Judgment Sheet

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

Writ Petition…….. No.1352-P….……of……………2015.

JUDGMENT

Dates of hearing: 23rd, 24

th, 25

th, 26

th, 27

th and 30

th November, 2015 .

Date of Announced 23rd December, 2015 .

Petitioner(s) (Noor Daraz Khan) by Mr. Aminur Rehman Khan, Advocate .

Respondent(s) (Federation of Pakistan etc.) by M/s Abdul Latif Yousafzai, A.G.,

Syed Yahya Zahed Gilani P.G. Zahid Aman D.P.G, Qazi Babar

Irshad, ADP. Lajbar Khan, ADP. Farooq Shah, A.D.P.G. Attiqur

Rehman, Special Prosecutor and Ashraf Ali Khattak, Special

Prosecutor for Ehtesab Commission, Syed Mohammad Attique

Shah, Additional Attorney-General, Manzoor Khan Khalil, DAG

for Federation, Omar Farooq Adam, Addl.A.G. for Provincial

Government and Mohammad Jamil Khan, D.P.G for NAB .

MMAAZZHHAARR AALLAAMM KKHHAANN MMIIAANNKKHHEELL ,, CCJJ..-- When the

following Writ Petitions came up for hearing before a

Division Bench of this Court on 10.11.2015, by the order

under reference, the matter was referred for decision to a

larger Bench:-

1) W.P.No.1352-P/2015 with CMS 652,616,

646,871/2015 and C.M.No.1601/2015.

2) W.P. No.1949-P/2015, 3) W.P.No.1406-P/2015,

4) W.P. No.1407-P/2015, 5) W.P. No.1936-P/2015,

6) W.P. No.3104-P/2015, 7) W.P. No.2501-P/2015,

8) W.P. No.3356-P/2015, 9) W.P. No.3489-P/2015,

10) W.P. No.3500-P/2015, 11) W.P. No.3811-P/2015,

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12) W.P.No.2555-P/2015 with C.M.No.1595-P/15,

13) W.P.No.3804-P/2015, and

14) W.P.No.4001-P/2015 (M),

HHeennccee tthhiiss LLaarrggeerr BBeenncchh ccoonnssttiittuutteedd ffoorr tthhee ppuurrppoossee iiss

sseeiizzeedd ooff tthhee mmaatttteerr ttoo ccoonnssiiddeerr tthhee ffoolllloowwiinngg qquueessttiioonnss::--

i. Whether the Ehtesab Commission Act, 2014, its

subsequent amendment and the Notification are in

conflict with Articles 142 and 143 of the

Constitution of Islamic Republic of Pakistan when

the federal legislation i.e. National Accountability

Bureau Ordinance, 1999 and other laws relating to

anti-corruption on the same subject are already in

the field?

ii. Whether this law is in contravention of the

fundamental rights enshrined, inter alia, in Articles

10-A, 12 and 25 of the Constitution of Islamic

Republic of Pakistan, 1973?

iii. Whether this law suffers from errors with

jurisdiction and errors without jurisdiction and

whether its provisions pass the test of reasonability?

2. It may be mentioned here that in W.P.No.1352-

P/2015, No.1949-P/2015, No.1406-P/2015, No.1407-

P/2015, No.1936-P/2015, No.3811-P/2015, and No.2555-

P/2015, the vires of Khyber Pakhtunkhwa Ehtesab

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Commission Act, 2014 (Act No.I of 2014) have been

challenged while in W.P. No.3104-P/2015, No.3804-

P/2015, No.4001-P/2015 and No.250-P/2015, vires of

Khyber Pakhtunkhwa Ehtesab Commission (Amendment)

Act, 2015 have been challenged whereas in W.P. No.3356-

P/2015, No.3489-P/2015, No.3500-P/2015 and No.3811-

P/2015 the validity and legality of Notification No. SOE –

V (E&AC) / 14-11 / Appt / EC / 2014 dated 14.09.2015 has

been questioned. M/s. Shumail Ahmad Butt, Barrister

Mudassar Ameer, Amin-ur-Rehman, Qazi Jawad

Ehsanullah Qureshi, Ghulam Mohyuddin Malik, Sardar Ali

Raza and Ayaz Khan, advocates, argued the case on behalf

of the petitioners.

3. On the other hand, M/s. Abdul Latif Yousafzai,

Advocate-General, argued the case on notice under Order

XXVIIA Rule-1 CPC. The Attorney-General of Pakistan

was also issued similar notice and in response to that

Mr.S.M.Attique Shah, Additional Attorney-General assisted

the Court on the issues, whereas Mr.Yahya Zahid Gilllani,

Prosecutor-General Ehtesab Commission alongwith

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Muhammad Zahid Aman, DPG, Qazi Babar Irshad and

Lajbar Khan, ADPGs on behalf of the Ehtesab Commission

and Mr. Umar Farooq Adam, Additional Advocate-General

on behalf of the Provincial Government submitted their

respective arguments.

4. The crux of the arguments of the learned counsel

for the petitioners is that in presence of the National

Accountability Ordinance, 1999, which is a federal law for

the whole of Pakistan and has exhaustively covered the field

of corruption and corrupt practices would prevail over the

Ehtesab Commission Act, 2014 enacted by the Provincial

Government on the same subject under the provisions of

Article-137 of the Constitution of Pakistan whereby the

executive authority of the Province has been made subject

to, and limited by, the executive authority expressly

conferred by the Constitution or by law made by Majlis-e-

Shoora (Parliament) upon the Federal Government or

authorities thereof. According to them, after the deletion of

concurrent legislative list from the Constitution through 18th

Amendment, a mini concurrent list has been inserted in

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Article 142 (b) of the Constitution whereby the Parliament

and a Provincial Assembly both have been given the powers

to make laws with respect to criminal law, criminal

procedure and evidence, thus even after 18th amendment

the Federal Legislature is competent to make laws on the

subjects under the mini concurrent list embodied in Article-

142(b) of the Constitution and once a Central Statute on the

same subject has already occupied the field, the federal law

would prevail over the provincial law under the provisions

of Article-143 of the Constitution.

Further contended that a Statute can be challenged on

three grounds i.e. (i) legal competence of the legislation; (ii)

violation of the fundamental rights and (iii) occupied field.

The two important buzzwords for the same would be

“inconsistency” and “repugnance”. The learned counsel

stated that the word inconsistency in the common law was

described as the doctrine of Paramountcy and this doctrine

was further elaborately discussed by the Commonwealth of

Australia Constitution Act under Article-109, so, when the

Federal Government has given the same law, then the

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Provincial law would be inconsistent. The learned counsel

also referred to the constitutions of United States, Canada

and India, wherein the words ‘Preemption’ and

‘Paramountcy’ have been used and as per certain judgments

of the Indian superior Courts, where a competent legislature

expressly or implicitly evinces its intention to cover the

whole filed, the Provincial Laws may be inconsistent,

although obedience to both the laws is possible.

The learned counsel further went on to say that the

National Accountability Ordinance, 1999 has been given an

overriding effect, which means that this law has covered the

whole field of corruption and corrupt practices, as such,

there is no need of promulgating any other law on the same

subject by the Provincial Government. They submitted that

the doctrine of occupied fled has also been adopted by the

superior Courts of Pakistan. While referring to Sections 3

and 4 of the National Accountability Ordinance, 1999 they

submitted that it has clearly been stated therein that this law

would be applicable to anybody, leaving no room for the

Province to legislate on the same subject.

7

They next contended that under Article 142(a) of the

Constitution of Pakistan; the Parliament has exclusive

power to make laws with respect to any matter in the

Federal Legislative List contained in the fourth Schedule.

They referred to entry No.55 and stated that if the same is

read with Article 142 of the Constitution, then jurisdiction

and powers of all Courts, except the Supreme Court, rests

with the Federal Government and the Provincial

Government cannot establish any Court in the Province and

any such effort by the Provincial Government would be

ultra vires the Constitution.

While comparing the Ehtesab Commission Act with

different fundamental rights in the Constitution, the learned

counsel submitted that in this law some new offences have

been mentioned, which were not offences prior to

promulgation of the Ehtesab Commission Act. Similarly,

there is also difference in some penalties provided therein.

After referring to the definitions of ‘public office holder’ in

the NAO and the Ehtesab Commission Act, the learned

counsel stated that punishment has been increased in the

8

present law, which is in violation of Article 12(2) of the

Constitution. Similarly, in the NAO, judges and army are

excluded but in the present Act they are included. The NAB

law has provided Plea Bargain and Voluntary Return but

there are no such provisions of favourable sentencing in the

present law. The learned counsel averred that there can also

be a third challenge possible to the present law with respect

to ‘reasonableness’ as there should be no naked discretion

with an authority, as such a naked discretion would come

under excessive delegation. According to them, the

appointment of Chairman NAB is subject to consultation

with the Hon’ble Chief Justice of Pakistan but here in this

law, the appointment of Director-General, who has been

given wide discretion, is not subject to any consultation

with the High Court. Similarly, in this law mens rea is not

necessary but only on the basis of actus rea a person can be

held guilty. Although protection has been given to Civil

servants in the Civil Servants Act, but no immunity has

been given to them in the law in question, so this law is bad

and requires to be declared as ultra vires the Constitution.

9

The learned counsel produced a comparative table of

the two laws to show that both laws are inconsistent with

each other, if not in direct conflict. The term “repugnant” is

not limited only to the actual state of being contrary to the

Injunctions of Islam alone but would also cover the case

when an impugned provision of law itself or a custom is

disagreeable, repulsive, offensive, distasteful, inconsistent,

incompatible, irreconcilable or even averse to the spirit of

Injunctions of Islam. Laws which do not co-exist are liable

to be struck-down but if this Hon’ble Court comes to the

conclusion that the same can co-exist, then the question of

retrospectivity would come.

Their next argument was with regard to the

Notification vide which through an executive order

retrospective effect was given to the Establishment of the

Commission. Under Article-12 of the Constitution, no

retrospective effect can be given to a new offence and

punishment for an offence, as provided in a Statute cannot

be enhanced. The Ehtesab Commission Act has created new

offences and how retrospective effect can be given to it

10

from the year 2004 when the same too have been brought

through amendment in the Act. No power vests in the

executive to establish the Commission with retrospective

effect.

Further submitted that Section-3 of the National

Accountability Ordinance provides that the provisions of

this Ordinance shall have effect notwithstanding anything

contained in any other law for the time being in force, but

no such provision exists in the Khyber Pakhtunkhwa

Ehtesab Commission Act. Thus, this Section of NAO, read

with Article 143 of the Constitution, has the effect of

nullifying and rendering void all those provisions of

Ehtesab Commission Act, which provides a different

inquiry, investigation, court, forum, manner, mechanism,

treatment, procedure, penalty, fine or otherwise for the

offence of corruption and corrupt practices and that in

Ehtesab Commission Act there is nothing new to show that

NAO was not covering the same offence. There would

remain uncertainty for a citizen as to under which law he

would be tried. The learned counsel stated that although

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these laws are not in conflict but when the authorities,

accountability courts and procedure are different, then this

would show their repugnancy to each other. According to

the learned counsel, a comparison of the two laws would

reveal that the offences are the same but from place to place

the authorities and procedure have been changed and such

inconsistencies are valid grounds for declaring the KPECA

as repugnant.

The learned counsel stated that if this Hon’ble Court

still holds that the law is correct, then the question of

restrospectivity would also render the Act as a bad law

because the Commission became workable before its

establishment through a notification, which came in the

field after about one year and that too without notifying the

same in the official gazette. Thus, by simply appointing all

the Commissioners, the Commission cannot be said to have

been established which is against the mandate of law. The

scheme of the Act is to establish a Commission, form a

Legislative Committee followed by constitution of a Search

and Scrutiny Committee and then to appoint the

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Commissioners whereas the Commissioners were appointed

on 20th August, 2014, the Director General was appointed

on 15th October, 2014 and the Commission was established

on 14th September, 2015. Further contended that till date the

Commission has not been established despite the fact that

although notification in this regard has been issued but

unless the same is not published in the official gazette,

legally speaking no Commission can be said to have been

established so for. Under the provisions of Article 139(1) of

the Constitution, all executive actions of the Provincial

Government shall be expressed to be taken in the name of

the Governor, so the executive authority should be express

and not impliedly. They then referred to the Rules of

Business 1985 of the KPK Government wherein it is too

provided that whenever the Provincial Government or its

executive authority do something it should be in writing. It

is necessary in the form of a notification. The word

“Notification” has been defined in the W.P. General Clauses

Act, 1956 which means, a notification duly published in the

official gazette. The Notification in this case for the

13

establishment of a Commission signed on 14th September,

2015 has not been published in the official gazette. The

mandate of the Act is to appoint Commissioners who have

relevant experience in the field of anti-corruption but some

of the Commissioners, so appointed, have no experience in

this field and on this count too the establishment of the

Commission suffers from legal infirmity.

5. The learned counsel, while concluding their

arguments, submitted that it is well established that a

preamble of the Statute is a gateway to its intention. A look

at the preamble of the Act, 2014, would reveal that reference

has been given to Articles 37 and 38 of the Constitution,

which are regarding promotion of social justice, eradication

of social evils, and promotion of social and economic well-

being of the people. Plain reading of Articles 37 and 38

would give the impression that these are meant for

promotion of social care, removing illiteracy, technical and

professional education, ensuring inexpensive and expeditious

justice etc. It does not say that in these Articles there would

be any penal action and if any penal law is promulgated the

14

same would be against the State. Therefore, the very

preamble of the Act is against the provisions of Article 37

and 38 read with Article 8 of the Constitution. Under Section

50 of the Act, the Rules were to be framed but the same have

not yet been framed; that Section 56 of the Act provides that

in the event of a conflict between this Act and a Federal law,

the provisions of the Federal law shall prevail, so under this

provision all those sections, which are given in the Act have

become ultra vies; that under Section 5 of the Act the

Legislative Committee shall consist of ten members of the

Provincial Assembly but the minutes of the said Committee

would reveal that the matter was decided by two members as

against the statutory requirement of 10; that in the Preamble

of the Act, the Provincial Government was desirous to

implement the Charter of Good Governance but there is no

Charter of the Government for good governance in writing

form; that under Article 137 of the Constitution, the words’

subject to the Constitution’ have been used but here in the

Act the executive will of the Government i.e. ‘good

governance’ is intended, so the basis of this law is not in

15

accordance with the Constitution; that under Article 37

Clause (d) the State shall ensure inexpensive and expeditious

justice but this Act is in sheer violation of Articles 10-A and

14 of the Constitution, because the origin of this law is some

strange authority and not a constitutional authority. The

learned counsel also requested for summoning the record of

the Provincial Assembly for the purpose of seeing the

intention of the legislature behind the law. The learned

counsel in support of their arguments produced certain paper

books containing copies of a number of judgments from the

foreign jurisdiction as well as the judgments of the superior

Courts of Pakistan in support of their arguments.

6. On the other hand, Mr. Abdul Latif Yousafzai,

Advocate-General, while assisting the Court on Notice

under Order XXIIA Rule 1 CPC, and Mr. Farooq Adam

Additional Advocate-General, representing the Provincial

Government, argued that after the 18th amendment, there is

no concurrent list, whether mini or otherwise. As for as the

Constitutions of other countries like Australia, Canada and

India are concerned, the same has no relevancy with the

16

instant matter, as in the Constitutions, referred to by the

learned counsel for the petitioners, have both the Federal

and Concurrent Legislative Lists, so the Federal and

Provincial or Dominion and States both can make laws and

in that case the Federal law would prevail. Further stated

that in the background of 18th amendment, this law is

required to be seen as to what was need of 18th amendment.

The basic purpose was to give more autonomy to the

Provinces. Once the Concurrent Legislative List was

abolished from the Constitution, it cannot be said that there

is still any concurrent list. If the legislature wanted to keep

the concurrent list in any form, then there was no need for

them to totally abolish the same. According to them, Article

142 (b) in the Constitution was inserted through 18th

amendment, wherein it was provided that the Federal and

Provincial Governments can make laws on the three

subjects; i.e. Criminal Law, Criminal Procedure and

Evidence but subject to their respective territorial

jurisdictions. The Federal Government can only legislate

from the Federal Legislative List and all other residuary

17

matters fall back to the legislative domain of the Provinces.

Further contended that Sub Clause (c) of Article 142 is

subject to its Sub-Clause (b) and the same is required to be

read with Sub-Clause (d). Under Sub-Clause (c) a

Provincial Assembly have the power to make laws with

respect to any matter not enumerated in the Federal

Legislative List while Sub-Clause (d) says that the

Parliament have exclusive power to make laws with respect

to all matters pertaining to such areas in the Federation as

are not included in any Province. The laws mentioned in

Article-142 (b) of the Constitution neither before 18th

amendment nor thereafter were included in the Federal

Legislative List. If these laws were in the Federal

Legislative List, then the Provinces could not have

legislated on these subjects. If these sub-clauses are read

together, then it would reveal that although the Federal and

Provincial Governments both can legislate in the matters of

Criminal Law, Criminal Procedure and Evidence but with

respect to their respective areas of territorial jurisdiction.

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7. The learned Advocate-General contended that if the

intention of the legislature was to make these laws as

concurrent, then what was the need for totally abolishing the

Concurrent List. Obviously, the intention was to give more

autonomy to the Provinces. The learned Advocate-General,

in order to show that how the constitutional provisions

would be interpreted placed reliance on the cases reported in

2002 SCMR 312, Head note (E), Al-Jihad Trust Case (PLD

1996 SC 314) Head notes (f), (p), (kk), (ll) and (mm), which

enumerates in detail that where there are conflict between

the two provisions of the Constitution, which would prevail,

PLD 2008 SC 779) Head note (E) and (D), 2001 CLC

Karachi 148, Head note (c), PLD 2007 SC 133 Head note

(H). The learned A.G also referred to those authorities of

the superior Courts wherein it is held that the law should be

saved instead to destroy it, such as PLD 2014 Islamabad 83

Head notes (A) and (B), 2013 SCMR 34, Head notes (b) and

(c). He also referred to the case of Pir Sabir Shah (PLD

1995 SC 66) Head note (v) and submitted that a law cannot

be given an end on the grounds of arbitrariness,

19

reasonableness and malafide. Further stated that in PLD

1995 SC 423 Head note (d) it is held that there is a

presumption in favour of law that it was constitutionally or

competently made.

The learned Advocate-General while placing reliance

on PLD 2015 SC 401, Head Notes (aaaa), (eeee), (hhhhh)

and PLD 1999 SC 504 Head note (i) submitted that a law

can be declared ultra vires if it is against; (a) the

fundamental rights, and (b) the independence of judiciary.

He also referred to the Chapter of Fundamental Rights,

starting from Article-7 of the Constitution and contended

that in Article-7 the definition of State is given; Article-8

says that laws in consistent with or in derogation of

Fundamental Rights would be void; Article-9 relates to

security of person; Article-10 is with regard to safeguards as

to arrest and detention, whereas Article-10-A provides

right to fair trial; Article-11 deals with slavery, forced

labour etc.; Article-12 provides protection against

retrospective punishment; Article-13 provides protection

against double punishment and self incrimination; Article-

20

14 guarantees inviolability of dignity of man, etc.; Article-

15 provides freedom of movement, etc.; and so on. None of

the Sections of the Act, 2014 either abridge or curtail or

violate any of the Fundamental Rights. He referred to

Article-37 of the Constitution and stated that it also provides

for eradication of social evils and submitted that the law

enacted by the Provincial Government is against those

white-collar public office holders who are involved in

corruption and corrupt practices, therefore, the same is not

in any way inconsistent or in conflict with the National

Accountability Ordinance. Further submitted that under

clause (4) of Article-70 of the Constitution, the Federal

Legislative List means the Federal Legislative List in the

Fourth Schedule, which before 18th amendment, contained

the Concurrent Legislative List both in Clause (1) and (4) of

Article-70, which has now been omitted. The wisdom

derived from the provisions of Article-70 of the

Constitution before 18th amendment and thereafter would be

that the Majlis-e-Shoora (Parliament) can only make the

laws mentioned in the Federal Legislative List. He also

21

referred to Article 141 of the Constitution, dealing with

distribution of legislative powers, wherefrom the concept

becomes clear that the words “subject to the Constitution”

would be read if there are some other provisions and that

provision would be subservient or read with that provision.

As against that, the words “notwithstanding” being a non

obstante clause used in a Statute would be having an

overriding effect upon any other laws. If in Article 142 (b)

of the Constitution concurrent powers have been given by

the legislature on the three subjects, the reason behind it was

that neither before 18th amendment, nor thereafter these

subjects were part of the Federal Legislative List. After

abolition of the Concurrent List, there was need for the

Federal Government to have the powers of making laws on

these subjects in their respective areas such as FATA,

Islamabad Capital Territory etc. and that is why these laws

were given in Article 142 (b) of the Constitution with the

intention that both Federal and Provincial Governments can

make laws in their respective areas. According to him, in

Article 143 of the Constitution, the inconsistency between

22

Federal and Provincial laws would arise when the

Parliament is competent to enact a law and the same is

inconsistent with a law of the Provincial Assembly. The

Ehtesab Commission Act is not inconsistent with the

National Accountability Ordinance. After 18th amendment,

the Federal Government can enact the laws mentioned in the

Federal Legislative List or Criminal Law, Criminal

Procedure and Evidence mentioned in Article 142 (b) of the

Constitution in its respective areas. The learned Advocate-

General also referred to Article-144(1) of the Constitution

regarding power of Parliament to legislate for one or more

Provinces by consent and submitted that if a matter does not

fall within the Federal Legislative List, the Province

can ask the Parliament for making a law for the

Province but in that case too, the Federal Government

cannot repeal or amend the law of the Province and the

discretion of repeal or amend solely rests with the Province.

However, under Articles 145, 146, 147 and 148 of the

Constitution, overlapping can be done. The learned A. G.

further referred to Article 232(4) of the Constitution and

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stated that even in case of proclamation of Emergency; the

Province has the power to make any law by exercising its

powers under the Constitution. While referring to the

Federal Legislative List, the learned Advocate-General

stated that Entry No.14 is with regard to Administrative

Courts and Tribunals for Federal subjects, under which the

Province can also establish Courts by exercising their

residuary powers, while Entry No.55 regarding Jurisdiction

and powers of all courts, Entry No.28 regarding State Bank

of Pakistan, Entry No.29 regarding law of insurance all would

show that if the intention of the legislation was to retain the

powers of making laws on the three items mentioned in

Article 142 (b) of the Constitution, it could have inserted these

three items in the Federal Legislative List, but as the intention

behind the 18th amendment was to give more autonomy to the

Provinces, the legislature did not insert the subjects in

question in the Federal Legislative List and mentioned the

same in Article 142 (b) for parallel exercise of powers by both

the Governments i.e. Federal and Provincial.

24

According to the learned Advocate-General it would

also be a question for consideration, whether the Ehtesab and

NAO laws are covered by criminal law or not because if it is

covered and there is a law of the Federal Government, then

the question of occupied field, inconsistency etc. would be

attracted. The preamble of Pakistan Penal Code reveals that it

is a general law. As against this, the NAO and Ehtesab

Commission Act are special laws. Special law is covered

under Section 41 of PPC where it has been differentiated. This

special law is not covered by the term Criminal law. In the

Concurrent Legislative List (now omitted) Entries No.1,2,3

and 4 has particularized the criminal law to an extent where as

Entry No.16 was regarding measures to combat certain

offences committed in connection with matters concerning

the Federal and Provincial Governments. Since this list has

been omitted including entry No.16, therefore, now it will

fall back to the Provinces being residuary subjects. Thus

with respect of Special law the domain has come to the

Province and when the Province would make a law, it

would also establish a Court also.

25

The learned Advocate-General further submitted

that Article 270-AA of the Constitution was initially

introduced after 17th amendment, which was amended

further after 18th amendment. Under Article-270AA of the

Constitution, certain laws were declared as without lawful

authority and of no legal effect while under Clause (2) of

Article 270-AA certain acts, orders etc. were provided

protection. Clause (6) provided that notwithstanding

omission of the Concurrent Legislative List by the

Constitution (Eighteenth Amendment) Act, 2010, all laws

with respect to any of the matters enumerated in the said

List (including Ordinances, Orders, rules, bye-laws,

regulations and notifications and other legal instruments

having the force of law) in force in Pakistan or any part

thereof, or having extra-territorial operation, immediately

before the commencement of the Constitution (Eighteenth

Amendment) Act, 2010, shall continue to remain in force

until altered, repealed or amended by the competent

authority. In such a situation Article-143 of the Constitution

would not apply because life was given to it under Article

26

270AA and once the Province made a law, the same cannot

be declared ultra vires the Constitution. The learned

Advocate-General in this regard placed reliance on PLD

2010 Karachi 328. According to him, the ‘competent

authority’ as mentioned in the Explanation of clause (2) of

Article 270AA of the Constitution reveals that appropriate

legislature would be that of the Province.

The learned Advocate-General while concluding his

arguments also placed reliance on the judgment in the case

of Asfand Yar Wali Khan (PLD 2001 SC 607) Para-174

at Page 872 and Paras 173, 176, 178 and asserted his stance

that the Ehtesab Commission Act was competently made, it

is not in conflict with any other law, it was within the

domain of the Provincial Legislature and the vires of this

Act cannot be examined on the touchstone of conflict with

any other law.

The learned Advocate-General on the question of

Notification for establishment of the Commission argued

that it was not the requirement of law as is evident from

Sections-3 and 4 of the Act and the moment notifications

27

for composition of the Commission were issued, the

Commission stood established because the law does not say

about the issuance of a notification for the establishment of

the Commission. The Notification issued in the year 2015

was a mistake of officials of the Establishment Department

and that is why the same was not published in the official

gazette and unless such like notification is published in the

official gazette, the same will have no legal force. Sections

3 and 4 of the Act are required to be read together and if the

same are read independent of each others, the same would

be meaningless. Section-3 of the Act says that the

Government shall establish a Commission while Section-4

says about composition of the Commission. The moment

the Commissioners were appointed, the Commission stood

established, e.g. in case the Provincial Government had

issued an executive order to establish the Commission but

without any Commissioners, could it safely be said that the

Commission had become functional. The word ‘established’

should be read with ‘functional’ and as and when the

Commission became functional, it became established.

28

Further submitted that after the enactment of the Act, 2014,

the Legislative Committee was constituted, whereafter the

Search and Scrutiny Committee came into field. After

proper advertisement for suitable persons, the Director-

General and Prosecutor-General were appointed and thus on

20th August, 2014, the Commission stood established. The

learned Advocate-General referred to Section 50 of the Act

and stated that where the word notification was necessary,

the same was used in the Act and the objection of

petitioners is without any force because notifications in

fiscal laws and money matters are normally issued but in

other laws, it is the law itself either to intend issuance of

such a notification or not. Only that notification cannot be

issued with retrospective effect when certain rights are

taken from the citizens but where no rights are infringed, the

same can be issued with retrospective effect.

8. Mr.Umar Farooq Adam, Addl; Advocate-General

argued that no literal meaning could be given to the

provisions of Article-142(b) of the Constitution. He referred

to the Repot of the Committee on 18th amendment and

29

stated the terms of Reference was that the Committee shall

propose amendments to the Constitution keeping in view

the 17th Amendment, Charter of Democracy (CoD) and

provincial autonomy, in order to meet the democratic and

Islamic aspirations of the people of Pakistan. He referred to

Articles 142, 143, 149, 154 of the Constitution before 18th

amendment and after 18th amendment, wherein the words

‘concurrent’ have been omitted. So, the decision of the

Parliament was unanimous to omit the word concurrent

used in various Articles of the Constitution including 142

(b), therefore, it cannot be said that the powers given to the

Federation and the Provinces are concurrent on the three

laws mentioned in it. According to him, the Ehtesab

Commission Act is in no way and by no stretch of

imagination is inconsistent or repugnant to the provisions of

the Constitution. One can say that criminal law mean

Pakistan Penal Code, criminal procedure as the Criminal

Procedure Code and evidence means the Qanun -e-

Shahadat Order. The question of inconsistency, repugnancy

and occupied field would not arise if explanation (b) of

30

Clause (2) of Article-270AA of the Constitution is read with

entries No.16 and 46 of the deleted concurrent list; that the

NAO is a sunset law because sub-clauses (a) and (d) of

Article 142 would make it territorial; that all the judgments

referred to by the learned counsel for the petitioners about

inconsistency, repugnancy and occupied field were

regarding fiscal matters. He placed reliance on PLD 1976

SC 483 H. Note (d) and AIR 1939 Federal Court, 74

(Page-84). The learned AAG further submitted that the

Ehtesab Commission Act only supplement the field of

corruption and corrupt practices and it is neither

contradictory, nor inconsistence nor repugnant. This

situation would arise only when one law says No and the

other says Yes. In this regard he also placed reliance on the

case of Asfand Yar Wali Khan. While comparing the two

laws, he read the Preambles of the two laws and stated that

both of them are on the same subject matter and the same

agenda, so there is no contradiction. Similarly, the other

Sections are also not in conflict with each others. He also

argued that NAO is wider in scope, which applies to all

31

persons whereas the Act covers only the public office

holders and the question of occupied field would thus not

arise. Under the provisions of Ehtesab Commission Act, the

Legislative Committee as well as Search and Scrutiny

committee after inviting objections from the public would

make appointment of Director-General but in the NAO this

power rests only in one person i.e. the Chairman. In the

NAO, the officers have a share in the recovery and nothing

is provided in the Ordinance about audit whereas in the Act

there is an external audit mechanism. The learned AAG

concluded that there is no inconsistency or repugnancy and

relied upon the case of District Bar Association,

Rawalpindi vs. Federation of Pakistan (PLD 2015 SC

401) – Head Note (AA).

9. Mr. Yahya Zahid Gillani, Prosecutor-General,

assisted by Zahid Aman, DPG, Qazi Babar Irshad and

Lajbar Khan, ADPGs, while arguing the case on behalf of

the Ehtesab Commission adopted the arguments of the

learned Additional Advocate-General and stated that none

of the sections of the Ehtesab Commission Act either are in

32

violation of the provisions of the Fundamental Rights or in

conflict with the provisions of the Constitution or the

National Accountability Ordinance, 1999. They in support

of their arguments also relied upon certain judgments of the

superior Courts.

10. The learned Additional Attorney-General, while

assisting the Court, argued that the National Accountability

Ordinance, being a central law, has already been

promulgated in the year 1999, which has further passed the

test of validity from the apex Court in the case of Asfand

Yar Wali Khan; therefore, the Provincial Legislature

cannot make any law on the same subject for which the

competent authority under Article 270-AA (1) and (2) of the

Constitution is the Federal Legislature, unless the same is

repealed or amended by the competent authority. According

to him, the Central law is standing on much higher pedestal

than the Provincial law and it is to remain in the field under

Article-270 AA (2) of the Constitution. Further submitted

that the powers under Article 142(b) of the Constitution are

concurrent and although Provincial Legislation is competent

33

to make a law but in such concurrency of power, it cannot

overlap an existing and valid law already enacted by the

Federal Legislature, so the competency of the Provincial

Government in this regard would be restricted by the

doctrine of ‘occupied field’. The learned Additional

Attorney-General further submitted that when there are two

laws, one made by the Federation and the other by the

Province, the Federal law would be given preference under

Article 143 of the Constitution, and the law so made by the

Province being ultra vires the Constitution, is required to be

declared so.

11. Mr. Muhammad Jamil Khan, Deputy Prosecutor-

General on behalf of the NAB adopted the arguments of the

learned Additional Attorney General and stated that in

presence of NAO, no scope is left for the Provincial

Government to make a law on the same subject as the field

is already covered.

12. Arguments of the learned counsel for the parties

were heard.

34

13. In January, 2014, the Provincial Legislature passed

an Act known as the “Khyber Pakhtunkhwa Ehtesab

Commission Act (Act No.I of 2014)”. The Preamble of the

Act is reproduced herein below for facility of reference:-

WHEREAS the Provincial Government of the

Khyber Pakhtunkhwa is desirous to implement

the Charter of Good Governance of the

Provincial Government, in order to ensure the

implementation of laws, safeguard of citizens’

rights, and provide justice without delay and in a

transparent manner under a system of good

governance;

AND WHEREAS pursuant to Articles 37 and 38

of the Constitution of the Islamic Republic of

Pakistan, all citizens have a right to the

promotion of social justice and social and

economic well-being through efficient, honest

and effective management of public resources;

AND WHEREAS the Charter of Good

Governance of the Provincial Government,

requires the provision of a comprehensive

redressal mechanism to address failure or

misconduct on the part of public office holders,

while misusing or abusing their powers or

authority through corruption, corrupt practices,

misappropriation of property, receiving

kickbacks, commissions and for matters

connected and ancillary or incidental thereto;

35

AND WHEREAS it is expedient to provide for a

mechanism through which the recovery of

Government money and other assets from Public

Office Holders, who have misappropriated or

received such money or assets through

corruption, corrupt practices and misuse of

power or authority can be achieved;

NOW, THEREFORE, it is expedient to establish

an autonomous and accountable anti-corruption

institution in the Province of the Khyber

Pakhtunkhwa, in order to promote the integrity

and accountability of public sector

administration.

This Act was further amended through Act No.XXVII of

2014 and then through Act No.XXXI of 2015. In the

principal Act, under Section 57 the West Pakistan Anti-

Corruption Establishment Ordinance, 1961 was repealed but

in the amending Act No.XXVII of 2014, Section 57 was

deleted and new sub-section (5) was added to Section 35 as

under:-

“Subject to sub-section (2) the Anti-Corruption

Establishment established under the West Pakistan

Anti-Corruption Establishment Ordinance, 1961 shall

in addition to its functions under the Act ibid, also act

in aid or assistance of the Commission.”

36

Through Amending Act No.XXXI of 2015, Section

1 (3) was substituted to the following effect:-

“(3) It shall come into force at once and shall be

deemed to have taken effect from the 1st

day of

January, 2004:

Provided that all the amendments made in this

Act till the commencement of the Khyber

Pakhtunkhwa Ehtesab Commission (Amendment)

Act, 2015, shall be deemed to have come in to force

from the 1st

day of January, 2004.”

14. The Ehtesab Commission Act, 2014 provides for the

investigation in respect of a complaint or information

received by the Director-General or on the recommendation

of the Prosecutor General and the Director of the

Investigation Wing, as the case may be, order an inquiry or

investigation into any incident or an act or omission of a

person or accused, that reasonably appears to constitute an

offence under the Act. Section 35(2) of the Act further

provides that the Director General, may, on the

recommendation of the Prosecutor General and the Director

of the Investigation Wing, order that the inquiry or

investigation be conducted with the aid or assistance of any

37

other agency of Government or Federal Government.

Similarly sub-Section (3) of Section 35 is to the effect that if

jurisdiction over the inquiry or investigation of a suspected

offence is assumed by an agency of the Federal Government,

the Director General shall meet with the relevant officers of

such agency and determine whether the Commission or such

agency has proper jurisdiction over the matter; provided that

in making such determination, the Director General shall

take into regard the following factors:

a) the stage of inquiry or investigation being

conducted by the Commission at the time of

assumption of jurisdiction by Federal Agency;

b) territorial location from where evidence has been

collected during the inquiry or investigation; and

c) place of residence of prosecution witnesses who

are to testify against the accused.

Sub-section (4) of Section 35 of the Act further says that:-

‘Following a determination based on the factors

mentioned in sub-section (3), the Director General

shall make a recommendation to such agency of the

Federal Government with regard to exercise of

jurisdiction over the matter in the interest of effective

prosecution and crime prevention and the decision of

38

the agency of the Federal Government in the matter

shall be final and binding.”

Section 36 of the Act deals with Cognizance of offences

while Section 39 (Part-IV) relates to trial and under Section

41 of the Act, Ehtesab Courts are to be established within

thirty days of the commencement of the Act. In Section 42,

Procedure for Trial is given. Under Section 56 of the Act it

has been provided that an effort shall be made to interpret

this Act harmoniously with other Federal laws on the

subject; provided that in the event of a conflict between this

Act and a Federal law, the provisions of the Federal law shall

prevail.

15. The first question to be determined is whether the

Ehtesab Commission Act, 2014, its subsequent

amendments and the Notification are in conflict with

Articles 142 and 143 of the Constitution of Islamic

Republic of Pakistan when the federal legislation i.e.

National Accountability Bureau Ordinance, 1999 and

other laws relating to anti-corruption on the same

subject are already in the field? The vehemence of

39

learned counsel for the petitioners was on the point that

under Article-143 of the Constitution, it is the Federal law,

which shall prevail over the Provincial law and as the

National Accountability Bureau Ordinance, 1999

(hereinafter called the Ordinance) has already been

promulgated by the Federal Government, therefore, the

principle of ‘occupied field’ would attract to the case and

the Act of the Provincial Assembly, being in conflict with

the provisions of the Constitution, is required to be declared

as ultra vires the Constitution.

16. The Constitution (Eighteenth Amendment) Bill, 2010

was passed by the National Assembly of Pakistan on April 8,

2010 and by the Senate on April 15, 2010. It received the

assent of the President and became an Act of Parliament on

April 19, 2010. Amongst the most important provisions of

the Constitution(Eighteenth Amendment)Act(hereinafter "the

18th Amendment") are those relating to amendment of the

Fourth Schedule of the Constitution, which contained the

Federal Legislative List (Part I and Part II) and Concurrent

Legislative List. By omitting the Concurrent Legislative List,

40

the 18th Amendment has fundamentally altered the division

of legislative powers between Parliament and the Provincial

Assemblies, resulting in a significant increase in the extent of

Provincial autonomy. The 18th Constitutional Amendment

was unanimously passed by the Parliament and notified in

the Gazette of Pakistan on 20th April, 2010. This amendment

introduced about thirty six percent changes in the 1973

Constitution of Pakistan by amending, inserting, adding,

substituting or deleting various Articles of the Constitution.

The 18th Constitutional Amendment has redefined the

structural contours of the state through a paradigm shift from

a heavily centralized to a predominantly decentralized

federation. Literature suggests that federalism was originally

devised and continues to be viewed as an institutional

mechanism for dividing power and sovereignty between

national and regional levels of governments in order to

reduce the likelihood of an authoritarian or overly centralized

government. In this context, the new constitutional

framework of Pakistan has reinforced a multilevel

governance system by extending greater autonomy to the

41

federating units (provinces) and laying down fundamentals

of substantive decentralization at the lower tiers of the local

governance. Pakistan's Constitution delineates the extent of

executive authorities of federal and provincial governments

through Article 90 and 137 respectively. The executive

authority of the federation extends to matters with respect to

which the Parliament holds the power to make laws,

including the exercise of rights, authority and jurisdiction in

and outside Pakistan, while the executive authority of the

province extends to matters with respect to which the

Provincial Assembly has the power to make laws.

Principally, the executive authority has been conditioned

with the legislative authority at the federal and provincial

levels. The 18th amendment has re-demarcated the

jurisdictions of Pakistan's multi-level governance at the

federal, inter-provincial and provincial levels by revising the

Federal Legislative List Part I and Part II and abolishing the

erstwhile Concurrent Legislative List. Subsequently, the

legislative and executive authorities of the federal and

provincial governments have been delimited by assigning the

42

exclusivity of 53 subjects to the federal government, 18

subjects to the Council of Common Interests and all residual

subjects to the provincial governments. Further redistribution

of functions at the district, tehsil and union council levels has

been vested with the provincial governments in accordance

with the policy framework enunciated in Article 140 (A) of

the Constitution.

17. Article 270AA (6), as amended, provides that

notwithstanding omission of the Concurrent Legislative List,

all laws with respect to any of the matters enumerated in the

said List (including Ordinances, Orders, rules, bye-laws,

regulations and notifications and other legal instruments

having the force of law) which were in force immediately

before the commencement of the 18th Amendment, shall

continue to remain in force until altered, repealed or

amended by the competent authority. The Explanation to

Clause (2) of Article 270AA defines "competent authority' to

be: (a) in respect of all laws, the appropriate Legislature; and

(b) in respect of notifications and rules etc., the authority in

43

which the power to make, alter, repeal or amend the same

notifications and rules etc vests under the law. In the light of

the said provisions of Article 270AA (2), the competent

authority for all the residual matters is now the Provincial

Assembly in respect of each Province under Article 142 (c).

18. It may be mentioned here that under various

substantive penal laws of Pakistan, the offences of corrupt

and corrupt practices were offences and carrying punishment

of three years to life imprisonment but to eradicate

corruption more effectively from the Government

institutions, the Prevention of Corruption Act, 1947 was

promulgated, which provided the enhanced sentence of 7

years imprisonment. In 1975, Pakistan Special Police

Establishment (PSPE) was replaced with the Federal

Investigation Agency (FIA) having jurisdiction over

corruption along with other crimes. Ehtesab (Accountability)

Bureau was created under the Ehtesab Act 1997, specially

aimed at elimination of corruption, but in the year 1999, the

National Accountability Ordinance 1999 (NAO), replaced

44

the defunct Ehtesab (Accountability) Bureau with its

National Accountability Bureau (NAB). Simultaneously, to

deal with corruption at provincial level, Anti-Corruption

Establishments (ACEs) were created in each of the four

provinces.

19. There is no cavil to the proposition that the menace

of corruption is a big problem for this country. Corruption is

indeed a poison which squanders Government resources,

deters investment, stunts economic growth undermines

democracy and good governance, fuels poverty and hunger

and also creates political instability. Though by the grace of

ALMIGHTY ALLAH, our country has rich natural resources

in the shape of oil, gas, mine and minerals, stones etc., but

due to corrupt elements, our country could not be developed.

On 11.08.1947, the founder of Pakistan Qaid-e-Azam

Muhammad Ali Jinnah, in his landmark address to the first

Constituent Assembly of Pakistan, unequivocally identified

the first priorities of his Government and that included

‘Eradication of Corruption’. His valuable words are quoted

45

below. The first observation that I would like to make is

this:-

“You will no doubt agree with me that the first

duty of a Government is to maintain law and

order, so that the life, property and religions

beliefs of its subjects are fully protected by the

State. The second thing that occurs to me is

this, one of the biggest curses, from which

India is suffering. I do not say that other

countries are free from it, but, I think our

condition is much worst, is bribery and

corruption. That really is a poison. We must

put that down with an iron hands and I hope

that you will take adequate measures as it is

possible for this Assembly to do so.”

In his speech delivered on 26.03.1948, the founder

of the nation also pointed out the social order he intended to

establish in the newly founded homeland where he said:-

“You are only voicing my sentiments and the

sentiments of Muslims or Mussalmans, when

you say that Pakistan should be based on sure

foundation of social justice and Islamic

Socialism, which emphasis’s equality and

brotherhood of man. Similarly you are voicing

my thoughts in asking and in inspiring for

equal opportunities for all.”

46

The august Supreme Court of Pakistan in the Suo Moto

Case No. 18 of 2010 (2014 SCMR 585) has held that:-

“Corruption is a particularly iniquitous malady

that has plagued Pakistan even before its

inception. We as a nation have utterly failed to

adhere to the counsels of our incorruptible

Quaid-e-Azam Muhammad Ali Jinnah, who in

1945 wrote a letter to Mirza Abol Hassan

Ispahani wherein he stated, Corruption is a

curse in India and amongst Muslims, especially

the so-called educated and intelligentsia.

Unfortunately, it is this class that is selfish and

morally and intellectually corrupt. No doubt this

disease is common, but amongst this particular

class of Muslims it is rampant.”

Similarly, in the case of All Pakistan Newspapers Society

Vs. Federation of Pakistan (PLD 2012 SC 1), their

lordships have observed that:-

“Legislation of law is the domain and prerogative of

the legislature, which has wisdom to promulgate a

law to achieve a particular object and purpose,

presumably promulgating such laws legally, validly

on the basis of its competence.”

The august Supreme Court of Pakistan in the case of Pir

Sabir Shah versus Shad Muhammad Khan, Member

47

Provincial Assembly, N.-W.F.P. and another (PLD 1995

SC 66) has held that:-

“Legislative act cannot be struck down by a superior

Court on the grounds of mala fides, or lack of bona

fides or non-application of mind in exercise of such

power- Executive action, however, is not immune

from being challenged on the said grounds under

Art.199 of the Constitution of Pakistan (1973).”

In Zaman Cement Company (Pvt.) Ltd versus Central

Board of Revenue and others (PLD 2002 SCMR 312) the

following observations have been made by their lordships of

the august Supreme Court of Pakistan:-

“Function of judiciary is not to legislate or question

the wisdom of Legislature in making a particular law

nor it can refuse to enforce law even if the result of it

be to nullify its own decision, provided the law is

competently made – Vires of law can only be

challenged being violative of any provision of the

Constitution, but not on the ground that it nullifies the

judgment of superior Court.”

In another case reported in 2013 SCMR 34 from Indian

jurisdiction, it has been held that:-

“Legislative enactment could be struck down by court

only on two grounds, firstly where the appropriate

Legislature did not have competency to make the law

and secondly, where it (enactment) abridged any of the

48

fundamental rights enumerated in the Constitution or

any other constitutional provisions.”

The august Supreme Court of Pakistan in its recent

judgment in the case of Lahore Development Authority

through D.-G. and others versus Ms. Imrana Tiwana

and others (2015 SCMR 1739), has held that:-

“64. The power to strike down or declare a legislative

enactment void, however, has to be exercised with a great

deal of care and caution. The Courts are one of the three

coordinate institutions of the State and can only perform

this solemn obligation in the exercise of their duty to uphold

the Constitution. This power is exercised not because the

judiciary is an institution superior to the legislature or the

executive but because it is bound by its oath to uphold,

preserve and protect the Constitution. It must enforce the

Constitution as the Supreme Law but this duty must be

performed with due care and caution and only when there is

no other alternative.

65. Cooley in his "Treatise on Constitutional

Limitations", Pages 159 to 186, H.M. Seervai in

"Constitutional Law of India", Volume I, Pages 260 to 262,

the late Mr. A.K. Brohi in "Fundamental Law of Pakistan",

Pages 562 to 592, Mr. Justice Fazal Karim in "Judicial

Review of Public Actions" Volume I, Pages 488 to 492 state

the rules which must be applied in discharging this solemn

duty to declare laws unconstitutional. These can be

summarized as follows:--

I. There is a presumption in favour of constitutionality

and a law must not be declared unconstitutional unless the

statute is placed next to the Constitution and no way can be

found in reconciling the two;

II. Where more than one interpretation is possible, one

of which would make the law valid and the other void, the

Court must prefer the interpretation which favours validity;

III. A statute must never be declared unconstitutional

unless its invalidity is beyond reasonable doubt. A

reasonable doubt must be resolved in favour of the statute

being valid;

49

IV. If a case can be decided on other or narrower

grounds, the Court will abstain from deciding the

constitutional question;

V. The Court will not decide a larger constitutional

question than is necessary for the determination of the case;

VI. The Court will not declare a statute

unconstitutional on the ground that it violates the spirit of

the Constitution unless it also violates the letter of the

Constitution;

VII. The Court is not concerned with the wisdom or

prudence of the legislation but only with its

constitutionality;

VIII. The Court will not strike down statutes on principles of

republican or democratic government unless those

principles are placed beyond legislative encroachment by

the Constitution;

IX. Mala fides will not be attributed to the Legislature.

20. The National Accountability Ordinance, 1999 is

a law promulgated by the Federal Government before 18th

amendment. Before 18th amendment in the Constitution, the

subjects of criminal law, criminal procedure, civil procedure

and evidence were part of the Concurrent Legislative List at

S.Nos.1, 2 and 4 by virtue of which the Parliament and

Provincial legislatures both were competent to make laws

on these topics. After 18th amendment, the concurrent list

was omitted in its totality and these subjects were neither

inserted in the Federal Legislative List, nor were kept on the

50

Concurrent Legislative List, however, the three subjects i.e.

criminal law, criminal procedure and evidence were

mentioned in Article-142 (b) of the Constitution as under:-

“142 (b) – Majlis-e-Shoora (Parliament) and a

Provincial Assembly shall have power to make

laws with respect to criminal law, criminal

procedure and evidence.”

The learned counsel for petitioners gave their interpretation

to Clause (b) of Article 142 of the Constitution in the sense

that this is a mini concurrent list, on which both the

Parliament and a Provincial Assembly have powers to make

laws while the provisions of this Article, itself, are clear

enough in respect of distribution of legislative powers

between Parliament and Provincial Legislatures, which

provide that the Federal and the Provincial Legislatures

within their respective domains would be competent to

make laws on the said subjects. For the sake of

convenience, entire Article 142 is reproduced here as

under:-

“142(a) Majlis-e-Shoora (Parliament) shall have

exclusive power to make laws with respect to any

matter in the Federal Legislative List;

51

(b) Majlis-e-Shoora (Parliament) and a Provincial

Assembly shall have power to make laws with respect

to criminal law, criminal procedure and evidence;

(c) subject to paragraph (b), a Provincial Assembly

shall, and Majlis-e-Shoora (Parliament) shall not,

have power to make laws with respect to any matter

not enumerated in the Federal Legislative List;

(d) Majlis-e-Shoora (Parliament) shall have exclusive

power to make laws with respect to all matters

pertaining to such areas in the Federation as are not

included in any Province.”

21. We are acutely aware of the fact that what we

are interpreting is a provision of the Constitution. Indeed the

Constitution is a law, in its ordinary sense; however, it is also a

law made by the people as a nation, through its Constituent

Assembly. Written constitutions seek to delineate the spheres of

actions of the various organs of the State, with more or less

strictness, and the extent of powers exercisable therein. The

Report of the Special Committee of the Parliament on

Constitutional Reforms would reveal that Provincial Autonomy

was also one of the terms of reference. When we look at Articles

141, 142 and 143 of the Constitution relating to the (extent of

Federal and Provincial laws); (Subject matter of Federal and

52

Provincial laws); (Inconsistency between Federal and

Provincial laws), we find that legislative powers of the

Parliament are spoken of in the said articles in terms of laws

mentioned in the Federal Legislative List; powers with a

Provincial Assembly to make law with respect to the three

subjects mentioned in Article 142 (b); the incompetence of the

Parliament to make laws with respect to any matter not

enumerated in the Federal Legislative List; and that an Act of

Parliament shall prevail over an Act of the Provincial Assembly and

the Act of the Provincial Assembly shall, to the extent of the

repugnancy, be void. It is a well known dictum of statutory and

constitutional interpretation that when some words or phrases are

used in the Constitution, same meaning should be ascribed, unless

the context demands otherwise. Articles 142, 143, 144, 149, 154 of

the Constitution before 18th amendments were having the words

‘concurrent’, but these words have now been omitted from the said

Articles after 18th amendment. However, the intention of the framers

of the 18th amendment is very much visible to the extent by retaining

the three subjects in clause (b) of Article 142 of the Constitution

with the Parliament and the Provincial Assembly and in case of

53

repugnancy between the law made by the two legislatures, the

provisions of Article 143 would be attracted. Giving a plain meaning

to it would lead us to the inference that the powers are exercisable

by both the legislatures if not in conflict with each other.

22. The term 'ultra vires' simply means "beyond powers"

or "lack of power". The term 'ultra vires' signifies a concept

distinct from "illegality". In the widest sense every thing

that is not warranted by law is illegal but in its proper or strict

connotation "illegal" refers to that quality which makes the act

itself contrary to law. We, therefore, hold that keeping in view

the provisions of Article 142 (b) and other relevant Articles of

the Constitution; the Ehtesab Commission Act is not ultra vires

to the provision of the Constitution, as the same was within

competence of the Provincial Legislature.

23. The Ehtesab Commission Act, 2014 was made pursuant

to Articles 37 and 38 of the Constitution of Pakistan. The

objection of the learned counsel for the petitioners was that the

said Articles relate to promotion of social justice and economic

well-being, under which a criminal law cannot be enacted.

54

Perusal of Article 37 of the Constitution would, however, reveal

that it relates to promotion of social justice and eradication of

social evils. Corruption or corrupt practices are now-a-days

indeed a social evil, thus the Provincial Assembly could

competently make a law to effectively curb the social evils from

the society. When a legislative body enacts a law, it exercises its

legislative function. The essentials of such function are the

determination of the legislative policy. Basically, social evil is

anything that could be considered harmful or dangerous to a

person who is involved in it but also the people who are related

to him or live around him i.e. the whole society and/or

community.

24. Another question raised by the learned counsel for

the petitioners was that the Ehtesab Commission Act, 2014 is

repugnant to the National Accountability Bureau Ordinance,

1999. The question of repugnancy becomes material when the

law made by Parliament and the law by the Provincial

Legislature on the same subject are contradictory to each other,

dealing with the same matters, but where the two laws can

55

simultaneously be run without overlapping rather are

supplemental in nature, the question of repugnancy would not

arise. One of the tests of repugnancy is that there is a

direct conflict between the two laws which are said to be

repugnant to each other. There should be a

presumption in favour of the validity of a law

and every effort should be made to reconcile

them and construe both so as to avoid their repugnancy, which in

other case must exist in fact and not merely on a possibility.

Care should also be taken to see whether the two really operate

in the field without encroachment. A comparison of the two laws

would reveal that there is no inconsistency in the actual terms of

the Ordinance and the Act. The learned counsel for petitioners

also laid great stress on the point that under the NAB Ordinance

the appointment of Chairman NAB is subject to consultation

with the Chief Justice of Pakistan, whereas under the Ehtesab

Act no such consultation is required for appointment of the

Commissioners and Director General, who has been given vast

powers under the Act. A look at the provisions of the Act would,

however, reveal that appointment of the Commissioners and

56

Director General is not the job of one person. Under Section 5 of

the Act the Legislative Committee, consisting of ten members of

the Provincial Assembly, nominated on the basis of equal

representation of both treasury and opposition benches shall

confirm nominees for the Search and Scrutiny Committee. The

Search and Scrutiny Committee shall comprise five (05)

members of high moral integrity, repute and statures, which shall

seek applications for the position of Commissioners from the

general public through public advertisements and evaluate the

eligible candidates in accordance with the process given in

Section 8(3) of the Act. Under Section-9 the Commission shall

appoint the Director General, Prosecutor General and Director

Internal Monitoring and Public Complaints Wing for the smooth

functioning of the Commission and effective discharge of the

statutory obligations of the same. In view of the above procedure

for appointment of the Commissioners and other staff of the

Commission, we do not apprehend that the appointment of

Commissioners have no transparent procedure in the Act.

57

The provisions of National Accountability Ordinance, 1999

and Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 are at

par with each other and, in case of assuming parallel jurisdiction

over a matter, the provision of Section 35 of the Khyber

Pakhtunkhwa Ehtesab Commission Act, 2014 would be resorted

to. As per Section 35 (3) of the Act:-

“If jurisdiction over the inquiry or investigation of a

suspected offence is assumed by an agency of the

Federal Government, the Director General shall meet

with the relevant officers of such agency and determine

whether the Commission or such agency has proper

jurisdiction over the matter; provided that in making

such determination, the Director General shall take

into regard the following factors.

(a) the stage of inquiry or investigation being conducted

by the Commission at the time of assumption of

jurisdiction by Federal Agency;

(b) territorial location from where evidence has been

collected during the inquiry or investigation; and

(c) place of residence of prosecution witnesses who are

to testify against the accused.

(4) Following a determination based on the factors

mentioned in sub-section (3), the Director General

shall make a recommendation to such agency of the

Federal Government with regard to exercise of

jurisdiction over the matter in the interest of effective

prosecution and crime prevention and the decision of

58

the agency of the Federal Government in the matter

shall be final and binding.”

Section 56 of the Act further provides that:-

“An effort shall be made to interpret this Act

harmoniously with other Federal laws on the subject;

provide that in the event of a conflict between this Act

and a Federal law, the provisions of the Federal law

shall prevail.”

The above provisions of the Act have thus left enough room for

the Federal law, in that, the functionaries under the Ehtesab

Commission Act would not initiate proceedings in a matter, for

which a federal agency has already taken cognizance unless the

said federal agency is convinced that the matter pertains to their

jurisdiction and in case of any conflict between the Act and a

Federal law, the provisions of the Federal law shall prevail. We

cannot go into the extent of that academic discussion, as to what

would be the impact of such law on an individual, because it can

be resolved keeping in view the nature of inconsistency and

repugnancy involved in a particular case but so for as the instant

case now before us is concerned, it cannot be said that the two

laws cannot stand together and indeed on a scrutiny of the

provisions of the two laws, there can be no doubt that they may

59

very well be treated to be complementary to each other. Only

keeping the two laws in juxtaposition is not a safe idea to

determine the question of occupied field because it has also to be

seen whether the two laws can proceed side by side without

blocking each other. In the case of Aftab Shahban Mirani and

others vs. Muhammad Ibrahim and others (PLD 2008

Supreme Court 779) the learned Apex Court has laid down as

under:-

“Conflict of two provisions- Principle- Redundancy

cannot be attributed to any provisions of law rather

the wisdom of the legislature in case of any conflict of

two provisions, the rule of harmonious interpretation

is followed.”

In the case of District Bar Association, Rawalpindi and

others versus Federation of Pakistan and others (PLD 2015

SC 401) the august Supreme Court of Pakistan has held that:-

“Constitutions of foreign countries relevance of--

Any reading of the Constitution of Pakistan must be

firmly grounded in Pakistan’s historical facts and

Constitutional text and not on the irrelevant

historical facts of foreign countries.”

60

In fact, the Dominion of Canada has a written as well as partly

unwritten constitution. It is not modeled on the doctrine of

exclusive division of power between the departments of State,

legislative, executive and judicial. It does not place them in three

water-tight compartments and it is somewhat similar in shape in

this respect to the British constitution where the King is still a

part of the legislature, the House of Lords still a part of the

judicial as well as legislative and where all parts of government

form a mutual check upon each other. Here the scenario is quite

different particularly after the 18th amendment. There is very thin

line of difference between the doctrines of Repugnancy and

Occupied Field. As we know that repugnance arises only if there

is an actual conflict between two legislations, one enacted by the

Federal and the other by the Provincial Legislatures, both of

which were competent to do so. After 18th Amendment, the

scenario of occupied field has gone a manifest change as the

concurrent legislative list has been omitted. It would be attracted

only in respect of the subjects mentioned in clause (b) of Article

142 of the Constitution and, that too, when there is a repugnancy

between the laws made by the Federal and the Provincial

61

Legislatures within the meaning of Article 143. In the case of

Province of West Pakistan and another vs. Mahboob Ali and

another (PLD 1976 SC 483), their lordships of the August

Supreme Court of Pakistan have held that:-

“Repugnant” Meaning.

According to the Oxford Dictionary the word

“repugnant” means “contrary or contradictory to,

inconsistent or incompatible with, divergent from,

standing against something else.”

As we have earlier observed that the Concurrent Legislative List

has been omitted after the 18th amendment and the three subjects

given in Article 142 (b) of the Constitution if read together with

Clauses (a) and (c) of the said Article are now the subjects

within the respective domains of the Federal and Provincial

Legislatures. The intention of the Parliament can be either

express or implied. Express intention can be shown explicitly by

enacting a Federal Law on the same subject. As the Federal law

was promulgated earlier than the Provincial Law before the 18th

Amendment, which still holds the field but the Provincial

Legislature has made its own law within its competence

62

conferred by clause (b) of Article 142 with all curing provisions

contained in Sections 35 & 56 of the Act of 2014.

The learned counsel for the petitioners also relied on the

case of Ch. MUHAMMAD SIDDIQUE and 2 others vs.

GOVERNMENT OF PAKISTAN through Secretary,

Ministry of Law and Justice Division, Islamabad and others

(P L D 2005 Supreme Court 1) and submitted that vires of the

Punjab Marriage Functions (Prohibition of Ostentatious Displays

and Wasteful Expenses) Act (V of 2003) was challenged and the

august Supreme Court of Pakistan held that the Federal

Government had already enacted law in the shape of Marriage

Functions (Prohibition of Ostentatious Displays and Wasteful

Expenses) Ordinance, 2000 which being valid and in force, the

Provincial Legislature of Punjab was not legally competent to

enact the Punjab Marriage Functions, (Prohibition of

Ostentatious Displays and Wasteful Expenses) Act, 2003 as the

Federal Law having Supremacy under Art. 143 of the

Constitution, the law enacted by the Provincial Assembly viz.

Punjab Marriage Functions (Prohibition of Ostentatious Displays

63

and Wasteful Expenses) Act, 2003 being ultra vires was struck

down. Nevertheless, the law enacted by the Provincial

Government was struck down but at that time the Concurrent

Legislative List was part of the Constitution and under Article

143 (prior to 18th amendment), the Federal Law was to prevail

over the Provincial Law. By now, the situation has been

altogether changed and all the matters not mentioned in the

Federal Legislative List have fallen back to the Provinces.

Besides, the Act of 2014 is within the Legislative competence of

the Provincial Legislature under Article 142(b) of the

Constitution and there is no overlapping and conflict between

the Federal and Provincial Law. As observed earlier, the

subjects, mentioned in Article 142, are within the respective

domain of the Federal and Provincial Legislatures. Therefore,

the question of repugnancy under Article 143 of the Constitution

does not arise in the present case.

25. Another argument of the learned counsel for the

petitioners was that under Section 3 of the Act, after the

commencement of the Act, the Government should have

64

established a Commission through a Notification duly published

in the official gazette but neither such a notification was issued

nor the same was duly published in the official gazette, and

although subsequently through an executive notification dated

14.09.2015 (not published in the official gazette), retrospective

effect has been given to the establishment of the Commission,

so, all the acts done and actions taken by the Commission are

void ab initio. The argument of the learned Advocate-General

that issuance of notification was not the requirement of law

seems to be forceful if Sections-3 and 4 are read together

coupled with the well established principle of the interpretation

of statutes that the words and phrases used in a Statute should be

read keeping in view their plain meaning. Sections-3 and 4 of the

Act are to the following effect:-

“3 (1) – As soon as, after the commencement of this Act,

Government shall establish a Commission, to be known

as the Khyber Pakhtunkhwa Ehtesab Commission.

4 (1) – The Commission shall consist of five

Commissioners nominated by the Search and Scrutiny

Committee and confirmed by the Legislative Committee

on Governance and Accountability in accordance with

the provisions of this Act. ………………”

65

As evident from the above provisions, the Government shall

establish a Commission, consisting of five Commissioners

nominated by the Search and Scrutiny Committee and confirmed

by the Legislative Committee on Governance and Accountability

in accordance with the provisions of the Act. Bare reading of the

Ehtesab Commission Act would reveal that wherever it was

necessary to use the word Notification, the same was mentioned

in the relevant sections, such as Section 50 and 51 of the Act.

The word ‘notification’ has not been used in Section-3 of the Act

like Section 5(k) of the National Accountability Ordinance, 1999

which expressly demands issuance of notification for the

establishment of National Accountability Bureau. When in a

Statute the establishment of an institution is subject to issuance

of a notification, issuance of the same becomes sine qua none

but there seems to be no intention of the legislature that

establishment of the Commission was subject to issuance of a

notification. Sections 3 and 4 of the Act if are read together

would reveal that the moment the Commissioners were

appointed, the Commission stood established. The requirement

of law was to establish a Commission and the same could not

66

have been established unless the Commissioners were appointed

as per procedure given in Section 4 and onward for the

composition of the Commission. As and when the Commission

became functional, it stood established. Under the Act, a

Legislative Committee was constituted, whereafter the Search

and Scrutiny Committee was formed, which gave

recommendation for appointment of suitable persons on the

posts of Commissioners. The Committee also duly made

advertisement for appointment of the Director-General and

Prosecutor-General. The process was completed as early as on

20th August, 2014, and from that date, the Commission stood

established. Further, the phraseology 'It shall come into force at

once and shall be deemed to have taken effect from the 1st

day of

January, 2004’ used in Section 1(2) and (3) of the Amending

Act, 2015 is a part of the Principal Act from the time the

Principal Act came in to force i.e. on 18th January, 2014 when

the same was notified after getting the assent of the Governor on

13th January, 2014. The judicial pronouncements by the superior

Courts, particularly by the Supreme Court, are that it is not for

the Courts to fill in the lacuna or remove the defects in the

67

enactment. It is for the legislature to look into the matter. So, if

the meaning of a statute is not plain, it may be a ground for

construction by implication, but the general rule is not to import

words into statute, which are not found there. Amending statutes

cannot be construed as having retrospectivity, if they affect

vested interest. But if the amendments in the statute are

pertaining to the procedure then those amendments should be

construed as having retrospective effect. The amendments in the

Act, 2014, under challenge, pertain to the procedure, and it is

expressly provided in the Act that all the amendments shall be

deemed to have come into force from 01.01.2004. Generally,

retrospectivity to the amendment is ipso facto applied but the

Ehtesab Commission Act, has expressly given retrospective

effect to the amendments pertaining to procedure. Reliance can

be placed on Asfandyar Wali’s case.

In view of the above discussion, our answer to the first

query would be that the Ehtesab Commission Act, 2014, its

subsequent amendments and the notification are neither in

conflict with Articles 142 and 143 of the Constitution of Islamic

Republic of Pakistan nor the same are repugnant to the

68

provisions of National Accountability Ordinance, 1999, rather its

nature is that of a special supplemental law to the subject of

curbing the corruption and corrupt practices.

26. The second question for determination is, whether this

law is in contravention of the fundamental rights enshrined,

inter alia, in Articles 10-A, 12 and 25 of the Constitution of

Islamic Republic of Pakistan, 1973?

Article 10-A of the Constitution says that:-

“Right to fair trial.

For the determination of his civil rights and obligations

or in any criminal charge against him a person shall be

entitled to a fair trial and due process.”

The provisions of NAB Ordinance and that of KP Ehtesab

Commission Act, 2014 are almost of the same nature with

similar procedure of trial. Section 40 of the Act, 2014

relates to Policy objectives for trial of offences, which reads

as under:-

“Section 40: Policy objectives for trial of offences.----

“(1) The trial for any offence suspected to have been

committed under this Act shall be carried out keeping in

mind the following policy objectives:

69

(a) that the accused has the right to be informed

promptly, in a language which he understands and in

detail, of the nature and cause of the accusation

against him;

(b) that the accused has the right to adequate time for

the preparation of his defence;

(c) that the accused has the right to defend himself in

person or through a pleader of his own choosing, or

if he does not have sufficient means to pay for legal

representation, to be given the same for free where

the interests of justice so requires;

(d) that the accused has the right to be heard by the

Court, for the purposes of the trial against the

accused; and

(e) that the accused has the right to examine or have

examined witnesses against him and to obtain the

attendance and examination of witnesses on his

behalf under the same conditions as witnesses

against him.”

In view of the above provisions, it cannot be said that under

the Act, 2014, an accused has not been given the right of

fair trial.

Article-12 of the Constitution provides protection to

a person against retrospective punishment. The august

Supreme Court of Pakistan in the case of Asfandyar Wali

in para 218 & 219 has held that the legislatures are

competent to give retrospective effect to an enactment,

which the legislature is competent to enact. For ready

reference, the relevant portions of the said paras are

reproduced herein below:-

70

218. Article 12 of the Constitution does not

deprive the legislature of its power to give

retrospective effect to an enactment, which the

legislature is competent to enact. It merely

provides that no law shall authorise the

punishment of a person for an act or omission that

was not punishable by law at the time of the act or

omission; or 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. Seen in this perspective,

the act of ‘wilful default’, is not an act or omission

which was punishable by law at the time the same

was committed but an act or omission committed

30-days after the promulgation of the Ordinance

whereby the offence of ‘wilful default’ under

Section 5(r) was created. As stated above, it was

in the nature of a continuous wrong, which was

converted into an offence prospectively i.e. in a

case where such wrong/wilful default continued

even after the expiry of 30-days of the

promulgation of the impugned Ordinance and not

retrospectively. In other words, it is a case where

the punishment is prescribed in relation to the

breach of a continuing duty which is not

performed even within 30-days after the coming

into force of the Ordinance. By no stretch of

imagination it could be termed retrospective in

operation, particularly, in view of the statement

made by Mr. Abid Hasan Minto on behalf of the

Federation that no prosecution was launched in

respect of ‘wilful default’ where re-payment of

71

loan etc. was made good within 30-days of the

promulgation of the Ordinance.

219. So far as the punishments and creation of

offences by the impugned Ordinance are

concerned, they are protected by Article 12 of the

Constitution, in that, under Article 12 of the

Constitution ex post facto legislation can neither

create new offences nor provide for more

punishment for an offence than the one which was

available for it when committed. This is the

limited impact of Article 12 of the Constitution.

Therefore, the only prohibition as to

retrospectivity of the offence, contemplated under

clause (1) (a) (b) of Article 12 of the Constitution,

is not attracted here.

From the perusal of the above quoted paras and keeping in

view the arguments of the learned counsel for the petitioners that

the Act of 2014 has introduced certain new offences, which were

not offences at the time, when the same were committed but they

failed to point out any such offences. The Constitution of

Pakistan specifically demarcates the contours of Criminal

Law of Pakistan by stating unequivocally in Art.9 that, “No

person shall be deprived of life or liberty save in accordance

with law”. And the Law shall never be against the universally

accepted Fundamental Rights, this is specifically and explicitly

72

enshrined in Article 8 of the Constitution of Pakistan. The

fundamentals of criminal law are based on the principle of

justice, equity and good conscience. They provide adequate

guidelines for the formulation of a rational penal policy. The

functioning of the criminal justice system is wide enough to

achieve its goals and objectives. Its ultimate goal is undoubtedly

to make the society safer for its citizens. The protection given by

Article-12 of the Constitution may be availed against those

offences which were offences at the time when they were sought

to be punished but were not offences at the time when they were

done. The Ehtesab Commission Act is thus not ultra vires to

Article-12 of the Constitution because the offences mentioned in

the Act were punishable offences prior to its promulgation.

Corruption and corrupt practices / bribery were offences since

long. Bribery and corruption and corrupt practices were

punishable offences/crimes as defined in the PPC, the Anti-

Corruption Act and also in the National Accountability

Ordinance, 1999. So, corruption and corrupt practices were

already punishable offences prior to the promulgation of the KP

Ehtesab Commission Act which is consistent on the touchstone

73

of National Accountability Ordinance, 1999. Punishment for

corruption and corrupt practices is 14 years under National

Accountability Ordinance, 1999 and similarly the same

punishment is provided in the KP Ehtesab Commission Act,

2014 in the same mode. Therefore, the arguments of the learned

counsel for the petitioners are without any force.

Article-25 (1) of the Constitution says that all citizens are

equal before law and are entitled to equal protection of law. This

means equality among equals. The august Supreme Court of

Pakistan in the case of Jamat-e-Islami through Amir and

others vs Federation of Pakistan and others (PLD 2009

SC 549)

“The principle of equality and equal protection of

law embodied in Article 25 of the Constitution

envisages that All citizens are equal before law and

are entitled to equal protection of law without any

discrimination. This principle is however subject to

reasonable classification and this Court in

Government of Balochistan v. Azizullah Memon

(PLD 1993 Supreme Court 341) held that no

standard of universal application to the test of

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.

Although, we cannot comment on the provisions of the

National Accountability Ordinance, 1999 but while comparing

74

the various provisions of the two laws, we have noticed that

object and purpose of National Accountability Ordinance, 1999,

is not to keep accused persons in custody for longer periods but

main purpose is to recover outstanding amounts and State money

misappropriated by them. Entire scheme of plea bargain, power

to freeze property, holding transfer of property void, voluntary

return, constitution of Conciliation Committees for payment of

loans, reference of cases to Governor State Bank and prior

approval of State Bank are directed towards not to keep accused

persons in custody for a longer period. As against this, the

Ehtesab Commission Act, 2014 in Section 49 though contains

favorable sentencing if the accused offers to return the assets or

gains acquired or made by him in the course, or as a

consequence, of any offence under the Act, the Court may, after

taking into consideration the facts and circumstances of the case,

look favorably upon such return at the time of sentencing or

pronouncement of judgment. These provisions are not in

consonance with the provisions of Section-25 of the National

Accountability Ordinance, 1999 wherein if an accused

voluntarily comes forward and offers to return the assets or gains

75

acquired or made by him in the course, or as the consequence of

any offence under the Ordinance the Chairman NAB may accept

such offer and after determination of the amount due from such

person and its deposit with the NAB discharge such person from

all his liability in respect of the matter or transaction in issue. It

may be mentioned here that Voluntary Return by an accused

amounts to his discharge without losing his job or any other

stigma whereas the Plea Bargain amounts to a sentence. Since

vires of KP Ehtesab Commission Act, 2014 are under discussion

and we cannot comment on any provision of NAO at this stage

and we have to accept the same as a valid law, as the same is in

the field. So, we can only compare the provisions of Section 25

of the NAO as valid law with that of Section 49 of K.P. Ehtesab

Commission Act, 2014. If a person booked under K.P. Ehtesab

Commission Act, 2014 would face discrimination as compared

to the person booked under the National Accountability

Ordinance, 1999 for the similar offence. On this aspect we feel it

advisable that Section 49 of the Act of 2014 be suitably amended

so that there should be harmony in the provision of Section 49 of

the Act of 2014 with Voluntary Return (VR) and Plea Bargain

76

(PB), as contained in the National Accountability Ordinance,

1999.

27. The last question for determination is, whether this law

suffers from errors with jurisdiction and errors without

jurisdiction and whether its provisions pass the test of

reasonability?

Although, this question finds its reply in the above discussion,

but to add further, we may observe that the sole object of the

Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 is to curb

the mushroom growth of corruption and corrupt practices by

those public office holders, who are grabbing money from the

public and public exchequer. The Act is also intended to provide

a legal mechanism and judicious machinery to deal with such

persons for the purpose of recovery of the looted money.

Therefore, the Provincial Legislature has carefully taken into

consideration the public interest and safety, not only to bring the

accused before the Court of law to face the consequences of their

acts but to recover the amount from them also. We have already

stated that the Provincial Legislature does no lack legislative

77

competency as the impugned matter also falls within the power

of the Provincial Legislature after the 18th amendment in the

Constitution. Therefore, the impugned Act magnificently

satisfies the test of reasonableness. We see that the provincial

legislature has not overstepped the permissible limits of

reasonableness. We are clear in our minds that the Act is never

intended to interfere or overlap the provisions of the Ordinance.

There is no arbitrariness or unreasonableness in the procedure

prescribed in the relevant sections of the Act, nor there is

unguided power conferred on the competent authority or the

Special Court in this regard. The Act thus stands the test of

reasonableness and does not violate the principles of

fundamental rights.

28. For the reasons stated above, all the three questions are

answered in the negative and the law is declared as reasonable.

Resultantly, W.P.No.3104-P/2015, W.P.No.4001-P/2015,

W.P.No.1406/2015 and W.P.No.1407-P/2015, wherein only

vires of law have been questioned are dismissed, while in Writ

Petition No.3811-P/2015 and No.3356-P/2015, although the

prayer of interim bail has also been made but their requests for

bail have already been turned down on merits of the case in

78

W.P.No.3032-P/2015 vide order dated 22.09.2015 and

W.P.No.3011-P/2015 vide order dated 02.11.2015, therefore,

their request for interim bail cannot be considered again and

these writ petitions too are dismissed. In W.P.No.1352-P/2015,

W.P.No.1949-P/2015, W.P.No.1936-P/2015, W.P.No.2501-

P/2015, W.P.No.3489-P/2015, W.P.No.2555-P/2015 and

No.3500-P/2015 besides vires of law, petitioners had also sought

for their release on bail, wherein interim

bail has been granted to them, therefore, these writ petitions are

dismissed to the extent of vires of law alone and their bails

would be considered as per respective merits of their cases.

Remaining Writ Petitions, which contain only relief of bail,

would also be considered as per their merits. Similarly,

W.P.No.3804-P/2015 is in the form of a quo warranto against

the appointment of Director-General Ehtesab Commission,

which is also dismissed for the reasons, discussed above.

Announced 23. 12. 2015 CHIEF JUSTICE

J U D G E

J U D G E

J U D G E

J U D G E A.Mateen