P L D 1999 Quetta 106 (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.

Succinctly; the facts as have been narrated by petitioner Sardar Fateh Khan Umrani son of late Sardar Moheem Khan Umrani, Member, Balochistan Provincial Assembly, from Constituency PB-23 Nasirabad I, are that on 26th February, 1998, he received a Telegram from the office of Cheif Election Commissioner of Pakistan (in short 'C.E.C.') calling upon him, to appear on 3rd March, 1998, as a Reference for his disqualification, has been received under clause 1(a) of Article 63-A of the Constitution of Islamic Republic of Pakistan, 1973, from Speaker, Balochistan Provincial Assembly. As such, petitioner obtained the copy of Reference, alongwith the Notice dated 17-1-1998, issued by the Secretary General, Jamhoori Watan Party (in brief 'J.W.P.'), who was authorised in this behalf, by the Head of J.W.P. Nawab Muhammad Akbar Khan Bugti. Since the Notice is crucial towards the disposal of instant petition and has to be discussed hereinafter, therefore, its contents in extenso, for sake of convenience are reporduced hereinbelow:-- "SARDAR FATEH ALI KHAN UMRANI, M. P. A. Rani Bagh Sariab Road, Quetta. 17-1-1998 . NOTICE Under Article 63-A 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 PB-23 Nasirabad-I and you were elected 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 63-A 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 Provincial Assembly. (Sd.) 17-1-1998 (Khuda-e-Noor) Secretary General. J.W.P. as authorized by the Head of the J. W. P. Nawab Muhammad Akbar Khan Bugti under sub-Article (1) of Art.63A of the Constitution of Islamic Republic of Pakistan, 1973. " It is the case of petitioner, that he filed written statement to the Reference, wherein beside raising preliminary objections to the non maintainability of Reference, on facts, it was contended that prior to the receipt of aforesaid Notice from C.E.C. Petitioner was neither put to notice by the Party or the Speaker nor was heard in person, by any of the aforesaid entities. It was also contended that Respondent (Petitioner herein) has not left the Party, as alleged in the Reference. (Emphasis supplied by underlining). The learned C.E.C. vide Order, dated 9th March, 1998, accepted the Reference. Concluding para. of Order, is reproduced hereinbelow:-- "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 63-A(1)(a) of the Constitution. He ceases to be the member of Provincial Assembly, Balochistan. His seat from the Constituency (PB-23 Nasirabad) has become vacant and as a consequence thereof bye-election shall be held. The parties to be informed. Islamabad (Sd.) the 9th. (Justice (Recd.) Abdul Qadeer Chaudhry) March, 1998 Chief Election Commissioner of Pakistan By instituting Constitutional Petition 77 of 1998, before this Court, petitioner challenged the above order of C.E.C. However, the said petition was dismissed on 27th July, 1998. Against the dismissal order of this Court, a Civil Appeal No.1389 of 1998, was filed by petitioner, before the Hon'ble Supreme Court, which was decided on 4th December, 1998, whereby the impugned orders were set aside and case was remanded to C.E.C. Concluding para. of the Judgment reads as under:-- "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. 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. " Accordingly on the remand of case, private respondents i.e. President and Secretary General of J.W.P. got examined to A.W. Abdul Fateh Khoso, Joint Secretary of Balochistan Provincial Assembly. Whereas petitioner produced R.Ws. Gulab Hussain Khan, Section Officer, Cabinet S&GAD, Mir Abdul Raheem and Ghulam Abbass. It may be noted that unofficial respondents, during hearing before the learned C.E.C. filed affidavits of Habibur Rehman, Shahzad Zulfiqar, Rasheed Baig, Muhammad Zubair and Muhammad Kazim Mengal, all are correspondents of various Newspapers. Similarly the petitioner filed affidavit of Muhammad Asim Kurd alias Gailoo. On completion of proceedings, the learned C.E.C. vide order, dated 10th April, 1999, concluded as under:-- "The respondent has defected his party, therefore, the Reference is accepted. The seat of the respondent has become vacant and as a consequence thereof bye-election shall be held." Thus, against the above order, instant Constitutional petition has been filed Pre-admission notices were issued to respondents and as important question of interpretation of Article 63-A of the Constitution of Islamic Republic of Pakistan, was involved, therefore, notices were also directed to be issued to Attorney-General of Pakistan as well as Deputy Attorney-General. In response to the notices, Mr. M.Zafar learned counsel appeared for respondents Nos. 2 to 4, whereas .Syed Ayaz Zahoor. learned Deputy Attorney General represented respondent No.

1. At the hearing, learned counsel for petitioner reiterated following points, which were urged by him on the last date of hearing i.e. 10th May, 1999:-- (9) That notice dated 17-1-1998 allegedly issued by Secretary General of J . W . P. was not served upon petitioner, therefore, whole proceedings initiated against him for declaring him disqualified due to so-called defection, are illegal; (ii) Learned Chief Election Commissioner had wrongly concluded that notice dated 17-1-1998 was served upon petitioner through the driver of B/R department, namely Ghulam Abbass; (iii) Notice dated 17-1-1998, does not constitute defection under Article 63-A(1)(a)(b) against petitioner because he had not withdrawn himself from J.W.P. on whose ticket he was elected as M.P.A. nor allegations contained in notice constitute defection in view of Judgment announced by Honourable Supreme Court reported in PLD 1998 SC 1263, because there is no allegation in the notice that the petitioner has violated or has committed the breach of the patty's policy inside the House; (iv) As far as allegation of the respondents that petitioner did not boycott session of Assembly from 3-I1-1997 to 18-11-1997 is concerned, it was not part of the notice dated 17-1-1998, therefore, for this alleged allegation the Election Commissioner could not have taken any notice against the petitioner, declaring him disqualified on the ground of defection; (v) Learned Chief Election Commissioner believed the affidavits of 5 correspondents namely, Mr. Habibur Rehman, Mr. Shahzad Zulfiqar, Mr. Rasheed Baig, Mr. Zubair and Mr. Kazim Mengal, to conclude that in their presence petitioner had admitted that he has withdrawn from Jamhoori Watan Party without affording opportunity of cross- examination to petitioner on their statements accepted and taken on record against the petitioner contrary to the principles of Qanun-e Shahadat Order, 1984; (vi) Learned Chief Election Commissioner to disqualify the petitioner on the ground of defection had relied upon Judgment reported in PLD 1990 Quetta 1, despite of the fact that this judgment has been set aside by Honourable Supreme Court in Civil Appeal No. 1389 of 1998, dated 4-12-1998; and (vii) Learned Chief Election Commissioner had condemned the petitioner by disqualifying him under section 8-B of the Political Parties Act, 1962, because under these provisions no proceedings were initiated by the respondents, therefore, for such reason he would have not been disqualified. Learned counsel for respondents 2 to 4 addressed the Court at length and got formulated following points for consideration:-- (a) Impugned order dated 10-4-1999, does not suffer from lack of jurisdiction, therefore, petition is not maintainable. The questions urged in the petition are purely questions of facts, which cannot be settled by this Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan; (b) Chief Election Commissioner is required to give effect to the decision of head of the party made by him under Article 63-A of the Constitution. Initially learned counsel stated that the reference was sent under Article 63-A(1) but subsequently he urged that the same was also under Article 63-A(1) Explanation (b); (c) Whether dictum laid down by Honourable Supreme Court in the Judgment reported in PLD 1998 SC 1263 is applicable on the facts of instant case; and (d) The petitioner is condemned by his own conduct as he has been found guilty of defection; firstly by the head of the party, secondly by the High Court and thirdly by the Chief Election Commissioner, therefore, he is not entitled for discretionary relief. Syed Ayaz Zahoor, learned Deputy Attorney-General, did not support the impugned order, by making reference to para. 14 of the Judgment of Wukala Mahaz Barai Tahafaz Dastoor and another v. Federation of Pakistan and others PLD 1998 SC 1263. However, to summarize his arguments, he got formulated, following points:-- (i) Chief Election Commissioner has not complied with observations made by Honourable Supreme Court in the Judgment dated 4-12-1998 delivered in Civil Appeal No. 1389 of 1998 arising from the Judgment of this Court dated 27-7-1998 passed in C.P. No.77 of 1998 as he has not given any finding on the question whether the petitioner is disqualified under Article 63-A(1), Explanation (a) of the Constitution alone; (ii) Reference by head of the J.W.P. was sent under Article 63-A(1) Explanation (b) whereas in pursuance of the dictum laid by Hon'ble Supreme Court in the case PLD 1998 SC 1263 it was required by the C.E.C. to decide, whether disqualification against the petitioner has been claimed under Article 63-A(1) alone or it was under Article 63-A(1) Explanations (b) and (c) and the C.E.C. had no jurisdiction to give decision in isolation just to declare that the petitioner has defected the party; and (iii) The C. E. C. while passing the impugned judgment dated 10-4-1999, had also disqualified the petitioner for violation of section 8(b) of the Political Parties Act, which was never the case of the respondents 2 and 4, therefore, on this score as well judgment is liable to be declared as of no legal consequence. " 1n view of the respective contentions, put-forth by the patties' counsel petition was admitted. ' Mr. H. Shakeel Ahmad, learned counsel appeared for petitioner and re iterated the points, reproduced hereinabove, in detail. So, was the position of Mr. M.Zafar and Mr. Amanullah Kanrani, learned counsel for private respondents. Syed Ayaz Zahoor. learned Deputy Attorney-General, however, did not address the Court, at the final hearing, on account of his pre-occupation before Hon'ble Supreme Court. We have heard the parties' counsel at length and have also gone through the relevant provisions of Article 63A of the Constitution of Islamic Republic of Pakistan, which reads as under:-- "63A. Disqualification on ground of defection, etc.--(1) If a member of a Parliamentary party defects, he may by means of a notice in writing addressed to him by the Head of the Political Party, or such other person as may be authorised in this behalf by the Head of the political party, be called upon to show cause. within not more than seven days of such a notice, as to why a declaration under clause (2) should not be made against him. If a notice issued under this clause, the Presiding Officer of the concerned House shall be informed accordingly. Explanation.--A member of a House shall be deemed to defect from a political party if he, having been elected as such, as a candidate or nominee of a political party, or under a symbol of political party or having been elected otherwise then as a candidate or nominee of a political party, and having become a member of a political party after such election by means of a declaration in writing; (a) commits a breach of party discipline which means a violation of the party Constitution, code of conduct and declared policies, or (b) votes contrary to any direction issued by the Parliamentary party to which he belongs or, , (c) abstains from voting in the house against party in relation to to any Bill (2) (3) .. (4) .. (5) .. (a) (b) .. (6) Petitioner's counsel, vehemently urged, that without service of notice, issued by the Head (Leader) of a Political Party or his Authorized Person, calling upon the petitioner to show cause, as to why, declaration under Article 63-A(1) should not be made against him, no action of making such declaration against petitioner, legitimately -could have been taken. Therefore, sending of reference to the Speaker, for onward transmission to the C.E.C. for giving effect to such decision, is of no consequence. Learned counsel to substantiate his plea, explained that it is alleged by unofficial respondents that said Notice was served upon the petitioner, through one Ghulam Abbass, driver of B&R Department. The petitioner, to negate this assertion, got examined said Ghulam Abbass, who on oath, stated that no Notice was received by him, on behalf of the petitioner. To rebut the statement of this witness, no evidence was produced. But, surprisingly the learned C.E.C. in absence of any evidence from the other side, has held, that the Notice was served upon the petitioner. Therefore, such findings being not based on any evidence, are liable to. be interfered by this Court. On the other hand, Mr. M.Zafar, learned counsel for unofficial respondents, vehemently opposed the contentions of petitioner's counsel, by stating that notice was duly served upon petitioner at his address of Rani Bagh, Quetta, but he intentionally avoided to appear before the Secretary General, J.W.P., who was authorised to issue such Notice by Head of Party. Learned C.E.C. recorded evidence of Ghulam Abbass, but did not accept the same, as he has given false statement, and recorded findings of fact, that service of Notice was effected upon petitioner. According to learned counsel, inasmuch as, on receipt of Telegraphic Notice dated 26-2-1998 from the learned C.E.C., petitioner obtained photostat copy of Notice, but did not request for remand of case to the Head of J.W.P. or its authorised person, for providing him opportunity of being heard. He further explained besides this notice, another notice was issued by Secretary General, (Authorized Person) to petitioner on 2nd January, 1998, which was received by Ghulam Abbass, on the same day, but no reply wa, _iven. Subsequent thereto, Disciplinary Committee was constituted by the President, 1.W.P., on 22nd January, 1998 and Secretary of said Committee, issued him Notice on 28th January, 1998, which too was received by him, but he did not file any reply, either to the Party Chief or the Secretary General. Despite the fact that all these notices were served upon him, even then another opportunity was afforded to petitioner to appear before the Committee by means of issuing notice to him on 3rd February, 1998, but its service was refused by Ghulam Abbass, under instructions from petitioner. Ultimately, on 4th February, 1998, the Secretary General (Authorized Person) communicated to petitioner, the decision of Disciplinary Committee, dated 3rd February, 1998, whereby it was unanimously decided, that the petitioner is liable to be disqualified, from being the Member of Provincial Assembly, as he has defected from J.W.P. and joined Balochistan National Party (in short 'B.N.P.') in December, 1998, which fact was announced by him, in a Press Conference, held at Chief Minister Balochistan's Office in Quetta. Surprisingly, this communication as well, was refused to be accepted by Ghulam Abbass, under instructions from petitioner. Despite of all this, even then the Party President on 11th February, 1998, allowed another opportunity to petitioner, to clarify his position, in a letter addressed to the Secretary General. Again notice was sent to petitioner, but same Ghulam Abbass, refused to tale it. Learned counsel pointed out that all the notices sent to petitioner from time to time, were at his address of Rani Bagh, Sariab Road, Quetta, which allegedly were not got served upon him, but surprisingly when Telegraphic Notice, dated 26th February, 1998, was sent to him by learned C.E.C. at his addresses of Rani Bagh, Sariab Road, Quetta and Village Gari Rehman, Tehsil Tamboo, District Jaffarabad, the service was effected on his former address. In such circumstances, how it is possible that petitioner has not received the notices, issued to him from time to time, by the Head of J.W.P. or his Authorized person i.e. the Secretary General. We have gone through the relevant part of Judgment, wherein the learned C.E.C., after discussing the statement of Ghulam Abbass, concluded; that petitioner had sufficient notice of the action taken against him by the party. He did not take any step to contest the allegations made by the party against him. Inasmuch as, during course of proceedings in first round, Mr. Khudai Noor General Secretary, J.W.P. offered to serve him notice in Court but he refused to take any notice. In view of these findings of fact, based on available material, by the C.E.C., we are of the opinion, that there is no scope to further dilate upon this aspect of the case, because examining the case from any angle, the only conclusion would be; that strong attempts were made to effect service upon petitioner but he did not accept the service. Inasmuch as the notice dated 17-1-1998, was duly served upon Ghulam Abbass Umrani, who put his signatures, as a token of acceptance of same of the even date on behalf of petitioner, but later on dishonestly refused to recognize his signatures. In this behalf, it may also be observed that first notice, referred to hereinbefore, was sent to petitioner on his Rani Bagh address, allegedly service of which was not effected upon him, but when the C.E.C. issued telegraphic notice on this address, its service was duly effected upon petitioner and in response thereto, he appeared before the learned C.E.C. on 3rd March, 1998, when he obtained copy of petition alongwith Annexures including the Notice dated 17-1-1998. Thus, if the petitioner really had not received the notice dated 17-1-1998, then he should have accepted the offer made by Secretary General, J.W.P. before the learned C.E.C., during hearing, without showing any reservation or reluctance. As such, non-accepting of notice, leads to draw adverse inference against petitioner, that he had already received the notice dated 17-1-1998, but did not want to contest the proceedings. Thus, under these circumstances, the findings of fact, recorded in this behalf by the learned C.E.C., deserve no interference or substitution, in exercise of extraordinary Constitutional jurisdiction, by this Court. Learned counsel for petitioner, then argued that unofficial respondents have miserably failed to prove through convincing evidence, that petitioner defected from J. W. P., as he joined B. N. P. on 21st December, 1997, reported in Press. According to learned counsel, the respondents filed affidavits of five Journalists/Correspondents of various Newspapers, to substantiate that in their presence in the C.M. House, petitioner announced that he has joined B.N.P., but the contents of these affidavits were not got proved, as these persons were never produced, and to the contrary, as per the Order sheet of the proceedings before the learned C.E.C., dated 6th March, 1999, Mr. M. Zafar and Mr. Amanullah Kanrani, learned counsel, dropped these five witnesses, without assigning any reason. But the learned C.E.C. in the impugned order, relying on these very affidavits, have concluded that petitioner in their presence, addressed a Preys Conference and announced that he has joined B.N.P. According to learned counsel. in absence of evidence on the subject, the learned C.E.C. had no lawful authority to believe the Press cuttings/News Items, published in ditferent Newspapers, w *ierein, it has been alleged that petitioner has defected from J.W.P. as he has joined B.N.P. Learned counsel argued that such factual aspect of the case, ought to have been proved by leading primary evidence. To strengthen his arguments, he relied on AIR 1925 Lahore. 298, AIR 1930 Lahore 371, PLD 1961 Karachi 1, AIR 1961 Mysore 106, AIR 1959 Rajistan 80, AIR 1969 SC 1201, PLD 1976 SC 57, PLD 1982 Lahore 141, PLD 1985 AJ&K 83, AIR 1988 SC 1274, 1989 MLD 2330 and PLD 1998 SC

338. On the other hand, learned counsel for unofficial respondents, stated that there is no cavil with the principles of law, discussed in the reported Judgments, relied upon by petitioner's counsel, but he explained that even in these Authorities, the Hon'ble Superior Courts have visualized two positions while examining; whether a News Item, published in a Newspaper, is admissible, without formal proof or not? First of them are the News, concerning ordinay acts, during normal course of life, including commercial rates, causing defamation, slander, etc. and second are those News, which are of national interest for the general public. As far as the latter category is concerned, it is not required to be proved and the News Item is to be accepted, as a true evidence of events, which had happened. We have examined the Judgments, relied upon by the learned counsel with their assistance. In our opinion, in the instant case, the controversy between the parties, can be settled, by referring to a passage, from the Judgment of Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad. v. Abdul Wali Khan M.N.A. Former President of Defunct National Awami Party (PLD 1976 SC 57), which reads as under:-- "The order of the Chief Settlement Commissioner, dated the 7th of November, 1966 had merely pointed out the wafit of jurisdiction in the order, dated the 9th of May, 1962. The order dated the 9th of May, 1962 was void ab initio on account of want of jurisdiction in the Chief Settlement Commissioner to pass the order, and it was, therefore, a nullity and could be ignored. Such an order did not require to be set aside in appeal or in any other proceedings. Vide PLD 1964 SC 97 at page

101. In the case of Yusuf Ali Mullah Noor Bhoy v. The King (1) it was observed as follows:-- But if the orders were a nullity there was nothing to appeal against, It may well be that the Government if embarrassed by the orders of acquittal, might have applied to the High Court to quash them. In this connection reference may be made to the decision of the House of Lords in Crame v. Director of Police Prosecutions (1921) 2 AC 299 (90 LJKB 1160). But the omission of Government to take such a step, which was not incumbent could not convert an order made without jurisdiction into an order passed by Court of competent jurisdiction. Some emphasis. was laid on the conduct of the Government of Bombay in appealing against the orders passed by the learned' Magistrate, under section 517, C.P.C. It may be that the High Court ought not 'to have entertained such appeals, but no question as to the validity of the orders made in these appeals is before the Board. It was rightly conceded by Mr. Page that the action of the Government of Bombay in appealing against the orders made by the Magistrate under section 517 could not operate by way of estoppel to confer jurisdiction upon the Magistrate which he did not otherwise possess." In another case reported in PLD 1998 SC 388 "Mohtarma Benazir Bhutto and another v. President of Pakistan and others" the Honourable Supreme Court has reiterated the above principles. Relevant para. therefrom is reproduced hereinbelow: -- "From the aforestated analysis it is clear that Ajmal Mian, J. before whom press clippings in respect of a particular charge were not even referred, refused to rely upon them but did not observe that as a rule press clippings, magazines and published news items should in all cases be excluded from consideration. In fact while dealing with the other charge, he relied on press clippings. The consensus is that such documents could be considered without requiring strict proof as required by the Law of Evidence applicable to trial of cases. The authentic and uncontradicted news items published in the newspapers or magazines of contemporaneous events can form basis for drawing inferences and have been accepted as material for forming opinion. ". Thus, following the principle of law, enunciated by Hon'ble Supreme Court, concerning admissibility of a News item, published in the Newspaper, we are inclined to hold that News Item, dated 21st December, 1997, published in different Newspapers, to the effect; that petitioner has joined B.N.P., attracted the attention of general public, throughout the Constituency of PB-23 Nasirabad-I, from where the petitioner contested election, as well as the General Public and Communities of the Province, on account of which, they came to know that a M.P.A. of J.W.P. had changed his loyalties from his party, on whose Ticket he was elected as M.P.A., and therefore, such news was admissible under. Articles 2 and 29 of the Qanun-e-Shahdat Order, 1984. It is important to note, that admittedly till today, the petitioner has not contradicted the News Item of 21st December, 1997 by addressing a Press Conference. Inasmuch as, in the memo. of Petition, it has not been stated anywhere that the petitioner is ready to denounce before the Correspondents of different Journals, in whose Newspapers, the news of his defection from J.W.P. was published. In an unimbiguous term, we enquired from Mr. Shakeel Ahmad, Advocate; as to whether, petitioner has contradicted the news that he has joined B.N.P., on coming to know of it? Learned counsel stated that petitioner is resident of a village, situated in far flung area of District Tamboo, where the Newspapers are not supplied. Therefore, he had no knowledge about the news item, published in this behalf at Quetta, on 21st December, 1997. We are not inclined to accept the explanation of learned counsel, because the petitioner is an elected Representative of his area, therefore, he should have to be more vigilant, in respect of the interest of his Electors and further if such adverse news is published, same not only damage to his personal image, but also cause mistrust against him, amongst his voters. Therefore, no sooner, he learnt about the publication of such news item, he should have immediately managed to contradict the same by addressing a Press Conference, even at a later stage, and in not doing so, the presumption would be; that petitioner has conceded to the News Item, published on 21st December, 1997, with regard to his defection from J.W.P. and joining B.N.P. Although it is true that learned C.E.C. had referred to the affidavits, despite the fact that the deponents who sworn the same, were not produced and they were dropped; but in view of the above discussion, reference to the Affidavit by learned C.E.C., would make no difference, because after the publication of news item, with regard to joining of B.N.P. by petitioner, it became a known fact, for the general public and Communities of the Province that petitioner has joined another Party i.e. B.N.P. Thus, we are of the opinion that in view of the News Item published in the Newspapers of 21st December, 1997, it was proved/established that petitioner has defected from J.W.P. and had joined B.N.P.. Messrs S.A.M. Quadri and Shakeel Ahmed, learned counsel for petitioners contended that the impugned Judgment is not sustainable, because learned C.E.C. had relied upon section 8-B of the Political Parties Act, 1962, which deals in respect of defection, if committed by a chosen representative, but no proceedings under this provision of law, were filed by the Head of Political Party against petitioner nor the learned C.E.C. had taken its cognizance within the meaning of Article 63-A of the Constitution, read with the Judgment delivered in the case of Pir Sabir Shah v. Shad Muhammad Khan, Member, Provincial Assembly N.-W.F.P. and another (PLD 1995 SC 66). They further stated that learned C.E.C. had also relied on the earlier Judgment of this Court passed in C.P. No-77 of 1998, which had been set aside by Hon'ble Supreme Court. Mr. M. Zafar, learned counsel, contended that mere reference to section 8-B of the Political Parties Act, 1962, would not render the Judgment, as having been passed without jurisdiction, because in substance, the learned C.E.C. has held that petitioner has not only defected but also withdrew himself from the Political Party, therefore, short of reference by the leader of Political Party J.W.P., the. provisions of section 8-B are fully attracted in the present case. We are inclined to agree with the learned counsel .for petitioner, because, admittedly no proceedings under section 8-B of the Political Parties Act, 1962 for disqualification of petitioner from the Membership of Provincial Assembly, on the ground of defection, were initiated before the learned C.E.C., in view of the pronouncement of Hon'ble Supreme Court, in the case of Pir Sabir Shah. It may be noted that to initiate proceedings against a Member of a Parliament or of a Provincial Assembly, under section 8-B of the Political Parties Act, 1962, the same are to be initiated before the Forum, prescribed by Article 63(2) of the Constitution of Islamic Republic of Pakistan. Whereas, for initiating disqualification proceedings, under Article 63-A(l) of the Constitution, Head of the Party, is required to make declaration, that a Member of Parliament or of a Provincial Assembly, who has contested election on party ticket, has defected and Reference is to be made by him to the C.E.C. through Speaker of Provincial or National Assembly, for giving effect to such decision. In this behalf, it would be appropriate to reproduce hereinbelow, relevant paras from Pir Sabir Shah's case:-- "It may be pertinent at this juncture to point out that subsection (1) of section 8-B of the Act which has been reproduced hereinabove in para.31, does not impose any restriction or restraint on the right of a member to speak or to vote. It talks of defection or withdrawal from the political party by a member and provides that in such event the member concerned shall be disqualified from the date of such detection or withdrawal from being a member of the House for the unexpired period of his term as such member unless he has been re-elected at a by election held after his disqualification. In other words, it does not divest the right of a disqualified member from contesting bye election either as an independent or as a member of any other political party which he may have joined. In contrast to the above provisions, above paragraph 2 not only provides defection for the reason that a member voluntarily gives up his membership of the political party concerned but also on the ground that if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining in either case the prior permission of such political party or where such voting or abstention has not been condoned by the political party concerned. It is, therefore, evident that the scope of paragraph 2 of the Tenth Schednle to the Indian Constitution is much wider than that of above subsection (1) of section 8-B of the Act." At this juncture, it is noteworthy that for disqualification of a parliamentarian or a Member of Provincial Assembly, section 8-B of the Political Parties Act read with Article 63(2) of the Constitution, was not found much effective and comprehensive, because despite the fact that these laws were holding the field, the menace of floor-crossing was growing, like a cancer disease, day by day. Therefore, stress was made by Judiciary while deciding different matters, at different times, to promulgate such law, - which can control this disease promptly. In this behalf, it would be appropriate to quote a para. from the case of Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan PLD 1992 SC 646 hereinunder:-- "Defection of elected members has many vices. In the first place, if the member has been elected on the basis of a manifesto, or on account of his affiliation with a political party, or on account of his particular stand on a question of public importance, his defection amounts to a clear breach of confidence reposed in him by the electorate. If his conscience dictates to him so, or he considers it expedient the only course open to him is to resign to shed off his representative character which he no longer represents and to fight a re-election. This will make him honourable, politics clean, and emergence of principled. leadership possible. The second, and more important, the political sovereign is rendered helpless by such betrayal of its own representative. In the normal course, the elector has to wait for years, till new elections take place, to repudiate such a person. In the meantime the defector flourishes and continues to enjoy all the wordly gains. The third is that it destroys the normative moorings of the Constitution of an. Islamic State." Thus, in view of the above observations and in pursuance of the pressing demand of public, that such law should be promulgated, which may be helpful to provide stability to a Democratic Government; by means of Fourteenth Amendment in the Constitution, Article 63-A was introduced. For the above reasons, we are of the opinion, that the learned C.E.C. while making reference to section 8-B of the Political Parties Act, may have kept in his mind, that as per notice dated 17-1-1998, petitioner has only been charged for defection under Article 63-A(1) of the Constitution and no proceedings against him were initiated under section 8-B of the Political Parties Act, 1962 read with Article 63(2) of the Constitution. At this juncture, reference to the Notice, dated 17th January, 1998, would not be out of context. A careful perusal whereof, in clear terms indicates that petitioner was found guilty for defection under clause (1) of Article 63-A of the Constitution. In as much as in subsequent proceedings i.e. decision by the Disciplinary Committee dated 3rd February, 1998 and reference transmitted by the Leader of J.W.P. to the Speaker, Balochistan Provincial Assembly, the same were under Article 63-A of the Constitution. Therefore, reference by the learned C.E.C. to section 8-B of the Political Parties Act, 1962 was uncalled for. Mr. Shakeel Ahmad, learned counsel, further stated that in first round, petitioner was disqualified by, learned C.E.C. vide order, dated 9th March, 1998. The said order was challenged before this Court in C.P. No.77 of 1998, which was dismissed on 27th May, 1998. Against this order Civil Appeal No. 1389 of 1998 was filed before Hon'ble Supreme Court and during pendency of same, on 20th May, 1998, the Hon'ble Supreme Court, pronounced the Judgment in the case of Wukala Mahaz Barai Tahafaz Dastoor PLD 1998 SC 1263 wherein interpretation of Article 63-A of the Constitution was made, therefore, in view of the same, the Hon'ble Supreme Court instead of dilating upon the merits of. case, remanded the same to learned C.E.C., with directions to hear the case afresh in the -light of above judgment, and keeping in view the contentions raised by learned counsel for parties. Learned counsel with utmost respect stated that the learned C.E.C. had not examined the ratio decendi, laid down by Hon'ble Supreme Court in said case, according to which, a Member cannot be disqualified under Article 63-A, on the ground of his alleged misconduct, committed outside the Parliament and for that an action is to be taken, according to the Party Constitution and not under Article 63-A of the Constitution, which regulates the conduct and breach of a Member, within the House. As per their contention, if at all it is presumed that the petitioner has defected from J.W.P., then too, such action would not be cognizable under Article 63-A of the Constitution, in view of the verdict of Hon'ble Supreme Court, which has got binding effect on this Court, within the meaning of Article 289 of the Constitution. , Learned counsel for respondents, however, did not agree with the contention put-forth by petitioner's counsel, as according to him the petitioner has committed defection, within the meaning of Article 63-A(1) and not under Article 63-A(1) Explanations (a), (b) and (c). To substantiate his argument, learned counsel referred to the dictionary meaning of 'defection' and stated that no sooner petitioner had announced that he has joined B.N.P. he has rendered himself disqualified to remain as Member of the Provincial Assembly. According to him as far as the Judgment in the case of Wukala Mahaz Barai Tahafaz Dastoor, is concerned, that was not delivered by Hon'ble Supreme Court, in view of a particular facts of a case, because two petitions under Article 184(3) of the Constitution, were admitted, to interpret the provisions of Article 63-A in view of peculiar circumstances, prevailing in the country at the relevant time. Learned counsel also stated that petitioner has also committed defection, inside the house, because he has violated the party policy, by not boycotting the Assembly session, as it has been proved by producing the evidence of P.W. Abdul Fateh Khoso. Therefore, on this account as well, he is liable to be disqualified. On hearing the parties' counsel at a considerable length and also going through the Judgment of Hon'ble Supreme Court in Wukala Mahaz Barai Tahafaz Dastoor case, we are inclined to split the acts/omissions of petitioner in two parts. One; that on 21st December, 1997 he announced, outside the House that he has joined B.N.P. and other; that in violation of the party policy he did not boycott the Assembly Sessions from 20th to 27th January, 1998, as per the document 'A/4' exhibited before the learned C.E.C., whereas the Certificate Exh.'A/2' shows that Nawabzada Saleem Akbar Bugti and five others, were absent from the Assembly Sessions, during the said period. As far as the latter charge is concerned, that perhaps has been noticed by the unofficial respondents during the pendency of the reference against petitioner, because in the notice dated 17-1-1998, petitioner was not charged for such allegations. However, if the Party leader was of the opinion that the petitioner after joining the B.N.P. has also violated the party discipline or policy of not attending the, Assembly Sessions, on account of the differences with the coalition Government, then he should have preferred to file fresh Reference for his disqualification, after observing the formalities against him, because the present proceedings, admittedly cropped up, after issuing of notice, dated 17th January, 1998, as such, without initiation of proper action under Article 63-A of the Constitution, for violation the party policy, by not boycotting the Assembly session, petitioner cannot be declared disqualified, and thus, the learned C.E.C. has no jurisdiction to disqualify him for this reason. Now turning towards the former allegation against petitioner that he has joined B.N.P. on 21st December, 1997, as it has been reported in Press, meaning thereby; that such action of petitioner is covered by Article 63-A(I) Explanation (a), which speaks that defection means, that a Member of the House shall be deemed to defect from a Political Party, if he commits a breach of party discipline, which means a violation of the party Constitution, code of conduct and declared policies. We may observe here that despite of our repeated query to learned counsel for respondents; as to whether he has filed the copy of the Constitution of party or code of conduct or declared policies? he could not answer satisfactorily, except saying that these documents were filed before the C.E.C. Actually on going through these documents, we wanted to see; that the action of petitioner in joining the other Political party, was covered under which provision of Constitution of J.W.P., but these documents were not produced for our perusal. Be that as it may, in view of the facts and circumstances, discussed hereinabove, there is no hesitation in concluding that the petitioner in joining the B.N.P; had committed defection outside the House and not inside the House ' Therefore, Explanation (a) to clause (1) of Article 63-A of the Constitution, has to be considered independently and in absence of any allegation of defection, fined in Explanations (b) and (c), it would be deemed that the petitioner is not guilty for defection; inside the House. As far as the defection outside the House is, concerned, that is not cognizable by the Party Leader under Article 63-A of the Constitution, as it has beep held in the case of Wukala Mehaz Barai Tahafaz Dastoor. Relevant para. therefrom, for reference is reproduced hereinbelow:

"The upshot of the above discussion is that the above impugned Article is not violative of any provision of the Constitution. However, in order to avoid future unnecessary litigation and to provide guideline, we may clarify the following Points :-- i) That paragraph (a) is to be read in conjunction with paragraph (b) and (c) to Explanation to clause (1) of Article 63-A of the Constitution. It must, therefore, follow as a corollary that a member of a House can be disqualified for a breach of party discipline in terms of above paragraph (a) when the alleged breach relates to the matters covered by aforesaid paragraphs (b) and (c) to the above Explanation to clause (1) of the aforementioned Article and that the breach complained of occurred within the House. ii) That the above paragraph (a) to Explanation to clause (1) of Article 63-A is to be construed in such a way that it should preserve the right of freedom of speech of a member in the House subject to reasonable restrictions as are envisaged in Article 66 read with Article 19 of the Constitution.' It may. be noted that the above decision was endorsed by majority of Honourable Judges of Supreme Court. Although his Lordship Mr. Justice iduzzaman Siddiqui, in his separate note concurred with the conclusion of Honourable Chief Justice, but was of the opinion that explanation (a) to clause (1) of Article 63-A covered the acts of an elected Member of a Political party, both inside and outside the House, whereas Explanations (b) and (c) to clause (1) relates to his action, inside the House only. Relevant pare. from the separate note of his Lordship, is also reproduced hereinbelow:-- "Keeping in view the background of insertion of Article 63-A in the Constitution, I have not been able to discover anything objectionable in assigned to word 'defection' in the impugned legislation. the meaning The impugned clause (a) describes the breach of party discipline which is explained as breach of Constitution, code of conduct and declared policies of the political party amongst others, as the act of defection. It denied that a political party functions on the shared belief of cannot be d members and their commitments to uphold its Constitution and its memo declared policies. A person when ,joins a political party and seeks election to the Assembly on the ticket of that party holds out to the electroate that he is bound by the discipline, code of conduct and declared policies of the party. After his election to the Assembly, if he defies the party constitution or the code of conduct or the declared policies of the party, whether within the Assembly or outside the Assembly he looses his representative character and the mandate to represent the people who elected him on the basis of his above representation. With utmost respect, I have not been able to persuade thyself to agree with the view that only such breach of Constitution, code of conduct and declared policies of the political party by its elected members, which takes place within the four walls of the Assembly, would be covered by the impugned clause (a), which is to be read together with clauses (b) and (c) of the Explanation to Article 63-A of the Constitution. In my humble view clauses (a) to (c) of the Explanation to Article 63-A of the Constitution are independent of each other, while clause (a) covers the acts of an elected member of a political party both inside and outside the House, clauses (b) and (c) relate to hits action inside the House only," In the same context, his lordship Mr, Justice Irshad Hasan Khan. had also subscribed to the view takers by Honourable Chief Justice, in pam.1S of the judgment reproduced herein above, However, para,27 from the separate note of hilt Lordship isproduced hereinbelow;-- "l may say with utmost respect that I am unable to subscribe to the view taken by learned Chief Justice vide paragraph 18(1) of the proposed judgment that the breach of party discipline in terms of sub-clause (1) to the explanation to clause (1) of Article 63-A of the Constitution, is applicable only to the alleged breach of the party discipline taking place within the House. I am of the view that all activities and actions which have a bearing on a purpose behind the defection would also fall within. the ambit of sub-clause (a) to., the Explanation to clause (1) of the impugned Article, inasmuch as, sub-clause (a) to the Explanation to clause(1) of the impugned Article is a separate discipline and has no nexus apparently with the remaining sub-clauses, i.e, (h) and (c). The latter two sub-clauses specifically deal with those facets of the action/activity which take place at the floor of the House, therefore, sub clause (a) has to have a separate existence from sub-clauses (b) and (c) thereof. Clearly, if discipline is to be endorsed to prevent defection only in the House then it can be frustrated by actions and activities of a Member of the House who may indulge in actions and activities outside the House, which shall have repercussions on the proceedings and/or voting in the House. It is trite law that unless a different intention is apparent, the enumeration of specified matters in a Constitutional provision is usually construed as an exclusion of matters not so enumerated. " As it has been pointed out hereinabove that in view of the above judgment presently the prevailing view is that a Member of the House can be disqualified for breach of party discipline in terms of paragraph (a), when the alleged breach relates to the matters covered by paragraph (b) and (c) to Explanation to clause (1) of Article 63-A and that the breach complained of, occurred within the House. As we have held hereinabove that the news published in different journals /newspapers, dated 21st December, 1997 to the effect that petitioner has joined s.N.P., prima facie, tentamounts to defection outside the house, therefore, no action could have been initiated against him within the meaning of Article 63-A of the Constitution, and thus, the learned C.E.C. had no ,jurisdiction to disqualify the petitioner from the membership of the Provincial Assembly. In view of the above discussion, we are inclined to hold that the notice dated 17-1-1998 was duly served upon the petitioner in pursuance whereof it was stated by the Authorised person, i.e, Secretary General on behalf of Party Leader, that petitioner has joined 9.N.P, as reported in Press dated 21-12-1997; but ay such actjon was trot covered by Explanations (b) arid (c) to clause (1) of Article 63A of the Constitution, therefore, he was not liable to be disqualified from the Membership of Provincial Assembly from the Constituency PB-23 Naairabad-1, in view of the judgment reported in PLD 1995 SC 1263. Thus with above observations writ Is issued. Consequently the impugned order dated 10-4-1999 is declared to have beers passed by the Chief Election Commissioner of Pakistan. without lawful authority ad such it is of no legal consequences. No order as to costs. H.B.T,/769/Q Petition accepted.