1999 PLP 215 (SCMR)

AJMAL MIAN, C.J.

This is an appeal, with the leave of this Court, against the judgment dated 27-7-1998 of a Full Bench of the High Court of Balochistan (comprising the learned Chief Justice and two companion Judges) passed in Constitution Petition No.77 of 1998, filed by the appellant against the judgment dated 9-3-1998 of the learned Chief Election Commissioner of Pakistan, whereby the appellant was disqualified to remain a Member of the Provincial Assembly of Balochistan on the ground of defection as contained in Article 63A (1)(a) of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as the Constitution) and as such he was declared to have ceased to be a Member of the Provincial Assembly of Balochistan, dismissing the same.

2. The appellant filed a petition for leave to appeal, which was granted to consider the following questions: (i) Whether the petitioner's alleged act of defection is covered by paragraph (a) of Explanation to - clause (1) of Article 63A of the Constitution? (ii) Whether the Chief Election Commissioner was justified in recording a finding against the petitioner that he has defected in terms of the above provision of the Constitution? (iii) Whether the High Court was justified in declining the above Constitution petition?

3. The brief facts are that the appellant was elected as a Member of the Balochistan Provincial Assembly on the Ticket of Jamhoori Watan Party (hereinafter referred to as JWP) from PB-23 Nasirabad in the Elections held in February, 1997. It appears that in Balochistan after the Elections three political parties, namely, J.W.P., Balochistan National Party (hereinafter referred to as BNP) and Jamiat-ul-Ulemai Islam (Fazal-ur-Rehman Group) in coalition formed the Provincial Government.

4. It seems that on account of differences developed between J.W.P. and the above other coalition parties in the Government, J.W,P. left the coalition Government headed by Sardar Muhammad Akhtar Mengal belonging to B.N.P. It further appears that in an Urdu daily newspaper 'Jang', Quetta dated 21-12-1997, a news item appeared with the following caption:

5. More or less, similar news item also appeared in another Urdu daily newspaper 'International Kohistan, Quetta' on the above date i.e. 21-12-1997, under the following heading:

6. The above newspapers also published photographs with the caption that the appellant was holding a press conference in presence of Sardar Muhammad Akhtar Mengal and some other leaders of B.N.P. It may further be stated that a photograph showing the above press conference was also published in the above newspaper 'Jang' on 22-12-1997. There was also a news item stating that the flag of B.N.P. was hoisted at the appellant's residence.

7. It appears that the Secretary of J.W.P., on 17-1-1998, issued the following show-cause notice to the Appellant: "Sardar Fateh Ali Khan Umrani, M. P. A., Rani Bagh, Sariab Road, Quetta. Under Article 63A of the Constitution of Islamic Republic of Pakistan 1973. That you were the member of Jamhoori Watan Party and you were given Ticket for Balochistan Provincial Assembly by the Leader of the Jamhoori Watan Party, Nawab Muhammad Akbar Khan Bugti. You contested election for Provincial Assembly, from Constituency P.B-23, Naseerabad and you were elected as member of Balochistan Provincial Assembly. That you defected from the Jamhoori Watan Party and joined Balochistan National Party on 21st December, 1997 as reported in Press. That your action of defection from Jamhoori Watan Party is covered under Article 63A of the Constitution of Islamic Republic of Pakistan and by this notice you are called upon to explain why action should not be taken against you for unseating you from the seat of the Provincial Assembly. (Sd.) (KHUDA-E-NOOR), Secretary General, J.W.P., as authorised by the Head of the J.W.P., Nawab Muhammad Akbar Khan Bugti under clause (1) of 63A of the Constitution of Islamic Republic of Pakistan, 1973. Copy to: The Presiding Officer House (Speaker, Balochistan Provincial Assembly, Zarghoon Road, Quetta). Annexure: Jung,21-12-1997."

8. After that, on 23-2-1998, the President of J.W.P., addressed a letter to the Speaker of Balochistan Assembly, Quetta informing him that the Disciplinary Committee, by its decision dated 3-12-1998, has held as under:-- "Sardar Fateh Ali Umrani was elected M.P.A. from P.B-23 Nasirabad on Jamhoori Watan Party ticket and Symbol and has now defected from the Jamhoori Watan Party and joined Balochistan National Party in December, 1997, as announced by him at a Press Conference held at the Chief Minister Balochistan's office at Quetta, thereby he has not only violated Party discipline intentionally but also violated Article 63A of the Constitution and is thus liable to be disqualified from being a member of the Balochistan Provincial Assembly and is required to be unseated as provided under the Constitution." The Speaker of Balochistan Assembly was sent the above decision for onward transmission to the Chief Election Commissioner for giving his decision and declaring the appellant's seat vacant and announcing the schedule of the bye-election in that Constituency. The above letter was responded to by the Speaker of the Balochistan Provincial Assembly, inasmuch as he by his letter dated 24-2-1998 addressed to the Chief Election Commissioner of Pakistan, forwarded the above decision of the Disciplinary Committee and requested him to take further action under clause (3) of Article 63A of the Constitution.

9. Thereupon, the Chief Election Commissioner of Pakistan after allowing the parties opportunity to file their pleadings and hearing them, by judgment dated 9-3-1998, concluded as under:-- "Having considered the facts of the present case, I have come to the conclusion that the respondent has been properly served. He did not care to appear before the Committee. He has defected his party. He has become disqualified on the ground of defection as contemplated under Article 63A(l)(a) of the Constitution. He ceases to be the member of Provincial Assembly, Balochistan. His seat from the constituency (P.B.23 Nasirabad) has become vacant and as a consequence thereof bye-elections shall be held."

10. It may be observed, that before the Chief Election Commissioner the case of the appellant was that in fact he had not held any press conference and that he alongwith his people had gone to see Sardar Muhammad Akhtar Mengal, the then Chief Minister of Balochistan, in order to bring to his notice the grievances of his area. The appellant also denied the factum of having refused to accept any notice sent by the Secretary of J.W.P. In the above judgment the learned Chief Election Commissioner also recorded the following finding: "Mr. Khudai Noor made an offer to serve notice to the respondent in Court so that he might not be able to deny that he was not served with notice. The proposal was not accepted by the respondent, who submitted that such notice be given outside the Court. Mr. Khudai Noor even offered that if M.P.A., accompanied him and address a Press Conference that he had not changed loyalty and was still member of J.W.P., he would withdraw the notice."

11. Against the above judgment of the Chief Election Commissioner of Pakistan, the above Constitution Petition was filed in the High Court of Balochistan, which was resisted by J.W.P. the learned Judges of the Full Bench recorded the statement of the appellant on oath, in which he denied of having received the notices from the Secretary of JW.P., or having left the party and having joined B.N.P. The learned Judges discussed the documents submitted by the parties and also referred to the factum that the news of appellant's joining B.N.P. was also televised. It was concluded that the appellant had failed to contradict the above news item which was given wide coverage in the press and on the electronic media, nor he contacted his party to repudiate the above news item. On the basis of the above premise the following conclusion was recorded: Keeping in view the aforementioned conduct of petitioner we are of the view that he did address a Press Conference declaring to quit his party. He joined B.N.P. in the said Press Conference, which not only came in the press, but in Radio and Television as well. As such we are not inclined to exercise our discretion in favour of petitioner." The learned Full Bench of the High Court also observed as under: "Lastly as observed in PLD 1995 SC 66 that disloyalty, treachery and corruption from the rank and file of the elected members to both the Houses Defection, horse-trading or floor-crossing by the members elected on a party ticket is the odious type of corruption So, on the principle that Courts should not lean to maintain ill-gotten gains may not exercise discretion in favour of those who on one pretext or the other indulged in floor-crossing. As such on this count too, we are not inclined to exercise discretion in favour of petitioner." It was also held that in terms of Article 63A (2) the appellant could have filed an appeal within seven days, before the head of J.W.P., and could have explained his position that neither he' defected nor he received any notice to the- said effect, which the appellant had failed to do.

12. As stated earlier, against the above judgment a petition for leave to appeal was filed which was granted to consider the above questions.

13. In support of the above appeal Mr. M. Astain Chishti, learned counsel appearing for the appellant, has vehemently contended that in view of the clear pronouncement of this Court in the case of Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263) the appellant's alleged act of defection was not covered by clause (1) (b) of Article 63A of the Constitution in view of the Explanation to that clause, as admittedly the alleged act of defection had taken place outside the House of the Provincial Assembly. He relied upon the following observation from the majority view of 4 to 2:-- "We are unable to subscribe to the learned counsel for the petitioner's submission that paragraph (a) to Explanation to clause (1) of Article 63A rendered a member of the Parliament ineffective or non entity as he cannot speak anything against the party constitution, code of conduct and declared policies of the party. In our view, paragraphs (a), (b) and (c) to Explanation to clause (1) of Article 63A of the Constitution are to be read together. The basic object of the impugned Article contained in paragraphs (b) and (c) to the Explanation to clause (1) thereof is to ensure that a member of the Parliament should not vote contrary to any direction issued by the Parliamentary Party to which he belongs nor he should abstain from voting in the House against the party policy in relation to any bill. The above basic object is not violative of any Constitutional provision or any Constitutional principle. It may be stated that paragraph (a) to the aforesaid Explanation prohibits a member of the Parliament from committing a breach of party discipline which means a violation of the party constitution, code of conduct and declared policies. The breach referred to in this paragraph should be reliable to the objects specified in the aforementioned paragraphs (b) and (c) to the Explanation to clause (1) of the impugned Article if a member is to be disqualified from the membership on the ground of defection. The above view gets support, if we were to examine impugned Article 63A in juxtaposition with Article 63 of the Constitution as the latter Article inter alia covers acts/omissions on the part of a member of the Parliament generally committed by him outside the Parliament. We are unable to agree with the submission of the learned Attorney-General Ch. Muhammad Farooq and Mr. S. Sharifuddin Pirzada learned senior counsel for the Federation, that paragraph (a) to Explanation to clause (1)of Article 63A of the Constitution would also include the conduct of a member of the Parliament outside the House. The view, which I am inclined to take is also in conformity with the well-settled principle of interpretation that a penal provision should be construed strictly and its scope should not be extended unless it is to required by the clear language used therein or by necessary intentment. A member cannot be disqualified under Article 63A on the ground of his alleged misconduct committed outside the precinct of the Parliament and for that an action is to be taken according to the party constitution and not under Article 63A which regulates the conduct and behaviour of the members within the House of Parliament.

14. On the other hand, Mr. M. Zarar, learned counsel for respondents 3 and 4, has urged that besides the act of defection defined in sub-clauses (a), (b) and (c) to the Explanation to clause (1) of Article 63A of the Constitution, above clause (1) without the Explanation itself provided a ground of defection. His further submission was that even if we were to overlook the above sub-clauses (a), (b) and (c) of the Explanation to clause (1) of Article 63A of the Constitution, the appellant's case is covered by para. 1 of above clause (1). To reinforce the above submission, he further submitted that the act of deserting the political Party on whose ticket the appellant was elected as a Member of the Provincial Assembly constituted an act of defection under above para. 1 of clause (1) The learned counsel has taken us to the various documents on record including the above press clippings and notices/letters, to demonstrate that the appellant, for all practical purposes and intents, had deserted his political party. According to him, the appellant had not only committed an act of defection outside the House of the Provincial Assembly, but also committed. an act of defection even inside the Provincial Assembly, inasmuch as in spite of knowing fully well that his party was boycotting the sessions of the Provincial Assembly from 20-1-1998 to 27-1-1998, he attended the sessions and was allotted Seat No.50 in Treasury Benches which is indicated on the sketch of the House of the Provincial Assembly and which is certified by the Joint Secretary (Legis), Provincial Assembly of Balochistan as under: It is certified that Sardar Fateh Ali Umrani, M.P.A., had been allotted the Seat No.50 in Treasury Benches in the House in last session of the Provincial Assembly held on 20th January, 1998 to 27th January, 1998 alongwith other members of the JW.P. (Sd (ABDUL FATEH KHOSA), Joint Secretary (Legis), Provincial Assembly of Balochistan. The learned counsel has also invited our attention to another certificate dated 20-3-1998 issued by the Joint Secretary (Legis), Provincial Assembly of Balochistan, certifying that the Members of the J.W.P., mentioned therein remained absent from the Assembly sessions from 20-1-1998 to 27-1-1998. It was also urged by the learned counsel that since the appellant had not come with clean hands, this Court 'should decline to exercise its Constitutional jurisdiction in his favour as had rightly been declined by the High Court, inter alia, for the same reason as reflected in the aboveqouted relevant portion of the High Court judgment.

15. We may observe that the judgment of this Court in the case of Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263) (supra) was not rendered at the time when the matter was heard by the learned Chief Election Commissioner of Pakistan, and therefore, he did not have the advantage of examining the reasoning of the above judgment. The conclusion recorded by the learned Chief Election Commissioner of Pakistan, quoted hereinabove, is that the appellant had become disqualified on the ground of defection as contemplated under Article 63A (1) (a) of the Constitution. In our view, it will be just and proper to remand the case to the learned Chief Election Commissioner of Pakistan with the direction to hear the case afresh in the light of the above judgment and keeping in view the above contentions raised by the learned counsel for the parties.

16. We, therefore, allow the above appeal and set aside the impugned judgments of the High Court as well as of the Chief Election Commissioner. The case is remanded to the Chief Election Commissioner of Pakistan in the above terms. However, there will be no order as to costs.

17. Before concluding the above judgment, it may be observed that we have purposely refrained from making any observation on merits of the contentions of the learned counsel for the parties, as we intended to remand the case. M.B.A./F-35/S Case remanded.