IN THE SUPREME COURT OF PAKISTAN 
              (Original Jurisdiction) 
 
 
 
PRESENT: 
 
 
MR. JUSTICE NASIR-UL-MULK 
 
 
MR. JUSTICE ASIF SAEED KHAN KHOSA  
              MR. JUSTICE SH. AZMAT SAEED  
 
 
 
 
 
 
 
CONSTITUTIONAL PETITION NO.91 OF 2011 & CMA 
NO.2624 OF 2011 AND CONSTITUTIONAL PETITION 
NO.57 OF 2012. 
 
CP.No.91/2011 &  
 
Raja Mujahid Muzaffar Vs. 
CMA No.2624/2011:  
Federation of Pakistan and 
 
 
 
 
 
 
others. 
 
CP.No.57/2012: 
Babar 
Sattar 
Vs. 
Federation of Pakistan, etc. 
  ********** 
For the petitioner:  
Mr. Athar Minallah, ASC 
(in CP.91/2011) 
 
For the petitioner:  
Mr. Babar Sattar, Advocate, 
(in CP.57/2012)  
 
In person 
 
For the Federation/ 
Mr. Irfan Qadir, AGP 
State: 
 
 
 
Mr. Babar Ali, DAG 
Mr. M. S. Khattak, AOR 
Raja Abdul Ghafoor, AOR 
 
For the NADRA: 
 
Mr. Raza Kazim, Sr. ASC 
 
 
 
 
 
Mr. Mehmood A. Sheikh, AOR 
 
 
 
 
 
Dr. Tahir Akram, 
 
 
 
 
 
Chief Administrative Officer 
 
For M/s Hauwei  
Mr. Afnan Karim Kundi, ASC  
Technology Company:  
Mr. Mehmood A. Sheikh, AOR 
 
Dates of hearing:  
25, 26, 28 & 29.06.2012. 
 
 
JUDGMENT 
 
 
 
SH. AZMAT SAEED, J.- This judgment will 
dispose of Constitutional Petition No.91 of 2011 & 
CMA No.2624 of 2011 and Constitutional Petition 
Const.P.91/2011, etc. 
2 
No.57 of 2012, as common questions of facts and law 
are involved therein. 
2. 
 
The instant constitutional petitions have 
been filed to call into question the award of the 
Contract dated 29.12.2009. It appears that a Supply 
and Implementation Contract was executed inter-se 
the Government of Pakistan through the Secretary, 
Ministry of Interior and M/s Hauwei Technology 
Company 
Limited 
(respondent 
No.8). 
The 
said 
Contract 
was 
for 
the 
procurement 
of 
goods, 
equipment 
and 
services 
for 
the 
purpose 
of 
establishing a Command Center and Network, initially 
at Islamabad for the total cost of US$ 124,719,018. 
The said Project is referred to as Islamabad Safe City 
Project. 
3. 
 
The essential factual background of the lis at 
hand, which can be gleaned from the record made 
available by the parties, is that apparently in the 
summer of 2009, respondent-M/s Hauwei Technology 
Company Limited a Chinese Company approached the 
respondent-National 
Database 
and 
Registration 
Authority (NADRA) offering to implement and execute 
Const.P.91/2011, etc. 
3 
a comprehensive surveillance and monitoring system 
for security primarily at Islamabad i.e. the Safe City 
Project in question.  Respondent-NADRA claims to 
have informed its parent Ministry i.e. Ministry of 
Interior regarding the offer made by respondent-M/s 
Hauwei Technology Company Limited, whereafter a 
meeting was convened, chaired by the Secretary, 
Ministry of Interior on 29.08.2009 of the various 
governmental stakeholders concerned, wherein it was 
decided that a ground-check may be carried out 
involving the end user. In the meanwhile, it was 
decided that a Memorandum of Understanding (MOU) 
be executed inter-se NADRA and M/s Hauwei 
Technology Company Limited with the Ministry of 
Interior 
not 
being 
made 
responsible 
for 
any 
contractual obligations. It was also decided that the 
said MOU may be presented to the Ministry of Law & 
Justice Division for their formal vetting. 
4. 
 
In the above backdrop, a draft MOU was 
prepared 
and 
exchanged 
between 
the 
parties, 
however, such MOU does not appear to have been 
formally executed. Subsequently, vide a letter dated 
Const.P.91/2011, etc. 
4 
01.10.2009, the Chairman-NADRA indicated to the 
Secretary, Ministry of Interior of the possibility of 
obtaining a long term concessional loan from the 
Chinese Government/the Export-Import Bank of 
China whereupon Economic Affairs Division was 
activated by the Ministry of Interior inter alia for the 
allocation of the concessional loan from China. 
Various 
communications 
in 
this 
behalf 
were 
exchanged and meetings held, including of the Central 
Development Working Party (CDWP) on the 19th of 
November, 2009 and 19th of December, 2009. In the 
latter meeting, it was inter alia decided that: 
“i. 
The Interior Division will submit a 
summary to the Prime Minister for 
seeking 
decision 
regarding 
sponsoring and execution of the said 
project as the Prime Minister has 
already issued a directive to Ministry 
of 
Information 
Technology 
for 
execution of a similar project in 10 
to 12 cities. 
 
ii. 
Procurement of equipments should 
be 
done 
through 
international 
competitive 
bidding 
(ICB) 
as 
envisaged in the PPRA’s rules. In 
case of a tide loan, the competition 
should be within atleast Chinese 
Companies for Chinese equipment. If 
not possible, the Interior Division 
should seek special exemption from 
the Prime Minister. 
 
 
 
iii. 
………....………………………..………..  
 
Const.P.91/2011, etc. 
5 
iv. 
A feasibility study of the project and 
a quality assurance certificate of 
proposed 
equipments 
must 
be 
attached with modified PC-I.” 
 
5. 
 
Subsequently, a summery was submitted to 
the Prime Minister by the Secretary, M/o Interior, 
seeking approval for inter alia the following: 
 
“i. 
The Ministry of Interior be approved 
as sponsor of this security related 
project instead of Ministry of Science 
& Technology and to execute it. The 
Ministry of Information Technology 
be required to extend due technical 
support to Ministry of Interior in 
expeditious 
completion 
of 
the 
project. 
 
ii. 
Exemption of PPRA’s Rules 2004 
regarding international competitive 
bidding (Annex-B). 
 
iii. 
The sponsoring agencies i.e. Ministry 
of 
Interior 
through 
(NADRA) 
to 
negotiate 
prices 
with 
Hawai 
Company of China a reputed firm in 
manufacturing 
and 
supply 
of 
equipments/gadgets at lowest rates. 
 
iv. 
Approval to enter into negotiation 
with concerned Chinese authorities 
for extension of loan to finance “Safe 
City” Project for Islamabad and 
Peshawar valuing US $ 124.7 million 
and US $ 110 million respectively.” 
 
6. 
 
The 
Ministry 
of 
Finance, 
vide 
its 
communication, dated 23rd of December, 2009, made 
the following proposals: 
 
“9. 
 
The proposals at para 7 (ii) & 
(iv) relate to the Finance Division. 
 
Const.P.91/2011, etc. 
6 
 
10.  
Regarding para 7 (ii) relating to 
exemption from PPRA Rules, 2004, since 
the project is yet to be approved by the 
competent forum, a decision on exemption 
or otherwise from PPRA Rules may be 
taken after approval of the project, in the 
prescribed manner. 
 
 
11.  
Regarding para 7 (iv) relating to 
entering into negotiations with Chinese 
authorities for extending loan to finance 
the project, the proposal is supported as it 
would save valuable time to organize 
financing for the project.” 
 
7. 
 
Approval 
was 
accorded 
by 
the 
Prime 
Minister, as is mentioned in the letter, dated 24th of 
December, 2009, in the following terms: 
 
“12.  
The Prime Minister has been 
pleased to approve the recommendations 
of the Finance Division contained in paras 
10-11 of the Summary. 
 
 
13.  
The Prime Minister has further 
desired that the Ministry of Information 
Technology may be kept on board on all 
issues related to this project and the 
formal approval of the project may also be 
obtained 
from 
the 
competent 
authority/Cabinet, 
as 
per 
prescribed 
procedure.” 
 
8. 
 
It appears that thereafter the Contract in 
dispute was executed on 29.12.2009. 
9. 
 
It appears that contemporaneously, another 
project with more or less the same objective was being 
sponsored by Ministry of Information Technology with 
the involvement of another Chinese Company. The 
Const.P.91/2011, etc. 
7 
said Project was referred to as GOTA to which 
reference has been made in the Minutes of Meeting of 
the CDWP, dated 19.12.2010. It appears from the 
record that the Ministry of Interior and the Ministry of 
Information Technology were canvassing for the 
respective projects sponsored by them. Both the 
Projects i.e. Islamabad Safe City Project and GOTA 
were competitive and obviously overlapping and only 
one of the two projects could go through. Apparently, 
the matter was brought to the notice of the then Prime 
Minister, who chaired a meeting in this behalf. It 
appears that in order to evaluate the two projects a 
Technical Committee was formed.  
10  
The Technical Committee formed a Sub 
Committee. The Sub Committee held its meeting on 
26.03.2010, the minutes whereof are placed on the 
record in CP.No.91 of 2011. In the said Minutes with 
reference to the cost of the Project, it was observed, as 
follows: 
“As far as the cost of equipment is 
concerned the cost of most equipment 
mentioned in the PC-1 is almost three 
times the cost of comparable equipment 
available in the market. (NADRA rep, are 
not a party to this comment). It is pointed 
Const.P.91/2011, etc. 
8 
out that all the equipment could not be 
companied because of their providing 
nature 
and 
absence 
of 
detailed 
specifications. The cost of Shell Software 
quoted was also higher in the same range 
(1:3) and it was informed that the vendor 
had quoted the Chinese prices. Also the 
cost of proprietary software could not be 
determined and assumed to be similarly 
highly priced.  In addition, the cost of 
customization, 
integration, 
and 
consultancy are included as 10.5% of total 
cost of the project which is quite high.”  
 
The 
said 
Committee 
made 
the 
following 
recommendations: 
“5. 
It is therefore recommended that we 
may indicate our requirements in the 
shape of a Request for Proposal (RFP) 
providing details of our requirements of a 
pro-active and effective “Security System” 
along with a “Surveillance” and “Traffic 
Management System” and indicating our 
performance requirements e.g. response 
times. The vendors may also be provided 
with design parameters _____________ (e.g. 
the nos. of exit/entry points, the types of 
detectors, 
cameras 
or 
various 
types, 
vehicle 
RFID 
readers, 
fingerprint, 
scanners etc. we wish to install) and the 
details of telecom infrastructure already 
available in Islamabad and these details 
and specifications were required by the 
sub-committee of Technical Committee 
have been included in a specimen RFP 
(copy enclosed) which is proposed to be 
handed over to the vendors for proposing 
an optimum solution. A PC-1 has also 
been prepared (copy enclosed as Annex-B) 
based upon the realistic costs of various 
items included in the PC-1. The total cost 
of PC-1 is rupee equivalent of USD 78 
million Based upon the lowest bid. PC-1 
may 
be 
provided 
to 
the 
Planning 
Commission for approval.” 
 
Const.P.91/2011, etc. 
9 
11.  
Pursuant to the said meeting, a note was put 
up to the Prime Minister of Pakistan by the Deputy 
Chairman  of the Planning Commission, copy whereof 
is available with the paper book of CP.No.91 of 2011, 
wherein, it was observed inter alia as follows: 
“v. 
The project will be executed as a 
pilot project in Islamabad or in any city to 
be identified by the Ministry of Interior. 
After 
its 
successful 
implementation, 
similar projects will be implemented in 
other important cities of the country 
benefiting from the lessons learnt. 
 
x. 
Ideally, the work should have been 
done after the proper feasibility study, but 
in view of the 
urgency 
of security 
requirements, the work already carried 
out by the Ministry of Interior is proposed 
to be accepted.”  
 
The final recommendations were made as under: 
“xi. Final recommendation: 
 
a. 
Ministry 
of 
Interior 
may 
indicate their requirements 
in the shape of a Request for 
Proposal 
(RFP) 
providing 
details for a pro-active and 
effective “Security System” 
along with a “Surveillance” 
and 
“Traffic 
Management 
System” 
indicating 
performance 
requirements 
e.g. 
response 
times 
of 
computing 
equipment 
and 
resolution of cameras etc. 
 
b. 
The vendors may also be 
provided 
with 
design 
parameters 
along 
with 
generic 
specifications 
(e.g. 
the nos. of exit/entry points, 
the 
types 
of 
detectors, 
cameras of various types, 
Const.P.91/2011, etc. 
10 
vehicle 
RFID 
readers, 
fingerprint 
scanners, 
etc.) 
and the details of telecom 
infrastructure 
already 
available in Islamabad. 
 
c. 
All these details and the 
recommendations 
of 
the 
Technical Committee may be 
included in a RFP which is 
proposed to be handed over 
to the vendors for proposing 
an optimum solution. 
 
d. 
Based 
upon 
the 
above 
recommendations a revised 
PC-1 may be prepared by the 
Ministry of Interior.”  
 
12.  
On 07.06.2010, a Summary was prepared by 
the Ministry of Interior for the Prime Minister of 
Pakistan regarding the said Project, which reads as 
follows: 
“Prime Minister was pleased to chair 
two presentations regarding the above 
subject. Ministry of Interior’s presentation 
dealt with “Safe City Project” and Ministry 
of Information & Technology explained the 
GOTA Project. The Prime Minister was 
pleased to constitute a Committee headed 
by 
Deputy 
Chairman 
Planning 
Commission with Secretary Ministry of IT, 
Secretary Finance and Secretary Interior 
as members, to look into the possibility of 
integration and rationalization of the two 
projects (Annex-A). Deputy Chairman, 
Planning Commission vide P&D Division’s 
U.O. No.3(101) ICT/PC/2010 dated 15th 
April, 2010 (Copy enclosed as Annexed-B) 
has submitted the recommendations of 
the committee to the Prime Minister. In 
the light of the said recommendations, 
NADRA has improved the project proposal 
with 
proactive 
and 
effective 
security 
system alongwith a surveillance and 
Const.P.91/2011, etc. 
11 
traffic management system based on 
performance requirements.  
 
2. 
NADRA is of the view that the 
technically approved solution with afore-
mentioned 
features, 
offered 
by 
M/s 
Huawei Technologies Co. China, is of 
propriety nature. The Company has a vast 
experience of installing such systems in 
China and a number of other countries. 
However, 
the 
Planning 
Commission 
Committee 
has 
advised 
Ministry 
of 
Interior to prepare a new PC-I and a 
request for proposal (RFP) which should 
be based on generic specifications for 
greater transparency.  
 
3. 
NADRA as project executing agency 
has shown reservations on this approach. 
It was explained to the Committee that the 
Safe City Project is not merely a purchase 
of equipment and its assembly, it also 
envisages 
integration 
of 
various 
subsystems on a unified platform. NADRA 
is of the view that project components 
acquired through generic specifications 
would be hard to integrate and there were 
high chances of integration failure. It is 
also apprehended that preparation of new 
PC-I would delay the project as there was 
no 
assurance 
of 
foreign 
funding, 
particularly of Chinese concessional loan, 
for a new PC-I based on the generic 
specifications. 
 
4. 
It is a recognized fact that complex 
security projects worldwide are mostly 
awarded through direct contracting. This 
is also permissible under PPRA Rules, 
2004. Open tendering through generic 
specifications is preferable as long as it 
does not put the project itself in jeopardy. 
In the present case, this option may lead 
to technical difficulties and delays. 
 
5. 
Ministry 
of 
Interior 
has 
been 
endeavouring 
to 
install 
safe 
city 
technology for the past more than three 
years, without success, mainly due to non 
availability 
of 
funds. 
The 
Chinese 
Const.P.91/2011, etc. 
12 
assurance of availability of concessional 
loan for security related projects has led 
to the formulation of safe city Islamabad 
and Peshawar projects. The real cost of 
safe city Islamabad project expressed in 
Planning Commission’s standard criterion 
i.e. Net Present Value (NPV) terms is 
competitive prices @ $ 72 million, instead 
of the nominal amount of $ 124.7 million. 
(Detailed 
calculations 
are 
attached) 
(Annex-C).  
 
6. 
Central Development Working Party 
(CDWP) in its meeting on 19th November, 
2009 had supported to arrange financing 
for the propriety solution proposed in the 
PC-I. 
Ministry 
of 
Interior 
on 
the 
recommendation 
of 
the 
CDWP 
and 
Finance Division was authorized by the 
Prime 
Minister 
to 
raise 
Chinese 
concessional financing. Proposals were 
accordingly submitted to the Chinese 
authorities. 
Ministry 
of 
Commerce, 
Government 
of 
China 
has 
formally 
recommended for inclusion of the project 
in 
the 
list 
of 
Pak 
China 
5 
years 
development program. This indicates that 
the load request is favourably being 
considered. 
 
7. 
In view of the forgoing, approval of 
Prime Minister is solicited: 
 
a. 
To 
implement 
Safe 
City 
Islamabad 
and 
Peshawar 
Projects 
through 
Huawei 
Technology Co. Solution for 
which Chinese concessional 
financing is being arranged, 
and  
 
b. 
To permit direct contracting 
with M/s Huawei Technology 
Co. in terms of Rule 42 (c)(v) 
read with Rule 2 (g) of PPRA 
Rules 2004. (Annex-D). 
 
c. 
To 
authorize 
Planning 
Commission 
and 
Finance 
Division 
to 
assess 
price 
reasonability 
and 
negotiate 
with Huawei Technology Co. 
Const.P.91/2011, etc. 
13 
 
8. 
Minister for Interior has seen and 
authorized submission of the summary.” 
 
13.  
Subsequently, 
another 
Summary 
dated 
02.07.2010 was sent by the Ministry of Interior to the 
Prime Minister of Pakistan, which reads as follows: 
“12. The committee constituted by the 
Prime 
Minister 
headed 
by 
Deputy 
Chairman 
Planning 
Commission 
with 
Secretary 
Ministry 
of 
IT, 
Secretary 
Finance 
and 
Secretary 
Interior 
as 
members reviewed the Safe City Projects 
and was satisfied with the technical 
aspects 
of 
the 
projects. 
It 
however 
recommended converting the propriety 
technology 
solution 
into 
generic 
specifications and awarding the project on 
the 
basis 
of 
open 
tender. 
It 
is 
apprehended that if we go for such generic 
tendering, the project may be indefinitely 
delayed. 
 
13. Based upon the above the following 
submissions are made: 
 
(a) 
Security projects worldwide 
are mostly awarded through 
direct contracting. It is never 
advisable 
to 
publicize 
security 
project’s 
capabilities. 
China 
wants 
such projects to be done in 
low profile. 
(b) 
Safe city proposal is based 
on Huawei Technology Co 
propriety solution. They are 
a leading company in China 
with proven ability. Open 
tendering on the basis of 
generic specifications and 
award of work to unproven 
multiple vendors is likely to 
create 
integration 
and 
technical problems. 
 
Const.P.91/2011, etc. 
14 
(c) 
M/s Huawei Technology Co. 
has 
been 
greatly 
instrumental in arranging 
soft loan. The soft loan 
request 
is 
tied 
to 
M/s 
Huawei 
Technology 
co 
proposal. The loan offer is 
likely to be diverted to other 
countries (Sri Lanka) if not 
availed in time. 
 
14. There are many instances where 
tender waiver for acquisition of technology 
in sensitive areas has been granted. The 
case of Strategic Plans Division is cited. 
Tender waiver was granted for PAKSAT-IR 
and Pakistan Remote Sensing Satellite 
(PRSS) Project. Permission was accorded 
by the office of the Prime Minister on 19th 
November, 2007. 
 
15. Safe city technology is essential to 
effectively combat terrorist threat. We 
cannot afford to delay acquisition of this 
capability. 
 
16. In view of the forgoing, Ministry of 
Interior seeks approval for the following: 
 
a. 
Permission 
for 
direct 
contracting 
with 
M/s 
Huawei Technology Co in 
terms of Rule 42(c)(v) read 
with Rule 2(g) of PPRA Rules 
2004. 
 
b. 
To 
authorize 
Planning 
Commission 
and 
Finance 
Division 
to 
assess 
price 
reasonability 
and 
negotiation 
with 
Huawei 
Technology Co. 
 
17. Minister for Interior has seen and 
directed for submission of the summary.” 
 
14.  
The main thrust of the Summary appeared 
to be for seeking exemption from the operation and 
application 
of 
Public 
Procurement 
Regulatory 
Const.P.91/2011, etc. 
15 
Authority Ordinance, 2002 (PPRA Ordinance) and the 
Public Procurement Rules, 2004 (PPRA Rules). The 
request for such exemption was endorsed by the 
Secretary, Ministry of Finance and granted by the 
Prime 
Minister, 
as 
is 
apparent 
from 
the 
communication issued by the Principal Secretary to 
the Prime Minister on 05.07.2010, however, in the 
context of the Summary, Ministry of Interior, dated 
07.06.2010, referred to above, further discussions 
were called for.  
15.  
On 17.12.2010, a Framework Agreement was 
executed inter-se the Government of the Islamic 
Republic of Pakistan and the Government of the 
People’s Republic of China, whereby the Government 
of the People’s Republic of China agreed that the 
Export-Import Bank of China would provide a 
concessional loan not exceeding Renminbi 850 million 
Yuan for the purpose of implementing “Safe City 
Islamabad Project”. It is further agreed by the Chinese 
Government that it would pay interest subsidies for 
the Project Loan and the maturity period of the Loan 
would not exceed twenty years, including grace period 
Const.P.91/2011, etc. 
16 
of five years. It was also perceived that a separate loan 
agreement would be executed inter-se Export-Import 
Bank of China and the Government of Pakistan. 
Consequently, on the same day i.e. 17.12.2010, a 
Concessional Loan Agreement was executed inter-se 
the Government of the Islamic Republic of Pakistan 
and the Export-Import Bank of China. The said 
Agreement envisaged a loan facility up to Renminbi 
850 million Yuan for funding the said “Safe City 
Islamabad Project”.       
16.  
That in January, 2011, the Contract in 
question, dated 29.12.2009, was called into question, 
before this Court vide Constitutional Petition No.11 of 
2011, filed by a citizen making allegations inter alia of 
lack of transparency and loss to the public exchequer 
by way of award of the said Contract. A Human Rights 
Application was also filed leveling similar allegations. 
Vide order dated 18.02.2011, this Court directed that 
both the Constitutional Petition No.11 of 2011 as well 
as the above-mentioned Human Rights Application be 
clubbed and heard together. The said matter was 
heard by this Court, notices were issued to the 
Const.P.91/2011, etc. 
17 
respondents therein and response solicited from the 
Government. 
Eventually, 
after 
several 
dates 
of 
hearing, upon an application of the petitioner in 
Constitutional Petition No.11 of 2011, the proceedings 
were withdrawn, vide Order dated 02.12.2011. 
Whereafter, the instant CP.No.91 of 2011 was filed 
also on behalf of citizens through an ASC whereupon 
proceedings commenced. Subsequently, CP.No.57 of 
2012 was filed also challenging the award and 
implementation of the Contract dated 29.12.2009, 
wherein the petitioner a citizen is appearing in person.  
17.  
In pith and substance, it is case of the 
petitioners that the entire transaction has been 
carried out in an illegal and unlawful manner causing 
a huge loss to the public exchequer. It was contended 
that a similar project was undertaken for the City of 
Karachi in the year 2008-2009 at a total cost of US$ 8 
million. Furthermore, even as per the report of 
Planning Commission referred to in the Summary to 
the Prime Minister dated 07.06.2010, the net present 
value of the Project was @ US$ 72 million, while the 
Contract has been awarded for a total amount of US$ 
Const.P.91/2011, etc. 
18 
124.7 
million. 
Furthermore, 
all 
Government 
Departments and concerned authorities other than 
the Ministry of Interior repeatedly indicated the cost of 
the project is atleast three times higher than the value 
of the equipment being supplied. It is added that the 
Contract in question was executed on 29.12.2009 
when the PC-I had not even been prepared.  
18.  
It is further contended that the Contract in 
question dated 29.12.2009 has been executed with a 
Foreign Company in the name of the President of 
Pakistan purportedly in terms of Article 173 of the 
Constitution of the Islamic Republic of Pakistan, 1973 
without 
fulfilling 
the 
necessary 
requirements 
contemplated by the Rules of Business, 1974. It is 
submitted that the Contract has executed without 
consultation with the Ministry of Finance as required 
by Rule 12 of the Rules of Business, 1974, and also 
no approval by the Ministry of Law & Justice was 
obtained, as required by Rule 14 of Rules, 1974.  
19.  
It is added that the entire exercise was 
carried out in a nontransparent manner without 
soliciting any proposal or issuing any tender for the 
Const.P.91/2011, etc. 
19 
Project in question. And in this behalf, the provisions 
of 
Public 
Procurement 
Regulatory 
Authority 
Ordinance, 2002 and the Public Procurement Rules, 
2004 were violated. It is submitted that there was no 
legal or factual basis for exempting the transaction 
from the provisions of the said law. Reference to Rule 
42(c)(v) of PPRA Rules, 2004, in the Summary to the 
Prime Minister, is wholly misconceived, firstly, as 
there was no Emergency as defined in Rule 2(g) of the 
Public Procurement Rules, 2004, and secondly, 
admittedly, no declaration in this behalf by the 
necessary authority was ever made, as required by the 
proviso to Rule 42(c)(v) of the said Rules. Further 
contended that term “Emergency” is not even 
mentioned in the Summary and the allied documents. 
The learned counsels further submitted that there 
was no desperate urgency in the matter as the project 
had been conceived at least 3½  years prior to the 
execution of the Contract in question as has been 
mentioned in the Summary of Ministry of Interior 
dated 07.06.2010. Furthermore, an almost identical 
project in the City of Karachi has been executed after 
Const.P.91/2011, etc. 
20 
issuance of tender and following the procedure as has 
been laid down by the PPRA Ordinance and the Rules 
framed thereunder.   
20.  
It is added that the entire exercise of the 
evaluation of the Project and the exemption of the 
PPRA Rules was mala fide inasmuch as the process 
was undertaken after the award of the Contract; that 
too without making any reference to the fact that the 
Contract in question had already been executed.  
21.  
Mr. Raza Kazim, Sr. ASC, learned counsel for 
the respondent-NADRA, controverted the contentions 
raised on behalf of the petitioners. At the very out set, 
the learned counsel raised a preliminary objection as 
to 
the 
very 
maintainability 
of 
the 
instant 
Constitutional Petitions. It is the case of the said 
respondent that through the captioned petitions, no 
issue of public importance has been raised nor the 
enforcement 
of 
any 
fundamental 
right 
of 
the 
petitioners is involved. Consequently, the provisions of 
Article 184(3) of the Constitution of the Islamic 
Republic of Pakistan, 1973, are not attracted. In this 
behalf, he further added that the petitioners are not 
Const.P.91/2011, etc. 
21 
aggrieved persons, hence, have no locus standi to 
maintain the instant constitutional petitions.   
22.  
On merits, it is contended by the learned 
counsel that the Safe City Project was conceived as a 
consequence of a spate of terrorists attacks carried 
out across the Country in general and in and around 
Islamabad in particular. The Capital is replete with 
sensitive places and buildings, which are obviously on 
the hit list of the terrorists and therefore the city 
requires special security measures. In view of the 
sensitive nature of the equipment, services and 
software required, the Countries from which the same 
could be procured was limited with the People’s 
Republic of China, as the most obvious option. The 
details of the equipment and software could not be 
made public as in such an eventuality the terrorists 
could be enabled to adopt counter measures for 
evading detection. Thus, public tender soliciting bids 
would be a self defeating exercise. It is further added 
that the paucity of funds and limited available lines of 
credit did not help matters. And the funding for the 
Project was obtained from Export-Import Bank of 
Const.P.91/2011, etc. 
22 
China through a tied loan. The learned counsel by 
relying upon the statutes of the said Bank contended 
that the line of credit was only available for purchases 
from a Chinese company that too after a contract in 
this behalf had been executed in its favour. In the 
above circumstances, an open bidding process was an 
impossibility, consequently, exemption from the PPRA 
Rules was not only necessary but duly obtained from 
the competent authority in the best interest of the 
country. It is added that even after the execution of 
the Contract in question, the price was renegotiated 
and reduced. The suitability of the equipment and its 
value has been thoroughly examined at every level by 
the various officers of all the Departments concerned 
and found to be both appropriate and cost effective. It 
is added that the petitioners have failed to bring on 
record any material that similar equipment and 
software was available at a lesser price. The learned 
counsel strongly contested the comparison with the 
system installed at Karachi, as it was his case that the 
equipment and software to be procured through the 
Contract in question is far superior, more elaborate 
Const.P.91/2011, etc. 
23 
and sophisticated. It is added that an amount of over 
US$ 
68 
million 
has 
already 
been 
drawn 
by 
respondent-M/s Hauwei Technology Company Limited 
in terms of the Contract from the Export-Import Bank 
of China and if the Contract in question is struck 
down, and the transaction reversed, as is prayed for 
by the petitioners, a huge loss would be occasioned to 
the Government of Pakistan and the public exchequer.  
23.  
The Attorney General appearing on behalf of 
the Federation of Pakistan has also controverted the 
contentions raised on behalf of the petitioners. He 
has, however, not disputed the jurisdiction of this 
Court nor supported the preliminary objection qua the 
maintainability of the petition raised on behalf of 
respondent-NADRA. He has, however, contended that 
the exemption from the PPRA Rules was rightly 
granted by the competent authority but unfortunately, 
the wrong provision of the law was quoted. In fact the 
matter is covered by Rule 42(c)(ii) of the Public 
Procurement Rules, 2004. It is added that the best 
possible equipment and software at the best possible 
price has been obtained in a transparent manner and 
Const.P.91/2011, etc. 
24 
this Court should not interfere therewith. It is further 
submitted that the transaction and Contract was 
critically 
examined 
by 
the 
various 
concerned 
departments of the Government and found to be in 
order. So much so the Contract was also sent to 
National Accountability Bureau (NAB) for its input in 
terms of Section 33 of the NAB Ordinance. And prays 
that the petitions be dismissed. In support of his 
contentions, learned Attorney General relied upon the 
judgment reported as Messrs Ittehad Cargo Service 
and 2 others v. Messrs Syed Tasneem Hussain Naqvi 
and others (PLD 2001 SC 116). 
24.  
The learned counsel for respondent-M/s 
Hauwei Technology Company Limited has also 
vehemently controverted the contentions of the 
petitioners. It is his case that the instant petitions are 
mala fide and have been filed on the instigation of 
competitors 
of 
respondent-Hauwei 
Technology 
Company 
Limited. 
It 
is 
added 
that 
the 
said 
respondent was instrumental in facilitating the 
financing for the project through a concessional loan 
from Export-Import Bank of China. The said financial 
Const.P.91/2011, etc. 
25 
facility was project specific, hence, Rule 5 of the PPRA 
Rules was attracted, therefore, procurement through 
an open bidding process was neither permissible nor 
possible. The only course of action available for the 
consummation of the transaction was through direct 
contracting as has happened in the instant case.  
25.  
The learned counsel has further contended 
that the best equipment and software at the most 
competitive price is being made available. And in view 
of the long term concessional loan facility, the cost of 
the project in real terms is even lower and it is this 
fact, which has been alluded to, while referring to the 
net present value of the Project. It is further 
contended that the implementation of the Contract is 
at an advanced stage with an amount of over US$ 68 
million having already been drawn from Export-
Import 
Bank 
by 
respondent-Hauwei 
Technology 
Company Limited and disbursed to third parties, 
therefore, recision of the Contract at this stage would 
cause grave inconvenience resulting in multiplicity of 
legal proceedings involving not only the respondents 
but also third parties.  
Const.P.91/2011, etc. 
26 
 
In support of his contentions, Mr. Afnan Karim 
Kundi, learned counsel for respondent-M/s Hauwei 
Technology Company has placed reliance on the 
judgment reported as Dr. Akhtar Hassan Khan and 
others v. Federation of Pakistan and others (2012 
SCMR 455). 
26.  
In rebuttal the counsel for the petitioner in 
CP.No.91 of 2011 and the petitioner in CP.No.57 of 
2012 have submitted that the instant petitions have 
been filed by way of Public Interest Litigation by 
citizens of Pakistan. The matter involves public funds, 
which are in the process of being wasted so as to 
benefit a selected few at the expense of the public at 
large in a nontransparent and illegal manner. In such 
eventuality, it is contended, this Court is vested with 
the jurisdiction to entertain and adjudicate upon 
petitions under Article 184(3) of the Constitution of 
the Islamic Republic of Pakistan, 1973, as has been 
consistently and repeatedly held by this Court. 
Furthermore, it is contended, that the PPRA Rules 
were squarely applicable and exemption therefrom 
has been obtained for extraneous reasons in a mala 
Const.P.91/2011, etc. 
27 
fide manner and violation of the said Rules is fatal for 
the Contract in question, which in law, is liable to be 
struck down and the transaction reversed.  It is added 
that the payments allegedly drawn by respondent- 
Hauwei Technology Company Limited from the 
Export-Import Bank of China is or atleast should have 
been secured by a bank guarantee made available by 
the said respondent-Hauwei Technology Company 
Limited in terms of the Contract, therefore, nullifying 
the transaction would not result in any loss to the 
public exchequer.  
27.  
Mr. Ather Minallah, learned ASC for the 
petitioner in CP.No.91 of 2011, in support of his 
contentions, placed reliance on the cases as: (1) 
Federation 
of 
Pakistan, 
etc. 
v. 
Province 
of 
Baluchistan, etc. (PLD 1975 SC 66), (2) The 
Chairman, District Screening Committee, Lahore and 
another v. Sharif Ahmad Hashmi (PLD 1976 SC 258), 
(3) Mrs. Shahida Zahir Abbasi and 4 others v. 
President of Pakistan and others (PLD 1996 SC 632), 
(4) Watan Party through Punjab President Ladies 
Wing 
Tasneem 
Shaukat 
Khan 
v. 
Chief 
Const.P.91/2011, etc. 
28 
Executive/President of Pakistan and another (PLD 
2003 SC 74), (5) Mian Muhammad Shahbaz Sharif v. 
Federation of Pakistan through Secretary, Ministry of 
Interior, Government of Pakistan, Islamabad and 
others 
(PLD 
2004 
SC 
583), 
(6) 
All 
Pakistan 
Newspapers Society and others v. Federation of 
Pakistan and others (PLD 2004 SC 600), (7) Watan 
Party through President v. Federation of Pakistan 
through 
Cabinet 
Committee 
of 
Privatization, 
Islamabad and others (PLD 2006 SC 697), (8) Jamat-
e-Islami through Amir and others v. Federation of 
Pakistan and others (PLD 2008 SC 30), (9) Chief 
Justice of Pakistan Iftikhar Muhammad Chaudhry v. 
President of Pakistan through Secretary and others 
(PLD 2010 SC 61*), (10) Suo Motu Case No.5 of 2010, 
action regarding huge loss to public exchequer by 
ignoring 
lowest 
bid 
of 
Fauji 
Foundation 
and 
Multinational Energy from Vitol by awarding LNG 
Contract (PLD 2010 SC 731), (11) Human Rights 
Cases Nos.4668 of 2006, 1111 of 2007 and 15283-G 
of 2010, action taken on news clippings regarding 
Fast Food outlet in F-9 Park Islamabad (PLD 2010 SC 
Const.P.91/2011, etc. 
29 
759), (12) Bank of Punjab and another v. Haris Steel 
Industries (Pvt) Ltd. and others (PLD 2010 SC 1109), 
(13) Suo Motu Case No.13 of 2009, action on press 
clipping from the Daily “Patriot”, Islamabad dated 4-7-
2009 regarding Joint Venture Agreement between 
CDA and Multi-Professional Cooperative Housing 
Society (MPCHS) for development of land in Sector E-
11 Islamabad (PLD 2011 SC 619), (14) Corruption in 
Hajj arrangements in 2010, in the matter of Suo Motu 
Case No.24 of 2010 and Human Rights Cases (PLD 
2011 SC 963), (15) Muhammad Yasin v. Federation of 
Pakistan through Secretary, Establishment Division, 
Islamabad and others (PLD 2012 SC 132), (16) Syed 
Zulfiqar Mehdi and others v. Pakistan International 
Airlines Corporation through M.D., Karachi and 
others (1998 SCMR 793), (17) Non-Transparent 
Procedure of Purchase of 150 Locomotives by Ministry 
of Railways Resultantly Causing 40 Billion Losses to 
the National Exchequer, Suo Motu Case No.7 of 2011 
(2012 SCMR 226), (18) Alleged Corruption in Rental 
Power Plants etc, Human Rights Case (2012 SCMR 
Const.P.91/2011, etc. 
30 
773), and (19) Kedar Nath Motani and others v. 
Prahlad Rai and others (AIR 1960 SC 213). 
28.  
Mr. Babar Sattar, Advocate-petitioner-in-
person in support of his arguments placed reliance on 
the cases of (1) Aman Ullah Khan and others v. The 
Federal Government of Pakistan through Secretary, 
Ministry of Finance, Islamabad and others (PLD 1990 
SC 1092), (2) Moulvi Iqbal Haider v. Capital 
Development Authority and others (PLD 2006 SC 
394), (3) Suo Motu Case No.5 of 2010, action 
regarding huge loss to public exchequer by ignoring 
lowest bid of Fauji Foundation and Multinational 
Energy from Vitol by awarding LNG Contract (PLD 
2010 SC 731), (4) Human Rights Cases regarding 
action taken on news clippings regarding Fast Food 
outlet in F-9 Park Islamabad (PLD 2010 SC 759), (5) 
PAKCOM Limited and others v. Federation of Pakistan 
and others (PLD 2011 SC 44), (6) Suo Motu Case 
No.13 of 2009, action on press clipping from the Daily 
“Patriot”, Islamabad dated 4-7-2009 regarding Joint 
Venture 
Agreement 
between 
CDA 
and 
Multi-
Professional Cooperative Housing Society (MPCHS) for 
Const.P.91/2011, etc. 
31 
development of land in Sector E-11 Islamabad (PLD 
2011 SC 619), (7) Muhammad Yasin v. Federation of 
Pakistan through Secretary, Establishment Division, 
Islamabad and others (PLD 2012 SC 132), (8) Alleged 
Corruption in Rental Power Plants etc, Human Rights 
Cases (2012 SCMR 773), (9) Ramana Dayaram Shetty 
v. The International Airport Authority of India and 
others (AIR 1979 SC 1628), (10) Ajay Hasia etc v. 
Khalid Mujib Sehravardi and others (AIR 1981 SC 
487), (11) Tariq Aziz-ud-Din and others, in Human 
Rights Cases [2011 PLC (CS) 1130], (12) Reliance 
Energy Ltd. and another v. Maharashtra State Road 
Development Corpn. Ltd. and others [(2007) 8 SCC 1]. 
29.  
Adverting first to the preliminary objection 
raised by the learned counsel for the respondent-
NADRA as to the maintainability of the petitions 
under Article 184(3) of the Constitution as in his view 
no issue regarding enforcement of the fundamental 
rights of the petitioners is involved nor any question of 
public importance has been raised.  
30.  
With the passage of time, the scope of 
jurisdiction of this Court under Article 184(3) of the 
Const.P.91/2011, etc. 
32 
Constitution has steadily evolved and expanded with 
its contours now well established through the 
successive judgments handed down by this Court. It 
has been declared that such jurisdiction is not a 
closed shop limited to adversarial proceedings to be 
initiated by a wronged litigant seeking redressal of his 
individual grievance. The rule of locus standi has 
gradually been relaxed so as to include enforcement of 
the Constitutional rights of groups or class of persons, 
and public at large especially in the domain of Public 
Interest Litigation to ensure a meaningful protection 
of the Rule of Law to all citizens, as has been laid 
down in judgments reported as Miss Benazir Bhutto v. 
Federation of Pakistan and another (PLD 1988 SC 
416), Mian Muhammad Nawaz Sharif v. President of 
Pakistan and others (PLD 1993 SC 473), Dr. Akhtar 
Hassan Khan and others v. Federation of Pakistan 
and others (2012 SCMR 455) and Muhammad Yaseen 
v. 
Federation 
of 
Pakistan 
through 
Secretary, 
Establishment Division, Islamabad and others (PLD 
2012 SC 132)]. 
Const.P.91/2011, etc. 
33 
31.  
Public funds, public property, licenses, jobs 
or any other government largesse is to be dealt with 
by public functionaries on behalf of and for the benefit 
of the people. Public authority must necessarily be 
examined in accordance with law keeping in view the 
Constitutional Rights of the citizens. Thus, this Court 
has not hesitated in the exercise of its jurisdiction of 
judicial review conferred by Article 184(3) of the 
Constitution to scrutinize matters where public money 
is being expended through procurement or public 
property is being sold, so as to ensure that 
transactions are undertaken and contracts executed 
in a transparent manner, legally, fairly and justly 
without any arbitrariness or irrationality. In this 
behalf, this Court in a judgment reported as Suo Motu 
Case No.13 of 2009 (PLD 2011 SC 619), held as 
follows: 
 
 
 
“24. It 
is 
well-settled 
that 
in 
matters 
in 
which 
the 
Government 
bodies 
exercise 
their 
contractual 
powers, the principle of judicial review 
cannot be denied. However, in such 
matters, judicial review is intended to 
prevent arbitrariness or favouritism and 
it must be exercised in larger public 
interest. It has also been held by the 
Courts that in matters of judicial review 
Const.P.91/2011, etc. 
34 
the basic test is to see whether there is 
any infirmity in the decision making 
process. It is also a well-settled principle 
of law that since the power of judicial 
review is not an appeal from the 
decision, the Court cannot substitute its 
decision for that of the decision maker. 
The 
interference 
with 
the 
decision 
making process is warranted where it is 
vitiated on account of arbitrariness, 
illegality, irrationality and procedural 
impropriety or where it is actuated by 
mala fides. …” 
 
32.  
It was further held as follows: 
“… 
The 
Governmental 
bodies 
are 
invested with powers to dispense and 
regulate special services by means of 
leases, licences, contracts, quotas, etc., 
where they are expected to act fairly, 
justly and in a transparent manner and 
such powers cannot be exercised in an 
arbitrary 
or 
irrational 
manner. 
Transparency lies at the heart of every 
transaction entered into by, or on behalf 
of, 
a 
public 
body. 
To 
ensure 
transparency and fairness in contracts, 
inviting of open bids is a prerequisite. 
The reservations or restrictions, if any, 
in that behalf should not be arbitrary 
and must be justifiable on the basis of 
some policy or valid principles, which by 
themselves are reasonable and not 
discriminatory.” 
 
 
33.  
This 
jurisdiction 
has 
been 
exercised 
consistently and repeatedly by this Court to scrutinize 
transactions undertaken by the Government so as to 
ensure that public money and public property is not 
squandered or stolen. Reference in this regard may be 
Const.P.91/2011, etc. 
35 
made to Suo Motu Case, action regarding huge loss to 
public exchequer by ignoring lowest bid of Fauji 
Foundation and Multinational Energy from Vitol by 
awarding LNG Contract (PLD 2010 SC 731), Human 
Rights Cases, action taken on news clippings 
regarding Fast Food outlet in F-9 Park Islamabad 
(PLD 2010 SC 759), Non-Transparent Procedure of 
Purchase of 150 Locomotives by Ministry of Railways 
Resultantly Causing 40 Billion Losses to the National 
Exchequer, Suo Motu Case (2012 SCMR 226), Dr. 
Akhtar Hassan Khan and others v. Federation of 
Pakistan and others (2012 SCMR 455), and Alleged 
Corruption in Rental Power Plants etc, Human Rights 
Case (2012 SCMR 773). 
34.  
In the above circumstances, the objection 
raised by the counsel for the respondent-NADRA 
regarding the maintainability of the instant petitions 
is misconceived and overruled.  
35.  
The 
matter 
at 
hand 
pertains 
to 
the 
procurement of goods and services, in the public 
sector, by way of the Contract in question, by the 
Ministry of Interior, for a rather large sum of money, 
Const.P.91/2011, etc. 
36 
to be paid by the public exchequer. In order to ensure 
transparency 
and 
accountability, 
the 
Public 
Procurement Regulatory Authority Ordinance, 2002, 
have been promulgated whereunder the Public 
Procurement Rules, 2004, have been made, which are 
admittedly applicable to the transaction in question. 
Rule 3 specifically provides that the same are 
applicable to procurements by all procuring agencies 
of the Federal Government made whether within or 
outside Pakistan. Thus, obviously, the rules apply to 
Contracts for the procurement of good and services 
from outside the country, as is proposed to be done 
through 
Contract 
in 
issue. 
The 
method 
of 
procurement has been spelt out in great detail 
including 
through 
the 
issuance 
of 
public 
advertisement and envisaging an open bidding 
process. It is an admitted fact that such procedure of 
an open bidding was not employed by invoking the 
exemption therefrom in terms of Rule 42(c)(v) ibid. A 
summary in this behalf mentioning the aforesaid 
provision was submitted by the Ministry of Interior 
and reportedly approved by the Prime Minister. It is 
Const.P.91/2011, etc. 
37 
the case of the petitioners that Rule 42(c)(v) ibid was 
inapplicable to the facts of the case, hence, the 
exemption granted is illegal.  
36.  
Rule 42(c)(v) of the Public Procurement 
Rules, 2004, reads as follows: 
 
“42(c):- 
Alternative 
methods 
of 
procurements. - A procuring agency 
may utilize the following alternative 
methods 
of 
procurement 
of 
goods, 
services and works, namely:- …” 
 
 
“(v) in case of an emergency : 
 
 
 
 
 
 
Provided that the procuring 
agencies shall specify appropriate 
fora vested with necessary authority 
to declare an emergency.” 
 
 
37.  
The word “emergency” has been defined in 
Rule 2 (1)(g) of the Rules, 2004, which is as under: 
“2(1)(g):- “emergency” 
means 
natural 
calamites, disasters, accidents, war and 
operational emergency which may give 
rise to abnormal situation requiring 
prompt and immediate action to limit or 
avoid damage to person, property or the 
environment.” 
 
 
 
38.  
The summary in question dated 02.07.2010 
as well as the communications, minutes of meetings, 
preceding the same and the approval that followed 
has been examined. No reference whatsoever has been 
made to any natural calamity, disaster, accident, war 
Const.P.91/2011, etc. 
38 
or operational emergency whatsoever. It has also been 
noticed that the procuring agency i.e. Ministry of 
Interior did not specify the appropriate fora vested 
with the necessary authority to declare emergency nor 
it is the case of the respondents that any such 
declaration has been made. Incidentally the word 
“emergency” is conspicuous by its absence in the said 
summary and the other allied documents. In fact, it 
has been specifically mentioned that the project had 
been conceived about 3 and half years ago, thereby 
excluding the possibility of an emergent situation. 
Thus, by no stretch of the imagination were the 
provisions of Rule 42(c)(v) ibid attracted to the facts 
and circumstances of the case. It has also been 
noticed that the Contract in question had already 
been executed on the 29th of December, 2009, while 
the summary in question is dated 2nd of July, 2010 
i.e. after the event, without even mentioning the 
aforesaid fact. The entire exercise appears to be 
farcical. It is a classic case of pleading the law to 
defeat the law. In fact the invoking of Rule 42(c)(v) ibid 
was so divorced from reality that the learned Attorney 
Const.P.91/2011, etc. 
39 
General and learned counsels for the respondents 
found themselves unable to defend the same and 
attempted to seek refuge under various other 
provisions of the PPRA Ordinance, 2002, and PPRA 
Rules, 2004, thereby tacitly conceding that the 
exemption has been granted for extraneous reasons 
as no other provision of the law finds mention in the 
summary and allied documents or the approval.  
39.  
The learned Attorney General has referred to 
Rule 42(c)(ii) of Public Procurement Rules, 2004, 
which reads as follows:  
“42(c)(ii):- only 
one 
manufacturer 
or 
supplier 
exists 
for 
the 
required 
procurement : 
 
Provided that the procuring agencies 
shall specify the appropriate fora, which 
may authorize procurement of proprietary 
object after due diligence.” 
  
 
There is nothing on the record to indicate that M/s 
Hauwei Technology Company Limited has a worldwide 
monopoly of the surveillance equipment and software, 
subject-matter of the Contract in dispute. In fact, it is 
not even the case of the respondent-M/s Hauwei 
Technology Company Limited that they have any such 
monopoly or exclusivity. In fact, it has been indicated 
Const.P.91/2011, etc. 
40 
to us that various other Chinese companies were in a 
position to offer similar goods and services. The entire 
market, both national and international, was never 
taped. There is also no reference to such exclusivity or 
monopoly in the context of the requirement of 
NADRA/Ministry of Interior or mentioned in the 
summary nor such assertion have been made by the 
learned counsel for the respondent-NADRA before us.  
40.  
The learned counsel for the respondents 
NADRA and M/s Hauwei Technology Company 
Limited variously contended that the equipment and 
the software subject matter of the Contract in issue 
pertains to matters of internal security, therefore, 
public advertisement was not possible or permissible 
in view of Rule 14(a) of the PPRA Rules, 2004. And the 
financing for the project was to be provided through a 
tied concessional loan by the Export-Import Bank of 
China, which was project specific, hence, the Rules 
were not applicable in view of Rule 5 of the PPRA 
Rules, 2004, which state that in case of International 
Contract the same shall prevail in case of any conflict 
with the Rules.  
Const.P.91/2011, etc. 
41 
41.  
The contentions of the learned counsel do 
not appear to be well-founded, firstly, it was never the 
case of the sponsoring agency i.e. Ministry of Interior 
that exemption may be granted from the Rules in 
question in view of the provisions of Rule 5 or 14 of 
the PPRA Rules, 2004, which find no mention in the 
summary dated 2nd of July, 2010 or any allied 
document or the eventual approval. There was 
admittedly no conscious application of mind at the 
time of the grant of the approval by the Prime Minister 
that Rule 5 or 14 ibid or both were applicable to the 
transaction in question.  
42.  
This Court is not insensitive to the fact that 
we live in difficult times, when compulsions of State 
Security may require to be taken into account. It is to 
safeguard the said compelling interest of the State 
that Rule 14(a) of the Public Procurement Rules, 2004 
has been framed, which reads as under:- 
14. 
Exceptions.- 
It shall be mandatory for 
all 
procuring 
agencies 
to 
advertise 
all 
procurement 
requirements 
exceeding 
[prescribed financial limit which is applicable 
under sub-clause (i) of clause (b) of rule 42]. 
However 
under 
following 
circumstances 
deviation from the requirement is permissible 
with the prior approval of the Authority,- 
Const.P.91/2011, etc. 
42 
 
(a) 
the 
proposed 
procurement 
is 
related to national security and its 
publication 
could 
jeopardize 
national security objectives;  
 
43.  
An analysis of the aforesaid Rule reveals that 
it commences with a declaration that it is mandatory 
to advertise all procurement requirements exceeding a 
specified amount, whereafter an exception has been 
created permitting a deviation. It has been noted that 
the said Rule does not perceive of an exemption from 
the Rules and the necessity of public advertisement 
but only a deviation. Like all exceptions, it must be 
construed strictly keeping in view the proportionality 
of the requirement for such deviation.  
44.  
It has also been noticed that the Government 
of the Province of Sindh undertook a project of the 
surveillance system through an open bidding process. 
Requests For Proposals (RFPs) for such surveillance 
system for project for various cities are regularly 
posted on the internet soliciting interested parties to 
submit their proposals. Such Request for Proposals in 
respect of City of Mumbai, City of Oakland - USA, City 
of Chattanooga - USA, City of Minneapolis - USA and 
Const.P.91/2011, etc. 
43 
St. Louis - USA have been placed on the record by the 
petitioner in CP.No.57 of 2012. The learned counsel 
for the respondents have been unable to persuade us 
that it was impossible to ensure transparency and 
competitiveness through an open bidding process by 
inviting proposals publicly as was done in the case of 
Karachi and as is the common practice followed 
internationally as is evident from the Requests For 
Proposals solicited by various cities in India and the 
United States of America referred to by the petitioner. 
A public advertisement could have been tailored so as 
not to compromise security consideration. 
45.  
Rule 14 of the PPRA Rules, 2004, also 
requires that such deviation is permissible only with 
the prior approval of the Authority i.e. the Authority 
constituted under Section 3 of the Public Procurement 
Regulatory Authority Ordinance, 2002. In the instant 
case, no such approval later or prior was ever obtained 
from the Authority with regards to the Contract in 
question. Needless to say that grant of such approval 
by the Authority would obviously be justiceable. 
Similarly, the mere raising of a specter of Internal 
Const.P.91/2011, etc. 
44 
Security would not curtail the jurisdiction of this 
Court to insist on the implementation of the PPRA 
Rules, 2004, as an assertion in this behalf is always 
subject to judicial review.    
46.  
Similarly, reference to Rule 5 of the PPRA 
Rules, 2004, also does not appear to be relevant. An 
attempt has been made by the learned counsel for the 
respondents to show that the Contract in dispute 
comes within the purview of Rule 5 ibid as it is an 
“international” Contract in between the Government of 
Pakistan and a Chinese Company. Rule 5 ibid reads 
as follows: 
 
“5. 
International 
and 
inter-
governmental commitments of the 
Federal Government.-  Whenever these 
rules are in conflict with an obligation or 
commitment of the Federal Government 
arising out of an international treaty or 
an agreement with a State or States, or 
any international financial institution the 
provisions of such international treaty or 
agreement shall prevail to the extent of 
such conflict.” 
 
47.  
The examination of the aforesaid Rule in 
juxtaposition with Rule 4 of the PPRA Ordinance, 
2002, makes it clear and obvious that the same does 
not apply to a Contract entered into by the 
Const.P.91/2011, etc. 
45 
Government of Pakistan and the manufacturer or 
provider of goods and services based outsides the 
country as Rule 4 ibid clearly provides that the said 
rules apply to all procurement by the Federal 
Government whether from within or outside Pakistan. 
Furthermore, on the date of the execution of the 
Contract in dispute i.e. 29th of December, 2009, no 
other agreement was in the field.  
48.  
The Loan Agreement dated 17.12.2010 also 
does not attract Rule 5 ibid as the Export-Import 
Bank of China is not an international financial 
institution. The latter term has not been defined in 
the Rules of 2004 or the Ordinance, 2002 whereunder 
the same were framed and therefore must be given its 
ordinary meaning as used in common parlance. The 
term refers to an International Organization and not a 
commercial bank based abroad. Reference is perhaps 
being 
made 
to 
the 
World 
Bank, 
the 
Asian 
Development Bank, International Monetary Fund and 
International Finance Corporation, etc.  
49.  
The only agreement that too executed after 
the event to which Rule 5 of the PPRA Rules, 2004, 
Const.P.91/2011, etc. 
46 
may apply is the Framework Agreement dated 
17.12.2010 executed inter-se the Government of 
Pakistan and the Government of the People’s Republic 
of China. A scrutiny of the said Framework Agreement 
reveals that there is no obligation or commitment cast 
upon the Government of Pakistan pertaining to 
procurement from the proceeds of the concessional 
loans to be granted. There is nothing inconsistent in 
the said Framework Agreement with Rule 5 ibid so as 
to prohibit issuance of a public advertisement inviting 
bids for the project in hand. In fact, there is no 
reference in the said Framework Agreement to the 
respondent-M/s Hauwei Technology Company Limited 
or the Contract dated 29th of December, 2009. 
50.  
Even otherwise, it has not been disputed by 
the learned counsels for the respondents that the 
concessional loan facility would have been made 
available to any other Chinese company and was not 
specific to the respondent-M/s Hauwei Technology 
Company Limited.  
51.  
There is yet another aspect of the matter. 
The Contract in question was executed without any 
Const.P.91/2011, etc. 
47 
feasibility study as is obvious from the Report dated 
26.03.2010 of the Technical Sub-Committee, whereby 
in paragraph (iv) thereof it has been stated that the 
work should have been done after a proper feasibility 
study.   
52.  
It has also been mentioned in the minutes of 
the meeting of the above-said Technical Sub-
Committee dated 26.03.2010 that the cost of the 
equipment is almost three times the cost of the 
comparable equipment available in the market. 
Similarly, the cost of the software quoted was also 
higher in the same range of 1:3. The said Sub-
Committee estimated the cost of the project to be US$ 
78 million. Thus, the cost of the project appears to be 
atleast suspicious if not inflated especially in the 
absence of any due diligence conducted by the 
Ministry 
of Interior or 
any 
other Government 
Department so as to ascertain the competitiveness of 
the offer qua the cost of the equipment and software 
in the open market. No material has been made 
available by the respondents in this behalf to this 
Court, even during the course of the proceedings.  
Const.P.91/2011, etc. 
48 
53.  
The 
constant 
refrain 
of 
the 
Planning 
Commission 
and 
the 
Ministry 
of 
Information 
Technology that Request For Proposal (RFP) be issued 
and bidding be effected at least inter-se Chinese 
companies, which finds mentioned in the documents, 
was ignored and eventually silenced. Thus, not only 
the Contract dated 29.12.2009 was entered into in 
violation of the law in a nontransparent manner but 
was also at a cost which to say the least is suspicious 
if not vastly inflated.  
54.  
The learned counsel for the respondents as 
well as the Attorney General for Pakistan have laid 
great emphasis on the fact that allegedly a sum of 
over US$ 68 million has already been disbursed and 
interference by this Court may have serious pecuniary 
consequences for the Government and also result in 
exposure to multiple litigation. We are afraid, if the 
contentions of the learned counsels are accepted, we 
would open the door to illegalities, arbitrariness and 
the squandering of public wealth. Public functionaries 
merely by making a large upfront payment on the 
execution of an agreement would present this Court 
Const.P.91/2011, etc. 
49 
with a fait accompli perpetuating an illegality which 
cannot be countenanced.   
55.  
 The upshot of the above discussion is that 
the Contract dated 29.12.2009 is illegal and invalid 
having been executed in violation of the mandatory 
provisions of the Public Procurement Rules, 2004, as 
the exemption therefrom purportedly granted under 
Rule 42 (c)(v) ibid was based on extraneous and 
irrelevant reasons and therefore of no legal effect or 
consequence. The entire transaction was carried out 
in a nontransparent manner and for a cost which 
appears to be inflated. Consequently, the respondent-
Government is directed to reinitiate the process for 
the procurement of the required equipment, software 
and services in a fair, just, rational and transparent 
manner, strictly in accordance with the provisions of 
the 
Public 
Procurement 
Regulatory 
Authority 
Ordinance, 2002 and the Public Procurement Rules, 
2004 and the law. Needless to say that the 
respondent-Company 
would 
be 
at 
liberty 
to 
participate in such de novo process of procurement.  
Const.P.91/2011, etc. 
50 
 
The respondent-Government shall also take all 
necessary steps permitted by law to safeguard and 
protect itself from any liability under the Contract 
dated 29.12.2009.  
56.  
Constitutional Petitions No.91 of 2011 and 
57 of 2012 are allowed in the above terms. 
Consequently, the CMA No.2624 of 2011 is disposed 
of accordingly. 
57.  
Let a copy of this judgment be sent to the 
Chairman, National Accountability Bureau, who shall 
ensure that appropriate proceedings are initiated in 
accordance with law. 
 
 
 
Judge 
 
 
 
 
Judge  
 
 
Judge 
 
 
Islamabad, 
Announced on the _______ day of August, 2012. 
 
‘Approved for Reporting’ 
*Mahtab* 
 
 
 
 
 
 
Judge 
