ZIA ULLAH KHAN and others vs GOVERNMENT OF PUNJAB and others

' ZIA MAHMOOD MIRZA, J.- This judgment deals with some common questions of law arising in sixty eight connected matters (sixty--six Constitutional petitions and two criminal revisions) viz: - '

1. W.P. No,4606 of 1987;

2. W.P. No 4709 of 1987;

3. W.P. No 4915 of 1987;

4. W.P. No,4979 of 1987;

5. W.P.

No, 5029 of 1987; 6, W.P. No, 5094 of 1987;

7. W.P. No, 5132 of 1987;

8. W.P. No, 5151 of 1987;

9. W.P. No, 5175 of 1987;

10. W.P. No,5178 of 1987;

11. W.F. No, 5220 of 1987;

12. W.P. No,5656 of 1987;

13. W.P. No,5825 of 1987;

14. W.P. No,6049 of 1987;

15. W.P. No,388 of 1988;

16. W.P. No,686 of 1988;

17. W.P. No,765 of 1988;

18. W.P. No,980 of 1988;

19. W.P. No,1005 of 1988;

20. W.P. No,1166 of 1988;

21. W.P. No, 1508 of 1988; 22.

W.P. No,1887 of 1988;

23. W.P. No,2151 of 1988;

24. W.P. No,2454 of 1988;

25. W.P. No,2886 of 1988; 26.

W.P. No,3960 of 1988;

27. W.P. No,4237 of 1988;

28. W.P. No,4497 of 1988;

29. W.P. No,4565 of 1988; 30.

W.P. No,4723 of 1988;

31. W.P. No,4760 of 1988;

32. W.P. No,5491 of 1988;

33. W.P. No,5534 of 1988; 34.

W.P. No,5770 of 1988;

35. W.P. No,5872 of 1988;

36. W.P. No,5883 of 1988;

37. W.P. No,5888 of 1988; 38.

W.P. No,6277 of 1988;

39. W.P. No,6361 of 1988;

40. W.P. No,6673 of 1988;

41. W.P. No,17 of 1989;

42. W.P.

No,80 of 1989;

43. W.P. No,140 of 1989;

44. W.P. No,197 of 1989;

45. W.P. No,247 of 1989;

46. W.P. No,325 of 1989;

47. W.P. No,332 of 1989;

48. W.P. No,375 of 1989;

49. W.P. No,531 of 1989;

50. W.P. No,572 of 1989;

51. W.P. No,659 of 1989;

52. W.P. No,849 of 1989; 53, W.P. No!890 of 1989;

54. W.P. No,893 of 1989; 55.

W.P. No,965 of 1989;

56. W.P. No,1174 of 1989;

57. W.P. No,1181 of 1989;

58. W.P. No,1217 of 1989;

59. W.P.

No,1220 of 1989;

60. W.P. No,1239 of 1989;

61. W.P. No 1308 of 1989;

62. W.P. No,1649 of 1989;

63. W.P.

No,1700 of 1989;

64. W.P. No,1741 of 1989;

65. W.P. No,1903 of 1989;

66. W.P. No,1924 of 1989;

67. Criminal Revision No,245 of 1988 and 68. Criminal Revision No,246 of 1988.

2. The aforenoted petitions (except W.P. No,5825 of 1987) have been filed against the orders of the Government of Punjab passed under section 5 of the Special Courts for Speedy Trials Ordinance II of 1987 and Special Courts for Speedy Trials Act XV of 1987 directing the criminal cases against the petitioners to be tried by the Special Courts for Speedy Trials. In some cases, judgments of the Special Courts convicting and sentencing the petitioners therein to various punishments including the death penalty have also been brought under challenge. Writ Petition No,5825 of 1987, however, seeks a direction to be issued to the Government of Punjab to transfer the complaint case pending in the Court of Additional Sessions Judge, Mianwali to the Special Court for Speedy Trials.

3. Principal question arising in these cases relates to the constitutionality of the aforementioned Ordinance II of 1987 and Act XV of 1987 as also of the Amending Ordinance XIX of 1988 (whereby Act XV of 1987 has been amended) and the validity of the impugned orders/Notifications issued thereunder entrusting the cases against the petitioners to the Special Courts for trial. The main objection raised on behalf of the petitioners qua the Special Courts for Speedy Trials Ordinance II of 1987 and Act XV of 1987 was that they were discriminatory in character and that section 5 thereof conferred arbitrary and naked powers on the Government to refer the cases to the Special Courts for trial. It was, therefore, contended that the impugned legislation being repugnant to the Fundamental Right of equality before law and equal protection of law, was violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 and hence void by reason of the provisions of Art. 8 of the Constitution.

4. Before proceeding further in the matter, it appears necessary to refer to the impugned legislation so as to highlight its main provisions. Special Courts for Speedy Trials Ordinance II of 1987 purporting "to provide for the establishment of Special Courts for speedy trial of certain offences" was made by the President of Pakistan on 23rd July, 1987 and it was promulgated on 26th July, 1987.

The object of the Ordinance as stated in the preamble was "it is expedient in the public interest to provide for the establishment of Special Courts for speedy trial of certain offences." "Offence" was defined in clause (c) of section 2 of the Ordinance as "an offence punishable under any law for the time being in force which, in the opinion of the Government is sensational in character or shocking to public morality or has led to public outrage or created panic or an atmosphere of fear or anxiety amongst the public or a section thereof". Section 3 gave overriding effect to the Ordinance by providing that its provisions "shall have effect notwithstanding anything contained in the Code or in any other law for the time being in force". Code meant the Code of Criminal Procedure vide section 2(a). The Government which was defined to mean the Provincial Government was empowered under section 4 of the Ordinance to establish for the whole or any part of the Province one or more Special Courts and to appoint a person with prescribed qualification viz. "who is, or has been, or is qualified for appointment as, a Judge of a High Court", as a Judge of the Special Court. Section 5 of the Ordinance which, inter alia, conferred power on the Government to refer the cases to Special Courts for trials and was, therefore, the most crucial provision in the context of arguments advanced by the learned counsel for the petitioners is reproduced hereunder in extenso: - "5. Jurisdiction of Special Court.--(1) If the Government is of the opinion that a case relating to an offence which has been registered should in the, public interest be tried and decided speedily, the Government may order that the case shall be tried by a Special Court. (2) If the Government is of the opinion that a case relating to an offence which is pending before any Court should in the public interest be tried and decided speedily, the Government may, by order in writing, transfer the case for trial to a Special Court. (3) As soon as an order is made under subsection (1) or subsection

(2) in respect of any case, no Court other than the Special Court referred to in such order shall have any jurisdiction or entertain any proceedings in respect thereof. (4) The Special Court may convict and sentence an accused for any offence of which he may be found guilty. (5) The Special Court shall have, in respect of a case triable by it, all the powers which a High Court has in relation to a trial before it under the Code, including the powers relating to the grant or cancellation of bail or recall or amendment of any orders, and shall subject to this Ordinance, as nearly as may be, follow the procedure provided in the Code for such trial."

' Section 6 provided for the transfer of the cases and it empowered the Government to transfer a case from one Special Court to another. Section 7 of the Ordinance provided for the expeditious completion of the investigation and submission of the challan in the Special Court. The provision made it obligatory for the Officer-inCharge of a police station to complete the investigation and forward the report under section 173, Cr.P. C. To the Special Court within fourteen days which period could only be extended by the Special Court for good reasons shown. Any default by the police officer concerned "or any other person required by law to perform any functions in connection with the investigation", resulting in delaying the investigation or the submission of the report under section 173, Cr.P.C., was deemed to be a wilful disobedience of the Court's orders liable to be dealt with under the law.

5. Section 8 of the Ordinance is another important provision as it laid down the procedure of Special Courts which, it was contended, operated to the prejudice of the accused subjected to trial by the Special Courts and denied him the benefits available to an accused tried under the Code of Criminal Procedure. The relevant provision reads as follows: - "8. Procedure of Special Court.--(1) On taking cognizance of a case, the Special Court shall proceed with the trial from day to day and shall decide the case speedily. (2) A Special Court shall not adjourn any trial for any purpose unless such adjournment is, in its opinion, necessary in the interests of justice and no adjournment shall be granted for more than a day. (3) A Special Court shall not, merely by reason of a change in its composition or transfer of a case under subsection

(2) of section 5 or section 6, be bound to recall and rehear any witness who has given evidence, and it may act on the evidence already recorded. (4) An accused person may be tried in his absence, if the Special Court, after such inquiry as it deems fit, is satisfied that:--

(a) such absence is deliberate and brought about with a view to impeding the course of justice; or

(b) the behaviour of the accused in Court has been such as to impede the course of justice and the Special Court has on that account ordered his removal from the Court: ' Provided that, in a case referred to in clause (a) the accused person shall not be tried unless a proclamation in accordance with the provisions of section 87 of the Code has been published in respect of him, which proceedings shall be completed by the Special Court within seven days, and until the proclamation has been published in at least three national daily newspapers out of which two shall be in the Urdu language: ' Provided further that the Special Court shall proceed with the trial after taking necessary steps to appoint an advocate to defend the accused person who is not before the Court.

(5) The Advocate appointed under the second proviso to subsection (4) shall be a person selected by the Special Court for the purpose and he shall be engaged at the expense of Government and a notice of his appointment shall be published by the Special Court in the newspapers referred to in the first proviso to the said subsection.

(6) An accused who is tried in his absence under subsection (4) shall be deemed not to have admitted commission of any offence for which he has been charged."

' Next provision embodied in section 9 of the Ordinance related to the manner and place of execution of sentence. This provision left to the Government to specify the manner and place of execution of any sentence passed under the Ordinance, "having regard to the deterrent effect which such execution is likely to have". Provision for bail was contained in section 10 of the Ordinance which lid down that "An accused shall not be released on bail if there appear reasonable grounds for believing that he has been guilty of the offence for which he has been charged; nor shall an accused person be so released unless the prosecution has been given notice to show cause why he should not be released."

' Special Court was also empowered under section 11 of the Ordinance to punish any person for its contempt with rigorous imprisonment for a term which may extend to one year and with fine.

Section 12 of the Ordinance provided for an appeal to the Supreme Court against the final judgment passed by the Special Court. Limitation period fixed for filing such an appeal was seven days from the date of the final judgment. Appeal against the order of acquittal or for enhancement of the sentence awarded by the Special Court was also provided for in subsection (2) of section 12 but no period of limitation was prescribed therefor.

6. The Ordinance, it appears, was repealed and replaced by an Act of the Legislature called the Special Courts for Speedy Trials Act XV of 1987. The Act received the assent of the President on 8-11- 1987 and was published in the Gazette of Pakistan Extraordinary on 16th November, 1987. The Act, it was said in section 1(2), shall remain in force for a period of one year from the date it was assented to by the President but it was provided that "parliament may, by a resolution of each House, extend the said period for a similar term or terms". The Act re-enacted the provisions of the Ordinance with some modifications/additions which shall be presently noticed.

' The preamble of the Act which incorporates its object is similarly worded as was the preamble of the Ordinance. Similarly, section 3 (Act to override other laws), section 5 (Jurisdiction of Special Court) section 7 (relating to the requirement of completing the investigation and submitting the report under section 173, Cr.P.C. To the Special Courts within fourteen days). Section 9 (manner and place of execution of sentence), section 10 (bail provision) and section 11 (relating to the contempt of Court) are almost verbatim reproduction of the corresponding provisions of the Ordinance noted hereinabove and, therefore, they need not be repeated. Some modifications are, however, made in the definition of 'offence' contained in section 2(c) and in the provisions relating to the constitution of Special Court (section 4), transfer of cases (section 6), Procedure of Special Court (section 8) and the appeal provision (section 12) which shall be referred to hereinbelow. A Schedule has also been added to the Act which specifies with reference to section 2(c) the following offences punishable under Pakistan Penal Code:- ' 302, 303, 396 and 397 and any other offence committed in the course of the same transaction in which any of the said offences is completed, or in addition to, or in combination with, such offence.

' The change brought about by the Act in the definition of the 'offence' is that unlike the Ordinance where it meant an offence punishable under any law for the time being in force, its scope is now restricted to the offences specified in the Schedule and it has also added two more attributes/characteristics of the 'offence' namely 'gruesome' and 'brutal'. The definition of 'offence' as contained in section 2(c) of the Act reads as follows:- 2(c) "Offence" means an offence specified in the Schedule which in the opinion of the Government, is gruesome, brutal and sensational in character or shocking to public morality or has led to public outrage or created panic or an atmosphere of fear or anxiety amongst the public or a section thereof; ' Section 4(2) of the Act which deals with appointment and qualification of a Judge of the Special Court is as under:- "A Special Court shall consist of a person, to be appointed by the Governor in consultation with the Chief Justice of the High Court, who is, or has been, a Judge of a High Court, J or is a Sessions Judge who is qualified for appointment as a Judge of a High Court."

' It may be noted that under the Ordinance, apart from a sitting or an ex-Judge of the High Court, any person qualified for appointment as a Judge of the High Court could be appointed by the Government as a Judge of the Special Court whereas under the Act, appointment of a Special Judge is to be made only from amongst the sitting or ex-Judges of the High Court or the Sessions Judges who are qualified for appointment as a Judge of the High Court and further the appointment is to be made by the Governor in consultation with the Chief Justice of the High Court; ' As regards the transfer of the cases, the Ordinance gave the power to the Government to transfer a case from one Special Court to another but the Act has conferred this power on the High Court under section 6. Section 8 of the Act which relates to the procedure of the Special Court has reproduced the corresponding section of the Ordinance quoted hereinabove with one minor change made in subsection (2) which now permits adjournment of a case for two days instead of one day as provided in the Ordinance and it has added to it subsection (7) which enables the accused tried and convicted in absentia to prove to the Special Court within the specified period that he did not abscond or conceal himself for the purpose of avoiding the proceedings against him whereupon his conviction shall be set aside. Subsection (7) is reproduced hereunder:- "If within sixty days from the date of his conviction, any person tried under subsection (4) appears voluntarily or is apprehended and brought before the Special Court and proves to its satisfaction that he did not abscond or conceal himself for the purpose of avoiding the proceedings against him, the Special Court shall set aside his conviction and proceed to try him for the offence for which he is charged; ' Provided that the Special Court may exercise its powers under this subsection in a case in which a person as aforesaid appears before it after the expiration of the said period and satisfies it that he was prevented from appearing within the said period by circumstances beyond his control."

' Section 12 of the Act like the corresponding provision of the Ordinance has provided appeal against the final judgment of the Special Court as also against the order of acquittal passed by the said Court and for enhancement of sentence but it has changed the forum of appeal from the Supreme Court to the High Court. It has also prescribed the limitation period of seven days for filing appeal against acquittal and for enhancement of sentence which was missing under the Ordinance.

6. To complete the survey of the impugned legislation, reference may pertinently be made to the amendments made in Act XV of 1987 by the Amending Ordinance XIX of 1988 [Special Courts for Speedy Trials (Amendment)] Ordinance promulgated on 13th October, 1988. The most important amendment was made in section 1, subsection (2) substituting the words 'two years' for 'one year'.

The provision thus amended reads as follows:- "It extends to the whole of Pakistan and shall remain in force for a period of two years from the date on which it is assented to by the President."

' Section 4(2) of the Act was also amended so as to make eligible for appointment as a Judge of the Special Court even a retired Sessions Judge who at the time of his retirement was qualified for appointment as a Judge of the High Court.

' Subsection (1-A) was added in section 12 saying that an appeal presented to the High Court shall be decided within three months.

' Schedule to the Act was also amended and the existing entries therein were replaced by the following:- "(1) Offences punishable under sections 302, 303, 354, 354-A, 364, 364-A, 365, 365-A, 367, 368, 369, 396 and 397 of the Pakistan Penal Code (Act XLV of 1860) and attempts, abetments and conspiracies in relation thereto or connected therewith.

(2) An offence punishable under clause (a) of subsection (1) of section 27 of the Drugs Act, 1976 (XXXI of 1976), insofar as it relates to a spurious drug.

(3) Any other offence committed in the course of the same transaction in which any of the said offences is committed, or in addition to, or in combination with, such offence."

7. Having surveyed the provisions of the impugned legislation in some detail, we now advert to the arguments addressed at the Bar. Mian Dilawar Mahmood, Advocate (counsel in W.P. No,5094/87) who led the arguments on behalf of the petitioners assailed the constitutional validity of the Special Courts for Special Trials Ordinance II of 1987 and Act XV of 1987 mainly on the following grounds:--

(i) That the impugned Ordinance and the Act are discriminatory in character in that some of the provisions of these enactments place the accused whose cases are referred for trial to the Special Courts for Speedy Trials in a position of disadvantage as compared with the other accused persons who are tried by ordinary Courts in accordance with the normal procedure laid down in the Criminal Procedure Code. The impugned legislation, therefore, offends against the guarantee of equal protection of law enshrined in Article 25 of the Constitution.

(ii) That section 5 of the impugned Ordinance/Act has conferred arbitrary and naked power on the Government to refer the cases to the Special Courts inasmuch as no criteria has been laid down to guide/regulate the exercise of this power. This amounts to excessive delegation of power.

(iii) That the provision of section 8 which empowers the Special Court to proceed with the trial in the absence of the accused and to appoint an Advocate of its own selection to defend the absent accused is repugnant to the Fundamental Right embodied in Article 10 of the Constitution which guarantees to an accused person the right to consult and be defended by a counsel of his choice.

8. To establish the charge of discrimination and to show that the special procedure laid down in the impugned legislation is less favourable and, therefore, prejudicial to the accused tried by the Special Courts, Mian Dilawar Mahmood referred to the following provisions of the legislation in question and compared them with the relevant provisions of the Criminal Procedure Code:-

(a) Section 8(2) has restricted the Special Court's power to grant adjournment by providing that it shall not adjourn the trial for any purpose unless necessary in the interest of justice and no adjournment shall be granted for more than a day/two days. This is very stringent provision as compared with section 344, Cr.P.C. Which leaves the matter of adjournment/ postponement of cases in the Court's discretion. The provision in question in its application, it was contended, can adversely affect the preparation of the defence.

(b) Under section 8(3), a Special Court by reason of any change in its composition or transfer of a case to it, is not bound to recall and rehear any witness who has already given evidence and it can act on the evidence already recorded. This provision was compared with sections 191 and 350, Cr.P.C. And it was submitted that section 350 when properly construed was comparatively more beneficial to the accused.

(c) Section 8(4) permits the holding of a trial in the absence of the accused for the reasons stated therein whereas under the general law of the land, an accused cannot be tried and convicted in absentia. Reference was particularly made to section 205, Cr.P. C. (Provision for dispensing with personal attendance of the accused and permitting him to appear by his pleader), section 340 (Right of an accused to be defended by a pleader and his competency to be a witness), section 353 (evidence to be taken in the presence of the accused or his pleader when his personal attendance has been dispensed with), section 540-A (Provision for inquiries and trial being held in the absence of the accused who is represented by a pleader and whose attendance has been dispensed with) and finally section 512 which provision permits the Court to examine prosecution witnesses and record their deposition in the absence of the accused who has absconded, with a view to preserve the prosecution evidence so as to use it in certain eventualities against the accused when he is put on trial after arrest.

(d) Section 10 restricts the right to bail. It prohibits the grant of bail to an accused even in cases where offence is punishable with less than ten years whereas the prohibitory clause of section 497, Cr.P.C. Is confined to the offences punishable with death or imprisonment for life or imprisonment for ten years. Section 10 has also omitted beneficial provisions of section 497, Cr.P.C.

(e) Section 11 gives the power to the Special Court to punish for its contempt with rigorous imprisonment for a term extending to one year and with fine whereas section 4 of the Contempt of Court Act, 1976 makes contempt of Court punishable with simple imprisonment which may extend to six months or with fine which may extend to Rs, five thousand or both.

(f) Limitation for filing an appeal in the High Court is curtailed to seven days.

(g) It was pointed out that the petitioners in W.P. No,5094/1987 were accused of offences under the Arms Ordinance which are ordinarily triable by a Magistrate. If the case had been tried by a Magistrate and the petitioners were sentenced to 4 years or less, their appeal would lie before the Sessions Judge. It was contended that section 12 of the impugned Act/Ordinance by providing an appeal directly to the High Court has deprived the petitioners of one right of appeal available under the ordinary law.

(h) Sentence of death passed by a Sessions Court under ordinary law cannot be executed unless it is confirmed by the High Court under section 374, Cr.P.C. Even though no appeal is preferred by the convict. Accused tried under the impugned legislation is deprived of this valuable right.

(i) Manner and place of execution of sentence is provided for in section 383, Cr.P.C. And Rule 354 of the Pakistan Prison Rules. Section 9 of the impugned Ordinance/Act has, however, left this matter to the Government which may proceed in any manner to create a deterrent effect.

9. Mian Dilawar Mahmood also attacked the validity of the impugned order/notification entrusting the case of his clients to the Special Court. He contended that the impugned order was dictated by an extraneous authority and the relevant authority namely the Government passed the order mechanically without any independent application of mind to the facts and circumstances of the case. His grievance was that the relevant authority failed to notice that the ingredients of the 'offence' as defined in section 2(c) of the impugned Ordinance were not forthcoming in the case of his clients. It was further contended by the learned counsel that the case of his clients was referred to the Special Court under Ordinance II of 1987 but the charge was not yet framed against them when the Ordinance stood repealed and the offences under' the Arms Ordinance were not specified in the Schedule annexed to Act XV of 1987. That being so, it was argued that since the trial had not yet commenced when the Ordinance was repealed, it could not continue under the Act. In support of his arguments on the principal questions involved in these petitions, learned counsel relied upon (1) "Waris Meah v. The State" (PLD 1957 SC 157), (2) "Khan Abdul Akbar Khan v. The Deputy Commissioner of Peshawar and others" PLD 1957 Pesh. 100, (3) "Malik Toti Khan etc. v. The District Magistrate, Sibi and Ziarat" PLD 1957 Quetta 1, (4) "Malik Muhammad Usman v. The State" PLD 1965 Lah. 229, (5) "Pakistan Barbers' Association v. Province of Punjab" PLD 1976 Lah. 769, (6) "Miss Rifat Parveen v. Selection Committee" PLD 1980 Quetta 10 and (7) "The State of West Bengal v.

Anwar Ali Sarkar and another" AIR 1952 SC 75. Learned counsel also referred to the Constitution of the Islamic Republic of Pakistan by M. Munir, 1975 Edition, pages 187-188, Fundamental Law of Pakistan by Mr. A.K. Brohi page 354 and Constitutional Law of India by H.M. Seervai, Second Edition para. 9.9, page 203.

10. Dr. A. Basit, counsel in Writ Petition No,1887 of 1988 did not challenge the vires of the impugned legislation but he contended that the classification has to be reasonable and that is a question of fact in each case. Main grievance made by the learned counsel was that the relevant authority before transferring the case for trial to the Special Court did not apply its mind to consider whether the offence under section 397, P.P.C. Of which the petitioners were accused was at all made out and whether there existed the aggravating circumstances envisaged in the definition of the "offence" contained in section 2(c). Learned counsel further contended that the criteria of public interest laid down in section 5 of the impugned Act is generally speaking not susceptible to judicial review unless applied capriciously. Learned counsel, however, conceded that the two ingredients relevant for referring the cases to the Special Court for trial viz. The offences being specified in the Schedule and the aggravating circumstances mentioned in the definition of the "offence" can be subjected to objective test.

11. Sh. Ziaullah, Advocate, counsel in W.P. No, 2454 of 1988 submitted that there is no reasonable classification justifying the allocation of a case against an accused person to the Special Court for speedy trial. It was submitted that speedy trial of certain offences is the objective of the impugned enactment but that cannot be a valid reason for transferring a case to a Special Court. Learned counsel further urged that there are no guidelines available for the Government to determine which case should be sent to a Special Court. In the submission of the learned counsel, definition of 'offence' lays down some criteria but it is not sufficient to enable the relevant authority to distinguish one case from the other and it leaves enough scope for misuse of power. Reliance for these submissions was placed on AIR 1952 SC 75 and AIR 1952 SC 235. Mr. Zia Ullah also referred to various provisions of the impugned legislation to show their discriminatory character. He, inter alia, pointed out that the proceedings for proclamation contemplated under section 8(4) are to be completed within a short span of seven days whereas under section 87, Cr.P.C., an absconding accused is given at least thirty days to appear, from the date of publication of the proclamation. It was also urged by the learned counsel that the impugned legislation has provided for trial in absentia but no provision has been made for filing of an appeal on behalf of a person tried/convicted in his absence and the settled law otherwise is that the appeal of a fugitive is not properly constituted. Reference in this behalf was made to (i) PLD 1956 FC 43, (ii) PLD 1969 SC 89 and (iii) PLD 1981 SC 265. Learned counsel further contended that in the face of the provisions of section 5(1), independent investigation is likely to be hampered/prejudiced.

12. Mr. Zafar Pasha, counsel in W.P. No, 2886 of 1988 submitted that in view of the definition of the 'offence' contained in section 2(c), Court's discretion in the matter of awarding the sentence is likely to be adversely affected to the prejudice of the accused. Learned counsel also raised a point that since the accused whose case is sent to the Special Court is to be placed at a disadvantage as compared with other persons whose cases are tried under normal procedure, he is entitled to an opportunity of being heard by the relevant authority before his case is ordered to be sent up to the Special Court. Learned counsel like his other colleagues analysed some of the provisions of the impugned legislation to show that they operate to the prejudice of the accused tried by the Special Courts. He particularly referred to section 8(2), sections 10 and 12 and further pointed to the absence of a provision like section 374, Cr.P.C. Requiring confirmation of death sentence by the High Court. In the submission of the learned counsel, the impugned law being discriminatory to the accused tried thereunder is violative of Article 25 of the Constitution. Learned counsel sought to support his submission by referring to (1) AIR 1952 SC 235, (2) AIR 1952 SC 252, (3) AIR 1952 SC 123, (4) AIR 1952 SC 75, (5) AIR 1953 SC 156 and (6) AIR 1961 SC 1715.

13. Mian Abdul Sattar Najam, Advocate, counsel in W.P. No,1166 of 1988 submitted that by virtue of the provisions of section 7(3), Special Courts can directly take cognizance of a case and proceed with the trial without waiting for the investigation being completed by the police with the result that the accused would thereby be prejudiced in proving his pleas of defence which pleas can be better examined by the police during investigation. Learned counsel also contended that as there were only few Special Courts in the whole of the province functioning mostly at Divisional Headquarters, the transfer of a case from Court to another would inevitably involve inconvenience and additional expense for the accused. With reference to section 12, it was submitted that the period of limitation prescribed therein is so short that the Government may have to file appeals against acquittal in haste and hurry without any application of mind to the question of propriety of filing such appeals and such a situation will naturally result in unnecessary inconvenience to the acquitted accused and waste of public time.

14. Mr. Raza Kazim Advocate appearing for the petitioners in W.P. No,1166/88 and W.P. No,5888/88 contended that the impugned legislation being discriminatory offended against the Equality Clause of Article 25 of the Constitution. He submitted that the basis of classification of offences is wholly arbitrary and unreasonable. He referred to the case of Anwar All Sarkar AIR 1952 SC 75 for the proposition that the expression "speedy trial" was too vague, uncertain and elusive to afford a basis for rational classification. Mr. Raza Kazim also assailed the appointment of Judges of the Special Courts by submitting that section 4(2) of Act XV of 1987 is violative of the provisions contained in Articles 175, 240 and 205 of the Constitution. Yet another objection raised by the learned counsel was that the terms and conditions of service of these Judges are not secure as the same are to be determined by the Government as stated in Rule 3 of the Special Courts for Speedy Trials (Punjab) Rules, 1987, and this fact, according to the learned counsel, is bound to create a bias in their judgments. It was, therefore, contended that the accused before the Special Courts are denied the right of fair trial. Learned counsel referred to Anwar v. The Crown PLD 1955 FC 185 wherein it was held that "every accused has the right to be tried on the evidence by a judicially minded person if the Judge is working under an influence brought about by his own act or by the act of another person which has the effect of paralysing his judicial faculties, there is no fair trial."

Mr. Raza Kazim also made a grievance that the cases against his clients were transferred to the Special Courts without determining whether the offences allegedly committed by them fall within the category mentioned in section 2(c). Reliance for this submission was placed on a judgment of the Supreme Court of Pakistan reported in PLD 1989 SC 13 wherein it is held that a duty is cast on the Special Court before it takes cognizance to satisfy itself that the guidelines mentioned in the definition of the 'offence' in section 2(c) exist to give it the jurisdiction to try the case. Ch. Azmat Khan Advocate counsel in W.P. No,5331 of 1988 confined his submissions to the short question that the offence alleged against his client was not a scheduled offence and, therefore, his case could not be transferred to the Special Court .For trial.

15. Mr. Ahmad Saeed Kirmani Advocate and Mr. Minnat Ullah Advocate appearing on behalf of Mr. Saleem Sehgal adopted the arguments of Mian Dilawar Mahmood and stated that they had nothing to add thereto.

16. Mr. Maqbool Elahi Malik, learned Advocate-General appearing for the Government of Punjab submitted that the impugned law was enacted to meet the grave law and order situation and to prevent the scandalous delays in the administration of criminal justice. Submissions of the learned Advocate-General was that the law under challenge was an ameliorating legislation which was not intended to create any rigours or hardships for the accused. Its provisions do not cause any prejudice to the accused tried by the Special Court. Learned Advocate-General further contended that no one has a vested right in a particular forum and, therefore, petitioners cannot make any legitimate grievance against the transfer of their cases for trial to the Special Court. It was argued by the Advocate-General that the impugned law is not discriminatory because the offences to be referred to the Special Court have been classified and the classification is proper and reasonable.

Learned Advocate-General also repudiated the petitioners' contention that the impugned enactment conferred unfettered and naked powers on the Government to refer any case to the Special Court. Learned Advocate-General pointed out that sufficient guidelines are available in the definition of the 'offence' in section 2(c) to guide the Government in selecting cases for reference to the Special Court for trial and this definition also furnishes a basis for classification. Proceeding on these premises, learned Advocate-General maintained that the enactment under challenge does not offend against Equality Clause of Article 25 of the Constitution. In support of his submissions, learned Advocate-General relied upon AIR 1952 SC 123; AIR 1952 SC 75; AIR 1953 SC 404; AIR 1957 SC 503; (1974) 2 Supreme Court Cases 402, (1979) 1 Supreme Court Cases 380; PLD 1975 SC 506 and AIR 1980 SC 1382.

17. We have given our anxious consideration to the various submissions made by the learned counsel for the petitioners and the learned Advocate-General. The first question which we would like to address ourselves to is whether the provisions of the impugned legislation really discriminate between the accused persons tried by the Special Courts for Speedy Trials and those tried by ordinary Courts under the normal procedure laid down in the Criminal Procedure Code. A fair reading of the impugned enactment leaves no room for doubt that some of its provisions have made deviations from the ordinary procedure governing the criminal trials and these deviations might, in practice, operate in some respects to the disadvantage of the persons subjected to trial before the Special Courts. For instance, restriction of Court's power in granting adjournment can possibly result in prejudicing the defence of the accused who in a short span of two days may not be able to procure the attendance of the witnesses or the documents that he might like to produce in his defence. Another significant feature of the impugned legislation is that an accused arraigned before the Special Court can be tried, convicted and sentenced in absentia. Question as to whether the provision for trial in absentia is violative of Article 10 of the Constitution and if so, to what extent, shall be separately dealt with. Suffice it to observe for the present in the context of the argument of discriminatory treatment that the provision in question is certainly disadvantageous to the accused tried by the Special Courts because under the general law of the land, a Court cannot record a conviction or pass a sentence in the absence of the accused. It can only record depositions of the prosecution witnesses in the absence of an absconding accused for the purpose of using the same against the accused on his arrest and that only if in the meantime, the deponent is dead or is otherwise incapable of giving evidence or his attendance cannot be procured without unreasonable delay or expense. Yet another point of difference/prejudice is that in some cases, an accused tried under the impuguned law is denied the benefit of an appeal before the Sessions Court with a further remedy of revision in the High Court which would be available to him if he was tried under the general law. For instance, if he is tried by an ordinary Court for an offence under section 354, P.P.C. Or some other scheduled offence ordinarily triable by a Magistrate and is convicted and sentenced to imprisonment upto four years or less, he can file an appeal in the Sessions Court but under the impugned legislation, he has got to file the appeal directly in the High Court whatever the quantum of sentence. Not only this, even the period of limitation for filing an appeal in the High Court against the order of conviction passed by a Special Court is curtailed to seven days. It has also been complained and rightly so that an accused sentenced to death by a Special Court is deprived of a valuable safeguard available to an accused under section 374, Cr.P.C. Which provides for confirmation of death sentence by the High Court even though the convict has not preferred any appeal. A sentence of death awarded by the Sessions Court cannot be executed unless it is confirmed by the High Court. This beneficial provision is conspicuous by its absence in the impugned enactment. It was also pointed out by one of the counsel for the petitioners and quite correctly that the right to bail has been restricted under the impugned law.

Still more drastic is the provision enacted in section 5(4) of the impugned legislation which empowers the Special Court to convict and sentence the accused for any offence of which he may be found guilty. This means and implies that an accused facing trial before the Special Court may be convicted and sentenced for any offence of which he is found guilty irrespective of the fact that he may not have been charged therewith and the offence is not minor within the meaning of section 238, Cr.P.C. These and other provisions of the impugned enactment noted/discussed hereinabove tend to show that some of the rights/safeguards available to an accused under the general law have been abridged and certain benefits denied to which the accused would otherwise be entitled under the general law. This does raise a question of discrimination but the real point which arises for consideration is whether the departures from the procedure prescribed by the Criminal Procedure Code made in the impugned legislation and which, as noted above, are, in some respects, prejudicial/disadvantageous to the accused subjected to trial by the Special Courts offend against the Constitutional guarantee of equal protection of law so as to render the impugned legislation unconstitutional or they can be justified on the basis of a reasonable classification. It may pertinently be observed that the differentiation between classes of persons on the basis of a valid and reasonable classification is permissible and it is not open to attack on the ground of infringement of equality principle embodied in the Constitution. The Equality clause, it may be stated, does not prohibit different laws for these differently circumstanced provided a rational standard is laid down to guide the discretion of the relevant authority to choose the appropriate law. Refer Bazal Ahmad Ayyubi v. The West Pakistan Province PLD 1957 Lah.

388.

18. The nature and scope of the Constitutional guarantee of equality before law and equal protection of law have been explained and discussed in a number of decisions from Indian Jurisdiction as also of our own Courts to which reference may usefully be made at this stage. In "Jibendra Kishore etc. v. The Province of East Pakistan, etc." PLD 1957 SC 9, Supreme Court of Pakistan interpreted 'equal protection of law' as follows: - "Whatever else the expression 'equal protection of law' may mean, it certainly does not mean equality of operation of Legislation upon all citizens of the State. The expression has been borrowed from the Fourteenth Amendment to the Constitution of the United States which was intended to secure to the emancipated negroes equal rights to the enjoyment of life, liberty and property no rule has yet been formulated by the Supreme Court as to what may be regarded as a denial of the 'equal protection of the laws' that will embrace every case and the application of the principle has always depended on the facts of each case some broad propositions as to its meaning have been enunciated. One of these propositions is that equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances, in their lives, liberty and property and in pursuit of happiness.

Another generalisation more frequently stated is that the guarantee of equal protection of the laws requires that all persons shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. In the application of these principles, however, it has always been recognised that classification of persons or things is in no way repugnant to the equality doctrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation. It is not for the Courts in such cases, it is said, to demand from the Legislature a scientific accuracy in the classification adopted. If the classification is relevant to the object of the Act it must be upheld unless the relevancy is too remote or fanciful. A classification that proceeds on irrelevant considerations, such as differences in race, colour or religion will certainly be rejected by the Courts. Applying these tests to the present case, it cannot but he held that if in consequence of abolishing the system of private rents for agricultural land, it also became necessary to make some provision for the outgoing landlords, the classification of the landlords on the basis of their net incomes at the time of their expropriating was a necessary and not an unreasonable classification."

19. In another case reported as "Waris Meah v. The State and another" PLD 1957 SC 157, Foreign Exchange Regulation Act was assailed as ultra vires of the Constitution on the ground that it was ex facie discriminatory insofar as it created three Tribunals with different power and procedure and entailing punishments of unequal nature and description and left it to be determined by the Central Government or the State Bank whether an offender was to be tried by a Court under ordinary law or by an Adjudication Officer or by a Tribunal. Their Lordships of the Supreme Court noted that the Act contained no indication as to which class or classes of cases were to go before a Court and which before the Tribunal and the Adjudication Officer and proceeded to observe that Act "confers discretion of a very wide character upon stated authorities, to act in relation to subjects falling within the same class in three different modes varying greatly in severity. By furnishing no guidance whatsoever in regard to the exercise of this discretion, the Act, on the one hand, leaves the subject, falling within its provisions, at the mercy of the arbitrary will of such authority and, on the other, prevents him from invoking his fundamental right to equality of treatment under the Constitution The scope of the unguided discretion so allowed is too great to permit of application of the principle that equality is not infringed by the mere conferment of unguided power, but only by its arbitrary exercise. For, in the absence of any discernible principle guiding the choice of forum, among the three provided by the law, the choice must always be, in the judicial viewpoint, arbitrary to a greater or less degree. The Act, as it is framed, makes provision for discrimination between persons falling, qua its terms, in the same class, and it does so in such manner as to render it impossible for the Courts to determine, in a particular case, whether it is being applied with strict regard to the requirements of Article 5(1) of the Constitution."

20. Reference may also pertinently be made to the case of "Zain Noorani v.Secretary of the National Assembly of Pakistan" PLD 1957 Karachi 1 wherein the following principle of law propounded by Fazli Ali, J. Of the Indian Supreme Court in Balsara's case (AIR 1951 SC 318) was reproduced: "While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis."

' In this very case, Lari, J. While examining the equality clause of the Constitution observed. "This obviously means that all actually situated similarly will be treated alike. In other words the purpose of Article is to rest the rights and obligations of all persons upon the same rule under similar circumstances. The Article cannot prohibit classification of citizens provided the classification is based on a difference which is pertinent and real the equality clause requires merely that the classification shall be reasonable. We call that action reasonable which an informed, intelligent, just-minded civilised man could rationally favour. In passing upon legislation assailed under the quality clause we have declared that the classification must rest upon a difference which is real and distinguished from one which is seeming, specious or fanciful, as that all actually situated similarly will be treated alike; that the object of the classification must be the accomplishment of a purpose or the promotion of a policy, which is within the permissible functions of the State and that the difference must bear a relation to the object of the legislation which is substantial, as distinguished from one which is speculative, remote or negligibe.:

21. The next two cases to which reference may be made are "Khan Abdul Akbar Khan v. The Deputy Commissioner of Peshawar and others" (PLD 1957 Peshawar 100) and "Toti Khan v.District Magistrate, Sibi and Ziarat" (PLD 1957 Quetta 1). In both these cases, classification contemplated by the law impugned therein was found to be unreasonable and certain provisions of the Frontier Crimes Regulation were held to be inconsistent with Article 5 of 1956 Constitution (which corresponds to Article 25 of the present Constitution) and declared void. In the first case, with reference to equal protection clause, it was observed "Thus the 'equal protection' clause reduces itself to the problem of classifying people who are placed in 'equal' or similar circumstances in respect of some object which the legislature finds necessary to accomplish with reference to the needs of a particular situation. It is, therefore, said that classification must have a rational basis, that there must be some real and substantial distinction between the classes, that such distinction should bear a reasonable relation to the object sought to be attained, that there should be no arbitrary 'herding together' of certain persons or classes". In the case of Toti Khan, learned Judges of the Division Bench held that "not only is there no reasonable classification of persons whose cases may be referred to a jirga but that the executive authorities have been given an unfettered discretion in the choice of persons belonging even to Baluch or Pathan tribes as to whether their cases should go to a regular Court of law or to a Jirga There is no guiding principle prescribed by which the discretion of the executive authorities as regards the choice of forum is to be regulated."

22. Question regarding the validity of the Frontier Crimes Regulation with reference to the equality clause again came up for consideration before a Full Bench of this Court in the case of Malik Muhammad Usman v. The State and another (PLD 1965 Lahore 229). The learned Bench referred to the following observation in the well-known case of "Yick Wo v. Hopkins" (1886) 118 U.S.356: ",The guarantee of equal protection does not prevent the State from applying different laws or different systems of judicature to different parts or local sub-divisions of the country according to local circumstances, for the clause does not secure to all persons the benefit of the same laws and the same remedies. Equal protection of the laws is a pledge of the portection of equal laws." ' and after examining some other authorities took the view that "sections 8 and 11 of the Regulation providing for reference of proceedings to a Jirga offend against Fundamental Right No,15, inasmuch as the Deputy Commissioner and the Commissioner are given an uncontrolled discretion to select particular cases and even particular accused in the same case for the discriminatroy procedure, such discretion being moreover not governed by any settled principle."

23. The concept of 'equal protection of laws' and the principles underlying it have been very thoroughly and elaborately explained by the late Chief Justice Hamoodur Rahman in the case of F.B.Ali v. The State (PLD 1975 SC 506). The relevant discussion is reproduced hereuner:- "Equal protection of the laws does not mean that every citizen, no matter what his condition, must be treated in the same manner. The phrase 'equal protection' of the laws means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other class of persons in like circumstances in respect of their life, liberty, property or pursuits of happiness. This only means that persons, similarly situated or in similar circumstances, will be treated in the same manner. Besides ;his, all law implies classification, for, when it applies to a set of circumstances, it creates thereby a class and equal Protection means that this classification should be reasonable. To justify the validity of a classification, it must be shown that it is based on reasonable distinctions or that it is on reasonable basis and rests on a real or substantial difference of distinction. Thus different laws can validly be made for different sexes, for persons in different age groups, e.g., minors or very old people, different taxes may be levied from different classes of persons on the basis of their ability to pay. Similarly, compensation for properties acquired may be paid at different rates to different categories of owners. Such differentiation may also be made on the basis of occupations or privileges or the special needs of a particular locality or a particular community. Indeed, the bulk of the special laws made to meet special situations come within this category. Thus, in the field of criminal justice, a classification may well be made on the basis of the heinousness of the crime committed or the necessity of preventing certain anti- social effects of a particular crime. Changes in procedure may equally well be effected on the ground of the security of the State, maintenance of public order, removal of corruption from amongst public servants or for meeting an emergency.

' Where, however, the law itself makes no classification but leaves the selection to an outside agency or an administrative body without laying down any guidelines, thus enabling the body or authority to pick and choose, a legitimate complaint may be made on the ground that the law itself permits discriminatory application. Such was the position which came under consideration by this Court in the case of Waris Meah v. The State (PLD 1957 SC 157) Where this Court struck down the law on the ground that it was violative of this particular right. On the other hand, in the case of Jibendra Kishore Achhara v. Province of East Pakistan (PLD 1957 SC 9), a law which provided for payment of compensation on a sliding scale to proprietors, which decreased in proportion to the income of the estate acquired. The larger the income the lesser the scale of compensation.

Nevertheless, this Court held the differentiation to be based upon a valid classification.

' The concept of the equal protection of laws which is derived from the American Constitution is not susceptible of any exact definition. "In other words", as stated by the editors of American Jurisprudence, Vol.12 page 409, "no rule as to protection of laws that will cover every case can be formulated and no test of the type of cases involving such a clause of the Constitution can be infallible or all inclusive. Moreover it would be impracticable and unwise to attempt to lay down any generalization covering the subject; each case must be decided as it arises." Be that as it may, the only generalization that is possible is that it means "subjection to equal laws applying to all in the same circumstances" but this does not mean that laws must affect every man, woman and child alike. This guarantee does not forbid discrimination with respect to things that are different nor does it prohibit classification which is reasonable and is based upon substantial differences having a relation to the objects or persons dealt with and to the public purpose sought to be achieved. It guarantees equality and not identity of rights.

' The principle is well recognized that a State may classify persons and objects for the purpose of legislation and make laws applicable only to persons or objects within a class. In fact almost all legislation involves some kind of classification whereby some people acquire rights or suffer disabilities which others do not. What, however, is prohibited under this principle is legislation favouring some within a class and unduly burdening others. Legislation affecting alike all persons similarly situated is not prohibited. The mere fact that legislation is made to apply only to a certain group of persons and not to others does not invalidate the legislation if it is so made that all persons subject to its terms are treated alike under similar circumstances. This is considered to be permissible classification."

' Reference was also made to the following opinion of Wills in his treatise on the Constitutional Law of the United States:- "There is no rule for determining when classification for the police power is reasonable. It is a matter for judicial determination, but in determining the question of reasonableness the Courts must find some economic, political, or other social interest to be secured, and some relation of the classification to the objects sought to he accomplished. In doing this the Court may consider matters of common knowlegde, matters of common report, the history of the times, and to sustain it they will assume every state of facts which can be conceived of as existing at the time of legislation. The fact that only one person or one object or one business or one locality is affected is not proof of denial of the equal protection of the laws. For such proof it must be shown that there is no reasonable basis for the classification."

24. It will be instructive to refer to another extract from the afore-mentioned Book on Constitutional law. It finds mention in Fundamental Law of Pakistan by Mr.A.K.Brohi (1958 Edition), pages 354, 355.

The extract is as follows:- "The guaranty of the equal protection of the Laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. 'It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed. The inhibition of the Amendment was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation. It does not take from the State the power to classify either in the adoption of the police laws or tax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis. Mathematical nicety and perfect equality are not required. Similarity, not identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis... Many different classifications of persons have been upheld as constitutional. A law applying only to one person or one class of persons is constitutional if there is sufficient basis or reason for it."

25. Reference with advantage may now also be made to some cases from Indian Jurisdiction. The first case in the series is "Charanjit Lal Chowdhury v. The Union of India and others (AIR 1951 SC 41) wherein majority of the learned Judges observed "A law applying to one person or one class of persons is constitutional if there is sufficient basis or reason for it. Any classification which is arbitrary and which is made without any basis is no classification and proper classification must always rest upon some difference and must bear a reasonable and just relation to the things in respect of which it proposed." In the same judgment Das, J. Observed as follows:- "If there is a classification, the Court will not hold it invalid merely because the law might have been extended to other persons who in some respect might resemble the class for which the law was made, for the Legislature is the best judge of the needs of the particular classes and to estimate the degree of evil so as to adjust its legislation according to the exigency found to exist. If, however, there is, on the face of the statute, no classification at all or none on the basis of any apparent difference specially peculiar to any perticular individual or class and not applicable to any other person or class of persons yet the law hits only the particular individual or class it is nothing but an attempt to arbitrarily single out an individual or class for discriminating and hostile legislation. The presumption in favour of the legislature cannot in such case he legitimately stretched so as to throw the impossible onus on the complainant to prove affirmatively that there are other individuals or class of individuals who also possess the precise amount of the identical qualities which are attributed to him so as to form a class with him."

26. In the next case "The State of West Bengal v. Anwar Ali Sarkar and another (AIR 1952 SC 75), majority of the learned Judges of the Supreme Court of India came to the conclusion that the procedure laid down by the impugned Act for trial by Special Courts was substantially different from that laid down in the Code of Criminal Procedure for the trial of ordinary cases; that the necessity for speedier trial of offences (which was the object of the legislation impugned therein) did not provide a reasonable basis of classification and that the Act gave uncontrolled discretion to the Government to direct any case which it liked to be tried by the Special Court. The precise observations of the majority are as under: "The impugned Act has completely ingnored the principle of classification followed in the Criminal P . C . And it proceeds to lay down a new procedure without making any attempt to particularize or classify the offences or cases to which it is to apply. The Act itself lays down a procedure which is less advantageous to the accused than the ordinary procedure, and this fact must in all cases be the root cause of the discrimination which may result by the application of the Act.

' Speedier trial of offences may be the reason and motive for the legislation but it does not amount either to a classification of offences or cases. The necessity of a speedy trial is too vague, uncertain and elusive criterion to form the basis of a valid and reasonable classification."

' Das, J. Who agreed with the conclusion of the majority made some very pertinent observations in para 63 of the judgment where he referred to the circumstances which may legitimately call for speedier trial so as to check commission of offences. The relevant observations are reproduced hereunder:- "On the other hand, it is easy to visualise a situation when certain offences, e.g. Theft in a dwelling house, by reason of the frequency of their perpetration or other attending circumstances, may legitimately call for a speedier trial and swift retribution by way of punishment to check the commission of such offences. Are we not familiar with gruesome crimes of murder, arson, loot and rape committed on a large scale during communal riots in particular localities and are they not really different from a case of stray murder, arson, loot or rape in another district which may not be affected by any communal upheaval? Do not the existence of the communal riot and the concomitant crimes committed on a large scale call for prompt and speedier trial in the very interest and safety of the community? May not political murders or crimes against the State or a class of the community, e.g. Women assume such proportions as would be sufficient to constitute them into a special class of offences requiring special treatment? Do not these special circumstances add a peculiar quality to these offences or classes of offences or classes of cases which distinguish them from stray cases of similar crimes and are it not reasonable and even necessary to arm the State with power to classify them into a separate group and deal with them promptly? I have no doubt in my mind that the surrounding circumstances and the special features I have mentioned above will furnish a very cogent and reasonable basis of classification, for it is obvious that they do clearly distinguish these offences from similar or even same species of offences committed elsewhere and under ordinary circumstances. This differentia quite clearly has a reasonable relation to the object sought to be achieved by the Act, namely, the speedier trial of certain offences. Such a classification will not be repugnant to the equal protection clause of our Constitution, for there will be no discrimination, for whoever may commit the specified offence in the specified area in the specified circumstances will be treated alike and sent up before a Special Court for trial under the special procedure. Persons thus sent up for trial by a Special Court cannot point their fingers to the other persons who may be charged before an ordinary Court with similar or even same species of offences in a different place and in different circumstances and complain of unequal treatment, for those other persons are of a different category and are not their equals."

27. In Kathi Raning Rawat v. State of Saurashtra (AIR 1952 SC 123), section 11 of the Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949 came up for consideration. This provision was almost in identical terms as section 5(1) of the West Bengal Special Courts Act which fell for interpretation in the aforenoted case of Anwar All Sarkar. State had, however, filed an affidavit enumerating the incidents of looting, robbery, dacoity, nose cutting and murders in certain areas of the State. Majority of the learned Judges took the view that the impugned provision did not offend against the equal protection clause of the Constitution. It was observed that "The impugned Ordinance having been passed to combat the increasing tempo of certain types of regional crimes, the two-fold classification on the lines of type and territory adopted in the impugned Ordinance, read with the notification issued thereunder. Is reasonable and valid, and the degree of disparity of treatment involved is in no way in excess of what the situation demanded." It was further held, "the reference to public safety, maintenance of public order and preservation of peace and tranquillity in the preamble shows a definite objective and furnishes a tangible and rational basis of classification to the State Government for the purpose of applying the provisions of the Ordinance and for choosing only such offences or cases as affect public safety, maintenance of public order and preservation of peace and tranquillity".

28. In another case reported as "Lachmandas Kewalram and another v. State of Bombay" (AIR 1952 SC 235), Supreme Court of India again examined the question of classification vis-a-vis Article 14 of the Indian Constitution and held that section 12 of the Bombay Public Security Measures Act, 1947 was void as it did not purport to proceed on any classification. The majority of the learned Judges expressed the view that "while Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification, two conditions must be fulfilled namely (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others who are left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the Act, what is necessary is that there must be a nexus between the basis of classification and the object of the Act

29. We may now refer to the case of "Kedar Nath Bajoria v. The State of West Bengal" (AIR 1953 SC 404) which appears to be more relevant in the present context. The Act impugned in that case was enacted to provide for the more speedy trial and more effective punishment of certain offences.

The offences were specified in the schedule to the Act. The Provincial Government was empowered to constitute Special Courts of Criminal Jurisdiction for specified areas and to allot cases for trial to the Special Judge. The Act was assailed firstly on the ground that it denied certain advantages to the accused tried therein and was, therefore, repugnant to Article 14 of the Constitution. Patanjali Sastri, C.J. Who delivered the majority judgment held that "Now, it is well settled that the equal protection of the laws guaranteed by Art.14 of the Constitution does not mean that all laws must be general in character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons or things for the purposes of legislation. To put it simply, all that is required in class or special legislation is that the legislative classification must not be arbitrary but should be based on an intelligible principle having reasonable relation to the object which the legislature seeks to attain. If the classification on which the legislation is founded fulfils this requirment, then the differentiation which the legislation makes between the class of persons or things to which it applies and other perons or things left outside the purview of the legislation cannot be regarded as a denial of the equal protection of the law, for, if the legislation were all- embracing in its scope, no question could arise of classification being based on intelligible differentia having a reasonable relation to the legislative purpose." On consideration of the legislative purpose indicated in the preamble and the operative provision of the legislation coupled with the surrounding circumstances, it was held that the legislation in question was based on a perfectly intelligible principle of classification having a clear and reasonable relation to the object sought to be attained.

' While dealing with the further contention that section 4 of the Act was discriminatory and void for the reason that it conferred unfettered discretion in the Provincial Government to choose any particular case for trial by the Special Court under the special procedure, the learned Chief Justice observed "The argument overlooks the distinction between those cases where the legislature itself makes a complete classification of persons or things and applies to them the law which it enacts, and others where the legislature merely lays down the law to be applied to persons or things answering to given discription or exhibiting certain common characteristics, but being unable to make a precise and complete classification, leaves it to an administrative authority to make a selective application of the law to persons or things within the defined group, while laying down the standards or at least indicating in clear terms the underlying policy and purpose, in accordance with, and fulfilment of which the administrative authority is expected to select the persons or things to be brought under the operation of the law. A familiar example of this type of legislation is the Preventive Detention Act, 1950, which, having indicated in what classes of cases and for what purposes preventive detention can be ordered, vests in the executive authority a discretionary power to select particular persons to be brought under the law. Another instance in point is furnished by those provisions of the Criminal Procedure Code which provide immunity from prosecution without sanction of the Government for offences by public servants in relation to their official acts, the policy of the law being that public officials should not be unduly harassed by private prosecution unless in the opinion of the Government, there were reasonable grounds for prosecuting the public servant which accordingly should condition the grant of sanction. It is not, therefore, correct to say that S.4 of the Act offends against Art.14 of the Constitution merely because the Government is not compellable to allot "all cases of offences set out in the schedule to Special Judges but is vested with discretion in the matter".

30. In "Asgharali Nazarali Singaporewalla v.State of Bombay" (AIR 1957 SC 503) and "Ram Krishna Dalmia v. Justice Tendolkar" (AIR 1958 SC 538), principles relating to the permissible classifiction for determining the validity of a Statute, with reference to the Equality Clause of the Indian Constitution were reiterated in the following words:- "It is now well-established that while Art.14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are groupled together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographyical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established that Art.14 condemns discrimination not only by a substantive law but also by a law of procedure."

31. In yet another case from Indian jurisdiction namely "Jyoti Pershad v. Union Territory of Delhi" AIR 1961 SC 1602, rules of guidance for the interpretation of Article 14 of Indian Constitution were indicated as follows:-

(1) If the statute itself or the rule made under it applies unequally to persons or things similarly situated, it would be an instance of a direct violation of the Constitutional guarantee and the provision of the statute or the rule in question would have to be struck down.

(2) The enactment or the rule might not in terms enact a discriminatory rule of law but might enable an unequal or discriminatory treatment to be accorded to persons or things similarly situated. This would happen when the legislature vests a discretion in an authority, be it the Government or an administrative official acting either as an executive officer or even in a quasi- judicial capacity by a legislation which does not lay down any policy or disclose any tangible or intelligible purpose, thus clothing the authority with unguided and arbitrary powers enabling it to discriminate.

' In such circumstances the very provision of the law which enables or permits the authority to discriminate, offends the guarantee of equal protection afforded by Art.14.

(3) The above rule would not apply to cases where the legislature lays down the policy and indicates the rule or the line of action which should serve as guidance to the authority. Where such guidance is expressed in the statutory provision conferring the power, no question of violation of Art.14 could arise, unless it is that the rules themselves or the policy indicated lay down different rules to be applied to persons or things similarly situated. Even where such is not the case, there might be a transgression by the authority of the limits laid down or an abuse of power, but the actual order would be set aside in appropriate proceedings not so much on the ground of a violation of Art.14, but as really being beyond its power.

(4) It is not, however, essential for the legislation to comply with the rule as to equal protection that the rules for the guidance of the designated authority, which is to exercise the power or which is vested with the discretion, should be laid down in express terms in the statutory provision itself.

' Such guidance may thus be obtained from or afforded by (a) the preamble read in the light of the surrounding circumstances which necessitated the legislation, taken in conjunction with well- known facts of which the Court might take judicial notice or of which it is appraised by evidence before it in the form of affidavits."

32. The principles/propositions enunciated in the aforenoted authorities on the subject of discriminatory legislation may be summarized as follows: -

(i) The expression "equality before law" or the "equal protection of laws" does not mean that it secures to all persons the benefit of the same laws and the same remedies. It only requires that all persons similarly situated or circumstanced shall be treated alike.

(ii) The guarantee of equal protection of laws does not mean that all laws must be general in character and universal in application and the State has no power to distinguish and classify persons or things for the purpose of legislation.

(iii) The guarantee of equal protection of laws forbids class legislation but does not forbid reasonable classification for the purpose of legislation. The guarantee does not prohibit discrimination with respect to things that are different. The State has the power to classify persons or things and to make laws applicable only to the persons or things within the class.

(iv) The classification, if it is not to offend against the Constitutional guarantee must be based upon some intelligible differentia bearing a reasonable and just relation to the object sought to be achieved by the legislation.

(v) Reasonableness of classification is a matter for the Courts to determine and when determining this question, the Courts may take into consideration matters of common knowledge, matters of common report, the history of the times and to sustain the classification, they must assume the existence of any state of facts which can reasonably be conceived to exist at the time of the legislation.

(vi) The classification will not be held to be invalid merely because the law might have been extended to other persons who in some respect might resemble the class for which the law is made because the legislature is the best judge of the needs of particular classes and the degree of harm so as to adjust its legislation according to the exigencies found to exist.

(vii) One who assails the classification must show that it does not rest on any reasonable basis.

(viii) Where the legislature lays down the law and indicates the persons or things to whom its provisions are intended to apply and leaves the application of law to an administrative authority while indicating the policy and purpose of law and laying down the standards/norms for the guidance of the designated authority in exercise of its powers, no question of violation of Article 25 arises. In case, however, the designated authority abuses its powers or transgresses the limits when exercising the power, the actual order of the authority and not the Statute would be condemned as unconstitutional.

(ix) Where the Statute itself does not make any classification of persons or things and leaves it in the discretion of the Government to select and classify persons or things without laying down any principle or policy to guide the Government in the exercise of discretion, the statute will be struck down on the ground of making excessive delegation of power to the Government so as to enable it to discriminate between the persons or the things similarly situated.

33. We now proceed to examine the impugned legislation in the light of the principles enunciated in the aforereferred cases/authorities. It is manifest from these principles that a special legislation providing for differential treatment would not offend against the equal protection clause of the Constitution if the persons or the things falling within the mischief of the provisions of the special statute form a class or a category in themselves distinct from others. The first question, therefore, is whether the impugned law has made a provision for reasonable classification of the offences/offenders for whose trial, Special Courts with special procedure have been set up. Answer to this question primarily lies in the definition of the 'offence' contained in section 2(c) of the impugned enactments reproduced hereinabove. 'Offence', according to the definition given in the impugned Act, means an offence specified in the Schedule which, in the opinion of the Government, is gruesome, brutal and sensational in character or shocking to public morality or has led to public outrage or created panic or an atmosphere of fear or anxiety amongst the public or a section thereof. Definition given in Ordinance II of 1987 was somewhat different in that it did not refer to the schedule as none was attached thereto nor did it contain the words "gruesome and brutal". The difference pointed out is, however, not very material for the purpose of classification because in any case, it is only the offence which answers to the description given in the definition that can be referred to the Special Courts for Speedy Trials. Of course, in the cases arising after the promulgation of the Act, classification is further restricted to the offences specified in Schedule.

While examining the aforereferred definition given in the impugned Act, Supreme Court of Pakistan in the case of "Muhammad Yaqub v. Government of Baluchistan and another" PLD 1989 SC 13 observed "In the context of this definition, an offence cannot be an offence specified in the Schedule unless it conforms to the guidelines mentioned above. It is the commission of this offence which the Special Court can take cognizance of under section 7 of the Act in pursuance of a report under section 173 of the Code of Criminal Procedure." It is thus quite clear that the offences triable by Special Courts constituted under the impugned enactment are duly classified with reference to their special features and characteristics mentioned in the definition contained in section 2(c). The classification so made also appears to be quite reasonable because instances are not wanting where the crimes of murder, dacoity, robbery, kidnapping and abduction are committed in a manner and under the circumstances which bring them within the mischief of the definition of 'offence' embodied in section 2(c). In fact, the offences as are visualized in the said definition are unfortunately becoming the order of the day. Such offences by reason of the peculiar characteristics and special features attending them are distinguishable from stray cases of similar offences or even same species of offences committed under ordinary circumstances. They can, therefore, we'll be constituted into a special class of offences requiring special treatment. It may pertinently be observed that law is fairly well settled that in the field of criminal justice, a classification can well be made on the basis of heinousness of the crime committed, the degree of harm/evil likely to be caused to the society as a whole or a part thereof as a result of the commission of certain offences or the necessity of preventing certain immoral or anti-social effects of a particular crime. Refer F.B. Ali's case (Supra). In the circumstances, the classification of the offences having special features/characteristics as are mentioned in the definition is quite valid and reasonable based as it is on intelligible differentia.

34. Next question requiring consideration in the context of the classification is whether the aforenoted differentia has a rational nexus with the object sought to be achieved by the impugned legislation.

The object of the impugned law as recited in its preamble and operative provisions voz. Section 5(1) and (2) is to provide for the speedy trials of the offences which as stated above constitute a special class and a separate category. It appears that the offences of the type and the kind characterized/examplified in the definition of the 'offence' were becoming common and the legislature in its wisdom thought it necessary in the public-interest of adopt measures to bring the perpetrators of such offences to book promptly and expeditiously. It was with that object in view that the impugned legislation containing the provisions for speedy trials of the said offences was brought forth. It cannot, therefore, be denied that the classification made had the rational relation with the object sought to be attained by the impugned legislation. Both the conditions viz. The reasonable classification of the offences and the rational relation thereof with the object of the statute, being thus satisfied, the impugned legislation cannot be said to be violative of Article 25 of the Constitution.

35. We now take up the question of the vires of section 5 of the impugned law. As noted above, it was contended on behalf of the petitioners that the power conferred on the Government under section 5 to refer the cases to the Special Courts was unfettered and arbitrary insofar as it has not laid down any criteria/standards to guide the Government in the exercise of its discretionary powers. Grievance made by the learned counsel was that the Government is free even in respect of the offences falling within the mischief of the impugned law, to refer some cases to the Special Courts leaving others to be tried by the ordinary Courts. We find no force in this contention. Firstly, it is not quite correct that the discretionary power vesting in the Government is uncontrolled and unguided. We find that enough guidance is available to the Government in the objective of the statute set out in its preamble namely the Speedy Trials of certain offences; the provision contained in section 5 itself which says that the power thereunder is to be exercised in the 'public interest' and more particularly in the definition of the 'offence' in section 2(c) which furnishes guidelines for proper exercise of discretion. In forming its opinion, the Government is expected to take into consideration all these relevant factors. Reference in this respect may also be usefully made to the following observations of their Lordships of the Supreme Court in the case of "Muhammad Yaqub v. Government of Baluchistan" (Supra) "Reading, therefore, the definition of the word "offence" in section 2(c) and section 5 of the Act together a conclusion is obvious that unless the "offence" satisfies the guidelines enumerated in the definition, the power to transfer the case cannot arise in the public interest which is an expression of wide import and means "general social welfare or regard for social good and predicating interest of the general public in matters where a regard for the social good is of the first moment." (See Law Lexicon, 2nd Edition, 1986, Vol.3 pp. 1956- 1957). The opinion, therefore, should be relatable to the guidelines which are elemental in the concept of "public interest" and this should appear from the order itself."

' As regards the second limb of the argument that the provision in question empowers the Government to pick and choose from amongst the specified/classified offences and is, therefore, discriminatory, suffice it to observe that when the Legislature vests a discretion in the Government or some other Executive/Administrative authority and lays down the policy and purpose of the legislation as also the principles/norms for the guidance of such authority, which is the position in the present case, no exception can legitimately be taken to the conferment of the discretionary power on the premises that it is liable to be exercised in a discriminatory manner. The designated authority particularly when it happens to be the Government is expected to exercise its discretion in public interest keeping in view the policy and purpose of the statute and the guidelines set out therein. That being so, it is available to the relevant authority to decide in its discretion, as to which case/cases relating to the specified offences are to be sent to the Special Courts for trial leaving other cases to be tried by the ordinary Courts. Refer Kedar Nath Bajoria's case (Supra) where this proposition was upheld and it was observed that the Government was not compellable to allot all the cases relating to the scheduled offences to Special Judges. Relevant discussion has already been reproduced in para. 29 ante. Similar view was expressed in the case of "Sohbat Khan v. The State" PLD 1966 Pesh. 210 wherein it was held that "The authorities have made it abundantly clear that the Legislature cannot be expected to lay down a scientifically perfect classification and that discretion has necessarily to be given to the statutory functionaries called upon to operate the special statute. As long as the intent and policy of the Legislature is made clear, and principles or standards are laid down for the guidance of the executive authorities, no exception can be taken to the trial of specific cases or class of cases before the special forum created under the special law, leaving other similar cases, to be dealt with by the ordinary law." It is well settled that the discretionary power is not the same thing as the power to discriminate nor can the Constitutional validity of law be tested on the assumption that where a discretionary power is conferred on a high authority, the same may be exercised in a discriminatory manner. Apprehension that the Provincial Government when exercising its discretionary power may abuse the provisions of the Statute was repelled by the Supreme Court of India in AIR 1950 SC 211 with the observation "It is improper to start with such an assumption and decide the legality of an Act on that basis. Abuse of power given by a law sometimes occurs, but the validity of the law cannot be contested because of such an apprehension." The same view was taken in another decision of the Supreme Court of India reported in AIR 1956 SC 44 where the Court observed "It has to be borne in mind that a discretionary power is not necessarily a discriminatory power and that abuse of power is not to be easily assumed where the discretion is vested in the Government and not in a minor official."

' In the aforesaid view of the matter, validity of section 5 is not open to any exception either on the ground of excessive delegation or on the ground that it authorised or permitted discriminatory treatment of persons within the same class. It may, however, be made clear that if the designated authority when exercising its discretionary powers acts mala fide or in complete disregard of the provisions of the Statute or in excess of the limits laid down by the statute or abuses its powers, its action would be liable to be set aside in appropriate proceedings not on the ground of infringement of Article 25 but on the ground of being ultra vires the Act.

36. We now take up the objection of Mian Dilawar Mahmood based on Article 10 of the Constitution.

His submission was that section 8 of the impugned legislation in so far as it empowered the Special Court to appoint an Advocate of its own selection to defend an absconding/absenting accused, was repugnant to Article 10 of the Constitution which guarantees to an accused person "the right to consult and be defended by a legal practitioner of his choice". Section 8 has been reproduced above. Subsection (4) thereof provides for trial in absentia of an accused (a) who has deliberately absented himself with a view to impeding the course of justice i.e, he has become an absconder or

(b) where he has been removed from the Court under the orders of the Special Court on account of his behavior in Court calculated to impede the course of justice. Second proviso to subsection

(4) states that the Special Court shall proceed with the trial after taking necessary steps to appoint an Advocate to defend the accused person who is not before the Court. Subsection (5) further provides that the Advocate to be so appointed shall be a person selected by the Special Court and that he shall be engaged at the expense of the Government. This provision, on the face of it, appears to have been brought in to provide legal assistance to the absconding/absent accused but this does not save the situation as the Constitutional guarantee is that the accused person shall have the right to legal assistance of his own choice. There is no doubt that an accused person tried in absentia stands deprived of the Fundamental Right guaranteed to him by the Constitution that he shall not be denied an opportunity to consult and be defended by a counsel of his choice.

We have, therefore, no doubt that the provision in question is clearly in derogation of Article 10 of the Constitution. In "Muhammad Usman v. The State" PLD 1965 Lah. 229, it was held that "any proceedings in which an arrested person is denied the right to consult and be defended by a legal practitioner of his choice will be illegal". Reference in the precedent case was also made to the following observations in "Khair Muhammad Khan v. Government of West Pakistan PLD 1956 Lah.

668:- "From now on we should treat Article 7 as a part of every law relating to trial for an offence. We shall, therefore, issue a direction that no evidence shall be heard or recorded against the accused before they have been given an opportunity of defending themselves by a pleader, and this shall be the rule in future."

37. Next objection which requires attention was raised by Mr. Raza Kazam. He challenged the validity of section 4(2) of Act XV of 1987 on the ground that it contravened the provisions of Articles 175, 240 and 205 of the Constitution. His contention was that since the terms and conditions of the service of the Judges of the Special Courts were not secured by any law, their judgments are likely to be biased. Section 4(2) relates to the appointments and qualifications of Judges of the Special Courts. We have examined the Constitutional provisions relied upon by the learned counsel but we find them of no assistance to him. Article 175 provides that "There shall be a Supreme Court of Pakistan, a High Court of each Province and such other Courts as may be established by law". It is further provided in sub-clause (2) that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. Special Courts, it may be stated, are established by law which has also conferred jurisdiction on them. Article 205 is wholly irrelevant to the submission made by the learned counsel as it deals with the remuneration and other terms and conditions of Judges of suprior Courts. Judges of the Special Courts are obviously not the Judges of the Superior Courts. Article 240 provides that the appointments to and conditions of service of persons in the service of Pakistan shall be determined by or under an Act of Parliament in the case of all Pakistan services, the services of the Federation and posts in connection with the affairs of the Federation, and by or under an Act of the Provincial Assembly in the case of the services of a Province and posts in connection with the affairs of a Province. This provision, too, does not advance the argument of the learned counsel because the terms and conditions of service of the Judges of the Special Courts are not necessarily to be determined by an Act of the Parliament or of a Provincial Assembly. We find that a provision has been made in Rule 3 of Special Courts for Speedy Trials (Punjab) Rules, 1987 that the terms and conditions of a person appointed as a Special Court other than a Judge of the High Court shall be such as may be determined by the Government. We also find no substance in the argument of the learned counsel that merely because the terms and conditions of service of the Judges are to be determined by the Government, this is bound to create a bias in their judgments. In any case, the fact that the judgments of the Special Courts are appealable before the High Court should be sufficient to allay any assumption/apprehension of bias.

38. We now attend to the contention of Mr. Zafar Pasha, Advocate that the persons whose cases are ordered to be tried by the Special Court are entitled to an opportunity of being heard before an order to that effect is passed by the relevant authority. The contention appears to be misconceived. It may be noted that at the time when the Notification under section 5 entrusting the case to the Special Court is issued, there is no lis pendens and as such there is no question of granting any hearing to the person concerned. Prosecution before the Special Court commences only after the Notification is issued and at that stage, the accused can question the validity of the Notification and the Special Court is under an obligation, as observed by the Supreme Court of Pakistan in the case of Muhammad Yaqub (Supra), to examine whether the offence alleged against the accused conforms to the guidelines mentioned in the definition in section 2(c). The argument raised by the learned counsel overlooks the fact that in cases of grant of sanction for prosecution of Government servants, it has never been claimed that the accused should be heard before the sanction is granted. Similarly, no law requires that a police officer before registering a case or submitting a report to the Court under section 173, Cr.P.C. Must hear the accused. In case of "Cozens v. North Devon Hospital Management Committee" (1966) 2 QB 330, Lord Salmon observed: "No one suggests that it is unfair to launch a criminal prosecution without first hearing the accused". Viewed in this light, the argument of Mr. Zafar Pasha appears to be wholly untenable.

39. We now turn to the amending Ordinance XIX of 1988. Learned counsel for the petitioners and the learned Advocate-General as also Mr. Asif Saeed Khosa, Advocate who appeared as amicus curiae on Court's request addressed elaborate arguments regarding the Constitutional validity of the amending Ordinance and the effect of its repeal.

' The Ordinance in question, it may pertinently be stated, was promulgated by the President of Pakistan on 13th October, 1988 to make certain amendments in the parent statute viz. Special Courts for Speedy Trials Act XV. Of 1987 which was about to expire on 7th November, 1988. The amendments made by this Ordinance have already been noted in para. 6 ante. The most crucial amendment was made in subsection (2) of section 1 of the Act substituting the words "two years" for "one year" therein with the result that the life of the Act was extended from one year to two years. The amending Ordinance, it appears, was not laid before the National Assembly in the form of a Bill and thus, according to the learned counsel for the petitioners, it was allowed to 'lapse' on the expiry of a period of four months from its promulgation.

40. It was argued on behalf of the petitioners that according to the scheme envisaged by the Constitution, an Ordinance made/ promulgated by the President can last only for four months and, therefore, any provision made therein which has the effect of enduring beyond the life of the Ordinance is ultra vires. Proceeding on these premises, it was contended that the impugned provision in the amending Ordinance extending the life of the parent statute for one year i.e, beyond the life of the Ordinance itself was unconstitutional. Mr. Khosa also endorsed this contention and submitted that the intention of the Constitution makers was that the Ordinance issued under Article 89 of the Constitution shall have the effect only for four months and not beyond that. According to the learned counsel, whenever the Constitution fixes a time-frame and the intention is that it can be over-stepped, it always specifically so provides. Reference in this behalf was made to certain Articles of the Constitution wherein it is provided that the President, the Prime Minister, the Chief Minister and the Chief Election Commissioner can continue to hold office for some time beyond their regular term. Learned Advocate-General, on the other hand, argued that the President's power to legislate through Ordinance did not suffer from any such inhibition as was suggested by the learned counsel for the petitioners. He contended that an Ordinance can very well enact the provisions the effect of which may continue even after the expiry of the Ordinance. To support this contention, learned Advocate-General referred to "Laxman v. The State"

AIR 1981 Bombay 179) and "A.K. Roy v. Union of India" AIR 1982 SC 710.

' In the first cited case, the Governor in exercise of his powers conferred upon him under section 213 of the Constitution of India, promulgated an Ordinance on 25th September, 1980 postponing Zilla Parishad elections till 30th June 1981. Validity of the Ordinance was challenged on the ground that it provided for postponement of the elections beyond six, weeks from re-assembly of the Legislature which was scheduled to assemble on 8th December 1980. The Ordinance, under the relevant provision, was to cease to operate at the expiration of six weeks from the re-assembly of the Legislature. The contention was not accepted and it was held, by the Bombay High Court that the Governor was competent to issue an Ordinance which provided for postponement of the election in question even beyond the expiration of the six weeks from the re-assembly of the legislature. It was. However, observed that the Ordinance was subject to the conditions laid down in sub-Article

(2) of Article 213 of the Constitution of India viz. "that the said Ordinance will have to be laid before the Legislative Assembly or the Council before the expiration of six weeks from the reassembly of the Legislature etc. The Assembly is to reassemble on 8th December, 1980 and in the normal course this Ordinance will be placed before the Legislature." It may be noted that the Ordinance questioned therein had not yet ceased to operate and was still in force whet, the writ petition filed to challenge its validity was decided. Thus, the case is an authority only for the proposition that an Ordinance when promulgated may enact the provision, the effect of which may continue even after the expiry of the Ordinance. The question whether the provisions so enacted would also remain effective even after the expiry/repeal of the Ordinance was not gone into in the precedent case. The second case cited by the learned Advocate-General lays down an obvious and incontrovertible proposition that an Ordinance made by the President is not an executive act and is as much a law as an Act passed by the Parliament. The case throws no light on the proposition under consideration.

' Having considered the aforenoted submissions, we are of the view that there can be no dispute that an Ordinance in its inception may enact a provision effect whereof may continue even after the repeal of the Ordinance but then under clause (2) of Article 89 of the Constitution, the Ordinance is required to be laid before the National Assembly where it shall either be passed as an Act of the Legislature in which event, objection to the provision that it could not continue after the repeal of the Ordinance would become irrelevant. However, if in terms of clause (2)(a)(i)(ii) of Article 89, the Ordinance "shall stand repealed at the expiration of four months from its promulgation", effect of the repeal shall be determined with reference to the provisions of Article 264 of the Constitution. This, in our view, appears to be the correct legal position.

41. Some of the counsel for the petitioners sought to argue that the impugned Ordinance was a temporary measure which expired after four months of its promulgation and ceased to have any effect whatsoever on its expiry except for the transactions past and closed. Precise point made by the learned counsel was that the life of the parent Act was thus extended only unto the time of the expiry of the amending Ordinance. Learned Advocate-General, however, contended that by virtue of the provisions of clause (2) of Article 89 of the Constitution, the Ordinance in question stood "repealed at the expiration of four months from its promulgation." It was thus the case of repeal and not of expiry and that the consequences of the repeal are provided in Article 264 of the Constitution. Learned Advocate-General further contended that the amendments made in the parent Act having taken effect shall continue in force despite the repeal of the amending Ordinance. Support for this submission was drawn from the following provisions of Article 264 of the Constitution:- "Where a law is repealed, or is deemed to have been repealed, by under, or by virtue of the Constitution, the repeal shall not

(a) . ,

(b) affect the previous operation of the law or anything duly done or suffered under the law; ' Reliance was also placed on (1) AIR 1973 Kerala 136, (2) AIR 1974 Allahabad 263, (3) PLD 1962 Karachi 306 and (4) PLD 1978 Peshawar 17.

' It was argued on behalf of the petitioners that the case of the repeal of the amending Ordinance more appropriately falls under a provision like section 6A of the General Clauses Act. Reliance was placed on (1) AIR 1960 SC 89, (2) PLD 1982 SC 82 and (3) PLD 1988 SC 416. They, however, contended that section 6A was not applicable to the cases of repeal under or by virtue of the Constitution. Dr. Riazul Hassan Gillani, the then Deputy Attorney-General made a submission that the impugned Ordinance was not a law within the meaning of Article 264 of the Constitution. Mr. Asif Saeed Khosa, Advocate elaborated this submission and contended that Article 264 saves the actions and liabilities under law and not under legal instruments like Ordinances having the force or effect of law. Mr. Raza Kazim, Advocate took the stand that the impugned Ordinance not having been laid before the National Assembly, it could not be said to have been repealed under Article 89 and, therefore, Article 264 of the Constitution would not be attracted. He further submitted that assuming that Article 264 is applicable, the impugned amendment (substituting two years for one year) made in the main Act would not be covered by the said Article, clause (b) whereof, in the submission of the learned counsel, applies to what he described as the administration of the Ordinance. Mr. Raza Kazim further submitted that the amendment in question is not a textual amendment and that such an amendment is not saved by any provision or principle. Sh. Ziaullah, Advocate for the petitioners submitted that Article 264 invoked by the learned Advocate-General saves only substantive rights and not the procedural provisions like the impugned Ordinance. He referred to PLD 1958 Lah.

853.

42. We have considered the submissions of the learned counsel for the parties with reference to the relevant provisions of the Constitution and the General Clauses Act. Learned Advocate-General is right in saying that the impugned Ordinance stood repealed on the expiry of four months' period from its promulgation as provided in clause (2) of Article 89. It was clearly a case of repeal and not of expiry. It is also correct that the consequences of the repeal of laws are provided Q in Article 264 of the Constitution. We cannot accept the contention raised by the Deputy Attorney-General and Mr. Khosa that an Ordinance is not a law for the purpose of Article 264 of the Constitution. No doubt, law is not defined in the Constitution but if an Act of Parliament is a law which it undoubtedly is, there is no reason why an Ordinance should be not treated as a law. Clause (2) R of Article 260 of the Constitution places the matter beyond doubt as it provides "Act of (Majlis-e-Shoora (Parliament)" or "Federal law" or "Act of Provincial Assembly" or "Provincial Law" shall include an Ordinance promulgated by the President or, as the case may be, a Governor." We also find no force in the submission of Sh. Ziaullah, Advocate regarding the saving provisions of Article 264 of the s Constitution. Learned counsel appears to have misconceived the scope of the amending provision which extended the life of Act XV of 1987. It cannot be said to be a merely procedural provision.

43. We now come to the main question whether despite the repeal of the amending Ordinance, the amendment made in the parent Act extending its life from one year to two years continues to be in force. We are not impressed by the argument of the learned Advocate-General that the amendment in question is covered by the saving clause (b) of Article 264 of the Constitution. This provision is pari materia with section 6 of the General Clauses Act. In our view, the said provision only saves the acts done, proceedings taken and orders passed during the currency of the repealed Law. The amending provision in question which only brought about a change in the text of the relevant provision of the main Act by substituting the words "two years" for "one year" cannot fall within the purview of the aforesaid saving clause. If the amendment like the one in question could be covered by clause (b) of section 6 of the General Clauses Act, there was no necessity of justification for inserting section 6A in the said Act. It is significant that provision like section 6A of the General Clauses Act has not been incorporated in the Constitution which provision specifically deals with the effect of the repeal of an Act that has amended the text of another enactment by "the express omission, insertion or substitution of any matter". Section 6A reads as follows:- "6A. Repeal of Act making textual amendment in Act or Regulation.-- Where any (Central Act) or Regulation made after the commencement of this Act repeals any enactment by which the text of [any (Central Act) or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal]."

' It may be noted that even the cases cited by the learned Advocate-General viz. AIR 1973 Kerala 136, PLD 1962 Kar. 306 and PLD 1978 Pesh. 17 wherein it was held that the repeal of an amending Act does not affect the amendments which have already been brought into the main Act were decided on the basis of and with reference to the aforequoted provision of Section 6A and not Section 6. The Karachi case after reproducing section 6A of the General Clauses Act observed "The obvious effect of this provision in the present case would be that the repeal of Act XLV of 1958 would not affect the continuance of any amendment which had been made by it in the main Act (Act XII of 1957), unless a different intention appeared". PLD 1978 Pesh. 17 relied upon the afore- mentioned Karachi case. AIR 1973 Kerala 136 referred to two cases viz. AIR 1960 SC 89 and AIR 1954 Cal. 484 which dealt with the object of enacting section 6A and it was finally observed "Therefore, the repeal of an amending Act does not affect the amendments which have already been brought into the main Act". Reference at this stage may also be made to "Abdul Majeed v. Asif Jan" (PLD 1982 SC 82) and "Miss Benazir v. Federation of Pakistan and another" (PLD 1988 SC 416). In both these cases, reliance was placed on section 6A of the General Clauses Act as also on the repealing provisions of the relevant Statutes in line with the pattern of section 6A and it was held that by virtue of the said provisions, the continuance of the textual amendment in the parent Act was saved.

44. From the foregoing discussion, it is quite clear that section 6A of the General Clauses Act is designed to save the textual amendments made in the parent statute by an amending Ordinance which has since been repealed. No such saving provision is admittedly available in the Constitution and the law is well settled that the provisions of the General Clauses Act do not apply to constitutional matters. Absence of such a specific provision in the Constitution as is contained in section 6A of the General Clauses Act is the manifestation of the intention of the framers of the Constitution that they did not want the amendments/substitution made by an Ordinance in the text of an Act of the Parliament to survive the repeal of the amending Ordinance. In this view of the matter, we are constrained to repel the contention of the learned Advocate-General and we hold that the impugned amendment made by the amending Ordinance No,XIX of 1988 in the parent Act (whereby the life of the Act was extended from one year to two years) was in force only during the subsistence/ currency of the amending Ordinance and it has not survived the repeal of the said Ordinance. Result, therefore, is that the main statute viz. Act XV of 1987 remained in force and operative only upto the date of the repeal of the Ordinance.

45. Reference may last have all be made to the argument of Mr. Khosa that the amending Ordinance was ultra vires of the Constitution insofar as it was issued by the President without the advice of the Prime Minister. In fact, the office of the Prime Minister was not there in the Care-taker Cabinet appointed under Article 48(5)(b). Mr. Khosa referred to Article 48(1) of the Constitution which provides "In the exercise of his functions, the President shall act in accordance with the advice of the Cabinet or the Prime Minister." He also drew our attention to Article 91 of the Constitution which provides that "There shall be a Cabinet of Ministers, with the Prime Minister at its head, to aid and advise the President in the exercise of his functions." In support of his submission, learned counsel referred to the well-known case of "Muhammad Sharif v.

Federation of Pakistan" reported in PLD 1988 Lahore 721 wherein it was observed that the office of the Prime Minister is necessary for running the affairs of the State at all times. It may pertinently be stated that despite this view/observation, the relief claimed by the petitioners therein with reference to the violation of the aforenoted provisions of the Constitution was declined in the exercise of discretionary writ jurisdiction though the orders of the dissolution of the Assemblies and dismissal of the Federal and Provincial Cabinets were found to be bad in law. One of the reliefs, sought was that "All the steps taken, appointments made, laws framed including the issuance of the Ordinances by the President after 29-5-1988 is without lawful authority".

46. Matter was then taken to the Supreme Court. Their Lordships affirmed the orders of the High Court. As regards the question of the absence of the office of the Prime Minister in the Care-taker Cabinet, it was observed in the judgment of the Supreme Court reported in PLD 1989 SC 166. "The reference to the provisions of the Constitution made above shows that the office of the Prime Minister is necessary at all times for running the affairs of the country and that he should have been appointed to head a Care-taker Cabinet." Mr. Justice Shafiur Rahman recorded a separate note wherein his Lordship observed "In this background the Constitution does not visualise a Care- taker Cabinet without a Prime Minister. The absence of Prime Minister from a Care-taker Cabinet alters for the period under discussion the very character of the Constitution from a Parliamentary democracy to a Presidential system of Government. The Courts can neither countenance nor condone all this at this stage and in these proceedings. Such violations and breaches concern the very essential features of the Constitution. What are the legal consequences on individual acts done, or actions already taken and suffered, we are leaving it to be decided in individual cases, more appropriately brought before us."

' It appears that relying on the aforementioned observations, Government of Pakistan in the Ministry of Justice and Parliamentary Affairs issued the following Press Note:- "Consequently the actions taken, orders passed or appointments made after 29th May, 1988 upto 2nd December, 1988 by the President which were required to be taken, passed or made on the advice of the Prime Minister were illegal. Such actions, orders and appointments have to be regularised in accordance with the provisions of the Constitution and therefore all Government Offices, Departments, the Registrars of the High Courts and Supreme Court are requested immediately to contact the Ministry of Law and Justice with regard to such actions, orders and appointments taken, passed or made by or in the name of the President from 29th May to 2nd December, 1988 so that these are regularised by taking appropriate steps in accordance with the Constitution in the light of the judgment of the Supreme Court. It is further advised that all such appointees may suspend the performance of their official duties till their appointments are regularized or reaffirmed by the President on the advice of the Prime Minister. Certain legislative measures may also be required to be taken after carefully considering the implications of the judgment of the Supreme Court."

' The aforequoted Press release was assailed in a Miscellaneous Petition before the Supreme Court of Pakistan which was disposed of by an order, dated 18th March, 1989 (reported in PLD 1989 SC 229) with the following observations:- "The portion of the Press Note reproduced above does not appear to correctly reflect our judgment insofar as it states that the consequence of the judgment is that actions taken, orders passed or appointments made after 29th May, 1988 unto 2nd of December, 1988 by the President which were required to be taken, passed or made on the advice of the Prime Minister were illegal and required regularization and reaffirmance awaiting which the appointees should suspend the performance of their official duties. Such a relief had been asked for from the Court but was not granted. The findings on all the matters in controversy were recorded to remove all doubts and ambiguities with regard to distribution of functions and powers under the Constitution for guidance in the future."

' The aforequoted observations of the Supreme Court leave n. Room for doubt that the actions taken by the President of Pakistan during the interregnum were not declared illegal in the judgment rendered in the case of "Federation of Pakistan v. Muhammad Safi Ullah Khan" and that the findings recorded on all matters of controversy including the office of the Prime Minister were recorde for guidance in future. It may be pertinently stated that keeping in view this clarification, we cannot but reject the contention of the learned counsel.

47. The conclusions that follow from the foregoing discussion are summarized hereunder:-

(1) That the impugned legislation though discriminatory on account of some of its provisions being disadvantageous/prejudicial to the accused subjected 'to trial before the Special Courts for Speedy Trials are not hit by Article 25 of the Constitution as the impugned law has provided for reasonable classification permissible in law.

(ii) That the provisions of section 8 of the impugned Act/Ordinance insofar as they permit the trial of an accused person in absentia are violative of Article 10 of the Constitution.

(iii) That the amending Ordinance (XIX of 1988) stood repealed on the expiration of four months from its legislation and its provisions particularly the provision seeking to extend the life of the main Act from one year to two years have not survived the repeal.

(iv) Consequently, Act XV of 1987 was operative only unto the date of the repeal of the amending Ordinance.

48. As a consequence of the findings hereinbefore recorded, we hold and declare that all orders/Notifications issued by the Government under section 5 of Act XV of 1987 after the date of its expiry i.e, with effect from the day of repeal of the amending Ordinance XIX of 1988 and all proceedings pending or taken, trials of cases held, orders/judgments passed by any Special Courts established under the said Act, were taken, held and passed as without lawful authority and of no legal effect.

' It is further declared that any proceedings pending in any Special Court for Speedy Trials in pursuance of any order/Notification issued by the Government under section 5 of Ordinance II of 1987 and Act XV of 1987 during the period that they were in effective operation cannot proceed as no Special Court for Speedy Trials exists after the expiry of Act XV of 1987 as aforementioned.

' Office is directed to fix all the cases mentioned in the opening part of this judgment as also other writ petitions involving identical questions of law, in the next week for passing appropriate orders in each individual case in the light of the aforementioned declarations/ directions.