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Petitioner: RIFFAT ASKARI VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Ihsan-ul-Haq Chaudhry, Abdul Hafeez Cheema, Muhammad Aqil Mirza Title: RIFFAT ASKARI vs THE STATE Case No.: Criminal Miscellaneous No,2-M of 1997 Date of Judgment:1997-02-17 Reported As: PLD 1997 Lahore 285 Result: Petition dismissed
Judgment ORDER ' This is the application under section 265-K, Cr.P.C., moved by Syed Riffat Askari-accused in E.R. No,1/96. The relevant facts are that the accused Riffat Askary was posted as Chairman, O.G.D.C., in the year 1994 when the quotations were invited for purchasing 8 sets Tubing Head of X-Mass Trees for Ouch Oil Field. The tenders were opened on 23-1-1995. The firms of the other accused Zia Akbar Ansari and 2 others were cleared in the pre-qualification. Thereafter their tenders were opened, It was pointed out that the tender of M/s.ABB Vecto Grey Pvt. Limited Singapore was the lowest, however, Mr. Ainuddin Siddiqui, the co-accused of Riffat Askari suggested that the tender should be divided equally between the firms of Zia Akbar Ansari-accused and that of M/s. ABB Vecto Grey Singapore. Accordingly, the petitioner granted the tender to the said firms. Subsequently, on 18-11- 1996 case F.I.R., No,23/96 was registered against the accused under section 409/420/468/471/109, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947. The investigation was conducted by Crime Circle F.I.A., Rawalpindi. The Investigating Agency reported that the accused/public servants are guilty of corruption and corrupt practices with connivance of M/s. ADOS Pakistan Pvt. Limited and they have caused substantial financial loss to the exchequer. ' According to one of the witnesses the OGDC had to pay $ 1,93,000 more than the amount payable had the bid of M/s. ABB Vecto Grey been accepted as a whole and the order was not divided equally. The Investigating Agency submitted the report under section 173, Cr.P.C., under the aforementioned provisions of law. In the meanwhile, Ehtesab Ordinance, 1996 (hereinafter to be referred as Ehtesab Ordinance) came into force on 18-11-1996 and the matter was referred to the learned Chief Ehtesab Commissioner, who sent the reference to the High Court, as a result whereof this case is under trial before this Bench.
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2. The charge against the accused was framed on 21-1-1997 thereafter he moved this application. The notice of which was issued to the learned Attorney-General as the constitutionality of the Ehtesab Ordinance, 1996 was also brought under challenge. 3. The learned counsel for the petitioner argued that the Ordinance CXI of 1996 is ultra vires Article 12 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as Constitution of 1973). It was argued that the Ehtesab Ordinance cannot be applied to acts of commission or omission in respect of criminal offences retrospectively. It was added that the case has been registered under a subsisting law and there was no choice but to try the accused in the forum provided under the law under which the case was registered. It was added that although the Ehtesab Ordinance was made applicable with effect from. 31-12-1985 as per section 1(2) yet the whole text is in the present tense. In this behalf, the learned counsel has referred to definition of word 'offence' as given in section 2(g), thereafter, he referred to sections 3, 4, 5, 6, 9 and 10 of the Ehtesab Ordinance. It was argued with reference to section 13 of the Ehtesab Ordinance that the function of learned Chief Ehtesab Commissioner was to inquire, investigate and prosecute the accused guilty of corruption and corrupt practices. It was added that in the present case the learned Chief Ehtesab Commissioner has simply forwarded the report under section 173, Cr.P.C. Submitted by the F.I.A. He has neither inquired into the matter himself nor carried investigation, therefore, this Court cannot proceed with such a reference, which is not in accordance with the provisions of Ehtesab Ordinance. The learned counsel thereafter referred to section 14 to support the above argument and sections 16, 17 and 18 and lastly to section 20 of the Ehtesab Ordinance. 4. It was argued that it was clear from the above resume of the different provisions of Ehtesab Ordinance that it is not applicable to the petitioner. The learned counsel in support of the contention referred to Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others PLD 1969 SC 599. The learned counsel thereafter referred to Amending Ordinance II of 1997 to show that accused under the Ehtesab Ordinance have been given a different treatment in respect of bails as was available to other accused under Act 1947, therefore, it is ultra vires of Article 25 of the Constitution of 1973; similarly the powers of the Court have been curtailed while fixing the amount of the bail bond. The learned counsel then referred to section 1(2) of the Cr.P.C., as to the extent of application and section 5(2) of the same Code. It was argued that through this Ordinance the departure has been made from the normal law and it is to be seen whether this is ultra vires or not? It was next argued that the arrest of the accused is with the permission of the Chief Ehtesab Commissioner, therefore, office would be treated as non- cognizable. The learned Ehtesab Commissioner neither inquired into the matter nor held any investigation, therefore, the reference is without legal authority. It was argued that reference in Article 12 of 1973 Constitution was to a law actually in force and not one deemed to be in force through which a new offence had been created. The learned counsel thereafter has referred to Article 20 of the Indian Constitution and Article 6 of the Constitution of Pakistan, 1956 and Fundamental Right 4 of Constitution of 1962. He again referred to the case of Nabi Ahmad supra to conclude on this point that innocent acts of commission and omission cannot be made offences retrospectively. 5. The learned counsel thereafter referred to section 26 of the General Clauses Act dealing with the double punishment and argued that in case of two laws covering the same offence the trial is to be under either of the two and not both. The learned counsel in this behalf has referred to Niaz Ali v. The State PLD 1961 W.P. (Lahore) 269. It was added that the kind of punishment could also not be enhanced or changed in view of provisions of Article 12 of the Constitution, 1973 and the punishment made with retrospective effect. The learned counsel in this behalf referred to Abdul Rehman v. The State 1978 SCMR 292, Bhai Khan and others v. The State PLD 1992 SC 14, Umar Hayat v. The State 1995 PCr.LJ 1060, Smt. Shanta Devi v. Custodian, Evacuee Property, M.B. Government and
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another AIR 1952 Madhya Bharat 181. As to the meaning of 'law in force' the learned counsel referred to Rao Shiv Bahadur Singh and another v. The State of Vindhya Pradesh AIR 1953 SC 394, Kanaiyalal Chandulal Monim v. Indumati T. Potdar and another AIR 1958 SC 444, M/s. West Ramnad Electric Distribution Co. Ltd. v. The State of Madras and another AIR 1962 SC 1753 and Shanti Prasad Jain v. The Director of Enforcement AIR 1962 SC 1764. It was argued that no conviction could be ordered under the Ehtesab Ordinance. In this behalf reliance was placed on G.P. Nayyar v. State AIR 1979 SC 602. 6. It was argued by Sh. Zia Ullah, Advocate that the Caretaker Prime Minister could not advise the President for promulgation of the Ehtesab Ordinance, 1996. It was argued that the purpose of the Caretaker Government was limited and it could not undertake the policy decisions. The next argument was that Ordinance could only be promulgated when the National Assembly was in existence but not in session. In this behalf, reference was made to Article 89 and argued that the President is part of the Parliament as per its definition in the Constitution of 1973 and when National Assembly stood dissolved he could not have invoked the powers of promulgation of Ordinance. It was argued that there was no vacuum and no emergency, therefore, the Ordinance was ultra vires the powers of the President. 7. The next argument was that all the civil servants from Grade-1 to 22 were to be treated alike. It is added that the cases against civil servants in Grade-20 and onward are now covered by Ehtesab Ordinance while the others are triable under the Prevention of Corruption Act, 1947 and P.P.C. It was added that the classification was not reasonable and even the rule of evidence has been changed. The learned counsel in this behalf has referred to section 8 of the Ehtesab Ordinance and submitted that while against the senior officers now there is a presumption under the Ordinance but no such presumption is available against the accused/civil servants tried by the Special Judge under the Prevention of Corruption Act, 1947. 8. It was argued that the purpose of the Chief Ehtesab Commissioner was to inquire, investigate and prosecute but nothing was done in the present case and simply the report submitted by F.I.A., under section 173, Cr.P.C., has been forwarded as reference to the High Court. It was added that the offence has been made non-cognizable by altering the provisions as to the grant bail, therefore, the reference is nullity. In this behalf, the learned counsel referred to Mst. Mumtaz Begum and 4 others v. The State 1968 PCr.LJ 97. The last argument on the legal side was that when there were two laws already in existence then the accused can be tried under either but when at the time of the commission of an offence only one law was in force while the other came into existence subsequently then the accused could only be tried under the law in force and not the law enacted subsequent to the offence. In this behalf, again reference is made to section 26 of the General Clauses Act. 9. On the factual side it was argued that merely a wrong order by a civil servant could not make him criminally liable. It was added that the awns rea' is necessary ingredient of an offence. The act or omission complained of must be dishonest and mala fide. In this behalf, reference was made to Malik Ghulam Mani, M.N.A. v. The State PLD 1966 Lahore 910. It was added that the civil servants have been treated differently in the Criminal Procedure Code in view of position occupied by them in the administration. The learned counsel in this behalf referred to section 197 of the Pakistan Criminal Procedure Code. It was added that when the charge is groundless or there is no probability of conviction then the provision of section 265-K, Cr.P.C., would be attracted. It was argued that under clause 25(3) of the Tender Documents the final approval was to be given by the Ministry, therefore, with the approval granted by the accused-Riffat Askari, a concluded contract did not come into existence and it was merely a contingent agreement. The learned counsel in this behalf has referred to section 31 of the Contract Act and relied on Dalsukh M. Pancholi v. The Guarantee Life and Employment Insurance Co. Ltd. And others PLD 1947 Privy Council 185 and
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Messrs Ashrafi Pvt. Ltd. And another v. Messrs Karachi Transport Syndicate Ltd., Karachi and another PLD 1973 Note 119 at p.184. It was argued that only Inam-ur-Rahim P.W. In his statement under section 161, Cr.P.C., has alleged that this was done for ulterior motive but the words used by him are 'reportedly' and 'allegedly' and there was no evidence whatsoever of dishonesty or connivance, therefore, it was a fit case for exercising powers of section 265-K. The learned counsel in this behalf has referred to State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto 1993 SCMR 523, Badaruddin v. Mehr Ahmad Raza, Additional Sessions Judge, Jhang and 6 others PLD 1993 SC 399, Ali Gohar Khan v. The State 1989 PCr.LJ 1963, Ch. Muhammad Ashraf v. The State 1990 PCr.LJ 34, Shaikh Muhammad Taqi v. The State 1991 PCr.LJ 963 and Mst. Hamida v. The State and another PLD 1973 Karachi 478. 10. On the other hand, the learned Attorney-General argued that whether an offence is to be referred for trial to the High Court under the Ehtesab Ordinance or not is matter of forming opinion. In this behalf, reference was made to section 14(6) of the Ehtesab Ordinance. It was added that the learned Chief Ehtesab Commissioner was only to form opinion as to sending of the case for trial and was not supposed to try the accused himself. The learned Attorney-General referred to Khawaja Muhammad Sharif v. Federation of Pakistan through Secretary, Cabinet Division PLD 1988 Lahore 725. The next argument was that the points urged in support of the application were misconceived. Neither there was any new offence created nor the same have been given retrospective effect nor the kind of punishment has been changed in the Ehtesab Ordinance. The learned Attorney-General in support of this argunlent referred to the provision of P.0.16 and P.0.17 and Prevention of Corruption Act, 1947 to maintain that no new offence was created. It was argued that the Ehtesab Ordinance has only changed forum or venue of trial, therefore, it is a matter of procedure which can be given retrospective effect. In this behalf, reliance was placed on Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 and Mst. Yasmeen Nighat and others v. National Bank of Pakistan and others PLD 1988 SC 391. 11. The learned Attorney-General then argued that there is no fundamental right, which guaranteed trial of an accused of an offence in specific forum and they can be convicted and sentenced under the new law. In this behalf, reliance was placed also on the judgment in the case of Rao Shiv Bahadur Singh and another (supra) and particularly para. No,9. It was argued that there was no discrimination of any sort and such legislation was possible and in this behalf he referred to Brig. Retd. F.B. Ali and another v. The State PLD 1975 SC 506, Zia Ullah Khan and others v. Government of Punjab and others PLD 1989 Lahore 554, Pakistan Petroleum Workers' Union through its General Secretary v. Ministry of Interior 1991 CLC 13 and Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and Secretary, Finance and Revenue Department PLD 1957 SC (Pak.) 9. The learned Attorney-General argued that the reference to section 26 of the General Clauses Act is not relevant because the accused were only being tried under one law out of the two laws applicable. There is no double jeopardy. Thereafter, he relied on Mian Iftikharud-Din and another v. Muhammad Sarfraz and another PLD 1961 SC 585. 12. The learned Special Prosecutor argued that the key-words in Article 12 are punishment, which the Court can refuse while awarding sentence. It was argued that neither the punishment is different nor greater. The learned Special Prosecutor compared section 4 of the Ehtesab Ordinance with provision of Presidential Orders Nos.16 and 17 and Act of 1947 and argued that the punishment and kind remained same, therefore, there was no violation of Article 12 of the Constitution of 1973. In this behalf, reliance was placed on the judgment in the case of Bhai Khan and others (supra). It was added that the provision of forfeiture of property is not relevant in the present case. It was argued that the punishment is also in the discretion of the Court and it can refuse to inflict a particular punishment and word 'shall' does not make it mandatory. In this behalf, reliance was placed on the judgment of the Hon'ble Supreme Court reported as Shamroz Khan and another v.
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Muhammad Amin and others PLD 1978 SC 89. It was argued that the procedure is not anybody's vested right. The learned Special Prosecutor in this behalf also relied on the judgments in the cases of Nabi Ahmad and another and Adnan Afzal (supra). It was argued that the Ordinance can be issued by the President even when the National Assembly stood dissolved and there was no restriction placed on the President in the Constitution. It was argued that he was appointed the Special Prosecutor for particular cases under section 14(6) of the Ehtesab Ordinance. There is nothing wrong with this appointment. It was argued that it is a basic principle of interpretation of statutes that law to be saved and interpretation which advances the remedy to be adopted. In this behalf, reliance was placed on the judgments reported as Sindh Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. PLD 1975 SC 32, Mehreen Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397 and Province of East Pakistan v. Sharaftullah and 87 others PLD 1970 SC 514. It was added that Ehtesab Ordinance consolidated previous laws on the point as is clear from section 27 of the Ehtesab Ordinance whereby the Presidential Orders Nos.16 and 17 were repealed, therefore, there is nothing wrong with the same legally. In this behalf, reliance was placed on the cases reported as Muhammad Akhtar Hussain and 4 others v. Government of West Pakistan PLD 1970 SC 146 and Sardar Muhammad and 4 others v. Municipal Committee, Jhelum City PLD 1970 SC 497. It was argued that all possible explanations to be considered before declaring a law invalid. In this behalf, reliance is placed on the judgment in the case of Lahore Improvement Trust, Lahore v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others PLD 1971 SC 811. It was argued that the provisions as to investigation and inquiry are not mandatory, therefore, may not be followed. In this behalf, reliance was placed on Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others PLD 1971 SC 61 and Mansab Ali v. Amir and 3 others PLD 1971 SC 124. 13. Mr. Ijaz Hussain Batalvi, learned counsel for the accused while summing up the arguments submitted that there is no possible reason to make the Ordinance applicable from 31st December 1985. It was argued with reference to preamble of Ehtesab Ordinance that the field was not vacant, therefore, there was no justification to promulgate an Ordinance. In this behalf, it was pointed. That the Pakistan Penal Code, which was enacted in 1860 covers in detail all the offences as is clear from the sections 161 to 167. It was thereafter that Act 1947 was promulgated. The learned counsel referred to be objects and reasons for enacting this Act and argued that it created new offences and did not only deal with the offences as covered by sections 161 to 167, P.P.C. It was argued that the Legislature in his own wisdom has defined ' Servant of the State' and 'Public Servant' differently. In this behalf, reference was made to sections 14 and 21 of the P.P.C., respectively. It was argued that the accused could not be charged for offences allegedly committed before this Act came into force. In this behalf, reliance was placed on the judgments reported as (1961) 2 Cr.L.I 266 and Shamsuddin Ahmed v. The State PLD 1960 Dacca 205. It was argued that the F.I.R. Was registered, investigation made and the report under section 173, Cr.P.C. Submitted under the old Act, therefore, the charge under the present Ordinance is not sustainable in law. It was added that the charge is different from the F.I.R., and the report under section 173, Cr.P.C. It was argued that the petitioner could not be tried and convicted under the Ehtesab Ordihance. In this behalf, reliance was placed on the judgment reported as Ali Abbas v. The State PLD 1959 (W.P.) Karachi 56. In the end it was argued with the reference to sections Nos.1, 3, 5, 6 and 9 of the Ehtesab Ordinance that it was a new idea or concept and new offences were created under the Ehtesab Ordinance, therefore, the same is violative of the Article 12 of Constitution of 1973. 14. We have given our anxious consideration to the arguments advanced on behalf of the parties as well as learned Attorney-General for Pakistan. The main argument in support of the application under section 265-K of Cr.P.C. Is that Ehtesab Ordinance is ultra vires of Article 12 of the Constitution of 1973. The attack is two-fold:
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' Firstly, that the alleged offences committed in 1985 could not be tried under Ehtesab Ordinance, 1996 promulgated on 18-11-1996; and ' Secondly, that there could be no greater or different punishment for the offences already committed. ' Therefore, before proceeding any further we would like to refer to Article 12 of the Constitution of 1973. The same reads as under:--- "12.--(1) No law shall authorize the punishment of a person--- (a) for an act or omission that was not punishable by law at the time of the act or omission; or (b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed. (2) Nothing in clause (1) or in Article 270 shall apply to any law-making acts or abrogation or subversion of a Constitution in force in Pakistan at any time since the twenty-third day of March, one thousand nine hundred and fifty-six, an offence." It is clear from the above that clause (a) furnished a guarantee that an act. Or omission, which was not punishable by law at the relevant time could not be made punishable subsequently. It means that no offence can be created retrospectively. The learned counsel for the accused as well as learned Attorney-General have placed reliance on the judgment in the case of Nabi Ahmad (supra) wherein precise rule was laid down that innocent act could not be made punishable by subsequent legislation. The Hon'ble Supreme Court held as under:--- "21. ...The leading authority in America is Calder v. Bull (1798) 2 Dall 386 in which the meaning of ex post facto legislation has be.En explained as follows: (1) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. (2) Every law that aggravates a crime, or makes it greater than it was when committed. (3) Every law that changes the punishment and inflicts a greater punishment, than the law annexed to the crime when committed. (4) Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offence, in order to convict the offender." ' And after examining it also referred to British Law and held as under:--- "28. The time at which a presumption arises against retrospectivity is thus to be determined by the circumstances which call for protection against injustice. The differences in the manifekations of this need are mere matters of detail. The need may arise before the commencement of proceedings with reference to the time at which a cause of action arose, or an innocent deed was done. This happens if, for instance, a law is made to eliminate that cause of action or to make that innocent act punishable. It may also arise with reference to the time at which a new law was enforced during the pendency of a proceeding. Such an occasion can arise if, for instance, the right of appeal is abolished after institution of a proceeding. So also it may arise with reference to the time at which a proceeding, whether civil or criminal, was concluded by A decree, conviction or acquittal, and then a law was passed taking away the right of appeal against the decree, conviction or acquittal, when no proceeding was pending. When we think of such an injustice, we are really thinking of the adverse effect of the new law on vested rights." 15. Now coming to the case in hand. The admitted position is that the facts as incorporated in the F.I.R., constituted offences punishable under P.P.C., read with section 5(2) of Act of 1947. The allegations remained same. The learned Attorney-General argued that Ehtesab Ordinance is procedural in nature and changed the forum of trial. The Hon'ble Supreme Court has held in the case of Nabi Ahmad supra while dealing with the nature of law whether it is procedural or substantial as under:---
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"25. I venture to repeat that the full significance of the objection to retrospective and ex post facto legislation cannot be grasped unless the basic reasons are kept in view. The Courts attempt to capture the essence of that thought and to apply it to given facts; therefore, it is not a correct approach to this subject to involve ourselves in the comparison of an expression used in one judgment with one employed in another judgment, and from that restricted point try to work our way back to the general principle. For instance, it is easy to see the point of view of Justice Chase if we read the opinion expressed in the abovementioned case, Calder v. Bull, with the help of the underlying principles, rather than the connotations of each word employed by him earlier to express the idea. He said: 'But I do not consider any law ex post facto, within the prohibition, that mollifies the rigor of the…
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