' MAZHAR ALAM KHAN MIANKHEL, C J.--When the following Writ Petitions came up for hearing before a Division Bench of this Court on 10-11-2015, by the order under reference, the matter Was referred for decision to a larger Bench:-- 1) W.P. No,1352-P/2015 with CMS 652,616, 646,871/2015 and C.M.No,1601/2015.
2) W.P.No,1949-P/2015 3) W.P. No,1406-P/2015 4) W.P.No,1407-P/2015 5) W.P.NO.1936-P/2015 6) W.P.No,3104-P/2015 7) W.P.No,2501-P/2015 8) W.P.No,3356-P/2015 9) W.P.No,3489-P/2015 10) W.P.No,3500-P/2015 11) W.P.No,3811-P/2015 12) W.P.No,2555-P/2015 with C.M.No,1595-P/15, 13) W.P.No,3804-P/2015 and 14) W.P.No,4001-P/2015 (M).
Hence this Larger Bench constituted for the purpose is seized of the matter to consider the following questions:-
1. Whether the Ehtesab Commission Act, 2014, its subsequent amendment and the Notification are in conflict with Articles 142 and 143 of the Constitution of Islamic Republic of Pakistan when the federal legislation i.e, National Accountability Bureau Ordinance, 1999 and other laws relating to anti-corruption on the same subject are already in the field?
Whether this law is in contravention of the fundamental rights enshrined, inter alia, in Articles 10-A, 12 and 25 of the Constitution of Islamic Republic of Pakistan, 1973?
' Whether this law suffers from errors with jurisdiction and errors without jurisdiction and whether its provisions pass the test of reasonability?
2. It may be mentioned here that in W.P.No,1352-P/2015, No,1949-P/2015, No,1406-P/2015, No,1407- P/2015, No,1936-P/2015, No,3811-P/2015, and No,2555-P/2015, the vires of Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 (Act No,I of 2014) have been challenged while in W.P. No,3104-P/2015, No,3804-P/2015, No,4001-P/2015 and No,250-P/2015, vires of Khyber Pakhtunkhwa Ehtesab Commission (Amendment) Act, 2015 have been challenged whereas in W.P. No,3356-P/2015, No,3489-P/2015, No,3500-P/2015 and No,3811-P/2015 the validity and legality of Notification No, SOE- V (E&AC)/14-11/Appt/EC/2014 dated 14.09.2015 has been questioned. Messrs Shumail Ahmad Butt, Barrister Mudassar Ameer, Amin-ur Rehman, Qazi Jawad Ehsanullah Qureshi, Ghulam Mohyuddin Malik, Sardar Ali Raza and Ayaz Khan, advocates, argued the case on behalf of the petitioners.
3. On the other hand, M/s. Abdul Latif Yousafzai, Advocate-General, argued the case on notice under Order XXVIIA, Rule 1, C.P.C. The Attorney-General of Pakistan was also issued similar notice and in response to that Mr. S.M.Attique Shah, Additional Attorney-General assisted the Court on the issues, whereas Mr.Yahya Zahid Gilllani, Prosecutor-General Ehtesab Commission along with Muhammad Zahid Aman, DPG, Qazi Babar Irshad and Lajbar Khan, ADPGs on behalf of the Ehtesab Commission and Mr. Umar Farooq Adam, Additional Advocate-General on behalf of the Provincial Government submitted their respective arguments.
4. The crux of the arguments of the learned counsel for the petitioners is that in presence of the National Accountability Ordinance, 1999, which is a federal law for the whole of Pakistan and has exhaustively covered the field of corruption and corrupt practices would prevail over the Ehtesab Commission Act, 2014 enacted by the Provincial Government on the same subject under the provisions of Article-137 of the Constitution of Pakistan whereby the executive authority of the Province has been made subject to, and limited by, the executive authority expressly conferred by the Constitution or by law made by Majlis-e-Shoora (Parliament) upon the Federal Government or authorities thereof. According to them, after the deletion of concurrent legislative list from the Constitution through 18th Amendment, a mini concurrent list has been inserted in Article 142(b) of the Constitution whereby the Parliament and a Provincial Assembly both have been given the powers to make laws with respect to criminal law, criminal procedure and evidence, thus even after 18th amendment the Federal Legislature is competent to make laws on the subjects under the mini concurrent list embodied in Article-142(b) of the Constitution and once a Central Statute on the same subject has already occupied the field, the federal law would prevail over the provincial law under the provisions of Article-143 of the Constitution..
' Further contended that a Statute can be challenged on three grounds i.e, (i) legal competence of the legislation; (ii) violation of the fundamental rights and (iii) occupied field. The two important buzzwords for the same would be "inconsistency" and "repugnance". The learned counsel stated that the word inconsistency in the common law was described as the doctrine of Paramountcy and this doctrine was further elaborately discussed by the Commonwealth of Australia Constitution Act under Article-109, so, when the Federal Government has given the same law, then the Provincial law would be inconsistent. The learned counsel also referred to the constitutions of United States, Canada and India, wherein the words 'Preemption' and 'Paramountcy' have been used and as per certain judgments of the Indian superior Courts, where a competent legislature expressly or implicitly evinces its intention to cover the whole field, the Provincial Laws may be inconsistent, although obedience to both the laws is possible.
' The learned counsel further went on to say that the National Accountability Ordinance, 1999 has been given an overriding effect, which means that this law has covered the whole field of corruption and corrupt practices, as such, there is no need of promulgating any other law on the same subject by the Provincial Government. They submitted that the doctrine of occupied fled has also been adopted by the superior Courts of Pakistan. While referring to Sections 3 and 4 of the National Accountability Ordinance, 1999 they submitted that it has clearly been stated therein that this law would be applicable to anybody, leaving no room for the Province to legislate on the same subject.
' They next contended that under Article 142(a) of the Constitution of Pakistan; the Parliament has exclusive power to make laws with respect to any matter in the Federal Legislative List contained in the fourth Schedule. They referred to entry No,55 and stated that if the same is read with Article 142 of the Constitution, then jurisdiction and powers of all Courts, except the Supreme Court, rests with the Federal Government and the Provincial Government cannot establish any Court in the Province and any such effort by the Provincial Government would be ultra vires the Constitution.
' While comparing the Ehtesab Commission Act with different fundamental rights in the Constitution, the learned counsel submitted that in this law some new offences have been mentioned, which were not offences prior to promulgation of the Ehtesab Commission Act.
Similarly, there is also difference in some penalties provided therein. After referring to the definitions of 'public office holder' in the NAO and the Ehtesab Commission Act, the learned counsel stated that punishment has been increased in the present law, which is in violation of Article 12(2) of the Constitution. Similarly, in the NAO, judges and army are excluded bat in the present Act they are included. The NAB law has provided Plea Bargain and Voluntary Return but there are no such provisions of favourable sentencing in the present law. The learned counsel averred that there can also be a third challenge possible to the present law with respect to 'reasonableness' as there should be no naked discretion with an authority, as such a naked discretion would come under excessive delegation. According to them, the appointment of Chairman NAB is subject to consultation with the Hon'ble Chief Justice of Pakistan but here in this law, the appointment of Director-General, who has been given wide discretion, is not subject to any consultation with the High Court. Similarly, in this law mens rea is not necessary but only on the basis of actus rea a person can be held guilty. Although protection has been given to Civil servants in the Civil Servants Act, but no immunity has been given to them in the law in question, so this law is bad and requires to be declared as ultra vires the Constitution.
' The learned counsel produced a comparative table of the two laws to show that both laws are inconsistent with each other, if not in direct ,conflict. The term "repugnant" is not limited only to the actual state of being contrary to the Injunctions of Islam alone but would also cover the case when an impugned provision of law itself or a custom is disagreeable, repulsive, offensive, distasteful, inconsistent, incompatible, irreconcilable or even averse to the spirit of Injunctions of Islam. Laws which do not co-exist are liable to be struck-down but if this Hon'ble Court comes to the conclusion that the same can co-exist, then the question of retrospectivity would come.
' Their next argument was with regard to the Notification vide which through an executive order retrospective effect was given to the Establishment of the Commission. Under Article-12 of the Constitution, no retrospective effect can be given to a new offence and punishment for an offence, as provided in a Statute cannot be enhanced. The Ehtesab Commission Act has created new offences and how retrospective effect can be given to it from the year 2004 when the same too have been brought through amendment in the Act. No power vests in the executive to establish the Commission with retrospective effect.
' Further submitted that Section-3 of the National Accountability Ordinance provides that the provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force, but no such provision exists in the Khyber Pakhtunkhwa Ehtesab Commission Act. Thus, this Section of NAO, read with Article 143 of the Constitution, has the effect of nullifying and rendering void all those provisions of Ehtesab Commission Act, which provides a different inquiry, investigation, court, forum, manner, mechanism, treatment, procedure, penalty, fine or otherwise for the offence of corruption and corrupt practices and that in Ehtesab Commission Act there is nothing new to show that NAO was not covering the same offence. There would remain uncertainty for a citizen as to under which law he would be tried. The learned counsel stated that although these laws are not in conflict but when the authorities, accountability courts and procedure are different, then this would show their repugnancy to each other. According to the learned, counsel, a comparison of the two laws would reveal that the offences are the same but from place to place the authorities and procedure have been changed and such inconsistencies are valid grounds for declaring the KPECA as repugnant.
' The learned counsel stated that if this Hon'ble Court still holds that the law is correct, then the question of restrospectivity would also render the Act as a bad law because the Commission became workable before its establishment through a notification, which came in the field after about one year and that too without notifying the same in the official gazette. Thus, by simply appointing all the Commissioners, the Commission cannot be said to have been established which is against the mandate of law. The scheme of the Act is to establish a Commission, form a Legislative Committee followed by constitution of a Search and Scrutiny Committee and then to appoint the Commissioners whereas the Commissioners were appointed on 20th August, 2014, the Director General was appointed on 15th October, 2014 and the Commission was established on 14th September, 2015. Further contended that till date the Commission has not been established despite the fact that although notification in this regard has been issued but unless the same is not published in the official gazette, legally speaking no Commission can be said to have been established so for. Under the provisions of Article 139(1) of the Constitution, all executive actions of the Provincial Government shall be expressed to be taken in the name of the Governor, so the executive authority should be express and not impliedly. They then referred to the Rules of Business 1985 of the KPK Government wherein it is too provided that whenever the Provincial Government or its executive authority do something it should be in writing. It is necessary in the form of a notification. The word "Notification" has been defined in the W.P. General Clauses Act, 1956 which means, a notification duly published in the official gazette. The Notification in this case for the establishment of a Commission signed on 14th September, 2015 has not been published in the official gazette. The mandate of the Act is to appoint Commissioners who have relevant experience in the field of anti-corruption but some of the Commissioners, so appointed, have no experience in this field and on this count too the establishment of the Commission suffers from legal infirmity.
5. The learned counsel, while concluding their arguments, submitted that it is well established that a preamble of the Statute is a gateway to its intention. A look at the preamble of the Act, 2014, would reveal that reference has been given to Articles 37 and 38 of the Constitution, which are regarding promotion of social justice, eradication of social evils, and promotion of social and economic well-being of the people. Plain reading of Articles 37 and 38 would give the impression that these are meant for promotion of social care, removing illiteracy, technical and professional education, ensuring inexpensive and expeditious justice etc. It does not say that in these Articles there would be any penal action and if any penal law is promulgated the same would be against the State. Therefore, the very preamble of the Act is against the provisions of 'Articles 37 and 38 read with Article 8 of the Constitution. Under Section 50 of the Act, the Rules were to be framed but the same have not yet been framed; that Section 56 of the Act provides that in the event of a conflict between this Act and a Federal law, the provisions of the Federal law shall prevail, so under this provision all those sections, which are given in the Act have become ultra vies; that under Section 5 of the Act the Legislative Committee shall consist of ten members of the Provincial Assembly but the minutes of the said Committee would reveal that the matter was decided by two members as against the statutory requirement of 10; that in the Preamble of the Act, the Provincial Government was desirous to implement the Charter of Good Governance but there is no Charter of the Government for good governance in writing form; that under Article 137 of the Constitution, the words 'subject to the Constitution' have been used but here in the Act the executive will of the Government i.e, 'good governance' is intended, so the basis of this law is not in accordance with the Constitution; that under Article 37 Clause (d) the State shall ensure inexpensive and expeditious justice but this Act is in sheer violation of Articles 10-A and 14 of the Constitution, because the origin of this law is some strange authority and not a constitutional authority. The learned counsel also requested for summoning the record of the Provincial Assembly for the purpose of seeing the intention of the legislature behind the law. The learned counsel in support of their arguments produced certain paper books containing copies of a number of judgments from the foreign jurisdiction as well as the judgments of the superior Courts of Pakistan in support of their arguments.
6. On the other hand, Mr. Abdul Latif Yousafzai, Advocate-General, while assisting the Court on Notice under Order XXIIA, Rule 1, C.P.C., and Mr. Farooq Adam Additional Advocate-General, representing the Provincial Government, argued that after the 18th amendment, there is no concurrent list, whether mini or otherwise. As for as the Constitutions of other countries like Australia, Canada and India are concerned, the same has no relevancy with the instant matter, as in the Constitutions, referred to by the learned counsel for the petitioners, have both the Federal and Concurrent Legislative Lists, so the Federal and Provincial or Dominion and States both can make laws and in that case the Federal law would prevail. Further stated that in the background of 18th amendment, this law is required to be seen as to what was need of 18th amendment. The basic purpose was to give more autonomy to the Provinces. Once the Concurrent Legislative List was abolished from the Constitution, it cannot be said that there is still any concurrent list. If the legislature wanted to keep the concurrent list in any form, then there was no need for them to totally abolish the same. According to them, Article 142 (b) in the Constitution was inserted through 18th amendment, wherein it was provided that The Federal and Provincial Governments can make laws on the three subjects; i.e, Criminal Law, Criminal Procedure and Evidence but subject to their respective territorial jurisdictions. The Federal Government can only legislate from the Federal Legislative List and all other residuary matters fall back to the legislative domain of the Provinces.
Further contended that Sub-Clause (c) of Article 142 is subject to its Sub-Clause (b) and the same is required to be read with Sub-Clause (d). Under Sub-Clause (c) a Provincial Assembly have the power to make laws with respect to any matter not enumerated in the Federal Legislative List while Sub-Clause (d) says that the Parliament have exclusive power to make laws with respect to all matters pertaining to such areas in the Federation as are not included in any Province. The laws mentioned in Article-142 (b) of the Constitution neither before 18th amendment nor thereafter were included in the Federal Legislative List. If these laws were in the Federal Legislative List, then the Provinces could not have legislated on these subjects. If these sub-clauses are read together, then it would reveal that although the Federal and Provincial Governments both can legislate in the- matters of Criminal Law, Criminal Procedure and Evidence but with respect to their respective areas of territorial jurisdiction.
7. The learned Advocate-General contended that if the intention of the legislature was to make these laws as concurrent, then what was the need for totally abolishing the Concurrent List.
Obviously, the intention was to give more autonomy to the Provinces. The learned Advocate- General, in order to show that how the constitutional provisions would be interpreted placed reliance on the 'cases reported in 2002 SCMR 312, Head note (E), Al-Jihad Trust Case (PLD 1996 SC 314) Head notes (f), (p), (kk), (11) and (mm), which enumerates in detail that where there are conflict between the two provisions of the Constitution, which would prevail, PLD 2008 SC 779) Head note (E) and (D), 2001 CLC Karachi 148, Head note (c), PLD 2007 SC 133 Head note (H). The learned A.G also referred to those authorities of the superior Courts wherein it is held that the law should be saved instead to destroy it, such as PLD 2014 Islamabad 83 Head notes (A) and (B), 2013 SCMR 34, Head notes (b) and (c). He also referred to the case of Pir Sabir Shah (PLD 1995 SC 66) Head note
(v) and submitted that a law cannot be given an end on the grounds of arbitrariness, reasonableness and mala fide. Further stated that in PLD 1995 SC 423 Head note (d) it is held that there is a presumption in favour of law that it was constitutionally or competently made.
' The learned Advocate-General while placing reliance on PLD 2015 SC 401, Head Notes (aaaa), (eeee), (hhhhh) and PLD 1999 SC 504 Head note (i) submitted that a law can be declared ultra vires if it is against; (a) the fundamental rights, and (b) the independence of judiciary. He also referred to the Chapter of Fundamental Rights, starting from Article-7 of the Constitution and contended that in Article-7 the definition of State is given; Article-8 says that laws in consistent with or in derogation of Fundamental Rights would be void; Article-9 relates to security of person; Article-10 is with regard to safeguards as to arrest and detention, whereas Article-10-A provides right to fair trial; Article-11 deals with slavery, forced labour etc.; Article-12 provides protection against retrospective punishment; Article-13 provides protection against double punishment and self incrimination; Article-14 guarantees inviolability of dignity of man, etc.; Article-15 provides freedom of movement, etc.; and so on. None of the Sections of the Act, 2014 either abridge or curtail or violate any of the Fundamental Rights. He referred to Article-37 of the Constitution and stated that it also provides for eradication of social evils and submitted that the law enacted by the Provincial Government is against those white-collar public office holders who are involved in corruption and corrupt practices, therefore, the same is not in any way inconsistent or in confliet with the National Accountability Ordinance. Further submitted that under clause (4) of Article-70 of the Constitution, the Federal Legislative List means the Federal Legislative List in the Fourth Schedule, which before 18th amendment, contained the Concurrent Legislative List both in Clauses
(1) and (4) of Article-70 which has now been omitted. The wisdom derived from the provisions of Article-70 of the Constitution before 18th amendment and thereafterwould be that the Majlis-e- Shoora (Parliament) can only make the laws mentioned in the Federal Legislative List. He also referred to Article 141 of the Constitution, dealing with distribution of legislative powers, wherefrom the concept becomes clear that the words "subject to the Constitution" would be read if there are some other provisions and that provision would be subservient or read with that provision. As against that, the words "notwithstanding" being a non obstante clause used in a Statute would be having an overriding effect upon any other laws. If in Article 142(b) of the Constitution concurrent powers have been given by the legislature on the three subjects, the reason behind it was that neither before 18th amendment, nor thereafter these subjects were part of the Federal Legislative List. After abolition of the Concurrent List, there was need for the Federal Government to have the powers of making laws on these subjects in their respective areas such as FATA, Islamabad Capital Territory etc. And that is why these laws were given in Article 142(b) of the Constitution with the intention that both Federal and Provincial Governments can make laws in their respective areas.
According to him, in Article 143 of the Constitution, the inconsistency between Federal and Provincial laws would arise when the Parliament is competent to enact a law and the same is inconsistent with a law of the Provincial Assembly. The Ehtesab Commission Act is not inconsistent with the National Accountability Ordinance. After 18th amendment, the Federal Government can enact the laws mentioned in the Federal Legislative List or Criminal Law, Criminal Procedure and Evidence mentioned in Article 142 (b) of the Constitution in its respective areas. The learned Advocate-General also referred to Article-144(1) of the Constitution regarding power of Parliament to legislate for one or more Provinces by consent and submitted that if a matter does not fall within the Federal Legislative List, the Province can ask the Parliament for making a law for the Province but in that case too, the Federal Government cannot repeal or amend the law of the Province and the discretion of repeal or amend solely rests with the Province. However, under Articles 145, 146, 147 and 148 of the Constitution, overlapping can be done. The learned A.G. Further referred to Article 232(4) of the Constitution and stated that even in case of proclamation of Emergency; the Province has the power to make any law by exercising its powers under the Constitution. While referring to the Federal Legislative List, the learned Advocate-General stated that Entry No,14 is with regard to Administrative Courts and Tribunals for Federal subjects, under which the Province can also establish Courts by exercising their residuary powers, while Entry No,55 regarding Jurisdiction and powers of all courts, Entry No,28 regarding State Bank of Pakistan, Entry No,29 regarding law of insurance all would show that if the intention of the legislation was to retain the powers of making laws on the three items mentioned in Article 142(b) of the Constitution, it could have inserted these three items in the Federal Legislative List, but as the intention behind the 18th amendment was to give more autonomy to the Provinces, the legislature did not insert the subjects in question in the Federal Legislative List and mentioned the same in Article 142(b) for parallel exercise of powers by both the Governments i.e, Federal and Provincial.
' According to the learned Advocate-General it would also be a question for consideration, whether the Ehtesab and NAO laws are covered by criminal law or not because if it is covered and there is a law of the Federal Government, then the question of occupied field, inconsistency etc. Would be attracted. The preamble of Pakistan Penal Code reveals that it is a general law. As against this, the NAO and Ehtesab Commission Act are special laws. Special law is covered under Section 41 of P.P.C.
Where it has been differentiated. This special law is not covered by the term Criminal law. In the Concurrent Legislative List (now omitted) Entries Nos.1, 2, 3 and 4 has particularized the criminal law to an extent where as Entry No,16 was regarding measures to combat certain offences committed in connection with matters concerning the Federal and Provincial Governments. Since this list has been omitted including entry. No,16, therefore, now it will fall back to the Provinces being residuary subjects. Thus with respect of Special law the domain has come to the Province and when the Province would make a law, it would also establish a Court also.
' The learned Advocate-General further submitted that Article 270-AA of the Constitution was initially introduced after 17th amendment, which was amended further after 18th amendment.
Under Article-270AA of the Constitution, certain laws were declared as without lawful authority and of no legal effect while under Clause (2) of Article 270-AA certain acts, orders etc. Were provided protection. Clause (6) provided that notwithstanding omission of the Concurrent Legislative List by the Constitution (Eighteenth Amendment) AU, 2010, all laws with respect to any of the matters enumerated in the said List (including Ordinances, Orders, rules, bye-laws, regulations and notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having extra-territorial operation, immediately before the commencement of the Constitution (Eighteenth Amendment) Act, 2010, shall continue to remain in force until altered, repealed or amended by the competent authority. In such a situation Article-143 of the Constitution would not apply because life was given to it under Article 270AA and once the Province made a law, the same cannot be declared ultra vires the Constitution. The learned Advocate-General in this regard placed reliance on PLD 2010 Karachi 328. According to him, the 'competent authority' as mentioned in the Explanation of clause (2) of Article 270AA of the Constitution reveals that appropriate legislature would be that of the Province.
' The learned Advocate-General while concluding his arguments also placed reliance on the judgment in the case of Asfand Yar Wali Khan (PLD 2001 SC 607) Para-174 at Page 872 and Paras 173, 176, 178 and asserted his stance that the Ehtesab Commission Act was competently made, it is not in conflict with any other law, it was within the domain of the Provincial Legislature and the vires of this Act cannot be examined on the touchstone of conflict with any other law.
' The learned Advocate-General on the question of Notification for establishment of the Commission argued that it was not the requirement of law as is evident from Sections-3 and 4 of the Act and the moment notifications for composition of the Commission were issued, the Commission stood established because the law does not say about the issuance of a notification for the establishment of the Commission. The Notification issued in the year 2015 was a mistake of officials of the Establishment Department and that is why the same was not published in the official gazette and unless such like notification is published in the official gazette, the same will have no legal force. Sections 3 and 4 of the Act are required to be read together and if the same are read independent of each others, the same would be meaningless. Section-3 of the Act says that the Government shall establish a Commission while Section-4 says about composition of the Commission. The moment the Commissioners were appointed, the Commission stood established, e.g. In case the Provincial Government had issued an executive order to establish the Commission but without any Commissioners, could it safely be said that the Commission had become functional. The word 'established' should be read with 'functional' and as and when the Commission became functional, it became established. Further submitted that after the enactment of the Act, 2014, the Legislative Committee was constituted, where after the Search and Scrutiny Committee came into field. After proper advertisement for suitable persons, the Director- General and Prosecutor-General were appointed and thus on 20th August, 2014, the Commission stood established. The learned Advocate-General referred to Section 50 of the Act and stated that where the word notification was necessary, the same was used in the Act and the objection of petitioners is without any force because notifications in fiscal laws and money matters are normally issued but in other laws, it is the law itself either to intend issuance of such a notification or not. Only that notification cannot be issued with retrospective effect when certain rights are taken from the citizens but where no rights are infringed, the same can be issued with retrospective effect.
8. Mr.Umar Farooq Adam, Addl; Advocate-General argued that no literal meaning could be given to the provisions of Article-142(b) of the Constitution. He referred to the Repot of the Committee on 18th amendment and stated the terms of Reference was that the Committee shall propose amendments to the Constitution keeping in view the 17th Amendment, Charter of Democracy
(CoD) and provincial autonomy, in order to meet the democratic and Islamic aspirations of the people of Pakistan. He referred to Articles 142, 143, 149, 154 of the Constitution before 18th amendment and after 18th amendment, wherein the words 'concurrent' have been omitted. So, the decision of the Parliament was unanimous to omit the Word concurrent used in various Articles of the Constitution including 142(b), therefore, it cannot be said that the powers given to the Federation and the Provinces are concurrent on the three laws mentioned in it. According to him, the Ehtesab Commission Act is in no way and by no stretch of imagination is inconsistent or repugnant to the provisions of the Constitution. One can say that criminal law mean Pakistan Penal Code, criminal procedure as the Criminal Procedure Code and evidence means the Qanun- eShahadat Order. The question of inconsistency, repugnancy and occupied field would not arise if explanation (b) of Clause (2) of Article-270AA of the Constitution is read with entries Nos.16 and 46 of the deleted concurrent list; that the NAO is a sunset law because sub-clauses (a) and (d) of Article 142 would make it territorial; that all the judgments referred to by the learned counsel for the petitioners about inconsistency, repugnancy and occupied field were regarding fiscal matters. He placed reliance on PLD 1976 Sc 483 H. Note (d) and AIR 1939 Federal Court, 74 (Page-84). The learned AAG further submitted that the Ehtesab Commission Act only supplement the field of corruption and corrupt practices and it is neither contradictory, nor inconsistence nor repugnant.
This situation would arise only when one law says No and the other says Yes. In this regard he also placed reliance on the case of Asfand Yar Wall Khan. While comparing the two laws, he read the Preambles of the two laws and stated that both of them are on the same subject matter and the same agenda, so there is no contradiction. Similarly, the other Sections are also not in conflict with each others. He also argued that NAO is wider in scope, which applies to all persons whereas the Act covers only the public office holders and the question of occupied field would thus not arise.
Under the provisions of Ehtesab Commission Act, the Legislative Committee as well as Search and Scrutiny committee after inviting objections from the public would make appointment of Director- General but in the NAO this power rests only in one person i.e, the Chairman. In the NAO, the officers have a share in the recovery and nothing is provided in the Ordinance about audit whereas in the Act there is an external audit- mechanism. The learned AAG concluded that there is no inconsistency or repugnancy and relied upon the case of District Bar Association, Rawalpindi v.
Federation of Pakistan (PLD 2015 SC 401).- Head Note (AA).
9. Mr. Yahya Zahid Gillani, Prosecutor-General, assisted by Zahid Aman, DPG, Qazi Babar Irshad and Lajbar Khan, ADPGs, while arguing the case on behalf of the Ehtesab Commission adopted the arguments of the learned Additional Advocate-General and stated that none of the sections of the Ehtesab Commission Act either are In violation of the provisions of the Fundamental Rights or in conflict with the provisions of the Constitution or the National Accountability Ordinance, 1999. They in support of their arguments also relied upon certain judgments of the superior Courts.
10. The learned Additional Attorney-General, while assisting the Court, argued that the National Accountability Ordinance, being a , central law, has already been promulgated in the year 1999, which has further passed the test of validity from the apex Court in the case of Asfand Yar Wali Khan; therefore, the Provincial Legislature cannot make any law on the same subject for which the competent authority under Article 270-AA(1) and (2) of the Constitution is the Federal Legislature, unless the same is repealed or amended by the competent authority. According to him. The Central law is standing on much higher pedestal than the Provincial law and it is to remain in the field under' Article-270AA(2) of the Constitution. Further submitted that the powers under Article 142(b) of the Constitution are concurrent and although Provincial Legislation is competent to make a law but in such concurrency of power, it cannot overlap an existing and valid law already enacted by the Federal Legislature, so the competency of the Provincial Government in this regard would be restricted by the doctrine of 'occupied field'. The learned Additional Attorney-General further submitted that when there are two laws, one made by the Federation and the other by the Province, the Federal law would be given preference under Article 143 of the Constitution, and the law so made by the Province being ultra vires the Constitution, is required to be declared so.
11. Mr. Muhammad Jamil Khan, Deputy Prosecutor-General on behalf o? The NAB adopted the arguments of the learned Additional Attorney General and stated that in presence of NAO, no scope is left for the Provincial Government to make a law on the same subject as the field is already covered.
12. Arguments of the learned counsel for the parties were heard.
13. In January, 2014, the Provincial Legislature passed an Act known as the "Khyber Pakhtunkhwa Ehtesab Commission Act (Act No,I of 2014)". The Preamble of the Act is reproduced herein below for facility of reference:- WHEREAS the Provincial Government of the Khyber Pakhtunkhwa is desirous to implement the Charter of Good Governance of the Provincial Government, in order to ensure the implementation of laws, safeguard of citizens' rights, and provide justice without delay and in a transparent manner under a system of good governance; ' AND WHEREAS pursuant to Articles 37 and 38 of the Constitution of the Islamic Republic of Pakistan, all citizens have a right to the promotion of social justice and social and economic well-being through efficient, honest and effective management of public resources; ' AND WHEREAS the Charter of Good Governance of the Provincial Government, requires the provision of a comprehensive redressal mechanism to address failure or misconduct on the part of public office holders, while misusing or abusing their powers or authority through corruption, corrupt practices, misappropriation of property, receiving kickbacks, commissions and for matters connected and ancillary or incidental thereto; ' AND WHEREAS it is expedient to provide for a mechanism through which the recovery of Government money and other assets from Public Office Holders, who have misappropriated or received such money or assets through corruption, corrupt practices and misuse of power or authority can be achieved; ' NOW, THEREFORE, it is expedient to establish an autonomous and accountable anti-corruption institution in the Province of the Khyber Pakhtunkhwa, in order to promote the Integrity and accountability of public sector administration.
' This Act was further amended through Act No,XXVII of 2014 and then through Act No,XXXI of 2015. In the principal Act, under Section 57 the West Pakistan Anti-Corruption Establishment Ordinance, 1961 was repealed but in the amending Act No, XXVII of 2014, Section 57 was deleted and new subsection (5) was added to Section 35 as under:- "Subject to subsection (2) the Anti-Corruption Establishment established under the West Pakistan Anti-Corruption Establishment Ordinance, 1961 shall in addition to its functions under the Act ibid, also act in aid or assistance of the Commission."
' Through Amending Act No,XXXI of 2015, Section 1(3) was substituted to the following effect:- "(3) It shall come into force at once and shall be deemed to have taken effect from the 1st day of January, 2004: ' Provided that all the amendments made in this Act till the ' mme nc e me n t of the Khyber Pakhtunkhwa Ehtesab Commission (Amendment) Act, 2015, shall be deemed to have come in to force from the 1st day of January, 2004."
14. The Ehtesab Commission Act, 2014 provides for the investigation in respect of a complaint or information received by the Director-General or on the recommendation of the Prosecutor General and the Director of the Investigation Wing, as the case may be, order an inquiry or investigation into any incident or an act or omission of a person or accused, that reasonably appears to constitute an offence under the Act. Section 35(2) of the Act further provides that the Director General, may, on the recommendation of the Prosecutor General and the Director of the Investigation Wing, order that the inquiry or investigation be conducted with thc aid or assistance of any other agency of Government or Federal Government. Similarly sub-Section (3) of Section 35 is to the effect that if jurisdiction over the inquiry or investigation of a suspected offence is assumed by an agency of the Federal Government, the Director General shall meet with the relevant officers of such agency and determine whether the Commission or such agency has proper jurisdiction over the matter; provided that in making such determination, the Director General shall take into regard the following factors: a) the stage of inquiry or investigation being conducted by the Commission at the time of assumption of jurisdiction by Federal Agency; b) territorial location from where evidence has been collected during the inquiry or investigation; and c) place of residence of prosecution witnesses who are to testify against the accused.
' Subsection (4) of Section 35 of the Act further says that:- 'Following a determination based on the factors mentioned in subsection (3), the Director General shall make a recommendation to such agency of the Federal Government with regard to exercise of jurisdiction over the matter in the interest of effective prosecution and crime prevention and the decision of the agency of the Federal Government in the matter shall be final and binding."
' Section 36 of the Act deals with Cognizance of offences while Section 39 (Part-IV) relates to trial and under Section 41 of the Act, Ehtesab Courts are to be established within thirty days of the commencement of the Act. In Section 42, Procedure for Trial is given. Under Section 56 of the Act it has been provided that an effort shall be made to interpret this Act harmoniously with other Federal laws on the subject; provided that in the event of a conflict between this Act and a Federal law, the provisions of the Federal law shall prevail.
15. The first question to be determined is whether the Ehtesab Commission Act, 2014, its subsequent amendments and the Notification are in conflict with Articles 142 and 143 of the Constitution of Islamic Republic of Pakistan when the federal legislation i.e, National Accountability Bureau Ordinance, 1999 and other laws relating to anti-corruption on the same subject are already in the field? The vehemence of learned counsel for the petitioners was on the point that under Article-143 of the Constitution, it is the Federal law, which shall prevail over the Provincial law and as the National Accountability Bureau Ordinance, 1999 (hereinafter called the Ordinance) has already been promulgated by the Federal Government, therefore, the principle of 'occupied field' would attract to the case and the Act of the Provincial Assembly, being in conflict with the provisions of the Constitution, is required to be declared as ultra vires the Constitution.
16. The Constitution (Eighteenth Amendment) Bill, 2010 was passed by the National Assembly of Pakistan on April 8, 2010 and by the Senate on April 15, 2010. It received the assent of the President and became an Act of Parliament on April 19, 2010. Amongst the most important provisions of the Constitution (Eighteenth Amendment)Act(hereinafter "the 18th Amendment") are those relating to amendment of the Fourth Schedule of the Constitution, which contained the Federal Legislative List (Part I and Part II) and Concurrent Legislative List. By omitting the Concurrent Legislative List, the 18th Amendment has fundamentally altered the division of legislative Dowers between Parliament and the Provincial Assemblies, resulting in a significant increase in the extent of Provincial autonomy. The 18th Constitutional Amendment was unanimously passed by the Parliament and notified in the Gazette of Pakistan on 20th April, 2010. This amendment introduced about thirty six percent changes in the 1973 Constitution of Pakistan by amending, inserting, adding, substituting or deleting various Articles of the Constitution. The 18th Constitutional Amendment has redefined the structural contours of the state through a paradigm shift from a heavily centralized to a predominantly decentralized federation. Literature suggests that federalism was originally devised and continues to be viewed as an institutional mechanism for dividing power and sovereignty between national and regional levels of governments in order to reduce the likelihood of an authoritarian or overly centralized government. In this context, the new constitutional framework of Pakistan has reinforced a multilevel governance system by extending greater autonomy to the federating units (provinces) and laying down fundamentals of substantive decentralization at the lower tiers of the local governance. Pakistan's Constitution delineates the extent of executive authorities of federal and provincial governments through Articles 90 and 137 respectively. The executive authority of the federation extends to matters with respect to which the Parliament holds the power to make laws, including the exercise of rights, authority and jurisdiction in and outside Pakistan, while the executive authority of the province extends to matters with respect to which the ,provincial Assembly has the power to make laws. Principally, the executive authority has been conditioned with the legislative authority at the federal and provincial levels. The 18th amendment has re-demarcated the jurisdictions of Pakistan's multi-level governance at the federal, inter- provincial and provincial levels by revising the Federal Legislative List Part I and Part II and abolishing the erstwhile Concurrent Legislative . List. Subsequently, the legislative and executive authorities of the federal and provincial governments have been delimited by assigning the exclusivity of 53 subjects to the federal government, 18 subjects to the Council of Common Interests and all residual subjects to the provincial governments. Further redistribution of functions at the district, tehsil and union council levels has been vested with the provincial governments in accordance with the policy framework enunciated in Article 140(A) of the Constitution.
17. Article 270AA (6), as amended, provides that notwithstanding omission of the Concurrent Legislative List, all laws with respect to any of the matters enumerated in the said List (including Ordinances, Orders, rules, bye-laws, regulations and notifications and other legal instruments having the force of law) which were in force immediately before the commencement of the 18th Amendment, shall continue to remain in force until altered, repealed or amended by the competent authority. The Explanation to Clause (2) of Article 270AA defines "competent authority' to be: (a) in respect of all laws, the appropriate Legislature; and (b) in respect of notifications and rules etc., the authority in which the power to make, alter, repeal or amend the same notifications and rules etc vests under the law. In the light of the said provisions of Article 270AA (2), the competent authority for all the residual matters is now the Provincial Assembly in respect of each Province under Article 142(c).
18. It may be mentioned here that under various substantive penal laws of Pakistan, the offences of corrupt and corrupt practices were offences and carrying punishment of three years to life imprisonment but to eradicate corruption more effectively from the Government institutions, the Prevention of Corruption Act, 1947 was promulgated, which provided the enhanced sentence of 7 years imprisonment. In 1975, Pakistan Special Police Establishment (PSPE) was replaced with the Federal Investigation Agency (FIA) having jurisdiction over corruption along with other crimes.
Ehtesab (Accountability) Bureau was created under the Ehtesab Act 1997, specially aimed at elimination of corruption, but in the year 1999, the National Accountability Ordinance 1999 (NAO), replaced the defunct Ehtesab (Accountability) Bureau with its National Accountability Bureau (NAB). Simultaneously, to deal with corruption at provincial level, Anti-Corruption Establishments
(ACEs) were created in each of the four provinces.
19. There is no cavil to the proposition that the menace of corruption is a big problem for this country. Corruption is indeed a poison which squanders Government resources, deters investment, stunts economic growth undermines democracy and good governance, fuels poverty and hunger and also creates political instability. Though by the grace of ALMIGHTY ALLAH, our country has rich natural resources in the shape of oil, gas, mine and minerals, stones etc., but due to corrupt elements, our country could not be developed. On 11.08.1947, the founder of Pakistan Qaid-e-Azam Muhammad Ali Jinnah, in his landmark address to the first Constituent Assembly of Pakistan, unequivocally identified the first priorities of his Government and that included 'Eradication of Corruption'. His valuable words are quoted below. The first observation that I would like to make is this:- "You will no doubt agree with me that the first duty of a Government is to maintain law and order, so that the life, property and religions beliefs of its subjects are fully protected by the State. The second thing that occurs to me is this, one of the biggest curses, from which India is suffering. I do not say that other countries are free from it, but, I think our condition is much worst, is bribery and corruption. That really is a poison. We must put that down with an iron hands and I hope that you will take adequate measures as it is possible for this Assembly to do so."
' In his speech delivered on 26.03.1948, the founder of the nation also pointed out the social order he intended to establish in the newly founded homeland where he said:- "You are only voicing my sentiments and the sentiments of Muslims or Mussalmans. When you say that Pakistan should be based on sure foundation of social justice and Islamic Socialism, which emphasis's equality and brotherhood of man. Similarly you are voicing my thoughts in asking and in inspiring for equal opportunities for all."
' The august Supreme Court of Pakistan in the Suo Motu Case No, 18 of 2010 (2014 SCMR 585) has held that:- "Corruption is a particularly iniquitous malady that has plagued Pakistan even before its inception.
We as a nation have utterly failed to adhere to the counsels of our incorruptible Quaid-eAzam Muhammad Ali Jinnah, who in 1945 wrote a letter to Mirza Abol Hassan Ispahaid wherein he stated, Corruption is a curse in India and amongst Muslims, especially the so-called educated and intelligentsia. Unfortunately, it is this class that is selfish and morally and intellectually corrupt. No doubt this disease is common, but amongst this particular class of Muslims it is rampant."
' Similarly, in the case of All Pakistan Newspapers Society v. Federation of Pakistan (PLD 2012 SC 1), their lordships have observed that:- "Legislation of law is the domain and prerogative of the legislature, which has wisdom to promulgate a law to achieve a particular object and purpose, presumably promulgating such laws legally, validly on the basis of its competence."
The august Supreme Court of Pakistan in the case of Pir Sabir Shah. v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. And another (PLD 1995 SC 66) has held that:- "Legislative act cannot be struck down by a superior Court on the grounds of mala fides, or lack of bona fides or non-application of mind in exercise of such power- Executive action, however, is not immune front being challenged on the said grounds under Art.199 of the Constitution of Pakistan (1973)."
' In Zeman Cement Company (Pvt.) Ltd v. Central Board of Revenue and others (PLD 2002 SCMR 312) the following observations have been made by their lordships of the august Supreme Court ofPakistan:- "Function of judiciary is not to legislate or question the wisdom of Legislature in making a particular law nor it can refuse to enforce law even if the result of it be to nullify its own decision, provided the law is competently made - Vires of law can only be challenged being violative of any provision of the Constitution, but not on the ground that it nullifies the judgment of superior Court."
' In another case reported in 2013 SCMR 34 from Indian jurisdiction, it has been held that:- "Legislative enactment could be struck down by court only on two grounds, firstly where the appropriate Legislature did not have competency to make the law and secondly, where it (enactment) abridged any to of the fundamental rights enumerated in the Constitution or any other constitutional provisions."
' The august Supreme Court of Pakistan in its recent judgment in the case of Lahore Development Authority through D.-G. And others v. Ms. Intrana Tiwana and others (2015 SCMR 1739), has held that:- "64. The power to strike down or declare a legislative enactment void, however, has to be exercised with a great deal of care and caution. The Courts are one of the three coordinate institutions of the State and can only perform this solemn obligation in the exercise of their duty to uphold the Constitution. This power is exercised not because the judiciary is an institution superior to the legislature or the executive but because it is bound by its oath to uphold, preserve and protect the Constitution. It must enforce the Constitution as the Supreme Law but this duty must be performed with due care and caution and only when there is no other alternative.
65. Cooley in his "Treatise on Constitutional Limitations", Pages 159 to 186, H.M. Seervai in "Constitutional Law of India", Volume I, Pages 260 to 262, the late Mr. A. K. Brohi in "Fundamental Law of Pakistan", Pages 562 to 592, Mr. Justice Fazal Karim in "Judicial Review of Public Actions" Volume I, Pages 488 to 492 state the rules which must be applied in discharging this solemn duty to declare laws unconstitutional. These can be summarized as follows:-- I. There is a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute is placed next to the Constitution and no way can be found in reconciling the two; II. Where more than one interpretation is possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favours validity; III. A statute must never be declared unconstitutional unless its invalidity is beyond reasonable doubt. A reasonable doubt must be resolved in favour of the statute being valid; IV. If a case can be decided on other or narrower grounds, the Court will abstain from deciding the constitutional question; V. The Court will not decide a larger constitutional question than is necessary for the determination of the case; VI. The Court will not declare a statute unconstitutional on the ground that it violates the spirit of the Constitution unless it also violates the letter of the Constitution; VII. The Court is not concerned with the wisdom or prudence of the legislation but only with its constitutionality; VIII. The Court will not strike down statutes on principles of republican or democratic government unless those principles are placed beyond legislative encroachment by the Constitution; IX. Mala fides will not be attributed to the Legislature.
20. The National Accountability Ordinance, 1999 is a law promulgated by the Federal Government before 18th amendment. Before 18th amendment in the Constitution, the subjects of criminal law, criminal procedure, civil procedure and evidence were part of the Concurrent Legislative List at S.Nos.1, 2 and 4 by virtue of which the Parliament and Provincial legislatures both were competent to make laws on these topics. After 18th amendment, the concurrent list was omitted in its totality and these subjects were neither inserted in the Federal Legislative List, nor were kept on the Concurrent Legislative List, however, the three subjects i.e, criminal law, criminal procedure and evidence were mentioned in Article-142 (b) of the Constitution as under:- "142(b)-- Majlis-e-Shoora (Parliament) and a Provincial Assembly shall have power to make laws with respect to criminal law, criminal procedure and evidence."
' The learned counsel for petitioners gave their interpretation to Clause (b) of Article 142 of the Constitution in the sense that this is a mini concurrent list, on which both the Parliament and a Provincial Assembly have powers to make laws while the provisions of this Article, itself, are clear enough in respect of distribution of legislative powers between Parliament and Provincial Legislatures, which provide that the Federal and the Provincial Legislatures within their respective domains would be competent to make laws on the said subjects. For the sake of convenience, entire Article 142 is reproduced here as under:- 142(a) Majlis-e-Shoora .(Parliament) shall have exclusive power to make laws with respect to any matter in the Federal Legislative List;
(b) Majlis-e-Shoora (Parliament) and a Provincial Assembly shall have power to make laws with respect to criminal law, criminal procedure and evidence;
(c) subject to paragraph (b), a Provincial Assembly shall, and Majlis-e-Shoora (Parliament) shall not, have power to make laws with respect to any matter not enumerated in the Federal Legislative List;
(d) Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to all matters pertaining to such areas in the Federation as are not included in any Province."
21. We are acutely aware of the fact that what we are interpreting is a provision of the Constitution.
Indeed the Constitution is a law, in its ordinary sense; however, it is also a law made by the people as a nation, through its Constituent Assembly. Written constitutions seek to delineate the spheres of actions of the various organs of the State, with more or less strictness, and the extent of powers exercisable therein. The Report of the Special Committee of the Parliament on Constitutional Reforms would reveal that Provincial Autonomy was also one of the terms of reference. When we look at Articles 141, 142 and 143 of the Constitution relating to the (extent of Federal and Provincial laws); (Subject matter of Federal and Provincial laws); (Inconsistency between Federal and Provincial laws), we find that legislative powers of the parliament are spoken of in the said articles in terms of laws mentioned in the Federal Legislative List; powers with a Provincial Assembly to make law with respect to the three subjects mentioned in Article 142 (b); the incompetence of the Parliament to make laws with respect to any matter not enumerated in the Federal Legislative List; and that an Act of Parliament shall prevail over an Act of the Provincial Assembly and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void. It is a well known dictum of statutory and constitutional interpretation that when some words or phrases are used in the Constitution, same meaning should be ascribed, unless the context demands otherwise. Articles 142, 143, 144, 149, 154 of the Constitution before 18th amendments were having the words 'concurrent', but these words have now been omitted from the said Articles after 18th amendment.
However, the intention of the framers of the 18th amendment is very much visible to the extent by retaining the three subjects in clause (b) of Article 142 of the Constitution with the Parliament and the Provincial Assembly and in case of repugnancy between the law made by the two legislatures, the provisions of Article 143 would be attracted. Giving a plain meaning to it would lead us to the inference that the powers are exercisable by both the legislatures if not in conflict with each other.
22. The term 'ultra vires' simply means "beyond powers" or "lack of power". The term 'ultra vires' signifies a concept distinct from "illegality". In the widest sense every thing that is not warranted by law is illegal but in its proper or strict connotation "illegal" refers to that quality which makes the act itself contrary to law. We, therefore, hold that keeping in view the provisions of Article 142 (b) and other relevant Articles of the Constitution; the Ehtesab Commission Act is not ultra vires to the provision of the Constitution, as the same was within competence of the Provincial Legislature.
23. The Ehtesab Commission Act, 2014 was made pursuant to Articles 37 and 38 of the Constitution of Pakistan. The objection of the learned counsel for the petitioners was that the said Articles relate to promotion of social justice and economic well-being, under which a criminal law cannot be enacted. Perusal of Article 37 of the Constitution would, however, reveal that it relates to promotion of social justice and eradication of social evils. Corruption or corrupt practices are now-adays indeed a social evil, thus the Provincial Assembly could competently make a law to effectively curb the social evils from the society. When a legislative body enacts a law, it exercises its legislative function. The essentials of such function are the determination of the legislative policy. Basically, social evil is anything that could be considered harmful or dangerous to a person who is involved in it but also the people who are related to him or live around him i.e, the whole society and/or community.
24. Another question raised by the learned counsel for the petitioners was that the Ehtesab Commission Act, 2014 is repugnant to the National accountability Bureau Ordinance, 1999. The question of repugnancy becomes material when the law made by parliament and the law by the Provincial Legislature on the same subject are contradictory to each other, dealing with the same matters, but where the two laws can simultaneously be run without overlapping rather are supplemental in I nature, the question of repugnancy would not arise. One of the tests of repugnancy is that there is a direct conflict between the two laws which are said to be repugnant to each other. These should be a presumption in favour of the validity of a law and every effort should be made to reconcile them and construe both so as to avoid their repugnancy, which in other case must exist in fact and not merely on a possibility. Care should also be taken to see whether the two really operate in the field without encroachment. A comparison of the two laws would reveal that there is no inconsistency in the actual terms of the Ordinance and the Act. The learned counsel for petitioners also laid great stress on the point that under the NAB Ordinance the appointment of Chairman NAB is subject to consultation with the Chief Justice of Pakistan, whereas under the Ehtesab Act no such consultation is required for appointment of the Commissioners and Director General, who has been given vast powers under the Act. A look at the provisions of the Act would, however, reveal that appointment of the Commissioners and Director General is not the job of one person. Under Section 5 of the Act the Legislative Committee, consisting of ten members of the Provincial Assembly, nominated on the basis of equal representation of both treasury and opposition benches shall confirm nominees for the Search and Scrutiny Committee. The Search and Scrutiny Committee shall comprise five (05) members of high moral integrity, repute and statures, which shall seek applications for the position of Commissioners from the general public through public advertisements and evaluate the eligible candidates in accordance with the process given in Section 8(3) of the Act. Under Section-9 the Commission shall appoint the Director General, Prosecutor General and Director Internal Monitoring and Public Complaints Wing for the smooth functioning of the Commission and effective discharge of the statutory obligations of the same. In view of the above procedure for appointment of the Commissioners and other staff of the Commission, we do not apprehend that the appointment of Commissioners have no transparent procedure in the Act.
' The provisions of National Accountability Ordinance, 1999 and Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 are at par with each other and, in case of assuming parallel jurisdiction over a matter, the provision of Section 35 of the Khyber Pakhtunkfiwa Ehtesab Commission Act, 2014 would be resorted to. As per Section 35(3) of the Act:- "If jurisdiction over the inquiry or investigation of a suspected offence is assumed by an agency of the Federal Government, the Director General shall meet with the relevant officers of such agency and determine whether the Commission or such agency has proper jurisdiction over the matter; provided that in making such determination, the Director General shall take into regard the following factors.
(a) the stage of inquiry or investigation being conducted by the Commission at the time of assumption of jurisdiction by Federal Agency;
(b) territorial location from where evidence has been collected during the inquiry or investigation; and
(c) place of residence of prosecution witnesses who are to testify against the accused.
(4) Following a determination based on the factors mentioned in subsection (3), the Director General shall make a recommendation to such agency of the Federal Government with regard to exercise of jurisdiction over the matter in the interest of effective prosecution and crime prevention and the decision of the agency of the Federal Government in the matter shall be final and binding."
' Section 56 of the Act further provides that:- "An effort shall be made to interpret this Act harmoniously with other Federal laws on the subject; provide that in the event of a conflict between this Act and a Federal law, the provisions of the Federal law shall prevail."
' The above provisions of the Act have thus left enough room for the Federal law, in that, the functionaries under the Ehtesab Commission Act would not initiate proceedings in a matter, for which a federal agency has already taken cognizance unless the said federal agency is convinced that the matter pertains to their jurisdiction and in case of any conflict between the Act and a Federal law, the provisions of the Federal law shall prevail. We cannot go into the extent of that academic discussion, as to what would be the impact of such law on an individual, because it can be resolved keeping in view the nature of inconsistency and repugnancy involved in a particular case but so for as the instant case now before us is concerned, it cannot be said that the two laws cannot stand together and indeed on a scrutiny of the provisions of the two laws, there can be no doubt that they may very well be treated to be complementary to each other. Only keeping the two laws in juxtaposition is not a safe idea to determine the question of occupied field because it has also to be seen whether the two laws can proceed side by side without blocking each other. In the case of Aftab Shahban Mirani and others v. Muhammad Ibrahim and others (PLD 2008 Supreme Court 779) the learned Apex Court has laid down as under:- "Conflict of two provisions- Principle- Redundancy cannot be attributed to any provisions of law rather the wisdom of the legislature in case of any conflict of two provisions, the rule of harmonious interpretation is followed."
In the case of District Bar Association, Rawalpindi and others v. Federation of Pakistan and others '
(PLD 2015 SC 401) the august Supreme Court of Pakistan has held that:- "Constitutions of foreign countries relevance of-- Any reading of the Constitution of Pakistan must be firmly grounded in Pakistan's historical facts and Constitutional text and not on the irrelevant historical facts of foreign countries."
' In fact, the Dominion of Canada has a written as well as partly unwritten constitution. It is not modeled on the doctrine of exclusive division of power between the departments of State, legislative, executive and judicial. It does not place them in three water-tight compartments and it is somewhat similar in shape in this respect to the British constitution where the King is still a part of the legislature, the House of Lords still a part of the judicial as well as legislative and where all parts of government form a mutual check upon each other. Here the scenario is quite different particularly after the 18th amendment. There is very thin line of difference between the doctrines of Repugnancy and Occupied Field. As we know that repugnance arises only if there is an actual conflict between two legislations, one enacted by the Federal and the other by the Provincial Legislatures, both of which were competent to do so. After 18th Amendment, the scenario of occupied field has gone a manifest change as the concurrent legislative list has been omitted. It would be attracted only in respect of the subjects mentioned in clause (b) of Article 142 of the Constitution and, that too, when there is a repugnancy between the laws made by the Federal and the Provincial Legislatures within the meaning of Article 143. In the case of Province of West Pakistan and another v. Mahboob Ali and another (PLD 1976 SC 483), their lordships of the August Supreme Court of Pakistan have held that:- "Repugnant" Meaning.
' According to the Oxford Dictionary the word "repugnant" means "contrary or contradictory to, inconsistent or incompatible with, divergent from, standing against something else."
' As we have earlier observed that the Concurrent Legislative List has been omitted after the 18th amendment and the three subjects given in Article 142 (b) of the Constitution if read together with Clauses (a) and (c) of the said Article are now the subjects within the respective domains of the Federal and Provincial Legislatures. The intention of the Parliament can be either express or implied.
Express intention can be shown explicitly by enacting a Federal Law on the same subject. As the Federal law was promulgated earlier than the Provincial Law before the 18th Amendment, which still holds the field but the Provincial Legislature has made its own law within its competence conferred by clause (b) of Article 142 with all curing provisions contained in Sections 35 and 56 of the Act of 2014.
' The learned counsel for the petitioners also relied on the case of Ch. Muhammad Siddique and 2 others v. Government of Pakistan through Secretary, Ministry of Law and Justice Division, Islamabad and others (PLD 2005 Supreme Court 1) and submitted that vires of the Punjab Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Act (V of 2003) was challenged and the august 'Supreme Court of Pakistan held that the Federal Government had already enacted law in the shape of Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses)
Ordinance, 2000 which being valid and in force, the Provincial Legislature of Punjab was not legally competent to enact the Punjab Marriage Functions, (Prohibition of Ostentatious Displays and Wasteful Expenses) Act, 2003 as the Federal Law having Supremacy under Art. 143 of the Constitution, the law enacted by the Provincial Assembly viz. Punjab Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Act, 2003 being ultra vires was struck down.
Nevertheless, the law enacted by the Provincial Government was struck down but at that time the Concurrent Legislative List was part of the Constitution and under Article 143 (prior to 18th amendment), the Federal Law was to prevail over the Provincial Law. By now, the situation has been altogether changed and all the matters not mentioned in the Federal Legislative List have fallen back to the Provinces. Besides, the Act of 2014 is within the Legislative competence of the Provincial Legislature under Article 142(b) of the Constitution and there is no overlapping and conflict between the Federal and Provincial Law. As observed earlier, the subjects, mentioned in Article 142, are within the respective domain of the Federal and Provincial Legislatures. Therefore, the question of repugnancy wider Article 143 of the Constitution does not arise in the present case.
25. Another argument of the learned counsel for the petitioners was that under Section 3 of the Act, after the commencement of the Act, the Government should have established a Commission through a Notification duly published in the official gazette but neither such. a notification was issued nor the same was duly published in the official gazette, and although subsequently through an executive notification dated 14.09.2015 (not published in the official gazette), retrospective effect has been given to the establishment of the Commission, so, all the acts done and actions taken by the Commission are void ab initio. The argument of the learned Advocate-General that issuance of notification was not the requirement of law seems to be forceful if Sections-3 and 4 are read together coupled with the well established principle of the interpretation of statutes that the words and phrases used in a Statute should be read keeping in view their plain meaning. Sections-3 and 4 of the Act are to the following effect:- "3(1) - As soon as, after the commencement of this Act, Government shall establish a Commission, to be known as the Khyber Pakhtunkhwa Ehtesab Commission.
4(1) - The Commission shall consist of five Commissioners nominated by the Search and Scrutiny Committee and confirmed by the Legislative Committee on Governance and Accountability in accordance with the provisions of this Act.
' As evident from the above provisions, the Government shall establish a Commission, consisting of five Commissioners nominated by the Search and Scrutiny Committee and confirmed by the Legislative Committee on Governance and Accountability in accordance with the provisions of the Act. Bare reading of the Ehtesab Commission Act would reveal that wherever it was necessary to use the word Notification, the same was mentioned in the relevant sections, such as Sections 50 and 51 of the Act. The word 'notification' has not been used in Section-3 of the Act like Section 5(k) of the National Accountability Ordinance, 1999 which expressly demands issuance of notification for the establishment of National Accountability Bureau. When in a Statute the establishment of an institution is subject to issuance of a notification, issuance of the same becomes sine qua non but there seems to be no intention of the legislature that establishment of the Commission was subject to issuance of a notification. Sections 3 and 4 of the Act if are read together would reveal that the moment the Commissioners were appointed, the Commission stood established. The requirement of law was to establish a Commission and the same could not have been established unless the Commissioners were appointed as per procedure given in Section 4 and onward for the composition of the Commission. As and when the Commission became functional, it stood established. Under the Act, a Legislative Committee was constituted, whereafter the Search and Scrutiny Committee was formed, which gave recommendation for appointment of suitable persons on the posts of Commissioners. The Committee also duly made advertisement for appointment of the Director-General and Prosecutor-General. The process was completed as early as on 20th August, 2014, and from that date, the Commission stood established. Further, the phraseology 'It shall come into force at once and shall be deemed to have taken effect from the 1st day of January, 2004' used in Section 1(2) and (3) of the Amending Act, 2015 is a part of the Principal Act from the time the Principal Act came in to force i.e, on 18th January, 2014 when the same was notified after getting the assent of the Governor on 13th January, 2014. The judicial pronouncements by the superior Courts, particularly by the Supreme Court, are that it is not for the Courts to fill in the lacuna or remove the defects in the enactment. It is for the legislature to look into the matter. So, if the meaning of a statute is not plain, it may be a ground for construction by implication, but the general rule is not to import words into statute, which are not found there.
Amending statutes cannot be construed as having retrospectivity, if they affect vested interest. But if the amendments in the statute are pertaining to the procedure then those amendments should be construed as having retrospective effect. The amendments in the Act, 2014, under challenge, pertain to the procedure, and it is expressly provided in the Act that all the amendments shall be deemed to have come into force from 01.01.2004. Generally, retrospectivity to the amendment is ipso facto applied but the Ehtesab Commission Act, has expressly given retrospective effect to the amendments pertaining to procedure. Reliance can be placed on Asfandyar Wali's case.
' In view of the above discussion, our answer to the first query would be that the Ehtesab Commission Act, 2014, its subsequent amendments and the notification are neither in conflict with Articles 142 and 143 of the Constitution of Islamic Republic of Pakistan nor the same are repugnant to the provisions of National Accountability Ordinance, 1999, rather its nature is that of a special supplemental law to the subject of curbing the corruption and corrupt practices.
26. The second question for determination is, whether this law is in contravention of the fundamental rights enshrined, inter alia, in Articles 10-A, 12 and 25 of the Constitution of Islamic Republic of Pakistan, 1973?
' Article 10-A of the Constitution says that:-"Right to fair trial.
For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process."
' The provisions of NAB Ordinance and that of KP Ehtesab Commission Act, 2014 are almost of the same nature with similar procedure of trial. Section 40 of the Act, 2014 relates to Policy objectives for trial of offences, which reads as under:- "Section 40: Policy objectives for trial of offences.---- "(1) The trial for any offence suspected to have been committed under this Act shall be carried out keeping in mind the following policy objectives:
(a) that the accused has the right to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) that the accused has the right to adequate time for the preparation of his defence;
(c) that the accused has the right to defend himself in person or through a pleader of his own choosing, or if he does not have sufficient means to pay for legal representation, to be given the same for free where the interests of justice so requires;
(d) that the accused has the right to be heard by the Court, for the purposes of the trial against the accused; and
(e) that the accused has the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."
' In view of the above provisions, it cannot be said that under the Act, 2014, an accused has not been given the right of fair trial.
' Article-12 of the Constitution provides protection to a person against retrospective punishment.
The august Supreme Court of Pakistan in the case of Asfandyar Wall in paras 218 and 219 has held that the legislatures are competent to give retrospective effect to an enactment, which the legislature is competent to enact. For ready reference, the relevant portions of the said paras are reproduced herein below:-
218. Article 12 of the Constitution does not deprive the legislature of its power to give retrospective effect to an enactment, which the legislature is competent to enact. It merely provides that no law shall authorize the punishment of a person for an act or omission that was not punishable by law at the time of the act or omission; or for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed. Seen in this perspective, the act of 'willful default', is not an act or omission which was punishable by law at the time the same was committed but an act or omission committed 30-days after the promulgation of the Ordinance whereby the offence of 'willful default' under Section 5(r) was created. As stated above, it was in the nature of a continuous wrong, which was converted into an offence prospectively i.e, in a case where such wrong/willful default continued even after the expiry of 30-days of the promulgation of the impugned Ordinance and not retrospectively. In other words, it is a case where the punishment is prescribed in relation to the breach of a continuing duty which is not performed even within 30-days after the coming into force of the Ordinance. By no stretch of imagination it could be termed retrospective in operation, particularly, in view of the statement made by Mr. Abid Hasan Minto on behalf of the Federation that no prosecution was launched in respect of 'wilful default' where re-payment of loan etc. Was made good within 30- days of the promulgation of the Ordinance.
219. So far as the punishments and creation of offences by the impugned Ordinance are concerned, they are protected by Article 12 of the Constitution, in that, under Article 12 of the Constitution ex post facto legislation can neither create new offences nor provide for more punishment for an offence than the one which was available for it when committed. This is the limited impact of Article 12 of the Constitution. Therefore, the only prohibition as to retrospectivity of the offence, contemplated under clause (I) (a) (b) of Article 12 of the Constitution, is not attracted here.
' From the perusal of. The above quoted paras and keeping in view the arguments of the learned counsel for the petitioners that the Act of 2014 has introduced certain new offences, which were not offences at the time, when the same were committed but they failed to point out any such offences. The Constitution of Pakistan specifically demarcates the contours of Criminal Law of Pakistan by stating unequivocally in Art.9 that, "No person shall be deprived of life or liberty save in accordance with law". And the Law shall never be against the universally accepted Fundamental Rights, this is specifically and explicitly enshrined in Article 8 of the Constitution of Pakistan. The fundamentals of criminal law are based on the principle of justice, equity and good conscience.
They provide adequate guidelines for the formulation of a rational penal policy. The functioning of the criminal justice system is wide enough to achieve its goals and objectives. Its ultimate goal is undoubtedly to make the society safer for its citizens. The protection given by Article-12 of the Constitution may be availed against those offences which were offences at the time when they were sought to be punished but were not offences at the time when they were done. The Ehtesab Commission Act V is thus not ultra vires to Article-12 of the Constitution because the offences mentioned in the Act were punishable offences prior to its promulgation. Corruption and corrupt practices/bribery were offences since long. Bribery and corruption and corrupt practices were punishable offences/crimes as defined in the P.P.C., the Anti-Corruption Act and also in the National Accountability Ordinance, 1999. So, corruption and corrupt practices were already punishable offences prior to the promulgation of the KP Ehtesab Commission Act which is consistent on the touchstone of National Accountability Ordinance, 1999. Punishment for corruption and corrupt practices is 14 years under National Accountability Ordinance, 1999 and similarly the same punishment is provided in the KP Ehtesab Commission Act, 2014 in the same mode. Therefore, the arguments of the learned counsel for the petitioners are without any force.
' Article-25 (1) of the Constitution says that all citizens are equal before law and are entitled to equal protection of law. This means equality among equals. The august Supreme Court of Pakistan in the case of Omat-e-Islami through Amir and others v. Federation of Pakistan and others (PLD 2009 SC 549)
"The principle of equality and equal protection of law embodied in Article 25 of the Constitution envisages that All citizens are equal before law and are entitled to equal protection of law without any discrimination. This principle is however subject to reasonable classification and this Court in Government o Balochistan v. Azizullah Memon (PLD 1993 Supreme Court 341) held that no standard of universal application to the test o 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.
' Although, we cannot comment on the provisions of the National Accountability Ordinance, 1999 but while comparing the various provisions of the two laws, we have noticed that object and purpose of National Accountability Ordinance, 1999, is not to keep accused persons in custody for longer periods but main purpose is to recover outstanding amounts and State money misappropriated by them. Entire scheme of plea bargain, power to freeze property, holding transfer of property void, voluntary return, constitution of Conciliation Committees for payment of loans, reference of cases to Governor State Bank and prior approval of State Bank are directed towards not to keep accused persons in custody for a longer period. As against this, the Ehtesab Commission Act, 2014 in Section 49 though contains favorable sentencing if the accused offers to return the assets or gains acquired or made by him in the course, or as a consequence, of any offence under the Act, the Court may, after taking into consideration the facts and circumstances of the case, look favorably upon such return at the time of sentencing or pronouncement of judgment. These provisions are not in consonance with the provisions of Section-25 of the National Accountability Ordinance, 1999 wherein if an accused 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 the 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. It may be mentioned here that Voluntary Return by an accused amounts to his discharge without losing his job or any other stigma whereas the Plea Bargain amounts to a sentence. Since vires of KP Ehtesab Commission Act, 2014 are under discussion and we cannot comment On any provision of NAO at this stage and we have to accept the same as a valid law, as the same is in the field. So, we can only compare the provisions of Section 25 of the NAO as valid law with that of Section 49 of K.P. Ehtesab Commission Act, 2014. If a person booked under K.P. Ehtesab Commission Act, 2014 would face discrimination as compared to the person booked under the National Accountability Ordinance, 1999 for the similar offence. On this aspect we feel it advisable that Section 49 of the Act of 2014 be suitably amended so that there should be harmony in the provision of Section 49 of the Act of 2014 with Voluntary Return (VR) and Plea Bargain (PB), as contained in the National Accountability Ordinance, 1999.
27. The last question for determination is, whether this law suffers from errors with jurisdiction and errors without jurisdiction and whether its provisions pass the test of reasonability?
' Although, this question finds its reply in the above discussion, but to add further, we may observe that the sole object of the Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 is to curb the mushroom growth of corruption and' corrupt practices by those public office holders, who are grabbing money from the public and public exchequer. The Act is also intended to provide a legal mechanism and judicious machinery to deal with such persons for the purpose of recovery of the looted money. Therefore, the Provincial Legislature has carefully taken into consideration the public interest and safety, not only to bring the accused before the Court of law to face the consequences of their acts but to recover the amount from them also. We have already stated that the Provincial Legislature does not lack legislative competency as the impugned matter also falls within the power of the Provincial Legislature X after the 18th amendment in the Constitution. Therefore, the impugned Act magnificently satisfies the test of reasonableness. We see that the provincial legislature has not overstepped the permissible limits of reasonableness. We are clear in our minds that the Act is never intended to interfere or overlap the provisions of the Ordinance. There is no arbitrariness or unreasonableness in the procedure prescribed in the relevant sections of the Act, nor there is unguided power conferred on the competent authority or the Special Court in this regard. The Act thus stands the test of reasonableness and does not violate the principles of fundamental rights.
28. For the reasons stated above, all the three questions are answered in the negative and the law is declared as reasonable. Resultantly, W.P. No,3104-P/2015, W.P. No,4001-P/2015, W.P. No,1406/2015 and W.P. No,1407-P/2015, wherein only vires of law have been questioned are dismissed, while in Writ Petition No,3811-P/2015 and No,3356-P/2015, although the prayer of interim bail has also been, made but their requests for bail have already been turned down on merits of the case in W.P.
No,3032-P/2015 vide order dated 22.09.2015 and W.P. No,3011-P/2015 vide order dated 02.11.2015, therefore, their request for interim bail cannot be considered again and these writ petitions too are dismissed. In W.P. No,1352-P/2015, W.P. No,1949-P/2015, W.P. No,1936-P/2015, W.P. No,2501-P/2015, W.P.
No,3489-P/2015, W.P. No,2555-P/2015 and No,3500-P/2015 besides vires of law, petitioners had also sought for their release on bail, wherein interim bail has been granted to them, therefore, these writ petitions are dismissed to the extent of vires of law alone and their bails would be considered as per respective merits of their cases. Remaining Writ Petitions, which contain only relief of bail, would also be considered as per their merits. Similarly, W.P.No,3804- P/2015 is in the form of a quo warranto against the appointment of Director-General Ehtesab Commission, which is also dismissed for the reasons, discussed above.