1984 PLP 1172 (SCMR)

M. Nawaz Abbassi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondent. Date of hearing : 3rd April, 1984. ABDUL KADIR SHAIKH, J.‑Appellant successfully contested election to a seat of a Councilor from Ward No. 8, Municipal Committee, Murree, on 28th September, 1983. His rival candidate Muhammad Abdullah Khan filed on election petition alleging that as appellant was convicted under sections 332, 353 and 506, P.P.C. read with M. L. R. 9 and C. M. L. O. 77, he is not an eligible candidate being disqualified under the provisions of section 21(1)(d) and (f) of the Punjab Local Government Ordinance, 1979, read with Article 10(2) (aaa) of the Houses of Parliament and Provincial Assemblies (Election) Order, 1979. While this petition was pending, Muhammad Shabbir Abbassi, respondent herein, tiled a constitution peti tion in Lahore High Court, Rawalpindi Bench, seeking a writ of quo warranto on the same grounds. The High Court by the judgment, dated 8th November, 1983 allowed the petition and declared that appellant stood disqualified as a member of the Municipal Committee, Murree. Leave to appeal against the judgment of the High Court was granted to examine, inter alia, the plea raised by appellant that his conviction did not involve moral turpitude so as to disqualify him from the candidature at the election. It may be stated that it is the admitted position that appellant was con victed by a Summary Military Court and was sentenced to six months' R. I. on 16‑8‑1983 but his sentence was remitted and he remained in jail custody for one month only. The main question that arose before the High Court and also requires consideration in this appeal before us is whether appel lant's conviction was for an offence involving moral turpitude and he is disqualified under section 21 (1) (d) of the Punjab Local Government Ordinance, 1979. This provision of law disqualifies a person to be a candidate or a member of the Local Council :‑ "If he has been on conviction by a Court of competent jurisdiction for an offence involving moral turpitude or an offence under sections 181, 182, 295, 295‑A, 295‑B and 298 of the Pakistan Penal Code sentenced to imprisonment unless a period of three years has elapsed from the expiration of such sentence." The case against the appellant was registered under F. I. R. lodged by Ashiq Hussain with the Murree Police Station on 18‑5‑1983 which is to the following fact :‑ "I, Ashiq Hussain No. P. 9517704 am a Government servant of 408 Intelligence Battalion Murree. On 17th May, 1983, at about 5‑00 a. m., I came in the verandah of my barrack and saw Zaid Khan son of Mefhan Khan urinating near the verandah. 1 prohibited him from doing so as we live there. I asked him go down to the jungle to make water. He (Zaid Khan) said to me, `who are you to prohibit me, this is our place. If anything happens, I will teach you a lesson.' Meantime the following persons were attracted to the spot. Israrul Raq son of Hakim Ziaul Haq, Abid Butt son of not known, Haji Rashid son of not known, Mahmood lqbal son of not known. These persons abused me. When I told them that I was an employee of the Pakistan Army and was present on duty, they not only abused me but the Pakistan Army also. I requested them not to abuse me on which they attacked me. Israrul Haq started beating me with a hockey which was in his hand which hit my shoulders, arms and legs. At that time, Abid Butt asked his other fellows to stop as he would teach me a great lesson. He inflicted a hockey blow on my back side and I fell on the ground. During this course of time, my second colleague Muhammad Aslam No. HAV who was seeing a football match in the lower ground also rushed towards the office. When he reached at the spot the aforesaid persons had fallen me on the ground. Then he started to lift me up, Israrul Haq inflicted a hockey blow on his person and he ultimately fell. As soon as he fell, Abid Butt and Mahmood lqbal started beating him with a hunter. After a short while, some soldiers who were seeing football match hearing the noise came there. Besides this, many other persons collected there. Meahwhile some soldiers brought Muhammad Aslam HAV to the C. M. H. Hospital. One of the persons present there asked me who I was. He also asked me not to tell the incident to me higher authorities. On this Haji Rashid aimed his pistol at me and said that if you divulge the incident to anybody I will kill you with my pistol and your progeny would remember for not acceding to my request. He abused me as well as the army and threatened to murder me. I, being a Government servant, first informed Colonel on phone who sent Captain Malik Jehan Khan who brought me from office to the Police Station. Application for necessary action is submitted." The only material which was produced before the High Court in support of the assertion that appellant was convicted of an offence involving moral turpitude was the F. I. R. produced above, and a certificate by the Deputy Superintendent, District Jail, Rawalpindi, certifying that appellant was sentenced under sections 332, 353 and 506, P. P. C. read with M. L. R. 9 and C. M. L. O. 77 and remained in jail custody from 16th August, 1983 to 15th September, 1983. It was submitted before the High Court on behalf of appellant that there was no proof or evidence to show that he was held guilty of an offence involving moral turpitude. In this behalf, it was urged that the Summary Military Court did not give any written judgment from which it could be ascertained as to what part of the story alleged against him stood proved, and whether the conviction recorded against him on each party stood clear established". Learned Judge in the High Court also realised this position and observed in this behalf that "unfortunately the judgment in Martial Law cases are not delivered in the manner in which the judgment in criminal cases are delivered. The Military Court judgment is cryptic and only states that accused is convicted of such offences and the sentence is thereafter stated. Neither the brief facts of the case nor any analysis or the appraisal of the evidence nor any reasons in the judgment are given. In these circumstances it is difficult to state what evidence was recorded and what the Military Court accepted. There are no documents before us from which the counsel's assertion can be verified". In spite of this learned Judges, however, went on to hold :‑ "In the absence of any such material and considering the fact that the respondent has been convicted and sentenced for all the offences for which he was charged, we have been constrained to accept the story of the prosecution as given in the F. I. R. as having been proved." It is obvious that in the absence of any legal evidence learned Judges were somehow persuaded to hold, merely on the basis of the contents of the F. I. R., that appellant was convicted for an offence involving moral turpitude. Unfortunately they failed to notice that both the documents produced in support of the allegations against appellant, namely, F. I. R. and certificate from Deputy Superintendent, District Jail, Rawalpindi, were inadmissible evidence and, by themselves, furnished no proof upon which a conclusion could be drawn, much less a judgment rendered, that appellant was held guilty and convicted for an offence involving moral turpitude. The judgment of the High Court having been based on conjectures rather than any legal evidence is set aside and the appeal is allowed. The parties are, however, left to bear their own costs. S. Q. Appeal allowed.