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Petitioner: HAMIDUL HUQ CHOWDHURY VS Respondent: HIS EXCELLENCY THE GOVERNOR-GENERAL OF PAKISTAN
P L D 1953 Federal Court 279
P L D 1953 Federal Court 279
(Appellate Jurisdiction)
Before Abdul Rashid, C. J., A. S. M. Akram and A. R. Cornelius, JJ
I‑HAMIDUL HUQ CHOWDHURY‑Petitioner
versus
His EXCELLENCY THE GOVERNOR‑GENERAL OF PAKISTAN‑Respondent
Petition for Special Leave to Appeal No. 27 of 1952.
(On appeal from the Report of the Enquiry in the case of Hamidul Huq Chowdhury under rule 16 of the rules framed under the Public and Representative Offices (Disqualification) Act, 1949, by the Honourable the Chief Justice and the Honourable Mr. Justice Ellis, of the High Court Dacca).
II.‑M. A. KHUHRO‑Petitioner
versus
(1) THE FEDERATION OF PAKISTAN
(2) His EXCELLENCY THE GOVERNOR
GENERAL OF PAKISTAN‑Respondents
Petition for Special Leave to Appeal No. 28 of 1953.
(On appeal from the findings of the Tribunal (Honourable Mr. Justice G. B. Constantine, Chief Judge, and the Honourable Mr. Justice Mahomed Bachal, of the Sind Chief Court) appointed to enquire into the allegations of misconduct against Mr. M. A. Khuhro under the Public and Respresentative Offices (Disquali fication) Act, 1949).
III‑KAZI FAZLULLAH‑Petitioner
versus
(1) THE GOVERNOR‑GENERAL OF PAKISTAN
(2) THE FEDERATION OF PAKISTAN‑Respondents
Petition for Special Leave to Appeal No. 29 of 1953.
(On appeal from the findings of the Tribunal (Honourable Mr. Justice G. B. Constantine, Chief Judge, and the Honourable Mr. Justice Mohammad Bachal Memon, of the Chief Court of Sind) appointed to enquire into the allegations of misconduct against Kazi Fazlullah, under section 3 of the Public and Representative Offices (Disqualification) Act of 1949).
(a) Public and Representative Offices (Disqualification) Act (III of 1949)
‑Scope, scheme and purpose explained‑
(b) Judicial Committee Act, 1833,
S. 4‑Powers possessed by His Majesty under S. 4 do not vest in Federal Court.
Per Abdul Rashid, C. J.‑The powers possessed by His Majesty under section 4 of the Judicial Committee Act, 1833 do not vest in the Federal Court.
The words 'such other matters' which occur in section 4 relate to matters other than those that have been dealt with by a Court, Judge, or Judicial Officer and amount to determination, sentence, rule, or order. Section 4 deals with special references which His Majesty in his personal capacity could make to the Judicial Committee. This section cannot be construed to mean that the judgments or orders of the highest Courts in the Dominions could be appealed against by an aggrieved party, without the intervention of His Majesty, to the Judicial Committee of the Privy Council. These special references relate to matters which are not of a judicial character, but His Majesty may require the benefit of the advice of the Judicial Committee on such matters.
Per Cornelius, J.‑It seems plain enough from the language employed in the sections cited above from the two later Acts of 1844 and 1908 (i.e. section 9 of the Judicial Committee Act, 1844) and Appellate Jurisdiction Act, 1908) that the general order of refer ence, which is expressed to be relatable only to "appeals" could not, a6d was not intended to, embrace the reference of "any such other matters" mentioned in section 4 of the Act of 1833.
(c) Public and Representative Offices (Disqualification) Act (III of 1949),
S. 3‑No appeal lies to Federal Court from findings of High Court or Tribunal or from order of Governor‑General.
When a reference is made to a High Court, or a Tribunal, under section 3 of the Act, the High Court or the Tribunal, exercises a special jurisdiction, and no appeal lies to the Federal Court from the findings of the High Court or the Tribunal, or from the order of the Governor‑General disqualifying the petitioners from public life for a specified period.
The entire scheme of the Act militates against the idea that it was in the contemplation of the legislature that a right of appeal should attach to the disqualification incurred under the Act.
National Telephone Company Ltd. and another v. His Majesty's Post‑Master General 1913 A C 546 at p 562 ; Hem Singh and others v. Basant Das and another L R 63 I A 180 at pp. 190 and 192 ; Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd. Delhi etc. 1950 S C R p. 459 at p. 517 Joseph Theberge and another v. Philippe Gaudry 2 App. Cas. p. 103 at pp. 106 and 108 ; In Re. James Minchin 4 Moore's Ind. App. Cases, 220 ; In re the Will of Matua 1908 A C p. 450 and Muhammad Nawaz v. Crown P L D 1951 (F C) p.73 at p. 86, considered.
Per Akram, J.‑Under section 3 both the judicial and the administrative aspects get full consideration before the final decision is notified. The machinery which is set up combines and blends together two different functions which lead to a final result. It would be a mistake to suppose that a judicial point of view must necessarily be confined to judicial institutions and must not be exercised in administrative or executive organizations. Every matter, however, to which a judicial point of view may be brought to bear, does not necessarily result in a judicial decision so that it may attract the jurisdiction of a Court of law for purposes of appeal, review or revision. In such matters one has to look into the predominant features of the final order for deter mining the true nature and character of the order.
When we look into the details of the enactment, (i.e., Public and Representative Offices (Disqualification) Act, 1949) we find that section 6 provides‑
"Any order of the Governor‑General under section 3 shall be final and shall not be called in question in any Court." while rule 18 framed by the Central Government by virtue of section 7, directs‑
"No Court shall have jurisdiction in any suit, appeal, revision, application or other proceeding of any kind, to question the legality or propriety of a report or any order made by a Court or Tribunal in, or in relation to, an enquiry under rule 14."
Thus while the decision of the Supreme Executive Authority is made inviolable under section 6, the report of the Court or the Tribunal is rendered unquestionable under rule 18. We find, therefore, that besides the general nature and character of the order, the statute in express terms completely ousts the jurisdiction of every Court to review any proceeding instituted under its provisions or any order of the Governor‑General passed there under.
Per Cornelius, J.‑Whilst it is true that an appeal lay to the Judicial Committee by special leave either of His Majesty or of the Court appealed from, from nearly all determinations, etc., by High Court in the Colonies or Dominions, except where barred by statute, and it is also true that in 1949, when the Act in question was passed, an appeal lay from decisions of the Federal Court to His Majesty in Council, in a number of cases, it is plainly open to question whether an appeal was competent also from the order of a Tribunal under the Act. Each such Tribunal would be the creation of a statutory authority, and be new of its kind and no general law or principle of law could be invoked to create a right of appeal in respect of its determinations. The Act itself being of an entirely special nature it is reasonable to suppose that the Legislature intended that, in all relevant respects, the Federal Court or a High Court or a Tribunal, acting under section 3, should enjoy the same powers, perform the same functions, and be subject to the same incidents. If there be no appeal from the findings of a Tribunal, that would afford a strong indication that similar findings of the Federal Court or a High Court entrusted with the same functions would be similarly immune to the incident of an appeal.
I entertain no doubt that the provision in section 3 of the Act for the investigation of charges of misconduct and the ascertain ment of the guilt or otherwise of the person charged, despite the use of the expression "judicially found guilty" in the long title and preamble of the Act, is not intended to create a judicial jurisdiction at all. On the contrary, I am fully satisfied that the intention of the legislature in making this provision, is to secure the services of the Federal Court or a High Court or of two Judges of a High Court for the purpose of investigating the charges in question in the best manner know to human experience, namely, the manner of elucidation of fact and law by the judicial process.
I am impelled to reach the conclusions that findings recorded under section 3 of the Act are not judicial `determination' within the meaning of section 3 of the Judicial Committee Act, 1833, and further that in any case, the subject‑matter of the legislation is such as places it entirely outside the sovereign's prerogative of justice, and, I would therefore dismiss these petitions.
National Telephone Co. Ltd. v. Postmaster General 1913 A C 546 at p. 562; Nur Muhammad v. Sulaiman 49 C W N 10; Chelikani Rama Rao 43 I A 192 ; Maung Ba Thaw 61 I A 158; Shiromani Gurdwara Parbhandhak Committee 63 I A 180 ; Huddart Parker Proprietary v. Moorehead 8 C L R p. 330; Rola C (Australia) Proprietary v. Commonwealth 69 C L R 185; U. S. Ferreira 13 How 40; Mian Sultan Ali Nanghiana v. Mian Nur Hussain P L D 1949 Lah. p. 30; Strickland v. Grima 1930 A C 285 ; Khan Iftikhar Hussian Khan of Mamdot P L D 1950 (F C) ,p 15 ; Wiltes Peerage Claim (1869) 4 H L 126 ,and R & W Paul v. The Wheat Commission 1937 A C 139 refs
(d) Public and Representative Offices (Disqualification) Act, (III of 1949),
S. 3‑Whether Governor‑General could refuse "in his discretion" to make an order of disqualification in face of a finding of guilty.
Per Abdul Rashid, C. J.‑On a careful consideration of section 3 of the Act, I have reached the conclusion that it is not incumbent on the Governor‑General to accept the advice of the High Court or the Tribunal and necessarily pass an order disqualifying the person found guilty for a number of years from holding public office or acting in a representative capacity. The disqualification is incurred by the person found guilty upon the public notification of an order of the Governor‑General in this behalf. It does not make it obligatory on the Governor‑General to issue a public notification in respect of the charges which have formed the subject‑matter of the enquiry. To take an instance, it might be that 10 very serious charges are preferred against a Minister. He is found "not guilty" on practically all the charges but is found guilty of a technical abuse of official power in a very insignificant matter. In such a case, in my opinion, it would be open to the Governor General not to disqualify the person concerned. If the Governor General is not bound to disqualify a person as a result of a finding of guilty in respect of some of the charges, it is clear that the whole enquiry must be regarded as an exercise of administrative or executive functions by the Governor‑General, and the findings of the Judges must be taken to be the advice of an expert body requisitioned by the Governor‑General in accordance with the provisions of the Act.
Per Cornelius, J. (contra).‑The Act provides that the Governor‑General in making orders under section 3, does so "in his discretion" which can only be interpreted to mean that he has not to receive advice from his Ministers on the matter, or at any rate, that if he does receive advice, he is not bound by it in the slightest degree, and that his choice of action within the limits laid down by the statute is entirely unfettered. If to this choice is added the possibility of electing whether or not he will make an order of disqualification at all, in the face of a finding of guilty, it seems to me that the result will be entirely inconsistent with the important words appearing in the long title and the preamble of the Act, which indicate its purpose, namely, the necessity "to provide for the debarring from public life for a suitable period of persons judicially found guilty of misconduct." The preamble of an Act may be referred to for assistance in resolving any doubt whi0h may attach to the wording of a provision in the Act.
No. 27 of 1952
Petitioner in person instructed by Muhammad Siddiq, Attorney.
Faiyaz Ali, Advocate‑General of Pakistan (Abdul Manan Khan, Advocate, with him) instructed by Iftikhar‑ud‑Din Ahmad, Attorney, for Respondent.
No. 28 of 1953
Manzur Qadir, Senior Advocate Federal Court (S. K. Ahmad, Advocate, Federal Court, with him) instructed by Muhammad Siddiq, Attorney, for Petitioner.
Faiyaz Ali, Advocate‑General of Pakistan (4bdul Azfz, Advocate Federal Court, with him) instructed by Iftikhar‑ud‑Din Ahmad, Attorney, for Respondents.
No. 29 of 1953
M. Anwar, Advocate, Federal Court, instructed by M. A. Rehman, Attorney, for Petitioner.
Faiyaz Ali, Advocate‑General of Pakistan (Dost Muhammad Khan, Advocate, Federal Court, with him) instructed by Iftikhar ud‑Din Ahmad, Attorney, for Respondents.
Tufail A. Rahman, Assistant Advocate‑General of Sind, Under O. XLIX, rule 1 of the Federal Court Rules, 1950.
Dates of hearing : 7th, 8th, 9th, 10th, 130, 14th, 15th, 16th, 17ch and 18th April 1953.
JUDGMENT
ABDUL RASHID, C. J.‑Petitions for Special Leave to Appeal No. 27 of 1951, No. 28 of 1953, and No. 29 of 1953, raise a common question of law and can be conveniently disposed of by one judgment.
The petitioner Mr. Hamidul Huq Chowdhury (Petition No. 27 of 1951) was a Minister of the Government of East Bengal till the 25th December 1949. On that day he appears to have resigned his office. On the 29th July 1950, he received a copy of an indictment which according to his petition consisted of 258 charges and were classified under twenty heads. An enquiry under The Public and Representative Offices (Disqualification) Act, 1949, (which will hereinafter be referred to as "the Act") commenced against him on the 15th August 1950. The enquiry was conducted by a Division Bench of the Dacca High Court consisting of the learned Chief Justice and Mr. Justice Ellis. On the 26th November 1951, the Court appears to have presented its Report finding the petitioner guilty in respect of 13 charges and not guilty in respect of 7. Thereafter, a notification was issued by the Governor‑General of Pakistan disqualifying the petitioner for a period of 6 years from holding any office mentioned in section 3 of the Act and declaring that he would be ineligible for holding any office or profit under the Crown for the same period.
The petitioner Mr. M. A. Khuhro (Petition No. 28 of 1953) was Chief Minister of Sind from the 25th March 1951 till the 29th December. On that day a proclamation under section 92‑A of the Government of India Act was issued. On the 9th of January 1952, a referring order purporting to have been made by His Excellency the Governor of Sind under section 3 of the Act was issued setting up a Tribunal consisting of Mr. Justice Constantine Acting Chief Judge, of the Sind Chief Court and Mr. Justice Muhammad Bachal Memon, to hold an enquiry into allegations of misconduct against the petitioner in respect of 7 charges. The Tribunal forwarded its report on the 20th of November 1952, to the Governor finding the petitioner not guilty in respect of four charges and finding him guilty with reference to the remaining three. On the 26th January 1953, the Governor‑General of Pakistan issued an order under section 3 of the Act disqualifying the petitioner for a period of 6 years.
The petitioner Kazi Fazlullah (Petition No. 29 of 1953) became the Chief Minister of the Province of Sind on the 7th May 1950, and occupied that office till the 25th March 1951, when Mr. Khuhro became the Chief Minister and the petitioner became Minister‑in Charge of the Home Department, An enquiry was held against the petitioner in respect of 4 charges by a Tribunal consisting of Mr. Justice Constantine, Acting Chief Judge, and Mr. Justice Muhammad Bachal Memon. He was found guilty in respect of three out of the four charges and was disqualified by the Governor‑General of Pakistan under section 3 of the Act for a period of 4 years.
In the petition preferred by Mr. Chowdhury special Leave to appeal has been asked for "against the judgment and findings, of the Hon'able the High Court of Judicature pct Dacca". In the petition preferred by Mr. Khuhro, it is stated that this Court may be "graciously pleased to grant to him special leave to appeal against the findings of the Tribunal holding him guilty for misconduct and the disqualifying order based on the judicial findings". In the petition preferred by Kazi Fazlullah special leave to appeal has been asked for "against the order of the Governor‑ General of Pakistan, dated the 26th January 1953, as the disqualification has resulted in a grave mis carriage of justice".
Mr. Chowdhury argued his own case at considerable length. He contended that the enquiry held by the Dacca High Court in respect of charges of misconduct against him amounted to a trial by the High Court of Judicature at Dacca in the exercise of its ordinary original criminal jurisdiction. It was urged that the case was heard by a Division Bench of that Court in accordance with the rules of the Court and that in inquiring into charges of misconduct against him the learned Judges were exercising their ordinary functions as Judges of the High Court. The report submitted by the Court amounted to a judgment or order in an ordinary criminal matter. It was subject to an appeal, as any other order of the Dacca High Court in the exercise of its original criminal jurisdiction, to this Court under section 3 of the Judicial Committee Act of 1833. It was specifically stated by Mr. Chowdhury that he was not challenging the order of disqualification passed by the Governor‑General under section 3 of the Act and that section 6 of the Act was, therefore, inapplicable in his case. The stand taken up by him was that the order of disqualification was based on the findings of the Court, and that if the findings of the 15acca High Court were reversed by this Court the order of the Governor‑General would be automatically vacated, and he would be able, to get rid of the disqualification which has debarred him from public life for a period of 6 years.
In order to determine whether the arguments advanced by the petitioner are well‑founded, it is necessary to examine the scope, the scheme, and the purposes of the Act in some detail. The Act applies only to persons who hold office or act in the capacity of Ministers, Deputy Ministers, Parliamentary Secretaries of the Federal Government or a Provincial Govern ment, or as members of the Constituent Assembly, the Legislature of the Dominion, the Federal Legislature or a Provincial Legislature. This class consists of a very limited number of persons. The disqualifications that are imposed on the above persons prevent them from holding offices as mentioned above and further make them ineligible from being members of any local body or local authority and from holding any office of profit under the Crown. It is clear from section 3 of the Act that not only is the number of persons who can be proceeded against under this Act very limited, but that the principal penalty that can be imposed by the Governor‑General is to prevent them from becoming or remaining members of the various legislatures The ineligibility for having any office of profit under the Crown is merely a subsidiary provision. The pith and substance of the Act is that persons who are found guilty of misconduct can be debarred from becoming or remaining members of the Central or the Provincial Legislatures. The scope of the Act is further limited in that no punishment known to the ordinary criminal law of the land can be awarded to persons found guilty under the Act. No imprisonment or fine can be imposed nor can the persons found guilty of misconduct be deprived of their liberty or freedom in any other manner.
Having found that the scope of the Act is very limited and that it can only apply to a few hundred persons in a State consisting of about eighty million inhabitants, let us now turn to the scheme of the Act. The enquiry against the persons to whom the Act applies can be held either by the Federal Court or a High Court moved in this behalf by the Governor‑General or a Governor or by a Tribunal set up by the same authorities. If a Tribunal is set up, it shall consist of such two or more High Court Judges as the Governor‑General or the Governor, as the case may be, sees fit to appoint. It would be possible for the Governor General to appoint a Tribunal consisting of three High Court Judges taken from three different High Courts to make an enquiry under the Act into the conduct of a Minister. If this were done, it could not possibly be contended that the enquiry was being made by any Court in the exercise of its ordinary original criminal jurisdiction. If the enquiry under the act can be held either by a Tribunal or a High Court or the Federal Court the High Court and the Federal Court, when conducting proceedings under the Act, must be placed on the same footing as a Tribunal. They would be exercising a special jurisdiction of a novel kind and not the ordinary jurisdiction of the Court conferred on them by law, The case of Mr. Chowdhury cannot, therefore, be treated on a different footing from the cases of the other petitioners. It is impossible to hold that the provisions of the Act should be construed in a particular manner when the enquiry is conducted by a Tribunal.
Every judgment of a Court in the exercise of its original criminal jurisdiction must contain an order of some sort or another, either in favour or against the accused. As far as enquiries under the Act are concerned, the Court or the Tribunal is not entitled to pass any order at all. It can merely record findings on the various charges. The Report of the Court cannot even suggest the infliction of any penalty on the person who has been found guilty in respect of any charges. It appears to me that the object of making a reference by the Governor or the Governor‑General under the Act is to get the benefit of the judicial training and experience of High Court Judges, and to obtain a finding on questions of fact by the application of judicial processes. The legislature has thought it right that the Governor‑General or Governor should obtain such expert advice from the judiciary rather than executive or administrative officers. The whole course of proceedings, as I will show later on, is of an administrative or executive character and the opinion of the High Court Judges is sought as an assistance and an aid by high executive officers such as the Governor or the Governor‑General. The enquiries under the Act are very similar to enquiries conducted against Government servants under the Public Servants (Enquiries) Act, 1850.
The enquiry under the Act must be confined to charges of bribery, corruption, jobbery, favouritism, nepotism, wilful mal -administration, wilful misapplication or diversion of public moneys or moneys collected, whether by public subscription or otherwise and any other abuse of official power or position. It will be noticed that a large number of acts are included in the term `misconduct' which are unknown to any system of criminal jurisprudence. What is more, a great many of these terms elude precise definition. Jobbery, favouritism, nepotism, wilful mal -administration, and other abuse of official power and position have not been defined in the Act. No doubt the Judges of the High Court or the members of the Tribunal are required to give findings on these matters, and they would somehow have to surmount the difficulty of there being no precise definition in the Act of these terms. It is clear that in giving findings in such an enquiry the Judges would be guided by general considerations of justice, equity, and good conscience. The enquiry would be a judicial enquiry only in the sense that the procedure followed would be that prescribed by the Code of Criminal Procedure with a few minor alterations indicated in the rules.
The necessity of expedition and finality has been emphasized in section 4 of the Act which lays down "that where any person becomes disqualified as provided in section 3 his office, seat or place as such minister, deputy minister, parliamentary secretary .or member shall become vacant forthwith". It appears that the intention of the legislature was that as soon as a member is disqualified his seat should be filled up by means of a by‑election at an early date, and that the constituency which he represents should not be deprived of representation in the various legislatures for an indefinite period of time. Finality at an early date should be attached to the order for disqualification, otherwise, valuable political rights would be denied to a large number of persons. If a person is disqualified and his seat is filled up by means of a by‑election, it would be…
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