P L D 1964 (W (PLP)

Sher Bahadur Additional A. G. for Respondents 1 and

2. Nemo for Respondents 3 and

4. Date of hearing: 14th November 1963. S. A. MAHMOOD, J.‑Muhammad Zaman petitioner and Sub. Abdul Ghafar respondent contested an election in 1959, for membership of the Union Council, Gada from Ward No. II, Muhammad Zaman was successful and Jahandad, an elector; brought an election petition against the election of Muhammad Zaman.

2. The main ground of attack was that having been convicted of an offence under section 377, P. P. C., by the order of Haji Ahmad Ali Jan Arbab, Additional District Magistrate, Hazara on the 29th of April 1938, and sentenced to 4J years' Rigorous Imprisonment, Muhammad Zaman petitioner was disqualified for being a member of an Elective Body. As the conviction of the petitioner was proved, the Election Tribu nal held that he was disqualified under Article 5 (d) of the Elective Bodies (Disqualification) Order, 1959, (President's Order No. 13 of 1959), his election to the Union Council was void, and he was no longer its member. It further directed that afresh election should be held to fill the vacancy. On this, Muhammad Zaman petitioner brought the present writ petition.

3. The writ petition came up for admission before Constan tine and Sajjad Ahmad Jan, JJ., and it was argued that Article 5 (d) of the President's Order 13 of 1959, could not be read retrospectively, meaning that convictions recorded after the date of the promulgation of the President's Order No. 13, were only pertinent for the purposes of imposing a disquali fication, but this contention was repelled. The second conten tion, which is relevant for our purposes, raised in arguments, though not expressly taken in the writ petition, was based on a Division Bench decision of this Court reported as Muhammad Nawaz Khan v. Collector, Gujranwala and another (P L D 1960 Lah. 1123). It was contended on the basis of this authority that clause .(c) of paragraph 2, Part 11 of the Second Schedule to the Basic Democ racies order, 1959, and clause (d) of Article 5 of the Presi dent's Order No. 13 of 1959, could not stand together. It may be mentioned that the disqualification in Article 5 of the President's Order No. 13 of 1959, (including its clause (d) was incorporated in a comprehensive form by clause (f) of paragraph 2, Part II of the Second Schedule in the Basic Democ racies Order, 1959. The learned Judges were not inclined to agree with the decision in the above‑cited case and, therefore, admitting the writ petition directed that it should be heard by a Full Bench. Hence this writ petition has come up before this Full Bench.

4. The petitioner was not represented by a counsel before us. His first contention that the disqualification under Article 5 (d) of the President's Order No. 13 of 1959, could not be read retrospectively, has no substance and was rightly repelled by the learned Judges of the admitting Bench, because it seems clear to us from its wording that some convictions which were recorded even prior to the promulgation of the President's Order No. 13 of 1959, had the effect of imposing the disqualification, and we need say no more about it.

5. On the second question, there has already been a Full Bench decision, which is reported as Pehlwan Khan v. J. F. Elahi and another (P L D 1962 Lah. 751). In this case the view taken in Muhammad Nawaz Khan v. Collector Gujranwala and another was not approved. We are in respectful agreement with the views expressed by A. R. Changez and Bashir Ahmad, JJ., in the Full Bench case, A. R. Changez, J., held as follows:- "On careful consideration of the matter I am of the opinion that clauses (c) and (f) of paragraph 2 of Part II of the Second Schedule to the Basic Democracies Order are neither inconsistent nor irreconcilable. In my opinion, there is no conflict in the two clauses and they run in parallel lines and do not cross each other. The object seems to be that if a person is disqualified in views of the provisions of Article 5 of the Elective Bodies (Disqualification) Order, then for obvious reasons his disqualification continues for more than six or seven years, and this is considered to be sufficiently long period to reform the disqualified person irrespective of the fact that the offence involved moral turpitude or not. But if the case is not covered by clause (d) 8 of Article 5 of the Elective Bodies (Disqualification) Order, then in that case clause (c) of paragraph 2 of Part Il of the Second Schedule to the Basic Democracies Order comes into operation and a period of five years from the expiry of the sentence is considered to be sufficient to reform such a person." Bashir Ahmad, J., observed as follows:- "It would thus appear that all those matters which have been expressly provided in Order No. 13 have been eliminated from the clause and have been incorporated in a comprehensive clause (f) which recognises disqualifications under Order No. 13 of 1959, as disqualifications under Order No. 18 of 1959. The argument, therefore, that since the convic tion has been dealt with expressly in clause (c) in inter preting clause (f) the question of a conviction will have to be eliminated, will not bear closer examination. It seems plain that the legislator only wished to assure that the first election under Order 18 of 1959, which, under Article 22 of the Order, were to be for a period of five years were not to include any undesirable elements, and this object was secured by making the disqualifications more extensive in character. There was no similar anxiety with respect to elections that were to be held later. The disqualification created by clause (c) with respect to offences involving moral turpitude was con sidered sufficient to meet the future requirements, I can see no difficulty in so interpreting the intentions of the legislator.

6. The object of introducing the disqualification in Article 5 of the President's Order No. 13 of 1959, into the Basic Democracies Order by clause (f) in paragraph 2 of Part II of the Second Schedule has been stated above. The disqualification in clause (d) of Article 5 of President's Order 13 of 1959, and in clause (c) of paragraph (2) of Part II of the Second Schedule to the Basic Democracies Order can operate independently of each other . . . . . the former being of a few years duration and the latter of a permanent nature. There is no real inconsis tency or conflict in the two provisions. In view of the well -recognised principle of interpretation that if there are two pro visions in the same enactment, they must, if possible, be so read as to give effect to both, we see no difficulty in holding that they are not inconsistent or irreconcilable, and can stand together.

7. For the reasons given above we hold that Muhammad Nawaz Khan v. Collector, Gujranwala and another, was not correctly decided. We, therefore, dismiss this writ petition but in the circumstances of this case leave the parties to bear their own costs. K.B.A. Petition dismissed.