1988 PLP 1751 (MLD)

By order dated 16‑10‑1988 the Returning Officer accepted the nomination papers of respondent Saith Saifullah Khan to contest election as candidate to National Assembly Seat No. NA‑9 Kohat. He repelled the objection raised, before him by the appellant, another candidate Syed Iftikhar Gilani to the effect that the respondent is not qualified to contest as he has been convicted for offences involving moral turpitude more than sixteen times, that the respondent does not enjoy good character and is neither sagacious, righteous or non- profligate. Hence this appeal.

2. I have heard Mr. M. Zahurul Haq, Advocate, the learned counsel for the appellant and also Mr. K.G. Sabir, Advocate, on behalf of the respondent, at length.

3. It is contended in support of the appeal that the case of the respondent was covered under clauses (d), (f) and (g) of subsection (1) of section 99 of the Representation of the People Act, 1975 read with clauses (d), (f) and (g) of Article 62 as also clause (h) of Article 63(1) of the Constitution. During the course of arguments he laid great stress on a letter which, in response to a telephonic conversation of the Returning Officer with the S.P. Kohat, in connection with the objection raised before him, was forwarded by the latter. This letter dated 17‑9‑1988 is addressed to S.H.O. Police Station Kohat Saddar by the S.H.O. Police Station Nazimabad, Karachi.

4. Need I state at this stage that the copy of the letter placed on the record is attested by the S.P. Kohat.

5. By this letter, the S.H.O. P.S. Nazimabad wanted to confirm the whereabouts of the respondent who is stated to be a notorious history‑sheerer and had a number of convictions to his credit but was lately not traceable in Karachi. As it is, a copy of the history‑sheet of the respondent showing it to be opened before 1963 and at least not closed till 5th of August,.1988 is also on the file. In this regard. the learned counsel referred to rules 23.4, 23.7(2) and 23.9 from Police Rules, 1924, a collective ‑reading whereof would establish that a person whose history‑sheet is opened is who is a "habitually addicted to crime". The phrase "habitually addicted to crime", as held by the Supreme Court in Rana Muhammad Afzal v. Inspector General of Police, West Pakistan, Lahore and another P L D 1974 S C 31, means that a person concerned has committed the crime on more than one occasion and it applies to cases where the person concerned has been convicted in more than one cases. Accordingly, such a person cannot but be termed as the one who does not enjoy the reputation of good character. Applying this principle in the case of respondent, his conduct clearly falls within the mischief of clause (d) of section 99(1) of the Representation of People Act, 1976.

6. Again, the learned counsel for the appellant also drew my attention to certain articles printed in a magazine called Weekly "Takbeer" Karachi dated 22 1‑1987 and a news item in daily "Aman" Karachi dated 8th October, 1988 to supplement his argument about the antecedents of the respondent. With regard to the admissibility of such printed material he has submitted that such published material if not denied by the party affected, the facts stated therein ought to be presumed as unrefuted and correct. He placed reliance on a case Islamic Republic of Pakistan v. Abdul Wali Khan P L D 1976 S C 57, the relevant portion whereof is at pages 111 and

112. It may be mentioned here that both these publications are highly defamatory in that the respondent has been depicted therein as uncrowned king of the underworld of Karachi.

7. There being nothing on the record to contradict or refute the material brought on the record in the form of history‑sheet as well as the published material, there is no escape from the conclusion as the learned counsel for the appellant has rightly contended, that the same were true.

8. In this context, the learned counsel for the appellant has urged that the proceedings before the Returning Officer, and, for that matter before the appellate authority being summary in nature; would not warrant. as held by the Returning Officer, super technical approach of asking for proof of the allegations in strict accord with the Criminal Procedure Code or Qanun‑e‑Shahadat, 1984, and accordingly his impugned order, being misconceived is liable to be set aside giving way to the objection raised and acceptance thereof.

9. The learned counsel for the respondent on the other hand has stressed that the requirement of law and the disqualifications mentioned in section 99(1 A) of the Representation of People Act, 1976 read with Article 63 of the Constitution alone can be made the basis of rejection of the papers of respondent and that too under strict application of the relevant provisions of Criminal Procedure Code as well as Qanun‑e‑Shahadat, 1984 to prove such material in support of the allegation/objection as is brought on the record, failing which the same shall have to be kept out of consideration for the purpose of applying the relevant provision of section 99(1) or 99(1‑A) (ibid). He also referred to clause (b) of section 91 of the Representation of People Act, 1976 whereby, in case of conviction of a candidate, not only should the conviction involve moral turpitude but also the sentence thereof be not less than two years and within 5 years of his release. He, therefore, urged that there being no such proof forthcoming to establish conviction entailing two years sentence and falling within 5 years; the case of respondent is not covered under section 99(1)(g). The last contention of the learned counsel for the respondent seems to be well‑founded but on the question of moral turpitude, however, I do not find myself in agreement with him because conviction for the offence; of gambling or prohibition allegedly recorded against the respondent would certainly bring his case within the acts of moral turpitude. Reference may be made to the case of Saudagar Ali v. Chairman District Council, Multan reported in P L D 1963 (W.P.) Lahore 601.

10. I have perused the record of the case with considerable degree of care and an overall reading of the same, I regretfully state, leaves not a much happy picture of respondent's character in my mind. I find force in the submissions of the learned counsel for the appellant that the allegations forming the objection raised by the appellant before the Returning Officer on the documentary record placed before him give rise to a reasonable belief that those were not ill‑founded and lend credibility to the proposition that being a history‑sheeter the respondent cannot be said to be a person. of good character with the natural corollary that he violated Islamic Injunctions or for that matter he is neither sagacious, righteous nor non‑profligate. His case, therefore, mainfestly falls under clauses (d) and (f) of subsection (1) of section 99 of the Representation of the People Act, 1976 read with clauses (d) and (f) of Article 62 of the Constitution.

11. In the context of summary nature of proceedings before the two forums, I am of the view that the law does not expect of a candidate to be equipped with such proof of the objection/allegation as is strictly required under the law of procedure 'or Qanun‑e‑Shahadat and it will be sufficient for the objector if he successfully raises a reasonable belief in the mind of Returning Officer or, for that matter, the appellate authority, about the authenticity of the allegations when supported by such documentary evidence as is placed on the record of this case.

12. The fact of the matter is that from the material available on the record, the disqualification of the respondent in the form of notoriety was more than obvious, and accordingly it is our solemn duty that even in case of doubt, the benefit should be given to the concept that no person of ‑tainted character should find his way into highest body of legislature of Pakistan. This would have been a glaring example of such an entry, and the votes cast in favour of respondent would have gone wasted.

13. In the circumstances, I allow this appeal, set aside the impugned order of the Returning Officer and reject the nomination papers of respondent Saith Saifullah Khan. AA./36/E Appeal allowed.