1991 PLP 571 (CLC)

Document No.4 appears to be a telex message dated 14-5-1989 from London stating that Mr. H.B. Khokhar, President, Council of Third World Newspapers had made a complaint against "Daily Express" apparently about the publication of the article riled as document No.3 and on such complaint, the Press Council of Britain had started investigations into the complaint. Document No.5 is a photocopy of an article published in the "Toronto Sun" of 17-10-1988 also about the respondent when she was at Oxford. Her age then is mentioned as 20 years. ' . Document No.6 is a photostat copy of some news published in a Norwegian paper with a picture of the respondent. The news is in some foreign language. Documents No.7 and 8 are alleged to (be) photostat copies of articles published in "Private Eye" of London of 13-7-1986. These articles also pertain to the life of the respondent when she was at Oxford. Document No.9 is a photocopy of the address of the President to the Nation after he had dissolved the National Assembly on 6-8-1990, published in magazine "Takbeer" of 16-8-1990. Document No.10 is a photocopy of a news published in the Daily "Jang" Karachi of 20-7-1990 about her talk on 19-7-1990 with the reporters at Lahore Airport. She was inter alia reported to have stated as follows:

Document No.11 is a photocopy of two pages of magazine "Takbeer" of 20-9-1990 in which minutes of a meeting of the Cabinet held in July, 1990 and of a decision taken in that meeting have been reproduced. In the minutes, views expressed in the Cabinet meeting on "qisas" and "diyat" are briefly recorded and then the following decisions are report6d to have been taken by the Cabinet: "The Cabinet took note of the summary dated 26th May, 1990 submitted by the Law and Justice Division and decided to constitute a Cabinet Committee headed by the Attorney-General of Pakistan and comprising the Ministers for Interior, Labour, Law and Justice, Parliamentary Affairs, Religious Affairs, Women's Development and Ministers of State for Education, Narcotics Control, Science and Technology. The Cabinet Committee would carry out an exercise to examine whether the proposed amendments were in conformity with the Islamic value of human dignity, rule by consensus and humanity and were in accordance with true Islamic institution on this subject. The Cabinet Committee was authorised to consult leading scholars in this field in Yamen, Egypt, Syria and Jordan etc. (2) The Ministry of Information and Broadcasting was directed to establish a Cell to highlight the effect that the amendments would have on the society. The Cell should endeavour to explain the harsh barbaric nature of punishments and bring out the fact that it would depict the Muslim Society in very unfavourable light. (3) A position paper on this subject should be sent to Pakistan's Missions abroad by the Ministry of Foreign Affairs." Document 11-A is a fatwa, dated 23 Safar 1411 Hijri, of Maulana Abdul Qahhar, Mufti of Jammat Churaba, Ahle Hadis, Muhammadi Masjid, Karachi. Document No.12 is a photocopy of a report on Pakistan published in Weekly "Time" of 19-1-1990 containing adverse comments on the Government headed by the respondent. Document No.13 is a photocopy of another report on Pakistan published in "Wall Street Journal" also containing adverse comments on respondent's government. According to Mr. Akram Shaikh, newspaper reports are admissible and can be relied upon and cited the judgment of the Supreme Court in Wali Khan's case reported in P L D 1976 S.C.

57. He contended that documents 3 to 13 referred hereinabove establish that the respondent falls within the mischief of clause (d) of Article 62 of the Constitution. According to learned counsel, in view of these documents, it cannot be claimed by the respondent that she is of good character and is not commonly known as one who violates Islamic Injunctions. Mr. A.H. Lakho, learned counsel for the respondent, submitted that the stories published about respondent's days at Oxford are false and she has averred so in her counter-affidavit before the Returning Officer. He argued that the newspaper reports are inadmissible and that these reports in any case, refer to matters in the distant past. He submitted that on the basis of the Fatwa, the respondent cannot be considered to be a Kafir. In respect of the reports in "Time" magazine and "Wall Street Journal", Mr. Lakho submitted that the same did not say anything against the respondent. As regards the minutes of the Cabinet Meeting also, his submission was that on the basis of the decisions in the said meeting of the Cabinet no adverse inference can be drawn against the respondent. Documents 3, 5, 7 and 8 are photostat copies of articles published in foreign newspapers about the life of the respondent at Oxford University when she was about 20 years of age. She has denied as false the stories about her in these articles in her counter-affidavit. According to the copy of her National Identity Card, the respondent is now about 37 years old. Articles about her life referring to matters 15 to 17 years ago will not disqualify her wider clause (d) of] Article 62 of the Constitution specially when such stories have been denied as false by the respondent. Clause (d) of Article 62 of the Constitution is couched in terms which refer to the present time and the recent past and not to things which may have happened or occurred 15 to 17 years ago. Documents Nos. 3, 5, 7 and 8 are also, in our view, not admissible' Firstly, only photostat copies have been filed. Then these articles do not contain news about any specific incidents or occurrences. These are in the nature of stories mixed with comments. Further, these reports are not contemporaneous in time when the respondent was at Oxford University. Document No.4 is a telex message which goes in favour of the respondent Document No.6 is in some foreign language. No authentic translation has been filed and it is also only a photo copy. The address of the President to the Nation on 6-8-1990 (document No.9) by itself will not disqualify the respondent under clause (d) of Article 62 of the Constitution. Documents 12 and 13 are reports in a foreign magazine and in a foreign newspaper containing adverse comments on the Government headed by the respondent. No comment in these articles makes out a case for her disqualification under clause (d) of Article

62. Document No.10 is about respondent's talk with reporters at the Lahore' Airport on 19-7-1990 and Document No.11 contains decision of a Cabinet Committee meeting held in July, 1990. By reading these documents in full, it cannot be said that she comes within the mischief of clause (d) of Article

62. Document No.11-A is a "Fatwa" of Mufti Abdul Qahhar. Full statements/documents were admittedly not supplied to Mufti Sahib and only three different passages were attributed to the respondent and Mufti Sahib's opinion was sought. In the circumstances, it would not be safe to place reliance on the "Fatwa" obtained from Mufti Sahib. Objection No.1 was, therefore, rightly rejected by the Returning Officer. (ii) Objection No.2 was based on clause (e) of Article 62 of the Constitution according to which clause a candidate or member is required to have adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins. For this objection also Mr. Akram Shaikh relied upon documents 3 to 13 filed in support of the objections before the H Returning Officer. He further submitted that the appellants had made a request to the Returning Officer to call the respondent and if she had been called or she had voluntarily appeared, she could have been asked to read few verses from the Holy Quran and asked a few questions to ascertain whether she practices obligatory duties as ordained by the Holy Quran but neither she was summoned by the Returning Officer nor she appeared and in the circumstances an adverse inference is to be drawn against her. We have already commented on documents Nos.3 to 13 and our opinion expressed earlier on these documents will also apply to the objection based on r clause (e) of Article

62. Objection No. 2 raised by the appellants was based on Hamari Itlah Kai Mutabiq "but the source of this information was not disclosed. The objectors have not claimed any personal knowledge about this nor did they mention the names of persons or the sources from whom the appellants got information that the respondent cannot recite the Holy Quran and does not practise obligatory duties ordained by Islam. Respondent's presence before the Returning Officer would have removed the doubts that had been expressed by the appellants in objection No.2 but the question which requires answer is whether an I adverse inference is to be drawn against the respondent on objection No.2 as she' did not appear before the Returning Officer. Our answer is in the negative. Firstly, the law i.e. the Representation of the People Act, 1976, does not require the candidate to attend the scrutiny proceedings [Section 14 (1)]. Then subsection (3) of Section 14 leaves it to the Returning Officer to conduct such summary enquiry as he may think fit for scrutinising the nomination papers and for deciding the objections. If he considers necessary for purpose of scrutiny and decision on the objections that presence of any candidate is necessary, he can require the candidate to appear before him. In the instant case, the objectors had not disclosed the sources on the basis of which they had raised objection No.2 but, as observed earlier, they had stated that " Hamari Musdaqa Itlah Kai Mutabiq ." Then the objection was denied by the respondent. Para 6 of the counter-affidavit of the respondent says:

"That as to the objection No.2, the objectors have no personal knowledge and they are presumptive and that too in the negative. I strongly object to the said objection and I submit that I can read Holy Quran and I recite the same in the prayers. I have also performed Umrah more than once where too every Muslim is required to recite Holy Quran and other prayers. As to the allegation of lack of knowledge of Islamic teachings, I vehemently deny the same. It is respectfully submitted that it is not the objector who can fix the standards in this behalf nor can the objector request this authority to put any candidate to test for that purpose nor does the law warrant such an action as has been proposed by the objectors. It is also submitted that it is the objector who has to furnish the proof in support of his allegations/object ions and the objector cannot shift this burden to the candidate." In these circumstances, if the Returning Officer took the view that it was not necessary to call the respondent for the purposes of the summary inquiry, no illegality was committed by him and no adverse inference can be drawn against the respondent for not appearing before the Returning Office. In our view, therefore, objection No.2 was also rightly rejected by the Returning Officer. (iii) Objection No.3 is based on clause (1) of Article 62 which requires the candidate and the member to Se sagacious, righteous and non-profligate and M honest and ameen. On this objection also, Mi. Akram Shaikh had relied upon documents 3 to 13 which have been scrutinised by us. No case is made out under this objection. (iv) Objection No.4 is based on clause (g) of Article 63 (1) of the Constitution, which provides that a person shall be disqualified from being elected or chosen as, and from being, a member of the Parliament, if he is propagating any opinion, or acting in any manner prejudicial to the Ideology of Pakistan, or sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan. Mr. Muhammad Akram Shaikh, learned counsel for the appellants referred to documents Nos. 10, 11, 14, 15, 16, 17 and 18 filed in support of the objections and argued that these documents bring the case of the respondent within the aforesaid disqualification provision. We have already examined, in the earlier part of this order, documents Nos.10 & 11 and, in our view, these documents do not make a case for disqualification of the respondent on the aforesaid ground. Documents Nos.14, 15 and 16 have been relied upon by the learned counsel for the appellants for canvassing that the contents of these documents established that the respondent is propagating the opinion and acting in a manner prejudicial to the integrity and independence of the judiciary of Pakistan and the contents also defame and bring into ridicule the judiciary. Document No.14 comprises two pages (page No.98 and page No.126) of an autobiography, published under the title "Benazir Bhutto--Daughter of the East". This book was published in 1988 and, in this document, on pages 98 and 126, the respondent is remembering the time when she was in detention and she talks about the trial of her father by the Lahore High Court and the dismissal of his appeal by the Supreme Court. Some comments on these pages are no doubt derogatory of the then Chief Justice of the Lahore High Court and the Judges of the Supreme Court, who gave a decision against the father of the respondent. There is also a comment that the Military regime at that time had the control of the Courts. Document No.15 is a photo copy of the address of respondent on 6-12-1988 given by her in a hotel in Lahore on a lunch given by the C.P.N.E. The passage on which Mr. Muhammad Akram Shaikh relies in the extract from the "Dawn" filed as document No.15 is an English translation of a part of the address in Urdu given by the respondent on that occasion. According to document No.16, on that occasion the respondent had, inter alia, stated as follows:-- In document No.16 also, reference is about the trial, conviction and hanging of the father of the respondent. Mr. Abdul Hafeez, Lakho, learned counsel for the respondent submitted that a person whose father is convicted of murder and then hanged on account of the conviction invariably goes on saying that his father was innocent. It was submitted that documents Nos. 14, 15 and 16 should be considered in this back, ground. Mr. Abdul Hafeez Lakho then submitted that these statements were made by the respondent in 1988 and neither the Lahore High Court nor the Supreme Court have taken any action against the respondent on these statements. According to the learned counsel, even a notice has not been issued to the respondent. It was submitted that the statements had been made by the respondent in 19~8 in the context of the case against her father, who was convicted and then hanged. According to Mr. Lakho, if at all the respondent had committed any wrong, the judiciary closed the said chapter. It was also pointed out by the learned counsel that since taking over the reins of her office as Prime Minister of Pakistan and during her entire tenure as Prime Minister, she praised the independence and integrity of the judiciary. It was also submitted that as Prime Minister she had been invited by the Supreme Court at the ground breaking ceremony of the new building of ' the Supreme Court of Pakistan at Islamabad and on the foundation laying ceremony of the High Court building by the Sindh High Court at Sukkur and the addresses of welcome given to her on these two occasions and her replies show the regard and esteem the respondent has for the judiciary in Pakistan. It was additionally submitted by Mr. Lakho that a distinction has to be made between an adverse comment made in respect of a decision in one case against the Judges deciding such case which no doubt may be a wrong, and a case where persistent attacks are made on the integrity and independence of the judiciary as an institution and the judiciary is ridiculed. The statement made by Mr. Abdul Hafeez Lakho on behalf of the respondent that this chapter about the trial of her father is closed and is no longer alive is taken on record. We have given our anxious consideration to this objection relating to the judiciary and we rind that the contentions raised by Mr. Abdul Hafeez Lakho are not without substance. As admitted by Mr. Abdul Hafeez Lakho, Advocate on behalf of the respondent, this matter about the trial of father of the respondent by a Full Bench of the Lahore High Court and the decision of the appeal by the Supreme Court are now closed chapters. Then comments-were made by the 0 respondent (being the. daughter) in documents Nos. 14 and 16 in 1988 but no notice has been issued and no action taken by the Lahore High Court or the Supreme Court against the respondent on these documents. It has not been established that she is propagating at present or has propagated in the recent past opinions against the judiciary as an institution. We are of the view, in the circumstances, that the respondent is not disqualified to be elected as a member of the Parliament on the basis of documents Nos. 14 and

16. We have also been taken through the documents in which the respondent is alleged to have made derogatory remarks against the Armed Forces. However, we find that the comments are mainly in respect of the role played by the I.S.I., according to the respondent. I.S.I. cannot be equated with the Armed Forces. For incurring disqualification under clause (g) of Article 63 (1) of the Constitution with reference to the Armed Forces, it must be shown that the candidate or the member has been propagating opinions against the Armed Forces as an institution. We have accordingly reached the conclusion that a case for disqualification of the respondent has not been made out under objection No.4. (v) The last objection in the Election Appeals Nos.2/90 and 6/90 is based on the address of the President to the nation on 6-8-1990 after the President had dissolved the National Assembly. As observed earlier, while dealing with objection No.1, the address of the President of Pakistan by itself does not disqualify the respondent from contesting election to the National Assembly.

5. Election Appeal No.4/90 has been filed by Syed Jamaluddin and in this Appeal we heard the arguments of Mr. Shaikh Mushtaq Ali, advocate on behalf of the appellant. Three objections had been raised by the appellant before the Returning Officer about the rejection of the nomination papers of the respondent. One was that she has opposed the ideology of Pakistan by criticising the Islamic punishments prescribed by the Holy Quran. The other objection was that she openly defamed the Armed Forces of Pakistan. Mr. Shaikh Mushtaq Ali had adopted the arguments of Mr. Muhammad Akram Shaikh advocate on these two objections. We have already held earlier that these two objections do not disqualify the respondent.

6. The only other objection raised by the appellant Syed Jamaluddin and argued with vehemence by Mr. Shaikh Mushtaq Ali, learned counsel for Syed Jamaluddin, before us was that the respondent is not honest and she has violated the oath of her office as Prime Minister by getting three members of the dissolved National Assembly belonging to U.I. appointed as Ministers in her Cabinet, who became disqualified to be the members of the Parliament under Section 8-B of the Political Parties Act, 1962. We find no merit in this argument. In a summary inquiry, the Returning Officer is not required by the law to determine questions which arise under this objection. And in any case the question whether a member of the Parliament has defected and is liable to be disqulalified under Section 8-B (1) of the Political Parties Act, 1962, is to be decided by the Election Commission of Pakistan as laid down in subsection (2) of Section 8-B of the Act. There is no substance in this objection.

7. We may refer here to a contention raised by Mr. Muhammad Akram Shaikh Advocate about the nature of scrutiny proceedings before the Returning Officer. According to learned counsel, such proceedings are inquisitorial in character and not adversary in nature. Learned counsel relied upon P L D 1989 F S C

1. Section 14 (3) of the Representation of the People Act, 1976, requires the Returning Officer to conduct such summary inquiry as he may think fit either on his own motion or upon any objection raised by an elector or by or on behalf of a candidate and if he is satisfied on the basis of such summary inquiry that the candidate was not qualified to be elected as a member he is required to reject the nomination papers of such candidate. Mr. Akram Shaikh is, therefore, correct in his submission that the Returning Officer is not only required to hold an inquiry where objections are filed but independently of such objections a duty is cast upon him to hold an inquiry if he has doubts about the qualifications of a candidate or if it appears to him that the candidate was disqualified. It may, however, be emphasized here that the candidate or his representative must be confronted with any adverse material or reason on the basis of which his nomination papers can be rejected so that he is in a position to defend himself. In this matter, on the basis of the material with which the respondent was confronted in the summary inquiry, no case for her disqualification was made out.

8. A grievance was also made on behalf of the appellants that the Returning Officer had not taken into consideration the rejoinder riled on their behalf and the documents annexed to the rejoinder. Admittedly the rejoinder was I not taken into consideration by the Returning Officer and the respondent was not given any opportunity to controvert the additional pleas and material in such rejoinder. The Returning Officer could not ignore the rejoinder if it had been riled before him during the summary inquiry being conducted by him on the ground that there was no provision for riling a rejoinder. As observed earlier, under Section 14 (3) of the Act an independent duty is cast upon him to hold a summary inquiry. But on account of restraints of the time available with him to hold and finalise the summary inquiry, it was not possible to confront the respondent's representative with the additional grounds and material in the rejoinder. According to Mr. A.H. Lakho, copy of the objections riled by the appellants was supplied to him at about 8 a.m. on 17-9-1990 and on the same day the respondent riled her counter-affidavit at about 9-30 a.m. Later in the day a rejoinder was riled but it was not considered by the Returning Officer. Hearing took place on the same day and the order rejecting the objections was also passed the same day i.e. on 17-9-1990. On account of constraints of time it would not have been possible for the respondent to rile a reply to the rejoinder the same day even if the Returning Officer had supplied a copy to the respondent. As there was no time to confront the respondent with the additional material in the rejoinder and afford her an opportunity to file a reply to the rejoinder, no illegality has been committed in the proceedings by ignoring the rejoinder.

9. As a result, Election Appeals Nos.2/90, 4/90 and 6/90 are dismissed. A.A./54/E Appeals dismissed.