2004 PLP 1456 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

Petitioners seek leave to appeal against the judgment, dated 19th December 2000 passed by Lahore High Court, Lahore whereby Writ Petition No. 24915/2000 filed by them has been dismissed. Relevant paras. therefrom are reproduced herein below for convenience:

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2. Learned counsel for the petitioner contends that mere registration of cases vide F.I.Rs do not constitute evidence of conviction and that the official respondents have illegally taken into account the news clippings. Mr. Mohyud din Qazi Adv., who has entered appearance for respondent No.3 on the other hand, had brought to my notice that in most of the said cases, the petitioners had themselves applied for compounding the offence and paid lacs of rupees by way of penalties/compensation charged.

3. I have bone through the judgment passed by a learned Division Bench of this Court in ICA No. 514/94. One thing definitely comes out from an examination of the said judgment and that is that the petitioner Mian Munir Ahmed having been accused of commission of offences under section 379, P.P.C. read with section 14 of the Offences Against Property (Enforcement of Hadd) Order 1979 made an application for compounding the offences and when his application was not allowed, he approached this Court for a direction to be issued to the State to compound the offence on payment of penalty/composition charges."

2. Precisely stating the facts, giving rise to instant petition, are that petitioners filed their nomination papers for the election of Nazim and Naib Nazim of Union Council 141/2, Municipal Committee, Sargodha. The Returning Officer vide order, dated 11th December 2000 rejected the nomination papers of the petitioner-Munir Ahmed. The contents of the order read as under thus:

"`Candidate and objector heard. The objector has established through the photocopies of the press synpes of the copies of FIR of judgment of the Honourable Lahore High Court, Lahore that the candidate was involved in theft cases and the Government trees/forest department and he has deposited Rs.20 lacs as penalty amount. The press cutting depicts horrible situation adversely affecting the reputation 'and character of the candidate. He has also been reported to be corrupt by intelligence agency. In my view he does not enjoy good character and reputation to be nominated as Nazim. Objection raised by the objector prevails and nomination papers of Nazim having candidate for Nazim stand wholly rejected." Petitioners preferred appeal against the above order before the District Returning Officer who dismissed the same on 15th December 2000. Similarly petitioners failed to get relief from the High Court as the Writ Petition being No. 24915 of 2000 filed by them has been dismissed by means of impugned judgment. Petitioners, however, succeeded in getting an interim order from this Court by filing civil petition for leave to appeal, vide order, dated 22nd December, 2000 and in the meantime contested election for the office of Nazim and Naib Nazim respectively and were declared successful returned candidates. Ultimately the petition was disposed of vide order, dated 18th June, 2001. Against this order a Civil Review Petition No. 201 of 2003 was filed by respondent Sohail Ahmed: which was allowed on 20th April, 2004 and in the end order; dated 1st July 2001 was withdrawn and the petition for leave to appeal was directed to be fixed for rehearing.

3. Learned counsel appearing for petitioners contended that petitioner No.1 was not disqualified to contest the elections, despite of registration of criminal cases against him vide F.I.Rs. Nos.163/94 and 111/94 and 155/94, registered at various Police Stations, because the same were subsequently cancelled and he was never convicted/sentenced by any Court of law, therefore, he had not acquired any disqualification under section 14(1) of the Punjab Local Government Elections Ordinance V of 2000 [herein after referred to as Ordinance] but the learned High Court had denied to grant relief to the petitioners on the considerations not available to it under the law.

4. On the other hand learned counsel appearing for the respondents stated that petitioner No. 1, after registration of cases against him, entered into a compromise with the forest Department /complainant and after having made the payments equal to the price of wood, which was stolen by him, got FIRs cancelled. He also stated that petitioner No. 1 after allegedly reimbursing the amount regarding the loss to the Forest Department, on account of committing the offence of theft of Forest wood, approached to the High Court by invoking its constitutional jurisdiction but writ, as prayed for, was not issued and thereafter an Intra-Court Appeal No. 514/1994 was also filed by him for the same purpose but it too was dismissed. As such on the bases of these facts, it can safely be inferred that petitioner No.1 is not a man of good character, therefore, had no authority to hold a public office in terms of the provisions of section 14(k) of the Ordinance.

5. It may be noted that it is an admitted fact that criminal cases were registered against petitioner No.1 but he was never convicted/sentenced for the offences charged against him, therefore, section 14(1) of the Ordinance, which disqualifies a candidate if he has been sentenced to imprisonment for more than three months for an offence under any law and a period of not less than five years has elapsed since his release and in case of a member or holder of a public office has not been sentenced to imprisonment, is not attracted.

6. Learned counsel for respondents emphasized that as cases of theft were registered against the petitioner Munir Ahmed and he himself has approached the High Court by invoking its constitutional jurisdiction, seeking direction to the authorized department to compound the offence but on failing to get relief for the same purpose, approached the ICA Bench who also dismissed his appeal No.514 of 1994, therefore, he being a man of not good character, disqualifies to contest the election in terms of section 14(d) of the Ordinance.

7. It may be noted that F.I.Rs. registered against the petitioner No. 1 were cancelled by the police department itself, perhaps for want of incriminating evidence or for the reasons that the loss allegedly caused by him to the Forest Department was reimbursed by him but despite of it, under the provisions of section 27 of the Forest Act, petitioner approached the Judicial Magistrate for direction to the Forest Department to compound the offence. Request so trade by him was turned down as such he invoked the constitutional jurisdiction of the High Court by way of filing writ petition but it was also rejected, therefore, petitioner preferred ICA No. 514 of 1994 but without any success. Learned High Court in impugned order found itself satisfied in declining to grant relief to the petitioner, against the order of the District A Returning Officer, on the premises that as the petitioner had prayed for compounding the offence, therefore, it means an admission on his part for the commission of the offence being committed by him has been made. In our considered opinion, learned High Court traveled beyond the scope of law i.e. section 14(k)(1) of the Ordinance, for disqualifying tile petitioner to contest the election. As far as these provisions of law are concerned, they deal in respect of disqualification of a candidate who is not a man of good character, etc. So far as determination regarding corrupt character of a person is concerned, it requires to be proved as a fact on the basis of cogent evidence independently and character of a person cannot be determined on the basis of inferential evidence, presuming that after the cancellation of FIR and reimbursement of loss allegedly caused by petitioner, for which no cogent evidence is available on record, if petitioner has made a request for compounding the offence, under section 14(k) of the Ordinance, it would not tantamount to admitting a crime committed by an individual. Somewhat, identical question came up for consideration before this Court in the case of Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain (PLJ 1986 SC 530), in respect of character of petitioner Raja Muhammad Afzal in terms of section 10(1)(d), (e) and (f) of the Houses of Parliament and Provincial Assemblies (Election) Order. 1977. Objection so raised by rival candidates against him failed to found favour with the Returning Officer and the Appellate Forum and. ultimately he won the elections, contested by him, but his election was challenged in election petition before the Election Tribunal, .who declared him to be disqualified from being elected as Member of the National Assembly. Against the said order of the Tribunal, appeal was filed before this Court which succeeded, as a result whereof the order of the Election Tribunal was set aside. However, while dealing with different aspects of the case regarding determination of character of a person, this Court, in view of section 45 of the Evidence Act, 1872, observed that opinion of individuals about character, conduct and disposition will not be admissible in evidence but the specific instances from which an inference with regard to fact in issue can be drawn will certainly be admissible. In the case in hand and specific evidence has been produced by respondent to establish that petitioner No.1 was not man of good character. Besides it, inference of the learned High Court, that as the petitioner has prayed for direction to the department for compounding the offence, therefore, it tantamounts to admission on his part, is not admissible because admittedly Forest Act caters provisions, regarding the compounding of the commission of the offence but solely for such reason legally it is not possible to hold that accused is guilty for the commission of the offence; firstly for the reason that there must be a proper and legal compromise between the parties before the competent Court of law and; secondly in pursuance of a criminal case registered by a law enforcing agency, relating to an offence falling within the mischief of section 26 of the Forest Act, it is established that these offences are committed and then compromise is effected. Here in instant case, position is altogether different. Neither any permission was granted to compound the offence nor petitioner has been put to trial except one of the case arising out of FIR No. 11 of 1994 under section 379/411, PPC read with section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 but in this case as well petitioner was acquitted under section 249-A, Cr.P.C. by the trial Court. Thus for these reasons, we are of the opinion that for proving a character of a person in terms of Article 66 of the Qanun-e-Shahadat Order., strong convincing and admissible evidence has to be brought on record, being a pure question of fact, relevant for decision of the case.

8. Thus for the foregoing reasons, we are of the considered opinion that learned High Court was not justified in disqualifying the petitioner to, contest the election being a man of not good character, in terms of section 14(k) of the Ordinance, or being a person who has been convicted as per the requirement of section 14(1) of the Ordinance. As a result of above discussion, petition is converted into appeal and allowed. Parties are left to bear their own costs. M.H./M-109/S Appeal allowed.