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Petitioner: Mrs. BENAZIR BHUTTO VS Respondent: THE FEDERATION OF PAKISTAN and others
Court Name: Sindh High Court Judge(s): Saeeduzzaman Siddiqui, Imam Ali G. Kazi Title: Mrs. BENAZIR BHUTTO vs THE FEDERATION OF PAKISTAN and others Case No.: Constitutional Petition No,D-1177 of 1990 Date of Judgment:1991-07-14 Reported As: 1991 MLD 2622 Result: Petition dismissed
JUDGMENT
JUDGMENT ' SAEEDUZZAMAN SIDDIQUI, C.J.---The above petition under Article 199 of the Constitution is filed by Mrs. Benazir Bhutto, the former Prime Minister of Pakistan to challenge the validity of the Parliament and Provincial Assemblies (Disqualification for Membership) Order, 1977 (P.O. 17 of 1977) and the Rules 3, 6, 7, 8, 9 and 10 of the Parliament and Provincial Assemblies (Disqualification for Membership) Rules, 1990. For the sake of convenience we will hereinafter refer the P.O. Order 17 as the 'Order' and the above-referred Rules as the 'Rules' only. The petitioner has also sought declaration that the two references filed against her by the President of Pakistan which are presently pending before the Special Court at Karachi and Lahore are discriminatory, arbitrary and incompetent. ' We have heard Mr. Yahya Bukhtiar, learned counsel for the petitioner and Mr. Aziz A. Munshi, learned Attorney-General for the Federation of Pakistan. Mr. Yahya Bukhtiar learned counsel for the petitioner has advanced the following contentions in support of the petition:-- (1) That the power given to the President to file reference against a person under the Order is arbitrary and capable of being exercised discriminately as no principle or reasonable basis is laid down under the law for exercise of this power by the President. (2) That the Order is violative of Article 63 of the Constitution of Islamic Republic of Pakistan inasmuch as, under Article 5 of the Order if a person is found guilty he stands disqualified from being elected or chosen as a Member of Parliament or a Provincial Assembly for a period of seven years from the date of the order of the Special Court whereas under Article 63 of the Constitution in such an eventuality the disqualification prescribed is only for five years.
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(3) That the Order is in conflict with Article 248 of the Constitution inasmuch as Article 248 affords complete immunity to the acts done by the Prime Minister in discharge of his official functions whereas such actions of Prime Minister are made answerable before a Special Court upon a reference made by the President to the Special Court under the Order and in the event of an adverse order by the Special Court the Prime Minister stands disqualified from being elected or chosen as a Member of the Parliament or a Provincial Assembly. (4) That the reference against the petitioner is incompetent as the provisions of the Order apply only to the pre-election stage and do not apply to a person who has been elected to the Parliament or a Provincial Assembly. (5) That in view of Article 63(2) of the Constitution an elected person can only be disqualified by the Chief Election Commissioner on a reference made to him by the Speaker or the Chairman in accordance with the provisions of that Article and as such the References filed against the petitioner for disqualifying her under P.O. Order are invalid and incompetent. (6) That the power conferred on the Special Court under Article 6(4) of the Order to refuse to examine any witness or summon any document and to conduct its proceedings and to regulate the same in such manner as the Special Court considers fit and proper amounts to conferring an unlimited and uncontrolled power on the Special Court which is violative of all norms of justice and propriety. (7) That the definition of the term 'misconduct' as given in the Order is absolutely vague and specially the expression used in the definition 'any other abuse of whatsoever kind of power or position' in the definition clause amounts to leaving to the discretion of the Special Court to determine what is or what is not misconduct. Conferment of such power on the Court is violative of the legislative power. (8) That the References against the petitioner are violative of the provisions of Article 25 of the Constitution as the action against the petitioner is based on pick and choose. The references against the petitioner are totally one-sided as several other persons placed in the same category and in similar circumstances against whom there were definite illegations of corruption and abuse of powers have not been proceeded against. (9) That Rule 3 of the Rules is violative of the principles of natural justice and the provisions of the Order as it provides one-sided opportunity to the Referring Authority to represent through a representative before the Special Court at the stage of scrutiny of the References while no such opportunity is provided to the person against whom the reference is filed. (10) That Rule 6 of the Rules is beyond the scope of Order as it has taken away the valuable right of an accused for a de novo trial in the event of reconstitution of the Special Court. (11) That the restrictions contained in Rule 7 of the Rules on the power of the Special Court not to grant adjournment during the conduct of enquiry for a period exceeding two days, is in conflict with Article 6(4) of the Order. (12) That Rule 8 of the Rules in so far it invests the Court with power to prohibit publication of a document is beyond the scope of Article 6(5) of the Order which prescribes that the proceedings before the Special Court will be open to public. (13) That the provision of Rule 9 in so far it provides that where the respondent fails or refuses to show cause or answer any question or to explain any fact appearing against him in regard to which he is shown or in the opinion of the Special Court can reasonably be believed to have personal knowledge, the Special Court shall be entitled to draw an adverse presumption against him is violative of Article 13 of the Constitution. (14) That the provision of Rule 9(1) which invests the Special Court with discretion to determine the manner in which it will record evidence in a case before it, is violative of Article 9 of the Order which
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clearly states that the provisions of the Order are in addition to and not in derogation of any other law. (15) That Rule 10 of the Rules which provides for ex parte proceedings against the respondent in a case before the Special Court is in conflict with the scheme of the Order which makes no such provision. (16) That the Care-taker Government appointed by the President after dissolution of Assembly had no authority to advise the President to file the present References as such function was out of the scope and authority of the Care-taker Prime Minister. (17) That on the date of filing of references the President has the choice of filing references either under Act 5 of 1977 or under the Order. The procedure available under Act 5 of 1977, which was passed by a competent legislature, being more advantageous to the respondent as compared to the procedure prescribed under the Order the making of reference under the Order violated the principles contained under Article 4 of the Constitution; and (18) That the allegation of misconduct alleged against the petitioner could be tried in Courts established under the ordinary law of the land and as such prosecution of references against the petitioner before a Special Court appointed by the President violated the safeguards provided to the petitioner under Articles 4, 7, 9 and 25 of the Constitution. ' In reply to the above submissions of the learned counsel for the petitioner the learned Attorney- General contended that there is no question of discrimination or discriminatory action against the petitioner as the petitioner belongs to a class of specified persons mentioned in clause 4(2) of the Order. It is contended by the learned Attorney-General that the persons mentioned in clause 4(2) of the Order are a class in themselves and as such their classification in a category is reasonable and in so far the persons falling in the specified category are treated equally there cannot be any possible grievance of discriminatory action. Regarding the objection of the petitioner in respect of validity of the P.O. 17 with reference to Articles 63 and 25 of the Constitution, it is contended by the learned Attorney-General that there is no conflict between the provisions of the Order and Articles 63 and 25 of the Constitution. It is urged by the learned Attorney-General that Article 63(1)(p) clearly saves the provisions of the Order. Similarly, it is contended by the learned Attorney-General that there is no question of any discrimination against the petitioner as the allegation of discrimination is to be judged with reference to other persons falling in the specified category and placed in similar circumstances. ' With regard to the protection afforded to the President, Governor, Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister with regard to their exercise of power and performance of functions of their respective offices or for any act done or purported to be done in the exercise of their powers and performances of their functions, the learned Attorney- General contended that the protection is only available to the lawful acts of the holder of such public office and not to the acts which were either mala fide or in abuse of the powers available to them, as holder of such public office. Regarding the definition of word "misconduct" in the Order the learned Attorney-General contended that the misconduct as defined in the Order is exhaustive and does not suffer from any vagueness. Similarly, the learned Attorney-General contended that various provisions of the Order and the Rules pointed out by the petitioner's counsel as violative of legislative norms of justice is not correct as these provisions did not offend against any settled principle of either natural justice or legislative norm. ' We have heard the learned counsel for the petitioner as well as the learned Attorney-General at great length and our conclusions on the points raised in the petition are as follows:-- ' We will first take up contentions Nos.1, 8 and 18 of the learned counsel for the -petitioner as they are inter-linked and are the main grounds of attack to the constitutionality of the Order. It is contended by the learned counsel for the petitioner that the allegations of 'misconduct' levelled
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against the petitioner are triable before an ordinary Court and as such trial of these allegations under the provisions of the Order which vests the President with arbitrary and unbridled power to pick and choose a person for trial before a Special Court, nominated by him, is discriminatory and violative of the provisions of Article 25 of the Constitution, which granted equal protection of law to all the citizens. It is also contended by the learned counsel that by making references against the petitioner and her partymen only, they have been singled out and discriminated against, as several other persons belonging to the class of the petitioner have been left out completely and no references were filed against them, although there were definite and serious allegations of 'misconduct' against them as well. The above argument of the learned counsel can be bifurcated in two parts. The first limb of the argument is that the Order is ex facie discriminatory and violative of Article 25 of the Constitution and as such is not a valid piece of legislation. The second limb of argument relates to the application of the provisions of the Order in relation to the petitioner in a discriminatory manner. In support of the first limb of his argument, the learned counsel referred to the cases of Waris Meah v. State PLD 1957 SC (Pak.) 157, Khan Abdul Akbar Khan v. Deputy Commissioner, Peshawar PLD 1957 Pesh. 100, Malik Totti Khan v. District Magistrate, Sibi and Ziarat PLD 1957 Quetta 1, Malik Behram Khan v. State PLD 1957 Kar. 709 and Muhammad Akbar v. Political Agent, Quetta PLD 1958 Quetta 12. ' In Waris Meah's case the validity of sections 22-A, 23-A and 23-B inserted in the Foreign Exchange Regulation Act, 1947 by the amending Act XXXII of 1956, which gave power to Central Government or the State Bank of Pakistan to determine whether an offender under the Act was to be tried under the ordinary law (Section 23 of the Act) or by an Adjudicating Officer (Section 23-A) or by a tribunal (Section 23-B), was challenged on grounds of excessive delegation of the legislative authority, as well as being opposed to Article 5 of the Constitution of 1956 which guaranteed equal protection of law to all the citizens. The Court while repelling the contention relating to excessive delegation of legislative authority, accepted the other argument that sections 22-A, 23-A and 23-B are discriminatory and opposed to the provisions of Constitution which provided for equal protection of law to all the citizens. The Court upon an ultimate analysis of sections 22-A, 23-A and 23-B of the Act reached the conclusion that the discretion given to Central Government or the State Bank of Pakistan under the above provisions of law, to prosecute an offender either under the ordinary law, or before an adjudicating officer or by a Tribunal, the three different punishing authorities, each with different power and procedure and entailing punishment of unequal nature and description, offended against Article 5 of the Constitution of 1956 which guaranteed equal protection of law to the subject. ' In Khan Abdul Akbar Khan's case a full Bench of West Pakistan High Court while examining the provisions of Frontier Crimes Regulations, 1901, reached the conclusion that sections 1(4) and 8 which applied only to Pathans and Balochis offended against Article 5 of the Constitution which guaranteed equal protection of law to all the citizens. To the same effect are the decisions in the cases of Behram Khan, Malik Tooti Khan and Muhammad Akbar. ' The ratio decidendi in Waris Meah's case is, that if a statute vested a statutory authority with the discretion and choice to prosecute an offender before three different available forums, each one of such forums having different procedure and power and entailing punishment of unequal nature and description and there being no guideline available in the statute to control such discretion, such provision is ex facie discriminatory. Similarly, the ratio decidendi in the cases of Khan Abdul Akbar Khan; Malik Tooti, Malik Behram Khan is that application and extension of the provision of a statute to a particular group of persons classified on the basis of race or tribe, which deprived such person to have recourse to normal Courts of law for settlement of their disputes, is ex facie discriminatory and against the Article of the Constitution which guaranteed equal protection of law to all the citizens.
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' In the light of the above-stated principles we will now examine whether the provisions of the Order are ex facie discriminatory and against the provisions of Article 25 of the Constitution. Article 3 of the Order provides for establishment of Special Courts. It further provides that the Special Court shall consist of a person who is Judge of the High Court and it shall sit at such places as the President may by notification in the official Gazette specify in this behalf. Article 4 of the Order vests the Special Court with power to enquire into and decide cases relating to the 'misconduct' of a person specified in the Order upon a reference being filed before it by the President or by the Governor if so required by the President. What will constitute 'misconduct', is defined in Article 2 (a) of the Order. Article 5 of the Order deals with scope of enquiry before the Special Court and consequences flowing from the verdict of guilty by the Court against the person facing trial before it. Article 6 deals with the procedure to be followed by the Special Court in conduct of cases before it. Article 7 provides for filing of appeal against the order of Special Court before the Supreme Court. Article 10 of the Order protects a person against proceedings under the Order in respect of acts which have been done or intended to be done in good faith in pursuance of or in exercise of powers vested or in good faith believed to be vested in him at the material time by virtue of that office. After careful examination of the above provisions of the Order we are of the view that the legislature by defining 'misconduct' in Article 2(a) of the Order created a new class of cases which were exclusively triable by a Special Court in the manner provided in the Order. It is significant that although proceedings before the Special Court may result in the disqualification of a person from being elected or chosen as a member of Parliament or Assembly for a specified period, which may give it a tinge of criminal proceedings, but in strict sense these proceedings could not be described as criminal proceedings since in matters of receiving of evidence, summoning of witnesses, discovery and production of documents, issuance of commission etc. The Special Court has to follow the procedure prescribed in respect of suits for a Civil Court under the Code of Civil Procedure. We are, accordingly, of the view that the cases filed before the Special Court under the Order belonged to a special category and could not be tried before an ordinary Criminal Court. The learned counsel for the petitioner was unable to point out any provisions in any law for the time being in force, which made the offence of `misconduct' as defined in the Order, triable before an ordinary Criminal Court. The learned counsel was also unable to point out any provisions of law which prescribed any punishment for the offence of 'misconduct' as defined in the Order. In these circumstances the ratio decidendi of Waris Meah's case is not at all attracted in the present case as the authority referring the case to Special Court under the Order had no choice to send the case to any other forum. Even otherwise, the trial of an ordinary offence before a tribunal of exclusie jurisdiction under a different procedure cannot be objected to on the ground of unconstitutionality of the legislation, if the offenders can reasonably be classified as a class different from the offenders under the ordinary law. Our above conclusion finds support from the following observations of Supreme Court in Waris Meah's case, relied by the petitioner's counsel, which appears at page 169 of the report as follows:- "In the present case, if the Act had merely set up a Tribunal of exclusive jurisdiction, though with a procedure different from that prescribed by the Criminal Procedure Code for the trial of ordinary offences, no objection could successfully have been taken to the constitutionally of the Act because the offenders against the Foreign Exchange Regulation could validly and reasonably be considered to be a class different from offenders under the ordinary law. Not, could any objection .On the strength of Article 5 of the Constitution succeed if the Act itself had indicated the classes of cases which were to be tried by the ordinary Courts, the Tribunal and the Adjudication Officers respectively. Even if the Act itself made no such classification but had required the Central Government to make it, the discretion so vested in the Central Government would have been
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constitutional, provided the classification made by the Government proceeded on a rational and reasonable basis and was not arbitrary, capricious or whimsical." The other grievance of the petitioner is that she has been singled out on the basis of the classification of persons as given in section 4 of the Order, which also amounted to discrimination and violation of the principle of equal protection of law to all citizens enshrined in Article 25 of the Constitution. The scope of the clause guaranteeing equal protection of law to the citizens was considered by the Supreme Court of Pakistan in the case of Jibendra Kishore v. Province of East Pakistan PLD 1957 SC 9 and following observations were made by the Court at page 38 of the report:-- "Whatever also the expression 'equal protection of law' may mean, it certainly does not mean equality of operation of legislation upon all citizens of the State. The expression has been borrowed from the Fourteenth Amendment to the Constitution of the United States which was intended to secure to the emancipated negroes equal rights to the enjoyment of life, liberty and property. Though in the United States the guarantee of equal protection of the laws has been invoked upon more occasions than any other constitutional guarantee, with the possible exception of the due process of law guarantee, also contained in the Fourteenth Amendment, no rule has yet been formulated by the Supreme Court as to what may be regarded as a denial of the 'equal protection of the laws' that will embrace every case and the application of the principle has always depended on the facts of each case as it came before the Court. But notwithstanding the disinclination of the Court to give an all inclusive definition of the expression, some broad propositions as to its meaning have been enunciated. One of these propositions is that equal protection of the laws means that no person or class of persons shall be denied the same Protection of the laws which is enjoyed by other persons or other classes in like circumstances, in their lives, liberty and property and in pursuit of happiness. Another generalization more frequently stated is that the guarantee of equal protection of the laws requires that all persons shall be treated alike under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. In the application of these principles, however, it has always been recognized that classification of persons or things is in no way repugnant to the equality doctrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation. It is not for the Courts in such cases, it is said; to demand from the legislature a scientific accuracy in the classification adopted. If the classification is relevant to the object of the Act it must be upheld unless the relevancy is too remote or fanciful. A classification that proceeds, on irrelevant consideration, such as differences in race, colour or religion will certainly be rejected by the Courts. Applying these tests to the present case, it cannot but be held that if in consequence of abolishing the system of private rent for agricultural land, it also became necessary to make some provision for the outgoing landlords, the classification of the landlords on the basis of their net income at the time of their expropriation was a necessary and not an unreasonable classification." ' The law laid down in Jabindra Kashore's case was followed by the Supreme Court in the case of F.B. Ali v. State PLD 1975 SC 506 and following observations were made by the Court at pages 528 to 530 of the report of the case:-- "Equal protection of the laws does not mean that every citizen, no matter what his condition, must be treated in the same manner. The phrase `equal protection' of the laws means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other class of persons in like circumstances in respect of their life, liberty, property or pursuits of happiness. This only means that persons, similarly situated or in similar circumstances, will be treated in the same manner. Besides this, all law implies classification, for, when it applies to a set of circumstances, it creates thereby a class and equal protection means that this classification
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should be reasonable. To justify the validity of a classification, it must be shown that it is based on reasonable distinctions or that it is on reasonable basis and rests on a real or substantial difference of distinction. 'Thus, different laws can validly be made for different sexes, for persons in different age groups, e.g. Minors or very old people; different taxes may be levied from different classes of persons on the basis of their ability to pay. Similarly compensation for properties acquired may be paid at different rates to different categories of owners. Such differentiation may also be made on the basis of occupations or privileges or the special needs of a particular locality or a particular community. Indeed, the bulk of the special laws made to meet special situations come within this category. Thus, in the field of criminal justice, a classification may well be made on the basis of the heinousness of the crime committed or the necessity of preventing certain anti-…
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