1984 PLP 318 (CLC)

Muhammad Asghar v. Government of Sind P L D 1977 S C 212 and Sudagar Ali v. Chairman, District Council, Multan P L D 1963 (,A . P.) Lah. 601 rel. (g) Provisional Constitution Order (1 of 1981)- Art. 9-Order passed, void-Superstructure built upon such order, held, destined to fall. Nawab Syed Raunaq Ali and others v. Chief Settlement Commis sioner and others P L D 1973 S C 236 rel. (h) Provisional Constitution Order (1 of 1981)- -- Art. 9-Courts, held, not supposed to be overwhelmed with idea of inconvenience of any agency, once Court reached conclusion that order challenged was unjust and illegal. Iftakhar Muhammad for Petitioner. Munawar Ahmed Mirza for Respondents Nos, I to

3. Basharatullah for Respondent No.

4. Date of hearing : 20th November, 1983. ZARAULLAH LODHI, ACTG. C. J.-The petitioner filed his nomination papers to contest elections from Union Council Khudabadar. The fourth" res pondent also filed his nomination papers from the same constituency. The scrutiny of the nomination papers was held, on 25th July, 1983 by the learned Deputy Commissioner-cum-Returning Officer, Panjgoor in which the petitioner's nomination papers were rejected on the ground that he had been convicted and sentenced to undergo one year R. 1. by a Summary Military Court. This order further reads that the petitioner explained to the learned Deputy Commissioner that although he had been convicted by the Summary Military Court, but the punishment was subsequently remitter and he was acquitted by the Deputy Martial Law Administrator, Makran Division vide an order communicated to him, on 12th February, 1980 but as the order was not in the petitioner's possession at that time, he asked for ten minutes time to bring the same, but despite waiting uptil 2-15 p. m. he did not turn up, as such, the orders disqualifying the petitioner to con test the elections on the ground of convictions were passed. The petitioner had also objected to the nomination of the fourth respondent on the ground that he was President of defunct-P.N.P. and that he was also a dismissed Government servant, but such objections were not upheld for want of proof.

2. Aggrieved by the above-said two decisions, the petitioner filed two separate appeals ; one against the order of the rejection of his own nomi nation papers and the other against the orders of the rejection of his objec tions to the nomination of the fourth respondent. Both these appeals were dismissed vide separate orders passed, on 1st August, 1983. In the appeal filed by the petitioner against the rejection of his nomination papers, the learned Commissioner summoned the learned Deputy Commissioner who is stated to have revealed before him that the petitioner despite conviction in 1979 continued to instigate the students and was thus disqualified under the provisions of section 21 (j) of the Baluchistan Local Government Ordinance, 1980 read with Baluchistan Local Government Amendment Ordinance, 1983 (hereinafter called the "Ordinance"). The solitary state ment of the learned Deputy Commissioner was acted upon by the learned Commissioner, who held that although the petitioner's conviction had been set aside by the D.M.L.A. and he was not liable to be disqualified on that score, but as the learned Deputy Commissioner had alleged that the peti tioner instigated the students, therefore he was disqualified to be a candi date in the forthcoming Local Council elections. With regard to the appeal against the rejections of the objections raised by the petitioner to the fourth respondent's nomination, it was held that the factum of the fourth respondent's holding the post of the President of defunct P.N.P. (N.A.P.), had been refuted by him (the fourth respondent) and the second allegation of dismissal from service was also not substantiated by the order of termination of service which indicated that he had been compulsory retired from service ; therefore, this appeal was also dismissed. Since no arguments have been advanced on this aspect, therefore, we need not discuss it any further. This petition filed in the above-mentioned background assails the two orders, both, dated 25th July, 1983 passed by the learned Deputy Commis sioner and the two orders both, dated Ist August, 1983 passed by the learned Commissioner, Mekran Division.

3. The main contention raised before us by the learned counsel for the petitioner Mr. Iftikhar Muhammad is whether the Deputy Commissioner was justified in rejecting the nomination papers of the petitioner and also whether the Commissioner who had held that the disqualification on account of conviction did not exist in way of the petitioner, could still reject the nomi nation papers by a hitherto non-existing ground namely, that the petitioner indulged in instigating the students and was, therefore,' disqualified under section 21(j) of the Ordinance. He argued that since no such ground had been taken up before the learned Deputy Commissioner who in his capacity of the Returning Officer was responsible to scrutinize the nomination paper, therefore, it could not be agitated before the learned Commissioner before whom only the appeal against the rejection of his nomination papers on a definite ground was preferred. He further argued that as no chance to re fute the fresh allegation of instigating the students was given by the learned Commissioner, therefore, on this ground also the finding on this point was not sustainable. It can well be appreciated that no notice of this fresh allegation was given to the petitioner. The record, some of which has been produced by the learned Deputy Commissioner alongwith his counter -affidavit in this Court and which is likely to have been produced before the learned Commissioner as well, shows that the copies of the same had not been given to the petitioner before his appearance in the learned Commis sioner's Court ; he was as 'such taken by surprise. Lack of adequate opportunity to the petitioner to refute the allegations levelled against his is enough to render the impugned order as illegal. Replying the contention of Mr. Iftikhar, Mr. Basharatullah, learned counsel for the fourth respon dent submitted that under rule 18 of the Baluchistan Local Government (Elections) Rules, 1983 (hereinafter called the "Rules"), the Commissioner enjoyed the same powers of considering the nomination of a candidate and passing an appropriate order, as were enjoyed by the Returning Officer, as such, introduction of a new ground by the learned Deputy Commissioner and its consideration by the learned Commissioner was not objectionable in law. We do not, however, contribute to this view. This interpretation of the law is wholly falacious for the simple reason that the elections laws have introduced a definite hierarchy of authorities and the functions and jurisdiction of each one of them is distinct and separate. A bare recital o rule 18 makes it quite clear that the appellate powers bestowed by it upon the appellate authority are, if not the same, at least akin to those which are normally invested in the appellate Courts, that is to say that while disposing of the appeals they will consider those points only by which the appellant before it, has felt aggrieved and upon consideration of the same, shall either accept, reject modify or remand the case to the same or any other authority for its disposal and, if at all, a new ground for consideration cropped up, the case would normally be referred back to the original Court for considering the same and this is, done in order to provide an opportunity to the contesting -parties to substantiate the same by evidence, if necessary. Neatly, the law makers have never been in favour of creating duality of any kind, in the matter of allocating and defining respective jurisdictions of each Court. It is thus unimaginable that they would create a sort of confusion by con ferring powers of the original and appellate Court to a single forum. Thus, the introduction of the new ground for the rejection of the nomination paper prima facie appears to be ill-founded. However, even if it is supposed for the sake of arguments that fur, appellate authority could consider a fresh ground pleaded before it by his, own subordinate, namely, the learned Deputy Commissioner, a further question that arises is as to whether a finding could be given on the new issue without allowing sufficient opportunity to the petitioner to rebut fit same. In the instant case, no such steps were taken and, therefore, the findings on this ground patently offend the principle of natural justice, It need not be reiterated that the right of hearing is not necessarily to be incorporated in a Statute of whatever nature and description it may be so many words, but by virtue of the settled legal position, it has to be read into every Statute and all authorities, whether Executive or Judicial, are bound to pass orders after due hearing of the persons likely to be affected adversely by their order. Such hearing includes the recording of the evi dence and examination of the relevant records etc. Nothing such having been done in the instant case, not only the introduction of the new ground of causing instigation to the students is unwarranted by law but it acceptance in the manner evident from the record is also absolutely illegal.

4. It was also argued before us by Mr. Iftikhar Muhammad that the report sent by the Chairman, Town Committee Chitkan, to the learned Deputy Commissioner and submitted by him to the learned Commissioner (copy whereof is Annexure `R-3 f F' to the petition) which in fact is the basis of the impugned order of the learned Commissioner, was based on conjec tures as it did not disclose any definite instance of instigation against the petitioner. Not only that the nature of instigation and the purpose for which it was allegedly caused has not been explained in the report ; but surprisingly it is one Baboo Yar Muhammad whose name prominently appear in the report as the person opposed to the sitting Chairman of the Town Committee, Chitkan, who has been allegedly instigating the students, and the petitioner who was not a sitting Member of that Committee, has only been cited casually, saying that he has been siding with the said Baboo Yar Muhammad. Mr. Iftikhar Muhammad cited before us Muhammad Yahya v. Misbah-ul-Haq and others (1982 S C M R 269) to support his sub mission that in the cases where the allegations were drawn by any Tribunal wholly on conjectures, this Court could interfere in its Constitutional jurisdic tion and set aside the finding. Following this view we are of the opinion that there is no definite allegation against the petitioner even in these reports's and the parawise comments which could constitute disqualification. Besides this, it is unimaginable that after the petitioner's conviction which had been recorded in the year, 1979 his indulgence in any activities detri mental to the Government interest would be unnecessarily tolerated not only to the extent of failing to prosecute him on such charges hot also allowing him to continue as Member of the Union Council. Then, it is also noteworthy that the learned Deputy Commissioner himself did not agitate this point while considering the petitioner's nomination papers. Learned Advocate-General when questioned on this aspect had no satisfactory answer to make. Additionally, it may be observed that it is mainly the conviction of an offence involving moral turpitude which could constitute disqualification in such like cases and not a mere allegation of an offence. It may also be added here that even if the legal position had been sec whereby only the allegations could be considered sufficient to disqualify the petitioner from contesting the elections, the learned Deputy Commissioner, who is the complainant before the learned Commissioner acted as a Judge in his own cause. Such a position is not approved by law, as it requires that every allegation shall be substantiated by independent evidence, whether it was documentary or oral. In this connection reliance may be placed on Muhammad Mohsin Siddiqi v. Government of West Pakistan (PLD1964SC64) wherefrom the following observation may be reproduced with advantage :- "The whole proceeding in a departmental enquiry is required by the Rules to be conducted in accordance with the principles of justice. The superior Courts will not tolerate, and certainly not within the framework of the judicial administration itself, conditions in which officials can be made prosecutors, judges and punishing authorities when they themselves are the complainants, merely on the ground that the power of removal is vested in them as appointing authorities under the Rules. There is power and there are facilities available, to place the conduct of the enquiry and the report thereon in other hands and in such a case the offer who is the offended complainant must give his evidence in support of the complaint before such officer." The result in the instant case cannot be expected to be any better than the. one in the above-cited case as the facts of both the cases are somewhat identical.

5. It was also attempted to be argued by Mr. Basharatullah that although the pardon had been granted to the petitioner in respect of the conviction but it did not clear him of the stigma and resultantly, he argued, that the conviction shall be considered to be still existing for the purposes of the disqualification as enunciated by the Ordinance. While interpreting section 143 of the Pakistan Army Act under which the pardon had been granted to the petitioner, he tried to find support for his argument from Muhammad Asghar v. Government of Sind (P L D 1977 S C 212). In this case, a Government servant was granted pardon -by the Governor of the Punjab with respect to a sentence passed against him by a Military Court in the Punjab. Sub sequently, the said Government servant approached the Governor of Sind and pleaded that the latter was bound to restore him to service as he had been granted pardon by the Governor of the Punjab. But it was held that the Governor of Sind was not obliged to restore the Civil Servant to his former position and also that the effect of pardon was not automatic restoration to service ; though such pardon could remove disability for fresh employment. The citation is not apt as the facts and circumstances of the, present case are distinguishable from the case cited. Another fact particularly noteworthy in the present case is that the D.M.L.A. Mekran Division while intimating to the petitioner on 12th February, 1980 about the grant of pardon specifically mentioned that "any record of conviction will be removed from his Character Role." This clarification necessarily indicates that the intention of the authority granting pardon was that it shall not stand in the way of the petitioner to cause him any kind of loss or prejudice in future. Mr. Iftikhar Muhammad further relied upon Sudagar Ali v. Chairman, District Council, Multan (P L D 1963 (W. P'.) Lah. 601) to substantiate his argument that remission of the sentence removed the disqualification from being; a' candidate or member of the Local Council. In the case cited, the petitioner had been convicted under C.M.L.A. Regulation 49 and had been sentenced to 40 days imprisonment which was subsequently remitted on his submitting a petition under para. 6 of the Martial Law Regulation. In these circumstances, it was held that after the grant of remission, he was no more disqualified from being a candidate or member of a Local Council. . This case applies with full force to the facts and circumstances of the present case. Mr. Basharatullah"s argument on this score is, therefore, devoid of force.

6. Mr. Basharatullah also submitted that since the election of the Chairman had already been held and the acceptance of the petition was likely to cause undue inconvenience to the administration, as in such an event, the entire elections upto the elections of the Chairman shall have to be held afresh. This argument was also supported by the learned Advocate-General. In this connection suffice it to say that the super structure built upon a void order, is destined to fall once the void order is struck down and this view has no scope of further scrutiny. See Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others (P L D 1973 S C 236). Likewise the Courts are not supposed to be overwhelmed with the idea of inconvenience of any agency, once they have reached the conclusion that the order challenged before them was unjust and illegal.

7. The above are our reasons for allowing the petition without costs and setting aside the orders of the learned Deputy Commissioner, dated 25th July, 1983 and those of the learned Commissioner, dated Ist August, 1983 vide short order, dated 22nd November, 1983 and directing the authorities concerned to hold fresh elections to the seat in dispute. M. Y. H. Petition accepted.