1998CLC918 (PLP)

It is highly anomalous that on the one hand, under the Ehtesab Act, 1997, Ehtesab can be done for the period after 15‑11‑1990 but with respect to pending proceedings, the Ehtesab has to continue even if the period is prior to the said date. As the Act itself does not apply to the actions taken before 15‑11‑1990 the proceedings cannot continue under this Act. Section 31(2)(c) is, therefore, discriminatory and violative of equal protection clause contained in Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. Proceedings which were pending at the time when Ehtesab Act, 1997 came into force and related to the period prior to 15‑11‑1990 cannot continue under the Act. Ch. Mushtaq Ahmed Khan for Petitioner. Ch. Muhammad Farooq, Attorney‑General for Pakistan assisted by Sher Zaman Khan, Khawaja Saeed‑uz‑Zafar, Sh. Anwar‑ul‑Haq, Yawar Ali Khan, Deputy Attorneys‑General for Respondent No.

1. A.K. Dogar for Respondent No.2. By this short order, we propose to dispose of the following writ petitions, all of which call in question various provisions of the Ehtesab Act, 1997 and its predecessor laws namely Ehtesab Ordinance (No.CXI of 1996) and Ehtesab Ordinance (No.XX of 1997).

1. W. P. No. 112 of 1997???????

2. W.P. No.24182 of 1996

3. Crl. Misc. 41/H of 1997??????

4. W. P. No. 12908 of 1997

5. W. P. No. 14037 of 1997???

6. W. P. No. 14134 of 1997 7 W.P. No. 12910 of 1997?????

8. W.P. No.4544 of 1998

9. W.P. No.4593 of 1998??????? 10.W.P. No.4590 of 1998

11. W.P. No.4594 of 1998

2. Having heard the learned counsel for the parties at length, we find that in principle no legitimate exception can be taken to the process of Ehtesab initiated by the Government and the legislative measures taken in that behalf. The purpose for which these laws have been enacted viz. Ehtesab of those who have remained in power being laudable and salutary, any interpretation which hampers Ehtesab must not be readily accepted.

3. We are also of the view that the creation of Ehtesab Bureau and the appointment of respondent No.2 as its Chief Ehtesab Commissioner cannot be objected to with success. While at this stage we must discount the apprehension expressed by the learned counsel for the petitioner that the Ehtesab Bureau is a super body created over and above the Chief Ehtesab Commissioner. On proper analysis of various provisions of the Ehtesab Act, 1997, it is obvious to us that the only role which the Ehtesab Bureau has to play is that of an Investigating Agency and material collecting body. It is the Chief Ehtesab Commissioner who is an overall incharge and has control and supervision over the process of Ehtesab. No person can be arrested except with his permission. Similarly, it is the Chief Ehtesab Commissioner who on the basis of material has to decide whether a prima facie case is made out against a person and whether his case has to be referred to the High Court concerned or not.

4. The contention of the learned counsel for the petitioner that the Chief Ehtesab Commissioner can only act through Ehtesab Bureau and not independently is incorrect because he has failed to take notice of section 22 of the Ehtesab Act, 1997. Reading sections 15 and 22 together, the inevitable conclusion which follows is that the Chief Ehtesab Commissioner has the power to have the investigation carried out through any Agency independent of the Ehtesab Bureau and there is no limitation on his power in that behalf.

5. The next question which arises is whether the Legislature was competent to fix/change a cut‑off date as it did in section 1(2). Much stress was laid by the learned counsel for the petitioner on the fact that earlier the cut‑off date was 31‑12‑1985, which according to him has been changed to 15‑11‑1990 is mala fide and with ulterior motives. It is, however, to be noticed that the date has been changed by the Legislature and not by Executive action and mala fides cannot be imputed to the Parliament. Furthermore the rationale in bringing about the change has been explained by the learned counsel for the respondents which is that now the period of Ehtesab covers one regime each of Pakistan People's Party and the Pakistan Muslim League. Be that as it may, we cannot enter into this controversy as the matter is essentially within the domain of the Legislature.

6. There is, however, merit in the contention raised by the learned counsel for the petitioner that once the cut‑off date was changed from 31‑12‑1985 to 15‑11‑1990 even pending proceedings with respect to the period prior to 15‑11‑1990 came to an end. It is highly anomalous that on the one hand, under the Ehtesab Act, 1997, Ehtesab'can be done for the period after 15‑11‑1990 butt with respect to pending proceedings, the Ehtesab has to continue even if the period is prior to the said date. As the Act itself does not apply to the actions taken before 15‑11‑1990 the proceedings cannot continue under this Act. Section 31(2)(c) is, therefore, discriminatory and violative of equal protection clause contained in Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. We are, therefore, of the view that proceedings which were pending at the time when Ehtesab Act, 1997 came into force and related to the period prior to 15‑11‑1990 cannot continue under the Act. The references stand answered and the petitions disposed of in the above terms. M.B.A./M‑629/L???????????????????????????????????????????????????????????????????? ??????????? Order accordingly