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Petitioner: IMRAN And Other VS Respondent: PRESIDING OFFICER, SPL. COURT, Etc
Court Name: Lahore High Court Judge(s): Khalil-Ur-Rehman Khan, Malik Muhammad Qayyum, Tanvir Ahmed Khan Title: IMRAN And Other vs PRESIDING OFFICER, SPL. COURT, Etc Case No.: Writ Petition No. 3772 of 1996 Date of Judgment:1996-07-21 Reported As: K.L.R. 1996 Criminal Cases 469 Result: N/A
JUDGMENT
JUDGMENT KHALIL-UR-REHMAN KHAN, C.J.- By this judgment we propose to answer questions referred to the Full Bench in W.P.No. 3772/96. W.P.No. 3350/96. W.P.No. 4Q\4/96. W.P. No. 2883'96. W.P. No. 3998/96, W.P.No. 3907 96. W.P. No. 4273'96, W.P.No. 4013'96. W.P. No. 3975/96 and W.P. No. 3773/96: and W.P-. No. 11500 96. W.P. No. 11501/96. W.P. No. 3377/96 and I.C.A. No. 13/96. As in all these petitions similar questions of law require determination. The first set of petitions were filed to challenge the vires of sections 3 and 4 of the Suppression of Terrorist Activities (Special Courts) Act. 1975, which provide for the establishment and constitution of the Special Courts. The petitioners in the second set of petitions have challenged the establishment, composition and constitution of Special Courts under section 3 of the Offences in respect of Banks (Special Courts) Ordinance, 1984. 3. Learned counsel in these petitions appearing before the Division Benches, inter alia, urged that the Courts envisaged by the aforesaid two Statutes are the Courts which are made and un-made at the will of the Executive Government as the Presiding Officers of these Courts appointed by the Executive Government ha\e no security of office guaranteeing their terms and conditions of service. They arc made to work at the pleasure of the Executive Government and are removable by the Executive Government at any time even without assigning any reason. The Executive Government can by a notification take persons accused of the commission of the Scheduled offences out of the purview of the High Court and the criminal courts subordinate to it and these Statute concedes authority to the Executive Government to treat similarly placed accused persons with a different treatment at its whim and tlmt it is the Executive Government which has exclusive power to withdraw cases'from one Special Court and entrust to another Special court of its choice. It was also the case of the petitioners that the said Courts so established under the two Statutes
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are violative of the provisions of the Constitution viz. Articles 175 and 212 of the Constitution of the Islamic Republic of Pakistan arid that of the Fundamental Right to get justice by a fair and impartial Court, 4. The learned Division Benches hearing these petitions being of the view that the questions raised were of public importance referred the matter to the Chief Justice for constitution of larger Bench. A Bench comprising Chief Justice. Mr. Justice Tanvir Ahmad Khan. Mr. Justice Ihsan-ul-Haq Chaudhry. Mr. Justice Malik Muhammad Qayyum and Mr. Justice Khalil-ur-Rehman Ramday was constituted but later on Mr. Justice Khalil-ur-Rehman Ramday withdrew from the Bench as in one of the cases his brother w;as the counsel for the petitioners. Another learned member also expressed his willingness to withdraw' from the Bench to avoid delay in hearing and disposal of these matters as by joining another learned Judge with the for members of the Bench the matter would have to be argued again. The three members of the Bench who were also hearing similar matters wherein the constitution of Banking Tribunals under the Banking Tribunals Ordinance, 1984,.Was challenged continued to hear these matters. This course was adopted in the interest of justice and with the consent of all the parties. The questions which require consideration are:- ' (i) Can the judicial power be vested in and be exercisable by a body/Court/Tribunal which is denuded of the attributes considered essential for maintaining and preserving independence of the Court so as to ensure right of access to justice unhindered and unfettered? (ii) Are the Special Courts in the two aforementioned Acts pertaiping to constitution of the. Courts violative of the mandate, i.e., independence and separation of Judiciary, contained in Article 175 of theConstitution? 5. Learned counsel for the petitioners argued that judicial power is the legal right, ability and authority to hear and decide, objectively a justiciable issue, dispute or controversy, concerning the existing legal rights, duties or interests of persons or property, arising out of relations and dealings, between two or more parties, who bring the same for an authoritative decision, binding on them. Added that the judicial power must be conferred by the State under the Constitution or law on persons who were paid by the State and the authority of the person in whom this power is vested is generally called a 'Court' and that the framework of the Constitution as is based on the principle of separation of the State power. Article 175 provides the hierarchy of Courts falling in Part VII under the heading "The Judicature". According to the learned counsel as the judicial power has been vested by the Constitution only in Courts, the Legislature cannot enact a law to confer any part of it on any executive or other forum and that by giving to a body or Tribunal a nomenclature of Court, the mandate of independence and separation of Judiciary does not stand satisfied and complied with if it is not provided with the essential features and powers required for the exercise of judicial power independently and freely. On the question as to what is judicial power and the scheme of conferment of judicial power on Courts under the Constitution, reference was made to Iftikhar Ahmad vs. The Muslim Commercial Bank Ltd. Cmd another (P.L.D. 1984 Lahore 69). As to the attributes essential for exercise of judicial power the following features of "judiciary proper" were emphasised: (i) Appointment of the Presiding Officer of the Court with the meaningful consultation of the High Court. (ii) Providing of definite tenure and terms of appointment and ensuring security of the said tenure and terms. (iii) Vesting of power of transfer of the Presiding Officers and the cases within the judicial hierarchy and not with the Executive. (iv) Financial independence to be secured and allowed.
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(v) Vesting of general supervision and superintendence in the High Court and not in the Executive. In support of the above, reference was invited to Government of Sindh through Chief Secretary to Government of Sindh. Karachi and others vs. Sharpf Faridi and others (P.L.D.I994 S.C. 105), Government of Bulochislun through Additional Chief Secretary vs. Azizullah Memon and I6 others (P.L.D. )993 S.C. 341). In sre: Special Courts Bill, 1978 (AIU 1979 S.C. 478), S.P. Sampath Kumar vs. Union of India and others (AIR 1987 S.C. 386) and Miss Benazir Bhutto vs. Federation of Pakistan and another (PLD 1988 SC 416). 3. On factual plane, it was urged that appointments of the Presiding Officers of the Special Courts/Banking Courts are being made for a short specified period of 2/3 years or till further orders. The Statutes in question do not provide any security of tenure of office and the Presiding Officers so appointed are at the mercy of the Executive and their services are terminable at the whim of the Executive, It was pointed out that Mr. Justice (Retd.) Qurban Sadiq Ikram was appointed Presiding Officer of the Banking Court under the Offences in respect of Banks (Special Courts) Ordinance, 1984, was compulsorily asked to go on leave on 30th of July, 1995, for the remaining period of his terms which was to expire on 15.10.1995 only for the reason that he had admitted to bail family members of the Opposition Leader. Learned counsel also urged that the lawyers who were otherwise office bearers of the Political Party in the Government have been appointed Presiding Officers of these Banking Courts and the Executive Government by making such appointments used these Statutes as a measure to suppress and persecute the citizens who are opposing the policies of the present Government. It is further alleged that the use of judicial powers so vested in the Eexcutive Government is being abused in the entire process and these two Statutes have been manipulated for the persecution of the citizens. 7. The learned Attomey General argued that rupees eighty five billion of the financial institutions have been stuck up on account of non-return of the finance received and utilized by the borrowers/customers and the process of law is being abused with the mala fide intention of blocking the recovery proceedings initiated by the financial institutions by filing appropriate proceedings before the Banking Tribunal, He emphasised that right and liberty of the citizens were recognized by the Statutes and the Constitution and no law can be struck down unless it is ultra vires of the Constitution and law. He added that a law may be dubbed as a bad law or harsh law but if the same is competently made by the competent Legislature, the same cannot be struck, down on the ground of unfairness or harshness. Next it was argued that theory of separation of powers implies that the same person should not exercise the functions of Executive and Judiciary both and that the Tribunal' is a generic name, It is the functions and the powers exercised and the attendant attributes which determined whether the body so constituted is a Court or a Tribunal. The learned Attorney General cited Ch. Zahir llahi vs. The Slate (PLD 1977 S.C. 273) to emphasise that the mere designation of Tribunal and not Court makes no difference, It was observed in the precedent case that "Indeed Tribunal is a generic term which includes a Court and often these terms are used interchangeably" and that the functions of the Special Tribunal set up under section 8 of the Defence of Pakistan Ordinance (Ordinance No. XXX of 1971) are wholly judicial and not administrate e as under section 12 of the Ordinance, the Special Tribunal enjoys "all the powers conferred by the Code on a Court of Session exercising jurisdiction" and as such it is idle to contend that the said Court "is not a Court' for thfc purposes of Cr.P.C, and has. Therefore, no power to allow bail". The learned Attorney General referring to Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others vs. Sharaf Faridi and others (PLD 1994 SC 105) argued that the Supreme .Court in the said case gave the direction to appoint the Judicial Magistrates separate!) from the Executive Magistrates for administering criminal justice and the said case does not go beyond the said direction and that "Judiciary proper" is not only the forum which is to
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exercise judicial functions exclusively but other bodies/Courts/Tribunais can also be created to exercise judicial functions in accordance with the law competently framed by the Legislature. 8. The learned Attomey General further contended that the Offences, in respect of Banks (Special Courts) Ordinance, 1984 and the Suppression of Terrorist Activities (Special Courts) Act, 1975 were legislated competently and that these two Statutes are not ultra vires of the Constitution. As regards the first mentioned Ordinance, reference was made to Altaf Hussan vs. The State (PLD 1985 Lahore 10) wherein it was observed that the Special Court is a validly constituted Court and it is to perform a judicial function under the constitution and the law. In this case, the objection, inter alia, raised was that as the Special Court was presided over by a sitting Judge of the High Court, it is a High Court and, therefore, no fresh application can be entertained after one has already been rejected. As the question raised was whether it was then a High Court or a Court subordinate to it? The learned Judges noted that the incumbent may even be a person qualified to be a Judge of the High Court. The Special Court so constituted is not a Bench of the High Court as the appointment/nomination is to be made not by the Chief Justice but the Federal Government. A Special Court presided over by a sitting Judge of the High Court will be judicially inferior to the High Court. The other observations recorded in this judgment may be quoted as these are relevant to the question under discussion:- "7. The contention raised by the learned counsel for the respondent. However, has no force in the presence of changed constitutional position. The 1962 Constitution provided under Article-129 that there shall be. In. Addition to the Supreme Court and the High Court, such other Courts as are established by law. The Constitution did not demarcate their sphere of jurisdiction. However. Article 130 laid down that no Court shall have any jurisdiction that is not conferred on it by the Constitution or by or under law. So, the establishment of a Special Court, without making its orders appealable before the High Court or Supreme Court shows in the absence of anything that it was a Court subordinate or inferior to the High Court, that its order would be final. On the contrary, the Article 175 oj the 1973 Constitution does place the entire judicial power under the High Court,^subject to such specific exclusions which lire expressly noted in some other Article like 212 etc. Reference be auain made to #tbs Abdul Hafeez v. The Stale, Article 175(3) further states that the judiciary shall be #the #tbs progressivelv separated from the executive within the given time '. No such provision existed in the 1962 Constitution. It is. Therefore, auite evident that whereas the previous amalgam of the executive and iudicial powers must be separated within the given time, no new iudicial function, other than the ones expressly mentioned in the Constitution, shall be conferred on anv executive authoritv. After the #the commencing date. This Court has already taken the same view in Iftikhar Ahmad The Muslim Commercial Bank Lid. Thus the Legislature cannot be considered to have given such power to a persona designate or any other executive authority in a 1984 Ordinance. The Special Court, therefore, as it is also so named, is a Court constituted under the Constitution, and is inferior to the
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High Court." The underlined observations instead of advancing the case of the Federation support the contention of the petitioners. The other case referred to by the learned Attorney General is Messrs Sindh Glass Industries Limited and 4 others Vs. Pakistan through the Secretary, Ministry of Justice and Parliamentary Affairs. Federal Government Secretariat. Islamabad and 2 others (1989 CLC 524 (Karachi) wherein it was observed that it is not the composition of a Tribunal which may determine the nature of its work but it is the work which is entrusted to the Tribunal and the procedure provided to dispose of the same are the material factors for determining the nature of the work of the Tribunal, for that the Banking Tribunal Ordinance, 1984. Is intra vires the Federal Legislative power and not violative of the Fundamental Rights. The learned Attorney General argued that the observations made in this case as well as in other cases viz. Arshad Aziz. Managing Director. Imran Corporation (Pvt.) Ltd, and another Vs. Bank of Oman Ltd, and another (PLD 1995 Lahore 6). Muhammad Shafi & Co, Vs. National Bank and others (PLD 1995 Lahore '360) and Khurshid Alam and 3 others Vs. United Bank Limited and 7 others (PLD 1995 Karachi 409) that the Banking Tribunal Ordinance. 1984. Is a valid piece of legislation and provisions of the Ordinance are not violative tf f undamental Rights, apply with full force to the two laws in question and as such the Special Courts constituted under these two Statutes are validly constituted and as such no valid objection as to constitution and composition can be raised. Reliance was also placed on an unreported judgment of the Supreme Court in C.P.No.577 of 1993 titled "M/s. Golden Star Ghee Industries Ltd.. Rawalpindi, etc. Vs. M/s National Development Finance Corporation, Karuchi, etc." wherein Mr. Justice Abdul Qadeer Chaudhry observed that "Banking business is one of the subjects included in Item 28. Item-55 confers the jurisdiction with respect to any of the matters in this List (Federal Legislative List). There is another Item-14, which relates to the Administrative Courts and Tribunals for Federal subjects. The claim filed by the banking-company clearly falls within the Federal Legislative List, and the Tribunal constituted for the recovery of loan was competently legislated by the President." The petition was dismissed with further observation that rule laid down in AIR 1979 SC 478 does not support the petitioners and the leave prayed for was refused. I0. The provisions of the two Statutes which are under challenge may now; be reproduced a6 under:- The provisions of the Suppression of Terrorist Activities (Special Courts) Act. 1975. "3. Constitution of Special Courts: (l) The Federal Government may, by notification in the official Gazette, constitute, for the whole or any pari of Pakistan, Special Courts consisting of a person who- (a) has been or is qualified for appointment as, Judge of High Court; or (b) has, for a total period of not less than three years, exercised, whether continuously or not, the powers under the Code, of a Sessions Judge or an Additional Sessions Judge. (2) If so directed by the Federal Government, the Provincial Government shall constitute a Special Court or Courts each consisting of a person who is qualified under subsection (l) to be appointed as Special Court. (3) A Special Court shall sit at such place as the Government constituting it may, by notification in the official Gazette, specify in this behalf. 3. Jurisdiction of Special Court: (I) Notwithstanding anything contained in the Code, the scheduled offences shall be triable exclusively by a Special Court: Provided that this section shall not be construed to require the transfer to a Special Court of any case which may be pending in any court immediately before the constitution of the Court:
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Provided further that the Govt, constituting a Special Court may. By notification in the official Gazette, direct that the Special Court shall have jurisdiction to try only such persons w ho have committed scheduled offences as may be specified in the notification. # (2) If, in the course of a trial before the Special Court, tl Court is of opinion that any of the offences which the accused is allege to have committed is not a scheduled offence, the Court shall record sue opinion and try the accused for such offence, if any, as is a schedule* offence." As the composition and establishment of the Special Court is being challenged on the ground of independence and separation of judiciary it will be appropriate to refer to other relevant provisions of the said Act. "14-A, Transfer. (1) Where two or more Special Courts have jurisdiction of cases etc. Wholly or partly in the same territorial limits and the Govt, constituting the Special Courts or, if one of such Special Court has been constituted by the Federal Govt, the Government is satisfied that for the general convenience of the parties or witnesses or for the ends of justice, it is expedient to do so, such Govt, may, by notification in the official Gazette direct that a case or class of cases specified in the notification shall stand transferred from one Special Court to another." Section 7 of the Act provides for an appeal to the High Court against the sentence passes by the Special Court. Except for the said appeal, no Court has the authority to revise the sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code of Criminal Procedure, or have any jurisdiction of any kind in respect of any proceedings of the Special Court. . The provisions of the Offences in Respect of Banks (Special Courtsj Ordinance, 1984. "3. Constitution of Special Courts. (1) The Federai Government may, by notification in the official Gazette, constitute, for {he wHdleor any part of Pakistan, Special Court consisting of a person Who has been or is, or is qualified for appointment as a Judgp'bf tjrte High Coprt. (2) A Special Court shall sit at such plaoe as the Federal Government may, by notification_in the official Gazette, specify in this behalf." - The Special Court has the exclusive jutisdiction to try.The scheduled offences, i.e., offences specified in the First Schedule and alleged to have been committed in respect, or in connection with the business, of a bank aid all cases-relating to a scheduled offence pending in any Court other than the Special Court stood transferred to the Special Court on commencement of the Ordinance. Ifaperson is sentenced by a Special Court, he has a right of appeal to the High Court under section 10 of the Ordinance. Except for the said appeal, no Court has the authority to revise t|he sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code of Criminal Procedure or have any jurisdiction of any kind in respect of any proceedings of the Spec ial Court. H. At this stage, it will also be appropriate to produce for ready reference the provisions, which are relevant for the purpose of the instant case, of the Banking Tribunals Ordinance. 1984, as the precedents cited by both the sides are the cases in which the provisions of this Ordinance were interpreted:- . ' "4. Establishment of Banking Tribunals. (l) The Federal Government may. By notification in the official Gazette, establish as mans Banking Tribunals as it considers necessary, and, where it establishes more than one Banking Tribunal, it shall specify in the notification the territorial limits within which'each of the Tribunals shall exercise jurisdiction under this Ordinance. (3) A Banking Tribunal shall consist of a person who is or has been, or is qualified for appointment as-a Judge of a High Court or a District Judge or an Additional District Judge, to be appointed by the Federal Government. 5. Powers of Banking Tribunals. (l) A Banking Tribunal shall-
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(a) in the exercise of its civil jurisdiction, have in respect of a claim filed by a banking company against a customer in respect of, or arising out of, finance, provided by it, all the powers vested in a Civil Court under the Code of Civil Procedure, l908(Act V of 1908); (b) in the exercise of its criminal jurisdiction, try the offences punishable under this Ordinance and shall, for this purpose, have the same powers as are vested in the Court of Session under the Code of Criminal Procedure. 1898 (Act V of 1898): Provided that a Banking Tribunal shall not take cognizance of any offence punishable under this Ordinance except upon complaint in writing made by a person authorised in this behalf by the Banking Company in respect of which the offence was committed: and (c) exercise and perform such other powers and functions as are, or may be, conferred upon, or assigned to it, by or under this Ordinance. (d) A Banking Tribunal shall, in all matters with respect to which procedure has not been provided for in this Ordinance, follow the procedure laid down in the Code of Civil Procedure, 1908 (Act V of 1908), and the Code of Criminal Procedure, 1898 (Act V of 1898). (2) All proceedings before a Banking Tribunal, shall b deemed to be judicial proceedings within the meaning of sections 19 and 228 of the Pakistan Penal Code (Act XLV of 1860), and the Bankir Tribunal shall be deemed to be a Court for the purposes of section 4 [Vol. XV Imran Ahmad Ch. And others V Federation of Pakistan Cr.C. 479 (Khalil ur Rehman Khan, C.J) and 482 of the Code of Criminal Procedure. 1898 (Act V of 1898). (3) No Court other than a Banking Tribunal shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Banking Tribunal extends under this Ordinance, including a decision as to the existence or otherwise of finance and the. Execution of a decree passed by a Banking Tribunal: Provided that nothing in this sub-section shall be deemed to affect- (a) the right of a Banking Company to seek any remedy before any Court or otherwise that may btfr available under the law by which the banking company may have been established or'under that law as amended from time to time; or (b) the power or jurisdiction of the banking company or any Court such as is referred to in clause(a); or to require the transfer to a Banking Tribunal of any proceedings pending before the banking company or any such Court immediate!) before the commencing day." 11. Before proceeding further it appears appropriate to survey and analyse the precedents relied upon by the learned Attorney General. The case of Golden Star Ghee Industries Ltd. Supra is a judgment whereby leave was refused, In this case it was held that the claim…
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