P L D 2013 Peshawar 105 (PLP)

DOST MUHAMMAD KHAN, C.J.

This single judgment shall also decide connected Writ Petitions Nos. 1133-P, 1130-P, 1131-P & 1132-P of 2013 because in all these writ petitions identical questions of law and facts are involved. Arguments heard in considerable details and record perused with a degree of care, keeping in view the relevant provisions of law and that of Constitution.

2. Brief facts are that the petitioner submitted his nomination papers for NA-32 Chitral. Many objections were raised by the rival candidates and voters with regard to his qualification / eligibility but the Returning Officer through a slipshod order dated 7-4-2013 dismissed some of the objections while conveniently ignored those which were purely constitutional one.

3. Five (5) different appeals were filed by the rival candidates and even by the voters against the decision of the Returning Officer and vide elaborate judgment dated 16-4-2013 the Appellate Tribunal, consisting of three (3) Hon'ble Judges of this Court, allowed all the appeals, set aside the orders of the Returning Officer and rejected the nomination papers of the petitioner, mainly on the ground that he imposed emergency plus on 3rd November, 2007, packed up the entire superior judiciary through unconstitutional means. The Tribunal, by reproducing different paras of the judgment, delivered in the case of "Sindh High Court Bar Association v. Federation of Pakistan" (PLD 2009 SC 879), concluded that the decision given by the Returning Officer was not based on proper appreciation of the law and information placed before him, hence, the same was not sustainable in law. Accordingly, all the appeals were allowed through a common judgment.

4. Certain facts are well established and judicially noticeable, moreso, when these are neither denied by the petitioner nor learned counsel representing him disowned the same. i. That the petitioner toppled the duly elected government in Coup d'etat and imposed emergency plus which was a new invention on part of the petitioner (dictator) albeit, it was almost a Martial Law, imposed throughout the country. All the elected Institutions like Parliament, Provincial Assemblies, Federal Government and Provincial Governments (Cabinets) were dismissed with a single stroke of pen. Not only this but also the duly elected President was shown the door of exit after some time. ii. The most unfortunate aspect of the matter is that due to successive Martial Laws, imposed by previous dictators, political / democratic forces were destroyed systematically or they were put against each other, creating a serious division amongst them and in this way pawed way for safely usurping powers at gunpoint. iii. That due to long stay of dictators at different intervals, the Political Leadership could not prosper to achieve or attain that much of maturity, level of thinking, to become united against usurpers. Each time, each dictator after settling scores and putting his dictatorial regimes into the desired channels, they successfully managed in purchasing the loyalties of some politicians through force, show of force or irresistible temptation and got elected their favorite peoples into the Parliament and Provincial Assemblies in a well calculated manner and through pre- planned strategy to get endorsement from them about all unconstitutional actions, taken by the dictators, and successfully got validated the same. iv. The petitioner too opted for and adopted the same and similar strategy and in a very controlled and pre- planned manner, he held elections to the Parliament and Provincial Assemblies in the year 2002 and installed the Governments of his choice. v. Out of sheer fear that he might be tried for high treason offence, he got validation for his unconstitutional actions through 17th Amendment brought in the Constitution before allowing the newly elected government to start functioning. The superior judiciary, being left all alone and placed in a state of quandary, was also left with no option but to continue with the new order of the day. vi. The petitioner, after usurpation of powers, through sheer force, dragged his feet because of his lust for power when felt that pressure was mounting on him to put off his uniform as an Army Chief thus, he opted for contesting election for the slot of President of Pakistan while still dressed and decorated with Army Uniform. His candidature for the post/ portfolio of top slot was questioned through a Constitutional Petition, which was filed by Justice (R) Wajih-ud-Din Ahmad and a Larger Bench of the Supreme Court took cognizance of the same by issuing show-cause notice to the petitioner because his disqualification for contesting such election was a big question mark. When this petition was pending disposal before the Hon'ble apex Court and proceedings were in progress, the petitioner realized that he was suffering from gross ineligibility and disqualification and while apprehending disqualification from the apex Court to contest election for the post of President of Pakistan, he selected Hon'ble the Chief Justice of Pakistan for victimization, as, in his opinion, he had perceived that his disqualification to contest such election was on the cards, therefore, in gross violation of the Constitutional command and the laid down procedure, the Hon'ble Chief Justice of Pakistan was sacked and prevented from performing his constitutional duties. He was put along with his family members virtually under a house arrest and the Executive Authorities, acting under the formidable influence of the petitioner, the then dictator, confined the Hon'ble Chief Justice and his family members to the inner portion of his official residence. vii. It is of considerable worth to mention here the most shocking aspect of the matter that his lordship's child of a very pre-teen age, crippled by diseases besides privileged one, who was needing constant and regular medical therapy, was also put under house arrest. This fact conveniently escaped the notice of the world community and world media albeit, it was more cruel act of the dictator (the petitioner) which is un-condonable in nature, keeping in view the basic human rights of such privileged children throughout the world. No civilized society of the world, on any premises whatsoever, would endorse such a cruel and ruthless action on the part of the then dictator the petitioner). viii. When the Reference was pending before the self constituted Supreme Judicial Council, a Larger Bench of the Supreme Court was constituted, headed by Hon 'ble Mr. Justice (R.) Khalil-ur-Rehman Ramday, as his lordship then was ruled that the Reference was based on mala fide and personal vendetta, therefore, struck down the same and Hon'ble the Chief Justice was restored with grace and dignity to his original status. ix. The above ruthless and detestable act was done by the then dictator (now petitioner) through a pre -planned strategy with the object to remove and wipe out the basic hurdle in his way as he had planned by then to contest election for the slot of President of Pakistan. x. When the petition of Mr. Justice (R) Wajih-ud-Din Ahmad was before the apex Court against the petitioner, the then dictator, sensed that he was suffering from disqualification, being a man in Army Uniform and in Government service, he could not be declared eligible and qualified to contest the election by the independent judiciary, hence, to retain illegal office, he, without any justification much less lawful, through a self dictated advice of the Prime Minister, again subverted and abrogated the constitution and for the second time imposed emergency plus (Martial Law) but this time it was directed only and only against the superior judiciary. The Supreme Court, the most important and third organ of the State, was irreparably damaged and demolished and all the Hon'ble Judges of the Supreme Court along with their pre-teen and teenage children and family members were put under a house arrest for many months. Majority of the High Court Judges refused to take oath under the Provisional Constitutional Order (PCO) unconstitutionally promulgated by the petitioner thus, they too were sacked and were put under a house arrest along with children both pre-teen and of teenage as well as their family members. The children of the sacked Judges neither could attend to their Schools nor could get medical treatment from any where, so much so that kitchen items for cooking meals, the cooks of the Hon'ble Judges were not allowed to go all alone out of the official residences and they were accompanied by the person of spy agencies and police because of the fear of dictator that they might not create problems for him. xi. In an indecent haste, few Judges, who collaborated with the dictator, were selected and elevated and a new Chief Justice of Pakistan was appointed in clear violation of the Constitutional command and prohibition. All the vacancies in the four (4) High Courts were filled up by the dictator with a hand picked Judges, who took oath under the PCO.

5. This time, the people of Pakistan belonging to different segments of the society, headed by the hundred thousand lawyers of the country resisted the move and went on strike for indefinite period in boycotting the proceedings in the Supreme Court and all the High Courts. All the lawyers openly proclaimed that in their opinion the PCO Judges were not legitimate Judges, duly appointed under the Constitution, hence, they were not authorized to deliver justice thus, judicial proceedings in all the superior Courts came to standstills for several months. When the struggle of the lawyers and all segments of the civil society attained potential momentum, the petitioner (the then dictator) to suppress the uprising of the nation fully choked the voice of the national media. The offices of media both Print and Electronic were put under locks. Even electronic media having transmission/telecast studios in the countries outside Pakistan were brought to closure by putting pressure on the Rulers of those States and in this way complete blackout of news was in the field. Despite of all these unconstitutional, illegal and cruel actions taken by the petitioner, the struggle launched by the lawyers and the entire civil society, followed by the Political Parties, gradually attained unprecedented momentum and when everything slipped away from the hands of the petitioner (the then dictator) and everything for him became difficult to confront thus, seeing writing on the wall, the petitioner announced a general election to be held on the expiry of the tenure of the Parliament and Provincial Assemblies. Under the same pressure which had developed tremendously, he allowed one of the Political Leader to land in Pakistan, who was living a life of self exile, however, the petitioner was not ready to allow her to join hands with the lawyers and civil society for the restoration of independent judiciary and she too was put under a house arrest for some time but when the petitioner saw that everything was slipping away from his hands, he ultimately agreed to permit another rival to land in Pakistan.

6. During this period he got dismissed the constitutional petition, filed by Mr. Justice (R) Wajih-ud-Din Ahmad and elected himself from the out going Parliament which was consisting of his hand picked members/politicians.

7. With the passage of time when formidable pressure developed upon him, the petitioner handed over the stick of authority to the present Chief of Army Staff unwillingly whereafter, his days in the Presidency became numbered and ultimately resigned and in this way he was shown door of exit by the movement, headed by the lawyers. By then the General Election for the new Parliament was already held but under a tense and painful situation because one of the key candidate, a head of political party, was assassinated near Liaqat Bagh Rawalpindi on 27th December, 2007 which led the country to a chaos for a short while, however, the political forces decided to participate in the election, as a result, new Parliament came into being.

8. After the exit of the petitioner from the Presidency and during the incumbent President when the superior judiciary was not restored, the movement/crusade spear headed by the lawyers got further momentum and ultimately the sacked judiciary was restored while the petitioner (the dictator) after a brief stay in a fortified place at Rawalpindi Garrison, left for abroad and stayed there for many years.

9. It was a big surprise for the nation that the petitioner decided to come to Pakistan despite of many registered criminal cases against him pending in different Courts of the country which include cases of murders, attempted murders, offence of high treason under Article 6(2) of the Constitution, 1973 and decided to contest election by filing nomination papers from different Constituency including the present one i.e. NA-32 Chitral, a District of Khyber Pakhtunkhwa.

10. When his nomination papers were put to scrutiny by the Returning Officer, discussed above, despite of many constitutional and legal objections raised on the eligibility and qualification of the petitioner, being debarred from contesting election, the same were accepted, however, on appeal filed by different appellants before the Election Tribunal, consisting of three (3) Hon'ble Judges of this Court, the same were allowed vide impugned judgment dated 16-4-2013 and the petitioner was disqualified to contest election. The Tribunal has placed reliance on the dicta laid down by the Hon'ble apex Court in the case of "Sindh High Court Bar Association v. Federation of Pakistan" (PLD 2009 SC 879), the decision of the Tribunal has been impugned before us, the Larger Bench, through five different Constitutional petitions.

11. Before us, learned counsel for the petitioner vehemently argued for a considerable time that the unconstitutional usurpation of powers by the petitioner was validated by the Hon'ble apex Court followed by a further validation given by the new Parliament of the year 2002 through a device of 17th Amendment introduced in the Constitution of Pakistan, 1973, therefore, in his view, that phase of the petitioner rule got validation and he could not be held a usurper. The learned counsel then referred to the judgment of the Hon'ble apex Court, mentioned above, and urged that the entire judgment is based on observation, directory in nature, and is a kind of "Obiter Dicta" and not a binding dicta, therefore, in his view, the learned Tribunal committed gross error of law by following and relying on the said "Obiter Dicta". He further added that it would be more appropriate if these petitions are allowed and the petitioner is given a chance to test his luck in the Court of public by contesting election being a fundamental right which was infringed by the learned Tribunal under legal misconception.

12. When the learned counsel was confronted with the hard fact that the unconstitutional and illegal act of sacking the entire superior judiciary of the country through PCO of 3rd November, 2007 was not validated by the new Parliament rather it refused to validate the same then how he could give legitimacy to the actions taken by the petitioner when he has trampled the constitution under his heavy boots, the learned counsel again reverted back to the dicta laid down by the apex Court in PLD 2009 SC 879 and reiterated his stance, discussed earlier.

13. Not because we have gone through the historical judgment of the Hon'ble apex Court, referred to above, wherefrom it is clearly discernable and leaves nothing for debate that all unconstitutional and illegal actions taken by the petitioner on 3rd November, 2007 remained invalid because not validated by the new Parliament, therefore, all these actions taken by subverting the constitution and abrogating the same for personal gains, he wanted to illegally achieve, the petitioner has earned disqualification to become member of the Parliament.

14. It is an established fact with no fear of rebuttal that the petitioner is guilty of subverting the constitution and completely demolished the superior judiciary, a 3rd important limb of the State Institutions, which is the most sacred one and in which the people of Pakistan have reposed great confidence. This hard fact is evidently clear from the unabated struggle of the lawyers and the civil society for the restoration of the superior judiciary unconstitutionally sacked. It is a matter of record that many lawyers were butchered, killed, burnt alive and thousands of them were illegally arrested and detained in prisons during this struggle. The petitioner not only subverted the constitution on 3rd November, 2007 but is also guilty of gross violation of fundamental human rights of the Judges' families including dozens of pre-teen and teenage children including the crippled/special/privileged child of Hon'ble the Chief Justice, who were even not allowed to get treatment or medical physical therapy, direly needed for him and them thus, not only the petitioner is guilty of subverting the constitution but also grossly violated the basic human rights of the families of the Judges of the superior Courts including small children, a highly detestable act un-condonable in nature because the entire civilized societies of the world by knowing this fact would fully endorse the view that the petitioner has no respect for the supreme law i.e. the Constitution of Pakistan, the proper legal order and basic human rights. The world community would form only one opinion that the petitioner has got no human heart and for lust of power he can go to any extent brutally violating basic human rights.

15. The subversion of the Constitution, as the petitioner committed, is an act which is punishable under Article 6(2) of the Constitution while under the High Treason Act he is likely to earn the penalty of death.

16. The clear promises made with and undertaking given to the then MMA Government that the petitioner would put off his Army Uniform by the cut of date i.e. December, 2004, were broken by him and he remained in uniform for years thereafter, hence, in view of the broken promises with quick succession at different stages, the petitioner can neither be held to be an "Ameen" nor "Sadiq", therefore, he is liable to be disqualified.

17. Even criminal cases of high profile have been registered against the petitioner including the murder of Nawab Akbar Khan Bugti, the most loyal leader to Pakistan, a chieftain of Baloch dynasty and the most prominent crime he allegedly committed was the butchering and burning alive the pre-teen age orphan girls and boys in "Lal Masjid" operation which he unilaterally carried out despite the fact that a little before the operation was launched, negotiation between the administration of "Jamia Hifsa" and "Lal Masjid" succeeded and the administration of both Institutions acceded to majority demands of the government but despite that, it was carried out in a brutal manner. Charred bodies of the orphan girls and boys of pre-teen and teenagers were bundled into CDA vehicles and were buried in a mass grave in the suburban area of Islamabad. This fact has become unrebuttable truth in view of the findings of the fact finding Commission, appointed by the apex Court with regard to "Lal Masjid" and "Jamia Hifsa" incident.

18. In our considered view, the petitioner trampled rather crushed the unanimously passed and enacted Constitution of 1973 twice and for the second time when he did so, his illegal actions were not validated by the Parliament, therefore, all such actions taken by him on 3rd November, 2007 and thereafter have attracted un-condonable disqualification for the petitioner for all times to come because the quantum and magnitude of disqualification, the petitioner has earned through such unconstitutional and illegal acts, are continuous, sustained and recurring one and not for one time because the disqualification, now tagged with the petitioner, has become inseparable limb of the petitioner which could not be severed or amputated to remove the stigma of disqualification from the forehead of the petitioner.

19. We are also of the considered view that the Western countries without any stop and pause to think invariably recognized and accepted dictators, who usurped powers on gunpoint after toppling the elected government. This approach and attitude of the Western countries, who claimed to be the champion of democracy and basic human rights, is not well received by 180 millions people of Pakistan. Each dictatorial regime created serious problems within the country, violating basic human rights, where the law of rule was order of the day and not the rule of law. Thousands of innocent peoples were lashed publicly to frighten the rest of the population of the country but no one from the democratic countries of the West raised any voice against such detestable acts of each dictator including the petitioner. Beside the above facts, each dictator created confrontation with the neighbour countries and all evils of today have been introduced because of the undesirable and unacceptable policies of the dictators. No civilized society of the world shall endorse such detestable acts and actions because of the evils of the day both for the country and for the global community came into surface as a permanent phenomena due to the wrong and dictatorial policies of the dictators. Now it is a high time for the world community to rethink over its past attitude and to redraw a new line of distinction, extending promising hand to the peoples of Pakistan to minimize their miseries and sufferings and not to support any dictator in future rather to block his way usurping powers of the State at gunpoint. This would put the society of this nation, an atomic power, into a proper order and everything would be conducted and accomplished in a civilized and orderly manner. At the same time, no threat would be there for the global peace and tranquility if democracy flourished in this country and it is given a chance to prosper and gain maturity.

20. For the aforementioned reasons, we are of the considered view that the petitioner has earned a life time disqualification and ineligibility, therefore, this and all the connected constitutional petitions are dismissed and it is held that the petitioner has earned disqualification for all times to come to contest election for the Parliament, Provincial Assemblies, Senate or any public office in Pakistan nor he is qualified and eligible to hold any other public office of any representative character. Before concluding this judgment, we deem it essential to clarify the phrases and language, used in Sub-Article (2) of Article 6 of the Constitution of 1973, that "Any person aiding or abetting [or collaborating] the acts mentioned in clause (1) shall likewise be guilty of high treason" means and includes the members of the Parliament and the Parliament as a whole. Any validation as soon as accorded by the Parliament in future to unconstitutional and illegal acts of usurper (dictator) through any means whatsoever, the Parliament as a whole shall cease to exist because each member by such act would earn the penalty of high treason and would be liable to be prosecuted under the provisions of the High Treason Act thus, the Parliament as a whole is no exception nor it is exempted from such liability rather it is equally liable for such punishment and the moment it endorses or validate action of the dictators on whatever ground, shall immediately cease to exist and fresh election shall essentially be held for the new Parliament. MWA/253/P Petition dismissed.