IN THE SUPREME COURT OF PAKISTAN 
(Appellate/Original Jurisdiction) 
 
PRESENT: 
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ 
MR. JUSTICE MUHAMMAD SAIR ALI  
MR. JUSTICE GHULAM RABBANI 
 
CIVIL PETITION FOR LEAVE TO APPEAL NO. 796 OF 2007 
& CMA NO. 4560 & 4561/2009 & CMA 116/2011 
[On appeal against the judgment 
dated 26.06.2007 passed by the 
High Court of Balochistan in Writ 
Petition No. 892 of 2006] 
 
Maulana Abdul Haq Baloch & 2 others. 
 
PETITIONERS 
VERSUS 
Government of Balochistan through  
Secretary Industries & Min Dev. & others.  
RESPONDENTS  
 
 
CRL. MISC. APPLICATION NO. 8/2011 IN CPLA 796/2007  
 
Ehsanullah Waqas MPA Punjab  
 
 
APPLICANT 
VERSUS 
Tethyan Copper Co. & others   
 
 
RESPONDENTS 
 
 
CONSTITUTION PETITION NO. 68 OF 2010  
 
Mr. Muhammad Tariq Asad, ASC 
 
 
PETITIONER 
VERSUS  
Federal Government through Federal Secretary, 
M/o Petroleum & Natural Resources,  
Islamabad & others. 
 
 
 
 
RESPONDENTS  
 
CONSTITUTION PETITION NO. 69 OF 2010  
& CRIMINAL ORIGINAL PETITION NO. 1 OF 2011  
 
Watan Party & another.  
 
 
 
PETITIONERS 
VERSUS 
Federation of Pakistan  
 
 
 
RESPONDENT  
 
 
CP.796/2007 etc 
Order dt. 25.05.2011. 
2 
 
CONSTITUTION PETITION NO. 1 OF 2011 
Qazi Sirajuddin Sanjrani & another  
 
PETITIONERS 
VERSUS 
Federal Government through Secretary 
Cabinet Division, Islamabad & others.  
 
RESPONDENTS  
 
 
CONSTITUTITON PETITION NO. 4/2011 
 
 
Senator Muhammad Azam Khan Swati etc.  
PETITIONERS  
VERSUS 
Federal Government through Secretary 
M/o Petroleum & Natural Resources, 
Islamabad, etc. 
 
 
 
 
 
RESPONDENTS 
 
 
HUMAN RIGHTS CASE NO. 53771-P/2010 
 
[Application by Kh. Ahmed Tariq Rahim, ASC]  
 
 
For the petitioners:  
 
Mr. Raza Kazim, Sr. ASC   
(CP 796/2007)  
 
 
Mr. Mahmood A. Sheikh, AOR  
 
Petitioner:   
 
 
Mr. Tariq Asad, ASC in person  
(Const P 68/2010) 
 
Petitioners:   
 
 
Barrister Zafarullah Khan, ASC 
(Const P 69/2010)  
  
(in person)  
 
 
  
For the petitioners: 
 
Nemo.  
(Const P 1/2011)   
  
 
For the petitioners: 
 
Mr. Tariq Asad, ASC 
(Const P 4/2011)  
 
Qari Abdul Rashid, ASC  
Syed Zafar Abbas Naqvi, AOR  
 
 
 
 
 
  
For the respondents:  
M/o Petroleum: 
 
 
Mr. Azhar Khan, Director 
   
Mr. Abdul Qadir, Director  
Mr. M. Iqbal, Director  
 
Govt. of Balochistan:   
Mr.Amanullah Kanrani, A.G. (Blo). 
Mr. Ahmer Bilal Soofi, ASC 
Mr. M.S. Khattak, AOR 
 
Balochistan Development 
Authority:  
 
 
Hadi Shakeel Ahmed, ASC.  
CP.796/2007 etc 
Order dt. 25.05.2011. 
3 
For respondent No. 6:   
Nemo.  
(Const P 68/2010)  
  
 
For respondent No. 7:   
Raja Muqsit Nawaz Khan, ASC 
(Const P 1/2011)  
 
  
For respondent No. 4:  
Mr. Khalid Anwar, Sr. ASC  
(TCC) in Const P 1/2011 
 
CP 796/2007. 
 
For respondent No.4:   
Fakhruddin G. Ebrahim, Sr. ASC  
TCC, Islamabad   
  
Mr. Mehr Khan Malik, AOR 
 
For respondents No.5 & 7: 
Barrister Sajid Zahid, ASC 
 
 
Antofagasta Plc London &  
Mr. Arshad Ali Chaudhry, AOR  
Barrick Gold Corp. Canada 
 
 
 
 
  
For respondent No. 6:   
Mr. Khalid Anwar, Sr. ASC 
(Muslim Lakhani)   
 
Mr. Mehr Khan Malik, AOR  
 
For respondent No.8: 
Mr. Sikander Bashir Mohmand, 
ASC 
Mr. Arshad Ali Chaudhry, AOR 
BHP Min. Expl. Islamabad 
  
 
 
 
 
 
  
For State Bank of Pakistan: 
Nemo.  
 
For the applicant:  
 
Malik Shakeelur Rehman, ASC   
(CMA 3680 & 3687/2010 & Syed Zafar Abbas Naqvi, AOR  
151/2011) 
 
For the applicant:  
 
Mr. M. Ikram Chaudhry, ASC  
(CMA 215/2011)  
 
For the applicant:   
 
Nemo.  
(CMA 324/2011)  
 
For the applicant:  
 
Mr. Saleem Khan, ASC   
(CMA 414/2011)  
 
 
 
 
 
 
Date of hearing:   
 
25.05.2011.   
 
.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. 
 
 
CP.796/2007 etc 
Order dt. 25.05.2011. 
4 
O R D E R 
 
 
 
IFTIKHAR MUHAMMAD CHAUHDYR, CJ. – Listed 
matters are pending adjudication in this Court. The subject matter 
of all the petitions is the right to the exploration and lease of the 
copper/gold mines etc in the area of Reko Diq, District Chaghai at 
Dalbandin in Balochistan Province of Pakistan. The jurisdiction of 
this Court under Article 185(3) of the Constitution has been 
invoked in Civil Petition No. 796 of 2007. Other Constitution 
Petitions and the miscellaneous applications have been filed 
under Article 184(3), seeking transparency and merit in the award 
of the mining lease.  
 
2. 
 
The uncontroverted facts that emerge from the 
concise statements, documents and submissions of the parties are 
that for the purpose of conducting exploration and development 
of mineral deposits of gold and copper in the agreed Exploration 
Area, in District Chagai of the Province of Balochistan, Pakistan, 
Balochistan Development Authority (BDA) on the approval of the 
Government of Balochistan (GOB), entered into CHAGAI HILLS 
EXPLORATION JOINT VENTURE AGREEMENT dated 29th July, 
1993 
(CHEJVA) 
with 
BHP 
MINERALS 
INTERNATIONAL 
EXPLORATION INC (BHP); a foreign company. BDA was to 
provide administrative support, necessary consents, approvals, 
NOCs, security clearances etc etc and relaxation of certain Rules 
of the Balochistan Mining Concession Rules, 1970. BHP was to 
CP.796/2007 etc 
Order dt. 25.05.2011. 
5 
undertake the work and entire cost of the exploration and 
infrastructure etc thereof. The respective Percentage Interests were 
25% for BDA and 75% for BHP. The Joint Venture was granted 
ten Prospecting Licenses (P.Ls) in 1996 for an area of 1000 Sq. 
Km. BHP carried out reconnaissance and detailed work up to 
1999 in these areas and reported large deposits of Copper, Gold 
etc at Reko-Diq.  The Joint Venture thereafter surrendered 8-P.L’s 
and retained Two P.Ls of Reko-Diq. After the new National 
Mineral Policy and the enactment of Balochistan Mineral Rules, 
2002, a consolidated Exploration License No.EL-5 was granted to 
the Joint Venture for a defined area of Reko-Diq in 2002 for three 
years. On two renewals thereof, EL-5 was to remain valid upto 
18th February, 2011. 
 
3. 
 
During the extended period of EL-5, ADDENDUM 
NO.1 to the CHEJVA was signed between BDA/GOB and BHP, 
whereby inter-alia, Government of Balochistan became Joint 
Venture partner in CHEJVA with BDA as its Agent. ADDENDUM 
also permitted transfer or assignment of a party’s interests in 
CHEJWA wholly or partly. Whereon through intermediary 
corporate instrumentalities, share interest of BHP in CHEJWA was 
routed and rerouted via Mincor Resources N.L/Tethyan Copper 
Company 
Ltd 
of 
Australia 
(TCC) 
per 
the 
OPTION 
AGREEMENT/ALLIANCE AGREEMENT. And finally under the 
NOVATION AGREEMENT OF 2006 JVA was novated to 
CP.796/2007 etc 
Order dt. 25.05.2011. 
6 
substitute TCC for BHP as a full party with Deed of Waiver and 
Consent of GOB for such transfer. BHP was thus replaced by TCC 
in the Joint Venture which became TCC-BDA/GOB GHAGAI 
HILLS JOINT VENTURE. The respective Percentage Interests were 
restated for GOB (25%) and TCC (75%). Antofagasta of Chile and 
Barrick Gold Corporation of Canada; stated to be amongst the 
largest companies prospecting for gold and copper in the world, 
then stepped in and jointly purchased TCC’s entire 75% 
Percentage Interest in the Joint Venture. Antofagasta and Barrick 
Gold; on thus acquiring TCC, carried out the drilling and 
exploration programme at EL-5 area of Reko-Diq at a claimed 
expense of millions of US $, with no financial cost burden on 
GOB/BDA.  
 
4. 
 
In 2006, C.P.No. 892/06 was filed by Maulana Abdul 
Haq etc in the Balochistan High Court challenging legality of 
CHEJVA, relaxation of 1970 Mining Rules by GOB and BHP’s 
lukewarm exploration activity. The Government of Balochistan 
denied illegality of CHEJVA and its alleged contrariness to public 
interest. This Constitutional Petition was dismissed by the High 
Court of Balochistan through the impugned judgment dated 
26.06.2007. The relaxation of 1970 Rules, acts of GOB/BDA and 
CHEJVA were held to be legal. Hence CPLA No. 796 of 2007 in 
this Court against the above judgment.  
 
CP.796/2007 etc 
Order dt. 25.05.2011. 
7 
5. 
 
During the pendency of the leave petition, a major 
development took place. Exploration work including drilling was 
completed by TCC within the stipulated period. Substantial 
discoveries of gold and copper etc were made. The license period 
expired on 18th of February, 2011. TCC submitted to GOB 
Feasibility Study Report; a study to ascertain the commercial 
feasibility of the mining of the resource, treatment of ore obtained 
in mining operation, expected optimum return, life of the mine, 
mineable reserves and grade and the results of geological and 
geophysical investigations etc. The Feasibility Study is admittedly 
under examination of GOB.  
 
6. 
 
The above mentioned feasibility report was offered by 
the former Advocate General i.e. Mr. Salahuddin Mangel to be 
exclusively shared with this Court though claiming the same to be 
sensitive, confidential, highly technical and ordinarily beyond the 
Court’s domain.   
 
7. 
 
After the above discovery by TCC, the present 
litigation attracted general focus and also publicity. Various 
Petitioners also filed their respective petitions alleging absence of 
fairness, transparency, and merit in the grant of licence(s) to 
BHP/TCC and also alleged possible risks to the vital interests of 
Balochistan and Pakistan in the grant of mining lease to TCC. 
Before the High Court, GOB had supported the legality of 
CHEJVA but opted to take a different stand before this Court. On 
CP.796/2007 etc 
Order dt. 25.05.2011. 
8 
the other hand, BHP and TCC, respectively argued to support 
CHEJVA, relaxation of 1970 Rules and the grant of licences. TCC 
also asserted its right under CHEJVA and 2002 Rules to be 
considerated for and be granted the mining lease with or without 
the joint venture partner.  
 
8. 
 
During the hearing of the matter, TCC formally 
applied to the Government of Balochistan within the visualized 
period for the grant of the mining lease under 2002 Rules which 
statedly recognized the licensee’s entitlement to apply for a 
mining lease on success of the licensee in the exploration,.  
 
9. 
 
No order has yet been passed on this application by 
the Government of Balochistan because of the pendency of the 
present petitions and the restraining order which had been passed 
by this Court on 03.02.2011 in the following terms:-  
 
“In 
view 
of 
importance 
of 
the 
case, 
………………………… we consider it appropriate at 
this stage to know the reaction of the respondents 
through their learned Advocates as to whether it 
would not be appropriate that the Government of 
Balochistan through its competent authority may 
postpone its decision of granting mining lease or 
otherwise to the Companies/claimants of holders 
of EL-5 to wait for the result/outcome of these 
proceedings.  
 
CP.796/2007 etc 
Order dt. 25.05.2011. 
9 
2.    
Mr. Khalid Anwar, Sr. ASC has stated that 
as far as the parties interested in obtaining the 
mining lease are concerned, they have only to 
submit an application to the Government of 
Balochistan before 19.02.2011 and then it is for 
the Government of Balochistan through its 
competent authority to take the decision to 
consider the request or whatever position may be, 
therefore, he and other learned Advocates 
associated with him, M/S Abdul Hafeez Pirzada, 
Fakhruddin G. Ibrahim and Barrister Sajid Zahid 
have no objection if order is passed to the effect 
that the Government of Balochistan may postpone 
decision on the application(s) submitted for 
mining lease till the decision/outcome of the 
instant proceedings without prejudice to their 
legal rights. Dr. Salahuddin Mengal, learned 
Advocate General, Balochistan has stated that the 
Government of Balochistan has instructed him to 
make the statement that so far it has not received 
any application for grant of mining lease from any 
of the companies. However, it would not dispose 
of the application, if submitted until the decision 
of this Court subject to all just exceptions. Similar 
stand has been taken by Ch. Mazhar Ali, learned 
Deputy Attorney General, who is representing the 
Government of Pakistan.  
 
3.  
…………………………………………………. in 
view of the statement so made by the learned 
counsel for the parties, it is declared that no 
decision shall be taken by the Government of 
Balochistan in respect of the grant of the mining 
CP.796/2007 etc 
Order dt. 25.05.2011. 
10 
lease on the application submitted by any of the 
parties without prejudice to their legal rights till the 
decision of the instant proceedings”. 
 
10. 
 
The case was thereafter heard on 15.02.2011, 
05.04.2011, 24.04.2011 and 25.05.2011.  
 
11. 
 
Feasibility Study having been submitted, TCC is 
asserting its entitlement to obtain a decision from BOD on its 
application for the grant of mining lease. The claim has been 
contested by the petitioners. GOB while persisting with its 
privilege to the detailed scrutiny of Feasibility Report, reiterates its 
competence under 2002 Rules to decide upon TCC’s application. 
We also note that by C.M.A.No. 112 of 2011 Government of 
Balochistan through Secretary Mines and Minerals Development 
Department had importantly made a prayer that we would like to 
reproduce hereunder for GOB’s stand and emphasis therein spelt 
out:- 
“Since the feasibility study report has been 
submitted 
by 
respondent 
No.4 
for 
consideration, the review of which is under 
process by the respondent No.1, and since the 
mineral agreement is yet to be signed between 
respondent No.1 & 4 wherein details and 
modalities 
will 
be 
decided 
strictly 
in 
accordance with the spirit of B.M.R. 2002 and 
CP.796/2007 etc 
Order dt. 25.05.2011. 
11 
incorporated in the mineral agreement to be 
executed, therefore the instant petition for leave 
to appeal filed by the petitioners may kindly be 
disposed off”.  
 
12. 
 
In view of the above and on hearing the learned 
counsel for the parties at length, we inquired from the learned 
counsel for the petitioners, the respondents, the interveners, 
GOB/BDA and the learned Attorney General for Pakistan as to 
whether the restraining order dated 3rd February, 2011 be 
vacated. All of them responded affirmatively.  
 
13. 
 
We are in agreement with the learned counsel for the 
parties and are of the opinion that at this stage it will not be 
proper for us to inquire into the Feasibility Study Report or to rule 
upon the entitlement of TCC to the mining lease. The reason, is 
that under the governing law and 2002 Rules, this matter falls 
exclusively within the domain of the Government of Balochistan 
and the Government is also seized of the Feasibility Report as 
well as the application of TCC. All the parties have expressly 
admitted that the Government of Balochistan being the competent 
authority in this matter, should in due discharge of its obligation, 
make a decision on TCC’s application impartially, objectively and 
in accordance with law and thus accept its legal responsibility 
thereof.  In this view of the matter, it will not be proper for us to 
CP.796/2007 etc 
Order dt. 25.05.2011. 
12 
pre-empt the decision of the Government of Balochistan by 
entering into the merits of the case at this juncture. 
 
14. 
 
As such accepting the consensus of all the learned 
counsel and for the reasons above recorded. The restraining order 
dated 03.2.2011 is recalled. The competent authority in the 
Government of Balochistan shall proceed to expeditiously decide 
TCC’s application for the grant of mining lease transparently and 
fairly in accordance with the law and the rules. In so doing the 
Government of Balochistan shall not be influenced in any manner 
whatsoever by the pendency of these proceedings or by the 
orders therein passed by this Court. Upon decision of the matter 
by the Government of Balochistan, the learned Advocate General 
of the Province shall inform the Registrar of this Court forthwith. 
The petitions shall remain pending on the file of this Court until 
the decision of the application by the competent authority.  
 
 
IFTIKHAR MUHAMMAD CHAUDHRY, CJ 
 
 
 
MUHAMMAD SAIR ALI, J 
 
 
 
GHULAM RABBANI, J 
 
ISLAMABAD.  
25.05.2011.  
“APPROVED FOR REPORTING”   
