' SABIHUDDIN AHMED, J.---All these four petitions involve common questions of law and were therefore heard together. Since the controversy was confined to purely legal questions, it might not be necessary to recapitulate the facts of each case and it might be sufficient to state that the petitioner in C.P.D.No,386 of 2002 is being tried for offences under-section 9 of the N.A.B. Ordinance read with section 409, P.P.C. Before Accountability Court No,1, Karachi pursuant to Reference No,30 of 2001. While the 'petitioner No,3 in C.P.D.No,704 of 2002 who is also the petitioner in C.P.D.No,1086 of 2002 is being tried by Accountability Court No,III, pursuant to two separate references bearing Nos.16 and 33 of 2001. The petitioner in C.P.D.No,373 of 2002 was arrested on the basis of allegations of offences committed under the N.A.B. Ordinance and is detained in custody pursuant to remand orders passed by the Administrative Judge Accountability Courts but no references appear to have been tiled against him. We were informed by the learned Prosecutor-General Accountability Court that the trials in three cases in which references were filed have reached an advanced stage but on account of interim orders passed by this Court the said Courts have been restrained from pronouncing judgments.
2. In all these four petitions, the Constitutional validity of clauses (i) to (v) of section 9(a) of the N.A.B. Ordinance has been called in question on the ground of being violative of Article 25 of the Constitution. However, in C.P.D. No,373 of 2002, it has also been contended that the Ordinance only contemplates trial of "holders of public office" as defined in section 5(m) of the Ordinance and since the petitioner admittedly neither he held any such office nor is alleged to have abetted or colluded with any such holder of office proceedings against him under the Ordinance are void, ab initio. It may be convenient to take up this argument first.
3. Admittedly the petitioner in C.P.D. No,373 of 2002 is a businessman who is alleged to have transacted some deals with a General Manager and a Manager of the National Press Trust causing financial loss to the Trust in the area of Rs,3 to 4 Crores. Mr. Khalid Anwar learned counsel for the petitioner argued that in the first instance the petitioner was not the holder of any public office and alternatively it could not even be alleged that he aided and abetted the commission of offences by any such office holder. He argued that though the definition of the expression "holder of public office" has been extended to persons in the management or corporations, banks, financial institutions, cooperative societies, firms, undertakings or other institutions or organizations established, controlled or administered by or under the Federal Government yet those holding the office of General Manager or Managers of the National Press Trust do 'tot come within its purview.
4. Referring to the history of the National Press Trust (respondent No,6 in C.P.D. No,373 of 2002) learned counsel pointed out that it was a Trust established by a number of industrial and commercial organizations through a Trust deed for the purpose of management of newspapers. Its affairs were to be managed by a Board of Trustees up to 9-2-1972 when the National Press Trust (Appointment of Chairman) Ordinance, 1972 (XXIX. Of 1972) was promulgated which subsequently became an Act of the Parliament being Act No,XIV of 1972.Indeed under the aforesaid Ordinance/Act the Board of Trustees stood superseded and its powers came to be vested in the Chairman of the Trust appointed by the President of Pakistan. However, Mr. Khalid Anwar argued that the mere fact that the President was authorized to appoint a person of eminence repute and integrity as the Chairman of the Trust did not mean that the Trust was a corporate entity administered by the Federal Government or that its Managers or General Managers were holders of public offices in terms of the N.A.B. Ordinance.
5. We tend to agree with learned counsel and are tentatively of the view that the mere factum of the President being authorized to appoint the Chairman of the Trust would not per se make the Trust an institution managed by the Federal Government. Nevertheless, this contention presupposes that the Ordinance is only applicable to holders of public office and the arguments put forth in this respect need to be considered. In this context the relevant part of the preamble to the Ordinance may be referred to which reads as follows: "Whereas it is expedient and necessary to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse/abuse of power, misappropriation of property, kickbacks, commission and for matters connected and ancillary or incidental thereto."
6. Learned counsel contended that various clauses' in section 9, which define the offence of corruption or corrupt practices demonstrate that by their very nature they can only be applied to persons possessing certain amount of public power. Moreover, he argued that if they are so broadly construed as to cover all cases of dishonest acquisition of property or pecuniary resources beyond a person's known sources of income they would be liable to be struck down on the touchstone of Article 25 of the Constitution or for being vaguely over board. He pointed out that in case section 9 was deemed to apply even to a private individual, clause (ii) would cover every case where a businessm an makes unconscionable profits; clause (iii) to every case of dishonest misappropriation punishable under section 409, P.P.C. And clause (v) to all thieves or tax evaders.
7. Mr. Muhammad Anwar Tariq learned Deputy Prosecutor-General on the other hand argued that the opening words of section 9(a) made it explicitly clear that its various clauses were not merely applicable to a "holder of a public office", but also to "any other person" and in view of the express language of the Statute there was no justification for reading any limitation restricting its application. Moreover he pointed out that it was not correct to say that the provisions contained in different clauses of section 9(a) by their very nature could only apply to holders of public offices.
He pointed out that under clause (ii) both acceptance and offer of valuable thing, without consideration or upon inadequate consideration amounted to an offence to corruption and corrupt practices. While the acceptor in most cases might be a public official the offerer in most situations would be a private individual. Similarly a person committing the offence of wilful default in terms of clause (viii) would in most situations be a private individual or corporate entity. Again section 10(b) explicitly provided that a person giving illegal gratification or aiding or assisting a holder of public office or receiving or holding any property obtained by such holder through corrupt practices or being a beneficiary of such asset was also liable to be punished under the Ordinance.
8. Moreover, we are also aware of very recent pronouncement of a Division Bench' of this Court in the case of Abdul Aziz Memon v. State (A.A.50 of 2002), decided on 6-10-2002, where after an elaborate examination of several provisions of the Ordinance their Lordships have held that its provisions are not confined to holders of public offices alone. In his. Erudite analysis our learned brother Mujeebullah Siddiqui. J, has particularly referred to section 4 which provides that it will apply to all persons in Pakistan. Section 20(b) which stipulates that the Manager or Director of every bank or financial institution failing to take notice of a unusual or large transaction in an account, and upon a bona fide professional judgment that It could be related to illegal activity or corrupt practices, does not intimate the Chairman, N.A.B. Shall be punishable with imprisonment or fine. Such provisions in the profound judgment of our learned brothers unmistakably show that the Ordinance is applicable even to persons who have no connection with a public office. We entirely agree and may just add that section 4 itself makes it clear that while it applies to all persons in Pakistan its application is also extended to persons who are or have been in the service of Pakistan even if they are presently residing abroad.
9. A comparison between the preamble to the N.A.B. Ordinance and that of the Ehtesab Act, 1997 would indicate that while the latter was intended to provide for "eradication of corruption and corrupt practices from public offices" those of the former reproduced in para-5 above appear to be much wider. In Khan Afsandyar Wali v. Federation of Pakistan (PLD 2001 SC 607) the Honourable Supreme Court has emphasized that this was a law promulgated in an extraordinary situation where corruption had taken deep roots in the society. Its substantive provision show that it was not merely designed to punish public servants but even others i,e, Bankers, Bank defaulters and those committing white collar crimes. We are therefore, not inclined to subscribe to Mr. Khalid Anwar's contention that it could not be extended to persons other than holders of public offices.
10. Before examining the main thrust of learned counsel arguments it may be appropriate to reproduce section 9 of the Ordinance which reads as follows: "9. Corruption and corrupt practices.---(a) A holder of a pubic office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices:---
(i) if he accepts or obtains from any person or offers any gratification directly or indirectly, other than legal remuneration, as a motive or reward such as is specified in section 161 of the Pakistan Penal Code (Act XLV of 1860) for doing or for bearing to do any official act, or for showing or for bearing to show, in the exercise of his official functions, favor or disfavor to any person, or for rendering or attempting to render any service or disservice to any person; or
(ii) if he accepts or obtains or offers any valuable thing without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or likely to be concerned in any proceedings or business transacted or about to be transacted by him, or having any connection with his official functions or from any person .Whom he knows to be interested in or related to the person so concerned; or
(iii) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use, or for the use of any other person, any property entrusted to him, or under his control, or wilfully allows any other person so to do; or
(iv) if he by corrupt, dishonest, or illegal means, obtains or seeks to obtain for himself, or for his spouse and/or dependents or any other person, any property, valuable thing, or pecuniary advantage; or
(v) if he or any of his dependents or benamidars owns, possesses, or has any right or title in [acquired] movable or immovable property or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for, or
(vi) misuse his authority so as to gain any benefit or favor for himself or any other person, or to render or attempt to do so [or wilfully fails to exercise his authority to prevent the grant, or rendition of any undue benefit or favor which he could have prevented by exercising his authority];
(vii) if he has issued any directive, policy, 'or any S.R.O. (Statutory Regulatory Order) or any other order which grants or enables any [undue] concession or benefit in any taxation matter or law or otherwise so as benefit himself or any relative or associate or a Benamidar [or any other person]; [or]
(viii) if he commits an offence of wilful default; [or]
(ix) if he commits the offence of cheating as defined in section 415 of the Pakistan Penal Code and thereby dishonestly induces members of the public at large scale to deliver any property including money or valuable security to any person or he commits the offence of criminal breach of trust as defined in section 405 of the Pakistan Penal Code with regard to any property including money or valuable security entrusted to him by members of the public at large scale."
11. The main contention of Mr. Khalid Anwar, however was that 'a number of clauses of section 9(a) were liable to be struck down as being violative of the fundamental rights of equality and equal protection of laws guaranteed by Article 25 of the Constitution. He argued that most of the offences amounting to corruption or corrupt practices already constituted offences under the general or special laws which continued to remain on the Statute book. He pointed out inter alia that the offence constituted under clause (i) was also punishable under section 161, P.P.C., the one under clause (ii) by section 162, P.P.C. And the one under clause (iii) under section 5(1) (c) of the Prevention of Corruption Act. Under the Criminal Law (Amendment) Act, 1958 (hereinafter mentioned as the Act) offences punishable under sections 161 to 166, P.P.C. And several other sections, if committed by public servants as well as those under the Prevention of Corruption Act, 1947 are triable by a Special Judge. By describing substantially the same offences as "corrupt practices" under section 9(a) of. The N.A.B. Ordinance, they also become triable by an Accountability Court. This dispensation leads to a situation whereby the Chairman, N.A.B. In his absolute and arbitrary discretion may choose one person to'be tried under the N.A.B. Ordinance and leave another in identical circumstances to be proceeded against under the 1958 Act. There was substantial differences both in terms of punishment and procedural protections under the two laws. A person found guilty of offences under sections 161 and 162 P.P.C. Could be awarded a maximum sentence of 3 years' imprisonment and the maximum imprisonment for an offence under the Prevention of Corruption Act could extend to 7 years. However, when another, in an identical case, was sent up for trial before an Accountability Court the term of imprisonment could extend up to 14 years. Moreover, while a Special Court under the 1958 Act, retained the power to grant bail available to a Court of Session, such power was expressly taken away by section 9(b) of the N.A.B. Ordinance. Further more while an accused enjoyed all the procedural protections available under the Cr.P.C. Before a Court of Session during a trial before a Special Judge, an Accountability Court was given the power to deviate from the procedure so laid down.
12. Against this background learned counsel argued that the unbridled discretion conferred upon the Chairman N.A.B. Or an officer authorized by him to refer a matter involving commission of substantially the same offence which was triable by a Special Judge under the 1958 Act or the power to seek transfer of a pending case to an Accountability Court under section 16-A was ultra vires. The fundamental right of equality and equal protection of laws guaranteed by Article 25 of the Constitution. In support to his contention learned counsel placed reliance inter alia upon two well known pronouncements of the Honourable Supreme Court in Waris Meah v. State (PLD 1957 SC 157) and Inamur Rehman v. Federation of Pakistan (1992 SCM R 563):
13. In Waris Meah's case, the validity of certain provisions of the Foreign Exchange Regulation Act providing three different modes of trial and punishment for offence under the Act were called in question. The law enabled the Central Government or the State Bank to proceed against a person accused of an offence under the Act either before a Sessions Court or a Magistrate under section 23, or before an Adjudicating Officer under section 23-A or before a Special Tribunal under section 23-B. Different procedures for trial of offence before different fora and different extent of punishments which , could be imposed were laid down. Muhammad Munir, C.J, speaking for the Full Court held that, in the absence of any statutory guidelines to make a classification of persons required to be tried before a particular forum the provisions conferring such arbitrarily discretion to apply any of the three modes of trial upon any person without any classification was ex facie discriminatory and violative of Article 5(1) of the 1956 Constitution (which is in pari materia with Article 25 of the 1973 Constitution).
14. In the subsequent case of Inam-ur-Rehman Alvi v. Federation of Pakistan (1992 SCM R 563) the provisions of M.L.R. 104 stipulated that any person having any claim against a person repatriating foreign exchange could seek redress through an authorized officer was called in question. Their Lordships speaking through Zafar Hussain Mirza, J., held that, a provision denying the right to defend through judicial procedure in a Court to a person having repatriated foreign exchange against any claim which may have no nexus with the repatriation of foreign exchange could not satisfy the test of reasonable classification and therefore, the provision was hit by Article 25 of the Constitution.
15. In support of his contention Mr. Khalid Anwar also referred to the following observations of Ajmal Mian, CJ, in the recent case of Liaqat Hussain v. Federation of Pakistan (PLD 1999 SC 504) decided by nine members Bench of the Honourable Supreme Court: "As regards the violation of Article 25 of the Constitution, it may be observed that the contention of the learned counsel for the petitioners was that the impugned Ordinance contravenes the above Article, inasmuch as it gives discretion to the Federal Government to pick and choose cases which may be referred to the Military Courts. On the other hand, the learned Attorney-General has urged that the offences triable under the impugned Ordinance are those which are mentioned in section 6 and the Schedule to the impugned Ordinance and that this Court has already held in more than one case that different laws can be enacted for different sexes, persons of different age group, persons having different financial standards and persons accused of heinous crimes. No doubt, that this Court inter alia in the case of I.A. Sherwani v. Government of Pakistan (1991 SCM R. 1041) has held so, which has been reiterated in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) (supra). However, in the present case the basic question is as'to the vires of the impugned Ordinance on the ground of providing parallel judicial system, but at the same time the impugned Ordinance is also violative of Article 25 of the Constitution, inasmuch as it gives discretion to the Federal Government under section 3 thereof to pick and choose cases for referring to the Military Courts as has been held by this Court in the case of Brig. (Recd.) F.B. Ali (supra). There is no mandatory provision providing that all the offences mentioned in section 6 and the Schedule shall be triable by the Military Courts convened under section 3 of the impugned Ordinance."
16. Learned counsel candidly conceded that different laws could be enacted for different classes of people but it was well-settled that the classification must be rational and bear a reasonable nexus with the object of the legislation. He argued tnat possibly Ehtesab Act, 1997 could not be questioned on this score as its provisions were made applicable only to Government servants in BS-18 or above. The Ordinance in question however, did not create any classification or- lay down any guidelines but only enables the Chairman, N.A.B. To exercise absolute arbitrary discretion in filing a reference against any person triable under the 1958 Act or to apply for transfer of a pending case from a Special Court under to an Accountability Court. Conferment of such discretion according to Mr. Khalid Anwar was plainly violative of Article 25 of the Constitution in view of the abovementioned weighty pronouncements of the Honourable Supreme Court.
17. Alternatively learned counsel argued that being conscious of the pronouncement of the Honourable Supreme Court -holding several provisions of the Ordinance as valid in the case of Afsandyar. Wali v. Federation of Pakistan (PLD 2001 SC 607) as well as the well settled principle that the Courts should make every effort to save rather than destroy Statute, it might be necessary to read down clauses (i) to' (v) of section 9(a) of the Ordinance so as to conform to the requirements of the Constitution. Illustrating his view-point learned counsel argued that clause (ix) of section 9(a) was in his opinion perfectly Constitutional inasmuch it did not bring every person accused of the offence of cheating under section 415, P.P.C. Or one accused of criminal breach of trust under section 405, but only such persons who had dishonestly induced members of the public at a large scale to deliver money or property or committed breach of trust with regard to money or property entrusted to him by members of public at a large scale. He contended that with respect to this provision the discretion of Chairman, N.A.B. Was restricted in the sense that he had to make a conscious application of - mind as to large scale measure of cheating or breach of trust. With respect to the other provisions. No such guidelines were laid down and a reference to the Accountability Court could be presented even in the case of a bribe of an amount of a few hundred rupees received by a small public functionary or a minor case of tax evasion by a citizen or a slight misuse of authority by an officer of a corporate entity.
18. Mr. Naveed Rasool learned Prosecutor-General Accountability Court primarily rested his case on the pronouncement of the Honourable Supreme Court in Afsandyar Wali's case. As regards the question of denial of procedural rights of an accused that the petitioners have not alleged that the Accountability Court in any of the cases has deviated from the rights available to an accused under the Cr.P.C. In any event he pointed out that the petitioners need not entertain any apprehensions on this account inasmuch as the Honourable Supreme Court has clearly held in para 242 of the above judgment that section 17(c) of he Ordinance does not imply that an Accountability Court can follow any arbitrary procedure but must be construed to mean that it can only follow such procedure which is just and proper for doing justice between the parties and is not in violation of any .Law. It was further held in para. 245 that any deviation from the normal procedure must be based on sound judicial principles and by assigning valid reasons. Therefore, Mr. Khalid Anwar's contention on the question of procedural protections cannot be accepted.
19. With reference to the higher penalty stipulated under the N.A.B. Ordinance, Mr. Anwar Tariq learned Deputy Prosecutor-General conceded that in case an offence was punishable under any law and had been committed prior to the promulgation of the Ordinance, the accused could not be subjected to the enhanced penalty under the Ordinance because of the protection of Article 13 of the Constitution. Indeed learned counsel is correct to the above extent and it may be recalled that the Honourable Supreme Court had only held that such protection was not available in respect of the offence of wilful default which was a continuing offence but was not punishable under any earlier law. Nevertheless, this contention in our humble view is not fully responsive to Mr. Khalid Anwar's objection. It cannot be overlooked that though section 3 of the Ordinance purports to override any other prior law the Legislature in its wisdom, did not repeal sections 161 to 165, P.P.C., or the provisions of the Prevention of Corruption Act. Section 16-A itself indicates that even after the promulgation of this Ordinance, a scheduled offence may continue to remain triable before any other Court or Tribunal. This would obviously mean that with respect to offences committed after the promulgation of the Ordinance it would be in the absolute discretion of the Executive to prosecute an accused, to refer a matter to an Accountability Court and thereby subject him to severer penalty than that he would have incurred upon trial under the 1958 Act or any other law.
Such dispensation according to Mr. Khalid Anwar renders the Ordinance discriminatory.
20. Mr. Naveed Rasool learned Prosecutor-General, vehemently contended that the provisions of the Ordinance were exhaustively examined by the Honourable Supreme Court in Afsandyar Wali's case and directions to amend some provisions which were found to be ultra vires the Constitution were given which were duly carried out. As such according to him there was no room for questioning its provisions before this Court. We are afraid it is not possible to subscribe to such a broad proposition. We have noticed that in none of the 23 grounds examined by their Lordships the validity of different clauses in section 9(a) on the touchstone of Article 25 was involved. On the other hand paras. 268, 273, 275 and 276 appear to show that only the unfettered discretion of the Chairman, N.A.B. In refusing to accept a settlement between a creditor and a debtor and to refer a case to an Accountability Court under section 18(g) were called in question. As regards the first, their Lordships held that the powers under section 25-A conferring unfettered discretion were not sustainable and directed that suitable amendments be made in statutory provisions. As regards the second question, their Lordships observed that they were akin to the normal powers of the police under section 170, Cr.P.C. And therefore unexceptionable. The question of such powers being discriminatory on the touchstone of Article 25 as interpreted in Waris Meah's case was apparently neither raised nor decided.
21. Learned Prosecutor-General further argued that Article 25 did not envisage that all laws must be applied equally upon every person but permitted reasonable classification. He relied upon two recent pronouncements of the Honourable Supreme Court in Atiya Bibi Khan v. Federation of Pakistan (2001 SCM R 1161) and Safdar v. Government of Sindh (2001 SCM R 1231). Indeed there could be no cavil with this proposition which was conceded by Mr. Khalid Anwar himself. The difficulty however, appears to be that the Ordinance does not appear to make any classification whatsoever in the above context. We specifically asked him as to whether in his opinion the case of a clerk accepting a bribe of a few hundred rupees could be referred to the Accountability Court under section 18(g) of the Ordinance. He stated that he would not go to such extent but was unable to draw a line between categories of cases which could be so referred and those which could not.
22. M:. Anwar Tariq learned Deputy Prosecutor-General however, argued that a statue could not be held to be discriminatory if the power to choose a person for different kind of treatment was exercisable by responsible functionary who was required to make a conscious application of mind before taking a decision. In this context he relied upon the observations of Cornelius, J., in State v.
Dosso and another (PLD 1958 SC (Pak.) 533), where his Lordship held that Frontier Crimes Regulation could not be held to be discriminatory when the power to refer a case for trial by a Jirga was to be exercised by a responsible functionary of the level of Deputy Commissioner who was expected to apply himself to. All facts and circumstances before making the reference and his choice could not he considered arbitrary. Mr. Khalid Anwar pointed out that in the subsequent case of Azizullah Memon v. Province of Balochistan (PLD 1993 SC 361) Saleem Akhtar, J., had pointed out the opinion of Cornelius, J., was not subscribed to by the other learned Judges and proceeded to take a contrary view. In view of this subsequent pronouncement of the Honourable Supreme Court.
We are unable to accept Mr. Anwar Tariq's contention.
23. Be that as it may, we are satisfied that clauses (i) io iv) of section 9(a) and section 16-A of the Ordinance, if construed according to their plain language cannot withstand the test of constitutionality in terms of the law laid down by the Honourable Supreme Court in Waris Meah's case and subsequently followed in a number of other cases. Indeed an absolute discretion without any meaningful guidelines enabling the executive to pick and choose some persons for trial under the Ordinance and leaving others to be tried by other fora would render such provisions repugnant to Article 25 of the Constitution. At the same time, however. The principle that all efforts need to be made by Courts in its interpretative process to save rather than destroy Statute cannot be over: looked. Moreover, striking down the above provision of the Ordinance as ultra vires the Constitution would practically amount to robbing it of its main contents inasmuch as Accountability Courts would have jurisdiction only to try those offences which were not punishable under any earlier law.
This course might amount to doing violence to the intention of the Legislature which has been acknowledged by the Honourable Supreme Court as to deal with high level corruption in society. In any event once the Honourable Supreme Court after an elaborate examination of several provisions of the Ordinance has held a large number of its provisions to be intra vires the Constitution and directed amendments in others, we might be deviating from our obligations under Article 190 of the Constitution to act in aid of the Supreme Court by striking down the main provisions of the Ordinance.
24. There is yet another reason for declining to strike down the impugned provisions of the N.A.B.
Ordinance. It may be observed that the Ordinance does not merely provide for a new mode of trial and 'punishment for offences under the pre-existing laws but also creates certain new offences.
The provisions creating these new offences have not been questioned before us nor grounds have been raised challenging them on the anvil of Article 25 of the Constitution as interpreted in Waris Meah's case. It would indeed be an anomaly that persons accused of such offences which might be of a equal or perhaps lesser magnitude should be subjected to a severer mode of trial and punishment as compared to those indulging in blatant corruption which was punishable even prior to the enforcement of this Ordinance. For instance it would be odd to record a finding that a person failing to exercise his authority to prevent the grant of an undue benefit to any person could be tried under the N.A.B. Ordinance in terms of clause (vi) to section 9(a) should be tried under the N.A.B. Ordinance whereas one who by corrupt or dishonest means acquires property for himself could only be tried under the pre-existing laws.
25. This brings us to the alternate plea of Mr. Khalid Anwar that the offending provisions may be so read down as to be consistent with Article 25 of the Constitution. Indeed the recent trend of case- law shows that the principle of deviating from the literal construction or reading down the provisions of a Statute has been resorted to by Courts when they find a literal construction to affect the constitutional validity of the law. This concept has been upheld by the Honourable Supreme Court in the famous case of Illahi Cotton Mills v. Federation of Pakistan (PLD 1997 SC 582) where, in his leading judgment, Ajmal Mian, J., held as follows:-- "That the theory of reading down is a rule of interpretation which is resorted' to by the Courts when they find a provision read literally seems to offend a fundamental right or falls outside the competence of the particular Legislature."
26. Mr. Khalid Anwar argued that even in the earlier case this principle, though without using the words "reading down" was applied by Shafi-ur-Rehman, J., in Amir Khatoon v. Faiz Ahmed and others (PLD 1991 SC 787). In this case the question of interpretation of section 340(2) as amended by the Criminal Procedure Code (Amendment) Ordinance, 1985, stipulating that a person accused of an offence before a criminal Court shall give evidence on oath in disproof of the charges or allegations made against him. Recognising that the plain language would render the provision unconstitutional for being repugnant to Article 13 of the Constitution requiring that no person accused Of an offence could be compelled to be a witness against himself, Shafi-ur-Rehman, J., speaking for the Bench held that the duty of the Court was only confined to informing the accused that he could, if he so volunteers, appear as a witness.
27. We are tempted to refer to a remarkable pronouncement of the Supreme Court of India in Sunil Batra v. Delhi Administration (AIR 1978 SC 1675). In this case several provisions of the Prisons Act and the Punjab Jail Manual were brought to the notice of the Court which prima facie offended certain fundamental rights guaranteed by the Constitution as interpreted in the light of contemporary human rights consciousness. Their Lordships declined to strike down the provisions in question but decided to read them down in such manner that their validity on the touchstone of the Constitution could be upheld. Kirshana Iyer, J., in a remarkable pronouncement observed: "Constitutional deference to the Legislature and the democratic assumption that people's representatives express the wisdom of the community lead Courts into interpretation of Statutes which preserves and sustains the validity of the provision. That is to say Courts must, with intelligent imagination, inform themselves of functional flexibility, explore the meaning or meanings to adopt that construction which humanly constitutionalizes the statute in question." Through this process the Court proceeded to hold that under section 30(2) not every person under sentence of death but only those who are required to be segregated from others for security reasons could be so confined. Similarly it was held that the right of a person to appeal to a judicial forum against a jail punishment must be read into the relevant rule though on literal interpretation no such right could be spelt out.
28. In the instant case since we are satisfied that a literal construction of clauses (i) to (v) cannot stand the test of constitutionality and thus they have to be read down to the extent that a Constitutionally permissible classification is established. Mr. Khalid Anwar pointed out that clause
(ix) of section 9(a) which defines the offences of cheating and criminal breach of trust with respect to the properties of the public at large scale to be triable under the Ordinance created a perfectly reasonable classification and its constitutionality could not be questioned. Learned Prosecutor- General himself conceded that each and every instance of corruption of a small functionary of the state or acceptance of a small amount of illegal gratification might not be triable under the Ordinance. Even otherwise the observations of the Honourable Supreme Court in Asfandyar Ali's case indicate that the Legislation was intended to deal with large scale corruption of public officers and others that they had indulged in during the recent past. We can also take notice of the fact that in most cases references have been filed in respect of white-collar crime of a large magnitude. Moreover it must be kept in view that one of the objects of the Ordinance which distinguishes it from previous laws is return of assets acquired through corrupt means, corruption or corrupt practices through the process stipulated in sections 25. 25-A and 26. Obviously commencement of proceedings under the Ordinance could be justified upon rationale hypothesis if it is found that it would be in the national interest to allow the accused to secure a pardon if the amount likely to be recovered is fairly substantial.
29. At the same time an important feature of this Ordinance which distinguishes if from all previous laws is that it provides for recovery of assets acquired through corruption or misuse of power as well outstanding dues of financial institution and Government agencies through the mechanism of pre-bargaining. The creation of the offence of "wilful default" has been upheld by the Honourable Supreme Court. However, an Accountability Court can take cognizance of an offence only upon a reference being made by the Chairman, N.A.B. Or an officer duly authorized by him. These provisions tend to show that only when the amount involved is substantial and it is considered worthwhile to employ the coercive methods of recovery that a reference under the Ordinance would be justifiable.
30. For the foregoing reasons we are inclined to hold that the qualifications laid down in clause (ix) will also have to be 'read in the other clauses of section 9(a). In other words the discretion of the Chairman, N.A.B. Or an officer authorized by him to file a reference before the Accountability Court is not absolute or arbitrary. Such reference could be filed only when the Chairman or the Authorized Officer is satisfied that the amount involved is of large magnitude and resort to the facility of pre- bargaining to the accused would be in the national interest. In the absence of such satisfaction a case could only be triable under the ordinary law.
31. As regards the new offences created by the Ordinance we are constrained to observe that strictly speaking, it is not possible for us to declare them ultra vires the Constitution. Nevertheless, it is expected that the Chairman, N.A.B. Will keep in view the spirit of the law in accordance with the guidelines referred to in para. 29 and file references only when the amounts involved are large enough and it is worthwhile in the public interest and same mens rea on the part of the defaulter is involved.
32. Since filing of a reference is essentially the function of the Chairman, N.A.B (though it may be amenable to judicial review in proper cases) and since he in view of the experience of the Institution is in a better position to determine whether the amount involved in these cases could be classified as large or otherwise. We would remand these matters to the Chairman, N.A.B. To re- examine these cases from the above stand-point. In case he is satisfied that the amounts involved are large enough to justify proceedings under the Ordinance, they may continue before the Accountability Courts. In case he is not so satisfied the cases may be transferred to the appropriate Courts and such Courts may proceed with them from the stage they had reached without recalling witnesses. A definite decision is expected to be taken within one month from today and till such time the interim order passed earlier will continue. The petitions stand disposed of in the above terms.