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Petitioner: Sardar ATTAULLAH KHAN MENGAL VS Respondent: CHIEF ELECTION COMMISSIONER And JUDGMENT
Court Name: Balochistan High Court Judge(s): Iftikhar Muhammad Chaudhry, Javaid Iqbal, Mir Muhammad Nawaz Marri Title:Sardar ATTAULLAH KHAN MENGAL vs CHIEF ELECTION COMMISSIONER And
JUDGMENT
Reported As: 1999 CLC 1460 Result: Order accordingly Judgment JUDGMENT IFTIKHAR MUHAMMAD CHAUDHARY, J.--- Petitioner Sardar Attaullah Khan Mengal, styling himself to be the President/Head of "Baluchistan National Party" (hereinafter referred as B.N.P.) had instituted instant Constitutional Petitions Nos.343 to 348 of 1998, to claim following relief:--. "It is, thus to pray that impugned order of 25-9-1998 made by the respondent, Honourable Chief Election Commissioner may be declared to be made unlawfidly and without jurisdiction and it be adjudged further that he alone has the jurisdiction and legal authority to determine the ancillary questions as to which is the Political Party and who is Head of the party. Competent to make reference under Article 63-A of the Constitution, and thus, case be remanded to the official respondent to proceed further with the references made against the private respondent and give effect to same as required under Article 63-A of the Constitution." Succinctly; the facts noted in petitions are, that on December 6th, 1996, three Political Parties, by the names of Baluchistan National Movement (Mengal Group), Pakistan National Party (Bizenjo Group) and Pakistan National Party (Lehri Group), merged into one political party, which was named as Baluchistan National Party (B.N.P.) and petitioner, with the consent of components of newly established party, was nominated as its Chief Organizer. As per the Interim Constitution of Party, the Chief Organizer was designated, as Head of the party, till adaptation of permanent Constitution. It is stated that respondents alongwith five others, submitted applications, to obtain Tickets of B.N.F. To contest elections of the Baluchistan Provincial Assembly. Their names as Constituencies are as under:--
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(1) Sardar Bahadur Khan Bangulzai, P.B.27, Mastung. (2) Asadullah Baloch, P.B.36 Panjgur. (3) Mir Muhammad Ali Rind, P.B.39 Kech-III., (4) Mir Israrullah Zehri, P.B.29 Kalat-III. (5) Mir Abdul Ghafoor Kalmati, P.B.-40, Gawader. (6) Syed Ehsan Shah, P.B.37, Kech-I. Except Sardar Bahadur Khan Bangulzai, remaining are respondents in Constitutional Petitions 344 to 348 of 1998 respectively). Whereas; the case of private respondents is that Elections are rigged b3 petitioner to declare himself successful, comparing to Mir Moheem Khan Baloch, who contested elections against petitioner for the seat of Head of the -Party, and as latter had polled more votes than former, therefore, it is not the petitioner Sardar Attaullah Khan Mengal, but Mir Moheem Khan Baloch, who had been chosen, as Head of the Party. The opponents i.e. Respondents and others, vide letter, dated 17th July, 1998, informed the Speaker, Baluchistan Assembly, on 16th July, 1998, that they had elected Sardar Bahadur Khan Bangulzai (respondent No.2 in Constitutional Petition No.343 of 1998) as their Parliamentary Leader in the Provincial Assembly. It may he noted that this letter also contains names and signatures of Prince Musa Jan. It seems that on account of differences in the elections, petitioner Sardar Attaullah Khan Mengal, was styling himself, as Head of the Party, whereas respondents were not accepting his this position, as according to them, the Read of the Party, as a result of elections on 14th July, 1998, is Mir Moheem Khan Baloch. Thus, with this background on 6th August, 1998, petitioner, on the letter pad of B.N.P., served a notice upon respondent No.2 in Constitutional Petition 343 of 1998, under Article 63-A(1) of the Constitution of Islamic Republic of Pakistan, alleging therein, breach of party discipline, with further violations committed later on, consisting of:-- (i) Formation of parallel group in the party; (ii) Declaration of new Parliamentary leader without getting approval of the Central Committee; ' (i.e) Persistently and continuously floating negative propaganda, maligning party and its leadership; (iv) Working to change the party Government of the Province, and (v) Occasioning the downfall of the Chief Minister. With above allegations, respondents were called upon, to show cause within three days of the receipt of notice, as to why declaration under clause (2) of Article 63-A be not made against him. The notice was replied on the letter pad of B.N.P., wherein allegations were vehemently repudiated. However, locus standi of petitioner, to issue notice was also challenged in following terms:-- "Firstly, it may be pointed out, that notice in terms of clause (I) of Article 63-A of the Constitution of Islamic Republic of Pakistan, 1973, has been issued, without lawful Authority. Inasmuch as, neither your goodself are President/Head of the Baluchistan National Party, nor has been so authorised by the President, to issue such notice. Factually in the election held on 15th July, 1998, Mr. Moheem Khan Baloch. Has been elected as President of the Party, whereas you lost of the said election, and to order to fulfil your designs formed a parallel body and are styling yourself as President, actually and in accordance with the by-laws and constitution of the party, you have no authority to issue a notice under Article 63-A of clause (1) of the Constitution." On receipt of reply, petitioner styling himself to be the President/Head of B.N.P., submitted separate references against respondent and others, for their disqualification, in terms of clause (1) read with clause (e) of Article 63-A of the Constitution of Islamic Republic of Pakistan, 1973, before the worthy Chief Election Commissioner-of Pakistan, which were registered as References Nos.8 to 13 of 1998.
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On receipt of notice, respondents filed their respective replies raising preliminary objection; challenging therein the locus standi of petitioner to file the references, because according to them, now the President of B.N.P. Is Mir Moheem Khan Baloch and not Sardar Attaullah Khan Mengal. Simultaneously, vet another important objection was raised to the effect; that respondents have not defected within the meaning of Article 63-A(a) of the Constitution of Islamic Republic of Pakistan, 1973. The worthy Chief Election Commissioner, vide impugned order, dated 25th September, 1998, rejected all references, filed by petitioner Sardar Attaullah Khan Megnal and Mir Moheem Khan Baloch, claiming themselves to be the President/Head of B.N.P. For convenience, concluding para. Of the order, is reproduced hereinbelow:-- "Having considered the facts of the case, I am clear in my mind that before approaching this forum, the title of the Head of a party must be established. Either there should be no dispute or in case of dispute is should have been settled by Court of general jurisdiction. It has to be established which is the real party? And who is the Head of that Party? The existence of jurisdiction of Chief Election Commissioner depends upon the existence of a single Political Party and its Head. Where the cr.~ title is disputed, any reference by the disputed leader does not confer jurisdiction on a special Tribunal. In the instant case, Sardar Attaullah Khan Mengal has filed the affidavits of 167 members of the party in support of his claim. Whereas Mir Moheem Khan Baloch has filed affidavits of 192 members of the party. It is, therefore, clear that it needs a detailed enquiry and the references cannot be decided unless the title is established. Preliminary facts about the status of a Head of a Party heave to be resolved in case of dispute, unless law 'empowers the Tribunal of special jurisdiction to determine such status. It would be beyond its jurisdiction to determine the status of a party or its head. In the circumstances of the case, the references against Sardar Bahadur Khan Bangulzai, Mir Israrullah Zehri, Mr. Asadullah Baloch, Syed Ehsan Shah, Mir Muhammad Ali Rind, Mr. Abdul Ghafoor Kalmati, Sardar Muhammad Akhtar Mengal, Mr. Muhammad Aslam Gichki, Dr. Tara Chand and Prince Musa Jan, Members, Provincial Assembly, Baluchistan are rejected." Thus, to challenge the above order, present Constitutional petitions, have been instituted by Sardar Attaullah Khan Mengal, considering himself to be the President/Head of B.N.P. However, Mir Moheem Khan Baloch, who also adjudged himself to be the President/Head of B.N.P., had not filed any proceedings, before this Court. Messrs Basharatullah, Muhammad Aslam Chishti and S.A.M. Quadri, learned Advocate, appeared on behalf of petitioner. Whereas private respondents were represented by Messrs Fakharuddin G. Ibrahim, Ehsanul Haq, Muhammad Riaz Ahmad and Tariq Mehmood, learned counsel. Malik Sikandar Khan, Advocate-General and Syed Ayaz Zahoor, learned Deputy Attorney-General, holding brief for Attorney-General of Pakistan, gave their appearance on Court notice. Respondent-Chief Election Commissioner, did not opt to defend the petition. At the time of admission of petition for regular hearing, following question was framed, for consideration:-------- "Whether under Article 63-A of the Constitution of Islamic Republic of Pakistan, 1973, the Chief Election Commissioner, while deciding reference against the Members of Provincial Assembly received from Speaker has jurisdiction to decide inbuilt organizational, structural disputes which have cropped up in the folds of a Political Party including ascertainment that ' as to who is Head of the Party' and counter allegations that 'elections of Political Party have not been held in accordance with the Constitution of Party?" At this stage, it is important to note that in written statement on behalf of private respondents, maintainability of petitions was also challenged in view of the Bar contained under Article 63-A(6) of the Constitution of Islamic Republic of Pakistan, 1973.
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On behalf of petitioner, it has been contended by Mr. Aslam Chishti, learned counsel that Chief Election Commissioner, had the jurisdiction to ascertain, that, who is the Head of a Political party, while disposing of the references for disqualification, on ground of defection under Article 63-A of the Constitution, being amongst others, a jurisdictional fact, for the purpose of declaring a Parliamentarian/M.P.A., disqualified within the meaning of clause (2) of Article 63-A of the Constitution. Learned counsel Mr. Fakharuddin G. Ibrahim, however, argued that Chief Election Commissioner, has not been empowered, either by the Constitution itself or by any other Law, to conduct a detailed enquiry, for deciding; as to who is the Head of a Political Party, competent to send references for disqualification of a Parliamentarian/M. P.A. In this context, he explained that Chief Election Commissioner, only exercises an Administrative Authority, therefore, any findings recorded by him, shall have no binding effect, unless, the fact at issue, is not determined by 0the Civil Court, in its ordinary jurisdiction. Thus, according to him, as in the instant case, both the sides claim themselves to be the Members of same Political Party i.e. B.N.P., having the same Flag and the Constitution, therefore, the controversy concerning that, actually who is the Head of the Party, can alone be set at naught, after recording evidence by a Court of Civil jurisdiction. In this behalf, he pointed out that one of the Councillor of B.N.P. Namely, Haji Muhammad Akbar son of Haji Muhammad Hassan, had already filed a suit before Qazi, Panjgur against petitioner, claiming decree to the effect, that respondent Mir Moheem Khan Baloch be declared as elected President of B.N.P. And petitioner Sardar Attaullah Khan Mengal, be permanently restrained, from claiming himself as the President of B.N.P. Learned counsel further argued that as regards the status of Mir Moheern Khan Baloch, as a President of B.N.P., the same has not been challenged so far anywhere, therefore, in such situation, the Chief Election Commissioner, has acted with lawful authority, by directing both the Groups, to seek remedy before the Civil Court, and as this order has achieved finality, in view of Article 63-A(6) of the Constitution of Islamic Republic of Pakistan, therefore, it is not open to challenge. Malik Sikandar Khan, learned Advocate-General, supported the learned counsel for respondents, on the point of directions to both the Groups, to seek relief from Civil Court, but he did not agree with him on the issue that this Court has no jurisdiction to examine the impugned order in view of clause (6) of Article 63-A of the Constitution. Syed Ayaz Zahoor, learned Deputy Attorney-General, contended that Attorney-General of Pakistan, had already made a statement before the Chief Election Commissioner to the effect; that controversy involved in the matter, requires adjudication by a Civil Court. According to him, this stand was so taken rightly, because the Chief Election Commissioner, has got limited jurisdiction, to dispose of a disqualification reference, when there is no dispute, regarding the President/Head of the Party. We have heard the learned counsel for parties at length and also carefully examined Article 63-A of the Constitution of Islamic Republic of Pakistan. Since the controversy requiring determination by this Court, revolves around the object, for which, this Article was added in the Constitution, by the Legislatures, as well as interpretation of clauses (1) and (6) of Article 63-A of the Constitution, therefore, its these parts, for sake of convenience, are being reproduced hereinbelow:-- "63-A. Disqualification on ground of defection, etc.---(1) If a member of a Parliamentary Party defects, he may by means of a notice in writing addressed to him by the Head of the Political Party or such other person as may be authorised in this behalf by the Head of the Political Party, be called upon to show cause, within not mote than seven days of such a notice, as to why a declaration under clause (2) should not be made against him. If a notice is issued under this clause, the Presiding Officer of the concerned House shall be informed accordingly.
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Explanation.---A member of a House shall be deemed to defect from a political party if he, having been elected as such, as a candidate or nominee of a political party, or under a symbol of political party or having been elected otherwise than as a candidate or nominee of a political party, and having become a member of a political party after such election by means of a declaration in writing-- (a) commits a breach of party discipline which means a violation of the party constitution, code of conduct and declared policies, or (b) votes contrary to any direction issued by the Parliamentary Party to which he belongs, or (c) abstains from voting in the House against party policy in relation to any Bill. (2)----------------------------------------- (3) ----------------------------------------- (4) ----------------------------------------- (5) ----------------------------------------- (a) ----------------------------------------- (b) ----------------------------------------- (6) Notwithstanding anything contained in the Constitution, no Court including the Supreme Court and a High Court shall entertain any legal proceedings, exercise any jurisdiction, or make any order in relation to the action under this Article." Mr. Aslam Chishti, learned counsel for petitioner, argued, that Chief Election Commissioner, has been empowered to disqualify a Parliamentarian, on receipt of a Reference from the Head of a Political Party through the Speaker, and if there is a dispute about his status, then it can be decided by him, being a jurisdictional fact, in exercise of ancillary powers, which run in continuation of jurisdiction, to determine finally the question; whether a Parliamentarian/ M.P.A. Has defected or not? Learned counsel further stated that Article 63-A of the Constitution, was legislated, With an object, to prevent instability in relation to the formation of functioning of Government, and if all ancillary questions, including the one determining that, who is the Head of a Political Party, is left for determination by a Civil Court; then the purpose could not be achieved for which, Article 63-A was promulgated, because any of the Parliamentarian/ M.P.A., who is guilty of defection, can raise alike plea, to avoid the proceedings of Disqualification. In support of his contention, he referred to dictionary meaning of "ancillary jurisdiction" from Black's Law Dictionary 5th Edition, 1979, Commentary from N.S. Bindra's, The Interpretation of Statutes, 7th Edition p.229, on the subject "Courts jurisdiction to determine jurisdictional fact", AIR 1963 SC 1547, AIR 1968 SC 169, PLD 1991 Kar. 1, 1998 SCM R 1363. Learned counsel further contended that as the Chief Election Commissioner had refused to exercise jurisdiction under Article 63-A, therefore such order would be termed, "without jurisdiction", and thus, it is amenable to the jurisdiction of this Court under Article 199 of the Constitution. In this behalf, he placed reliance on PLD 1989 SC 26, PLD 1994 SC 713; 1994 SCM R 1299 and PLD 1998 SC 1263. He also cited the judgment of Honourable Supreme Court reported in 1999 SCM R 215 and argued that in pursuance of this judgment, the case was remanded to Chief Election Commissioner, for fresh decision, in view of the judgment, delivered in the case of Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263. He further informed us, that after remand order by Honourable Supreme Court, the Chief Election Commissioner, had recorded evidence, produced by parties, and in the light of same, arguments were heard and now the case is fixed for announcement of judgment. For our perusal, he placed on record, the copies of order- sheets and the statements, recorded before Chief Election Commissioner. To counter the view-point of learned counsel for petitioner, Mr. Fakharuddin G. Ibrahim, learned Advocate, contended that Article 213(3) of the Constitution, provides, that the Commissioner shall have such powers and functions, as are conferred on him by the Constitution and law. He argued that no powers have been bestowed by the Constitution or Law upon C.E.C. For conducting a
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detailed enquiry, to ascertain; that amongst two claimants, who is the Head of the Political Party. According to him, such exercise requires full-fledged trial, during course whereof, pleadings are to be received, issues are to be framed, evidence is to, be recorded, etc. But in terms of Article 63-A of the Constitution, the Code of Civil Procedure and Qanoon-e-Shahadat Order, 1984, have not been made applicable. Moreover, as per the mandate of clause (1) of Article 63-A, a Disqualification Reference is required to be disposed of within seven days. He stated that how this lengthy exercise can be completed within this much short period, particularly with reference to the facts of instant case, where about 400 affidavits were filed by both the parties, to counter the claim of each other, before him. Therefore, the Chief Election Commissioner, had right observed, that parties should seek relief, relating to determination of status of Head of a Party, before the Civil Court. He further, argued, that in such like situation, the Honourable Supreme Court in the judgment, reported in 1983 SCM R 1064, had observed, that where there is a disputed question of title or entitlement, the Tribunal of a limited jurisdiction, instead of dilating upon the matter itself, should advise the parties to get adjudication of their rights from the Civil Courts. Learned counsel further stated that even if for sake of arguments, it is presumed that Chief Election Commissioner had determined that petitioner as the Head of the Political Party, then too, his such findings would be of a tentative nature and would have no binding effect, until the person, claiming entitlement, had not obtained a decree from the Civil Court, as it has been held in PLD 1965 SC 698. It is well-known fact that Article 63-A of the Constitution, was enacted in pursuance of unanimous demand of the Political Representatives of different parties, who had experienced that in the past, Government had been destabilized, due to the menace of defection by the Parliamentarians both at the Federal and Provincial levels. Inasmuch as the Honourable Supreme Court, in its judgment, made observations for legislating such fool-proof system, so the Parliamentarians/M.P.As. May not change their loyalties, for their personal benefits. As we have seen that prior to the enactment of Article 63-A, there was a provision in the Political Parties Act, namely section 8-B, which was amended from time to time, to provide apparatus for render the Parliamentarians, disqualified on the ground of defection, but on account of inherent defect in this provision, the object could not be achieved. At this juncture reference to few judgments delivered by Honourable Supreme Court, in which, it was impressed upon the Legislatures to enact such penal legislation, which may promptly extinguish the evil of defection for the purpose of political Sovereignty and firm establishment of Government, can be made. PLD 1992 SC 646 on the subject under reference, the Honourable Supreme Court observed as under:-- "Defection of elected members has many vices. In the first place, if the member has been elected on the basis of a manifesto, or on account of his affiliation with a political party, or on account of his particular stand on a question of public importance, his defection amounts to a clear breach of confidence reposed in him by the electorate. If his conscience dictates to him so, or he considers it expedient, the only course open to him is to resign to shed of his representative character which he no longer represents and to fight a re-election. This will rake him honourable, politics clean, and emergence of principled leadership possible. The second, and more important, the political sovereign is rendered helpless by such betrayal of its own representative. In the normal course, the elector has to wait for years, till new election take place, to repudiate such a person. In the meantime, the defector flourishes and continues to enjoy all the wordly gains. The third is that it destroys the normative moorings of the Constitution of an Islamic State." PLD 1995 SC 66, the Honourable Supreme Court, on the subject of defection, referred to the Verses of Holy Qur'an and Sunnah. Relevant portion from the judgment is reproduced hereinbelow:---- "Defection in its concept and political parlance refers to an act of political opportunism to obtain immoral gains and worldly advantages through exploitative approach of one's representative and
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political status. Such act cannot be justified to any known principle of Islamic policy. Islam ordains the believers to stand by their promises and fulfil their commitments. In Verse 91 of (Surah Namal) God has ordained--- The translation of the Verse is as follows:------ 91. Fulfil the covenant of Allah when ye have convenanted, and break, not your oaths after the asseveration of them, and after ye, have made Allah surety over you. LO: Allah knoweth what ye do' Similarly, in Verse No.77 (Surah Al-Imran) God has obrdained as follows-- 77. Lo: those who purchase a small gain at the cost of Allah's covenant and their oaths, they have no portion in the Hereafter. Allah will neither speak to them nor look upon them on the Day of Resurrection, nor will He make them grow. Theirs will be a painful doom' -----and keep the covenant. Lo: of the covenant it will be asked. 27. O! Ye who believe betray not Allah and His Messenger, nor knowingly betray your trusts. Similarly in "Mishkhat-ul-Masabih, various saying of Holy Prophet (peace be upon him) have been quoted as under:-- Abu Hurariah reported that the Messenger of Allah said: The signs of a hypocrite are three. When he talks, he speaks falsehood; and when he promises, he breaks, and when he is entrusted, commits treachery, Agreed upon it (Add Muslim added: Even though he keeps fasts, prays and thinks that he is a Muslim). 151. Abdullah-b-Aamr reported that the Messenger of Allah said, Whoso has got four things in him is a true hypocrite, and whoso has got a habit therefrom in him has got in him a habit of hypocrisy till he gives it up; when he is trusted; he is unfaithful; and when he speaks, he speaks falsehood; and when he makes promise, he proves treacherous, and when he is quarrel, he commits sin --- Agreed 152. Ibn Omar reported that the Messenger of Allah said: The parable of a hypocrite is a goat roaming between two goats going once unto this and once unto that. The narration of above Islamic Principles make it clear that Islam requires that believers to carry out their promises and…
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