1. ' SAEEDUZZAMAN SIDDIQUI, C.J.---The above petition under Article 199 of the Constitution is filed by Mrs. Benazir Bhutto, the former Prime Minister of Pakistan to challenge the validity of the Parliament and Provincial Assemblies (Disqualification for Membership) Order, 1977 (P.O. 17 of 1977) and the Rules 3, 6, 7, 8, 9 and 10 of the Parliament and Provincial Assemblies (Disqualification for Membership) Rules, 1990. For the sake of convenience we will hereinafter refer the P.O. Order 17 as the 'Order' and the above-referred Rules as the 'Rules' only. The petitioner has also sought declaration that the two references filed against her by the President of Pakistan which are presently pending before the Special Court at Karachi and Lahore are discriminatory, arbitrary and incompetent.
2. ' We have heard Mr. Yahya Bukhtiar, learned counsel for the petitioner and Mr. Aziz A. Munshi, learned Attorney-General for the Federation of Pakistan. Mr. Yahya Bukhtiar learned counsel for the petitioner has advanced the following contentions in support of the petition:--
(1) That the power given to the President to file reference against a person under the Order is arbitrary and capable of being exercised discriminately as no principle or reasonable basis is laid down under the law for exercise of this power by the President.
(2) That the Order is violative of Article 63 of the Constitution of Islamic Republic of Pakistan inasmuch as, under Article 5 of the Order if a person is found guilty he stands disqualified from being elected or chosen as a Member of Parliament or a Provincial Assembly for a period of seven years from the date of the order of the Special Court whereas under Article 63 of the Constitution in such an eventuality the disqualification prescribed is only for five years.
(3) That the Order is in conflict with Article 248 of the Constitution inasmuch as Article 248 affords complete immunity to the acts done by the Prime Minister in discharge of his official functions whereas such actions of Prime Minister are made answerable before a Special Court upon a reference made by the President to the Special Court under the Order and in the event of an adverse order by the Special Court the Prime Minister stands disqualified from being elected or chosen as a Member of the Parliament or a Provincial Assembly.
(4) That the reference against the petitioner is incompetent as the provisions of the Order apply only to the pre-election stage and do not apply to a person who has been elected to the Parliament or a Provincial Assembly.
(5) That in view of Article 63(2) of the Constitution an elected person can only be disqualified by the Chief Election Commissioner on a reference made to him by the Speaker or the Chairman in accordance with the provisions of that Article and as such the References filed against the petitioner for disqualifying her under P.O. Order are invalid and incompetent.
(6) That the power conferred on the Special Court under Article 6(4) of the Order to refuse to examine any witness or summon any document and to conduct its proceedings and to regulate the same in such manner as the Special Court considers fit and proper amounts to conferring an unlimited and uncontrolled power on the Special Court which is violative of all norms of justice and propriety.
(7) That the definition of the term 'misconduct' as given in the Order is absolutely vague and specially the expression used in the definition 'any other abuse of whatsoever kind of power or position' in the definition clause amounts to leaving to the discretion of the Special Court to determine what is or what is not misconduct. Conferment of such power on the Court is violative of the legislative power.
(8) That the References against the petitioner are violative of the provisions of Article 25 of the Constitution as the action against the petitioner is based on pick and choose. The references against the petitioner are totally one-sided as several other persons placed in the same category and in similar circumstances against whom there were definite illegations of corruption and abuse of powers have not been proceeded against.
(9) That Rule 3 of the Rules is violative of the principles of natural justice and the provisions of the Order as it provides one-sided opportunity to the Referring Authority to represent through a representative before the Special Court at the stage of scrutiny of the References while no such opportunity is provided to the person against whom the reference is filed.
(10) That Rule 6 of the Rules is beyond the scope of Order as it has taken away the valuable right of an accused for a de novo trial in the event of reconstitution of the Special Court.
(11) That the restrictions contained in Rule 7 of the Rules on the power of the Special Court not to grant adjournment during the conduct of enquiry for a period exceeding two days, is in conflict with Article 6(4) of the Order.
(12) That Rule 8 of the Rules in so far it invests the Court with power to prohibit publication of a document is beyond the scope of Article 6(5) of the Order which prescribes that the proceedings before the Special Court will be open to public.
(13) That the provision of Rule 9 in so far it provides that where the respondent fails or refuses to show cause or answer any question or to explain any fact appearing against him in regard to which he is shown or in the opinion of the Special Court can reasonably be believed to have personal knowledge, the Special Court shall be entitled to draw an adverse presumption against him is violative of Article 13 of the Constitution.
(14) That the provision of Rule 9(1) which invests the Special Court with discretion to determine the manner in which it will record evidence in a case before it, is violative of Article 9 of the Order which clearly states that the provisions of the Order are in addition to and not in derogation of any other law.
(15) That Rule 10 of the Rules which provides for ex parte proceedings against the respondent in a case before the Special Court is in conflict with the scheme of the Order which makes no such provision.
(16) That the Care-taker Government appointed by the President after dissolution of Assembly had no authority to advise the President to file the present References as such function was out of the scope and authority of the Care-taker Prime Minister.
(17) That on the date of filing of references the President has the choice of filing references either under Act 5 of 1977 or under the Order. The procedure available under Act 5 of 1977, which was passed by a competent legislature, being more advantageous to the respondent as compared to the procedure prescribed under the Order the making of reference under the Order violated the principles contained under Article 4 of the Constitution; and
(18) That the allegation of misconduct alleged against the petitioner could be tried in Courts established under the ordinary law of the land and as such prosecution of references against the petitioner before a Special Court appointed by the President violated the safeguards provided to the petitioner under Articles 4, 7, 9 and 25 of the Constitution.
3. ' In reply to the above submissions of the learned counsel for the petitioner the learned Attorney- General contended that there is no question of discrimination or discriminatory action against the petitioner as the petitioner belongs to a class of specified persons mentioned in clause 4(2) of the Order. It is contended by the learned Attorney-General that the persons mentioned in clause 4(2) of the Order are a class in themselves and as such their classification in a category is reasonable and in so far the persons falling in the specified category are treated equally there cannot be any possible grievance of discriminatory action. Regarding the objection of the petitioner in respect of validity of the P.O. 17 with reference to Articles 63 and 25 of the Constitution, it is contended by the learned Attorney-General that there is no conflict between the provisions of the Order and Articles 63 and 25 of the Constitution. It is urged by the learned Attorney-General that Article 63(1)(p) clearly saves the provisions of the Order. Similarly, it is contended by the learned Attorney-General that there is no question of any discrimination against the petitioner as the allegation of discrimination is to be judged with reference to other persons falling in the specified category and placed in similar circumstances.
4. ' With regard to the protection afforded to the President, Governor, Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister with regard to their exercise of power and performance of functions of their respective offices or for any act done or purported to be done in the exercise of their powers and performances of their functions, the learned Attorney- General contended that the protection is only available to the lawful acts of the holder of such public office and not to the acts which were either mala fide or in abuse of the powers available to them, as holder of such public office. Regarding the definition of word "misconduct" in the Order the learned Attorney-General contended that the misconduct as defined in the Order is exhaustive and does not suffer from any vagueness. Similarly, the learned Attorney-General contended that various provisions of the Order and the Rules pointed out by the petitioner's counsel as violative of legislative norms of justice is not correct as these provisions did not offend against any settled principle of either natural justice or legislative norm.
5. ' We have heard the learned counsel for the petitioner as well as the learned Attorney-General at great length and our conclusions on the points raised in the petition are as follows:-- ' We will first take up contentions Nos.1, 8 and 18 of the learned counsel for the -petitioner as they are inter-linked and are the main grounds of attack to the constitutionality of the Order. It is contended by the learned counsel for the petitioner that the allegations of 'misconduct' levelled against the petitioner are triable before an ordinary Court and as such trial of these allegations under the provisions of the Order which vests the President with arbitrary and unbridled power to pick and choose a person for trial before a Special Court, nominated by him, is discriminatory and violative of the provisions of Article 25 of the Constitution, which granted equal protection of law to all the citizens. It is also contended by the learned counsel that by making references against the petitioner and her partymen only, they have been singled out and discriminated against, as several other persons belonging to the class of the petitioner have been left out completely and no references were filed against them, although there were definite and serious allegations of 'misconduct' against them as well. The above argument of the learned counsel can be bifurcated in two parts. The first limb of the argument is that the Order is ex facie discriminatory and violative of Article 25 of the Constitution and as such is not a valid piece of legislation. The second limb of argument relates to the application of the provisions of the Order in relation to the petitioner in a discriminatory manner. In support of the first limb of his argument, the learned counsel referred to the cases of Waris Meah v. State PLD 1957 SC (Pak.) 157, Khan Abdul Akbar Khan v. Deputy Commissioner, Peshawar PLD 1957 Pesh. 100, Malik Totti Khan v. District Magistrate, Sibi and Ziarat PLD 1957 Quetta 1, Malik Behram Khan v. State PLD 1957 Kar. 709 and Muhammad Akbar v. Political Agent, Quetta PLD 1958 Quetta 12.
6. ' In Waris Meah's case the validity of sections 22-A, 23-A and 23-B inserted in the Foreign Exchange Regulation Act, 1947 by the amending Act XXXII of 1956, which gave power to Central Government or the State Bank of Pakistan to determine whether an offender under the Act was to be tried under the ordinary law (Section 23 of the Act) or by an Adjudicating Officer (Section 23-A) or by a tribunal (Section 23-B), was challenged on grounds of excessive delegation of the legislative authority, as well as being opposed to Article 5 of the Constitution of 1956 which guaranteed equal protection of law to all the citizens. The Court while repelling the contention relating to excessive delegation of legislative authority, accepted the other argument that sections 22-A, 23-A and 23-B are discriminatory and opposed to the provisions of Constitution which provided for equal protection of law to all the citizens. The Court upon an ultimate analysis of sections 22-A, 23-A and 23-B of the Act reached the conclusion that the discretion given to Central Government or the State Bank of Pakistan under the above provisions of law, to prosecute an offender either under the ordinary law, or before an adjudicating officer or by a Tribunal, the three different punishing authorities, each with different power and procedure and entailing punishment of unequal nature and description, offended against Article 5 of the Constitution of 1956 which guaranteed equal protection of law to the subject.
7. ' In Khan Abdul Akbar Khan's case a full Bench of West Pakistan High Court while examining the provisions of Frontier Crimes Regulations, 1901, reached the conclusion that sections 1(4) and 8 which applied only to Pathans and Balochis offended against Article 5 of the Constitution which guaranteed equal protection of law to all the citizens. To the same effect are the decisions in the cases of Behram Khan, Malik Tooti Khan and Muhammad Akbar.
8. ' The ratio decidendi in Waris Meah's case is, that if a statute vested a statutory authority with the discretion and choice to prosecute an offender before three different available forums, each one of such forums having different procedure and power and entailing punishment of unequal nature and description and there being no guideline available in the statute to control such discretion, such provision is ex facie discriminatory. Similarly, the ratio decidendi in the cases of Khan Abdul Akbar Khan; Malik Tooti, Malik Behram Khan is that application and extension of the provision of a statute to a particular group of persons classified on the basis of race or tribe, which deprived such person to have recourse to normal Courts of law for settlement of their disputes, is ex facie discriminatory and against the Article of the Constitution which guaranteed equal protection of law to all the citizens.
9. ' In the light of the above-stated principles we will now examine whether the provisions of the Order are ex facie discriminatory and against the provisions of Article 25 of the Constitution. Article 3 of the Order provides for establishment of Special Courts. It further provides that the Special Court shall consist of a person who is Judge of the High Court and it shall sit at such places as the President may by notification in the official Gazette specify in this behalf. Article 4 of the Order vests the Special Court with power to enquire into and decide cases relating to the 'misconduct' of a person specified in the Order upon a reference being filed before it by the President or by the Governor if so required by the President. What will constitute 'misconduct', is defined in Article 2 (a) of the Order. Article 5 of the Order deals with scope of enquiry before the Special Court and consequences flowing from the verdict of guilty by the Court against the person facing trial before it. Article 6 deals with the procedure to be followed by the Special Court in conduct of cases before it. Article 7 provides for filing of appeal against the order of Special Court before the Supreme Court.
10. Article 10 of the Order protects a person against proceedings under the Order in respect of acts which have been done or intended to be done in good faith in pursuance of or in exercise of powers vested or in good faith believed to be vested in him at the material time by virtue of that office. After careful examination of the above provisions of the Order we are of the view that the legislature by defining 'misconduct' in Article 2(a) of the Order created a new class of cases which were exclusively triable by a Special Court in the manner provided in the Order. It is significant that although proceedings before the Special Court may result in the disqualification of a person from being elected or chosen as a member of Parliament or Assembly for a specified period, which may give it a tinge of criminal proceedings, but in strict sense these proceedings could not be described as criminal proceedings since in matters of receiving of evidence, summoning of witnesses, discovery and production of documents, issuance of commission etc. The Special Court has to follow the procedure prescribed in respect of suits for a Civil Court under the Code of Civil Procedure. We are, accordingly, of the view that the cases filed before the Special Court under the Order belonged to a special category and could not be tried before an ordinary Criminal Court. The learned counsel for the petitioner was unable to point out any provisions in any law for the time being in force, which made the offence of `misconduct' as defined in the Order, triable before an ordinary Criminal Court. The learned counsel was also unable to point out any provisions of law which prescribed any punishment for the offence of 'misconduct' as defined in the Order. In these circumstances the ratio decidendi of Waris Meah's case is not at all attracted in the present case as the authority referring the case to Special Court under the Order had no choice to send the case to any other forum. Even otherwise, the trial of an ordinary offence before a tribunal of exclusie jurisdiction under a different procedure cannot be objected to on the ground of unconstitutionality of the legislation, if the offenders can reasonably be classified as a class different from the offenders under the ordinary law. Our above conclusion finds support from the following observations of Supreme Court in Waris Meah's case, relied by the petitioner's counsel, which appears at page 169 of the report as follows:- "In the present case, if the Act had merely set up a Tribunal of exclusive jurisdiction, though with a procedure different from that prescribed by the Criminal Procedure Code for the trial of ordinary offences, no objection could successfully have been taken to the constitutionally of the Act because the offenders against the Foreign Exchange Regulation could validly and reasonably be considered to be a class different from offenders under the ordinary law. Not, could any objection .On the strength of Article 5 of the Constitution succeed if the Act itself had indicated the classes of cases which were to be tried by the ordinary Courts, the Tribunal and the Adjudication Officers respectively. Even if the Act itself made no such classification but had required the Central Government to make it, the discretion so vested in the Central Government would have been constitutional, provided the classification made by the Government proceeded on a rational and reasonable basis and was not arbitrary, capricious or whimsical."
11. The other grievance of the petitioner is that she has been singled out on the basis of the classification of persons as given in section 4 of the Order, which also amounted to discrimination and violation of the principle of equal protection of law to all citizens enshrined in Article 25 of the Constitution. The scope of the clause guaranteeing equal protection of law to the citizens was considered by the Supreme Court of Pakistan in the case of Jibendra Kishore v. Province of East Pakistan PLD 1957 SC 9 and following observations were made by the Court at page 38 of the report:-- "Whatever also 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.
12. Though in the United States the guarantee of equal protection of the laws has been invoked upon more occasions than any other constitutional guarantee, with the possible exception of the due process of law guarantee, also contained in the Fourteenth Amendment, 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 as it came before the Court. But notwithstanding the disinclination of the Court to give an all inclusive definition of the expression, 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 generalization 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 recognized that classification of persons or things is in no way repugnant to the equality doctrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of 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 consideration, 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 be held that if in consequence of abolishing the system of private rent 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 income at the time of their expropriation was a necessary and not an unreasonable classification."
13. ' The law laid down in Jabindra Kashore's case was followed by the Supreme Court in the case of F.B. Ali v. State PLD 1975 SC 506 and following observations were made by the Court at pages 528 to 530 of the report of the case:-- "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 this, 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 State, maintenance of public order, removal of corruption from amongst public servants or for meeting an emergency.
14. ' 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 (Pak.) 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 Achharya v. Province of East Pakistan PLD 1957 SC (Pak.) 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 hold the differentiation to be based upon a valid classification.
15. ' 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 difference 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.
16. ' 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.
17. ' Under this principle the American Courts have consistently held that the equal protection of the laws is not by a course of procedure which is applied to legal proceedings in which a particular person is affected if such a course also would be applied to any other person in the State under similar circumstances vide Tinsley v. Anderson 171 US 312. The equal protection clause does not demand uniformity of procedure. The Legislature may well classify litigation and adopt one type of procedure for one class and a different type for another. The American Supreme Court has even held that a State may make different arrangements for trials under different circumstances of even the same class of offences (vide Graham v. West Virginia 224 US 616).
18. ' Willist in his treatise on the Constitutional Law of the United States, page 580, opines:- "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 object sought to be accomplished. In doing this the Courts may consider matters of common knowledge, 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.
19. ' Thus even a 'law applying only to one person or one class of persons is constitutional if there is sufficient basis or reason for it'."
20. ' From the law laid down in the above-quoted passages, it is quite clear that the clause guaranteeing equal protection of law to the citizens only means that persons in like circumstances and conditions are to be treated equally both in respect of privileges conferred and liabilities imposed. However, in applying the above principle, there can be no objection to the classification of persons and things, with reference to the clause guaranteeing equal protection of law in the Constitution, so long such classification is natural, reasonable and bears nexus to the object of legislation. We will, therefore, now proceed to examine whether the classification of persons mentioned in Article 4 of the Order in a group is reasonable, natural and bears nexus to the object of the Order. However, before doing that, we may first dispose of an ancillary contention of Mr. Yahya Bakhtiar, raised in this regard. The learned counsel pointed out that the Order- contains no preamble and as such the object of legislature cannot be ascertained. It is true that where an Act contains the preamble, it is legitimate to refer to the preamble to ascertain the object .Of legislation and also to call it in aid to resolve any ambiguity in any enacting part of the Statute.
21. However, it is well-settled that preamble cannot control the enacting part of the Statute and in case of conflict between the enacting part and the preamble of the statute the enacting part will prevail. Therefore, mere absence of a preamble in the Act can neither limit nor destroy the object of the Act, if it otherwise can be ascertained from the enacting part of the Statute. A careful reading of P.O. 17 of 1977 would show that all persons mentioned in sections 4(1)(a)(b) and 4(2)(a)(b) of the Order are those who occupied top political and public offices wielding extraordinary powers of taking major policy decisions of great importance and sensitive nature, which could affect the destiny of whole nation. Keeping in view the above position in life of these persons, and the nature and the extent of power exercised by them by virtue of their offices under the Constitution and law, their classification in one group is neither unreasonable nor unnatural. It now remains to be seen whether classification of the holders ofthese high public offices in one group bears any nexus to the object of legislation namely, P.O. 17 of 1977. A reading of various provisions of the Order will show that it was promulgated with the object of keeping the political stream in the country clean, by weeding out corrupt and unscrupulous elements from the political arena of national life. Article 4 of the Order requires the Special Courts, on a reference by the President, to hold enquiry in the alleged 'misconduct' of the persons who either once held or are holding the high public offices mentioned in that Article, and to debar them from being elected or chosen as a member of Parliament or the Assembly for seven years if they are found guilty of 'misconduct' as defined in the Order. These avowed objects of the Order bear reasonable nexus with the classification of persons mentioned in Article 4 of the Order, in one group. We are, therefore, of the view that the provisions of the Order can sufficiently stand the test of natural and reasonable classification and relevance of such classification with the object of the Order. The fact that the Order is capable of being administered in a discriminatory manner cannot render the Statute ex facie discriminatory.
22. The second limb of the argument of learned counsel for the petitioner is ' that the action taken against the petitioner is discriminatory as she and her partymen were singled out by filing references before the Special Courts only against them while many other persons in the same class, against whom serious allegations of corruption and misconduct were made, were left out and no references were filed against them. To support his contention the learned counsel during the course of arguments referred to various news items and newspaper reports .Against such persons in an attempt to show that they were also accused of `misconduct' within the meaning of Order. The power to make reference before Special Courts against a person specified in Article 4 of the Order on the ground of 'misconduct' is vested with the President of Pakistan, a holder of the highest office in the Federation. In the scheme of our Constitution the election of the President is very broad based as he is elected by the members of both the Houses namely, the Parliament and Senate, and the members of the Provincial Assemblies. The President is in fact a symbol of the unity of Federation in the Constitution. When power is conferred on such a high authority under the Order to make reference to the Special Court, it is unlikely to be abused. On the contrary, the presumption will be that such authority has been exercised in a bpna fide manner and according to law. Apart from it the discretion to make reference to the Special Court under the Order is neither arbitrary nor uncontrolled. Firstly, as argued by the petitioner's counsel as well as the learned Attorney-General, the President can make the reference to the Special Court under the Order, only on the advice of Prime Minister, another person who occupies the high office of the Chief Executive in the Federation.
23. Secondly, Rule 4 of the Rules clearly provides that the reference is to be filed in the form of a concise statement of those material facts on which the referring authority is satisfied that there are reasonable grounds for believing that an act of misconduct has been committed by the respondent. This clearly means that the discretion of the President to make reference under the Order against a person is neither uncontrolled nor arbitrary but is circumscribed by his satisfaction first, about the existence of fact which makes him reasonably believe that an act of misconduct has been committed by such person. Apart from it, the reference when filed before the Special Court, passes through the process of scrutiny by the Court into the allegations of misconduct against the person proceeded against and only when the Court finds that the material filed before it discloses a prima facie case of misconduct against him that a notice is issued to the respondent to show cause against those allegations. The above mechanism provided in the law. In our opinion sufficiently controlled the discretion of President vested under the Order. The learned counsel for the petitioner in his arguments no doubt contended that filing of references against the petitioner and his partymen alone were discriminatory as several other persons belonging to the class of the petitioner, and against whom serious allegations of 'misconduct' were levelled were left out but the only material which he referred in support of his contention are the press reports in the newspaper which cannot form the basis of the finding that the action against the petitioner was based on discriminatory application of the provisions of the Order. We are, therefore, of the view that the petitioner has failed to establish that filing of the references against her amounted to a discriminatory action under the Order.
24. ' Mr. Yahya Bakhtiar, next contended that the Order is in conflict with Articles 63 and 248 of the Constitution. It is urged by the learned counsel that the disqualification prescribed under Article 63(1)(1) of the Constitution for a person from being elected or chosen as and from being a member of Majlis-e-Shoora, if he is found guilty of a corrupt and illegal practice under any law for the time being in force, is only five years from the date on which that order takes effect, whereas, Article 5 of the Order provides that if a person is found guilty of `misconduct' by the Special Court he shall stand disqualified for a period of seven years from being elected or chosen as a member of Parliament or of the Provincial Assembly. According to learned counsel this obvious conflict regarding period of disqualification between Articles 63 and 5 of the Order, renders the Order unconstitutional. Article 63 of the Constitution reads as follows:-- "63. (1) A person shall be disqualified from being elected or chosen as and from being a member of the Majlis-e-Shoora (Parliament), if--
(a) he is of unsound mind and has been so declared by a competent Court; or
(b) he is an undischarged insolvent; or
(c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or
(d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or
(e) he is in the service of any statutory body which is owned or controlled by the Government or in which the Government has a controlling share or interest; or
(f) being a citizen of Pakistan by virtue of section 14-B of the Pakistan Citizenship Act, 1951 (II of 1951), he is for the time being disqualified under any law in force in Azad Jammu and Kashmir from being elected as a member of the Legislative Assembly of Azad Jammu and Kashmir; or
(g) he is propagating any opinion, or acting in any manner, prejudicial to the Ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan; or
(h) he has been, on conviction for any offence which in the opinion of the Chief Election Commissioner involves moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; or
(i) he has been dismissed from the service of Pakistan on the ground of misconduct, unless a period of five years has elapsed since his dismissal; or
(j) he has been removed or compulsorily retired from the service of Pakistan on the ground of misconduct unless a period of three years has elapsed since his removal or compulsory retirement; or
(k) he has been in the service of Pakistan or of any statutory body or anybody which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or
(1) he is found guilty of a corrupt or illegal practice under any law for the time being in force, unless a period of five years has elapsed from the date on which that order takes effect; or
(m) he has been convicted under section 7 of the Political Parties Act, 1962 (III of 1962), unless a period of five years has elapsed from the date of such conviction; or
(n) he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a cooperative society and Government, for the supply of goods to, or for the execution of any contract or for the performance of any service undertaken by Government: ' Provided that the disqualification under this paragraph shall not apply to a person.
(i) where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator, until the expiration of six months after it has so devolved on him; or
(ii) where the contract has been entered into by or on behalf of a public company as defined in the Companies Ordinance, 1984 (XLVII of 1984) of which he is a shareholder but is not a director holding an office of profit under the company; or
(iii) where he is a member of a Hindu undivided family and the contract has been entered into by any other member of that family in the course of carrying on a separate business in which he has no share or interest; or Explanation.---In this Article 'goods' does not include agricultural produce or commodity grown or produced by him or such goods as he is, under any directive of Government or any law for the time being in force, under a duty or obligation to supply.
(o) he holds any office of profit in the service of Pakistan other than the following offices, namely:--
(i) an office which is not wholetime office remunerated either by salary or by fee;
(ii) the office of Lumbardar, whether called by this or any other title;
(iii) the Qaumi Razakars;
(iv) any office the holder whereof, by virtue of such office, is liable to be called up for military training or military service under any law providing for the constitution or raising of a Force; or (p)(1) he is for the time being disqualified from being elected or chosen as a member of the Majlis- e-Shoora (Parliament) or of a Provincial Assembly under any law for the time being in force.
(2) If any question arises whether a member of the Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant."
25. ' A careful reading of Article 63 will show that it deals with the disqualifications for membership of Majlis-e-Shoora. Such disqualifications may be of a general and inherent nature as mentioned in sub-clauses (a) to (g) of Article 63 of Constitution or it may arise on account of some external events and circumstances as enumerated in the remaining sub-clauses of clause (1) ibid. A person suffering from inherent disqualifications mentioned in sub-clauses (a) to (g) ibid cannot become a member of Majlis-e-Shoora but a person who incurs disqualification on account of events and circumstances enumerated in sub-clauses (h) to (o) ibid, is debarred from becoming member of Majlis-e-Shoora for a specified period only. The period of such disqualifications specified in each of the sub-clauses (h) to (o) ibid is different and varies from two to five years. However, in respect of disqualification which may arise under sub-clause
(p) of clause (1) of Article 63, no period is specified. The learned counsel for the petitioner relied on Article 63(1)(1) of the Constitution to contend that the disqualification period prescribed in Article 5 of the Order being in excess of the period mentioned in Article 63(1)((1) of the Constitution, it is liable to be struck down as unconstitutional. We are unable to accept the contention of the learned counsel. The disqualification prescribed in sub-clause (1) of clause (1) of Article 63 arises upon indictment of a person of corrupt or illegal practice under any law for the time being in force.
26. However a person against whom a reference is filed before the Special Court is charged with 'misconduct' as defined in the Order and no allegations of corrupt or illegal practice, which has a particular connotation, can be made or enquired into in such proceedings. We are, therefore, of the view that the case of a person who is found guilty of 'misconduct' by a Special Court under the Order, cannot fall under Article 63(1)(1) of the Constitution but will be covered under sub-clause (p) ibid. As sub-clause (p) of clause (1) of Article 63 ibid does not specify any period of disqualification, such disqualification will be governed by the relevant law. Accordingly a person found guilty of 'misconduct' under the Order stands disqualified for a period of seven years as provided by Article 5 of the Order. We are unable to discover any conflict between Article 5 of the Order and Article 63 of the Constitution.
27. ' The other objection of the petitioner regarding constitutionality of the Order is based upon its alleged conflict with the provisions of Article 248 of the Constitution which reads as follows:-- "248.--- (1) The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not be answerable to any Court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions: ' Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province.
(2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any Court during his term of office.
(3) No civil proceedings in which relief is claimed against the President or a Governor shall be instituted during his tam of office.
(4) No civil proceedings in which relief is claimed against the President or a Governor shall be instituted during his term of office in respect of anything done or not done by him in 'his personal capacity whether before or after he enters upon his office unless, at least sixty days before the proceedings are instituted, notice in writing has been delivered to him, or sent to him in the manner prescribed by law, stating the nature of the proceedings, the cause of action, the name, description and place of residence of the party by whom the proceedings are to be instituted and the relief which the party claims."
28. The immunity provided to the functionaries mentioned in sub-clause (1) of Article 248 with regard to the exercise of powers and performance of functions of their respective offices is not total and absolute. Although the functionaries mentioned in Article 248(1) cannot be sued by name in respect of the exercise of powers and performance of functions of their respective offices but appropriate proceedings as provided in the proviso to Article 248(1) can always be instituted to challenge the validity of such actions in Courts, against the Federation or the Provinces as the case may be. Apart from it, the immunity conferred by Article 248(1) to the exercise of the power and functions of the office of these functionaries is available to those acts only, which are connected with their offices and are within the scope of such authority. The acts of these functionaries which are either not connected with their offices or which are beyond the scope of their authority or are mala fide or against the express provisions of law or the Constitution are not protected under Article 248 of the Constitution. The immunity clause relied by the petitioner is in the nature of an exception. And is, therefore, subject to the rule of strict construction. Before an act is said to be covered under the immunity clause, it must be shown that it fell strictly within the letter of this clause. The scope of Article 248 of the Constitution came up for consideration recently before the Supreme Court of Pakistan in the case of Amanullah Khan v. Federation of Pakistan PLD 1990 SC 1092 and I can do no better than to reproduce here the following observations of the Court appearing at pages 1143-4 of the report:-- "54. The law laid down by the Courts in Pakistan is that the expression `exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions' has to be given a very strict meaning. This Article (Article 248) of the Constitution came up for consideration in Ch. Zahur Illahi v.
29. Mr. Zulfikar Ali Bhutto and 2 others PLD 1975 SC 383, where the following observations were made:- - 'We are also in agreement with the learned counsel for the petitioners that the immunity provisions must, in accordance with the accepted principles of interpretation, be construed strictly and unless persons claiming the immunity come strictly within the terms of the provisions granting immunity, the immunity cannot be extended. The immunity is in the nature of an exception to the general rule that no one is above the law. It is, nevertheless, not possible to lay down any hard and fast rule as to what is or what is not within the powers and functions of a Minister or a Prime Minister but each case will have to be judged on its own facts and circumstances'."
30. ' In the case of H.B. Gill and another v. The King AIR 1948 PC 128, while considering such protective provisions, the Privy Council laid down the law as hereunder:-- "Their Lordships, while admitting the cogency of the argument that in the circumstances prevailing in India a large measure of protection from harassing proceedings may be necessary for public officials cannot accede to the view that the relevant words have the scope that has in some cases been given to them. A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus, a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act; nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office."
55. More recently, in the State v. Zia-ur-Rehman and others PLD 1973 SC 49, the following law was laid down by the Supreme Court:-- "It will thus, be seen that, so far as this Court is concerned, it has consistently held the view that a mala fide act stands in the same position as an act done without jurisdiction, because, no Legislature when granting a power to do an act can possibly contemplate the perpetration of injustice by permitting the doing of that act mala fide. I am, therefore, of the opinion that the words 'purported to be done or done in the purported exercise of powers' cannot cover acts which were not done by persons empowered under the statute or the legislative measure to so act or were clearly beyond the scope of the powers given by the statute or were done mala fide or by practising a fraud upon the statute for a colourable purpose."
31. ' In the case of Fauji Foundation and another v. Shamim-ur-Rehman PLD 1983 SC 457 it was held that `mala fides is not different from other imputations such as crime, moral delinquency and improper conduct, and the rule of establishing it is also the same'.
32. In view of the above discussed legal position, we are of the view, that the immunity provided to the exercise of power and performance of functions of theoffice by the functionaries mentioned in Article 248(1) of the Constitution did not extend to the acts which amounted to 'misconduct' as defined in section 2(a) of the Order. We are accordingly of the view that the references filed by the President against the petitioner alleging 'misconduct' are not hit by Article 248 of the Constitution.
33. The next contention of the learned counsel for the petitioner is that the provision of Article 5 of the Order is also in conflict with Article 63(2) of the Constitution as a person who has been duly elected can only be disqualified by the Chief Election Commissioner if he has become disqualified from being a member of Majlis-e-Shoora, upon a reference made to the Election Commissioner by the Speaker or the Chairmen as the case may be in accordance with the provisions of the said Article.
34. It is, accordingly, contended by the learned counsel that by providing in Article 5 of the Order that a person who is found guilty of misconduct by the Special Court shall stand disqualified for a period of seven years from being elected or choosen as a member of Parliament or Provincial Assembly, the provision of Article 63(2) has been contravened. The argument of the learned counsel for the petitioner, in our opinion, is based on misinterpretation of the Order. The primary object of filing a reference before the Special Court is to obtain a judicial verdict from the Court, whether the person against whom reference is made is guilty of 'misconduct' as defined in the Order or not. The disqualification mentioned in Article 5 of the Order arises as a consequence of the finding by the Special Court that the person proceeded against has been found guilty of misconduct. The effect of such a finding by the Special Court is regulated in accordance with the provisions of Article 63 of the Constitution. We are unable to find any conflict between Article 5 of the Order and sub-Article
(2) of Article 63 of the Constitution. On the contrary, in our view, Article 63(2) of the Constitution, supplements the provision of Article 5 of the Order, in the sense, that if a person in spite of having incurred the disqualification continues to sit in the House, action can be taken against him in accordance with Article 63(2) ibid. ' The next contention of the learned counsel for the petitioner is that the provisions of the Order apply only to the pre-election stage and do not apply to a person who has been elected to the Parliament or Provincial Assembly. Learned counsel for the petitioner in support of his contention relied on the language of Article 5 of the Order which reads as follows:-- "5. Enquiry by Special Court, etc.---In a case in which the Special Court has issued to the respondent a notice under paragraph (b) of clause (3) of Article 4, the Special Court shall, after such further scrutiny of records and such enquiry as it thinks fit and after giving the respondent an opportunity of being heard, record its findings and, in case the respondent is found guilty, he shall stand disqualified for a period of seven years from being elected or chosen as a member of Parliament or of a Provincial Assembly."
35. (Underlining is by us).
36. ' Learned counsel for the petitioner specially referred to the underlined words in the above provision to contend that the words from being elected or chosen' can only refer to the pre-election stage and not a stage after a person gets elected. The learned counsel went on to argue that after a person gets elected he cannot be disqualified from being elected or chosen as member of Parliament or Assembly'. In our view the provision of Article 5 of the Order should not be read in isolation. In order to discover the true intention of the legislature, we must read the Order as a whole. Article 4 of the Order provides for filing of a reference by the President both against persons who are either holding any of the offices mentioned in this Article on the date of filing of the reference, or have held the same in the past. The offices of President, Prime Minister, a Federal Minister, Minister of State, Chief Minister or a Provincial Minister can only be held by a person who is duly elected either to Parliament, Senate or a Provincial Assembly. It is, therefore, not correct to argue that a person who stands elected to a seat in the Parliament, Senate or a Provincial Assembly is outside the purview of the Order. Reading Articles 4 and 5 of the Order together, we are of the view that a reference against the person under Article 4 of the Order cannot be defeated by reason of such person getting elected in the meantime to a seat of Parliament or the Assembly. If the interpretation suggested by the learned counsel for the petitioner is accepted it will lead to anomalous results. For instance, references against two persons, who are candidates in a coming election of the Parliament, are pending before Special Court and both of them get elected to the seats of Parliament. The reference against one of them is decided before the holding of election while against the other it is decided after he is declared elected to the Parliament seat and both are found guilty of 'misconduct' by the Special Court. According to the above contention of the learned counsel for the petitioner, though both the above persons may be guilty of 'misconduct' under the Order but the disqualification mentioned under Article 5 of the Order will be attracted only in the case of the person whose case was decided before the election took place and this disqualification will not be applicable to the person who got elected as stated above. No such interpretation is permissible on the language of Article 5 of the Order. Article 63 of the Constitution clearly provides that if a person is for the time being disqualified from being elected or chosen as member of Majlis-e-Shoora or Provincial Assembly under any law for the time being in force, then he shall be disqualified from being the member of Parliament or Provincial Assembly.
37. The next contention of the learned counsel for the petitioner is that the reference against the petitioner should have been filed under Act V of 1977 which was the law promulgated by a competent legislature and was in force on the date of filing of the reference. It is urged by the learned counsel that there being two legislations available on the subject on the date of filing of the reference, preference should have been given to the law which was more favourable to the accused. It is accordingly contended by the learned counsel for the petitioner that the filing of the reference against the petitioner under the Order was discriminatory as admittedly the procedure provided under the Order_ for deciding the reference was less favourable to petitioner. The contention does not appear to be sound. Section 3 of Act V of 1977 which provided for holding of an enquiry and decision of cases relating to misconduct of person who is holding or has held, the office of Federal Minister, Minister of State, Attorney-General, Provincial Minister Parliamentary Secretary, Advocate-General or member of Parliament or Provincial Assembly, by a Bench of two Judges of the High Court, reads as under:-- "3. Cases to be enquired into and decided by Division Bench of High Court.--(1) A Bench of the High Court composed of not less than two Judges shall enquire into and decide cases relating to the misconduct of a person who is holding, or has held, the office of Federal Minister, Minister of State, Attorney-General, Provincial Minister, Parliamentary Secretary, Advocate-General or member of Parliament or of a Provincial Assembly.
38. Explanation.--- In this section,--
(i) a person who is holding the office of 'Federal Minister', 'member of Parliament', 'Provincial Minister' or 'member of Provincial Assembly' does not include a person who is holding the office of Prime Minister or Chief Minister; and
(ii) 'High Court' means the High Court within the jurisdiction of which the place from which the respondent was elected as a member of Parliament or of a Provincial Assembly is situated or, if such place is situated in the Federally Administered Tribal Areas, the Peshawar High Court or, in the case of the Attorney-General or an Advocate-General, the High Court within the jurisdiction of which the respondent normally resides.
(2) The High Court shall not proceed to enquire into any charge of misconduct except on a reference in writing made to it--
(a) in the case of Federal Minister, Minister of State, Attorney-General, Federal Parliamentary Secretary, member of Parliament or Provincial Minister, by the Prime Minister; and
(b) in the case of a Provincial Parliamentary Secretary or an Advocate-General, or a member of a Provincial Assembly other than a Provincial Minister, by the Prime Minister or, if the Prime Minister so requires, by the Chief Minister.
(c) On receiving a reference under subsection (2), the High Court shall scrutinize the necessary records relating to the charge mentioned in the reference, and--
(a) if, as result of such scrutiny, it is of the opinion that no charge can be established, return the reference to the authority making it together with its opinion thereon; and
(b) in other cases issue notice to the respondent requiring him to show cause why it should not further proceed against him under this Act.
(4) Nothing in clause (a) of subsection (3) shall bar any subsequent reference to the High Court, except in so far as it relates to a charge in respect of which an opinion has previously been given by the High Court under that clause."
39. It is quite clear from the explanation to subsection (1) of section 3 ibid that the 'Prime Minister' and 'Chief Minister' were excluded from the purview of the above law. The petitioner being the holder of the office of Prime Minister of Pakistan, therefore, could not be proceeded against under section 3 of Act V of 1977. The Order which is a later enactment, on the other hand, under its Article 4 authorised the 'Special Court' to enquire into the cases of 'misconduct' even against the Prime Minister. It is, therefore, quite clear that a reference against the petitioner could only be filed under Article 4 of the Order. We may also mention here that Act V of 1977 and P.O. 17 of 1977 being legislations on the same subject-matter, according to settled rules of interpretation, the later enactment will prevail in case of inconsistency between the two; the latter enactment shall be deemed to have repealed the former to the extent of inconsistency. It may also be stated here that by Amending Ordinance IX of 1990, Act V of 1977 was repealed and as such on the date when we heard the arguments in the case, the only legislation in the field on the subject, was the Order. We accordingly, 'find no force in the contention of the learned counsel.
40. The next contention of the learned counsel for the petitioner is that the references filed against the petitioner by the President are bad as they were filed without the advice of the Prime Minister.
41. Alternatively, it is contended by the learned counsel for the petitioner that on the date the references were filed against the petitioner, the Caretaker Prime Minister was in the office, who was not competent to tender advice to the President for filing of the references, as such function was outside the scope of his office. It is contended that the Caretaker Prime Minister, was only competent to tender advice to the President in relation to matters touching the running of day-to- day affairs of the Federation and not on major political issues like filing of references against the former Prime Minister. In support of his contention the learned counsel relied on the opinion of Gul Zareen Kayani, J., in the case of Muhammad Sharif v. Federation of Pakistan PLD 1988 Lah.
725. Learned Attorney-General, on the other hand, contended that before filing the references against the petitioner the advice of the Caretaker Prime Minister was duly obtained. He further contended that there is nothing in the Constitution to show that the Caretaker Prime Minister, who was in office at relevant time, was not competent to give advice to the President for filing of the above references. It is common ground between the parties that a reference before the Special Court under the Order could be filed by the President only on the advice of the Prime Minister.
42. During the course of arguments we had posed a specific question to the learned Attorney-General that the President having been authorised under the Order to file a reference against a person on the ground of misconduct, was he not competent to file it without the advice of the Prime Minister?
43. In reply, the learned Attorney-General only contended that advice was obtained from the Caretaker Prime Minister before filing of the references against the petitioner. From the material produced before us, we are inclined to hold that advice of Caretaker Prime Minister was obtained by the President before filing of the references against the petitioner. The petitioner, has however, urged that the Caretaker Prime Minister inducted in the office after dissolution of the Assembly was not competent to advise the President for filing of the references under consideration. Article 48 of the Constitution provides that the President in exercise of his functions shall act in accordance with the advice of the Cabinet or the Prime Minister, except for those matters in respect whereof he is empowered by the Constitution to act in his discretion, Sub-clause (8) of Article 5 provides that when the National Assembly is dissolved one of the consequences which will follow is the appointment of a Caretaker Cabinet. In the case of Federation of Pakistan v. Haji Saifullah PLD 1989 SC 166 one of the learned Judges of the Bench of Supreme Court while considering the scope of Article 48(5)(b) of the Constitution observed as follows:-- "Yet another breach of Constitutional provision was the non-compliance with the requirement of clause (5)(b) of Article 48. It requires the appointment of a Caretaker Cabinet immediately on dissolution of the National Assembly. The Cabinet has been described in clause (1) of Article 91 of the Constitution as hereunder:-- "There shall be a Cabinet of Ministers, with the Prime Minister as its head, to aid and advise the President in the exercise of his function".
44. ' Clause (8) of Article 91 provides as follows:-- "Nothing contained in this Article shall be construed as disqualifying the Prime Minister or any other Minister or a Minister of State for continuing in office during any period during which the National Assembly stands dissolved, or as preventing the appointment of any person as Prime Minister or other Minister or as Minister of State during any such period."
45. ' Clause (2) of Article 92 provides as hereunder:-- "Before entering upon office, a Federal Minister or Minister of State shall make before the President oath in the form set out in the Third Schedule".
46. ' The relevant portion of the Oath of Federal Minister or Minister of State prescribed in Third Schedule of the Constitution reads as hereunder:-- "I .... Do solemnly swear that I will bear true faith and allegiance to Pakistan: ' That, as Federal Minister (or Minister of State); I will discharge my duties, .... As Federal Minister (or Minister of State), or as may be specially permitted by the Prime Minister.
47. ' May Allah Almighty help and guide me (A'meen)."
48. ' In this background the Constitution does not visualise a Caretaker Cabinet without a Prime Minister. The absence of Prime Minister from a Caretaker 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."
49. In view of the above observation of Supreme Court in Haji Saifullah's case the appointment of a Caretaker Prime Minister is necessary to carry out the functions of the Federation during the period the Assembly stands dissolved. The Court, however, did not lay down the extent of the power and authority to be exercised by the Caretaker Prime Minister. The functions of the Caretaker Cabinet or the Caretaker Prime Minister appointed for the interim period have not been defined in the Constitution as well. It is quite clear from the Constitution that the Prime Minister of a dissolved Cabinet can be appointed or continued as a Caretaker Prime Minister. In these circumstances, we are of the view that the authority of a Caretaker Prime Minister is co-extensive to that of the Prime Minister under the Constitution and all such decisions which the Prime Minister is entitled to take under the Constitution can be taken by the Caretaker Prime Minister as well. We, accordingly, find no force in the contention of the petitioner that the Caretaker Prime Minister could not tender advice to the President under the Constitution for filing of the above references. As we have already held that the advice of the Caretaker Prime Minister was obtained by the President before filing of the references against the petitioners in the Special Court, these references did not suffer from any legal infirmity.
50. The next contention of the learned counsel for the petitioner is that the power conferred on the Special Court under Article 6 of the Order to conduct its proceedings and regulate its procedure as it deems fit and specially the power to refuse to examine any witness or to summon any document is violative of all norms of justice and propriety as it amounted to conferment of unlimited and uncontrolled power on the Special.Court. After carefully examining Article 6 of the Order we are of the view that the Special Court in course of proceedings of the reference while summoning and enforcing attendance of witnesses, examining the witnesses on oath, requiring discovery and production of documents, issuing commission for examination of witnesses or documents and requiring any public record or copy thereof from any Court or office, shall follow the procedure prescribed in the Code of Civil Procedure for conduct of a suit.
51. The fact that the Special Court has been vested with powers to refuse to examine any witness or summon any document, does not mean that such power can be exercised arbitrarily. Since the provisions regarding summoning and examination of witnesses and discovery and production of documents contained in the Code of Civil Procedure are applicable to proceedings of references before the Special Court we are of the view that the Special Court while refusing to examine any witness or to summon any document will be guided by those considerations which are relevant before a Court exercising power under the Code for Civil Procedure.
52. The next contention of the learned counsel of the petitioner is that the term 'misconduct' as defined in section 2(a) of the Order is vague and specially the expression 'any other abuse of whatsoever kind of power or position' amounts to leaving at the discretion of the Special Court to declare what is or what is not misconduct. It is accordingly contended by the learned counsel for the petitioner that conferment of such power on Special Court is violative of legislative power. Misconduct has been defined in section 2(a) as follows:-- "2. (a) 'misconduct' refers to conduct after December, 1970, and includes bribery, corruption, jobbery, favouritism, nepotism, wilful maladministration, wilful misapplication or diversion of public moneys or moneys collected, whether by public subscription or otherwise and any other abuse of whatsoever kind of power or position, and any attempt at or abetment of such misconduct."
53. From a careful analysis of the definition of 'misconduct' it would appear that it includes, bribery, corruption, jobbery, favouritism, nepotism, wilful maladministration, wilful misapplication or diversion of public moneys or moneys collected, whether by public subscription or otherwise and any other abuse of whatsoever kind of power or position and any attempt at or abetment of such misconduct. The words, bribery, corruption, jobbery, favouritism, nepotism, wilful maladministration, wilful misapplication or diversion of public moneys are expressions which carry definite connotation and, therefore, it cannot be said that the legislature while defining 'misconduct' in the Order by these expressions left it to the discretion of the Special Court to declare any act as amounting to `misconduct' under the Order. We are also unable to agree with the learned counsel for the petitioner that the definition of word 'misconduct' as represented by the expressions, bribery, corruption, jobbery, favouritism, nepotism, wilful maladministration, wilful misapplication or diversion of public moneys, is vague or unintelligible. The learned counsel for the petitioner, however, laid much stress on the words 'and any other abuse of whatsoever kind of power or position' in clause 2(a) of the Order and contended that the above expression is too general and vague to be considered as defining the 'misconduct' and as such the Special Court has been virtually left free by the legislature to declare any act as `misconduct' within the scope of above expression. The expression 'any other abuse of whatsoever kind of power and position' is neither vague nor it is too general to vest the Special Courts with discretion to declare any kind of exercise of power and position, by the person accused before it, as 'misconduct' under the Order. The expression 'whatsoever kind of power and position' used in clause 2(a) of the Order may be of a wide and general import but it is preceded by the words 'of any other abuse'. The words 'abuse' is defined in Chambers 20th Century Dictionary as follows:- "Abuse; to make a bad use of: to take undue advantage of: to betray (as confidence): to misrepresent: to decieve: to revile: to maltreat; to violate.-- ns. Abuse, wrong use: evil or corrupt practice: deceit: hurt: undue advantage: betrayal (of confidence): ill usage: violation: reviling."
54. ' The use of expression 'of any ther abuse' before the expression 'of whatsoever kind of power or position' in the definition clause, in our view has sufficiently restricted, and controlled the general and wide scope of latter expression, so as to make the object definite and intelligible.
55. ' The next contention of Mr. Yahya Bakhtiar, the learned counsel for the petitioner is that Rules 3, 6, 7, 8, 9 and 10 of the Rules either violate the principle of natural justice or are in conflict with the provisions of the Order, under which they are framed and as such they are liable to be declared void.
56. ' We will take up each one of the above-referred rules in seriatim and examine their validity separately. Rule 3 reads as follows:-- "3. The President may appoint one or more persons to assist the Special Court in the scrutiny of records under clause (3) of Article 4 and in the conduct of the enquiry under Article 5 and no such appointment shall be questioned."
57. ' Mr. Yahya Bakhtiar, the learned counsel for the petitioner raised twofold objection to the validity of Rule 3. It is firstly contended by the learned counsel that the Order made no provision that at the time of scrutiny of the reference by the Special Court, it could be assisted by any representative of the referring authority and as such Rule 3 in so far it provided for appointment of one or more persons by the referring authority to assist the Special Court while it is making scrutiny of reference under Article 4(3)(a) of the Order is beyond the scope of the Order. The second objection of the learned counsel for the petitioner to the validity of Rule 3 is that it contravened the principles of natural justice inasmuch as it provided one-sided opportunity to the referring authority to be represented through a person before the Special Court at the stage of scrutiny under Article 4(3)
(a) of the Order.
58. It is true that the Special Court after scrutiny of reference under Article 4(3) of the Order may not issue any notice to the respondent if upon examination of the material produced before it alongwith the reference, it is satisfied, that no charge can be established against the person, against whom reference has been made. It is also correct that Article 4 of the Order does not specifically provide for assistance by the representative of the referring authority at the stage of scrutiny of reference under Article 4(3)(a) ibid. This however, does not mean that hearing of a person appointed by the referring authority or taking assistance from him is prohibited under the Order. The possibility that the Special Court may in some cases need a clarification from the referring authority in respect of the facts stated in the reference under Article 4(3) of the Order cannot be totally ruled out. Therefore, it cannot be said that Rule 3 in so far it provided that the President may appoint one or more persons to assist the Special Court in scrutiny of reference under clause (3) of Article 4 of the Order, it was enacted beyond the scope of the Order. Article 11 of the Order vests the Federal Government with powers to make rules for carrying out the purposes of the Order. Therefore, so long as the Rules framed under Article 11 fulfilled that object and did not come in conflict with any express provision of Order it cannot be declared ultra vires. We are, accordingly, of the view that Rule 3 of the Rules is neither beyond the scope of the Order nor is in concflict with Article 4(3) of the Order. The second objection to the validity of Rule 3 is, that it contravened the principles of natural justice. In order to appreciate correctly the contention of the learned counsel for the petitioner we must first ascertain the nature of the proceedings at the stage the reference is scrutinized by the Special Court under Article 4(3)(a) of the Order. It is quite clear from the provisions of Article 4(3)(a)(b) of the Order, and the type of order the Special Court can pass under it at that stage, that the proceedings are merely in the nature of a preliminary enquiry into the allegations made against the respondent in the reference. No adverse order is contemplated against the respondent by the Special Court at that stage and as such failure to hear him at that stage or omission to provide him an opportunity of representation, is not violative of any known principle of natural justice. In fact the proceedings against the respondent in a reference commence only when the Special Court does not return the reference to referring authority under Article 4(3)(a) but issues notice to him in terms of Article 4(3)(b) of the Order. Prior to that stage the enquiry in that reference remains in the nature of a preliminary probe in the allegations against the respondent which can be compared with proceedings before a Court prior to the issue of process to an accused person in a criminal complaint or enquiry of an F.I.R. Or a departmental enquiry against a person. It is well-settled law, that the failure to hear a person at the stage of preliminary enquiry is not violative of the principles of natural justice as at that stage the authority is only making a probe as to the reasonableness of the allegations in order to take a final decision in the matter to either proceed or not against the respondent. If any authority is needed in this regard reference may be made to the case of Province of Punjab v. Sardar Abdur Rehman Khan Durrani PLD 1979 SC 711. Learned counsel for the petitioner has relied on the case of Muhammad Ishaque v. Dr. Saeeduddin Saleh PLD 1959 Kar. 669 in support of his contention that Rule 3 is opposed to principle of natural justice but in our view the case has no relevance in the circumstances of the present case. We are absolutely clear in our mind that at the stage when the reference is being scrutinized by the Special Court for purposes of determining whether a case can be established or not against the respondent in the reference, no adverse order is being passed against him, therefore, the principle of natural justice pressed into service by the learned counsel for the petitioner is not attracted. We accordingly hold that Rule 3 of the Rules is valid.
59. Mr. Yahya Bakhtiar, objected to the validity of Rule 6 on the ground that it has taken away a valuable right of the accused. Rule 6 of the Rules provides that the Special Court shall not merely by reasons of a change in the composition of Court be bound to recall or re-examine witness who has given evidence prior to such change and may act on the evidence already given or produced before it. Similar provisions can also be found in section 350 of the Code of Criminal Procedure which regulates criminal trials. Learned counsel for the petitioner has not been able to point out any provision or rule of law which has been contravened by enacting Rule 6 of the Rules.
60. The validity of Rule 7 of the Rules is objected to by Mr. Yahya Bakhtiar on the ground that it restricts the power of the Special Court to grant adjournment in a case before it, not exceeding two days which is in conflict with Article 6 of the Order. Article 6(4) of the Order provides that notwithstanding anything contained in any other law for the time being in force the Special Court shall have power to conduct its proceedings and regulate its procedure in all respect sas it deems fit. The discretion conferred on the Special Court to conduct its proceedings and regulate its procedure in all respects under Article 6(4) of the Order cannot be limited or curtailed through framing of Rules. We accordingly hold that Rule 7 of the Rules to the extent it restricted adjournment by the Special Court in a case before it, beyond two days, is inoperative.
61. Learned counsel for the petitioner objected to the validity of Rule 8 of the Rules on the ground that under this Rule the Special Court could prohibit the publication of the contents of any document connected with or of any information relating to any proceedings coming before it upon a reference; while Article 6(5) of the Order provides that the proceedings before a Special Court shall be open to the public. We find no conflict between Rule 8 of the Rules and Article 6(,5) of the Order.
62. Article 6(5) of the Order states that the proceedings by a Special Court shall be open to public unless otherwise directed by the Special Court. It is, therefore, quite clear that the power of the Special Court to direct that the proceedings before it would be subject to restriction has not been taken away by Article 6(5) of the Order. Accordingly, in our view Rule 8 of the Rules is not violative of any of the provision of the Order.
63. ' Learned counsel for the petitioner has also challenged the validity of Rule 9 of the Rules. It is contended by the learned counsel for the petitioner that by providing in Rule 9(1) of the Rules that in proceedings under the Order the Special Court shall record evidence in such manner as appears to it just and proper for the purposes of recording its findings, uncontrolled and unlimited discretion has been conferred on the Special Court. Mere vesting the Special Court, which is presided over by a sitting Judge of the High Court, with powers to record evidence in the manner (as) appears to him to be just and proper, in our view, does not come in conflict with any provisions of the Order or any other law. The contention raised by the learned counsel for the petitioner at this stage is only academic, as he has not been able to point out violation of any provision of law or principle of natural justice by the Special Court while recording the evidence in the references against the petitioner. Learned counsel also objected to the validity of the proviso to Rule 9(2) which provides that where respondent fails or refuses to show cause or to answer any such question or to explain any facts appearing against him in the record to which he is shown or in the opinion of the Court reasonably believed to have personal knowledge, the Special Court shall be entitled to draw an adverse presumption against him. It is contended by the learned counsel for the petitioner that the trial of a person under the provisions of the Order being in the nature of a criminal proceeding such provision is violative of the norms of criminal jurisprudence. We are unable to accept the above contention. No doubt a person found guilty of misconduct by the Special Court stands disqualified from seeking his election for a period of seven years from the date of the order, to the Parliament or the Provincial Assembly but this does not mean that the proceedings of the reference before the Special Court are criminal proceedings. Firstly, Code of Criminal Procedure which governs and regulates criminal trial is not applicable to proceedings of a reference before the Special Court under the Order. On the contrary Article 6 of the Order makes the procedure of a Civil Court in respect of suit provided in the Code of Civil Procedure, applicable to proceedings of references before the Special Court in so far summoning and enforcement of attendance of any witness, and examining him on oath; discovery and production of documents; receiving evidence on affidavits; issuing commissions for the examination of witnesses or documents and requisitioning any public record or copy thereof from any Court or office, are concerned. The above provisions sufficiently indicate that the legislature intended that the proceedings under P.O. 17 of 1977 will be at par with the proceedings of a Civil Court. It is also significant that except for disqualification of a person found guilty of misconduct under the Order by the Special Court for a specified period to seek election to Parliament or Assembly, no other penal consequences like imprisonment or forfeiture of any property or fine is prescribed under the Order. We are therefore, of the view that the proceedings before a Special Court under the Order cannot be treated as a criminal trial and accordingly hold that Rule 9 did not contravene any principle or y law or the provisions of the Order.
64. Learned counsel lastly contended that in Rule 10 of the Rules, the provision for ex parte proceedings against respondent, in case he failed to appear before the Court after service of notice of reference, is beyond the scope of the Order as under the Order there is no provision for proceeding ex parte against the respondent. Mere fact that the Order made no provision for ex parte proceedings against a person who failed to appear after service of notice could not prohibit the rule-making authority to provide for the consequences of such non-appearance. The rules are framed, as pointed out earlier by us, for carrying out the purposes of legislation and in so far the particular rule is in consonance with that object and does not conflict with any of the express provisions of the legislation it cannot be declared by the Court as invalid. For the above reasons Rule 10 of the Rules is neither in conflict with the provisions of the Order nor it is outside its scope.
65. In conclusion we hold that the P.O. 17 of 1977 is a valid piece of legislation and the references filed against the petitioner by the President before the Special Court under P.O. 17 of 1977 are competent in law and do not suffer from any legal or constitutional infirmity. However, Rule 7 of the Rules is declared invalid to the extent indicated above while rest of rules framed under the Order are held to be intra vires. The petition is disposed of accordingly, with no order as to costs.
66. ' Before parting with the case we may mention here that towards the end of the arguments in the case Mr. Yahya Bakhtiar attempted to argue that the references against the petitioner were invalid as Mr. Ghulam Ishaque Khan ceased to be the President of Pakistan on 23rd of March, 1990 and therefore, he could not file these references in the capacity of the President of Pakistan. We did not entertain the above argument as it amounted to a collateral attack on the validity of the office of President which is not permissible under the law. The President of Pakistan was initially impleaded as a respondent in the case but on 11-10-1990, when the petition came up for hearing before the Court, the President of Pakistan was dropped from the array of respondents at the request of Mr. Yahya Bakhtiar who stated that he is not seeking any relief against the President in the above proceedings and reserves the right to file separate proceedings for that purpose. Therefore, the above contention of the learned counsel, even otherwise could not be entertained in the absence of necessary party.