P L D 1960 (W (PLP)

KAYANI, C. J.‑The petitioner, Muhammad Nawaz, and the respondents, Ghulam Muhammad and Muhammad Ismail, were elected as Members of the Union Council No. 52 in Gujran wala District. The Chairman of the Council was to be elected on the 23rd of February 1960, and petitioner Muhammad Nawaz and respondent No. 2 Ghulam Muhammad were both candidates for this office, while Muhammad Ismail, respondent No. 3, seconded respondent No. 2 as a candidate. The result of the election was that the petitioner obtained seven votes while Ghulam Muhammad, respondent No. 2, obtained eight votes. In due course, the petitioner filed an election petition before the Collector, respondent No. 1, and on the 24th of March 1960 notice thereof was issued to respondent No.

2. On the 2nd of May 1960, the Collector called the parties at 9‑30 a.m , and finding both absent, dismissed the petition for default of appearance. On the same day, however, the petitioner applied for the restoration of his petition, pleading that his counsel being a member of another Union Council was under training, that he had consequently engaged another counsel, and that while he had gone to fetch his second counsel, the petition had been called and dismissed. This application also was heard on the same day and dismissed with the following orders :‑ "Heard counsel for petitioner. Rejected."

2. The petitioner now asks the High Court for a writ of certiorari quashing the order of the Collector dismissing the petition and the application for restoration, and also for a writ of mandamus or quo‑warranto directing the Collector to treat the membership of both respondents Nos. 2 and 3 and the chairman ship of respondent No. 2 as void and to treat the petitioner as the duly elected chairman of the Council.

3. As regards respondent No. 2, the contention was that having been convicted under section 325, P. P. C. and sentenced to a term of five years' imprisonment, which expired on the 5th of January 1953, he was disqualified from the membership of the Council by reason of clause (f ) of paragraph 2 of the Second Schedule, Part II, to the Basic Democracies Order, 1959, (President's Order No. 18) read with Article 5, clause (d) of the Elective Bodies (Disqualification) Order (No. 13 of 1959). As regards respondent No. 3, the contention was that having been below the age of 25 years on the 1st of January 1960, he lacked the qualification to be elected as required by paragraph 1 of Part 11 of the Second Schedule to the Basic Democracies Order, and since he was not properly elected, he could not have seconded respondent No. 2 for the office of Chairman and could not have voted for him.

4. Apart from these points, the following other matters were in controversy :‑- (1) Whether a writ of certiorari lies in respect of the proceeding before the Collector which resulted in the dismissal of the election petition ? (2) Whether a writ of quo warranto lies where a specific remedy by way of election petition has been prescribed ?

5. As regards the first point, it is noticeable that election to the office of chairman is governed by a different set of rules from those which govern the election of ordinary members. The former are called the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, while the latter are called the West Pakistan Basic Democracies ,Election Rules, 1959. These latter provide as elaborate a machinery for elections and election petitions as did the rules relating to election to former Legislative Assemblies and Councils. For the election of chairman, how ever, the law has provided a short code of eight rules, apparently by reason of the fact that the chairman will generally have an electorate of between fifteen and thirty members, and the election will take place before a single officer at a single sitting. Rule 7 provides that no election of a chairman shall be called in question except by a petition presented to the Controlling Authority within thirty days of the declaration of the result, and the Controlling Authority may after such enquiry as may be necessary, uphold the election of the chairman, or declare the election as void for any material irregularity, or any sufficient reason to be recorded.

6. It was contended for the petitioner that election to the post of chairman was not a matter which concerned the candi dates alone, that the public in general was interested, and that, consequently, dismissal for default was fundamentally wrong. A reference was made to rule 57 of the Basic Democracies Election Rules, 1959, which provided that if at any stage in the trial of an election petition the petitioner fails to appear, the Election Tribunal may, on the application of any person, who might himself have been a petitioner, order that such person may be substituted for the original petitioner. If no application is made, the election petition may be dismissed for default. Under sub‑rule (2) of the same rule, an election petition may be with drawn by leave of the Election Tribunal, and where an application for such leave is made, notice thereof shall be served on the other parties to the petition. No application for leave to with draw shall be granted unless the Tribunal is satisfied that no agreement or bargain has been made or that the terms of the agreement or bargain are such that the application may be allowed. These provisions, it is contended, make the conduct of an election a matter of public interest, and an order of dismissal for default is inconsistent with the preservation of such interest.

7. We have already pointed out that the machinery for the election of chairman has been deliberately made simple, and it will be noticed that the principal ground on which an ordinary election petition is based, namely, a corrupt practice, is absent from rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960. The ground stated in rule 7 is "material irregularity", which has not been defined, or "any sufficient reason", and that is because the proceedings having taken place before the same officer who hears the election petition‑the Controlling Authority‑there is a very limited scope for enquiry.

8. Although "dismissal for default" has not been expressly provided by the rules regulating the election of chairman, such dismissals are based on well established practice, and the practice itself is based on necessity. No proceeding can make progress unless it is actively prosecuted by the applicant, and if the applicant is himself absent, the proceeding has to be terminated. As to whether the Controlling Authority was justified in dismissing the petition, we have not to say much. In ordinary civil cases where a person applies for the restoration of his suit or application on the day of dismissal, and he gives good reasons for his absence, it is restored. If, however, the Court thinks that the absence of a party at 9‑30 a.m., i.e. at least two hours after the Court opens, is not justified by the fact that his counsel is doing work in other Courts, we cannot say that its opinion is far wrong, and, in any case, it has jurisdiction to hold that there is no justification to restore the suit or the application. In these circumstances, a writ of certiorari will not lie.

9. Now, as regards the writ of quo warranto, it has been contended by the respondents that since rule 7 of the Basic Democracies (Election of Chairman) Rules requires that election of a chairman shall not be called in question except by an election petition, proceeding for quo warranto do not lie. Reliance was placed on Halsbury's Laws of England, Third Edition, Volume II, papa. 273, where the following passage occurs :‑ "In 1933 all informations in the nature of quo warranto were abolished, and it was provided that, in any case where a person acted in an office in which he was not entitled to act and an information in the nature of quo warranto would have lain against him, the High Court might, at the instance of any person who would have been entitled to apply for such an information, grant an injunction restraining the former from so acting and might declare the office to be vacant." This is merely a provision of the administration of Justice (Miscellaneous Provisions) Act, 1938, of England, and is not applicable to the state of law in which we find ourselves, but even if it were applicable, the High Court has power to grant an injunction restraining a person from holding an office in the same circumstances in which a quo warranto could issue, and in practice the result would not be different.

10. In England the writ of quo warranto has become obsolete and its place had originally been taken by "information in the nature of quo warranto". In 1933, the Local Government Act, 1933, substituted for these informations an alternative form of proceedings, and it was provided that, except in the form so substituted, no proceedings, whether by way of information in the nature of quo warranto or otherwise, should be taken against a person on the ground that he had, while disqualified for acting as a member of a local authority or mayor of a borough, so acted or claimed to be entitled so to act. In 1938, as already pointed out, all informations in the nature of quo warranto were abolished, but the power of the High Court to issue injunctions was created in a different form.

11. The position in Pakistan is that by the President's Post Proclamation Order No. 1 of 1958, called the Laws (Continuance: in Force), Order, clause 2, sub‑clause (4), the Supreme Court and the High Courts shall have power to issue the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari". In other words, the power is to issue that is now the obsolete writ: of quo warranto in England, neither an information in the nature of quo warranto nor the diluted form provided in the Adminis tration of Justice (Miscellaneous Provisions) Act, 1938. We hope it was a fortunate oversight by the draftsman of 1958, C notwithstanding a visible intention to truncate the writ jurisdiction.

12. Our reply to the contention of the respondents is that a writ of quo warranto lies notwithstanding any provision in any enactment that an election shall be called in question only by an election petition, unless the enactment in question also contains a specific provision that a writ of quo warranto shall not lie, and it has the same status as a constitutional provision.

13. Now we come to the disqualification from which Ghulam Muhammad, respondent No. 2, suffers. It is admitted that he was convicted under section 325, P. P. C. and sentenced to rigorous imprisonment for five years, and that the term of imprisonment expired on the 5th of January

195. The provisions of law relevant to the decision of this issue may conveniently be reproduced below:‑ THE BASIC DEMOCRACIES ORDER, 1959. SECOND SCHEDULE. Part II.‑Qualifications and Disqualifications of candidates and members.

2. Disqualifications of candidates.‑A person shall be dis qualified for being a member or a candidate for the membership of a local council:

(a)****************************** (b) ***************************** (c) If he has been ordered to execute a bond under section 110 of the Code of Criminal Procedure, or has been, on conviction for an offence involving moral turpitude, sentenced to imprisonment for a term of not less than six months, unless five years, or such less period as the Government may, by notification in the Official Gazette, specify in this behalf, has elapsed from the date of expiration of the period of the bond or sentence, as the case may be ; (d) ****************************** (e) ****************************** (f ) If he is for the time being disqualified for membership of an elective body under the Elective Bodies (Disqualification) Order, 1959, or under any other law for the time being in force. Article 5‑Dfsqualication of certain persons :‑

(1) Notwithstanding anything contained in this Order, or in any other law, a person shall stand disqualified until the thirty‑first day of December 1966, for being a member or a candidate for the membership of any elective body,‑ (a) If he is dismissed, removed or made to retire from the service of Government * * * * * * * on a charge other than that of inefficiency ; or (b) If an order under section 3 of the Security of Pakistan Act, 1952 * * * * * * * has ever been made against him ; or (c) If he was found guilty * * * * under the Public and Representative Offices (Disqualification) Act, 1949 ; or (d) If he has been convicted of any offence and sentenced to a term of imprisonment for more than two years or to tran sportation for any term.

14. It will have been noticed that while according to clause (c) of paragraph 2, Part II of the Second Schedule to the Basic Democracies Order, a person is disqualified if he has been convicted of an offence (1) involving moral turpitude, and (2) sentenced to six months at least, unless five years have elapsed since the expiration of the sentence, according to clause (d) of Article 5 of the Elective Bodies (Disqualification) Order, 1959, he is disqualified from membership of any elective body if he has been convicted of (1) any offence, and (2) sentenced to a term of two years' imprisonment or more. Now, since clause (f) of paragraph 2 aforesaid of the Basic Democracies Order transplants the entire provisions relating to disqualification under the Elective Bodies (Disqualification) Order, the question is whether respondent No. 2, who is clearly disqualified under the Elective Bodies (Disqualification) Order, stands disqualified under the Basic Democracies Order also. Prima facie, he is, because clause (f )clearly says that if he is disqualified for membership of an elective body under the Elective Bodies (Disqualification) Order, he is also disqualified for being a member of a local council. We have given this matter some anxious thought and have come to the conclusion that if clause (c) of paragraph 2, Part II, of the Second Schedule to the Basic Democracies Order is to be fully operative, it should exclude the particular dis qualification imposed by clause (d) of Article 5 of the Elective Bodies (Disqualification) Order.

15. Clause (c) aforesaid disqualifies a person by reason of his conviction only if the offence ' committed by him involves moral turpitude, and even when that is the case, he is supposed to reform himself in five years. This particular aspect of a conviction, based as it is on moral turpitude, is not shared by the provisions of clause (d) of Article 5 of the Elective Bodies (Disqualification) Order, which disqualifies a person from membership, whatever sort of offence he may have committed, provided the sentence is not less than two years. It cannot be reasonably said that while on the one hand the draftsman was limiting the disqualification for membership of a Basic Democracy to offences involving moral turpitude, on the other hand he was demolishing that limit by extending to it the sweeping provisions of the Elective Bodies (Disqualification) Order. It should, therefore, be proper to hold that in enacting clause (f ) in the Basic Democracies Order the draftsman was considering the general provisions relating to disqualification under the Elective Bodies (Disqualification) Order, and not the specific provision relating to convictions, for it is impossible to consider these two provisions side by side. We could consider them collaterally only if the Basic Democracies Order provided for offences involving moral turpitude, while the Elective Bodies (Disqualification) Order provided for offences not involving moral turpitude. This, however, is not the case, because the Elective Bodies (Disqualification) Order provides for all offences, irrespective of whether or not they involved moral turpitude.

16. In our opinion, clause (c) of paragraph 2 of Part II of the Second Schedule to the Basic Democracies Order should have precedence over clause (f) and we, therefore, hold that respon dent No. 2 was not disqualified.

17. Now we come to the alleged disqualification of respon dent No. 3, Muhammad Ismail. The petitioner says that he was below 25 years of age on the 1st of January 1960, and in support of his allegation he bas produced with the petition a birth certificate which shows his days of birth to be 25th of February 1936, and a school certificate which shows his date of birth to be the 10th of December 1936. Respondent No. 3 denies that the latter is a correct record, or that the former relates to his birth.

18. The objection to respondent No. 3's (age) had also been raised before the Returning Officer, who upheld it. In revision however, to the Controlling Authority, (who relied on the electoral roll of 1957, which gave his age to be 24 years) respondent No. 3 was successful. This objection had been raised by a person different from the petitioner, but it was open to the petitioner and to that person to produce such evidence of age before the Returning Officer or the Revising Authority as the petitioner has relied upon now, so that it could have been thrashed out by the production of formal proof and rebuttal. We do not think that we should allow the matter to be opened afresh at this stage.

19. The two documents produced by the petitioner, however, are not conclusive of the age of respondent No.

3. The birth certificate relates to some infant whose name is not given but whose father's name is identical with that of the father of respondent No. 3, and it could always he argued that this related to a brother of respondent No.

3. The school certificate does give his name, but it is now widely known that parents give a younger age to schoolboys than they actually possess in order that it should help them in Government services. We cannot, therefore, accept these documents as they stand for the purpose of disqualifying a person from the membership of an elective body.

20. In the result, we dismiss this petition, but as the question relating to the disqualification of respondent No. 2 was not free from difficulty, we make no order as to costs. A. H. Petition dismissed.