P L D 1962 (W (PLP)

(d) . . . . . . . . . . (e) . . . . . . . . . . (f ) if he is for the time being disqualified for membership of an elective body under the Elective Bodies (Disqualification) Order, 1959 (President's Order No. 13 of 1959), or under any other law for the time being in force." Paragraph 2 of the election petition put in by Muhammad Ajaib, which paragraph alone dealt with the question of disqualification of the petitioner from being a member, was to the effect that the returned candidate, namely, the petitioner in the present case, was disqualified under the Elective Bodies (Disqualification) Order, 1959 (President's Order No. 13 of 1959). To this paragraph 2 of the election petition the reply given by the present petitioner was that as the offence of which he was convicted in 1942 did not involve any moral turpitude and the conviction had been recorded as long ago as 1942 and the sentence had been served out by 1947 he was not disqualified from becoming a member. If clause (c) of para graph 2 (of Part II) of the Second Schedule to the Basic Democ racies Order, 1959, were the only provision applicable to the matter, there can be no manner of doubt that the petitioner could not have been declared as disqualified from becoming a member because the conviction had been recorded in 1942 and the sentence had been served out in 1947, i.e., that the petitioner had come out of the jail after serving his sentence about thirteen years before he contested an election to a Basic Democracy set up under the Basic Democracies Order, 1959. The question, however, arises whether clause (f ) of paragraph 2 of Part II of the Second Schedule to the Basic Democracies Order, 1959, disqualified the petitioner from becoming or remaining a member. Clause (f ) makes a reference to Elective Bodies (Disqualification) Order, 1959, section 5 of which is to the effect that notwithstanding anything contained in the Order or in any other law, a person shall stand dis qualified up to the 31st of December 1966 for being a member or a candidate for membership of any elective body if, inter alia, he had been convicted of any offence and sentenced to a term of imprison ment for more than two years or to transportation for any term. This ground of disqualification is mentioned in clause (d) of section 5 of the Elective Bodies (Disqualification) Order and what one has to consider is whether clause (f ) of paragraph 2 (Part II) of the Second Schedule 'to the Basic Democracies Order, 1959, was intended to lay down that clause (d) of section 5 of the Elective Bodies (Disqualification) Order, 1959, was to be transplanted to the Basic Democracies Order, 1959, for purposes of considering whether or not a person was disqualified from becoming a member. The thing on the basis of which this transplantation can possibly be supported is that clause (f) makes a mention of Elective Bodies (Disqualification) Order, 1959, while the thing that can be said against that process of transplantation is that clause (c) of para graph 2 of the Second Part of the Second Schedule to the Basic Democracies Order, 1959, deals with the subject of convictions and according to many a well-recognised principle of Interpreta tion of statutes the subject of disqualification from becoming a member of a Basic Democracy by reason of a conviction should be confined only to clause (c) of paragraph 2, Part II of the Second Schedule to the Basic Democracies Order, 1959.

7. The Elective Bodies (Disqualification) Order, 1959, was to remain in force only till the 31st of December 1960, though a disqualification incurred by reason of section 5 of that order is to continue till the 31st day of December 1966. It is clear that if a question whether or not a person who has a conviction for an offence against him was disqualified were to arise in relation to an election to a Basic Democracy which takes place say in the year 1963, clause (A) of section 5 of the Elective Bodies (Disqualification) Order, 1959, could not be invoked against him because at that time the Elective Bodies (Disqualification) Order would have been dead for many a year. It is difficult to believe that it was the intention of the law-maker that if an election to a Basic Democracy were held before the 31st of December 1960, a conviction could act as a disqualification though this conviction could not so ac if the election were to be held after the 31st of December 1960 I am of the view, therefore, that when considering whether or not a person was disqualified from being a candidate for member ship or a member of a Basic Democracy set up under the Basic Democracies Order, 1959, by reason of a conviction for an offence, the Tribunal called upon to decide the question has to confine its consideration of the question to clause (c) of paragraph 2 of Part II of the Second Schedule to the Basic Democracies Order, 1959, and has not to take into consideration any other provision of any law. The view that I have taken about this matter is not opposed to recognised principles of interpretation of statutes and it is the only view which would reconcile two provisions existing in the same law which may appear at first sight to be irreconcil able with each other.

8. It can hardly be doubted that when called upon to inter pret a provision of law the Court has to find out the intention of the law-maker. If the matter is governed by laws which lay down specific principles of interpretation of which kind of laws the General Clauses Act, is an apt example, the words used in a statute would be assigned the meaning given to them either in the statute itself or in the General Clauses Act. If, however, assistance is not available from the statute itself or by the General Clauses Act, the Court will keep in view the entire circumstances, such as the object with which the law was passed and the state of the law at the time when the law was passed and then determine what the intention of the law-maker was. I have already said that if it were to be held that with regard to disqualification emanating from a conviction both clause (c) and clause (f ) of the second paragraph (Part II) of the Second Schedule to the Basic Democracies Order, 1959, were applicable, the result would be that the law with regard to elections held before the 31st of December 1960 and those held on the tat of January 1961 and thereafter would be divergent from each other. It is obvious that this could not have been the intention of the law-maker and I would not presume that to be the intention unless I had no choice in the matter. If, however, it be held that as regards disqualification for a membership of a Basic Democracy under the Basic Democracies Order, 1959, on account of conviction for an offence the law applicable was that contained In clause (c) of paragraph 2 (Part 11) of the Second Schedule to the Basic Democracies Order, 1959, then no question of the paragraph containing two irreconcilable provisions would arise. It is for these reasons that I hold that if the question to consider is whether a conviction by a criminal Court disqualifies a person from being a member of the Basic Democracy, it shall be decided in accord ance with clause (c) of paragraph 2 of Part II of the Second Schedule to the Basic Democracies Order and clause (f ) would have no relevancy. This overlooking of a part of clause (f) altogether where the question to consider is what effect a convic tion would have, does not offend against any known principles of interpretation of statutes and indeed has one of such principles to support it. The principle I allude to is one of implied repeal of statutes which may be described to be a rule to the effect that when` a later statute dealing with a subject is inconsistent with' an earlier statute dealing with the same subject, the Court may'-, assume that the earlier statute had to the extent of inconsistency been repealed. I might make it clear that the doctrine of implied repeal is not inapplicable to paragraph 2 of Part 11 of the Second Schedule mentioned above by reason of the fact that clause ( f ), which, if applicable, would result in the disqualification of the petitioner, comes after clause (c) of paragraph 2 of Part II of the Second Schedule to the Basic Democracies Order, 1959, because para. 2 Is to be taken as one whole and to be interpreted as such. I would, therefore, hold that on no ground, which could be held to have been raised in the election petition was the peti tioner disqualified from becoming or continuing a member-of a Basic Democracy.

9. Another question that arises in the petition may now be taken up. As already mentioned, it was pleaded in the writ peti tion that Muhammad Ajaib could not have been declared to be a member even if the petitioner be disqualified from becoming a member. This position is perfectly sound because, as already mentioned, Muhammad Ajaib, though an elector in the consti tuency from which the petitioner in this writ petition was declared a successful candidate, was not a candidate for election. If the Election Tribunal had cared to consider this fact he could not have passed an order declaring Muhammad Ajaib to be a member. The matter was covered by rule 55 of the West Pakistan Basic Democracies Election Rules, 1959, which appeared in the Gazette of West Pakistan, Extraordinary, dated the 13th of November 1959 as Notification No. PEA-59/940-ER. Rule 55 of these Rules makes it clear that a claim can be made in an election petition for one or more of the following declarations:- (1) That the election of a returned candidate was void ; or (ii) that the petitioner or some other person had been duly elected; or (iii) that the election as a whole was void. The prayer in the election petition was contained in its seventh paragraph which reads as follows :- "Hence it is prayed that the election of respondent held on 6-1-60 to Basic Democracy in Ward No. 1, Mohri Union Council No. 70 Dhunni, Tehsil Kharian, District Gujrat, be declared void." It is difficult to understand how Muhammad Ajaib could have been declared to be a member in place of the petitioner when Muhammad Ajaib himself had not made a prayer that he should be declar ed to have been elected. Moreover, not being a candidate at election at which the petitioner had been declared to be a returned C candidate, Muhammad Ajaib could not have been declared to have been elected even if he had made that claim because rule 551 does not permit of a person who had not sought election being declared by an Election Tribunal to be an elected member.

10. For the reasons given above, I would accept the petition and issue a writ of certiorari vacating the order of the Election Tribunal whereby the petitioner had been declared to be disquali fied from becoming a member and Muhammad Ajaib respondent had been declared to be a member in his place. The petitioner shall have his costs of this petition from Muhammad Ajaib, respondent No.

2. A. R. CHANGEZ, J.--I have had the advantage of reading the judgment of my brother Shabir Ahmad, J. but I regret that I have not been able to accept his finding on the main question.

2. The principal question which falls for determination is whether a person who stands disqualified for being a member or a candidate for the membership of any elective body until the thirty-first day of December 1966 under clause (d) of Article 5 of the Elective Bodies (Disqualification) Order, 1959, is also dis qualified for being a member or a candidate for the membership of a Local Council under clause (f) of paragraph 2 of Part II of the Second Schedule to the Basic Democracies Order, 1959.

3. Paragraph 2 of Part II of the Second Schedule to the Basic Democracies, Order, 1959, has been quoted in extenso by my learned brother in his judgment and, therefore, it is not necessary to reproduce it. Article 5 of the Elective Bodies (Disqualification) Order, 1959, is however, reproduced below for convenience of reference :- "Disqualification of certain persons.-(1) Notwithstanding any thing contained in this Order, or in any other law, a person shall stand disqualified until the thirty-first day of December 1966, for being a member or a candidate for the membership of any elective body,- (a) if he is dismissed, removed or made to retire from the service of Government or of a Public Statutory Corporation on a charge other than that of inefficiency ; or (b) if an order under section 3 of the Security of Pakistan Act, 1952 (XXXV of 1952) or a similar order under any other law relating to the prevention of acts prejudicial to the defence, or the external affairs, or the security of Pakistan or any part thereof, or to the maintenance of supplies and services essential to the community, or the maintenance of the public order, has ever been made against him ; or (c) if be was found guilty by the Federal Court, a High Court or a Tribunal under the Public and Representative Offices (Disqualification) Act, 1949, or (d) if he has been convicted of any offence and sentenced to a term of imprisonment for more than two years or to transporta tion for any term." According to clause (d) of Article 5 of the Elective Bodies (Disqualification) Order, a person is disqualified from membership of any elective body if he has been convicted of any offence and sentenced to a term of imprisonment for more than two years or to transportation for any term. 4. "Elective body" is defined in Article 2(b) in the following terms :- " `Elective body' means any assembly, board, committee or similar other body, by whatever name called, established or to be established by or under any law of which the constituent members are wholly or partly chosen by means of election and includes a legislature, a municipal corporation, a municipal committee, a cantonment board, a district board, a notified area committee, a town area committee, a sanitary committee or any other local body or electoral college formed for election to a legislature."

5. There can be no doubt that a "local council" within the meaning of the Basic Democracies Order is an elective body. Prima facie, a person who is disqualified under clause (d) of Article 5 of the Elective Bodies (Disqualification) Order. stands disqualified for being a member or a candidate for the membership of a Local Council, until the thirty-first day of December 1966. But to make it clear the disqualifications mentioned in Article 5 of the Elective Bodies (Disqualification) Order have been incorporated in clause (f) of paragraph 2 of Part II of the Second Schedule to the Basic Democracies Order.

6. This rule covers all the offences irrespective of the fact whether they involve moral turpitude or not. The only important condition for its application is that the sentence of imprisonment must be for more than two years or the sentence be for transporta tion for any term. The disqualification incurred on account of this extends only up to the thirty-first of December 1966, as provid ed in Article

5. The Elective Bodies (Disqualification) Order came into force on the 7th of August 1959 and remained In force until the 31st day of December 1960. It is, therefore, clear that the disqualifications mentioned in Article 5 could be incurred up to the 31st of December 1960. If a person on account of his conviction and sentence became disqualified under clause (d) of Article 5 before the 31st of December 1960, then the disqualification has to continue until the 31st of December 1966. During this period the disquali fied person cannot be a member or a candidate for the member ship of any elective body. But if a person is convicted for any offence after the 31st of December 1960 and is sentenced either to imprisonment for more than two years or to transportation for any term, then he does not incur the disqualification under Article 5 of the Elective Bodies (Disqualification) Order, because he is con victed and sentenced after this Order stands repealed. This of course looks somewhat strange but the Judges are not expected to question wisdom of a piece of legislation. The inten tion of the law-maker appears to be that in such a case the person concerned is not disqualified to be a member or a candidate for the membership of a Local Council.

7. Clause (c) of paragraph 2 of Part II of the Second Schedule to the Basic Democracies Order provides that a person is disquali fied if he is convicted of an offence involving moral turpitude and is sentenced to imprisonment for a term of not less than six months unless five years or such less period as the Government may, by notification in the Official Gazette, specify in this behalf, has elapsed from the date of expiration of the sentence. This rule will apply so long as the Basic Democracies Order is in force. If one were to read clauses (c) and (f) together, then it is quite clear that if a person is convicted of any offence and sentenced to a term of imprisonment for more than two years or to transportation for any term before the 31st of December 196u, then he stands disqualified until the 31st of December 1966. It is immaterial if the offence involves moral turpitude or not. In both the cases, he stands disqualified until the 31st of December 1966. The words "if he is for the time being disqualified" used in clause (f ) are indeed very significant. But if a person is convicted of any offence involving moral turpitude before the 31st of December 1960 and is sentenced to imprisonment for a term of not less than six months and not more than two years, then clause (f) will have no application and clause (c) will come into operation ; clause (c) will also apply if a person is convicted of an offence involving moral turpitude, after the 31st of December 1960 and is sentenced to a term of imprisonment for more than two years. For the applica tion of clause (c) it is not material as to whether the person has been convicted or sentenced before the Basic Democracies Order came into force or afterwards. A person convicted and sentenced as indicated above shall stand disqualified unless five years have elapsed since the expiration of the sentence. On a careful con sideration 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 view of the provisions of Article 5 of the Elective Bodies (Disqualification) Order, then for obvious reasons his disqualification continues for more than 6 or 7 years, and this is considered to be a 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) of Article 5 of the Elective Bodies (Disqualification) Order, then in that case clause (c) of paragraph 2 of Part II 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. In this view of the matter, Pehalwan Khan petitioner, who had been sentenced to seven years' rigorous imprisonment for an offence under section 307 of the Penal Code and to three years' rigorous imprisonment under section 326, Penal Code, stands disqualified until the 31st of December 1966 for being a member or a candidate for the membership of a Local Council.

8. As regards the question whether Muhammad Ajaib respondent could have been declared to be a member, I respect fully agree with the finding of my brother that he could not have been declared to have been elected.

9. For the reasons given above, I would accept this writ petition only to the extent of quashing the order of the Election, Tribunal whereby Muhammad Ajaib respondent had been declared to be a member of Mari Union Council No. 70 of Gujrat District. The order of the Tribunal declaring the election of the petitioner to be void shall, however, stand. In the circumstances of the case, there will be no order as to costs. BASHIR ARMED, J.--I have had the advantage of perusing the orders proposed to be passed by my brothers Shabir Ahmad and A. R. Changez. They have agreed in the result though there are differences on the main point which necessitated the reference of the case to the Full Bench. It is not necessary to reproduce the facts as they are fully stated in the order proposed by Shabir Ahmad, J., and the relevant provisions of the law have also been reproduced and noticed in both the orders. After giving the case much anxious thought, with respect, I find myself unable to fall in with the view of Shabir Ahmad, J. I am, on the other hand, in respectful agreement with A. R. Changez, J. both in the conclusion reached and the reasons advanced by him. In view, however, of the importance of the point involved, I consider it necessary to make a few observations though briefly, indicating the manner in which I have reached the conclusion.

2. The Elective Bodies (Disqualification) Order, 1959, hereinafter to be referred as Order No. 13 of 1959, became the law on the 7th of August 1959, and was to stand repealed on the 31st of December 15'

60. Under Article 5 (d) of this Order, a person was to be disqualified until the 31st of December 1966 to become a member or a candidate for membership of an elective body such as the Union Council is, if he had been convicted of any offence and sentenced to a term of imprisonment for more than two years or to transportation for any term. It is patent that although Order No. 13 of 1959 was to stand repealed on the 31st of December 1960, the disqualification was to continue beyond its life, Le., up to the 31st of December 1966. This piece of legislation was followed by the promulgation of the Basic Democracies Order, 1959 (hereinafter to be referred to as Order No. 18 of 1959), which came into force on the 27th of October 1959. In paragraph 1 of Part I of the Second Schedule of Order No. 18 of 1959, the qualifications of electors are specified who, inter alia, are not to be subject to any disqualification specified in paragraph 2 where a conviction for offences relating to elections alone constitutes a disqualification. The respondent before us suffers from no such defect and was duly qualified to be an elector. Part II of the Second Schedule deals with qualifications and disqualifications of candidates and members, and the argument before us has centered round the construction of the only two provisions, clauses (c) and (f ), which are material for the purposes of this case. Both the clauses have been minutely examined by my brothers, and the short point for determination is whether clause (f) continues operative even after the repeal of Order No. 13 of 1959 or was limited to its life. The question has arisen because Shabir Ahmad, J. has discovered inconsistency in its working if both clauses were to remain fully operative inasmuch as there will be a disqualification in the case of a person who was convicted before the repeal of the Order and none whatever in case the conviction was recorded after its repeal. The dis qualification where incurred was to continue to be effective till the 31st of December 1966. In cases of convictions recorded after the 31st of December 190, persons against whom a con viction had been recorded will suffer no such disqualification. My brother Shabir Ahmad felt reluctant so to construe the law, so as to produce these two divergent results and has, therefore, confined "disqualification" resting on a conviction to clause (c) alone. In doing so, he has pressed into service the principle of interpretation of statutes which excludes a subject specifically dealt with earlier when construing a general provision. The general provision in this case, however, deals with disqualifications to be members or candidates for membership and refers to the disqualifications under Order No. 13 of 1959 as disqualifications under Order No. 18 of 1959. Conviction in the preceding clause (c) is a ground of disqualification, and the same subject, though in a different context, is dealt with in clause (f ), and the mere fact that in clause (f )the word "conviction" finds no express mention will not alter the nature of the subject, for it cannot be disputed that disqualifications under Order No. 13 of 1959 cover both cases of conviction and dismissal, removal or compulsory retirement from service. Orders under section 3 of the Security of Pakistan Act, 1952, or similar orders under any other law for the various reasons specified in the Article are also treated on the same basis. The express disqualification mentioned in Part II of the Second Schedule to Order No. 18 of 1959 are within a limited field. A person is disqualified if he has been ordered to execute a bond under section 110 of the Code of Criminal Procedure or convicted for an offence involving moral turpitude with a sentence of more than six months. An order under section 3 of the Security of Pakistan Act, 1952, finds no mention in this clause, nor is the clause concerned with any offences other than those involving moral turpitude. Nor 9s it concerned with the dismissal, removal or compulsory retirement from service as disqualifying a person to seek an election. It would thus appear that all those matters which have been expressly provided in Order No. 13 of 1959 have been eliminated from this 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 conviction has been dealt with expressly in clause (c), in interpreting clause (f ) the question of a con viction will have to be eliminated, will not bear closer examina tion. It seems plain that the legislator only wished to assure that the first elections under Order No. 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 considered sufficient to meet the future requirements. I can see no difficulty in so interpreting the intentions of the legislator considering that the laws promulgated by the Orders were intended to meet an emergency.

3. I may sum up my conclusions as below. A person may be a qualified elector but yet suffer from a disqualification to remain a member or to stand as a candidate. The conviction which destroys the electoral right is confined to offences in con nection with elections. So far as the qualification to remain a member or to stand as candidate is concerned if a person has been sentenced to more than two years on a conviction for an offence before the 31st of December 1960, he could neither remain) a member of Union Council nor be eligible as a candidate for election. A similar conviction recorded after the repeal of Order No. 13 of 1959 will not produce any such result. Offences involving moral turpitude covered by clause (c) will continue to govern future elections. The provisions when so interpreted are in harmony with all the other provisions of the Order, and Involve no inconsistency. The petitioner before us had been convicted of a term of imprisonment which disqualified him under clause (d) of Article 5 of Order No. 13 of 1959, and the petition will merit dismissal on that ground. On the second ground the petition will have to be allowed as the Election Tribunal did cot only set aside the election of the petitioner but also proceeded to declare the petitioner before him (respondent No. 2 before us) as duly elected. The respondent was never a candidate at the election and the declaration accorded to him will have to be certified as of no effect and a writ of certiorari to that effect will issue to respondent No.

1. There will be no order as to costs. A. H. Order accordingly.