powers. A rigid or formalistic reading that disregards the practical interaction of fiscal measures and welfare objectives would be inconsistent with the constitutional design. The impugned amendment, therefore, was held to represent a lawful and harmonious exercise of legislative power in furtherance of a legitimate provincial objective. Case references—Prafulla v. Bank of Commerce (AIR 1947 PC 28); Multiple Access v. McCutcheon (1982 CanLII 55 (SCC)); Sui Northern Gas Pipelines v. S.K. Pvt Limited (2025 SCMR 570); DG Khan Cement v. The Province of Punjab (2014 PTD 478); Pakistan College of Law v. University of the Punjab (W.P. No. 45178 of 2017, Lahore High Court). Petition dismissed—Leave refused—The Federal Constitutional Court held that the amendment introduced by S. 7 of the Balochistan Finance Act, 2020 did not fall outside the legislative competence of the Provincial Assembly of Balochistan. The petition was accordingly dismissed, leave was refused, and no order as to costs was made.

Summary: Constitution of Pakistan, 1973--- ----Arts. 8, 10A, 175F, 199, 202A & Third Schedule---Income Tax Ordinance, 2001, S. 109-A---Constitution (Twenty-Sixth Amendment) Act, 2024---Constitution (Twenty-Seventh Amendment) Act, 2025---Challenge to vires of statutory provision---Jurisdiction of Constitutional Bench vis-à-vis Regular Bench under erstwhile Art. 202A---Dominant object theory---Ad-interim order suspending operation of law---Maintainability of challenge thereto---Petitioner, after availing 2018 Amnesty Scheme and declaring ownership of foreign company, was issued notice under S.109-A, Income Tax Ordinance, 2001---He challenged both vires of said provision and the notice issued thereunder before Sindh High Court, which initially granted ad-interim restraint against passing of any final adverse order---Later, Constitutional Bench of High Court recalled said interim order on ground that courts ought not suspend operation of law, particularly in revenue matters---Before Federal Constitutional Court, principal question was whether Constitutional Bench, under erstwhile Art. 202A, possessed jurisdiction to entertain matter whose dominant relief was declaration that impugned law was ultra vires---Held, challenge to vires of statute, in substance, sought relief under Art.199(1)(a)(ii), namely declaration that law was “without lawful authority” and “of no legal effect”, and not merely a direction under Art.199(1)(a)(i) or enforcement of fundamental rights simpliciter---Under pre-27th Amendment regime, such matter did not fall within exclusive jurisdiction of Constitutional Bench---Only forum competent to grant final relief could competently grant interim relief; therefore, Constitutional Bench lacked jurisdiction from the outset and its order recalling the earlier ad-interim order was without jurisdiction---Court further held that ad-interim order which had effect of suspending operation of law could validly be brought in challenge before this Court, as until law is finally declared ultra vires it must ordinarily continue to operate---However, in view of subsequent constitutional amendment, exclusive writ jurisdiction now vests in Constitutional Benches and similar matters would henceforth lie before such Benches---Matter was remanded to Sindh High Court for fresh decision by competent Bench in accordance with law. Kh. Muhammad Fazil v. Mumtaz Munnawar Khan Niazi (deceased) through legal heirs (2024 SCMR 1059); Attock Cement case (2024 SHC 1302); Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416); Rahim Shah v. Chief Election Commissioner (PLD 1973 SC 24); Federation of Pakistan v. Aitzaz Ahsan (PLD 1989 SC 61); Marbury v. Madison (5 U.S. 137 (1803)) rel. (a) Constitution of Pakistan, 1973---Art. 202A (as it stood before Twenty-Seventh Amendment)---Jurisdiction of Constitutional Benches of High Courts---Scope--- Under erstwhile Art.202A, Constitutional Benches were not vested with entire writ jurisdiction under Art.199 but only with limited classes of matters specified therein---Therefore, question whether matter was to be heard by Constitutional Bench or Regular Bench had to be determined by reference to true nature of relief claimed. (b) Constitutional jurisdiction---Dominant object theory---Application--- For determining proper forum under former Art.202A, Court must examine pleadings, prayer clause and ultimate effect of relief sought so as to ascertain dominant or substantive relief, while treating merely consequential relief as ancillary---Such exercise is judicial in nature and not dependent upon drafting alone. (c) Challenge to vires of statute---Nature of relief--- Where petitioner assails validity of statutory provision and seeks declaration that same is contrary to Constitution, dominant relief is one under Art.199(1)(a)(ii), namely that impugned law is “without lawful authority” and “of no legal effect”---Such relief is, in substance, in nature of certiorari / declaratory judicial review, even if consequential directions are also sought. (d) High Courts---Power of judicial review---Inherent constitutional authority--- Power of High Court to strike down law ultra vires Constitution is inherent in constitutional scheme and flows from its role as guardian of Constitution, read with judicial oath and constitutional supremacy---Such authority is not negated merely because relief of declaration is not textually set out in identical terms in every clause of Art.199. (e) Interim relief---Competence of forum--- Interim relief may only be granted by forum competent to render final decision on lis---Consequently, where Constitutional Bench lacked jurisdiction to decide vires challenge under former Art.202A, it also lacked competence to pass or recall interim orders in relation thereto. (f) Ad-interim order suspending operation of law---Propriety and challenge thereto--- As a general constitutional principle, until a law is finally declared ultra vires, it should ordinarily continue to operate in normal course---An interim order having effect of suspending operation of law, especially in revenue matters, is therefore open to challenge before this Court and cannot be shielded merely because it is ad-interim in form. (g) Twenty-Seventh Constitutional Amendment---Effect--- After enactment of Constitution (Twenty-Seventh Amendment) Act, 2025, exclusive writ jurisdiction under Art.199 now lies with Constitutional Benches of High Courts, and Regular Benches no longer possess such jurisdiction---Accordingly, a case of like nature would now fall to be heard by Constitutional Bench. (h) Remand---When warranted--- Where impugned order has been passed by a Bench lacking jurisdiction, proper course is to set aside such order and remit matter for fresh adjudication by competent Bench in accordance with law. Petition allowed; impugned order set aside; matter remanded for decision by competent Bench of Sindh High Court in accordance with law.