MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The petitioners convicted by Accountability Courts and serving out their sentences in the Central Prison Karachi, have assailed validity and vires of several provisions contained in the National Accountability Ordinance, 1999, (hereinafter referred to as the NAB Ordinance,), on the ground that they are violative of the fundamental rights enshrined in the Constitutions, more particularly in Articles 12 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution).
2. However, at the time of arguments, the challenge has been restricted and canvassed to the validity and vires of section 10(d) of the NAB Ordinance only.
3. The petitioners/NAB convicts submitted a representation addressed to the Chief Justice, which was treated as petition and was initially fixed before a Division Bench of this Court. Notices were issued to the petitioners and D.P.G. (Accountability) as well as to Advocate General, D.A.G., and President High Court Bar Association to assist the Court. On 20-9-2006 the matter was taken up by the Division Bench, in the presence of learned President, High Court Bar Association, the learned D.A.G., Abdul Jabbar Lakho, A.A.-G.
And DPGA. The following order was passed:-- "Since a number of questions of public importance relating to the constitutional validity of different provisions of the NAB Ordinance, are involved, we would order that this matter be placed before a Full Bench to be constituted by the Chief Justice."
4. Notice was directed to be issued to the learned Attorney General as well.
5. We have heard the petitioners represented 4. Petitioner Saleem Raza, Mr. Shafat Nabi Sherwani, learned DPGA and Mr. Akhtar Ali Mehmood, learned D.A.-G.
6. Petitioner/convict Saleem Raza submitted on behalf of the petitioners that prior to 23-11-2002 all the NAB convicts were entitled to remission in accordance with Chapter 8 of the Prison Rules. However, with the insertion of section 10(d) in the NAB Ordinance, 1999, this right has been taken away. He contended that the provisions contained in section 10(d) of the NAB Ordinance is violation of the provisions contained in Articles 12 and 25 of the Constitution. By implication it is retrospective in effect and is discriminatory as well.
He further submitted that it is discriminatory for the reasons that NAB Ordinance is not the only law in the country dealing with the white-collar crime. He has maintained that the punishment for corruption and corrupt practices defined in section 9 of NAB Ordinance is specified in section 10(a) of the NAB Ordinance and the offences specified in the schedule to the Ordinance are punishable in the manner specified therein by virtue of the provisions contained in section 10(b) of the NAB Ordinance. He has further submitted that all the offences referred to in sections 9 and 10 read with schedule to the NAB Ordinance are not exclusively triable by the Accountability Court appointed under the NAB Ordinance. The Accountability Court shall take cognizance on a reference made by the Chairman NAB or an officer of the NAB duly authorized by him and not otherwise. He has argued that the offence is triable under the NAB Ordinance or by the ordinary Criminal Courts as well as Special Judges Anti-Corruption Central and Provincial as the case may be. According to him section 10(d) of the NAB Ordinance is discriminatory in the sense that if in respect of any person charged of committing offences coming within the purview of corruption or corrupt practices as well as specified in schedule are not referred by the Chairman NAB or an officer authorized by him, he/she shall be triable by the other Courts established under the law and in case of conviction the convict shall be entitled to -the remissions under the Prison Rules, section 401, Cr.P.C. And Article 45 of the Constitution as well as section 402(a), Cr.P.C. He has further contended that under the system of remission under Chapter 8 of the Pakistan Prison Rules, the remission is generally earned and it is not a mere concession. He has referred to Rule 199 of the Prison Rules, which defines the remission system. It is provided in this rule that remission system is arrangement by which a person sentenced to imprisonment for a period of 4 months or more may by good conduct and industry become eligible for release and a portion of his sentence ordinarily not exceeding one-third of the whole sentence has yet to run. He has further submitted that remissions are of two kinds ordinary or special. He has pointed out that ordinary remission is not earnable if a prisoner is convicted for offence committed after admission in prison or for an assault committed after admission to prison, on a warder or other officer, the remission awarded by Government under section 401, Cr.P.C. Awarded for blood donation, surgical sterilization and for passing examination. This provision is contained in Rule 202. He has further referred to Rule 215, wherein it is provided that a convict prisoner may appear in any of the examinations specified in the rules and shall on passing such examination be entitled to earn remission. It is further provided in Rule 220 that when a prisoner has earned such remission as entitled him to release, the Superintendent shall release him unconditionally. He has further submitted that he has been convicted and sentenced to serve out imprisonment for 5 years and he is in custody for the last about 4 years. All other convicts other than NAB convicts with similar sentence have been released much earlier, after serving out their sentence, after earning the remission but he is still rotting in jail. According to him, the convicts under similar circumstances, for similar offences, under similar circumstances, belonging to same class, when convicted by other Courts become entitled to be released on bail after remaining in jail for about 2 or 2-1/2 years, having been treated to have served out the sentence, after earning remissions, while the NAB convicts are denied this concession which have been convicted after 23-11-2002, when clause (d) of section 10 was inserted in the NAB Ordinance. He has further stated that another convict namely Qurban Jatoi was convicted after insertion of this provision but he has been released after allowing remissions. He has placed reliance on a judgment of Hon'ble Supreme Court in Criminal Petition No,59- Q of 2005, State through National Accountability Bureau v. Shaikh Abdul Sattar Lasi,edated 1-2-2006. In this case the respondent was convicted by an Accountability Court and the conviction and sentence were upheld by Balochistan High Court and the Hon'ble Supreme Court. This conviction was recorded on 26-7-2001. Remission earned by him was withheld for the period from-2-12-2002 to 18-3-2005 on the basis of section 10(d) of the NAB Ordinance. He filed writ before Balochistan High Court, which was allowed on the ground that amendment was prospective in nature and would apply to the cases of conviction after 23-11-2002. At the instance of NAB leave to appeal was sought from the Hon'ble Supreme Court which was not allowed. Reliance was also placed on a judgment of Lahore high Court in the case of Dr. Azhar Atta Malik v. Chairman NAB, PLJ 2005 Cr .Cases (Lahore) 354, and on an earlier judgment of Peshawar High Court in the case of Farid Khan v. The State PLD 1965 (W.P.) Peshawar 31. In the first case it was held by Lahore High Court that the right or concession available to a convict on the date of conviction cannot be curtailed by a subsequent change in law. A Full Bench of the Peshawar High Court laid down that such right/privilege/concession as available to an accused at the time of occurrence/commission of offence could not be subsequently taken away.
7. Mr. Shafat Nabi Sherwani, learned D.P.G.A NAB, very candidly and frankly stated that there should be one set of rules only for every convict under any law. He was of the view that the forum of trial and the procedure may be different and the punishments under some laws may be more stringent, as compared to the other enactments but after conviction the convict should be governed under the Prison Rules and not under the law pertaining to conviction. He conceded that the effect of section 10(d) of the NAB Ordinance is that it places the NAB convict in disadvantageous position. The persons convicted by other Courts under other substantive laws, awarded same punishment shall be entitled to release, much earlier than the NAB convicts and by implication it would amount to addition in the sentence awarded, because every convict is supposed to serve out the sentence in accordance with the law contained in the Prison Act and the Rules as well as in Article 45 of the Constitution and section 401, Cr.P.C. He has further submitted that denial of remissions to the NAB convicts while allowing the same to persons convicted by other courts for similar offence is discriminatory in nature and merely on account of forum of trial it is not a reasonable classification with the result that the provisions contained in section 10(d) of the NAB Ordinance assailed in this petition is repugnant to and violative of the fundamental right of equal protection of law guaranteed under Article 25 of the Constitution and consequently should be declared void, as provided under Article 8 of the Constitution. He further stated that after conviction by the trial Courts the convicts should be dealt with in accordance with the Prison Rules and by recourse to the non obstante clause no addition should be made in the Prison Laws until and unless a reasonable and rational classification is given in any law.
8. However, Mr. Akhtar Ali Mehmood, learned D.A.G, argued that section 10(d) of the NAB Ordinance is not violative of the provisions contained in Articles 12 and 25 of the Constitution. He submitted that the provision is prospective in effect and even by implication it is not retroactive. According to him if a reasonable classification is made out on intelligible differentia then a law is not to be declared as inconsistent, repugnant or violative of Article 25 of the Constitution. He submitted that mere reference to NAB Court by Chairman NAB or an officer authorized by him amounts to a reasonable classification. He further submitted that remission is a concession only under the Prison Rules and is not a right, therefore, the petitioners can not claim it and have no right to assail the validity and vires of section 10(d) of the NAB Ordinance, whereby the remissions have been denied to them. When confronted with the judgment of Hon'ble Supreme Court in the case of Waris Meah v. The State, PLD 1957 SC 157, wherein the Hon'ble Supreme Court held that the law conferring discretion on a very wide character upon State authorities to act in relation to subject falling within the same class in three different modes varying greatly in severity, by furnishing no guidance whatsoever, in regard to the exercise of this discretion, the Act, on the one hand leaves the subject, falling within its provisions, at the mercy of the arbitrary will of such authority, and on the other, prevents him from invoking his fundamental right to equality of treatment under the Constitution, he came with the plea that sufficient guiding principles are contained in section 18 (g) of the NAB Ordinance and theretofore, the ratio of above judgment is not attracted. The learned D.A.G, was further confronted with the law laid down by the Hon'ble Supreme Court in Waris Meah's case that the duty of Courts for declaring a law inconsistent with the provisions of the 1956 Constitution cannot be performed so as to ensure that the law operate equally in relation to all persons within its mischief, if law itself provides for different options in relation to such persons, not in accordance with any principle expressed or implicit in law, not on the basis of any classification made or under the law, but according to unfettered discretion of one or more statutory authorities. In this case the Hon'ble Supreme Court further held that in the absence of any discernible principle guiding the choice of forum, the choice must always be in the judicial viewpoint, arbitrary to a greater or lesser degree. The Hon'ble Supreme Court further held that by use of unfettered discretion of statutory authorities thereby treating unequally persons falling within the same class, upon a basis which bears no reasonable relation to the purpose of the law, the Act was discriminatory and inconsistent with the declaration of equality in Article 5(1) of the 1956 Constitution.
9. The learned D.A.G, insisted that the provisions contained in section 18(g) of the NAB Ordinance, contained sufficient guidance providing reasonable classification to treat the NAB convicts a separate class, and, therefore, they were not entitled to remissions while serving out the sentences awarded to them by Accountability Courts.
10. He also maintained that the provision contained in section 10 (d) of the NAB Ordinance is in conformity with the object of the law.
However, the learned DPGA was of the view that the object of enacting NAB Ordinance was not to incarcerate the convicts for longer period but the object was to provide effective measures for speedy disposal of cases involving corruption, corrupt practices, misuse or abuse of power or authority, misappropriation of properties, taking kickbacks, commissions for matters connected and ancillary or incidental thereto and to recover the outstanding amounts, from those persons, who have committed default in the re-payment of amounts of banks and financial institutions and to recover, the State money and State assets from those persons who have misappropriated or removed such money or assets through the corruption or corrupt practices and misuse of power or authority and after obtaining the above object to bring back the convicts in the main stream of the society allowing them to contribute in the development and betterment of the society. In this behalf, he referred to the Judgment of Hon'ble Supreme Court in the case of Khan Asfandyar Wali v. Federation of Pakistan, PLD 2001 SC 607 and several other judgments.
11. We have very carefully considered the contentions raised by the petitioners, learned DPGA and the learned D.A.G, and provisions of law referred to by them.
12. Before examining the provisions contained in section 10(d) of the NAB Ordinance, we would succinctly narrate the principles governing the issues involving validity and vires of a law (including statute law) challenged with reference to Articles 12 and 25 of the Constitution. Article 4 of 1962 Constitution was similar to Article 12 of the 1973 Constitution. A law on the touchstone of this article came for consideration before a Full Bench of Peshawar High Court, in the case of Farid Khan (ibid) with reference to section 57, P.P.C.. A question was referred before the Full Bench with reference to the remissions ordinary or special and the remissions under section 401, Cr.P.C. It was contended on behalf of the petitioner/convict, that under rules applicable at the time, the petitioner was convicted, there was no restriction on the total length of remission, but now remission has been limited, thus having the effect of imposing longer substantive punishment of imprisonment on the petitioner.
13. Anwar-ul-Haq, J., (as his lordship then was) speaking for the Full Bench observed that the fundamental right No,4 on which reliance was placed did not apply in terms in the said case, for there was no question of imposing a greater punishment on the petitioner than was prescribed by law at the time the offence was committed. The penalty prescribed by law for the offence as committed by the petitioner remains the same. At the same time, however, his Lordship agreed that if new instructions has the effect of keeping prisons in custody for aggregate period of more than 20 years, including remissions, then it can be said that in practical effect the punishment imposed upon him has become greater than was prescribed at the time he committed the offence.
It was further observed that the convict had completed an aggregate period of more than 20 years including remissions and he would have been entitled to be released on the completion of 20 years if the Memorandum prescribing the new conditions was not issued. It was held that the result was that the prisoner was being compelled to undergo longer sentence in the aggregate period than prescribed at the time he committed offence or was convicted. It was further held that the result seems to be clearly against the spirit if not the term of the right embodied in fundamental right No,4 guaranteed by the 1952 Constitution. It was also observed that in the matter of the liberty of the subject it is the duty of the Court to ensure that not only the letter of law but also its spirit is observed. Consequently it was held that the memorandum assailed in the petition cannot be allowed to be operated retrospectively in the manner so as to authorize the detention of the convict for an aggregate period, including remission of more than 20 years.
14. As already observed earlier, this judgment was considered by the Hon'ble Supreme Court in the case of State through NAB v.
Shaikh Abdul Sattar Lasi, and the ratio of this judgment was not disturbed.
15. This brings us to the principles governing the provisions pertaining to fundamental rights guaranteed under Article 25 of the Constitution relating to the equal protection of law. This Article enjoins that all citizens are equal before law and are entitled to equal protection of law, i,e,, all persons subjected to law should be treated alike under all circumstances and conditions both in privileges conferred and in the liabilities imposed. It must be amongst equals. The equality has to be between persons who are placed in the same set of circumstances. The guarantee of equal protection of the law requires that all persons shall be treated alike, under like circumstances and conditions. The Phrase "equal protection of law" envisaged by Article 25 of the Constitution means that no person or class of persons would be denied the same protection of law which is enjoyed by persons or other class of persons in like circumstances in respect of their life, liberty, property or pursuit of happiness. Persons similarly situated or in similar circumstances are to be treated in the same manner. In the application of these principles, however, it has always been recognized that classification of persons or things is in no way repugnant to the equality doctrine, provided, the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of legislation. It means that two sets of similar circumstances shall not have different legal effects, unless there is a difference of circumstances and the difference between the two sets is material enough to support the discrimination.
16. Articles 8 and 25 of the Constitution were considered by the Hon'ble Supreme Court in the case of Government of Balochistan v.
Azizullah Memon, PLD 1993 SC 341. The Hon'ble Supreme Court considered the law laid down in the following cases:--
(1) Jibendra Kishore Achharyya Choudhry and others v. Province of East Pakistan PLD 1957 SC 9.
(2) Waris Meah v.State PLD 1957 SC 157.
(3) Bazal Ahmed Ayyubi v. The West Pakistan Province PLD 1957 Lah.388.
(4) Zain Noorani v.Secretary of the National Assembly of Paksitna PLD 1957 Kar.1.
(5) Malik M.Usman v. State PLD 1965 Lah.229.
(6) East and West Steamship v. Pakistan PLD 1958 SC 41.
(7) F.B. Ali's case PLD 1957 SC 506.
(8) Fauji Foundation's case PLD 1983 SC 457.
(9) I.A.Sherwani's case 1991 SCMR 1041.
(10) Abdul Wali Khan's case PLD 1976 SC 57.
(11) Aziz Begum's case PLD 1999 SC 899 and
(12) Shirin Munir and others v. Government of Punjab PLD 1990 SC 295.
(13) Inam-ur-Rehman v. Federation of Pakistan and several judgments of the Supreme Court of India and deduced the following principles:--
(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 reasons 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.
17. Deducing the above principles, the Hon'ble Supreme Court held as follows:-- "As the judgment from Indian jurisdiction have been considered in the aforestated judgments of this Court, we would not refer to them here. In all these authorities there seems to be a unanimity of view that although class legislation has been forbidden, it permits reasonable classification for the. Purpose of legislation. Permissible classification is allowed provided the classification is founded on intelligible differentia which distinguishes persons or things that are grouped together from others who are left out of the group and such classification and differentia must be on rational relation to the object sought to be achieved by the Act. There should be a nexus between the classification and the objects of the Act. This principle symbolises that persons or things similarly situated cannot be distinguished or discriminated while making or applying the law. It has to be applied equally to persons situated similarly and in the same situation. Any law made or action taken in violation of these principles is liable to be struck down. If the law clothes any statutory authority or functionary with unguided and arbitrary power enabling it to administer in a discriminatory manner, such law will violate equality clause. Thus, the substantive and procedural law and action taken under it can be challenged as violative of Articles 8 and 25."
18. In the case of Jibendra Kishore Achharyya Choudhury and others v. Province of East Pakistan, PLD 1957 Dacca 1, which was upheld by the Hon'ble Supreme Court, the following principles were formulated:--
(i) The presumption is always in favour of the constitutionality of a enactment, since it must be assumed that the legislature understands, and correctly appreciates the needs of its oWn people that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.
(ii) The presumption may be rebutted in certain cases by showing that on face of the statute, there is no classification at all and no difference peculiar to any individual or class, and yet the law hits only a particular individual or class.
(iii) The principle of equality does not mean that law must have universal application for all persons who are not by nature, attainment or circumstances in the same position, and the varying needs of different classes or persons often require separate treatment.
(iv) The principle does not take away from the State the power of classifying persons for legitimate purposes.
(v) Every classification is in some degree likely to produce some inequality, and mere production of inequality is not enough.
(vi) If a law deals with members of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons.
(vii) While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained and the classification cannot be made arbitrarily and without any substantial basis.
19. In the light of above principles, now we proceed to examine the contentions raised by the petitioners and the learned Advocates.
In order to properly appreciate the contentions, it would be appropriate to reproduce the relevant provisions of law:--- "Article 8(1)(2) of the Constitution:
8. Law inconsistent with or in derogation of Fundamental Rights to be void.--(1) Any law, or any custom or usage having the force of law, insofar as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2) 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."
"Article 12(1) of the Constitution:
12. Protection against retrospective punishment.-(1) No law shall authorize the punishment of a person---
(a) for an act or omission that was not punishable by law at the time of the act or omission;
(b) for an offence by penalty greater than, or of a kind different from the penalty prescribed by law for that offence at the time the offence was committed."
"Article 25(1) of the Constitution:
25. (1) Equality of citizens.---All citizens are equal before the law and are entitled to equal protection of law."
Preamble to NAB Ordinance: Whereas it is expedient and necessary to provide for effective measures for the detention, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse or abuse of power or authority, misappropriation of property, taking o kickbacks, commissions and for matters connected and ancillary or incidental thereto; And whereas there is an emergent need for the recovery of outstanding amounts, from those persons who have committed default in the repayment of amounts to Banks, Financial Institution's Governmental agencies and other agencies; And whereas there is 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 of authority; And whereas there is an urgent need to educate the society about the causes and effects of corruption and corrupt practices and to implement policies and procedures for the prevention of corruption in the society; And whereas 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; And whereas it is necessary that a National Accountability Bureau be set up so as to achieve the above aims; And whereas the National Assembly and the Senate stand suspended in pursuance of the Proclamation of the fourteenth day of October, 1999, and the Provisional Constitution Order No,1 of 1999, as amended; And whereas the President is satisfied that circumstances exist which render it necessary to take immediate action; Now therefore, in pursuance of the aforesaid proclamation and Provisional Constitutional Order as well as Order No,9 of 1999, and in exercise of all powers enabling him in that behalf, the President of the Islamic Republic of Pakistan is pleased to make and promulgate the following Ordinance."
Section 5(g) of the NAB Ordinance.-"Court" means an Accountability Court which shall consist of a Judge who shall be appointed by the President of Pakistan, in consultation with the Chief Justice of the High Court of the Province concerned, on such terms and conditions as may be determined by the President."
Section 9. National Accountability Ordinance, 1999: 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 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 persons; 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 finis-appropriates or otherwise converts for his won 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 or dependents or any other persons, any property, valuably 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 sources of income; or
(vi) if he misuses his authority so as to gain any benefit or favour for himself or any other person, or renders or attempts to render or wilfully 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 S.R.O. (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 or wilful 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), 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; or
(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; and
(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 Ordinance shall be non-bailable and, notwithstanding anything contained in sections 426, 491, 497, 498 and 561-A 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 Ordinance.
(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."
Section 10, NAB Ordinance:-- Punishment for corruption and corrupt practices.-(a) A holder of public office or any other person who commits the offence of corruption and corrupt practices shall be punishable with rigorous imprisonment for a term which may extend to 14 years and with fine and such of the assets and pecuniary resources of such holder of public office or person, as are found to be disproportionate to the known sources of his income or which are acquired by money obtained through corruption and corrupt practices whether in his name or in the name of any of his dependents, or benamindars shall be forfeited to the appropriate Government, or the concerned bank or financial institution as the case may be.
(b) The offences specified in the Schedule to this Ordinance shall be punishable in the manner specified therein.
(c) The Federal Government may, by notification in the official Gazette, amend the Schedule so as to add any entry thereto or modify or omit any entry therein.
(d) Notwithstanding anything to the contrary contained in any other law for the time being in force an accused, convicted by the Courts of an offence under this Ordinance, shall not be entitled to any remission in his sentences."
SCHEDULE S. No,Offences Punishment
1. Any person who aids, abets or through any willful act or omission is instrumental in the commission of the offence of wilful default or with wrongful intent for illegal gratification by misuse of powers authority, influence, nepotism, favouritism) writes off, waives, restructures of finances illegally, improperly or without sufficient justification the principle amount of loan on any financial facility, interest or markup on any loan or financial facility provided to any person by any bank or financial institution, a cooperative society, a Government department or an authority established or controlled by the Government shall have committed or be deemed to have committed the offence of corruption or corrupt practices.Rigorous imprisonment for a terms which may extend to fourteen years and fine.
2. Refuses to answer questions, or to provide information to any member of the NAB or any other agency when required to do so.Rigorous imprisonment for a term which may extend to five years.
3. Giving false information or fabricating false evidence during inquiry into or investigation of an offence by the NAB or any agency authorized by the NAB in this regard when given by(a) a complainant, witness or an accused person or any inquiry officer; and(b) the investigator of the National Accountability Bureau or concerned agency.Rigorous imprisonment for a term which may extend to five years. Rigorous imprisonment for a tern) which may extend to five years. Rigorous imprisonment for a term which may extend to ten years.
4. Misuse of authority or power in committing any offence specified above, by any person holding a public office including any offence under sections 161 to 165A of the Pakistan Penal Code (Act XLV of 1860).Rigorous imprisonment for a tern) which may extend to fourteen years.
5. Deceitfully fraudulently or dishonestly causing loss to a bank, a financial institution, a cooperative society, a Government department, Statutory body or an authority established or controlled by the Federal Government, a Provincial Government or a Local Government.Rigorous imprisonment for a term which may extend to fourteen years.
6. Section 168, P.P.C. Public Servant unlawfully engaging in trade. Simple imprisonment for one year, or fine, or both
7. Section 169, P.P.C. Public Servant unlawfully buying or bidding for property.Simple imprisonment for two years or fine, or both and confiscation of property, if purchased.
8. Section 201, P.P.C. Causing disappearance of evidence of an offence committed, or giving false information touching it to screen the offender.
The words "if a capital offence" omitted by S.R.O. 696(I)/2004, dated 12-8- 2004, PLD 2004 Cent. St. Sup. 648.Imprisonment of either description for seven years and fine.
9. Section 218, P.P.C. Public. Servant framing an incorrect record or writing with intent to save a person from punishment or property from forfeiture.Imprisonment of either description for three years, or fine, or both.
10. Section 219, P.P.C. Public Servant in a judicial proceeding corruptly making an pronouncing an order, report, verdict or decision which he knows to be contrary to law.Imprisonment of either description for seven years or fine, or both.
11. Section 468, P.P.C. Forgery for the purpose of cheating. Imprisonment of either description for seven years or fine.
12. Section 471, P.P.C. using as genuine a forged document which is known to be a forged.Punishable for forgery of such documents.
13. Section 472, P.P.C. making or counterfeiting a seal, plate etc. with the intent to commit a forgery punishable under S.467 of the Pakistan Penal Code, or possessing with like intent any such seal, plate, etc., knowing the same to be counterfeit.Imprisonment for life or imprisonment of either description for seven years or fine.
14. Section 477-A, P.P.C. Falsification of accounts. Imprisonment of either description for seven years or fine, or both.
Section. 14 subsections (a), (b) and (c):
14. Presumption against accused accepting illegal gratification.-(a) Wherein any trial of an offence under clauses (i), (ii), (iii) and
(iv) of subsection (a) of S.9 it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person any gratification, other than legal remuneration., or any valuable thing, or any pecuniary advantage from a person or any agent of a person, for any favour shown or promised to be shown by the accused, it shall be presumed, unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing or pecuniary advantage for himself or some other person, as the case may be, as a motive or a reward such as is specified in sections 161 to 163 of the Pakistan Penal Code (Act XLV of 1860),or, as the case may be, without consideration or for a consideration which he believed to be inadequate;
(b) Wherein any trial of an offence punishable under section 165-A of the Pakistan Penal Code (Act XLV of 1860) it is proved that any gratification other than legal remuneration or any valuable thing has been given, or offered to be given, or attempted to be given, by any accused person, it shall be presumed, unless the contrary is proved, that he gave, or offered to give, or attempted to give that gratification, or that valuable thing, as the case may be, as a motive or a reward such as is specified in sections 161 to 163 of the said Code, or, as the case may be without consideration or for a consideration which he believed to be inadequate.
(c) In any trial of an offence punishable under clause (4) of the subsection (a) of S.9 of this Ordinance, the fact that the accused person or any other person on whose behalf is in possession for which the accused person cannot satisfactorily account, of assets or pecuniary resources disproportionate to his known sources of income, or that such person has, at or about the time of the commission of the offence with which he is charged, obtained an accretion to his pecuniary resources or property for which he cannot satisfactorily account, the Court shall presume, unless the contrary is proved, that the accused person is guilty of the offence of corruption and corrupt practices and his conviction therefor shall not be invalid by reasons only that it is based solely on such a presumption.
Section 18(a) and (g).
18. Cognizance of offences:
(a) The Court shall not take cognizance of any offence under this Ordinance except on a reference made by the Chairman NAB or an officer of the NAB duly authorized by him.
(b), (c), (d), (e), (t) .......
(g) The Chairman NAB or an officer of the NAB duly authorized by him shall appraise the material and the evidence placed before him during the inquiry and the investigation, and if he decides that it would be proper and just to proceed further and there is sufficient material to justify filing of a reference, he shall refer the matter to a Court.
Section 31-C, Court to take cognizance of offence with prior approval of the State Bank.--No Court established under this Ordinance shall take cognizance of an offence against an officer or an employee of a bank or financial institution for writing off, waiving, restructuring or refinancing any financial facility, interest or mark-up without prior approval of the State Bank of Pakistan."
Section 170(1), Cr.P.C.:
170. Case to be sent to Magistrate when evidence is sufficient.--
(1) If, upon an investigation under this Chapter, it appears to the officer Incharge of Police Station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or send him for trial or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day today before such Magistrate until otherwise directed.
(2)
(3)
(4)
(5)
Section 204(1), Cr.P.C. :
204. Issue of process.---(1) If in the opinion of a Court taking cognizance of an offence there is sufficient ground for proceeding and the case appears to be one in which, according to the fourth column of the second schedule a summons should issue in the first instance, it shall issue its summons for the attendance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first instance, it may issue a warrant, or, if, it thinks fit, a summons for causing the accused to be brought or to appear at a certain time before such Court or if it has no jurisdiction itself some other Court having jurisdiction.
(2)...............................................................
(3)................................................................................................
Sections 4 and 5 Prevention of Corruption Act, 1947.
4.Presumption where public servant accepts gratification other than legal remuneration.-(1) Where in any trial of an offence punishable under section 161 or section 165 of the Pakistan Penal Code, it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing as the case may be, as a motive or reward such as is mentioned in the said section 161, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Wherein any trial of an offence punishable under section 165-A of Pakistan Penal Code it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by any accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 161 of the said Code, or as the case may be, without consideration or a consideration which he knew to be inadequate.
(3) Notwithstanding anything contained in subsections (1) and (2) the Court may decline to draw the presumption referred to in either of the said subsection if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn.
5. Criminal misconduct.---A public servant is said to commit the offence of criminal misconduct:--
(a) if he accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Pakistan Penal Code or
(b) if he accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, 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 to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, or
(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage or
(e) if he, or any of his dependents, is in possession, for which the public servant cannot reasonably account, of pecuniary resources or of property disproportionate to his known sources of income.
Explanation.---In this clause "dependent" in relation to a public servant, means his wife, children and step-children, parents, sisters and minor brothers residing with and wholly dependent on him.
(2) Any public servant who commits or attempts to commit criminal misconduct shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.
(3) In any trial of an offence punishable under subsection (2) the fact that the accused person or any other person on his behalf is in possession, for which the accused persons cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved, and on such proof the Court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct and his conviction therefor shall not be invalid by reason only that it is based solely on such presumption.
(4) The provisions of this section shall be in addition to, and not in derogation of, any other law for the time being in force and nothing contained herein shall exempt any public servant from any proceeding which might, apart from this section, be instituted against him."
Section 5(c) Prevention of Corruption Act.
5-C. Possession of property disproportionate to known sources of income.-(1) Any public servant who has in possession any property, movable or immovable, either in his own name or in the name of any other person, which there is reason to believe to have been acquired by improper means and which is proved to be disproportionate to the known sources of income of such public servant shall, if he fails to account for such possession to the satisfaction of the Court trying him, be punishable with imprisonment for a term which may extend to seven years and with fine, and on such conviction the property found to be disproportionate to the known sources of income of the accused by the Court shall be forfeited to the Provincial Government.
(2) The reference in subsection (1) to property acquired by improper means shall be construed as a reference to property acquired by means which are contrary to law or to any rule or instrument having the source of law or by coercion, undue influence, fraud or misrepresentation, within the meaning of the Contract Act, 1872.
20. So far, the first contention on behalf of the petitioner that the effect of denial of remission to the NAB convicts by virtue of impugned section 10(d) of the NAB Ordinance, amounts to enhancement of sentence and thus is violative of the provisions contained in fundamental rights guaranteed under Article 12 of the Constitution, it already stands covered by the Full Bench judgement of the erstwhile West Pakistan High Court Peshawar, Bench in the case of Farid Khan v. State (ibid). We are in respectful agreement with the view taken by the Full Bench in the above case.
21. Now we take up the contention pertaining to the validity of section 10(d) on the point of being discriminatory and violative of the fundamental right of equal protection of law guaranteed under Article 25 of the Constitution. The principles governing the issue have already been laid down in the earlier judgments, which have been reproduced by us in the earlier part of this judgement. Mr. Akhtar Ali Mehmood, learned D.A.-G. Has submitted that there is always a presumption in favour of the constitutionality of an enactment, we would reiterate that there is no cavil to the proposition. However, this principle is intimately connected with another principle that the presumption may be rebutted in the cases where it appears on the face of statute, that there is no classification at all and there is no difference peculiar to an individual or class and yet the law hits only a particular individual or class. While considering whether there is any reasonable classification it is imperative to examine if classification is based on some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained and the classification is not arbitrary and without any substantial distinction.
22. We are not persuaded to agree with the submission of learned D.A.-G. That sufficient guidelines are available in section 18(g) of the NAB Ordinance, for making reference to a case to the Accountability Court by Chairman, NAB or an officer of the NAB duly authorized by him. By comparing section 18(g) NAB Ordinance, with sections 170 and 204, Cr.P.C. We find that these provisions are aimed to provide protection to the citizens from malicious and frivolous prosecution and to keep a check on arbitrary prosecution of the citizens. It is provided in section 18(g) of the NAB Ordinance that the Chairman or the officer authorized by him shall appraise the material and the evidence placed before him during the inquiry and investigation, and if he decides that it would be proper and just to proceed further and there is sufficient material to justify filing of a reference, he shall refer matter to the Court. It is provided in section 170, Cr.P.C. That if upon an investigation it appears to the officer Incharge of the Police Station that there is sufficient evidence or reasonable grounds as aforesaid, such officer shall forward the accused under custody to the Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or send him for trial. Likewise it is provided in section 204, Cr.P.C. That if in the opinion of a Court taking cognizance of an offence there is sufficient ground for proceeding, the Court shall issue the process. We would like to point out that the original section 18(g) of the NAB Ordinance had vested the arbitrary and total unbridled authority in the Chairman, NAB for making. a reference as it was provided that if he decides that it would be proper and just to proceed further he shall refer the matter to Accountability Court. However, subsequently better wisdom prevailed and the words "and there is sufficient material to justify filing of reference" were inserted by Ordinance No, XXXV of 2001, dated 10-8-2001.
Nonetheless, the provision as it stands now has no much difference with the provisions contained in sections 170 and 204, Cr.P.C.
With the variation that there is no choice of forum in respect of cases and accused persons who are to be tried by virtue of the provisions under sections 170 and 204, Cr.P.C., while on account of the fact that the offences triable under the NAB Ordinance are mostly triable by other forums also, therefore, the power has been conferred on Chairman NAB or an officer authorized by him to decide whether or not the case is to be referred to an Accountability Court. If the Chairman NAB or the officer authorized by him decides that reference is not to be made to the Accountability Court then the accused persons alleged to have committed offences are to be tried by the forums other than Accountability Court. Thus, under section 18(g) of the NAB Ordinance, two conditions are to be satisfied first, that there is sufficient material to justify filing of reference, and, second, the Chairman NAB or the officer authorized by him decides that it would be proper and just to file the reference, then only matter shall be referred to the Accountability Court.
So far, the second condition of taking decision by the Chairman NAB or an officer authorized by him is concerned, there are no guidelines as postulated by the Hon'ble Supreme Court in Waris Meah's case referred to above. We do not find any guidelines, for exercising jurisdiction by the Chairman NAB or an officer duly authorized by him, in section 18(g) of the NAB Ordinance as contended by the learned D.A.-G., and consequently we hold that following dictum laid down by the Hon'ble Supreme Court in the Waris Meah's case is fully applicable.
23. "There is also an unfettered choice to pursue the offence in any one of three different modes which vary greatly in relation to the opportunity allowed to the alleged offender to clear himself, as well as to the quantum and nature of the penalty which he may incur. The scope of the unguided discretion so allowed is too great to permit of application of the principle that equality is not infringed by the mere conferment of unguided power, but only by its arbitrary exercise. For, in the absence of any discernible principle guiding the choice of forum, among the three provided by the law, the choice must always be, in the judicial view, arbitrary to a greater or less degree. The Act, as it is framed, makes provisions for discrimination between the persons falling, qua its term, in the same class and it does so in such manner as to render it impossible for the Courts to determine, in particular case, where it is being applied with strict regard to the requirements of Article 5 (1) of the Constitution.
24. In our view such a law has the effect of doing indirectly i,e, by leaving the discrimination within the unguided and unfettered discretion of statutory authority, what it could not do directly i,e, to treat unequally persons falling within the same class, upon a basis which bears no reasonable relation to the purposes of the law, the Act is therefore, in our opinion, in relation to its discriminatory provisions inconsistent with the declaration of equal protection in Article 5(1) of the Constitution."
24.
(Article 5(1) of the 1956 Constitution was identical to Article 25 (1) of the 1973 Constitution.)
25. A comparative examinationof the provisions contained in the NAB Ordinance and the Prevention of Corruption Act, 1947, shows that there is not much difference in the definition of criminal misconduct contained in section 5 of Prevention of Corruption Act, 1947 and the Corruption and corrupt practices defined in section 9 of the NAB Ordinance. However, the scope of section 9 of the NAB Ordinance is much wider than section 5 of the Prevention of Corruption Act, 1947. Nonetheless, the provisions pertaining to illegal gratification etc., by the public servants in both the provisions are similar to a large extent. While extending the scope of corruption and corrupt practices envisaged under section 9 of the NAB Ordinance, several offences punishable under Pakistan Penal Code with certain modifications have been added. Likewise several offences punishable under Pakistan Penal Code and triable by the Courts specified in Second Schedule to Criminal Procedure Code have been made triable by the Accountability Court, in some cases, in respect of public servant and in other cases by any person, public servant or a common citizen.
26. The provisions pertaining to the presumption contained in NAB Ordinance are also similar to the provisions contained in the Prevention I of Corruption Act, 1947. The ordinary Criminal Courts and Special Courts Anti-Corruption (Central and Provincial) are also working and if the cases are not referred to the Accountability Court, the offences included in section 9 and schedule under section 10(d) of the NAB Ordinance are still triable by the said Courts and in fact the accused persons alleged to have committed such offence whose cases have not been referred to the Accountability Courts are facing prosecution in the said Courts. Thus, if for the commission of same offences the accused persons are convicted by the Courts other than Accountability Court, they are entitled to earn remission while the NAB convicts for commission of same offences under similar set of circumstances shall be deprived of the remission on account of section 10(d) of the NAB Ordinance. It requires no emphasis that the public servants indulged in corruption and corrupt practices or criminal misconduct as the expression is used in the Prevention of Corruption Act, 1947, belong to the same class and merely on the basis of change of forum of trial, or change of term defining the offence, they could not be termed as belonging to a different class. The classification of persons or a class which is permissible and is not hit by the mandate of Article 25 of the K Constitution, must be founded on reasonable distinction or reasonable basis, based on intelligible differentia and must not be arbitrary.
27. As in respect of public servants found involved in corruption or criminal misconduct, the offences punishable under sections 218 and 219 P.P.C, which are ordinarily triable by the Courts specified in the Second Schedule to the Criminal Procedure Code are also triable by NAB Court. The punishment and the nature of offence are still same. Similarly the offences punishable under sections 468, 471, 472, 477-A P.P.C. Are triable ordinarily by the Court specified in Second Schedule to Criminal Procedure Code, in appropriate cases by Special Courts under the Offences in Respect of Banks (Special Courts) Ordinance, 1984 and Special Judges appointed under Pakistan Criminal Law Amendment Act 1958, as well as by the NAB Court by virtue of schedule 10(b) of the NAB Ordinance. The nature of offences are same and the punishments provided are also the same. The special rules of evidence contained in NAB Ordinance, Prevention of Corruption Act 1947, Criminal Law Amendment Act 1958 and Offences in Respect of Banks (Special Courts)
Ordinance 1984, are also similar. However, merely on account of change of forum one set of convicts under the same class not convicted by Accountability Courtahall be entitled to remission and thus shall serve out their sentence, indeli earlier than the other set of convicts in the same category or class convicted by the Accountability Court. Result is too obvious that there is no intelligible differentia, distinguishing one group of persons from other group of persons and thus, there is no reasonable classification permissible for such purpose.
Merely on the basis of change of forum the classification cannot be held to be permissible as reasonable because such classification shall not be based on any real and substantial distinction.
28. Where the legislature lays down the law and -indicates the persons or things to whom its provisions are intended to apply and leaves the application of law to an administrative authority while indicating the policy and purpose of law and laying down the standards or norms for the guidance of the designated authority in exercise of its powers, no question of violation of Article 25 arises.
In case, however, the designated authority abuses its powers or transgresses the limits when exercising the power, the actual order of the authority and not the State would be condemned as unconstitutional.
29. However, where the State itself does not make any classification of persons or things and leaves it in the discretion of the Government or any authority to select and classify persons or thing without laying down any principle or policy to guide the Government or authority in the exercise of discretion, or a law is made by the State, whereby certain persons or group of persons are discriminated without any rational and reasonable classification and leaving the other groups of the same class, the denial of benefit, privilege or right to one group of persons and allowing the other group of persons would certainly be a discrimination between the persons or things similarly situated and consequently shall be void on account of the provisions contained in Article 25(1) of the Constitution read with Article 8 thereof.
30. Another test for permissible classification is that the differentia must have rational nexus to the object sought to be achieved by such classification. For this purpose the object of the law creating differentia is to be examined. As rightly stated by the learned D.P.G.A. The object and purpose of enacting NAB Ordinance is not to keep the accused persons in custody for longer periods but the main purpose is to recover the outstanding amounts and State money misappropriated by the persons prosecuted. The entire scheme of plea bargain, power to freeze the property, holding the transfer of property void, voluntary return, constitution of Conciliation Committees for payment of loans, reference of cases to Governor State Bank of Pakistan and prior approval of State Bank, are directed in this behalf. The Hon'ble Supreme Court while examining various provisions of the NAB Ordinance in the case of Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 S.C. 607, held that one of the purposes and object of the law was to recover the ill-gotten money. This object of the law has no nexus with the classification pleaded by the learned D.A.G, under section 10(d) of the NAB Ordinance.
31. The learned D.A.-G., contended that similar provisions are contained in section 21-F of the Anti-Terrorism Act, 1997, which provides that notwithstanding, anything contained in any law or Prison Rules for the time being in force, no remission in any sentence shall be allowed to a person, other than a child who is convicted and sentenced for any offence under this Act, unless granted by the Government.
32. We would not like to make any observation in respect of this provision for the reason that the possibility of assailing the above provision before any Superior Court, cannot be ruled out and any observation made by us in this judgement may adversely affect any subsequent proceedings. However, we would like to observe that merely because a similar provision is contained in the Anti- Terrorism Act, 1997, it will not provide any justification for upholding the provision under challenge. We will make a tentative observation to the effect that the object of enacting Anti-Terrorism Act, 1997 is entirely different from the object sought to be achieved through the enactment of NAB Ordinance and the provision in every law is to be considered on its own merits with reference to the particular law under consideration.
33. However, we would like to refer to the proviso to subsection (1) of section 401 Cr. P.C. Inserted through section 15 of Act No,1 of 2005. This proviso contains that the Provincial Government shall have no power to suspend or remit any sentence awarded to an offender under Chapter XVI of the PPC, if an offence has been committed by him in the name or on the pretext of Karo Kari, Siah Kari or similar other customs or practices.
34. We find that the remissions under the Prison Rules are of two kinds ordinary and special. It is provided in Rule 218 of the Prison Rules that special remission is awarded by the Government on occasion of public rejoicing. It is granted unconditionally under section 401(1) of the Criminal Procedure Code 1898 and is not governed by these rules. Thus, under the proviso to section 401 Cr. P.C.
There is no total denial of the remission. It is only in respect of remission granted by the Provincial Government under section 401 Cr.
P.C. In respect of sentences awarded under Chapter XVI of Pakistan Penal Code and in respect of a class of criminals who committed offence in the name or on the pretext of Karo Kari, Siah Kari or similar other customs and practices. In addition to the fact that under this proviso there is no total denial of remission, a reasonable classification based on intelligible differentia is available.
35. Under Rule 201-A which has been framed on the move of the Federal Government, it is provided that, "notwithstanding anything contained in these rules a person convicted under the charge of espionage/Anti State activities shall not be entitled to ordinary and special remission unless Federal Government or Provincial Government or competent authority makes a specific order in writing in this behalf".
36. Again in this provision there is a reasonable and rational classification specifying a class of persons and still leaving the discretion with Federal or the Provincial Government and competent authority. A similar provision has been inserted by the Punjab Government through Rule 214-A of the Prison Rules. The Punjab Government has deprived all the convicted persons for special remission or on premature release on parole if they are sentenced for drug/narcotics offences vide Home Department letter No,14/1/93/MP, dated 27-1-1993. In this case also a classification has been made which is based on intelligible differentia. The remission has not been denied on account of mere forum of trial but on account of commission of offences pertaining to drugs and narcotics.
37. The entire discussion above, leads to the conclusion that section 10(d) of the NAB Ordinance denying remission to the NAB convicts has the effect of enhancing the punishment awarded to the NAB convicts and further is discriminatory as it is not based on any reasonable and rational classification. It is arbitrary in nature and as argued by the learned D.A.-G. Is merely based on the basis of forum of trial. We do not find any force in the contention of learned D.A.-G. That mere forum of trial is a reasonable and rational classification based on intelligible differentia. The denial of remission to NAB convicts under section 10(d) of the NAB Ordinance has no nexus with the 'object of legislation and consequently, we hold that it is violative of and repugnant to the provisions contained in Articles 12 and 25 of the Constitution. We are of the considered opinion that such provision of law is not permissible and cannot be saved being patently violative of the fundamental right guaranteed in the Constitution.
38. We hold that section 10(d) of the NAB Ordinance, is ultra-vires the Constitution and is liable to be struck down being void under Article 8(1) of the Constitution on account of being inconsistent with the right conferred by the Constitution. We further hold that all persons convicted under the NAB Ordinance, would be entitled for such remissions in the same manner as persons convicted under the other ordinary and special laws.
39. After hearing the petitioners and the learned Advocates on 6-11-2006, the petition was allowed by short order, which reads as follows:-- Having heard the Petitioner and the learned counsel we are of the view that section 10(d) of the NAB Ordinance is ultra vires the Constitution and liable to be struck down and all prisoners convicted under the NAB Ordinance would be entitled to such remission as persons convicted under the ordinary law. At the same time we also find great force in the petitioner's contention that he was discriminated against inasmuch as another prisoner Qurban Jatoi convict of a NAB offence was given the benefit of remission. The Superintendent, Central Jail came up with the facile explanation that he was not aware of the provisions of section 10(d) of the NAB Ordinance till the same were communicated to him by the Home Department in October, 2005 and, therefore, benefit of remission was given to the aforesaid Qurban Jatoi. We must express our pain and anguish at such a deplorable state of affairs and would direct that the copy of the orders may be communicated instantly to the Secretary, Home Department, and the Advocate-General Sindh, for taking appropriate action in ensuring that law must invariably be complied with.
At the request of learned D.A.-G., who states that the Federal Government intends to prefer leave to appeal against this judgment, let the effect of this judgment remain suspended for a period of two weeks from today".
40. These are the detailed reasons in support of the short order.
The petition is allowed.
(Sd.)
Muhammad Mujeebullah Siddiqui, J (Sd.)
Mrs. Qaisar Iqbal, J I agree and have also appended a separate note.
(Sd.)
Sabihuddin Ahmed, C.J.
SABIHUDDIN AHMED, C.J.---I am in complete agreement with the elaborate and erudite judgment proposed to be delivered by any learned brother, Muhammad Mujeebullah Siddiqui, J. By way of supplementing his conclusion I may refer to an earlier Division Bench judgment of this Court in Rauf Bakhsh Kadri v. The State SBLR 2003 Sindh 163 to which I happened to be a party . In this case, the validity of section 18 of the NAB Ordinance was questioned on the ground that it conferred arbitrary powers upon the Chairman NAB to pick and choose persons for trial before Accountability Courts entailing higher punishment while the offences listed in section 9(a) also constituted offences under other laws with lesser sentences. We found it possible to uphold the validity of the Ordinance by reading down some of the clauses and arrived at the following conclusion in para. 30:-- "30. For the foregoing reasons we are inclined to hold that the qualifications laid down in clause (ix) will also have to be read in the other clauses of section 9(a). In other words the discretion of the Chairman NAB or an officer authorized by him to file a reference before the Accountability Court is not absolute or arbitrator. Such reference could be filed only when the Chairman or the Authorized Officer is satisfied that the amount involved is of large magnitude and resort to the facility of pre-bargaining to the accused would be in the national interest. In the absence of such satisfaction a case could only be triable under the ordinary law."
2. I am, therefore, entirely unable to subscribe to the view of the learned Deputy Attorney-General that a reasonable classification could be effected through conferment of unbridled power under section 18 and find great merit in the contention of the learned Deputy Prosecutor General that the dominant object of the statute is to recover ill-gotten wealth rather than make people rot in jails.
These are my additional reasons for concurring with the judgment proposed.