1988 PLP 504 (CLC)

‑‑‑Words "imprisonment already undergone", connotation of‑‑Such words cannot be used by Trial Court because there was no imprisonment already undergone before conviction‑‑Appellate Court or Revisional Court, however, could use such phrase‑‑Trial Court by use of said phrase meant to award sentence of imprisonment to petitioner for the period for which he remained with the police and in jail as an under trial, and at the same time meant to give petitioner the benefit of S.382‑B of Criminal Procedure Code. (d) Punjab Local Government Ordinance (VI of 1979)‑‑ ‑‑‑S. 21‑‑Constitution of Pakistan (1973), Art. 63‑‑Emigration Ordinance (XVIII of 1979), Ss. 17 & 18‑‑Disqualification for being elected or chosen as a member of elective body‑‑Somewhat different words used for disqualification in Constitution and the Ordinance‑ Effect‑‑Disqualification envisaged by provisions of Ordinance related not only to a member but also to candidate by providing therein that a person would be disqualified to be a candidate or a member of Local Council if he had any of disqualifications mentioned in S.21 thereof‑‑Provisions of Art. 63 of the Constitution however, stated that a person would be disqualified from being elected or chosen as a member if he possessed any of disqualifications mentioned therein‑ Constitutional provisions did not specifically say that such dis qualifications would also apply for being a candidate, although interpretations of same would be that said disqualifications would hold good even for a candidate for election mentioned in Art. 63 thereof. Irfan Akhtar Shah v. Election Tribunal District Shahpur at Sargodha and another P L D 1961 (W.P.) Lah. 189 ref. (e) Constitution of Pakistan (1973)‑‑ ‑‑‑Arts. 25, 63, 127 & 142‑‑Punjab Local Government Ordinance (VI of 1979), S.21‑‑Disqualifications to be a candidate or a member of elective body‑‑Period of imprisonment for being disqualified being different in Art. 63 of the Constitution and S.21 of Ordinance VI of 1979, latter provisions whether ultra vires of Constitutional provisions‑‑Rule of equality before law and "entitlement to equal protection of law",'stated Under Article 25 of the Constitution of Pakistan (1973) all Citizens are equal before law and are entitled to equal protection of law. However, it will be seen that the said Article provides that the equality will be before law and the protection will be of the law. The law in this Article means a law made by competent legislature. Under Article 142 of the Constitution the parliament has the exclusive jurisdiction to make laws with respect to any matter enumerated in the Federal Legislative List while the Parliament and a Provincial Assembly shall have the power to make laws with respect to any matter enumerated in the concurrent Legislative List with some restrictions on the power of a Provincial Legislature. But with respect to any matter not enumerated in either the Federal Legislative List or the concurrent legislative List it is only a Provincial Assembly which has the exclusive power to make laws. The subject of Local Council/Local Bodies is not enumerated in any of the said two lists and, therefore, the said subject falls under clause (c) of Article 142 and on this subject only a Provincial Assembly has the power to legislate. On the other hand Item 41 of Federal Legislatve List relates to elections to the National Assembly, the Senate and a Provincial Assembly with the result that on this subject only the Parliament has the power to legislate. Article 63 exists in the Constitution on the basis of the said Item No.41 of the Federal Legislative List and relates only to elections to the National Assembly and the Senate. Article 63 is applicable to a Provincial Assembly on the basis of Article 127 of the Constitution and that subject also is within the competence of the Parliament under Article 142 of the Constitution read with the said Item No.

41. Therefore, the said Article 63 of the Constitution relates to the elections to the National Assembly and the Senate and when it is read with Article 127 it also relates to elections to a Provincial Assembly. As the subject of elections to a Local Council is a Provincial matter and within the exclusive competence of the Provincial Legislature it is the Provincial Legislature which has to frame a law in regard thereto. When a Provincial Legislature has the exclusive power to legislate on the subject it can legislate and enact legislation best suited to the needs of the Province concerned. Reverting to Article 25 of the Constitution it will be seen that the equality and the protection is before and under a law. Law will mean a Federal Law or a Provincial Law, as the case may be, enacted under the powers vested through Article

142. Therefore, when we talk of equality or protection before and under a law it means equality and protection before and under a law made by a competent legislature. Therefore, the provisions and principles contained in Article 63 of the Constitution will not apply to elections to Local Councils for which the Provincial Legislature only is competent to legislate. Equality before law has another connotation that it will be generally applicable to all the citizens to whom it applies, Ordinance No. VI of 1979 applies to whole of the Punjab without any exception and it applies to all persons without any exception or discrimination. Therefore, clause (d) of subsection (1) of S.21 of Ordinance No.VI of 1979 is not ultra vires of any of the provisions of the Constitution. Raja Aziz‑ud‑Din Ahmad for Petitioner. MUHAMMAD ASADULLAH, J.‑‑The petitioner filed his nomination paper to contest election to Zila Council, from Halqa No.40, Rawalpindi. His nomination paper was rejected by the Returning Officer vide order dated 14‑11‑1987 on the ground that he had been convicted under sections 17 and 18 of the Emigration Ordinance, 1979 (XVIII of 1979) on 29‑1‑1985 and a period of 3 years had not since then elapsed meaning thereby that he was disqualified from being a candidate in view of clause (d) of subsection (1) of section 21 of the Punjab Local Government Ordinance, 1979 (VI of 1979). The petitioner filed an appeal which was dismissed by the appellate authority, respondent No.2 vide order dated 16‑11‑1987. The petitioner then filed a petition under section 17 of Ordinance No. V I of 1979, before the Punjab Election Authority, Lahore and the same was dismissed by the said Authority vide order dated 19‑11‑1987. He has now filed this writ petition to challenge the said 3 orders. We have perused the record and have heard arguments.

2. It is an admitted fact and so is borne out by order dated 29‑1‑1985 of the Special Judge (Central) Rawalpindi, that the petitioner was convicted under sections 17 and 18 of Ordinance No. XVIII of 1979. He, however, contends that these offences do not involve moral turpitude within the meaning of clause (d) of subsection (1) of section 21 of Ordinance V I of 1979. Before referring to the text of the said sections it will be useful to add that charges under sections 17 and 18 of Ordinance XVIII of 1979 were framed against the petitioner. As the said order dated 29‑1‑1985 of the Special Judge shows the petitioner pleaded guilty to the same and only prayed for mercy. Accordingly, he was convicted on both the charges and separate sentences were awarded on each charge, although the sentences were to run concurrently, apart from the payment of fine. Therefore, it is not the case of the petitioner that he was convicted under one of the two said sections. The said section 18 and 'in particular its clause (a) relates to forging of a document relating to emigration to another country. The F.I.R. on the basis of which the case was registered against the petitioner shows that while he was to leave on Flight No. PK 715 on 2‑11‑1984 he was found to be in possession of a British passport issued by the British Embassy in Islamabad in the name of one Mr. Yasin. The petitioner had removed the photograph of the said Yasin and had pasted his photograph in its place although admittedly he is Safdar Hussain and not Yasin. He was, therefore, detained. Therefore, the main offence for which the petitioner was charged and to which he pleaded guilty was the forging of a passport. If such a forgery does not involve moral turpitude then perhaps there will be no offence which would involve the same. Being a Pakistani he was using a passport which had been issued in favour of another person and, as already said, he replaced his photograph thereon. He was impersonating as Yasin although he was Safdar Hussain. Such an offence not only injures an individual but also injures the society as a whole and brings the good name of our beloved country into contempt giving a chance even to foreigner to ridiculous for such offences. Apart from being unpatriotic, the petitioner was doing all this forgery for lust of money by hook or by crook. This is an abhoring offence so clearly involving moral turpitude. Similar is the case in regard to offence falling under section 17 of Ordinance No. XVIII of 1979. Therefore, the petitioner stood convicted and sentenced for offences involving moral turpitude within the meaning of section 21 (1) (d) of Ordinance No. V I of 1979.

3. The learned counsel for the petitioner has referred to Imtiaz Hussain Phulpoto v. Returning Officer Khairpur (1987 SCMR 468) and has argued that every offence cannot be taken to involve moral turpitude and that on the basis of the said ruling of the Honourable Supreme Court the offence of the petitioner does not involve moral turpitude. The conviction in that case has been recorded by a Summary Military Court and it was "not possible to hold as to what was the evidence and material before the Summary Military Court" for conviction. This is not the case here. There was no necessity in this case for any evidence. The petitioner pleaded guilty to both the charges and he was convicted for the said offences. Therefore, we know in this case as to what were the offences and on what basis the petitioner was convicted. The law laid down therein, therefore, does not apply to the case in hand.

4. The learned counsel for the petitioner has also argued that although the conviction was recorded on 29‑1‑1985 yet the sentence of the petitioner came to an end on 17th or 18th November, 1984 because he had been arrested on 1‑11‑1984 and had been awarded a sentence of imprisonmnt for 16 days. He states that according to this situation the period of 3 years would end on 17‑11‑1987 or 18‑11‑1987 and, therefore, his disqualification, if any, would stand wiped out by the said date and he would be eligible to contest the election as the process of election would end on 30‑11‑1987 when the voting will take place. The petitioner was convicted through judgment dated 29‑1‑1985 of the Special Judge (Central) Rawalpindi and he was sentenced "to the imprisonment already undergone (16 days) under each count". He was convicted and sentenced on 29‑1‑1985 and not before. His sentence could not be made to run retrospectively nor was so ordered in the said judgment and in fact it could not be so ordered (retrospectively) under any law. As a matter of fact the learned trial Judge used the words "imprisonment already undergone" mistakenly and perhaps thinking that he was acting as an appellate Court. The words "imprisonment already undergone" .are not used by a trial Court because then there is no imprisonment already undergone. These words are used only by an appellate Court or a revisional Court. The learned trial Court meant to award sentence of imprisonment', for 16 days, the period for which he has remained with the police and in jail as an under‑trial and at the same time meant to give the petitioner the benefit of section 382‑B, Cr.P.C. and instead of going in this detail he finished the matter by saying that the sentence, would be of "imprisonment already undergone". However, he was cautious to add that it will be taken to be a sentence of imprisonment for 16 days. As already said there can be no sentence before conviction. Therefore, this sentence started and ended on 29‑1‑1985 and did not start on the date of his arrest and therefore did not end on 17th or 18th November 1984. Accordingly the period of 3 years did not elapse on 17th or 18th November, 1987 but will end on! 28‑1‑1988.

5. The learned counsel for the petitioner has referred to Irfan Akhtar Shah v. Election Tribunal, District Shahpur at Sargodha and another (PLD 1961 (W.P.) Lah. 189) to press the point that if the period is taken to have ended on 17th or 18th November, 1987 the petitioner would be entitled to contest the election as his disqualification would stand removed before the crucial date of 30‑11‑1987. The principle laid down therein is not applicable to the present case at all because under section 21 of Ordinance No.VI of 1979 the disqualification relates not only to a Member but also to a candidate. It provides specifically that a person shall be disqualified to be a candidate or a Member of a Local Council if he has any of the disqualifications mentioned in the said section. In Article 63 of the Constitution of the Islamic Republic of Pakistan the words used for the disqualification are somewhat different. According to the said Article a person shall be disqualified from being elected or chosen as Member if he possesses any of the disqualifications mentioned therein. It does not so clearly say that the disqualifications mentioned therein will also apply for being a candidate, although the interpretation of the same may be that the said disqualifications will hold good even for a candidate for an election mentioned in the said Article

63. However, the position in our law is very different. It had been; provided that a person with disqualification mentioned in section 21' will be disqualified to be a candidate. Therefore, even if the sentence had been taken to have ended on 17th or 18th November, 1987 the petitioner could not contest the election and the rejection of his paper would still have been quite valid and legal.

6. The learned counsel for the petitioner has argued that clause (d) of subsection (1) of section 21 of Ordinance No.VI of 1979 is ultra vires of the Constitution. He has referred to the said Article 63 of the Constitution in which the basis and the process for disqualification of a person convicted for an offence is somewhat different. Sub‑clause (4) of clause (1) of Article 63 provides that the period of imprisonment for being disqualified would be a mininum of 2 years and it will be the Chief Election Commissioner who has to determine whether the offence involves moral turpitude or not. He contends that on the basis of equal treatment even in Ordinance No.VI of 1979 the period of imprisonment should have been a minimum of 2 years and not less. It is correct that under Article 25 of then Constitution all citizens are equal before law and are entitled to equal protection of law. However, it will be seen that the said Article provides that the equality will be before law and the protection will be of the law. The law in this Article means a law made by a competent legislature. 'Under Article 142 of the Constitution the Parliament has the exclusive jurisdiction to make laws with respect to any matter enumerated in the Federal Legislative List while the Parliament and a Provincial Assembly shall have the power to make laws with respect to any matter enumerated in the Concurrent Legislative List, with some restriction on the power of Provincial: Legislature. But with respect to any matter not enumerated in either the Federal Legislative List or the Concurrent Legislative List it is only a Provincial Assembly which has the exclusive power to make laws. The subject of Local Council/Local Bodies is not enumerated in any of the said two lists and, therefore, the said subject falls ‑under clause (c) of Article 142 and on this subject only a Provincial Assembly has the power to legislate. On the other hand Item 41 of Federal Legislative List relates to elections to the National Assembly, the Senate and a Provincial Assembly with the result that on this subject only the Parliament has the power to legislate. Article 63 exists in the Constitution on the basis of the said Item No. 41 of the Federal Legislative List and relates only to elections to the National Assembly and the Senate. This Article 63 is applicable to a Provincial Assembly on the basis of Article 127 of the Constitution and that subject also is within the competence of the Parliament under Article 142 of the Constitution read with the said Item No.41. Therefore, the said Article 63 of the Constitution relates to the elections to the National Assembly and the Senate and when it is read with Article 127 it also relates to elections to a Provincial Assembly. As the subject of elections to a Local Council is a provincial matter and within the exclusive competence, of the Provincial Legislature it is the Provincial Legislature which' has to frame a law in regard thereto. When a Provincial Legislature has the exclusive power to legislate on the subject it can legislate and enact legislation best suited to the needs of athe Province concerned. Reverting to Article 25 of the Constitution it will be seen that the equality and the protection is before and under a law. Law will mean a Federal Law or a Provincial Law, as the case may be enacted under the powers vested through Article

142. Therefore, when we talk of equality or protection before and under a law it means equality and protection before and under a law made by a competent legislature. Therefore, the provisions and principles contained in Article 63 of the Constitution will not apply to elections to Local Councils for which the Provincial Legislature only is competent to legislate. Equality before law has another connotation that it will be generally applicable to all the citizens to whom it applies. Ordinance No. VI of 1979 applies to whole of the Punjab without any exception and it applies to all persons without any exception or discrimination. Therefore, clause (d) of subsection (1) of section 21 of Ordinance No. V I of 1979 is not ultra vires of any of the provisions of the Constitution.

7. In view of our discussion above the writ petition is dismissed in limine. A. A./S‑176/L Petition dismissed.