Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD AKBAR BUGTI VS Respondent: CHIEF SECRETARY, BALUCHISTAN AND 3 Other
Court Name: Balochistan High Court Judge(s): Abdul Qadeer Chaudhry, Mir Khuda Bakhsh Marri Title: MUHAMMAD AKBAR BUGTI vs CHIEF SECRETARY, BALUCHISTAN AND 3 Other Case No.: Constitutional Petition No. 13 of 1979 Date of Judgment:1979-07-29 Reported As: PLD 1979 Quetta 233 Result: Petition accepted
JUDGMENT
JUDGMENT ABDUL QADEER CHAUDHARY, J.-After hearing the counsel for the peti--tioner and Advocate-General, Baluchistan for respondents Nos. 1 to 3, by our short order dated 28-7-1979, we allowed the petitioner and held that the very reference made by the Chief Secretary, Baluchistan is bad in law and so is the findings and orders of disqualification by the Disqualification Tribunal as well as proceedings before the Special Summary Military Court, Baluchistan, Quetta. Here are the reasons for the same. The petitioner was holding the post of Governor of Baluchistan and his case was referred to the Disqualification Tribunal by the respondent No. 1 wide the letter dated nil. The reference was made under Martial Law Order No. 31 as reconstituted by Martial Law Order No. 57. There were three allegations against the petitioner that he filed false and incorrect declaration of his assets; that he indulged in selection of Tehsildars in violation of the rules; and that he was guilty of maladministration and misapplication of Government funds. After the reference was notified in the official Gazette, the respondent No. 2 started proceedings against the petitioner. According to the respondent No. 2, the petitioner refused to acknowledge the notice, therefore, the respondent No. 2 examined witnesses and passed the order, whereby the petitioner was held guilty of misconduct and he was disqualified for a period of 7 years from being elected or chosen as a Member of Parliament or of a Provincial Assembly. 2. The case of the petitioner is that he had not received any information from the respondent No. 2 regarding the proceedings and in fact an envelop was brought by a Police Officer for service on the petitioner, and the petitioner had informed him that it should be sent to him through registered post. The petitioner did not know the contents of that envelop.
---
## Page 2
3. After the petitioner was disqualified; the respondent No. 3 proceeded against the petitioner for trial on the allegations that be committed misconduct by misusing his position as Governor of Baluchistan. 4. The petitioner therefore approached this Court in its constitutional jurisdiction, to challenge the acts, proceedings and orders passed by the three respondents. 5. The learned counsel for the petitioner did not press his petition against the respondent No. 4 and no relief was claimed against him we heard the petitioner against the respondents Nos. 1 to 3 only. 6. The learned counsel for the petitioner has made the following submissions; (i) The Chief Secretary was not competent under Martial Law Order 31 as reconstituted by Martial Law Order 47 to make a reference to Disqualification Tribunal with regard to the petitioner. (ii) That no notice has been served by the respondent No. 2 before proceeding against him and therefore the action of the respondent No. 2 violated the principle of natural justice. (iii) That the petitioner had been a victim of discrimination as he has been tried under Martial Law Order 47 in spite of the fact that there are other laws parallel to Martial Law Order 47 and more beneficial to the subject under which the petitioner could be tried. As regards the first contention, raised by the learned counsel, about the competency of the Chief Secretary, to refer the case of the petitioner to Disqualification Tribunal, we have to examine vie law itself. Paragraph 2(a) of Martial Law Order 47 (hereinafter referred to as Order) defines Chief Secretary as under :- "Chief Secretary, in relation to a holder of a representative office, means the Chief Secretary of the Government of the Province, in which the place from which such holder was elected as a Member of Parliament or of a Provincial Assembly is situated or, if such place is situated in the Federally Administered Tribal Areas, the Chief Secretary to the Government of the North-West Frontier Province or, if such place is situated in the Islamabad Capital Territory, the Chief Secretary to the Government of Punjab or, in the case of the Attorney-General or an Advocate-General, the Chief Secretary to the Government of the Province in which such holder has or had his headquarters; Paragraph 2 (c) defines holders of representative office and this includes the office of Governor. The learned counsel for the petitioner has not disputed that the petitioner was a holder of representative office. According to paragraph 4(11 of the Order a Disqualification Tribunal shall not proceed to enquire into any charge of misconduct against a holder of representative office except on a reference in writing made to it by the Chief Secretary. The condition precedent for proceeding against a holder of representative office is that a reference in writing has to be made by the Chief Secretary. Paragraph 2(a) of the Order defines Chief Secretary who is competent to make reference. This paragraph further gives the list of such persons whose cases could be referred to the Tribunal. The bare reading of this paragraph makes it clear that either a holder of representative office-who had the character of an elected person could be proceeded against, or the reference could be made against the Attorney-General or an Advocate-General. There is no provision in this clause that the case of a Governor could also be referred to a Disqualification Tribunal. The learned counsel for the respondent has submitted that the definition of Chief Secretary must be read along with the definition of holder of representative office; wherein the name of the Governor or President has been mentioned. Even if we read the two definitions together it does not bring to the conclusion that a Governor can be roped in simply because he was holding a representative office. Paragraph 2(a) of the Order is in fact not the definition of Chief Secretary; but it has named the Chief Secretary who is competent to make a reference about a particular individual holding a representative office. The learned Advocate-General submitted that the intention of the Legislature has to be borne in the mind. According to him the scheme of the order is to make enquiry against all those persons who are holding, or had held representative office. Therefore even if the name of the Governor is missing in paragraph 2(a) of the Order, that is
---
## Page 3
immaterial, because the purpose for which the law was promulgated has to be achieved. In fact the learned Advocate-General has taken too broad proposition of law. If the words and phrases of an enactment are clear and unambiguous, then ordinary meaning must B be given to those words and phrases; and the Court should not incorporate extraneous terms which have been not provided in the legislation itself. The hidden intention of a law-giver stored in his mind could not be blindly applied to each and every case. The persons mentioned in paragraph 2(a) of the order is quite clear and by no stretch of legal acument this definition can be extended to those representative whose names, the law giver has either intentionally omitted or for the reasons best known to him. According to the learned Advocate-General, if the definition of Chief Secretary is to be accepted in restricted sense, then the cases of few holders of representative office could be referred to the Disqualification Tribunal. This argument on the face of it has no weight, because if a law does not provide a certain thing to be done in a certain way; the scope of such law cannot be extended by any anology of interpretation to such circumstances which are not provided in the law. Moreover Mr. Yahya Bakhtiar has given the names of 17 persons whose case under existing laws could be referred to the Tribunal. The learned Advocate-General submitted that the intention of a law is the primary object and if there is any lacuna in the Act it can be filled in by the Court. The intention of law cannot be applied on the hypothesis proposition, but it must be clear and not unambiguous. Moreover if the Legislature had intentionally omitted to refer the case of a particular holder of representative office, the Court cannot function as a legislative body to do the work of the Legislature or to fill in the gaps which are apparent in the law itself. The learned Advocate-General has referred to In a matter of Reference by President (PLD 1957 SC (Pak.) 219), in support of his contention that the intention of the author must be kept in view on interpreting the written instruments; but it has been stated in this authority that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made. , The second authority quoted by him is Province of West Pakistan v. Mahboob Ali and others (PLD 1976 SC 483), wherein, it has been held that basic principles governing the interpretation or construction of statutes are not inflexible. In fact this authority also does not support the contention made by the learned counsel. It is profitable to quote the relevant part of the judgment:----- "The basic principles governing the interpretation or construction of statutes are well settled. But these have seldom been regarded as inflexible except perhaps where a statute is plain, certain and free from any ambiguity so that a bare reading of it would suffice. In essence, in such case, interpretation is unnecessary. Barring such plain cases statutes would be construed liberally or strictly according to their subject-matter, the object or purpose intended to be achieved, or whether it is in any way in derogation of any common law or inherent right. For instance, it is well settled that penal or fiscal statutes or statutes impinging upon common law, rights, are to be strictly construed and any ambiguity or imprecision is to be resolved in favour of the subject. On the other hand it is equally well settled that remedial statutes are to be liberally construed so as to advance the remedy and suppress the mischief. So also empowering statutes are generally liberally construed so as to effect and not to stultify the power conferred. Modern cases provide many instances of the Judges, reluctance to stand upon the letter of the law strictly in the interpretation of a statute falling under the second category. It is true that even in such cases, what is an obvious omission cannot be supplied by invoking the rule of liberal interpretation. In such cases rule of cassus omissus is generally applied. But when faced with as choice between a wide meaning, which carries out what appears to be object of the Legislature more fully and a narrow meaning which carries it out less fully of not at all, the choice of the Courts is often the former. Beneficial construction is a tendency, rather than a rule."
---
## Page 4
It has been specifically stated that where a statute is plain, certain and free from any ambiguity in such cases interpretation is unnecessary. It is further held that the penal or fiscal statutes or statutes impinging upon common law rights are to be strictly construed and any ambiguity or imprecision is to be resolved in favour of the subject, and further that what is an obvious omission cannot be supplied by invoking the rule of liberal interpretation. Similarly in Zaibtun Textile Mills Ltd. v. Central Board of Revenue (PLD 1971 Kar. 333), it has been held :- "Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest construction of the apparent purpose of the enactment, or to some inconvenience of absurdity, hardship or injustice, presumably not intended a construc--tion may put upon it which modifies the meaning of the words, and even the structure of the, sentence, because, where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. Even though, as a general or, a Court of law is not authorised to supply a cassus omissus or to alter the language of a statute for the purpose of supplying a meaning, yet in certain circumstances it is permissible for the Courts to give effect to the true and patent intention of the law-maker to supply the omission in order to avoid doing a manifest injustice." The principle enunciated in this authority is to be read as a whole and not in peace-meal. The language of the present statute is clear, its ordinary meaning and construction does not lead to hardship, absurdity or injustice. In Commissioner, Sargodha and another v. Khizer Hayat and others (PLD 1966 SC 793), it is held that where the law is clear, the Judges of the superior Courts are under oath to vindicate and enforce it. So also in Patricial Anne Patel v. General Cowling Patel (PLD 1972 Kar. 444), it is laid down that omissions in a statute cannot, as a general rule, be supplied by construction. The same principle has been made in Bhadramma and another v. Kotam Raj (A R 1955 Hyd. 140). The learned Advocate. General also referred to Province of West Pakfstan v. Sharafatullah (PLD 1970 SC 514), wherein it has been held :- "It is an established rule that the Courts will adopt that construction which will remove the lacuna and advance the purpose and object of the statute." The interpretation was used not only in favour of the subject but the facts of the case are quite distinguishable. The overall conclusion from the above discussion is that when the language is not only plain but admits of only one meaning there does not arise the question of any interpretation. Such language itself shows the intention of the law-giver. In such circumstances the consequences are immaterial and the plain words of the law must be enforced ; for it is not the functions of the Judges to apply their own opinion or interpretation so as to materially change the ordinary plain meaning of the words mentioned in the statutes. So also if there is no lacuna or omission then it is not the Court's province to supply an omission in an Act, and if any such correction would extend the penal scope of an Act, still less will the Court be inclined to correct it. The object of the Act has to be considered. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law-giver. Where the language of an Act is clear and explicit, we must give effect to it whatever may be the consequences; for in that case the words of the statute speak the intention of the Legislature. Apart from the fact that literal construction must be applied to a statute but every criminal or punitive statute is subject to which has been called a strict construction. A statute which encroaches on the rights of subject must be strictly construed. Under the Martial Law Regulation 47 the right of a person to contest the election has been curbed. Thus not only; the petitioner's right to contest the election but also the right of those voters who would choose to cast their votes in
---
## Page 5
favour of the petitioner have P been infringed, if we do not interpret the law in the strict sense. This is not a procedural statute as contended by the learned Advocate-General, but it is statute affecting the right of franchise, therefore, the provision of this law cannot be applied to those holders of representative office who have not been mentioned in the order itself. We therefore hold that the Chie Secretary was not authorised to refer the case of the petitioner to Disqualifi--cation Tribunal. In Maxwell on Interpretation of Statutes, 11th Edition, page 254 it is observed:----- "But the rule of strict construction requires that the language shall be so construed that no cases shall be held to fall within it which do not fall both within the reasonable meaning of its terms and within the spirit and scope of the enactment. Where an enactment may entail penal consequences, no violence must be done to its language to bring people within it, but rather care must be taken that no one is brought within it who is not within its express language." It is fundamental principle of Interpretation that a Tribunal of special jurisdic--tion must exercise jurisdiction on the conditions specified in the law which constituted such Tribunal. In Nusserwangee Pastonjee v. Mynoodeen Khan (1), it is stated that "the present question turns upon this principle that wherever jurisdiction is given to a Court by an Act of Parliament, or by a Regulation in India (which has the same effect as an Act of Parliament), and such jurisdiction is only given upon certain specified terms contained in the Regulation itself, it is a universal principle that these terms must be complied with, in order to create and raise the jurisdiction, for if they be not complied with the jurisdiction does not arise." In Abdul Sattar and another v. Mst. Hamida Bibi (PLD 1950 Lab. 370), it is held that :---- "Every Tribunal of limited jurisdiction is not only entitled but bound to determine whether the matter in which it is asked to exercise its jurisdiction comes within the limits of its special jurisdiction, and where the jurisdiction of such Tribunal is dependent upon the existence of certain facts or circumstances, it is its obvious duty to see that those facts and circumstances exist to invest it with jurisdiction. And where a tribunal derives its jurisdiction from the statute that creates it, and that statute also defines the conditions under which that Tribunal can function, it goes without saying, that before that Tribunal assumes jurisdiction is a matter, it must be satisfied that the conditions requisite for its acquiring seisin of that matter have in fact arisen." For the above-stated reasons the reference was bad and the respondent No. 2 could not proceed against the petitioner on a bad reference. There is also force in the contention that the principle of natural justice has been violated as sufficient opportunity was not afforded to the petitioner by the Disqualification Tribunal to appear and contest the reference. Paragraph 4(4) of the Order provides that on receiving a reference under sub-paragraph (1) the Tribunal shall scrutinize the necessary records forwarded to it by the Chef Secretary relating to the charge mentioned in the reference and according to sub-para. (a) if it is of the opinion that no charge can be established, return the reference to the Chief Secretary and in other cases issue notice to the respondent requiring him to show cause why he should not be proceeded against under this Order. Therefore the condition precedent for proceeding against the petitioner was to issue show-cause notice. It is the case of the respondent that notice was sent to the petitioner through Tajjamal Hussain Shah but the petitioner refused to receive the notice on 7th December 1978, and stated that the notice be sent to him by post. The case of the petitioner is that an envelop was brought by a police officer for service on the petitioner and the petition informed him that it should be sent to him through registered post. Without entering into this controversy, we have to see whether the requirement of law has been complied with by the Tribunal. We have also summoned the record of the case which has been produced before us by the learned Advocate-General. The order-sheet dated 13-8-1978 shows that it was directed that notice be issued to the respondent requiring him to show cause within one week why he should not be proceeded against under Martial Law Order 31. The case was adjourned to 9-9-1978. The
---
## Page 6
Tribunal examined the Inspector Police Tajjamal Hussain Shah on 9-9-1978 H as P. W. 1 who has deposed about refusal of the petitioner. The note which was allegedly sent has not been exhibited or placed on record, but there is a report of the Process-server Tajamal Hussain Shah dated 9-9- 1978, repeating the same facts as stated by him in his deposition. Now let u see what the Tribunal has done on 9-9-1978. It was the date which was fixed for the presence of the petitioner to show cause within a week. Even if the service had been effected on the petitioner on 7-9-1978 a period of 7 days granted by the Tribunal had not expired when the Tribuna started taking evidence against the petitioner. Additionally it has not been held by the Tribunal either that the respondent has been served or that he/ had refused to take the notice. Para. 4 of the order dated 9-9-1978 reads as under;------ "Mr. Tajjamal Shah's statement has been recorded by the Tribunal. The present address of the respondent is not known because he is reported to have left Quetta to an unknown place. In view of this it is decided to proceed against the respondent in his absence." The Tribunal decided to proceed against the petitioner in his absence on the sole ground that he had left Quetta to an unknown place and the present address of the petitioner is not known. It means the Tribunal passed the order within the meaning of sub-paragraph (2) of paragraph 6 of the Order which provides that Disqualification Tribunal may proceed against the respondent on whom a notice under clause (b) of sub-paragraph (4) o paragraph 4 cannot be served because his address is not ascertainable or who is absconding, in his absence. Therefore proceedings against a person can only be conducted in his absence if his address is not known or if he is absconding. There is no finding that the petitioner had absconded or left to an unknown place and no evidence has been produced to substantial such a charge. As regards the address of the petitioner; it was known to the Disqualification Tribunal. A notice was sent according to the Tribunal through P. W. 1 on his address. P. W. 1 has himself stated that the petitioner had met him when he took the notice. As the Disqualification Tribunal had proceeded against him in accordance with paragraph 6(2) of the Order it was incumbent on the Tribunal to record a positive finding within the terms and sprit of the Order itself. There is not an iota of evidence on this score and therefore we are inclined to hold that the respondent No. 2 failed to give sufficient opportunity to the petitioner before proceeding against him, and the ex parte proceedings taken against the petitioner cannot be sustained, as the same violated not only the principle of natural justice but also passed in derogation to sub-paragraph (2) of paragraph 6 of the Order. The learned Advocate-General has contended that the personal hearing of the petitioner was not necessary in view of the fact that the Tribunal had held the service good. We have already expressed our view about the service and we have not persuaded ourselves to agree with the Advocate-General's contention that personal hearing was not necessary. The learned Advocate-General relied upon Mehrab Khan v. Taj Muhammad (PLD 1961 Quetta 1). It has held there:- "A personal hearing before deciding a matter is not a necessary requirement of the principle of natural justice. All that the necessary is a full and fair opportunity of making a representation or showing cause. What is full and fair opportunity depends upon the facts of each case. In some cases it may be enough if a party has placed his point of view and has shown cause for the consideration of the authority, and no prejudice is shown to have been caused." This authority does not support the contention raised by the learned counsel; because no fair opportunity was afforded to the petitioner. The next case cited by the counsel is Messrs Gladys M. Jacob v. Chief Settlement Commissioner, Lahore and others (PLD 1966Lah.464), wherein it has been held that the fact that the original order was passed without notice did not necessarily mean that the order was to be set aside. In the same authority it has been held that the question to be decided would be whether any prejudice has been caused by the fact that the party was not heard. In fact this authority negatives the contention raised by the learned Advocate-General. The
---
## Page 7
wide proposition convassed by the learned Advocate-General, that even if no notice was given to the petitioner, that was not necessary and the order of Disqualification Tribunal has the sanctity of legal decision, has not impressed us. We do not make any comment on this broad proposition stressed by the Advocate-General but only say "Do not spit in your own well, one day you will have to return to it for a drink. It is now well-- established rule of prudence that no person shall be condemned unheard. Messrs…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.