1. ' WAJIHUDDIN AHMED, J.---This Ehtesab Reference, dated 29-1-1997, under section 14(1) of the Ehtesab Ordinance, 1996, is directed against Syed Abdullah Shah, a former Chief Minister of Sindh and one Akhtar Javed Pirzada. Initially, on 13-2-1997 and 20-2-1997, Syed Abdullah Shah was represented by counsel. Then the two learned counsel, appearing for him, stated that they had lost contact with the accused. At no time, it may be added here, the warrant of arrest issued by the learned Chief Ehtesab Commissioner for such accused had been executed, the learned counsel for him appearing on mere authorisation. In the circumstances, the Anti-Corruption Establishment was required to give effect to the warrant of arrest but that never materialized, with the result that proceedings under section 87, Cr.P.C. Were drawn up, ultimate resort being taken to section 512 of the same Code against Syed Abdullah Shah. Correspondingly, accused Akhtar Javed Pirzada had been produced in custody on 13-2-1997 but his learned counsel maintained that he appeared, in response to a telephonic call, before the Investigating Agency, which arrested him, pursuant to a similar warrant of arrest, issued by the Chief Ehtesab Commissioner, as in relation to the accused No,1, Meanwhile, accused Akhtar Javed Pirzada, who was shown to be used to a higher standard of living, also having practised the profession of law for some time, had been allocated Class-B while being remanded to judicial custody. His bail application was argued, to start with by Mr. Farooq H.
2. Naek and then together with Mr. Aijaz Hussain Batalvi, when the latter also filed his power. Through this, our order on such application, if bail is to be at all granted the factum of such easy abscondence as above and the financial status and stakes involved should have a bearing on the nature and quantum of the bail amount.
3. ' Now the facts, as emerging from the reference and the record, are that accused Akhtar Javed Pirzada, in the final analysis, applied on 24-12-1994 to the Secretary, Ministry of Sports, Cultural and Tourism, Government of Pakistan, for allotment of a specific plot. Such was a request for the purported establishment of "Swiss Hotels and Resorts/Training Institute" and while the broad recitals therein pertained to establishing training facilities for hotels, etc. There was also a hint of providing "Swiss Hotel with 5 Stars facilities". The proposal, ultimately, came to be marked by Syed Abdullah Shah, to the Secretary, Housing and Planning Department, Government of Sindh. The case was, in turn, processed by the Karachi Development Authority (KDA), wherein it was pointed out that the K.D.A. Had earlier planned to construct a commercial complex upon the proposed plot, spending Rs,2. 2 million in such planning. The Secretary, Housing and Town Planning, however, suggested the allotment in relaxation of rules at the market price, which was approved by the then Chief Minister Sindh, and Akhtar Javed Pirzada, aforesaid, was in course of time directed to deposit Rs,124. 785 million towards cost of the plot at Rs,15,000 per sq. Yd. That payment was not made but Akhtar Javed Pirzada moved another application to the then Chief Minister for charging at the rate of Rs,2,500 per sq. Yard. At that time, allegedly, there was a complete ban imposed by the Government on the disposal of State land in the urban and rural areas of Sindh and commercial plots were to be disposed of through open auction alone. Even so, accused No, 1, Syed Abdullah Shah, obligingly approved the allotment at the applicant's self-determined rate of Rs,2,500 per sq.
4. Yard. It is claimed in the reference that due to such alleged act of favouritism the exchequer sustained a loss of Rs,103.968 million in addition to Rs,2.2 million, already spent on planning by the K.D.A. The reference then goes on to mention that accused No,1, Syed Abdullah Shah, was the holder of a public office and the narrated facts of commission and omission constituted the offence of corruption and corrupt practices falling within the terms of section 3 of the Ehtesab Ordinance, 1996.
5. ' In support of the bail application, it has been urged that accused Akhtar Javed Pirzada is neither holder of a public office nor is he an abetter beneficiary of any wrong-doing. It is maintained that the land for the adjoining Awami Markaz had been transferred at Rs,10,000 per sq. Yard, whereas the disputed plot is "crooked" in shape and out of that as well 3,000 sq. Yds from its rear have been given away to such Awami Markaz. As to the applicant's investment on the plot, it is urged that he has already paid Rs,13.2 million to the K.D.A. Besides spending Rs,7,48,800 towards Sub-Division charges. It is added that, meanwhile, in Constitutional Petition No,D-228 of 1997,filed by the applicant accused, questioning the cancellation of such plot in the interregnum, the applicant- accused has already rendered an undertaking not be sell the plot, while the proceedings are pending. As to the price at which the plot was allocated to the accused, reference is made to the Sindh Disposal of Plots Ordinance, section 15 whereof provides for relaxation but in cases of hardship only, in the instant case nothing being shown as to how the element of hardship was involved. There is also on record some material to indicate the rates of commercial plots, chargeable in the area and the rate at which the allocation to the accused was made appears ex facie to have been substantially below par. We, therefore, in consonance with section 3(2) of the Ordinance, as amended, asked the learned counsel for the applicant-accused whether the accused would be prepared to give up his rights in the disputed plot, something for which time was sought from us but, thereafter, we did not hear anything in the context. Such factum, as well, would weigh in determining the conditionalities of this order.
6. ' Reverting, for grant of bail reliance has been placed on Manzoor v. State, PLD 1972 SC 81, inter alia, laying down that while the accused person charged with an offence punishable with death or "transportation of life" is not to be released on bail, if there are reasonable grounds for believing that he has committed such an offence, the onus is on the prosecution to disclose those reasonable grounds and for the Court to determine whether such grounds exist to connect the accused person with the crime alleged; Aijaz Akhtar v. State, 1978 SCM R 64, postulating that mere apprehension that the accused might tamper with the evidence, if enlarged on bail, was no ground for its refusal since the State in that eventuality can prosecute its remedies in the Court of Session; Raz Muhammad Siyal v. State, 1988 SCM R 1223, opining that in matters warranting further inquiry bail may be granted even at the pre-arrest stage: Javed Iqbal Awan v. State, 1990 SCM R 1194, laying down that as against continued detention of the accused for purposes of effecting recoveries, the safer rule was to grant bail to him and to resort to expeditious trial and termination of proceedings accordingly and Tariq Bashir v State, PLD 1995 SC 34, declaring that the grant of bail in an offence punishable with imprisonment for less than 10 years is the rule and refusal an exception. As against this, the learned Special Prosecutor, then Mr. Muhammad Afzal Khan, contended that under section 3(3) of the Ehtesab Ordinance, 1996, all offences under such Ordinance are deemed to be non-bailable and notwithstanding anything contained in sections 497,498 and 561-A or any other provision of the Code or any other law for the time being in force, no Court other than the defined in Clause (d) of section 2 shall have the jurisdiction to grant bail in such matters. This is hardly relevant because the bail application in the instant case been moved only to such Court, as defined. Next, it has been pointed out by Mr. Muhammad Afzal Khan that in terms of section 3(4) a holder of public office, accused of an offence under the Ordinance, shall not be released on bail by the Court, if there appear reasonable grounds for believing that ' he has been guilty of such offence, nor shall an accused person be so released unless the Chief Ehtesab Commissioner has been given notice of the bail application. Subsection (5) of section 3 specifies the amount of bail, which shall be fixed having regard to the gravity of the charge against such person and where the charge specifies any amount in perspect of which the offence is alleged to have been committed such shall not be less then twice the said amount. The learned Special Prosecutor has also added that under section 25 of the Ordinance, the provisions of the Ordinance shall have effect notwithstanding anything contained in any other law for the time being in fora.
7. ' The effect of the aforesaid provisions appears to be two-fold. Firstly, the offences under the Ordinance, notwithstanding anything contained in any other law, are to be deemed as non- bailable. The expression non-bailable, manifestly, has the same connotations as in the Code of Criminal Procedure because section 12 of the Ordinance makes the Code applicable to the proceedings under it, unless an exclusion is spelled out by the Ordinance itself. Secondly, the non obstante clause in section 3(4), postulating restriction, as to grant of bail, appears to be confined to holders of public offices and a person falling in that category cannot be enlarged on bail, if reasonable grounds exist leading to the belief that such person may have been guilty of an offence covered by the Ordinance. The prohibition, however, has its equivalent in the prohibitory clause in section 497(1), Cr. P. C. Similar dispensations as in section 3(4) ibid. In section 5-A(8) of the Suppression of Terrorist Activities (Special Courts) Act, 1975 and in section 5(6) of the Offences In Respect of Banks (Special Courts) Ordinance, 1984, have come up for judicial interpretations and the constructions put there may contextually provide due guidelines for Ehtesab cases. In addition to the main culprit (holder of a public office), and abetter of the offence as will as a beneficiary is equally indictable under the Ordinance and may invite, if the guilt is proved, an identical punishment. Even so, section 3(4) being a provision relatable to penal law, has to be strictly construed. As a consequence, it may be in consonance with the rules of interpretation to deal with the application for bail of an abetter or beneficiary as one involving a non-bailable offence but, at the same time, without the further prohibitory restriction of non-emenability to grant bail if a reasonable ground exists of the applicant having been guilty of the offence of abetment or filling the role of a beneficiary. Still, grant of bail for a non-bailable offence is a matter within the discretion of the Court and the Ehtesab Ordinance, being a law designed to cleanse the society of the all pervading malaise of corruption and corrupt practices granted of bail falling under that statute have to conform to the larger good of the society, which is crying for correction and being put back on the rails of propriety and decency. Having said much it remains somewhat curious as to why abetters and beneficiaries are not subject to equal rigours in the matter of bails, when they stand to face similar penalties and similar punishments for their respective offences. That, however, is a matter falling within the legislative domain and all we can do is to identify an area from the legislative exercise. Plainly, the one under discussion is such an area. Meanwhile, as would be seen below, the Court can only resort to the discretionary aspect, in such matters.
8. ' At this stage, may be taken up another argument of the learned counsel for the applicant namely, that when the Ordinance was first promulgated viz. On 18-11-1996, the offence of which applicant, Akhtar Javed Pirzada. Has been indicted, was either not an offence at all or one which carried a penalty lower than or different from the one now prescribed and, therefore, the Ehtesab Ordinance, 1996, at least, in relation to abetters and beneficiaries would be hit by Article 12 of the Constitution.
9. Reliance has been placed by the learned counsel on Shamsuddin v. State, PLD 1960 Dacca 205, Chaman Ram v. State 1961(2) Cr.LJ 268, Abdur Rehman v. State, 1978 SCM R 292 and Tariq Cotton Mills v. Joint Registrar, 1989 CLC 2103. For invoking such dicta and for ready reference, we would venture to reproduce Article 12 in the Constitution here:- "12. Protection against retrospective punishment.--(1) No law shall authorise the punishment of person-
(a) for an act or omission that was not punishable by law at the 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 of 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."
10. In order to ascertain whether the alleged offence against accused Akhtar Javed Pirzada was or was not such an offence, as aforesaid, at the time the alleged acts of commission or omission took place, it would be necessary to go back to the history of the legislation, something which Mr. Aijaz Hussain Batalvi himself has done. Thus, in the Pakistan Penal Code, inter alia, sections 161 to 171, occurring in Chapter IX, provided for punishment offences by or relating to public servants.
11. Abetments of offences, generally, have been dealt with in an independent chapter viz. Chapter V thereof, which elaborately treats with the subject in sections 107 to 120. The Code , needless to add, was a statute of the year 1860. At the time, the applicable punishments ranged from 2 to 3 years.
12. The next major step in the legislation occurred with the promulgation of the Prevention of Corruption Act, II of 1947, a pre-independence statute, following upon the physical and moral upheavals of World War II and enlarging the scope of offences by or relating to public servants as also punishments to be meted out therefor. The punishment for the newly defined offence of "misconduct" under section 5(2) of the Prevention of Corruption Act came to be in the way of imprisonment for a term which could extend to 7 years or fine or both. There were several subsequent legislative interventions also but, our purposes, suffice it to say that thereunder another class of functionaries was targeted, who have variously been designated as holders of representative offices, holders of public offices etc. In the category had been included a vast class of persons ranging from the Presidents and Prime Ministers downwards. Till the advent of the Ehtesab Ordinance, 1996, the last applicable statutes in the context were the Holders of Representative Offices (Punishment for Misconduct) Order, 1977 and The Parliament and Provincial Assemblies (Disqualification for Membership) Order 1977, President's Orders 16 and 17 respectively, both of 1977 and each having impact since December, 1970. Such statutes successively provided for punishments for a terms which could extend to 7 years or fine or both as also disqualifications for a period of 7 years from being elected or chosen as a Member(s) of Parliament or of a Provincial Assembly. Under the prevailing dispensation, the Ehtesab Ordinance, 1996, repeals President's Orders 16 and 17 1997, as aforementioned. Such Ordinance, by and large, Prescribes similar, if not the same, punishments as under the repealed or co-existing laws. It also modifies the procedure and substitutes the fora.
13. ' On the basis of the foregoing legislative history, it is difficult to say that the offences, which the Ehtesab Ordinance has enacted, pertaining as they do to holders of public offices or to other persons falling in Grades 20 and above or to relevant abetters or beneficiaries are altogether new offences or proceed to provide punishments, which are in excess of or different than those provided for in the earlier legislations on the subject. Nothing, however, can be positively said about an individual beneficiary, if not qualifying as an abetter under the pre-existing laws, and each one of them in the context of Article 12 of the Constitution shall have to be examined in proper perspective as and when a given trial proceeds and a finding comes to be recorded. For the interim purposes of bail, however, it has not been shown to us that the beneficiary in these proceedings does not qualify as an abetter under the applicable law. Let it, also, at the same time, be added that mere change in procedure or even a change of forum or enactment of a lesser punishment than hitherto leviable would not in itself lead to invalidation of the re-enacted legislation.
14. ' A similar situation (under Article 6 of the 1956 Constitution, equivalent to Article 12 now) as to interpretation of purportedly new offences or offences, carrying greater or different punishments, was examined by the Supreme Court of Pakistan in Kalipada Shaha v. State, PLD 1959 SC 322, where it was said that a law could not be struck down upon the mere change of procedure, brought about by Act XL of 1957, whereby something which, till then, was an offence triable by the Court of Session came to be tried by a Tribunal, constituted under the amended version of the Foreign Exchange Regulation Act, 1947. It was also added there that the element of discrimination under Article 5 of the then Constitution of 1956 (Article 25, Constitution, 1973) could be invoked only, if out of two alternative procedures that, which was applied, was the harsher one and against the more lenient alternative there could be no legitimate grievance. For the purpose of comparison, Article 6 in the then Constitution of Pakistan (1956) is reproduced as under:-; "6. Protection against retrospective offences or punishments.--No person shall be punished for an act which was not punishable by law when the act was done, nor shall any person be subjected to a punishment greater than that prescribed by law for an offence when the offence was committed."
15. In the circumstances and subject to what has been stated above, it is difficult to hold, at this stage, that the offence with which accused Akhtar Javed Pirzada has been sent up is, ex facie, hit by Article 12 of our Constitution.
16. ' We would now take up the matter of entitlement or otherwise of the applicant to seek bail in this case.
17. It has already been seen that the applicant accused was able to get a valuable public property from a holder of public office for fraction of its market value (1/6th) and, to crown everything, the price was determined by the accused himself. Huge loss to the exchequer was, thus, caused. The loss claimed is Rs,103.968 million plus the planning expenses already incurred to the tune of Rs,2.2 million. In such a case, if bail was to be granted to accused No,1 the then Chief Minister of Sindh, the bail amount should have been at least twice as much as such a loss. Concerning abetters and beneficiaries while the stringent rule in section 3(4) of the Ordinance may not govern the quantum of the bail amount, that provision may still provide a focal point for such a determination. The Court, therefore, has two alternatives, either to enlarge the applicant-accused on bail fixing the bail amount keeping in view, but not wholly adhering to, the conditionalities in the said subsection of the Ordinance or to refuse bail to him altogether. While it is true that for non-bailable offences, simplicitor, grant of bail is the rule and its refusal an exception yet bails there are not to be granted as a matter of course even upon the terminology used in the first part of section 497(1) of the Criminal Procedure Code. Here, as said, the offences under the Ehtesab Ordinance are no trivial matters. They entail an executing machinery of their own. Trials are to be expeditious and, as far as possible, within a time prescribed. What is more the offences are against the public good of the polity. They need to be perspicuously dealt with. The common man in our society may not be far wrong, when he becomes a state of facts where, according to him, justice is reserved only for criminals and it hardly percolates to the populace at large. For this state of things, if any, responsibility is of the Investigating Agencies, who, designedly or otherwise, mess up matters at their level and the blame is to be shared by the adjudicators, when accused are first bailed out and then, in course of time, acquitted for want of evidence. It is, therefore, high time to take stock of things. Priorities have to be fixed. Each case need not attract the rule of thumb applied to the first part of section 497(1) of the Criminal Procedure Code. A distinction is to be drawn between ordinary day to day offences and offences against society, as under the Ehtesab Ordinance. We are, therefore, of the view that in cases, where reasonable grounds exist for even an abetter or beneficiary leading to the belief that such person may have been guilty of an offence covered by the Ehtesab Ordinance grants of bail should not be made as a matter of course. Besides, where such grants are made at all, the bail amounts may be fixed not in complete oblivion of that quantified in section 3(4) of the Ordinance. In this case, as we have said accused No,1 has already absconded. The possibility of the person accused absconding is not beyond question. Prima facie case exists against him. We are, accordingly, not inclined to exercise our discretion in granting bail to accused Aklitar Javed Pirzada at this stage.