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Petitioner: Moulvi IQBAL HAIDER, ADVOCATE and another VS Respondent: FEDERATION OF PAKISTAN JUDGMENT
Court Name: Sindh High Court Judge(s): Aqeel Ahmed Abbasi, Yousuf Ali Sayeed Title:Moulvi IQBAL HAIDER, ADVOCATE and another vs FEDERATION OF PAKISTAN
JUDGMENT
Reported As: PLD 2017 Sindh 464 Result: Order accordingly Judgment JUDGMENT ' AQEEL AHMED ABBASI, J.--Through instant petition, the petitioner No,l. Namely, Moulvi lqbal Haider, who is an Advocate of this Court and claims to be the Chairman of Awami Himayat Tehrik. Pakistan whereas, petitioner No,2, namely, Maqsood Ahmed who claims to be the Secretary of Awami Himayat Tehrik, Pakistan, have sought following declaration (s):-- a) Declare that the respondent No,3 was under obligation of the Constitution of Islamic Republic of Pakistan was bound to decide the reference in terms of Article 63(2) rAv Article 5 of the constitution, but failed to do so therefore the respondent No,2 under obligation of the Constitution of Islamic Republic of Pakistan is competent to decide the Reference of the petitioners filed against the respondents Nos.4 to 43 in terms of Article 63(2)(3) r/w Article 5 of the Constitution of the Islamic Republic of Pakistan. b) Direct the respondent No,2 to decide the Reference of the petitioner for disqualification of the respondents Nos.4 to 43 in terms of Article 63(2)(3) of the Constitution of Islamic Republic of Pakistan and the existing Laws in the interest of justice. c) Restrain the respondents Nos.4 to 43 from participating as Member of the Provincial Assembly of Sindh. d) Any other relief/reliefs which this Honourable Court may deem fit and proper may also be granted. 2) Petitioner No,1 present in person, submits that he is a practicing advocate of this Court and also Chairman of Awami Himayat Tehrik Pakistan has sought aforesaid declaration(s) on the ground that a reference filed by the petitioner before respondent No,3 i.e. Speaker, Provincial Assembly of Sindh for seeking disqualification of respondents Nos.4 to 43, in terms of Article 63(2) of the
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Constitution, has not been decided by respondent No,3 within the stipulated period. According to petitioner, respondents Nos.4 to 43, are the elected Members of a political party i.e. Muttahida Qaumi Movement (MQM) who participated/attended a hunger strike at Karachi Press Club in which, as per media reports, telephonic/audio speech was delivered from London by Altaf Hussain, the founder leader of Muttahida Qaumi Movement (MQM) on 22.08.2016, which according to petitioner, was highly objectionable and contained derogatory remarks and slogans against State and its organs, therefore, provision of Articles 5, 6, 9, 17, 25, 62 and 63 of the Constitution of Islamic Republic of Pakistan were violated and it also attracted the provision of Anti-Terrorism Act, Protection of Pakistan Act, 2014, as well as Pakistan Security Act. According to petitioner, respondents Nos.4 to 43 did not take any steps to obstruct such speech, therefore, facilitated the offence, hence they are liable to be prosecuted under the aforesaid laws before the competent Court of Law. It has been further contended by the petitioner that since Respondents Nos. 4 to 43 have submitted their nomination papers through their party (MQM) and have been elected as Members of Provincial Assembly of Sindh, therefore, their participation and facilitation in the objectionable speech makes them liable to be prosecuted for a criminal offence committed by their party leader while delivering such Anti-State telephonic/audio speech. Petitioner further submits that the claim of the respondents at a subsequent stage to disassociate themselves from the contents of the speech as well as from their party leader at London cannot absolve them from the criminal charges as referred to hereinabove. Petitioner further contended that respondent No,3 i.e. Speaker Provincial Assembly was under legal obligation to refer the matter to respondent No,2 i.e. Election Commission of Pakistan in terms of Article 63 of the Constitution with thirty days, whereas, in case of his failure to decide the reference, the respondent No,2 i.e. Election Commission of Pakistan is under legal obligation to decide the reference of the petitioner, which has not been done in the instant case, hence, requests that respondent No,2 may be directed to decide the reference filed by the petitioner for disqualification of the respondents Nos. 4 to 43 in terms of Article 63(2)(3) of the Constitution of Islamic Republic of Pakistan and to. Restrain the respondents Nos 4 to 43 from participating as Member of Provincial Assembly of Sindh. (3) We have heard the petitioner, perused the record with his assistance, examined the relevant provisions of the Constitution as well as other relevant provisions of the enactments as referred to by the petitioner in the instant case. The petitioner has sought declaration from this Court for disqualification of respondents Nos.4 to 43 in terms of Article 63 of the Constitution on the strength of some Media report relating to telephonic audio speech purportedly delivered from London by Mr. Altaf Hussain, the founder leader of (MQM) on 22.08.2016, and has expressed his grievance against respondent No,3 i.e. Speaker Provincial Assembly of Sindh, who according to the petitioner, has not referred the reference of the petitioner to the respondent No,2 in terms of Article 63 of the Constitution of Islamic Republic of Pakistan, whereas, further grievance has been expressed against respondent No,2 i.e. Election Commission of Pakistan, who according to petitioner, was under obligation to decide the reference of the petitioner on the expiry of 30 days from the date of filing such reference before the Speaker, Provincial Assembly of Sindh. In order to examine the contention of petitioner on the touchstone of constitutional plane, it will be advantageous to examine the provisions of Article 63 of the Constitution, which read as follows:- "63. Disqualifications for Membership of Majlis-e-Shoora (Parliament). (1) A person shall be disqualified from being elected or chosen as, and from being, a Member of the Majlis-eShoora (Parliament), if- (a) he is of unsound mind and has been so declared by a competent court; or (b) he is an undercharged insolvent; or (c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or
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(d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or (e) he is in the service of any statutory body or anybody which is owned or controlled by the Government or in which the Government has a controlling share or interest; or (f) being a citizen of Pakistan by virtue of section 14B of the Pakistan Citizenship Act, 1951 (II of 1951), he is for the time being disqualified under any law in force in Azad Jammu and Kashmir from being elected as a Member of the Legislative Assembly of Azad Jammu and Kashmir; or (g) he has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, 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, unless a period of five years has elapsed since his release; or (h) he has been, on conviction for any offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; or (i) he has been dismissed from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the ground of misconduct, unless a period of five years has elapsed since his dismissal; or (I) he has been removed or compulsorily retired from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the ground of misconduct, unless a period of three years has elapsed since his removal or compulsory retirement; or (k) he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or (1) he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a Member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a cooperative society and Government, for the supply of goods to, or for the execution of any contract or for the performance of any service undertaken by, Government: Provided that the disqualification under this paragraph shall not apply to a person- (i) where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator, until the expiration of six months after it has so devolved on him; (ii) where the contract has been entered into by or on behalf of a public company as defined in the Companies Ordinance, 1984 (XLVII of 1984), of which he is a shareholder but is not a director holding an office of profit under the company; or (iii) where he is a Member of a Hindu undivided family and the contract has been entered into by any other Member of that family in the course of carrying on a separate business in which he has no share or interest; Explanation.- In this Article "goods" does not include agricultural produce or commodity grown or produced by him or such goods as he is, under any directive of Government or any law for the time being in force, under a duty or obligation to supply; or (m) he holds any office of profit in the service of Pakistan other than the following offices, namely:- (i) an office which is not whole time office remunerated either by salary or by fee; (ii) the office of Lumbardar, whether called by this or any other title; (iii) the Qaumi Razakars;
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(iv) any office the holder whereof, by virtue of such office, is liable to be called up for military training or military service under any law providing for the constitution or raising of a Force; or (n) he has obtained a loan for an amount of two million rupees or more, from any bank, financial institution, 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 (o) 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; or (P) he is for the time being disqualified from being elected or chosen as a Member of the Majlis- e-Shoora (Parliament) or of a Provincial Assembly under any law for the time being inforce. Explanation. - For the purposes of this paragraph "law" shall not include an Ordinance promulgated under Article 89 or Article 128. (2) If any question arises whether a Member of the Majlise-Shoora (Parliament) has become disqualified from being a Member, the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, refer the question to the Election Commission within thirty days and if he fails to do so within the aforesaid period it shall be deemed to have been referred to the Election Commission. (3) The Election Commission shall decide the question within ninety days from its receipt or deemed to have been received and if it is of the opinion that the Member has become disqualified. He shall cease to be a Member and his seat shall become vacant." 4) Perusal of hereinabove provisions of Article 63 of the Constitution shows that a Member of Majlis-e-Shoora (Parliament) can be disqualified from being elected or chosen as, and from being, a Member of Majlis-e-Shoora has become disqualified from being a Member, if any of the situation as specified under clauses (a) to (p) of sub-Article (1) of Article 63 of the Constitution is attracted in the case of such member of the parliament, whereas, in case of any reference filed against any of the Member(s), the Speaker or, as the case may be, the Chairman shall, unless decides that no such question has arisen, refer the question to the Election Commission within 30 days from the date of receipt of such reference. It further provides that in case of his failure to refer the reference to the Election Commission. It shall be deemed to have been referred to the Election Commission, whereas, the Election Commission then decides the question within 90 days from receipt of reference or deemed to have been received, and if Election Commission is of the opinion that Member has become disqualified then such Member shall cease to be a Member and his seat shall become vacant. From careful perusal of the instances as detailed in Article 63(1)(a) to (p), and the allegations as contained in the instant petition as well as the reference filed by the petitioner before the Speaker Provincial Assembly, it appears that none of the aforesaid situation under which a Member Majlis-eShoora (Parliament) can be disqualified, has been cited by the petitioner, on the contrary, on the basis of some vague allegations against the founder leader of a political party, and in the absence of any concrete material produced by the petitioner, reference was filed before the respondent No,3 for seeking disqualification of respondents Nos.4 to 43. There seems no direct allegation against the respondents Nos.4 to 43 for A having committed any offence, which may attract any of the provisions of Articles 5, 6, 9, 17, 25, 62 and 63 of the Constitution of Islamic Republic of Pakistan, 1973, or the provisions of Anti-Terrorism Act and Pakistan Security Act, as stated by the petitioners in the instant petition. Admittedly, nothing has been attributed to respondents Nos.4 to 43. Which may suggest that they have raised any Anti-State slogans or facilitated or participated in any activity which could possibly attract any cognizable offence under Anti-Terrorism Act, 1997 or the Protection of Pakistan Act, 2014. It will not be out, of place to observe that respondents Nos.4 to 43,, are the elected Members of Provincial Assembly of Sindh and
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represent the will of the large number of voters in their respective constituencies, who have carted their votes in favor of respondents Nos.4 to 43, to be their representative in the Provincial Assembly, therefore, in the absence of any valid reasons as provided under Article 63 of the Constitution they cannot be de-seated on the basis of mere whims and baseless allegations by some individual, prima facie who does not have any locus-standi or cause of action even to file such reference particularly in the absence of any material relatable to any of the instances as detailed in Article 63(1)(a to p) of the Constitution. 5) It has been further observed that similar reference was filed by the petitioners before the Speaker, National Assembly and the Chairman, Senate, against the elected representatives in the National Assembly as well as in the Senate belonging to Muttahida Qaumi Movement (MQM), however, both the references have been dismissed by the Speaker, National Assembly and the Chairman, Senate, through their detailed orders dated 14.10.2016 and 13.10.2016 respectively, which have been Annexed along with instant petition. It appears that the petitioner has not sought any further remedy against such dismissal orders by approaching the Election Commission of Pakistan, as nothing has been attached along with memo of petition to this effect, whereas, the petitioner has approached this Court under Article 199 of the Constitution seeking a declaration of disqualification of respondents Nos.4 to 43, which can be decided by the Chief Election Commissioner in appropriate proceedings and not by this Court under Article 199 of the Constitution. From careful perusal of the provisions of Article 63, it is clear that the office of the Speaker or the Chairman, as the case may be, is not a post office to refer each and every question to the Election Commission, on the contrary it is the discretion of the Speaker/Chairman either to refer the question to the Election Commission for appropriate orders or to decline to refer such question, if there is no material or reasonable cause to refer such reference to the Election Commission. However, sub-Article (2) of Article 63 of the Constitution provides that, if the Speaker/Chairman does not decide or refuses to refer the question of disqualification of any Member of the parliament, to the Election Commission within thirty (30) days from the date of its receipt by the Speaker/Chairman, such reference shall be deemed to have been referred to the Election Commission. Thereafter, in terms of sub-Article (3) of Article 63 the Election Commission has to decide the question regarding disqualification of any member within ninety (90) days from its receipt or deemed to have been received, however only in appropriate cases where, there is sufficient material and evidence available on record to substantiate the allegations against such Member which may be relatable to any of the instance as detailed in clauses (a) to (p) of sub- Article (1) of Article 63 of the Constitution. In the instant case, the petitioners instead of approaching the Election Commission in terms of Article 63, has approached this Court under Article 199 of the Constitution, while bypassing the forum provided under the Constitution and the relevant election, laws for such purpose. 6) It will be advantageous to reproduce hereunder the relevant finding as contained in the decision of the Chairman, Senate of Pakistan, while dismissing the similar reference of the petitioner on the same set of allegations, as it depicts correct legal position which has been ably dealt by the Chairman, Senate, who happens to be a seasoned parliamentarian and a senior Advocate of this Court as well of Hon'ble Supreme Court of Pakistan:-- "3. After perusal of the aforesaid grounds, the same are dealt with as under:- (i) Grounds Nos. (i) and (ii) are clubbed together. They deal with and pertain to Altaf Hussain and the statement made by him on 22.08.2016 and thereafter, which continue till date. There is no collaborative evidence to suggest that the "Members" were in the knowledge of or consulted prior to the said statements. Therefore, of no legal effect in the instant Reference. Further at the first available opportunity the "Members" conclusively condemned and disassociated themselves with the same. This is evident from reports in the electronic and print media. The "Members" present in
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the Senate also supported a Resolution moved by Senator Saeedul Hassan Mandokhail, on 26th September, 2016, condemning the same. (ii) Ground No (iii). As per the record, available with the Election Commission of Pakistan, the MQM, Pakistan, is registered in the name of Dr. Farooq Sattar in terms of the Political Party's Order, 2002. The said party was registered with the same name at the time of the elections of the Senate of Pakistan in 2012 and 2015. Further with reference to the charges made in the said ground, suffice it to say, that there is no valid, final and binding determination or declaration that has been made by a competent court in respect of the allegations and no such proceedings have been initiated before a competent forum. (iii) Ground No (iv). The "Oath" referred by the "Applicant" is an internal matter of the party. The said oath was neither filed with the Election Commission of Pakistan or with the Senate of Pakistan at the time of elections or subsequently, hence making the said contended document inadmissible as evidence. Furthermore, the text of the said "Oath" shows that it was not taken on a 'Solemn Affirmation', therefore, no legal authority/sanctity can be attributed to the said Oath. (iv) Grounds Nos. (v) and (vi) are clubbed together, Mr. Farooq Sattar is the head of the MQM, Pakistan, as per record of the Election Commission of Pakistan. Therefore, a reasonable presumption follows that the party tickets awarded to the "Members" have been signed by him or any other person authorized or acting through or under him, in this behalf. The remaining Grounds are vague and contradictory. (v) Ground No: (vii). Is incoherent, the melly of words when cleared, is a reputation of Grounds (i) and (ii) above, which have been dealt with more fully in sub-paragraph(i) of paragraph (2) herein above. (vi) The question of banning of the MQM, Pakistan, does not fall within the competence of clause (2) of Article 63, Constitution, 1973, therefore does not need to be answered. 4. In terms of first para of the Reference, the "Applicant" has invoked clause (3) of Article 63, Constitution, 1973. Technically, on this ground alone, the Reference can be dismissed. As it involves a matter dealing with and pertaining to the question of disqualification of "Members", I will presume that this is a typographical error, therefore, proceed to deal with the legal proposition that emerges from the instant Reference. The only question for determination is,-- "Whether a question has arisen to the disqualification of the "Members" in terms of clause (2) of Article 63, Constitution, 1973." 5. The instant question is answered in the following terms:- (i) The Constitution, 1973, envisages three distinct situations when the question of the disqualification of a contesting candidate or a Member arises. The same are dealt with, separately, under Articles 62, 63 and 63(A), Constitution, 1973. (ii) Article 62, Constitution, 1973, can only be agitated through an election petition under Article 225 of the Constitution, 1973, by a rival contesting candidate within the statutory limitation, provided. Article 225; Constitution. 1973, is reproduced herein under for the sake of convenience. "225. Election dispute.- No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of [Majlis-e-Shoora (Parliament)]. " (iii) A disqualification in terms of paragraphs (a), (g), (h) of clause (1) of Article 63, Constitution 1973, requires a declaration by a competent court before they can be given affect to. Paragraphs (b), (c), (d), (e), (i), (j), (k), (I), .(m), (n), (o), (p) of clause (1) of Article 63, Constitution, 1973, are not attracted in the instance Reference. (iv) Clause (2) of Article 63 Constitution, 1973 is reproduced as under; 7(2) If any question arises whether a Member of the Majlis-eShoora (Parliament) has become disqualified from being a Member, the Speaker or, as the case ,may be, the Chairman shall, within
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thirty days from arising of such question refer the question to the Chief Election Commissioner...I" (v) On the same day i.e. 26th September, 2016, the office of the Chairman, Senate of Pakistan, also received notice of the Writ Petition bearing C.P.No,D-4706/2016 filed in the High Court Sindh at Karachi by the "Applicant". In the instant case the "applicant" has invoked two separate jurisdictions concurrently. (vi) Clause (2) of Article 63, Constitution, 1973 is not a standalone provision, it is to be read as a whole with Article 63 which deals with, "Disqualifications for Membership of Majlis-e-Shoora (Parliament)." Clause (1) of the said Article provides the instances/conditions wherein a Member of Parliament can become disqualified, this has been discussed in detail herein above. Clauses (2) and (3) provide procedures to be followed if a question has arisen in pursuance of clause (1) of the said Article, which is as under:- (a) When Reference has been filed before the Chairman, Senate of Pakistan or the Speaker, National Assembly of Pakistan, as the case may be, and the said clause has become operative, it provides for a period of thirty days for the Chairman, Senate of Pakistan or the Speaker, National Assembly of Pakistan, as the case may be, to decide the matter, failing which it will be deemed to have been sent to the Election Commission of Pakistan; (b) In this period it is the Chairman or the Speaker who alone is entrusted with the constitutional role of deciding whether a question has arisen relating to the disqualification of a Member of the Senate or National Assembly, therefore, no Tribunal, Commission or Court has jurisdiction to adjudicate in the matter during this period. 6. The grounds raised by the "Applicant" for disqualification of the "Members" are not substantiated or supported by the provisions of…
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