Election Commission of Pakistan

P L D 1991 Journal 48 P L D 1991 Journal 48 [Election Commission of Pakistan] Before Justice Naimuddin, Chief Election Commissioner, Justices Muhammad Rafiq Tarar and Abdul Razzak A. Thahim, Members Maulana MUHAMMAD ABDUL SATTAR KHAN NIAZI‑‑Petitioner versus Dr. SHER AFGHAN KHAN NIAZI‑‑Respondent Reference under section 8‑B(2) of the Political Parties Act, 1962, decided on 3rd October, 1989. Political Parties Act (III of 1962)‑‑ ‑‑‑‑S. 8(2) [as amended by Political Parties (Amendment) Act (XXII of 1985)}‑‑ Defection from a political party‑‑‑Effect‑‑‑Secretary‑General of a Political Party making reference to Election Commission that respondent having been elected from the platform of his party had crossed over to Treasury Benches and having been appointed a Minister of State without party's permission had disqualified himself from being a Member of National Assembly for the unexpired term‑‑ Objections raised to such reference were that petitioner making reference was not a leader of Parliamentary Party in the National Assembly or Secretary -General of Political Party and as such had no right to make reference‑‑ Respondent also denied the fact of defection‑‑‑Questions for consideration before Election Commission were whether alliance of two political parties for contest of election could be deemed a political party and whether parties joining such alliance had preserved their separate identities; whether alliance thus formed under a separate name became a political party in itself, and what was its manifesto and programme and who were its office‑bearers‑‑‑Further questions to be determined were whether alliance of parties or component party of alliance was a parliamentary party and petitioner was leader of the party or alliance in Parliament, and whether respondent had defected from the party on whose ticket he was returned successful‑‑‑Election Commission after hearing arguments at preliminary stage felt that questions raised could not be decided simply on the pleadings of petitioner and oral submissions on behalf of respondent‑‑‑Election Commission directed respondent to file his written statement within specified tune alongwith documents in support of assertions to be raised therein. Ch. Muhammad Ashraf for Petitioner. K.M.A. Samadani for Respondent. ORDER This is a reference under section 8‑B(2) of the Political Parties Act, 1962, as amended by the Political Parties (Amendment). Act, .1985, by Maulana Abdus Sattar Khan Niazi, Secretary‑General, Jamiat‑ul‑Ulema‑e‑Pakistan (hereinafter for brevity sake called JUP) against Dr. Sher Afghan` Khan Niazi, Minister of State for Parliamentary Affairs, Government of Pakistan. 2. In the amended petition, the petitioner claims that he is the Secretary‑General of J.U.P. and leader of the Parliamentary Party of Pakistan Awami Ittehad (hereinafter called PA.I.) as well as J.U.P. in the National Assembly of Pakistan. He further states that in the national election held in November, 1988, the J.U.P. participated there in alliance with Tehrik‑e‑Istaqlal known P.A.I. and `Tractor' was. their symbol. He further states that the respondent, who was a member of J.U.P., applied for ticket of P.A.I. from J.U.P. quota for Constituency No. NA‑54 Mianwali‑II and was duly returned. According to the petitioner, in the first session of the National Assembly held in November, 1988 at the occasion of allocation of seats in the House, the respondent was allotted seat with other members belonging to PA.I./J.U.P. on the Opposition Benches and he occupied and participated in the Assembly from his seat. According to the petition, the PA.I. is syononymous with J.U.P. as it is the only component of PA.I. which has been returned to the National Assembly as it is presently representing its entity in the House. The petitioner's further case is that in March, 1989, the respondent, without permission from the leader of the Parliamentary Party or `of the Majlis‑e‑Shoora/Amila of the J.U.P.', withdrew himself and defected from the PA.I./J.U.P., the Opposition Benches and crossed the floor over to the Treasury Benches and accepted the office of Minister of State in the Pakistan People's Party Government. The petitioner has, therefore, claimed that the respondent has disqualified himself from being a member of the National Assembly, for the unexpired period of his term as such a member. Accordingly, the petitioner has prayed that the respondent be disqualified from being a member of the National Assembly for the unexpired term as such. 3. We had issued pre‑admission notice of the petition to the respondent. On 5‑9‑1989, the petitioner with his Advocate, Ch. Muhammad Ashraf, and the respondent with his Advocate Mr. K.M. Samadani appeared. Ch. Muhammad Ashraf applied for amendment of the petition, which was allowed by a separate order of the same date. 4. We heard Ch. Muhammad Ashraf Advocate for the petitioner and Mr. K.M.A. Samadani. Advocate for the respondent. Ch. Muhammad Ashraf Advocate, in his arguments, pointed out that in the notice dated 6‑4‑1989, addressed to the respondent requiring him to relinquish his charge as Minister of State under the Pakistan People's Party Government, it was stated that the had applied for grant of a ticket to contest the election as a candidate of J.U.P. and his request was granted and communicated to him and on formation of the PA.I., the ticket of PA.I. of which J.U.P. is an integral part, was given to him and he was allotted the symbol of `Tractor' which was the symbol allotted to the persons contesting election on the tickets allowed by PA.I. and that he owed his allegiance and affiliation with the Parliamentary Party P.A.I. of which he was the leader. It is further submitted that in his reply dated 13‑4‑1989, the respondent had not denied these allegations. In fact his stand, inter alia, was as follows:‑‑ "You would kindly recall that the Majlis‑e‑Shoora and the Majlis‑e -Aamla of the J.U.P., in their meeting of November 26, 1988, held at Lahore, under the Chairmanship of Maulana Shah Ahmed Nooram, took a number, of important policy decisions. These included supporting of the P.P.P. at the Centre with a view to ensuring smooth and peaceful transfer of power. 2. You were requested many times for the minutes of the above meeting which have not been furnished by you, even after a lapse of five months." 5. Mr. K.M.A. Samadani, however, refuted the claim of Maulana Abdul Satter Khan Niazi that he is the leader of the Parliamentary Party in the National Assembly or the Secretary‑General of a Political Party‑J.U.P.. He further submitted that he has not been declared as leader of the Parliamentary Party and therefore, he has no right to make a reference. He also questioned that P.A.I. or J.U.P. is a Parliamentary Party. He referred to the book entitled `Practice and Procedure of Parliament' by M.N. Kaul and S.L. Shakdher, 3rd, Edition, that the Parliamentary party is based on the Speaker's direction. He particularly referred the following requisite conditions for a political party as stated in the book:‑‑ (ii) They should have an organization both inside and outside the House, which is in touch with public opinion on all important issues before the country. (iii) They should at least be able to command a strength which would enable them to keep the House, i.e. their number should not be less than quorum fixed to constitute a sitting of the House, which is one‑tenth of the total membership. Mr. Samadani also denied that the respondent has defected. He pointed out that in his reply dated 13‑4‑1939 to the notice dated 6‑4‑1989, the respondent stated as follows:‑‑ "Again at the time of vote of confidence for the Prime Minister, you chose to abstain from the voting in complete disregard for the policy decision taken on November 26, 1988. Privately, you told me that you were willing to vote for Mohtarama Benazir Bhutto if the vote was taken through secret ballot. You made it clear that you did not mind voting for a lady but did not want to be seen as voting for a lady." 6. A political party is defined in section 2(c) of the Political Parties Act, 1962, as follows:‑‑ `Political Party' includes a group or combination of persons who are operating for the purpose of propagating any political opinion or indulging in any other political activity. Therefore, the question for consideration is:‑‑ Whether the J.U.P. & Tehrik‑e‑Istaqlal combined together form a political party by the name of PA.I. or was it a sort of alliance, all the parties preserving their separate: entitles? If PA.I. became a political party in itself, what is its manifesto and programme and who are its office‑bearers? The further questions which require consideration are:‑‑ (i) Whether P.A.I. or J.U.P. is a Parliamentary party? (ii) Whether the petitioner is the leader of the parliamentary party of PA.I. or J.U.P.? (iii) If the contents of the reply are true, can it be said that the respondent has defected from the party on whose ticket he was returned successful? 7. We heard the learned arguments of the counsel for both the parties at preliminary stage even before the respondent was required to file his written statement. We feel that we cannot decide all these questions simply on the pleadings of the petitioner and the oral submissions of the learned counsel for the respondent. We, therefore, direct that the respondent should file his written statement within three weeks along with the documents, if any. The petitioner may also file additional documents, if any. Thereafter the issues will be framed and parties will be allowed time to lead their evidence. AA./57/E. Order accordingly.