RASHID AZIZ KHAN, C.J.- This judgment shall furnish the detailed reasons for which short order dated 26.3.1998, by which we, have disposed of the following petitions was passed:- 1 W.P.No. 112/97 2.
W.P.No.24182/96 3. Crl.M.No.41/H/97 4. W.P.No. 12908/97
5. W.P.No. 14037/97 6. W.P.No. 14134/97
7. W.P.No. 12910/97 8. W.P.No.4544/98
9. W.P.No.4593/98 - 10. W.P.No.4590/98
11. W.P.No.4594/98. In all these petitions the vires and validity of the Ehtesab Act, 1997, and the earlier Ordinances had been challenged.
2. Before embarking upon the discussion on the subject it is necessary to recapitulate the history of the law on the subject. In the wake of persistent demand for accountability of the public representatives and the holders of public offices the then Care-taker Government decided to promulgate Ehtesab Ordinance, 1996, (CXI of 1996) which provided for ehtesab of various holders of public offices w.e.f. 31.12.1985. This Ordinance was amended by Ehtesab (Amendment) Ordinance, 1997 which inter alia provided for arrest of the accused under the orders passed by the Chief Ehtesab Commissioner. On 1.2.1997 Ehtesab Ordinance, 1997 (Ordinance No.XX of 1997) was promulgated by the President which repealed the Ehtesab Ordinance, 1996 (CXI of 1996). This Ordinance was almost on the same terms as the Ehtesab Ordinance, 1996 as amended. The last in the series is the Ehtesab Act, 1997 (No.IX of 1997). This Act, however, provided for two material changes firstly it confined the process of ehtesab to the holders of public offices since 6.1.1990 and secondly that it provided for setting up of a Ehtesab Cell for investigating into offences alleged to have, been committed under the Act. The Ehtesab Act, 1997, was, however, further amended during the pendency of these proceedings, vide Ordinance No. II of 1998.
3. We have heard various counsel in support of these petitions including Chaudhry Mushtaq Ahmad Khan, Advocate, Raja Muhammad Akram, Advocate, Dr. A. Basit, Advocate, Kh. Haris Ahmad, Advocate and Mr. Moeen Qureshi, Advocate. In reply Chaudhry Muhammad Faruq, the learned Attorney General for Pakistan addressed us.
4. The main trust of their arguments was that the Ehtesab Act, 1997 is discriminatory; that the creation of Ehtesab Cell was un-Constitutional; that the appointment of Mr. Saif-ur-Rehman was illegal and that no guideline has been provided, to the Chief Ehtesab Commissioner for making a reference to the Ehtesab Benches and as such the relevant provisions suffer from excessive delegation of power that in any case after the cut off date had been changed from 31.12.1985 to 26.1-1.1990 there was no justification to keep the pending cases alive.
5. Ch. Muhammad Faruq, the learned Attorney General for Pakistan took great pains to explain the circumstances in which the Ehtesab Act, 1997 was enacted and pointed out that there was a hue and cry for carrying out the ehtesab for those who have plundered the nation who are not entitled to any sympathy. According to the learned Attorney General whatever be the defects in Ehtesab Ordinance, 1996, the same stand cured in Ehtesab Act, 1997.
6. It is a matter of satisfaction that before us none of the learned counsel has. As such, challenged the necessity of carrying out ehtesab though some of them have suggested different methods and measures. We, however, feel that the Ehtesab Act, 1997 as enacted does not suffer from any vice so as to render it unconstitutional or call for our interference to strike it down. On the Other hand- Ehtesab Act ensures fairness in carrying out the process inasmuch as the over all incharge of the ehtesab is the Chief Ehtesab Commissioner who according to Section 13 of the Ehtesab Act, 1997 has to be a person who has been a Judge of the Supreme Court of Pakistan and has to be appointed for a fixed term after consultation with the Leader of Opposition in National Assembly.
7. There is no merit in the contention raised by some of the learned counsel for the petitioners that no guideline has been provided for the Chief Ehtesab Commissioner for referring the matter to the Ehtesab Benches. It is clear from reading of provisions of Ehtesab Act, 1997, that while deciding whether, or no any references has to be made the Chief Ehtesab Commissioner has to keep the whole Act particularly Sections 3 and 4 of the Act in view. No separate guideline was, therefore, necessary.
8. Similarly the contention being raised on behalf of the petitioners that with the creation of the Ehtesab Cell the Chief Ehtesab Commissioner has been registered into a post office is not correct.
Although it is true that under Sections 13 and 15 of the Act the investigation has to be carried out by the Ehtesab Cell but the argument fails to take notice of Section 20 of the Ehtesab Act, 1997, which empowers the Chief Ehtesab Commissioner to seek assistance and call for documents and information relevant to any proceedings from any Department of the Federal Government or the Provincial Government. In these circumstances, it is idle on the part of the petitioners to contend that the jurisdiction of the Chief Ehtesab Commissioner to carry out the investigation is limited to taking proceedings through the Ehtesab Cell. It is well established principle of law that various provisions of the Act have to be read together and not in isolation thereof by reading the Act as a whole it is quite evident that the Chief Ehtesab Commissioner enjoys the pivotal position under the Act and it- is for him to decide whether or not any case deserves to be investigated into and then order investigation. Similarly it is again for the Chief Ehtesab Commissioner to take a decision whether or not to refer the matter for trial.
9. We do not find anything offensive in the date fixed by Legislature for carrying out the ehtesab as 6.11.1990. Learned counsel for the petitioners have vehemently contended that the date has been changed from 20.12.1985 to 6.11.1990 with malafide and ulterior motive. We, however, cannot attribute bad faith to a legislative instrument. Moreover, as it has been explained by the learned Attorney General that the idea in keeping it to 6.11.1990 as the date was to keep one era of both the regimes for ehtesab. We are, however, not in a position to go into his question as we feel that it is not for the Court to challenge the wisdom of legislation.
10. There is, however, merit in the contention raised on behalf of the petitioners that having itself decided that the ehtesab should commence from 6.11.1990 by making a provision in that respect in the Ehtesab Act, 1997, there was no occasion to keep the pending proceedings with respect to the period prior to 6.11.1990 alive for that would clearly amount to discrimination and would be violative of Article 25 of the Constitution. It is true that Section 31(2)(c) of the Ehtesab Act, 1997 provides that any proceedings pending before the Court under the Ehtesab Ordinance shall continue but then the question arises that it is a settled proposition of law that an Ordinance is a temporary statute and its life cannot be extended by making the provision in another Act. Similarly once the parent Act itself declares that the proceedings can only take place in. Respect to a particular date on no rational basis can the proceedings for an earlier period continue merely because those have commenced.
11. Although we are aware that classification is permissible under the law but Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, clearly prohibits discrimination between the persons similarly situated. The classification which the law makes must not only be rational, reasonable but should also be founded upon intelligible differentia relatable to the purpose of enactment. Here in the present case the purpose of the Act clearly is to carry out ehtesab with effect from period after 6.11.1990 and not before that. The principle of law on the, question of classification is by now well-settled and we can do no better than to make reference to the decided cases from the Supreme Court of Pakistani. In I.A. Sharwani and others v. Government of Pakistan (1991 SCMR A041) Amal Mian, J. (as he then was) speaking for the Court laid down the following principles "(i) That equal protection of law does not envisage that every', citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;
(ii) That reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; (iii)That different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes; (iv)That no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances may be unreasonable in the other set of circumstances; (v)That a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25; (vi)That equal protection of Law means that all persons equally placed be treated alike both in privileges' conferred and liabilities imposed; (vii)That in order to make classifications reasonable, it should be based:
(a) On an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out; (b) That the differentia must have rational nexus to the object sought to be achieved by such classification.
Principles as to classification are as under:-
(a) A law may be Constitutional even though it relates to a single individual if, on account of some special circumstances, or reasons applicable to him and not applicable to others that single individual may be treated as a class by himself.
(b) There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the Constitutional principles. The person therefore who pleads that Article 25, has been violated must make out that not only has he been treated differently from others but he has been so treated from persons similarly circumstanced without any reasonable basis and such differential treatment has been unjustifiably made. However, it is extremely hazardous to decide the quest ion of the Constitutional validity of a provision on the basis of the supposed existence of facts by raising a presumption. Presumptions are resorted to when the matter does not admit-of direct proof or when there is some practical difficulty to produce evidence to prove a particular fact;
(c) It must be presumed that the Legislature understands and correctly appreciates the needs of its on people, that its laws are directed to problems made manifest by experience, and that it discriminations are based on adequate grounds;
(d) The Legislature is free to recognise the degrees of harm and may confine its restriction to those cases where the need is deemed to be the clearest;
(e) In order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be convicted at the time of legislation;
(f) While good faith and knowledge of the existing conditions on the part of -the Legislature are to be presumed if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, the presumption of constitutionality-cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation;
(g) A classification need not be scientifically perfect or logically complete;
(h) The validity of a rule has to be judged by assessing its overall effect and not by picking up exceptional cases. What the Court has to see is whether the classification made is a just one taking all aspects into consideration.
The above enunciation was arrived at by the learned Judge after considering the law declared in the earlier cases of Brig. (Retd.) F.B. Ali and another v. The State (PLD, 1975 SC 506), Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57), Aziz Begum and another v. Government of Punjab (PLD 1990 SC 899) and Shrin Munir and others v. Government of Punjab (PLD 1990 S.C. 295). While commenting upon the religious aspect of the matter the Supreme Court of Pakistan in Mushtaq Ahmad Mohal v. Honourable Lahore High Court, Lahore (1997 SCM R 1043) was pleased to observe as under: " There is no difference between the individuals of mankind on the basis of race, colour and territory. All human beings are equal in eyes of Allah as He created man from a quintessence of clay.
It is manifest that the Holy Qur'an inter alia enjoins that there is no difference between the individuals of mankind on the basis of race, colour and territory and that all human beings are equal in the eyes of Allah. The fittest person who is strong and trustworthy is to be employed. It is evident that the concept of one or quota system runs counter not only to the above clause (1) of Article 27 read with Article 2A and Article 25 of the Constitution, but also to the Commandment of Allah as ordained in the Holy Qur'an. The quota system has not served Pakistan interest but on the contrary, it has general parochial and class feelings resulting into disunity.
The religion of Islam is founded on the principle that there is no difference between the individuals of mankind on basis of race, colour and territory. From its advent, it abolished all class and caste system which was obtaining at that time in the world." The case of Inam-ur-Rehman v. Federation of Pakistan (1992 SCM R 563) may also be referred where the provisions of Foreign Exchange (Prevention of Payments) Act, 1972 were struck down as being discriminatory.
12. For the aforesaid reasons we are of the view that Section 31(2)(c) of the Ehtesab Act, 4997 is discriminatory and violative of the equal protection clause contained in Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 and cannot be sustained. Consequently, the proceedings pending at the time of Enforcement of Ehtesab Act, 1997, relating to period prior to 6.11.1990 cannot continue under the Act.
13. In the end we may take notice of the objection raised by the learned counsel for the petitioners especially Dr. A. Basit about the creation of Ehtesab Cell and appointment of Mr. Saif-ur-Rehman.
Nothing much need be said on the subject inasmuch as the law allows creation of such an agency and leaves it to the discretion of the Executive/Government to make any appointment which has not been shown to us to be either illegal on mala fide or suffering from any error.
The writ petitions are disposed of in the above terms with no order as to costs.