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Petitioner: ZAFAR IQBAL VS Respondent: IMTIAZ HUSSAIN PHULPOTO
Court Name: Election Tribunal Judge(s): Haider Ali Pirzada Title: ZAFAR IQBAL vs IMTIAZ HUSSAIN PHULPOTO Case No.: Petition No,52 of 1985 Date of Judgment:1986-03-29 Reported As: 1986 MLD 2001 Result: petition allowed
JUDGMENT
JUDGMENT ' This Election Petition arises out of the election in respect of the seat for the Sind Provincial Assembly from PS-26-A Khairpur-I held on 28-2-1985. There were fourteen contesting candidates including the petitioner and the respondent No,2 in respect of this seat. As per the results declared by the Returning Officer/Respondent No,1, respondent No,2 secured 14,837 votes and the petitioner secured 9,364 votes. The other candidates secured a smaller number of votes than those two. The Returning Officer, therefore, declared respondent No,2 to have been duly elected. In this petition the petitioner has prayed inter alia that the election of the respondent No,2 be declared as disqualified and the petitioner be declared to have been duly elected and returned to Sind Provincial Assembly from PS-26-A Khairpur-I (hereinafter referred to as the said constituency). ' As the petition is being disposed of only on the ground of disqualification, it will be sufficient to set out only such averments in the petition and the written statement and such facts as are relevant for determing of this issue. In the petition, it has been inter alia alleged by the petitioner that respondent No,2 was convicted by the Summary Military Court, Khairpur on 4-9-1983 for offences under sections 143, 147, 148, 109, 307, 353, P.P.C. And 13-D, Arms Ordinance and sentenced to suffer R.I. For nine months and fine of Rs,15,000 for which F.I.R. No,97 of 1983, dated 18-8-1983 was lodged. The conviction of respondent No,2 was in respect of offences involving moral turpitude. The allegation against respondent No,2 inter alia was that he had set on are entire police station during M.R.D. Movement of August, 1983. He was thus not qualified under clauses (d) and (g) of Article 11 of the Houses of Parliament and Provincial Assemblies (Election) Order 1977 (hereinafter called the said Order). In paragraph 3 of the petition it is alleged that by participating in M.R.D. Movement of
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August, 1983 the respondent No,2 ridiculed the Armed Forces of Pakistan. As such he was disqualified from being elected under clauses (d) and (g) of Article 11 of the said Order. ' In the written statement filed by the respondent No,2, it has been inter alia contended by the respondent No,2 that he is not disqualified under clauses (d) and (g) of Article 11 of the said Order. It has been alleged by respondent No,2 that the alleged F.I.R. Does not disclose any attribution of overt act against the respondent and/or without legal evidence of any participation in the alleged procession, the respondent No,2 cannot be implicated. It has been submitted that the alleged conviction did not attract the definition of "Moral Turpitude" and it was less than two years. The contents of para. 3 are denied as false and as such provisions of the said Order are not attracted. The facts as disclosed by the complainant in the F.I.R. May be reproduced below for reference:- "At about 11-00 o'clock a procession headed by lmtiaz Khan Phulpoto was passing by Faiz Mahal towards Foupdari. In the beginning, it was quite peaceful; but on its return at about 12-30 p.m. When the procession reached close to us, we came to know that the processionists had already broken the glass-panes of the Government offices with stones on the way. When the procession headed towards the National Bank, I, alongwith the police party stopped them, whereupon they got agitated and started stoning at the police party and attacking with Lathis and sticks of dates which they took out from the tractors and trolly. In self-defence and to protect the Government properties from damage, we used a, mild Lathi-charge, but they did not desist. Under the order of the S.D.M. Present there, some tear-gas shells were fired. But in spite of it, they did not cease. One of the accused attacked me with knife and attempted to kill me but the sepoys present there, caught him and seized the knife. On our enquiry about his name and residence, he disclosed his name as Chanesar son of Faiz Muhammad Phulpoto resident of Danwaro, Taluka Khairpur. Thereafter, the persons who attacked the police with Lathis were also apprehended, who disclosed their names as (1) Naban son of Shandad Sheikh resident of Garhi-Pull, Khairpur, (2) Muhammad Sidik son of Rustom Phulpoto resident of Atteri, Khairpur, (3) Shah Nawaz son of Ali Nawaz Phulpoto resident of Dawood Goth, Khairpur (4) Amir Bux son of Satabo Phulpoto resident of village Jumo Phulpoto Taluka Khairpur, (5) Manzoor son of Muhammad Sachal Phulpoto resident of Khedo village Khairpur, (6) Ali Nawaz son of Kadir Bux Phulpoto resident of Khedo village, Khairpur." ' On the basis of the said F.I.R. (Exh. 7/2), a case under M.L.R. 5, M.L.O 77 and M.L.R. 36 against the respondent No,2 and others was sent up for trial before the Summary Military Court No,7, Khairpur. The respondent No,2 was convicted and was awarded nine months' rigorous imprisonment and a fine of Rs,15,000 was imposed by the said Military Court on 31-8-1983. He served out the said sentence. The fine of Rs,15,000 which he was ordered to pay was remitted on the petition of his mother. He also filed review petition before the Martial Law Administrator Zone 'C', Karachi which was rejected. ' Since the controversy turns, to a large extent, to some of the provisions of the said Order it would be useful to reproduce Article 10(2) (aaaa) (b) (1) and (g) and (2) which reads as under as: "(aaaa) If he is propagating any opinion or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan; or (b) if-------------- (i) he has been, on conviction for any offence which in the opinion of the Commissioner involves moral turpitude sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; or (g) he has not been convicted for a crime involving moral turpitude or for giving false evidence; and"
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Under clause (aaaa) of sub-Article (2) of Article 10 of the said Order, a person stands disqualified from being elected or chosen as, and from being, a member of Parliament, if he is propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary or the Armed Forces of Pakistan. A bare reading of the Article would show that a person would be disqualified from being elected or chosen as, and from being member of Parliament or Provincial Assemblies if he was acting in any A manner prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan or acting in any manner prejudicial to morality. ' The word "morality" has not been defined in the said Order. The scope of the word "immoral" was considered by the judicial committee of the Privy Council in Beneficed Uerk v. Lec (1897) A C 226. The precise point in that case was whether "simony" is immorality within the meaning of the Act. It was held that "it was not but Lord Halsbury, in 'delivering the judgment of the Committee, explained the effect of the reference to the two canons. He said "the language of these canons denounces offences which the 109th canon sums up as 'uncleanness and wickedness of life, but it goes further, and it condemns acts and conduct hardly to be considered immoral, but certainly dangerous to the reputation or unworthy of the character of ministers of religion. It appears to their Lordships that in this applying and extending the use of the term "immoral" the Act shows that "the intention was to confine its scope to offences of the kind referred to in these canons". The office of the Judge was prompted by Sweet and others v. Young 1902 Probate 37. The facts of the case are that Mr. Young went after 12 at night at the Alistian Club and stayed there three quarters of an hour, talking and joking with prostitutes. It was held that Mr. Young's conduct so "dangerous to the reputation and unworthy of the character of ministers of religion". The Chancellor held "I have not to decide whether the mere fact of a clergyman being in such a place, however, regrettable, would be enough to create an offence under this Act. I can conceive circumstances which might explain or justify his presence. But I think that under the circumstances proved in this case, Mr. Young's presence and action at this place constitute so "dangerous to the reputation and unworthy of the character of ministers of religion to quote Lord Halsbury's words as to be contrary to the 75th and 109th cannons, and, therefore, an offence against the laws ecclesiastical as well as an offence against morality within the meaning of the Clergy Discipline Act, 1892". In the same manner, the retention by a member of Parliament or member of Provincial Assemblies seat where he does not possess or has lost the qualification to represent the same and his legal character as such representations has ceased, is immoral conduct and it cannot be said that he is not acting in a manner prejudicial to morality. In my view by clause (aaaa) of sub-Article (2) of Article 10 of the Order the member is disqualified to be a member of the Parliament or member of Provincial Assembly. The words "Moral Turpitude" are an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen or to society in general contrary to the accepted and customary rule of right, and duty between man and man. Its various meanings cover about 13 pages of Words and Phrases, Permanent Edition, Volume 27, A published by St. Paul, Menn West Publishing Co. But I take as the most relevant portions for the purposes of this case the following: P.188 "The crime of issuing a non-fund check on a bank with intent to defraud, knowing at the time that the maker or drawer had no account or deposit in bank, is a felony involving "moral turpitude" and therefore, disbarment of attorney convicted of such crime is authorized. State ex rel. Nebraska State Bar Ass'n v. Stanosheck 92 N.W. 2d 194, 197, 167 Neb. 192." ' P.188 "Moral turpitude" in its ordinary sense involves the idea of inherent baseness or vileness shameful wickedness; depravity; in its legal sense it includes everything done contrary to justice,
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honesty, modesty or good morals. Huff v. Anderson, 90 S.E. 2d 329, 331, 212 Ga. 32, 52. A.L.R. 2d 1310". ' P.190 "Conviction charge, under New York Penal Law of frequenting or loitering about a public place and soliciting men for purpose of commiting a crime against nature or other lewdness was a conviction for crime involving "Moral turpitude" within meaning of deportation statute, though such violation of New York Penal Law was denominated therein as disorderly conduct and classified as an offence as distinguished from a crime. Wyngaard v. Rogers D.C.D.C., 187 F. Supp. 527, 528." ' P.202 "Interference with military forces--The crime of aiding another to avoid registration committed by counselling and advising young men subject to registration to not register for military service as required by the Act of Congress approved May 18, 1917, c. 15, 40 Stat. 76, 50 U.S.C.A. 5.226 note, thereby seeking to interfere with the Government of the United States in its efforts to raise an army in time of war, involves "moral turpitude". In re Hofstede, 1973 P.1087, 31 Idaho. 448. ' If a citizen of the United States of America, at a time when our country is at war, knowingly and wilfully makes false statements with intent to interfere with the success of its military and naval forces and with intent to promote the success of its enemies, or wilfully attempts to cause disloyalty, insubordination, mutiny, and refusal of duty in its military and naval forces, or wilfully obstructs its recruiting and enlistment service, his conduct involves moral turpitude. In re Kerl, 188 p.40, 42, 32 Idaho, 737, 8 A.L.R. 1259." ' In Rammnatha Aiyar's Law Lexicon the phrase is defined as follows:- "Anything done contrary to justice, honesty, principle, or good morals; an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen, or to society in general contrary to the accepted and customary rule of right and duty between man and man. ' A term not clearly defined what constitutes moral turpitude, or what will be held such, is not entirely clear. A contract to promote public wrong, short of crime, may or may not involve it. If parties intend such wrong, as where they conspire against the public interests by agreeing to violate the law or some rule of public policy the act doubtless involves moral turpitude. When no wrong is contemplated but is unintentionally committed through error or judgment, it is otherwise. Everything done contrary to justice, honesty, modesty, or good morals is done with turpitude, so that embezzlement involves moral turpitude." ' At page 1200 of Corpus Juris Secundum, Volume LVIII it is obsery as under: 'Moral turpitude' is not a new term but, rather, it is a term which is old in the law, and which has been used in the law fo centuries. It is a term which has been the subject of man decisions and which has been much defined by the Court; bu its definition does not gain in clarity by prolixity of statement. ' At page 1201 it is further observed: "As a legal term, 'moral turpitude' is defined as the quality of a crime involving grave infringement of the moral sentiment the community as distinguished from statutory male prohibita." ' At page 1202 it is stated: "Moral turpitude often involves the question of intent, and as a general rule unintentional wrong, or an improper act done without unlawful or improper intent, does not carry with it the germ of moral turpitude." At page 1202 it is observed: "Moral turpitude implies some thing immoral in itself, regardless of whether it is punishable by law as a crime, since an act may involve moral turpitude even though it is not crime. It must not merely be male prohibita, but the act itself must be inherently immoral."
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"It involves as act of inherent baseness in the private, social, or public duties which one owes to his fellowman or to-society, or to his country, her institutions, and her Government; and refers to conduct which is inherently base, vile, or depraved, and contrary to accepted rules of morality." ' At page 1205 it is further observed: "Offences against the revenue laws, such as defrauding the Government of taxes, imposed on intoxicating liquors, or smuggling, have been held to be crimes involving moral turpitude." ' At page 1205 it is further observed: "Embezzlement, forgery, robbery, and swinding are crimes which denote moral turpitude: and as a general rule, all crimes of which fraud is an element are looked' on as involving moral turpitude. Thus concealing assets in bankruptcy, obtaining goods on false representations, and other crimes involving fraud are usually regarded as showing moral turpitude." ' Article 10 of the said Order uses the word "disqualification" and the meaning given to this words in Webster's Third New International Dictionary is: "(i) the act of disqualifying or the state of being disqualified. (ii) Something that disqualifies or incapacitates." The word 'disqualify' is also stated to mean making some one unfit for some thing. The further meaning given is that the person may be deprived of any right or privilege. ' The sole question calling for decision in his petition is whether the conviction of the respondent No,2 can be considered within the meaning of clause (g) of sub-Article (1) of Article 11 of the said Order to be 8 conviction of an offence involving moral turpitude as to disentitle him to remain a member of Sind Provincial Assembly. ' The learned counsel for the petitioner was unable to cite any direct authority for the proposition that conviction under M.L.R. 5. M.L.O. 77 and M.L.R. 36 should be taken to amount to moral turpitude within the statutory provision but he referred to the following decisions in which there was some discussion of the expression "moral turpitude". (1) In the matter of Mr. Tasadduq Ahmad Khan Sherwani AIR 1922 All. 140 where the Full Bench consisting of Messrs C.J. Banerjee and Rafique, JJ. Held that moral turpitude is always involved in the commission of an act which comes within that section (S.153-A, Penal Code) and may involve an offence of the deepest moral turpitude. They also held that, "the case in the Magistrate's Court could not be reopened in these proceedings and we referred to the decision of the Privy Council in the matter of Rajandra Math Mukarji". (2) In Durgasing v. The State of Punjab AIR 1957 Punjab 77 Mr. Bishan Narain, J. Interpreted the term 'moral turpitude' as under:- "After all the term "moral turpitude" is a rather vague one and it may have different meanings in different contexts. The term has generally been taken to mean to be a conduct contrary to justice, honesty, modesty or good morals and contrary to what a man owes to a fellowman or to society in general. It has never been held that gravity of punishment is to be considered in determining whether the misconduct involves moral turpitude or not. Even if the words 'involving moral turpitude' are held to be implied in 'conviction on a criminal charge' in proviso to Article 311(2) it appears to me clear that if a member of the Police Force is guilty of having been found drunk at a public place or to have become habituated to liquor and if he is convicted by a criminal Court, then his conviction should be held as involving moral turpitude. It appears to me rather incongruous that persons who are habituated to liquor and are found drunk in public places should be allowed to remain in Police Force to bring such persons to book. I have, therefore, no hesitation in rejecting this contention on behalf of the petitioner. I accordingly hold that the petitioner in the present case was not entitled to protection under Article 311(2) of the Constitution."
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(3) In Saudagar Ali v. Chairman, District Council, Multan PLD 1963 Lah. 601 Mr. Sajjad Ahmed Jan, J. Defined the term "Moral Turpitude" as follows- "The expression 'moral turpitude' is not defined in the Basic Democracies Order, nor any other statute, but as generally understood anything which is done contrary to the good principles of morality involves moral turpitude, i.e. Anything that injuries the moral fibre of a person and lowers him down in moral values. In Famanatha Aiyar's Law Lexicon the phrase is defined as follows: "Anything done contrary to justice, honestly, principle, or good morals; an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." ' On the other, hand Mr. Khalid Ishaque, the learned counsel for the respondent No,2 cited the following decisions:- (i) Baheshwar Sing v. District Magistrate and Collector of Banaras A. I R 1959 All. 71 wherein a question arose as to whether conviction under section 182, Penal Code for making a false report was in respect of an offence involving moral turpitude and in answering this question in the affirmative Mr. J.K. Tandan, J observed. "The expression 'moral turpitude' is not defined anywhere, but it means anything done contrary to justice, honesty, modesty or good morals. It implies depravity and wickedness of character of disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses vileness or depravity in the doing of any private and social duty which a person owes to his fellowmen or to the society in general." (ii) In the case of Mangeli v. Chhakki Lal AIR 1963 All. 527 Mr. A .P. Srivastava, J. Laid down the following tests:- "(1) whether the act leading to a conviction was such as could shock the moral conscience of society in general. (2) whether the motive which led to the act was a base one, and (3) whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society." (iii) In Risal Singh v. Chandgi Ram and others AIR 1966 Punjab 393 the facts were that Chandgi Ram contested the election to the seat of the Pradhan of the Gon Panchayat and he was declared elected. Risal Singh appellant challenged the election on the basis of the fact that Chandgi Ram had been convicted of an offence under section 19 (f) of the Arms Act and that he was not qualified to stand for the election and his nomination papers had been improperly accepted. He filed election petition before the Election Tribunal. The Election Tribunal held that he was not qualified to stand for the election and his election was held invalid. Chandgi Ram came to the Punjab High Court by way of a writ. A learned Single Judge held that the possession of an unlicensed revolver could not amount to moral turpitude and the writ was allowed. The appellant filed Letters Patent Appeal against the order. The Division Bench held that the tests which were laid down in Mangal's case (quoted hereinabove) were kept in view, 'I do not see how it can fairly be said that the offence of which Chandgi Ram had been convicted involved moral turpitude.' The learned Judges held: "On the facts of the case before us, we are unable to find any error in the view of the learned Single Adge that the offence for which Chandgi Ram respondent was convicted implied no such depravity and wickedness of character or disposition which would involve any moral turpitude. As observed by the learned Single 4udge, people keep fire-arms for their personal safety and sometimes they resort to keeping arms without a licence when they feel that their status in society is not such as would enable them to get a licence from the authorities. No doubt they commit a
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contravention of the law, but it cannot necessarily be postulated that this contravention involved moral depravity and 'illness of character." (iv) In the case of Muhammad Shabbir Abbasi v. Abdul Rashid Mughal 1984 CLC 270 the facts were that Abdul Rashid respondent was declared to the seat of a Councillor from Ward No,8, Municipal Committee, Murree. Shabbir Abbasi challenged the election on the ground that he was convicted and sentenced in a criminal case and was, therefore, disqualified from contesting the said election. A Division Bench of Lahore High Court allowed the petition aid declared that Abdul Rashid stood disqualified to be a member of the Municipal Committee. Abdul Rashid filed Petition f#r leave, to Appeal against the judgment before the Supreme Court. Leave was granted. The Hon'ble Supreme Court while acceptiag appeal observed as follows: "It is obvious that in the absence of any legal evidence reamed Judges were somehow persuaded to hold, merely on the basis of the contents of the F.I.R., that appellant was convicted for an offence involving moral turpude. Unfortunately they failed to notice -that both the documents produced in support of the allegations against appellant, namely F.I.R. And certificate from Deputy Superintendent, District Jail, Rawalpindi, were in admissible evidence and by themselves, furnished no proof upon which a conclusion could,- be drawn, much less a judgment rendered, that appellant was held guilty and convicted for an offence involving m ral turpitude." (v) In Mian Shahbaz Ahmed v. Haji Muhammad Tariq and others 1985 SC MR 227 the petitioner filed an election petition alleging the following disqualifications against the respondent Muhammad Tariq: (i) The respondent No,1 is a known office-bearer, worker and activist of the defunct-Pakistan Peoples Party. (ii) On a number of occasions, he has been arrested and detained for his anti-State and subversive activities. (iii) That there were inadequate polling arrangements; large proportion of voters were deprived of their right to record their vote. ' The election of respondent 'No,1 was declared to be void and the petitioner was declared to be duly elected candidate. The. Constitution Petition filed by the respondent No,1 was allowed by the Lahore High Court. The petitioner filed Petition for Special Leave to Appeal before the Supreme Court. The Hon'ble Supreme Court while refusing…
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