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Petitioner: Hafiz MUHAMMAD AFZAL VS Respondent: ABDUR REHMAN
Court Name: Lahore High Court Judge(s): Tasaddaq Hussain Jillani Title: Hafiz MUHAMMAD AFZAL vs ABDUR REHMAN Case No.: Regular First Appeals Nos.32 and 33 of 1991/BWP Date of Judgment:1995-05-21 Reported As: 1996 MLD 291 Result: Appeal dismissed
Judgment ORDER ' This order shall dispose of R.FA. No,32 of 1991 and R.FA. No,33 of 1991 as common questions of law are involved. Appellant in both the appeals is the same whereas the respondent in R.FA. No,32 of 1991 is Abdur Rehman and in R.FA. No,33 of 1991 respondent is Muhammad Shall The orders of the learned trial Court are of the same date- and almost of the same wording. 2. This appeal is directed against the judgment dated 18-7-1991 passed by the learned Additional District Judge, Bahawalpur, whereby he decreed respondent's suit for a sum of Rs,25,000 under Order XXXVII, Rules 1 and 2, C.P.C. In Civil Suit No,36 of 1990. 3. The brief facts leading to the filing of the above-noted appeal are that respondent filed the afore-referred suit under Order XXXVII, C.P.C. On a promissory note for the recovery of Rs,25,000. Upon service of summons the appellant applied for leave to defend. On 18-3-1991, application for leave to defend was accepted subject to furnishing bank guarantee to the tune of Rs,10,000 by 14- 4-1991. By 14-4-1991, the appellant did not furnish the bank guarantee and the learned trial Court recalled the permission to defend the suit and the case was fixed for evidence of the plaintiff for 25-4-1991. On this date, the respondent could not produce any evidence and the case was adjourned to 20-5-1991. The case was thereafter adjourned four times i,e, on 20-5-1991, 10-6-1991, 11-7-1991 and 25-7-1991 to await the judgment of the High Court as it was submitted that the order, dated 14-4-1991 directing furnishing of bank guarantee had been challenged through a Civil Revision. On 4-7-1991, statement of the respondent was recorded and his evidence was closed. On 18-7-1991, it was brought to the notice of the learned trial Court that the Civil Revision filed against the afore-referred order has been dismissed for non-prosecution.
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' The learned trial Court decreed the respondent's suit observing that as the appellant had been granted leave to defend on condition of furnishing bank guarantee to the tune of Rs,10,000 by 14-4- 1991 and as he had not complied with the said conditional order and as the Civil Revision filed against the order of furnishing bank guarantee had been dismissed for non-prosecution and since there was no rebuttal of respondent's statement, the suit filed by him had to be decreed. 4. In support of this appeal, the learned counsel for the appellant has raised the following points:-- - (i) That the appellant has been condemned unheard and the impugned order is violative of the principle of audi alteram partem; that the appellant's Civil Revision No,121 of 1991 against the order 143-1991 was pending decision, C.M. No,1 of 1991 had been dismissed for non-prosecution whereupon appellant filed C.M. No,2 of 1991 for restoration of the same. That a notice had been issued in the said C.M. And an injunctive order dated 22-5-1991 had been passed in the main Civil Revision directing the learned trial Court not to pass final order. The learned trial Court therefore could not have passed the impugned order. ' Learned counsel relied on 1980 CLC 1185 (Nazim v. M/s. Habib Bank Ltd., Karachi) and 1992 CLC 1705 (Muhammad Nasir v. Muhammad Alam) to contend that the leave to defend a suit under Order XXXVII has to be granted unconditionally. 5. The learned counsel for the respondent has defended the impugned judgment and has submitted as follows:--- (i) That the order granting leave to defend suit was conditional and as the appellant had failed to comply with the condition stipulated therein, the learned trial Court had very rightly proceeded against the appellant and decreed the suit; ' that the dismissal of appellant's Civil Revision against the order of deposit of bank guarantee dated 18-3-1991 would operate as res judicata and the appellant cannot challenge the same which has attained formality. ' The learned counsel relied on 1989 MLD 171 (Muhammad Anwar v. Hoechst Pharmaceuticals Pakistan Ltd.), 1983 SCMR 643 (Ch. Altaf Hussain and others v. Mirza Azam Beg) and PLD 1993 Lah. 339 (Muhammad Yaqoob v. Mst. Azra Parveen and another) to submit that having failed to avail of the opportunity granted by the learned trial Court by way of leave to defend the suit, the appellant lacks bona fides to merit any indulgence in the instant appeal. 6. I have heard learned counsel for the parties and have also perused the record. 7. I have seen the order passed in C.M. 1 of 1991 in Civil Revision No,121 of 1991 moved by the petitioner. On 22-5-1991 this Court, while follows:- ' Admitting the main Civil Revision (C.R. 121 of 1991) directed as "Meanwhile final order shall not be announced in the case by the learned trial Court subject to notice." ' On 30-6-1991, as nobody had appeared for the applicant/petitioner, C.M. No,1 of 1991 was dismissed for non-prosecution. Thus, on 18-7-1991, learned Additional District Judge passed the final order decreeing respondent's suit as the afore-referred injunctive order did not exist. Argument of the learned counsel for the petitioner that the trial Judge could not pass the decree in view of the stay order, dated 22-5-1991 has no force. There has been no violation of the principle of audi alteram partem. The petitioner was afforded an opportunity to defend but leave to defend was made subject to his furnishing bank guarantee to the tune of Rs,10,000. The petitioner having failed to comply with the said condition, cannot claim any relief and the imposition of condition was well within the discretion of the learned trial Court as held in Sheikh Abdul Majeed v. United Bank Ltd. 1984 SCMR 1434 wherein it was observed as follows:--- "The imposition of condition is within the discretion of the trial Court and in the circumstances of the case we find no illegality in the exercise of that discretion. No case is made out for interference. The petition is accordingly dismissed."
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' This view was followed by yet another judgment reported in Khalid Javed & Company v. Javed Oil Industries (Registered) 1988 CLC 53, Hussain v. Rajab Ali 1981 CLC 1 and Muhammad Anwar v. Hoechst Pharmaceuticals Pakistan Limited 1989 MLD 171. In Nazim v. M/s. Habib Bank Ltd., Karachi 1980 CLC 1185, the Court did grant leave to defend the suit unconditionally but the dictum laid down was that this unconditional leave shall be granted only if the defendant had a plausible case based on averments of fact or law contained in his defence. The defendant in that case had placed on record certain documents which made his case prima facie plausible. In the instant case, the petitioner in his written statement before the trial Court had merely denied having executed the promissory note and has attributed the filing of suit by the respondent to some civil litigation pending between the petitioner and one Abdul Salam (brother-in-law of Muhammad Shafi). The petitioner is a close relation of the respondent. It does not appeal to common sense that the respondent would file a suit under Order XXXVII for the recovery of Rs,25,000 merely because of some litigation pending between the petitioner and one Abdul Salam. The defence, therefore, is not plausible and the learned trial Court had rightly granted leave with the condition for furnishing bank guarantee. 8. For what has been discussed above, there is no merit in both the appeals which are hereby dismissed. Appeal dismissed. 1996 MLD 295 [Election Tribunal Punjab] Eefore Mian Allah Nawaz Election Tribunal SHAHID NABI MALIK---Petitioner versus MUHAMMAD ISHAQ DAR and 5 others---Respondents Election Petition No,5 of 1994, decided on 28th September, 1995. (a) Interpretation of Constitution--- ----Mode of interpretation of Constitutional provision with reference to exigencies of State, changing condition of socio-religious and economic dynamics of State detailed. Constitution is a living document. It reflects the ideological aspirations of the people and is made through their will. It is a basic document which lays down the framework of distribution of the powers and subjects between Federation and Federating Unit and between three limbs of the State, i,e, Legislature, Executive and Judiciary. Being the life and soul of the country and being the main fountain of authority, it is to be interpreted liberally, and is to be saved from cosmetic, circumscribed and pedantic constructions. It is to be construed organically and with purposiveness. It is not only document of a past, present but is of a future, so it is to be interpreted in a manner to meet the exigencies of the 'State, the changing conditions of socio-religious and economic, dynamics of the State. [p. 305] A Constitution is built upon the doctrine of separation of powers. To legislature is allocated the function of making laws, to Executive is given the task of implementing the laws made by the Legislature; the Judiciary is assigned the task of interpreting and construing the laws within the framework of Constitution. [p. 306] C New Electronics (Pvt.) Ltd. v. Collector of Customs (Appraisement) PLD 1994 Kar. 286; Arif Iqbal Hussain Bhatti v. Federation of Pakistan PLD 1994 Lah. 220 and Aisha Spinning Mills Ltd. v. Federation of Pakistan 1995 PTD 493 rel. Nasrullah Khan v. Ghulam Mustafa Khar PLD 1977 Jour. 269; Syeda Abida Hussain v. Returning Officer 1993 MLD 2489; Syeda Abida Hussain v. Tribunal for NA. Lahore PLD 1994 SC 60; Abdul Ghani v. Mumtaz Hussain 1986 SCMR 1701; Saleh Muhammad v. Muhammad Riaz PLD 1962 Lah. 68; Allah Yar Khan v. Sardar All PLD 1968 Lah. 319; Sanaullah v. Election Tribunal PLD 1966 Lah. 97; Zafarullah Khan v. Muhammad Shafi PLD 1976 Lah. 302; Lal Muhammad v. Muhammad Usman 1975 SCMR 409; Haji Muhammad v. All Bakhsh Shah 1987 CLC 841; Saheb Mia Chaudhry v. Election Tribunal PLD 1966 Dacca 439; Rashid Ahmad Rehmani v. Mirza Barkat All PLD 1968 SC 301; Raja Afzal v. Ch. Manzoor Illahi PLD 1975 Lah. 1278; Saeed
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Hassan v. Pyar Ali Alana PLD 1976 SC 6; Kanta Kathuria v. Manak Chand AIR 1970 SC 694; K.B. Rohamare v. Shankar Rao AIR 1975 SC 571; Muhammad Salahuddin v. Government of Pakistan PLD 1990 FSC 1; Muhammad Afzal v. Manzoor Illahi PLD 1975 Lah. 1276; Muhammad Ibrahim v. Muhammad Arif Sardar 1986 CLC 2050; Sardar Khalid Nawaz v. Manzoor Ahmad Wattoo 1987 CLC 1167; Tariq Mahmood Bajwa v. Muhammad Afzal Sahi 1994 CLC 1366 and Mayor Zafar Ahmad Hiraj v. Dr. Khawar All Shah 1988 CLC 1289 ref. (b) Interpretation of statutes--- ----Incorporating definition clause in statute---Effect---Object of incorporating definition clause in any statute is generally to declare as to what certain expressions or words embodied in statute would mean---Definition clause being declaratory in nature, would apply to expressions used in statute-- Normally definition clause controls meaning of words in a given statute. [p. 305] B The Punjab Cooperative Bank Ltd. v. The Republic of Pakistan and 128 others PLD 1964 SC 616; Pramatha Nath Chowdhury and 17 others v. Kamir Mondal and 3 others PLD 1965 SC 434 and Sh. Ihsanul Haq Piracha v. Wasim Sajjad and others PLD 1986 SC 200 rel. (c) Constitution of Pakistan (1973)--- ----Arts.260 & 63(1)(e) & (k)---Expression "service of Pakistan" as used in Art.260 of the Constitution---Connotation---Person having been elected as Member National Assembly, whether fell within ambit of holder of office in "service of Pakistan" having been the Vice-Chairman, Pakistan Investment Board within two years from date of filing nomination papers and as such was disqualified to contest and being elected as Member National Assembly---Expression "service of Pakistan" as defined in Art.260 of the Constitution is neither circumscribed for any concept of salary nor by any fee; it is applicable to any service, post or office in connection with affairs of Federation or of a Province and includes all Pakistan services, declared to be service of Pakistan by Act of Parliament or of a Provincial Assembly---Such person being holder of office of Vice-Chairman, Pakistan Investment Board was occupying post which was attached to Secretariat of Prime Minister, which clearly had connection with affairs of Federal Government---Words "office of profit" could not be read into Art.63(1)(e) of the Constitution---Such person being in "service of Pakistan" within the parameters of Art.260 of the Constitution, could not be deemed to be "Minister of State" and as such was disqualified to seek membership of Parliament at the time of filing of his nomination papers within ambit of Art. 63(1)(e) & (k) of the Constitution for the fact that two years had not elapsed from date of acceptance of his resignation as Vice-Chairman of Pakistan Investment Board.---[Words and phrases]. [pp. 312, 313, 315, 316] D, E, F & G Nawabzada Nasrullah Khan v. Ghulam Mustafa Khar PLD 1977 Jour. 299; Mst. Sardar Bibi v. Finhas and others PLD 1980 Jour. 43; Syeda Abida Hussain v. Returning Officer and others 1993 MLD 2489; Election Commission of Pakistan v. Javaid Hashmi PLD 1989 SC 396; Karbhari Bhimaji Rohamare v. Shanker Rao Genuji Kolhe and others AIR 1975 SC 575; Raja Muhammad Afzal v. Muhammad Altaf Hussain 1986 SCMR 1736 and Black's Law Dictionary, p. 1264 ref. (d) Constitution of Pakistan (1973)- ----Art.62(f)---Words "Amin" and "sagacious" as used in Art.62 of the Constitution---Applicability- --No extended meaning of "Amin" and "sagacious" could be given while interpreting such expressions---Fact that person was defaulter of Bank loan would not attract principle of "Amin" or trustee in his case especially when his case was pending adjudication before competent forum. [p. 316] H Halsbury's Laws of England, Vol.14, para. 549 ref. (e) Representation of the People Act (LXXXV of 1976)--- ----S.52---Election petition---Disqualification of returned candidate---Petitioner's prayer to be declared as Member National Assembly in place of disqualified Member on the principle of throwing away of votes---Principle of throwing away of votes was not attracted for disqualification
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of returned candidate was not so notorious as to attract the principle---Petitioner himself was not aware of such disqualification on the date of filing of nomination papers and even on the date of scrutiny of nomination papers and came to know of such fact much later---Election was declared to be void as a whole and Election Commissioner was directed to hold fresh elections. [pp. 318, 319, 320] I, J & K In re: Bristol South East Parliamentary Election (1961) 3 All ELR 354; Rashid Ahmad v. Barkat Ali PLD 1968 SC 301; Saeed Hassan v. Pyar All PLD 1976 SC 6 and Muhammad Afzal Khan v. Khadim Hussain Khan PLD 1978 SC (AJ&K) 73 rel. Raja Muhammad Anwar and Shafqat Mahmood Abbasi for Petitioner. Muhammad Akram Sheikh for Respondent No,1. Nemo for Respondents Nos.2, 3, 4 and 6. Irshadullah Chattha for Respondent No,5. Dates of hearing: 2nd to 4th, 16th, 23rd, 24th July; 20th to 22nd August, 1995. JUDGMENT ' This Election Petition, under Article 225 of the Constitution of Pakistan (1973) read with section 52 of the Representation of the People Act, 1976 by Mr. Shahid Nabi Malik, calls in question the notification of success of Mr. Muhammad Ishaq Dar/respondent No,1 as a returned candidate from the seat of National Assembly NA-95, Lahore. The Notification was published in the official Gazette on 9th December, 1993. 2. The controlling facts, according to the petition, are that by-election of NA-95, Lahore was scheduled on 2-12-1993. The petitioner as well as five respondents/namely Mr. Muhammad Ishaq Dar/ 1st respondent, Mr. Almas Haider Kazmi/2nd respondent, Syed Qaisar Shah/3rd respondent, Aqeel Ahmad/4th respondent, Nawab Amber Shahzada/5th respondent filed their nomination papers before the Returning Officer on 30-10-1993. The Returning Officer, on the date of scrutiny, found all the nomination papers in order as none of the nominated candidate raised objection. Meanwhile, the petitioner became aware that first respondent had been serving as a full-time Vice-Chairman of Pakistan Investment Board (shortly referred to as P.I.B.) from 15-9-1992 to 19-4- 1993 and so he was ineligible to file his nomination papers within the terms of Article 63(1)(k) of the Constitution of Pakistan and section 99(1-A)(k) of the Representation of the People Act, 1976 (hereinafter described as Act) as 2 years have not elapsed between the date of his resignation and filing of nomination papers. Feeling so, the petitioner preferred an application before the Chief Election Commissioner under section 103 of the Act for seeking declaration that first respondent was ineligible to contest Election. Besides this, he filed Constitution petition (W.P. No,16274/93) which was admitted to full hearing by the High Court on 24-11-1993. This was not the end of the matter. Malik Mehraj Khalid and Raja Abdul Sattar too joined the battle and filed separate writ petitions/challenging Mr. Muhammad Ishaq Dar right to contest the Election. These petitions were filed on 27-11-1993 and were admitted to hearing. On 30-11-1993 High Court was pleased to issue an order that the result of Election of NA-95, Lahore shall not be announced till the decision of the afore noted petitions. The first respondent also did not lag behind. He, too, called in question the right of the petitioner to contest election by lodging an application before the Chief Election Commissioner. The afore stated two applications were dealt with by the Chief Election Commissioner who, by order, dated 30-11-1993, dismissed the application filed by first respondent and adjourned the hearing of the application moved by the petitioner to 20-12-1993. Feeling dissatisfied from the order, dated 30-11-1993 passed by Lahore High Court in W.P. No, 16274 of 1993, the first respondent went to Supreme Court and the Hon'ble Supreme Court was pleased to modify the impugned order and directed the Election Commission to announce the result of the Election. It was, however, observed that the result so announced shall be subject to the decision of the Constitution petitions pending before the Lahore High Court. The Election was held on scheduled date and the following results were declared:
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{{TABLE}} (1) Mr. Muhammad Ishaq Dar 39483 Votes (2) Mr: Shahid Nabi Mali 23825 Votes (3) Mr. Almas Haider Kazmi 103 Votes (4) Mr. Aqil Ahmad 49 Votes (5) Syed Qaiser Shah 43 Votes (6) Nawab Amber Shehzada 26 Votes. {{TABLE}} ' and so the impugned result was notified in the official Gazette. Feeling dissatisfied, the petitioner had filed the instant election petition on 22-1-1994. 3. The petition was contested by first and fifth respondents. None others filed any reply. First respondent also filed recriminations petition/alleging therein that the petitioner was a bank- defaulter and so he was neither 'Amin' nor sagacious and so he was disqualified to contest election. On the pleadings of the parties the following issues were framed: ISSUES: (1) Whether respondent No, 1 was in service of Pakistan with effect from 15-9-1992 to 19-4-1993 and he was so ineligible to file his nomination papers on the relevant date, if so, what is its effect? OPP (2) Whether the petitioner was disqualified to contest the Election for the reasons mentioned in recrimination notice? (3) Whether disqualification of the respondents, if any, was so notorious as to attract the principle of throwing away of votes? OPP (4) Relief. ' No other issue was claimed. It is pertinent to mention over here that issues were framed with the consent and active participation of the learned counsel for the contesting parties. In order to substantiate his case, the petitioner relied upon P.W.1 Ashfaq Hussain/Section Officer, Cabinet Division, Islamabad, P.W.2 Riazul Haq, Deputy Secretary, Prime Minister Secretariate, Islamabad, P.W.3, Ch. Saeed Ahmad, Deputy Director, Pakistan Investment Board, P.W.4 Sh. Rafique Ahmad, Advocate P.W.5, Badarul Islam Butt, P.W.6 Bakhat Geer Ahmad, and P.W.7 Sadiq Hassan, P.W.8 Malik Shabbir Hayat, Advocate P.W.9 Ch. Muhammad Aslam Gill and, Mr. Shahid Nabi Malik/petitioner himself as P.W.10. The petitioner placed reliance upon the following documents.-- {{TABLE}} Sr. Mark Description. No, 1. PR Affidavit of petitioner/Shahid Nabi Malik. 2. PD Notification No,TA-14(2)/92-PIB dated 15-9-1992 regarding appointment of respondent as Vice-Chairman, P.I.B. 3. PA Notification No,4-10/92-Min-I, dated 22-4-1993 regarding acceptance of resignation of respondent No,1. 4. PB Gazette Notification No,4-10/92-Min-I, dated 30-8-1992 regarding constitution of P.I.B. 5. PE Letter No, U.O. No,2(45)/92-E&F-I dated 6-10-1992 in respect of establishment and structure of P.I.B. 6. PC Summary for Prime Minister regarding establishment of P.I.B. Bearing No, Cab. Div. U.O. No,4-10/92-Min-I, dated 25-101992. 7. PF Creation of Posts/Postings of Officers in P.I.B. Bearing No,P.M. Sec. U.O. No,2(45)/92 E&F II, dated 11-2-1993. 8. PG Creation of Posts/Postings of Officers in P.I.B. No, U.O. No,3556/AS E&F/92 dated 12-11-1992.
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9. PQ Affidavit of Ch. Muhammad Aslam Gill dated 21-11-1993. 10. PL Affidavit of Ch. Sadiq Hassan, dated 22-11-1993. 11. PM Affidavit of Shabbir Hayat, Advocate 12. PN Advertisement saying: Daily Musawat dated 1-12-1993. 13. 14. PO PP Ditto Advertisement saying:" Daily Khabrain dated 30-11-1993. 15. PE News item published in Daily Musawat, dated 25-11-1993, saying: 1 16. PF/1 News item published in Daily Musawat dated 27-11-1993 saying: 17. PJ News item published in Daily Musawat dated 1-12-1993 saying: .8. PK News item published in Musawat, dated 2-12-1993 saying: 19. PP News item published in daily Khabrain, dated 30-11-1993 saying: 1V PW Office Memorandum bearing No, 3-3/92-Min. I, dated 21. 22. F G 7-2-1993 in respect of appointment of Chief Executive Pakistan Investment Board. Lrr News item saying: Daily Musawat, dated 25-11-1993. News item saying: Daily Musawat, dated 27-11-1993. Lt. / Grl 23. H Advertisement saying: Daily Musawat, dated 1-12-1993. - C,L-- Gal 24. I Advertisement saying: Daily Musawat. 90 25. J News item saying: Daily Musawat, dated 1-12-1993. 26. K News item saying: Daily Musawat. {{TABLE}} 4. In order to prove his case, the first respondent examined R.W.1, Mr. Khalid Javed (former Finance Secretary), Government of Pakistan, R.W.2, Iftikhar Malik, Deputy Secretary, Ministry of Finance, R.W.3, Mukhtar Haider Shah, Deputy Secretary, Ministry of Industries R.W.4, Ch. Saeed Ahmad, Deputy Director, Board of Investment, R.W.5 Imtiaz Ahmad Sahibzada, Cabinet Secretary, Government of Pakistan, R.W.6 Kh. Riaz Mahmood and R.W.7 Abdul Waris Malik. In addition to it, the first respondent tendered into evidence his own affidavit, copy of Foreign Investment Advisory Services, copy of Income Tax Return. 5. The petition was argued by the learned counsel for the parties with their usual remarkable dexterity, industry and legal acumen. The learned counsel for the petitioner as well as the learned counsel for first respondent tendered their written notes. None, however, had entered appearance on behalf of respondents Nos.2, 3, 4 and 6. They had, therefore, been proceeded against ex parte. Nawab Ambar Shahzada/respondent No,5 was represented by Mr. Irshadullah Chattha, Advocate,
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who, however, never showed keen interest in proceedings of the petition. Neither he produced any evidence nor he argued the case. The arguments advanced by the learned counsel for the petitioner can be conveniently summarized as below: ' Firstly; that Mr. Muhammad Ishaque Dar, was appointed as full-time Vice-Chairman of P.I.B. On 15- 9-1992 vide Notification No,TA-14(2)/92- PIB(Mark 1PD); that first respondent served as Vice- Chairman up to 22-4-1993 when he submitted his resignation which was accepted on the same day; that P.I.B. Which was part and parcel of Ministry of Industries and was subject to control of the Prime Minister Secretariat. On the strength of this circumstance, it was argued that first respondent had been in service of Pakistan within the terms of Article 260 of the Constitution and two years had not elapsed from the date of his resignation and the date of filing of nomination papers and so that Returning Officer had accepted his nomination papers without any lawful authority. In this view it was suggested that the election of first respondent was wholly void, ab initio and merited to be declared as such. Reliance was placed on Nasrullah Khan v. Ghulam Mustafa Khar PLD 1977 Jour. 299, Syeda Abida Hussain v. Returning Officer 1993 MLD 2489 and Syeda Abida Hussain v. Tribunal for NA. 69 PLD 1994 SC 60. ' Secondly; that first respondent was never administered oath within the terms of…
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