' 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") cfiallenging the National Reconciliation Ordinance, 2007 (No,LX of 2007) (hereinafter 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 Ghandhi v. Raj Narain AIR 1975 SC 2299).
(c) By promulgating section 7 of the impugned Ordinance, Articles 63(1)(h) and 63(1)(1) 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 has also rendered Articles 62 and 63 of the Constitution ineffective.
(g) Subsections (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 subsection, powers of the "Court" have been conferred upon the Review Boards of the Executive Bodies, therefore, these subsections are also contrary to Article 175 of the Constitution.
' 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 subsections, 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 colourable 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.
0) 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 Pakistan PLD 2005 SC 605). Hence, provisions of the impugned Ordinance as a whole are against the concept of equality of Islamic Injunction, provided under Article 2A of the Constitution, therefore, on this score as well, deserves to be struck down being ultra vires the Constitution.
3. Mr. Muhammad Ikram Chaudhry, learned Senior Advocate Supreme Court for petitioner in Constitutional Petition No,77 of 2007, while adopting the above arguments, added that:--
(i) The impugned Ordinance is person specific and period specific, therefore, violates Article 25 of the Constitution.
4. Dr. Farooq Hassan, Senior Advocate Supreme Court appearing in Constitutional Petition No,78 of 2007 on behalf of petitioner, while adopting the arguments raised by Mr. Salman Akram Raja, Advocate Supreme Court has 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 Pakistan on 31st of August, 2007.
(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, Advocate-on-Record appeared on behalf of Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court in Constitutional Petition No,79 of 2007 and adopted the above arguments of the learned counsel for the petitioners.
6. Mr. Tariq Asad, Advocate Supreme Court appearing in Constitutional 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 which amounts to encourage corruption under the cover of law, therefore, is liable to be struck down.
7. Learned counsel appearing in Constitutional Petitions 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 drive such benefit.
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 concludes 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 Pakistan as required in terms of Order XXVIIA, C.P.C. And A Order XXIX, Rule 1 of the Supreme Court Rules, 1980. As important questions of public/national interest have been raised in these petitions, therefore, a request be sent to Mian Allah Nawaz, Advocate Supreme Court (former Chief Justice of Lahore High Court), Mr. Shaiq Usmani (former Judge of Sindh High Court) and Mr. M.Sardar Khan, former Attorney General for Pakistan, to appear and assist the Court as amicus curie.
' Let these petitions be set for hearing for a date after three weeks.