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Petitioner: Sher Alam Khan VS Respondent: Abdul Munim and others
Court Name: Supreme Court of Pakistan Judge(s): Mushir Alam, Sh. Azmat Saeed, Mazhar Alam Khan Miankhel Title: Sher Alam Khan vs Abdul Munim and others Case No.: Civil Petition No, 3131 of 2017 Date of Judgment:2018-02-23 Reported As: PLD 2018 Supreme Court 449, 2018 P.S.C. 763 Result: Appeal allowed
JUDGMENT
JUDGMENT SH. AZMAT SAEED, J. This Civil Petition for Leave to Appeal is directed against the judgment dated 15.08.2017 of the learned Peshawar High Court, whereby Constitutional Petition i,e, Writ Petition bearing No, 1687-P of 2017, filed by Respondent No, 1, was allowed. 2. The brief facts necessary for adjudication of the /is at hand are that Respondent No, 1 contested the election for the Provincial Assembly of the Province of Khyber Pakhtunkhaw (KPK) from the Constituency PK-88, Shangla-11 in the General Elections held on 11th May, 2013. The said Respondent No, 1 was declared elected and notified as a Returned Candidate by the Election Commission of Pakistan (ECP). It appears that eventually the Respondent No, 1 was appointed as Special Assistant to the Chief Minister, Government of KPK. 3. On 28.12.2016, the present Petitioner filed an application before the ECP purportedly undei Article 6-of the Election Commission Order, 2002 read with Articles 63 and 218(3) of the Constitution of the Islamic Republic of Pakistan, 1973 and Section 99 of the Representation of the People Act, .1976 (ROPA of 1976) alleging therein that Respondent No, 1 was employed as a Primary School Teacher with the Government of KPK and was holding the said post and drawing salary at the relevant point of time i,e, when he filed his Nomination Papers. He allegedly resigned from such post with effect from 31.03.2013. Thus, he had been employed by the Government of KPK and two years had not passed since his resignation when he contested the elections, therefore, the said Respondent was disqualified in view of Article 63(1)(k) and further not qualified under Article 62(1)(f) having made a false declaration in his Nomination Papers. 4. The Election Commission of Pakistan after hearing the parties and examining the relevant record concluded that in fact Respondent No, 1 at the time of submitting his Nomination Papers on
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29.03.2013 was indeed employed as a Primary School Teacher and was drawing salary as such. As per record his date of appointment in Government Service was 14.03.1987 and the date of resignation was 31.03.2013, hence, Respondent No, 1 was disqualified from contesting the elections. Consequently, the ECP vide Order dated 19.04.2017 held that the Petitioner had violated Article 63(1) (k) of the Constitution as well as Section 99(1A)(k)(I) of the ROPA of 1976. Therefore, the election of Respondent No, 1 was declared null and void and the Notification withdrawn. Aggrieved, the Respondent No, 1 challenged the aforesaid Order of the ECP by filing Writ Petition No, 1687-P of 2017 before the learned Peshawar High Court, which has been allowed vide the impugned judgment dated 15.08.2017. 5. It is contended by the learned counsel for the Petitioner that it is a matter of official record with a presumption of truth attached therewith that Respondent No, 1 was employed as a Primary School Teacher for that too more than two decades when he submitted his Nomination Papers for the elections to the Provincial Assembly in May, 2013, hence, was obviously disqualified. The learned counsel further contended that Respondent No, 1 was admittedly appointed as the Special Assistant to the Chief Minister, KPK and was thus entitled to 'draw salary. It is reiterated that in the Pay Slip of Respondent No, 1 as an MPA/Special Assistant to the Chief Minister, Government of KPK, the same Personal Number is mentioned as in the Pay Slip as a Primary School Teacher as well as the fact that he was in the Government Service for more than two decades. The Respondent No, 1 having received the salary for several years on the aforesaid Pay Slip cannot feign ignorance of its contents to deny his employment as a Primary School Teacher. Thus, leaving no manner of doubt the Respondent No, 1 was employed as a Primary School Teacher when he submitted his Nomination Papers. It is added that the findings arrived at by the learned High Court by way of the impugned judgment dated 15.08.2017 that some other person, namely, Bakht Jehan son of Jehan Faraz, had misused the educational testimonials of Respondent No, 1 to obtain the said employment as a Primary School Teacher and the thumb impression on the Service Book reflecting the name of Respondent No, 1' .matches with the thumb impression of Bakht Jehan are based on an inquiry conducted by the Anti-Corruption Establishment of the Provincial Government wherein the Respondent No, 1 was a Special Assistant to the Chief Minister. Such inquiry and its findings are thus not worthy of any credence nor .could form the basis of any adjudication by the learned High Court in its Constitutional jurisdiction. 6. The learned counsel further contended that the findings of the learned High Court by way of the impugned judgment dated 15.08.2017 qua lack of jurisdiction of the ECP to de-notify Respondent No, 1 is misconceived and against settled law. !t is the case of the Petitioner that such powers are vested with the ECP under Article 218(3) of the Constitution and as has been held by this Court in the judgments reported as Mian Najeeb-ud-Din Owasi and another v. Amir Yar Waran and others (PLD 2013 SC 482) and Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681). By relying upon the aforesaid judgments, it was further contended that even otherwise, once it has been established on record that Respondent No, 1 was not qualified to be a Member of the Provincial Assembly and has sneaked into the House through deliberate concealment of material facts and by making a false declaration, Respondent No, 1 was disqualified under Articles 62(1)(f) and 63(1)(k) of the Constitution, this Court as well as the learned High Court are vested with the jurisdiction to pass appropriate orders under Articles 184(3), 187 and 199 of the Constitution, respectively to ensure that a disqualified person does not enter the Parliament or the Provincial Assembly. The learned counsel also contended that the learned High Court, even otherwise, has blatantly erred in law by assuming that the provisions of Articles 62 and 63 of the Constitution do not apply to the Members of the Provincial Assembly. The said judgment, in this behalf, has totally ignored the provisions of Article 113 of the Constitution.
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7. Sahibzada Naeem Bokhari, learned Sr. ASC for the private Respondent i,e, Respondent No, 1 controverted the contentions raised on behalf of the Petitioner by contending that the ECP had no jurisdiction to pass an order de-notifying the Respondent No, 1 and the same has been rightly set aside kJ, the learned High Court by way of the impugned judgment. It is contended that with regard to an alleged pre-election disqualification, an objection could have been taken before the Returning Officer when the Nomination Papers were filed. Thereafter, an Election Petition could have been filed before the Election Tribunal constituted in terms of Article 225 of the Constitution. Other than the aforesaid remedies, the Petitioner could only have filed a writ of quo warranto before the learned High Court or this Court. In the instant case, none of the aforesaid three courses of action was undertaken by the Petitioner. It is added that jurisdiction of the ECP with regard to the allegations raised by the Petitioner would cease upon the constitution of the Election Tribunal or 60 days after the elections were concluded and Respondent No, 1 notified as a Returned Candidate. In the instant case, an application was filed before the ECP many years after the elections. It is added by the learned counsel that the judgments of this Court in which the ECP was directed to verify the eligibility of the Members of the Parliament are of no assistance to the Petitioner as in such cases the jurisdiction was exercised by this Court while the ECP only complied with the directions issued by the Court and was not exercising any independent power or authority. 8. Alternatively, the learned counsel contended that the conclusions have been drawn by the ECP without any evidentiary hearing and by ignoring the record. Thus, on one hand, the said Respondent No, 1 was denied his Fundamental Rights to a fair trial guaranteed by Article 10A read with Article 4 of the Constitution while on the other hand, the ECP has also ignored the relevant and material evidence on record. It is his case that when the allegations levelled against Respondent No, 1 by way of a Press Conference held by the Petitioner alleging that Respondent No, 1 was employed or had been employed as a Primary School Teacher, the Respondent No, 1 on the very next day made an application to the Anti-Corruption Department, Government of KPK complaining that an offence of impersonation has been committed and somebody else by misusing the name and educational testimonials of Respondent No, 1 had obtained employment as a Primary School Teacher. An inquiry was conducted which resulted in some startling revelation. It came to light that the thumb impression on the Service Book of the Primary School Teacher did not belong to Respondent No, 1 but were of one Bakht Jehan as stood disclosed from the record of the National Database & Registration Authority (NADRA). It also became apparent that the salary disbursed to the Primary School Teacher was recorded on a Register which did not show that any such salary had been personally received by Respondent No, 1. Subsequently, the salary was disbursed through the National Bank of Pakistan (NBP). The record of the concerned Branch of NBP and the cheques utilized for drawing the money were sent to the Forensic Science Laboratory (F.S.L.) alongwith admitted signatures of Respondent No, 1 and as per the Report of the Handwriting Expert of the F.S.L. the signatures in the Bank record and on the cheques were not that of Respondent No, 1. Furthermore, as per the record, the said Primary School Teacher was 5 feet and 6 inches tall while the Respondent No, 1 is over 6 feet. The aforesaid facts it was contended are self-evident which were not taken into consideration by the ECP while passing the order, which has been rightly set aside by way of the impugned judgment. The learned counsel added that more importantly, in presence of such-facts and record it cannot in any event be conclusively held that in fact it was the Respondent No, 1 who was employed as a Primary School Teacher and his name and documents had not been misused by some other person, perhaps, the aforesaid Bakht Jehan. A conclusive finding,. in this behalf, he added was not possible or permissible without recording of evidence. With regard to the Pay Slip regarding the salary drawn as an MPA and a Special Assistant to the Chief Minister, it was contended by the learned counsel that such Pay Slip was never given or supplied to Respondent No, 1 and such salary was directly deposited in his account with the Bank of
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Khyber. Therefore, the Respondent No, 1 had no knowledge that it was mentioned on his Pay Slip that he was an employee of the Government of KPK for the last two decades thus no adverse influence should be drawn against Respondent No, 1. 9. The learned Additional Advocate General, KPK contended that as per the relevant record, more particularly, the evidence corrected in the inquiry, it cannot be conclusively held that it was the Respondent No, 1 who was employed as a Primary School Teacher. The inquiry concluded, more particularly, on account of the material referred to above that in fact an offence of impersonation has been committed at the expense of the Respondent No, 1 who cannot be penalized therefor being a victim. 10. Heard. Record perused. 11. By way of the impugned judgment dated 15.08.2017, a learned Division Bench of the Peshawar High Court, after referring to and reproducing in extenso various provisions of the Constitution and the ROPA of 1976, set aside the Order of the ECP, de-notifying Respondent No, 1 and validated his elections as a Member of the Provincial Assembly of KPK. Ode of the pillars of the impugned judgment is that Articles 62 and 63 of the Constitution are applicable only to the Members of the Majlis-e-Shoora i,e, the Senate and the National Assembly and inapplicable to the Members of the Provincial Assemblies. Such finding of law has been recorded in paragraph 16 of the impugned judgment. It is clear and obvious that the learned High Court has ventured to decide the fis before it by totally ignoring the provisions of Article 113 of the Constitution, which reads as follows:--- "113. The qualifications and disqualifications for membership of the National Assembly set out in Articles 62 and 63 shall also apply for membership of a Provincial Assembly as if reference therein to "National Assembly" were a reference to "Provincial Assembly"." 12. The aforesaid aspect of the matter obviously was not seriously contested either by the learned counsel for Respondent No, 1 or by the learned Additional Advocate General, KPK. The impugned judgment appears to he anchored upon a rather shaky legal foundation. 13. The primary bone of contention between the parties was with regard to the jurisdiction of the ECP to pass an order of de-notifying a Returned Candidate several years after the elections. By referring to the various provisions of ROPA of 1976 especially Section 103AA(2) and the Constitution, more particularly, Article 225 ,of, the Constitution, it has been held by way of the impugned judgment that a pre-election disqualification or lack of qualification is to be adjudicated upon by various fora at various points of time. This aspect of the matter has very succinctly set forth by this Court in the judgment reported as Ch. Muhammad Ashraf Warraich and another v. Muhammad Nasir Cheerna and others (2016 SCM R 998) in the following terms:--- "15. It may be observed that candidature of a candidate could be challenged under the RoPA, 1976 at three different stages, right from the day of nomination till 45 days after the declaration of the, official result. First stage is pre-election challenge at the time of scrutiny of nomination papers. Challenge to the candidature could be thrown by any of the contesting 'candidate, their agents, proposer, seconder, electors by filing objections against any of the candidate before the Returning Officer, on the grounds enumerated in clauses (a) to (d) to sub-section (3) and sub-section (5A) of Section 14 of the RoPA. Any decision rejecting or accepting nomination paper, passed by the Returning Officer, is subject to right of appeal before the Tribunal comprised of not less than two and not more than three High Court Judges. Appeal is required to be decided summarily within prescribed time, if time lapses, appeal by virtue of deeming provision sub-section (6) thereof is deemed to be rejected. Second stage is post-election challenge to the election of returned candidate before the Election Commission of Pakistan, under Section 103AA of the RoPA, 1976. Election Commission, after such summary enquiry as to grave illegality or violation of the provisions of RoPA, 1976 or the rules framed there under, may declare the poll in any constituency as void and may call upon constituency to elect member, but such jurisdiction to declare the poll
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void, could be exercised before the expiry of sixty (60) days after the publication of result of the election (per Section 42 of RoPA), where after, the Election Commission, becomes functus officio, and the returned candidate is deemed to be elected, but subject to the decision of Election Tribunal, constituted Section 57 of RoPA. Provided such challenge is thrown, by any of the contesting candidate. Third opportunity to challenge the election of the returned candidate becomes available postelection, to be made by any candidate of the subject constituency, before the Election Tribunal constituted under Section 57 ibid, within forty-five (45) days from the date of publication in the official Gazette of the name of the returned candidate, of the subject constituency in the Manner provided under the RoPA, 1976 itself." (emphasis supplied). 14. A similar view was also expressed by this Court in the judgments reported as Bartha Ram v. Lala Mehar Lal Bheel and another (1995 SCM R 684) and Syed Fakhar Imam v. Chief Election Commissions of Pakistan and others (PLD 2008 SC 7'30). However, it is the contention of the learned counsel for the Petitioner that in the aforementioned judgments of this Court has not been factored in the provisions of Article 218(3) of the Constitution. It is his case that the said Article 218(3) of the Constitution, needs to be interpreted dynamically so as to recogrinze and acknowledge the conferment of jurisdiction upon the ECP to fulfill its Constitutional mandate of ensuring free and fair elections irrespective of any limitation of a time frame imposed by any sub- constitutional legislation, including ROPA of 1976, more particularly, Section 103-AA(2) thereof. It is also added that Article 225 of the Constitution must be interpreted and read in harmony with Article 218(3) of the Constitution. 15.Reference, in this behalf, was madeo the observations made by this Court in the case reported as Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828) which is reproduced hereunder for ease\ of reference:-- "14. ... a demanding duty stood cast on the Election Commission and on all others performing functions under various election laws to ensure not only that the elections were fair and honest; that no corrupt practices were practised in the elections but also that the individuals who had been declared disqualified to enter the Legislative institutions, were not allowed to break into the said houses and further that to discharge the said onerous obligations, the said functionaries had not been left at the mercy of the objectors or even of the rival candidates and that they could act in the matter even suo motu. Needless to add that the Election Tribunals envisaged by Article 225 of the Constitution and performing functions under the said Act of 1976 and even this Court while acting as the Appellate Forum under Section 67 of the Act of 1976, also stand charged with the same duties." 16. The learned counsel also referred to the judgment of this Court reported as Mian Najeeb-ud-Din Owaisi and another (supra) wherein it was observed as follows:-- "4. ... if a Parliamentarian before or after the election is disqualified on this account, he would have no right to hold the Office as a Parliamentarian/Member of the National/Provincial Assembly or the Senate and in such situation, it is obligatory upon the ECP to proceed against such person by de- notify him. ..." 17. The question of availability of the jurisdiction with the ECP to decide the complaint and de-notify a Returned Candidate after the lapse of a period of sixty days provided in Section 103AA(2) of ROPA of 1976, is not without difficulty. The contentions of the learned counsel for the Petitioner cannot be simply brushed aside as frivolous. However, this aspect of the matter as canvassed by the learned counsel for the Petitioner needs not to be adjudicated upon in the instant case. 18. However, there can be no escape from the fact that if a person suffering from a pre-election disqualification or lack of qualification slips through' the cracks and no objection is raised before the Returning Officer, no complaint is made to the ECP in terms of Section 103AA of ROPA of 1976 within the time specified therefor and no Election Petition filed before the learned Election Tribunal
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then the inherent disqualification of such oerson is obviously not cured nor can it be said that by mere absence of a challenge he acquires the qualification by lapse of time. In such circumstances, where unqualified or disqualified person manages to escape through the net and trespass into the Majlis-e-Shoora or the Provincial Assembly, the Constitutional jurisdiction of the learned High Court under Article 199 of the Constitution and of this Court under Article 184(3) of the Constitution can always be invoked. Such powers were exercised by a five Member Bench of this Court in the case reported as lmran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly, Prime Minister's House, Islamabad and 9 others (PLD 2017 SC 265) and in this behalf, it was observed as follows:--- "86. However, it is now settled law and has been so settled through a series of judgments of this Court including Farzand Ali v. Province of West Pakistan (PLD 1970 SC 98) and Muhammad Azhar Siddiqui v. Federation of Pakistan and others (PLD 2012 SC 774) that a Constitution Petition in the nature of a writ of quo warranto is maintainable against the Member of the Majlis-e-Shoora, if he is disqualified or did not possess or has lost his qualification, in this behalf. Such Constitutional Petitions can always be filed before the learned High Court under Article 199 of the Constitution and before this Court under Article 184(3) of the Constitution, as has been filed in the instant case." 19.A similar view was earlier expressed by this Court in the judgment reported as Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner, Islamabad and others (PLD 2010 SC 817). The jurisdiction in the nature of quo warranto was also exercised by this Court in the case reported as Muhammad Hanif Abbasi v. Jahangir Khan Tareen and others (PLD 2018 SC 114) and a sitting Member of the National Assembly was declared disqualified in terms of Article 62(1)(f) of the Constitution read with Section 99(1)(f) of ROPA, 1976 and de-notified. Furthermore, in the case reported as Muhammad Hanif Abbasi v. lmran Khan Niazi and others (PLD 2018 SC 189) although this Court assumed similar jurisdiction under Article 184(3) of the Constitution against a Member of the National Assembly, however, these proceedings eventually failed. 20.We are aware that in the instant case, the /is has reached this Court not by invoking Article 184(3) of the Constitution (though the learned High Court was exercising its Constitutional jurisdiction under Article 199). Be that as it may, this Court is not precluded from converting one type of proceedings into another type, including the existing proceedings under Article 185(3) of the Constitution and exercising our jurisdiction under Article 184(3) of the Constitution so as to adjudicate upon disqualification or lack of qualification of Respondent No, 1. This Court in the judgment reported as Muhammad Akram v. DCO, Rahim Yar Khan and others (2017 SCM R 56) held as follows: "7. The Courts are sanctuaries of justice, and in exercise of authority to do ex debito justitiae, that is to say remedy a wrong and to suppress a mischief to which a litigant is entitled. No fetters or bar could be placed on the High Court and or this Court to convert and treat one type of proceeding into another type and proceed to decide the matter either itself provided it has jurisdiction over the lis before it in exercise of another jurisdiction vested in the very Court or may remit the /is to the competent authority/forum or Court for decision on merits. Courts have been treating and or converting appeal into revisions and vice versa and Constitution Petitions into appeal or revision and vice versa." The said view was further fortified by the judgment of this Court rendered in the case of Muhammad Jibran Nasir and others v. The State and others (Criminal Appeals No, 1K to 3-K of 2018 converted into Suo Motu Case No, 01 of 2018), wherein it was held that: "4. ... Apart from that the jurisdiction of this Court under Article 184(3) of the Constitution is an independent original jurisdiction which is not affected by pendency of any matter on the same subject-matter before any other Court or forum or even by a prior decision of the same issue by any other Court or forum below and a reference in this respect may be made to the cases of
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Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132), Miss Benazir Bhutto v. Federation of Pakistan and others (PLD 1988 SC 416), Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473), Suo motu Case No, 10 of 2009 (2010 SCM R 885), Shahid Orakzai v. Pakistan through Secretary Law, Ministry of Law, Islamabad (PLD 2011 SC 365), Khawaja Muhammad Asif v. Federation of Pakistan and others (PLD 2014 SC 206) and Jamshoro Joint Venture Ltd. and…
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