PLJ 2010 SC 623
[Original Jurisdiction]
Present: Iftikhar
Muhammad Chaudhry, CJ, Javed Iqbal, Sardar Muhammad Raza Khan, Khalil-ur-Rehman
Ramday, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Nasir-ul-Mulk, Raja
Fayyaz Ahmed, Ch. Ijaz Ahmed, Muhammad Sair Ali, Mahmood Akhtar Shahid
Siddiqui, Jawwad S. Khawaja, Anwar Zaheer Jamali, Khilji Arif Hussain, Rahmat
Hussain Jafferi, Tariq Parvez & Ghulam Rabbani, JJ.
Dr.
MOBASHIR HASSAN and others--Petitioners
versus
FEDERATION
OF PAKISTAN and others--Respondents
Constitution
Petition Nos. 76 to 80 of 2007 & 59/2009, C.A. No. 1094 of 2009 and HRC
Nos. 14328-P to 14331-P & 15082-P of 2009, heard on 16.12.2009.
(On
appeal from the order dated 15.1.2009 passed by High Court of Sindh at
National
Reconciliation Ordinance, 2007 (LX of 2007)--
----Preamble--Constitution
of
Constitution
of
----Art.
7--Organ of the State--When the two organs of the State, as defined in Art. 7
of the Constitution, become incapable of performing their duties entrusted to
them under the Constitution, it is incumbent upon the third organ i.e.
judiciary to come forward for rescue of the State. [P. 680] C
National
Reconciliation Ordinance, 2007 (LX of 2007)--
----Scope--Constitution
of
Administration
of Justice--
----Practice
of the Courts that legal proceedings are not undertaken merely for academic
purposes unless there are admitted or proven facts to resolve the controversy. [P. 689] E
Constitution
of
----Art.
270-AAA--Scope of--Ordinance would stand repealed at the expiration of four
months and three months under Arts. 89 & 128 of Constitution--Principle of
trichotomy of powers--Question of--Whether Court can give decision--Whether the
Court, itself, can give decision that as the permanency attached to temporary
legislation i.e. an Ordinance, through unconstitutional provision of Art.
270-AAA of the Constitution, should examine itself or the matter should be left
for the parliament to examine them'; there was no difficulty in declaring that
Ordinance would stand repealed at the expiration of four months and three
months, under Arts. 89 and 128 of the Constitution, as the case might be prima
facie, there was no justification for placing such legislations before the
parliament but on having taken into consideration the principle of trichotomy
of powers, coupled with the fact that on the basis of bona fide apprehension,
all the Ordinances, issued during the period, when the emergency was imposed in
the country, commencing from 3rd Nov., 2007 up to 15th Dec., 2007, and all
those temporary legislations, which were in force on 15th Dec. 2007, were not
placed before the Parliament, after attaining perpetuity through Art. 270-AAA
of the Constitution, because such Ordinances had conferred rights and
obligations upon the parties; therefore, it was considered appropriate to
strengthen the Parliament, by sending these Ordinances for making them the Acts
of the Parliament with retrospective effect, so the benefit derived by the
masses, could also be protected. [P. 690]
F
Constitution
of
----Preamble--Constitution
envisages the trichotomy of powers amongst three organs of the State, namely
the legislature, executive and the judiciary--Legislature is assigned the task
of law making, the executive to execute such law and the judiciary to interpret
the laws--None of the organs of the State can encroach upon the field of the
others. [P. 691] G
Constitution
of
----Arts.
184, 185 & 186--Principle of law--Duty is cast upon Supreme Court--It
should normally lean in favour of constitutionality of a statute and efforts
should be made to save the same instead of destroying it. [P. 693] I
Qanun-e-Shahadat
Order, 1984 (10 of 1984)--
----Art.
164--Taking notice of prevailing state of affairs having bearing on the issue
involved in a case--Scope--Having bearing on the issue involved in a case,
reports of the relevant period, from electronic and print media, can be taken
into consideration--Non-denial of a solitary newspaper report, or even more
reports for that matter, may not, in appropriate cases, from the basis of an
opinion, one way or the other. [Pp.
694 & 695] J & K
National
Reconciliation Ordinance, 2007 (LX of 2007)--
----Preamble--Constitution
of
Constitution
of
----Arts.
8 & 25, Chapt. I--Inconsistent with rights--Fundamental right--Art. 8 of
the Constitution provides that any law, or any custom or usage having the force
of law, in so far as it is inconsistent with the rights conferred by this
Chapter, shall, to the extent of such inconsistency, be void; and the State
shall not make any law which takes away or abridges the rights so conferred and
any law made in contravention of this clause shall, to the extent of such
contravention, be void--Held: Art. 8 of the Constitution is covered under
Chapter I of the Constitution, which deals with fundamental rights--Art. 25 of
the Constitution, being one of the important Arts. of the Constitution,
professes that all citizens are equal before law and are entitled to equal
protection of law. [Pp. 697 & 698] P
Constitution
of
----Arts.
15, 16, 17, 18, 19, 24 & 233--Rule of law--During emergency the provisions
of Art. 4 remain operative--Proclamation of emergency, fundamental rights,
guaranteed under Arts. 15, 16, 17, 18, 19 & 24, of the Constitution, can be
suspended in terms of Art. 233 of the Constitution, but during the emergency,
the provisions of Art. 4 of the Constitution remain operative--The phrase `rule
of law' has been used since the time of Aristotle, in the fourth century B.C.;
it has meant different things to different authors and theorists; Aristotle's
concept of rule of law is contained in his simple saying: "the rule of law
is to be preferred to that of any individual" -- In other words, the rule
of law is anathema to the rule of men; in the words of the Constitution of the
State of Massachusetts, it means "a government of law and not of men. [Pp. 698 & 699] Q
Constitution
of
----Art.
8--Inconsistency--Whether a law which is inconsistent with fundamental rights
is liable to be declared void to extent of such inconsistency--Question
of--Art. 13 of the Indian Constitution is pari materia to Art. 8 of the
Constitution of Pakistan and according to the former, "all laws in force
in the territory of India immediately before the commencement of Constitution
of Pakistan, in so far as they are inconsistent with the provisions of this
Part, shall, to the extent of such inconsistency, be void". [P. 700] R
Constitution
of
----Arts.
8(2) & 184(3)--Jurisdiction of Supreme Court to examine constitutionality
of a law--Scope--Inconsistency or contravention of a law passed or existing
laws shall be examined to extent of violation of fundamental rights and such
law are not void for other purpose--Art. 8(i) of the Constitution uses the word
`inconsistent' purposely, regarding any law which was promulgated in the past
or is in existence presently--Whereas, Art. 8(2) of the Constitution debars the
State not to make any law which takes away or abridges the rights so conferred
and any law made in contravention of this clause shall, to the extent of such
contravention, be void--So, inconsistency or contravention of a law passed, or
the existing law, shall be examined to the extent of violation of fundamental
rights and such laws are not void for other purposes. [P. 700] S
Words
& Phrases--
----Void
ab-initio--Legal effect whatsoever"--Similarly, the word `void ab initio'
has been defined in Black's Law Dictionary, 7th Edn--(1999) as "null from
the beginning"--However, the powers of Supreme Court to examine the
constitutionality of a law have been discussed in number of judgments at number
of times. [P. 701] T
PLD
1983 SC 457; PLD 1988 SC 416 at 485; PLD 1995 SC 28 at 296; PLD 1997 SC 781 at
796; PLD 2006 SC 697 at 731 & PLD 2007 SC 642 at 671, 675 & 676.
Constitution
of
----Art.
4--Scope--Constitution command that all the citizens without any discrimination
shall be dealt with in accordance with law, so enforcement of the law leaves no
room for creating any distinction between the citizens, except a particular
class, on the basis of intelligible differentia. [P. 701] U
Constitution
of
----Art.
25--National Reconciliation Ordinance, 2007--Scope of--To be declared void ab initio
of National Reconciliation Ordinance--Challenge to--Being discriminatory in
nature--National Reconciliation Ordinance, 2007, is of its being discriminatory
in nature--National Reconciliation Ordinance, 2007, being violative of Art. 25
of the Constitution, deserves to be declared void ab initio, non est, thus
never took birth, therefore, nothing, which is the product of the National
Reconciliation Ordinance, 2007 or done in pursuance of it or under it, ever
came into existence or survive. [P.
701] V
Classification--
----Definition--Intelligible
differentia--"Intelligible differentia" means, in the case of the law
differentiating between two sets of the people or objects, all such
differentiations should be easily understood as logical and lucid and it should
not be artificial or contrived. [P.
702] W
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
494(1)--Amendment--Consent of the Court was replaced with recommendation of the
review board--Powers of the Court under Section 494(1), Cr.P.C. were conferred
upon the Review Board, to be constituted by the Federal Government and the
Provincial Government, composition of which has been provided u/S. 494(4),
Cr.P.C.--In simple words consent of the Court has been replaced with the
recommendations of the Review Board i.e--an executive body, for all intent and
purposes. [P. 704] X
Criminal
Procedure Code, 1898 (V of 1898)--
----Ss.
87 & 88--Declaring a person absconder--Essentially--Essentially, declaring
a person absconder is the job of the Trial Court, after submission of challan
and observing codal formalities under Sections 87 and 88, Cr.P.C.--As far as
involving a person falsely for political reasons or through political
victimization, is concerned, it is a question which could only be examined by
the Court of law, before whom challan has been submitted because once a challan
is filed, the accused can be discharged or acquitted under Cr.P.C. [Pp. 704 & 705] Y
Absconding--
----Prima
facie to be fugitive from law--However, as far as absconding accused is concerned,
prima facie, he is considered to be fugitive from law--Therefore, without
surrendering to the Court, legally no concession can be extended to him by the
executive authority. [P. 705] Z
National
Reconciliation Ordinance, 2007 (LX of 2007)--
----Preamble--Constitution
of
Withdrawal
of Cases--
----Recommendation
for withdrawal of cases--Review Board and trial Court--Whether hundreds of
cases can be decided within few hours, for the purpose of making
recommendations by the Provincial Review Board. [P.
706] BB
Constitution
of
----Arts.
2-A & 45--Punishments of death--Way of qisas and tazir--Question of
pardon--Test of repugnancy--Principle of law--Punishments of death awarded were
not by way of qisas--Sentences of death awarded were under Ta'zir--No question
of pardon arises if the punishment of Qisas has been awarded--However, in
respect of Ta'zir, the President continues to enjoy the power to grant
pardon--It is further observed that in terms of Arts. 45 and 2A of the
Constitution, the Court has no power to apply the test of repugnancy by
invoking Art. 2A of the Constitution for striking down Art. 45 of the
Constitution. [P. 707] CC &
DD
Administration
of Justice--
-----Conclusion
of trial--Principles of--Principles of administration of justice in criminal
cases that if no case is made out on merits, it is free to discharge or acquit
the accused without waiting for conclusion of the trial. [P. 708] EE
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
494--Amendment--Independence of judiciary--Amendment in Section 494, Cr.P.C.
has not only undermined the independence of judiciary by substituting the
Court, before whom the trial of an accused was pending, with the Review Board,
but, at the same time, had also created discrimination with the accused, who
were facing trial prior to 1st Jan., 1986 or had been charged for the offence
after 12th Oct., 1999. [P.
708] GG
National
Reconciliation Ordinance, 2007 (LX of 2007)--
----Preamble--Object
of--Question of--Political victimization--Whether there had been no political
victimization after 12th Oct., 1999 uptill now, on account of which accused
persons were involved falsely in the commission of the offence but Supreme
Court could not succeed in getting the answer of the same except observing that
specific dates were incorporated in the National Reconciliation Ordinance, 2007
for achieving specific object as well as the specific purpose, which has been
highlighted by one of the counsel. [P.
708] HH
National
Reconciliation Ordinance, 2007 (LX of 2007)--
----Preamble--Intelligence
differentia for reasonable classification--Classification amongst the accused
persons, facing trial during the specific period i.e. 1st Jan. 1986 to 12th
Oct. 1999, is based on arbitrariness and no reasons have been disclosed in the
National Reconciliation Ordinance, 2007 for entering into so called
`reconciliation' with particular group of accused persons, except in the name
of `national reconciliation' on the pretext that the cases were politically
motivated against them--Therefore, the National Reconciliation Ordinance, 2007
to the extent of discussion on Section 2, is arbitrary and irrational as it has
failed the test of reason to conclude in its favour that it is not a bad
law--Similarly on the basis of intelligible differentia for reasonable
classification, the differentiation has not been understood logically and it
seems that for specific purpose, an artificial grouping was made, causing
injustice to the accused persons, who were placed in the same position and
instead of achieving the `national reconciliation' the National Reconciliation
Ordinance, 2007 had served the purpose of `individual reconciliation'. [Pp. 710 & 711] II
National
Reconciliation Ordinance, 2007 (LX of 2007)--
----Ss.
6--National Accountability Ordinance, 1999, S. 31-A--Powers of
Court--Legislature to declare order of competent jurisdiction in absentia is
void--Powers of the Court could not be substituted or conferred according to
Section 6 of the National Reconciliation Ordinance, 2007 on the legislature to
declare that an order or judgment passed by a Court of competent jurisdiction
in absentia is void ab initio and shall not be acted upon--It may also be kept
in mind that; firstly Section 6 of the National Reconciliation Ordinance, 2007
is general in its nature and benefit of the same can be derived by a candidate
for becoming the member of the Parliament, or a member of the Parliament, or by
other ordinary person; secondly, it has not been made applicable for a specific
period--Therefore, if it being an amended provision continued to remain intact
for all the times to come, conviction in absentia under Section 31A of the
National Accountability Ordinance, 1999 shall be void and for all practical
purposes Section 31A of the National Accountability Ordinance, 1999 shall be
deemed to have been annulled. [P.
713] JJ
National
Accountability Ordinance, 1999 (XVIII of 1999)--
----S.
31-A--Offence falling within mischief of Section 31-A--Conviction in
absentia--Section 31-A of the National Accountability Ordinance, 1999 is
distinct offence, from the allegations made in the reference, which was filed
against an accused and if the convict has been acquitted in the reference or
the reference has been withdrawn, even then the conviction under Section 31-A
of the National Accountability Ordinance, 1999 remain operative and the convict
has to avail remedy, for getting it set aside, by approaching the next higher
judicial forum, as envisaged under Section 32 of the National Accountability
Ordinance, 1999--Conviction in absentia is a final order, therefore, no other
forum can declare such conviction as void, except a judicial forum, that too,
by filing an appeal--But in instant case, as it has been pointed out by
amending a law, such conviction has been declared void, therefore, the
amendment in Section 31A of the National Accountability Ordinance, 1999 by
inserting clause (aa), by means of Section 6 of the National Reconciliation
Ordinance, 2007, is declared void being against the provisions of Section 31A
read with Section 32 of the National Accountability Ordinance, 1999, which provides
remedy to the convict to file appeal. [Pp.
714 & 715] KK
Constitution
of
----Art.
63(1)(p)--Enactment can undo the effect of judgment--Conviction for an offence
and if he is holder of public office--Member of parliament--Question, whether
the legislature by means of an enactment can undo the effect of the judgment in
which the person has been convicted for an offence and if he is `holder of
public office', his such conviction is a disqualification to be elected as a
member of the Parliament, or to be a member of the Parliament, under Art.
63(1)(p) of the Constitution?--Validity--No legislation on any subject is
permissible which is against the specific provision of the Constitution. [P. 715] LL
National
Accountability Ordinance, 1999 (XVIII of 1999)--
----S.
31-A--Constitution of
National
Reconciliation Ordinance, 2007 (LX of 2007)--
----S.
6--National Accountability Ordinance, 1999, S. 31-A(aa)--Names of
beneficiaries--NAB has placed on record the material pointing out the names of
the beneficiaries, who have derived benefit u/S. 6 of the National
Reconciliation Ordinance, 2007--Held: Insertion of clause (aa) in Section 31A
of the National Accountability Ordinance, 1999 is without lawful authority, as
it has not amended the original Section 31A of the National Accountability
Ordinance, 1999, which is still intact with all its consequences and
effects--Language used in an enactment must show the intention of the law giver
that it would apply with retrospective effect and shall be deemed always to
have been so inserted in the respective statute. [Pp. 716 & 717] NN
National
Accountability Ordinance, 1999 (XVIII of 1999)--
----S.
31-A--Conviction is absentia was void ab initio--Nullify the effect of a
judgment--Principle abundantly makes it clear that since the basis of the judgment,
in respect of conviction in absentia under Section 31-A of the National
Accountability Ordinance, 1999, has not been removed, pointing out any defect
in the same by the legislature, therefore, the legislature, by means of an
enactment, could not give a judgment that conviction in absentia was void ab
initio, rather for the purpose of declaring such judgments void ab initio, it
was incumbent upon the legislature to have repealed Section 31-A of the
National Accountability Ordinance, 1999 because on the basis of the same the
absconder accused were convicted--More so, to nullify the effect of a judgment,
by means of a legislative enactment, Supreme Court have to examine the nature
of each judgment separately and individually but in instant case omni bus type
order has been passed, declaring all the judgments recorded under Section 31-A
of the National Accountability Ordinance, 1999 as void ab initio, without
pointing out any defect in the same. [P.
719] OO
Administration
of Justice--
----Civil
and criminal administration of justice--Under the civil administration of
justice, plethora of case law is available on the point that how an effect of a
judgment can be nullified or neutralized, particularly the judgment in which,
on the basis of existing laws, the Courts have come to the conclusion that the
tax was not recoverable but the Government by issuing a legislation, with
retrospective effect, has removed the defect in the law, thereby nullified the
effect of the judgment, as a result whereof the Government continued to effect
the recovery of tax--This is in respect of the civil matters, but in the
criminal administration of justice Supreme Court have not succeeded in laying
hand on such identical principles, applied in civil cases, on the point,
therefore, Supreme Court have to rely upon treaties on the Constitutional
Limitation by Thomas M--Cooley. [P.
719] PP
Role
of Independent Judiciary--
----Criminal
cases, this issue has to be approached differently than the matters relating to
civil disputes, payment of taxes--Legislative authority, ordinarily is not
required to enter into the domain of judiciary--Under the scheme of the
Constitution, the judiciary has an independent role, amongst three organs of
the State, as it has been held (PLD 1997 SC 426). [P. 720] QQ
Criminal
Administration of Justice--
----Where
a judgment has been announced on the basis of law, the legislative authority
cannot annul such judgment without pointing out any flaw in the law, which is
the basis of such a judgment--Judgment pronounced under the law, by a Court of
competent jurisdiction, is a judgment which has been pronounced legally,
according to the mandate, conferred upon the Court and such judgment or order
cannot be annulled by means of an enactment. [P.
722] SS
National
Accountability Ordinance, 1999 (XVIII of 1999)--
----S.
31-A--Legislative authority is not aggrieved--If the legislative authority is
not aggrieved, in any manner, by the judgment pronounced by the Courts
discharging its functions under Section 31A of the National Accountability
Ordinance, 1999, the judgment could only be set aside, varied, suspended as per
the procedure laid down in the National Accountability Ordinance, 1999 and not
by enforcing or adopting legislative measures. [P.
722] TT
PLD
1990 SC 823.
National
Accountability Ordinance, 1999 (XVIII of 1999)--
----S.
31-A(aa)--National Reconcilitation Ordinance, 2007, S. 6--Insertion
of--Justification--Principle of justice--Conviction and the sentence, have been
declared void, by adding clause (aa) in Section 31A of the National
Accountability Ordinance, 1999, which definitely is against the norms and the
principles of justice--Insertion of clause (aa) in Section 31A of the National
Accountability Ordinance, 1999, by means of Section 6 of the National Reconciliation
Ordinance, 2007, is constitutionally valid even then it would be tantamount to
allow the legislature to pronounce a judicial verdict against an order or
judgment of a competent Court of law, declaring the same to be void ab
initio--Doctrine of trichotomy of powers, the action of the legislative
authority, whereby clause (aa) has been inserted in S. 31A of the National
Accountability Ordinance, 1999, by means of the National Reconciliation
Ordinance, 2007, would be considered to be a step to substitute the judicial
forum with an executive authority--Thus, it would not be sustainable being
contrary to the principle of independence of judiciary. [P. 723] UU & VV
Constitution
of
----Arts.
2-A & 175--Principle of independence of judiciary--
National
Accountability Ordinance, 1999 (XVIII of 1999)--
----S.
32--Remedy of appeal against conviction--Except an appeal under Section 32 of
the National Accountability Ordinance, 1999 to the High Court of the Province,
no other remedy is available to a convict against his conviction/sentence, to
get it set aside--Thus, no other forum including the legislature is empowered
to declare an order or judgment, whereby conviction has been recorded under
Section 31A of the National Accountability Ordinance, 1999, to be void ab
initio except in civil cases pertaining to the tax matters.
[Pp. 723 & 724] XX & YY
Act
of Parliament--
----Not
in derogation to powers of parliament--By appropriate legislation, and by
manifestation of appropriate intent and use of language, be competent to
nullify the effect of a judgment in the given circumstances of the case--This,
however, is not such a case as an unspecified number of convictions, on
differing facts and evidence, are sought to be set aside in one swipe--This is
going beyond legislative competence and parliament itself wisely decided not to
intervene to make permanent, a temporary law (Ordinance) by enacting as an Act
of Parliament--Supreme Court are only endorsing the will of the elected
representatives. [P. 724] ZZ
Constitution
of
----Art.
203--Supervision and control over subordinate Courts--Art. 203 of the
Constitution is also another important provision of the Constitution which
provides that each High Court shall supervise and control all Courts
subordinate to it (PLD 1998 SC 1445). [P.
724] AAA
----Intervention
by executive--Principle--The intervention by the executive, contrary to the
principles of independence of judiciary, declared unconstitutional. [Pp. 725 & 726] BBB
PLD
1998 SC 1445 ref.
Constitution
of
----Arts.
8 & 184(3)--Inconsistent with fundamental rights--Constitutional
powers--Supreme Court, while hearing the petition under Art. 184(3) of the
Constitution, enjoys ample powers under Art. 8 of the Constitution, to declare
any law inconsistent with the fundamental rights conferred by the Constitution
or to examine the constitutionality of such law, on the touchstone of any other
provision of the Constitution--While exercising its constitutional powers, conferred
upon Supreme Court under various provisions of the Constitution, including
Arts. 184, 185, 187(1) and 212(3), it also enjoys enormous powers of judicial
review--
Judicial
Power--
----While
examining the vires of a statute, the powers of Supreme Court are limited to
examine the legislative competence or to such other limitations as are in the
Constitution and while declaring a legislative instrument as void, it is not
because the judicial powers are superior in dignity to the legislative powers
but because it enforces the Constitution as a paramount law or where the
legislative instrument is in conflict with the Constitutional provisions so as
to give effect to it or where the legislature fails to keep it, within its
constitutional limitations. [P. 735]
DDD
National
Reconciliation Ordinance, 2007 (LX of 2007)--
----Ss.
6 & 7--National Accountability Ordinance, 1999, Ss. 31-A(aa) &
33-F--Constitution of
The persons, against whom investigation is
pending but no trial has commenced; the investigation has come to an end--The
persons, against whom the trial is pending but no conviction/ acquittal has
been recorded; the trial comes to an immediate end--The persons, who have been
convicted but have merely filed an appeal or some proceedings, against that
conviction before the High Court or the Supreme Court and whether or not such
conviction/sentence has been suspended, before the promulgation of the National
Reconciliation Ordinance, 2007; everything stands terminated and withdrawn--The
persons, who have been acquitted and against their acquittal an appeal is
pending; they also stand absolved--The persons, against whom, request for
mutual legal assistance and civil party to proceedings, have been initiated by
the Federal Government; that stand withdrawn or terminated--Holders of public
office', whose cases have been withdrawn or terminated, shall also not be
liable to any action in future, as well, under the National Reconciliation
Ordinance, 2007, for acts having been done in good faith before the cut off
date.
Section
33E of the National Accountability Ordinance, 1999 provides that any fine or
other sum due, or as determined to be due by a Court, shall be recoverable as
arrears of land revenue--Section 33F of the Ordinance, 1999, inserted through
Section 7 of the National Reconciliation Ordinance, 2007 has provided a
mechanism for withdrawal and termination of prolonged pending proceedings,
initiated prior to 12th Oct., 1999. [P.
741] EEE & FFF
National
Accountability Ordinance, 1999 (XVIII of 1999)--
----Preamble--Misuse
of abuse of power--Misappropriation of property--Claimed to have been expedient
and necessary to provide for effective measures for the detection,
investigation, prosecution and speedy disposal of cases, involving corruption,
corrupt practices, misuse or abuse of power or authority, misappropriation of
property, taking of kickbacks, commissions and for matters connected and
ancillary or incidental thereto--An emergent need was also found for the
recovery of outstanding amounts from the persons, who have committed default in
the repayment of amounts to banks, financial institutions, government agencies
and other agencies. [P. 744] GGG
National
Accountability Ordinance, 1999 (XVIII of 1999)--
----Preamble--Corruption
and corrupt practice--Scope of--Theme of the National Accountability Ordinance,
1999, as it is evident from its preamble and substantive part, is to deal with
the cases of corruption and corrupt practices, strictly to achieve the object
spelt out in preamble--Expression "corruption and corrupt practices"
has been defined in Section 9 of the National Accountability Ordinance, 1999. [P. 746] HHH
National
Accountability Ordinance, 1999 (XVIII of 1999)--
----S.
25--Scope--To achieve the object of conviction and effecting the recovery of
national wealth--Provisions of the National Accountability Ordinance, 1999 as
well as their interpretation provide high moral authority to the functionaries,
to discharge their duties for curbing corruption and corrupt practices, to
achieve the object namely, conviction and effecting the recovery of national
wealth, even before the trial, keeping in view the solid mechanism provided
under Section 25 of the National Accountability Ordinance. [P. 749] III
National
Accountability Ordinance, 1999 (XVIII of 1999)--
----Preamble--Object
to save the assets outside the country--On account of international
cooperation, request for mutual legal assistance means, the NAB or any officer,
authorized by the Federal Government, has been empowered to make a request to a
foreign state to do any or all things to freeze assets by whatever processes
are lawfully available in that State, to the extent to which the assets are
believed, on reasonable grounds, to be situated in that State; and to transfer
to Pakistan any such evidence, documents, things, articles, assets or proceeds,
realized from the disposal of such articles or assets--As far as, confiscation
or realization of the national wealth, situated within the country, is concerned,
there is no difficulty for the NAB to deal with it, in accordance with the
procedure provided under the National Accountability Ordinance, 1999--However,
for achieving the object to save the assets outside the country, allegedly
belonging to the nation, a mechanism has been provided on the basis of
international cooperation--While making request to the Foreign States for
mutual legal assistance, no request for criminal proceedings in such a State
can be demanded--However, Courts of the States might proceed independently for
an action, which falls within the definition of their municipal laws, governing
criminal actions--Pakistan is not the only country, which has demanded for such
mutual legal assistance; there are so many other countries, on whose demand,
subject to determination, the wealth of the nation was reverted back to those
States--On account of the proceedings against Marcos, the money/funds belonging
to Philippine Government were returned by the Swiss Courts--Similarly, there is
another case, from Nigerian jurisdiction, wherein the Head of the State was
found involved in corruption and corrupt practices and proceedings, against
him, were initiated for return of his assets from Switzerland to Nigeria and
from 1999 to 2009, approximately US$ 1.2 billion, had been returned to the
Federal Republic of Nigeria. [Pp.
750 & 751] JJJ
United
Nation's Convention Against Corruption, 2005--
----Scope--International
cooperation, for the purpose of prevention of corruption, has been considered
in the comity of the nations, as their commitment to achieving the object,
under the United Nation's Convention Against Corruption, 2005. [P. 757] LLL
United
Nation's Convention Against Corruption, 2005--
----Arts.
44 to 50--International cooperation in criminal matters--Proceedings in civil
and administrative matter--Government of Pakistan is also signatory to the
above UN Convention as it has been ratified by
National
Accountability Ordinance, 1999 (XVIII of 1999)--
----S.
25--Holder of Public Officer--According to the scheme of the National
Accountability Ordinance, 1999, S. 25 provides that where a `holder of public
office' or any other person, prior to the authorization of investigation
against him, voluntarily comes forward and offers to return the assets or
gains, acquired or made by him in the course, or as a consequence of any
offence, under Ordinance, 1999, the Chairman NAB might accept such offer and
after determination of the amount, due from such person, and its deposit with
the NAB, discharge such person from all his liability in respect of the matter
or transaction in issue--In such provision of law as well the word `withdrawal'
has not been used, which is akin to process of discharge or acquittal of an
accused under the system of criminal administration of justice. [Pp. 758 & 759] NNN
Termination
of Proceedings--
----The
words "termination of the proceedings, under investigation or pending in
any Court, including a High Court and the Supreme Court", are not
recognized under any legal instrument, including the Constitution of Pakistan,
Cr.P.C. or NAO, 1999--While examining the constitutionality of newly inserted
clause (aa) in Section 31A of the National Accountability Ordinance, 1999,
whereby the judgments passed by the Court in absentia under the Ordinance,
1999, have been declared void ab initio by the legislative authority. [P. 759] OOO
Constitution
of
----Art.
89--National Reconciliation Ordinance, (LX of 2007), S. 7--Fundamental rights
of non-beneficiaries of NRO--On 5th Oct. 2007, when the summary was moved, the
cabinet in its meeting, held on the same day, had approved the draft of the
NRO, 2007, in pursuance whereof, the Prime Minister was requested to advise the
then President to approve and sign the NRO, 2007, as such on the same day i.e.
5th Oct. 2007, the NRO, 2007 was promulgated--Both the proceedings and the
cases of corruption and corrupt practices, were being terminated or withdrawn
in terms of Section 7 of the NRO, 2007, whereby Section 33-F has been added in
the National Accountability Ordinance, 1999 regarding withdrawal and
termination of prolonged pending proceedings initiated prior to 12th Oct. 1999--Object,
disclosed in the summary for the Cabinet, for issuance of the NRO, 2007 was
that it was expedient to promote national reconciliation, foster mutual trust
and confidence amongst `holders of public office' and to make the election
process more transparent--Ultimately, on the same day, the Ordinance, 2007 was
promulgated when the election of the President (in uniform) was scheduled to be
held on the very next day i.e. 6th Oct. 2007--At that time, a petition filed by
Jamat-e-Islami (PLD 2009 SC 549). [Pp.
759 & 760] PPP
Temporary
Legislation--
----Temporary
legislation cannot be struck down, taking into consideration the mala fide or
subjective consideration for the issuance of such legislation but
simultaneously Supreme Court is empowered to examine the contents of the
temporary legislation, if it is inconsistent with the fundamental rights,
guaranteed by the Constitution or of any of the provisions of the Constitution
has been violated. [P. 760] QQQ
National
Reconciliation Ordinance, 2007 (LX of 2007)--
----Ss.
2, 6 & 7--Constitution of
National
Reconciliation Ordinance, 2007 (LX of 2007)--
----S.
7--National Accountability Ordinance, 1999, S. 33-F--Constitution of
Constitution
of
----Art.
62 & Scope of--On an objection against a candidate, without any support of
evidence, the provisions of Art. 62 of the Constitution cannot be pressed into
service, because it is a provision of Constitution which is not self
executory--Art. 62(f) has been incorporated in the Constitution by means of
President's Order No. 14 of 1985 (The Revival of Constitution Order, 1985) and
it being a part of the Constitution has to be taken into consideration by the
Courts, while examining the case of a convict, involved in corruption and
corrupt practices, who has attained the status of innocent person by means of a
law which has washed away his conviction/sentence by withdrawal or termination
of cases or proceedings, however, subject to furnishing strong evidence for
establishing the allegation mentioned in Art. 62(f) of the Constitution--Such
provision was inserted by a dictator but it is still continuing although five
National Assemblies and Senate had been elected and completed their terms, but
no effective steps, so far have been taken in this behalf. [P. 767] TTT
National
Accountability Ordinance, 1999 (XVIII of 1999)--
----Ss.
25 & 33-F--National Reconciliation Ordinance, 2007, S. 7--Withdrawal from
the cases inside or outside the country--A person, who enters into plea-bargain
as per the mandate of Section 25 of the National Accountability Ordinance,
1999, would be disqualified to contest the election or to hold the public
office--The language employed in Section 33-F of the Ordinance, 1999, inserted
by means of Section 7 of the Ordinance, 2007 does not indicate that the
withdrawal had to take place, subject to any of the provisions, either under
Section 25 or under Section 31B of the National Accountability Ordinance, 1999,
with the consent of the Court--So far as withdrawal from the cases inside or
outside the country, as per Section 33-F of the Ordinance, 1999, inserted
through Section 7 of the Ordinance, 2007, is concerned, it would mean that the
`holders of public office' have been absolved from the charge of corruption and
corrupt practices, therefore, by adopting such procedure, the legislative
authority had transgressed its jurisdiction, because such powers are only
available to the judiciary and the Constitution provides guarantee to secure
the independence of the judiciary. [Pp.
769 & 770] UUU
Constitution
of
----Art.
190--National Reconciliation Ordinance, 2007, Scope of--Executives and judicial
authorities--Art. 190 of the Constitution imposes a constitutional obligation
upon all the executives and judicial authorities, throughout the country to act
in aid of the Supreme Court--List provided by the NAB, regarding cases falling
within category (b) in which a huge amount is involved, it was also pointed out
that to get back that money, subject to determination, belonged to the people of
Pakistan, an amount ranging between 660 million to 2 billion rupees was spent
but the of Supreme Court directions, the Chairman NAB could not furnish the
exact figure--Supreme Court asked the Prosecutor General to furnish the details
in respect of the amount involved in the cases out side the country, in
pursuance of request for mutual legal assistance and civil party to
proceedings, was made by the Federal Government. [P. 770] VVV
Withdrawal
of Cases--
----Request
for withdrawal of mutual assistance and civil party to proceedings, initiated
by the Federal Government was unsatisfactory--Validity--Chairman NAB, who
should have assisted the Court diligently, was reluctant to do so for one or
the other reason--Therefore, having left with no option, the Federal Secretary,
Law & Justice Division, Government of Pakistan was called upon to appear
and place on record copies of the file, pertaining to the Swiss
cases--Secretary General to the President also appeared on Court's call and
informed that no such file existed in his office or at President's Camp
Office--As far as issuing a letter to Attorney General of Geneva dated 7th
April 2008 by (the then Attorney General) is concerned, it seems that he had
done so in his personal capacity, against the Rules of Business, 1973--Under
Rule 14 of the Rules of Business, 1973, he was required to consult the Law,
Justice and Human Rights Division on all legal questions, arising out of any
case--Had he consulted the Law, Justice & Human Rights Division, he would
have been advised not to send any letter in this regard because the Ministry of
Law & Justice had already declined such request as was pointed out by the
Secretary Law & Justice Division. [Pp.
772 & 773] XXX, YYY & ZZZ
Rules
of Business, 1973--
----R.
5(11-A)--Functionary of government--Violation of--President of Pakistan to do
so, does not seem to be correct because under Rule 5(11-A) of the Rules of
Business, 1973, verbal orders given by a functionary of the Government should,
as a matter of routine, be reduced to writing and submitted to the issuing
authority; if time permits, the confirmation shall invariably be taken before
initiating action; however, in an exigency, where action is required to be
taken immediately or it is not possible to obtain written confirmation of the
orders before initiating actions, functionary to whom the verbal orders are
given shall take the action so required and at the first available opportunity,
obtain the requisite confirmation while submitting to the issuing authority a
report of the action taken by him--The statement of Secretary General to the
President, reflects that no such file exists--Then Attorney General for
Pakistan has done so in violation of the Rules of Business, 1973, therefore, he
is liable to account for his such action. [Pp.
773 & 774] AAAA
National
Accountability Ordinance, 1999 (XVIII of 1999)--
----S.
21--Comprehensive provision of law--Section 21 of the National Accountability
Ordinance, 1999 is a comprehensive provision of law, which spells out the
nature of the request to a foreign state for mutual legal assistance including;
freezing of assets to the extent to which the assets are believed on reasonable
ground to be situated in that State; confiscate articles and forfeit assets to
the extent to which the articles or assets, as the case may be, are believed to
be located in that State; transfer to Pakistan any such evidence, documents,
things, articles, assets or proceeds realized from the disposal of such
articles or assets--Held: To curb the culture of corruption and corrupt
practices globally it has become necessary to enact such law on the basis of
which the objects could be achieved. [P.
774] BBBB
National
Accountability Ordinance, 1999 (XVIII of 1999)--
----S.
9--Cases withdrawn or terminated who had been guilty for corruption and corrupt
practice--The cases against the `holders of public office' either had been
withdrawn or terminated, who would had been found guilty for the corruption or
corrupt practices and sentenced to imprisonment as well as fine, and the `holders
of public office' who had been convicted and sentenced, and against their
convictions, appeals pending either before the High Court or the Supreme Court,
had been withdrawn--A perusal of UN Convention Against Corruption indicates
that the state had responsibility to develop and implement or maintain
effective, coordinated anti-corruption policies; to take measures to prevent
money laundering; to take measures for freezing, seizure and confiscation of
proceeds of crime, derived from offences established in accordance with the
Convention, or the property the value of which corresponds to that of such
proceeds, property, equipment or other instrumentalities used in or destined
for use in offences established in accordance with the Convention, State parties
shall consider assisting each other in investigations of and proceedings in
civil and administrative matters relating to corruption; as well as affording
to one another the widest measure of mutual legal assistance in investigations,
prosecutions, and judicial proceedings in relation to the offences covered by
the Convention; prevention and detection of transfers of proceeds of
crime--Promulgation of the National Reconciliation Ordinance, 2007, instead of
preventing corruption and corrupt practices, has encouraged the same--Supreme
Court have no option but to agree with the contention of counsel for the
petitioners, as the same is based on legal and logical premise. [P. 774] CCCC & DDDD
National
Accountability Ordinance, 1999 (XVIII of 1999)--
----Scope--Constitution
of
National
Reconciliation Ordinance, 2007 (LX of 2007)--
----S.
7--National Accountability Ordinance, 1999, S. 33-F--Constitution of
Binding
Judgment--
----Principle
of law--Explained--It is a principle of law that binding judgment, either of
acquittal or conviction, can only be withdrawn by the Courts of law, therefore,
the question for determination would be as to which forum is a `Court' and
which is not--Answer to that proposition had been given in Rehman Khan v.
Asadullah Khan (PLD 1983 Quetta 52). [P.
776] GGGG
National
Reconciliation Ordinance, 2007 (LX of 2007)--
----S.
7--National Accountability Ordinance, 1999, S. 33-F--Withdrawal or termination
of cases or proceedings--Appropriate order can be passed--Applying the test on
the provisions of Section 33F of the National Accountability Ordinance, 1999,
inserted through Section 7 of the National Reconciliation Ordinance, 2007,
relating to withdrawal or termination of cases or proceedings, inescapable
conclusion would be that the legislative authority of the President had acted
contrary to judicial norms by allowing withdrawal and termination of cases and
proceedings--However, on the basis of judicial interaction by the Court of law,
having jurisdiction, appropriate orders can be passed--Essentially withdrawal
or termination of cases or proceedings in the manner as it has been done by
means of contents of Section 33F of the Ordinance, 1999, inserted through
Section 7 of the Ordinance, 2007, does not fall within the definition of
`pardon', `amnesty' or `commutation of sentence'--Admittedly, neither the
`holders of public office' have been pardoned nor amnesty has been given to
them and similarly, their sentences have also not been commuted--Therefore, on
the basis of such legislative document i.e. the National Reconciliation Ordinance,
2007, which has no legal sanctity behind it, the benefit drawn by the `holders
of public office' is not sustainable. [Pp.
777 & 778] HHHH & IIII
Constitution
of
----Art.
5--National Reconciliation Ordinance, 2007, Scope of--Basic duty of every
citizen and obedience to the Constitution--Art. 5 of the Constitution in
unambiguous terms provides that loyalty to the State is the basic duty of every
citizen; and obedience to the Constitution and the law is the inviolable
obligation of every citizen, wherever he might be and of every other person for
the time being within Pakistan--Therefore, while promulgating the National
Reconciliation Ordinance, 2007, the President has to confirm to the norms and
response to the voice of the Constitution, as per the mandate of Art. 5 of the
Constitution and any action on his part which negates the dictates of the
Constitution including the fundamental rights shall be tantamount to
promulgating a law which is neither acceptable by the nation or internationally,
being not in line with the dictates of the Constitution--Therefore, the
President who is under oath to protect the Constitution in all circumstances is
not competent to promulgate an Ordinance in the name of national
reconciliation, which is not permissible under any of the legislative lists
i.e. Federal or concurrent, as per Fourth Schedule of the Constitution, perusal
whereof abundantly makes it clear that no law in the nature of the NRO, 2007
can be promulgated which instead of eliminating exploitation amongst the
citizens, as per Art. 3 of the Constitution, tends to perpetuate corruption and
corrupt practices. [Pp. 778 &
779] JJJJ
Interpretation
of Law--
----Promulgation
of law--Prerogative of Parliament, Provincial Assembly--It is the prerogative
of the Parliament or Provincial Assembly to promulgate laws according to their
respective spheres allocated to them, inter alia, taking into consideration the
provisions of Art. 227 of the Constitution, relating to promulgation of law
according to Islamic provisions. [P.
779] KKKK
National
Reconciliation Ordinance, 2007 (LX of 2007)--
----S.
7--Constitution of
National
Reconciliation Ordinance, 2007 (LX of 2007)--
----S.
7--National Accountability Ordinance, 1999, S. 33-F--Constitution of
Constitution
of
----Preamble--Future
requirements of a nation--Constitution of the country, might be written or
otherwise, represents the voice of the people--Constitution being a supreme law
of the country provides for guarantee of peace, welfare and amity of the
people, subject to their rights and obligations, against all forms of
exploitation, socio-economic justice and principles of good governance,
transformed in the principles of policy, to make the document as a living
instrument, sufficient to cater for the present and future requirements of a nation--To
achieve the objects spelt out in the preamble, has the support of 176 million
people, meaning thereby that this instrument has on its back moral strength of
the nation, therefore, it would be their earnest desire and wish that everyone
must show loyalty to the State and obedience to the Constitution and the law,
as it has been envisaged under Art. 5 of the Constitution--Object can be
achieved if the moral or ethical values, the desires of the nation, have been
transformed into a legally enforceable formulation--In instant case the
Parliamentarians i.e. the representatives of the people of Pakistan, by their
high moral conduct have already demonstrated, by not allowing the NRO, 2007 to
become the Act of the Parliament, as manifested from the proceedings of the
National Assembly, as well as by the act of the Federal and Provincial
Governments of not defending and supporting it--Will of the people of Pakistan
was not included in the promulgation of the National Reconciliation Ordinance,
2007 because despite availability of the National Assembly the same was not
placed before it as the then legislative authority, being holder of highest
office under the Constitution, is presumed to know that it is a legislation
which is being promulgated against the conscience of the Parliamentarians
representing the people of Pakistan and inconsistent with the constitutional
provisions including Art. 63(1)(h) of the Constitution, which provides for
disqualification of a person from being elected or chosen as, and from being, a
member of the Parliament, if he has been convicted by a Court of competent
jurisdiction on a charge of corrupt practices, moral turpitude or misuse of
power or authority under any law for the time being in force--Constitution has
its own conscience being a living document, therefore, any law which negates
any of the constitutional provisions shall be considered to be inconsistent
with it. [Pp. 781 &
782] NNNN
PLD
1966 SC 229 ref.
National
Reconciliation Ordinance, 2007 (LX of 2007)--
----S.
7--National Accountability Ordinance, 1999, S. 33-F--Proceedings have been
withdrawn or terminated contrary to law--The cases or proceedings have been
withdrawn or terminated contrary to law, initiated before 12th Oct. 1999,
including pending trial proceedings, conviction/acquittal appeals, inasmuch as
the transfer of pending proceedings under Section 33 of the National
Accountability Ordinance, 1999 have also been withdrawn or terminated--The
manner in which Section 33-F of the Ordinance, 1999, has been couched, suggests
that the 'holders of public office' involved in any proceedings, not only under
the Ordinance, 1999 but also in the cases under other laws i.e. P.P.C., A.T.A.,
have been withdrawn or terminated, considering the `holders of public office'
as a distinct class from the accused/convicts against whom similar proceedings
are pending in any Court, with immediate effect--How the Constitution, as per
its conscience coupled with morality, can allow Supreme Court to maintain a law
which is against all the norms of justice--Two things have become very
significant; one is category of cases, initiated on a reference by the NAB
inside or outside Pakistan and; second is that of the cases under any other
law, for the time being in force covering all nature of crimes, heinous or
minor--A `holder of public office' when enters into Parliament, he enjoys moral
authority as he has been elected by the constituents, enjoying their trust--But
a `holder of public office' whose case falls under disqualification prescribed
in Art. 63(1)(h) of the Constitution, which includes conviction by a Court of
competent jurisdiction, on the charge of corrupt practices under Section 9 of
the National Accountability Ordinance, 1999, identifies persons, who are said
to have committed the crime falling under this category--Second charge which
falls under the definition of disqualification under Art. 63(1)(h) of the
Constitution is in respect of moral turpitude. [Pp.
783 & 784] OOOO
Constitution
of
----Arts.
12, 13 & 89--National Reconciliation Ordinance, 2007, S. 7--National
Accountability Ordinance, 1999, S. 33-F--Scope of--Question of--Whether
promulgation of a law would not be against morality and conscience of
Constitution--Right of franchise--Encouraged the offence of corruption--Third
category relates to the cases of misuse of power or authority under any law for
the time being in force--Category also squarely falls within the definition of
corruption and corrupt practices as defined in Section 9 of the National
Accountability Ordinance, 1999--Thus question arises, whether a law which
instead of eliminating, has encouraged the offence of corruption and moral
turpitude, can at all not be enacted in exercise of powers under Art. 89 of the
Constitution; whether promulgation of such a law would not be against the
morality and the conscience of the Constitution; whether the constituents, in
exercise of their right of franchise, have not made out a case to strike down
such a law, which is not only contrary to the constitutional provisions, but
also calls upon Supreme Court to strike down such law as they believe that on
account of their high moral and ethical codes, it has become their enforceable
legal formulations [D.S. Nakara's case (AIR 1983 SC 130)]; and lastly whether
it is not against the conscience of the Constitution which prohibits enactment
and promulgation of any law inconsistent with its provisions--Answer to all the
questions is in affirmative and could not be else--In Section 33F of the
National Accountability Ordinance, 1999 inserted by means of Section 7 of the
Ordinance, 2007 that `holders of public office' shall also not be liable for
any action in future as well for acts having been done in good faith before the
said date--That immunity from future actions has also been provided contrary to
the Constitution and the law--Art. 12, according to which protection to a
person against retrospective punishment has been made permissible; and Art. 13,
which protects a person against double punishment and self-incrimination--Thus,
operation of Section 33-F of the Ordinance, 1999, inserted through Section 7 of
the Ordinance, 2007 seems to be in contravention to the mandate of Section 31B
of the Ordinance, 1999, which provides mechanism for withdrawal from the
prosecution of any accused person in the manner prescribed therein, but as far
as the protection against double punishment is concerned, it would only be
available to a person who has already been punished but criminal proceeding
right from the date of commencement up to final judgment has been withdrawn or
terminated, making such a person as innocent, as he was before initiation of
such proceedings at investigation stage--No case can be made out under Art. 13
of the Constitution against double punishment or self incrimination--The
`holders of public office' have been saved from future action for the crimes
committed by them as well as the crimes charged against them on the basis of
reference filed by the NAB including corruption and corrupt practices--Neither
the Constitution nor any other law permits the legislative authority i.e. the
President to promulgate a law, which fails to stand the test of Arts. 12 and 13
of the Constitution--By promulgation of the Ordinance, 2007, the `holders of
public office' have been saved from being charged of certain acts committed by
them in good faith--Essentially, Section 33F of the Ordinance, 1999, inserted
through Section 7 of the National Reconciliation Ordinance, 2007, in
generality, is dealing with the persons, facing criminal charges under any
provision of law or the crime defined under the National Accountability
Ordinance, 1999--No exception has been created for the crimes committed under
good faith except under some of the provisions of PPC, whereby protection has
been given for committing an act in good faith--Section 52 of PPC defines the
expression `good faith' as `nothing is said to be done or believed in `good
faith', which is done or believed without due care and attention'. [Pp. 784 & 785] PPPP
National
Accountability Ordinance, 1999 (XVIII of 1999)--
----S.
36--Public servant performing duty on behalf of State--Public servant
performing duty on behalf of State has been provided immunity in different
statutes with reference to the nature of the crime--Expression has been used in
Section 36 of the National Accountability Ordinance, 1999, which provides that
no suit, prosecution, or any other proceedings shall lie against the Federal
Government, Provincial Government, Chairman NAB, or any other member of the NAB
or any person exercising any power or performing any function under Ordinance,
1999 or the Rules made under it for any act or thing, which has been done in
good faith or intended to be done under Ordinance, 1999 or the rules
thereof--As far as the persons against whom proceedings or investigation are
pending before the Court of law including a High Court or Supreme Court, cannot
be said to have committed the crime, in good faith, either heinous or minor in
nature, as well as relating to corruption or corrupt practices, inside and
outside the country--Legislature while enacting a law has to adopt certain
measures before extending immunity to the functionaries of the State but at
least Supreme Court can say that an accused or convict cannot enjoy protection
for offences, or for his deeds, in the garb of good faith. [P. 786] QQQQ
National
Reconciliation Ordinance, 2007 (LX of 2007)--
----S.
7--National Accountability Ordinance, 1999, S. 33-F--Withdrawal and termiantion
of prolonged pending proceedings initiated prior to 12th Oct., 1999--Challenged
the validity of National Reconciliation Ordinance under Art. 184(3) of
Constitution--While inserting Section 33F in the National Accountability
Ordinance, 1999, a mechanism has also been provided for `withdrawal and
termination of prolonged pending proceedings, initiated prior to 12th Oct.,
1999'--One of the so-called reasons, prevailed upon the legislative authority
to promulgate such provision on account of `prolonged pending proceedings
initiated prior to 12th Oct. 1999'--On account of prolonged pending
proceedings, initiated prior to 12th Oct. 1999, the cases have been withdrawn
as according to it, necessity to promulgate the NRO, 2007 is "to promote
national reconciliation, foster mutual trust and confidence amongst `holders of
public office' and to remove the vestiges of political vendetta and
victimization, to make the election process more transparent and to amend
certain laws for that purpose and for matters connected therewith and ancillary
thereto"--Assuming that the conditions for terminating the cases being
prolonged pending proceedings is acceptable, then why the cases which have been
finalized, resulting in the conviction or acquittal and proceedings in respect
thereof were pending, have been withdrawn--Therefore, instead of withdrawing or
terminating the proceedings, mechanism should have been followed for the
disposal of cases by increasing manpower of investigating agencies and the
number of Courts. [Pp. 786 & 787] RRRR
& SSSS
PLD
1999 SC 504.
Constitution
of
----Art.
187--State must realize its duty--Power of Court--Supreme Court while
interpreting different provisions of the Constitution has an authority to make
an observation with an object that the State must realize its duty--Court is
empowered to pass appropriate orders, as it deemed fit under Art. 187 of the
Constitution as well as keeping in view the earlier precedents providing for
monitoring of the cases pending in the Courts and the increase in number of
Courts--As far as the supervision of the High Court is concerned, and for
comprehending powers of Supreme Court under Art. 187 of the Constitution. [P. 787] TTTT
PLD
1995 SC 66 ref.
National
Accountability Ordinance, 1999 (XVIII of 1999)--
----S.
33-F--National Reconciliation Ordinance, 2007, S. 7--Meaning of S. 33-F of
NAO--Whether an accused is responsible for causing the prolonged delay to
decide the case expeditiously--By means of Section 33F of the Ordinance, 1999,
inserted through Section 7 of the Ordinance, 2007, cases or proceedings have
been withdrawn or terminated, without spelling out the reasons, namely, as to
whether an accused himself is responsible for causing the prolonged delay or
the prosecution or the Courts have failed to decide the case expeditiously. [P. 789] UUUU
Constitution
of Pakisan, 1973--
----Arts.
2-A, 8, 25, 62, 63 & 175--National Reconciliation Ordinance, 2007,
Preamble--Discriminatory and inconsistent with fundamental
rights--Contention--National Reconciliation Ordinance, 2007 is not only
discriminatory and inconsistent with fundamental rights, enshrined in Art. 25
of the Constitution but also in conflict with other Arts. of the Constitution
such as Arts. 62, 63 and 175, therefore, it is not a valid law rather it is a
bad law--Art. 5 of the Constitution postulates that it is inviolable obligation
of every citizen to obey the Constitution and the law, whereas, Art. 8 (2)
prohibits the State from making any law which takes away or abridges
fundamental rights conferred by the Constitution; therefore, if a law does so,
then it shall be void, as such, the NRO, 2007, so promulgated, seems to be an
intentional violation and disobedience of the Constitutional provision,
contained in Art. 8 of the Constitution--Art. 2A of the Constitution requires
that the authority of Allah Almighty, conferred upon the chosen representatives
of the people of Pakistan, is to be exercised by them in accordance with the
Constitution and within the limits prescribed by Allah Almighty--According to
him various provisions of the National Reconciliation Ordinance, 2007 i.e--2,
3, 4, 6 & 7, are not valid provisions as they are void for various reasons,
including, being against the Injunction of Islam, violative of the mandate of
Art. 175 of the Constitution, and repulsive to the provisions of Art. 62 &
63 of the Constitution--Object of this law, for all intents and purposes, does
not seem to be `reconciliation' but it paves the way and facilitates to those,
charged with corruption and corrupt practices, plundering of national wealth
and fraud, to come back, seize and occupy echelons of power again; its aim
seems to be to legalize corruption and the crimes committed by those in power,
in the past--Courts have been deprived, by virtue of this law, from their
judicial functions by conferring powers to the administrative
authority--National Reconciliation Ordinance, 2007, besides being
discriminatory, has also been applied discriminately. [Pp. 792 & 793] VVVV
Procedure
and Conduct Business in National Assembly Rules, 2007--
----R.
139--Constitution of
PLD
1963 SC 486 ref.
National
Reconciliation Ordinance, 2007 (LX of 2007)--
----Ss.
2, 6 & 7--Constitution of
National
Reconciliation Ordinance, 2007 (LX of 2007)--
----Ss.
2, 6 & 7--Constitution of
Constitution
of
----Art.
100(3)--National Reconciliation Ordinance, 2007, S. 7--National Accountability
Ordinance, 1999, S. 33-F--Authorized to address communications to various
authorities in foreign countries including switzer land--Requests for mutual
legal assistance; securing the status of civil party and the claims lodged to
the allegedly laundered moneys lying in foreign countries including Switzerland
are declared never to have been withdrawn--Therefore the Federal Government and
other concerned authorities are ordered to take immediate steps to seek revival
of the said requests, claims and status. [P.
801] ZZZZ
National
Accountability Ordinance, 1999 (XVIII of 1999)--
----S.
6--Lack of proper and honest assistance and cooperation on the part of Chairman
NAB--Supreme Court displeasure about the conduct and lack of proper and honest
assistance and cooperation on the part of the Chairman of the NAB, the
Prosecutor General of the NAB and of the Addl. P.G. of the NAB--Consequently,
it is not possible for Supreme Court to trust them with proper and diligent
pursuit of the cases falling within their respective spheres of
operation--Federal Government might make fresh appointments against the said
posts of persons possessing high degree of competence and impeccable integrity
in terms of Section 6 of the National Accountability Ordinance, 1999 as also in
terms of the observations of Supreme Court. [P.
801] AAAAA
PLD
2001 SC 607 ref.
National
Reconciliation Ordinance, 2007 (LX of 2007)--
----S.
2--Monitoring cell--Progress and proceedings--Monitoring cell would be
established in the Supreme Court of Pakistan comprising of the Chief Justice of
Pakistan or a Judge of the Supreme Court to be nominated by him to monitor the
progress and the proceedings in respect of Court cases (explanation added in
detailed reasons) in the noticed and other cases under the NAO,
1999--Monitoring cells shall be set up in the High Courts of all the Provinces
comprising the Chief Justice of the respective Province or Judges of the
concerned High Courts to be nominated by them to monitor the progress and the
proceedings in respect of Court cases (explanation added in detailed reasons)
in which the accused persons had been acquitted or discharged under Section 2
of the National Reconciliation Ordinance, 2007. [P.
802] BBBBB
Per
Ch. Ijaz Ahmad, J. agreeing with Iftikhar Muhammad Chaudhry, C.J.
Interpretation
Constitutional Provisions--
----Principle
of historical modalities--Had benefit and privilege of going through the
judgment recorded by Mr. Justice Iftikhar Muhammad Chaudhry, Hon'ble Chief
Justice of Pakistan--In view of the importance of the matter it prudent to add
few words in support thereto--Legislative history/past events are relevant for
interpreting constitutional provisions on the principle of historical
modalities--The Muslims had ruled sub continent for a considerable
period--During the period of the Muslim rule, sub continent was rich in all spheres
of life--Rate of literacy was very high above 90 percent as highlighted by
Frishta while writing history of the sub continent--The western countries also
had belief that sub continent was rich qua all types of resources such as
minerals, wheat, rice etc as the land of the sub continent was very fertile as
compared to other parts of the world--Sub continent was almost surrounded by
mountains and large open area due to which according to the western countries
this area is known as "Soonay ke Chiria"--The kingdom of Britain and
France had entered in sub continent for the purpose of business--After death of
Aurangzeb the system of justice, established by the Muslims, was totally
dis-regarded and Muslims were fighting with each other for securing power--This
was the time when the East India Company had taken benefit of its experience
and ultimately had become rulers of the sub continent. [Pp. 802 & 803] CCCCC
Fundamental
Rights--
----Very
concept of fundamental right is that it being a right guaranteed by the
Constitution cannot be taken away by the law. [P.
805] DDDDD
Dynamic
Leadership--
----Nations
can achieve goal under dynamic leadership and the nations who had a vision to
see ahead as is evident from the speech of Lord Macaulay on the floor of the
house and also from the character of the founder of Pakistan alongwith his
vision. [P. 809] EEEEE
Constitution
of
----Art.
7--Elements and Pillars of the state--Legislative and executive--Art. 7 of the
Constitution prescribes all elements and pillars of the State for the purpose
of imposing cess and tax, legislature and executive--Legislature had
specifically not mentioned the judiciary in Art. 7 as the judiciary is duty
bound to maintain the balance between all the organs, therefore, judiciary is
mentioned in part VII under the heading of "Judicature" vide Art.
175. [P. 813] FFFFF
Constitution
of
----Arts.
5, 7, 189 & 190--National Reconciliation Ordinance, 2007, Preamble--Role of
judiciary--Salient features of constitution--Other two organs i.e. legislature
and executive have no authority whatsoever to usurp or to take role of the
judiciary as it is in violation of the salient features of the Constitution
which cannot be changed by any canon of justice--Basic features of the Constitution
could not be changed but unfortunately Supreme Court could not take that stand
earlier except the judgments that is why the country since creation on
14-8-1947 till to date most of the time there was no democratic government
around for about 37 years--Each and every organ must resolve to save the nation
and country to remain within their spheres and discharge their duties in
accordance with law--Art. 4 of Constitution compels every body to act in
accordance with law whereas Art. 5 of the Constitution cast duty upon each and
every organ/person to obey the command of the Constitution--Arts. 189 and 190
of the Constitution has prescribed duty to every organ to implement judgments
of the Courts. [P. 813] GGGGG
National
Reconciliation Ordinance, 2007 (LX of 2007)--
----Preamble--Constitution
of
Constitution
of
----Art.
89(2)--National Reconciliation Ordinance, 2007, Preamble--Challenging the
validity of Ordinance, 2007, u/Art. 184(3) of Constitution--Principle of check
and balance was incorporated--President had the same power as of the National
Assembly to frame the laws, that is why principle of check and balance was
incorporated in Art. 89(2) that life of the Ordinance would be four months and
the parliament had power even to pass resolution disapproving the Ordinance by
the assembly that it would automatically stand repealed after expiry of four
months from its promulgation or before the expiration in case of resolution of
its disapproval is passed--President had also power to withdraw the Ordinance
at any time--President had to promulgate the ordinance at the advice of the
cabinet--This fact brings the case in the area that it was the satisfaction of
the Parliament under Art. 89(1) as is evident from the summaries produced
before the Court by Acting Attorney General for Pakistan--Preamble of the NRO
also does not reveal that any satisfaction was made before promulgating of the
Ordinance--When a thing is to be done in a particular manner, it must be done
in that manner and not otherwise--NRO was promulgated even in violation of Art.
89--Scheme of the Constitution is based on trichotomy but in case the Court
read the Constitution as a whole then it automatically emerges that there is
4th pillar i.e--people of Pakistan for whose benefit every law be framed who
are the real sovereign because the people of Pakistan had chosen the
representatives of National Assembly and provincial assemblies and
Senate--National Reconciliation Ordinance has not been framed for the welfare
of the people of Pakistan--It had been framed by the then President of Pakistan
for his benefit and benefit of the other privileged class--It is very difficult
for Court to imagine that any written or unwritten constitution can allow
framing law against the welfare of people of the country--Similarly the
President had a power to pardon by virtue of Art. 45 of the Constitution but
had no right whatsoever to give clean chit or to withdraw the case of the
complainant whose near relations were murdered--The whole ordinance and
preamble to Section 7 is in violation of various provisions of the
Constitution. [Pp. 814 & 815]
IIIII
Words
& Phrases--
----Corruption--The
word corruption has been defined as it has diverse meanings and far reaching
effects on society, Government and people--In other words it has always been
used in a sense which is completely opposite to honesty, orderly and actions
performed according to law--A person working corruptly acts inconsistent with
the official duty, the rights of others and the law governing it with intention
to obtain an improbable advantage for self or some one else. [P. 815] JJJJJ
Constitution
of
----Preamble--It
is the document which contemplates the grundnorms of State and its laws--Aim of
all jurisprudence is "public good" or "Welfare of the
people"--No law can be wholesome and no state can be a welfare state
unless the principles of amr bil maruf wan hi anil munkar is strictly adhered
to--God Almighty has created mankind and He loves those who love its creation
and strives for its welfare. [P. 818]
KKKKK
Constitution
of
----Preamble--The
preamble, containing objective resolution, of the Constitution of Pakistan,
1973 cast a sacred duty on the chosen representative of the people and, that
is, to exercise powers and authority to run the State in such manner which
promotes: (i) principles of democracy, freedom, equality, tolerance and social
justice, as enunciated by Islam; (ii) Muslim to order their lives in the
individual and collective spheres in accordance with the teaching and
requirements of Islam as set out in the Holy Quran and Sunnah; (iii) protection
of minorities and backward and depressed classes; (iv) autonomy of the units of
Federation; (v) Fundamental Rights, including equality of status, of
opportunity and before law, social, economic and political justice, and freedom
of thought, expression, believe, faith, worship and association, subject to law
and public morality; (vi) independence of judiciary; (vii) integrity of the
territories of the Federation, its independence and all its rights, including
its sovereign rights on land, sea and air, in fact are the grundnorms and
limitations of each organ of the State. [P.
819] LLLLL
Vires
of a Statute--
----Scope--Validity
of any law can be tested by its result or fruit--If a law evokes healthy
feelings/atmosphere, then it is valid otherwise it is void--An illegal morsel
gives birth to evils--Similarly any legislation which hurts the welfare of the
people should not be allowed to stand among the people. [P. 819] MMMMM
National
Reconciliation Ordinance, 2007 (LX of 2007)--
----Preamble--Corruption
and corrupt practice--If Supreme Court allow to hide/swallow corruption and
corrupt practices, then obviously it would not be conducive for the people of
Pakistan and for the welfare of the State--The people of Pakistan might prosper
and attain their rightful and honoured place amongst the nations of the world
and make their full contribution towards international peace and progress and
happiness of humanity if grundnorms stated in preamble are strictly followed--NRO,
2007 being an illegal morsel is declared
a legislation viod ab initio--National Reconciliation Ordinance, 2007 is not
valid. [Pp. 819 & 820] NNNNN
& OOOOO
Constitution
of
----Arts.
189 & 189(2)--National Reconciliation Ordinance, 2007, Preamble--Challenge
the validity of NRO under Art. 184(3) of Constitution--Though there was no
significant opposition to these petitions and even though the Federal
Government did not defend the NRO the important constitutional issues raised
through these petitions were thrashed out to ensure that there is adherence to
the provisions and norms of the Constitution, not only for the sake of deciding
these cases but also to lay down precedent for the institutions of the State
and its functionaries in terms of Art. 189 of the Constitution. [P. 821] PPPPP
National
Reconciliation Ordinance, 2007 (LX of 2007)--
----Preamble--There
can be no possible objection to the avowed objectives of the NRO as set out in
its preamble, viz--promotion of national reconciliation and removal of the
vestiges of political vendetta and victimization--These objectives, however,
must be achieved through means which are permitted by the Constitution--The
Court while exercising the judicial function entrusted to it by the
Constitution is constrained by the Constitution and must, therefore, perform
its duty of resolving matters coming before it, in accordance with the dictates
of the Constitution and the laws made thereunder--Decisions as to what is good
or bad for the people must be left to the elected representatives of the
people, subject only to the limits imposed by the Constitution. [P. 821] QQQQQ
Constitution
of
----Scope
of--Court cannot and should not base its decisions on expediency or on
consideration of the consequences which may follow as a result of enforcing the
Constitution. [P. 821]
RRRRR
PLD
2009 SC 879 ref.
Destabilization
of Rule of Law--
----Plea
to the Court to once again revert to the disastrous and rejected route of
expediency and to tailor the outcome of these petitions by looking at the
consequences which will follow, rather than the requirements of the
Constitution--Path of expediency and subjective notions of `State necessity'
are dead and buried--Democratically elected Federal Government should be imploring
the Court to act in a manner otherwise than in accordance with law--Supreme
Court will not take into account extraneous considerations while exercising its
judicial powers and also that adherence to the Constitution can never lead to
"destabilization of the rule of law." On the contrary, any breach of
Constitutional norms is likely to destabilize the rule of law. [P. 823] SSSSS
Rule
of Law--
----Stabilizing
the rule of law falls on and must be assumed by the executive organ of the
State which also commands a majority in the legislature--Requirement of the
Parliamentary democratic dispensation ordained by Constitution--Political
stability and the rule of law will flow as a natural consequence of giving
sanctity and respect to the Constitution, both in letter and in spirit--The
Court can only strengthen the rule of law by upholding the Constitution, which
is, in fact, the supreme law--Executive and legislative limbs of the State are
also constitutionally obliged to apply the powers and resources at their
command, in enforcing the Constitution and the rule of law without
discrimination or undue favour to any person or class. [P. 823] TTTTT
Rule
of Law--
----`Good
governance' and `rule of law' became fashionable--Importance of good governance
and the rule of law and their direct co-relation with political stability was
recognized by enlightened rulers--He was told to build the walls of justice
i.e--the rule of law and this would ensure peace, stability and freedom from
the fear of enemies. [P. 823] UUUUU
Non-discriminatory
law--
----By
striking down the National Reconciliation Ordinance the Court does not
foreclose the possibility or impinge on the prerogative of the legislature to
enact a non-discriminatory law which can pass constitutional muster and is motivated
by a desire to bring about a true and inclusive reconciliation which is
genuinely national in its outreach and attempts to bring within its fold
disparate groups harbouring valid grievances against oppressive and vindictive
use of State machinery in the past--Even those who may have committed wrongs in
the past and were not wronged against, are not beyond being redeemed through a
compassionate law which heals the fissures in the nation's divided
polity--These are, however, matters which fall squarely within the legislative
and executive domains, should these organs of the State wish to act. [P. 824] VVVVV
Concept
of Tauba--
----The
concept of tauba and sincere repentance coupled with restitution of any
ill-gotten gains and the expression of genuine remorse for past excesses
provide an age-old matrix for fostering reconciliation--Where a Truth and
Reconciliation Commission has been able to bring about a genuine national
reconciliation between staunch opponents divided among other things, by race
and embittered by decades of apartheid--An example of national reconciliation
also appears in our own nation's history--It would, as noted above, be for the
executive and the legislature to consider the potential and the possibilities
of what can be achieved by way of reconciliation, as opposed to perpetuation of
the venom and mutual recriminations which continuously divide the nation at the
cost of its well-being--Supreme Court, however, can only abide by the rule of
law and in order to do so it must limit itself to the adjudication of
controversies in accordance with the Constitution and with laws made
consistently therewith. [P. 824]
WWWWW
Mr.
Abdul Hafeez Pirzada, Sr. ASC, Mr. Salman Akram Raja, ASC and Mr. Ejaz Muhammad
Khan, AOR, Assisted by: Mr. Abdul Mujeeb Pirzada, Sr. ASC, Mr. M.Afzal
Siddiqui, ASC, Mian Gul Hassan Aurangzeb, ASC, Mr. Sikandar Bashir Mohmand,
ASC, Barrister Feroze Jamal Shah, Adv., Mr. Hameed Ahmed, Adv., Mr. Mustafa
Aftab Sherpao, Adv., Mr. Sameer Khosa, Adv., Mr. Umar Akram Chaudhry, Adv.
& Malik Ghulam Sabir, Adv. for Petitioner (in Const. P. 76/2007).
Mr.
Muhammad Ikram
Dr.
Farooq Hassan, Sr. ASC, Mr. Hashmat Ali Habib, ASC & Ch. Muhammad Akram,
AOR for Petitioner (in Const.P.78/07).
Mr.
Ashtar Ausaf Ali, ASC for Petitioner (in Const.P.79/07).
Mr.
Tariq Asad, ASC (in person) (in Const.P.80/07).
Mr.
A.K. Dogar, Sr. ASC for Petitioner (in Const. P. 59/09).
Mr.
Shahid Orakzai (in person) for Petitioner (in CMA 4842/09).
Raja
Muhammad Ibrahim Satti, Sr. ASC for Petitioners (in CA.1094/2009).
Nemo
for Respondents (in HR. Cases)
Mr.
Kamal Azfar, Sr. ASC, assisted by Mr. K.K. Agha, ASC, Raja Abdul Ghafoor, AOR
for Respondents (in Const. P. 76-77/07)
Raja
Abdul Ghafoor, AOR for Respondents (in Const. P. 78-80/07 & 59/09).
Dr.
Danishwar Malik, PG, Mr. Abdul Baseer Qureshi, Addl: PG, Dr. Asghar Rana, ADPG,
Ch. Akhtar Ali, AOR & Mr. Naveed Ahsan, Chairman NAB for NAB.
Mr.
Shah Khawar, Acting Attorney General for
Dr.
Salahuddin Mengal, AG on for Government of Balochistan.
Mr.
Zia-ur-Rehman, A.G., Mr. Zahid Yousaf, Addl. A.G. and Mr. Naveed Akhtar, A.A.G.
for Govt. of NWFP.
Mr.
M. Hanif Khattana, Addl: AG & Ch. Khadim Hussain Qaiser, Addl: AG for Govt.
of
Mr.
Yousaf Leghari, AG for Govt. of Sindh
Malik
Muhammad Qayyum, Sr. ASC, Former Attorney General for Pakistan, Mr. Justice (R)
M. Riaz Kiani, Secretary Law & Justice, Dr. Riaz Mehmood, Sr. Joint
Secretary, Syed Nasir Ali Shah, Solicitor General and Mr. M. Salman Faruqui,
Secretary General to the President on Court's Call.
Mian
Allah Nawaz, Sr. ASC, Mr. Shaiq Usmani Sr. ASC, Mr. M. Sardar Khan, Sr. ASC
Assisted By Mr. Idrees Ashraf, Adv. for Amicus Curiae.
Dates
of hearing: 07-10 & 14-16.12.2009.
Judgment
Iftikhar
Muhammad Chaudhry, CJ.--Constitution Petition Nos. 76 to 80 of 2007 and 59 of
2009 have been filed, challenging the constitutionality of the National
Reconciliation Ordinance, 2007 [hereinafter referred to as "the National
Reconciliation Ordinance, 2007"], whereas Civil Appeal No. 1094 of 2009
(by leave of the Court), has been filed against the order dated 15th January
2009, passed by High Court of Sindh in Constitution Petition No. 355 of 2008,
whereby the benefit of the NRO, 2007 has been declined to the appellant.
Similarly, in Human Right cases, the applicants have prayed that the benefit of
the NRO, 2007 may also be extended to them.
2. Brief facts, leading to filing of the listed
petitions are that on 5th October 2007, the President of Pakistan [hereinafter
referred to as "President"], while exercising his power under Article
89 of the Constitution of the Islamic Republic of Pakistan, 1973 [herein after
referred to as "the Constitution"], promulgated the NRO, 2007 vide
Ordinance No. LX of 2007.
3. The above Ordinance came under challenge,
immediately after its promulgation, before this Court, by invoking jurisdiction
under Article 184(3) of the Constitution, in the listed Constitution Petitions,
when, on 12th October 2007, after hearing the learned counsel for the
petitioners at a considerable length and examining the case law, the Court
passed an order, which is reproduced hereinbelow:--
"These
petitions have been filed under Article 184(3) of the Constitution of Islamic
Republic of Pakistan, 1973 [herein after referred to as "the
Constitution"] challenging the National Reconciliation Ordinance, 2007
(No. LX of 2007) [herein after referred to as "the impugned
Ordinance"].
2.
Mr. Salman Akram Raja, learned counsel appearing on behalf of petitioner in
Constitution Petition No. 76 of 2007 argued that:--
(a) Section 7 of the impugned Ordinance
being self-executory in nature amounts to legislative judgment, which is
impermissible intrusion into the exercise of judicial powers of the State and
thus falls foul of Article 175 of the Constitution which envisages separation
and independence of the judiciary from other organs of the State.
(b) Legislative judgment cannot be
enacted by the Parliament. [Smt. Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC
2299)].
(c) By promulgating Section 7 of the
impugned Ordinance, Article 63(1)(h) and 63(1)(l) of the Constitution have been
made ineffective, as regards chosen category of people, therefore, it is ultra
vires the Constitution as it amounts to defeat the constitutional mandates.
(d) Impugned Ordinance exhorts about or
indemnifies a particular class of people i.e. public office holders from
proceedings, actions and orders passed by the competent authorities, whereas no
such powers are available to the Parliament or, for that matter, to the
President of Pakistan under Federal or Concurrent Legislative List. Further;
the President is empowered only to pardon an accused person, under Article 45
of the Constitution, after passing of sentence by a Court of law, whereas by
means of impugned Ordinance, the President has been empowered to indemnify or
pardon an accused, against whom proceedings are pending before Investigating
Agency or a Court of law or in appeal by giving a blanket cover.
(e) The impugned Ordinance violates the
provisions of Article 25 of the Constitution because it is not based on
intelligible differentia, relatable to lawful objects, therefore, deserves to
be struck down.
(f) The impugned Ordinance is against
the public policy because it also provides protection against future action in
terms of its Section 7 and it had also rendered Articles 62 and 63 of the
Constitution ineffective.
(g) Sub-sections (2) and (3) of Section
494 of Cr.P.C. added by means of impugned Ordinance are contrary to provisions
of Subsection (1) of Section 494 of Cr.P.C. where it has been provided that
cases can only be withdrawn with the consent of the Court, whereas, in newly
added Sub-Sections, powers of the "Court" have been conferred upon
the Review Boards of the Executive Bodies, therefore, these Sub-sections are
also contrary to Article 175 of the Constitution.
and
No criteria has been laid down
as to why the cases falling between the 1st day of January 1986 to 12th day of
October 1999 have been covered under these provisions, inasmuch as definition
of political victimization has not been provided in these Sub-sections, as a
result whereof it has been left at the subjective consideration of Review
Board/Executive Bodies to determine the same. Thus such provisions cannot exist
in any manner.
(h) The impugned Ordinance has been
promulgated in colorable exercise of Legislative powers and its various
provisions have created discrimination among ordinary and classified accused,
therefore, all these provisions tantamount to malice in law.
(i) The provisions of impugned Ordinance
are so overbroad that these have provided blanket cover to all the holders of
public offices, including chosen representatives and ordinary employees,
therefore, the object of national reconciliation cannot be achieved by allowing
it to exist.
(j) The provisions of Sections 4 and 5
of the impugned Ordinance are highly discriminatory in nature, therefore, are
liable to be struck down.
(k) Section 6 of the impugned Ordinance
is contrary to the basic principles relating to annulment of judgments, even if
passed in absentia, in accordance with existing law, according to which unless
the basis for the judgment, in favour of a party, is not removed, it could not
affect the rights of the parties, in whose favour the same was passed but when
the Legislature promulgated the impugned Ordinance, in order to remove the
basis on which the judgment was founded, such judgment shall have no bearing on
the cases. [Facto Belarus Tractor Ltd. v. Government of
3. Mr. Muhammad Ikram Chaudhry, learned Sr. ASC
for petitioner in Constitution Petition No. 77 of 2007, while adopting the
above arguments, added that:--
(i) The impugned Ordinance is purpose
specific and period specific, therefore, violates Article 25 of the
Constitution.
4. Dr. Farooq Hassan, Sr. ASC appearing in
Constitution Petition No. 78 of 2007 on behalf of petitioner, while adopting
the arguments raised by Mr. Salman Akram Raja, ASC contended that:--
(i) The impugned Ordinance is
contradictory to and violative of the United Nation's Convention Against
Corruption, enacted in 2005 and ratified by
(ii) Under the Constitution, no indemnity
or amnesty can at all be given to any one, except granting pardon in terms of
Article 45 of the Constitution.
(iii) Sections 2, 4, 5 and 6 of the impugned
Ordinance are violative of the doctrine of trichotomy of powers.
(iv) The impugned Ordinance has in fact
changed the basic structure of the Constitution.
(v) The impugned Ordinance has also
violated the principles of political justice and fundamental rights because it
allows plundering of national wealth and to get away with it. More so, it tried
to condone dishonesty of magnitude which is unconscientious and shocking to the
conscience of mankind.
5.
Mr. M.A. Zaidi, AOR appeared on behalf of Mr. Muhammad Akram Sheikh, Sr. ASC in
Constitution Petition No.79 of 2007 and adopted the above arguments of the
learned counsel for the petitioners.
6.
Mr. Tariq Asad, ASC appearing in Constitution Petition
No. 80 of 2007 also adopted the above arguments, while adding that:-
(a) The impugned Ordinance has been
promulgated on the basis of personal satisfaction of the President of Pakistan
but for extraneous reasons and to provide indemnity/immunity to the public
office holders, therefore, is liable to be struck down.
7.
Learned counsel appearing in Constitution Petition Nos. 76, 77 and 78 of 2007
prayed for suspension of operation of Sections 6 and 7 of the impugned
Ordinance as according to their apprehension, both these Sections contain
self-executory powers, therefore, if allowed to continue, the very object of
filing of petitions will be frustrated because of extension of benefit to a
public office holder, who intends to derive benefit out of the same.
8. It
has been pointed out to them that ordinarily the provisions of a law cannot be
suspended because this Court can only suspend a particular order, judgment or
action, etc. However, we are inclined to observe in unambiguous terms that any
benefit drawn or intended to be drawn by any of the public office holder shall
be subject to the decision of the listed petitions and the beneficiary would
not be entitled to claim any protection of the concluded action under Sections
6 and 7 of the impugned Ordinance, under any principle of law, if this Court
conclude that the impugned Ordinance and particularly its these provisions are
ultra vires the Constitution.
9.
Issue notices to the respondents as well as to Attorney General for
Let
these petitions be set for hearing for a date after three weeks."
4. Here it comes the episode of 3rd November
2007, when General Pervez Musharraf, the then President and also the Chief of
Army Staff, proclaimed emergency in the country by means of Proclamation of
Emergency Order, 2007 and apart from issuing Provisional Constitution Order,
2007, also issued Oath of Office (Judges) Order, 2007 and under the garb of
these unconstitutional instruments, the Judges of Supreme Court, including
Chief Justice of Pakistan, were restrained to perform their constitutional
functions and many of them were put under house arrest, whereas, Abdul Hameed
Dogar (the then Judge of this Court) took the oath of the office of Chief
Justice of Pakistan along with four other Judges, out of eighteen Judges of
this Court, on the same day i.e. 3rd November 2007.
5. It is pertinent to note that by means of
Article 5(1) of the Provisional Constitution Order, 2007 dated 3rd November
2007 and then under Article 270AAA of the Constitution, inserted through the
Constitution (Amendment) Order, 2007, all the laws including the Ordinances,
issued by the then President, which were in force at the time of revocation of
the proclamation of emergency, were provided permanency, as a result whereof
the NRO, 2007 was also declared to be a permanent law.
6. On 6th February 2008, instant petitions were
fixed before a Bench, comprising unconstitutional Chief Justice and four other
Judges, when, on the request of the counsel, the same were adjourned for a date
in office during last week of February 2008. Again, these matters were taken up
on 27th February 2008 by the same Bench, when Dr. Mubashir Hassan (petitioner
in Const. P.76/2007) requested for adjournment of the case on the ground that
his counsel Mr. Abdul Hafeez Pirzada, Sr. ASC is undergoing medical treatment
abroad. However, the Court, while dismissing Constitution Petition Nos. 78, 79
& 80/2007 for want of prosecution, adjourned the Constitution Petition Nos.
76 & 77/2007, to a date in office, due to indisposition of the learned
counsel but without providing opportunity of hearing to the counsel for the
petitioners and without issuing notices to amicus curiae, proceeded to modify
order dated 12th October 2007, to the following effect:--
"The
petitioners seek adjournment of these cases as their learned counsel (Mr. Abdul
Hafeez Pirzada, Sr. ASC) is undergoing medical treatment abroad.
2. On
the other hand, Malik Muhammad Qayyum, learned Attorney General for
3.
These Constitution Petitions are adjourned to a date in office due to
indisposition of the learned counsel for the petitioners. Meanwhile, in view of
the rule laid down in the case of Federation of Pakistan vs. Aitzaz Ahsan (PLD
1989 SC 61), the observations made by this Court in Para 8 of the order dated
12.10.2007 in Constitution Petition Nos. 76-80 of 2007 to the effect that
"however, we are inclined to observe in unambiguous terms that any benefit
drawn or intended to be drawn by any of the public office holder shall be
subject to the decision of the listed petitions and the beneficiary would not
be entitled to claim any protection of the concluded action under Sections 6
and 7 of the impugned Ordinance, under any principle of law, if this Court
conclude that the impugned Ordinance and particularly its these provisions are
ultra vires the Constitution" are deleted. Resultantly, the Ordinance
shall hold the field and shall have its normal operation. The Courts and
authorities concerned shall proceed further expeditiously in the light of the
provisions of the Ordinance without being influenced by the pendency of these
petitions."
7. It is to be noted that this Court vide
judgment dated 31st July 2009, in the case of Sindh High Court Bar Association
v. Federation of Pakistan (PLD 2009 SC 879), declared the Proclamation of
Emergency, 2007, Provisional Constitutional Order,
2007, Oath of Office (Judges) Order, 2007, Provisional
Constitution (Amendment) Order, 2007 and the Constitution (Amendment) Order,
2007, to be unconstitutional, illegal and void ab initio. Consequently all the
Ordinances (including the NRO, 2007) were shorn of the permanency, which was
provided under Article 270AAA of the Constitution, as validated in Tikka Iqbal
Muhammad Khan v. General Pervez Musharraf (PLD 2008 SC 178). But the Court, while
adhering to the doctrine of constitutional trichotomy, referred the NRO, 2007
along with other Ordinances, to the Parliament for consideration to make them
Act of the Parliament, or the Provincial Assemblies, as the case may be, with
retrospective effect. The relevant paras from the said judgment are reproduced
hereinbelow for ready reference:--
"186.
Proclamation of Emergency and PCO No. 1 of 2007 having been declared
unconstitutional and void ab initio and the validity purportedly conferred on
all such Ordinances by means of Article 270AAA and by the judgment in Tikka
Iqbal Muhammad Khan's case also having been shorn, such Ordinances would cease
to be permanent laws with the result that the life of such Ordinances would be
limited to the period specified in Articles 89 and 128 of the Constitution,
viz., four months and three months respectively from the date of their
promulgation. Under Article 89 of the Constitution, an Ordinance issued by the
President, if not so laid before the National Assembly, or both Houses of
Parliament, stands repealed on expiration of four months from its promulgation.
Similarly, under Article 128 of the Constitution, an Ordinance issued by the
Governor, if not so laid before the concerned Provincial Assembly, stands
repealed on expiration of three months from its promulgation.
187.
It may be noted that such Ordinances were continued in force throughout under a
wrong notion that they had become permanent laws. Thus, the fact remains that
on the touchstone of the provisions of Articles 89 and 128 read with Article
264 of the Constitution and section 6 of the General Clauses Act, 1897, only
such rights, privileges, obligations, or liabilities would lawfully be
protected as were acquired, accrued or incurred under the said Ordinances
during the period of four months or three months, as the case may be, from
their promulgation, whether before or after 3rd November, 2007, and not
thereafter, until such Ordinances were enacted as Acts by the Parliament or the
concerned Provincial Assembly with retrospective effect.
188.
In the light of the above, the question of validation of such Ordinances would
be required to be decided by the Parliament or the concerned Provincial
Assemblies. However, the period of four months and three months mentioned
respectively in Articles 89 and 128 of the Constitution would be deemed to
commence from the date of short order passed in this case on 31st July, 2009
and steps may be taken to lay such Ordinances before the Parliament or the
respective Provincial Assemblies in accordance with law during the aforesaid
periods. This extension of time has been allowed in order to acknowledge the
doctrine of trichotomy of powers as enshrined in the Constitution, to preserve
continuity, to prevent disorder, to protect private rights, to strengthen the
democratic institutions and to enable them to perform their constitutional
functions, which they were unconstitutionally and illegally denied under PCO
No. 1 of 2007. Needless to say that any validation whether with retrospective
effect or otherwise, shall always be subject to judicial review on the well
recognized principles of ultra vires, non-conformity with the Constitution or
violation of the Fundamental Rights, or on any other available ground."
(emphasis provided).
8. It seems that the NRO, 2007 was laid before
the National Assembly from where it travelled to the Standing Committee of the
National Assembly on Law & Justice, where the matter was taken up in its
meetings held on 29th & 30th October 2009, and subsequently, it was again
brought on the floor of the National Assembly from where it was withdrawn as is
evident from the documents placed on record. Details in this behalf, if needed,
shall be considered subsequently.
9. These petitions remained pending in the office.
In the meantime, another petition being, Civil Petition No. 142-K of 2009 (now
Civil Appeal No. 1094/2009), was filed by one Fazal Ahmed Jat, praying therein
that the benefit of the NRO, 2007 extended to the other accused of or convicted
under the National Accountability Ordinance, 1999 [herein after referred to as
"the NAO, 1999"] be also extended to him. The Constitution Petition
Nos. 78, 79 & 80 of 2007, on the request of petitioner and with the consent
of learned Acting Attorney General for
10. In all the Constitution Petitions, almost
same prayers have been made, however, for reference, prayer clause from one of
the petitions i.e. Constitution Petition No. 78 of 2007, filed by Qazi Hussain
Ahmed, Amir Jamat-e-Islami, is reproduced hereinbelow for convenience:-
"The
Ordinance entitled `National Reconciliation Ordinance, 2007' be declared as
being utterly unconstitutional and violate both the Constitution, law of the
land, and International Treaties & the UN Law.
It is
further prayed that it be declared that the said Ordinance enacted on 5th
October is contrary to Law and the Constitution as being mala fide, ultra vires
and corum non judice and of no consequential effect ab initio.
Any
identical relief pendente lite due to the petitioner ex debito justitae be
graciously granted."
11. In response to notices of hearing, no defence
was put up on behalf of the Federation of Pakistan and others, including all
the Federating Units as well as the National Accountability Bureau [herein
after referred to as `the NAB']. On 7th December, 2009, learned Acting Attorney
General for Pakistan, however, placed on record a written statement before the
Court, wherein significantly, in unambiguous terms, it was mentioned that
"the Federation of Pakistan reiterates as repeatedly stated by the Prime
Minister of Pakistan Syed Yousaf Raza Gillani that Seventeenth Amendment is not
valid, as much as it violates the basic features of the Constitution.
Therefore, as Parliamentary Committee of both the Houses is in the process of
preparing its recommendations". As far as the remaining clauses relating
to supremacy of the Constitution and non-defending of the NRO, 2007 are concerned,
same were incorporated therein as well. Accordingly, relevant contents of the
letter and the stand of the Federating Units and the NAB were reduced in
writing, during the hearing, which is reproduced hereinbelow:--
"Mr.
Shah Khawar, Acting Attorney General for Pakistan, who is otherwise appearing
in response to notice under Order XXVII-A CPC, has placed on record a written
statement on behalf of Federation of Pakistan, relevant paras wherefrom, being
No. 2&3, are reproduced hereinbelow:--
2. That the Federation believes in
supremacy of the Constitution of 1973 and the Parliament.
3. That the National Reconciliation
Ordinance, 2007 was promulgated by the previous regime and I am under
instruction not to defend it.
2. Learned Advocates General of Sindh, NWFP &
Balochistan, and Additional Advocate General Punjab, when enquired about their
reaction in respect of statement, so filed by the Acting Attorney General for
12. During the course of hearing, Federation of
Pakistan has submitted Civil Misc. Application Nos. 4875 & 4898 of 2009, of
identical nature, wherein attention of the Court was drawn towards its earlier
judgment passed in Sindh High Court Bar Association's case (PLD 2009 SC 879)
and at pages 11 & 12 of the said applications, apprehension of
destabilization of the system was expressed in the following terms:--
"If
however, this
Pak
Today is poised at the cross roads. One road leads to truly federal democratic
welfare state with the balance of power between an Independent judiciary, a
duly elected Govt. representing the will of the people a determined executive
which is fighting the war against terrorism and poverty. The second road leads
to destabilization of the rule of law. The people of
As in
above statement apprehension of destabilization of the system has been
expressed, therefore, Mr. Kamal Azfar, learned Sr. ASC, who had filed the
Applications, referred to hereinabove, was called upon to submit an affidavit,
clarifying the stand taken by him. Surprisingly, he, verbally, contended that
"apprehension of destabilization of the democratic system is from GHQ and
CIA". The words so uttered by him are as follows:--
"There
are extra constitutional forces in
The
above statement on behalf of Federation was prominently noted by the leading
newspapers. On the same day, learned Acting Attorney General once again made a
categorical statement of accepting the decision, whatsoever, will be recorded
by this Court. His such statement has also been recorded vide order dated 15th
December, 2009, which is reproduced hereinbelow for convenience:--
"Learned
Attorney General for
On
the next date of hearing, another written statement was filed by Mr. Kamal
Azfar, learned Sr. ASC, which reads as follows:--
"STATEMENT
In
Compliance of the orders of the Hon'ble Supreme Court of Pakistan to appraise
the
(1) There is no mention of the wording
`threat to democracy' in the Statement.
(2) The Federation supports the
Prosecution, in accordance with law, of persons alleged to have done wrong
doing. The Federation does not oppose the Petitions seeking a declaration that
the National Reconciliation Ordinance 2007 (NRO) is illegal and
unconstitutional.
(3) With regard to the "wider
issues" mentioned in paragraph No. 9 these refer to those matters which
were raised by the Petitioner's counsel during oral arguments and which find no
mention whatsoever in the Petitions. For example, submissions made in respect
of Articles 89 (in particular the alleged concept of "implied
Resolution") and A.264 on the effect of Repeal.
(4) The Federation's view is that those
who have benefited under the NRO should be proceeded against under the
appropriate laws before the Courts having the competent jurisdiction. As
factual matters need to be determined by the Trial Courts.
(5) So far as my comments made yesterday
before this
(6) It is emphasized that the Federation
of Pakistan holds this
The
above statement, filed on behalf of Federation of Pakistan, has disclosed the
intention of Federation of Pakistan, particularly to the effect that those who
have acquired benefit under the NRO, 2007 should be proceeded against under the
relevant laws, before the Courts of competent jurisdiction, as factually
matters need to be determined by the Trial Court. Learned Acting Attorney
General for
13. Mr. Salman Akram Raja, ASC for the petitioner
in Constitution Petition No. 76 of 2007, submitted as under:--
(a) `Reconciliation' is not a new
phenomenon, as the same has been adopted in various jurisdictions of the World,
going back right from the Fatah-e-Makkah, when a general amnesty was announced
by the Holy Prophet (PBUH) for the people of Makkah, till 1995 when the same
was provided in South Africa through Promotion of National Unity and
Reconciliation Act of 1995. Although, in the NRO, 2007 the word `national reconciliation'
has been borrowed from the history but it has nothing to do with it, in any
sense.
(b) Section 7 of the NRO, 2007 is
patently discriminatory on the ground that it has created unreasonable
classification between the `holders of public office' and the general public
and then further created classification amongst the `holders of public office'
on the basis of time period, therefore, being promulgated in colourable
exercise of legislative power, it is tantamount to malice in law.
(c) The classifications made through the
NRO, 2007 are overbroad as a wide array of persons including politicians,
bureaucrats, Army personnel and others have been included in it under the label
of `holders of public office'. It is inclusive on the basis of time specification,
as it does not cover the cases/proceedings initiated after 12th October 2007,
as such, having irrational classification is liable to be struck down.
(d) The NRO, 2007 provides indemnity and
potential cover to a particular class of persons involved in criminal cases
including the `holders of public office' from the operation of law by
withdrawing cases and termination of proceedings pending against them. This is
tantamount to an affirmative action in favour of elite class.
(e) Section 7 of the NRO, 2007 is self
executory provision, which took effect on its own terms, with effect from 5th
October 2007.
(f) The NRO, 2007 although has lapsed on
the expiry of its constitutional life but its effect is likely to remain
intact, therefore, it has to be declared void ab initio and nullity in the eye
of law.
(g) The preamble of the NRO, 2007 is not
in consonance with the text of the statute and do not reconcile with each
other. [reliance placed on the cases of Abdul Baqi v. Muhammad Akram (PLD 2003
SC 163) and Ghulam Mustafa Insari v. Govt. of the Punjab (2004 SCMR 1903)].
(h) The NRO, 2007 is time specific as it
has created further classification amongst its subject i.e. period commencing
from 1st January 1986 to 12th October 1999, therefore, being not based on intelligible
differentia relatable to lawful object, is violative of Article 25 of the
Constitution and is liable to be struck down. [reliance placed on the case of
Govt. of Balochistan v. Azizullah Memon (PLD 1993 SC 341)].
(i) The provisions of Section 2 of the
NRO, 2007 provides benefit to the persons involved in the cases of murder,
rape, kidnapping for ransom and Hudood cases, therefore, it is ultra vires to
Article 2A of the Constitution being violative of the Injunctions of Islam.
(j) In view of Section 494 Cr.P.C., the
permission to withdraw cases has to be given by the Court judiciously after due
application of mind. By means of Section 2 of the NRO, 2007 sub-Sections (2)
& (3) have been added in Section 494 Cr.P.C., whereby judicial powers of
the Court have been vested in a Review Board (Executive body), which amounts to
usurping such power of the Court, therefore, Section 2 of the NRO, 2007 is
liable to be struck down being violative of Article 175 of the Constitution,
regarding separation of powers between Executive and Judiciary. [reliance
placed on the cases of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445),
Bihar v. Ram Naresh Pandey (AIR 1957 SC 389), Rahul Agarwal v. Rakesh Jain
{(2005) 2 SCC 377=AIR 2005 SC 910}, Liyanage v. The Queen {(1967) 1AC 259},
& Brandy v. Human Rights Commission (183 CLR 245)].
(k) The NRO, 2007 is a special law, which
cannot purport to amend the general law i.e. Cr.P.C., therefore, such attempt
is not allowable. It is also against the principle that a temporary law cannot
amend the permanent law, as the maximum life of an Ordinance is 120 days and no
amendment can survive beyond that period and lapses with the lapse of temporary
legislation. [reliance placed on the cases of Government of Punjab v. Zia Ullah
Khan (1992 SCMR 602) & Shabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66)].
(l) Section 7 of the NRO, 2007 whereby
the cases and proceedings pending against the 'holders of public office' have
been declared to stand withdrawn and terminated, amounts to legislative
judgment, as such it is violative of the principles of independence of
Judiciary and separation of powers as enshrined in Article 175 of the
Constitution because it is impermissible intrusion in the domain of the
judiciary. [reliance placed on the cases of Govt. of Balochistan v. Azizullah
Memon (PLD 1993 SC 341) & Smt. Indra Nehru Gandhi v. Raj Narain (AIR 1975
SC 2299)].
(m) Section 3 of the NRO, 2007 whereby the
Representation of the People Act, 1976 has been amended, has no relevancy with
the preamble of the NRO, 2007.
(n) Sections 4 & 5 of the NRO, 2007
whereby the sitting members of the Parliament and Provincial Assemblies have
been provided protection from arrest, without recommendations of Special
Parliamentary Committee on Ethics, are no more in field, after expiry of the
constitutional life of the NRO, 2007.
(o) Section 6 of the NRO, 2007 whereby
the orders or judgments passed by the Courts against an accused in absentia
have been declared to be void ab initio and not to be acted upon, amounts to
create a permanent hindrance in Article 63(1)(p) of the Constitution, as
through the amendment in Section 31A of the NAO, 1999, certain persons, who
were kept out of the Parliament have been allowed to enter into the Parliament.
(p) Section 7 of the NRO, 2007 also
defeats the provision of Article 62(f) of the Constitution, as all the persons,
against whom the cases or proceedings have been withdrawn or terminated would
claim to be righteous and Ameen.
(q) The provisions of the NRO, 2007 i.e.
Sections 6 & 7, are contrary to the basic principle relating to annulment
of judgments, because the proceedings, orders or judgments passed by the
competent Court in accordance with the existing law in favour of a party,
cannot be annulled through a legislative instrument unless the law, underlying
the basis of such proceedings, orders and judgments, will be removed. [reliance
placed on the case of Fecto Belarus Tractor Ltd. v. Government of Pakistan (PLD
2005 SC 605)].
(r) The NRO, 2007 exhorts about or
indemnifies a particular class of persons including the `holders of public
office', from proceedings, actions and orders passed by the competent
authorities whereas neither the legislature nor the executive has power to
grant pardon by promulgation of an instrument or an Act of amnesty, except the
power of the President to grant such pardon to an accused person under Article
45 of the Constitution. Such indemnity or protection under the NRO, 2007 cannot
be equated with the pardon. He concluded his arguments while stating that the
NRO, 2007 is bad in the eye of law whereby judicial functions have been vested
in an executive body arbitrarily; it is, ex facie, might not be discriminatory
but in fact it is discriminatory, promulgated in total violation of the
constitutional provisions by the lawmaker, with mala fide intention. If it is
allowed to remain on the statute book, it will be a permanent blot on
conscience of nation.
14. Mr. Abdul Hafeez Pirzada, Sr. ASC also
appeared on behalf of petitioner in Constitution Petition No. 76 of 2007 and
submitted his formulations as under:--
(a) The NRO, 2007 is, as a whole, void ab
initio, non est and never took birth, therefore, nothing, which is the product
of this Ordinance, or done in pursuance of this Ordinance or under it, ever
came into existence or survived.
(b) The NRO, 2007 is void because it is a
fraud on the Constitution and transience well beyond the limited legislative
power conferred by Article 89 of the Constitution on the President, as the
President cannot go beyond the limits circumscribed therein.
(c) Word "reconciliation" has
been defined in number of dictionaries but when the word `national' is prefixed
with it, its meaning becomes entirely different and it means "the
reconciliation of the whole nation". The NRO, 2007 has no nexus with the
`national reconciliation' rather it has trampled over the fundamental rights of
the entire nation of
(d) The NRO, 2007 is ex facie void for
the reason that surprisingly its operation has been confined to a specific
period commencing from 1st January 1986 to 12th October 1999.
(e) The NRO, 2007 is void ab initio
because it violates the dictum laid down by this Court in Mahmood Khan Achakzai
v. Federation of Pakistan (PLD 1997 SC 426), improved upon in Zafar Ali Shah v.
General Pervez Musharraf (PLD 2000 SC 869), wherein, after a great deal of
efforts the Court virtually treated Article 4 of the Constitution as `due
process clause'.
(f) The four salient features of the
Constitution, identified in the judgments of this Court are; Parliamentary form
of Government; Federating character of the State; Independence of Judiciary;
and Fundamental Rights of the people along with Islamic provisions. Even the
Parliament has no power to alter these salient features of the Constitution.
The NRO, 2007 is clear invasion on the 3rd pillar of the State i.e. judiciary,
without which the modern society cannot exist. [reliance placed on the case of
Zafar Ali Shah (PLD 2000 SC 869)].
(g) The NRO, 2007 is not only usurpation
of judicial powers but also usurpation of constitutional powers of the
Parliament.
(h) The NRO, 2007 has directly violated
and overridden the provisions of Articles 62 & 63 of the Constitution. It
vitally affects the democratic rule in the country, by tampering and
interfering with the qualifications and disqualifications of a candidate to be
elected or chosen as a member of the Parliament and subsequent disqualification
after having become the member of the Parliament.
AND
The Article 62 of the
Constitution applies only at the time of filing of nomination papers or
contesting elections, however, Article 63 of the Constitution continues to be
in force even after a candidate has been elected as a member of the Parliament
and he can be removed by the writ of quo warranto, by the Speaker of the
National Assembly through reference or by the Chief Election Commissioner. This
Court in number of judgments has held that conviction awarded in absentia is
void, but this view needs to be revisited on the touchstone of Article 63(1)(p)
of the Constitution because how a person can become a member of the Parliament
if he is an absconder.
(i) Through the promulgation of the NRO,
2007, the conscience of the Constitution has been divorced. There are mixed
constitutional and moral aspects and one cannot divorce the morality from the
Constitution. [reliance placed on the cases of R.S.Jhamandas v. Chief Land
Commissioner (PLD 1966 SC 229) and Benazir Bhutto v. Federation of Pakistan
(PLD 1988 SC 416)].
(j) Even a validly enacted Ordinance
does not necessarily have to have the statutory life of 120 days because before
the expiry of the same, the National Assembly can strike it down through a
resolution. In the case of NRO, 2007 the National Assembly has refused to own
this law, even after expiry of its statutory life and this is tantamount to its
rejection by the Parliament.
(k) The Constitution envisages for
trichotomy of powers between the executive, legislative and judicial organs of
the State. The NRO, 2007 is a clear intrusion by the legislature into the
sphere of the judiciary, as such liable to be struck down being violative of
doctrine of trichotomy of powers.
(l) The Judiciary is custodian of the
Constitution and the fundamental rights. It is the superior observer of what is
happening and to see that there is no transgression in the separation of power.
It has its legal obligation, based upon the principle of checks and balances.
That is why the Judiciary has not been made part of the State under Article 7
of the Constitution, which has to be read with Article 175 of the Constitution.
(m) The preamble of the NRO, 2007 poses
the official avowed reason to promulgate this Ordinance, which is not the real
object behind its promulgation as it was a deal between two persons, for their
personal objectives and even the persons representing the people of Pakistan at
that time in the Parliament, were not made aware of it. Therefore, it cannot be
said a `national reconciliation' as there is total variance between the opening
statement and the contents of the Ordinance.
(n) The Constitution does not make an
Ordinance a permanent law unless it is made an Act of Parliament. Applying the
principle enshrined in Section 6 of the General Clauses Act, 1897, there are
two types of repeals; first one is `deeming repeal' and the other is `actual
repeal' and this Court has to consider both of them accordingly. Therefore, in
order to save an Ordinance, the law has to be enacted retroactively by the
Parliament. But, this Court could not extend the life of the Ordinance beyond
the constitutional life i.e. 120 days. More so, since the Article 270AAA of the
Constitution has been declared null and void by means of judgment in Sindh High
Court Bar Association's case (PLD 2009 SC 879), the NRO, 2007 has lost its
permanency, provided by the said Article.
(o) The Executive has to act
intelligently and responsibly in classifying actions, which ought to be saved
under temporary law, particularly when fundamental rights are involved. The
NRO, 2007 is a `bill of attainder' against the people of Pakistan which
violates their fundamental rights enshrined in the Constitution and the spirit
of Article 4 of the Constitution has been destroyed, which has been equated
with the `due process clause'. [reliance placed on the case of Jamat-i-Islami
15. Dr. Mubasher Hassan (petitioner in
Constitution Petition No. 76/2007) appeared and stated with special permission
of the Court that when the two organs of the State, as defined in Article 7 of
the Constitution, become incapable of performing their duties entrusted to them
under the Constitution, it is incumbent upon the third organ i.e. judiciary to
come forward for rescue of the State.
16. Mr. Ikram Chaudhry, ASC for the petitioner in
Constitution Petition No. 77 of 2007, appeared and argued that:--
(a) The NRO, 2007 is person specific,
purpose specific and period specific, therefore, it violates the provisions of
Article 25 of the Constitution.
(b) The Judiciary has been vested with
important function of supervising the other organs of the State that is why
Article 7 of the Constitution purposely excluded it from the definition of the
State.
(c) The primacy and supremacy of the
Chapter of fundamental rights remain the salient feature of the Constitution
and when laws are examined on the touchstone of various provisions of the
Constitution, Article 8 comes into play which provides that any law
inconsistent with or in derogation of fundamental rights is void.
(d) The NRO, 2007 does not meet the
criterion, laid down in Article 89 of the Constitution, particularly with
regard to `satisfaction' of the President, which should always be fair, just
and never arbitrary, therefore, the NRO, 2007 having inherent mischief in it,
as it conceives to protect the interest of a particular person, is a bad law.
(e) Article 89 of the Constitution does
not save the President from its intents and the purposes as in view of Article
5 of the Constitution he is bound to follow the law. Therefore, the promulgation
of the NRO, 2007 is clear violation of Article 4 & 25 of the Constitution.
[reliance placed on the case of Jibendra Kishore, etc. v.
17. Dr. Farooq Hassan, Sr. ASC appearing for the
petitioner, in Constitution Petition No. 78 of 2007, submitted his written
formulations, while adding that:--
(a) The NRO, 2007 is void being violative
of the fundamental rights contained in Article 25, 9 and possibly Articles 14,
24, 2 & 2A of the Constitution.
(b) The NRO, 2007 is the result of abuse
of power, mala fides, and corum-non-judice as its objects are clearly outside
the purview of ordinary and normal law making authority of the President under
Article 89 of the Constitution, as such it is void in entirety.
(c) The NRO, 2007 amounts to subversion
of the Constitution as it is the result of a deal between the dictator and next
set of rulers. [referred to clippings of different newspapers].
(d) The subject matter of the NRO, 2007
is not found in either of the Legislative lists provided in Fourth Schedule of
the Constitution, as such it is ultra vires the Constitution.
(e) Under the International Treaties i.e.
"United Nations Convention Against Corruption", to which the
He
concluded his arguments while saying that the property of the Government is the
property of the people of
18. Mr. Tariq Asad, ASC for the petitioners in
Constitution Petition No. 80 of 2007 argued that Article 89 of the Constitution
referred to `satisfaction' of the President which would be either `subjective'
or `objective'. On the basis of material, available on record, there were no
such circumstances to promulgate the NRO, 2007 therefore, the `subjective'
satisfaction of the President is missing, as such it becomes the `objective'
satisfaction, which is justiciable and subject to judicial review by the Court.
[reliance placed on State of
19. Raja Muhammad Ibrahim Satti, Sr. ASC,
appearing for appellant in Civil Appeal No. 1094 of 2009, while defending the
NRO, 2007 made his submissions as follows:--
(a) It is nobody's case that the
President has no power to promulgate the Ordinance under Article 89 of the
Constitution or the said Article is redundant.
(b) The NRO, 2007 was validly promulgated
as the pre-conditions for promulgation of an Ordinance by the President, under
Article 89 of the Constitution were fulfilled.
(c) It is the duty of the Court to
interpret the Constitution and to adjudge the validity of a law, whether proper
assistance has been rendered or not. [reliance placed on Federation of Pakistan
v. M. Nawaz Khokhar (PLD 2000 SC 26) & Ghulam Hassan v. Jamshaid Ali (2001
SCMR 1001)].
(d) During the statutory life of the NRO,
2007 both the Houses of the Parliament did not disapprove it through any
resolution and allowed it to continue, therefore, if the Court ultimately comes
to the conclusion that it was validly enacted and the benefits derived from its
operation are allowed to continue, then the appellant shall also be entitled
for the same benefit.
20. Mr. A.K. Dogar, learned Sr. ASC for the
petitioner in Constitution Petition No. 59 of 2009, stated that his arguments
are two fold i.e. on factual plane as well as on legal plane. On factual plane
he argued that:--
The
NRO, 2007 is a power sharing deal between the then President and the head of a
political party. [reliance placed on the books i.e. `Reconciliation, Islam,
Democracy and the West' by late Mohtarma Benazir Bhutto and `the Way of the
World' by Ron Suskind].
On
legal plane, he made the following submissions:--
(a) The NRO, 2007 is the result of abuse
of `public office' for private gain.
AND
Because,
corruption vitiates like fraud, which vitiates all transactions, therefore, the
NRO, 2007 stands vitiated by the effect of abuse of public office for private
gain.
AND
The
NRO, 2007 is a document which is non est. It is like a still born which dies in
mother's wombs. [reliance placed on Zafar Ali Shah's case (PLD 2000 SC 869)
& Black's law Dictionary for the definition of 'corrupt'].
(b) Though Article 89 of the Constitution
empowers the President to promulgate an Ordinance but Article 48(1) of the
Constitution provides that such power lies with the Prime Minister and his
Cabinet, who have to advise the President, therefore, the President cannot in
his individual capacity issue an Ordinance, or enter into some negotiations and
then issue an Ordinance. [reliance placed on Tirathmal v. The State (PLD 1959
Karachi 594)].
(c) The Ordinance making power, vested in
the President, is a legacy of the British Rule, because in both kinds of
democracies i.e. in the Parliamentary form of Government in
(d) Gen. Pervez Musharraf was not
constitutionally elected President, therefore, within the meaning of Article 89
of the Constitution, he had no such power to issue such Ordinance because he
seized power by force and was self imposed President through Legal Framework
Order, 2002 and 17th Amendment. [reliance placed on Sindh High Court Bar
Association's case (PLD 2009 SC 879)].
(e) By virtue of Article 264 of the
Constitution, a law, which is repealed can give rise to rights and obligation
but not a law which does not exist from its very inception (as per statement of
learned Attorney General) and is still born, therefore, under the NRO, 2007 no
rights exist.
(f) This Court has no Ordinance issuing
power, therefore, it could not give life to the NRO, 2007 which has lapsed on 5th
February 2008 and this Court, could only extend its time under the law of
necessity and not otherwise.
(g) The circumstances mentioned in the
preamble of the NRO, 2007 itself are of permanent nature and do not require any
immediate, emergent and quick treatment.
(h) A law cannot be amended through the
Ordinance because it is violation of Articles 238 & 239 of the
Constitution.
(i) Withdrawal from prosecution, as
provided in Section 2 of the NRO, 2007 without hearing the complainants in the
cases of murder, rape, etc. is violation of the principles of natural justice
as such no such amendment can stay. [reliance placed on Zia Ullah Khan's case
(1992 SCMR 602)].
(j) Section 4 of the NRO, 2007 by means
of which immunity has been provided to sitting members of the Parliament from
arrest, offends Articles 24 & 25 of the Constitution.
(k) Helping the rich and powerful
persons, who have misappropriated millions of rupees, as against the victims of
exploitation, is violation of Article 3 of the Constitution.
(l) With the advancement of
civilizations, the moral and ethical codes have been converted into enforceable
legal formulations. [reliance placed on D.S. Nakara's case {(1983) 1 SCC 305 =
AIR 1983 SC 130} and Sindh High Court Bar Association's case (PLD 2009 SC 879)].
Learned
counsel, while concluding his arguments stated that there are two enemies of
mankind i.e. desire of wealth and desire of power and time is witness to it.
According to him the NRO, 2007 is destructive to the entire nation.
21. Mr. Shahid Orakzai, appearing in Civil Misc.
Application No. 4842 of 2009 in Constitution Petition No. 76 of 2007, argued
that:--
(a) Any Ordinance promulgated by the
President under Article 89 of the Constitution lapses on the day when the
National Assembly is dissolved either by the President, Prime Minister or due
to expiry of its constitutional term. [relied upon Article 76(3) of the
Constitution].
(b) While issuing an Ordinance by the
President, the advice of the Prime Minister or Cabinet is necessary in view of
Article 48 of the Constitution and in absence of such advice, it will be the
act of an individual.
(c) The word `or' used in Article 70 (1)
means that a bill can be placed before the Parliament, regarding only one
subject, either from the Federal Legislative List or from the Concurrent
Legislative List and not regarding subjects from both the lists. As the NRO,
2007 contains the subjects of both the Legislative lists, therefore, it is
violative of Article 70 (1) of the Constitution.
(d) Through the NRO, 2007 amendment has
been made in the Cr.P.C. which has more application in the Provinces, as such
the consent of Provincial Governments was necessary, while making such
amendment. Therefore, the NRO, 2007 is violative of Article 142(c) of the
Constitution.
(e) The word `any' used in Article 70 of
the Constitution, means `similar and more than one', therefore, the Ordinance
cannot make laws relating to more than one subject at a time.
(f) The word `any' used in Article
184(3) of the Constitution refers to violation of one of the fundamental
rights, therefore, the jurisdiction of this Court under the said provision
would be attracted if only one fundamental right has been infringed and the
same would not be available in a case which involved violation of more than one
fundamental rights. Now this Court has to examine which one of the fundamental
rights has been infringed by the NRO, 2007.
22. Mr. Ashtar Ausaf Ali, ASC appearing for
petitioner in Constitution Petition No. 79 of 2007 adopted the arguments
rendered Mr. Abdul Hafeez Pirzada, Sr. ASC. However, he placed on record some
material in support of his petition.
23. Mr. Shah Khawar, Acting Attorney General for
24. Mr. Kamal Azfar, learned Sr. ASC appeared and
reiterated the stand taken in the statement dated 15th December 2009, to the
effect that the Federation does not oppose the petitions seeking a declaration
that the NRO, 2007 is illegal and unconstitutional.
25. Learned Advocates Acting General of the
Provinces adopted the arguments of the Attorney General for
26. Mr. M. Sardar Khan, Sr. ASC appeared as
Amicus Curiae argued as follows :--
(a) The NRO, 2007 is not only
inconsistent with fundamental rights enshrined in Article 25 of the
Constitution but also is in conflict with other provisions of the Constitution
such as Article 175. Therefore, it is not a valid law rather it is a bad law.
(b) The NRO, 2007 is violative of Article
5 of the Constitution, which postulates that it is inviolable obligation of
every citizen to obey the Constitution and the law.
(c) Promulgation of the NRO, 2007 is
intentional violation of Article 8(2) of the Constitution, which provides that
the State shall not make any law which takes away or abridges the fundamental
rights conferred by the Constitution, if it does so, then it shall be void.
(d) The NRO, 2007 is violative of Article
2A of the Constitution which requires that the authority, which is conferred,
is to be exercised in accordance with the Constitution and within the limits
prescribed by the Almighty.
(e) The provisions of the NRO, 2007 i.e.
Sections 2, 3, 4, 6 & 7, are void and invalid for being against the
Injunctions of Islam, violative of the mandate of Article 175 of the
Constitution, and repulsive to the provisions of Article 62 & 63 of the
Constitution as it has given way to the ineligible persons to enter the
Assemblies and to become public representatives.
(f) The object of this law for all
intents and purposes does not seem to be `reconciliation' but to pave way and
facilitate to those persons charged with corruption, plunders of national
wealth and fraud, to come back, seize and occupy the echelons of power again.
Its aim seems to legalize corruption and the crimes committed by those in power
in the past.
(g) Courts have been deprived by virtue
of this law of their judicial functions by conferring powers on administrative
bodies.
(h) The NRO, 2007 is not only a
discriminatory law but it has also been applied discriminately, therefore,
liable to be struck down. [reliance placed on Sabir Shah v. Shad Muhammad Khan
(PLD 1995 SC 66)].
(j) Section 3 of the NRO, 2007 although
is very innocent, but it has no nexus with the reconciliation. It is merely a
cosmetic provision just to give colour of respectability to the NRO, 2007 and
has no nexus with its preamble. [referred to Section 40 of the Representation
of the People Act, 1976.]
27. Mian Allah Nawaz, Sr. ASC also appeared as
Amicus Curiae. He, after elaborating the philosophy of morality, theory of law,
theory of kleptocracy and the philosophy of the Constitution, contended as
follows:--
(a) The NRO, 2007 is not a good law as it
violates the intrinsic value of the law and intrinsic value of behaviors,
therefore, liable to be struck down, otherwise it would create anarchy and
greed in the society.
(b) Any law which flagrantly violates the
theory of basic instincts and promotes the theory of satanic instincts should
be struck down, otherwise the society will be swamped by the satanic instincts.
(c) The protection of the fundamental
rights of the people is the soul of the Constitution. The NRO, 2007 is
violative of the basic soul of the Constitution.
(d) The NRO, 2007 is classical
manifestation of theory of kleptocracy, as it has been promulgated for the
benefit of two persons, one who wanted to remain in power and the other who
wanted to come to power.
(e) The NRO, 2007 is so bad and
kleptocratic in nature that neither any provision of the Constitution validates
it nor any law gives conscious to it.
(f) The actions taken and the benefits
derived from the NRO, 2007 cannot be protected on the touchstone of Article 264
of the Constitution, as it is not applicable to the NRO, 2007 which is not just
void but immoral. [reliance placed on Ram Prasad v. Union of India (AIR 1978
Raj. 131) and Bachan Singh v. State of
While
concluding his arguments he added that in case the NRO, 2007 is declared void
ab initio then as a consequence whereof all the cases, which have been
withdrawn under the NRO, 2007 will take rebirth.
28. Mr. Shaiq Usmani, Sr. ASC appeared as Amicus
Curiae and made his submissions as follows:--
(a) The NRO, 2007 cannot be justified on
the ground that it was just an amnesty because even if it be considered so, it
is not legitimate, as legitimate amnesty is one, which is accountable.
(b) The NRO, 2007 is violative of Article
8 of the Constitution, therefore, liable to be struck down.
(c) The NRO, 2007 being discriminatory,
is violative of Article 25 of the Constitution, therefore, is liable to be
struck down. [reliance placed on the case of I.A. Sherwani v. Government of
Pakistan (1991 SCMR 1041)].
(d) The NRO, 2007 is void ab initio as it
is violative of the salient features of the Constitution and the principle of
trichotomy of powers.
(e) The NRO, 2007 is violative of Article
89 of the Constitution.
He
concluded his arguments while adding that the then Attorney General apparently
had no authority to correspond with the foreign authorities for withdrawal of
proceedings, as such if something contrary to law is done, the person, who has
done so, is liable to be proceeded against.
29. Arguments addressed on behalf of the learned
counsel appearing in support of petitions, inter alia, are that the NRO, 2007
be declared ultra vires the Constitution, void ab initio and non-est. During
the course of arguments, they persuaded the Court to test the constitutionality
of the NRO, 2007 in view of provisions of the Constitution.
30. The learned Acting Attorney General for
31. It is a settled practice of the Courts that
legal proceedings are not undertaken merely for academic purposes unless there
are admitted or proven facts to resolve the controversy. As it has been pointed
out hereinabove that till 12th October, 2007, when the petitions were filed,
presumably, the benefit of the NRO, 2007 was not extended to any of the
parties. Therefore, learned Prosecutor General, NAB and the Provincial
Governments through their Advocates General were called upon to place on record
accurate information of the accused persons, who had drawn benefit under
Sections 2, 6 and 7 of the NRO, 2007. In response to Court's order, learned
Advocate General Sindh placed on record the list of the persons, whose criminal
cases falling under Sections 302, 307, 324, 365, 381, 381-A PPC, Section 16 of
Offences of Zina (Enforcement of Hadood) Ordinance, 1979 and Section 14, 17(3)
and 20 of Offences Against Property (Enforcement of Had) Ordinance, 1979, etc.
were withdrawn. According to him more than 3000 criminal cases were withdrawn
under Section 494 Cr.P.C. providing the benefit of Section 2 of the NRO, 2007
to approximately 8000 accused persons involved in above said heinous crimes.
The statement of facts also showed the manner in which these cases were
withdrawn. Similarly, the NAB through its Prosecutor General and Additional
Prosecutor General also placed on record the list of beneficiaries (accused),
who derived benefit under Sections 6 and 7 of the NRO, 2007. As per the list,
248 persons were extended benefit of the NRO, 2007 and the cases or proceedings
pending against them, within and outside the country, were withdrawn or
terminated. The authenticity of such details furnished by the NAB was required
to be verified from them but unfortunately accurate list or details of the
cases registered within and outside the country under the NAO, 1999, despite
repeated directions of the Court, were not furnished. However, the Chairman and
others brought on record the material, on the basis of which, cases on the
basis of requests for mutual assistance and civil party to proceedings on request
of Federal Government were withdrawn on the request of the then Attorney
General for Pakistan. It is pertinent to mention here that the material
information regarding the fact that the Ministry of Law & Justice, on the
request of one of the Advocates of a beneficiary, had not conceded for issuance
of directions for withdrawal of such cases, was withheld by
them. More so,
the Secretary General
and Military Secretary of the
President as well as Secretary to President (public side) also appeared on
Court's call and when asked, placed on record their written statements,
mentioning therein that no file, regarding permission to withdraw such cases
and proceedings, was available in the office of the President.
32. It is to be observed that except in the
33. Before dilating upon the respective arguments
of the petitioners' counsel, we consider it appropriate to mention here that
while hearing Sindh High Court Bar Association's case (PLD 2009 SC 879), which
has been decided on 31st July, 2009, detailed reasons of which were released
later, a fourteen member Bench of this Court, when confronted with the proposition
i.e. `whether the Court, itself, can give decision that as the permanency
attached to temporary legislation i.e. an Ordinance, through unconstitutional
provision of Article 270AAA of the Constitution, should examine itself or the
matter should be left for the Parliament to examine them'; there was no
difficulty in declaring that Ordinance would stand repealed at the expiration
of four months and three months, under Articles 89 and 128 of the Constitution,
as the case may be. Prima facie, there was no justification for placing such
legislations before the Parliament but on having taken into consideration the
principle of trichotomy of powers, coupled with the fact that on the basis of
bona fide apprehension, all the Ordinances, issued during the period, when the
emergency was imposed in the country, commencing from 3rd November, 2007 up to
15th December, 2007, and all those temporary legislations, which were in force
on 15th December 2007, were not placed before the Parliament, after attaining
perpetuity through Article 270AAA of the Constitution, because such Ordinances
had conferred rights and obligations upon the parties; therefore, it was
considered appropriate to strengthen the Parliament, by sending these
Ordinances for making them the Acts of the Parliament with retrospective
effect, so the benefit derived by the masses, could also be protected. Relevant
paras from the Sindh High Court Bar Association's case (PLD 2009 SC 879) have
already been reproduced hereinabove. This is a fact that National Assembly,
having 342 Members, who represent the nation, did not agree to make the NRO,
2007 as an Act of the Parliament, with retrospective effect, and ultimately it
was withdrawn from the Assembly vide
letter dated 7th December, 2009. Contents of the said letter are reproduced
hereinbelow for convenience:--
"In
continuation of this Secretariat's D.O. letter of even number, dated the 7th
December, 2009 on the above subject, it is to state that report of the Standing
Committee on National Reconciliation Ordinance, 2007 was finalized but before
its approval by the Chairperson of the Committee, the Minister concerned had
withdrawn the Bill under Rule 139 of the Rules of Procedure and Conduct of
Business in the National Assembly, 2007 with the consent of the Honorable
Speaker.
2.
The minutes of the meeting of the Committee and draft report are submitted
herewith."
We
must mention here that this Court cherishes the democratic system and the will
of the electorate. It also wants the Federation to remain strong and stable.
34. Admittedly, as it has been discussed
hereinabove that, neither the Federation of Pakistan nor the Provincial
Governments have defended the NRO, 2007 before this Court. It is also to be
borne in mind that Constitution envisages the trichotomy of powers amongst
three organs of the State, namely the legislature, executive and the judiciary.
The legislature is assigned the task of law making, the executive to execute
such law and the judiciary to interpret the laws. None of the organs of the
State can encroach upon the field of the others. [State v. Ziaur Rahman (PLD
1973 SC 49), Federation of Pakistan v. Saeed Ahmad Khan (PLD 1974 SC 151),
Government of Balochistan v. Azizullah Memon (PLD 1993 SC 341), Mahmood Khan
Achakzai v. Federation of Pakistan (PLD 1997 SC 426), Liaquat Hussain v.
Federation of Pakistan (PLD 1999 SC 504), Syed Zafar Ali Shah v. General Pervez
Musharrf (PLD 2000 SC 869), Nazar Abbas Jaffri v. Secy: Government of the
Punjab (2006 SCMR 606), Sindh High Court Bar Association's case (PLD 2009 SC
879), Smt. Indra Nehru Ghani v. Raj Narain (AIR 1975 SC 2299) and Minerva Mills
Ltd. v. Union of India (AIR 1980 SC 1789)].
35. Necessary inference can be drawn that the
National Assembly and the Senate (the Parliament), which were required to approve
or otherwise the NRO, 2007, and the same was sent along with other Ordinances
to them, to make it an Act of the Parliament, with retrospective effect, did
not consider it to be a valid temporary legislation, being an Ordinance
promulgated under Article 89 of the Constitution on 5th October 2007.
36. Another factual aspect, relevant for disposal
of these petitions and examination of the constitutionality of the NRO, 2007
pertains to the date of its promulgation i.e. 5th October, 2007, which seems to
be the result of a deal between the representatives of a political party and
the then President/Chief of Army Staff, General Pervez Musharraf, who was about
to contest election for another term, in uniform, for the office of the
President, as it is apparent from uncontroverted news, appeared in Daily Dawn
dated 5th October, 2007 (Friday), referred to by Mr. Abdul Hafeez Pirzada, Sr.
ASC, which reads as under:--
37. Mr. Abdul Hafeez Pirzada, Sr. ASC also
referred to the book "Reconciliation: Islam, Democracy and the West"
by late Mohtarma Benazir Bhutto, and read its different pages to substantiate
the authenticity of the above news item. Similarly, Mr. A.K. Dogar, learned Sr.
ASC also referred to the book "The Way of the World" by Ron Suskind
and read its different pages to establish that the NRO, 2007 was nothing but
the result of a deal between the two individuals.
38. It is equally important to note that
candidature of General Pervez Musharraf, to contest the election for the office
of the President, in uniform, was challenged before this Court, by invoking
jurisdiction under Article 184(3) of the Constitution, in the case of
Jamat-e-Islami v. Federation of Pakistan (PLD 2009 SC 549), when a nine member
Bench, disposed of the same as per majority view of 6 to 3, wherein, as per the
majority view, petitions were held not maintainable within the contemplation of
Article 184(3) of the Constitution, whereas, as per the minority view of three
Hon'ble Judges of this Court namely Mr. Justice Rana Bhagwandas (as he then
was), Mr. Justice Sardar Muhammad Raza Khan and Mr. Justice Mian Shakirullah
Jan, all the petitions were held maintainable under Article 184(3) of the
Constitution and were accepted. Against the acceptance of nomination papers of
the General Pervez Musharraf by Election Commission of Pakistan, another
Petition under Article 184(3) of the Constitution was filed by Justice (R)
Wajih-ud-Din Ahmed, being Constitution Petition No. 73 of 2007. However, this
petition was under consideration before eleven members Bench, when, on 3rd
November, 2007, emergency was proclaimed in the country, which now has been
declared unconstitutional, illegal, mala fide and void ab initio vide judgment
dated 31st July 2009 in Sindh High Court Bar Association's case (PLD 2009 SC
879).
39. There is another principle of law, which
casts duty upon this Court to the effect that it should normally lean in favour
of constitutionality of a statute and efforts should be made to save the same
instead of destroying it. This principle of law has been discussed by this
Court on a number of occasions. Reference in this behalf may be made to the
cases of Abdul Aziz v. Province of West Pakistan (PLD 1958 SC 499), Province of
East Pakistan v. Siraj-ul-Haq Patwari (PLD 1966 SC 854), Inam-ur-Rehman v.
Federation of Pakistan (1992 SCMR 563), Sabir Shah v. Shad Muhammad Khan (PLD
1995 SC 66), Multiline Associates v. Ardeshir Cowasjee (PLD 1995 SC 423), Tariq
Nawaz v. Government of Pakistan (2000 SCMR 1956), Asif Islam v. Muhammad Asif
(PLD 2001 SC 499) and Federation of Pakistan v. Muhammad Sadiq (PLD 2007 SC
133). This principle has been appropriately dealt with in the case of Elahi
Cotton Mills Ltd. v. Federation of Pakistan (PLD 1997 SC 582) in the following
terms:--
"that
the law should be saved rather then be destroyed and the Court must lean in
favour of upholding the constitutionality of legislation, keeping in view that
the rules of constitutional interpretation is that there is a presumption in
favour of the constitutionality of the legislative enactments unless ex facie
it is violative of a constitutional provision."
40. M/s Salman Akram Raja, ASC, Abdul Hafeez
Pirzada, Sr. ASC, A.K. Dogar, Sr. ASC and M. Sardar Khan, Sr. ASC (Amicus
Curiae) explained the objects and the purposes of the `national reconciliation'
in the name of which the NRO, 2007 was promulgated. According to them, the NRO,
2007 would have been a valid legislation, had it promoted the national
reconciliation in the country, but unfortunately it was the result of a deal between
two persons for their personal objectives. Inasmuch, the persons representing
the people of
41. Mr. Abdul Hafeez Pirzada, Sr. ASC relied upon
the proceedings of the National Assembly available in the shape of collection
under the heading "Constitution Making in Pakistan" and contended
that the Constituent Assembly, at the time of framing the Constitution of
Pakistan, 1973, had taken all possible measures, to ensure that, on the basis
of participation of the chosen representatives from all over the country, the
document i.e. the Constitution, should be promulgated with national
reconciliation. He further contended that in
42. As it has been noted hereinabove that the
NRO, 2007 was promulgated, reportedly, as a result of deal, as is too evident
from the contents of the newspaper `Daily Dawn' dated 5th October, 2007, which
has already been referred to hereinabove and the said report so published in
this newspaper, has not, so far, been contradicted. It is well settled by the
time that, in forming the opinion, generally, as to the prevailing state of
affairs, having bearing on the issue involved in a case, reports of the
relevant period, from electronic and print media, can be taken into
consideration. In this behalf we are fortified with the judgments in Islamic
Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57), Raja Muhammad Afzal
v. Ch. Muhammad Iltaf Hussain (1986 SCMR 1736), Benazir Bhutto v. Federation of
Pakistan (PLD 1988 SC 416), Muhammad Nawaz Sharif v. Federation of Pakistan
(PLD 1993 SC 473), Benazir Bhutto v. President of Pakistan (PLD 1998 SC 388),
Benazir Bhutto v. President of Pakistan (PLD 2000 SC 77), Pakistan Lawyers
Forum v. Federation of Pakistan (PLD 2004 Lahore 130, Muhammad Shahbaz Sharif
v. Federation of Pakistan (PLD 2004 SC 583), Watan Party v. Federation of
Pakistan (PLD 2006 SC 697) and Sindh High Court Bar Association's case (PLD
2009 SC 879).
43. We are conscious that non-denial of a
solitary newspaper report, or even more reports for that matter, may not, in
appropriate cases, form the basis of an opinion, one way or the other,
therefore, we rely upon the written word of the late Mohtarma Benazir Bhutto
herself. That will have more authenticity.
44. Relevant extract from the book "Reconciliation:
Islam, Democracy and the West" by late Mohtarma Benazir Bhutto, as relied
upon by M/s Abdul Hafeez Pirzada and A.K. Dogar, Sr. ASC are also reproduced
hereinbelow for ready reference:--
"In
August I called PPP leaders to
The
August team met me in
The
PPP and I met in
45. It appears from the above extract of the
book, itself, of late Mohtarma Benazir Bhutto that the NRO, 2007 was designed
to benefit a certain class of individuals against whom cases were registered
between 1st January, 1986 to 12th October, 1999 subject to the scheme laid down
therein. Thus we, prima facie, hold that the NRO, 2007 was not promulgated for
achieving the object of national reconciliation as according to its substantive
provision i.e. Section 2, it was meant to extend benefit to the accused
persons, against whom cases were registered between 1st January, 1986 to 12th
October, 1999, subject to the scheme laid down therein. Likewise, under Section
7 of the NRO, 2007, the cases against `holders of public office', involved in
the offences, inside and outside the country, deemed to have been withdrawn,
including the proceedings, initiated under Section 33 of the NAO, 1999 outside
the country, through request for mutual assistance and civil party to
proceedings, by the Federal Government, before the 12th October, 1999. These
two provisions, abundantly, make it clear that the NRO, 2007 has extended
benefit only to the criminals, involved in the minor or heinous crimes and
`holders of public office' involved in corruption and corrupt practices, as
such it cannot be considered to be a legislation for achieving the object of
national reconciliation.
46. We have yet to see a law pari materia with
the NRO, 2007 according to which an accused, who being `holder of public
office', indulged into corruption and corrupt practices, plundering and looting
of national wealth, etc., has been extended the benefit of withdrawal of his
cases from the Court of competent jurisdiction. In order to understand the word
`reconciliation' reference may be made to `Black's Law Dictionary' wherein it
has been defined as `restoration of harmony between persons or things that had
been in conflict'. Likewise in `Corpus Juris Secundum' the word
`reconciliation' has been defined as `the renewal of amicable relations between
two persons who had been at enmity or variance usually implying forgiveness of
injuries on one or both sides; it is treated, with respect to divorce'. The
word `reconciliation' has been defined in `Advanced Law Lexicon' 2005 Ed. as
`the restoration to friendship and harmony; renewal of amicable relations
between two person having been in conflict; literally the restoration of
friendly relations after an estrangement'. As it has been argued by Mr. Abdul
Hafeez Pirzada, Sr. ASC that when the word `national' is prefixed with the word
`reconciliation', its meaning changes absolutely from its ordinary dictionary
meanings, and `national reconciliation' means `the reconciliation of the entire
nation'. Therefore, keeping in view the fact, noted hereinabove, that the NRO,
2007 was the result of deal between two individuals for their personal
objectives, coupled with its dictionary meaning, it cannot be called `national
reconciliation'.
47. Mian Allah Nawaz, learned Sr. ASC has also
placed on record the thesis by Barrister Saifullah Ghouri on 'The Acquiescence
of UK Courts to Foreign Legislation in Particular the NRO', in which, he while
discussing the NRO, 2007, has made the reference to `National Commission for
Forced Disappearance' in Argentina; `Indian Residential Schools Trust and
Reconciliation Commission' in Canada; `National Truth & Reconciliation
Commission' and `National Commission on Political Imprisonment & Torture'
in Chile; `United Nations Truth Commission' in El. Salvador; `Reconciliation
& Unity Commission' in Fiji; `Truth & Reconciliation Commission' in
South Africa; `Truth & Reconciliation Commission' in South Korea;
`Greensboro Truth & Reconciliation Commission' and `Joshua Micah Marshall'
in USA; etc. Interestingly, none of these commissions have dealt with the
financial and ordinary crimes but amazingly the NRO, 2007 is the only law,
wherein cases pertaining to ordinary and financial crimes, committed by the
accused and `holders of public office', who indulged themselves into corruption
and corrupt practices, have been declared to be withdrawn or terminated.
48. For the foregoing reasons, we are of the
opinion that the NRO, 2007 was not promulgated for `national reconciliation'
but for achieving the objectives, which absolutely have no nexus with the
`national reconciliation' because the nation of
49. Learned counsel appearing for the petitioners
stated that the NRO, 2007 has violated the provisions of Articles 4, 8, 25,
62(f), 63(1)(p), 89, 175 and 227 of the Constitution, therefore, it may be
declared void ab initio with all consequences, likely to flow after declaring
it so.
50. There is no cavil with the proposition that
Article 8 of the Constitution provides that any law, or any custom or usage
having the force of law, in so far as it is inconsistent with the rights
conferred by this Chapter, shall, to the extent of such inconsistency, be void;
and the State shall not make any law which takes away or abridges the rights so
conferred and any law made in contravention of this clause shall, to the
extent of such contravention, be void. Needless to observe
that Article 8 of the Constitution is covered under Chapter I of the
Constitution, which deals with fundamental rights. Article 25 of the
Constitution, being one of the important Articles of the Constitution,
professes that all citizens are equal before law and are entitled to equal
protection of law.
51. At this stage, reference to Article 4 of the
Constitution is also necessary, which deals in respect of the rights of
individuals to be dealt with in accordance with law. This Article of the
Constitution is not placed in the Chapter of fundamental rights, perhaps on
account of its implications, as is evident from the language employed therein;
namely, to enjoy the protection of law and to be treated in accordance with law
is the inalienable right of every citizen, wherever he may be and of every
other person for the time being within Pakistan. So, a uniform protection of
law, being an inalienable right of every citizen and the person, who is, for
the time being within
52. It is important to note that on proclamation
of emergency, fundamental rights, guaranteed under Articles 15, 16, 17, 18, 19
& 24, of the Constitution, can be suspended in terms of Article 233 of the
Constitution, but during the emergency, the provisions of Article 4 of the
Constitution remain operative. The phrase `rule of law' has been used since the
time of Aristotle, in the fourth century B.C.; it has meant different things to
different authors and theorists; Aristotle's concept of rule of law is
contained in his simple saying: "the rule of law is to be preferred to
that of any individual" -- In other words, the rule of law is anathema to
the rule of men; in the words of the Constitution of the State of Massachusetts,
it means "a government of law and not of men"; in brief, it means
supremacy of law. [Comparative Constitutional Law by Hamid Khan & Muhammad
Waqar Rana (page 48)]. The prominent Jurist A.V. Dicey in his work "Law of
the Constitution" said that `rule of law' was one of the main features of
the Constitution of United Kingdom. He highlighted the following three distinct
concepts:--
(i) No man is punishable or can be
lawfully made to suffer in body or goods except for a distinct breach of law
established in the ordinary legal manner before the ordinary Courts of the
land. In this sense the rule of law is contrasted with every system of
government based on the exercise by persons in authority of wide, arbitrary, or
discretionary powers of restraint.
(ii) When we speak of the "rule of
law" as a characteristic of our country,
not only that with us no man is above the law, but (which is a different
thing) that here every man, whatever be his rank or condition, is subject to
the ordinary law of the realm and amenable to the jurisdiction of the ordinary
tribunals.
(iii) The general principles of the
constitution (as for example the right to personal liberty, or the right to
public meeting) are with us as the result of judicial decisions determining the
rights of private persons in particular cases brought before the Courts;
whereas under many foreign constitutions the security (such as it is) given to
the rights of individuals results, or appears to result, from the general
principles of the constitution. ......"
Elaborating
upon the second concept Dicey commented: "with us every official, from the
Prime Minister down to constable or a collector of taxes, is under the same
responsibility for every act done without legal justification as any other
citizen." He further wrote on the second concept that "the rule of
law" in this sense excludes the idea of any exemption of officials or
other from the duty of obedience to the law which governs other citizens or
from the jurisdiction of the ordinary tribunals........; the notion which lies
at the bottom of the administrative law known to foreign countries is, that
affairs or disputes in which the government or its servants are concerned are
beyond the sphere of the civil Courts and must be dealt with by special and
more or less official bodies."
53. The above concepts of `rule of law'
highlighted by A.V. Dicey, have been noted with approval by the eminent Jurists
of our country. Reference may be made to the book "Access to Justice in
(i) The rule of law excludes
arbitrariness; its postulate is `intelligence without passion' and `reason
freed from desire';
(ii) Wherever we find arbitrariness or
unreasonableness there is denial of the rule of law;
(iii) What is a necessary element of the
rule of law is that the law must not be arbitrary or irrational and it must
satisfy the test of reason and the democratic form of policy seeks to ensure
this element by making the framers of the law accountable to the people.
[Bachan Singh v. State of
Therefore,
now we have to consider as to whether a law, which is inconsistent with the
fundamental rights, is liable to be declared void to the extent of such
inconsistency. Article 13 of the Indian Constitution is pari materia to Article
8 of the Constitution of Pakistan and according to the former, "all laws
in force in the
54. As far as jurisdiction of this Court to
examine the constitutionality of a law is concerned, there is no dispute
either. Sub-Article (1) of Article 8 of the Constitution uses the word
`inconsistent' purposely, regarding any law which was promulgated in the past
or is in existence presently. Whereas, sub-Article 2 of Article 8 of the
Constitution debars the State not to make any law which takes away or abridges
the rights so conferred and any law made in contravention of this clause shall,
to the extent of such contravention, be void. Same is the position in the
Indian Constitution, as it has been noted hereinabove. So, inconsistency or
contravention of a law passed, or the existing law, shall be examined to the
extent of violation of fundamental rights and such laws are not void for other
purposes.
55. As far as the term `void' is concerned, it
has been defined in Black's Law Dictionary, 7th Edn. (1999), as "of no
legal effect; null." Corpus Juris Scecundum, Vol.92 at pp 1021 to 1022
defines `void" as follows:--
"The
word `void' may be used in what is variously referred to as its literal,
absolute, primary, precise, strict, and strictly accurate sense, and in this
sense it means absolutely null; null and incapable of confirmation or ratification;
of no effect and incapable of confirmation; of no force and effect; having no
legal force or binding effect, having no legal or binding force; incapable of
being enforced by law; of no legal force or effect whatever; that which has no
force and effect; without legal efficacy, without vitality or legal effect;
ineffectual; nugatory; unable in law to support the purpose for which it was
intended". (emphasis added).
56. The expression `void' has also been commented
upon in
57. However, the powers of this Court to examine
the constitutionality of a law have been discussed in number of judgments at
number of times. Reference in this behalf may be made to Fauji Foundation v.
Shamimur Rehman (PLD 1983 SC 457 at 596), Benazir Bhutto's case (PLD 1988 SC
416 at 485), Azizullah Memon's case (PLD 1993 SC 341 at 354), Government of
NWFP v. Muhammad Irshad (PLD 1995 SC 281 at 296), Civil Aviation Authority v.
Union of Civil Aviation Employees (PLD 1997 SC 781 at 796), Wukala Mahaz Barai
Tahafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263 at 1313 &
1357), Wattan Party v. Federation of Pakistan (PLD 2006 SC 697 at 731) and
Pakistan Muslim League (N) v. Federation of Pakistan (PLD 2007 SC 642 at 671,
675, 676).
58. It is important to note that as per the
command of Article 4 of the Constitution all the citizens without any
discrimination shall be dealt with in accordance with law, so enforcement of
the law leaves no room for creating any distinction between the citizens,
except a particular class, on the basis of intelligible differentia. The
principle challenge to the NRO, 2007, is of its being discriminatory in nature.
It is the case of the petitioners' that the NRO, 2007, being violative of
Article 25 of the Constitution, deserves to be declared void ab initio, non
est, thus never took birth, therefore, nothing, which is the product of the
NRO, 2007 or done in pursuance of it or under it, ever came into existence or
survive. It is also contended that the NRO, 2007 is void because it is a fraud
on the Constitution. According to the learned counsel for the petitioners, the
NRO, 2007 has violated the dictum laid down by this Court in Mahmood Khan
Achakzai's case (PLD 1997 SC 426) improved upon in Syed Zafar Ali Shah's case
(PLD 2000 SC 869), wherein, after a great deal of efforts, the Court eventually
came to treat Article 4 of the Constitution as `due process clause'. So far as
the provision of Article 25 of the Constitution is concerned, it has been discussed
time and again by this Court in a good number of cases, reference to which may
not be necessary, except the one i.e. Azizullah Memon's case (PLD 1993 SC 341),
wherein inconsistency of the provisions of Criminal Law (Special Provisions)
Ordinance, 1968 were examined on the touchstone of Articles 8 and 25 of the
Constitution, and ultimately appellant's (Government of Balochistan) appeal was
dismissed, declaring the Criminal Law (Special Provisions) Ordinance, 1968, to
be void being inconsistent with the fundamental rights enshrined in
Article 25 of the Constitution.
In this judgment,
with regard to `reasonable classification', following two principles
have been highlighted:--
"in
order to make a classification reasonable, it should be based:-
(a) on an intelligible differentia which
distinguishes persons or things that are grouped together from those who have
been left out;
(b) that the differentia must have
rational nexus to the object sought to be achieved by such
classification."
As
far as `intelligible differentia' is concerned, it distinguishes persons or
things from the other persons or things, who have been left out. The Indian
Supreme Court, while relying upon the statement of Professor Willis in
Charanjit Lal v. Union of India (AIR 1951 SC 41), observed that "any
classification which is arbitrary and which is made without any basis is no
classification and a proper classification must always rest upon some
difference and must bear a reasonable and just relation to the things in respect
of which it is proposed". Same principle has been highlighted in Shazia
Batool v. Government of Balochistan (2007 SCMR 410).
59. Thus, keeping in view the above principles
and the definition of classification "intelligible differentia"
means, in the case of the law differentiating between two sets of the people or
objects, all such differentiations should be easily understood as logical and
lucid and it should not be artificial or contrived.
60. It may be noted that the NRO, 2007 has
extended benefit to three categories of persons in the following manner:--
(1) By virtue of amendment of Section 494
Cr.P.C. the cases of accused persons, including the absconding accused,
involved in criminal cases, for political reasons or through political
victimization, initiated between 1st January, 1986 to 12th October, 1999
including those against whom, judgments have been pronounced by the Trial
Court, were to be withdrawn.
(2) By adding clause (aa) in Section 31A
of the NAO, 1999, it is declared that an order and judgment passed by the Court
in absentia against an accused is void ab initio and shall not be acted upon.
(3) By inserting Section 33F in the NAO,
1999, the proceedings under investigation or cases pending in any Court
including a High Court and the Supreme Court of Pakistan, initiated by or on a
reference by the NAB, inside and outside Pakistan, including the proceedings
initiated under Section 33 (ibid) by making requests for mutual assistance and
civil party to proceedings, by the Federal Government, before the 12th day of
October, 1999, against 'holders of public office' stood withdrawn and
terminated and such `holders of public office' shall also not be liable for any
action in future as well under this Ordinance for acts having been done in good
faith before the said date.
61. Now the constitutionality of amended Section
494 Cr. P.C. (Act V of 1898) by means of Section 2 of the NRO, 2007 shall be
examined. It would be appropriate to reproduce Section 494 Cr.P.C in its
original form hereinbelow:--
"494.
Effect of withdrawal from prosecution. Any Public Prosecutor may, with the
consent of the Court, before the judgment is pronounced, withdraw from the
prosecution of any person either generally or in respect of any one or more of
the offences for which he is tried, and upon such withdrawal:
(a) if it is made before a charge has
been framed, the accused shall be discharged in respect of such offence or
offences;
(b) if it is made after a charge has been
framed, or when under this Code no charge is required, he shall be acquitted in
respect of such offence or offences.
In
above provision, emphasis is upon "effect of withdrawal from the
prosecution with the consent of the Court". A plain reading of above
provision categorically provides for an important role of the Court as without
its consent, no effect of withdrawal from prosecution shall take place. In Saad
Shibli v. State (PLD 1981 SC 617), it has been observed as follows:--
"It
follows therefore, that on disclosure of satisfactory objective grounds,
relatable to public policy, or public peace, and administration of justice, an
application under Section 494 Cr.P.C., for seeking Court's permission to
withdraw from the prosecution can be filed. The Court's duty is to ensure that
such a course "is not an attempt to interfere with the normal course of
justice for illegitimate reason or purposes"- AIR 1957 SC 389 or that
Courts "own functioning is not thereby pre-empted"- PLD 1977 SC
451."
To
extend the benefit of the NRO, 2007 following amendment was made in Section 494
Cr.P.C. which is reproduced hereinbelow:--
"2. Amendment of section 494, Act V of 1898.
In
the Code of Criminal Procedure, 1898 (Act V of 1898), section 494 shall be
renumbered as sub-section (1) thereof and after sub-section (1) renumbered as
aforesaid, the following sub-section (2) and (3) shall be added, namely:
"(2)
Notwithstanding anything to the contrary in sub-section(1), the federal
government or a provincial government may, before the judgment is pronounced by
a Trial Court, withdraw from the prosecution of any person including an
absconding accused who is found to be falsely involved for political reasons or
through political victimization in any case initiated between 1st day of
January, 1986 to 12th day of October, 1999 and upon such withdrawal clause (a)
and clause (b) of subsection (1) shall apply.
(3) For the purposes of exercise of powers under
sub-section (2) the federal government and the provincial government may each
constitute a review board to review the entire record of the case and furnish
recommendations as to their withdrawal or otherwise.
(4) The review board in case of Federal
Government shall be headed by a retired judge of the Supreme Court with
Attorney-General and Federal Law Secretary as its members and in case of
Provincial Government it shall be headed by a retired judge of the high Court
with Advocate-General and/or Prosecutor-General and Provincial Law Secretary as
its members.
(5) A review board undertaking review of a case
may direct the public prosecutor or any other concerned authority to furnish to
it the record of the case."
A
cursory glance on amended Section 494 Cr.P.C. leads to conclude that powers of
the Court under Section 494 (1) Cr.P.C were conferred upon the Review Board, to
be constituted by the Federal Government and the Provincial Government,
composition of which has been provided under sub-Section (4) of Section 494
Cr.P.C. In simple words consent of the Court has been replaced with the
recommendations of the Review Board i.e. an executive body, for all intent and
purposes. The Review Board on whose recommendations, all the cases, in which
judgment has not been pronounced by the Trial Court, are to be withdrawn from
the prosecution, including the cases of absconding accused, who were found to
be falsely involved for the political reasons or political victimization.
Essentially, declaring a person absconder is the job of the Trial Court, after
submission of challan and observing codal formalities under Sections 87 and 88
Cr.P.C. As far as involving a person falsely for political reasons or through
political victimization, is concerned, it is a question which could only be
examined by the Court of law, before whom challan has been submitted because
once a challan is filed, the accused can
be discharged or acquitted under
Cr.P.C., if there
is no evidence against
the accused, as
the case may
be, or by applying for quashment of the case under
Section 561-A Cr.P.C. or approaching the Revisional Court for terminating the
proceedings, if the same are not founded on correct disclosure of information
for involvement of the accused. However, as far as absconding accused is
concerned, prima facie, he is considered to be fugitive from law. Therefore,
without surrendering to the Court, legally no concession can be extended to him
by the executive authority. Surprisingly, action initiated under the NRO, 2007
in terms of above provision is tantamount, in clear terms, to deny the
independence of judiciary, which is hallmark and also one of the salient features
of the Constitution, as it has been held in Syed Zafar Ali Shah's case (PLD 2000 SC 869). Relevant paras
therefrom are reproduced hereinbelow for convenience:--
"We
are of the considered view that if the Parliament cannot alter the basic
features of the Constitution, as held by this Court in Achakzai's case (supra),
power to amend the Constitution cannot be conferred on the Chief Executive of
the measure larger than that which could be exercised by the Parliament.
Clearly, unbridled powers to amend the Constitution cannot be given to the
Chief Executive even during the transitional period even on the touchstone of
`State necessity'. We have stated in unambiguous terms in the Short Order that
the Constitution of Pakistan is the supreme law of the land and its basic
features i.e independence of Judiciary, federalism and parliamentary form of
government blended with Islamic Provision cannot be altered even by the
Parliament. Resultantly, the power of the Chief Executive to amend the
Constitution is strictly circumscribed by the limitations laid down in the
Short Order vide sub-paragraphs (i) to (vii) of paragraph 6."
It
may be noted that as far as independence of Judiciary is concerned its security
has been provided by the Constitution itself in Article 2A of the Constitution
but the principle and concept of the same shall be discussed after examining
the constitutionality of various provisions of the NRO, 2007 including the one
which is under discussion.
62. In order to decide the issue of withdrawal of
criminal cases, registered against the accused persons, during the specific
period, commencing from 1st January, 1986 to 12th October, 1999, Mr. Yousaf
Leghari, Advocate General Sindh was called upon to place on record the details
of all cases. However, except furnishing one list of the cases, he could not
handover the list of all other cases, which according to his statement, noted
by this Court vide order dated 14th December 2009, is to the effect that the
Department has not been able to get a detailed list/ names of
absconders, whose cases
were recommended by the Review Board and
thereafter withdrawn under amended Section 494 Cr.P.C. In respect of
other Provinces, neither any benefit of the NRO, 2007 was extended to any of
the accused, nor was any Provincial Review Board constituted, as submitted by
the Advocates General of the respective Provinces. However, a perusal of the
material so furnished by the Advocate General Sindh, reveals that Provincial
Review Board constituted under the above provision of amended Section 494
Cr.P.C., examined criminal cases on 9th October 2007 and has drawn the
conclusion on the same day that after having gone through the available record
and bearing in mind the provisions contained in the amended Section 494 Cr.P.C.
the Board is of unanimous view that all the cases were falsely registered and
for political reasons, therefore, it would be futile exercise to keep them
pending particularly when most of the cases are very old and there is hardly
any cogent evidence to connect the accused with the alleged offences, as none
of them would result in conviction, if tried by the respective Courts, as such,
notwithstanding the fact that any one of the accused has been declared
absconder, the Board recommended the Provincial Government that those cases may
be withdrawn forthwith. Exact figure of such cases has not been brought on
record but as per verbal statement of the learned Advocate General Sindh, there
were more than three thousand cases which have been withdrawn, in which about
eight thousand accused were involved. We fail to understand whether hundreds of
cases can be decided within few hours, for the purpose of making
recommendations by the Provincial Review Board. Therefore, inference would be
that just to fulfill the formality, meeting of the Board was convened in order
to get recommendations for the withdrawal of cases. The list so made available
by the learned Advocate General Sindh indicates that the cases including the
criminal cases, involving murder, attempt to murder, dacoity, kidnapping for
ransom, robbery, gunrunning, theft, extortion, etc. have been recommended by
the Board for withdrawal forthwith. Needless to observe that after the
amendment in PPC, in pursuance of judgment of this Court in Federation of
Pakistan v. Gul Hassan Khan (PLD 1989 SC 633), the cases pertaining to Qisas,
Diyat, Arsh, etc. were not allowed to be compounded without the permission of
the victim or the heirs of decease and even if such permission is sought by
entering into compromise, under Chapter XVI of the PPC, no withdrawal or
compromise of such cases is permissible in noncompoundable cases.
Interestingly, in the list, submitted by the learned Advocate General Sindh,
there are cases, relating to offences, which are non-compoundable and even the
Court of law, before whom matter is subjudice, is not empowered to make
recommendations for withdrawal of the same or allowed to enter into compromise.
Admittedly, the victim or heirs of the deceased, in body-hurt cases, covered by
Chapter XVI PPC, had an inalienable right to be heard by a Court of law, as
sometimes permission is accorded by the
Court to compound the offence, subject to payment of Diyat,
19. As regards the merits of the question
involved in the case, the punishments of death awarded were not by way of
Qisas. The sentences of death awarded were under Ta'zir. Just as a sentence of
Ta'zir is imposed on State's command and not as a right of the individual under
God's law, the State as represented by the President, has and continues to have
in respect of Ta'zir punishments, the right of commutation, remission etc.
As
per the above principle of law, no question of pardon arises if the punishment
of Qisas has been awarded. However, in respect of Ta'zir, the President
continues to enjoy the power to grant pardon. It is further observed that in
terms of Articles 45 and 2A of the Constitution, the Court has no power to
apply the test of repugnancy by invoking Article 2A of the Constitution for
striking down Article 45 of the Constitution. This principle has been
highlighted by the seven member bench of this Court in the case of Abdul Malik
v. The State (PLD 2006 SC 365). Relevant para therefrom is reproduced
hereinbelow for convenience:--
23. It was argued that the power enshrined in the
aforereferred Article is violative of the spirit of Article 2A of the
Constitution. Any theological debate in this context is unnecessary as Article
2A is not a self-executing provision and unless there is proper legislation or
amendment in the Constitution, the provision as it stands has to be given
effect to. The power of the President to grant pardon, reprieve or respite and
to remit or suspend commute any sentence is a power which is given to Heads of
the States in most of the Constitutions of the world. The import and ambit of
this provision were considered by this Court in Bhai Khan v. State PLD 1992 SC
14 wherein at page 25, it was held as under:--
"The
exercise of the discretion by the President under Article 45 is to meet at the
highest level the requirements of justice and clemency, to afford relief
against undue harshness, or serious mistake or miscarriage in the judicial
process, apart from specific or special cases where relief is by way of grace
alone, as for instance to celebrate an event or when a new President or Prime
Minister is installed, where relief or clemency is for the honour of the State.
In the former case, the discretion has to be exercised with care, keeping in
mind the duty to maintain justice, so as to prevent the erosion of the
deterrent effect that judicial punishment must retain. The scope of the power
of the President under Article 45 is basically discretionary, in view of
Article 48(2) of the Constitution. The power under Article 45 being at the apex
and unfettered, the President, whilst commuting a sentence (on a number of
counts) or different sentences, can order the commuted sentences to run
concurrently inter se and/or concurrently with any other or others imposed by
the Court."
63. No assertion could be made by either of the
parties about the punishment to an accused, whose case has been withdrawn
despite likelihood of his getting punishment under Qisas or Ta'zir. The Court,
trying an accused for a particular crime, based on a particular charge, prayed
against him by the prosecution, has no reasons to enter into discussion whether
on account of political victimization, he has been involved in the case or
otherwise; because the Court is required to decide the case on merits, in
exercise of its jurisdiction, following the consistent principles of
administration of justice in criminal cases that if no case is made out on
merits, it is free to discharge or acquit the accused without waiting for
conclusion of the trial.
64. The amendment in Section 494 Cr.P.C. has not
only undermined the independence of judiciary by substituting the Court, before
whom the trial of an accused was pending, with the Review Board, but, at the
same time, had also created discrimination with the accused, who were facing
trial prior to 1st January, 1986 or had been charged for the offence after 12th
October, 1999. The preamble of the NRO, 2007 coupled with any of its
substantive part, had not disclosed the reasons, calling for so called
`national reconciliation' in between this period, presuming that an accused,
facing charge entailing major penalty of death, is not entitled for discharge,
by means of extra judicial forum, or for the same treatment, if he has
committed the crime after 13th October, 1999, and up till now. We have posed a
question to ourselves i.e. whether there had been no political victimization
after 12th October, 1999 uptill now, on account of which accused persons were
involved falsely in the commission of the offence but we could not succeed in
getting the answer of the same except observing that specific dates were
incorporated in the NRO, 2007 for achieving specific object as well as the
specific purpose, which has been highlighted by one of the learned counsel,
whose argument in this behalf has been noted hereinabove.
65. Somehow, the Indian Supreme Court had to face
with identical situation in Rajender Kumar v. State (AIR 1980 SC 1510). As per
the facts of the case, the Government of India, in exercise of powers conferred
by Section 196(1)(a) of the Code of Criminal Procedure 1973, and Section 7 of
the Explosive Substances Act, 1908, by its order dated 6th September, 1976
accorded sanction for the prosecution of George Mathew Fernandes alias George
Fernandes, Chairman of Socialist Party of India and Chairman of All India
Railwaymen's Federation and 24 others, for alleged offences under Sections
121-A & 120-B of Indian Penal Code, read with Sections 4, 5 and 6 of
Explosive Substances Act, 1908 and Sections 5(3)(b) and 12 of the Indian
Explosives Act, 1884, on the allegations that after the issuance of the
proclamation of Emergency on 25th June, 1975 by the President of India in
exercise of the powers conferred by clause (1) of Article 352 of the
Constitution, George Mathew, sought to arouse resistance against the said
emergency by declaring that the said emergency had been "clamped" on
the country by the "despotic rule" of Smt. Indira Gandhi, Prime
Minister of India and to entertain an idea that a conspiracy be hatched with
the help of the persons of his confidence, to over-awe the Government and in
pursuance of the conspiracy do such acts which might result in the destruction
of public property and vital installations in the country. On 24th September,
1976 the Deputy Superintendent of Police, Special Police Establishment Central
Bureau of Investigation, filed a charge-sheet in the Court of the Chief
Metropolitan Magistrate,
25. Before bidding farewell to these cases it may
be appropriate for us to say that Criminal justice is not a plaything and a
Criminal Court is not a play-ground for politicking. Political fervour should
not convert prosecution into persecution, nor political favour reward wrongdoer
by withdrawal from prosecution. If political fortunes are allowed to be
reflected in the processes of the Court very soon the credibility of the rule
of law will be lost. So we insist that Courts when moved for permission for
withdrawal from prosecution must be vigilant and inform themselves fully before
granting consent. While it would be obnoxious and objectionable for a Public
Prosecutor to allow himself to be ordered about, he should appraise himself
from the Government and thereafter appraise the Court the host of factors
relevant to the question of withdrawal from the cases. But under no
circumstances should he allow himself to become anyone's stooge.
The
provision of Section 2 of the NRO, 2007, is also contrary to the dictum laid
down in Saad Shibli's case (PLD 1981 SC 617), wherein it has been held as
under:--
13. A bare reading of this section discloses that
the statute conferring the power of withdrawal on the Public Prosecutor
prescribes no guidelines and indicates no controlling features, except that
such a power can be exercised before the judgment is pronounced and is subject
to "consent of the Court". From such a general dispensation certain
consequences necessarily follow. In the first place, the power conferred is of
the widest amptitude but not so wide as to amount to a fiat or ipsi dixit of
the Public Prosecutor. Such a limitation necessarily follows the requirement of
"consent of the Court." It has been held that "where Court's
permission is sought or required, such a motion seeks the active exercise of
the sound judicial discretion of the Court" (22 A CJS 7). Judicial
discretion of the Court is required to be exercised according to reasonably
well settled principles, which are capable of being formulated and applied as
standards by higher Courts when entertaining appeals against the manner in
which they have been exercised. In this sense, therefore, "judicial"
refers to the exercise of discretion in accordance with "objective"
standards as opposed to subjective considerations of policy and
expediency."
66. Above discussion, in the light of the facts
disclosed by the learned Advocate General Sindh, persuades us to hold that the
classification amongst the accused persons, facing trial during the specific
period i.e. 1st January 1986 to 12th October 1999, is based on arbitrariness and
no reasons have been disclosed in the NRO, 2007 for
entering into so called `reconciliation' with particular group of accused
persons, except in the name of `national reconciliation' on the pretext that
the cases were politically motivated against them. Therefore, the NRO, 2007 to
the extent of discussion on Section 2, is arbitrary and irrational as it has
failed the test of reason to conclude in its favour that it is not a bad law.
Similarly on the basis of intelligible differentia for reasonable classification,
the differentiation has not been understood logically and it seems that for
specific purpose, an artificial grouping was made, causing injustice to the
accused persons, who were placed in the same position and instead of achieving
the `national reconciliation' the NRO, 2007 had served the purpose of
`individual reconciliation'.
67. It has been argued by one of the learned
counsel i.e. Mr. Abdul Hafeez Pirzada, Sr. ASC that by means of Section 6 of
the NRO, 2007, a new provision i.e. (aa) has been added in Section 31A of the
NAO, 1999 and stated that this provision is contrary to Article 63(1)(p) of the
Constitution, for the reason that if `holder of public office' is an absconder,
in view of conviction recorded against him in absentia under Section 31A of the
NAO, 1999, such `holder of public office' is not competent to sit in the
Parliament on the basis of his conviction as well as morality. Therefore, by
promulgation of Section 6 of the NRO, 2007, conscience of the Constitution has
been divorced. Reliance in this behalf has been placed by him upon Jamal Shah
v. Election Commission (PLD 1966 SC 1) and Benazir Bhutto v. Federation of
Pakistan (PLD 1988 SC 416). On the Court's question, he replied that if Section
6 of the NRO, 2007 is declared void for these two reasons, then the convicts
must surrender before the will of the Constitution. He added that this is the
mandate of the Constitution. According to him if Article 63(1)(p) of the
Constitution could not be considered to be self-executory then no other
provision of the law could be so dealt with.
68. It would be advantageous to reproduce
hereinbelow Section 31A of the NAO, 1999:--
"31A.
Absconding to avoid service of warrants Whoever absconds in order to avoid
being served with any process issued by any Court or any other authority or
officer under this Ordinance or in any manner prevents, avoids or evades the
service on himself of such process or conceals himself to screen himself from
the proceedings or punishment under this Ordinance shall be guilty of an
offence punishable with imprisonment which may extend to three years
notwithstanding the provisions of section 87 and 88 of Code of Criminal
Procedure, 1898, or any other law for the time being in force."
The
above Section has been amended by means of Section 6 of the NRO, 2007, which
reads as under:--
"6. Amendment of section 31A, Ordinance XVIII of
1999.
In
the said Ordinance, in section 31A, in clause (a), for the full stop at the end
a colon shall be substituted and thereafter the following new clause (aa) shall
be inserted, namely:--
"(aa)
An order or judgment passed by the Court in absentia against an accused is void
ab initio and shall not be acted upon."
As
far as Article 63(1)(p) of the Constitution, referred to by the learned counsel,
relating to disqualification for becoming the member of the Parliament, is
concerned, it provides that a person shall be disqualified from being elected
or chosen, as and from, being a member of the Majlis-e-Shoora (Parliament) if
he has been convicted and sentenced to imprisonment for having absconded by a
competent Court under any law for the time being in force. On Court's query,
NAB has provided the list of the persons, convicted under Section 31A of the
NAO, 1999 because we wanted to ascertain whether there is any case of
convict/absconder who has been extended benefit of this provision. In view of
available material, it was considered appropriate to examine the
constitutionality/ vires of this provision of the NRO, 2007 as well.
69. It is important to note that this Court has
earlier granted relief to the convicts under Section 31A; firstly in an
unreported judgment in Gulzaman Kasi v. The State (Criminal Appeal No. 269 of
2003), wherein allegation against the appellant was that he in his capacity as
the Minister for Development Government of Balochistan/Chairman, Quetta
Development Authority, in connivance with Mr. Abdus-Saleem Durrani, Director
General, converted a plot meant for school/play ground, into six residential
plots and allotted the same to their close relatives and associates and thereby
committed offence under Section 9(b) of the NAO, 1999. The learned Bench of
three Hon'ble Judges of this Court, has held that the impugned conviction of
the appellant cannot be sustained for two reasons; firstly that trial in
absentia has been declared violative of Article 9 of the Constitution in Mehram
Ali v. Federation of Pakistan (PLD 1998 SC 1445); and secondly appellant was
subsequently arrested in the matter and was tried on the allegations which form
subject matter of the reference, in which he was convicted in absentia; his
appeal was dismissed by High Court of Balochistan and his Criminal Petition No.
68-Q of 2003 is pending decision before this Court and would be decided along
with this appeal; therefore, the convict was released.
70. It is to be noted that this case is
distinguishable from the case relating to disqualification of a person being
elected as a member of the Parliament, or from being a member of the
Parliament, because the question as
to whether he
has been rightly
convicted in absentia
or otherwise, is to be decided by the Court of law and the powers of the
Court could not be substituted or conferred according to Section 6 of the NRO,
2007 on the legislature to declare that an order or judgment passed by a Court
of competent jurisdiction in absentia is void ab initio and shall not be acted
upon. It may also be kept in mind that; firstly Section 6 of the NRO, 2007 is
general in its nature and benefit of the same can be derived by a candidate for
becoming the member of the Parliament, or a member of the Parliament, or by
other ordinary person; secondly, it has not been made applicable for a specific
period. Therefore, if it being an amended provision continued to remain intact
for all the times to come, conviction in absentia under Section 31A of the NAO,
1999 shall be void and for all practical purposes Section 31A of the NAO, 1999
shall be deemed to have been annulled. Before proceeding further, it is
necessary to answer that the observation made in Mehram Ali's case (PLD 1998 SC
1445) and in Gulzaman Kasi's case (Criminal Appeal No. 269 of 2003) could have
not been made in view of the distinctive facts, namely, in the said case Court
was authorized to remove the accused from the Court on his misbehaviour and in
his absence the trial was concluded and he was sentenced to death, therefore,
it was considered violation of Article 9 of the Constitution. Be that as it
may, Hon'ble same Judge of this Court i.e. Mr. Justice Tassaduq Hussain
Jillani, in his subsequent judgment in the case of Manzoor Qayyum v. The State
(PLD 2006 SC 343) has held as follows :--
"6. The question whether the petitioner had
absconded, "in order to avoid being served with any process issued by any
Court or any other authority or officer under this Ordinance" would be a
question of fact to, be decided by the Trial Court in the light of the material
brought before it. The reference by learned counsel for the petitioner to a
judgment of the Karachi High Court, Noor Muhammad Khatti and others v. The
State 2005 PCr.LJ 1889 may not be relevant at this stage before this Court. It
rather contains instructive guidelines for a Trial Court seized of a case under
section 31-A of the NAB Ordinance. In the said case, the learned Karachi High
Court delved at length on the scope of the aforereferred section, the nature of
evidence the prosecution has to produce to prove the avoidance of service of
notice or of execution of warrants particularly when an accused allegedly leaves
the country. But having observed all this, the Court directed the appellant to
appear before the Trial Court "as and when required by the said Courts for
further proceedings in accordance with law". In the case of N.M.V.
Vellayappa Chettiar v. Alagappa Chettiar AIR (29) 1942 Madras 289, a trial
Magistrate had issued warrants of attachment and proclamation on account of
non-appearance of the accused and the same were set aside by the High Court but
the main complaint pending before the said Magistrate was not interfered with.
The High Court held as under:--
"It
is obvious that when the Magistrate was informed that the petitioner had
already left India, the orders for attachment and proclamation are without
jurisdiction, unless he was satisfied that the accused was willfully
absconding, knowing of the warrant. He could not have known of the warrant
which was issued after he had left
7. In the instant case as well, the learned High
Court while setting aside the conviction under section 31-A of NAB Ordinance,
left the matter to Trial Court to decide it afresh. The precise question which
the learned Trial Court would be seized of now is whether the allegation of
absconsion or avoidance of service of the process of the Trial Court is borne
out from the record or material placed before it or not. This Court would not
pre-empt the function of the Trial Court. In these circumstances, the judgment
of the learned High Court is unexceptionable. However, the petitioner would be
within his right to move an application under section 265-K, Cr.P.C. and if
such an application is moved, the learned Trial Court shall decide the same on
merit with independent application of mind within 15 days of its presentation
as assured by learned Deputy Prosecutor General of NAB."
71. On having gone through the above judgment, it
is crystal clear that offence falling within the mischief of Section 31A of the
NAO, 1999 is distinct offence, from the allegations made in the reference,
which was filed against an accused and if the convict has been acquitted in the
reference or the reference has been withdrawn, even then the conviction under
Section 31A of the NAO, 1999 remain operative and the convict
has to avail remedy, for getting it set aside, by approaching the next higher
judicial forum, as envisaged under Section 32 of the NAO, 1999.
72. As discussed above, conviction in absentia is
a final order, therefore, no other forum can declare such conviction as void,
except a judicial forum, that too, by filing an appeal. But in instant case, as
it has been pointed out hereinabove, by amending a law, such conviction has been
declared void, therefore, the amendment in Section 31A of the NAO, 1999 by
inserting clause (aa), by means of Section 6 of the NRO, 2007, is declared void
being against the provisions of Section 31A read with Section 32 of the NAO,
1999, which provides remedy to the convict to file appeal.
73. There is another judgment in the case of The
State v. Aftab Ahmed Khan Sherpao (PLD 2005 SC 399), in which appeal filed by
the State against the acquittal of the respondent, has been dismissed, inter
alia, for the reason that the respondent convict under Section 31A of the NAO,
1999, voluntarily surrendered himself before the High Court, where appeal
against his conviction was pending; he was acquitted of the charge under
Section 31A by the High Court, which was considered to be unexceptional and the
State appeal was dismissed. This Court in another judgment in State v.
Naseem-ur-Rehman (2004 SCMR 1943) in respect of the respondent, convicted under
Section 31A of the NAO, 1999 observed that it was obligatory upon the convict
to approach the Court; first of all he should surrender to the order of his
imprisonment, meaning thereby that on surrendering before the Court he should
be taken into custody and the Court might order for his release in appeal and
if such person is not taken into custody or not admitted to bail, then he will
be deemed to be fugitive from law and would not be entitled to any relief.
74. The above discussion poses another important
question, namely, whether the legislature by means of an enactment can undo the
effect of the judgment in which the person has been convicted for an offence
and if he is `holder of public office', his such conviction is a
disqualification to be elected as a member of the Parliament, or to be a member
of the Parliament, under Article 63(1)(p) of the Constitution? In this behalf
the simple answer would be that with reference to a person, who intended to
become the member of the Parliament, or is a member of the Parliament, no
legislation is possible to grant him relief in presence of the provisions of
the Constitution, being a parent law. It is well settled by the time that no
legislation on any subject is permissible which is against the specific
provision of the Constitution. In this behalf we are fortified with the judgment
in Wattan Party v. Federation of Pakistan (PLD 2006 SC 697), wherein it has
been held as under:--
"..................
Besides it is an accepted principle of the Constitutional jurisprudence that a
Constitution being a basic document is always treated to be higher than other
statutes and whenever a document in the shape of law given by the Parliament or
other competent authority is in conflict with the Constitution or is
inconsistent then to that extent the same is liable to be declared
un-Constitutional. This is not for the first time that a law like Ordinance
2000 has come for examination before the Court as in the past a number of laws
were examined and when found against the Constitution the same were declared
void and of no legal effect. ......................... (emphasis provided).
75. It is also important to note that this law
has opened the door of the Parliament, for the persons, convicted in absentia,
as the disqualification for a person to become a member of Parliament and for a
member of Parliament under Article 63(1)(p) of the Constitution has been
removed by means of clause (aa) inserted in Section 31A of the NAO, 1999, a
person, who has been convicted under Section 31A of the NAO, 1999, in absentia,
with a stigma of a convict, has been made qualified to enter into the
Parliament, contrary to the Constitutional provisions as well as law laid down
in the case of Abdul Baqi v. Muhammad Akram (PLD 2003 SC 163).
76. As far as nullifying the effect of a judgment
by means of a legislation is concerned, there are certain limitations including
the one i.e. by amending the law with retrospective effect, on the basis of
which the order or judgment has been passed, thereby removing the basis of the
decision. Reference in this behalf can be made to Tofazzal Hossain v.
"Firstly,
whether the legislature possesses competence over the subject matter, and,
secondly, whether by validation the legislature has removed the defect which
the Courts had found in the previous law. To these we may add a third. Whether
it is consistent with the provisions of Part III of the Constitution.
It is
to be noted that the NAB has placed on record the material pointing out the
names of the beneficiaries, who have derived benefit under Section 6 of the
NRO, 2007 but applying the test laid down hereinabove, we can safely conclude
that the insertion of clause (aa) in Section 31A of the NAO,
1999 is without
lawful authority, as it has not
amended the original Section 31A of the NAO, 1999, which is still intact with
all its consequences and effects. It is pertinent to mention here that the
language used in an enactment must show the intention of the lawgiver that it
would apply with retrospective effect and shall be deemed always to have been
so inserted in the respective statute. In this behalf reference may be made to
Fecto Belarus Tractor v. Government of Pakistan (PLD 2005 SC 605). Relevant
para therefrom is reproduced hereinbelow for convenience:--
54. Besides, the language used in both the
Ordinances manifests clear intention of the law giver that it would apply with
retrospective effect and shall be deemed always to have been so inserted in
respective statutes. Identical language was used in section 5 of the Finance
Act 1988 in pursuance whereof section 31-A was inserted in the Customs Act,1969
with retrospective effect. This Court had occasion to examine this provision of
law in Molasses Trading and Export (ibid). Relevant paras, therefrom read as
under:-
"........Before
considering this question it would be appropriate to make certain general
observations with regard to the power of validation possessed by the
legislature in the domain of taxing statutes. It has been held that when a
legislature intends to validate a tax declared by a Court to be illegally
collected under an invalid law, the cause for ineffectiveness or invalidity
must be removed before the validation can be said to have taken place
effectively. It will not be sufficient merely to pronounce in the statute by
means of a non obstante clause that the decision of the Court shall not bind
the authorities, because that will amount to reversing a judicial decision
rendered in exercise of the judicial power which is not within the domain of
the legislature. It is therefore necessary that the conditions on which the
decision of the Court intended to be avoided is based, must be altered so
fundamentally, that the decision would not any longer be applicable to the
altered circumstances. One of the accepted modes of achieving this object by
the legislature is to reenact retrospectively a valid and legal taxing
provision, and adopting the fiction to make the tax already collected to stand
under the reenacted law. The legislature can even give its own meaning and
interpretation of the law under which the tax was collected and by
"legislative fait" make the new meaning binding upon Courts. It is in
one of these ways that the legislature can neutralize the effect of the earlier
decision of the Court. The legislature has, within the bounds of the
Constitutional limitations, the power to make such a law and give it
retrospective effect so as to bind even past transactions. In ultimate
analysis, therefore, the primary test of validating piece of legislation is
whether the new provision removes the defect which the Court had found in the
existing law and whether adequate provisions in the validating law for a valid
imposition of tax were made..................................................................
it is clear from the provisions of section 5 of the Finance Act, 1988 that by
the device of the deeming clause the newly-inserted section 31-A is to be
treated as part and parcel of the Act since its enforcement in 1969.
Undoubtedly, therefore, the section is retrospective in operation. It is agreed
on all hands that the well-settled principles of interpretation of statutes are
that vested rights cannot be taken away save by express words or necessary
intendment. It also cannot be disputed that the legislature, which is competent
to make a law, has full plenary powers within its sphere of operation to
legislate retrospectively or retroactively. Therefore, vested rights can be
taken away by such a legislation and it cannot be struck down on that grounds.
However, it has also been laid down in
"In
other words liabilities that are fixed or rights that have been obtained by the
operation of law upon facts or events for or perhaps it should be said against
which the existing law provided are not to be disturbed by a general law
governing future rights and liabilities unless the law so intends."
This
is an important principle which has to be kept in mind in the context of the
present case. Reference may also be made to another principle followed is
several decisions but to quote from Mehreen Zaibun Nisa v. Land Commissioner,
Multan (PLD 1975 SC 397) where it was observed:
"When
a statute contemplates that a state of affairs should be deemed to have existed,
it clearly proceeds on the assumption that in fact it did not exist at the
relevant time but by a legal fiction we are to assume as if it did exist. The
classic statement as to the effect of a deeming clause is to be found in the
observations of Lord Asquith in East End Dwelling Company Ltd. V. Finsbury
Borough Council (1952) AC 109) namely:-
`Where
the statute says that you must imagine the state of affairs, it does not say
that having done so you must cause or permit your imagination to boggle when it
comes to the inevitable corollaries of that state of affairs."
However,
in that case aforesaid principle was subjected in its application to a given
case to condition that the Court has to determine the limits within which and
the purposes for which the legislature has created the fiction. It has been
quoted from an English decision that "When a statute enacts that something
shall be deemed to have been done which in fact and in truth was not done, the
Court is entitled and bound to ascertain for what purposes and between what
persons the statutory fiction is to be resorted to."
77. The examination of the above principle
abundantly makes it clear that since the basis of the judgment, in respect of
conviction in absentia under Section 31A of the NAO, 1999, has not been
removed, pointing out any defect in the same by the legislature, therefore, the
legislature, by means of an enactment, could not give a judgment that
conviction in absentia was void ab initio, rather for the purpose of declaring
such judgments void ab initio, it was incumbent upon the legislature to have
repealed Section 31A of the NAO, 1999 because on the basis of the same the
absconder accused were convicted. More so, to nullify the effect of a judgment,
by means of a legislative enactment, we have to examine the nature of each
judgment separately and individually but in instance case omni bus type order
has been passed, declaring all the judgments recorded under Section 31A of the
NAO, 1999 as void ab initio, without pointing out any defect in the same. Under
the civil administration of justice, plethora of case law is available on the
point that how an effect of a judgment can be nullified or neutralized,
particularly the judgment in which, on the basis of existing laws, the Courts
have come to the conclusion that the tax was not recoverable but the Government
by issuing a legislation, with retrospective effect, has removed the defect in
the law, thereby nullified the effect of the judgment, as a result whereof the
Government continued to effect the recovery of tax. This is in respect of the
civil matters, but in the criminal administration of justice we have not
succeeded in laying hand on such identical principles, applied in civil cases,
on the point, therefore, we have to rely upon Treaties on the Constitutional
Limitation by Thomas M. Cooley, wherein it has been held as follows:--
"If
the legislature would prescribe a different rule for the future from that which
the Courts enforce, it must be done by statute, and cannot be done by a mandate
to the Courts, which leaves the law unchanged, but seeks to compel the Courts
to construe and apply it not according to the judicial, but according to the
legislative judgment. But in any case the substance of the legislative action
should be regarded rather than the form; and if it appears to be the intention
to establish by declaratory statute a rule of conduct for the future, the
Courts should accept and act upon it, without too nicely inquiring whether the
mode by which the new rule is established is the best, most decorous and
suitable that could have been adopted or not.
If
the legislature cannot thus indirectly control the action of the Courts, by
requiring of them a construction of the law according to its own views, it is
very plain it cannot do so directly, by setting aside their judgments,
compelling them to grant new trials, ordering the discharge of offenders, or
directing what particular steps shall be taken in the progress of a judicial
inquiry."
78. However, in respect of criminal cases, this
issue has to be approached differently than the matters relating to civil
disputes, payment of taxes, etc. The legislative authority, ordinarily is not
required to enter into the domain of judiciary. It has been noted, time and
again, that under the scheme of the Constitution, the judiciary has an
independent role, amongst three organs of the State, as it has been held in
Mahmood Khan Achakzai's case (PLD 1997 SC 426), Mehram Ali's case (PLD 1998 SC
1445), Liaquat Hussain's case (PLD 1999 SC 504) and Syed Zafar Ali Shah's case
(PLD 2000 SC 869). Relevant extracts from the last mentioned judgment are
reproduced hereinbelow for convenience:--
"210.
The independence of Judiciary is a basic principle of the constitutional system
of governance in
211.
In a system of constitutional governance, guaranteeing Fundamental Rights, and
based on principle of trichotomy of powers, such as ours, the Judiciary plays a
crucial role of interpreting and applying the law and adjudicating upon
disputes arising among governments or between State and citizens or citizens'
inter se. The Judiciary is entrusted with the responsibility for enforcement of
Fundamental Rights. This calls for an independent and vigilant system of
judicial administration so that all acts and actions leading to infringement of
Fundamental Rights are nullified and the rule of law upheld in the society.
212. The Constitution makes it the exclusive
power/responsibility of the Judiciary to ensure the sustenance of system of
"separation of powers" based on checks and balances. This is a legal
obligation assigned to the Judiciary. It is called upon to enforce the
Constitution and safeguard the Fundamental Rights and freedom of individuals.
To do so, the Judiciary has to be properly organized and effective and
efficient enough to quickly address and resolve public claims and grievances;
and also has to be strong and independent enough to dispense justice fairly and
impartially. It is such an efficient and independent Judiciary which can foster
an appropriate legal and judicial environment where there is peace and security
in the society, safety of life, protection of property and guarantee of
essential human rights and fundamental freedoms for all individuals and groups,
irrespective of any distinction or discrimination on the basis of cast; creed,
colour, culture, gender or place of origin, etc. It is indeed such a legal and
judicial environment, which is conducive to economic growth and social
development."
The
above principle has been reiterated in Sindh High Court Bar Association's case
(PLD 2009 SC 879), with approval.
79. Undoubtedly, the legislative authority has to
perform those functions, which have been recognized by the Constitution. There
is no such provision on the basis of which a judgment can be annulled, except
in civil cases, that too, subject to following the principles laid down
hereinabove. As far as matters relating to criminal administration of justice
are concerned, where a judgment has been announced on the basis of law, the
legislative authority cannot annul such judgment without pointing out any flaw
in the law, which is the basis of such a judgment; as in the instant case, no
amendment has been made in the original text of Section 31A of the NAO, 1999,
therefore, it would lead us to the conclusion that the judgment pronounced
under the law, by a Court of competent jurisdiction, is a judgment which has
been pronounced legally, according to the mandate, conferred upon the Court and
such judgment or order cannot be annulled by means of an enactment. It is well settled
principle of law that upon feeling aggrieved by any judgment pronounced in the
criminal administration of justice, the aggrieved person has been provided with
the remedies to invoke the jurisdiction of the higher Courts, within the
hierarchy. Similarly, in the case in hand, if a person is aggrieved by an order
of conviction/sentence recorded against him under Section 31A of the NAO, 1999,
he has remedy under Section 32 of the NAO, 1999 to file an appeal before the
High Court.
80. As it has been noted hereinabove that if the
legislative authority is not aggrieved, in any manner, by the judgment
pronounced by the Courts discharging its functions under Section 31A of the
NAO, 1999, the said judgment could only be set aside, varied, suspended as per the
procedure laid down in the NAO, 1999 and not by enforcing or adopting
legislative measures. In this behalf, this Court, in Abdul Kabir v. State (PLD
1990 SC 823), has highlighted this aspect, in the following manner:--
"..................
A conviction is complete as soon as the person charged has been found guilty by
a Court of competent jurisdiction. During the pendency of an appeal, appellate
Court may suspend the sentence under section 426, Cr.P.C. So execution of
sentence of petitioner is suspended and not his conviction which remains
operative till it is set aside by the higher appellate Courts. Pendency of the
appeal for decision does not ipso facto mean that the conviction is wiped out.
The appellate Court has no authority under section 426 to suspend the
conviction. Conviction and sentence connote two different terms. Conviction
means proving or finding guilty. Sentence is punishment awarded to a person
convicted in criminal trial. Conviction is followed by sentence. It cannot be
accepted as principle of law that till matter is finally disposed of by Supreme
Court against convicted person, the conviction would be considered as held in
abeyance. This interpretation is not in consonance with the spirit of law and
against logical coherence. The suspension of sentence is only a concession to
an accused under section 426, Cr.P.C. but it does not mean that the conviction
is erased. Therefore, in view of the fourth proviso, the third proviso to
section 497(1), Cr.P.C. is not attracted to the case of the petitioner."
In
the case in hand, without any reasonable justification, both, the conviction
and the sentence, have been declared void, by adding clause (aa) in Section 31A
of the NAO, 1999, which definitely is against the norms and the principles of
justice.
81. The legislature is competent to legislate but
without encroaching upon the jurisdiction of the judiciary. If, it is presumed
that the insertion of clause (aa) in Section 31A of the NAO, 1999, by means of
Section 6 of the NRO, 2007, is constitutionally valid even then it would be
tantamount to allow the legislature to pronounce a judicial verdict against an
order or judgment of a competent Court of law, declaring the same to be void ab
initio. Therefore, following the doctrine of trichotomy of powers, the action
of the legislative authority, whereby clause (aa) has been inserted in Section
31A of the NAO, 1999, by means of the NRO, 2007, would be considered to be a
step to substitute the judicial forum with an executive authority. Thus, it
would not be sustainable being contrary to the principle of independence of
judiciary, as mentioned in Article 2A of the Constitution, which provides that
independence of judiciary shall be fully secured read with Article 175 of the
Constitution, which lays down a scheme for the establishment of the Courts,
including the superior Courts and such other Courts as may be established by
law. In the case in hand, except an appeal under Section 32 of the NAO, 1999 to
the High Court of the Province, no other remedy is available to a convict
against his conviction/sentence, to get it set aside. For convenience, Section
32 of the NAO, 1999 is reproduced hereinbelow:--
32.
Appeal [and revision]:
(a) Any person convicted or the
Prosecutor General Accountability, if so directed by Chairman NAB, aggrieved by
the final judgement and order of the Court under this Ordinance may, within ten
days of the final judgement and order of the Court prefer an appeal to the High
Court of the Province where the Court is situated:
Provided that no appeal shall
lie against any interlocutory order of the Court.
(b) All Appeals against the final
judgement and Order filed before the High Court will be heard by a Bench of not
less than two judges constituted by the Chief Justice of the High Court and
shall be finally disposed of within thirty days of the filing of the Appeal.
(c) No revision shall lie against any
interlocutory order of the Court.
Thus,
no other forum including the legislature is empowered to declare an order or
judgment, whereby conviction has been recorded under Section 31A of the NAO,
1999, to be void ab initio except in civil cases pertaining to the tax matters,
etc., as discussed above. As far as Articles 2A and 175 of the Constitution are
concerned, they furnish guarantee for securing the independence of judiciary.
This is not the only case in which we are confronted with such situation. Right
from the case of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105) to
Mehram Ali's case (PLD 1998 SC 1445), followed by in Liaquat Hussain's case
(PLD 1999 SC 504), this Court has always interpreted Article 175 of the
Constitution read with one of the items of the Objective Resolution, which has
been enshrined in Article 2A of the Constitution, guaranteeing independence of
judiciary.
The
observations made above are not in derogation to the powers of the Parliament.
There may indeed be cases in which Parliament may, by appropriate legislation,
and by manifestation of appropriate intent and use of language, be competent to
nullify the effect of a judgment in the given circumstances of the case. This,
however, is not such a case as an unspecified number of convictions, on
differing facts and evidence, are sought to be set aside in one swipe. This is
going beyond legislative competence and Parliament itself wisely decided not to
intervene to make permanent a temporary law (Ordinance) by enacting as an Act
of Parliament. We are only endorsing the will of the elected representatives in
following their intent.
82. It may also be noted that Article 203 of the
Constitution is also another important provision of the Constitution which
provides that each High Court shall supervise and control all Courts
subordinate to it. In this context following para from the Mehram Ali's case
(PLD 1998 SC 1445), being advantageous is reproduced hereinbelow:--
"11.
From the above case-law the following legal position obtaining in
(i) That Articles 175, 202 and 203 of
the Constitution provide a framework of Judiciary i.e. the Supreme Court, a
High Court for each Province and such other Courts as may be established by
law.
(ii) That the words "such other
Courts as may be established by law" employed in clause (1) of Article 175
of the Constitution are relatable to the subordinate Courts referred to in Article
203 thereof.
(iii) That our Constitution recognizes only
such specific Tribunal to share judicial powers with the above Courts, which
have been specifically provided by the Constitution itself Federal Shariat
Court (Chapter 3-A of the Constitution), Tribunals under Article 212, Election
Tribunals (Article 225). It must follow as a corollary that any Court or
Tribunal which is not founded on any of the Articles of the Constitution cannot
lawfully share judicial power with the Courts referred to in Articles 175 and
203 of the Constitution.
(iv) That in view of Article 203 of the
Constitution read with Article 175 thereof the supervision and control over the
subordinate judiciary vest in High Courts, which is exclusive in nature,
comprehensive in extent and effective in operation.
(v) That the hallmark of our Constitution
is that it envisages separation of the Judiciary from the Executive (which is
founded on the Islamic Judicial System) in order to ensure independence of
Judiciary and, therefore, any Court or Tribunal which is not subject to
judicial review and administrative control of the High Court and/or the Supreme
Court does not fit in within the judicial framework of the Constitution.
(vi) That the right of "access to
justice to all" is a fundamental right, which right cannot be exercised in
the absence of an independent judiciary providing impartial, fair and just
adjudicatory framework i.e. judicial hierarchy. The Courts/Tribunals which are
manned and run by executive authorities without being under the control and
supervision of the High Court in terms of Article 203 of the Constitution can
hardly meet the mandatory requirement of the Constitution.
(vii) That the independence of judiciary is
inextricably linked and connected with the process of appointment of Judges and
the security of their tenure and other terms and conditions."
83. It is to be borne in mind that as per the
dictum, laid down hereinabove, the intervention by the executive, contrary to
the principles of independence of judiciary, has been declared
unconstitutional. Reference in this
behalf, if needed,
may be made
to short order
in Mehram Ali's case (PLD 1998 SC 1445) dated 15th May 1998, which is
reproduced hereinbelow for ready reference:--
"For
the reasons to be recorded later on, we dispose of the above cases as under:--
(i) Section 5(2)(i) is held to be
invalid to the extent it authorises the officer of Police, armed forces and
civil armed forces charged with the duty of preventing terrorism, to open fire
or order for opening of fire against person who in his opinion in all
probability is likely to commit a terrorist act or any scheduled offence,
without being fired upon;
(ii) section 10 of the Anti-Terrorism Act,
1997, hereinafter referred to as the Act, in its present form is not valid; the
same requires to be suitably amended as to provide that before entering upon
premises which is suspected to have material or a recording in contravention of
section 8 of the Act, the concerned officer of Police, armed forces or civil
armed forces shall record in writing his reasons for such belief and serve on
the person or premises concerned a copy of such reasons before conducting such
search;
(iii) section 19(10)(b) of the Act, which
provides for trial of an accused in absentia on account of his misbehaviour in
the Court, is violative of Article 10 of the Constitution and, therefore, is
declared as invalid;
(iv) sections 24, 25, 27, 28, 30 and 37 of
the Act are also not valid in their present form as they militate against the
concept of independence of judiciary and Articles 175 and 203 of the
Constitution. They need to be amended as to vest the appellate power in a High
Court instead of Appellate Tribunal and to use the words "High Court"
in place of "Appellate Tribunal";
(v) section 26 of the Act is not valid in
its present form as it makes admissible the confession recorded by a police
officer not below the rank of a Deputy Superintendent of Police as it is
violative of Articles 13(b) and 25 of the Constitution and that the same requires
to be suitably amended by substituting the words `by a police officer not below
the rank of a Deputy Superintendent of Police' by the words `Judicial
Magistrate';
(vi) that the offences mentioned in the
Schedule should have nexus with the objects mentioned in sections 6, 7 and 8 of
the Act;
(vii) section 35 of the Act in its present
form is not valid as it militates against the concept of the independence of
judiciary and is also violative of Articles 175 and 203 of the Constitution
and, therefore, it needs to be suitably amended inasmuch as the power to frame
rules is to be vested in the High Court to be notified by the Government;
(viii) section 14 of the Act requires to be
amended as to provide security of the tenure of the Judges of the Special Courts
in consonance with the concept of independence of judiciary."
Subsequent
thereto, Article 175 of the Constitution has been interpreted in Liaquat
Hussain's case (PLD 1999 SC 504). As per the facts of this case, petitioner
Liaquat Hussain challenged the Pakistan Armed Forces (Acting in Aid of the
Civil Power) Ordinance, 1998 promulgated on 20th November, 1998 whereby the
civilians were to be tried by the Military Courts for the civil offences,
mentioned, inter alia, in the schedule of the Ordinance, on various grounds
concerning the jurisdiction of the Courts to discharge judicial functions. The
Court, while taking into consideration the principles highlighted in Mehram
Ali's case (PLD 1998 SC 1445) observed as follows:--
"15. The above-quoted extract from the above
judgment in the case of Mehram Ali and others v. Federation of Pakistan and
others (PLD 1998 SC 1445), indicates that it has been inter alia held that our
Constitution recognises only such specific Tribunals to share judicial power
with the Courts referred to in Articles 175 and 203, which have been
specifically provided by the Constitution itself, like Federal Shariat Court
(Chapter 3-A of the Constitution), Tribunals under Article 212, Election
Tribunals (Article 225) and that any Court or Tribunal which is not founded on
any of the Articles of the Constitution cannot lawfully share judicial power
with the Courts referred to in Articles 175 and 203 of the Constitution.
Admittedly the Military Courts to be convened under section 3 of the impugned
Ordinance do not fall within the category of the Courts referred to in the
above Articles. This was even so contended by the learned Attorney-General as
reflected from his arguments reproduced hereinabove in para. 11. Neither the
above Military Courts nor the personnel to man the same qualify the other
requirements spelled out in the case of Mehram Ali reproduced hereinabove in
para.14.
The
question which needs examination is, as to whether by virtue of invocation of
Article 245 of the Constitution for calling the Armed Forces to act in aid of
civil power, the impugned Ordinance could have been promulgated for convening
Military Courts in terms of section 3 thereof. This will, inter alia involve
the determination as to the meaning and import of the expression "The
Armed Forces shall.........and, subject to law, act in aid of civil power when
called upon to do so" used in clause (1) of Article 245 of the
Constitution. I may, at this stage, reproduce the above Article 245 of the
Constitution, which reads as follows:
"245.
Functions of Armed Forces.--(1) The Armed Forces shall, under the directions of
the Federal Government, defend
(2)
The validity of any direction issued by the Federal Government under clause
(1), shall not be called in question in any Court.
(3) A
High Court shall not exercise any jurisdiction under Article 199 in relation to
any area in which the Armed Forces of Pakistan are, for the time being, acting
in aid of civil power in pursuance of Article 245:
Provided
that this clause shall not be deemed to affect the jurisdiction of the High
Court in respect of any proceeding pending immediately before the day on which
the Armed Forces start acting in aid of civil power.
(4)
Any proceeding in relation to an area referred to in clause (3) instituted on
or after the day the Armed Forces start acting in aid of civil powers and
pending in any High Court shall remain suspended for the period during which
the Armed Forces are so acting."
It
may be highlighted that the original Article 245 comprised what is now clause
(1) thereof. Clauses (2) to (4) were added by the Constitution (Seventh
Amendment) Act, 1977 (Act 23 of 1977) with effect from 21st April, 1977.
It
may be stated that the above-quoted clause (1) imposes two Constitutional
duties on the Armed Forces to be performed upon the direction of the Federal
Government:
(i) To defend
(ii) subject to law, act in aid of civil
power when called upon to do so.
Whereas
clause (2) thereof lays down that the validity of any direction issued by the
Federal Government under clause (1) shall not be called in question in any Court.
It
may further be noticed that clause (3) thereof provides that a High Court shall
not exercise any jurisdiction under Article 199 in relation to any area in
which the Armed Forces of Pakistan are, for the time being, acting in aid of
civil power in pursuance of Article, but subject to the proviso that the
jurisdiction of the High Court is not to be affected in respect of the
proceedings pending immediately before the day on which the Armed Forces start
acting in aid of civil power.
It
may also be pointed out that clause (4) thereof lays down that any proceedings
in relation to an area referred to in clause (3) instituted on or after the day
the Armed Forces start acting in aid of civil powers and pending in any High
Court shall remain suspended for the period during which the Armed Forces are
so acting."
84. It is worth mentioning that in the above
referred case, Military Courts were established to try the civilians to meet
the challenge of terrorism, inter alia, for one of the reasons that the cases
of terrorists are not being disposed of expeditiously. This Court declared that
the trial of the civilians under the impugned Ordinance, so far as it laid down
the establishment of the Military Courts, was unconstitutional. Contents of the
operative para from the short order dated 17th February, 1999 are reproduced
hereinbelow:--
"After
hearing the learned counsel for the petitioners, the petitioners in person, the
learned Attorney-General for
To
ensure expeditious disposal of the case, the guidelines have also been provided
under para 3, which reads as under:--
"3. Since we are seized of these petitions in
exercise of our Constitutional jurisdiction under Article 184(3) of the
Constitution, we lay down the following guidelines which may contribute towards
the achievement of the above objective:
(i) Cases relating to terrorism be
entrusted to the Special Courts already established or which may be established
under the Anti-Terrorism Act, 1997 (hereinafter referred to as A.T.A.) or under
any law in terms of the judgment of this Court in the case of Mehram Ali and
others v. Federation of Pakistan (PLD 1998 SC 1445);
(ii) One case be assigned at a time to a
(iii) The concerned Special Court should
proceed with the case entrusted to it on day to day basis and pronounce
judgment within a period of 7 days as already provided in A.T.A. or as may be
provided in any other law;
(iv) Challan of a case should be submitted
to a
(v) An appeal arising out of an
order/judgment of the
(vi) Any lapse on the part of the
Investigating and Prosecuting Agencies shall entail immediate disciplinary
action according to the law applicable;
(vii) The Chief Justice of the High Court
concerned shall nominate one or more Judges of the High Court for monitoring
and ensuring that the cases/appeals are disposed of in terms of these
guidelines;
(viii) That the Chief Justice of Pakistan may
nominate one or more Judges of the Supreme Court to monitor the implementation
of the above guidelines. The Judge or Judges so nominated will also ensure that
if any petition for leave/or appeal with the leave is filed, the same is
disposed of without any delay in the Supreme Court;
(ix) That besides invoking aid of the
Armed Forces in terms of sections 4 and 5 of the A.T.A., the assistance of the
Armed Forces can be pressed into service by virtue of Article 245 of the Constitution
at all stages including the security of the Presiding Officer, Advocates and
witnesses appearing in the cases, minus the process of judicial adjudication as
to the guilt and quantum of sentence, till the execution of the sentence."
Inter
alia, mechanism was provided for appointment of monitoring teams by the Chief
Justice of the High Court concerned, who were required to nominate one or more
judges of the High Court for monitoring and ensuring that the cases/appeals
shall be disposed of in terms of these guidelines. However, Chief Justice of
Pakistan was also allowed to nominate one or more Judges of the Supreme Court
to monitor the implementation of the above guidelines and to ensure that if any
petition for leave to appeal or any appeal with the leave is filed, the same is
disposed of without any delay in the Supreme Court, etc.
85. Essentially, the above guidelines/directions
for expeditious disposal of cases were issued by this Court, in exercise of its
powers under Article 187 of the Constitution, which provides that Supreme Court
shall have power to issue such directions, orders or decrees, as may be
necessary for doing complete justice in any case or matter pending before it,
including an order for the purpose of securing the attendance of any person or
the discovery or production of any document. This Article of the Constitution
has been interpreted in so many cases. However, reference is being made only to
Sabir Shah's case (PLD 1995 SC 66). Relevant para therefrom is reproduced
hereinbelow for convenience:--
"10.
The Supreme Court is the apex Court. It is the highest and the ultimate Court
under the Constitution. In my view the inherent and plenary power of this Court
which is vested in it by virtue of being the ultimate Court, it has the power
to do complete justice without in any manner infringing or violating any
provision of law. While doing complete justice this Court would not cross the
frontiers of the Constitution and law. The term "complete justice" is
not capable of definition with exactitude. It is a term covering variety of
cases and reliefs which this Court can mould and grant depending upon the facts
and circumstances of the case. While doing complete justice formalities and
technicalities should not fetter its power. It can grant ancillary relief,
mould the relief within its jurisdiction depending on the facts and
circumstances of the case, take additional evidence and in appropriate cases
even subsequent events may be taken into consideration. Ronald Rotunda in his
book "Treatise on Constitutional Case Substance" (Second-Edition),
Volume 2 at page 90 has stated that "The Supreme Court is an essence of a
continual Constitutional convention". The jurisdiction and the power
conferred on the Supreme Court does empower it to do complete justice by
looking to the facts, circumstances and the law governing a particular case.
Article 187 does not confer any jurisdiction. It recognises inherent power of
an apex Court to do complete justice and issue orders and directions to achieve
that end. Inherent justification is vested in the High Court and subordinate
Courts while dealing with civil and criminal cases by virtue of provisions of
law. The inherent jurisdiction of this Court to do complete justice cannot be
curtailed by law as it may adversely affect the independence of judiciary and
the fundamental right of person to have free access to the Court for achieving
complete justice. This enunciation may evoke a controversy that as Article
175(2) restricts Article 187 it will create conflict between the two. There is
no conflict and both the Articles can be read together. The conflict in the
provisions of the Constitution should not be assumed and if apparently there
seems to be any, it has to be interpreted in a harmonious manner by which both
the provisions may co-exist. One provision of the Constitution cannot be struck
down being in conflict with the other provision of the Constitution. They have
to live together, exist together and operate together. Therefore, while
interpreting jurisdiction and power of the superior Courts one should look to
the fundamental rights conferred and the duty cast upon them under the
Constitution. A provision like Article 187 cannot be read in isolation but has
to be interpreted and read harmoniously with other provisions of the
Constitution. In my humble view this Court while hearing appeal under a statute
has the jurisdiction and power to decide the question of vires of the statute
under which the appeal has arisen and can even invoke Article 184(3) in appropriate
cases."
86. This Court, while hearing the petition under
Article 184(3) of the Constitution, enjoys ample powers under Article 8 of the
Constitution, to declare any law inconsistent with the fundamental rights
conferred by the Constitution or to examine the constitutionality of such law,
on the touchstone of any other provision of the Constitution. While exercising
its constitutional powers, conferred upon this Court under various provisions
of the Constitution, including Articles 184, 185, 187(1) and 212(3), it also
enjoys enormous powers of judicial review. Besides, it is well settled by the
time that the Apex Court had always been vested with inherent powers to
regulate its own authority of judicial review, inasmuch as in Zafar Ali Shah's
case (PLD 2000 SC 869) this Court has elaborately discussed the powers of
judicial review, in the following terms:--
"216.
Judicial power means that the Superior Courts can strike down a law on the
touchstone of the Constitution, as this Court did in Mehram Ali's and Sh.
Liaquat Hussain's cases. The nature of judicial power and its relationship to
jurisdiction are all allied concepts and the same cannot be taken away. The
concept of judicial review was laid down in the United States by Chief Justice
John Marshal in the case William Marbury v. James Medison (2 Law Ed. 60),
ruling that it was inherent in the nature of judicial power that the
Constitution is regarded as the supreme law and any law or act contrary to it
or infringing its provisions is to be struck down by the Court in that the duty
and function of the Court is to enforce the Constitution. The concept of
judicial review did not exist in
217.
...................................................................
218.
...................................................................
219. While going through the case-law of Great
Britain, we came across the view expounded by Chief Justice Coke, whose
writings are regarded as an important source of Common Law, to the effect that
the Bench should be independent of the Crown and arbiter of the Constitution to
decide all disputed questions whereas Bacon took the view that the Court is
under the King but then following the Plato's theory he (Bacon) wanted the King
to be a philosopher. The evolution of judicial power is co-terminus with the
evolution of civilization and this is so because judicial power has to check
the arbitrary exercise of powers by any organ or authority .......................................".
Similarly
in Wattan Party (PLD 2006 SC 697), the power of judicial review of this Court
has been discussed in the following terms:--
"47.
Article 8 of the Constitution grants the power of judicial review of
legislation according to which this Court is empowered to declare a law void if
it is inconsistent with or in derogation to the fundamental rights. However, at
the same time this Court is empowered to declare any legislation contrary to
the provisions of Constitution under some of the identical provisions of the
Constitution as under Article 143 of the Constitution on having noticed
inconsistencies between the Federal and Provincial laws the Court is empowered
to declare that which out of the two laws is in accordance with the
Constitution. Besides it is an accepted principle of the Constitutional
jurisprudence that a Constitution being a basic document is always treated to
be higher than other statutes and whenever a document in the shape of law given
by the Parliament or other competent authority is in conflict with the
Constitution or is inconsistent then to that extent the same is liable to be
declared un-Constitutional. This is not for the first time that a law like
Ordinance 2000 has come for examination before the Court as in the past a
number of laws were examined and when found against the Constitution the same
were declared void and of no legal effect. Reference may be made to the case of
Syed Zafar Ali Shah v. Gen. Pervez Musharaf, Chief Executive of Pakistan (PLD
2000 SC 869) wherein it was held that judicial power means that the superior
Courts can strike down a law on the touchstone of the Constitution. The nature
of judicial power and its relation to jurisdiction are all allied concepts and
the same cannot be taken away. It is inherent in the nature of judicial power
that the Constitution is regarded as a supreme law and any law contrary to it
or its provisions is to be struck down by the Court, as the duty and the
function of the Court is to enforce the Constitution. Prior to the case of
Zafar Ali Shah, this Court had examined different laws and declared that
provisions of some of them were contrary to the provisions of the Constitution.
Reference to the cases of Mehram Ali ibid, Sh. Liaquat Hussain v. Federation of
Pakistan (PLD 1999 SC 504), Khan Asfand Yar Wali v. Federation of Pakistan (PLD
2001 SC 607), etc is pertinent. Keeping in view the principles defining the
powers of judicial review of this Court to examine a law at the touchstone of
the Constitution, we
have considered the
arguments put forward by learned counsel for the petitioner and have
also minutely gone through the provisions/sections of the Ordinance 2000
referred to by the learned counsel in his arguments to ascertain as to whether
any of them negates the provisions of the Constitution."
87. In exercise of judicial powers, as it has
been discussed in above referred judgments, while examining the vires of a
statute, the powers of this Court are limited to examine the legislative
competence or to such other limitations as are in the Constitution and while
declaring a legislative instrument as void, it is not because the judicial
powers are superior in dignity to the legislative powers but because it
enforces the Constitution as a paramount law or where the legislative
instrument is in conflict with the Constitutional provisions so as to give
effect to it or where the legislature fails to keep it, within its
constitutional limitations. [Fauji Foundation v. Shamimur Rehman (PLD 1983 SC
457)]. There are cases wherein this Court has examined the constitutional
provisions challenged therein, as well, but while remaining within its limited
sphere, as noted above. Reference may be made to Wukala Mahaz Barai Tahafaz
Dastoor's case (PLD 1998 SC 1263).
88. Similarly, in the neighbouring country as
well, the constitutional provisions have been challenged from time to time.
Reference in this behalf may be made to Smt. Indira Nehru Gandhi's case (AIR
1975 SC 2299). Brief facts of this case are that the High Court of Allahabad
vide judgment dated 12th June, 1975 observed that the appellant (Smt. Indra
Nehru Ghandi) held herself out as a candidate from 29th December, 1970 and was
guilty of having committed corrupt practice by having obtained the assistance
of Gazetted Officers in furtherance of her election prospects; the High Court
further found the appellant guilty of corrupt practice committed under Section
123(7) of the Representation of the People Act, 1951, by having obtained the
assistance of Yashpal Kapur a Gazetted Officer for the furtherance of her
election prospects; the appellant was held to be disqualified for a period of
six years from the date of the order as provided in Section 8(a) of the 1951
Act. Subsequently, the matter was brought under challenge before the Supreme
Court in appeal, during the pendency whereof the Constitution (Thirty-ninth
Amendment) Act, 1975, was enacted, whereby, apart from other amendments in the
Constitution, Article 329A was inserted in the Indian Constitution. Clause (4)
of Article 329A, provided that no law made by Parliament before the
commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in so far
as it relates to election petitions and matters connected therewith, shall
apply or shall be deemed ever to have applied to or in relation to the election
of any such person as is referred to in Clause (1) to either House of
Parliament and such election shall not be deemed to be void or ever to have
become void on any ground on which such election could be declared to be void
under any such law and notwithstanding any order made by any Court, before such
commencement, declaring such election to be void, such election shall continue
to be valid in all respects and any such order and any finding on which such
order is based shall be and shall be deemed always to have been void and of no
effect. Consequently, the above noted Thirty-ninth amendment in the
Constitution of India was also brought under challenge before the Supreme Court
of India in above noted case. Validity of the legislative judgment, whereby the
above referred amendments were made, was the moot question before the Supreme
Court including the questions that whether by amending a law, action of
judgment can be nullified and whether it is upon the constitutional authority
to declare an order or findings to be void and of no effect or whether such
declaration can only be made under either any judicial proceedings or on a
proceedings before higher Court. The answer to this proposition has been
replied in the following paras :--
"189.
Another aspect of part (iv) of Clause (4) relates to the question as to whether
it is open to the constituent authority to declare an order and a finding of
the High Court to be void and of no effect or whether such a declaration can be
made only either in separate judicial proceedings or in proceedings before a
higher Court.
190.
A declaration that an order made by a Court of law is void is normally part of
the judicial function and is not a legislative function. Although there is in
the Constitution of India no rigid separation of powers, by and large the
spheres of judicial function and legislative function have been demarcated and
it is not permissible for the legislature to encroach upon the judicial sphere.
It has accordingly been held that a legislature while it is entitled to change
with retrospective effect the law which formed the basis of the judicial
decision, it is not permissible to the legislature to declare the judgment of
the Court to be void or not binding (see Shri Prithvi Cotton Mills Ltd. v.
Broach Borough Municipality, (1970) 1 SCR 388 (at page 392) = (AIR 1970 SC
192), Janapada Sabha, Chhindwara v. The Central Provinces Syndicate Ltd. (1970)
3 SCR 745 (at page 751) = (AIR 1971 SC 57), Municipal Corporation of the City
of Ahmedabad etc. v. New Shorock Spg. & Wvg. Co. Ltd. etc. (1971) 1 SCR 288
= (AIR 1970 SC 1292) and State of Tamil Nadu v. M.Rayappa Gounder (AIR 1971 SC
231).
191.
The position as it prevails in the United States, where guarantee of due
process of law is in operation, is given on pages 318-19 of Vol. 46 of the
American Jurisprudence 2d. as under:
"The
general rule is that the legislature may not destroy, annul, set aside, vacate,
reverse, modify, or impair the final judgment of a Court of competent
jurisdiction, so as to take away private rights which have become vested by the
judgment. A statute attempting to do so has been held unconstitutional as an
attempt on the part of the legislature to exercise judicial power, and as a violation
of the Constitutional guarantee of due process of law. The legislature is not
only prohibited from reopening cases previously decided by the Courts, but is
also forbidden to affect the inherent attributes of a judgment. That the
statute is under the guise of an act affecting remedies does not alter the
rule. It is worthy of notice, however, that there are cases in which judgments
requiring acts to be done in the future may validly be affected by subsequent
legislation making illegal that which the judgment found to be legal, or making
legal that which the judgment found to be illegal.
10. Judgment as to public right.
With
respect to legislative interference with a judgment, a distinction has been
made between public and private rights under which distinction a statute may be
valid even though it renders ineffective a judgment concerning a public right.
Even after a public right has been established by the judgment of the Court, it
may be annulled by subsequent legislation.
192. Question arises whether the above limitation
imposed upon the legislature about its competence to declare a judgment of the
Court to be void would also operate upon the constituent authority?
193. View has been canvassed before us that the
answer to the above question should be in the negative. Although normally a
declaration that the judgment of a Court is void can be made either in separate
proceedings or in proceedings before the higher Court, there is, according to
this view, no bar to the constituent authority making a declaration in the
Constitutional law that such an order would be void especially when it relates
to a matter of public importance like the dispute relating to the election of a
person holding the office of Prime Minister. The declaration of the voidness of
the High Court judgment is something which can ultimately be traced to part
(i). Whether such a declaration should be made by the Court or by the
constituent authority is more, it is urged, a matter of the mechanics of making
the declaration and would not ultimately affect the substance of the matter
that the judgment is declared void. According to Article 31B, without prejudice
to the generality of the provisions contained in Article 31A, none of the Acts
and Regulations specified in the Ninth Schedule nor any of the provisions
thereof shall be deemed to be void, or ever to have become void, on the ground
that such Act, Regulation or provision is inconsistent with, or takes away or
abridges any of the rights conferred by, any provisions of this Part, and notwithstanding
any judgment, decree or order of any Court or tribunal to the contrary, each of
the said Acts and Regulations shall, subject to the power of any competent
Legislature to repeal or amend it, continue in force. The effect of the above
article, it is pointed out, is that even if a statute has been declared to be
void on the ground of contravention of fundamental rights by a Court of law,
the moment that statute is specified by the constituent authority in the Ninth
Schedule to the Constitution, it shall be deemed to have got rid of that
voidness and the order of the Court declaring that statute to be void is
rendered to be of no effect. It is not necessary in such an event to make even
the slightest change in the statute to rid it of its voidness. The stigma of
voidness attaching to the statute because of contravention of fundamental
rights found by the Court is deemed to be washed away as soon as the statute is
specified by the constituent authority in the Ninth Schedule and the judgment
of the Court in this respect is rendered to be inoperative and of no effect. In
the case of Don John Douglas Liyange v. The Queen 1967 AC 259 the Judicial
Committee struck down as ultra vires and void the provisions of the Criminal
Law (Special Provisions) Act, 1962 on the ground that they involved the
usurpation and infringement by the legislature of the judicial powers
inconsistent with the written Constitution of Ceylon. Their Lordships, however,
expressly referred on page 287 to the fact that the impugned legislation had
not been passed by two-thirds majority in the manner required for an amendment
of the Constitution contained in Section 29(4) of the Constitution. It was
observed:
"There
was speculation during the argument as to what the position would be if Parliament
sought to procure such a result by first amending the Constitution by a
two-thirds majority. But such a situation does not arise here. In so far as any
Act passed without recourse to Section 29(4) of the Constitution purports to
usurp or infringe the judicial power it is ultra vires. "
The
above observations, it is urged, show that the restriction upon the legislature
in encroaching upon judicial sphere may not necessarily hold good in the case
of constituent authority.
194.
The above contention has been controverted by Mr. Shanti Bhushan and he submits
that the limitation on the power of the legislature that it cannot declare void
a judgment of the Court equally operates upon the constituent authority. It is
urged that the constituent authority can only enact a law in general terms,
even though it be a Constitutional law. The constituent authority may also, if
it so deems proper change the law which is the basis of a decision and make
such change with retrospective effect, but it cannot, according to the learned
Counsel, declare void the judgment of the Court. Declaration of voidness of a
judgment, it is stated, is a judicial act and cannot be taken over by the
constituent authority. Although legislatures or the constituent authority can
make laws including those for creation of Courts, they cannot, according to the
submission, exercise judicial functions by assuming the powers of a super Court
in the same way as the Courts cannot act as a super legislature. It is in my
opinion, not necessary to dilate upon this aspect and express a final opinion
upon the rival contentions, because of the view I am taking of part (iii) of
Clause (4)."
89. As far as sub-Article 4 of Article 329A,
providing constitutional protection to the amended law is concerned, the Court,
ultimately, held as under:--
"690. The Parliament, by Clause (4) of Article
329-A, has decided a matter of which the country's Courts were lawfully seized.
Neither more nor less. It is true, as contended by the learned Attorney-General
and Shri Sen, that retrospective validation is a well known legislative process
which has received the recognition of this Court in tax cases, pre-emption
cases, tenancy cases and a variety of other matters. In fact, such validation
was resorted to by the legislature and upheld by this Court in at least four
election cases, the last of them being Kanta Kathuria v. Manak Chand Surana
(1970) 2 SCR 835 = (AIR 1970 SC 694). But in all of these cases, what the
legislature did was to change the law retrospectively so as to remove the
reason of disqualification, leaving it to the Courts to apply the amended law
to the decision of the particular case. In the instant case the Parliament has
withdrawn the application of all laws whatsoever to the disputed election and
has taken upon itself to decide that the election is valid. Clause (5) commands
the Supreme Court to dispose of the appeal and the cross-appeal in conformity
with the provisions of Clause (4) of Article 329-A, that is in conformity with
the "judgment" delivered by the Parliament. The "separation of
powers does not mean the equal balance of powers" says Harold Laski, but
the exercise by the legislature of what is purely and indubitably a judicial
function is impossible to sustain in the context even of our cooperative
federalism which contains no rigid distribution of powers but which provides a
system of salutary checks and balances.
90. Likewise, recently the Constitutional Court
of Italy examined the constitutionality of Article 1 of law No. 124 of 23rd
July 2008 [the provision ordering the suspension of criminal proceedings
against the high offices of state]. Brief facts of the said case are that the
above said law was promulgated in Italy to provide protection to some of the
politicians including the Silvio Berlusconi, the President of the Council of
Ministers. Article 1(1) of the said law provided that "without prejudice
to the cases governed by Articles 90 and 96 of the Constitution, any criminal
proceedings against individuals which occupy the offices of President of the
Republic, President of the Senate of the Republic, President of the Chamber of
Deputies and President of the Council of Ministers, shall be suspended from the
time when the office or function is taken up until the end of the term in
office; the suspension shall also apply to criminal proceedings for conduct
prior to taking up the office or function". Whereas sub-section (7) of the
said Article provided that "the provisions of the Article shall also apply
to criminal proceedings in progress, at every stage, state or instance, at the
time when the present law enters into force". During the course of
criminal proceedings, the Tribunale di Milano, by referral order of 26th
September, 2008 (referral order No. 397 of 2008), raised the question with regard
to the constitutionality of Article 1(1) and (7) of law No. 124 of 23rd July
2008, with reference to Articles 3, 136 and 138 of the Constitution. However,
ultimately the matter came up before the Constitutional Court of Italy, when
the Court concluded that the procedural suspension provided for, under the
contested provision, is aimed essentially at protecting the functions of the
members and Presidents of certain constitutional organs and, at the same time,
creates a clear difference in treatment before the Courts. Therefore, it was
held that both of the prerequisites for constitutional privileges are
satisfied, which means that, that matter is not susceptible to regulation
through ordinary legislation. It was further held that in particular, the contested
legislation confers on the holders of four high institutional offices an
exceptional and innovative protected status, which cannot be inferred from the
constitutional provisions on privileges and which therefore is not covered
under constitutional law, therefore, it does not constitute a source of law of
an appropriate level to make provision over this matter. Thus the Court,
eventually, declared that Article 1 of law No. 124 of 2008 is unconstitutional
due to violation of the combined provisions of Articles 3 and 138 of the
Constitution, in relation to the arrangements governing privileges contained in
Articles 68, 90 and 96 of the Constitution.
91. Thus, in view of above discussion, it is held
that amendment in Section 31A of the NAO, 1999 by inserting clause (aa) in it,
by means of Section 6 of the NRO, 2007 is unconstitutional and void ab initio.
92. Section 7 of the NRO, 2007 further added
Section 33F in the NAO, 1999, by means of which, following categories of the
persons have benefitted:
(i) The persons, against whom
investigation is pending but no trial has commenced; the investigation has come
to an end.
(ii) The persons, against whom the trial
is pending but no conviction/acquittal has been recorded; the trial comes to an
immediate end.
(iii) The persons, who have been convicted
but have merely filed an appeal or some proceedings, against that conviction
before the High Court or the Supreme Court and whether or not such
conviction/sentence has been suspended, before the promulgation of the NRO, 2007;
everything stands terminated and withdrawn.
(iv) The persons, who have been acquitted
and against their acquittal an appeal is pending; they also stand absolved.
(v) The persons, against whom, request
for mutual legal assistance and civil party to proceedings, have been initiated
by the Federal Government; that stand withdrawn or terminated.
(vi) holders of public office', whose cases
have been withdrawn or terminated, shall also not be liable to any action in
future, as well, under the NRO, 2007, for acts having been done in good faith
before the cut off date.
93. It may be noted that Section 33E of the NAO,
1999 provides that any fine or other sum due, or as determined to be due by a
Court, shall be recoverable as arrears of land revenue. Apparently, Section 33F
of the NAO, 1999, inserted through Section 7 of the NRO, 2007 has provided a
mechanism for withdrawal and termination of prolonged pending proceedings,
initiated prior to 12th October, 1999. For ready reference, Section 7 of the
NRO, 2007 is reproduced hereinbelow:--
"7.
Insertion of new section, Ordinance, XVIII of 1999. In the said Ordinance,
after section 33E, the following new section shall be inserted, namely:
"33F.
Withdrawal and termination of prolonged pending proceedings initiated prior to
12th October, 1999.
(1)
Notwithstanding anything contained in this Ordinance or any other law for the
time being in force, proceedings under investigation or pending in any Court
including a High Court and the Supreme Court of Pakistan initiated by or on a
reference by the National Accountability Bureau inside or outside Pakistan,
including proceedings continued under section 33, requests for mutual
assistance and civil party to proceedings initiated by the Federal Government
before the 12th day of October, 1999 against holders of public office stand
withdrawn and terminated with immediate effect and such holders of public
office shall also not be liable to any action in future as well under this
Ordinance for acts having been done in good faith before the said date;
Provided
that those proceedings shall not be withdrawn and terminated which relate to
cases registered in connection with the cooperative societies and other
financial and investment companies or in which no appeal, revision or
constitutional petition has been filed against final judgment and order of the
Court or in which an appellate or revisional order or an order in
constitutional petition has become final or in which voluntary return or plea
bargain has been accepted by the Chairman, National Accountability Bureau under
section 25 or recommendations of the Conciliation Committee have been accepted
by the Governor, State bank of Pakistan under section 25A.
(2)
No action or claim by way of suit, prosecution, complaint or other civil or
criminal proceeding shall lie against the Federal, Provincial or Local
Government, the National Accountability Bureau or any of their officers and
functionaries for any act or thing done or intended to be done in good faith
pursuant to the withdrawal and termination of cases under sub-section (1)
unless they have deliberately misused authority in violation of law."
The
above provision seems to be open ended, as on account of non-obstante clause,
it directs that notwithstanding anything contained in this Ordinance or any
other law for the time being in force, proceedings under investigation or
pending in any Court, including a High Court and the Supreme Court of Pakistan,
initiated by or on a reference by the National Accountability Bureau, inside or
outside Pakistan, including proceedings continued under Section 33, requests
for mutual assistance and civil party to proceedings, initiated by the Federal
Government, before the 12th October, 1999, against holders of public offices,
stand withdrawn and terminated with immediate effect and such `holders of
public office' shall also not be liable to any action in future, as well, under
this Ordinance, for acts having been done in good faith, before the said date.
This is for the first time that in the newly inserted Section 33F of the NAO,
1999 by means of Section 7 of the NRO, 2007, the connotation `holders of public
office' has been used. The definition of the `holders of public office' has
been provided in Section 5(m) of the NAO, 1999, which reads as follows:--
5(m).
"Holder of Public Office" means a person who :--
(i) has been the President of Pakistan
or the Governor of a Province.
(ii) is, or has been the Prime Minister,
Chairman Senate, Speaker of the National Assembly, Deputy Speaker National
Assembly, Federal Minister, Minister of State, Attorney General and other Law
Officer appointed under the Central Law Officers Ordinance, 1970 (VII of 1970),
Advisor to the Prime Minister, Special Assistant to the Prime Minister, Federal
Parliamentary Secretary, Member of Parliament, Auditor General, Political
Secretary, Consultant to the Prime Minister and holds or has held a post or
office with the rank or status of a Federal Minister or Minister of State;
(iii) is, or has been, the Chief Minister,
Speaker Provincial Assembly, Deputy Speaker Provincial Assembly, Provincial
Minister, Advisor to the Chief Minister, Special Assistant to the Chief
Minister, Provincial Parliamentary Secretary, Member of the Provincial
Assembly, Advocate General including Additional Advocate General and Assistant
Advocate General, Political Secretary, Consultant to the Chief Minister and who
holds or has held a post or office with the rank or status of a Provincial
Minister;
(iv) is holding, or has held, an office or
post in the service of Pakistan, or any service in connection with the affairs
of the Federation, or of a Province, or of a local council constituted under
any Federal or Provincial law relating to the constitution of local councils,
cooperative societies or in the management of corporations, banks, financial
institutions, firms, concerns, undertakings or any other institution or
organization established, controlled or administered by or under the Federal
Government or a Provincial Government, other than a person who is a member of
any of the armed forces of Pakistan, except a person who is, or has been a
member of the said forces and is holding, or has held, a post or office in any
public corporation, bank, financial institution, undertaking or other
organization established, controlled or administered by or under the Federal
Government or a Provincial Government or, notwithstanding any thing contained
in the Pakistan Army Act, 1952 (XXXIX of 1952), or any other law for the time
being in force, a person who is a civilian employee of the armed forces of
Pakistan;
(v) has been, the Chairman or Vice
Chairman of a zila council, a municipal committee, a municipal corporation or a
metropolitan corporation constituted under any Federal or Provincial law
relating to local councils; and
"Explanation"- For the
purpose of this sub-clause the expressions "Chairman" and "Vice
Chairman" shall include "Mayor" and "Deputy Mayor" as
the case may be, and the respective councilors therein.
(va) is or has been a District Nazim or Naib
Nazim, Tehsil Nazim or Naib Nazim or Union Nazim or Naib Nazim;
(vi) has served in and retired or resigned
from or has been discharged or dismissed from the Armed Forces of
Pakistan."
94. It may be noted that NAO, 1999 was
promulgated on 16th November, 1999, after military takeover in the country, on
12th October, 1999. Although in its application the NAO, 1999 during the regime
of General Pervez Musharraf has been the subject of debate, pro and con, it has
not been amended by any succeeding Parliament. In fact, the promulgation of the
NAO, 1999 was claimed to have been expedient and necessary to provide for
effective measures for the detection, investigation, prosecution and speedy
disposal of cases, involving corruption, corrupt practices, misuse or abuse of
power or authority, misappropriation of property, taking of kickbacks,
commissions and for matters connected and ancillary or incidental thereto. [The
underlined words have been added in the preamble vide Ordinance No. CXXXIII of
2002 dated 23rd November 2002]. Similarly, an emergent need was also found for
the recovery of outstanding amounts from the persons, who have committed
default in the repayment of amounts to Banks, Financial Institutions,
Government agencies and other agencies. Likewise, it was also felt that there was
a grave and urgent need for the recovery of State money and other assets from
those persons who have misappropriated or removed such money or assets through
corruption, corrupt practices and misuse of power or authority. Yet there was
another important aspect of the preamble, which was inserted vide Ordinance No.
XXXV of 2001 dated 10th August 2001 which speaks that there is an increased
international awareness that nations should co-operate in combating corruption
and seek, obtain or give mutual legal assistance in matters concerning
corruption and for matters connected, ancillary or incidental thereto.
95. It may be noted that the word `corruption'
has been defined by this Court in Syed Zafar Ali Shah's case (PLD 2000 SC 869),
in the following terms:--
"233. `Corruption' is generally defined as the
abuse of public office for private gain. In view of the fact that scope of
corruption has widened, this definition would include the abuse of all offices
of trust. It has diverse meanings and far-reaching effects on society,
government and the people. Of late, the culture of corruption and bribe has
embedded in our society to the extent that even routine works which should be
done without any approach or influence are commonly known to be done only on
some such consideration. This bribe culture has plagued the society to the
extent that it has become a way of life. In Anatulay VIII (1988) 2 SCC 602
where Abdul Rahman Anatulay, Chief Minister of Maharashtra was prosecuted for,
corruption Sabyasachi Mukharji, J. lamented as follows:--
"Values
in public life and perspective of values in public life, have undergone serious
changes and erosion during the last few decades. What was unheard before is
common place today. A new value orientation is being undergone in our life and
culture. We are at the threshold of the cross-roads of values. It is for the
sovereign people of this country to settle these conflicts yet the Courts have
a vital role to play in these matters."
234.
.......................................... When corruption permeates in the
social, political and financial transactions to such an extent that even proper
and honest orders and transactions are suspected to the point of belief being a
result of corruption, one is compelled to infer all is not well and corruption
has gone deep in the roots. No doubt, this is an age of "corruption
eruption", but during the last few years there have been large scale
prosecutions of former world leaders in various countries on the charges of
corruption and corrupt practices, in some cases leading to convictions, which
phenomenon must not be taken lightly and the issue must be addressed adequately
and effectively through transparent institutionalized processes."
96. One of the learned counsel appearing for the
petitioners argued that the NRO, 2007 is the result of abuse of public office
for private gain, therefore, it is like a virus which has infected the body of
politics. According to him corruption vitiates like fraud, which vitiates all
transactions, therefore, the NRO, 2007 stands vitiated by the effect of abuse
of public office for private gain. He further added that the NRO, 2007 is a
document which is non est; it is like a still born, which dies in mother's
wombs.
97. Thus the theme of the NAO, 1999, as it is
evident from its preamble and substantive part, is to deal with the cases of
corruption and corrupt practices, strictly to achieve the object spelt out in
preamble. The expression "corruption and corrupt practices" has been
defined in Section 9 of the NAO, 1999, as under:--
9. Corruption and Corrupt Practices.--(a) A
holder of a public office, or any other person, is said to commit or to have
committed the offence of corruption and corrupt practices:--
(i) if he accepts or obtains from any
person or offers any gratification directly or indirectly, other than legal
remuneration, as a motive or reward such as is specified in section 161 of the
Pakistan Penal Code (Act XLV of 1860) for doing or for-bearing to do any
official act, or for showing or for-bearing to show, in the exercise of his
official functions, favour or disfavour to any person, or for rendering or
attempting to render any service or disservice to any person; or
(ii) If he accepts or obtains or offers
any valuable thing without consideration, or for a consideration which he knows
to be inadequate, from any person whom he knows to have been, or likely to be,
concerned in any proceeding or business transacted or about to be transacted by
him, or having any connection with his official functions or from any person
whom he knows to be interested in or related to the person so concerned; or
(iii) If he dishonestly or fraudulently
misappropriates or otherwise converts for his own use, or for the use of any
other person, any property entrusted to him, or under his control, or willfully
allows any other person so to do; or
(iv) If he by corrupt, dishonest, or
illegal means, obtains or seeks to obtain for himself, or for his spouse and/or
dependents or any other person, any property, valuable thing, or pecuniary
advantage; or
(v) If he or any of his dependents or
benamidars owns, possesses, or has acquired right or title in any assets or
holds irrevocable power of attorney in respect of any assets or pecuniary
resources disproportionate to his known sources of income, which he cannot
reasonably account for, or maintains a standard of living beyond that which is
commensurate with his source of income; or
(vi) If he misuses his authority so as to
gain any benefit or favour for himself or any other person, or render or
attempts to render or willfully fails to exercise his authority to prevent the
grant, or rendition of any undue benefit or favour which he could have
prevented by exercising his authority;
(vii) If he has issued any directive, policy,
or any SRO (Statutory Regulatory Order) or any other order which grants or
attempts to grant any undue concession or benefit in any taxation matter or law
or otherwise so as to benefit himself or any relative or associate or a
benamidar or any other person; or
(viii) if he commits an offence of willful
default; or
(ix) if he commits the offence of cheating
as defined in section 415 of the Pakistan Penal Code, 1860 (Act XLV of 1860),
and thereby dishonestly induces members of the public at large to deliver any
property including money or valuable security to any person; or
(x) if he commits the offence of
criminal breach of trust as defined in section 405 of the Pakistan Penal Code,
1860 (Act XLV of 1860) with regard to any property including money or valuable
security entrusted to him by members of the public at large;
(xi) if he, in his capacity as a banker,
merchant, factor, broker, attorney or agent, commits criminal breach of trust
as provided in section 409 of the Pakistan Penal Code, 1860 (Act XLV of 1860)
in respect of property entrusted to him or over which he has dominion;
(xii) if he aids, assists, abets, attempts
or acts in conspiracy with a person or a holder of public office accused of an
offence as provided in clauses (i) to (xi).]; and
(b) All offences under this Order shall
be non-bailable and, notwithstanding anything contained in sections 426, 491,
497, 498 and 561A or any other provision of the Code, or any other law for the
time being in force no Court shall have jurisdiction to grant bail to any
person accused of any offence under this Order.
(c) If after completing the investigation
of an offence against a holder of public office or any other person, the
Chairman NAB is satisfied that no prima facie case is made out against him and
the case may be closed, the Chairman NAB shall refer the matter to a Court for
approval and for the release of the accused, if in custody.]
98. This Court in the case of Khan Asfandyar Wali
v. Federation of Pakistan (PLD 2001 SC 607), has spelt out a mechanism for the
NAB and the Courts thereunder, as under:--
"266.
A perusal of the Preamble of the NAB Ordinance shows that it is a composite and
an extensive law and its interpretation has to be done in a manner different
from the normal interpretation placed on purely criminal statutes. This law
deals with, among others, setting up of the National Accountability Bureau,
which is an executive as well as administrative authority and an investigating
agency; which deals with several aspects of `corruption' etc. The NAB does not
merely deal with crimes of corruption, it also deals with their investigation
and settlement out of Court. Bargain out of Court is now an established method
by which things are settled in several developed societies. It was necessary in
cases where the criminal is a potential investor and is inter-linked with the
economy of the society after he has cleared his liability. There appears to be
nothing amiss insofar as it does not oust the jurisdiction of the
Accountability Courts to exercise their judicial power in appropriate
proceedings. Rather this is in the nature of a facility provided to the
accused. There is nothing wrong with the NAB Ordinance providing for a
procedure of bargaining.
267.
Moreover, the scheme for exploring the possibility of settlement during
investigation/inquiry stage by the Chairman NAB cannot be ignored straight
away. At the outset, most of the lawyers tend to consider the question of
settlement out of Court. There is need to focus attention on this significant
fact of the matter. The rationale behind the Ordinance is not only to punish
those who were found guilty of the charges leveled under the Ordinance but also
to facilitate early recovery of the ill-gotten wealth through settlement where
practicable. The traditional compromise, settlement, compoundability of offence
during the course of proceedings by the Courts after protracted litigation is
wasteful. Viewed in this perspective, a power has been vested in the Chairman
NAB to facilitate early settlement for recovery of dues through `plea
bargaining' where practicable. Lawyers are often interested in settling the
disputes of their clients on just, fair and equitable basis. There are
different approaches to settlement. Plea bargaining is not desirable in cases
opposed to the principles of public policy. Chairman NAB/Governor, State Bank
of Pakistan, while involved in plea bargaining negotiations, should avoid using
their position and authority for exerting influence and undue pressure on
parties to arrive at settlement. However, in the interest of revival of economy
and recovery of outstanding dues, any type of alternate resolution like the
`plea bargaining' envisaged under section 25 of the Ordinance should be
encouraged. An accused can be persuaded without pressure or threat to agree on a
settlement figure subject to the provisions of the Ordinance. Establishing this
procedure at the investigation/inquiry stage greatly reduces determination of
such disputes by the Court. However, as the plea bargaining/ compromise is in
the nature of compounding the offences, the same should be subject to approval
of the Accountability Court. Accordingly, section 25 of the impugned Ordinance
be suitably amended."
99. The provisions of the NAO, 1999 as well as
their interpretation, as noted in the preceding paras, provide high moral
authority to the functionaries, to discharge their duties for curbing
corruption and corrupt practices, to achieve the object namely, conviction and
effecting the recovery of national wealth, even before the trial, keeping in view
the solid mechanism provided under Section 25 of the NAO. As far as its
provisions, embedded in Section 21, are concerned, it lays down procedure for
international cooperation and request for mutual legal assistance. It reads as
follows:--
21. International Cooperation - Request for
mutual legal assistance:
The
Chairman NAB or any officer authorized by the Federal Government may request a
Foreign State to do any or all of the following acts in accordance with the law
of such State:--
(a) have evidence taken, or documents or
other articles produced;
(b) obtain and execute search warrants or
other lawful instruments authorizing search for things relevant to
investigation or proceedings in Pakistan believed to be located in that State,
and if found, seize them;
(c) freeze assets, by whatever processes
are lawfully available in that State, to the extent to which the assets are
believed on reasonable grounds to be situated in that State;
(d) confiscate articles and forfeit
assets to the extent to which the articles or assets, as the case may be, are
believed to be located in that State;
(e) transfer to Pakistan any such
evidence, documents, things, articles, assets or proceeds realized from the
disposal of such articles or assets;
(f) transfer in custody to Pakistan a
person detained in that State who consents to assist Pakistan in the relevant
investigation or proceedings;
(g) Notwithstanding anything contained in
the Qanune-Shahadat Order 1984 (P.O.10 of 1984) or any other law for the time
being in force all evidence, documents or any other material transferred to
Pakistan by a Foreign Government shall be receivable as evidence in legal
proceedings under this Ordinance; and
(h) notwithstanding anything to the
contrary contained hereinabove, the Chairman NAB may, on such terms and
conditions as he deems fit, employ any person or organization, whether in
Pakistan or abroad, for detecting, tracing or identifying assets acquired by an
accused in connection with an office under this Ordinance, and secreted or
hoarded abroad, or for recovery of and repatriation to Pakistan of such
assets."
A
perusal of above Section indicates that on account of international
cooperation, request for mutual legal assistance means, the NAB or any officer,
authorized by the Federal Government, has been empowered to make a request to a
Foreign State to do any or all things mentioned therein; to freeze assets by
whatever processes are lawfully available in that State, to the extent to which
the assets are believed, on reasonable grounds, to be situated in that State;
and to transfer to Pakistan any such evidence, documents, things, articles,
assets or proceeds, realized from the disposal of such articles or assets. As
far as, confiscation or realization of the national wealth, situated within the
country, is concerned, there is no difficulty for the NAB to deal with it, in
accordance with the procedure provided under the NAO, 1999. However, for achieving
the object to save the assets
outside the country, allegedly belonging to the nation, a mechanism has been
provided on the basis of international cooperation.
100. It is to be noted that while making request
to the Foreign States for mutual legal assistance, no request for criminal
proceedings in such a State can be demanded. However, Courts of the said States
may proceed independently for an action, which falls within the definition of
their municipal laws, governing criminal actions. Pakistan is not the only
country, which has demanded for such mutual legal assistance; there are so many
other countries, on whose demand, subject to determination, the wealth of the
nation was reverted back to those States. In this behalf reference may be made
to the case of Ferdinand Emmanuel Edralin Marcos, President of the Philippines.
Detailed marshaling of the facts of said case would not serve any purpose,
however, the crux of the matter in the form of brief summery is as under:--
Marcos
was elected as President of Philippines in November 1965 and re-elected in
1969. On 21st September 1972 he declared Marshal Law in the country which was
lifted on 7th January 1981. He was re-elected as President in 1981 and remained
on this position till February 1986, when he was removed through a popular
revolt in 1986.
In
1986, on the basis of documents lost by him in the Presidential palace, assets
worth US$ 356 millions were discovered in his name in Swiss Banks. The said
assets were freezed on the request filed through Swiss Lawyers in February
1986.
On
28th February 1986 the Philippine Presidential Commission on Good Government
(PCGG) formed under the Presidential Order No. 1 of 1986 to recover
Marcos-linked assets in the Philippines and abroad.
On
24th March 1986 the Swiss Federal Council imposed an unprecedented unilateral
and exceptional freeze order on Marcos assets, after it was informed by a Swiss
Bank that De Guzman, a Filipino Banker, with power of attorney from Marcos and
his wife, had requested for the transfer of assets to an Australian Bank
belonging to him, in anticipation of the Philippine Governmental claim. This
was done without any mutual legal assistance treaty on criminal matters between
Switzerland and Philippines, just on the basis of the Swiss Federal Act on
International Mutual Assistance in criminal matters (Act on International
Criminal Assistance, IMAC).
On
18th April 1986 the Philippines Government made informal request for
continuation of freeze order but the freezing order was rescinded on 23rd April
1986, however, the assets were re-freezed on 20th July 1986, after a formal
request, made by the Philippines Government through a diplomatic note, for
continuation of freeze order.
In
1989 the Government of Philippines brought Court cases in the US District
Courts, California and Hawaii, however, these cases were dropped when the
Marcos family agreed to transfer certain assets held in US, to the Philippine
government.
On
20th December 1990, Swiss Federal Court (Supreme Court) accepted that, in
principle, the frozen assets should be returned to the Philippines and also
ordered for transmission of Banking documents pertaining to Marcos's deposits
to Philippines government, subject to some conditions.
On
17th December 1991 the PCGG filed civil case in the Filipino Court of
Sadiganbayan seeking recovery of Marcos properties and assets just four days prior
to the deadline of 21st December 1991.
On
28th December 1993 the government of Philippines entered into 75/25(%) sharing
agreement with Marcos family through PCGG which was declared invalid by the
Philippines Supreme Court on 9th December 1998.
On
10th December 1997, the Swiss Federal Court (Supreme Court) took decisive steps
by issuing decision to transfer US$ 540 million (increased to US$ 658 million
with interest) of Marcos, to the custody of Sadiganbayan, under the IMAC. The
revised law made it, in principle, essential for the country to which the funds
are to be restituted, to prove the illegal origin and the legal ownership of
the funds through a legally binding judgment. However, the Republic of
Philippines guaranteed that the decision about the seizure or restitution of
the assets to the entitled parties would be taken in judicial proceedings, to
satisfy the requirement of Article 14 of the International Covenant on Civil
and Political Rights 1966 (ICCPR).
In
September 2000 Filipino Anti-Corruption Court Sadiganbayan's first division,
made, prima facie, decision that the entire US$ 627 million of Marcos funds,
repatriated from Switzerland, were to be considered the property of
Philippines.
On
15th July 2003, Philippines Supreme Court ruled that the funds transferred from
Switzerland are illgotten and must, therefore, be handed over to the Philippine
Government, confirming Swiss Federal Court's decision concerning the
illegitimate origin of the funds. The money was to be used for buying the land
for its distribution to poor farmers.
On
5th August 2003 Swiss and Filipino authorities expressed their satisfaction on
the said decision and opined that the funds transferred from Switzerland to PNB
escrow account, can now be transferred into the
care of the government of Philippines, which was ultimately remitted to
the Philippine treasury on 4th February 2004.
Afterwards
the Federal Supreme Court of Switzerland vide partial decision dated 18th
August 2006, freezed the assets of GEI Inc (owned by Marcos/associates) and set
a deadline of 31st December 2006 for filing or decision of the Court of first
instance about the seizer of said assets, which was provided on 28th December
2006. The beneficiaries/associates of Marcos filed appeals which were dismissed
vide order dated 1st June 2007.
It
may be noted that on account of above proceedings against Marcos, the
money/funds belonging to Philippine Government were returned by the Swiss
Courts.
101. Similarly, there is another case, from
Nigerian jurisdiction, wherein the Head of the State namely Sani Abacha, was
found involved in corruption and corrupt practices and proceedings, against
him, were initiated for return of his assets from Switzerland to Nigeria and
from 1999 to 2009, approximately US$ 1.2 billion, had been returned to the
Federal Republic of Nigeria. Brief history of this case is also narrated
hereinbelow for reference:--
Sani
Abacha began his career as second lieutenant in the Nigerian Army in 1963, rose
through the ranks to the Armed Forces Ruling Council (AFRC) and eventually
became head of State. He died on 8th June 1998 suddenly of a heart attack. He
was listed as the world's fourth most corrupt leader in recent history by
Transparency International in 2004.
General
Abdulsalami Abubakar's interim government had delivered a clear message that
Abacha had looted huge sums, and it had to be restored. Members of the Abacha
family and some of their accomplice `voluntarily' returned approximately US$ 1
billion to the Federal Government of Nigeria, during that tenure.
Obasanjo's
government has implicated the deceased General Abacha and his family in
wholesale looting of Nigeria's coffers. According to post-Abacha government
sources, some US$ 3 billion in the shape of foreign assets have been traced, in
the name of Abacha, his family members, representatives and accomplices.
In
1999 Nigeria transmitted a request for judicial assistance to Switzerland
against Sani Abacha and fourteen other persons, for blocking of their assets,
channeled into Switzerland and also disclosing the relevant banking documents.
The FOG blocked amount of US$ 83 million in the banks of Geneva and Zurich.
In
October 1999 Geneva's judiciary initiated various proceedings against family
members and business friends of Abacha including Mohammed Abacha and Atiku
Bagudu, on suspicion of money laundering, fraud and taking part in a criminal
organisation. In furtherance whereof the accounts already blocked in the
judicial assistance proceedings as well as other accounts, traced during the
criminal investigation, were blocked. In the course of the proceedings, an
amount of US$ 70 million was transferred to the bank of International
Settlement, in the year 2000.
In
February 2005, the Swiss Federal Court rejected the appeal filed by the Abachas
against the repatriation of the most of the funds frozen in Switzerland,
totaling about US$ 468 million, approximately, however, US$ 40 million, the
remaining frozen until the Abachas were given the opportunity to attempt to
demonstrate that they were not of criminal origin.
An
additional US$ 700 million were `voluntarily' returned or forfeited in the
context of criminal proceedings initiated in Switzerland, Jersey and
Liechtenstein.
From
September 1999 to date, approximately US$ 1.2 billion have been repatriated to
the Federal Republic of Nigeria (including from Switzerland, Luxembourg,
Jersey, Liechtenstein, Belgium and the UK).
102. Apart from above two cases, there is yet
another case from UK jurisdiction i.e. High Court of Justice, Queen's Bench
Division, in Re: The Queen on the Application of Corner House Research and
Campaign Against Arms Trade vs. The Director of The Serious Fraud Office and
BAE Systems PLC [(2008) EWHC 714]. The brief summary of the facts is as
under:--
The
BAE Systems was under a contract with Saudi Arabia for the purchase of
Al-Yamamah aircrafts. In relation to this contract, several allegations of
bribery had been made against the BAE. The Serious Fraud Office (SFO) had been
appointed to investigate into the matter. In the course of this investigation
the BAE was asked to disclose the details of payments to agents and the
consultants with respect to the contract of the aircrafts.
In
response to this, the solicitors for BAE wrote back to SFO saying that the
investigations should be halted; as the continuing investigations would
seriously affect the diplomatic relations between the U.K and Saudi Arabia and
also that the safety of the British Citizens would be affected. Further, also
that the investigations would prevent UK from clinching the largest export
contract of Al-Yamamah aircrafts. This however, did not stop the investigations
from continuing.
In
July 2006, the SFO was about to access the Swiss Bank accounts of BAE. This
caused a stir and made the Prince Bandar of Arabia to convey to the then Prime
Minister of UK, that if the SFO did not stop looking at the Swiss Bank accounts
of BAE, and also cease other investigation, then the contract for the aircrafts
would be called off and both intelligence and diplomatic relations between the
two countries would be seriously ceased.
This
made the government to rethink its policy, and it was agreed among the Prime
Minister and other ministers that if the investigation into this continued then
the relations between the two countries would be affected and a severe blow
would also be dealt on UK's foreign policy objectives in the Middle East.
Further, there would be a threat to the internal security of the country.
In
light of the above developments on 14 December 2006 the Director of SFO
terminated all investigation proceedings as it was felt that the continued
investigation posed a serious threat to the country's National and
International security and would also affect the lives of their citizens. It
was in this light that an NGO called Corner House Research, applied for a
judicial review of the decision to terminate the investigation process.
The
Court, apart from other findings, made the following observations:--
The
principle of separation of powers cannot be applied in the cases of executive's
decisions affecting foreign policy. The Courts can take notice of those cases
where the threat involved is not simply against the country's commercial,
diplomatic and security interest but also against its legal system.
It is
the responsibility of the Court to provide protection. Threats to the
administration of public justice within a country are the concern primarily of
the Courts, not the executive.
The
rule of law requires that the Director should act in a manner consistent, the
well recognized standards, which the Courts impose by way of judicial review.
At the heart of the obligations of the Courts and of the judges lies the duty
to protect the rule of law.
The
Rule of law is nothing if it fails to constrain overweening power.
The
Courts fulfill their obligation to protect the rule of law by ensuring that a
decision maker on whom statutory powers are conferred, exercises those powers
independently and without surrendering them to a third party.
The
executive, Director and the attorney should not make any decision in submission
to the threats. The Courts cannot exercise jurisdiction on the foreign state,
however, the legal relationships of the different branches of the government
and the separation of power depends upon internal constitutional arrangements.
They are of no concern to foreign states.
A
resolute refusal to any foreign threat is the only way to protect national
interest. While exercising statutory power an independent prosecutor is not
entitled to surrender to the threat of a third party or the foreign state.
The
discontinuation of the investigation has in fact caused actual damage to the
national security, the integrity of criminal justice system and the rule of
law.
The
Director has acted on erroneous interpretation of Art 5 of OECD and both the
Director and the government have failed to recognize that the rule of law
required the decision to discontinue to be reached as an exercise of
independent judgment, in pursuance of power conferred by statute. To preserve
the integrity and independence of that judgment demanded resistance to the
pressure exerted by means of a specific threat. That threat was intended to
prevent the Director from pursuing the course of investigation. It achieved its
purpose.
On
the basis of above findings, the Court ultimately came to the following
conclusion:--
"The
Court has a responsibility to secure the rule of law. The Director was required
to satisfy the Court that all that could reasonably be done had been done to
resist the threat. He has failed to do so. He submitted too readily because he,
like the executive, concentrated on the effects which were feared should the
threat be carried out and not on how the threat might be resisted. No one
whether within this country or outside is entitled to interfere with the course
of our justice. It is the failure of govt. and the defendant to bear the
essential principle in mind that justifies the intervention of this Court. We
shall hear further arguments as to the nature of such intervention. But we
intervene in fulfillment of our responsibility to protect the independence of
the Director and of our criminal justice system from threat. On 11 Dec 2006,
Prime Minister said that this was the clearest case for intervention in the
public interest he had seen. We agree."
103. It is further to be noted that the
international cooperation, for the purpose of prevention of corruption, has
been considered in the comity of the nations, as their commitment to achieving
the object, under the United Nation's Convention Against Corruption, 2005.
Relevant portion therefrom is reproduced hereinbelow for convenience:--
"The
purposes of this Convention are:
(a) To promote and strengthen measures to
prevent and combat corruption more efficiently and effectively;
(b) To promote, facilitate and support
international cooperation and technical assistance in the prevention of and
fight against corruption, including in asset recovery;
(c) To promote, integrity accountability
and proper management of public affairs and public property.
Recalling
the work carried out by other international and regional organizations in this
field, including the activities of the African Union, the council of Europe,
the Customs Cooperation Council (also known as the World Customs Organization),
the European Union, the League of Arab States, the Organization for Economic
Cooperation and Development and the Organization of American States,
Taking
note with appreciation of multilateral instruments to prevent and combat
corruption, including inter alia, the Inter-American Convention against
Corruption, adopted by the Organization of American States on 29 March 1996,
the Convention on the Fight against Corruption involving Officials of the
European Communities or Officials of Member States of the European Union,
adopted by the Council of the European Union on 26 May 1997, the Convention on
Combating Bribery of Foreign Public Officials in International Business
Transactions, adopted by the Organization for Economic Cooperation and
Development on 212 November 1997, the Criminal Law Convention on Corruption,
adopted by the Committee of Ministers of the Council of Europe on 27 January
1999, the Civil Law Convention on Corruption, adopted by the Committee of
Ministers of the Council of Europe and 4 November 1999, and the African Union Convention
on Preventing and Combating Corruption, adopted by the Heads of State and
Government of the African Union on 12 July, 2003.
Welcoming
the entry into force on 29 September, 2003 of the United Nations Convention
against Transnational Organized Crime."
104. The Government of Pakistan is also signatory
to the above UN Convention as it has been ratified by Pakistan on 31st August,
2007, regarding international cooperation in criminal matters in accordance
with Articles 44 to 50 of the above noted UN Convention, according to which,
where appropriate and consistent with their domestic legal system, the State
Parties shall consider assisting each other in investigation or proceedings in
civil and administrative matters, relating to corruption.
105. Learned counsel appearing for the petitioners
vehemently contended that on the one hand, the Government of Pakistan is
signatory to the UN General Assembly Regulation No. 58/41 of 31st October,
2003, on the international cooperation relating to corruption but at the same
time, by means of adding Section 33F in the NAO, 1999 through Section 7 of the
NRO, 2007, the prolonged pending proceedings, initiated prior to 12th October
1999, against `holders of public office', inside or outside the country, and
cases at the stage of investigation or pending before the High Court or Supreme
Court, have been ordered to be withdrawn and terminated by means of the same
legislative order; therefore, this amendment is in clear contravention to the
provisions of the NAO, 1999 as well as to the above referred international
treaty. This act of the legislative authority is not only unconstitutional but
simultaneously against the principle of the trichotomy of powers.
106. There is no need to undertake the lengthy
discussion relating to powers to withdraw cases. However, as it has been
pointed out hereinabove, that according
to the scheme of the NAO, 1999 Section 25 of the NAO, 1999 provides that
notwithstanding anything contained in Section 15 or in any other law, for the
time being in force, where a `holder of public office' or any other person,
prior to the authorization of investigation against him, voluntarily comes
forward and offers to return the assets or gains, acquired or made by him in
the course, or as a consequence of any offence, under this Ordinance, the
Chairman NAB may accept such offer and after determination of the amount, due
from such person, and its deposit with the NAB, discharge such person from all
his liability in respect of the matter or transaction in issue. In this
provision of law as well the word `withdrawal' has not been used, which is akin
to process of discharge or acquittal of an accused under the system of criminal
administration of justice.
107. So far as withdrawal of a case is concerned,
that is possible only with the consent of the Court, as provided in Section 494
Cr.P.C, detailed discussion, in respect whereof has already been made in the
preceding paras, while examining the vires of Section 2 of the NRO, 2007.
108. The words "termination of the proceedings,
under investigation or pending in any Court, including a High Court and the
Supreme Court", are not recognized under any legal instrument, including
the Constitution of Pakistan, Cr.P.C. or NAO, 1999. Much discussion has already
been undertaken in this behalf, while examining the constitutionality of newly
inserted clause (aa) in Section 31A of the NAO, 1999, whereby the judgments
passed by the Court in absentia under the NAO, 1999, have been declared void ab
initio by the legislative authority.
109. The President of Pakistan being an authority
to issue temporary legislation can discharge his functions under Article 89 of
the Constitution, subject to limitation provided therein but admittedly, no
such legislation can be issued, which is against the fundamental rights or any
of the provisions of the Constitution. It seems that without caring about the
fundamental rights of the non-beneficiaries of the NRO, 2007, on 5th October
2007, the then President had promulgated the NRO, 2007. On our query, learned
Acting Attorney General for Pakistan (Mr. Shah Khawar) has placed on record the
summary regarding promulgation of the NRO, 2007, for the Prime Minster of
Pakistan. A careful perusal of the same indicates that on 5th October 2007,
when the summary was moved, the Cabinet in its meeting, held on the same day,
had approved the draft of the NRO, 2007, in pursuance whereof, the Prime
Minister was requested to advise the then President to approve and sign the
NRO, 2007, as such on the same day i.e. 5th October 2007, the NRO, 2007 was
promulgated. It is also interesting to note that both the proceedings and the
cases of corruption and corrupt practices, were being terminated
or withdrawn in terms of Section 7 of the NRO, 2007, whereby Section 33F
has been added in the NAO, 1999 regarding withdrawal and termination of
prolonged pending proceedings initiated prior to 12th October 1999. The object,
disclosed in the summary for the Cabinet, for issuance of the NRO, 2007 was
that it was expedient to promote national reconciliation, foster mutual trust
and confidence amongst `holders of public office' and to make the election
process more transparent. Ultimately, on the same day, the Ordinance was
promulgated when the election of General Pervez Musharraf as the President (in
uniform) was scheduled to be held on the very next day i.e. 6th October 2007.
At that time, a petition filed by Jamat-e-Islami (PLD 2009 SC 549), was pending
and during the course of hearing, vide order dated 5th October, 2007, General
Pervez Musharraf was allowed to contest the election conditionally. However,
remaining details with regard to issuance of the NRO, 2007 have already been
published in Daily Dawn dated 5th October, 2007.
110. We are conscious of the fact that temporary
legislation cannot be struck down, taking into consideration the mala fide or
subjective consideration for the issuance of such legislation but
simultaneously this Court is empowered to examine the contents of the temporary
legislation, if it is inconsistent with the fundamental rights, guaranteed by
the Constitution or of any of the provisions of the Constitution has been
violated. The Indian Supreme Court, when met with this situation, in the case
of State of Rajasthan's case (AIR 1977 SC 1361), observed as under:--
"144.
But when we say this, we must make it clear that the constitutional
jurisdiction of this Court is confined only to saying whether the limits on the
power conferred by the Constitution have been observed or there is
transgression of such limits. Here the only limit on the Power of the President
under Art. 356, cl. (1) is that the President should be satisfied that a
situation has arisen where the Government of the State cannot be carried on in
accordance with the provisions of the Constitution. The satisfaction of the
President is a subjective one and cannot be tested by reference to any
objective tests. It is deliberately and advisedly subjective because the matter
in respect to which he is to be satisfied is of such a nature that its decision
must necessarily be left to the executive branch of Government. There may be a
wide range of situations which may arise and their political implications and
consequences may have to be evaluated in order to decide whether the situation
is such that the Government of the State cannot be carried on in accordance
with the provisions of the Constitution. It is not a decision which can be
based on what the Supreme Court of United States has described as
"judicially discoverable and manageable standards." It would largely
be a political judgment based on assessment of diverse and varied factors, fast
changing situations, potential consequences, public reaction, motivations and
responses of different classes of people and their anticipated future behaviour
and a host of other considerations, in the light of experience of public
affairs and pragmatic management of complex and often curious adjustments that
go to make up the highly sophisticated mechanism of a modern democratic
government. It cannot, therefore, by its very nature be a fit subject matter
for judicial determination and hence it is left to the subjective satisfaction
of the Central Government which is best in a position to decide it. The Court
cannot in the circumstances, go into the question of correctness or adequacy of
the facts and circumstances on which the satisfaction of the Central Government
is based. That would be a dangerous exercise for the Court, both because it is
not a fit instrument for determining a question of this kind and also because
the Court would thereby usurp the function of the Central Government and in
doing so, enter the `Political thicket', which it must avoid if it is to retain
its legitimacy with the people. In fact it would not be possible for the Court
to undertake this exercise, apart from total lack of jurisdiction to do so,
since by reason of Art. 74 cl. (2), the question whether any and if so what
advice was tendered by the Ministers to the President cannot be enquired into
by the Court, and moreover, "the steps taken by the responsible Government
may be founded on information and apprehensions which are not known to and
cannot always be made, known to, those who seek to impugn what has been done.,
(Vide Ningkan v. Government of Malaysic, 1970 AC 379). But one thing is certain
that if the satisfaction is mala fide or is based on wholly extraneous and
irrelevant grounds, the Court would have jurisdiction to examine it, because in
that case there would be (sic-no?) satisfaction of the President in regard to
the matter which he is required to be satisfied. The satisfaction of the
President is a condition precedent to the exercise of power under Art. 356, cl.
(1) and if it can be shown that there is no satisfaction of the President at
all, the exercise of the power would be constitutionally invalid. Of course by
reason of cl. (5) of Art. 356, the satisfaction of the President is final and
conclusive and cannot be assailed on any ground but this immunity from attack
cannot apply where the challenge is not that the satisfaction is improper or
unjustified, but that there is, no satisfaction at all. On such a case it is
not the satisfaction arrived at by the President which is challenged, but the
existence of the satisfaction itself.
Take,
for example, a case where the President gives the reason for taking action
under Art. 356, cl. (1) and says that he is doing so, because the Chief
Minister of the State is below five feet in height and, therefore, in his
opinion a situation has arisen where the Government of the State cannot be
carried on in accordance with the provisions of the Constitution. Can the so
called satisfaction of the President in such a case not be challenged on the
ground that it is absurd or perverse or mala fide or based on a wholly
extraneous and irrelevant ground and is, therefore, no satisfaction at all. It
must of course be concerned that in most cases it would be difficult, if not
impossible, to challenge the exercise of power under Art. 356, cl. (1 ) even on
this limited ground, because the facts and circumstances on which the
satisfaction is based would not be known, but where it is possible, the
existence of the satisfaction can always be challenged on the ground that it is
mala fide or based on wholly extraneous and irrelevant grounds. This
proposition derives support from the decision of the Judicial Committee of the
Privy Council in King Emperor v. Banwari Lal Sarma (72 Ind App 57: (AIR 1945 PC
48) where Viscount Simon, L.C. agreed that the Governor General in declaring
that emergency exists must act bona fide and in accordance with his statutory
powers. This is the narrow minimal area in which the exercise of power under
Art. 356, cl. (1) is subject to judicial review and apart from it, it cannot
rest with the Court to challenge the satisfaction of the President that the
situation contemplated in that clause exists."
However,
subsequently, by means of 44th Amendment, Clause (4) of Article 123 of the
Indian Constitution, which provided that "notwithstanding anything in this
Constitution, the satisfaction of the President mentioned in clause (1) shall
be final and conclusive and shall not be questioned in any Court on any
ground", has been omitted. Therefore, in the case of A.K. Roy v. Union of
India (AIR 1982 SC 710), the judgment passed in State of Rajasthan's case (AIR
1977 SC 1361), was considered and it was held that "the Rajasthan case is
often cited as an authority for the proposition that the Courts ought not to
enter the "political thicket"; it has to be borne in mind that at the
time when that case was decided, Article 356 contained clause (5) which was
inserted by the 38th Amendment, by which the satisfaction of the President
mentioned in clause (1) was made final and conclusive and that satisfaction was
not open to be questioned in any Court on any ground; clause (5) has been
deleted by the 44th Amendment and, therefore, any observations made in the
Rajasthan case, on the basis of that clause, cannot any longer hold good; it is
arguable that the 44th Constitution Amendment Act leaves no doubt that judicial
review is not totally excluded in regard to the question relating to the
President's satisfaction". Be that as it may, this Court, while dealing
with the same proposition, in Fauji Foundation's case (PLD 1983 SC 457), has
observed as under:--
206. The statement formulated by the High Court,
namely: Notwithstanding the reference to Article 14 of the Constitution the
above two decisions adequately support the contention of the learned counsel
that no Legislature could be permitted to pass a law for the resolution of
private dispute which could be decided by the Courts alone and such action
amounted to infringement on the field of judiciary, is not discernible from
these two decisions, nor can such a statement, as so widely stated, be
enunciated in the context of the discussion that I have undertaken in this
judgment.
207.
The learned counsel for the respondent relied on Basanta Chandra Ghose and
others v. Emperor (AIR 1944 FC 86), to impress that the Legislature cannot
usurp judicial power in the guise of enacting law. In this case clause (2) of
section 10 of the Restriction & Detention Ordinance (3 of 1944) was
challenged on the ground that "it was an arrogation of judicial power by
legislative authority," as what it achieved was direct disposal of cases
by the Legislature itself. In accepting this argument Spens, C. J., held that
such a provision was an exercise of judicial power and not an enactment of law
as it discharged the pending proceedings which raised questions of fact which
had to be determined in reference to facts, as for example the competency of
the detaining authority or the colourable nature of the act or the order though
purporting to be passed by an authority was not in reality the act of that
authority ; and as the determination did not depend on any rule of law it was
clearly a judicial act and not an enactment of law. The ratio of this case
brings out the distinction between the exercise of judicial power and
legislation. Essentially as was held the High Court was called upon to decide a
controversy which involved the determination of facts which did not depend on
any rule of law. Clearly there was, therefore, an exertion of judicial power,
which within its ambit involves an inquiry and investigation of facts and then
declaring and enforcing liabilities as they stand on present or past facts, and
under any law which already exists, which could not be done otherwise than by
the High Court which was seized of the matter. In this situation the Federal
Court construed this provision as an exercise of judicial power by a
legislative enactment. In Prentis v. Atlantic Coast Line Co. (53 Law Ed. 158),
at p. 158, Justice Holmes distinguished the two (legislation and judicial
power) in the following words:
"A
judicial inquiry investigates, declares, and enforces liabilities as they stand
on present or past facts and under laws supposed already to exist. That is its
purpose and end. Legislation, on the other hand, looks to the future and
changes existing condition by making a new rule, to be applied thereafter to
all or some part of those subject to its power."
111.
The present case is singular and on its own. We do not even have to go into
whether there was any objective basis for the satisfaction required by Article
89 of Constitution, nor into the issue whether such satisfaction is to be
entirely subjective. Present case can be resolved simply on the ground that the
Federal Government has not even defended the NRO, 2007 and thus not even
asserted that there was indeed any such satisfaction at all, subjective or
objective. There should at least have been an assertion, howsoever weak it may
have been, for the Court to undertake the exercise envisaged in the State of
Rajasthan's case (AIR 1977 SC 1361). In the absence of even a simple assertion
by the Government we can easily hold that there was no satisfaction at all.
112. As discussed hereinabove that firstly, the
NRO, 2007 as a whole and in particular, its Sections 2, 6 & 7, are
inconsistent with Article 25 of the Constitution, as it has created
unreasonable classification, having no rational nexus with the object of the
NRO, 2007.
113. Besides above, the principle of equality
(Musawat), as enshrined in Article 25 of the Constitution, has its origin in
the Islamic teachings. Reference in this behalf may be made to Muhammad (PBUH)
Encyclopedia of Seerah (Sunnah, Da'wah and Islam), 1st Edn. 1986. Vol.IV
(p:147-148). Relevant portion therefrom, on the subject of "Equality"
is reproduced hereinbelow for convenience:--
"Equality
Equality
is an essential requisite of justice, because when there is discrimination and
partiality between people, there is no justice. The Code of Allah demands
absolute equality of rights between all people without any discrimination or
favouritism between man and man and between man and woman on any count.
The
Qur'an declares. "O mankind! Behold, we have created you all out of a male
and a female, and have made you into nations and tribes, so that you may know
each other. Surely, the noblest of you in the Sight of Allah is the one who is
most pious." (49:13)
This
verse clearly establishes equality of all men and women on the basis of common
parentage, and as such discounts all claims of superiority or discrimination
for any person or group of persons. There is no rational or logical ground for
such claims, and therefore, it is unreal and unnatural to demand discrimination
between man and man or between man and woman on any count.
Besides'
all human beings are servants (ibid) of Allah and therefore equal.
They
are all created by Allah and all are His servants alone. As such they are all
equal and enjoy equal rights in all areas of life. In His service and
obedience, all humans are equal and stand on the same level without any
discrimination all as one race and one people before Him, no one claiming any
special privileges and honours.
In
Surah al-A'raf we have these words: "When your Lord drew forth from the
children of Adam from their loins their descendants, and made them testify
concerning themselves, saying: `Am I not your Lord?' They said: Yes we do
testify.'" (7:172). And then we find these words; "Surely, this
Brotherhood of yours is single Brotherhood, and I am your Lord: therefore serve
and obey Me (and no other)." (21:92 and 23:52))
This
concept of equality bestows equal rights upon all members of the human race and
leaves no room for any discrimination of any kind, whether by colour, creed,
race or sex. If there is any discrimination anywhere, it is man made, not
divinely ordained, and therefore, must be denounced, condemned and discarded.
Any
such discrimination is unnatural and artificial and goes against the basic
Doctrine of Tawhid. As such it will endanger the right balance and stability of
human social life.
If
there is any discrimination for any man or woman in Islam, it is on merit and
on merit alone. Those who develop their personal relationship with Allah fear
Allah, attain degrees of piety and taqwa of Allah, and reach higher stations of
excellence in the Sight of Allah.
However,
even they stand equal with others in the enjoyment of rights in society, and
can claim no superiority or favouritism over others so far as social rights are
concerned.
This
basic doctrine also demands equality of all men and women before the law and
negates any kind of discrimination between them. This is the essential
requirement of the Rule of Law in Islam: that all men and women are equal in
the eyes of the Law and must be treated as such. Respect for human dignity,
upon which the Prophet of Islam laid so much emphasis, also demands equality
for all men and women in all fields of human activity. (For details see under
"Basic Human Rights" in Volume III of this work)
Equality
of Rights
It is
implicit in the Doctrine of Tawhid and is also an essential ingredient of
justice and equality that all people must enjoy equal rights without
discrimination on any count in all fields and departments of life. In the
enjoyment of social, political and religious rights, there must not be any
discrimination between ruler and ruled, employer and employee, rich and poor
and man and woman: all should enjoy these rights freely, equally and without
any check or restriction. Denial of any of these rights to any member would, in
fact, be a denial of the Doctrine of Tawhid.
Equal
Treatment
The
logical consequences of the above principle in practice demands absolutely
equal treatment of all citizens, without any reservation, in all areas of life.
It also requires: (a) equality of opportunity of education, training,
employment and promotion in all services for all citizens, irrespective of
their social or political status and influence; (b) equal treatment in all
departments, without discrimination of any kind between rich and poor, big and
small or workers and employers; (c) the right to a livelihood of every member
of the Muslim state. It is the birthright of every person to have a guaranteed
decent living and decent wage from the state. This calls indirectly for
equitable distribution of wealth between all the members of the state on the
principle of maximum circulation of the total wealth of the nation,
discouraging, as far as possible, the concentration of wealth among a few
people (59:7); and (d) it is also implicit in the above principle that for the
political and social stability of society and state, matters of national interest
must be decided through a process of consultation with the people, and all
state affairs on all levels must be decided on the basis of the concept of
consultation in its true sense, as envisaged by the Qura'n (42:38) and
practiced by the Prophet Muhammad (PBUH)."
114. Corruption and corrupt practices, being a
crime, if proved, against a `holder of public office' takes away his
qualification to contest the election because,
prima facie, he has breached
the trust of his
electorate. Therefore, by inserting Section 33F in the NAO, 1999 by means of
Section 7 of the NRO, 2007, possibility of raising objection on the
qualification of a person to be elected or chosen as a member of the Parliament
has been negated for limited purpose, in view of Article 62(f) of the
Constitution, a person having been convicted/sentenced by the Court under the
NAO, 1999 shall stand absolved as the case has been withdrawn against him or
the proceedings have been terminated, pending in any Court including the High Court
and Supreme Court, in appeal or whatever the case may be. Therefore, instead of
following the command of Article 5 of the Constitution, Section 7 of the NAO
has contravened Article 62(f) of the Constitution. It is true that Section
62(f) of the Constitution cannot be considered self-executory but if a person
involved in corruption and corrupt practices has been finally adjudged to be
so, then on the basis of such final judgment, his candidature on the touchstone
of Article 62(f) of the Constitution can be adjudged to the effect whether he
is sagacious, righteous, non-profligate, honest or Ameen.
115. It is true that on an objection against a
candidate, without any support of evidence, the provisions of Article 62 of the
Constitution cannot be pressed into service, because it is a provision of
Constitution which is not self executory. Reference in this behalf may be made
to Muhammad Afzal v. Muhammad Altaf Hussain (1986 SCMR 1736).
116. However, with reference to examining the
vires of Section 7 of the NRO, 2007, in pursuance of which Section 33F has been
inserted in the NAO, 1999, with an approach that a `holder of public office',
as per the mandate of law, has been absolved without following the legal course
from the allegations of corruption or corrupt practices, which also keeps the
element of trust in its fold, and washed him from all such like sins, then how
he can be considered qualified to contest the election because conviction and
sentence under Section 9 of the NAO, 1999 has not been set aside legally, and
whether such `holder of public office', with a stigma upon him to be corrupt
and involved in corrupt practices, can become a member of the Parliament, which
is a sovereign body, representing the people of Pakistan. Article 62 (f) has
been incorporated in the Constitution by means of President's Order No. 14 of
1985 (The Revival of Constitution Order, 1985) and it being a part of the
Constitution has to be taken into consideration by the Courts, while examining
the case of a convict, involved in corruption and corrupt practices, who has
attained the status of innocent person by means of a law which has washed away
his conviction/sentence by withdrawal or termination of cases or proceedings,
however, subject to furnishing strong evidence for establishing the allegation
mentioned in Article 62(f) of the Constitution. As it has been noted
hereinabove that this provision was inserted by a dictator but it is still
continuing although five National Assemblies and Senate had been elected and
completed their terms, but no effective steps, so far have been taken in this
behalf.
117. Now turning towards the question under
consideration in respect of insertion of Section 33F in the NAO, 1999 by means
of Section 7 of the NRO, 2007, on the basis of which either the proceedings
have been terminated or the cases have been withdrawn, as far as the withdrawal
of proceedings under Section 494 Cr.P.C. is concerned, it has already been
discussed hereinabove. while examining the implications of Section 2 of the
NRO, 2007 wherein it was held that no withdrawal without the consent of the
Court, seized with the case, is possible and this provision itself being
discriminatory has been found in derogation to the fundamental rights enshrined
in Article 25 of the Constitution and at the same time withdrawal of the
criminal cases, particularly the murder cases, without hearing the heirs of
victims. Likewise, while examining the vires of Section 6 of the NRO, 2007 it
has been held that the legislature is not empowered to declare any judgment
void ab initio, however, subject to following the principles, discussed
hereinabove, which are lacking in the instant case. As far as principles of
withdrawal of cases under the NAO, 1999 is concerned, Section 25 of the NAO,
1999 contains that:--
"25.
(a) Notwithstanding anything contained in section 15 or in any other law for
the time being in force, where a holder of public office or any other person,
prior to the authorization of investigation against him, voluntarily comes
forward and offers to return the assets or gains acquired or made by him in the
course, or as the consequence, of any offence under this Ordinance, the
Chairman NAB may accept such offer and after determination of the amount due
from such person and its deposit with the NAB discharge such person from all
his liability in respect of the matter or transaction in issue:
Provided
that the matter is not sub judice in any Court of law.
(b)
Where at any time after the authorization of investigation, before or after the
commencement of the trial or during the pendency of an appeal, the accused
offers to return to the NAB the assets or gains acquired or made by him in the
course, or as a consequence, of any offence under this Ordinance, the Chairman,
NAB, may, in his discretion, after taking into consideration the facts and
circumstances of the case, accept the offer on such terms and conditions as he
may consider necessary, and if the accused agrees to return to the NAB the
amount determined by the Chairman, NAB, the Chairman, NAB, shall refer the case
for the approval of the Court, or as the case may be, the Appellate Court and
for the release of the accused.
(c) The amount deposited by the accused with the
NAB shall be transferred to the Federal Government or, as the case may be, a Provincial
Government or the concerned bank or financial institution, company, body
corporate, co-operative society, statutory body, or authority concerned within
one month from the date of such deposit."
Subject
to exercise of above powers, a case can be withdrawn on the basis of entering
into plea bargain, with all consequences. So far as, withdrawal from the
prosecution under Section 31B of the NAO, 1999, is concerned, that is also
subject to consent of the Court. Section 31B of the NAO, 1999 reads as follows:--
"31B.
Withdrawal from Prosecution. The Prosecutor General Accountability may, with
the consent of the Court, withdraw from the prosecution of any accused Person
generally or in respect of any one or more of the offences for which he is
tried and upon such withdrawal:
(i) if it is made before a charge has
been framed, the accused shall be discharged in respect of such offence or
offences; and
(ii) if it is made after a charge has been
framed, he shall be acquitted in respect of such offence or offences."
118. It is important to note that a person, who
enters into plea-bargain as per the mandate of Section 25 of the NAO, 1999,
would be disqualified to contest the election or to hold the public office. The
language employed in Section 33F of the NAO, 1999, inserted by means of Section
7 of the NRO, 2007 does not indicate that the withdrawal had to take place,
subject to any of the above provisions, either under Section 25 or under
Section 31B of the NAO, 1999, with the consent of the Court.
119. So far as withdrawal from the cases inside or
outside the country, as per Section 33F of the NAO, 1999, inserted through
Section 7 of the NRO, 2007, is concerned, it would mean that the `holders of
public office' have been absolved from the charge of corruption and corrupt
practices, therefore, by adopting such procedure, the legislative authority had
transgressed its jurisdiction, because such powers are only available to the
judiciary and the Constitution provides guarantee to secure the independence of
the judiciary. Reference in this behalf may be made to Article
175 of the
Constitution, which has
been extensively interpreted in Mehram Ali's case (PLD 1998 SC
1445) and Liaquat Hussain's case (PLD 1999 SC 504).
120. A perusal of Section 33F of the NAO, 1999,
inserted through Section 7 of the NRO, 2007 further reveals that while using
the expressions `withdrawal' and `termination', it was not considered that in
the cases of the offences, falling within the mischief of the NAO, 1999,
charged against the `holders of public office', no such judicial powers can be
given to the legislature to withdraw or terminate the cases or proceedings. As
far as, the words `termination of prolonged pending proceedings', are
concerned, these are alien to the system of criminal administration of justice,
prevailing in the country under Criminal Procedure Code and the NAO, 1999.
121. In order to ascertain that as to how many
persons have benefited from Section 33F of the NAO, 1999, inserted through
Section 7 of the NRO, 2007, the NAB was asked to furnish the details of the
same. Accordingly, after a great deal of difficulty, the list was provided by
the Chairman NAB, which indicates that there are two categories of the
beneficiaries i.e. `holders of public office'; whose cases were pending (a)
inside Pakistan and (b) outside Pakistan, in which US$ 60 million are involved
for which a request for mutual legal assistance and civil party to proceedings,
has been made by the Federal Government. As far as the category (a) is concerned,
this Court, in exercise of its powers conferred under Article 187 read with
Article 190 of the Constitution, may direct the NAB or any executive authority
to supply requisite information.
122. So far as Article 190 of the Constitution is
concerned, it imposes a constitutional obligation upon all the executives and
judicial authorities, throughout the country to act in aid of the Supreme
Court. Reference in this behalf may be made to Al-Jehad Trust v. Federation of
Pakistan (PLD 1997 SC 84), but in implementing the judgment, in letter and
spirit, regarding the cases outside the country, the Court may feel
handicapped. Therefore, it would be an obligation and the duty of the executive
to ensure initiation of proceedings according to law.
123. At this juncture, it may be noted that as per
the list provided by the NAB, regarding cases falling within category (b) in
which a huge amount is involved, it was also pointed out that to get back this
money, subject to determination, belonged to the people of Pakistan, an amount
ranging between 660 million to 2 billion rupees was spent but despite our
directions, the Chairman NAB could not furnish the exact figure. This Court
asked the learned Prosecutor General to furnish the details in respect of the
amount involved in the cases out side the country, in pursuance of request for
mutual legal assistance and civil party to proceedings, was made by the Federal
Government.
124. In reply, the learned Prosecutor General NAB
furnished the following details:--
(a) The Magistrate after considering the
material opined that, prima facie, case has been made out and sent it to the
Attorney General for launching the proceeding and also passed the order for
freezing of account.
(b) The accused filed appeal against the
said order, which was also dismissed being based on vague grounds.
(c) Our lawyer informed that the Attorney
General in Geneva had decided not to prosecute the accused further and the
Court expressed its dissatisfaction over it.
(d) The Magistrate in Geneva has passed
an order for de-freezing of the money.
In
respect of item (c) above, the learned Prosecutor General NAB admitted that in
the proceedings, reference was made to a letter sent by the then Attorney
General for Pakistan (Malik Muhammad Qayyum). Whereas, Malik Muhammad Qayyum,
the then Attorney General for Pakistan, who appeared on Court's call, informed
the Court that he had sent a letter to the Attorney General of Geneva,
mentioning therein the relevant provisions of the NRO, 2007, regarding
withdrawal of cases. Similarly, learned Acting Attorney General for Pakistan
(Mr. Shah Khawar) appeared and stated that the request for mutual legal
assistance and civil party to proceedings, was made by the Federal Government
through the Attorney General, therefore, he would apprise the Court of the
position of cases etc. According to him, so far as the amount lying in the
Swiss Banks was concerned, 25 other individuals had also filed claims against
it; however, a request was made by the former Attorney General for Pakistan
(Malik Muhammad Qayyum) for withdrawal of money but as per his knowledge that
request was not acceded to by the Attorney General Office of Switzerland as
well as by the concerned Magistrate because their version was that they would
deal with the case in accordance with their local laws. However, on 15th
December 2009, the then Attorney General for Pakistan (Malik Muhammad Qayyum)
again appeared on Court's call; he read Section 7 of the NRO, 2007 with
reference to withdrawal of cases and informed the Court that Constitution
Petition No. 265 of 2008 (Asif Ali Zardari v. Government of Pakistan) was filed
before the High Court of Sindh, whereby directions were sought for the
Federation and the NAB, both, that they should withdraw all the cases pending
in Pakistan and specifically proceedings in Geneva and in London and all others
under the provisions of the NRO, 2007; the NAB authorities appeared before the
Sindh High Court and made a statement that they would make efforts to withdraw
the proceedings from all the Courts in and outside Pakistan; the Court, vide
order dated 4th March 2008, directed to do the needful within a period of two
weeks; he further stated that in pursuance of said order and also under the
instructions of the then President, he issued a letter dated 9th March 2008 to
the Attorney General of Geneva regarding withdrawal of proceedings. Copy of
said letter has also been placed on record, which is reproduced hereinbelow in
extenso:--
"Re:
P/11105/1997 and CP 289/97, Republic of Pakistan Vs/ Asif Ali Zardari and Jens
Schlegelmich
Dear
Mr. Attorney General,
We
write you further to our meeting of 7 April 2008.
We
hereby confirm that the Republic of Pakistan having not suffered any damage
withdraws in capacity of civil party not only against Mr. Asif Ali Zardari but
also against Mr. Jens Schlegelmich and any other third party concerned by these
proceedings. This withdrawal is effective for the above captioned proceedings
as well as for any other proceedings possibly initiated in Switzerland (national
or further to international judicial assistance). The Republic of Pakistan thus
confirms entirely the withdrawal of its request of judicial assistance and its
complements, object of the proceedings CP/289/97.
Request
for mutual assistance made by the then government, which already stand
withdrawn, was politically motivated. Contract was awarded to preshipment
inspection companies in good faith in discharge of official functions by the
State functionaries in accordance with rules.
The
Republic of Pakistan further confirms having withdrawn itself as a damaged
party and apologizes for the inconvenience caused to the Swiss authorities.
Your sincerely,
Sd/-
Malik Muhammad Qayyum
Attorney General for
Pakistan."
125. Despite our repeated queries that how request
for withdrawal of mutual assistance and civil party to proceedings, initiated
by the Federal Government, were withdrawn, no satisfactory answer was given to
us. We have noticed that the Chairman NAB, who should have assisted the Court
diligently, was reluctant to do so for one or the other reason.
Therefore, having left
with no option,
the Federal Secretary, Law &
Justice Division, Government of Pakistan was called upon to appear and place on
record copies of the file, pertaining to the Swiss cases. His statement was as
follows:--
"a
letter was addressed to Law Ministry by Mr. Farooq H. Naik, ASC (on behalf of
Mohtarma Benazir Bhutto and Asif Ali Zardari), requesting therein that since
this NRO, 2007 has been promulgated, as such all cases should be dropped,
emphasizing upon the cases in Geneva Court; that application was processed and
in routine placed before the then Minister Law (Zahid Hamid), who opposed the
request and wrote a detailed note that it is not within their ambit so kindly
contact the foreign office. After that file does not show anything".
126. Likewise, Mr. Salman Faruqui, Secretary
General to the President also appeared on Court's call and informed that no
such file existed in his office or at President's Camp Office, Rawalpindi.
127. As far as issuing a letter to Attorney
General of Geneva dated 7th April 2008 by Malik Muhammad Qayyum (the then
Attorney General) is concerned, it seems that he had done so in his personal
capacity, against the Rules of Business, 1973. In this behalf it may be noted
that under Rule 14 of the Rules of Business, 1973, he was required to consult
the Law, Justice and Human Rights Division on all legal questions, arising out
of any case. Had he consulted the Law, Justice & Human Rights Division, he
would have been advised not to send any letter in this regard because the
Ministry of Law & Justice had already declined such request as was pointed
out by the Secretary Law & Justice Division, whose statement has been
referred to hereinabove.
128. It is also important to note that under
sub-Rule (2) of Rule 14 of the Rules of Business, 1973, no Division shall
consult the Attorney General except through the Law, Justice & Human Rights
Division and in accordance with the procedure laid down by that Division.
Beside it, stand taken by Malik Muhammad Qayyum that he was asked by the then
President of Pakistan to do so, does not seem to be correct because under Rule
5(11-A) of the Rules of Business, 1973, verbal orders given by a functionary of
the Government should, as a matter of routine, be reduced to writing and
submitted to the issuing authority; if time permits, the confirmation shall
invariably be taken before initiating action; however, in an exigency, where
action is required to be taken immediately or it is not possible to obtain
written confirmation of the orders before initiating actions, functionary to
whom the verbal orders are given shall take the action so required and at the
first available opportunity, obtain the requisite confirmation while submitting
to the issuing authority a report of the action taken by him. The statement of
Mr. Salman Faruqui, Secretary General to the President, reflects that no such
file exists. Since Malik Muhammad Qayyum, the then Attorney General for
Pakistan has done so in violation of the Rules of Business, 1973, therefore, he
is liable to account for his such action.
129. Section 21 of the NAO, 1999 is a
comprehensive provision of law, which spells out the nature of the request to a
Foreign State for mutual legal assistance including; freezing of assets to the
extent to which the assets are believed on reasonable ground to be situated in
that State; confiscate articles and forfeit assets to the extent to which the
articles or assets, as the case may be, are believed to be located in that
State; transfer to Pakistan any such evidence, documents, things, articles,
assets or proceeds realized from the disposal of such articles or assets, etc.
We believe that to curb the culture of corruption and corrupt practices globally
it has become necessary to enact such law on the basis of which the objects
noted hereinabove could be achieved.
130. Learned counsel appearing for the petitioners
impressed upon the arguments that on the one hand in pursuance of the NRO,
2007, the cases against the `holders of public office' either have been
withdrawn or terminated, who should have been found guilty for the corruption
or corrupt practices (under Section 9 of the NAO, 1999) and sentenced to
imprisonment as well as fine, and on the other hand, the `holders of public
office' who have been convicted and sentenced, and against their convictions,
appeals pending either before the High Court or the Supreme Court, have been
withdrawn. Similarly against those `holders of public office', who were
acquitted but against their acquittal proceedings were pending before the
superior Courts, have also been illegally provided clean-chit by withdrawal or
termination of the proceedings, contrary to constitution and the law, knowing
well that this country is signatory to the UN Convention Against Corruption. A
perusal of UN Convention Against Corruption indicates that the state had
responsibility to develop and implement or maintain effective, coordinated
anti-corruption policies; to take measures to prevent money laundering; to take
measures for freezing, seizure and confiscation of proceeds of crime, derived
from offences established in accordance with the Convention, or the property
the value of which corresponds to that of such proceeds, property, equipment or
other instrumentalities used in or destined for use in offences established in
accordance with the Convention, etc.; State parties shall consider assisting
each other in investigations of and proceedings in civil and administrative
matters relating to corruption; as well as affording to one another the widest
measure of mutual legal assistance in investigations, prosecutions, and
judicial proceedings in relation to the offences covered by the Convention;
prevention and detection of transfers of proceeds of crime. On the other hand,
the promulgation of the NRO, 2007, instead of preventing corruption and corrupt
practices, has encouraged the same. We have no option but to agree with the
contention of the learned counsel for the petitioners, as the same is based on
legal and logical premise.
131. We have already pointed out in the preceding
paras of this judgment that under the provisions of NAO, 1999, there is a
separate scheme for the withdrawal of cases. However, Article 45 of the
Constitution confers power upon the President of Pakistan to the effect that
the President shall have power to grant pardon, reprieve and respite, and to
remit, suspend or commute any sentence passed by any Court, tribunal or other
authority. The cases under Section 33F of the NAO, 1999, inserted through
Section 7 of the NRO, 2007, are also not covered under Article 45 of the
Constitution and in this behalf no other law has been referred to by any of the
learned counsel appearing for the parties. There is no cavil with the proposition
that the criminal Courts, including the Trial, Appellate and Revisional, are
empowered to acquit, set aside the conviction/ sentence or quash the
proceedings, but without adhering to this provision, the legislative authority,
in its wisdom, has withdrawn or terminated the cases or proceedings,
purportedly, in exercise of power, not vested in it. Consequently, all the
`holders of public office' have not been dealt with in accordance with law,
principle of which has been enshrined in Article 4 of the Constitution.
132. At this juncture, it may occur in one's mind
that what are the judicial powers. This question has not been discussed in
Mehram Ali's case (PLD 1998 SC 1445) or in Liaquat Hussain's case (PLD 1999 SC
504). However, one of the learned counsel has placed on record a judgment in
the case of Brandy v. Human Rights & Equal Opportunity Commission (183 CLR
245) from the Australian jurisdiction passed by High Court of Australia, which
is the Apex Court of the country. Relevant portion therefrom is reproduced
hereinbelow for ready reference:--
"9.
Difficulty arises in attempting to formulate a comprehensive definition of
judicial power not so much because it consists of a number of factors as
because the combination is not always the same. It is hard to point to any
essential or constant characteristic. Moreover, there are functions which, when
performed by a Court, constitute the exercise of judicial power but, when
performed by some other body, do not (66 See Reg. v. Davison [1954] HCA 46; (1954)
90 CLR 353 at 368). These difficulties were recognized by the Court in
Precision Data Holdings Ltd. v. Wills (67 [1991] HCA 58; (1991) 173 CLR 167 at
188-189):
"The
acknowledged difficulty, if not impossibility, of framing a definition of
judicial power that is at once exclusive and exhaustive arises from the
circumstance that many positive features which are essential to the exercise of
the power are not by themselves conclusive of it. Thus, although the finding of
facts and the making of value judgments, even the formation of an opinion as to
the legal rights and obligations of parties, are common ingredients in the
exercise of judicial power, they may also be elements in the exercise of
administrative and legislative power."
One
is tempted to say that, in the end, judicial power is the power exercised by
Courts and can only be defined by reference to what Courts do and the way in
which they do it, rather than by recourse to any other classification of
functions. But that would be to place reliance upon the elements of history and
policy which, whilst they are legitimate considerations, cannot be conclusive.
10. It is traditional to start with the
definition advanced by Griffith CJ in Huddart, Parker and Co. Proprietary Ltd.
v. Moorehead (68 [1909] HCA 36; (1909) 8 CLR 330 at 357) in which he spoke of
the concept of judicial power in terms of the binding and authoritative
decision of controversies between subjects or between subjects and the Crown
made by a tribunal which is called upon to take action. However, it is not
every binding and authoritative decision made in the determination of a dispute
which constitutes the exercise of judicial power. A legislative or
administrative decision may answer that description. Another important element
which distinguishes a judicial decision is that it determines existing rights
and duties and does so according to law. That is to say, it does so by the
application of a pre-existing standard rather than by the formulation of policy
or the exercise of an administrative discretion. Thus Kitto J in Reg. v.
Gallagher; Ex parte Aberdare Collieries (69 (1963) 37 ALJR 40 at 43) said that
judicial power consists of the "giving of decisions in the nature of
adjudications upon disputes as to rights or obligations arising from the
operation of the law upon past events or conduct". But again, as was
pointed out in Re Cram; Ex parte Newcastle Wallsend Coal Co. Pty. Ltd. (70
[1987] HCA 29;(1987) 163 CLR 140 at 149) , the exercise of nonjudicial
functions, for example, arbitral powers, may also involve the determination of
existing rights and obligations if only as the basis for prescribing future
rights and obligations."
133. It is a principle of law that binding
judgment, either of acquittal or conviction, can only be withdrawn by the
Courts of law, therefore, the question for determination would be as to which
forum is a `Court' and which is not. Answer to this proposition has been given
in Rehman Khan v. Asadullah Khan (PLD 1983 Quetta 52). In this very judgment
the word `Court' has been defined, after a considerable discussion, and it has
been held that "hence, the Courts are only such organs of the State which
follow legally prescribed scientific methodology as to procedure and evidence,
in arriving at just and fair conclusions. As far as the definition of `Court'
is concerned, the Hon'ble late Mr. Justice Zakaullah Lodhi (the then Acting CJ)
concluded that "the Courts are only such organs of State which administer
justice under guidance of procedural laws as to conduct of proceedings as well
as evidence; since such methodology helps the Court in administering justice,
in accordance with law, therefore, all other bodies which have a free hand in
the matter of deciding disputes are not Courts".
134. Applying the above test on the provisions of
Section 33F of the NAO, 1999, inserted through Section 7 of the NRO, 2007,
relating to withdrawal or termination of cases or proceedings, inescapable
conclusion would be that the legislative authority of the President had acted
contrary to judicial norms by allowing withdrawal and termination of cases and
proceedings. However, as noted hereinabove, that on the basis of judicial
interaction by the Court of law, having jurisdiction, appropriate orders can be
passed.
135. Essentially withdrawal or termination of
cases or proceedings in the manner as it has been done by means of contents of
Section 33F of the NAO, 1999, inserted through Section 7 of the NRO, 2007, does
not fall within the definition of `pardon', `amnesty' or `commutation of sentence'.
As per the Corpus Juris Secundum, Vol.67, `pardon' and `amnesty' has been
defined as follows:--
"Pardon.--a
pardon is an executive act of grace which exempts and individual from the
punishment the law inflicts for a crime, he has committed. It is full or
partial accordingly as it absolves the recipient of all or only a portion of
the legal consequences of his crime; and it is conditional or absolute
accordingly as it does or does not make its operation or continued operation,
depend on a condition precedent or subsequent."
"Amnesty.--Amnesty
is an exercise of the sovereign power by which immunity to prosecution is
granted by wiping out the offence supposed to have been committed by a group or
class of persons prior to their being brought to trial."
Who May
Exercise Authority.--Under constitutional provisions, the granting of pardons
is within the province of the executive department of the State or nation, as
the case may be.
...........................................................................
Legislature.
As a general rule, the legislature cannot exercise the pardoning power where
the constitution of the State does not confer such power on the legislature,
but lodges it else where."
The
expressions `pardon' and `amnesty' have been defined in Black's Law Dictionary,
7th Edn. (1999), as under:--
"Pardon.--The
act or an instance of officially nullifying punishment or other legal
consequences of a crime; a pardon is usu. granted by the chief executive of a
government [the President has the sole power to issue pardons for federal
offences, while State Governors have the power to issue pardons for State
crimes]."
"Amnesty.-
A pardon extended by the Government to a group or class of persons, usu. for
the political offences; the act of a sovereign power officially forgiving
certain classes of persons who are subject to trial but have not yet been
convicted; unlike an ordinary pardon, amnesty is usu. addressed to crimes
against State sovereignty - that is, to political offences with respect to
which forgiveness is deemed more expedient for the public welfare then
prosecution and punishment. Amnesty is usu. general, addressed to classes or
even communities."
Admittedly,
neither the `holders of public office' have been pardoned nor amnesty has been
given to them and similarly, their sentences have also not been commuted.
Therefore, on the basis of such legislative document i.e. the NRO, 2007, which
has no legal sanctity behind it, the benefit drawn by the `holders of public
office' is not sustainable.
136. Article 5 of the Constitution in unambiguous
terms provides that loyalty to the State is the basic duty of every citizen;
and obedience to the Constitution and the law is the inviolable obligation of
every citizen, wherever he may be and of every other person for the time being
within Pakistan. Therefore, while promulgating the NRO, 2007, the President has
to conform to the norms and response to the voice of the Constitution, as per
the mandate of Article 5 of the Constitution and any action on his part which negates
the dictates of the Constitution including the fundamental rights shall be
tantamount to promulgating a law which is neither acceptable by the nation or
internationally, being not in line with the dictates of the Constitution.
Therefore, the President who is under oath to protect the Constitution in all
circumstances is not competent to promulgate an Ordinance in the name of
national reconciliation, which is not permissible under any of the legislative
lists i.e. Federal or Concurrent, as per Fourth Schedule of the Constitution,
perusal whereof abundantly
makes it clear that no law in the
nature of the NRO, 2007 can be promulgated which instead of eliminating
exploitation etc. amongst the citizens, as per Article 3 of the Constitution,
tends to perpetuate corruption and corrupt practices as discussed above. There
is no need to cite any judgment in this behalf except making reference to the
case of Ch. Zahur Ilahi v. Zulfikar Ali Bhutto (PLD 1975 SC 383) to emphasize
that it is the duty of every one to obey the Constitution.
137. It is the prerogative of the Parliament or
Provincial Assembly to promulgate laws according to their respective spheres
allocated to them, inter alia, taking into consideration the provisions of
Article 227 of the Constitution, relating to promulgation of law according to
Islamic provisions. Sub-Article (1) of Article 227 has two parts; according to
its first part all existing laws shall be brought in conformity with the
Injunctions of Islam as laid down in the Holy Quran and Sunnah. As per its
plain reading, it refers to the laws which were existing when the Constitution
of Pakistan, 1973 was enforced i.e. on 14th August 1973. As per its second
part, which commands that no law shall be enacted which is repugnant to such
injunctions. Clause (2) of Article 227 of the Constitution provides that effect
shall be given to the provisions of clause (1) only in the manner provided in
Part-IX of the Constitution, thus it leads to a reference to Article 228, which
provides for composition of Council of Islamic Ideology, to which a reference
may be made by the Parliament, the President or the Governors of the Provinces
on a question whether a proposed law is or is not repugnant to the injunctions
of Islam, in terms of Article 229 of the Constitution. On receipt of such
question so referred under Article 229 of the Constitution, the Council has to
inform within 15 days, from the receipt of the reference, to the House, the
Assembly, the President or the Governor, as the case may be, of the period
within which the Council expects to be able to furnish that advice. Article 230
of the Constitution further provides that where a House, a Provincial Assembly,
the President or the Governor, as the case may be, considers that, in the
public interest, the making of the proposed law, in relation to which the
question arose, should not be postponed until the advice of the Islamic Council
is furnished, the law may be made before the advice is furnished; but at the
same time it is also provided that, where a law is referred for advice to the
Islamic Council and the Council advises that the law is repugnant to the
Injunctions of Islam, the House or, as the case may be, the Provincial
Assembly, the President or the Governor shall reconsider the law so made. This
is how the scheme of Part IX of the Constitution, relating to Islamic
provisions, works.
138. As it has been discussed hereinabove, by
making reference to a book tilted as "Muhammad (PBUH) Encyclopedia of
Seerah", that principle of equality
in Islam is an essential
requisite of justice because when there is discrimination and partiality
between the people, there is no justice. A code of Allah demands absolute
equality of rights between the people without any discrimination or favouritism
between man and man, and man and woman, on any count. Therefore, without any
fear of doubt, it can be held that Article 25 of the Constitution, namely, all
citizens are equal before the law and are entitled to equal protection of law
and there shall be no discrimination on the basis of sex alone, has its origin
in Quranic injunctions. Once it has been held that any law is void, insofar as,
it is inconsistent with or in derogation of fundamental rights, therefore, it
would also be against the injunctions of Islam and no such law shall be enacted
which is repugnant to such Injunctions.
139. Thus for the foregoing reasons, we are of the
opinion that the NRO, 2007 has been promulgated not in consonance with
Injunctions of Islam in terms of Article 227(1) of the Constitution. We may add
a word of caution since there is a tendency among some litigants to invoke such
precepts of Islam as do not have universal acceptance even among the jurists
and schools of Islamic Sharia, or who will invoke, on vague and unspecific
grounds, recourse to the morality and conscience of the Constitution or to
international conventions. These cannot be invoked as a matter of course, and
certainly not to strike down formal legislation or executive action which is
otherwise found to be within the scope of the Constitution and the law. The
Constitution remains supreme and the primary reason for striking down the NRO,
2007 has been its being ultra vires the express and stated provisions of the
Constitution. The observations relating to the application of Article 227 and
to the morality and conscience of the Constitution are only further supportive
observations that can be construed as a reconfirmation of the essential and
inherent invalidity in the light of the other express provisions contained in
the Constitution. The Primary touchstones remain the other provisions of the
Constitution specified in the judgment.
140. This Court in more than one cases including
the Azizullah Memon's case (PLD 1993 SC 341), I.A. Sherwani's case (1991 SCMR
1041) and Liaquat Hussain's case (PLD 1999 SC 504) has held that different laws
can be enacted for different sexes and age groups, but in the present case the
basic question is as to the vires of the NRO, 2007 on the ground of being
violative of Article 25 of the Constitution as it has provided protection to a
certain class of persons against the crimes committed during a certain period.
141. It may be noted that newly inserted Section
33F of the NAO, 1999, under Section 7 of the NRO, 2007, has not only made
classification between the general public and the `holders of public office'
but also amongst the `holders of public office' on account of time period, as
well, on the basis of which, benefit to a particular class i.e. the persons
against whom the proceedings were initiated prior to 12th October 1999, has
been extended on the criteria that prolonged proceeding are pending against
them. At this juncture, it may be noted that prior to the NAO, 1999, Ehtesab
Act, 1997 was in field, which was repealed on the promulgation of the NAO,
1999, as a result whereof, the proceedings initiated under the said Act, were
protected by means of Section 33 of the NAO, 1999, which provides that any and
all proceedings pending before the Court under the Ehtesab Act, 1997 shall
stand transferred to a Court, as soon as it is constituted under this
Ordinance, within the same Province, and it shall not be necessary to recall
any witness or again to record any evidence, that may have been recorded. As
far as Ehtesab Act is concerned, it was enacted on 31st May 1997 and was made
effective w.e.f. 6th November 1990, so through the NRO, 2007 benefit of
withdrawal or termination of the cases or proceedings has been extended to
persons whose cases are covered between the period from 6th November 1990 and
12th October 1999. Interestingly, neither the benefit of the NRO, 2007 has been
extended to the `holders of public office', against whom cases were registered
prior to 6th November 1990 nor to those `holders of public office' against whom
cases have been registered after 12th October 1999, although the cases were
registered against such persons, even before and after these cutoff dates. Thus
for this reason as well, all the `holders of public office' against whom cases
have been initiated before 6th November 1990 and after 12th October 1999 are
also entitled for equal protection of law because they are similarly placed.
Therefore, on the basis of intelligible differentia, no distinction can be
drawn between both the groups, as such the above sub-classification within the
class of `holders of public office' is not based on an intelligible
differentia, having no rational nexus to the object, sought to be achieved by
the relevant classification under the NRO, 2007 as such, it, being a
discriminatory law, deserves to be declared void ab initio [I.A. Sherwani's
case (1991 SCMR 1041)].
142. It is also contended with vehemence by the
petitioner's counsel, particularly Mr. Abdul Hafeez Pirzda and Mr. A.K. Dogar,
learned Advocates that the NRO, 2007 was promulgated against the morality and
the conscience of the Constitution. To elaborate their argument, they relied
upon R.S. Jhamandas' case (PLD 1966 SC 229), Benazir Bhutto's case (PLD 1988 SC
416) and D.S. Nakara's case (AIR 1983 SC 130).
143. It is a universally accepted principle that
Constitution of the country, may be written or otherwise, represents the voice
of the people. The Constitution being a supreme law of the country provides for
guarantee of peace, welfare and amity of the people, subject to their rights
and obligations, against all forms of exploitation, socio-economic justice and
principles of good governance,
transformed in the principles of policy, to make the document as a living
instrument, sufficient to cater for the present and future requirements of a
nation. An instrument like the Constitution of 1973, to achieve the objects
spelt out in the preamble, has the support of 176 million people, meaning
thereby that this instrument has on its back moral strength of the nation,
therefore, it would be their earnest desire and wish that everyone must show
loyalty to the State and obedience to the Constitution and the law, as it has
been envisaged under Article 5 of the Constitution. This object can be achieved
if the moral or ethical values, the desires of the nation, have been
transformed into a legally enforceable formulation. In instant case the
Parliamentarians i.e. the representatives of the people of Pakistan, by their
high moral conduct have already demonstrated, by not allowing the NRO, 2007 to
become the Act of the Parliament, as manifested from the proceedings of the
National Assembly, referred to hereinabove, as well as by the act of the
Federal and Provincial Governments of not defending and supporting it. As it
has been discussed earlier that will of the people of Pakistan was not included
in the promulgation of the NRO, 2007 because despite availability of the
National Assembly the same was not placed before it as the then legislative
authority, being holder of highest office under the Constitution, is presumed
to know that it is a legislation which is being promulgated against the
conscience of the Parliamentarians representing the people of Pakistan and
inconsistent with the constitutional provisions discussed hereinabove,
including Article 63(1)(h) of the Constitution, which provides for
disqualification of a person from being elected or chosen as, and from being, a
member of the Parliament, if he has been convicted by a Court of competent
jurisdiction on a charge of corrupt practices, moral turpitude or misuse of
power or authority under any law for the time being in force. The Constitution
has its own conscience being a living document, therefore, any law which
negates any of the constitutional provisions shall be considered to be inconsistent
with it. In R.S. Jhamandas's case (PLD 1966 SC 229), this Court being conferred
with the powers of judicial review in the orders passed by Land Commissioner
under para 27 (1) of the West Pakistan Land Reforms Regulation, 1959 overruled
the objection and observed that "what is hit is something which in the
terms of the present Constitution, may well be described as the constitutional
conscience of Pakistan". This judgment supports the arguments that any law
which is not promulgated in accordance with the Constitution would be
considered against its conscience. As far as the question of morality is
concerned, it has already been discussed hereinabove. However, note of it was
also taken by this Court in Benazir Bhutto's case (PLD 1988 SC 416) while examining
the implications of Article 17(1) of the Constitution. An elector, while
exercising his right of franchise, confers/places trust upon the
representative, being chosen by him. If such representative betrays his trust
by involving himself into corruption or the offence of moral turpitude, he
disqualifies himself to continue as a member of the Parliament, according to
the guidelines provided in Article 63(1)(h) of the Constitution. It is also to
be noted that plain reading of Article 63(1)(h) of the Constitution reveals
that it introduces two types of situation; one disclosing disqualification qua
a candidate to become a member of the Parliament and; second disqualification
qua the elected member of the Parliament.
144. It may be noted that Section 33F(1) in the
NAO, 1999, inserted through Section 7 of the NRO, 2007, giving it overriding
effect, by using non abstante clause, has allowed the prolonged pending
proceedings to be withdrawn with immediate effect. In Black's Law Dictionary,
7th Edn. (1999) word `proceeding' has been defined as follows:--
"(1)
the regular and orderly progression of a law suit, including all acts and
events between the time of commencement and the entry of judgment. (2) any
procedural means for seeking redress from a tribunal or agency. (3) an act or
step that is part of a larger action. (4) the business conducted by a Court or
other official body; a hearing. ......"
As
per the above definition, the cases or proceedings have been withdrawn or
terminated contrary to law, as it has been discussed hereinabove, initiated
before 12th October 1999, including pending trial proceedings,
conviction/acquittal appeals, etc., inasmuch as the transfer of pending
proceedings under Section 33 of the NAO, 1999 have also been withdrawn or
terminated. The manner in which Section 33F of the NAO, 1999, has been couched,
suggests that the 'holders of public office' involved in any proceedings, not
only under the NAO, 1999 but also in the cases under other laws i.e. Pakistan
Penal Code, Anti-Terrorism Act, etc. have been withdrawn or terminated,
considering the `holders of public office' as a distinct class from the
accused/convicts against whom similar proceedings are pending in any Court,
with immediate effect. How the Constitution, as per its conscience coupled with
morality, can allow this Court to maintain a law which is against all the norms
of justice. As explained above, two things have become very significant; one is
category of cases, initiated on a reference by the NAB inside or outside
Pakistan and; second is that of the cases under any other law, for the time
being in force covering all nature of crimes, heinous or minor. It may be noted
that a `holder of public office' when enters into Parliament, he enjoys moral
authority as he has been elected by the constituents, enjoying their trust. But
a `holder of public office' whose case falls under disqualification prescribed
in Article 63(1)(h) of the Constitution, which includes conviction by a Court
of competent jurisdiction, on the charge of corrupt practices under Section 9
of the NAO, 1999, identifies persons, who
are said to
have committed the crime falling under this category.
Second
charge which falls under the definition of disqualification under Article
63(1)(h) of the Constitution is in respect of moral turpitude. The expression
`moral turpitude' has not been defined under the Constitution, however, in
Black's Law Dictionary, 6th Ed. its definition as under:--
"The
act of baseness, vileness or the depravity in private hand social duties which
man owes to his fellow man, or to society in general, contrary to accepted and
customary rule of right and duty between man and man. Act or behaviour that
gravely violates moral sentiment or accepted moral standards of community and
is a morally culpable quality held to be present in some criminal offences as
distinguished from others. The quality of a crime involving grave infringement
of the moral sentiment of the community as distinguished from statutory mala
prohibita."
Similarly,
in Webster Dictionary, the term `moral turpitude' has been defined as "an
act or behaviour that gravely violates moral sentiment or accepted moral
standards of community." In Law Lexicon by P. Remnatha Aiyar Vol.III, 3rd
Ed. (2005), the term `moral turpitude has been defined as under:--
"Anything
done contrary to justice, honesty, principle, or good morals; an act of
baseness, vileness of depravity in private and social duties which a man owes
to his fellowmen, or to society in general, contrary to accepted and customary rule
of right and duty between man and man. ....................
Everything
done contrary to justice, honesty, modesty, or good morals is done with
turpitude, so that embezzlement involves moral turpitude."
Likewise,
in Corpus Juris Secundum, Vol.1, 8th Ed. the term `moral turpitude' has been
defined as under:--
"`moral
turpitude' is not a new term, but, rather, it is a term which is old in the
law, and which has been used in the law for centuries. It is a term which has
been the subject of many decisions and which has been much defined by Courts.
................."
145. Third category relates to the cases of misuse
of power or authority under any law for the time being in force. This category
also squarely falls within the definition of corruption and corrupt practices
as defined in Section 9 of the NAO, 1999.
146. Thus question arises, whether a law which
instead of eliminating, has encouraged the offence of corruption and moral
turpitude, can at all not be enacted in exercise of powers under Article 89 of
the Constitution; whether promulgation of such a law would not be against the
morality and the conscience of the Constitution; whether the constituents, in
exercise of their right of franchise, have not made out a case to strike down
such a law, which is not only contrary to the constitutional provisions,
discussed hereinabove, but also calls upon this Court to strike down such law
as they believe that on account of their high moral and ethical codes, it has
become their enforceable legal formulations [D.S. Nakara's case (AIR 1983 SC
130)]; and lastly whether it is not against the conscience of the Constitution
which prohibits enactment and promulgation of any law inconsistent with its
provisions. Answer to all above questions is in affirmative and could not be
else.
147. It is mentioned in Section 33F of the NAO,
1999 inserted by means of Section 7 of the NRO, 2007 that `holders of public
office' shall also not be liable for any action in future as well for acts
having been done in good faith before the said date. This immunity from future
actions has also been provided contrary to the Constitution and the law. There
are two provisions in the Constitution i.e. Article 12, according to which
protection to a person against retrospective punishment has been made
permissible; and Article 13, which protects a person against double punishment
and self-incrimination. Thus, operation of Section 33F of the NAO, 1999,
inserted through Section 7 of the NRO, 2007 seems to be in contravention to the
mandate of Section 31B of the NAO, 1999, which provides mechanism for
withdrawal from the prosecution of any accused person in the manner prescribed
therein, but as far as the protection against double punishment is concerned,
it would only be available to a person who has already been punished but
criminal proceeding right from the date of commencement up to final judgment
has been withdrawn or terminated, making such a person as innocent, as he was
before initiation of such proceedings at investigation stage. So far as Article
13 of the Constitution is concerned, no case can be made out under this Article
of the Constitution against double punishment or self incrimination. It seems
that the `holders of public office' have been saved from future action for the
crimes committed by them as well as the crimes charged against them on the
basis of reference filed by the NAB including corruption and corrupt practices.
Neither the Constitution nor any other law permits the legislative authority
i.e. the President to promulgate a law, which fails to stand the test of
Articles 12 and 13 of the Constitution.
148. By promulgation of the NRO, 2007, the
`holders of public office' have been saved from being charged of certain acts
committed by them in good
faith. Essentially, Section 33F of the NAO, 1999, inserted through
Section 7 of the NRO, 2007, in generality, is dealing with the persons, facing
criminal charges under any provision of law or the crime defined under the NAO,
1999. As far as the last mentioned law is concerned, under it no exception has
been created for the crimes committed under good faith except under some of the
provisions of PPC, whereby protection has been given for committing an act in
good faith. Section 52 of PPC defines the expression `good faith' as `nothing is
said to be done or believed in `good faith', which is done or believed without
due care and attention'. In Black's Law Dictionary, 7th Edn. (1999), the
expression `good faith' has been defined as `a state of mind consisting in (1)
honesty in belief or purpose, (2) faithfulness to one's duty or obligation, (3)
observance of reasonable commercial standards of fair dealing in a given trade
or business or (4) absence of intent to defraud or to seek unconscionable
advantage - also termed bona fide". In Industrial Development Bank of
Pakistan v. Saadi Asamatullah (1999 SCMR 2874), the expression `good faith' has
been defined as `an act is said to be done in good faith when it is done with
due care and attention'. Similarly in Fazal Ullah Siddiqui v. State (2006 SCMR
1334), it has been held that `nothing done without due care and caution can be
accepted as having been done in good faith'.
149. It may also be noted that a public servant
performing duty on behalf of State has been provided immunity in different
statutes with reference to the nature of the crime etc. This expression has
been used in Section 36 of the NAO, 1999, which provides that no suit,
prosecution, or any other proceedings shall lie against the Federal Government,
Provincial Government, Chairman NAB, or any other member of the NAB or any
person exercising any power or performing any function under this Ordinance or
the Rules made under it for any act or thing, which has been done in good faith
or intended to be done under this Ordinance or the rules thereof. As far as the
persons against whom proceedings or investigation are pending before the Court
of law including a High Court or Supreme Court, cannot be said to have
committed the crime, in good faith, either heinous or minor in nature, as well
as relating to corruption or corrupt practices, inside and outside the country.
The legislature while enacting a law has to adopt certain measures before
extending immunity to the functionaries of the State but at least we can say
that an accused or convict cannot enjoy protection for offences, noted
hereinabove, or for his deeds, in the garb of good faith.
150. Another important aspect of Section 7 of the
NRO, 2007 is that while inserting Section 33F in the NAO, 1999, a mechanism has
also been provided for `withdrawal and termination of prolonged pending
proceedings, initiated prior to 12th October, 1999'. One of the so-called reasons, prevailed upon the legislative
authority to promulgate such provision on account of `prolonged pending
proceedings initiated prior to 12th October 1999'. It may be noted that in the
preamble of the NRO, 2007, besides other things, the prolonged pending
proceedings was never the consideration. It does not seem to be that on account
of prolonged pending proceedings, initiated prior to 12th October 1999, the
cases have been withdrawn as according to it, necessity to promulgate the NRO,
2007 is "to promote national reconciliation, foster mutual trust and
confidence amongst `holders of public office' and to remove the vestiges of political
vendetta and victimization, to make the election process more transparent and
to amend certain laws for that purpose and for matters connected therewith and
ancillary thereto". Assuming that the conditions so mentioned therein for
terminating the cases being prolonged pending proceedings is acceptable, then
why the cases which have been finalized, resulting in the conviction or
acquittal and proceedings in respect thereof were pending, have been withdrawn.
Therefore, instead of withdrawing or terminating the proceedings, mechanism
should have been followed for the disposal of cases by increasing manpower of
investigating agencies and the number of Courts etc. In Liaquat Hussain's case
(PLD 1999 SC 504), somehow identical objection was raised on the creation of
Military Courts and this Court while disposing of the matter, provided a
mechanism to monitor the proceedings with a view to ensure expeditious disposal
of cases pending in Courts. Relevant para therefrom has already been reproduced
hereinabove. In addition to it, prolonged pending proceedings, in no way, can
constitute a ground for the withdrawal or termination of the proceedings, in
view of discussion made hereinabove elaborately. More so, Article 37 of the
Constitution casts a duty upon the State to ensure inexpensive and expeditious
justice, therefore, the Government by invoking this provision can increase the
number of Courts and paralegal staff to ensure expeditious disposal of the
cases of persons charged for various offences.
151. This Court while interpreting different
provisions of the Constitution has an authority to make an observation with an
object that the State must realize its duty. As in the case in hand, the Court
is empowered to pass appropriate orders, as it deemed fit under Article 187 of
the Constitution as well as keeping in view the earlier precedents providing
for monitoring of the cases pending in the Courts and the increase in number of
Courts. As far as the supervision of the High Court is concerned, it has
already been discussed hereinabove and for comprehending powers of this Court
under Article 187 of the Constitution, reference can be made to Sabir Shah's
case (PLD 1995 SC 66). In this case, Chief Justice Sajjad Ali Shah (as he then
was) while discussing the powers of this Court, observed as under:--
"22. In support of the proposition that this Court
has more than ample powers to do complete justice, as contemplated under
Article 187 of the Constitution, reference can be made to Order XXIII Rule 6 of
the Supreme Court Rules, 1980, which also provides that nothing in these Rules
shall be deemed to limit or otherwise affect the inherent powers of the Court
to make such orders as may be necessary for the ends of justice or to prevent
the abuse of the process of the Court. This rule is consistent with the spirit
and amplitude of the jurisdiction and power as conferred upon it by the
Constitution."
Likewise,
Justice Saleem Akhtar (as he then was) observed as under:--
"10.
The Supreme Court is the apex Court. It is the highest and the ultimate Court
under the Constitution. In my view the inherent and plenary power of this Court
which is vested in it by virtue of being the ultimate Court, it has the power
to do complete justice without in any manner infringing or violating any
provision of law. While doing complete justice this Court would not cross the
frontiers of the Constitution and law. The term "complete justice" is
not capable of definition with exactitude. It is a term covering variety of
cases and reliefs which this Court can mould and grant depending upon the facts
and circumstances of the case. While doing complete justice formalities and
technicalities should not fetter its power. It can grant ancillary relief,
mould the relief within its jurisdiction depending on the facts and
circumstances of the case, take additional evidence and in appropriate cases
even subsequent events may be taken into consideration. Ronald Rotunda in his
book "Treatise on Constitutional Case Substance" (Second-Edition),
Volume 2 at page 90 has stated that "The Supreme Court is an essence of a
continual Constitutional convention". The jurisdiction and the power
conferred on the Supreme Court does empower it to do complete justice by
looking to the facts, circumstances and the law governing a particular case.
Article 187 does not confer any jurisdiction. It recognises inherent power of
an apex Court to do complete justice and issue orders and directions to achieve
that end. Inherent justification is vested in the High Court and subordinate Courts
while dealing with civil and criminal cases by virtue of provisions of law. The
inherent jurisdiction of this Court to do complete justice cannot be curtailed
by law as it may adversely affect the independence of judiciary and the
fundamental right of person to have free access to the Court for achieving
complete justice. This enunciation may evoke a controversy that as Article
175(2) restricts Article 187 it will create conflict between the two. There is
no conflict and both the Articles can be read together. The conflict in the
provisions of the Constitution should not be assumed and if apparently there
seems to be any, it has to be interpreted in a harmonious manner by which both
the provisions may co-exist. One provision of the Constitution cannot be struck
down being in conflict with the other provision of the Constitution. They have
to live together, exist together anti operate together. Therefore, while
interpreting jurisdiction and power of the superior Courts one should look to
the fundamental rights conferred and the duty cast upon them under the
Constitution. A provision like Article 187 cannot be read in isolation but has
to be interpreted and read harmoniously with other provisions of the
Constitution. In my humble view this Court while hearing appeal under a statute
has the jurisdiction and power to decide the question of vires of the statute
under which the appeal has arisen and can even invoke Article 184(3) in
appropriate cases."
152. It is worth to mention here that by means of
Section 33F of the NAO, 1999, inserted through Section 7 of the NRO, 2007,
cases or proceedings have been withdrawn or terminated, without spelling out
the reasons, namely, as to whether an accused himself is responsible for
causing the prolonged delay or the prosecution or the Courts have failed to
decide the case expeditiously. After the promulgation of National Judicial
Policy, 2009 by the National Judicial Policy Making Committee, despite strict
monitoring of the proceedings of the Court, we have observed that the Courts
and the Investigating Agencies are taking all necessary steps to dispose of the
cases expeditiously according to law but it is a hard fact that accused, for
one or other reasons, known to them, attempt to protract the proceedings.
153. By means of Section 3 of the NRO, 2007,
amendment has been made in Section 39 of the Representation of the People Act,
which reads as under:--
"3.
Amendment of section 39, Act LXXXV of 1976. (1) In the Representation of the
People Act, 1976 (LXXXV of 1976), in section 39, after sub-section (6), the
following new sub-section (7) shall be added, namely:--
"(7) After consolidation of results the
Returning Officer shall give to such contesting candidates and their election
agents as are present during the consolidation proceedings, a copy of the
result of the count notified to the Commission immediately against proper
receipt and shall also post a copy thereof to the other candidates and election
agents."
Intention
enshrined in above said Section cannot be doubted but it seems that this
provision is cosmetic in its nature, comparing to Sections 2, 6 and 7 of the
NRO, 2007. However, the benefit of the same cannot be drawn immediately by a
candidate, who is always interested to get the certified copy of the result and
such arrangement is already available in Section 38 of the Representation of
the People Act, 1976, which provides that the Presiding Officer shall give a
certified copy of the statement of count and the ballot paper account to such
of the candidates, their election agents or polling agents as may be present
and obtain a receipt for such copy because as far as the consolidation of a
result is concerned, it takes place subsequent to polling day, as per the
schedule fixed by the Election Commission. If at all, the intention of the
legislature was to ensure transparent election free from rigging of any kind,
then emphasis should have been for the strict compliance of Section 38 (11) of
the Representation of the People Act, 1976, which reads as under:--
"38.
Proceedings at the close of poll.--
...............................................................
................................................................
(11)
The Presiding Officer shall give a certified copy of the statement of the count
and the ballot paper account to such of the candidates, their, election agents
or polling agents as may be present.
...............................................................
................................................................"
154. Mr. Shaiq Usmani, learned Amicus curiae
started his arguments by saying that he would draw the canvas before the Court,
which is necessary to be seen, that what possible arguments could be raised in
defence of the NRO, 2007 by the other side. He argued that in criminal justice
system, there are two systems of justice; one is retributory and the other is
restorative; first one entails prosecution and punishment, just very simple,
whereas restorative does not believe in prosecution or punishment rather it
tries to resolve the issues through accountability. According to him if,
presumably, it was an act of amnesty by means of the NRO, 2007, then the
question arises whether it was legitimate and if so, could it justify the
derogation from the fundamental rights. He added that amnesty is manifestation
of restorative justice and is resorted to, with a view to end the internal
conflict on the basis of negotiation with the leaders, who committed the
crimes, either political or the other. He stated that there are two further
types of amnesties; one is compromised by the two parties for their mutual
interest; and other is accountable amnesty where there is open admission of
guilt, because victims do not, necessarily, always want punishment, but
certainly want the admission of guilt. According to his version, the only
legitimate amnesty is the one which is accountable, so in the case in hand, the
amnesty, if it could be called as amnesty, is not a legitimate one, hence not
permissible; therefore, on this ground, too, it falls. He further stated that
the NRO, 2007 is violative of Article 25 of the Constitution on the ground of
discrimination because on the face of it, it is discriminatory; therefore,
looking at the I.A. Sherwani's case (1991 SCMR 1041) there was a definite
classification of people. He argued that the NRO, 2007 is violative of the
salient features of the Constitution and principle of trichotomy of powers, as
it is the domain of the judiciary to see whether a criminal case should be
withdrawn or not, inasmuch as there is encroachment upon the domain of
judiciary, which is certainly violative of the principle of trichotomy of
powers, as such it is void. He strenuously argued that corruption is nothing
but theft of public money; when the National Assembly cannot make a law to
condone theft, how can the President issue an Ordinance to condone theft. While
referring to Section 21 of the NAO, 1999, he argued that Attorney General has
no power at all to withdraw the cases; therefore, anything done by the then
Attorney General, is of no consequences.
155. The above arguments of the learned Amicus
Curiae have been considered and need no further deliberations being
comprehensive in their form, in view of above discussion on different aspects
of the case noted in the forgoing paras.
156. Mian Allah Nawaz, another learned Amicus
Curiae submitted his formulations on the NRO, 2007 by saying that man is a
complex, complicated in it; there is no definition of man; even the Allah
Almighty has said that the creation, which is being sent to this globe, is
flawed, and is a blend of two great positive and negative reservoirs of
instincts; one instinct is goodness, the good, the tranquility, peace; and the
other is greed, lust, bloodshed etc.; so the man is beautiful combination of
both. He quoted the saying of Jeremy Bentham, a great philosopher, that `if you
keep twenty wolfs at one place and twenty men at the same place, it would be
difficult to manage the men'. According to him another philosopher has rightly
said that `law is necessity of the man' because he can't discipline himself; he
can't undertake his own examination; man is such a creature that he needs three
instincts, i.e. instinct of preservation, instinct of peace and the instinct of
law, which compel him to travel on the path of law. He added that laws are
those minimum requirements, patterns, modes; which if recognized, each man will
be saved from the warring, lust and greed; and this is beginning of the law.
According to him law is not necessarily be a divine law, it may be a temporal
law and it may be a secular law but whatever it is, the main thing is that it
is for the peace, tranquility and goodness. He stated that any law, which
violates the `intrinsic value of the law' or `intrinsic value of behaviour', is
not a good law, and it has to be struck down otherwise it would create simple
anarchy, lust, greed and would lead to monumentally horrendous things. He
argued that if the basic fundamental philosophy of law was not kept in view,
neither the Constitution nor the law or the problem facing the nation could be
understood and no solution could be found. In this behalf he referred to Surah
Al-Baqarah from the Holy Quran. According to him the morality of law has two
aspects to be assumed as sine qua non; one is internal voice of a human being
and the other is external voice i.e. conduct of a human being; these two can be
called as a soul, conscience, discipline, etc. of human being; as the same are
contemporaneous not simultaneous; naturally embodied in the human being, who is
to be tested on these touchstones.
157. With regard to NRO, 2007, he stated that the
NRO, 2007 is not only a bad law but it's a dirty law, a kleptocratic law, which
converts the very form of the Government. While explaining the word
`kleptocracy', he stated that it is a classical manifestation of evolution of
gradual supremacy of satanic forces. He further stated that there is not a
single provision in the Constitution, validating the NRO, 2007 or giving a
conscience to it under any statute, because our Constitution is based upon
morality of Muslims. According to him the NRO, 2007, from the beginning to end,
after preamble, is a master piece of savagery, therefore, from the commencement
to finish, irrespective of certain cosmetic provisions, it is a so bad law that
it must be struck down, as a piece of paper, which never deserved to be put on
the statute book.
158. The above arguments of the learned amicus
curiae are self-explanatory; therefore, there is no need to further dilate upon
them.
159. Mr. M. Sardar Khan, learned amicus curiae,
made his submissions to the effect that the NRO, 2007 is not only
discriminatory and inconsistent with fundamental rights, enshrined in Article
25 of the Constitution but also in conflict with other Articles of the
Constitution such as Articles 62, 63 and 175, therefore, it is not a valid law
rather it is a bad law. According to him Article 5 of the Constitution
postulates that it is inviolable obligation of every citizen to obey the
Constitution and the law, whereas, Article 8 (2) prohibits the State from
making any law which takes away or abridges fundamental rights conferred by the
Constitution; therefore, if a law does so, then it shall be void, as such, the
NRO, 2007, so promulgated, seems to be an intentional violation and disobedience
of the Constitutional provision, contained in Article 8 of the Constitution. He
further contended that Article 2A of the Constitution requires that the
authority of Allah Almighty, conferred upon the chosen representatives of the
people of Pakistan, is to be exercised by them in accordance with
the Constitution and
within the limits prescribed by Allah Almighty.
According to him various provisions of the NRO, 2007 i.e. 2, 3, 4, 6 & 7,
are not valid provisions as they are void for various reasons, including, being
against the Injunction of Islam, violative of the mandate of Article 175 of the
Constitution, and repulsive to the provisions of Article 62 & 63 of the
Constitution. He argued that the object of this law, for all intents and
purposes, does not seem to be `reconciliation' but it paves the way and
facilitates to those, charged with corruption and corrupt practices, plundering
of national wealth and fraud, to come back, seize and occupy echelons of power
again; its aim seems to be to legalize corruption and the crimes committed by
those in power, in the past. He further argued that Courts have been deprived,
by virtue of this law, from their judicial functions by conferring powers to
the administrative authority. He contended that the NRO, 2007, besides being
discriminatory, has also been applied discriminately.
160. With regard to Article 247 of the
Constitution, learned counsel contended that this Court has always favoured
application of fundamental rights to ensure that there should not be any
discrimination amongst citizens and the State shall not make any law which
takes away or abridges the rights so conferred. In this behalf he relied upon
the case of Government of NWFP v. Muhammad Irshad (PLD 1995 SC 281), wherein
Regulation No. I of 1975 dated 26th July 1975, known as Provincially
Administered Tribunal Areas Criminal Laws (Special Provisions) Regulation, 1975
was declared void, being inconsistent with the fundamental rights guaranteed
under Article 25 of the Constitution. On the arguments that under Article 8(1)
of the Constitution, examination of Regulation, framed by the President or the
Governor in exercise of powers under sub-Articles (4) and (5) of Article 247 of
the Constitution, is not included in the expression `any law', this Court
maintained the judgment of the High Court, in the following terms:--
"20. It seems difficult to subscribe to the view
canvassed by Mr. Samadani that the expression `any law' as used in Article 8(1)
does not encompass a Regulation made under Article 247(4) or that the term
`State' as occurring in Article 7 does not include the President and the
Governor. Article 8(1), ibid, reads as follows:
"Any
law, or any custom or usage having the force of law, in so far as it is
inconsistent with the rights conferred by this Chapter, shall, to the extent of
such inconsistency, be void."
The
word `any' is ordinarily used to enlarge the amplitude of the term to which it
is attached and there seems to be no reason why the expression `any law' as
occurring in Article 8(1) be so narrowly construed as to exclude from its
purview a Regulation which possessed the efficacy of law in a part of Pakistan,
particularly when its effect has been extended to all customs and usages which
have the force of law. Article 7 falls in Part II of the Constitution which
bears the rubric Fundamental Rights and Principles of Policy. The said Article
reads as follows:
"7.
Definition of the State.--In this Part, unless the context otherwise requires,
`the State' means the Federal Government, Majlis-e-Shoora (Parliament), a
Provincial Government, a Provincial Assembly, and such local or other
authorities in Pakistan as are by law empowered to impose any tax or
cess."
It
will be noticed that the definition of the `State' as given in this Article is fairly
wide; on its plain reading it would appear to encompass all authorities which
perform executive and legislative functions in any part of the country. So far
as the Areas are concerned, the President and the Governor while exercising
their powers under Article 247 stand in the position of the Federal and the
Provincial Governments. There is therefore no reason why they should be
excluded from the definition of the `State' so far as the Areas are concerned.
In fact, to hold otherwise, would tend to deprive a sizeable part of the
Pakistan citizenry of the Fundamental Rights enshrined in the Constitution
which could never have been the intention of the Constitution-makers."
161. Learned counsel, while heavily relying upon
the above judgment, stated that this Court has not shown any flexibility, while
interpreting constitutional provisions, dealing with the case pertaining to
Tribal Area, where the President and the Government have dominating authority
to issue regulation, then as to why not the NRO, 2007 be declared ultra vires
to the Constitution, void ab initio and of no consequences for the reason
discussed hereinabove.
162. We are in agreement with the above arguments
of the learned counsel.
163. Raja Muhammad Ibrahim Satti, learned counsel
appearing in Civil Appeal No. 1094 of 2009, however, supported the NRO, 2007
for the following reasons :--
(i) On 12th October 2007, while
admitting the Constitution Petition, challenging the NRO, 2007, its operation
was not suspended, therefore, presumably it was a good law.
(ii) On 27th February 2008, order dated
12th October 2007 was modified without declaring the NRO, 2007 ultra vires the
Constitution, as such presumably the NRO, 2007 is a valid law.
(iii) The President, in exercise of powers
under Article 89 of the Constitution, on having been satisfied that the
circumstances prevailed for issuing the NRO, 2007, exercises his authority with
immediate effect and it is no body's case that the NRO, 2007 has been issued by
the President in exercise of powers, beyond the scope of the Constitution,
therefore, it being a valid law deserves to continue.
(iv) The NRO, 2007 along with other
Ordinances was not declared ultra vires the Constitution at the time of
examination of the validity of Proclamation of Emergency of 2007 and
Provisional Constitution Order, 2007 by this Court in Sindh High Court Bar
Association's case (PLD 2009 SC 879), as by extending its constitutional life,
it was sent to the Parliament for examination and making it an Act of the
Parliament, therefore, it may be presumed that this Court having ample powers,
refused to exercise the same for declaring the NRO, 2007 ultra vires the
Constitution.
(v) Appellant is entitled for the same
relief, which has been extended to the beneficiaries, between the period from
5th October 2007 to 1st February 2008, so that he is not discriminated.
164. As far as the reference of the learned
counsel for the appellant to order dated 12th October 2007 is concerned, on
this date notice was issued to the respondents and while examining the request
of the counsel for the petitioners for suspending the operation of the NRO,
2007, it was observed that "ordinarily the provisions of a law cannot be
suspended because this Court can only suspend a particular order, judgment or action,
etc.; however, we are inclined to observe in unambiguous terms that any benefit
drawn or intended to be drawn by any of the public office holder shall be
subject to the decision of the listed petitions and the beneficiary would not
be entitled to claim any protection of the concluded action under Sections 6
and 7 of the impugned Ordinance, under any principle of law, if this Court
conclude that the impugned Ordinance and particularly its these provisions are
ultra vires the Constitution. Therefore, the argument of the learned counsel is
of no help to him.
165. Next crucial date pointed out by the learned
counsel is 27th February 2008, when order dated 12th October 2007 was modified,
which does not mean that the law has been validated. In addition to it, it may
be stated that the appellant Fazal Dad Jat was not a party in those
proceedings, therefore, this argument has no substance.
166. So far as the argument of the learned counsel
regarding referring of the NRO, 2007 along with other Ordinances to the National
Assembly in the case of Sindh High Court Bar Association's case (PLD 2009 SC
879), is concerned, reasons in this behalf have already been explicitly
explained therein and discussion in this regard had already taken place
hereinabove, whereby, it has been held that this Court believes in trichotomy
of powers, therefore, instead of examining the constitutionality of such
Ordinances, including the NRO, 2007, for the detailed reasons, mentioned in the
judgment, the Ordinances along with the NRO, 2007 were sent to the National
Assembly for examination. It is an admitted fact that the National Assembly had
not made the NRO, 2007 as an Act of the Parliament, although it was tabled
before it; therefore, the argument of the learned counsel that its constitutionality
being inapt is not acceptable.
167. As far as the question of extending relief
under the NRO, 2007 to the appellant and the convicts, who have filed
applications being Human Right Case Nos. 14328-P to 14331-P & 15082-P of
2009, is concerned, it is to be observed that it depends upon the final verdict
about the constitutionality of the NRO, 2007.
168. Now turning towards the arguments of the
learned counsel about the Ordinance issuing powers of the President, there is
no denial to it, but subject to discussion made hereinabove on this subject.
169. It may be noted that the President has an
authority under Article 89 of the Constitution to promulgate an Ordinance, but
cannot issue temporary legislation, which the Parliament is not empowered to
do. A thorough perusal of the Federal and the Concurrent Lists persuades us to
hold that the President was not empowered to issue the NRO, 2007 as the
subjects covered by its Section 2, 6 and 7 fall beyond the scope of these
lists. As far as its manifestations is concerned, it has already been done by
the Parliament before whom the NRO, 2007 was placed, but the same was withdrawn
subsequently under Rule 139 of the Rules of Procedure and Conduct of Business
in the National Assembly, 2007, as impliedly the National Assembly refrained
itself from making it as an Act of Parliament. Inasmuch as, the actions taken
from the date of its inception till the expiry of its constitutional life of
120 days under Article 89 of the Constitution from 5th October 2007 to 1st February
2008, benefits derived by some of the person have not been protected, and the
Government (either Federal or Provincial) has also not insisted to allow
retention of the benefits derived out of it to the accused persons during the
said period. More so, none of the beneficiaries, who have drawn benefit during
the said stipulated period from 5th October 2007 to 31st July 2009, when vide
judgment dated 31st July 2009, all the Ordinances were declared to have been
shorn of permanency, have not come forward to protect their benefits, although
hearing of these petitions has been widely publicized in print and electronic
media. Thus in view of theory of ultra vires, explained in Cooley's
Constitutional Limitations, reference of which has been made by Chief Justice
Cornelius (as then he was) in Fazlul Quader Chowdhry v. Muhammad Abdul Haque
(PLD 1963 SC 486), wherein it has been observed that "for the constitution
of the State is higher in authority than any law, direction, or order made by
anybody or any officer assuming to act under it, since such body or officer
must exercise a delegated authority, and one that must necessarily be
subservient to the instrument by which the delegation is made; in any case of
conflict the fundamental law must govern, and the act in conflict with it must
be treated as of no legal validity", we are of the opinion that the NRO,
2007 is void ab initio, therefore, the parties who have derived benefit shall
not be entitled for the same from 5th October 2007 and all the cases withdrawn
under Section 2, 6 & 7 of the NRO, 2007 shall stand revived immediately.
The Courts seized with the matters shall proceed to decide the same,
considering that the NRO, 2007 was never promulgated.
170. It is also to be noted that while examining
the vires of a statute the Court is free to examine the same on the touchstone
of different constitutional provisions as it has been held in Muhammad
Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602):
"52. In this behalf it may be noted that this
Court, in exercise of constitutional Jurisdiction conferred upon it under
various provisions of the Constitution, including Articles 184, 185, 186,
187(1) and 212(3), enjoys enormous power of judicial review. Besides, it is
well-settled by this time that being the apex Court, it has also been vested
with inherent Powers to regulate its own authority of judicial review, inasmuch
as, that in Zafar Ali Shah v. Pervaiz Musharraf, Chief Executive of Pakistan
(PLD 2000 SC 869), it has been held by the full Court that "so long as the
superior Courts exist, they shall continue to exercise powers and functions
within the domain of their jurisdiction and shall also continue to exercise
power of judicial review in respect of any law or provision of law which comes
for examination before the superior Courts. " Argument by one of the
learned counsel that in the absence of violation of any of the fundamental
rights, guaranteed by the Constitution, section 2-A of the STA, 1973 can be
struck down only if in derogation of Article 8 of the Constitution and there is
no other specific provision in the Constitution, authorizing this Court to
exercise powers in this behalf is untenable on the face of it. A reference to
the case of Mr. Fazlul Qader Chowdhry (ibid) would indicate that "superior
Courts have inherent duty, together with the appurtenant power, to ascertain
and enforce the provisions of the Constitution in any case coming before
them." In the case of A.M. Khan Leghari v. Government of Pakistan (PLD
1967 Lahore 227), it has been emphasized that " ----------in cases of
conflict between the supreme law of the Constitution and an enactment it is the
duty of the superior Courts as its protectors and defenders to declare the
enactment in question as invalid to the extent of its repugnancy with the
constitutional provision in the absence of any bar either express or
implied." Similarly, in Messrs Electric Lamp Manufacturers of Pakistan
Ltd. v. The Government of Pakistan (1989 PTD 42), it has been held that
"the Parliament in England is sovereign in the real sense and it is not
subject to any constraints as in England there is no written Constitution,
whereas in Pakistan the Parliament is subject to constraints contemplated by
the Constitution in accordance with the procedure provided therein, but so long
as it is not amended the Parliament has to act within its four corners; so a
statute or any of its provisions can be struck down on the ground of being
ultra vires of the Constitution." Likewise, in the case of Fauji
Foundation v. Shamimur Rehman (PLD 1983 SC 457), it is held that
"-----------when a Court, which is a creature of the Constitution itself,
examines the vires of an Act, its powers are limited to examine the legislative
competence or such other limitations as are in the Constitution; and while
declaring a legislative instrument as void, "it is not because the
judicial power is superior in degree or dignity to the legislative power"
but because it enforces the Constitution as a paramount law either where a
legislative instrument is in conflict with the constitutional provision so as
to give effect to it or where the Legislature fails to keep within its
constitutional limits." In the case of Liaqat Hussain v. Federation of
Pakistan (PLD 1999 SC 504), the conclusion was that "Court cannot strike
down a statute on the ground of mala fides, but the same can be struck down on
the ground that it is violative of a constitutional provision. In Collector of
Customs and others v. Sheikh Spinning Mills (1999 SCMR 1402), this Court struck
down the imposition of preshipment inspection service charge under the Customs
Act, 1969 as unconstitutional, which of course was not based on any fundamental
rights. Relevant para reads as under:--
"Considering
the case from all angles, although the Federal Legislature is competent to
legislate for the imposition of fees within the meaning of Entry 54, in the
Federal Legislative List, Fourth Schedule to the Constitution, but again as
already discussed hereinbefore, one has to see what is the nature of the
legislation and whether the same could have been legislated within the ambit of
the powers of the Federal Legislature. No doubt, legislation can be made to
impose fee in respect of any of the matters in the Federal Legislative List,
but definitely not for pre-inspection, the benefit of which has to go to the
companies appointed to carry out the inspection and not to the payees of the
fees. The imposition of such fee is not in lieu of services to be rendered for
the benefit of its payees --------------------------
For
the foregoing reasons, we are of the view that the imposition of service charge
as imposed under section 18-B of the Act towards the pre-shipment inspection is
ultra vires of the powers of the Federal Legislature."
53. Likewise, in the case of Zaman Cement Company
(Pvt.) Ltd. v. Central Board of Revenue and others (2002 SCMR 312) this Court
observed that "the function of the judiciary is not to question the wisdom
of Legislature in making a particular law nor it can refuse to enforce it even
if the result of it be to nullify its own decisions provided the law is
competently made; its vires can only be challenged being violative of any of
the provisions of the Constitution and not on the ground that it nullifies the
judgment of the superior Courts." In this judgment the use of expression
`any, has widened the jurisdiction of the Court and extended it to the extent
of the violation of any of the provisions of the Constitution including
fundamental rights. Similarly in Ghulam Mustafa Ansari v. Government of Punjab
(2004 SCMR 1903) it was held that "ordinarily it is not for us to question
the wisdom of the Legislature merely on the ground that a provision of law may
work some inconvenience or hardship in the case of some persons, unless it be
violative of a constitutional provision including the fundamental
rights"."
171. We have examined the respective contentions
of the learned counsel for the parties as well as the vires of the NRO, 2007 on
the touchstone of various Articles of the Constitution, and have come to the
conclusion that the NRO, 2007 as a whole, particularly its Sections 2, 6 and 7,
is declared void ab initio being ultra vires and violative of Articles 4, 8,
12, 13, 25, 62(f), 63(1)(h), 63(1)(p), 89, 175, 227 of the Constitution,
therefore, it shall be deemed non est from the day of its promulgation i.e. 5th
October 2007 as a consequence whereof all steps taken, actions suffered, and
all orders passed by whatever authority, any orders passed by the Courts of law including the
orders of discharge and acquittals recorded in favour of accused persons, are
also declared never to have existed in the eyes of law and resultantly of no
legal effect.
172. Resultantly, all cases in which the accused
persons were either discharged or acquitted under Section 2 of the NRO, 2007 or
where proceedings pending against the holders of public office had got
terminated in view of Section 7 thereof, a list of which cases has been
furnished to this Court and any other such cases/proceedings which may not have
been brought to the notice of this Court, shall stand revived and relegated to
the status of pre-5th of October, 2007 position.
173. All the concerned Courts including the Trial,
the Appellate and the Revisional Courts are ordered to summon the persons
accused in such cases and then to proceed in the respective matters in
accordance with law from the stage from where such proceedings had been brought
to an end in pursuance of the above provisions of the NRO, 2007.
174. The Federal Government, all the Provincial
Governments and all relevant and competent authorities including the Prosecutor
General of NAB, the Special Prosecutors in various Accountability Courts, the
Prosecutors General in the four Provinces and other officers or officials
involved in the prosecution of criminal offenders are directed to offer every
possible assistance required by the competent Courts in the said connection.
175. Similarly all cases which were under
investigation or pending enquiries and which had either been withdrawn or where
the investigations or enquiries had been terminated on account of the NRO, 2007
shall also stand revived and the relevant and competent authorities shall
proceed in the said matters in accordance with law.
176. It may be clarified that any judgment,
conviction or sentence recorded under Section 31-A of the NAO, 1999 shall hold
the field subject to law and since the NRO, 2007 stands declared as void ab
initio, therefore, any benefit derived by any person in pursuance of Section 6
thereof is also declared never to have legally accrued to any such person and
consequently of no legal effect.
177. Since in view of the provisions of Article
100(3) of the Constitution, the Attorney General for Pakistan could not have
suffered any act not assigned to him by the Federal Government or not
authorized by the said Government and since no order or authority had been
shown to us under which the then learned Attorney General namely Malik Muhammad
Qayyum had been authorized to address communications to various
authorities/Courts in foreign countries including Switzerland, therefore, such
communications addressed by him withdrawing the requests for mutual legal
assistance or abandoning the status of a civil party in such proceedings abroad
or which had culminated in the termination of proceedings before the competent
fora in Switzerland or other countries or in abandonment of the claim of the
Government of Pakistan to huge amounts of allegedly laundered moneys, are
declared to be unauthorized, unconstitutional and illegal acts of the said
Malik Muhammad Qayyum.
178. Since the NRO, 2007 stands declared void ab
initio, therefore, any actions taken or suffered under the said law are also
non est in law and since the communications addressed by Malik Muhammad Qayyum
to various foreign fora/ authorities/Courts withdrawing the requests earlier
made by the Government of Pakistan for mutual legal assistance; surrendering
the status of civil party; abandoning the claims to the allegedly laundered
moneys lying in foreign countries including Switzerland, have also been
declared by us to be unauthorized and illegal communications and consequently
of no legal effect, therefore, it is declared that the initial requests for
mutual legal assistance; securing the status of civil party and the claims lodged
to the allegedly laundered moneys lying in foreign countries including
Switzerland are declared never to have been withdrawn. Therefore the Federal
Government and other concerned authorities are ordered to take immediate steps
to seek revival of the said requests, claims and status.
179. In view of the above noticed conduct of Malik
Muhammad Qayyum, the then learned Attorney General for Pakistan in addressing
unauthorized communications which had resulted in unlawful abandonment of
claims of the Government of Pakistan, inter alia, to huge amounts of the
allegedly laundered moneys lying in foreign countries including Switzerland,
the Federal Government and all other competent authorities are directed to
proceed against the said Malik Muhammad Qayyum in accordance with law in the
said connection.
180. We place on record our displeasure about the
conduct and lack of proper and honest assistance and cooperation on the part of
the Chairman of the NAB, the Prosecutor General of the NAB and of the Additional
Prosecutor General of the NAB, namely, Mr. Abdul Baseer Qureshi in this case.
Consequently, it is not possible for us to trust them with proper and diligent
pursuit of the cases falling within their respective spheres of operation. It
is therefore, suggested that the Federal Government may make fresh appointments
against the said posts of persons possessing high degree of competence and
impeccable integrity in terms of Section 6 of the NAO, 1999 as also in terms of
the observations of this Court made in Khan Asfandyar Wali's case (PLD 2001 SC
607). However, till such fresh appointments are so made, the present incumbents
may continue to discharge their obligations strictly in accordance with law.
They shall, however, transmit periodical reports of the actions taken by them
to the Monitoring Cell of this Court which is being established through the
succeeding parts of this judgment.
181. A Monitoring Cell shall be established in the
Supreme Court of Pakistan comprising of the Chief Justice of Pakistan or a
Judge of the Supreme Court to be nominated by him to monitor the progress and
the proceedings in respect of Court cases (explanation added in detailed
reasons) in the above noticed and other cases under the NAO, 1999. Likewise
similar Monitoring Cells shall be set up in the High Courts of all the
Provinces comprising the Chief Justice of the respective Province or Judges of
the concerned High Courts to be nominated by them to monitor the progress and
the proceedings in respect of Court cases (explanation added in detailed
reasons) in which the accused persons had been acquitted or discharged under
Section 2 of the NRO, 2007.
182. The Secretary of the Law Division, Government
of Pakistan, is directed to take immediate steps to increase the number of
Accountability Courts to ensure expeditious disposal of cases.
183. Hereinabove are the reasons of our short
order dated 16th December 2009.
Chief
Justice.
Judge (1) Judge (2) Judge
(3)
Judge (4) Judge (5) Judge
(6)
Judge (7) Judge (8) Judge
(10)
Judge (11) Judge (12) Judge (13)
Judge (14) Judge (15) Judge (16)
Judge
(17)
Islamabad
16.12.2009
Irshad
/*
APPROVED
FOR REPORTING.
Ch.
Ijaz Ahmed, J. I have had the benefit and privilege of going through the
judgment recorded by Mr. Justice Iftikhar Muhammad Chaudhry, Hon'ble Chief
Justice of Pakistan and generally agree therewith. In view of the importance of
the matter, I deem it prudent to add few words in support thereto. The facts
and contentions have already been narrated in detail by the Hon'ble Chief Justice
of Pakistan, therefore, reiteration thereof are not required.
2. Legislative history/past events are relevant
for interpreting constitutional
provisions on the
principle of historical modalities. The Muslims had ruled
sub continent for a considerable period. During the period of the Muslim rule,
sub continent was rich in all spheres of life. It is interesting to note that
rate of literacy was very high above 90 percent as highlighted by Frishta while
writing history of the sub continent. Even otherwise sub continent was known as
the richest part of the world. The western countries also had belief that sub
continent was rich qua all types of resources such as minerals, wheat, rice etc
as the land of the sub continent was very fertile as compared to other parts of
the world. Sub continent was almost surrounded by mountains and large open area
due to which according to the western countries this area is known as
"Soonay ke Chiria". The kingdom of Britain and France had entered in
sub continent for the purpose of business.
3. After death of Aurangzeb the system of
justice, established by the Muslims, was totally dis-regarded and Muslims were
fighting with each other for securing power. This was the time when the East
India Company had taken benefit of its experience and ultimately had become
rulers of the sub continent. It is pertinent to mention that Lord Macaulay had
made speech at the floor of the British Parliament on 2nd February, 1835 which
is to the following effect:--
"I
have traveled across the length and breadth of India and I have not seen one
person who is a beggar, who is a thief. Such wealth I have seen in this
country, such high moral values, people of such caliber, that I do not think we
would ever conquer this country, unless we break the very backbone of this
nation, which is her spiritual and cultural heritage, and, therefore, I propose
that we replace her old and ancient education system, her culture, for if the
Indians think that all that is foreign and English is good and greater than their
own, they will lose their self-esteem, their native self-culture and they will
become what we want them, a truly dominated nation".
(a) HISTORY OF CONCEPT OF EQUALITY BEFORE
LAW.
4. Holy Quran says; "if Ye Judge between
mankind, that Ye Judge justly". The Holy Prophet (PBUH) proclaimed;
"people are all equal as the teeth of a comb".
5. The concept was introduced by Islam and
further highlighted, implemented and explained by the Holy Prophet (PBUH). See
Pakistan Petroleum Workers Union's case (1991 CLC 13). The relevant
observations are as follows:--
"This
Article guarantees to all citizens of Pakistan equality before law and equal
protection of law. These rights guaranteed by the Constitution are now
universally applied and practised in all the civilized world. It finds
recognition in Universal Declaration of Human Rights and the Covenant on Human
Rights, 1950. An examination of Constitutions of various countries will show
that the written Constitutions have invariably used the expression "equality
before law" but "equal protection of law" has not so commonly
been used. According to the jurists term "equal protection of law"
finds it origin in the 14th Amendment of the American Constitution. In my
humble view the concept of both terms "equality before law" and
"equal protection of law" is not of so recent origin in jur
isprudence as described by various authors and jurists. From a comparative
study of the legal history and jurisprudence we find that the concept of
equality before law and principles of "equal protection of the law"
were for the first time given and firmly practised by the Holy Prophet (be
peace on him). Therefore, it can be traced as far back as 1400 years, i.e. much
before the Magna Carta, 14th Amendment of American Constitution, Declaration of
Human Rights and the theory of Rule of Law as enunciated by the Western
Jurists. The Last Sermon of the Holy Prophet (be peace on him) is a landmark in
the history of mankind which recognizes the inalienable Rights of a man
conferred by Islam which are now known as Fundamental Rights. The following
extracts from the farewell Sermon can be reproduced for reference:--
"........O
Ye people, Allah says: O people We created you from one male and one female and
made you into tribes and nations, so as to be known to one another. Verily in
the sight of Allah, the most honoured amongst you is the one who is most
God-fearing. There is no superiority for an Arab over a non-Arab and for a
non-Arab over an Arab, nor for the white over the black nor for the black over
the while except in Godconsciousness."
"All
mankind is the progeny of Adam and Adam was fashioned out of clay.
Behold!
Every claim of privilege whether that of blood or property, is under my heels
except that of the custody of the Ka'ba and supplying of water to the
pilgrims.............."
"Behold!
All practices of the days of ignorance are now under my feet. The blood
revenges of the days of ignorance are remitted........All interest and usurious
dues accruing from the times of ignorance stand wiped out......."
"O
people, verily your blood, your property and your honour are sacred and
inviolable until you appear before your Lord, as the sacred inviolability of
this day of yours, this month of yours and this very town (of yours). Verily
you will soon meet your Lord and you will be held answerable for your
actions."
6. The extract from last Sermon of the Holy
Prophet (PBUH) is landmark in the history of man kind which is reproduced
hereunder:--
"12.
The concept of equality amongst the mankind was introduced for the first time
by Islam. The Holy Prophet (peace be upon him) preached and practised equality
throughout the life and sermon deliveed on the occasion of last Haj performed
by the Holy Prophet (peace be upon him) is the first landmark in the history of
mankind. It was clear for all times to come that there is no difference amongst
the individuals on the basis of race, colour and territory. The relevant
portion reads as under:--
16.
The Holy Prophet (peace be upon him) said in his address at the Hajjat-ul-Wida,
the last Haj, performed by him, that .........O! people, hear me, your Lord is
one and your father is one. No Arab has any superiority over a non-Arab, nor
any non-Arab over an Arab nor any white man over a black man, nor a black man
over a white man save in respect of piety and fear of Allah'."
7. The source of insertion of Article 25 is on
the basis of the aforesaid history highlighted hereinabove. Similarly our
constitution also ensures dignity of every individual as is evident from
atticle 14 of the constitution. See:--
(i) Francis Corolie Mullin's case (AIR
1981 SC 746)
(ii) A.K. Roys' case (AIR 1982 SC 710)
(iii) Bandhu Mukti Moracha's case (1984 SC
802)
(iv) Bachan Singh's case (AIR 1982 SC 1235)
(v) Weereja Chaudhry's case (AIR 1984 SC
1099)
(vi) Suo Motu Constitutional Petition:
(1994 SCMR 1028)
8. It is a settled maxim that the very concept
of fundamental right is that it being a right guaranteed by the Constitution
cannot be taken away by the law. See Jibendra Kshore's case (PLD 1957 SC 9).
9. It is settled principle of law that where a
statute is ex facie discriminatory but is also capable of being administered in
a discriminatory manner and it appears that it has actually being administered
to the detriments of a particular class in particular, unjust and oppressive
manner then it has been void ab initio since its inception. See Waris Mehi's
case (PLD 1957 SC (Pak) 157), Benazir's case (PLD 1988 SC 416) and I.A. Sherwani's case (1991 SCMR
1041) and Azizullah Memon's case (PLD 1993 SC 341 at 358). In Azizullah Memon's
case vires of the criminal law ordinance were attacked on the ground that they
were in conflict with fundamental rights guaranteeing equality before law,
equal protection of law etc. Saleem Akhtar, J (as then he was) had discussed
all previous precedents rendered by superior Courts. The relevant observatio n
is as follows:--
"(i) that equal protection of law does not
envisage that every citizen is to be treated alike in all circumstances, but it
contemplates that persons similarly situated or similarly placed are to be
treated alike;
(ii) that reasonable classification is
permissible but it must be founded on reasonable distinction or reasonable
basis;
(iii) that different laws can validly be
enacted for different sexes, persons in different age groups, persons having
different financial standings, and persons accused of heinous crimes;
(iv) that no standard of universal
application to test reasonableness of a classification can be laid down as what
may be reasonable classification in a particular set of circumstances, may be
unreasonable in the other set of circumstances;
(v) that a law applying to one person or
one class of persons may be constitutionally valid if there is sufficient basis
or reason for it, but a classification which is arbitrary and is not founded on
any rational basis is no classification as to warrant its exclusion from the
mischief of Article 25;
(vi) that equal protection of law means
that all persons equally placed be treated alike both in privileges conferred
and liabilities imposed;
(vii) that in order to make a classification
reasonable, it should be based -----
(a) on an intelligible differentia which
distinguishes persons or things that are grouped together from those who have
been left out;
(b) that the differentia must have
rational nexus to the object sought to be achieved by such
classification."
(b) CONCEPT OF ISLAM AS UNDERSTOOD BY
DEWAN
"This
judgment cannot be completed without having a glimpse of Islamic Legal System.
Mr. Vijay Kumar Dewan in his Book Prosecuting System in India (Practice and
Procedure) discussed the legal system of Islam in the following terms:--
"As
like the Hindu law the concept of Muslim Law also held that the king derived
his authority from Qura'n and the ruler was subordinate to law the main source
of Islamic law of Muslim Law i.e. Shar in Qura'n and Sunnah or Hadis. The
Prophet was considered to be the best interpreter of Qur'an. On all matters on
which Qura'n was silent Sunnah or Hadis was regarded as authority. Because of
divergent views taken on various provisions of Qura'n by eminent Muslim
Jurists, four well defined braches or schools of Muslim law came to be
recognized by different sections of the Muslims. Out of the four the Hanafi
School founded by Abu Hanifa (699-767 A.D.) was the most popular in India, few
in India however, followed the Shafi School founded by Muhammad Ibn Idris
Ash-Shafi (767-820 A.D.). The other two i.e. the Maliki School founded by Malik
Ibn Annas (713-797 A.D.) and the Hanbali School based on the teachings of Ahmad
Ibn Hanbal (780-855 A.D.) were not popular in India."
The
author further classified criminal offences under the Islamic Penal law as
follows:--
(i) Offences against God.
(ii) Offences against the State, and
(iii) Crimes against private individuals.
10. The same author discussed the Islamic Justice
in the following terms:--
"...
The works of judiciary however, worked systematically in view of considerable
importance attached by Akbar and his successors and Akbar had definite zeal to
administer justice impartially and he had once remarked. If I were guilty of an
unjust act I would rise in judgment against myself. What shall I say then of my
sons, my kindred and others. (In this regard reference may be made to the book
History and Culture, Vol. 7, pages 547 to 552, Aini Akbari Vol. III p.434;
Akbarnama, Vol.III and Storia do mogar, Vol. I, p. 167) Akbar used to devote
some time every morning for judicial works at the Jharoka Darshan and Thursday
was exclusively kept for judicial work, wherein the top officers such as Chief
Qazi, Mufties and other law dignitaries and Kotwal of the town used to
participate. He used to decide cases after hearing and ascertaining the law
from the jurists. Abdul Fazal the Chronicile Writer of Akbar's Court has given
an account of the Royal Court--
`He (Akbar) opens the gates of
justice and holds an open Court. In the investigation in to the cases of the
oppressed, he placed no reliance on testimony or on the oaths, which are
resources of the crafty, but draws his conclusions from the contradictions in
the narratives, the physiognomy, and sublime resources and noble conjectures.
Truth takes her place in this centre. In this work he spends not less than one
and half pahars (i.e. about five hours)'.
Jahangir
followed the ideals of his father. He also in addition to deciding cases every
morning had set apart Tuesday exclusively for judicial work. Shahjahan also
upheld the maxim of his father that justice must be enforced. Aurangzeb was
also very keen in administrating impartial justice except in cases which
concerned the interest of prestige of Islam the arrangement of transacting
judicial business personally by the sovereign was not disturbed even when the
Emperor happened to be on tours on when he was engaged in a military
expedition. The Emperor decided both civil and criminal cases and his Court was
not only the highest Court of appeal, but also sometimes a Court of first
instance. Sometimes the Emperor used to appoint a commission of inquiry and
issue instructions to decide cases on the basis of facts revealed in the
investigation on the spot. Usually the cases deserving capital punishment were
decided by the King himself. Such cases even if tried by Governors or other
authorities, were forwarded to the capital for the Kings' final order. The
standing instructions were that no one was to be executed until the Emperor had
given his orders for the third time."
Keeping
in view the historical background of the creation of the country beginning with
the struggle started by late Sultan Haider Ali of Maysor and his noble, brave
and courageous son Tipu Sultan Shaheed who gave his precious life including
life of his two beloved sons who fought for freedom, and ultimately achieved
the goal of freedom under dynamic leadership of Quaid-e-Azam Muhammad Ali
Jinnah, who was motivated by the spirit of great national poet Dr. Allama
Muhammad Iqbal; and sacrifices made by millions of Muslims of this
subcontinent, we must remember that this freedom was formally recognized by the
imperial power by passing the Independence Act, 1947 which gave birth to our
esteemed country. Before coming to final conclusion, let me quote that once
late Mian Muhammad Mushtaq Gormani met Lord Wavel who during discussion made
some remarks about the founder of Pakistan which are very relevant to reproduce
here for the purpose of building national character. Lord Wavel said:--
"He
(Founder of Pakistan) is not only honest but he is intellectually honest."
11. Once the rulers of Muslims had deviated from
the said principle of providing justice to the people then Great Britain who
had entered initially through East India Company for the purpose of commercial
business, had got the opportunity to get the benefit of said situation and had
been able to take over the power and continued till 1947. Muslims had launched
freedom movement in 1857 but could not succeed due to their internal
contradictions and on account of non cooperation of the Hindu community with
the Muslims.
12. Subsequently, British established its rule in
the sub-continent with active support and connivance of Hindus and few Muslim
phonies. Bal Gangadhar Tilak, first popular independence fighter after war of
Independence of 1857 was convicted and sentenced by the trial Court where
Founder of Pakistan appeared as his counsel. Interestingly, Bal Gangadhar Tilak
again engaged Quaid-e-Azam at the appellate stage in the High Court where
Quaide-Azam for the first time distinguished between the offence against the
state and the offence against public functionaries on ground of which appeal
was accepted. See Bal Gangadhar Tilak V. Emperor (AIR 1916 Bombay 9). This
episode of Muslim counsel of a Hindu convict gave birth to a little lived
assumption that both the nation can together toil hard for self rule. The
founder of Pakistan did not want division of the sub continent but on account
of behaviour of the Hindu community, he had demanded a separate homeland on the
basis of two nations theory. See Benazir Bhutto's case (PLD 1988 SC 416).
13. It is settled maxim that nations can achieve
goal under dynamic leadership and the nations who had a vision to see ahead as
is evident from the speech of Lord Macaulay on the floor of the house and also
from the character of the founder of Pakistan alongwith his vision.
14. The founder of Pakistan was nominated as
member of legislative assembly and participated in the proceedings of
Legislative Council qua bill relating to Criminal Law (Emergency Powers) Bill
on 14th March, 1919 but according to his conscience he did not support
government and tendered his resignation from the membership of council as a
protest against passing of the Bill and the manner in which it was passed.
(c) AFTER CREATION OF COUNTRY.
15. The constituent assembly had promulgated
objective resolution in 1949. Ultimately it was incorporated in preamble of the
constitution of Islamic Republic of Pakistan and thereafter it was made
substantive part of the constitution by adding article 2-A. It is evident from
the history of human being that leader/nation would only progress on the basis
of its good character. Once an individual leader or nation had deviated from
this then destruction is the result. The best example in the recent history of
human society is of China when this nation with its birth two years after
Pakistan, has attained a position of super power (an economic joint and a
permanent member of the security council).
16.
The word "Ameen" difined in the following books which is to the
following effect:
1 The Concise Encyclopedia of Islam
at page 41:
"al-Amin. A name of the
Prophet, given to him by the Quraysh before the revelation of Islam, meaning
the `Trustworthy One'. The word is used as a title for an organization official
in a position of trust, such as the treasurer of a charitable organization, a
guild, and so forth".
2. Urdu Daera-e-Maharafil Islamia at
page 279-80.
3. The Encyclopaedia of Islam (New
Edition) Vol.1 at 436-37
"Amin, `safe', `secure'; in
this and the more frequent from amin (rarely ammin, rejected by grammarians) it
is used like amen and (Syriac) amin with Jews and Christians as a confirmation
or corroboration of prayers, in the meaning `answer Thou' or `so be it' see
examples in al-Mubarrad, al Kamil, 577 note 6; Ibn al-Diazari, al-Nashr, ii,
Cairo 1345, 442 f., 447. Its efficacy is enhanced at especially pious prayers,
e.g. those said at the Ka'ba or those said for the welfare of other Muslims,
when also the angels are said to say amin. Especially it is said after sura i,
without being part of the sura. According to a hadith the prophet learned it
from Gabriel when he ended that sura, and Bilal asked the prophet not to
forestall him with it. At the salat the imam says it loudly or, according to
others, faintly after the fatiha, and the congregation repeats it. It is called
God's seal (taba or khatam) on the believers, because it prevents, evil.
"Amin" (Ar. Pl.
umana), `trustworthy, in whom one can place ones's trust', whence al-Amin, with
the article, as an epithet of Muhammad in his youth. As a noun, it means `he to
whom something is entrusted, oversear, administrator': e.g. Amin al Wahy, `he
who is entrusted with the revelation', i.e. the angle Gabriel. The word also
frequently occurs in titles, e.g. amin al-Dawla (e.g. Ibn al-Tilmidh others),
Amin al Din (e.g. Yakut), Amin al-Mulk, Amin al-Saltana".
"MORALITY".
Words
and Phrases, Permanent Edition Volume 27A:
"Morality"
The words "morality" and "character" may have the same
meaning when standing alone, but when used together the word "moral"
defines the kind of character required by the rule, that attorney must be of
good moral character. When so sued, the word "moral" is in
contradistinction, to the word "immoral". Warkentin v. Klein-watcher,
27 P.2nd 160, 166 Okl. 218."
"Morality"
The word "morality" is not used in any narrow sense, but in a general
sense, such as the law of conscience, the aggregate of those rules and
principles of ethics which relate to upright behavior and right conduct of
elected representatives and prescribe the standards to which their action and in
particular those who are Muslims, who are guided by the Holy Qur'an and Sunnah
should conform, in their dealings with each other or with institutions or the
State". M. Saifullah Khan Vs. M. Afzal. :PLD1982 Lah.77.
(d) CONSTITUTION BE READ AS AN ORGANIC WHOLE
17. The body of human being consists of 99
elements with proportionate qua each body of human being. Once the imbalance in
the said elements occur then the body as a whole would be disturbed and
affected. The body of human being otherwise consists of two parts. Body
alongwith the elements and "Rooh- spirit". All of us have an
experience that once the rooh/spirit is missing from the body then body would
become dead automatically that is why the body of human being is a compound of
aforesaid elements and spirit. The scheme of the Constitution of Pakistan is
based on rights and obligations wherein chapter 1 contains fundamental rights
and principles of policy in chapter 2. According to my understanding every
chapter and every article has its own significance but chapter 1 & 2 had a
unique significance. Once these two chapters be held in abeyance as part of the
Constitution or to do the things in violation of these two chapters by any
organ of the state then according to me constitution would be dead organ that
is why chapter 1 and 2 be called as flowers and beauty of the Constitution. The
preamble of the Constitution has its own significance which shows the will of
the people to frame the constitution and passed their lives within the four
corners and that is why it is settled principle of law that preamble is the key
to understand the constitution. This is the first door to open the book which
prescribes its values, comments, obligations, rights and commitments. There is
no doubt that no provision of the Constitution or law be struck down in case it
is framed in violation of preamble of the Constitution but
at the same
time it is
very important that
while framing the law or taking the action every organ/authority must
keep in its mind the preamble of the constitution which is the command of the
forefathers and the nation emerged from the document of Objectives Resolution
passed by the Constituent Assembly in 1949. Our Constitution is based on
trichotomy consisting of following basic pillars of the State:--
(a) Legislature to frame laws.
(b) Executive to implement laws.
(c) The Judiciary to interpret the laws
18. This is a very beautiful scheme and defined
areas of each and every organ to keep the balance. Once this balance is
disturbed then the document is dead. Article 7 of the Constitution prescribes
all elements and pillars of the State for the purpose of imposing cess and tax,
legislature and executive. The legislature had specifically not mentioned the
judiciary in article 7 as the judiciary is duty bound to maintain the balance
between all the organs, therefore, judiciary is mentioned in part VII under the
heading of "Judicature" vide Article 175. It is settled proposition
of law that other two organs i.e. legislature and executive have no authority
whatsoever to usurp or to take role of the judiciary as it is in violation of
the salient features of the constitution which cannot be changed by any canon
of justice as laid down by this Court in various pronouncements. Se Zyed Zafar
Ali Shah's case (PLD 2000 SC 869), Mehmood Khan Achakzai's case (PLD 1997 SC
426) and Farooq Ahmed Khan Leghari's case (PLD 1999 SC 57). It is pertinent to
mention here that Supreme Court of India had taken this view which is before us
that basic features of the Constitution could not be changed but unfortunately
we could not take that stand earlier except the aforesaid judgments that is why
the country since creation on 14-8-1947 till to date most of the time there was
no democratic government around for about 37 years. Now it is high time that
each and every organ must resolve to save the nation and country to remain
within their spheres and discharge their duties in accordance with law. Article
4 of our Constitution compels every body to act in accordance with law whereas
article 5 of the Constitution cast duty upon each and every organ/person to
obey the command of the Constitution. Similarly Articles 189 and 190 of the
constitution has prescribed duty to every organ to implement judgments of the
Courts.
19. It is pertinent to mention here that 3rd
organ is also duty bound to remain within its sphere in terms of article 4 of
the Constitution. The provisions of the impugned ordinance are directly in
conflict with the aforesaid provisions of the Constitution. In fact through
the impugned ordinance,
the salient features
of the constitution were changed in violation of the aforesaid judgments
and command of the various provisions of the Constitution.
(e) POWER OF PRESIDENT TO PROMULGATE
ORDINANCE.
20. It is pertinent to mention here that
President had power to frame ordinance under Article 89(1) subject to certain
conditions which are as follows:--
(b) National Assembly is not in session.
(c) President if satisfies that
circumstances exist which render it necessary to take immediate action make and
promulgate the ordinance as the circumstances may require.
21. The President had the same power as of the
National Assembly to frame the laws, that is why principle of check and balance
was incorporated in article 89 sub article 2 that life of the ordinance would
be four months and the parliament had power even to pass resolution
disapproving the said ordinance by the assembly that it would automatically
stand repealed after expiry of four months from its promulgation or before the
expiration in case of resolution of its disapproval is passed. The president
had also power to withdraw the ordinance at any time. The President had to
promulgate the ordinance at the advice of the cabinet. This fact brings the
case in the area that it was the satisfaction of the Parliament under Article
89(1) as is evident from the summaries produced before the Court by Acting
Attorney General for Pakistan. It was merely mentioned as a `draft ordinance'
and nothing else. The preamble of the ordinance also does not reveal that any
satisfaction was made before promulgating of the ordinance. It is settled law
that when a thing is to be done in a particular manner, it must be done in that
manner and not otherwise. The said Ordinance was promulgated even in violation
of Article 89. The scheme of the Constitution as mentioned above in our
Constitution is based on trichotomy but in case we read the constitution as a
whole then it automatically emerges that there is 4th pillar i.e. people of
Pakistan for whose benefit every law be framed who are the real sovereign
becausethe people of Pakistan had chosen the representatives of National
Assembly and provincial assemblies and Senate. The Ordinance has not been
framed for the welfare of the people of Pakistan. It had been framed by the
then President of Pakistan for his benefit and benefit of the other privileged
class. It is very difficult for me to imagine that any written or unwritten
constitution can allow framing law against the welfare of people of the country.
Similarly the President had a power to pardon by virtue of Article 45 of the
Constitution but had no right whatsoever to give clean chit or to withdraw the
case of the complainant whose near relations
were murdered. The
whole ordinance and
preamble to Section 7 is in violation of various provisions of the
constitution mentioned hereinabove.
(f) PRINCIPLE OF CHECK & BALANCE.
Hazrat
Abu Bakr Siddique (RA), First Caliph of Islam in his first address had said
that in case he violated any injunction of Islam, then people should guide him
to be on right path. And there rose a Bedouin sitting in the audience who
remarked that in case he violated the principles of Islam, then they would
( ) set him on
right path (Nazay ki nook par)
The
second Caliph Hazrat Umar Farooq (RA) had a shirt (Choga) on his body. He was
asked to explain regarding the cloth of that shirt because the cloth of shirt
according to his share ~~~ was much less than the body of Caliph. The Caliph
replied that he had used the share of his son for making his own shirt. This is
the type of accountability which we have to follow to save the nation to put on
a right path.
(g) IMPUGNED ORDINANCE VIS-AVIS
FUNDAMENTAL RIGHTS.
22. The word corruption has been defined as it
has diverse meanings and far reaching effects on society, government and
people. In other words it has always been used in a sense which is completely
opposite to honesty, orderly and actions performed according to law. A person
working corruptly acts inconsistent with the official duty, the rights of
others and the law governing it with intention to obtain an improbable
advantage for self or some one else.
23. The word corruption is well known to our
nation as National Assembly and Provincial Assemblies were dissolved by the
President and Governors under Article 58(2)(b) and article 112 of the
constitution respectively as these articles were part of the constitution which
were introduced through 8th amendment. See:--
(i) Khalid Malik's case (PLD 1991
Karachi 1)
(ii) Khawaja Ahmed Tariq Rahim'ds caxse
(PLD 1990 Lah. 505)
(iii) Khawaja Ahmed Tariq Rahim's case (PLD
1991 Lah. 78)
(iv) Khawaja ahmed Tariq Rahim's case (PLD
1992 SC 646)
(v) Aftab Ahmed Khan sherpao Case (PLD
1992 SC 723)
(vi) Mian Muhammad Nawaz Sharif's case (PLD
1993 SC 473)
(vii) Benazir Bhutto's case (PLD 1998 SC 388)
24. Our Constitution clearly envisages that
sovereignty over the entire universe belongs to Almighty Allah alone and the
authority to be exercised by the people of Pakistan within the limits
prescribed by Him as a sacred trust. See Shahid Nabi Malik's case (PLD 1997 SC
32).
25. The word corruption is also defined by this
Court in Mian Muhammad Nawaz Sharif's case (PLD 1993 SC 473 at 837-838) which
is to the following effect:--
"The
word `corruption' has not been defined by any law, but it has diverse meaning
and far-reaching effects on society, Government and the people. It covers a
wide field and can apply to any co lour of influence, to any office, any
institution, any forum or public. A person working corruptly acts inconsistent
with the official duty, the rights of others and the law governing it with
intention to obtain an improbable advantage for himself or someone else.
Dealing with corruption in Khalid Malik's case I had observed as follows:--
"This
bribe culture has plagued the society to this extent that it has become a way
of life. In Anatulay VIII (1988) 2 SCC 602 where Abdul Rehman Antulay, Chief
Minister of Maharashtra was prosecuted for corruption Sabyasachi Mukharji, J.
laments as follows:--
"Values
in public life and perspective of values in public live, have undergone serious
changes and erosion during the last few decades. What was unheard before is
commonplace today.
A new
value orientation is being undergone in our life and culture. We are at
threshold of the cross-roads of values. It is, for the sovereign people of this
country to settle these conflicts yet the Courts have a vital role to play in
these matters.
The
degeneration in all walks of life emanates, from corruption of power and
corruption of liberty. Corruption breeds corruption. `Corruption of liberty'
leads to liberty of corruption'."
Corruption
and bribery adversely affect the social, moral and political life of the
nation. In society rampant with corruption peoples lose faith in the integrity
of public administration. In India in 1964 Committee on the Prevention of
Corruption known as Sanathanam Committee observed as follows:--
"It
was represented to us corruption has increased to such an extent that people
have started losing faith in the integrity of public administration. We had
heard from all sides that corruption, in recent years, spread even to those
levels of administration from which it was conspicuously absent in the past. We
wish we could confidently and without reservation assert that at the political
level Ministers, legislators, party officials were free from the malady. The
general impressions are unfair and exaggerated. But they very fact that such
impressions are there causes damage to social fabric.'
The
Committee also observed that there is a popular belief of corruption among all
classes and strata which `testifies not merely to the fact of corruption but
its spread'. Such belief has a social impact causing' damage to social fabric.'
The anti-corruption and penal laws have remained ineffective due to their
inherent defect in adequately meeting the fast multitudinous growth of
corruption and bribery. Corruption in high places has remained unearthed
leading to a popular belief that immunity is attached to them. To combat
corruption the whole process and procedure will have to be made effective and
institutionalized."
26. In other words written constitution of county
is a document which defines the regular form or system of the government,
containing the rules that directly or indirectly affect distribution or
exercise of the sovereign power of the state and it is thus mainly concerned
with creation of three organs of State and the distribution of authority of the
government among them and the definition of their mutual relation. We must
remember that a constitution is not just a document but a living frame work for
the government of the people and its successful working depends upon the
democratic spirit underlying it being respected in letter and spirit. Whenever
the spirit of the Constitution was violated, the result was chaos and this fact
finds support from following extracts of Shahabnama by Qudrat Ullah Shahab:
27. The raison d'etre of any constitution is to
constitute a country and it is the document which contemplates the grundnorms
of State and its laws. Aim of all jurisprudence is "public good" or
"Welfare of the people". No Law can be wholesome and no state can be
a welfare State unless the principles of amr bil maruf wan hi anil munkar is
strictly adhered to. God Almighty has created mankind and He loves those who
love its creation and strives for its
welfare. Our forefathers
were conscious of
this principle and,
therefore, the objective resolution was passed. The preamble, containing
objective resolution, of the Constitution of Islamic Republic of Pakistan, 1973
cast a sacred duty on the chosen representative of the people and, that is, to
exercise powers and authority to run the State in such manner which promotes:
(i) principles of democracy, freedom, equality, tolerance and social justice,
as enunciated by Islam; (ii) Muslim to order their lives in the individual and
collective spheres in accordance with the teaching and requirements of Islam as
set out in the Holy Quran and Sunnah; (iii) protection of minorities and
backward and depressed classes; (iv) autonomy of the units of Federation; (v)
Fundamental Rights, including equality of status, of opportunity and before
law, social, economic and political justice, and freedom of thought,
expression, believe, faith, worship and association, subject to law and public
morality; (vi) independence of judiciary; (vii) integrity of the territories of
the Federation, its independence and all its rights, including its sovereign
rights on land, sea and air, in fact the above said are the grundnorms and
limitations of each organ of the State.
28. Validity of any law can be tested by its
result or fruit. If a law evokes healthy feelings/atmosphere, then it is valid
otherwise it is void. An illegal morsel gives birth to evils. Similarly any
legislation which hurts the welfare of the people should not be allowed to
stand among the people. In this regard, I may quote the following couplet from
Molana Roumi's Masnevy:--
29. From the legal morsel which born knowledge,
love and tenderness. If you see that jealousy, deception, ignorance, negligence
is born from a morsel, know that it was unlawful. The morsel is a seed and
thoughts are its fruit. The morsel is the seed and thoughts are its pearls.
30. In view of above perspective if we allow to
hide/swallow corruption and corrupt practices, then obviously it would not be
conducive for the people of Pakistan and for the welfare of the State. The
people of Pakistan may prosper and attain their rightful and honoured place
amongst the nations of the world and make their full contribution towards international
peace and progress and happiness
of humanity if grundnorms stated in preamble are strictly followed. In this
view of the matter, the national Reconcilliation Ordinance, 2007 being an
illegal morsel is declared a legislation
viod ab-initio.
31. However, taking advantage of brevity, I
simply hold that the National Reconciliation Ordinance, 2007 is not valid and
in this regard, I endorse the view of our celebrated poet Sagar Siddiqui, which
he expressed in this following poetic couplet:--
32. For the purpose of maintaining balance
between each and every organ of the State, I conclude the note and suggest all
organs to obey the command of the Constitution from core of their hearts which
is possible on working as per saying of Wasif Ali Wasif (Philosophical Islamic
Writer) and Moulana Roomi respectively which are to the following effect:
(Justice Ch. Ijaz Ahmed)
Jawwad
S. Khawaja, J.--I have gone through the detailed reasons recorded by Hon'ble
the Chief Justice, for the short order announced on 16.12.2009. These reasons
exhaustively examine the arguments advanced before us by learned counsel for
the parties and by the amicii curiae who ably assisted us in these matters.
While agreeing with the reasoning of Hon'ble the Chief Justice, I would like to
add this note to emphasize aspects of the case which I consider to be of
special relevance when examined in the context of the constitutional history of
Pakistan.
2. At the very outset it must be said, without
sounding extravagant, that the past three years in the history of Pakistan have
been momentous, and can be accorded the same historical significance as the
events of 1947 when the country was created and those of 1971 when it was
dismembered. It is with this sense of the nation's past that we find ourselves
called upon to understand and play the role envisaged for the Supreme Court by
the Constitution. The Court has endeavoured to uphold the Constitution and has
stood up to unconstitutional forces bent upon undermining it. It is in this
backdrop that these petitions have been heard and decided.
3. It is to be noted that though there was no
significant opposition to these petitions and even though the Federal
Government did not defend the NRO, the important constitutional issues raised
through these petitions were thrashed out to ensure that there is adherence to
the provisions and norms of the Constitution, not only for the sake of deciding
these cases but also to lay down precedent for the institutions of the State
and its functionaries in terms of Article 189 of the Constitution.
4. I would also like to add that there can be no
possible objection to the avowed objectives of the NRO as set out in its
preamble, viz. promotion of national reconciliation and removal of the vestiges
of political vendetta and victimization. These objectives, however, must be
achieved through means which are permitted by the Constitution. The Court while
exercising the judicial function entrusted to it by the Constitution is
constrained by the Constitution and must, therefore, perform its duty of resolving matters coming before it,
in accordance with the dictates of the Constitution and the laws made
thereunder. If the Court veers from this course charted for it and attempts to
become the arbiter of what is good or bad for the people, it will inevitably
enter the minefield of doctrines such as the `law' of necessity or salus populi
suprema lex, with the same disastrous consequences which are a matter of
historical record. This Court has, in its judgment in the case of the Sindh
High Court Bar Association Vs. Federation of Pakistan (PLD 2009 SC 879)
emphatically held that it will not deviate from strict adherence to the law and
the Constitution. Decisions as to what is good or bad for the people must be
left to the elected representatives of the people, subject only to the limits
imposed by the Constitution.
5. It has now been firmly and unequivocally
settled that the Court cannot and should not base its decisions on expediency
or on consideration of the consequences which may follow as a result of
enforcing the Constitution. It is for this reason that while deciding the case
of Sindh High Court Bar Association Vs. Federation of Pakistan (PLD 2009
SC 879), the Court assiduously avoided validating any of the
unconstitutional acts of General Musharraf including his attempt to clothe 37
Ordinances (NRO included) with permanence in violation of the Constitution. It
was, in accordance with the scheme of the Constitution and its democratic
character that the right of the legislature to enact these Ordinances with
retrospective effect was recognized and upheld. It is a matter of record, as
noted in the reasons recorded by Hon'ble the Chief Justice, that the elected
representatives of the people chose not to resurrect the NRO or to give cover
to any acts thereunder through retrospective legislation.
6. In the foregoing context it will be evident
that while the Court is obliged to eschew expediency and any other extraneous
considerations such as the fall-out and consequences of its judgments, the
executive and legislative limbs of the State do not suffer from similar
constraints. As such the consequences of executive and legislative decisions
are a legitimate concern of these organs of the State. Legislators and
functionaries performing executive functions may resort to expediency,
compromise and accommodation in achieving political and policy objectives considered
appropriate in their judgment. As long as such decisions conform to and are not
violative of the Constitution, the executive and the legislature are only
accountable to the electorate and not to Courts. This is the democratic
principle enshrined in the Constitution.
7. One reason for giving the above background is
to examine and comment on the applications (CMA Nos. 4875 and 4898 of 2009)
submitted by Mr. Kamal Azfar, Sr. ASC on behalf of the Federal Government. The
relevant contents of these applications have been duly noted in the main
judgment. Of particular concern to me are the following excerpts from these
applications:--
"Pak
today is poised at the cross roads. One road leads to a truly federal
democratic welfare state with the balance of power between an independent
judiciary, a duly elected Govt. representing the will of the people and a
determined executive which is fighting the war against terrorism and poverty.
The second road leads to destabilization of the rule of law. The people of
8. There is, implicit in the above words, a plea
to the Court to once again revert to the disastrous and rejected route of
expediency and to tailor the outcome of these petitions by looking at the
consequences which will follow, rather than the requirements of the
Constitution. I would like to state most emphatically that the path of
expediency and subjective notions of `State necessity' are dead and buried. I
find it quite extraordinary that a democratically elected Federal Government
should be imploring the Court to act in a manner otherwise than in accordance
with law. It was emphasized to Mr. Kamal Azfar while considering the aforesaid
applications in Court, and it now needs to be reiterated in the strongest terms
that this Court will not take into account extraneous considerations while
exercising its judicial powers and also that adherence to the Constitution can
never lead to "destabilization of the rule of law." On the contrary,
any breach of Constitutional norms is likely to destabilize the rule of law.
9. The onus, therefore, of stabilizing the rule
of law falls on and must be assumed by the executive organ of the State which
also commands a majority in the legislature. This is the requirement of the
Parliamentary democratic dispensation ordained by our Constitution. Political
stability and the rule of law will flow as a natural consequence of giving
sanctity and respect to the Constitution, both in letter and in spirit. The
Court can only strengthen the rule of law by upholding the Constitution, which
is, in fact, the supreme law. The executive and legislative limbs of the State
are also constitutionally obliged to apply the powers and resources at their
command, in enforcing the Constitution and the rule of law without discrimination
or undue favour to any person or class.
10. Almost a millennium before `good governance'
and `rule of law' became fashionable buzz-words in political discourse, the
importance of good governance and the rule of law and their direct co-relation with
political stability was recognized by enlightened rulers. In the Siyasatnama
written by Nizam- ul-Mulk Toosi the incident is narrated where the Governor of
Hamas (in present day Syria) wrote to the Caliph seeking funds to rebuild the
protective wall to defend the State against its enemies, that is, to ensure the
stability of the government. The reply he received is instructive. He was told
to build the walls of justice i.e. the rule of law and this would ensure peace,
stability and freedom from the fear of enemies.
11. This brings me to the decisions recorded in
the short order of 16.12.2009 and the detailed reasons for the same. The NRO
has been declared unconstitutional and void ab initio. It has thus met the fate
it richly deserved as a black law created and prolonged by the corrupt and
malevolent hands of a military dictator. The fact that the incumbent democratic
government chose not to defend such a vile law bodes well for constitutionalism
and the rule of law.
There
is, of course, the matter of persons who may be innocent of any wrongdoing but
were victimized due to political vendetta. For such persons this judgment ought
to be seen as a boon. Instead of living in the shadow of a malignant cloud for
the rest of their lives, their reputations sullied by the foul intervention of
a scheming mind, these persons are enabled through this judgment to clear their
good name of any taint with which they of necessity, stood branded on account
of the NRO. This indeed would be the most potent rejoinder to those who
maliciously may have initiated false cases to harm their reputations for
ulterior political considerations. As the sage Sheikh Saadi said centuries ago,
in these ageless words:--
12. It should also be mentioned that by striking
down the NRO the Court does not foreclose the possibility or impinge on the
prerogative of the legislature to enact a non-discriminatory law which can pass
constitutional muster and is motivated by a desire to bring about a true and
inclusive reconciliation which is genuinely national in its outreach and
attempts to bring within its fold disparate groups harbouring valid grievances
against oppressive and vindictive use of State machinery in the past. Even
those who may have committed wrongs in the past and were not wronged against,
are not beyond being redeemed through a compassionate law which heals the
fissures in the nation's divided polity. These are, however, matters which fall
squarely within the legislative and executive domains, should these organs of
the State wish to act.
13. The concept of tauba and sincere repentance
coupled with restitution of any ill-gotten gains and the expression of genuine
remorse for past excesses provide an age-old matrix for fostering
reconciliation. It has been applied successfully in ancient as well as modern
societies, the most recent example being that of South Africa where a Truth and
Reconciliation Commission has been able to bring about a genuine national
reconciliation between staunch opponents divided among other things, by race
and embittered by decades of apartheid. An example of national reconciliation
also appears in our own nation's history. This has been commented upon in the
main judgment. It would, as noted above, be
for the executive and the
legislature to consider the potential and the possibilities of what can be
achieved by way of reconciliation, as opposed to perpetuation of the venom and
mutual recriminations which continuously divide the nation at the cost of its
well-being. This Court, however, can only abide by the rule of law and in order
to do so it must limit itself to the adjudication of controversies in
accordance with the Constitution and with laws made consistently therewith.
Judge
(R.A.)