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Petitioner: SALEEM RAZA and 31 others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Sabihuddin Ahmed, Muhammad Mujeebullah Siddiqui, Qaiser Iqbal Title: SALEEM RAZA and 31 others vs THE STATE Case No.: Criminal Petition No,59-Q of 2005Constitutional Petition No,D-1258 of 2006 Date of Judgment:2006-11-21 Reported As: PLD 2007 Karachi 139 Result: Petition allowed
JUDGMENT
JUDGMENT MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The petitioners convicted by Accountability Courts and serving out their sentences in the Central Prison Karachi, have assailed validity and vires of several provisions contained in the National Accountability Ordinance, 1999, (hereinafter referred to as the NAB Ordinance,), on the ground that they are violative of the fundamental rights enshrined in the Constitutions, more particularly in Articles 12 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution). 2. However, at the time of arguments, the challenge has been restricted and canvassed to the validity and vires of section 10(d) of the NAB Ordinance only. 3. The petitioners/NAB convicts submitted a representation addressed to the Chief Justice, which was treated as petition and was initially fixed before a Division Bench of this Court. Notices were issued to the petitioners and D.P.G. (Accountability) as well as to Advocate General, D.A.G., and President High Court Bar Association to assist the Court. On 20-9-2006 the matter was taken up by the Division Bench, in the presence of learned President, High Court Bar Association, the learned D.A.G., Abdul Jabbar Lakho, A.A.-G. And DPGA. The following order was passed:-- "Since a number of questions of public importance relating to the constitutional validity of different provisions of the NAB Ordinance, are involved, we would order that this matter be placed before a Full Bench to be constituted by the Chief Justice." 4. Notice was directed to be issued to the learned Attorney General as well. 5. We have heard the petitioners represented 4. Petitioner Saleem Raza, Mr. Shafat Nabi Sherwani, learned DPGA and Mr. Akhtar Ali Mehmood, learned D.A.-G. 6. Petitioner/convict Saleem Raza submitted on behalf of the petitioners that prior to 23-11-2002 all the NAB convicts were entitled to remission in accordance with Chapter 8 of the Prison Rules. However, with the insertion of section 10(d) in the NAB Ordinance, 1999, this right has been taken away. He contended that the provisions contained in section 10(d) of the NAB Ordinance is violation of the provisions contained in Articles 12 and 25 of the Constitution. By implication it is retrospective in effect and is discriminatory as well. He further submitted that it is discriminatory for the reasons that NAB Ordinance is not the only law in the country dealing with the white-collar crime. He has maintained that the punishment for corruption and corrupt practices defined in section 9 of NAB Ordinance is specified in section 10(a) of the NAB Ordinance and the offences specified in the schedule to the Ordinance are punishable in the manner specified therein by virtue of the provisions contained in section 10(b) of the NAB Ordinance. He has further submitted that all the offences referred to in sections 9 and 10 read with schedule to the NAB Ordinance are not exclusively triable by the Accountability Court appointed under the NAB Ordinance. The Accountability Court shall take cognizance on a reference made by the Chairman NAB or an officer of the NAB duly authorized by him and not otherwise. He has argued that the offence is triable under the NAB Ordinance or by the ordinary Criminal Courts as well as Special Judges Anti-Corruption Central and Provincial as the case may be. According to him section 10(d) of the NAB Ordinance is discriminatory in the sense that if in respect of any person charged of committing offences coming within the purview of corruption or corrupt practices as well as specified in schedule are not referred by the Chairman NAB or an officer authorized by him, he/she shall be triable by the other Courts established under the law and in case of conviction the convict shall be entitled to -the remissions under the Prison Rules, section 401, Cr.P.C. And Article 45 of the Constitution as well as section 402(a), Cr.P.C. He has further contended that under the system of remission under Chapter 8 of the Pakistan Prison Rules, the remission is generally earned and it is not a mere concession. He has referred to Rule 199 of the Prison Rules, which defines the remission system. It is provided in this rule that remission system is arrangement by which a person sentenced to imprisonment for a period of 4 months or more may by good conduct and industry become eligible for release and a portion of his sentence ordinarily not exceeding one-third of the whole sentence has yet to run. He has further submitted that remissions are of two kinds ordinary or special. He has pointed out that ordinary remission is not
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earnable if a prisoner is convicted for offence committed after admission in prison or for an assault committed after admission to prison, on a warder or other officer, the remission awarded by Government under section 401, Cr.P.C. Awarded for blood donation, surgical sterilization and for passing examination. This provision is contained in Rule 202. He has further referred to Rule 215, wherein it is provided that a convict prisoner may appear in any of the examinations specified in the rules and shall on passing such examination be entitled to earn remission. It is further provided in Rule 220 that when a prisoner has earned such remission as entitled him to release, the Superintendent shall release him unconditionally. He has further submitted that he has been convicted and sentenced to serve out imprisonment for 5 years and he is in custody for the last about 4 years. All other convicts other than NAB convicts with similar sentence have been released much earlier, after serving out their sentence, after earning the remission but he is still rotting in jail. According to him, the convicts under similar circumstances, for similar offences, under similar circumstances, belonging to same class, when convicted by other Courts become entitled to be released on bail after remaining in jail for about 2 or 2-1/2 years, having been treated to have served out the sentence, after earning remissions, while the NAB convicts are denied this concession which have been convicted after 23-11-2002, when clause (d) of section 10 was inserted in the NAB Ordinance. He has further stated that another convict namely Qurban Jatoi was convicted after insertion of this provision but he has been released after allowing remissions. He has placed reliance on a judgment of Hon'ble Supreme Court in Criminal Petition No,59- Q of 2005, State through National Accountability Bureau v. Shaikh Abdul Sattar Lasi,edated 1-2-2006. In this case the respondent was convicted by an Accountability Court and the conviction and sentence were upheld by Balochistan High Court and the Hon'ble Supreme Court. This conviction was recorded on 26-7-2001. Remission earned by him was withheld for the period from-2-12-2002 to 18-3-2005 on the basis of section 10(d) of the NAB Ordinance. He filed writ before Balochistan High Court, which was allowed on the ground that amendment was prospective in nature and would apply to the cases of conviction after 23-11-2002. At the instance of NAB leave to appeal was sought from the Hon'ble Supreme Court which was not allowed. Reliance was also placed on a judgment of Lahore high Court in the case of Dr. Azhar Atta Malik v. Chairman NAB, PLJ 2005 Cr .Cases (Lahore) 354, and on an earlier judgment of Peshawar High Court in the case of Farid Khan v. The State PLD 1965 (W.P.) Peshawar 31. In the first case it was held by Lahore High Court that the right or concession available to a convict on the date of conviction cannot be curtailed by a subsequent change in law. A Full Bench of the Peshawar High Court laid down that such right/privilege/concession as available to an accused at the time of occurrence/commission of offence could not be subsequently taken away. 7. Mr. Shafat Nabi Sherwani, learned D.P.G.A NAB, very candidly and frankly stated that there should be one set of rules only for every convict under any law. He was of the view that the forum of trial and the procedure may be different and the punishments under some laws may be more stringent, as compared to the other enactments but after conviction the convict should be governed under the Prison Rules and not under the law pertaining to conviction. He conceded that the effect of section 10(d) of the NAB Ordinance is that it places the NAB convict in disadvantageous position. The persons convicted by other Courts under other substantive laws, awarded same punishment shall be entitled to release, much earlier than the NAB convicts and by implication it would amount to addition in the sentence awarded, because every convict is supposed to serve out the sentence in accordance with the law contained in the Prison Act and the Rules as well as in Article 45 of the Constitution and section 401, Cr.P.C. He has further submitted that denial of remissions to the NAB convicts while allowing the same to persons convicted by other courts for similar offence is discriminatory in nature and merely on account of forum of trial it is not a reasonable classification with the result that the provisions contained in section 10(d) of the NAB Ordinance assailed in this petition is repugnant to and violative of the fundamental right of equal protection of law guaranteed under Article 25 of the Constitution and consequently should be declared void, as provided under Article 8 of the Constitution. He further stated that after conviction by the trial Courts the convicts should be dealt with in accordance with the Prison Rules and by recourse to the non obstante clause no addition should be made in the Prison Laws until and unless a reasonable and rational classification is given in any law. 8. However, Mr. Akhtar Ali Mehmood, learned D.A.G, argued that section 10(d) of the NAB Ordinance is not violative of the provisions contained in Articles 12 and 25 of the Constitution. He submitted that the provision is prospective in effect and even by implication it is not retroactive. According to him if a reasonable classification is made out on intelligible differentia then a law is not to be declared as inconsistent, repugnant or violative of Article 25 of the Constitution. He submitted that mere reference to NAB Court by Chairman NAB or an officer authorized by him amounts to a reasonable classification. He further submitted that remission is a concession only under the Prison Rules and is not a right, therefore, the petitioners can not claim it and have no right to assail the validity and vires of section 10(d) of the NAB Ordinance, whereby the remissions have been denied to them. When confronted with the judgment of Hon'ble Supreme Court in the case of Waris Meah v. The State, PLD 1957 SC 157, wherein the Hon'ble Supreme Court held that the law conferring discretion on a very wide character upon State authorities to act in relation to subject falling within the same class in three different modes varying greatly in severity, by furnishing no guidance whatsoever, in regard to the exercise of this discretion, the Act, on the one hand leaves the subject, falling within its provisions, at the mercy of the arbitrary will of such authority, and on the other, prevents him from invoking his fundamental right to equality of treatment under the Constitution, he came with the plea that sufficient guiding principles are contained in section 18 (g) of the NAB Ordinance and theretofore, the ratio of above judgment is not attracted. The learned D.A.G, was further confronted with the law laid down by the Hon'ble Supreme Court in Waris Meah's case that the duty of Courts for declaring a law inconsistent with the provisions of the 1956 Constitution cannot be performed so as to ensure that the law operate equally in relation to all persons within its mischief, if law itself provides for different options in relation to such persons, not in accordance with any principle expressed or implicit in law, not on the basis of any classification made or under the law, but according to unfettered discretion of one or more statutory authorities. In this case the Hon'ble Supreme Court further held that in the absence of any discernible principle guiding the choice of forum, the choice must always be in the judicial viewpoint, arbitrary to a greater or lesser degree. The Hon'ble Supreme Court further held that by use of unfettered discretion of statutory authorities thereby treating unequally persons falling within the same class, upon a basis which bears no reasonable relation to the purpose of the law, the Act was discriminatory and inconsistent with the declaration of equality in Article 5(1) of the 1956 Constitution.
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9. The learned D.A.G, insisted that the provisions contained in section 18(g) of the NAB Ordinance, contained sufficient guidance providing reasonable classification to treat the NAB convicts a separate class, and, therefore, they were not entitled to remissions while serving out the sentences awarded to them by Accountability Courts. 10. He also maintained that the provision contained in section 10 (d) of the NAB Ordinance is in conformity with the object of the law. However, the learned DPGA was of the view that the object of enacting NAB Ordinance was not to incarcerate the convicts for longer period but the object was to provide effective measures for speedy disposal of cases involving corruption, corrupt practices, misuse or abuse of power or authority, misappropriation of properties, taking kickbacks, commissions for matters connected and ancillary or incidental thereto and to recover the outstanding amounts, from those persons, who have committed default in the re-payment of amounts of banks and financial institutions and to recover, the State money and State assets from those persons who have misappropriated or removed such money or assets through the corruption or corrupt practices and misuse of power or authority and after obtaining the above object to bring back the convicts in the main stream of the society allowing them to contribute in the development and betterment of the society. In this behalf, he referred to the Judgment of Hon'ble Supreme Court in the case of Khan Asfandyar Wali v. Federation of Pakistan, PLD 2001 SC 607 and several other judgments. 11. We have very carefully considered the contentions raised by the petitioners, learned DPGA and the learned D.A.G, and provisions of law referred to by them. 12. Before examining the provisions contained in section 10(d) of the NAB Ordinance, we would succinctly narrate the principles governing the issues involving validity and vires of a law (including statute law) challenged with reference to Articles 12 and 25 of the Constitution. Article 4 of 1962 Constitution was similar to Article 12 of the 1973 Constitution. A law on the touchstone of this article came for consideration before a Full Bench of Peshawar High Court, in the case of Farid Khan (ibid) with reference to section 57, P.P.C.. A question was referred before the Full Bench with reference to the remissions ordinary or special and the remissions under section 401, Cr.P.C. It was contended on behalf of the petitioner/convict, that under rules applicable at the time, the petitioner was convicted, there was no restriction on the total length of remission, but now remission has been limited, thus having the effect of imposing longer substantive punishment of imprisonment on the petitioner. 13. Anwar-ul-Haq, J., (as his lordship then was) speaking for the Full Bench observed that the fundamental right No,4 on which reliance was placed did not apply in terms in the said case, for there was no question of imposing a greater punishment on the petitioner than was prescribed by law at the time the offence was committed. The penalty prescribed by law for the offence as committed by the petitioner remains the same. At the same time, however, his Lordship agreed that if new instructions has the effect of keeping prisons in custody for aggregate period of more than 20 years, including remissions, then it can be said that in practical effect the punishment imposed upon him has become greater than was prescribed at the time he committed the offence. It was further observed that the convict had completed an aggregate period of more than 20 years including remissions and he would have been entitled to be released on the completion of 20 years if the Memorandum prescribing the new conditions was not issued. It was held that the result was that the prisoner was being compelled to undergo longer sentence in the aggregate period than prescribed at the time he committed offence or was convicted. It was further held that the result seems to be clearly against the spirit if not the term of the right embodied in fundamental right No,4 guaranteed by the 1952 Constitution. It was also observed that in the matter of the liberty of the subject it is the duty of the Court to ensure that not only the letter of law but also its spirit is observed. Consequently it was held that the memorandum assailed in the petition cannot be allowed to be operated retrospectively in the manner so as to authorize the detention of the convict for an aggregate period, including remission of more than 20 years. 14. As already observed earlier, this judgment was considered by the Hon'ble Supreme Court in the case of State through NAB v. Shaikh Abdul Sattar Lasi, and the ratio of this judgment was not disturbed. 15. This brings us to the principles governing the provisions pertaining to fundamental rights guaranteed under Article 25 of the Constitution relating to the equal protection of law. This Article enjoins that all citizens are equal before law and are entitled to equal protection of law, i,e,, all persons subjected to law should be treated alike under all circumstances and conditions both in privileges conferred and in the liabilities imposed. It must be amongst equals. The equality has to be between persons who are placed in the same set of circumstances. The guarantee of equal protection of the law requires that all persons shall be treated alike, under like circumstances and conditions. The Phrase "equal protection of law" envisaged by Article 25 of the Constitution means that no person or class of persons would be denied the same protection of law which is enjoyed by persons or other class of persons in like circumstances in respect of their life, liberty, property or pursuit of happiness. Persons similarly situated or in similar circumstances are to be treated in the same manner. 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 legislation. It means that two sets of similar circumstances shall not have different legal effects, unless there is a difference of circumstances and the difference between the two sets is material enough to support the discrimination. 16. Articles 8 and 25 of the Constitution were considered by the Hon'ble Supreme Court in the case of Government of Balochistan v. Azizullah Memon, PLD 1993 SC 341. The Hon'ble Supreme Court considered the law laid down in the following cases:-- (1) Jibendra Kishore Achharyya Choudhry and others v. Province of East Pakistan PLD 1957 SC 9. (2) Waris Meah v.State PLD 1957 SC 157. (3) Bazal Ahmed Ayyubi v. The West Pakistan Province PLD 1957 Lah.388. (4) Zain Noorani v.Secretary of the National Assembly of Paksitna PLD 1957 Kar.1. (5) Malik M.Usman v. State PLD 1965 Lah.229. (6) East and West Steamship v. Pakistan PLD 1958 SC 41. (7) F.B. Ali's case PLD 1957 SC 506. (8) Fauji Foundation's case PLD 1983 SC 457. (9) I.A.Sherwani's case 1991 SCMR 1041.
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(10) Abdul Wali Khan's case PLD 1976 SC 57. (11) Aziz Begum's case PLD 1999 SC 899 and (12) Shirin Munir and others v. Government of Punjab PLD 1990 SC 295. (13) Inam-ur-Rehman v. Federation of Pakistan and several judgments of the Supreme Court of India and deduced the following principles:-- (i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike; (ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; (iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings and persons accused of heinous crimes; (iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances; (v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reasons for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25; (vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed; (vii) that in order to make a classification reasonable it should be based:-- (a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out; (b) that the differentia must have rational nexus to the object sought to be achieved by such classification. 17. Deducing the above principles, the Hon'ble Supreme Court held as follows:-- "As the judgment from Indian jurisdiction have been considered in the aforestated judgments of this Court, we would not refer to them here. In all these authorities there seems to be a unanimity of view that although class legislation has been forbidden, it permits reasonable classification for the. Purpose of legislation. Permissible classification is allowed provided the classification is founded on intelligible differentia which distinguishes persons or things that are grouped together from others who are left out of the group and such classification and differentia must be on rational relation to the object sought to be achieved by the Act. There should be a nexus between the classification and the objects of the Act. This principle symbolises that persons or things similarly situated cannot be distinguished or discriminated while making or applying the law. It has to be applied equally to persons situated similarly and in the same situation. Any law made or action taken in violation of these principles is liable to be struck down. If the law clothes any statutory authority or functionary with unguided and arbitrary power enabling it to administer in a discriminatory manner, such law will violate equality clause. Thus, the substantive and procedural law and action taken under it can be challenged as violative of Articles 8 and 25." 18. In the case of Jibendra Kishore Achharyya Choudhury and others v. Province of East Pakistan, PLD 1957 Dacca 1, which was upheld by the Hon'ble Supreme Court, the following principles were formulated:-- (i) The presumption is always in favour of the constitutionality of a enactment, since it must be assumed that the legislature understands, and correctly appreciates the needs of its oWn people that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds. (ii) The presumption may be rebutted in certain cases by showing that on face of the statute, there is no classification at all and no difference peculiar to any individual or class, and yet the law hits only a particular individual or class. (iii) The principle of equality does not mean that law must have universal application for all persons who are not by nature, attainment or circumstances in the same position, and the varying needs of different classes or persons often require separate treatment. (iv) The principle does not take away from the State the power of classifying persons for legitimate purposes. (v) Every classification is in some degree likely to produce some inequality, and mere production of inequality is not enough. (vi) If a law deals with members of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. (vii) While…
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