P L D 2013 Lahore 552 (PLP)

The petitioner challenges order dated 7-4-2013 passed by respondent No.2/Returning Officer NA-51, Gujar Khan, Rawalpindi and order dated 15-4-2013 passed by the learned Election Tribunal of this Court whereby the nomination papers of the petitioner stand rejected. The facts of this case need not be reproduced as the same have been recorded in extenso in the order of the learned Election Appellate Tribunal

2. The learned counsel for the petitioner submits that the impugned orders are not sustainable at law. He maintains that the qualification mentioned in Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973, cannot be invoked unless there is a declaration by a court of law. In the present case, there is no such declaration of a court of law in the field. He further submits that the Hon'ble Supreme Court of Pakistan in its judgment in the Rental Power Project Case had only directed that those responsible for signing and execution of contracts in favour of RPPs were liable to be dealt with in accordance with law and the matter had been referred to the National Accountability Bureau. He further argues that the afore-noted direction of the Hon'ble Supreme Court of Pakistan does not constitute a declaration within the purview of Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973.

3. Learned counsel further maintains that the other ground which prevailed with the Returning Officer, as well as, the learned Appellate Tribunal was that the Hon'ble Islamabad High Court in its judgment rendered in M/s. M.N. Construction Company v. Federation of Pakistan (W.P. No.3387/12) had made certain observations against the petitioner. He argues that the said observations did not constitute a declaration . As such the Returning Officer as well as the learned Appellate Tribunal erred in law and mis-interpreted the observations made in the above said judgments to reject the nomination paper of the petitioner under Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973. He further argues that neither the directions in the Rental Power Project Case nor the observation in M/s. M.N. Construction Company ibid., amounts to a declaration made by the said courts in terms of Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973.

4. He finally argues that provisions of Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973 are not self-executory and credible evidence is required to attract the mischief of the said Article, which is not so in the present case. Reliance has been placed on Dr. MOBASHIR HASSAN and others v. FEDERATION OF PAKISTAN and others, (PLD 2010 SC 265) FEDERATION OF PAKISTAN and others v. Mian MUHAMMAD NAWAZ SHARIF and others (PLD 2009 SC 644) and MUNIR AHMAD and another v. DISTRICT RETURNING OFFICER/APPELLATE AUTHORITY SARGODHA and others (2004 SCMR 1456).

5. The learned counsel for respondent No.3 on the other hand raised a preliminary objection regarding maintainability of the petition. He submits that an efficacious and alternate remedy is available to the petitioner in terms of Section 70 of the Representation of the People Act, 1976 ("ROPA"). Therefore, the instant petition is not maintainable.

6. On merits, the learned counsel has referred to various paragraphs of the judgment of the Hon'ble Islamabad High Court to argue that in the said case there were serious violations of PPRA Rules and as a consequence directives issued by the then Prime Minister (the petitioner) were set aside by the Hon'ble Court by making observations regarding the validity, transparency and fairness of the process. He further submits that in view of the elaborate findings recorded by the Hon'ble Islamabad High Court relating to the transparency of the case, there was no requirement for further declaration in this regard and the Returning Officer could conclude from the observations that the petitioner did not fulfil the requirements of Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973 and rightly declared him not to be sagacious, righteous, honest, upright, honest and Ameen in terms of Article 62(1)(f) of the Constitution.

7. He further maintains that the character and chequered history of the petitioner can also be adjudged from observations made by the Hon'ble Supreme Court of Pakistan against him in the Rental Power Project Case, in which adverse observations have been made against him. He further submits that the Returning Officer as well as the learned Appellate Tribunal were quite justified in coming to the conclusion that the petitioner was hit by the provisions of Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973.

8. The learned Standing Counsel for the Federation has not seriously opposed this petition.

9. We have heard the learned counsel for the parties and gone through the record with their assistance.

10. On consideration of the arguments of the learned counsel and examination of the documents, we find that the impugned orders are not sustainable for the following reasons:-- i. As far as the preliminary objection regarding maintainability of the petition is concerned, we find that the alternate remedy suggested by the learned counsel for the respondent in terms of a petition under section 70 of the Representation of the People Act, 1976 is neither an efficacious nor adequate remedy in the specific facts and circumstances of this case. Further it is settled law that the Constitutional Jurisdiction of this Court can be invoked against orders passed by the officers in the Election hierarchy i.e. the Returning Officers or the Election Tribunals prior to culmination of the electoral process. Reliance in this regard is placed on lntesar Hussain Bhatti v. Vice Chancellor University of Punjab. Lahore and others (PLD 2008 SC 313), Ch.Muhammad Arif Hussain v. Rao Sikandar lqbal and 10 others (PLD 2008` SC 735) and Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others (PLD 2009 SC 644). We, therefore, hold that the objection is not sustainable and is overruled. This petition is held to be maintainable. ii. For ease of reference, the language of Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973 is reproduced below:-- "he is sagacious, righteous, non- profligate, honest and ameen, there being no declaration to the contrary by a court of law; " A plain reading of the Article makes it abundantly clear that the Constitution requires a declaration by a court of law to be termed as being not sagacious, righteous, non-profligate, honest and ameen. In Workers' Party Pakistan through Akhtar Hussain Advocate General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681) the Hon'ble Supreme Court of Pakistan has held that the right to contest election is a fundamental right in terms of Article 17 of the Constitution of Islamic Republic of Pakistan, 1973 and has to be read into the language of Article 17(2). Therefore, in our view, in order to deprive a citizen of his fundamental right to contest election, the requirement of a declaration by a court of law, as provided in Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973 has to be strictly construed. iii. In the present case, the only material available against the petitioner, which has been taken to be a declaration by a court of law by the Returning Officer as well as the learned Appellate Tribunal is the judgment of the Hon'ble Supreme Court of Pakistan in the case of Alleged Corruption in Rental Power Plants etc. reported as 2012 SCMR 773 and the unreported judgment of the Hon'ble Islamabad High Court in W.P. No.3387/2012 dated 28-3-2012. iv. As far as the judgment of the Hon'ble Supreme Court of Pakistan in the Rental Power Plants Case ibid is concerned, the Hon'ble Supreme Court of Pakistan observed in para 81 as follows:-- "

81. Thus, all the Government functionaries, including the Ministers for Water and Power holding charge from 2006 and onward up to 2008 during whose tenure the RPPs were approved/set up, prima facie, violated the principle of transparency, therefore, their involvement in getting financial benefits out of the same by indulging in corruption and corrupt practices cannot be overruled in view of the discussion made hereinabove. Consequently, they are liable to be dealt with under the National Accountability Ordinance 1999 by_the NAB. Similarly all_the functionaries of PEPCO, GENCOs and NEPRA along with sponsors who had derived financial benefits from the RPPs contracts are prima facie, involved in corruption and corrupt practices, therefore, they are liable both for the civil and criminal action." (emphasis applied) A perusal of the above paragraph clearly indicates that the Hon'ble Supreme Court of Pakistan after considering the facts of the case in their wisdom did not record any finding or issue a direction to disqualify the petitioner or others. They rightly referred the matter for further probe to the investigating agency, namely National Accountability Bureau. We are, therefore, in no manner of doubt that there was no declaration issued by the Hon'ble Supreme Court of Pakistan. which could be relied upon by the Returning Officer or the learned Election Tribunal in terms of Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973. v. Coming to the judgment of the Hon'ble Islamabad High Court, in the case of MN Construction Company, the finding recorded by the said court was in the following terms:-- "Similarly copy of this judgment may also be sent to the Chief Election Commissioner, District Returning Officer of constituency NA-51, Gujar Khan to appreciate as to whether in the light of the observations made in the judgment, Raja Pervaiz Ashraf can be believed as sagacious, righteous, honest, upright, trustworthy and Ameen." It is significant to note that while sending a copy of the judgment to the Chief Election Commissioner as well as the District Returning Officer of the constituency NA-51, Gujar Khan, the learned Court directed them to appreciate "observations" made in the judgment and make an independent decision whether the petitioner could he believed to be a sagacious, righteous, honest, upright, honest, trustworthy and ameen person. From the language of the afore-noted portion of the judgment of the Hon'ble Islamabad High Court, which appears to have persuaded the Returning Officer and learned tribunal, it is clear and obvious to us that there was no definitive declaration issued by the said Court of the nature required to attract the provisions of Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan. The language was in the nature of an observation and the matter was left to the discretion of the Returning Officer to be determined whether or not he believed the petitioner to fulfil the requirements of Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973. It may be noted that the above observation was made in a case relating to transfer of a contract from PWD to NLC, which are two government entities on the directive of the then Prime Minister of Pakistan, who exercised his powers in his official capacity. The Hon'ble Islamabad High Court was pleased to set aside the said directive as well as the award of the contract, being against PPRA Act, 2004 and PPRA Rules, 2004. vi. Even otherwise, it is settled law that neither the Returning Officer nor the Election Tribunal has the power to issue any declaration by itself in a summary jurisdiction under the provisions of Representation of the People Act, 1976, unless there is a declaration issued by a court of law placed before them, in which event they can invoke the provisions of Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973.

11. In view of our finding that there is no declaration issued by a court of law in terms of Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973, we hold that the impugned orders are not sustainable. As a result, this petition is allowed. The impugned orders are accordingly set aside. A direction is issued to the concerned Returning Officer to include the name of the petitioner in the list of eligible candidates in terms of section 15 of the Representation of the People Act, 1976. In this regard an interim order has already been passed on 18-4-2013 by this Court. The same is hereby confirmed.

12. Notwithstanding anything stated above, it is clarified that the findings recorded and observations made herein are based only on a tentative assessment of the material before us, in the facts and circumstances brought to our notice for the limited purpose of deciding this petition. The Election Commission of Pakistan and other competent authorities/functionaries shall, however, be at liberty to independently exercise their powers if any material is placed before them and take appropriate proceedings and/or pass orders under the provisions of Representation of the People Act, 1976 and other relevant laws without in any way being influenced by observations made and findings recorded in this order. MWA/P-8/L Petition allowed.