PLJ 2009 SC 711
[appellate Jurisdiction]
Present: Muhammad Moosa Khan Leghari,
Syed Sakhi Hussain Bukhari & Sheikh Hakim Ali, JJ.
FEDERATION OF
versus
Mian MUHAMMAD SHAHBAZ SHARIF and others--Respondents
Civil Petition No. 878 of 2008, CMA 95 of 2009, decided on 25.2.2009.
(On appeal from the judgment/order dated 23.6.2008 of the Lahore High Court Lahore, passed in W.P. No. 6470/2008).
Representation of People Act, 1976 (LXXXV of 1976)--
----Ss. 11, 11-A, 12, 14(5), 14(5-A) 15, 99 &
103-AA--Constitution of
[Pp. 740, 742, 743 & 744] A, B, F, G, H, I & J
PLD 2007 SC 52; 1994 SCMR 1299; 2004 SCMR 1602; PLD 2005 SC 52; 2006 SCMR 1356; 2006 SCMR 1713; PLD 2008 SC 85; PLD 2008 SC 429; PLD 2008 SC 313; PLD 2008 SC 487; PLD 2008 SC 779; PLD 2008 SC 735; PLD 2008 SC 730.
Representation of People Act, 1976 (LXXXV of 1976)--
----S. 14 (15-A)--Term "source" appearing in Section 14(5-A)--Contention that the term "source" is limited to a body corporate a juristic person and does not include a natural person, was turned down--Held: Argument was manifestly erroneous having no force with reference to different dictionaries, it was concluded that the term "source" had a very wide meaning and it included a person, a book or any other document that could be used to provide information evidence.
[Pp. 740, 741 & 742] C & D
New Webster's Dictionary; Oxford English Dictionary; Words and Phrases by West Publishing Co.; Dictionary/Theasurus; Chambers 21st Century Dictionary & Black Law Dictionary ref.
General Clauses Act, 1897 (X of 1897)--
----S. 3(39)--Pakistan Penal Code, (XLV of 1860), S. 11--Words and phrases--Word `person' with reference to dictionary meaning--an individual human being the living body of a human being--A human being an entity, the living body of a human being--Definition of "person" would include artificial person or legal entity the definition of "person" would include artificial person or legal entity and natural persons viz. human being men or women, hence, the information or material could be brought to the knowledge of the tribunal by any juristic or natural person to question the qualifications of a candidate whose nomination papers had been accepted. [P. 742] E
Press Clippings--
----Press clippings were valid documents and could be taken into consideration--Validity--Press statements were not only considered but also reproduced in the judgments in order to glance over the language and tenor expressed therein--There was no denial on the part of the speaking respondent so far as continuously making outrageous remarks against the judiciary in newspapers were concerned. [P. 756] U
PLD 1976 SC 57; PLD 1993 SC 473 & PLD 1998 SC 388, ref.
Constitution of
----Arts. 185, 199 & 225--Representation of the People Act, 1976, Ss. 11, 11-A, 12, 14(5) (5-A), 15, 99 & 103-AA--Constitutional jurisdiction--Pre-election disqualification of a candidate--No alternate remedy--Maintainability of writ petition against orders of Returning Officer, election tribunal as well as election commission--Contention that the petitioner was neither a candidate nor a voter of the constituency, and thus being a stranger to the proceedings, was not an aggrieved person within the contemplation of Art. 199 of the Constitution to maintain the writ petition, was repelled--Held: Writ petition challenging the pre-election disqualification of a candidate before the completion of election process was maintainable in law--When the aggrieved person had no alternate remedy and being not a candidate, could not challenge the pre-election disqualification by way of election petition under Art. 225 of the Constitution against a candidate respondent who opted not to appear and defend his case before respondent election tribunal or even before High Court to controvert the averments made in the petition, thereby causing the facts unrebutted and undisputed, High Court certainly would have the jurisdiction to adjudicate the matter in its Constitutional jurisdiction available under Art. 199 of the Constitution.
[Pp. 744 & 746] K, L, M & N
PLD 2008 SC 313 & PLD 2008 SC 735, ref.
Legal Maxim--
----Semper Proesumitur Pronegante--The doctrine "Semper Proesumitur Pronegante" (Presumption is always in favour of one who denies or in favour of the negative) pressed into service by Advocate General would not be attracted in the case for the simple reason that there was no denial, even otherwise the facts were borne out from the record. [P. 746] O
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 14(5-A)--Constitution of
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 14(5)--Constitution of
(i) That he remained fugitive from law.
(ii) That the loans obtained by the candidate and his family members remained unpaid.
(iii) That he deemed and ridiculed the judiciary.
(iv) That respondent could not be considered righteous.
Respondent did not file appeal and obviously acquiesced is, meaning thereby that the order disqualifying the respondent attained finality--No plausible or convincing arguments were advanced to justify the subsequent acceptance of nomination papers of the respondent in the bye-elections while there was a clear cut acquiescence on the part of respondent to his disqualification in the general elections.
[Pp. 748, 750, 752 & 753] Q, R & S
PLD 2000 SC 869; 2000 SCMR 1969 & PLD 2003 646, ref.
Constitution of
----Art. 63(1)(g)--Representation of the People Act, 1976, Ss. 12, 14, & 99(g)--Humilitation and ridiculing of judiciary--Distinction between fair comments/bona fide criticism and purposeful, outrageously and deliberate defamation/ridiculousness coupled with malicious persecution--Remarks against the judiciary were made in respect of the judiciary and not against the judiciary as a whole, was neither convincing nor legally justified, hence not acceptable--Material reproduced in the shape of press clippings would by itself speak of derogatory and offensive language demonstrating humilitation, persecution and ridicule tainted with malice for the achievement of ulterior purpose--Such wicked and insulting statements in the press were sufficient to bring such mischief within clause (1)(g) of Art. 199 of the Constitution and S. 99(g) Act, 1976 as the respondent not only propagated to bring into ridicule the judiciary in the past but was till then continuing to do so unabatingly--Respondent convicted in contempt of Court case, was undeniably appointed to occupy a responsible judicial/quasi judicial position by respondent--It was observed that the respondent was continuously making well determined and decisively resolute efforts to ridicule, defame, harass, down grade and humiliate the judiciary and the loans obtained by him exceeding the amount of two million rupees had remained unpaid besides a pending case had not been declared in the statement submitted alongwith nomination form; as such, he was disqualified to be elected or chosen as a member provincial assembly.
[Pp. 753, 756, 757, 758] T, V, W, X & Y
Civil Procedure Code, 1908 (V of 1908)--
----O. I, R. 10--Constitution of
Civil Procedure Code, 1908 (V of 1908)--
----O. I, R. 10--Constitution of
PLD 1955 Sindh 56; PLD 1955 FC 240; PLD 1969 L 602; 1999 SCMR 2883 & PLD 1988 SC 416, distinguished.
2003 SCMR 181; 2003 SCMR 29; 2003 SCMR 1524; PLD 2002 S.C. 491; PLD 2002 S.C. 1113; 2000 SCMR 440; 2000 SCMR 556; 1999 SCMR 105; PLD 1997 S.C.823; 1994 SCMR 1555; 1991 SCMR 2114;
PLD 1993 S.C. 791.
Constitution of
----Arts. 185(3) & 199--Leave to appeal against the judgment on behalf of Federation--Maintainability of--Federation was a pro-forma party in writ petition wherein neither any relief was granted against the federation nor any direction was issued to it so as to maintain the instant civil petition--Federation was neither aggrieved party nor had any cause of action to challenge the judgment--Held: Respondent was disqualified to be elected or chosen as member provincial assembly as he had suffered from an inherent disqualification--Order of the Returning Officer was legally unsustainable, therefore, was set aside the judgment of High Court remanding the case to chief election commissioner for constituting a three members tribunal, in the circumstances of the case, was untenable and of no legal effect, as it would serve no purpose except to protect the proceedings, when especially the respondent had taken determinative decision not to appear before any forum--Respondent despite service did not appear before election tribunal and in High Court and he even opted not to appear before the Supreme Court--Notification issued by Election Commission declaring respondent to be returned candidate was also set aside--Leave accepted. [Pp. 759, 760 & 761] CC, DD & EE
PLD 1994 SC 512, ref.
Sardar Muhammad Latif Khan Khosa, Attorney General for
Agha Tariq Mahmood, DAG and Mr. Arshad Ali Chaudhry, AOR for Petitioner (in CMA 95 of 2009).
Nemo for Repsondents No. 1-4 (in CMA 95 of 2009).
Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC For Respondent No. 5 (in CMA 95 of 2009).
Mr. Shahid Orakzai (In person) for the Applicant (in CMA 95 of 2009).
Khawaja Haris Ahmad, A.G. Punjab for Petitioner (in C.P. No. 657-L/2008).
Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC and Dr. Mohyuddin Qazi, ASC Respondent No. 1 (in C.P. No. 657-L/2008).
Nemo for Respondents No. 2-5 (in C.P. No. 657-L/2008).
Agha Tariq Mahmood, DAG Respondent No. 6 (in C.P. No. 657-L/2008).
Mr. Ashtar Ausaf Ali, ASC; Mr. Muhammad Raza Farooq, ASC & Mr. Arshad Ali Chaudhry, AOR for Petitioner (in C.P. No. 803/2008).
Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC for Respondent No. 1 (in C.P. No. 803/2008).
Nemo for Respondents No. 2 to 5 (in C.P. No. 803/2008).
Agha Tariq Mahmood, DAG for Respondent No. 6 (in C.P. No. 803/2008).
Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC for Petitioner (in C.P. No. 905 of 2008).
Nemo for Respondents No. 1-4 (in C.P. No. 905 of 2008).
Agha Tariq Mahmood, DAG for Respondent No. 5 (in C.P. No. 905 of 2008).
Khawaja Haris Ahmad, ASC for Petitioner (in C.P. No. Nil/2008).
Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC for Respondent No 1 (in C.P. No. Nil/2008).
Nemo for Respondents 2 to 5 (in C.P. No. Nil/2008).
Agha Tariq Mahmood, DAG for Respondent No. 6 (in C.P. No. Nil/2008).
Dates of hearing: 6.1.2009, 14.1.2009, 15.1.2009, 19.1.2009 to 22.1.2009, 27.1.2009 to 30.1.2009, 2.2.2009 to 4.2.2009, 9.2.2009 to 12.2.2009, 16.2.2009 to 20.2.2009, 23.2.2009 to 25.2.2009.
Judgment
Mohammad Moosa Khan Leghari, J.--The above titled
petitions are directed against the judgment dated 23.6.2008 passed by the
Lahore High Court,
2. Precisely stated, facts forming background of filing of the petition are that consequent upon notifying the election schedule by Election Commission of Pakistan (Respondent No. 4) for holding the bye-elections of National Assembly and Provincial Assemblies on 26.6.2008, Respondent No. 1, Mian Muhammad Shahbaz Sharif submitted his nomination papers for the seat of PP-48 Bhakkar-II. It appears that one Malik Nazar Abbas, a candidate from the same constituency, filed an objection petition alleging therein that Respondent No. 1 propagated and acted in the manner prejudicial to the integrity and independence of judiciary, he defamed and brought judiciary of Pakistan into the ridicule and that he has submitted an incorrect declaration claiming therein that he fulfills the qualifications laid down in Article 62 of the Constitution of Pakistan and is not subject to any of the disqualifications as specified in Article 63 of the Constitution of the Islamic Republic of Pakistan. The nomination papers of Respondent No. 1 were however, accepted by the Returning Officer of the said constituency (Respondent No. 2) vide his order dated 16.5.2008 on the ground that the objections raised by Malik Nazar Abbas were withdrawn by him through his statement dated 16.05.2008.
3. Respondent No. 5 Syed Khurram Shah (petitioner in CPLA 905/2005) in capacity of an elector and citizen of Pakistan and claiming to be a firm believer in independence and integrity of the judiciary as well as the armed forces, submitted an application under Section 14(5-A) of the Representation of People Act, 1976, thereby bringing to the knowledge of the Election Appellate Tribunal information/material regarding disqualification of Respondent No. 1 from being elected as a Member, praying therein to call upon Respondent No. 1 to show cause as to why his nomination papers may not be rejected and consequently for rejection of his nomination papers. It seems that the notices of the Tribunal, issued against Respondent No. 1 were not responded to, hence Respondent No. 1 was proceeded ex-parte.
4. Learned Election Appellate Tribunal comprising of two
learned Judges of the Lahore High Court,
5. The orders of Respondents No. 2,3 and the Notification dated 03.06.2008 issued by Respondent No. 4 were challenged before the Lahore High Court, Lahore through Writ Petition No. 6470/2008 by Respondent No. 5, Syed Khurram Shah (the petitioner in CPLA 905/2008).
6. During the pendency of the petition, C.M. No.
1260/2008 was moved on behalf of the
However, after hearing the parties a full Bench of Lahore
High Court,
7. As far as the main petition is concerned, the Respondent No. 1 despite service opted not to appear/be represented and remained ex-parte. A full Bench of the Lahore High Court, Lahore, which was seized of the matter, after hearing the learned counsel for the petitioner (Respondent No. 5) and Deputy Attorney General, came to the conclusion that the learned Election Appellate Tribunal and the Chief Election Commissioner/Election Commission of Pakistan fell into error by treating the application of the petitioner viz. Syed Khurram Shah as an appeal and tagged the same with an other appeal, subject matter of the impugned order. Consequently learned Full Bench of the High Court vide judgment dated 23.06.2008 set aside the orders of the Chief Election Commissioner/Election Commission of Pakistan dated 1.6.2008 and that of the Election Appellate Tribunal dated 31.5.2008 by declaring the same to be unlawful. Accordingly the learned Chief Election Commissioner was required to constitute another Bench comprising three Judges of the High Court to decide the application of the petitioner viz. Syed Khurram Shah (Respondent No. 5). Respondent No. 1 was, however, allowed to continue performing his function as a Chief Minister and Member Provincial Assembly of Punjab.
8. The above judgment of the Full Bench of Lahore High Court is the subject matter of the instant petitions. The Federation has prayed for grant of leave and setting aside the judgment.
9. Besides that, leave to appeal has been sought by
Speaker Provincial Assembly,
10. We have heard Agha Tariq Mehmood, learned DAG
appearing for the Federation, Khawaja Haris Ahmad, learned Advocate General,
for
11. Learned Deputy Attorney General contended that as per mandatory provisions contained in sub-section (6) of Section 14 of the Representation of the People Act, 1976 (hereinafter referred to as the Act) after expiry of the period stipulated for deciding the appeals under Section 14(5) of the Representation of People Act, 1976, the application filed by Respondent No. 5 before the Election Appellate Tribunal stood rejected. In the circumstances, he argued that the observation given by the learned Chief Election Commissioner was proper and the direction of the High Court for re-constitution of the Election Appellate Tribunal, after the changed situation was beyond jurisdiction, as such was unsustainable. With regard to locus-standi of the Federation to maintain the instant petition learned DAG argued that Respondent No. 5 himself impleaded the Federation in his writ petition before the High Court, as such the present petition by the Federation was legally competent.
12. Khawaja Haris Ahmad, learned Advocate General, Punjab contended that the judgment of the full Bench was biased due to inclusion of one of the learned Judges on the Bench, the same was non-speaking judgment and was delivered without hearing and considering the view point of Respondent No. 1. He argued that Respondent No. 5 was neither a candidate nor even a voter of that constituency and thus was not an aggrieved person within the contemplation of Article 199 of the Constitution of Islamic Republic of Pakistan to maintain the writ petition before the High Court, as he was a stranger to the proceedings. Referring to the election schedule notified by the Election Commission of Pakistan, learned Advocate General submitted that last date for filing the appeals before the Election Appellate Tribunal was 24.05.2008 and that no appeal was filed by respondent Syed Khurram Shah till such time, as such the said appeal or application was patently barred by time. Learned Advocate General argued that the objections before the Returning Officer were filed by Malik Nazar Abbas, who was the candidate but at the time of scrutiny he withdrew those objections with the result that the Retuning Officer has no option except to accept the nomination papers of Respondent No. 1 and that his action was just, proper and legal. He submitted that the term "source" as appearing in sub-section (5-A) of Section 14 of the Act, is limited to a body corporate/a juristic person and does not include a natural person. He argued that unless it is established that a candidate whose nomination papers have been accepted, is a defaulter of loans, taxes, government dues or utility charges or his any loan has been written off, his nomination papers could not be rejected. He further submitted that the above disqualifications were exhaustive and that sub-section (5-A) would not cover other kind of disqualifications.
In any case he argued that the Tribunal, upon receipt of
the information in the nature as enumerated in the above sub-section, was under
the obligation to issue show-cause notice to the candidate concerned,
containing explicit allegations, which course was missing in the present case.
He argued that writ petition was filed by Respondent No. 5 in the High Court on
4.6.2008, while the notification declaring Respondent No. 1 as a returned
candidate, was already issued by the Election Commission of Pakistan on
3.6.2008 who was subsequently sworn in as a Chief Minister of the
Learned Advocate General pressing into service the rule of Ejusdem Generis and referring to certain paragraphs from the book "Understanding Statute" authored by Mr. S.M. Zafar, "Principle of Statutory Interpretation" by Guru Prasanna Singh (Pages 280-281), a passage from "Interpretation of Statutes" by N.S. Bindra's book, strenuously argued that the rule of Ejusdem Generis was attracted to the provisions of sub-section (5-A) of Section 14 of the Act, and by extending harmonious construction, the time limit prescribed for deciding the appeals under sub-section (5) of the Act will be fully applicable to the applications filed under sub-section (5-A) of Section 14, as any interpretation to the contrary was bound to negate the provisions of the Statute and would lead to the absurdities, which had to be avoided. The cases titled: (i) Ameer Khatoon Vs. Faiz Ahmad and others (PLD 1991 SC 787) (ii) Abdul Qayyum and another Vs. Niaz Muhammad and another (1992 SCMR 613) (iii) Khalid Qureshi and 5 others Vs. United Bank Ltd. (2001 SCMR 103) were referred to advance the above arguments.
Relying upon the legal maxim "Semper Proesumitur Pronegante" (Presumption is always in the favour of the one denying or in favour of the negative), learned Advocate General, Punjab added that the judgment of the High Court was against the intention of law-makers as the process of the election has already been completed, as such there was no legal justification for constituting a three Members' Tribunal to hear the appeal. He submitted that though the Chief Election Commissioner was vested with the powers to extend the schedule of election as provided under Section 11-A of the Act, yet such power had to be exercised in exceptionally rare circumstances, which was manifestly lacking in the present case. Learned Advocate General strenuously emphasized that the intention of the law-makers was to complete the election process in most expeditious manner, for which time limit for every major step was stipulated in the Statute itself. To supplement the above arguments beside referring to the election schedule notified by the Election Commission, he also referred to Article 224 of the Constitution and the provisions of Section 103-AA of the Act to stress that a period of 60 days has specifically been provided in sub-section (2) of the said section to the Election Commission for declaring a poll void by reasons of grave illegalities or violation of the provisions of law, on being satisfied after a summary inquiry as deemed necessary. Learned Advocate General argued that there was no intention on the part of the law-makers to provide unfettered right to the general public to challenge the candidature of a person and, that it could not be assumed that there would be no time limit to decide such kind of applications. If it is so considered, it would otherwise be unreasonable and illogical besides adding and advancing absurdities and anomalies to the statutory provisions. It was contended that there being no provision in the Representation of People Act for constituting a fresh Election Tribunal, at the most what the Lahore High Court could have done, was to have referred the matter to the Election Commission for further action by treating the application of Respondent No. 5 as an application under sub-section (5-A) and not an appeal under Section (5) of Section 14 of the Act. He further submitted that after the election process having been completed and Respondent No. 1 having been elected as a Chief Minister, remedy of Respondent No. 5 was to file a writ of quo-warranto but in any case could not maintain the present proceedings. In support of the above contentions and to arrive at correct conclusion learned Advocate General referred the following case laws:-
i) Hafiz Hamdullah Vs. Saifullah Khan and others (PLD 2007 SC 52)
ii) Ghulam Mustafa Jatoi Vs. Additional District & Sessions Judge/Returning Officer, NA 158, Naushero Feroze and others (1994 SCMR 1299)
iii) Muhammad Safdar Abbasi Vs. Aamir Yar Malik and 3 other (2004 SCMR 1602)
iv) Ayatullah Dr. Imran Liaqat Hussain Vs. Election Commission of Pakistan and others (PLD 2005 SC 52)
v) Ahad Sharif @ Muhammad Ahad and another Vs. Javed Tariq and others, (2006 SCMR 1356)
vi) Faqir Abdul Majeed Khan Vs. District Returning Officer and others (2006 SCMR 1713)
vii) Rana Muhammad Hayat Khan Vs. Rana Imtiaz Ahmad Khan (PLD 2008 SC 85)
viii) Ch. Muhammad Arif Hussain Vs. Rao Sikandar Iqbal and 10 others (PLD 2008 SC 429)
ix) Intesar
Hussain Bhatti Vs. Vice Chancellor,
x) Syed Nayyar
Hussain Bukhari Vs. District Returning Officer, NA-49,
xi) Aftab Shahban Mirani and others Vs. Muhammad Ibrahim and others (PLD 2008 SC 779)
xii) Let. Gen. (R)
Salahuddin Tirmizi Vs. Election Commission of
xiii) Syed Fakhar Imam Vs. Chief Election Commission of Pakistan and others (PLD 2008 SC 730)
To explain the factum of the rejection of nomination
forms of Respondent No. 1 in the general election learned Advocate General
submitted that rejection of nomination papers of Respondent No. 1 in the
general election would create no bar or estoppel so far as the acceptance of
nomination papers in the bye election is concerned. He explained that
allegations with regard to criticizing the judiciary were against the person of
a specific judge and not against the judiciary as mentioned in the order of
rejection dated 01.12.2007 passed by the Returning Officer in the general
elections. He further submitted that the criminal case referred to in the
rejection order stood decided wherein Respondent No. 1 was acquitted. He argued
that the perusal of Lahore High Court’s judgment PLD 2003
As regards to the locus-standi of the Province of Punjab
to become a party or to maintain a petition learned Advocate General, Punjab
argued that after being declared as a returned candidate by Election Commission
of Pakistan vide notification dated 03.06.2008, Respondent No. 1 was elected as
Chief Minister of Punjab and was functioning as such. He submitted that the
governance and functioning of Government of Punjab was likely to be affected by
any adverse decision of the High Court, therefore Province of Punjab was a
necessary party, which conferred a right upon the government and prompted the
Province of Punjab to move an application under Order 1 Rule 10 CPC before the
Lahore High Court seeking impleadment as a respondent party. Learned Advocate
General, Punjab submitted that a distinction has to be drawn with regard to the
election dispute arising during the election process and the post-election
process whereby the election is held and notification of a validly elected
person is published in the gazette by the Election Commission of Pakistan. Learned
Advocate General,
13. Mr. Muhammad Raza Farooq, ASC who advanced arguments
on behalf of Speaker Provincial Assembly,
Arguing the point of locus-standi he contended that it
was responsibility of the Speaker to protect and preserve the rights of a
Member as he is the custodian/guardian of the entire house. Enumerating the
duties of the Speaker learned counsel submitted that the Speaker maintains the
order and decorum of the house as per Rule 14 of the Rules of Business of the
Provincial Assembly,
Riaz Hussan and others vs. Muhammad Akbar and others 2003 SCMR 181, Syeda Tahira Begum and another v. Syed Akram Ali and another 2003 SCMR 29, Jamila Pir Buksh and others v. Appellate Authority and others 2003 SCMR 1524, Muhammad Anwar Khan and five others v. Chaudhry Riaz Ahmed and five others PLD 2002 S.C. 491, Rauf Qadri v. State Bank of Pakistan, PLD 2002 S.C. 1113, Nazir Ahmed and another v. Mohammad Din and another 2000 SCMR 440, Barkat Ali v. Mohammad Ihsan Irshad 2000 SCMR 556, Zahoor Ahmed vs. Mehra through legal heirs and others 1999 SCMR 105, Mahmood Ali Butt v. Inspector General of Police Punjab and 10 others PLD 1997 S.C.823, Jane Margaret William vs. Abdul Hamid Mian 1994 SCMR 1555, Chaudhry Akbar Ali vs. Secretary, Ministry of Defence, Rawalpindi 1991 SCMR 2114, Asla vs. Abdur Rehman, 1994 CLC 1388, Sh. Rashid Ahmed vs. The Election Tribunal, Lahore High Court and another, PLD 1993 S.C. 791.
14. Mr.Shahid Orakzai after advancing his arguments on
the subject of recusal at length has referred to the judgment reported in
Shahid Orakzai Vs. Pakistan Muslim League (Nawaz) (2000 SCMR 1969) and
submitted that the respondent and his party was found to be involved in the
acts of vandalism and hooliganism having been committed in and around the
premises of the Supreme Court of Pakistan on 28.11.1997. Referring to sub-para
17 of the aforementioned judgment appearing at page 1988 the applicant argued
that though certain persons belonging to the said party were convicted for
contempt of this Court yet the case was still pending, and the proceedings
against the remaining respondents were deferred till the thorough investigation
is made as to the culpability of any person found so involved. Inspector
General of Police,
15. Mr. Ahmed Raza Khan Qasuri, learned Sr.ASC addressed
his argument in reply to the arguments rendered on behalf of the petitioner Federation;
the
Learned ASC argued that Respondent No. 1 knowingly did
not challenge the order of Returning Officer dated 1.12.2007 with the result
that it attained finality and as a result thereof the disqualification of
Respondent No. 1 became final and conclusive. He argued that subsequent
acceptance of the nomination papers by Returning Officer was absolutely
illegal. Learned ASC contended that respondent No. 1, despite service of
notices, opted not to appear before the Election Appellate Tribunal as well as
the High Court. The allegations against the respondent as contained in the
appeal and the petition were with regard to his involvement in corruption,
default, concealment of facts and ridiculing the judiciary. Learned counsel
submitted that on 14.4.2008 Respondent No. 1 in a press conference addressed at
Sharif Medical Complex defamed and brought into ridicule the judiciary after
rejection of his nomination forms. He submitted that observations of this Court
in Zafar Ali Shah’s case reported as PLD 2000 SC 869 were adequate enough to
demonstrate the financial follies committed by Respondent No. 1 and the
companies mainly owned by the family. Learned counsel submitted that factum
regarding non-payment of loan by Respondent No. 1 is abundantly evident from
the judgment of the Lahore High Court reported in Mian Muhammad Shahbaz Sharif
through Attorney Vs. Election Commission of Pakistan,
Referring to the powers of this Court under Article 187 of the Constitution of Islamic Republic of Pakistan learned counsel submitted that this Court was vested with inherent powers to do complete justice under the Constitution and the law.
16. Learned counsel strenuously argued that the Federation has unnecessarily filed the present petition. Admittedly the controversy involves the election dispute questioning the qualification of an individual viz. Respondent No. 1 which has no concern with the Federation. Even no directions of any kind have been passed against the Federation, hence it has no locus-standi to maintain the petition. Learned Sr. ASC accordingly prayed for summary dismissal of the petition filed by the Federation of Pakistan.
17. Dilating upon the role of Speaker and
18. Regarding the role of the
19. Learned Attorney General for
Learned Attorney General argued that the words "any other disqualification" have been used to extend the Suo Motu powers of the Election Tribunal to examine the disqualification defined under article 62, 63 of the Constitution and Section 99 of the Representation of the People Act. He argued that after forming the opinion "on its own motion" the Tribunal is duty bound to proceed whereas the act Suo Motu binds the Tribunal to decide and follow the matter to ensure that disqualified candidates should be kept outside the contest. He submitted that time limit for decision of application under Section 14 (5-A) of the Act would be deemed to remain intact till the decision, as is adequately evident from the provision itself. He further argued that if the statute has given a right to a person to place any material or move an application as a source then that person has inherent right under the principle of natural justice to have a decision on it as well, as evidently in the instant case no final decision was given by the Tribunal.
20. We have appreciated the respective contentions put forward by learned counsel appearing for the parties, have take n into consideration the relevant provisions of law and have examined the case laws referred before us. The procedure for elections has been enumerated in detail in Chapter IV titled "Conduct of Elections" in the Representation of People Act, 1976. It will be appropriate to reproduce hereunder the provisions contained in Sections 11, 11-A, 12, 14 and 15 of the Representation of People Act, 1976:-
"11. Notification for election.--(1) As soon as (may be necessary and practicable) the President makes an announcement of the date or dates on which the polls shall be taken, the Election Commission (not later than thirty days of such announcement) shall, by notification in the official Gazette, call upon a constituency to elect a representative or representatives and appoint------
a) the last date for making nominations, which shall be the sixth day after the date of publication of the notification or, if that day is a public holiday, the next succeeding day which is not public holiday.
b) (The dates for the scrutiny of nominations, which shall be the (seven) days immediately following the last date of making nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday).
c)
d) the last date for filing of appeals against acceptance or rejection of nominations, which shall be the (fourth) day following the (last) date for the scrutiny of nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday;
e) the last date for decision of appeals, which shall be the (seventh) day following the last date for filing of appeals or, if that day is a public holiday, the next succeeding day which is not a public holiday;
ee) the last date for the withdrawal of candidature, which shall be the day following the last date for decision of appeals or, if that day is a public holiday, the next succeeding day which is not a public holiday;
f) the last date for publication of the revised list of candidates, which shall be the second day following the last date for decision of appeals, and
g) the date or dates on which a poll shall, if necessary be taken, which or the first of which shall be a date not earlier than the twenty second day after the publication of the revised list of candidates.
3) A returning Officer shall, as soon as may be after the publication of a notification under sub-section (1), give public notice of the dates specified by the Commission in respect of the constituency or constituencies of which he is the Returning Officer; and the public notice shall be published at some prominent place or places within the constituency to which it relates.
4) A Returning Officer shall, by the public notice given under sub-section (3) invite nominations specifying the time by which and the place which nomination papers shall be received by him.
11-A. Alteration in election programme.--Notwithstanding anything contained in Section 11, the Commission may at any time after the issue of a notification under sub-section (1) of that Section, make such alterations in the programme announced in that notification for the different stages of the election as may, in its opinion, be necessary).
12. Nomination for election.--(1) Any elector of a constituency may propose or second the name of any duly qualified person to be a member for that constituency).
(2) Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed both by the proposer and the seconder and shall, on solemn affirmation made and signed by the candidate, accompany,--
a) a declaration that he has consented to the nomination and that he fulfils the qualifications specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 or any other law for the time being in force for being elected as a member.
b) Omitted.
c) a declaration that no loan for an amount of two million rupees or more, obtained from any bank, financial institution, cooperative society or corporate body in his own name or in the name of his spouse or any of his departments, or any business concern mainly owned by him or the aforesaid, stands unpaid for more than one year from the due date, or has got such loan written off;
d) a declaration that he, his spouse or any of his dependents or a business concern mainly owned by him or the aforesaid, is not in default in payment of government dues or utility charges, including telephone, electricity, gas and water charges of an amount in excess of ten thousand rupees, for over six months, at the time of filing of nomination papers;
e)
f)
(3)
4)
5) (Omitted)
6)
7) The Returning Officer shall cause to be affixed at a conspicuous place in his office a notice of every nomination paper received by him containing the particulars of the candidates as shown in the nomination paper.
8) The nomination form and accompanying declarations and statements shall be open to inspection by the public, and copies thereof may be made available by the Commission in such manner and on payment of such fee as may be prescribed).
13. Deposits.--(1) Subject to the provisions of sub section (2), no nomination paper delivered under Section 12 shall be accepted unless,--
a) a sum of rupees--
i) (four thousand) for election to a seat in the National Assembly; and
ii) (two thousand) for election to a seat in the Provincial Assembly, is deposited in cash by the candidate or by any person on his behalf at the time of its delivery; or
b) it is
accompanied by a bank draft for a sum as aforesaid drawn in favour of the
Returning Officer or a receipt showing that s sum as aforesaid has been
deposited by the candidate or by any person on his behalf at any branch of the
National Bank of
2) Not more than one deposit under sub-section (1) shall be required in the case of a person who has been nominated as a candidate for the same seat by more than one nomination paper.
14. Scrutiny.--(1)
2) ……..
3) The Returning Officer may, either of his own motion or upon any objection, (either by an elector or) (by any person referred to in sub section (1),) conduct such summary enquiry as he may think fit and may reject nomination paper if he is satisfied that,--
a) the candidate is not qualified to be elected as a member;
b) (the proposer or the seconder is not qualified to subscribe to the nomination paper;)
c) any provision of Section 12 or Section 13 has not been complied with (or submits any false or incorrect declaration or statement in any material particular); or
d) (the signature of the proposer or the seconder is not genuine;)
(3-A)
(4)
(5) A candidate, may prefer an appeal against the decision of the Returning Officer rejecting or, as the case may be, accepting the nomination paper of the candidate to the Tribunal constituted for the constituency to which the nomination relates and consisting of not less than two nor more than three Judges of the High Court nominated by the Commissioner, with the approval of the President; and such appeal shall be summarily decided within such time as may be notified by the Commission and any order passed thereon shall be final.)
(5A) If, on the basis of any information or material brought to its knowledge by any source, a Tribunal constituted under sub section (5) is of the opinion that a candidate whose nomination papers have been accepted is a defaulter of loan, taxes government dues or utility charges or has had any loan written off or suffers from any other disqualification from being elected as a member of an Assembly, it may, on its own motion, call upon such candidate to show cause why his nomination papers may not be rejected, and if the Tribunal is satisfied that the candidate is actually a defaulter as aforesaid or has had a loan written off or suffers from any disqualification, it may reject the nomination papers.)
6) An appeal not disposed of within the period specified in sub section (5) shall be deemed to have been rejected.
7)
14A.
15. Publication of list of candidates.--(1) The Returning Officer shall, after the scrutiny of nomination papers, prepare and publish in the prescribed manner a list of validly nominated candidates.
2) In case an appeal against the decision of the Returning Officer is accepted by the (Tribunal referred to in sub section (5) of Section 14) the Returning Officer shall revise the list of validly nominated candidates accordingly.
3) The Returning Officer shall, on the (second day following the last date for decision of appeal) under sub section (5) of Section 14, prepare and publish in the prescribed manner the revised list of validly nominated candidates."
21. By summarizing the provisions, it will be gathered that Section 11 of the Act regulates the notification for election prescribing therein different steps for holding of elections. Section 12 provides that an elector of a constituency may propose or second the name of any "duly qualified person" to be a Member for that constituency. Sub-section (2) of the said section provides that every nomination made on the prescribed forms shall be signed by both the proposer and seconder and shall also contain the declaration made and signed by the candidate on solemn affirmation to the effect that he has consented to the nomination; that he fulfills the qualifications specified in Article 62 of the Constitution and is not subject to any of the disqualifications specified in Article 63 of the Constitution or any other law for the time being in force for being elected as a Member, declaring that no loan for an amount of two millions rupees or more, obtained from any bank, financial institution, co-operative society or corporate body in his own name or in the names of his spouse or any of his dependents or any business concern mainly owned by him or his spouse or any of the dependents stands unpaid for more than one year or has got such loan written off, a declaration to the effect that he, his spouse or any of the dependents or a business concern mainly owned by him or the aforesaid persons are not defaulter in payment of the government dues or utility charges including telephone electricity, gas and water charges of an amount in excess of Rs. 10,000/-for over six months at the time of filing of nomination papers, a statement specifying his educational qualifications, occupations etc. and a statement of his assets and liabilities and that of his spouse and dependents. Sub-section (7) of Section 12 provides that Returning Officer shall cause to be affixed at a conspicuous place in his office a notice of every nomination paper received by him containing the particulars of the candidates as shown in the nomination papers. Sub-section (8) of Section 12 which was added vide Ordinance No. XXXVI of 2002 dated 31.7.2002 stipulates that the nomination forms and accompanying declarations and statements shall be open to inspection by the public and copies thereof may be made available by the Commission in such manner on payment of such fee, as may be prescribed. Section 14 of the Act, which relates to scrutiny of nomination forms prescribes that the Returning Officer shall examine the objections to the nomination of a candidate after giving them an opportunity for examining the nomination papers delivered to him and scrutinize the nomination papers and decide the objections. Sub-section (3) of Section 14 authorizes the Returning Officer to reject the nomination papers of a candidate after conducting such summary inquiry as he may think fit, either on his own motion or on any objection, if he is satisfied that:-
(a) the candidate is not qualified to be elected as a Member;
(b) the proposer or seconder are not qualified to subscribe the nomination papers;
(c) any provision of Sections 12 or 13 has not been complied with or "submits any false or incorrect declaration, statement or any material particular" (added vide Ordinance No. XXXVI of 2002 dated 31.7.2002);
(d) the scrutiny of the proposer or seconder is not genuine.
Sub-section (5) of Section 14 provides that a candidate may prefer an appeal against the decision of the Returning Officer rejecting or, as the case may be, accepting the nomination papers of a candidate to the Tribunal constituted for the said purpose, consisting of not less than two Judges of the High Court, nominated by the Commissioner with the approval of the President and such appeal shall be summarily decided within such time as may be notified by the Commission and any order passed thereon shall be final.
As against that sub-section (5-A), which was inserted in Section 14 of the Act, vide Ordinance XXXVI of 2002 dated 31.7.2002 provides that if on the basis of any information or material brought to its knowledge by any source, a Tribunal constituted under sub-section (5) is of the opinion that a candidate whose nomination papers have been accepted, is defaulter of loan, taxes, government dues, or utility charges or has had any loan written off or suffers from any other disqualification from being elected as a Member of an Assembly, it may, on its own motion, call upon such candidate to show cause why his nomination papers may not be rejected, and if the Tribunal is satisfied that the candidate is actually a defaulter, as aforesaid or has had a loan written off or suffers from any disqualification, it may reject the nomination papers. Sub-section (6) of the said section provides that an appeal not disposed of within the period specified in subsection (5) shall be deemed to have been rejected.
22. The careful consideration of the provisions contained in sub-section (5) and sub-section (5-A) of Section 14 would demonstrate that there is a sentiently conscious distinction between the two provisions. Under sub-section (5) the right of an appeal before the Tribunal has been given to a candidate to challenge the rejection of his nomination papers or to call in question the acceptance of nomination papers of his rival candidate on the grounds of disqualifications. However, the scope of scrutiny under sub-section (5-A) is wide enough. The Tribunal can reject the nomination papers of a candidate on the basis of "any information" received by it or any material brought to its knowledge by any source. What the law requires is that on receipt of the information, the Tribunal has to form an opinion that the candidate, whose nomination papers have been accepted, is a defaulter of loans, taxes, government dues or utility charges or has had any loan written off or "suffers from any other disqualification" and then after considering the viewpoint of the said candidate, the Tribunal has to satisfy itself that his candidature is marred by disqualification, nomination papers have to be rejected. A comparative perusal of both the sub-sections would reveal that the words "appeal shall be summarily decided within such time as may be notified by Commission” are conspicuously missing from sub-section (5-A) of Section 14 ibid.
So far as sub-section (5-A) of Section 14 of the Act is concerned, it would essentially mean that the stipulation for deciding the appeal, as laid down in subsection (6) of the said section, was not made applicable to the scrutiny, to be made under sub-section (5-A). The arguments that time limit specified under subsection (6) for deciding the appeal should also be made applicable to sub-section (5-A) is patently misconceived. The intention of the legislature is abundantly clear whereby neither the decision of the Tribunal under sub-section (5-A) has to be made "summarily" nor it has to be made within time period, specified by the Election Commission of Pakistan in the Schedule. Evidently the purpose seems to be blocking the way of those candidates from contesting the elections who are either defaulters of loan, taxes, dues, charges or suffer from any other disqualifications. The term "any other disqualification" would cover the disqualifications as mentioned in Section 14 (3)(b)(c) and(d) of the Act, beside the qualifications and disqualification as contained in Section 99 of the Act and Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan.
23. The arguments advanced by learned Advocate General,
New Webster's Dictionary "The place from which anything comes or is obtained; anything from which something proceeds or arises; the beginning or the place of origin of a stream or river; a spring or issue of water from the earth, or the place of issue; a fountain or fountainhead; an originating cause or ground; an origin; that from which news, information, or evidence, esp. of an original character, is obtained; a book or other publication supplying such information; the business or person making payments of interest, dividends, or the like."
Words and Phrases by West Publishing Co. "A source is that which anything comes forth, regarded as its cause or origin.
Dictionary/thesaurus: "The point at which something springs into being or from which it derives or is obtained. 2. the point of origin, such as a spring, of a stream or river. 3. One that causes, creates or initiates a maker. 4. One, such as a person or document, that supplies information.
1. The place
where something begins, where it springs into being; "the Italian
beginning of the Renaissance"; "Jupiter wias the origin of the
radiation";
2. a document (or organization) from which information is obtained; "the reporter had two sources for the story".
3.
4.
5. a person who supplies information
6.
Chambers 21st Century Dictionary: "the word source interalia means a person, a book or other documents that can be used to provide information/evidence."
Black's Law Dictionary:- "The originator or primary agent of an act, circumstance, or result."
From perusal of the above definition, it will become manifestly clear that the term "Source" has a very wide meaning. It includes a person, a book or any other document that can be used to provide information/evidence.
The meaning of word "person" as contained in the Chambers 21st Century Dictionary is as follows:-
"an individual human being. 2. the body, often including clothes."
Word "Person" according to Black’s Law Dictionary means:
"A human being. 2. An entity (such as a corporation) that is recognized by law as having the rights and duties of a human being 3.The living body of a human being.
"So far as legal theory is concerned, a person is any being whom the law regards as capable of rights and duties. Any being that is so capable is a person, whether a human being or not, and no being that is not so capable is a person, even though he be a man. Persons are the substances of which rights and duties are the attributes. It is only in this respect that persons possess juridical significance, and this is the exclusive point of view from which personality receives le gal recognition" John Salmond, Jurisprudence 318.
Word "Person" has been defined in the General Clauses Act, 1897 in Section 3(39) in the following manner:
Word "person" includes any company or association, or body or person whether incorporated or not Term "Person" has been defined in the similar meaning contained in Section 11 of the Pakistan Penal Code 1860.
24. Thus it will be concluded that the definition of "Person" would include artificial person or legal entity and natural persons viz. human being - men or women. It would be seen that the information or material can be brought to the knowledge of the Tribunal by any juristic or natural person to question the qualifications of a candidate whose nomination papers have been accepted. The phrase “on its own motion” even authorizes and empowers the Tribunal to gather the information from electronic or print media, and that the decision of a Tribunal could not be made subject to the time limit prescribed in the notification issued by the Election Commission of Pakistan, as it would only cover the appeals. There appears a logic behind that, as if some candidate who is not qualified and is elected or chosen, his election can be called in question by his rival candidate through an election petition. But the ordinary citizens or the electors will have no locus-standi to maintain such an election petition. Moreover, the addition of sub-section (8) in Section 12 of the Act, providing therein that the nomination papers and acccompanying declaration and statements of a candidate shall be open to inspection by the public and copies thereof may be made available by the Commission to the public could not be without purpose, whereby general public has been provided access to inspect the documents filed by a candi date and obtain copies thereof also. The intention of the law-makers is quite clear and there is no ambiguity in the provisions to show that the general public has been given a right to question the qualifications of their representatives. This is an act to ensure the transparency in the election and to prevent the persons otherwise disqualified to reach the law-making bodies.
25. Section 12 of the Act has given a right to all the electors of the constituency to propose and second the name of any person, however, such right can only be exercised by an elector in respect of a duly qualified person. The electors have not been given unfettered rights to propose and second a person who is not duly qualified. Besides, the candidate himself has been made responsible to swear a declaration interalia that he fulfills the qualifications specified in Article 62 of the Constitution and is not subject to any of the disqualifications specified in Article 63 of the Constitution or any other law for the time being in force.
26. From the above discussion, it becomes crystal clear that the Election Tribunal is vested with the powers to call upon a candidate on the basis of any information or material brought to its knowledge, to show cause as to why his nomination papers may not be rejected on account of disqualifications enumerated in sub-section (5-A) and disqualification as contained in Article 63 of the Constitution of Pakistan and Section 99 of the Representation of People Act, 1976 and that decision in such matter shall not be governed by sub-section (6) of the Act, meaning thereby that the Tribunal has to arrive at a definite conclusion after it has taken notice of the matter, and that such information or material can be brought to its knowledge by any source viz. a body corporate, juristic or natural person. However, the Tribunal shall take effective steps to adjudicate the election dispute in an expeditious manner within a reasonable time
27. The above discussion will lead to the conclusion that
the observation of learned Chief Election Commissioner erroneously treating the
information laid down before the Appellate Tribunal by respondent No. 5 as an
appeal was legally untenable, further observing the same as deemed to
have been rejected
was against the
provisions of law. The view taken by the Lahore High Court,
28. As regards to the maintainability of a Writ Petition
challenging the pre-election disqualification of a candidate before the
completion of election process has now been well settled. After serveying the
entire case law on the subject, this Court in the case of Intesar Hussain
Bhatti. Vs. Vice-Chancellor, University of Punjab,
"The contentions
of the learned counsel for the petitioner that petitioner appeared in 2003
Examination and qualified but the degree was issued in 2005, on the face of it,
seems to be invalid. In the case of Tariq Mahmood. Vs. District Returning
Officer, Faisalabad and others 2001 SCMR 1991 this Court disqualified the
candidate on the ground that he tried to mislead the authorities as he did not
possess the basic qualification which could qualify him to contest the
election. The contention of learned counsel for the petitioner that under
Article 199 of the Constitution High Court has no jurisdiction to interfere in
the election matter in view of bar of jurisdiction under Article 225 of the
Constitution has no force as it was held by a larger Bench of this Court in the
case of Ghulam Mustafa Jatoi. Vs. Additional District and Sessions
Judge-Returning Officer and others 1994 SCMR 1299 that High Court generally
cannot interfere in the election process in the exercise of its Constitutional
Jurisdiction in view of bar of jurisdiction contained in Article 225 of the
Constitution. However, this is subject to an exception that where no legal
remedy is available to an aggrieved party during the process of election or
after its completion, against an order of an election functionary which is
patently illegal/without jurisdiction and the effect of which is to defranchise
a candidate, he can invoke constitutional jurisdiction of the High Court. The
view taken in the case of Javed Hashmi (supra) is not applicable in the present
case. In the case of Ayatullah Dr.Imran Liaquat Hussain (supra) it ws also held
that legislature expects every statutory authority to act within the limits of
the law ad if any such authority steps out of these limits or refused to
function as the law requires him to function and he proceeds to make an order
not within the limits of law; such order can be declared as without lawful
authority and no legal effect under Article 199. Therefore, orders passed even
by election authorities which are outside the ambit of law, are not, immune
from challenge before and correction by the High Court under Article 199. In
the case of Lt.-Col. Farzand Ali and others. Vs.
29. Such view of the full Bench was further affirmed by a
larger Bench of this Court in the case titled Let.-Gen.(R) Salahuddin Tirmizi.
Vs. Election Commission of
30. As in the instant case Respondent No. 5 being not a candidate could not challenge the pre-election disqualification of Respondent No. 1 by way of election petition under Article 225 of the Constitution, thus petition was rightly entertained by the High Court. Indeed Respondent No. 1 opted not to appear and defend his case before the Election Tribunal or even before the High Court to controvert the averments made in the petition, and on the basis of the available record, the facts remained unrebutted.
31. In such circumstances we are of the considered view
that the writ petition before the Lahore High Court,
32. It is an admitted position that the nomination forms of Respondent No. 1 in the general elections were also rejected by the Returning Officer vide his order dated 01.12.2007. It is also an admitted fact that Respondent No. 1 did not challenge the orders of the Returning Officer before the Election Appellate Tribunal. Instead Respondent No. 1 submitted an application dated 07.12.2007 (Pp 124-126) raising his grievance against the order of the Returning Officer that he has rendered a dishonest decision and committed a grave error of law by rejecting his nomination papers. Such application moved by Respondent No. 1 was responded to with the following orders stated to have been communicated to Respondent No. 1 as appearing in the office order dated 17.12.2007 (page 127 of the paper book of CPLA 878/2008) reproduced hereunder:-
"ELECTION COMMISION OF
In re: APPLICATION BY MIAN SHAHBAZ SHARIF AGAINST REJECTION OF HIS NOMIANTION PAPERS FOR CONSTITUENCY NO. NA-119 LAHORE-II & PP-141-V.
A copy of this petition was received in the office through fax on 7.12.2007 and in view of the short time left for filing of the appeal before the notified Appellate Tribunal it was disposed of promptly and the decision was conveyed to the petitioner in the following terms:
"I have been directed by the Hon'ble Chief election Commissioner to inform you that the Order of the Returning Officer rejecting or, as the case may be accepting the nomination paper of a candidate is appealable under Section 14(5) of the Representation of the People Act, 1976 before the Appellate Tribunal constituted for the purpose. As such, the Chief Election Commissioner lacks jurisdiction in the matter.
"You may, therefore, approach the appropriate forum provided under law for the redressal of your grievances, if so advised."
In the case of the above Order and the comments of the learned Members Election Commission, the matter does not require any further action. The petitioner may seek remedy, if any, available to him under the law. The petition be filed and the learned counsel for the petitioner be informed."
33. Respondent No. 1 after receipt of such order did not agitate the matter any more, and obviously acquiesced in. Thus afore-said order disqualifying Respondent No. 1 attained finality. No plausible or convincing arguments were advanced to justify the subsequent acceptance of the nomination papers of Respondent No. 1, in the bye-elections while there was a clear cut acquiescence on the part of the respondent to his disqualification in the general elections.
34. Be that as it may, the nomination papers of Respondent No. 1 were rejected in the general elections on the following grounds:
1. The he remained fugitive from law.
2. That the loans obtained by the candidate and his family members remained unpaid.
3. That he defamed and ridicule the judiciary;
4. That the respondent could not be considered righteous;
Learned Advocate General,
"As far
as the question of default is concerned, the contention of the leaned counsel
for the petitioner, Mian Muhammad Shahbaz Sharif has merit. It is not disputed
that National Bank of
35. From perusal of the above paragraph it will transpire that the two companies i.e. principal debtor placed all assets and properties at disposal of the Court at the initiative of creditor bank. It was observed in the judgment that with the taking over of assets and properties of the companies by the creditor bank, remedy of surety to proceed against principal debtor at least stands suspended.
36. The above judgment reflects that vide order dated
08.07.1998 learned Company Judge of the Lahore High Court appointed a
Committee, inter alia, comprising of the Regional Chief Executive, National
Bank of Pakistan amongst others, to takeover possession and preserve the
properties of the companies and make arrangements for disposal of the same, for
the discharge of the liabilities. However, the Project Brief dated 22.05.2008
of Ittefaq Group comprising Ittefaq Foundary (Pvt.) Ltd, Ittefaq Brothers
(Pvt.) Ltd and Ilyas Enterprises showing Respondent No. 1 and his other family
members including Mian Muhammad Nawaz Sharif and Mrs. Nusrat Shahbaz as
director of those companies reveals that since 1998 when the directors offered
to surrender the assets of these units to settle the claim of all the banks
which included National Bank of Pakistan, HBL, UBL, MCB, 1st Punjab Mudarba,
Bank of Punjab, ADBP, PICIC and ICB, no progress has since been made on account
of objection petitions filed by the directors of Ittefaq Group inspite of the
fact that a bid of Rs. 2.48 billion was received which was submitted to the
Court as far back as in 2005. It will be appropriate to reproduce herein the
said Project Brief appearing at page 106 of the paper book of C.P.L.A.No. 905
of 2008 which has duly been signed by Saleem Ansar, Executive Vice-President
National Bank of
PROJECT BRIEF
Dt.22.05.2008
ITTEFAQ GROUP
Ittefaq Foundries (Pvt) Limited.
Brother Steels (Pvt) Limited
Ittefaq Brothers (Pvt) Limited
Ilyas Enterprises
Exposure of Banks:
Bank Ittefaq Brother Ittefaq Total (%) NBP/ (%)
Foundry Steel Brothers other
Banks
NBP 1.072 118 355 1,545 49.94%
HBL 716 0 0 716 23.14% NBP
UBL 340 0 0 340 10.99% 1.545 49.94%
MCB 239 0 0 230 7.72%
1st
Mudarba
Bank of 61 0 0 61 1.97% Other
ADBP 58 0 0 58 1.87 1,549
PICIC 17 0 0 17 0.55%
ICP 0 8 0 8 0.26%
TOTAL 2,590 149 355 3,094 100.00%
In 1998 the directors offered to surrender the assets of these units to settle the claims of all the banks. Upon this offer, all the banks unanimously agreed to get a court order on this deal, and as per legal advice of Joint Legal Council of all the banks (Raja Muhammad Akram) an application under Section 284 (Compromise) was filed by the banks at Lahore High Court.
While hearing this application under Section 284 the Lahore High Court ordered to constitute a Committee comprising 3 members: a representative of banks: a chartered accountant and an advocate being the Court representative. The mandate of the Committee is to take possession of the said units of Ittefaq Group to protect and preserve their assets and to auction them through Court Procedure.
Under the said Committee a bid of Rs.2.48 billion was received for assets of all the said units, which was submitted to the Court in 2005, however the final Court Order for auction has not yet been issued due to Objection Petitions filed by some of the directors of Ittefaq Group. Subsequently, in 2006, Committee member Mr.Iqbal Hamidur Rehman, after his appointment as Additional Judge Lahore High Court, was replaced by Mr.Pervaiz Akhtar Malik, Advocate and Mr.Kamran Amin (EVP-NBP) due to change of his assignment in the Bank was replaced by Mr.Salim Ansar (EVP-SAMG-North, NBP). The Committee presently comprises the following members:
1. Mr. Salim Ansar, EVP-SAMG-North, NBP (representative of banks)
2. Khawaja Abdul Qadir (Chartered Accountant)
3. Mr. Pervaiz Akhtar Malik (Advocate, representative of the Court).
Since filing of the bid of Rs.2.48 billion with the Court
in 2005, duly accepted by all the banks and recommended by the committee, the matter
is still stuck up at Court for an Order, and despite all out efforts of the
Committee no progress could so far be made. Several meetings of Creditors banks
were convened by NBP at SAMG-North Office,
Companies Profile:
Companies Ittefaq Brother Steels Ittefaq Brothers
Location Kot
Lakhpat, Kot Lakhpat,
Capacity Not specified 100,000 Tons p.a. 150 Tons p.a. steel
steel products products
Operation Closed Closed Closed
Status
Land 67 Acres 20 Acres 6 Acres
Directors Mian Tariq Shafi Mian Yousaf Aziz Mian Shahbaz Sharif
Mian Javed Shafi Mian Yahya Siraj Mian Muhammad
Mian Abbas Sharif Mrs. Nusrat Shahbaz Idrees
Mian Riaz Meraj Mian Naseem Tariq Mian Pervaiz Shafi
Mian Shahbaz Sharif Mian Memoona Idrees
Mian Yousaf Aziz Mr. Hussain Barkat
Mian Nawaz Sharif
Sd/-
(SALIM ANSAR)
Executive Vice President
National Bank
of
SAMG-LAHORE CANTT.
37. The above document if read in conjunction with the observation made in the judgment of Lahore High Court in the case of Mian Muhammad Shahbaz Sharif (supra) would reveal that a loan amounting to Rs.2590.00 million, Rs.149.00 million and 355.00 million respectively is still outstanding against the Pvt. Ltd. companies, of which respondent is a Director and also a guarantor and the factum of non-payment thereof has gone absolutely unchallenged. Even otherwise learned Advocate General, Punjab being Law Officer of the Province was neither legally competent or authorized nor capable of making any comments, hence remained acquiescent on the personal financial transaction of Respondent No. 1 made in his personal capacity as an Industrialist, such matter having abviously no concern whatsoever with the administration, control and governance of the Province of Punjab.
38 Regarding defaming the judiciary Kh.Haris Ahmad,
learned Advocate General,
39. Apart from above, Mr.Ahmed Raza Khan Qasoori, learned Sr.ASC appearing for Respondent No. 5, Syed Khurram Shah has placed on record the DVDs, containing the above remarks made by the petitioner in proof. So far as plea of continuously ridiculing the judiciary is concerned, Mr.Ahmed Raza Khan Qasoori has placed on record certain press clippings to prove his point, which have also been taken on record. It appears appropriate to reproduce a few of them to have a glance over language and tenor expressed therein.
40. There is no denial so far as continuously making outrageous remarks against the judiciary in newspapers are concerned. The arguments could be advanced that the functioning of the judiciary and the laxnesses thereof could be commented upon by the Political Leaders which must not only be absorbed by the judiciary but to be appreciated to overcome the shortcomings so pointed out. There can be no two opinions that in a democratic society fair comments must be encouraged as freedom of speech and expressing of viewpoint is a fundamental and inviolable right enshrined in the Constitution. However, there is vast difference between a fair comment and/or bonafide criticism and purposeful and outrageously, unconscionable defamation deliberate ridiculousness, coupled with malicious persecution. The material reproduced hereinabove would by itself speak of derogatory and offensive language demonstrating humiliation, persecution and ridicule tainted with malice for the achievement of ulterior purposes. Such iniquitously wicked and insulting statements in the press were sufficient enough to bring the mischief within clause (1)(g) of Article 63 of the Constitution of Islamic Republic of Pakistan and sub-section (g) of the Section 99 of the Representation of People Act, 1976 as Respondent No. 1 not only propagated to bring into the ridicule the judiciary in the past but is still continuing to do so unabatingly.
41. It was argued before us that the Leaders and workers of Pakistan Muslim League (Nawaz) of which Respondent No. 1 is the President committed the acts of rowdism in the Supreme Court premises on 28.11.1997. Referring to the judgment reported as Shahid Orakzai Vs. Pakistan Muslim League (Nawaz) and 8 others (2000 SCMR 1969) it was argued that the said attack on the Supreme Court was made during the government of Pakistan Muslim League (Nawaz) and at the behest of Respondent No. 1 while Mian Muhammad Nawaz Sharif was Prime Minister and Respondent No. 1 was the Chief Minister of Punjab. Certain members of the Provincial Assembly and National Assembly and proactive workers of the party were found involved and were convicted for contempt of the Court. It was pointed out that according to para 17 of the said judgment, an order was passed for conducting thorough investigation and submission of report within four months to proceed against the miscreants to be identified in the investigation. Though such report was submitted to this Court but was subsequently suppressed and was not placed before the Court.
42. As a matter of fact, such order is available at para
17 of the reported judgment(supra) but since the certified copy of the said
report is not available before us therefore, we do not deem it appropriate to
dilate upon the same. Yet certain facts are obviously clear and need no
further proof. It is quite certain that the persons who were
convicted for the contempt of this Court not only belonged but occupied
prominent positions in the party of which Respondent No. 1 is the President.
The culpability of Respondent No. 1's party is further affirmed by the fact
that one Akhtar Mehmood who was convicted in contempt of the Court case was
undeniably appointed to occupy a responsible judicial/quasi judicial position
by Respondent No. 1 in his capacity as a Chief Executive of the Province.
Having conceeded the above factum of appointment of the said convict, Kh. Haris
Ahmed, learned Advocate General,
43. From the above factual position it will be observed that Respondent No. 1 had been and is continuously making well determined and decisively resolute efforts to ridicule, defame, harrass, downgrade and humiliate the judiciary since 1997 till date.
44. Though it may not be said with certainty that the judgment in Zafar Ali Shah's case (PLD 2000 SC 869) does affirm the financial bunglings made by Respondent No. 1 but the subsequent events were adequate enough to show that the allegations were not without substance to be outrightly rejected.
45. Article 63 of the Constitution of Islamic Republic of Pakistan interalia provides that a person shall be disqualified from being elected or chosen as, and from being, a Member of Majlis-e-Shora (parliament), if:-
"(i) he is propagating any opinion, or acting in any manner, prejudicial to the Ideology of Pakistan, or the sovereignty, integrity or security of Paksitan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan or which defames or brings into ridicule the judiciary or the Armed forces of Pakistan; or
(ii) he has obtained a loan for an amount of tow million rupees or more, from any bank, financial institutions, cooperative society or cooperative body in his own name or in the name of his spouse or any of his dependents, which remains unpaid for more than one year from the due date, or has got such loan written off; or
(iii) he or his spouse or any of his dependents has defaulted in payment of government dues and utility expenses, including telephone, electricity, gas and water charges in excess of ten thousand rupees, for over six months, at the time of filing his nomination papers."
Apart from the above, sub-section (1-A) of Section 99 of the Representation of People Act, 1976 also speaks of the above-mentioned disqualifications.
46. As is evident from the above discussion that Respondent No. 1 is defaming and propagating to bring into ridicule the judiciary and that the loans obtained by him exceeding the amount of two million rupees have remained unpaid since the year 1998. Besides a pending case has not been declared in the statement submitted alongwith nomination form. As a result of above findings, Respondent No. 1 is disqualified from being elected or chosen as, and from being a Member of Provincial Assembly.
LOCUS-STANDI:
47. Adverting to the plea of locus-standi of the
48. Regarding the locus-standi of the Speaker of Punjab Assembly, the arguments of Mr.Raza Farooq, learned ASC to the extent of role of Speaker so far as regulating and conducting the business of the House is concerned, his duties obligations and privileges including the status of prominence are not disputed. It is also not disputed that the Speaker is under obligation to refer the case of a member for disqualification on the ground of defection as provided under Article 63-A of the Constitution, however the point which needs to be considered is, as to whether the Speaker of the Provincial Assembly shall be entitled to espouse the individual cause of a Member or for that matter that of the Leader of the House in regard to his personal disqualification to be elected or chosen as a member, the reply will be definitively in negagive. The Speaker is the custodian/guardian of the entire House, and not an individual member. The case of Moulvi Tameez-ud-Din Khan as relied upon by learned ASC is evidently in relation to challenging the Act of Governor of dissolution of the Assembly and does not concern the individual act of a member. The said case and the subsequent precedents in this regard will be of no help to advance the case of the Speaker of Punjab Assembly. Of course the Speaker may agitate the collective cause of the House but could not provide a shield to defend an individual member, more particularly when the member himself is neither handicapped, incapacitated or prevented by an act of God nor prohibited by the circumstances beyond his control but is resolutely and determinably unwilling to defend himself.
49. In the given circumstances, neither the
50. As regards the locus-standi of the Federation of Pakistan to impugn the judgment of the Lahore High Court, it will be noted that the Federation was a proforma party/respondent in the petitions before the Lahore High Court. The perusal of the impugned judgment manifestly reveals that neither any relief was granted against the Federation nor any direction was issued to them, so as to give rise to the cause of action to the Federation to file the instant petition. It was candidly conceded by learned Deputy Attorney General that no direction or order was passed against the Federation. In the circumstances, neither the Federation was aggrieved party nor had any cause of action to provide them a locus-standi to challenge the judgment of the Lahore High Court. Even learned Attorney General has not been able to cite any precedent to demonstrate that at any point of time, the Federation has ventured to step into an election dispute of a certain individual. We have no slightest doubt in holding that the Federation, not being an aggrieved party, was not competent to maintain the petition. Accordingly the petition filed by the Federation is equally liable to be dismissed, which stands dismissed.
51. For what has been discussed above, we have arrived at an irresistible conclusion that Respondent No. 1, Mian Muhammad Shahbaz Sharif was disqualified from being elected or chosen as a member of Provincial Assembly of Punjab as he suffered from an inherent disqualification. The order of the Returning Officer dated 16.5.2008 of acceptance of nomination papers of Respondent No. 1 was legally unsustainable which is set aside. The judgment dated 23.6.2008 passed by Lahore High Court, Lahore remanding the case to the Chief Election Commissioner for constituting a three members' Tribunal, in the given circumstances of the case, is untenable and of no legal effect, as it will serve no purpose except protracting the proceedings, especially when Respondent No. 1 has taken determinative decision not to appear before any forum, which is evident from the record and proceedings. Respondent No. 1 despite service did not appear before the Election Appellate Tribunal. He elected not to appear before the High Court despite service. instead futile attempts were made through proxies to drag the proceedings of the High Court and to cause harassment and humiliation to the learned Judges of the Lahore High Court. Despite serious and relentless efforts made by this Court, more particularly having got Respondent No. 1 served through Advocate General, Punjab he opted not to appear before this Court.
52. As a result of foregoing reasons, the notification issued by Election Commission of Pakistan dated 03.06.2008 declaring respondent No. 1 to be Returned Candidate, is set aside.
53. These are the detailed reasons for the short order passed on 25.2.2009 which is reproduced herein below:-
"Arguments concluded.
2. For the detailed reasons to be recorded separately, the under mentioned civil petitions are held to be not maintainable and accordingly dismissed. Leave is refused:-
(i) CPLA No. 657-L/2008
(ii) CPLA No. 803/2008
(iii) CPLA No. 878/2008
3. CPLA No. 905/2008 (Syed Khurram Shah v. Mian Muhammad Shahbaz Sharif and others) is converted into appeal and allowed.
4. Resultantly, Respondent No. 1 (Mian Muhammad Shahbaz Sharif) is declared not qualified to be elected or chosen as a Member of an Assembly. The order dated 16.5.2008 of the Returning Officer PP-48 Bhakkar-II (Respondent No. 2) accepting the nomination papers of Mian Muhammad Shahbaz Sharif and the judgment dated 23.6.2008 of the Lahore High Court, Lahore passed in W.P. No. 6470/2008 are set aside.
In consequence thereof, the notification issued by the Election Commission of Pakistan dated 3.6.2008 thereby publishing the name of Mian Muhammad Shahbaz Sharif and notifying him as returned candidate is declared to be null and void. Consequently, Respondent No. 1 (Mian Muhammad Shahbaz Sharif) ceases to be Member of the Provincial Assembly of Punjab from the said constituency. Election Commission of Pakistan is directed to issue a Notification thereby de-notifying Mian Muhammad Shahbaz Sharif.
5. The CMAs No. 471-L/2008, 95/2009 are also dismissed.
(M.A.) C.M.A. dismissed.
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