P L D 1956 (W (PLP)

MUHAMMAD SHAFI, J.--‑By section 11 of the Establishment of West Pakistan Act, 1955, an interim Provincial legislature for the newly‑formed Province of West Pakistan was constituted, until a regular Provincial Legislature for West Pakistan came into being in accordance with the Govern ment of India Act, 1935. This interim Provincial legislature consisted of the Governor of West Pakistan, and a Legislative Assembly, which was to be composed of 310 members, as pro vided in the second schedule to this Act. The whole of the Province of West Pakistan was divided into several constitu encies. The Constituency described as' Tribal areas adjoining Hazara and Mardan Districts was to elect six members. An election having been held Sardar Bahadur Khan, son of Risaldar Major Mirdad Khan, Quresh Khan, son of Habib Khan. Malik Gajju Khan, Rustam Khan, son of Ghulam Haider Khan, Saadullah Khan, son of Bahadur Khan and Muhammad Ayub Khan, Pathan were declared elected from the above areas. Aloon Khan, son of Azim Khan, and Zaboor Khan, son of Murad Khan, by a petition to the Governor of West Pakistan, challenged and disputed the validity of the election of the above six persons to the Legislative Assembly. Thereupon the Governor of West Pakistan appointed a Tribunal on 17th March 1956, which consisted of Mr. Justice Akhlaque Hussain Khan, as Chairman, and Mr. Abdul Hamid, formerly a Judge of the Baghdad‑ul‑Jadeed High Court at Bahawalpur, and Arbab Ahmad Ali Jan retired District and Sessions Judge, as members for the trial of this petition, as well as other similar petitions, with which we are not concern ed here. A notification to this effect was published in the official Gazette of the Government of West Pakistan, dated 17th March 1956. Mr. Abdul Hamid, one of the members of the Tribunal, was described in the Notification as "Now District and Sessions judge", without specifying the place where he was exercising such jurisdiction. The aforemention ed Sardar Bahadur Khan by petition No. 135 of 1956, under Article 170 of the Constitution of the Islamic Republic of Pakistan, has prayed for the issue of high prerogative writs of (1) certiorari to respondents Nos. 1 and 2 (Government of West Pakistan through the Chief Secretary Lahore, and Election Petition Tribunal West Pakistan, 10 Court Street, Lahore through Mr. Justice Akhlaque Husain Chairman of the said Tribunal respectively) to send the record of election petition No. 5 of 1956, filed by respondents Nos. 4 and 5, Ajun Khan and Zaboor Khan respectively, with a view to examining the legality of the proceedings in the matter by this Court, (2) quo warranto to respondents Nos. 1‑3 (respondent 3 being Mr. Abdul Hamid, member of the Tribunal) to stop proceed ings and to show by what authority they were authorized to take action in the matter of the said election petition, and (3) prohibition or any other appropriate writ, directing or ordering respondents Nos. 1‑5 not to proceed with the afore said election petition against the petitioner, as the aforesaid Tribunal had not been legally constituted and no question for report had been referred to it by the Governor. Three objections were raised in this petition, and they are the only ones which have been argued before us by the learned counsel appearing for the petitioner. The authority of Mr. Justice Akhlaque Husain to be the Chairman of the Tribunal has not been questioned in any way, nor had it been made clear as to why the petitioner wanted this Court to issue a writ of quo warranto to the Government of West Pakistan. The three objections taken were as under :‑ (1) Mr. Abdul Hamid at the time when he was appointed a member of the Tribunal was not a District and Sessions Judge, and it had been wrongly so recorded in the Notifica tion referred to above. (2) No question as contemplated by subsections (3) and (5) of section 12 of the Establishment of West Pakistan Act 1955, had been referred to the Tribunal, and consequently the Tribunal was not seized of the jurisdiction to try the election petition filed by respondents Nos. 4 and 5. (3) The Tribunal was acting with curious haste in connec tion with the proceedings, creating a reasonable apprehen sion in the mind of the petitioner that it was anxious to finish that case to the prejudice of the petitioner before the 19th of May 1956, the date for which the interim Legislature of West Pakistan had been summoned to meet at Lahore. After hearing the arguments of the parties, no doubt is left in my mind that there is no substance in any of the three contentions of the petitioner, and his petition consequently is liable to be dismissed. Under subsection (2) of section 12 of the Establishment of West Pakistan Act 1955, only those persons can be the members of the Tribunal, who are or have been District and Sessions Judges in Pakistan. The law at the time when the Tribunal was appointed, governing the appointment of the District judge was different from that relating to the appoint ment of the Sessions Judge. A District judge was appointed under section 254 of the Government of India Act, 1935, by the Governor, after a recommendation in consultation with the relevant High Court had been submitted to him. A person not already in the service of His Majesty, was only eligible to be appointed a District judge, if he had been for not less than five years a barrister and member of the 'Faculty of Advocates in. Scotland, or a Pleader, and was recommended by the High Court for appointment. It is interesting to note that no provision as regards the appointment of the District judge seems to have been made in the new Constitu tion of the Islamic Republic of Pakistan. A Sessions judge, on the other hand, is appointed under section 9 of the Code of Criminal Procedure wherein it is laid down that the Provincial Government shall establish a Court of Session for every Sessions Division and appoint a judge of such Court. Whether Mr. Abdul Hamid was a District and Sessions Judge within the meaning of the above two provisions of law at the time when he was appointed a member of the Tribunal, is a question, which requires determination in this petition. The answer to this question has been simplified to a considerable extent by the order dated 25th May, 1956, of my Lord the Chief Justice and Mr. Justice A. R. Changez, in Writ Petition No. 220 of 1956, filed by Mehr Muhammad Arif against Malik Abdul Hamid, Election Petition Tribunal West Pakistan, and the Province of West Pakistan, through the Chief Secretary Government of West Pakistan Lahore. This order we must very gratefully acknowledge, was forwarded to us by the Registrar of this Court by D. O. No. 5582/Misc. dated the 25th May 1956 addressed to Khan Amirzada Khan Additional Registrar High Court of West Pakistan Peshawar Bench. Their Lordships while dismissing the petition in limine observed as follows :‑ "We have called for the office papers and find that in con sultation with this Court, Mr. Abdul Hamid was appointed D. and S. J., Bahawalpur, by order dated 17th March 1956, and he actually took over as such on 18th March 1956, An order was also passed appointing him a member of the Tribunal aforesaid and he assumed charge of that post on 21st March 1956. He had, therefore, the requisite quali fication of being a District and Sessions Judge in Pakistan before the date that he joined the Tribunal as a member. The objection is consequently devoid of all force". This order does not give the precise date on which Mr. Abdul. Hamid was appointed a District and Sessions Judge Bahawalpur. It has, however, been supplied by the reply to the petition submitted by the Provincial Government, and the statement of its counsel Mr. Bashir Ahmad Advocate High Court of West Pakistan, Lahore, made in this Court on 17th May 1956. According to them, the order appointing Mr. Abdul Hamid as a District and Sessions judge was issued at about 11‑30 a. m. on 17th March 1956, and he was appointed a member of the Tribunal at 6 p. m. the same day. The date 17th April 1956, mentioned in the reply of the Provincial Government and verified by the Secretary Law West Pakistan, seems to be a mistake for 17th March 1956, and should in fact be read as 17th March 1956. We must presume that at the time when Mr. Abdul Hamid was appointed a District Judge, he possessed the requisite qualifications mentioned in section 254 of the Government of India Act, 1935, particularly when the petitioner has not stated in his petition that Mr. Abdul Hamid was not possessed of such qualification at the time of his appointment. From the above facts it is abundantly clear that at the time when Mr. Abdul Hamid was appointed a member of the Tribunal, he had already been appointed, although a few hours earlier, a District and Sessions Judge. For this we entirely depend upon the written statement of the Government, the oral statement of its counsel, and the observations made by their Lordships the Chief Justice and Mr. Justice A. R. Changez in the order referred to above, otherwise there is no Notification of appointment published in the Official Gazette so far. We must, however, regretfully observe that that the appointment of Mr. Abdul Hamid as a member of the Tribunal has not got a very straight on a happy look about it, yet the petitioner has not questioned the bona fides of the Governor of West Pakistan in appointing him as a member. His only objection was that he was not a District and Sessions Judge at the time of his appointment as a member of the Tribunal, which objection, as discussed above, has been belied by the actual facts. As regards the second objection that no question was referred to the Tribunal. and, therefore, the latter was not seized of jurisdiction to try the election petition, has also, in my view, got no substance in it. Section 12 of the Establish ment of West Pakistan Act, 1955, may usefully be reproduced here "Disputes relating to election to Interim Legislature of West Pakistan.‑(1) If any doubt or dispute arises as to whether a person has or has not been validly elected to the Legislative Assembly constituted under section 11 of this Act, it shall be raised by a petition to the Governor of West Pakistan and if‑ (a) the petition is received by the Governor within a period of thirty days after the publication of the result of the election in the Official Gazette; and (b) before or at the same time as the petition is received by the Governor the petitioner has deposited in a treasury of the Government of West Pakistan the sum of rupees one thousand in cash as security for the cost of the investigation; the Governor shall appoint a Tribunal (hereinafter referred to as the "Tribunal") in accordance with the provision of subsection (2) of this section. (2) The tribunal shall consist of a chairman who shall be or has been a Judge of a High Court and of two other persons, who shall be or have been District and Sessions Judges in Pakistan, and shall be set up within six weeks of the receipt of the petition by the Governor. (3) The tribunal shall have all such powers of a High Court as it may deem necessary to investigate the question including the powers to enforce the attendance of witnesses and the production of documents, and shall decide its own procedure. (4) For the purpose of investigation and decision of doubts and dispute the provisions of the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936, and of Part E of the Punjab Legis lative Assembly Electoral Rules, 1950, relating to Corrupt Practices and the Final Decision of Doubts and Disputes as to the validity of an Election, shall apply with such modifications as the context may require. (5) The tribunal shall report to the Governor on the ques tion, submitted to it, and the Governor shall make such consequential order as to him seems necessary to give effect to the report, and any such order shall be final and shall not be questioned in any Court. (6) The validity of an election under section 11 of this Act shall not be questioned in any Court". The words "the question" occurring in subsections (3), and (5) of section 12, obviously relate to the doubt or disputes which arises as to whether a person has or has not been validly elected to the Legislative Assembly. The argument advanced by the learned counsel for the petitioner that different questions raised in the election peti tion should have been formulated by the Governor in the form of issues and referred to the Election Petition Tribunal for decision, seems to be absolutely devoid of force. If the legislature wanted that the Governor should do as suggested by the learned counsel, then it should have specifically mentioned so in the section itself. In our view, the provisions of law are well satisfied, if the Governor says that a tribunal has been formed for the trial of the election petition, meaning thereby that they have to inquire and report on the doubt or dispute raised by a petition about the validity of the election of a certain person to the Legislative Assembly. As regards the third objection, by giving certain facts, which need not be set forth in this order, the petitioner intended to show that the Election Petition Tribunal was acting with curious haste as a result of which the petitioner apprehended reasonably that the Tribunal was anxious to finish this case to the prejudice of the petitioner before the 19th of May 1956, when the Interim Legislature of West Pakistan had been summoned to meet at Lahore. In other words, the petitioner questioned the bona fides of the Tribunal. It has, however, not been shown in the petition with what particular object in view the members of the tribunal acted in the manner suggested by the petitioner, nor has this part of the petition been supported by an affidavit. The Election Petition Tribunal is presided over by a judge of the High Court of West Pakistan, as is envisaged by section 12 of the Establishment of West Pakistan Act. Both the Government of India Act, 1935, and the Constitution of the Islamic Republic of Pakistan have taken special care to appoint only those persons as the judges of a High Court in Pakistan, who are capable of discharging their onerous duties, in spite of several temptations, allurements and the possible harassment by the politicians, who fail in their attempt to use the judges to advance their own political fortune, with integrity, impar tiality and independence. The newly‑framed Constitution has also safeguarded the judges against any interference with them by the politicians in power, or the persons who control the Government and all that matters in the country. So far as the judges in Pakistan are concerned, they have shown by their conduct that the judicial polity, impartiality and inde pendence come to them as a gift of nature. They have won for themselves an abiding place in the esteem and affection of the people of Pakistan. It is on account of this fact that whenever public feels the necessity of an independent inquiry in any matter, they clamour for a High Court judge to conduct such inquiry. It is for this very reason that the Election Petition Tribunal is also enjoined by law to be presided over by a High Court Judge. This distinguished and enviable position has been attained by the judges, because they have been held in their judgments, relentless in the exposure of the wrong‑doers and have always repelled all attempts from whatever quarters they came to subvert the process of impartial and orderly decision. It is gratifying to note that the judges of this country 'upon whom rests the heavy duty of upholding the constitutional rights guaranteed by the Constitution of the Islamic Republic of Pakistan are conscious of their responsibility as judges, and even more as human beings. They realize that an independent and fearless judiciary is the corner‑stone of every stable and progressive State, and on it alone stands the future democracy of the country. If at any time fear or temptation leads a judge astray, his conscience, which is never absent from one's own self steps in and acts as a great deterrent. No Judicial Officer worth the name much less a High Court judge shall ever even think of betraying the trust reposed in him by God, country and Nation. So the very fact that a High Court judge was the Chairman of the Election Petition Tribunal should have been sufficient to remove and dispel all suspicion from the mind of the petitioner that an impartial and independent inquiry would not be conducted in the case. The objection, thus, is fantastic and should be rejected as impossible. All the three objections raised, thus, fail, and with them fails the petition, which we hereby dismiss, leaving the parties to bear their own costs. K. B. A. Petition dismissed.