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Petitioner: Ch. MUNEER AHMAD and others VS Respondent: Malik NAWAB SHER and others
Court Name: Lahore High Court Judge(s): Sheikh Ahmad Farooq Title: Ch. MUNEER AHMAD and others vs Malik NAWAB SHER and others Case No.: Writ Petition No,73737 of 2010 Date of Judgment:2010-08-10 Reported As: PLD 2010 Lahore 625 Result: Petition dismissed
JUDGMENT
JUDGMENT ' SH. AHMAD FAROOQ, J.---Pursuant to the General Elections, held on 18th February, 2008, Malik Nawab Sher/respondent No,1 was declared as a returned candidate from Constituency NA-76, Faisalabad-II, and he is presently holding the office of the Member, National Assembly of Pakistan. Through the instant petition, under Article 199(1)(b)(ii) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners, who are the registered voters of Constituency No,NA-76, Faisalabad- II, have prayed that the respondent No,1 be called upon to show under what authority of law, he is holding the office of Member, National Assembly of Pakistan from Constituency No,NA-76, Faisalabad-II. The petitioners solicited the issuance of a writ in the nature of quo warranto declaring the holding of the said office by respondent No,1, without lawful authority, and his election from the said constituency as void. 2. Succinctly, the information, laid down by the petitioners before this Court, is that the respondent No,1 has no lawful authority to hold the office of Member National Assembly of Pakistan. The petitioners contended that the respondent No,1 is disqualified to hold the office of M.N.A., if adjudged on the touchstone of the qualification/ disqualification, envisaged in Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 99 of the Representation of the People Act, 1976. The petitioners challenged the legal authority of respondent No,1 to hold the office of M.N.A on the following three grounds:-- (i) That the respondent No,1 does not hold the requisite educational qualification, as provided in Article 8-A of the Conduct of General Elections Order, 2002, and the B.A. Degree, being relied upon by him, is bogus as having been procured through impersonation and fraudulent means.
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(ii) That the respondent No,1, while employed as a Corporal Technician in Pakistan Air-Force was tried for misconduct by a District Court Martial, whereupon, he was convicted and dismissed from service and as such, he suffers from a lifetime disqualification of contest the election to National Assembly or a Provincial Assembly of Pakistan, under Articles 62 and 63(i) of the Constitution of Islamic Republic of Pakistan, 1973 read with section 99 of the Representation of the People Act, 1976. (iii) that the respondent No, Wiled his nomination papers to contest the election for Constituency No,PP-44 and NA-58, Faisalabad, in the year, 1996 and not only his nomination papers were rejected but also he was declared disqualified to context the election, being not honest person, by Election Tribunal, comprising of two Hon'ble. Judges of Lahore High Court, Lahore, vide judgment, dated 6-1-1997 the petitioners contended that the said judgment has attained finality, thereby respondent No,1 is disqualified to contest the election throughout his life, as envisaged in Article 62(f) of the Constitution of Islamic Republic of Pakistan, 1973. ' The petitioners explained the delay in filing the instant petition as a rival candidate, namely, Zahid Nazir, who lost the elections, earlier filed Election Petition (E.P.No,29/2008), but the same was withdrawn on 19-3-2010, apparently, as a result of some collusion between the parties. The petitioners submitted that a seat of the National Assembly of Pakistan is a "sacred trust" and they have a locus standi, rather, duty bound to lay information before this Court that respondent No,1, who claims to represent Millions of people from Constituency No,76, Faisalabad-II is not qualified to be elected and from being a member of the Parliament. 3. The respondent No,1 was required by this Court to show under what authority of law, he is holding the office of M.N.A. From Constituency No,76, Faisalabad-II, whereupon, he submitted a written reply, wherein, amongst others, he raised preliminary objections regarding the maintainability and the bona fide of the petitioners to file the instant petition after a lapse of more than two years. The respondent No,1 contended that the question of the disqualification of a Member of National Assembly could only be raised before the Speaker of the National Assembly, who could refer the same to the Election Commission for a decision, as provided in Articles 66(2) and (3) of the Constitution of Islamic Republic of Pakistan, 1973. The respondent No,1 further contended that the remarks given by the Appellate Election Tribunal of Lahore High Court, Lahore in Election Appeal No,117 of 1996, vide judgment dated 6-1-1997, have been expunged by a Full Bench of this Court, while deciding Writ Petition No,699 of 1997, vide order dated 16-1-1997. The respondent No,1 asserted that his Intermediate Certificate and B.A. Degree have been declared genuine by the relevant authorities. As far as the matter regarding the dismissal from service is concerned, the respondent No,1 submitted that the same has already been dealt with in Election Appeal No,7/R of 2007, titled "Malik Nawab Sher Wassir v. Additional District and Sessions Judge; Jarawala etc.", by the Election Tribunal, comprising of two Hon'ble Judges of this Court, vide order dated 8-12-2007, whereby the respondent No,1 was allowed to contest the election, held in February, 2008. The respondent No,1 maintained that after 18th Amendment in the Constitution of Islamic Republic of Pakistan, 1973, the lifetime disqualification, as originally provided in Article 63(1), has ceased to exist. The respondent No,1 claimed that the instant petition is hit by the principle of laches and the petitioners are not entitled to any discretionary relief. The respondent No,1 alleged that the instant petition has been preferred in collusion with the candidates, who lost the election, namely, Zahid Nazir, Chaudhry Wassi Zafar and Waciar Wassi. The respondent No,1 vehemently asserted that he fulfilled the qualifications, laid down in Article 62 of the Constitution of Islamic Republic of Pakistan, 1973 and did not suffer from any disqualification, provided in Article 63 of the Constitution of Islamic Republic of Pakistan, 1973 or in section 99 of the Representation of the People Act, 1976. The respondent No,1 claimed that he is holding the office of M.N.A. In accordance with the provisions of the Constitution and law.
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4. Respondent No,3/Board of Intermediate and Secondary Education, Sargodha, in its report and parawise comments, confirmed that Nawab Sher/respondent No,1 appeared in Annual Inter Examination, 1969, under Roll No,889, and passed the examination in first attempt by obtaining 391 marks out of total 1000. Similarly, respondent No,2/University of the Punjab, Lahore verified that the respondent No,1 has passed the B.A. Examination, vide Roll No,008663 with Registration No,2002-Z- 26773. Respondent No,2 - denied the allegation of impersonation against the respondent No, 1. 5. Respondents Nos.4 to 7, in their written statements, admitted that Nawab Sher/respondent No,1, who served as Corporal Technician in Pakistan Air Force, was dismissed from service as a result of District Court Martial, vide order dated 19-4-1977, on the charge of overstaying leave, without sufficient cause, granted for the period from 3-6-1976 to 2-2-1977. However, respondents Nos.4 to 7 clarified that the charge of . Overstaying leave, falling under section 39(b) PAF Act, 1953, is a normal service offence, which do not constitute moral turpitude. 6.Respondent No,8, in his parawise comments, contended that the requisite record was snatched by unknown persons from Mr. Imdad Hussain Mirza, Assistant Superintendent, Prison, who was carrying the same to Karachi Airport, for its presentation in this Court. However, respondent No,8 explained that comments have been earlier filed in this Court, vide office letter dated 21-5-2010. According to the photocopy of the earlier comments of respondent No,8, Nawab Sher/respondent No,1 was convicted by the Officer Commanding, P.A.F., on 19-4-1977, and he remained in Central Prison, Karachi, from 2-6-1976 upto 2-2-1977, and thereafter, transferred to District Jail, Lyalpur on 5-7-1977. Respondent No,9/Superintendent, District Jail, Lyalpur, Faisalabad, regretted his inability to verify the admission/detention of respondent No,1 in District Jail, Faisalabad, due to termite ridden record, which could not be inspected. 7. Mr. Farooq Amjad Mir, Advocate, the learned counsel for the petitioners contended that the respondent No,1 did not hold the requisite educational qualification, as provided in Article 8-A of the Conduct of General Elections Order, 2002 and as such disqualified to hold the office of M.N.A. He further contended that the respondent No,1 was convicted and in consequence thereof, dismissed from service, vide order dated 19-4-1977, and remained in jail for eight months. He maintained that the ground, on which the respondent No,1 was dismissed from service, falls within the mischief of misconduct and he is disqualified from being, a Member of Majlis-e-Shoora (Parliament) in view of Article 63(i) of the Constitution of Islamic Republic of Pakistan, 1973. The next arguments of the learned counsel for the petitioners was that the respondent No,1 is not an honest person and not qualified to be elected or chosen as a Member of Majlis-e-Shoora (Parliament), according to Article 62(t) of the Constitution of Islamic Republic of Pakistan, 1973, as he was declared a dishonest person by the Election Tribunal, comprising of two Hon'ble Judges of this Court, who disqualified him from contesting the elections, held in the year, 1997, vide order dated 6-1-1997. The learned counsel for the petitioners asserted that the disqualifications, enumerated in Articles 62(f) and 63(i) of the Constitution of Islamic Republic of Pakistan, 1973, are lifetime disqualifications. Meaning thereby that present respondent No,1 was not only disqualified to contest the elections, held in 1997, but also was not eligible to contest the 'election in the year, 2008, and consequently, disqualified from being a Member of Majlis-e-Shoora (Parliament). In support of his contention of getting the respondent No,1 declared as a person, who is not 'honest and `ameen', as provided in Article 62(f) of the Constitution of Islamic Republic of Pakistan, 1973, the learned counsel for the petitioners relied upon the judgments, reported in Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others (1986 SCMR 1736), Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others (PLD 1998 SC 823), Mst. Ghulam Sakina v. Member (J), Board of Revenue, Hyderabad and 4 others (PLD 2004 Karachi 389) and Dr. Mobashir Hassan and others v. Federation of Pakistan and others (PLD 2010 Supreme Court 265). Similarly, in order to substantiate the ground of dismissal from service incurring the disqualification from being a Member of the Parliament, the learned
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counsel for the petitioners referred to the Judgments, reported in Malik Saleh Muhammad Gunjial v. Kamran Elahi Bandial and others (2008 SCMR 1) and Imtiaz Ahmed Lali v. Ghulam Muhammad Lali (PLD 2007 Supreme Court 369). Elaborating his arguments that a writ of quo warranto could be filed by any person, who did not fulfil the stringent condition of falling within the meaning of aggrieved person, the learned counsel for the petitioners took the benefit of judgments, reported in Capt. (Retd.) Muhammad Naseem Hajazi v. Province of Punjab, through Secretary, Housing and Physical Planning and 2 others (2000 SCMR 1720), Khan Bar v. Chief Election Commission Islamabad and others (PLD 2010 Supreme Court 817), Nageb Ullah Khan v. Malik Imran Khan and, 6 others (PLD 2006 Peshawar 21), Hafiz Hamdullah v. Saifullah Khan and others (PLD 2007 SC 52), Faqir Abdul Majeed Khan v. District Returning Officer and others (2006 SCMR 1713) and Mushtaq and 3 others v. The State (PLD 2Q08 SC 1), Responding to the objection of the learned counsel for respondent No, 1, that after the amendments, made in the Constitution through 18th Amendment, vide Notification dated 20-4-2010, whereby Articles 62(0 and 63(i) of the Constitution of Islamic Republic of Pakistan, 1973 have been amended and no person could be declared as dishonest unless there is a declaration by a Court of law and the disqualification due to dismissal from service could not be agitated after a lapse of five years, the learned counsel for the petitioners was of the view that the Constitutional amendments have not been given retrospective effects and the rights of the parties to be decided according to law, which existed when action began and not that existing at the date of judgment or order. In support of his arguments, the learned counsel for the petitioners referred to Article 264 of the Constitution of Islamic Republic of Pakistan, 1973, as well as Section 6-C of the General Clauses Act, 1897, in addition to the judgments, reported in Mian Rafiud-Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others (PLD 1971 Supreme Court 252), Manzoor Ali and 39 others v. United Bank Limited through President (2005 SCMR 1785), Lt.-Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 SC 98),) Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187), Hakim Ali Zardari v. The State and another (PLD 1998 Supreme Court 1) Idrees Ahmad and others v. Hafiz Fida Ahmad Khan and others (PLD 1985 Supreme Court 376). Lastly, the learned counsel for the petitioners argued that notwithstanding the amendments, made in Articles 62(f) and 63(i) of the Constitution of Islamic Republic of Pakistan, 1973, through 18th Amendment, the provisions of section 99(1)(f) and 1-A of the Representation of the People Act, 1976, has not undergone any change, which still envisaged the disqualification of a person for being dishonest and having been dismissed from service on the ground of misconduct. The learned counsel for the petitioners submitted that the observations, made against the present respondent No,1 by the Election Tribunal of Lahore High Court, Lahore in its judgment dated 6-1-1997, have not been expunged, vide judgment dated 16-1-1997 of a Full Bench of this Court, as there is a difference between the words "derogatory" and "expunction". In this regard, he placed reliance, on the State of Assam v. Ranga Muhammad and others (AIR 1967 SC 903), In the matter of 'IC a Judicial Officer (AIR 2001 SC 972), Dr. Muhammad Iqbal and others v. Haji Muhammad Akram (PLD. 1991 Lahore 8) and Muhammad Maqsood Sabir Ansari v. District Returning Officer, Kasur and 3 others (2007 CLC 1113 Lahore). Concluding his arguments, the learned counsel for the petitioners requested for issuance of a writ of quo warranto declaring that the respondent No,1 is not qualified to hold the office of M.N.A. In view of the qualifications/disqualifications, enshrined in Articles 62(t) and 63(i) of the Constitution of Islamic Republic of Pakistan, 1973, as well as section 99 of the Representation of the People Act, 1976. 8. Conversely, the learned counsel for the respondent No,1 submitted that the instant petition is, in fact, a camouflaged election petition because the election petition, earlier filed by Zahid Nazir, has been dismissed as withdrawn on 19-3-2010. He clarified that the petitioner No, 1/Chaudhry Munir Ahmad has filed the instant petition with mala fide intentions after a lapse of more than two years
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of the General Elections, held in the year, 2008, and not entitled to the discretionary relief, as he is the first cousin of a candidate, namely, Wassi Zafar, who lost the elections against the respondent No,1, in addition to being uncle of another candidate, who contested election from Constituency No,NA-76, Faisalabad-II. In this regard, he referred to judgments, reported in Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others (PLD 1969 SC 42) and Makhdoom Ghulam Ali Shah v. Election Commission of Pakistan, Islamabad through its Secretary and 4 others 2008 CLC 738. The objection of laches was also raised by the learned counsel for the respondent No,1, while relying upon the judgment, reported in Fateh Muhammad Khan and others v. The Deputy Claims Commissioner, Rawalpindi and others (1987 SCMR 692(1)). The learned counsel for the respondent No,1 further challenged the maintainability of the instant petition in view of an inbuilt mechanism for seeking disqualification of a Member of Parliament, as provided in Article 63(2)(3) of the Constitution of Islamic Republic of Pakistan, 1973, which empowers the Speaker of the National Assembly to decide the question of disqualification of a member himself or refer the same to the Election Commission, within 30 days, and the Election Commission shall decide the .Same, within 90 days from its receipt. In support of his argument, the learned counsel for the respondent No,1 placed reliance on the judgments, reported in Anaytullah Dr. Imran Liaqat Hussain v. Election Commission of Pakistan, Islamabad and another (PLD 2005 SC 52) and Ghulam Abbas v. The Additional Commissioner and Election Tribunal Khairpur Mirs and 3 others (PLD 1965 (W.P.) Karachi 625). The learned counsel for the respondent No,1 controverted the allegation of the learned counsel for the petitioners that the respondent No,1 did not possess the requisite educational qualification. Regarding the issuance of writ of quo warranto the learned counsel for the respondent No,1 argued that it is essential that the person concerned should suffer from any disqualification to hold such office both at the time of institution of a Constitutional petition as well as at the date of decision. ' He argued that the disqualification, if any with which the respondent No,1 allegedly suffers at the time of the institution of the instant petition is no longer in existence, as Articles 62(f) and 63(i) of the Constitution of Islamic Republic of Pakistan, 1973 have been amended through 18th Amendment, notified on 20-4-2010. Explaining his submissions, the learned counsel argued that the crucial date to determine the disqualification of a person to hold an office is not only the date of his election or institution of a writ, but also the date of the issuance of the writ of quo warranto. He maintained that at this point in time, the respondent No,1 is not disqualified from being a Member of Majlis-eShoora (Parliament) by virtue of amendments, made in the Constitution through 18th Amendment. He asserted that a writ of quo warranto, issued by High Court, would take effect only from the date of the pronouncement of the judgment by the High Court and not from any date anterior thereto. The learned counsel for the respondent No,1 was drawing strength, while arguing this point, from the judgments, reported in Dr. Mujahid Ali Mansoori and others v. University of Punjab and others (2005 PLC (C.S.) 694), M.A. Jabbar and 3 others v. Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad and 5 others (1999 PLC (C.S.) 686), Sardar Asseff Ahmad Ali v. Mr. Muhammad 'Khan Junejo and others (PLD 1986 Lahore 310) and Lt.-Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 Supreme Court 98). Finally, the learned counsel for the respondent No,1 submitted that similar objections were raised before the Election Tribunal of Lahore High Court, Lahore, but the respondent No,1 was permitted to contest the elections, held in the year, 2Q08, vide judgment dated 18-12-2007, which has attained finality. The learned counsel for the respondent No,1 tried to highlight the distinction between qualifications and disqualifications, as envisaged in Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan, 1973, referring to the judgments, reported in Ghulam Abbas v. The Additional
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Commissioner and Election Tribunal Khairpur Mirs and 3 other (PLD 1965 (W.P.) Karachi 625) and Kan Shahbaz Sharif V. Choudhary Altaf Hussain, Governor of Punjab, etc. (PLD 1995 Lah. 541). In order to rebut the argument of the learned counsel for the petitioners regarding the applicability of section 99 of the Representation of the People Act, 1976 after the amendment of the Constitution, the learned counsel for respondent No,1, referring to the judgment, reported in Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 635), maintained that it is a settled principle of Constitutional interpretation that the provision, enshrined in the Constitution, shall prevail notwithstanding anything contrary contained in a piece of subordinate legislation. Lastly, the learned counsel for the respondent No,1 argued that Article 264 of the Constitution of Islamic Republic of Pakistan, 1973 and section 6-A of the General Clauses Act could not be pressed into service in the instant petition. 9. I have heard the lengthy arguments, addressed by the learned counsel for the parties. I have also perused and examined the relevant Articles of the Constitution of Islamic Republic of Pakistan, 1973 as well as the provisions of the Representation of the People Act, 1976 with the able assistance of the learned counsel for the parties. 10. First of all, I would like to deal with the question of maintainability of the instant petition. 11. Admittedly, the instant petition is for issuance of a writ of quo warranto, "Quo'Warranto" means "by what authority". The object and scope of a writ of quo warranto has been discussed in detail by the Hon'ble Supreme Court of Pakistan in the case of Pakistan Tobacco Board and another v. Tahir Raza and others (2007 SCMR 97), wherein, it has been declared that a writ of quo warranto is to inquire from a person, the authority of law under which he purports to hold public office and it is primarily, inquisitorial and not adversarial for the reason that a relator need not be a person aggrieved but also that while a person A is holding a public office without any legal warrant, he is taxing public exchequer besides causing injury to others, who may be entitled to that office. Writ of quo warranto could be moved by "any person", who even may not be an aggrieved party, to challenge the unauthorized occupation of a public office. In case of Capt. (Retd.) Muhammad Naseem Hijazi v. Province of Punjab through Secretary, Housing and Physical Planning and 2 others (2000 SCMR 1720), the Hon'ble Supreme Court of Pakistan held that under Article 199(1)(b)(ii) of the Constitution of Islamic Republic of Pakistan, 1973, the High Court in exercise of its constitutional jurisdiction is competent to enquire from any person, holder of a public office to show that under what authority, he is holding the said office. In such like cases, the duty of the petitioner is to lay an information before the Court, who, in fact, acts as an informer and not required to establish his locus standi to invoke the jurisdiction of the Court. Similar dictum was laid down in the case of Hafiz Hamdullah v. Saifullah Khan and others (PLD 2007 SC 52) and it was held that for issuance of a writ of quo warranto, the person, invoking the jurisdiction of the High Court, under Article, 199 of the Constitution, is not required to fulfil the stringent conditions required for bringing himself within the meaning of an aggrieved person. Any person can move High Court to challenge the usurpation or unauthorized occupation of a public office by the incumbent of that office and he is not required to establish his locus standi to invoke constitutional jurisdiction, under Article 199 of the Constitution, in the manner as generally required by this Article. 12. As far as the objection of the learned counsel for the respondent No,1 regarding the availability of an efficacious alternative remedy, as provided under Article 63(2) of the Constitution of Islamic Republic of Pakistan, 1973, is concerned, the same is repelled by the judgment, pronounced in the case of Nacieeb Ullah Khan v. Malik Imran Khan and 6 others (PLD 2006 Peshaivar 21), wherein, it has been held that the jurisdiction of High Court would not be barred where the respondent was disqualified from being elected while filing nomination papers. It has been further held that the bar of jurisdiction, contained in Article 225 of the Constitution, would not attract where a person, having some interest, furnishes information to the High Court and challenges the very holding of public
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