SAIDUZZAMAN SIDDIQUI, C.J.--This judgment will govern the disposal of Civil Appeals Nos,200 to 210 of 1999 and 781 to 788 of 1999, besides deciding the legal questions arising in Criminal Appeals Nos.109, 111, 194, 203, 205, 217, 218, 247 and 260 of 1997; 255, 276, 279, 280, 282, 299 and 306 of 1998 and 79 of 1999. Civil Appeals Nos. 22 to 210 and 782 to 784 of 1999 arise from the judgment of a Full Bench of Lahore High Court consisting of five learned Judges of that Court, dated 26-3-1998, disposing of number of writ petitions filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as 'the Constitution') to challenge the constitutionality and vires of Ehtesab Act (IX of 1997) (hereinafter to be referred as 'the Ace), and the preceding Ehtesab Ordinances promulgated during the years 1996 and 1997. Civil Appeals Nos. 781 and 785 to 788 of 1999 arise from judgments delivered by different Benches of Lahore High Court on different dates disposing of several writ petitions, filed under Article 199 of the Constitution to question the validity of the Act and the preceding Ehtesab Ordinances, in terms of the judgment of Full Bench of the Lahore High Court, dated 26-3-1998. We have heard Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for appellants in Civil Appeals Nos.781 to 788 of 1999 and for respondents in Civil Appeals Nos. 208 and 210 of 1999; Ch. Aitizaz Ahsan, Advocate Supreme Court, for appellants in. Criminal Appeals Nos. 109, 203, 247 of 1997 and 255 of 1998; Mr. Fakharuddin G. Ebrahim, Senior Advocate Supreme Court for appellants in Criminal Appeals Nos. 194, 217 of 1997 and 276 of 1998; Mr. Abdur. Rahim Kazi, Advocate Supreme Court for appellants in Criminal Appeals Nos. 218 of 1997, 205 of 1997, 260 of 1997, 306 of 1998 and 79 of 1999; Mr. Azizullah K. Shaikh, Advocate Supreme Court for appellants in Criminal Appeals Nos. 279 and 280 of 1998; Mr.Salim Dil Khan, Advocate Supreme Court for appellants in Criminal Appeal No,282 of 1998; Mr. Raja Abdul Ghafoor, Advocate-on-Record in Criminal Appeal No,111 of 1997; Mr. K.M.A. Samdani, Senior Advocate Supreme Court for appellant in Criminal Appeal No,299 of 1998; Mr. Raja M. Akram, Senior Advocate Supreme Court for respondents in Civil Appeal No,200 of 1999; Mr. Tanvir Bashir Ansari, Deputy Attorney-General for appellants in Civil Appeals Nos.200 to 210 of 1999 and respondents in Civil Appeals Nos.781 to 788 of 1999, Ch. Bashir Ahmed, Assistant Advocate-General, Punjab for respondents in Civil Appeals Nos. 782 and 783 of 1999. The following common contentions have been raised by the learned counsel for the private appellants in support of their respective appeals and while opposing the appeals filed by the Federation:
(i) That Ehtesab Ordinance CXI of 1996 (hereinafter to be referred as 'the Ordinance CXI') as amended by Ehtesab (Amendment) Ordinance CXXIII of 1996 (hereinafter to be referred as Ordinance CXXIII') Ehtesab (Amendment) Ordinance VII of 1997 (hereinafter to be referred as 'Ordinance VII') and Ehtesab (Second Amendment) Ordinance XI of 1997 (hereinafter to be referred as 'Ordinance XI') was repealed by Ehtesab Ordinance XX of 1997 (hereinafter to be referred as 'Ordinance XX') but the repealing Ordinance XX did not save the proceedings pending under the Ordinance CXI. Therefore, the pending proceedings could not be continued after repeal of Ordinance CXI.
(ii) That Ordinance XX of 1997 was an invalid piece of legislation as on the date the President promulgated this Ordinance, the conditions precedent for exercise of power under Article 89 of the Constitution were nonexistent, Ordinance XX being a verbatim of Ordinance CXI and later mentioned Ordinance being still enforced, there was no legal necessity for promulgation of Ordinance XX.
(iii) That Ordinance XX being an invalid law, the proceedings pending under it on the date of promulgation of the Act, could not be saved in spite of a saving clause in the Act. The pending proceedings under Ordinance XX even otherwise, could not be saved under the Act as the provisions in the Act regarding cut off date of offences triable under the Act was different from the one stated in Ordinance XX.
(iv) That provisions of section 31(c) of the Act are invalid being discriminatory in nature inasmuch as under the Act only those offences could be tried which were committed after 6-11-1990 whereas under section 31(c) the purported effect was to keep the proceedings alive which related to the offences committed prior to 6-11-1990.
(v) That provisions of the Act have been applied in a discriminatory manner as only persons belonging to one political party were targeted under it.
(vi) That the provisions of the Act were proposed to the Injunctions of Islam, and therefore, are liable to be struck down.
(vii) That Ordinance II of 1998 which amended the Act lapsed after 4 months of its promulgation as it was not passed by the Parliament and on its repeal under the Constitution the amendments made in the Act also ceased to be operative.
(viii)That Ordinance CXI being a temporary legislation, the proceedings pending under it on the date of repeal could not be saved in the absence of a specific saving clause in the repealing Ordinance.
(ix) That savings contemplated under Article 264 of the Constitution on the repeal of law did not extend to the proceedings pending under a temporary legislation. In reply to the above submissions of the learned counsel for private appellants and in support of the appeals filed by the Federation, Mr. Tanvir Bashir Ansari, the learned Dy.A.-G., raised the following Contentions:--
(i) That the Ordinance promulgated by the President under Article 89 of the Constitution, cannot be treated as a temporary legislation only for the reason that the Ordinance is likely to lapse on expiry of 4 months period if it is not presented before the Parliament. It is contended that whether a legislation is temporary in nature is to be decided with reference to the subject covered by it and the nature of the legislation.
(ii) That in case the Ordinance is repealed under the Constitution, the consequences of repeal follow as provided in Article 264 of the Constitution while in case of repeal by a subsequent Act or legislation, the consequences of repeal are governed by the provision of General Clauses Act of 1897.
(iii) That Ordinance CXI was repealed by Ordinance XX of 1997 and therefore, the effect of its repeal was governed by section 6(c) of General Clauses Act, which provided that proceedings pending on the date of repeal were to continue under the repealed legislation; and
(iv) That Ordinance XX remained in the field until it was repealed by the Act, section 31 of the Act clearly provided for saving of proceedings under Ordinance XX, therefore, the proceedings initiated under Ordinance CXI which were saved under Ordinance XX continued under the act by virtue of the, saving clause in the Act. Number of reported decisions from Pakistani and Indian Courts, were cited at the bar by the learned counsel in support of their respective contentions. We Will refer to only those cited cases which are relevant for the decision of controversies raised before us.
Before we proceed to consider the above contentions of the learned counsel for the parties, it may be stated here that transparent, even-handed and across the board accountability of holders of all public offices, is the essence of A Islamic polity and a democratic set-up. Presence of accountability process in a system of governance not only deter those who hold sway over the populace from misusing and abusing the power and authority entrusted to them but it also ensures principles of good governance. It would be pertinent at this stage to briefly refer to the legislative history of accountability laws in Pakistan. Soon after the establishment of State of Pakistan, Public and Representative Offices (Disqualification) Act, 1949 (PRODA) was passed by the Legislature which became effective from 15th August, 1947. This Act provided for debarring from public life for a suitable period of persons judicially found guilty of misconduct in any public office. It remained enforced until 21st September, 1954 when it was repealed by Public and Representative Offices (Disqualification) (Repeal) Act, 1954. After the repeal of PRODA, there was no special law on the statute book dealing with the accountability of holders of public offices between the period from 21st September, 1954 to 6th August, 1959. On 7th August, 1958 while the country was under the Martial Law, Elective Bodies (Disqualification) Order, 1959 (President's Order No,13 of 1959) (EBDO) was promulgated which remained enforced only until 31st December, 1960 (EBDO provided for disqualifications of certain categories of persons from being a member or a candidate for the membership of any elective body until 31st December, 1966. EBDO was amended by P.O. No,7 of 1960 dated 10-2-1960; P.
0. 9 of 1960 dated 5-3-1960; P.O. 27 of 1960 dated 28-11-1960 and P.O. 29 of 1960 dated 27-11-1960.
On 7th January, 1963, Elective Bodies Disqualification (Removal and Remission) Ordinance, 1963 was promulgated which authorised the President to reduce the period of disqualification of a person disqualified under EBDO. Once again, after expiry of EBDO on 31st December, 1960, no special law existed on the subject of accountability of holders of public offices until 8th of January, 1977. On 9th January, 1977, Holders of Representative Offices (Prevention of Misconduct) Act IV of 1976 and Parliament and Provincial Assemblies (Disqualification from Membership) Act V of 1976 were passed which provided for trial of offences of misconduct of holders of public offices before a Bench of the High Court consisting of not less than two Judges. On 13th November, 1977 Holders of Representative Offices (Punishment for Misconduct) Order (President's Post Proclamation) Order No,16 of 1977 (P.P.P.O.16) and Parliament and Provincial Assemblies (Disqualification for Membership) Order (President's Post Proclamation Order 17 of 1977 (P.P.P.O. 17) were promulgated.
P.P.P.Os. 16 and 17 of 1977, however, did not repeal Holders of Representative Offices (Prevention of Misconduct) Act, 1976 and Parliament and Provincial Assemblies (Disqualification for Membership)
Act, 1976 with the result from 13-11-1977 on wards we had on the Statute Books Act IV of 1976, Act V of 1976, P.P.P.0.16 of 1977 and P.P.P.O. 17 of 1977, all dealing with punishment for misconduct and disqualification of the holders of public offices. Holders of Representative Offices (Prevention of Misconduct) Act, 1976 and Parliament and Provincial Assemblies (Disqualification for Membership)
Act, 1976 were finally repealed by Parliament and Provincial Assemblies (Disqualification for Membership) (Amendment) Act, 1991 which was assented to by the President on 28-4-1991. P.P.P.O.
16 of 1977 was amended through P.P.P.O. 5 of 1978 dated 17-1-1978 and President's Order 1 of 1981.
Similarly,' P.P.P.O. 17 was also amended by Ordinance IX of 1990 dated 15-10-1990 and Act' VII of 1991 dated 28-4-1991. On 18th November, 1996, Ehtesab Ordinance CXI of 1996 was promulgated which repealed P.P.P.O.
16 and P.P.P.O. 17 of 1977. Ordinance CXI was amended by Ordinance CXXIII of 1996, Ordinance VII of 1997 and Ordinance XI of 1997. Ordinance CXI amended as aforesaid was repealed and replaced by Ordinance XX of 1997. Ordinance XX was repealed by Act IX of 1997. Act. IX of 1997 was amended through Ordinance II of 1998 on 4th February, 1998 but this Ordinance stood repealed on 3rd June, 1998 as it was not passed by the Parliament. From the legislative history mentioned above, two conclusions clearly emerge. Firstly, the necessary, for special legislation relating to accountability of holders of public offices has been recognized both by the Civilian as well as Military Governments. Secondly, except for two brief interludes, the special laws relating to accountability of holders of public offices remained in the field from 15th August, 1947 till today. At this stage, we may also mention that at least on two previous occasions, the justification for imposition of Martial Law and deviation from the Constitutional Rule in the country was sought to be justified on the plane of rampant corruption of the politicians. It is also not without significance that for previous elected Civilian Governments were also dismissed before completion of their tenure under the Constitution on allegations of corruption besides other allegations. In this backdrop, when the second Benazir Bhutto's elected Government was dismissed under Article 58(2)(b) of the Constitution in November, 1996, there was a public outcry for a severe accountability of the holders of public offices. The caretaker set-up which came into existence as a result of dismissal of elected Government of Benazir Bhutto, therefore, promulgated Ehtesab Ordinance CXI of 1996, which was later amended through Ordinance CXXIII, Ordinance VII and Ordinance XI, before it was repealed and replaced by Ordinance XX of 1997. Nawaz Sharif's Government which came into power as a result of general elections in the country held in February, 1997, promulgated the Act which repealed Ordinance XX of 1997.. In the light of the preceding discussion, we now proceed to consider the above contentions of the parties. The first contention of the learned counsel for the private appellants in the above cases is, that Ordinance CXI being a temporary legislation, the proceedings initiated thereunder could not survive on its repeal. In support of the contention that Ordinance CXI was a temporary Legislation, reliance is placed on Article 89 of the Constitution which provides that an Ordinance promulgated by the President shall be laid before the National Assembly if it contains provisions dealing with all or any of the matters specified in clause (2) of Article 73 and shall stand repealed at the expiration of four months from its promulgation or on passing of a resolution disapproving it if passed before expiry of four months.
The learned Deputy Attorney-General, on the other hand, contended that merely because Article 89 of the Constitution provided that an Ordinance promulgated by the President shall stand repealed on expiration of the period of four months from the date of its promulgation, would not make the legislation temporary. A legislation is temporary in nature or not, according to learned Deputy Attorney-General, is determined with reference to the subject-matter of Legislation, the nature of provision contained therein and intention of the Legislature. The scope of Article 89 of the Constitution was considered by one of us (Saiduzzaman Siddiqui, J., as he then was) in the case of Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66 as follows:-- "From a careful examination of Article 89 (ibid), it is quite clear that the legislative power conferred by this Article on the President to promulgate Ordinance is circumscribed by these conditions.
Firstly, at the time the Ordinance is promulgated by the President, the National Assembly must not be in session and circumstances exist which render it necessary to take immediate action for promulgation of the Ordinance. The. Ordinance so promulgated by the President is only a stop-gap arrangement and a temporary measure, as this Ordinance has to be placed before the National Assembly if it pertains to matters specified in Article 73(2) of the Constitution and in all other cases before the Parliament, within 4 months of the date of its promulgation, unless it is earlier withdrawn by the President or disapproved by the National Assembly or Parliament as the case may be. It is, therefore, quite clear that the power to promulgate an Ordinance by the President under Article 89 of the Constitution of 1973 is designed to meet a situation when the legislation is required urgently and the Assembly is either not in session or is unable to function for reasons of having been dissolved in accordance with the provisions of the Constitution of 1973. But the Ordinance so promulgated by the President does not acquire the status of a permanent Act of Parliament as it loses its validly on expiry of 4 months period from the date of its promulgation if the National Assembly or Parliament as the case may be, does not approve the legislative measure within that period. In the case of Sargodha, Bhera Bus Service Limited and others v. Province of West Pakistan etc. PLD 1959 SC 127, this Court examined the effect of repeal of Ordinance XXXV of 1956 promulgated by the Governor of West Pakistan in exercise of his power conferred under Article 102 of the Constitution of 1956. In that case, the Government of West Pakistan used to realise taxes from the transport companies up to 17-12-1956 in, the Province of Punjab in accordance with the provisions of the Punjab Motor Vehicles Taxation Act, 1924 (IV of 1924). After creation of One Unit, the Government of West Pakistan promulgated Ordinance XXXV of 1956 in exercise of its power conferred under Article 102 (ibid) which came into effect on 1-10-1956. This Ordinance repealed the Punjab Motor Vehicles Taxation Act, 1924 and the Government started collection of taxes on the basis of the flat rate prescribed under the Ordinance. Ordinance XXXV of 1956 was laid before the Assembly on 8-3-1957 but before the Assembly could convert the Ordinance into an Act of Legislature it was suspended by the President under Article 193 of the Constitution of 1956. The Ordinance promulgated by the Governor was valid only for a period of 6 weeks under the provisions of Article 102 (ibid) and therefore, it ceased to be operative on 11-3-1957. The Legislative Assembly of West Pakistan passed Act XXXII of 1958 on 24-4-1958 incorporating the provision of Ordinance XXXV of 1956. It was contended before this Court on behalf of the petitioners in the above-cited case that as a result of repeal of Ordinance XXXV of 1956 which in turn had repealed Punjab Motor Vehicle Act, 1924 there was no law in the field between the dates the Ordinance XXXV of 1956 was repealed and Act XXXII of 1458 was passed, and as such the demand of recovery of taxes during the interregnum on the basis of the provision of repealed Punjab Motor Vehicles Act, 1924 was illegal. The contention was repelled by this Court as follows:-- We are unable to accept Mr. Brohi's argument, which carries with it the implication that during the interval of more than 13 months between the expiry of the Ordinance on the 11th of March, 1957 and the coming into force of Act XXXII of 1958 on the 24th of April, 1958, there was a blank in the statute book on the subject of imposition of tax on motor vehicles in West Pakistan, as according to Mr. Brohi, on the expiry of the Ordinance the old Taxation Act of 1924 was not revived. The general principle is that the duration of a statute passed by an authority empowered to pass permanent laws is prima facie perpetual unless it is intended to be temporary, and the Act of 1924 was a permanent Act. Now the question is whether it could be permanently repealed by an Ordinance made by the Governor? The Governor derived this power from Article 102 of the late Constitution, the relevant portions of which run thus:--
(1) If at any time, except when the Provincial Assembly is in session, the Governor is satisfied that circumstances exist which render immediate action necessary, he may make and promulgate such Ordinance as the circumstances appear to, him to require, and any Ordinance so made shall have the like force of law as an Act of the Provincial Legislature; but the power of making Ordinances under this clause shall be subject to the like restrictions as the power of the Provincial Legislature to make laws, and any Ordinance made under this clause may be controlled or superseded by any such Act.
(2) An Ordinance promulgated under clause (i) shall be laid before the Provincial Assembly and shall cease to operate at the expiration of six weeks from the next meeting of the Assembly, or if a resolution disapproving it is passed by the Assembly, upon the passing of that resolution . " It follows from the language of this Article that the legislative power of the Governor was limited by the following conditions:
(1) that the Provincial Assembly was not in session,
(2) that immediate action was necessary,
(3) that the Ordinance was liable to be laid before the Provincial Assembly when it met next, and
(4) that it was to cease to operate--
(a) if a resolution disapproving it was passed and
(b) in any event at the expiration of the six weeks from the meeting of the Assembly. The powers of Legislature of the Governor, therefore, were of a transitory, temporary and contingent nature. They are, no doubt, coextensive with those of the Provincial Assembly, as argued by Mr. Brohi, but this can be said only with regard to field of legislation as regards the Provincial list and the concurrent list of subjects as given in the Fifth Schedule to the late Constitution. But it is evident that the powers of the Assembly are more extensive, inasmuch as it was empowered to enact permanent Acts at all; times not subject to any limitation as the Governor's powers are meant to be by Article 102, which are to be exercised in emergency and with temporary effect only, and carry with them the implication that when a permanent Act is repealed by an Ordinance, the Act will revive on the expiry of the Ordinance. In these cases we are only concerned with the question of the entire repeal of permanent Act by an Ordinance and we are not called upon to decide the effect of mere amendment of any text of an Act. In the view that we have held, subsection (2) of section 4 of the West Pakistan General Clauses Act, 1956, as amended by West Pakistan General Clauses (Amendnient) Act (III of 1957), which puts the effects of repeal of a permanent statute by an Act of the Provincial Legislature and by Ordinance on the same footing by extending the application of clause (a) of subsection (1) of section 4, is to that extent ultra vires.
The Governor having no power of permanent legislation, the permanent repeal of a perpetual status by Ordinance is ultra vires, and the repealed Act revives as soon as an Ordinance 'ceases to operate', irrespective of the fact whether in the Ordinance the repeal was intended to be permanent or temporary." Similarly, in the case of Government of Punjab through Secretary, Home Department v. Zia Ullah Khan etc. 1992 SCM R 602, this Court while considering the effect of repeal of Ordinance XIV of 1988 which amended subsection (2) of section 1 of the Special Court for Speedy Trials Act and which stood repealed in terms of clause (2) of Article 89 of the Constitution of 1973, made the following observations:-- "12. It may be stated that an Ordinance is a temporary legislation. It cannot be given permanency in the absence of any sound legal principle or backing of law. In this regard it may be advantageous to quote the following passage from the judgment of this Court in the case of Mahreen Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397: It will be seen that this Article intended to make provision for emergency or temporary legislation at any time when the Provincial Assembly stands dissolved or is not in session, and it is for this reason that clause (2) of this Article, while conferring on an Ordinance promulgated by the Governor the same force and effect as an Act of the Provincial Legislature, contemplates that every such Ordinance shall be laid before the Provincial Assembly and shall cease to operate at the expiration of six weeks from re-assembly thereof, or if before the expiration of that period a resolution disapproving it is passed by the Provincial Assembly, upon the passing of that resolution.
The same clause also provides that the Ordinance may be withdrawn at any time by the Governor.
An Ordinance is, therefore, essentially in the, nature of a temporary legislation, and its future operation is made conditional on the approval of the Provincial Assembly. The provisions contained in the proviso to clause (4) could not, therefore, be intended to confer permanency on an Ordinance, in violation of the clear stipulation in clause (2) of the Article. Apart from this basic objection, resting on the very nature of an Ordinance as a piece of temporary legislation, the proviso itself, as relied upon by the learned Attorney-General, makes it clear that it has a narrow and limited purpose, namely, of meeting the requirement specified in the proviso to clause (2) of Article 143 of the Interim Constitution in relation to the enactment of Provincial laws on subjects included in the Concurrent Legislative List. As that proviso does not make a separate or special mention of the manner in which an Ordinance shall be promulgated in the Concurrent field, the proviso to clause (4) of Article 135 contains a special direction in this behalf to the effect that an Ordinance containing provisions inconsistent with an Act of the Federal Legislature or an existing law with regard to a matter enumerated, in the Concurrent Legislative List shall be deemed to be an Act of the Provincial Legislature which has been reserved for the consideration of the President and assented to by him, provided the Ordinance is made by the Governor in pursuance of instructions from the President. Thus, the proviso in question merely seeks to apply to an Ordinance the special stipulation contained in a subsequent Article on the subject of legislation in a Concurrent field, but does not have the effect of rendering the Ordinance promulgated by the Governor as a permanent Act of the Provincial Legislature for all purposes." We may also refer to the following observations of the Privy Council in the case of Gooderham and Worts Ltd. v. Canadian Broadcasting Corporation AIR 1949 PC 90, on the question of effect of expiry of a temporary amendment in an enactment:
15. This argument, at first sight attractive as a point of pleading, is, in their Lordships' opinion untenable On a sound appreciation of the structure and terms of the Act of 5th July, 1935, above- quoted. The first temporary amending Act of 1933 repealed certain provisions of the Principal Act of 1932 and substituted other provisions in their place. The operation of this amending Act was continued down to 30th June, 1935, by two further Acts. Then by the Act of 5th July, 1935, its operation was further extended to 31st March, 1936 but only till then. The sections of the three temporary legislations were repealed. The result is that on 31st March, 1936, the temporary legislation contained in the first Act of 1933 repealing provisions of the Principal Act of 1932 and substituting other provisions came to an end not by the repeal of the temporary legislation but by the efflux of the prescribed time. No question as to the revival of the temporarily repealed provisions of the Principal Act of 1932 by the repeal of the repealing legislation arises. The repeal effected by the temporary legislation was only a temporary repeal. When by the fiat of Parliament the temporary repeal expired the original legislation automatically resumed its full force.' In view of the above discussed legal position there is no doubt in my mind that on the repeal of Ordinance XXX of 1993, which was never placed before the Assembly for approval and which stood repealed on the expiry of 4 months period from the date of its promulgation in accordance with the provisions of Article 89 (ibid), the amendment introduced in section 8-B by Ordinance XXX of 1993 stood removed from the statute book with the consequence the original provisions of section 8-B of the Act stood revived on such repeal. Therefore, the original section 8-B was enforced both at the time the two references were filed before the Election Commission and the present appeals were filed before this Court."
In view of the preceding discussion, we are of the view that Ordinance CXI promulgated on 18-11- 1996, was a temporary piece of legislation which would have expired in terms of Article 89 (2) of the Constitution on 17-3-1997. The second contention of the learned counsel for the private appellants is that Ordinance XX which repealed and replaced Ordinance CXI was an invalid piece of legislation as on the date Ordinance XX was promulgated by the President, Ordinance CXI as amended, was enforced which was almost a verbatim of Ordinance XX, and therefore, conditions necessary for exercise of power by the President under Article 89 of the Constitution to promulgate the Ordinance, were non- existent.
The contention of the learned counsel for the private applicants does not appear to be correct.
Ordinance CXI of 1996 promulgated on 18-11-1996 was no doubt enforced on 1-2-1997, when Ordinance XX was promulgated. However, from the facts stated above, it is quite clear that Ordinance CXI was thrice amended between the period from 31-12-1996 to 27-1-1997 before it was repealed and replaced by the Ordinance XX. It is an admitted position that on 1-12-1997, when Ordinance XX was promulgated the National Assembly stood dissolved and general elections in the country were called on 3-2-1997 and therefore, it would have taken some time for the National Assembly to come into existence. In these circumstances, the promulgation of Ordinance XX to repeal and replace Ordinance CXI as amended by Ordinance CXXII, Ordinance VII and Ordinance XI, could not be described as arbitrary or improper exercise of power vested in the President under Article 89 of the Constitution. The essential condition mentioned in Article 89 of the Constitution for exercise of Ordinance Making Power by the President being present at the time of promulgation of Ordinance XX, no exception could be taken to the promulgation of Ordinance XX. We are, accordingly of the view that Ordinance XX was a valid piece of legislation. The said Ordinance having been promulgated on 1-2-1997, remained operative until 31-5-1997. The next contention of the learned counsel for the private appellants in the above cases is, that Ordinance XX having repealed and replaced Ordinance CXI, the proceedings pending on the date Of repeal of Ordinance CXI, could not be saved and continued under Ordinance XX in the absence of a specific clause in the repealing Ordinances saving the proceedings pending under Ordinance, CXI. It is contended by the learned counsel for the private appellants that section 28 of Ordinance XX which repealed Ordinance CXI, Ordinance VII and Ordinance XI, did not specifically save the proceedings which were pending under Ordinance CXI and therefore, all proceedings pending under Ordinance CXI came to an end with the repeal of Ordinance, CXI, and the same could not be continued or saved under Ordinance XX. In support of this contention, reliance is placed by the learned counsel on Government of Punjab v. Zia Ullah Khan 1992 SCM R 602 and Muhammad Arif v.
State 1993 SCM R 1589.
Before considering the above contention, it may be stated here that if an Ordinance stands repealed under the Constitution, the consequences of repeal are provided under Article 264 of the Constitution. However, if a law is repealed by a subsequent Act, the consequences flowing from such repeal are to be determined with reference to the provisions of section 6 of General Clauses Act. The contention of the learned counsel for the private appellant is, that Ordinance XX while repealing Ordinance CXI, though contained a saving clause, did not provide for continuation of the proceedings pending under Ordinance CXI, which shows that the Legislature did not intend to keep the pending proceedings alive under Ordinance XX. Repeal of Ordinance CXI, by Ordinance XX was not a case of simple repeal but it was a case of simultaneous repeal and re-enactment of a legislation, and therefore, besides consequences mentioned in section 6 of the General Clauses Act, section 24 of the General Clauses Act were also attracted. Ordinance XX was a verbatim reproduction of Ordinance CXI. Ordinance CXI, was still enforced when it was repealed by Ordinance XX. It may also be mentioned here that Ordinance XX was finally converted into a permanent legislation when the Legislature passed it as Act IX of 1997. It is, therefore, quite clear to us that although Ordinance CXI, was a temporary legislation but the Legislature intended to provide continuity to its provisions by first repealing it by Ordinance XX and then convening the later into an Act of Legislature by passing it as Act IX of 1997. Our above conclusions are supported by the following passage in "Craies on Statute Law (Seventh Edition)" appearing at pages 408 and 409:-- "If an Act is in the first instance temporary, and is continued from time to time by subsequent Acts, it is considered as a statute passed in the session when it was first passed, and not as a statute passed in the session in which the Act which continues its operation was passed. This was so held in Shipman v. Hensbest, where (inter alia) it had been contended that 21 Jac. 1, 4, S.4 (common informers) which enabled a defendant, sued on any penal statute passed before 21 Jac. 1, to plead the general issue and to give special matter in evidence under it, did not apply to an action brought upon 1 Jac., c.22, because that statute, although originally passed before 21 Jac. 1, was only a temporary Act to continue to the next session of the next Parliament, and that in the next Parliament---viz., 6 Jac. 1--it was not continued, nor was it continued again till after the passing of 21 Jae) 1, c.4. But as to this contention, Lord Kenyon said: 'It has been argued that the 21 Jac. 1, does not extend to Acts passed subsequent to it. And that this may he considered as an action brought on a subsequent statute; the I Jac. I. c.22, having expired before the 21 Jac. 1, and has been only re- enacted since that time; but on this point I have not entertained a doubt from the beginning. We are almost clearly of opinion that this must be considered as an action on the 1 Jac. 1, c.22; and that the subsequent laws, which have continued it from time to time, all give effect to it as an Act made in the first year of James I.' This doctrine seems not to have been accepted in R. v. Phipoe, where it was contended that an indictment founded on the temporary Act of 2 Geo. 2, c.25, S.3 (which Act was revived by 9 Geo. 2, c.18) ought to have concluded in the plural number, "against the form of the statutes in such case made and provided"; but it was held otherwise, because it was considered that the re-enacting statute was the only statute in force against the offence. This ruling is, however, contrary to the opinion expressed by the Judges in Dingley v. Moor, where, on a similar point having been raised, it was said that, 'there ought to be a difference observed when a statute is made to endure for a certain time and is afterwards made perpetual by a new Act or made perpetual in part and where it is continued with a new addition; for where a statute is made perpetual in part or in whole without any new addition, the offence may well be supposed against the form of the first statute, for that Act is made to continue'."
In these circumstances, in our view, there was a clear intention on the part of the Legislature while promulgating Ordinance XX to provide continuity to the provisions of Ordinance CXI. Therefore, in spite of the fact that section 28 of the Ordinance XX did not specifically save the proceedings instituted under Ordinance CXI there was clear intention on the part of the Legislature to keep the proceedings instituted under Ordinance CXI alive under Ordinance XX. We are, accordingly, of the view that the proceedings initiated under Ordinance CXI could be continued under Ordinance XX after repeal of Ordinance CXI. The next contention of the learned counsel for the private appellants is, that in spite of a saving clause in the Act, which provided that proceedings, pending under Ordinance XX were saved, the same could, not be continued under the Act, as the provisions of the Act were inconsistent with the provisions of the Ordinance XX. The Act repealed Ordinance besides repealing P.P.P.O. 16 and P.P.P.O. 17 of 1997. Section 31 of Act IX of 1997 reads as follows:-- "31. Repeal.---(1) The Holders of Representative Offices (Punishment for Misconduct) Order, 1977 (P.P.P.O. 16 of 1977), the Parliament and Provincial Assemblies (Disqualification for Membership)
Order, 1977 (P.P.P.O. 17 of 1977), and the Ehtesab Ordinance, 1997 (XX of 1997), are hereby repealed.
(2) Notwithstanding the repeal of the Holders of Representative Offices (Punishment for Misconduct) Order, 1977 (P.P.P.O. 16 of 1977), the Parliament and Provincial Assemblies (Disqualification for Membership) Order, 1977 (P.P.P.O. 17 of 1977) and the Ehtesab Ordinance, 1997 (XX of 1997), --
(a) any proceedings pending before the Special Court under the said Orders shall continue as if the said Orders had not been repealed;
(b) any appointments made under the Ehtesab Ordinance, 1997 (XX of 1997), including specifically that of the Chief Ehtesab Commissioner by the President shall continue for the appointed terms; and
(c) any proceedings pending before a Court under the Ehtesab Ordinance, 1997 (XX of 1997), shall continue under this Act and it shall not be necessary to recall any witness or once again record any evidence that may have been taken down." Section 31(2)(c) of the Act specifically saved the proceedings pending before a Court under Ordinance XX on the date of promulgation of the Act and it also provided that in such proceedings it was neither necessary to recall any witness nor to record once again the evidence already recorded. We are, therefore, in no doubt, that the proceedings pending under Ordinance XX on the date of promulgation of the Act, could be continued under the Act. However, the contention of the learned counsel for the private appellants is, that the provisions of the Act being inconsistent with that of Ordinance XX, the proceedings pending under Ordinance XX could not be continued under the Act. The above contention of the learned counsel for private appellants does not appear to be without force. Ordinance CXI which was originally promulgated during the period of Caretaker Government, in its section 1(2), provided as follows:-- "(1) Short title, application and commencement.---(1) This Ordinance may be called the Ehtesab Ordinance, 1996.
(2) It shall apply to the holders of public offices since the 31st day of December, 1985.
(3) It shall come into force at once." The same provisions were continued in Ordinance XX which was promulgated on 1-2-1997. It is, therefore, quite clear that the provisions of Ordinance CXI and. Ordinance XX applied only to the holders of public offices since 31st day of December, 1985. Section 1 of the Act, however, reads as follows:-- "1. Short title, application and commencement.--(1) This Act may be called the Ehtesab Act, 1997.
(2) It shall apply to the holders of public offices since the 6th day of November, 1990.
(3) It shall come into force at once."
The above provisions in the Act make it clear that the provisions of the Act applied to the holders of public offices since 6th day of November, 1990. As section 31 of the Act provides that proceedings pending under. Ordinance XX shall continue under the Act, it necessarily implies that such proceedings could be continued only in accordance with the provisions of the Act. Since the provisions of the Act applied to the holders of public offices since 6th of November, 1990 the proceedings pending under Ordinance XX in respect of holders of public offices for the period prior to 6th of November, 1990 could not be continued under the Act. We are, therefore, of the view that only those proceedings which were pending under Ordinance XX on the date of promulgation of the Act, were saved and continued which related to offences as defined under the Act by the holders of public offices since 6th day of November, 1990. It is next contended by the learned counsel for private appellants that the Act was amended by Ordinance II of 1998, which was never passed by the Parliament and as such on expiry of four months' period it stood repealed in terms of Article 89(2)(a) of the Constitution. It is, accordingly, contended that amendments made in the Act through Ordinance H of 1998 consequently became ineffective and the old provisions stood revised. The contention appears to be correct. Ordinance II of 1998 was promulgated on 4-2-1998. It is not disputed that Ordinance II of 1998 was not passed by Majlis-e-Shoora. Under Article 89 of the Constitution, this Ordinance stood repealed on 3-6-1998. We have already held that an Ordinance promulgated under Article 89 of the Constitution is a temporary legislation, therefore, the amendments made in the Act by Ordinance II of 1998 stood obliterated and original provisions in the Act stood revised on repeal of Ordinance II of 1998. It is next contended by the learned counsel for private appellants that the provisions of the Act are ex facie discriminatory. In the alternative, it is contended that the provisions of the Act have been applied in a discriminatory manner as members of only one political party have been targeted under the provisions of the Act. To support their contention that the provisions of the Act are ex facie discriminatory, it is contended that under the Act only those holders of public offices could be prosecuted for offences as defined under the Act, who held public offices since 6th November, 1990 but proceedings were kept alive under the Act even against those who held public offices prior to 6th of November, 1990.
While examining the effect of saving clause in the Act, we have already held that after the promulgation of the Act only holders of public offices, since 6th day of November, 1990 could be prosecuted and proceedings which related to offences committed prior to 6th day of November, 1990 could not be continued under the Act IX after repeal of Ordinance XX. In view of the above findings, the contention of the learned counsel for the private appellants that the provisions of the Act are discriminatory, has no relevance now. Apart from it, the classification of holders of public offices since 6th day of November, 1990 into one class is neither unreasonable nor it can be said that it had no nexus with the object of the Act. We are, therefore, not impressed by the contention of the I learned counsel for private appellants that the provisions of the Act are discriminatory. In so far the contention of private appellants that the provisions of Act IX have been applied in a discriminatory manner, no material has been placed before us in support of the contention. Even otherwise, such an exercise cannot be undertaken in the present proceedings which are confined only to the consideration of legal proposition.
It is lastly contended by the learned counsel for private appellants that the provisions of the Act are opposed to the Injunctions of Islam, and therefore, they are liable to be struck down. Accountability of the holders of public offices is an essence of the Islamic Polity. Under Islamic System of Governance, the holders of public offices are the trustees of the confidence reposed in them by the people and they are fully accountable for acts performed by them in discharge of their functions as holders of such public offices. The learned counsel for the private appellants have not been able to draw our attention to any Verse in the Holy Qur'an or Sunnah of Holy Prophet (peace be upon him) which was opposed to the concept of accountability of holders of public offices. On the contrary, as pointed out above, the holders of public offices under Islamic System of Governance, are fully accountable for their acts being trustees of the people who elect them as their representatives.
The appeals stand disposed of in the terms stated above, with no orders as to costs.
(Sd.)
Saiduzzaman Siddiqui, C.J.
(Sd.)
Irshad Hasan Khan, J.
(Sd.)
Raja Afrasiab Khan, J. I have recorded my separate short note.
(Sd.)
Muhammad Bashir Jehangiri, J.
(Sd.)
Nasir Aslam Zahid, J.
(Sd.)
Munawar Ahmed Mirza, J.
(Sd.)
Ch. Muhammad Arif, J. MUHAMMAD BASHIR JEHANGIRI, J.--I have had the privilege and the benefit of going through the well-considered judgment of the Honourable Chief Justice.
2. While respectfully concurring with the reasoning and the conclusions arrived at by the Honourable Chief Justice on the propositions canvassed at the bar by the learned counsel for the parties except that of the date of its application of Act IX of 1997 to the holders of public offices since the 6th day of November, 1990, I deem it necessary to briefly record my own views on the point.
3. The history of the legislation on 'transparent, even-handed and across the board accountability of holders of all public offices' and factual background of present controversy have been succinctly narrated in detail, therefore, I need not reiterate them in my brief note of dissent on tile one and the only proposition indicated above.
4. It was, 'inter alia' contended by the learned counsel for the appellants that the provisions of section 1(2) of the Act IX of 1997 were liable to be struck down being discriminatory in nature inasmuch as under the Act IX of 1997 the target date for commission of offences involving corruption and corrupt practices has been restricted to only 6-11-1990 and not front an earlier date and that too without any reasonable differentia. It was also submitted that provisions of the Act have been applied in a discriminatory manner as substantially only persons belonging to one political party were targeted thereunder. In support of their arguments, the learned counsel for the appellants have also relied upon Article 25 of the Constitution of Islamic Republic of Pakistan, 1973,which lays down that all citizens are equal before law and are entitled to equal protection of law".
5. The Honourable Chief Justice repelled these Constitutional objections to the fixation of target date under the Act IX of 1997 and observed as under:-- "While examining the effect of saving clause in the Act, we have already held that after the promulgation of the Act only holders of public offices, since 6th day of November, 1990 could be prosecuted and proceedings which related to offence's committed prior to 6th day of November, 1990 could not be continued under the Act IX after repeal of Ordinance XX. In view of the above findings, the contention of the learned counsel for the private appellants that the provisions of the Act are discriminatory, has no relevance now. Apart from it, the classification of holders of public offices since 6th day of November, 1990 into one class is neither unreasonable nor it can be said that it had no nexus with the object of the Act. We are, therefore, not impressed by the contention of the learned counsel for private appellants that the provisions of the Act are discriminatory. In so far the contention of private appellants that the provisions of Act IX have been applied in a discriminatory manner, no material has been placed before us in support of the contention. Even otherwise, such an exercise cannot be undertaken in the present proceedings which are confined only to the consideration of legal proposition."
6. In almost identical factual background in the case of the State of West Bengal v. Anwar Ali Sarkar and another AIR (39) 1952 SC 75 the Supreme Court of India had the occasion to examine the scope of Article 14 of the Indian Constitution in the context of constitutionality of West Bengal Special Courts Act (X (10) of 1950) wherein it was observed as under:-- "Thus, the general language of Article 14, as of its American counterpart, has been greatly qualified by the recognition of the State's regulative power to make laws operating differently on different classes of persons in the governance of its subjects, with the result that the principle of equality of civil rights and of equal protection of the laws is only given effect to as a safeguard against arbitrary State action. It follows that in adjudging a given law as discriminatory and unconstitutional two aspects have to be considered. First, it has to be seen whether it observes equality between all the persons on whom it is to operate. An affirmative finding on the point may not, however, be decisive of the issue. If the impugned legislation is a special law applicable only to a certain class of persons, the Court must further enquire whether the classification is founded on a reasonable basis having regard to the object to be attained, or is arbitrary. Thus, the reasonableness of classification comes into question only in those cases where special legislation affecting a class of persons is challenged as discriminatory. But there are other types of legislation, such as, for instance, the Land Acquisition Act, which do not rest on classification, and no question of reasonable classification could fairly arise in respect of such enactments. Nor, obviously, could it arise when executive orders or notifications directed against individual citizens are assailed as discriminatory. "
7. The first thing to be noticed is that the Preamble of the Act IX of 1997 mentions eradication of corruption and speedy disposal of cases involving corruption and corrupt practices as its object.
There is no doubt that this object is very high sounding- and there can be no doubt that the corruption committed and corrupt practices pursued by the holders of the public offices and for speedy disposal of cases involving corruption and corrupt practices have been made cognizable since 6-11-1990. The question that since what date the holders of public offices should have been prosecuted has attained significance in the context of the cases that have been brought before us.
8. The date of taking cognizance of corruption and corrupt practices under Act IX of 1997, I say so with respect, is not only devoid of reasonableness but it has got no nexus with the objects of the Act. The fixation of this date is highly discriminatory, unjust, oppressive, and one-sided on the ground that the two 'bigger parties' had the opportunity of getting mandate to rule the country twice since, 1988 in contradiction to that fixed in Ehtesab Ordinance (No, CXI of 1996) as 31-12-1985 which was promulgated by the then Caretaker Government with effect from 18-11-1996. Besides, the political party during whose stint Act IX of 1997 had, been passed had also the good fortune of having the Chief Minister ship of Punjab earlier, after the target date of 31-12-1985. Similarly, the regime of late Mr. Muhammad Khan Junejo was also covered by target date of 31-12-1985. This date of commencement seems to have been adopted by the Caretaker Government of the time in order to include only the democratically elected Governments after the Martial Law regime of Late General Muhammad Zia-ul-Haq. (Underlinging is mine in order to highlight that earlier accountability laws indicated at pp.34 to 35 of the judgment of the Hon'ble Chief Justice covered holders of Public and Representative Offices etc. And not those which were not democratically elected regimes.) I may not, however, be misunderstood to have exempted the Martial Law regimes from the process of accountability. What I intend to highlight is the apparent reason that might have weighed with the Caretakers to adopt the date of commencement of Ordinance No, CXI as 31-12-1985. But the Caretalcers had the ostensible reason to adopt the date that they had done. Again it is common perception that in the instant case the adopted dated as 6-11-1990 is not shown to have been founded on any reasonable hypothesis. Likewise persons of only one political party have been targeted and those belonging to the ruling party have not at all been touched.
9. It would, thus, be noticed that the adopted date of 6-11-1990 in Act IX of 1990 is unreasonable and further that it does manifestly show that it has actually been administered to the detriment of members of the particular party and in partial, unjust and oppressive manner.
10. Even if the Act itself made no such discrimination, the discretion so vested in the Federal Government would have been Constitutional, to adopt the target date as it had done provided the adoption so made proceeded on a rational and reasonable basis and was not arbitrary, capricious of whimsical. But, as it is, Act IX of 1997 which provided the date of commencement as 6-11-1990 does not at all hint even in the objects of Act as to why it had departed from the provisions of Ordinance CXI of 1996 wherein the date of commencement as 31st December, 1985 was indicated as the date of application of the Ordinance to the holders of public offices.
11. The law is well-established that if the provisions of an enactment are administered in an arbitrary, oppressive, partial or in an unjust manner, the action taken under the said provisions can he declared as unlawful. (See: (i) East and West Sreamship Co. v. Pakistan PLD 1958 SC (Pak.) 41 and followed in (ii) The Pakistan Barbers' Association (Regd.), Lahore v. Province of Punjab through Directorate of Labour Welfare, Punjab, Lahore and another PLD 1976 Lahore 769.
12. I am, therefore, inclined to declare the date of application of the Act to the holders of Public Offices since 6th day of November, 1990, as unlawful but at the same time, the Act as a whole can neither be struck down nor the convictions recorded against and the sentences awarded to the appellants herein can be interfered with merely because the date of Act has been made applicable to the holders of public offices since the 6th day of November, 1990. Subsection (2) of section 1 of the Act IX of 1997 to the extent of target date is not valid, therefore, it requires to be suitably amended as to provide for an earlier date preferably as 31st December, 1985. Nonetheless this declaration will not effect the trial already concluded and convictions recorded under the Act in so far as this declaration is concerned and so would be the case of the pending trials. The parties are left to bear their own costs.