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Petitioner: RAUF BAKHSH KADRI VS Respondent: THE STATE and others
Court Name: Sindh High Court Judge(s): Zia Pervez, Sabihuddin Ahmed Title: RAUF BAKHSH KADRI vs THE STATE and others Case No.: Constitutional Petition No,386, 373, 1086 and 704 of 2002 Date of Judgment:2002-12-11 Reported As: 2003 MLD 777 Result: Order accordingly
JUDGMENT
JUDGMENT ' 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.
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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
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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
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(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
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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
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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
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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…
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