1986 PLP 2001 (MLD)

"Anything done contrary to justice, honestly, principle, or good morals; an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." On the other, hand Mr. Khalid Ishaque, the learned counsel for the respondent No.2 cited the following decisions:‑

(i) Baheshwar. Sing v. District Magistrate and Collector of Banaras A I R 1959 All. 71 wherein a question arose as to whether conviction under section 182, Penal Code for making a false report was in respect of an offence involving moral turpitude and in answering this question in the affirmative Mr. J.K. Tandan, J observed. "The expression 'moral turpitude' is not defined anywhere, but it means anything done contrary to justice, honesty, modesty or good morals. It implies depravity and wickedness of character of disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses vileness or depravity in the doing of any private and social duty which a person owes to his fellowmen or to 'the society in general." (ii) In the case of Mangali v. Chhakki Lal A I R 1963 All. 527‑ Mr. A.P. Srivastava, J. laid down the following tests:‑

"(1) whether the act leading to a conviction was such as could shock the moral conscience of ,society in general. (2) whether the motive which led to the act was a base one, and (3) whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society." (iii) In Risal Singh v. Chandgi Ram and others A I R 1966 Punjab 393 the facts were that Chandgi Ram contested the election to the seat of the Pradhan of the Gon Panchayat and he was declared elected. Risal Singh appellant challenged the election on the basis of the fact that Chandgi Ram had been convicted of an offence under section 19 (f) of the Arms Act and that he was not qualified to stand for the election and his nomination papers had been improperly accepted. He filed election petition before the Election Tribunal. The Election Tribunal held that he was not qualified to stand for the election and his election was held invalid. Chandgi Ram came to the Punjab High Court by way of a writ. A learned Single Judge held that the possession of an unlicensed revolver could not amount to moral turpitude and the writ was allowed. The appellant filed Letters Patent Appeal against the order. The Division Bench held that the tests which were laid down in Mangal's case (quoted hereinabove) were kept in view, '1 do not see how it can fairly be said that the offence of which Chandgi Ram had been convicted involved moral turpitude.' The learned Judges held: "On the facts of the case before us, we are unable to find any error in the view of the learned Single Judge that the offence for which Chandgi Ram respondent was convicted implied no such depravity and wickedness of character or disposition which would involve any moral turpitude. As observed by the learned Single 4dge, people keep fire‑arms for their personal safety and sometimes they resort to keeping arms without a licence when they feel that their status in society is not such as would enable them to get a licence from the authorities. No doubt they commit a contravention of the law, but it cannot necessarily be postulated that this contravention involved moral depravity and illness of character." . (iv) In the case of. Muhammad Shabbir Abbasi v. Abdul Rashid Mughal 1989 C L C 270 the facts were that Abdul Rashid respondent was declared to the seat of a Councillor from Ward No.8, Municipal Committee, Murree. Shabbir Abbasi challenged the election on the ground that he was convicted and sentenced in a criminal case and was, therefore, disqualified from contesting the said election. A, Division Bench of Lahore High Court allowed the petition and declared that Abdul Rashid stood disqualified to be u member of the Municipal Committee. Abdul Rashid filed Petition for leave to Appeal against the judgment before the Supreme Court: Leave was granted. The Hon'ble Supreme Court while accepting appeal observed as follows:-- "It is obvious that in the absence of any legal evidence learned Judges were somehow persuaded to hold, merely on the basis of the contents of the F.I.R., that appellant was convicted for an offence involving moral turpitude. Unfortunately they failed to notice that both the documents produced in support of the allegations against appellant, namely F.I.R. and certificate from Deputy Superintendent, District Jail, Rawalpindi, were in admissible evidence and by themselves, furnished no proof upon which a conclusion could be drawn, much less a judgment rendered, that appellant was held guilty and convicted for an offence involving moral turpitude." (v) In Mian Shahbaz Ahmed v. Hap Muhammad Tariq and others 1985 S C M R 227 the petitioner filed an election petition alleging the following disqualifications against the respondent Muhammad Tariq: (i) The respondent No.1 is a known office‑bearer, worker and activist of the defunct‑Pakistan Peoples Party. (ii) On a number of occasions, he has been arrested and detained for his anti‑State and subversive activities. (iii) That there were inadequate polling arrangements; large proportion of voters were deprived of their right to record their vote. The election of respondent 'No.1 was declared to be void and the petitioner was declared to be duly elected candidate. The Constitution Petition filed by the respondent No.1 was allowed by the Lahore High Court. The petitioner filed Petition for Special Leave to Appeal before the Supreme Court. The Hon'ble Supreme Court while refusing leave to appeal observed as follows: "It had to be proved by an affirmative evidence not only that the respondent No.1 was a member of the poetical party like the Pakistan Peoples Party but also that he held a post on the Executive Committee at any of the tiers mentioned in the disqualification clause. The evidence led with regard to the application made by the petitioner to the Governor shows that he all the time represented himself to be the office‑bearer of a welfare society and not of a political party and he sought exemption at a stage when the Returning Officer had rejected his nomination paper on the ground of his being an office‑bearer and he sought intervention of the Governor to be relieved of the supposed disqualification. There was neither an expres3 admission nor could it be implied that he was an office‑bearer of the description provided in clause (h). Except for the statement of the petitioner during proceedings before the Election Tribunal, there was nothing else to bear it out. The Election Tribunal has not specifically held the respondent No.1 to be disqualified under clause (h) but has proceeded to hold that after the refusal of the Governor no authority could permit him to contest the election. The refusal of the Governor did nut by itself create a disqualification but was dependent on a disqualification already incurred. The High Court, therefore, was correct in observing that the finding of the Election Tribunal was conjectural and based on surmises. As regards the second disqualification though the allegation in the election petition was that the respondent No.1 had been on number of occasions arrested and detained for 'his anti‑State and subversive activities the only evidence led was of his conviction by a Summary Military Court more than three years before the election. The F.I.R. was put in evidence to prove the nature of the allegations against him. The judgment of the Summary Military Court or the charge levelled against him were not put in evidence. The conviction by itself could be of relevance if it had taken place within three years of the election. However, as it did not affirmative evidence had to be brought to demonstrate that the respondent No.1 was engaged in activities directly or indirectly prejudicial to the interest, security, integrity or solidarity of Pakistan. Infraction or Martial Law Regulation and conviction thereof could not by itself lead to any such conclusion unless evidence was given of the exact nature of allegations levelled and proved against the respondent. The proof furnished by the petitioner was deficient by all standards to disqualify a duly elected candidate." In the present case, the respondent. No.2 was tried ‑by the Summary Military Court No.7, Khairpur, under Martial Law Regulations 5 and 36 and Martial Law Order No.77 on the ground that during M.R.D. movement on 18th August, 1983 there was a procession led by respondent No.2. The charge‑sheet slip (Exh. 7/8) would show that respondent No.2 was convicted and sentenced to rigorous imprisonment for nine months and he was ordered to pay a fine of Rs.15,000 or in default of payment of fine, he would suffer rigorous imprisonment for three months. The petitioner filed his affidavit‑in‑evidence and adopted contents of election petition. He stated in para. 3 of the affidavit‑in‑evidence that "I say that the respondent No.2 after being convicted by Summary Military Court for an offence involving moral turpitude stood disqualified from being elected as member of Provincial Assembly. Such fact of his conviction was known to entire constituency, and the votes secured by him were thrown away votes. Since, I secured second highest votes, therefore, I am entitled to be declared as duly elected from the constituency, and my prayer to that extent may kindly be granted." The petitioner was cross‑examined by the learned counsel for the respondent No.2. The petitioner to a suggestion in cross‑examination stated that: "I have not published any pamphlet showing that the respondent No.2 is a convict from Summary Military Court and I have also not issued any statement to any newspaper. Voluntarily says that every one knows that he is a convict. I did not file any appeal before the Appellate Authority against the acceptance of his nomination paper. Voluntarily says that I was under the impression that Government will itself declare him as disqualified. I do not remember the date of taking out procession by the respondent No.2. On that day I was in Khairpur. I did not witness the procession. I only heard that there was a procession and I saw the F. I. R. to this effect. I was not made Mashir or witness in the Military Court in the said case, I have no personal knowledge about the proceeding. I tried to obtain certified copy of the judgment passed by the Military Court but I could not obtain the same. I do not know the findings of the Military Court." P.W.2 Manzoor Ahmed (Exh. 7) stated in his examination‑in‑chief that "on 18th August, 1983 during M.R.D. movement there was a procession led by Sardar Imtiaz Khan Phulpoto. He is present in Court. S.H.O. Baberloi Police Station lodged a F.I.R. against respondent No.2 and other persons. I produce attested true copy of the F.I.R. as Exh.7/1. I recorded statement of 5 or 6 witnesses. I produce the statements of the witnesses as Exhs. 7/2 to 7/7. I filed challan against respondent No.2 on 22nd August, 1983 'before Summary Military Court No.7. The statements of the witnesses were recorded before the Summary Military Court. The respondent No.2 was convicted by the Summary Military Court to R.I. for nine months and fine of Rs.15,

000. I produce photostat copy of the conviction slip as Exh.7/8 and also produce letter issued by S.P. addressed to D.I.‑G. Sukkur Range, Sukkur as Exh.7/9. I produce certified copy (Mr. M.L. Shahani has produced from his own record) as Exh.7/10. It is correct that after conviction respondent No.2 was lodged in Central Jail, Khairpur. (This document. handed over by Mr. M.L. Shahani from his own record) I produce it as Exh. 7/11." The P.W.2 to a suggestion in cross‑examination stated that "all the accused persons were convicted under M.L.R.

5. M.L.O. 77 and M.L.R.36. I cannot say that a particular person was convicted under a particular M.L.O." It is an admitted position that mother of the respondent No.2 filed petition and on her petition a fine of Rs.15,000 was remitted. It is also an admitted position that the respondent No.2 filed‑ Review Petition (Exh.8/11) before the Martial Law Administrator, Zone 'C', Karachi, which was also rejected. It is also an admitted position that he was admitted in Central Jail, Khairpur on 4th September, 1983 (Exh.7/11). The deposition of the P.W.2 would show that during the trial of the respondents No. 2, 5 or 6 witnesses were examined by the prosecution, all of whom supported the allegations made in F.I.R. (Exh.7/1) that the respondent No.2 led the procession. In view of the said evidence, the Summary Military Court found the respondent No.2 guilty and convicted him as aforesaid. Martial Law Regulation No.5 lays down that:‑ "No person shall organize or convene or attend any meeting, not being a religious congregation, in an open public place, or organize or take out a procession, not being a religious, funeral or marriage procession, without the prior written permission of the Martial Law Administrator concerned. (2) No person shall attend or otherwise take part in any meeting or procession organized or convened or taken out in contravention of paragraph 1 of this regulation. Explanation 1.‑‑In this regulation 'open public place' includes any tent, enclosure of other structure of temporary nature erected or constructed in a public place for the purpose of meeting. Explanation 2.‑‑A meeting' includes political meeting, Trade Union meeting, Students' Union meeting or any other meeting involving discussions on any topic of political nature.. Maximum punishment 7 years' rigorous imprisonment, fine and/or whipping not exceeding 10 stripes. Martial Law Regulation 36 says that:‑

(1) Whoever abets the commission of an offence punishable with death or imprisonment for life shall if that offence be not committed in consequence of the abetment and no express provision is made by any Martial Law Regulation or Order or any other law for time being in force, be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine and/or whipping. (2) Whoever attempts to commit offence punishable with death or imprisonment for life and in such attempt does any act towards the commission of the offence shall, if no express provision is made by any Martial Law Regulation or Order or any other law for the time being in force, be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine and/or whipping. (3) Whoever abets the commission of an offence punishable with rigorous imprisonment shall, if that offence be not committed in consequence of the abetment and no express provision is made by any Martial Law Regulation or Order or any other law for the time being in force for the punishment of such abetment, be punished with rigorous imprisonment for a term which may extend to one‑third part of the longest term provided for that offence, or with such fine as is provided for that offence or with both and/or whipping. (4) Whoever attempts to commit an offence punishable with rigorous imprisonment and in such attempt does any act towards the commission of the offence shall, if no express provision is made by any Martial Law Regulation or Order or any other law for the time being in force for the punishment of such attempt, be punished with rigorous imprisonment for a term which may extend to one‑third part of the longest term provided for that offence, or with such fine as is provided for that offence pr with both and/or whipping. (5) Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment and no express provision is made by any Martial Law Regulation or Order or any other law for the time being in force for the punishment of such abetment, be punished with the punishment provided for the offence. Explanation I ‑‑An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation or in pursuance of the conspiracy, or with the aid which constitutes the abetment. Explanation II ‑‑When an act is abetted and a different act is done, the abettor shall be liable for the act done, in the same manner and to the‑same extent as if he had abetted it provided the act done was a probable consequence of the abetment.

6. Martial Law Regulation No.2 is hereby cancelled." . Similarly Martial Law Order 77 lays down that:‑-- (1) This Martial Law order, hereinafter, referred to as this Order, shall come into force at once. (2) (1) This Order shall have effect notwithstanding anything contained in any other law for the time being in force or any judgment of any Court, including the Supreme Court or a High Court. (2)

(3) A Military Court, constituted under Martial Law Order No.4, shall have power and jurisdiction to try and punish any person for the under‑mentioned offences notwithstanding that any of the said offences is exclusively triable by a Special Tribunal or Special Judge or any other authority or body under any law special or otherwise:‑ (a) treason, subversion, sedition, sabotage, prejudicial activity and seducing members of Armed Forces or persons in the service of Federal Government or Provincial Government or in the service of any autonomous or semi‑autonomous body in which the Federal Government or a Provincial Government has an interest; (c)

(d)

(e)

(f) contravention of any Martial Law Order or Martial Law Regulation. Explanation 1.‑‑Any of the above‑mentioned offences shall, if not punishable under any of the existing Martial Law Regulations, for the purposes of this Order, be deemed to be an offence under a Martial Law Regulation and be punishable with any of the punishments provided for in Martial Law Order No .5. Explanation 2.‑‑"Prejudicial activity" shall include to bring or attempt to bring into hatred or contempt, or excite or attempt to excite disaffection towards Martial Law Administration or any member thereof." It would thus be seen that by the type of allegation made against him by the prosecution, the respondent No.2 clearly brought himself within the mischief of the said two Martial Law Regulations. The Summary Military Court has found that the respondent No.2 had indeed led the procession and raised slogans and there is nothing on record to controvert the said finding. In these circumstances it cannot be said that he was not convicted for crime. From the consideration of the Dictionary meaning of the words "Moral Turpitude" as well as the ratio decidendi of the cases, the principle that merges appears to be that the question whether a certain offence involves moral turpitude or not will necessarily depend on the circumstances in which the offence is committed. It is not every punishment that can be considered to be an offence involving moral turpitude. Had that been so, the qualification "involving moral turpitude" would not have been used by the Legislature and it would have disqualified every person who had been convicted of any offence. The tests which should ordinarily be applied for judging whether a certain offence does or does not involve moral turpitude appear to be: (1) Whether the act leading to a conviction was such as could shock the moral conscience of society in general; (2) whether the motive which led to the act was base one, and (3) whether on account of the act having been committed the perpetrator could be considered to be of depraved character or a person who was to be looked down by the society. On the facts of the case before me, I am of the view that the offence for which respondent No.2 was convicted that he was not only organizing a procession but led the procession which was prohibited by Martial Law Regulation No.5. The respondent No.2 violated the provision of Martial Law Regulation No.5, the act doubtless involves moral turpitude. I am of the view that the Tribunal cannot examine the evidence on which the conviction or the perpetrator's plea of guilty is based but must resort to the statutes or the Martial Law Regulations to define the particular character of the crime, moral turpitude being defined as an act of ‑baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen or to society. A duty has been cast on individuals not to act or organize a procession which is prohibited by Regulation No.5. This is a duty which every individual or citizen who is governed by the above laws owes to the society whose member he obviously is. An individual's conduct in organizing a procession in the circumstances stated in Martial Law Regulations is, therefore, contrary to justice, honesty and good morals and shows depravity of character and wickedness. This provision in Article 11 of the said Order is based on sound and reasonable principle. When a person is convicted in an offence involving moral turpitude, he cannot be permitted to take any part in any act or proceedings of the Parliament or Provincial Assemblies and the Legislature in its wisdom thought it proper to empower the Returning Officer or the Election Tribunal to disqualify such person. The last submission of the learned counsel for the petitioner is that the election of respondent No.2 is void on the ground that he is disqualified from being elected from Constituency No.PS‑26‑A, Khairpur for the seat of Sind Provincial Assembly and the petitioner is entitled to be, declared elected in accordance with section 69 of the said Act. In this connection it will be beneficial to reproduce` section 69:‑‑ "Ground for declaring a person other than a returned candidate elected.‑‑The Tribunal shall declare the election of the returned candidate to be void and the petitioner or. any other contesting candidate to have been duly elected, it` if is so Maimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected." The petitioner secured 9,364 votes as against the respondent who secured 1,4,837 votes. In this context paragraph 930 of the Halsbury's Laws of England Volume 15, Fourth Edition which has been repeatedly referred to in all ‑the leading judgments on the subject, is relevant which is reproduced hereunder:‑ "

930. Votes given to a disqualified 'candidate,.‑‑Votes given for a candidate who is disqualified may in certain circumstances be regarded as not given at all or thrown away, and to decide this a scrutiny is not necessary. The disqualification must be founded on some positive and definite fact existing and established at the time of the poll so as to lead to the fair inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being a Peer, alien or minor, or a person convicted of an offence and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence. For the votes given for a candidate to be thrown away, the voters must, before voting, either have had or be deemed to have had notice of the facts creating the candidate's disqualification, and is not necessary to show that the elector was aware of the legal result that such a fact entailed disqualification. Votes given without such notice are good, if, after deducting the votes given after such notice from the total number of votes given for the disqualified candidate, the remains in a majority, the minority candidate cannot take the seat and there must be a fresh election." The entitlement of a candidate securing the second highest votes to be declared elected, was examined by the Hon'ble Supreme Court in Syed ... ... ... ... ... ... voter of this country, it cannot be disputed that the disqualification was not so apparent and notorious as to justify the inference of wilful perverseness on the part of the electors who voted for the appellant to cast away their votes. The disqualification was certainly based on "complicated facts and legal arguments" and as such did not justify the disenfranchisement of about 10,000 votes. The same view was taken by this Court in a recent judgment delivered whereby Lal Muhammad v. Usman Kennedy etc. (Petitions for Special Leave 'to Appeal Nos. K‑138), Muhammad Usman Kennedy v. Lal Muhammad etc. (K‑143 of 1974) arising out of the same election to the Sind Provincial Assembly and directed against the appellate order of the High Court were dismissed . vide judgment, dated 17th December, 1974 wherein a reference leas also made to the High Court's judgment in the instant case. It appears, however, that in its judgment in the latter case which wag upheld by this Court, the High Court did appreciate that it had not taken note of this Court's decision in Rashid Ahmad v. Barkat AM P L D 1968 S C 301 wherein the general principles contained in paragraph 542 of Halsbury's Laws of England Volume 14 were approved." In Abdul Ghani v. Mumtaz Hassan 1986 S C M R 1701 the Hon'ble Supreme Court held as under:‑ "In view of the above‑noted principle, which Saeed Hasan v. Pyar Ali and 7 others P L D 1976 S C

6. In that case the appellant had been declared elected as a member of the Sind Provincial Assembly in 1970 having polled 9,800 votes as against 6,965 and 6,951 votes polled by respondent Pyar Ali and Lutufullah. The election was challenged by means of an election petition. The election of appellant was declared to be void and further Pyar Ali was held to be entitled to be duly elected. Dealing with the later issue, the Hon'ble Supreme Court had occasion to examine the provisions of section 66 of the National and Provincial Assemblies (Election) Ordinance, 1970, which provide that where the election of a returned candidate is declared void and the Election Tribunal is satisfied that the candidate who secured the net highest votes is so entitled, may declare him to be elected. Their Lordships of the Supreme Court examined the meaning of the words 'satisfied' and 'entitled'. The provisions of section 69 of the Representation of the People Act, 1976 are in the terms pari materia with section 66 above referred. It is advantageous to reproduce the relevant observation: "Thus, having regard to the much belated time of printing and distribution of the 'pamphlet, namely, the eve of the poll and the conspicuously meagre evidence on the point of circulation, we are of the view that it did not justify the inference drawn by the Tribunal that but for the pamphlet respondent No.1 would have swept the polls. Even otherwise, having regard to the level of legal knowledge and awareness of the average 'had been followed by this Court in cases referred to in paragraph No.7 above what is to be seen by us in the present case is whether the fact constituting the disqualification, namely, that the appellant was employed as a School teacher in a Primary School run by the Government was well known and whether at the time of polling, the voters considered him to be a school teacher or they knew that having resigned from the said post, he was now a milkman by profession, as shown in the relevant column of the electoral roll, against his name. The question would turn upon the knowledge that the voters can be deemed to have had as to the appellant's profession or vocation because if they voted for him as a school teacher it will then be fair to infer that the voters were wilfully perversing in casting their voters in his favour despite this knowledge, even if it cannot be shown 'that they were aware of the legal result that such fact entailed disqualification'. And if that be the case, then the Election Tribunal was justified in having regarded the votes cast in his favour as 'thrown away' and declare Mumtaz Hussain as having been elected." In the present case, the petitioner stated in his affidavit that the respondent No.2 was a convict was too well‑known and of sufficient! notoriety. This statement was not denied by the respondent No.2. It is well‑settled position in law that if some fact is deposed to in examination‑in‑chief which is not questioned in cross‑examination the presumption is that part of the evidence is deemed to have been accepted by the party against whom that evidence has been given. Acting on this principle, I accept the evidence of the petitioner. His evidence in respect of the respondent No.2 was that he was a convict was too well‑known and of sufficient notoriety having not been questioned. For reasons mentioned above, I hold that respondent No.2 stood disqualified on the day when nomination papers were filed for the reason that he was at that time had been convicted for a crime involving moral turpitude. As such I allow the election petition and in consequence respondent No.2 stands unseated and in his place, I declare the petitioner, who has secured highest votes, to have won the election to the constituency mentioned above. A.A. Election petition allowed.