PLJ 2009 SC 711
[appellate Jurisdiction]
Present: Muhammad Moosa Khan Leghari,
Syed Sakhi Hussain Bukhari & Sheikh Hakim Ali, JJ.
FEDERATION OF PAKISTAN through Secretary Cabinet Division, Islamabad --Petitioner
versus
Mian MUHAMMAD SHAHBAZ SHARIF and others--Respondents
Civil Petition No. 878 of 2008, CMA 95 of 2009, decided on 25.2.2009.
(On appeal from the judgment/order dated 23.6.2008 of the Lahore High Court Lahore, passed in W.P. No. 6470/2008).
Representation of People Act, 1976 (LXXXV of 1976)--
----Ss. 11, 11-A, 12, 14(5), 14(5-A) 15, 99 & 103-AA--Constitution of Pakistan , 1973, Arts. 185, 199, 187, 224, 225, 62 & 63--Appellate jurisdiction of the Supreme Court--Verdict of the election tribunal and order of election commission, challenge to in constitutional jurisdiction--Writ petition was accepted but the matter was kept pending before the Election Tribunal--Remanded order was challenged in Supreme Court--After withdrawal of objections that he propagated and acted in the manner prejudicial to the integrity and independence of judiciary, and that he submitted an incorrect declaration within the terms of Arts. 62 and 63 of the Constitution--Nomination papers of candidate were accepted by the Returning Officer--In capacity of an elector and a citizen of Pakistan submitted an application u/S. 14(5-A) of the Act, thereby bringing to the knowledge of Appellate Tribunal information/material regarding disqualification of candidate, and praying therein to issue show cause as to why his nomination papers might not be rejected--Candidate did not respond to the notices hence was proceeded exparte--Matter was referred to Election Commission--Appeal was not decided by tribunal within the period specified in the election schedule the same stood rejected--Challenged through writ petition--High Court directed to constitute an other bench comprising three judges of HC and respondent was allowed to perform his functions as Chief Minister--Federation as well as Province and Speaker Punjab Assembly filed CPLAs against the judgment of High Court--Distinction between the provisions of Ss. 14(5) & 14 (5-A) of the Act--Held: Distinction had ben provided between sub-sections (5) and (5-A) of S. 14 of the Act--Right of an appeal before the tribunal has been given to a candidate to challenge the rejection of his nomination papers, or to call in-question the acceptance of nomination papers of his rival candidate on the grounds of disqualifications whereas the scope of scrutiny under sub-section (5-A) is wide enough--Tribunal can reject the nomination papers of a candidate on the basis of any "information" received by it or any "material" brought to its knowledge by any source, after forming an opinion regarding his disqualification, and after considering such view point of the candidate--Words "appeal shall be summarily decided within such time as may be notified by commission are consciously missing from S. 14--Time limit specified under sub-section (6) for deciding the appeal, should also be made applicable to sub-section (5-A) was patently misconceived--Intention of the legislature is abundly clear that neither the decision of the tribunal has to be made "summarily" nor it has to be made within time period specified by the Election Commission--The phrase "on its own motion" even authorises and empowers the tribunal to gather the information from electronic or print media, and that the decision of a tribunal could not be made subject to time limit prescribed in the notification issued by the election commission as time limit had been only provided for appeals--Intention of the law-makers is quite clear and there is no ambiguity in the provisions to show that the general public has been given a right to question the qualifications of their representatives in order to ensure the transparency in the election and to prevent the persons otherwise disqualified to reach the law-making bodies--A right given to all the electors of the constituency u/S. 12 of the Act to propose and second the name of a person is not an unfettered right, and can only be exercised by an elector in respect of a duly qualified person--Election tribunal is vested with the powers to call upon a candidate on the basis of any information or material brought to its knowledge by any source viz. a body corporate, juristic or natural person, to show cause as to why his nomination papers may not be rejected on account of disqualifications enumerated in the Act and as contained in the Constitution, and that decision in such matter shall not be governed by sub-section (6) of the Act; but the tribunal shall take effective steps to adjudicate in election dispute in an expeditious manner within a reasonable time--Chief election commissioner erroneously treating the information place before election tribunal--Therefore, deemed to have been rejected, was legally untenable and against the provisions of law; the view taken by High Court in this regard was legally valid and thus unexceptionable.
[Pp. 740, 742, 743 & 744] A, B, F, G, H, I & J
PLD 2007 SC 52; 1994 SCMR 1299; 2004 SCMR 1602; PLD 2005 SC 52; 2006 SCMR 1356; 2006 SCMR 1713; PLD 2008 SC 85; PLD 2008 SC 429; PLD 2008 SC 313; PLD 2008 SC 487; PLD 2008 SC 779; PLD 2008 SC 735; PLD 2008 SC 730.
Representation of People Act, 1976 (LXXXV of 1976)--
----S. 14 (15-A)--Term "source" appearing in Section 14(5-A)--Contention that the term "source" is limited to a body corporate a juristic person and does not include a natural person, was turned down--Held: Argument was manifestly erroneous having no force with reference to different dictionaries, it was concluded that the term "source" had a very wide meaning and it included a person, a book or any other document that could be used to provide information evidence.
[Pp. 740, 741 & 742] C & D
New Webster's Dictionary; Oxford English Dictionary; Words and Phrases by West Publishing Co.; Dictionary/Theasurus; Chambers 21st Century Dictionary & Black Law Dictionary ref.
General Clauses Act, 1897 (X of 1897)--
----S. 3(39)--Pakistan Penal Code, (XLV of 1860), S. 11--Words and phrases--Word `person' with reference to dictionary meaning--an individual human being the living body of a human being--A human being an entity, the living body of a human being--Definition of "person" would include artificial person or legal entity the definition of "person" would include artificial person or legal entity and natural persons viz. human being men or women, hence, the information or material could be brought to the knowledge of the tribunal by any juristic or natural person to question the qualifications of a candidate whose nomination papers had been accepted. [P. 742] E
Press Clippings--
----Press clippings were valid documents and could be taken into consideration--Validity--Press statements were not only considered but also reproduced in the judgments in order to glance over the language and tenor expressed therein--There was no denial on the part of the speaking respondent so far as continuously making outrageous remarks against the judiciary in newspapers were concerned. [P. 756] U
PLD 1976 SC 57; PLD 1993 SC 473 & PLD 1998 SC 388, ref.
Constitution of Pakistan , 1973--
----Arts. 185, 199 & 225--Representation of the People Act, 1976, Ss. 11, 11-A, 12, 14(5) (5-A), 15, 99 & 103-AA--Constitutional jurisdiction--Pre-election disqualification of a candidate--No alternate remedy--Maintainability of writ petition against orders of Returning Officer, election tribunal as well as election commission--Contention that the petitioner was neither a candidate nor a voter of the constituency, and thus being a stranger to the proceedings, was not an aggrieved person within the contemplation of Art. 199 of the Constitution to maintain the writ petition, was repelled--Held: Writ petition challenging the pre-election disqualification of a candidate before the completion of election process was maintainable in law--When the aggrieved person had no alternate remedy and being not a candidate, could not challenge the pre-election disqualification by way of election petition under Art. 225 of the Constitution against a candidate respondent who opted not to appear and defend his case before respondent election tribunal or even before High Court to controvert the averments made in the petition, thereby causing the facts unrebutted and undisputed, High Court certainly would have the jurisdiction to adjudicate the matter in its Constitutional jurisdiction available under Art. 199 of the Constitution.
[Pp. 744 & 746] K, L, M & N
PLD 2008 SC 313 & PLD 2008 SC 735, ref.
Legal Maxim--
----Semper Proesumitur Pronegante--The doctrine "Semper Proesumitur Pronegante" (Presumption is always in favour of one who denies or in favour of the negative) pressed into service by Advocate General would not be attracted in the case for the simple reason that there was no denial, even otherwise the facts were borne out from the record. [P. 746] O
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 14(5-A)--Constitution of Pakistan , 1973, Art. 199 (1)(b)(ii)--Writ of quo warranto, maintainability thereof--Multiplicity of litigation--Contention suggesting the filing of a writ of quo warranto would amount to negate the provisions of S. 14(5-A) of the Act, regarding inherent disqualification of respondent before the election tribunal prior to completion of the election process; the suggestion being unreasonable and contrary to the rule of advancement of cause of justice, if accepted, was bound to encourage multiplicity of litigation which is a way tantamounted to denial of justice. [P. 746] P
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 14(5)--Constitution of Pakistan , 1973, Art. 225--Rejection of nomination papers in general election--Remedy of appeal, not availed of--Principle of acquiescence--Attainment of finality available to the orders of Returning Officer--Respondent submitted an application before election commission thereby raising a grievance that the returning officer rendered a dishonest decision and committed a grave error of law by rejecting his nomination papers, the ECP informed respondent that order of Returning Officer was appealable u/S. 14(5) of the Act, 1976; as such CEC lacked jurisdiction in the matter--Nomination papers of the respondent were rejected in general elections on the grounds:
(i) That he remained fugitive from law.
(ii) That the loans obtained by the candidate and his family members remained unpaid.
(iii) That he deemed and ridiculed the judiciary.
(iv) That respondent could not be considered righteous.
Respondent did not file appeal and obviously acquiesced is, meaning thereby that the order disqualifying the respondent attained finality--No plausible or convincing arguments were advanced to justify the subsequent acceptance of nomination papers of the respondent in the bye-elections while there was a clear cut acquiescence on the part of respondent to his disqualification in the general elections.
[Pp. 748, 750, 752 & 753] Q, R & S
PLD 2000 SC 869; 2000 SCMR 1969 & PLD 2003 646, ref.
Constitution of Pakistan , 1973--
----Art. 63(1)(g)--Representation of the People Act, 1976, Ss. 12, 14, & 99(g)--Humilitation and ridiculing of judiciary--Distinction between fair comments/bona fide criticism and purposeful, outrageously and deliberate defamation/ridiculousness coupled with malicious persecution--Remarks against the judiciary were made in respect of the judiciary and not against the judiciary as a whole, was neither convincing nor legally justified, hence not acceptable--Material reproduced in the shape of press clippings would by itself speak of derogatory and offensive language demonstrating humilitation, persecution and ridicule tainted with malice for the achievement of ulterior purpose--Such wicked and insulting statements in the press were sufficient to bring such mischief within clause (1)(g) of Art. 199 of the Constitution and S. 99(g) Act, 1976 as the respondent not only propagated to bring into ridicule the judiciary in the past but was till then continuing to do so unabatingly--Respondent convicted in contempt of Court case, was undeniably appointed to occupy a responsible judicial/quasi judicial position by respondent--It was observed that the respondent was continuously making well determined and decisively resolute efforts to ridicule, defame, harass, down grade and humiliate the judiciary and the loans obtained by him exceeding the amount of two million rupees had remained unpaid besides a pending case had not been declared in the statement submitted alongwith nomination form; as such, he was disqualified to be elected or chosen as a member provincial assembly.
[Pp. 753, 756, 757, 758] T, V, W, X & Y
Civil Procedure Code, 1908 (V of 1908)--
----O. I, R. 10--Constitution of Pakistan , 1973, Arts. 199 & 185--Representation of the People Act, 1976, S. 14--Locus standi for impleadment in writ petition or to maintain a civil petition in Supreme Court regarding election dispute--Election dispute is purely a matter and private cause between the electors and candidate--Provincial Government functions in continuity and perpetuity, and its functioning cannot hampered on account of functioning cannot be hampered on account of change of personalities, may it be governor chief minister, a provincial minister or a secretary to Govt. in no case perpetuity is disturbed--Chief secretary acted in a overzealous manner, overstepped his authority, and pushed the Province of Punjab to defend the case of the sitting Chief Minister; and there was a plea for initiating contempt proceeding for the presumption that he also shared the views of respondent so far as maligning and humiliating the judiciary was concerned--Contempt proceedings against Chief Secretary were withheld--Act of Chief Secretary, Punjab was apparently subversive of discipline constituting misconduct, but the matter was left open to the competent authority--Held: High Court was absolutely justified in rejecting the application moved under Order I, Rule 10, CPC, similarly the province had no locus standi to invoke the jurisdiction of Supreme Court; therefore, application as well as civil petition being not maintainable, were dismissed. [Pp. 758 & 759] Z & BB
Civil Procedure Code, 1908 (V of 1908)--
----O. I, R. 10--Constitution of Pakistan , 1973, Arts. 199 & 185--Representation of the People Act, 1976--S. 14--Locus standi of the speaker of assembly to be impleaded in writ petition and CPLA filed under Arts. 199 and 185 respectively, and to maintain civil petition--Held: Speaker assembly would not be entitled to espouse the individual cause of a member or leader of the House regarding his personal disqualification to be elected as a member. [P. 759] AA
PLD 1955 Sindh 56; PLD 1955 FC 240; PLD 1969 L 602; 1999 SCMR 2883 & PLD 1988 SC 416, distinguished.
2003 SCMR 181; 2003 SCMR 29; 2003 SCMR 1524; PLD 2002 S.C. 491; PLD 2002 S.C. 1113; 2000 SCMR 440; 2000 SCMR 556; 1999 SCMR 105; PLD 1997 S.C.823; 1994 SCMR 1555; 1991 SCMR 2114;
PLD 1993 S.C. 791.
Constitution of Pakistan , 1973--
----Arts. 185(3) & 199--Leave to appeal against the judgment on behalf of Federation--Maintainability of--Federation was a pro-forma party in writ petition wherein neither any relief was granted against the federation nor any direction was issued to it so as to maintain the instant civil petition--Federation was neither aggrieved party nor had any cause of action to challenge the judgment--Held: Respondent was disqualified to be elected or chosen as member provincial assembly as he had suffered from an inherent disqualification--Order of the Returning Officer was legally unsustainable, therefore, was set aside the judgment of High Court remanding the case to chief election commissioner for constituting a three members tribunal, in the circumstances of the case, was untenable and of no legal effect, as it would serve no purpose except to protect the proceedings, when especially the respondent had taken determinative decision not to appear before any forum--Respondent despite service did not appear before election tribunal and in High Court and he even opted not to appear before the Supreme Court--Notification issued by Election Commission declaring respondent to be returned candidate was also set aside--Leave accepted. [Pp. 759, 760 & 761] CC, DD & EE
PLD 1994 SC 512, ref.
Sardar Muhammad Latif Khan Khosa, Attorney General for Pakistan on Court call (in CMA 95 of 2009).
Agha Tariq Mahmood, DAG and Mr. Arshad Ali Chaudhry, AOR for Petitioner (in CMA 95 of 2009).
Nemo for Repsondents No. 1-4 (in CMA 95 of 2009).
Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC For Respondent No. 5 (in CMA 95 of 2009).
Mr. Shahid Orakzai (In person) for the Applicant (in CMA 95 of 2009).
Khawaja Haris Ahmad, A.G. Punjab for Petitioner (in C.P. No. 657-L/2008).
Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC and Dr. Mohyuddin Qazi, ASC Respondent No. 1 (in C.P. No. 657-L/2008).
Nemo for Respondents No. 2-5 (in C.P. No. 657-L/2008).
Agha Tariq Mahmood, DAG Respondent No. 6 (in C.P. No. 657-L/2008).
Mr. Ashtar Ausaf Ali, ASC; Mr. Muhammad Raza Farooq, ASC & Mr. Arshad Ali Chaudhry, AOR for Petitioner (in C.P. No. 803/2008).
Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC for Respondent No. 1 (in C.P. No. 803/2008).
Nemo for Respondents No. 2 to 5 (in C.P. No. 803/2008).
Agha Tariq Mahmood, DAG for Respondent No. 6 (in C.P. No. 803/2008).
Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC for Petitioner (in C.P. No. 905 of 2008).
Nemo for Respondents No. 1-4 (in C.P. No. 905 of 2008).
Agha Tariq Mahmood, DAG for Respondent No. 5 (in C.P. No. 905 of 2008).
Khawaja Haris Ahmad, ASC for Petitioner (in C.P. No. Nil/2008).
Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC for Respondent No 1 (in C.P. No. Nil/2008).
Nemo for Respondents 2 to 5 (in C.P. No. Nil/2008).
Agha Tariq Mahmood, DAG for Respondent No. 6 (in C.P. No. Nil/2008).
Dates of hearing: 6.1.2009, 14.1.2009, 15.1.2009, 19.1.2009 to 22.1.2009, 27.1.2009 to 30.1.2009, 2.2.2009 to 4.2.2009, 9.2.2009 to 12.2.2009, 16.2.2009 to 20.2.2009, 23.2.2009 to 25.2.2009.
Judgment
Mohammad Moosa Khan Leghari, J.--The above titled petitions are directed against the judgment dated 23.6.2008 passed by the Lahore High Court, Lahore in Writ Petition No. 6470/2008. By the aforesaid judgment, the verdict of the Election Tribunal dated 31.5.2008 and the order of the Election Commission of Pakistan dated 1.6.2008 were declared to be without lawful authority.
2. Precisely stated, facts forming background of filing of the petition are that consequent upon notifying the election schedule by Election Commission of Pakistan (Respondent No. 4) for holding the bye-elections of National Assembly and Provincial Assemblies on 26.6.2008, Respondent No. 1, Mian Muhammad Shahbaz Sharif submitted his nomination papers for the seat of PP-48 Bhakkar-II. It appears that one Malik Nazar Abbas, a candidate from the same constituency, filed an objection petition alleging therein that Respondent No. 1 propagated and acted in the manner prejudicial to the integrity and independence of judiciary, he defamed and brought judiciary of Pakistan into the ridicule and that he has submitted an incorrect declaration claiming therein that he fulfills the qualifications laid down in Article 62 of the Constitution of Pakistan and is not subject to any of the disqualifications as specified in Article 63 of the Constitution of the Islamic Republic of Pakistan. The nomination papers of Respondent No. 1 were however, accepted by the Returning Officer of the said constituency (Respondent No. 2) vide his order dated 16.5.2008 on the ground that the objections raised by Malik Nazar Abbas were withdrawn by him through his statement dated 16.05.2008.
3. Respondent No. 5 Syed Khurram Shah (petitioner in CPLA 905/2005) in capacity of an elector and citizen of Pakistan and claiming to be a firm believer in independence and integrity of the judiciary as well as the armed forces, submitted an application under Section 14(5-A) of the Representation of People Act, 1976, thereby bringing to the knowledge of the Election Appellate Tribunal information/material regarding disqualification of Respondent No. 1 from being elected as a Member, praying therein to call upon Respondent No. 1 to show cause as to why his nomination papers may not be rejected and consequently for rejection of his nomination papers. It seems that the notices of the Tribunal, issued against Respondent No. 1 were not responded to, hence Respondent No. 1 was proceeded ex-parte.
4. Learned Election Appellate Tribunal comprising of two learned Judges of the Lahore High Court, Lahore delivered a divergent decision. One of the Members of the Tribunal Muhammad Akram Qureshi J. declared the respondent to be disqualified while the other Member of the Tribunal Hafiz Tariq Naseem J. upheld the order passed by the Returning Officer, whereby Respondent No. 1 was declared qualified. The matter was then referred to Election Commission of Pakistan, Respondent No. 4. The Election Commission of Pakistan vide Memo dated 1st June, 2008 communicated the observations of the Chief Election Commissioner revealing therein that in view of the mandatory provisions of Section 14(6) of the Representation of People Act, 1976, an appeal not disposed of within the period specified in the election schedule, shall be deemed to have been rejected. It was stated that since according to the schedule notified on 7th May, 2008, the last date for deciding the appeals against the acceptance or rejection of nomination papers by the Appellate Tribunal in the instant case was 31st May, 2008, which date having already expired, the appeal stood rejected.
5. The orders of Respondents No. 2,3 and the Notification dated 03.06.2008 issued by Respondent No. 4 were challenged before the Lahore High Court, Lahore through Writ Petition No. 6470/2008 by Respondent No. 5, Syed Khurram Shah (the petitioner in CPLA 905/2008).
6. During the pendency of the petition, C.M. No. 1260/2008 was moved on behalf of the Province of Punjab
However, after hearing the parties a full Bench of Lahore High Court, Lahore vide order dated18.06.2008, announced on 20.06.2008 dismissed the applications moved under Order 1 Rule 10 CPC, holding that the applicants were neither necessary nor proper parties.
7. As far as the main petition is concerned, the Respondent No. 1 despite service opted not to appear/be represented and remained ex-parte. A full Bench of the Lahore High Court, Lahore, which was seized of the matter, after hearing the learned counsel for the petitioner (Respondent No. 5) and Deputy Attorney General, came to the conclusion that the learned Election Appellate Tribunal and the Chief Election Commissioner/Election Commission of Pakistan fell into error by treating the application of the petitioner viz. Syed Khurram Shah as an appeal and tagged the same with an other appeal, subject matter of the impugned order. Consequently learned Full Bench of the High Court vide judgment dated 23.06.2008 set aside the orders of the Chief Election Commissioner/Election Commission of Pakistan dated 1.6.2008 and that of the Election Appellate Tribunal dated 31.5.2008 by declaring the same to be unlawful. Accordingly the learned Chief Election Commissioner was required to constitute another Bench comprising three Judges of the High Court to decide the application of the petitioner viz. Syed Khurram Shah (Respondent No. 5). Respondent No. 1 was, however, allowed to continue performing his function as a Chief Minister and Member Provincial Assembly of Punjab.
8. The above judgment of the Full Bench of Lahore High Court is the subject matter of the instant petitions. The Federation has prayed for grant of leave and setting aside the judgment.
9. Besides that, leave to appeal has been sought by Speaker Provincial Assembly, Province of Punjab
10. We have heard Agha Tariq Mehmood, learned DAG appearing for the Federation, Khawaja Haris Ahmad, learned Advocate General, for Province of Punjab , Mr. Muhammad Raza Farooq, ASC appearing for Speaker Provincial Assembly, Punjab and Sahibzada Ahmad Raza Khan Qasoori, Sr. ASC who represented Respondent No. 5, Syed Khurram Shah. Sardar Muhammad Latif Khan Khosa, learned Attorney General for Pakistan was called upon to address the Court and to assist on the points of law involved in the controversy.
11. Learned Deputy Attorney General contended that as per mandatory provisions contained in sub-section (6) of Section 14 of the Representation of the People Act, 1976 (hereinafter referred to as the Act) after expiry of the period stipulated for deciding the appeals under Section 14(5) of the Representation of People Act, 1976, the application filed by Respondent No. 5 before the Election Appellate Tribunal stood rejected. In the circumstances, he argued that the observation given by the learned Chief Election Commissioner was proper and the direction of the High Court for re-constitution of the Election Appellate Tribunal, after the changed situation was beyond jurisdiction, as such was unsustainable. With regard to locus-standi of the Federation to maintain the instant petition learned DAG argued that Respondent No. 5 himself impleaded the Federation in his writ petition before the High Court, as such the present petition by the Federation was legally competent.
12. Khawaja Haris Ahmad, learned Advocate General, Punjab contended that the judgment of the full Bench was biased due to inclusion of one of the learned Judges on the Bench, the same was non-speaking judgment and was delivered without hearing and considering the view point of Respondent No. 1. He argued that Respondent No. 5 was neither a candidate nor even a voter of that constituency and thus was not an aggrieved person within the contemplation of Article 199 of the Constitution of Islamic Republic of Pakistan to maintain the writ petition before the High Court, as he was a stranger to the proceedings. Referring to the election schedule notified by the Election Commission of Pakistan, learned Advocate General submitted that last date for filing the appeals before the Election Appellate Tribunal was 24.05.2008 and that no appeal was filed by respondent Syed Khurram Shah till such time, as such the said appeal or application was patently barred by time. Learned Advocate General argued that the objections before the Returning Officer were filed by Malik Nazar Abbas, who was the candidate but at the time of scrutiny he withdrew those objections with the result that the Retuning Officer has no option except to accept the nomination papers of Respondent No. 1 and that his action was just, proper and legal. He submitted that the term "source" as appearing in sub-section (5-A) of Section 14 of the Act, is limited to a body corporate/a juristic person and does not include a natural person. He argued that unless it is established that a candidate whose nomination papers have been accepted, is a defaulter of loans, taxes, government dues or utility charges or his any loan has been written off, his nomination papers could not be rejected. He further submitted that the above disqualifications were exhaustive and that sub-section (5-A) would not cover other kind of disqualifications.
In any case he argued that the Tribunal, upon receipt of the information in the nature as enumerated in the above sub-section, was under the obligation to issue show-cause notice to the candidate concerned, containing explicit allegations, which course was missing in the present case. He argued that writ petition was filed by Respondent No. 5 in the High Court on 4.6.2008, while the notification declaring Respondent No. 1 as a returned candidate, was already issued by the Election Commission of Pakistan on 3.6.2008 who was subsequently sworn in as a Chief Minister of the Province of Punjab
Learned Advocate General pressing into service the rule of Ejusdem Generis and referring to certain paragraphs from the book "Understanding Statute" authored by Mr. S.M. Zafar, "Principle of Statutory Interpretation" by Guru Prasanna Singh (Pages 280-281), a passage from "Interpretation of Statutes" by N.S. Bindra's book, strenuously argued that the rule of Ejusdem Generis was attracted to the provisions of sub-section (5-A) of Section 14 of the Act, and by extending harmonious construction, the time limit prescribed for deciding the appeals under sub-section (5) of the Act will be fully applicable to the applications filed under sub-section (5-A) of Section 14, as any interpretation to the contrary was bound to negate the provisions of the Statute and would lead to the absurdities, which had to be avoided. The cases titled: (i) Ameer Khatoon Vs. Faiz Ahmad and others (PLD 1991 SC 787) (ii) Abdul Qayyum and another Vs. Niaz Muhammad and another (1992 SCMR 613) (iii) Khalid Qureshi and 5 others Vs. United Bank Ltd. (2001 SCMR 103) were referred to advance the above arguments.
Relying upon the legal maxim "Semper Proesumitur Pronegante" (Presumption is always in the favour of the one denying or in favour of the negative), learned Advocate General, Punjab added that the judgment of the High Court was against the intention of law-makers as the process of the election has already been completed, as such there was no legal justification for constituting a three Members' Tribunal to hear the appeal. He submitted that though the Chief Election Commissioner was vested with the powers to extend the schedule of election as provided under Section 11-A of the Act, yet such power had to be exercised in exceptionally rare circumstances, which was manifestly lacking in the present case. Learned Advocate General strenuously emphasized that the intention of the law-makers was to complete the election process in most expeditious manner, for which time limit for every major step was stipulated in the Statute itself. To supplement the above arguments beside referring to the election schedule notified by the Election Commission, he also referred to Article 224 of the Constitution and the provisions of Section 103-AA of the Act to stress that a period of 60 days has specifically been provided in sub-section (2) of the said section to the Election Commission for declaring a poll void by reasons of grave illegalities or violation of the provisions of law, on being satisfied after a summary inquiry as deemed necessary. Learned Advocate General argued that there was no intention on the part of the law-makers to provide unfettered right to the general public to challenge the candidature of a person and, that it could not be assumed that there would be no time limit to decide such kind of applications. If it is so considered, it would otherwise be unreasonable and illogical besides adding and advancing absurdities and anomalies to the statutory provisions. It was contended that there being no provision in the Representation of People Act for constituting a fresh Election Tribunal, at the most what the Lahore High Court could have done, was to have referred the matter to the Election Commission for further action by treating the application of Respondent No. 5 as an application under sub-section (5-A) and not an appeal under Section (5) of Section 14 of the Act. He further submitted that after the election process having been completed and Respondent No. 1 having been elected as a Chief Minister, remedy of Respondent No. 5 was to file a writ of quo-warranto but in any case could not maintain the present proceedings. In support of the above contentions and to arrive at correct conclusion learned Advocate General referred the following case laws:-
i) Hafiz Hamdullah Vs. Saifullah Khan and others (PLD 2007 SC 52)
ii) Ghulam Mustafa Jatoi Vs. Additional District & Sessions Judge/Returning Officer, NA 158, Naushero Feroze and others (1994 SCMR 1299)
iii) Muhammad Safdar Abbasi Vs. Aamir Yar Malik and 3 other (2004 SCMR 1602)
iv) Ayatullah Dr. Imran Liaqat Hussain Vs. Election Commission of Pakistan and others (PLD 2005 SC 52)
v) Ahad Sharif @ Muhammad Ahad and another Vs. Javed Tariq and others, (2006 SCMR 1356)
vi) Faqir Abdul Majeed Khan Vs. District Returning Officer and others (2006 SCMR 1713)
vii) Rana Muhammad Hayat Khan Vs. Rana Imtiaz Ahmad Khan (PLD 2008 SC 85)
viii) Ch. Muhammad Arif Hussain Vs. Rao Sikandar Iqbal and 10 others (PLD 2008 SC 429)
ix) Intesar Hussain Bhatti Vs. Vice Chancellor, University of Punjab , Lahore and others (PLD 2008 SC 313)
x) Syed Nayyar Hussain Bukhari Vs. District Returning Officer, NA-49, Islamabad and others (PLD 2008 SC 487)
xi) Aftab Shahban Mirani and others Vs. Muhammad Ibrahim and others (PLD 2008 SC 779)
xii) Let. Gen. (R) Salahuddin Tirmizi Vs. Election Commission of Pakistan (PLD 2008 SC 735)
xiii) Syed Fakhar Imam Vs. Chief Election Commission of Pakistan and others (PLD 2008 SC 730)
To explain the factum of the rejection of nomination forms of Respondent No. 1 in the general election learned Advocate General submitted that rejection of nomination papers of Respondent No. 1 in the general election would create no bar or estoppel so far as the acceptance of nomination papers in the bye election is concerned. He explained that allegations with regard to criticizing the judiciary were against the person of a specific judge and not against the judiciary as mentioned in the order of rejection dated 01.12.2007 passed by the Returning Officer in the general elections. He further submitted that the criminal case referred to in the rejection order stood decided wherein Respondent No. 1 was acquitted. He argued that the perusal of Lahore High Court’s judgment PLD 2003 Lahore , 646 did not disclose that Respondent No. 1 was a defaulter of loans. Referring to the judgment reported in PLD 2000 Supreme Court 869, he submitted that there was no verdict of guilt of corruption against Respondent No. 1 in the said judgment. On querry of the Court, learned Advocate General, Punjab did not deny the appointment of one Khalid Mehmood who was convicted for contempt of this Court as reported in 2000 SCMR 1969 on the post of judicial/quasi-judicial nature by the Provincial Government headed by Respondent No. 1 but stated that the incumbent was being removed from such official position. So far as the question of un-paid loans on the part of Respondent No. 1 was concerned learned Advocate General submitted that there had been mutual settlement/compromise between the respondent's project i.e. the debtors, and the creditor Banks, yet he candidly conceded that he was not in a position to take conclusive stand with regard to fulfillment of the obligations or the repayments of loans by Respondent No. 1.
As regards to the locus-standi of the Province of Punjab to become a party or to maintain a petition learned Advocate General, Punjab argued that after being declared as a returned candidate by Election Commission of Pakistan vide notification dated 03.06.2008, Respondent No. 1 was elected as Chief Minister of Punjab and was functioning as such. He submitted that the governance and functioning of Government of Punjab was likely to be affected by any adverse decision of the High Court, therefore Province of Punjab was a necessary party, which conferred a right upon the government and prompted the Province of Punjab to move an application under Order 1 Rule 10 CPC before the Lahore High Court seeking impleadment as a respondent party. Learned Advocate General, Punjab submitted that a distinction has to be drawn with regard to the election dispute arising during the election process and the post-election process whereby the election is held and notification of a validly elected person is published in the gazette by the Election Commission of Pakistan. Learned Advocate General, Punjab during the arguments candidly conceded that the election dispute with regard to qualification or otherwise concerning a candidate was a personal dispute yet he argued that after having been validly elected, such elected person can be defended by any one, even by any Member of public as it would turn into a public interest litigation. He argued that the Chief Secretary being the official head of Secretariat of the Government of Punjab, and according to the Rules of Business of the Government of Punjab being a coordinator of all the Government Departments and at the helm of affairs was quite competent to file the application for impleadment and also to maintain the Civil Petition before this Court. Learned Advocate General in support of his above contentions has referred to various Rules of Business of the Government of Punjab. However, at the end of his argument was at pains to satisfactorily reply as to how the Province of Punjab was going to be adversely affected by the judgment of the Lahore High Court and/or the dispute relating to qualification and disqualification of Respondent No. 1 Mian Muhammad Shahbaz Sharif was likely to hamper and/or disrupt the functioning of governance of the Province.
13. Mr. Muhammad Raza Farooq, ASC who advanced arguments on behalf of Speaker Provincial Assembly, Punjab . (Mr. Ashtar Ausaf Ali, ASC could not attend on account of medical ground) adopted all the arguments addressed by Khawaja Haris Ahmed, learned Advocate General and further contended that consequent upon his notification as Member Provincial Assembly Respondent No. 1 was chosen as Leader of the house and taken oath as Chief Minister, Punjab on 06.06.2008, therefore, the application was filed before the Lahore High Court, Lahore by Speaker, Punjab Assembly under Order 1 Rule 10 CPC for impleadment as a respondent.
Arguing the point of locus-standi he contended that it was responsibility of the Speaker to protect and preserve the rights of a Member as he is the custodian/guardian of the entire house. Enumerating the duties of the Speaker learned counsel submitted that the Speaker maintains the order and decorum of the house as per Rule 14 of the Rules of Business of the Provincial Assembly, Punjab . He being representative of the rights of the Members, has to safeguard their interest and has duty and powers to conduct the proceedings of the house. The Speaker is the spokesman of the house in relation to the Crown, the House of the Lords and other authorities and persons out side the Parliament. Relying upon Eskine May's Treatise on the law, privileges, proceedings and usages of Parliament (22nd Edition page 188) states that the Speaker holds and enjoys place and status of prominence. He has also referred to the duties of the Speaker from Mr. A.K. Brohi's book "Fundamental Rights of Pakistan". Referring to Rule 90 of the Rules of Procedure and Conduct of business in the National Assembly 1992 learned counsel submited that the Speaker has got power to summon a Member in custody arrested on the charge of non-bail able offence to attend a sitting or sittings of Assembly or meeting if he considers his presence necessary. In view of the above, learned counsel states that same powers shall be deemed to have been conferred upon Speaker of Provincial Assembly. He submits that for this reason Speaker has right to challenge the act of dissolution of Assembly. For the said purpose he relied upon Moulvi Tamizuddin Khan Vs. Federation of Pakistan (PLD 1955 Sindh 56), Federation of Pakistan and others. Vs. Moulvi Tamizuddin (PLD 1955 F.C 240). Learned ASC argued that the Speaker in the instant case is acting as a shield to protect the rights of a Member as he has the obligations to exercise parental jurisdiction for his Members even outside the House. Referring to Article 63(2) of the Constitution, learned ASC contended that Speaker has got the power to take a decision as to whether a Member has been rendered disqualified. Reference is made to Ghulam Muhammad Mustafa Khar Vs. Chief Election Commissioner of Pakistan and others (PLD 1969 Lahore 602). It is contended that the Speaker had "sufficient interest" in the matter to become a necessary party. In order to determine the sufficient interest learned counsel submits that even a civic or community environmental and cultural interest has been held to be "sufficient interest" as laid down by this Court in Ardeshir Cowasjee’s case reported in 1999 SCMR 2883. The same principle can be deduced from Ms. Benazir Bhutto's case reported in PLD 1988 SC. 416. Learned counsel vehemently argued that in the given circumstances Speaker was a necessary party, however, in any event the Speaker could be deemed to be a proper party, thus had a right to be impleaded as such, as it was necessary for just decision of the case. Besides others, the learned ASC has referred to the following judgments of this Court, which in his view would strengthen the case of his party and could help arriving at a just decision.
Riaz Hussan and others vs. Muhammad Akbar and others 2003 SCMR 181, Syeda Tahira Begum and another v. Syed Akram Ali and another 2003 SCMR 29, Jamila Pir Buksh and others v. Appellate Authority and others 2003 SCMR 1524, Muhammad Anwar Khan and five others v. Chaudhry Riaz Ahmed and five others PLD 2002 S.C. 491, Rauf Qadri v. State Bank of Pakistan, PLD 2002 S.C. 1113, Nazir Ahmed and another v. Mohammad Din and another 2000 SCMR 440, Barkat Ali v. Mohammad Ihsan Irshad 2000 SCMR 556, Zahoor Ahmed vs. Mehra through legal heirs and others 1999 SCMR 105, Mahmood Ali Butt v. Inspector General of Police Punjab and 10 others PLD 1997 S.C.823, Jane Margaret William vs. Abdul Hamid Mian 1994 SCMR 1555, Chaudhry Akbar Ali vs. Secretary, Ministry of Defence, Rawalpindi 1991 SCMR 2114, Asla vs. Abdur Rehman, 1994 CLC 1388, Sh. Rashid Ahmed vs. The Election Tribunal, Lahore High Court and another, PLD 1993 S.C. 791.
14. Mr.Shahid Orakzai after advancing his arguments on the subject of recusal at length has referred to the judgment reported in Shahid Orakzai Vs. Pakistan Muslim League (Nawaz) (2000 SCMR 1969) and submitted that the respondent and his party was found to be involved in the acts of vandalism and hooliganism having been committed in and around the premises of the Supreme Court of Pakistan on 28.11.1997. Referring to sub-para 17 of the aforementioned judgment appearing at page 1988 the applicant argued that though certain persons belonging to the said party were convicted for contempt of this Court yet the case was still pending, and the proceedings against the remaining respondents were deferred till the thorough investigation is made as to the culpability of any person found so involved. Inspector General of Police, Islamabad was accordingly directed to get the investigation completed within a period of 4 months so as to identify the miscreants involved in the incident and thereafter proceed in accordance with law. Mr.Shahid Orakzai submitted that in compliance of the said inve stigation report dated 23.2.2001 was prepared by Tamoor Ali Khan, PSP Commandant Islamabad Reserve Police and was submitted in this Court as far back in the year, 2001, but that inquiry report revealing the respondent’s culpability in the offence was suppressed by way of maneuvering. He submitted that despite best efforts he could not get a certified true copy of report. In any event, Mr.Shahid Orakzai submitted that though the above case was pending yet it did not find mention in the statement/declaration sworn by Respondent No. 1 which tantamount to filing a false declaration rendering the Respondent No. 1 disqualified to contest the election. He accordingly submits that such inherent disqualification was incurable.
15. Mr. Ahmed Raza Khan Qasuri, learned Sr.ASC addressed his argument in reply to the arguments rendered on behalf of the petitioner Federation; the Province of Punjab Pakistan and 15 others (PLD 2003 Lahore 646) to support his viewpoint. Learned counsel submitted that nomination papers of Mian Muhammad Shahbaz Sharif Respondent No. 1 filed for PP-141, 142 and NA-119 Lahore XI in the general election, held on 18.2.2008, were rejected by the Returning Officer vide order dated 1.12.2007. Learned ASC submitted that instead of filing appeal before the Election Appellate Tribunal Respondent No. 1 Mian Muhammad Shahbaz Sharif submitted three applications to the Election Commission of Pakistan on 7.12.2007 whereupon Respondent No. 1 was replied that the order of the Returning Officer was appealable under Section 14 (5) of the Representation of People Act, 1976 before the Election Appellate Tribunal constituted for that purpose. Respondent No. 1 was therefore, informed to approach appropriate forum provided under the law, if so advised, as the Chief Election Commissioner lacks jurisdiction in the matter. Learned ASC submitted that bye election was continuity of the process of general elections and the acceptance of the nomination papers of Respondent No. 1 in the bye-elections, after the rejection of his nomination papers in the general elections, which act attained finality, was without lawful authority. He strenuously argued that order of the Returning officer accepting the forms of the Respondent No. 1 in the bye election was violative of law as the disqualification was still existing. He further argued that even after withdrawal of the objections by the rival candidate Malik Nazar Abbas the Returning officer was under legal obligation to conduct a summary inquiry to satisfy himself that the candidate did not suffer from inherent disqualification. Learned counsel submitted that sub-section (5-A) was inserted vide Ordinance dated 31.7.2002 with the purpose of blocking the way of such candidates who were defaulter of loans, taxes, government dues or utility charges or those who have had, any loan written off or otherwise suffer from any other disqualification from being elected as a Member of Assembly. He argued that insertion of words "suffer from any other disqualification" had a purpose and that such term has a very wide scope. He argued that the Tribunal was, therefore, given very wide powers so that it can call upon such candidate on the basis of any information or material brought to its knowledge by any source or even on its own motion, to show cause as to why his nomination papers be not rejected. Learned counsel contended that the term "source" as contained in sub-section (5-A) would not be limited to a body corporate or a juristic or artificial entity but it would include natural person also. He argued that if the intention of law makers was to prohibit a person having unclean or dubious character from being elected as a Member, then limiting the scope of term "person" would be contrary to the intent of law makers and thus tantamounts to defeating the very purpose of enactment. He further submitted that sub-section (6) of Section 14 of the Act provides for a limitation for the disposal of appeals and such stipulation could not be extended to the information received by the Tribunal from any source or even gathered from its own motion. On the above premises learned ASC contended that the order of the Election Commission treating the proceedings, to be an appeal and deeming the same to have been rejected, was patently illegal.
Learned ASC argued that Respondent No. 1 knowingly did not challenge the order of Returning Officer dated 1.12.2007 with the result that it attained finality and as a result thereof the disqualification of Respondent No. 1 became final and conclusive. He argued that subsequent acceptance of the nomination papers by Returning Officer was absolutely illegal. Learned ASC contended that respondent No. 1, despite service of notices, opted not to appear before the Election Appellate Tribunal as well as the High Court. The allegations against the respondent as contained in the appeal and the petition were with regard to his involvement in corruption, default, concealment of facts and ridiculing the judiciary. Learned counsel submitted that on 14.4.2008 Respondent No. 1 in a press conference addressed at Sharif Medical Complex defamed and brought into ridicule the judiciary after rejection of his nomination forms. He submitted that observations of this Court in Zafar Ali Shah’s case reported as PLD 2000 SC 869 were adequate enough to demonstrate the financial follies committed by Respondent No. 1 and the companies mainly owned by the family. Learned counsel submitted that factum regarding non-payment of loan by Respondent No. 1 is abundantly evident from the judgment of the Lahore High Court reported in Mian Muhammad Shahbaz Sharif through Attorney Vs. Election Commission of Pakistan, Islamabad and others (PLD 2003 Lahore 646). Learned counsel submitted that Respondent No. 1 is a defaulter of consortium of banks lead by National Bank of Pakistan and the Civil Original bearing Nos. 63, 64 and 65of 1998 are still pending before the High Court. The properties and assets handed over by the petitioner and other stakeholders in consequence of settlement are still with them having not been disposed of on account of collusive litigation, initiated by their Directors at the behest of the respondent. For the said purpose learned counsel has referred to Project Brief dated 22.5.2008 containing the details duly authenticated by the Representative of National Bank of Pakistan who happens to be one of the members of the Committee constituted by the Lahore High Court Lahore, which is available at page 106 of the paper book in CP. No. 905 of 2008. Learned counsel has placed on record photostat copies of press clippings to show that Respondent No. 1 is still propagating and acting in a manner inter-alia prejudicial to independence of judiciary of Pakistan and is defaming and bringing into ridcule the judiciary. Learned counsel submits that press clippings were valid documents and could be taken into consideration. In this regard learned counsel placed reliance upon Islamic Republic of Pakistan. Vs. Abdul Wali Khan (PLD 1976 SC 57), Mian Muhammad Nawaz Sharif. Vs. President of Pakistan (PLD 1993 SC 743), Mohtarama Benazir Bhutto. Vs. President of Pakistan (PLD 1998 SC 388). Learned counsel contended that since the very act of acceptance of nomination papers of respondent was patently illegal, all the subsequent acts and notification therefore will be rendered invalid and of no legal effect. To substantiate the above plea learned ASC has placed reliance on Yousaf Ali Vs. Muhammad Aslam Zia and 2 others (PLD 1958 SC 104) and Abdul Razak Vs. Karachi Building Control Authority and other (PLD 1994 SC 512). Learned ASC submitted that it is by now well settled that question of inherent and pre-election disqualification could be questioned by way of a petition before the High Court.
Referring to the powers of this Court under Article 187 of the Constitution of Islamic Republic of Pakistan learned counsel submitted that this Court was vested with inherent powers to do complete justice under the Constitution and the law.
16. Learned counsel strenuously argued that the Federation has unnecessarily filed the present petition. Admittedly the controversy involves the election dispute questioning the qualification of an individual viz. Respondent No. 1 which has no concern with the Federation. Even no directions of any kind have been passed against the Federation, hence it has no locus-standi to maintain the petition. Learned Sr. ASC accordingly prayed for summary dismissal of the petition filed by the Federation of Pakistan.
17. Dilating upon the role of Speaker and Province of Punjab
18. Regarding the role of the Province of Punjab Province of Punjab
19. Learned Attorney General for Pakistan who was called upon to assist this Court on the points of law, submitted that no “sufficient interest” of either the Province of Punjab Province of Punjab
Learned Attorney General argued that the words "any other disqualification" have been used to extend the Suo Motu powers of the Election Tribunal to examine the disqualification defined under article 62, 63 of the Constitution and Section 99 of the Representation of the People Act. He argued that after forming the opinion "on its own motion" the Tribunal is duty bound to proceed whereas the act Suo Motu binds the Tribunal to decide and follow the matter to ensure that disqualified candidates should be kept outside the contest. He submitted that time limit for decision of application under Section 14 (5-A) of the Act would be deemed to remain intact till the decision, as is adequately evident from the provision itself. He further argued that if the statute has given a right to a person to place any material or move an application as a source then that person has inherent right under the principle of natural justice to have a decision on it as well, as evidently in the instant case no final decision was given by the Tribunal.
20. We have appreciated the respective contentions put forward by learned counsel appearing for the parties, have take n into consideration the relevant provisions of law and hav
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