IHSAN-UL-HAQ CHAUDHARY, J. This is the application under Section 265-K Cr.P.C, moved by Syed Riffat Askari-accused in E.R. No. 1/96. The relevant facts are that the accused-Riffat Askari was posted as Chairman, OGDC in the year 1994 when the quotations were invited for purchasing 8 sets Tubing Head of X-Mass Trees for Ouch Oil Field. The tenders were opened on 23.1.1995. The firms of the other accused (Zia Akbar Ansari) and 2 others were cleared in the pre-qualification. Thereafter their tenders were opened. It was pointed out that the tender of M/s. ABB Vecto Grey (Pvt.) Limited Singapore Was the lowest, however, Mr. Ainuddin Siddiqui, the co-accused of Riffat Askari suggested that the tender should be divided equally between the firms of Zia Akbar Ansari- accused and that of M/s. ABB Vecto Grey Singapore. Accordingly, the petitioner granted the tender to the said firms. Subsequently, on 18.11.1996 case FIR No. 23/96 was registered against the accused under Sections 409/420/468/471/109 PPC read with Section 5(2) of the Prevention of Corruption Act, 1947. The investigation was conducted by Crime Circle FIA, Rawalpindi. The Investigating Agency reported that the accused/public servants are guilty of corruption and corrupt practices with the connivance of M/s. ADOS Pakistan (Pvt.) Limited and they have caused substantial financial loss to the exchequer. According to one of the witnesses the OGDC had to pay $ 1,93,000/- more than the amount payable had the bid of M/s. ABB Vecto Grey been accepted as a whole and the order was not divided equally. The Investigating Agency submitted the report under section 173 Cr.P.C, under the afore-mentioned provisions of law. In the meanwhile, Ehtesab Ordinance, 1996 (hereinafter to be referred as Ehtesab Ordinance) came into force on 18.11.1996 and the matter was referred to the learned Chief Ehtesab Commissioner, who sent the reference to the High Court, as a result whereof this case is under-trial before this Bench.
2. The charge against the accused was framed on 21.1.1997 thereafter he moved this application.
The notice of which was issued to the learned Attorney General as the constitutionality of the Ehtesab Ordinance, 1996 was also brought under challenge.
3. The learned counsel for the petitioner argued that the Ordinance CXI of 1996 is ultra vires of Article l2 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as Constitution of 1973). It was argued that the Ehtesab Ordinance cannot be applied to acts of commission or omission in respect of criminal offences retrospectively. It was added that the case has been registered under a subsisting law and there was no choice but to try the accused in the forum provided under the law under which the case was registered. It was added that although the Ehtesab Ordinance was made applicable w.e.f. 31.12.1985 as per section 1(2) yet the whole text is in the present tense. In this behalf, the learned counsel has referred to definition of word 'offence' as given in section 2(g), thereafter, he referred to Sections 3,4,5,6,9 and 10 of the Ehtesab Ordinance. It was argued with reference to section 13 of the Ehtesab Ordinance that the function of learned Chief Ehtesab Commissioner was to inquire, investigate and prosecute the accused guilty of corruption and corrupt practices. It was added that in the present case the learned Chief Ehtesab Commissioner has simply forwarded the report under section 173 Cr.P.C, submitted by the FIA. He has neither inquired into the matter himself nor carried investigation, therefore, this Court cannot proceed with such a reference, which is not in accordance with the provisions of Ehtesab Ordinance. The learned counsel thereafter referred to section 14 to support the above argument and sections 16,17,18 and lastly to section 20 of the Ehtesab Ordinance.
4. It was argued that it was clear from the above resume of the different provisions of Ehtesab Ordinance that it is not applicable to the petitioner. The learned counsel in support of the contention referred to Nabi Ahmed and another Vs. Home Secretary, Government of West Pakistan, Lahore and 4 others (PLD 1969 SC 5991. The learned counsel thereafter referred to Amending Ordinance II of 1997 to show that accused under the Ehtesab Ordinance have been given a different treatment in respect of bails as was available to other accused under Act 1947, therefore, it is ultra vires of Article 25 of the Constitution of 1973; similarly the powers of the Court have been curtailed while fixing the amount of the bail bond. The learned counsel then referred to section 1(2) of the Cr.P.C, as to the extent of application and section 5(2) of the same Code. It was argued that through this Ordinance the departure has been made from the normal law and it is to be seen whether this is ultra vires or not? It was next, argued that the arrest of the accused is with the permission of the Chief Ehtesab Commissioner, therefore, office would be treated as non- cognizable. The learned Ehtesab Commissioner neither inquired into the matter nor held any investigation, therefore, the reference is without legal authority. It was argued that reference in Article 12 of 1973 Constitution was to a law actually in force and not one deemed to be J in force through which a new offence had been created. The learned counsel e thereafter has referred to Article 20 of the Indian Constitution and Article 6 of Constitution of Pakistan, 1956 and Fundamental Right 4 of Constitution of 1962. He again referred to the case of Nabi Ahmad (Supra) to conclude on this point that innocent acts of commission and omission cannot be made offences retrospectively.
5. The learned counsel thereafter referred to section 26 of the General Clauses Act dealing with the double punishment and argued that in case of two laws covering the same offence the trial is to be under either of the two and not both. The learned counsel in this behalf has referred to Niaz Ali Vs. The State (PLD 1961 (W.P) Lahore.269). It was added that the kind of punishment could also not be enhanced or changed in view of provisions of Article l2 of the Constitution 1973 and the punishment made with retrospective effect. The learned counsel in this behalf referred to Abdul , Rehman's Vs. The State (1978 SCMR 292), Bhai Khan and others Vs. The \ State (PLD 1992 SC 14), Umar Hayat Vs. The State (1995 P. Cr.L.J 1060), Smt. Shanta Devi Vs. Custodian, Evacuee Property, M.B. Government and another (AIR 1952 Madhya Bharat 181). As to the meaning of 'law in force the learned counsel referred to Rao Shiv Bahadur Singh and another Vs. The State of Vindhya Pradesh (AIR 1953 SC 394), Kanaiyalal Chandulal Monim Vs. Indurnati T. Potdar and another (AIR 1958 SC 444), M/s. West Ranmad Electric Distribution Co. Ltd. Vs. The State of Madras and another (AIR 1962 SC 1753) and Shanti Prasad Jain Vs. The Director of Enforcement (AIR 1962 SC 1764). It was argued that no conviction could be ordered under the Ehtesab Ordinance. In this behalf reliance was placed on G.P. Nayyar Vs. State (AIR 1979 SC 602).
6. It was argued by Sh. Zia Ullah, Advocate that the Caretaker Prime Minister could not advise the President for promulgation of the Ehtesab Ordinance, 1996. It was argued that the purpose of the Caretaker Government was limited and it could not undertake the policy decisions. The next argument was that Ordinance could only be promulgated when the National Assembly was in existence but not in session. In this behalf, reference was made to Article 89 and argued that the President is part of the Parliament as per its definition in the Constitution of 1973 and when National Assembly stood dissolved he could not have invoked the powers of promulgation of Ordinance. It was argued that there was no vacuum and no emergency, therefore, the Ordinance was ultra vires of the powers of the President.
7. The next argument was that all the civil servants from Grade-1 to 22 were to be treated alike. It is added that the cases against civil servants in Grade-20 and onward are now covered by Ehtesab Ordinance while the others are triable under the Prevention of Corruption Act, 1947 and PPC. It was added that the classification was not reasonable and even the rule of evidence has been changed.
The learned counsel in this behalf has referred to section 8 of the Ehtesab Ordinance and submitted that while against the senior officers .Now there is a presumption under the Ordinance but, no such presumption is available against the accused/civil servants tried by the Special Judge under the Prevention of Corruption Act, 1947.
8. It was argued that the purpose of the Chief Ehtesab Commissioner was to inquire, investigate and prosecute but nothing was done in the present case and simply the report submitted by FIA under Section 173 Cr.P.C, has been forwarded as reference to the High Court. It was added that the offence has been made non-cognizable by altering the provisions as to the grant of bail, therefore, the reference is nullity. In this behalf, the learned counsel referred to Mst. Mumtaz Begum and 4 others Vs. The State (1968 P.Cr.LJ. 97). The last argument on the legal side was that when there were two laws already in existence then the accused can be tried under either but when at the time of the commission of an offence only one law was in force while the other came into existence subsequently then the accused could only be tried under the law in force and not the law enacted subsequent to the offence. In this behalf, again reference is made to section 26 of the General Clauses Act.
9. On the factual side it was argued that merely a wrong order by a civil servant could not make him criminally liable. It was added that the 'mens rea' is' necessary ingredient of an offence. The act or omission complained of must be dishonest and mala fide. In this behalf, reference was made to Malik Ghulam Jilani, M.N.A Vs. The State (PLD 1966 Lahore 910). It was added that the civil servants have been treated differently in the Criminal Procedure Code in view of position occupied by them in the administration. The learned counsel in this behalf referred to Section 197 of the Pakistan Criminal Procedure Code. It was added that when the charge is groundless or there is no probability of conviction then the provision of Section 265-K Cr.P.C, would be attracted. It was argued that under clause 25(3) of the Tender Documents the final approval was to he given by the Ministry, therefore, with the approval granted by the accused-Riffat Askari, a concluded contract did not came into existence and it was merely a contingent agreement. The learned counsel in this behalf has referred to section 31 of the Contract Act and relied on Dalsukh M. Pancholi Vs. The Guarantee Life and Employment Insurance Co. Ltd. And others (PLD 1947 Privy Council 185) and Messrs Ashrafi (Pvt.). Ltd. And another Vs. Messrs Karachi Transport Syndicate Ltd., Karachi and another (PLD 1973 Note 119). It was argued that only Inam-ur-Rahim PW in his statement under Section 161 Cr.P.C, has alleged that this was done for ulterior motive hut the words used by him are 'reportedly' and 'allegedly' and there was no evidence whatsoever of dishonesty or connivance, therefore, it was a fit case for exercising powers of section 265-K. The learned counsel in this behalf has referred to State through Secretary, Ministry of Interior Vs. Ashiq Ali Bhutto (1993 SCMR 523), Badaruddin Vs. Mehr Ahmad Raza, Additional Sessions Judge, Jhang and 6 others (PLD 1993 SC 399), Ali Gohar Khan Vs. The State (1989 P.Cr.LJ 1963), Ch. Muhammad Ashraf Vs. The State (1990 P.Cr.LJ 347), Shaikh Muhammad Taqi Vs. The State (1991 P.Cr.LJ 963) and Mst. Hamida Vs. The State and another (PLD 1973 Karachi 478).
10. On the other hand, the learned Attorney General argued that whether an offence is to be referred for trial to the High Court under the Ehtesab Ordinance or not is matter of forming opinion.
In this behalf, reference was made to section 14(6) of the Ehtesab Ordinance. It was added that the learned Chief Ehtesab Commissioner was only to form opinion as to sending of the case for trial and was not supposed to try the accused himself. The learned Attorney General referred to Khuwaja Muhammad Sharif Vs. Federation of Pakistan through Secretary Cabinet Division (PLD 1988 Lahore 725). The next argument was that the points urged in support of the application were misconceived. Neither there was any new offence created nor the same have been given retrospective effect nor the kind of punishment has been changed in the Ehtesab Ordinance. The learned Attorney General in support of this argument referred to the provision of P.O. I6 and P.O. 17 and Prevention of Corruption Act, 1947 to maintain that no new offence was created. It was argued that the Ehtesab Ordinance has only changed forum or venue of trial, therefore, it is a matter of procedure which can be given retrospective effect. In this behalf, reliance was placed on Adnan Afzal Vs. Capt. Sher Afzal (PLD 1969 SC 187) and Mst. Yasmeen Nighat and others Vs. National Bank of Pakistan and others (PLD 1988 SC 391).
11. The learned Attorney General then argued that there is no fundamental right, which guaranteed trial of an accused of an offence in specific forum and they can be convicted and sentenced under the new law. In this behalf, reliance was placed also on the judgment in the case of Rao Shiv Bahadur Singh and another (Supra) and particularly para No. 9. It was argued that there was no discrimination of any sort and such legislation was possible and in this behalf he referred to Brig.
(Retd.) F.B. AH and another Vs. The State (PLD 1975 SC 506), Zia Ullah Khan and others Vs. Government of Punjab and others (PLD 1989 Lahore 554), Pakistan Petroleum Workers Union through its General Secretary Vs. Ministry of Interior (1991 CLC 13) and Jibendra Kishore Achharyya Chowdhury and,58 others Vs. The Province of East Pakistan and Secretary Finance and Revenue (Revenue) Department (PLD 1957 SC (Pak.) 9). The learned Attorney General argued that the reference to section 26 of the General Clauses Act is not relevant because the accused were only being tried under one law out of the two laws applicable. There is no double jeopardy. Thereafter, he relied on Mian Iftikhar-ud-Din and another Vs. Muhammad Sarfraz and another (PLD 1961 SC 585).
12. The learned Special Prosecutor argued that the key words in Article l2 are punishment, which the Court can refuse while awarding sentence. It was argued that neither the punishment, is different nor greater. The learned Special Prosecutor compared section 4 of the Ehtesab Ordinance with provision of Presidential Orders No. I6 and 17 and Act of 1947 and argued that the punishment and kind remained same, therefore, there was no violation of Article l2 of the Constitution of 1973. In this behalf, reliance was placed on the judgment in the case of Bhai Khan and others (Supra). It was added that the provision of forfeiture of property is not relevant in the present case. It was argued that the punishment is also in the discretion of the Court and it can refuse to inflict a particular punishment and word shall' does not make it mandatory. In this behalf, reliance was placed on the judgment of the Hon'ble Supreme Court reported as Shamroz Khan and another Vs. Muhammad Amin and others (PLD 1978 SC 89). It was argued that the procedure is not anybody's vested right.
The learned Special Prosecutor in this behalf also relied on the judgments in the cases of Nabi Ahmad and another and Adnan Afzal (Supra). It was argued that the Ordinance can be issued by the President even when the National Assembly stood dissolved and there was no restriction placed on the President in the Constitution. It was argued that he was appointed the Special Prosecutor for particular cases under Section 14(6) of the Ehtesab Ordinance. There is nothing wrong with this appointment. It was argued that it is a basic principle of interpretation of statutes that law to be saved and interpretation which advances the remedy to be adopted. In this behalf, reliance was placed on the judgments reported as Sindh Employees' Social Security Institution and another Vs. Adamjee Cotton Mills Ltd. (PLD 1975 SC 32). Mehreen Zaibun Nisa Vs. Land Commissioner, Multan and others (PLD 1975 SC 397) and Province of East Pakistan Vs. Sharafatullah and 87 others (PLD 1970 SC 514). It was added that Ehtesab Ordinance consolidated previous laws on the point as is clear from Section 27 of the Ehtesab Ordinance whereby the Presidential Orders No. I6 and 17 were repealed, therefore, there is nothing wrong with the same legally.^In this behalf, reliance was placed on the cases reported as Muhammad Akhtar Hussain and 4 others Vs. Government of West Pakistan (PLD 1970 SC 146) and Sardar Muhammad and 4 others Vs. Municipal Committee, Jhelum City (PLD 1970 SC 497). It was argued that all possible explanations to be considered before declaring a law invalid. In this behalf, reliance is placed on the judgment in the case of Lahore Improvement Trust, Lahore Vs. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others (PLD 1971 SC 811). It was argued that the provisions as to investigation and inquiry are not mandatory, therefore, may not be followed. In this behalf, reliance was placed on Atta Muhammad Qureshi Vs. The Settlement Commissioner, Lahore Division, Lahore and 2 others ( PLD 1971 SC 61) and Mansab Ali Vs. Amir and 3 others (PLD 1971 SC 124).
13. Mr. Ijaz Hussain Batalvi, learned counsel for the accused while summing up the arguments submitted that there is no possible reason to make the Ordinance applicable from 31st December, 1985. It was argued with reference to preamble of Ehtesab Ordinance that the field was not vacant, therefore, there was no justification to promulgate an Ordinance. In this behalf, it was pointed that the Pakistan Penal Code, which was enacted in 1860 covers in detail all the offences as is clear from the Sections 161 to 167. It was thereafter that Act 1947 was promulgated. The learned counsel referred to be objects and reasons for enacting this Act and argued that it created new offences and did not only deal with the offences as covered by sections 161 to 167 P.P.C. It was argued that the legislature in his own wisdom has defined 'Servant of the State' and 'Public Servant' differently, In this behalf, reference was made' to Sections 14 and 21 of the P.P.C, respectively. It was argued that the accused could not be. Charged for offences allegedly committed before this Act came into force. In this behalf, reliance was placed on the judgments reported as 1961 (2) Cr.L.J. 266 and Shamsuddin Ahmed Vs. The State (PLD 1960 Dacca 205). It was argued that the FIR was registered, investigation made and the report under Section 173 Cr.P.C, submitted under the old Act, therefore, the charge under the present Ordinance is not sustainable in law. It was added that the charge is different from the FIR and the report under section 173 Cr.P.C. It was argued that the petitioner could not be tried and convicted under the Ehtesab Ordinance. In this behalf, reliance was placed on the judgment reported as Ali Abbas Vs. The State (PLD 1959 (W.P.) Karachi 56). In the end it was argued with the reference to sections 1,3,5,6 and 9 of the Ehtesab Ordinance that it was a new idea or concept and new offences were created under the Ehtesab Ordinance, therefore, the same is violative of the Article l2 of Constitution of 1973.
14. We have given our anxious consideration to the arguments advanced on behalf of the parties as well as learned Attorney General for Pakistan. The main argument in support of the application under section 265-K of Cr.P.C, is that Ehtesab Ordinance is ultra vires of Article l2 of the Constitution of 1973. The attack is two-fold:- Firstly, that the alleged offences committed in 1985 could not be tried under Ehtesab Ordinance, 1996 promulgated on 18.11.1996: and Secondly, that there could be no greater or different punishment for the offences already committed.
Therefore, before proceeding any further we would like to refer to Article l2 of the Constitution of 1973. The same reads as under:- "12. (1) No law shall authorize the punishment of a person:-
(a) for an act or omission that was not punishable by law at t he time of the act or omission; or
(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.
(2) ,Nothing in clause (1) or in Article 270 shall apply to any law making acts or abrogation or subversion of a Constitution in force in Pakistan at any time since the twenty-third day of March, one thousand nine hundred and fifty-six, an offence."
It is clear from the above that clause furnished a guarantee that an act or omission, which was not punishable by law at the relevant time could not be made punishable subsequently. It means that no offence can be created retrospectively. The learned counsel for the accused as well as learned Attorney General have placed reliance on the judgment in the case of Nabi Ahmad (Supra) wherein precise rule was laid down that innocent act could not be made punishable by subsequent legislation. The Hon'ble Supreme Court held as under:- "21.... The leading authority in America is Colder v. Bull (1 798) 2 Dail 386) in which the meaning of ex post facto legislation has been explained as follows:- "(1) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action.
(2) Every law that aggravates a crime, or makes it greater than it was when committed.
(3) Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime when committed.
(4) Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offence, in order to convict the offender."
And after examining it also referred to British Law and held as under:- "28. The time at which a presumption arises against retrospectivity is thus to be determined by the circumstances which call for protection against injustice. The differences in the manifestations of this need are mere matters of detail. The need may arise before the commencement of proceedings with reference to the time at which a cause of action arose, or an innocent deed was done. This happens if, for instance, a law is made to eliminate that cause of action or to make that innocent act punishable. It may also arise with reference to the time at which a new law was enforced during the pendency of a proceeding. Such an occasion can arise if, for instance, the right of appeal is abolished after the institution of a proceeding. So also it may arise with reference to the time at which a proceeding, whether civil or criminal, was concluded by a decree, conviction or acquittal, and then a law was passed taking away the right of appeal against the decree, conviction or acquittal, when no proceeding was pending. When we think of such an injustice, we are really thinking of the adverse effect of the new law on vested rights."
15. Now coming to the case in hand. The admitted position is that the facts as incorporated in the FIR constituted offences punishable under P.P.C, read with section 5(2) of Act of 1947. The allegations remained same. The learned Attorney General argued that Ehtesab Ordinance is procedural in nature and changed the forum of trial. The Hon'ble Supreme Court has held in the case of Nabi Ahmad (Supra) while dealing with the nature of law whether it is procedural or substantial as under:- "25. I venture to repeat, that the full significance of the objection to retrospective and ex post facto legislation cannot be grasped unless the basic reasons are kept in view'. The Courts attempt to capture the essence of that thought and to apply it to given facts; therefore, it is not a correct approach to this subject to involve ourselves in the comparison of an expression used in one judgment with one employed in another judgment, and from that restricted point try to work our way back to the general principle. For instance, it is easy to see the point of view? Of Justice Chase if we read the opinion expressed in the above-mentioned case, Calder v. Bull, with the help of the underlying principles, rather than the connotations of each word employed by him earlier to express the idea. He said:- "But I do not consider any law ex post facto, within the prohibition, that mollifies the rigor of the criminal law; but only those that create, or aggravate, the crime; or increase the punishment, or change the rules of evidence, for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time; or to save time from the statute, of limitations or to excuse acts which were unlawful, when committed, and the like; is retrospective. But such laws may he proper or necessary, as the case may be."
This is what precisely has been guaranteed in Article l2. The acts or omissions forming part of the charge were not innocent even in 1986 when the same had occured. The facts constituting offence remained same. This way no new offence has been created, therefore, Clause (a) of Article 12(1) is not attracted.
16. Now coming to the Clause (l)(b) of the Article l2. The learned Special Prosecutor argued that neither any greater penalty nor of different kind has been provided in the Ehtesab Ordinance as far case in hand is concerned. This remained uncontroverted and is factually correct. Therefore, whole edifice of argument built on this part of the Article by the defence crumbles down. The argument has been advanced on this point without reference to the factual position. It is made clear that the Court can safeguard against any punishment in violation of Article l2 even while passing the final judgment.
17. The other argument was that-the reference to the law in clause (a) is to the law in force and in this behalf reliance was placed on para 10 of the judgment of Indian Supreme Court in the case of Rao Shiv Bahadur Singh and another (Supra). The reference is entirely irrelevant because in clause
(a) of Article l2 (l)(a) the word used is 'law'. The argument is liable to be brushed aside for the reason also because the same was contradictory as on the one hand, it was maintained that the case was registered against the petitioner and his co-accused under the provisions of PPC and Act 1947 and report under section 173 Cr.P.C, was also submitted under the same provisions, therefore trial should be held by the Special Judge. On the other hand, it was argued that there was no offence under valid law. This argument in fact runs counter to attack on the Ehtesab Ordinance, 1996 on both counts.
18. The other legal argument was that the care-taker Prime Minister could not advise the President for promulgation of Ehtesab Ordinance. 1996. It was argued that the field was not vacant and there was no emergency. The argument is utterly misconceived. Public was demanding for removal of the corruption which was spreading amongst the people's representatives and the bureaucracy like cancer and for this reason two different, bills in this behalf were moved in the two houses of the Parliament before the dissolution of the National Assembly and one of the reasons advanced by the President for dissolving the National Assembly was the failure of the Government to curb corruption among the public representatives and the civil servants. This is not all. Even one section of public, whatever its size, is preferred Ehtesab over the elections in accordance with the provisions of a Constitution, therefore, the argument is factually also not correct.
19. Now coming to the other legal aspect. The powers of the caretaker Prime Minister are not restricted or curbed in any manner, therefore, if he advised the President as per demand of the nation then there was legally nothing wrong with the same. The learned counsel referred to the judgment of this Court passed in Writ Petition No. 677 of 1997 that it does not advance rather if closely studied goes against the petitioner's contention.
20. The learned Attorney General argued that no accused has vested right to claim particular procedure or forum for his trial and change of procedure or forum for trial does not offend any fundamental right. He referred to the case of Adnan Afzal (Supra) where the Hon'ble Supreme Court has determined the scope of procedural law. The relevant portion of the judgment reads as under:- "The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively....... "
Thereafter it was held as under:- "Looking at the provisions as a whole we are of the view that all that the Family Courts Act has done is that is has changed the forum, altered the method of the trial and empowered the Court to grant better remedies. It has, thus, in every sense of the term, brought about only procedural changes and not affected any substantive right. According to the general rule of interpretation, therefore, a procedural statute is to be given retroactive effect unless the law contains a contrary indication "
The same view was confirmed by the Hon'ble Supreme Court in the case of Mst. Yasmeen Nighat and others (Supra). The learned Attorney General rightly referred to the judgment of Rao Shiv Bahadur Singh and another (Supra).
21. The learned counsel for the petitioner vehemently argued that even rule of evidence has been changed. In this behalf, he referred to section 8 of the Ehtesab Ordinance, 1996 to argue that now there is a presumption for the first time. On the other hand, perusal of section 4 of Act II of 1947 shows that same provision is available there, therefore, this argument is without any merit.
Thereafter it was argued that the law as tc grant of bail and amount of bail bond has also been changed and novel provisions have been added. On the other hand, learned Special Prosecutor correctly pointed out that at least similar provisions are in existence in three laws namely:-
(i) Special Courts for Speedy Trials Act, 1987:
(ii) Suppression of Terrorist Activities (Special Courts) Act, 1975; and
(iii) Offences in Respect of Banks (Special Courts) Ordinance, 1984.
These are all matters of procedure. These matters are not covered by Article l2 of the Constitution of 1973.
Be that as it may, a law cannot be struck down on the touch-stone of Article l2 of the Constitution merely on the ground that the bailable offence under the new law has been made non-bailable or the existing offences have been brought within the' prohibitory clause for the purposes of bail. In these eventualities the proper course is not to challenge the law but to seek bail, inter alia, on the ground that grant of bail was permissible as a matter of course at the time when the offence was committed. It is now well-settled that bail is not be withheld by way of punishment. Prayer for bail may be considered in the totality of the circumstances including that grant of bail was not subject to the rigours of the prohibitory clause when the offence was committed before the promulgation of the new law. However, it may be observed that in appropriate cases, depending on the facts of each individual case, bail can be refused in non-bailable offences even though the alleged offences do not fall within the prohibitory clause. Similarly, attachment of property is also not as a punishment, therefore, does not offend Article l2. The next argument was that if two forums were already in existence then criminal case can be entrusted for trial to anyone of those. But if at the time of omission or commission of act there was only one forum and the other one came into existence after the alleged omission or commission then case could only be tried in the forum already in existence. The argument is misconceived because accused has no vested right of trial in a specific forum.
21. It was argued that now the senior civil servants are being treated differently than their junior colleagues and this offends Article 2b. The learned Attorney General referred to the case of Brig.
(Retd.) F.B. Ali and another (Supra) to contend that equal protection of law does not mean that every citizen must be treated in the same manner. The relevant portion of the judgment reads as under:- "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 01; 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 i '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 on 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- occupation's 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.
Thereafter it was held as under:- "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. l2, 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."
There are reasonable basis for this classification because the senior civil servants are more responsible than their subordinates. This was also essential because in 1992 when new Anti- Corruption Law was being drafted it transpired that no case whatever was pending against any senior officer before any of the Special Judges (Central) throughout the country. It was not for the reason that they were all angels but mainly because corrupt one's were protected by their colleagues similarly placed. If the Senators as well as Members of Assemblies and Civil Servants are honest and work with dedication then corruption and corrupt practice would automatically disappear from the Society.
22. The argument with reference to Sections 13 and 14 of Ehtesab Ordinance was that the learned Ehtesab Commissioner was to make inquiry and investigation into the allegations of corruption and corrupt practices. On the other hand, the learned Attorney General rightly argued that the learned Chief Ehtesab Commissioner was to form an opinion that prima facie case is made out against accused as per the material available and not to hold trial. -He in this behalf rightly relied on sub-section (6) of Section 14, which reads as under:- "(6) Where the Chief Ehtesab Commissioner is of the opinion that a prima facie case is made out against holder of public office, he shall refer such case to the Court for trial and for that purpose appoint a Special Prosecutor for conducting the trial."
Even otherwise sub-section (1) of Section 13 and sub-sections (4) and (5) of section 14 of Ehtesab Ordinance are directory in nature and not mandatory. In the present case the FIA registered a case, completed investigation and submitted report under section 173 Cr.P.C. The learned Chief Ehtesab Commissioner after going through the above material formed the opinion that prima facie case is made out against the accused, therefore, referred the matter for trial under Ehtesab Ordinance.
There is nothing wrong with this procedure.
23. The arguments addressed on the factual side cannot be considered till the facts relied in support of the contentions are part of the record, therefore, to that extent the petition is pre- mature. The petitioner may move a petition after the facts relied by him come on record in the statements of PWs.
24. The upshot of the above discussion is that there is no merit in this application. The same is dismissed.