1987 PLP 468 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑This direct appeal arises out of the judgment, dated 30‑3‑1986 of the Provincial Election Tribunal (Sind), whereby the appellant who had been elected as a Member of the Sind Provincial Assembly from Constituency P.S. 26‑A, Khairpur‑1 in the Election held on 28‑2‑1985, was held to have been disqualified from being so elected on account of having been convicted and sentenced for an offence involving moral turpitude. The disqualification relied upon is contained in Article 11(1)(g) and Article 10(2)(b)(1) read with Article 11(2) of the Houses of Parliament and Provincial Assemblies (Elections) Order (No. 5) of 1977. The appellant had secured 14,837 votes while his rival candidate Zafar Iqbal who has now been declared as elected by the impugned judgment had secured 9,364 votes. Zafar Iqbal filed an election petition challenging the election of the appellant on various grounds including conviction for offences involving moral turpitude. Other grounds are no more relevant the case has been contested on this ground alone. There is no dispute with regard to the votes or the poll and elections. The disqualification held to have been incurred by the appellant is due to his conviction by a Summary Military Court under M.L.Rs. 5 and 36 read with M.L.O. 77 on 31st August. 1983, which according to the learned Member of the Election Tribunal involved moral turpitude. The allegation in the criminal case (F.I.R. 97 of 1983) against the appellant was that he was one of the leaders in a procession during the well‑known M.R.D. Movement, though the procession was peaceful in the beginning, it became violent subsequently and caused harm to property and persons as also caused hindrance to the police authorities in the discharge of their official duties. Thus, the allegations as contained in the F.I.R. according to the police, constitute offences under sections 307/353, 143/147, 148/188 and 109, P.P.C. and section 13‑D, Arms Ordinance. Evidence was led before the Tribunal to prove the F.I.R. as also the statements recorded by the police of some of the witnesses including Police Constables under section 161, Cr.P.C. No evidence was led to show as to what was the proof furnished by the prosecution before the Military Court which led to the conviction of the appellant, instead four documents were relied upon before the Tribunal. The first document is 'a charge‑sheet slip' showing the charges M.L.Rs. 5, 36 and M.L.0.77, the names of the complainant and the investigators, details of challan and decision, the names of the accused persons, the sentences awarded to each one of them, the names of the Presiding Officer of the Court and the Prosecuting Sub‑Inspector. The name of the appellant is mentioned at Serial No. 9 in this document and is shown to have been awarded rigorous imprisonment for 9 months and fine of Rs.15,000 in default of payment of fine he was further directed to suffer R.I. for three months. The second document is a memo. from Superintendent of Police to D.I.‑G. Police, dated 4‑9‑1983 showing that the case F.I.R. No. 97 of 1983 had been decided by the Summary Military Court. A photocopy of the decision was purported to have been enclosed with this memo. The said photocopy, it appears, is the same as mentioned as Document No.1 above. The third document is a certificate marked, 'J' titled 'sentenced by the Court' which reads as follows:‑ "Sentences.‑‑ Taking all these matters into consideration, now sentence the accused No.

9. Imtiaz Hussain son of Babu Shah Muhammad Phulpoto resident of Ghari Bull Khairpur. to‑‑‑‑‑‑ (1) Suffer R.I. for 9 months. (2) Pay fine of Rs. (15,000) Fifteen thousand in default of payment suffer (3) three months' R.I. Signed at Khairpur this 31st day of August, 1983. Commanding the holding the trial (Sd. ) Maj.. (Nasim Akhtar) Presiding S.M.C. 8 Khaipur. The trial closes at 12‑30 hours o'clock. Remarks by the Reviewing Officer P.A.A. Sec.128, Case Property: be disposed off as per law. CTC (Sd.) SO to D.M.L.A. (Ghulam Murtaza) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑

(1) For the sentence awardable by S.C.M., see P.A.A. Sec.101. (2) For forms of sentence see Third Appendix to P.A.A. Rule under 'Forms of proceeding of a Summary Court Martial. Countersigned Sukkur (Sd.) 20th November, 1983. Major‑General Deputy Martial Law Administrator Sector 3, Certified true copy. (Sd.) Maj. SO to DMLA (Ghulam Murtaz) The fourth document is another certificate issued by the Superintendent Central Jail, Khairpur, which reads as follows:‑ "Certified that Convict No. C/4067 Imtiaz Hussain son of Babu Shah Muhammad Phulpoto was convicted and sentenced to R.I. for 9 (nine) months and fine Rs.15,000 or three months more in lieu of fine in case under section M.L.R.77 and M.L.R.7' and M.L.R.36 in Crime No. 97/83 Police Station Town Khairpur by the President Summary Miltary Court No. 7, Khairpur effective from 31‑8‑1983. He was admitted in this Jail on 4‑9‑1983. No. 7358 (Sd. ) Dated 10‑8‑1983. Superintendent Central Jail, Khairpur." In addition to this evidence produced before the Election Tribunal there is the verbal assertion and denial regarding the appellant having been convicted of offences involving moral turpitude. Copy of a review application was also filed before the Tribunal as evidence in order to show that the appellant had stated therein as to what were the allegations made against him by the police without saying as to what was the evidence led against him. The appellant's case before the Tribunal was, however, that although, he had been convicted by the Summary Military Court for offences under M.L.Rs.5 and 36 read with M.L.O. 77,' this conviction was not for any offence involving moral turpitude and thus did not constitute lack of qualification or disqualification. The learned Tribunal after making reference to the meaning and connotation of the expression moral turpitude as contained in some authoritative works and some decided cases came to the following conclusion:‑ "The principles emerges appear to be that the question whether a certain offence involves moral turpitude or not will necessarily depend on the circumstances in which the offence is committed. It is not every punishment that can be considered to be an offence involving moral turpitude. Had that been so, the qualification 'involving moral turpitude' would not have been used by the Legislature and it would have disqualified every person who had been convicted of any offence. The tests, which should ordinarily be applied for judging whether a certain offence does or does not involve moral turpitude appeal to be: (1) Whether the act leading to a conviction was such as could shock the moral conscience of society in general; (2) Whether the motive which led to the act was base one; and (3) Whether on account of the act having been committed perpetrator could be considered to be a depraved character or a person who was to be looked down by the society." Although the afore‑reproduced categorization may not be exhaustive in so far as it goes, by and large, there is nothing wrong about it. But the question arises whether the standard laid down by the learned Tribunal itself as applied to the present case, it stands established that the appellant was guilty and convicted of any offence involving moral turpitude. On that the learned Tribunal observed as follows: ‑ "On the facts of the case before me I am of the view that the offence for which respondent No.2 (appellant herein) was convicted that he was not only organizing a procession but led the procession which was prohibited by Martial Law Regulation No.5. The respondent No.2 violated the provision of Martial Law Regulation No.5, the act doubtless involves moral turpitude." "I am of the view that the Tribunal cannot examine the evidence on which the conviction or the prepetrator's plea of guilty is based, but must resort to the statutes or the Martial Law Regulations to defined the particular character of the crime, moral turpitude being define as an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen or to society. "A duty has been cast on individuals not to act or organize a procession which is prohibited by Regulation No.

5. This is a duty which every individual or citizen who is governed by the above law owes to the society whose member (he) obviously is. An individual's conduct in organizing a procession in the circumstances stated in Martial Law Regulations is, therefore, contrary to justice, honesty and good morals and shows depravity of character and wickedness." It is here that a serious question arises as to whether the learned Member of the Tribunal has rightly applied the law to the facts of the present case. The relevant provisions noted above which are contained in Presidential Order No. 5 of 1977 which laid down the qualification /disqualification are as follows:‑ "(10) Qualification and disqualifications for membership of Parliament..‑‑ (1) ............................................................. ............................................................. (2) A person shall be disqualified from being elected or chosen as, and from being, a member, of parliament,‑ (a) (b) If-- (1) he has been, on conviction for any offence which in the opinion of the Commissioner involves moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; or (2) ............................................................... "(11) Qualifications and disqualifications for membership of Provincial Assembly.‑‑ (1) A person shall not be qualified to be elected as member of a Provincial Assembly unless,‑‑ (a) ............................................................... (g) he has not been convicted for a crime involving moral turpitude or for giving false evidence; and (h) ............................................................... (2) A person shall be disqualified from being elected as, and from being, a member of a Provincial Assembly if he is subject to any of the disqualifications specified in clause (2) of Article 10." It is also necessary at this stage to reproduce the provisions of Martial Law Regulation No. 5, the conviction where under has been held to have involved moral turpitude. Martial Law Regulation No. 5 reads as follows:‑ "No person shall organize or convene or attend any meeting, not being a religious congregation, in an open public place, or organize or take out a procession, not being a religious, funeral or marriage procession, without the prior written permission of the Martial Law Administrator concerned. (2) No person shall attend or otherwise take part in any meeting or procession organized or convened or taken out in contravention of paragraph 1 of this Regulation. Explanation 1.‑‑In this Regulation 'open public place' includes any tent, enclosure of other structure of temporary nature erected or constructed in a public place for the purpose of meeting. Explanation 2.‑‑ A 'meeting' includes political meeting, Trade Union meeting, Students' Union meeting or any other meeting involving discussion on any topic of political nature. Maximum punishment 7 years' rigorous imprisonment, fine and/or whipping not exceeding 10 stripes." It is not necessary to reproduce Martial Law Regulation No, 36 as it is agreed that it relates only to abetment and attempt to commit offences‑‑the learned Tribunal rightly has treated M.L.R.5 as the substantive offence. It is also not necessary to reproduce Martial Law Order No. 77 because it is a procedural provision relating to the powers of the Military Court to punish offences and effects thereof regarding certain specified offences. It has no bearing on the question involved in this case as to whether the appellant was convicted fop an offence involving moral turpitude. The learned Tribunal also wrote and understood these provisions in the same sense, as it appears from the following opinion expressed by it:‑ "It would thus be seen that by the type of allegation made against him by the prosecution, the respondent No. 2 (the appellant herein) clearly brought himself within the mischief of the said two Martial Law Regulations (M.L.R. 5‑‑substantkve and M.L.R.36‑‑its abetment and attempt). The Summary Military Court has found that the respondent No.2 had indeed led the procession and raised slogans and there is nothing on record to contravene the said finding. In these circumstances it cannot be said that he was not convicted for a crime." As to whether this crime involved moral turpitude, the view of the learned Tribunal has already been quoted above. Learned counsel for the appellant has raised four main contentions: Firstly, that there was no material on record produced before the Tribunal to show as to what was the evidence and accusation made before the Summary Military Court which led to the conviction of the appellant much less as to what was accepted by the said Court as established and proved. The mere fact that content of F.I.R. statements under section 161, C . P. C . and other similar material was placed before the Tribunal would not supply the deficiency. Secondly, that the offence as defined in M.L.R.5 and/or read with M.L.R.36 does not per se involve any element of moral turpitude. In support of these two contentions learned counsel has cited Mian Shahbaz Ahmad v. Haji Muhammad Tariq and others 1985 S C M R 227; Abdul Rashid Mughal v. Muhammad Shabbir Abbasi 1984 S C h' R 1172; Haji Muhammad v. The State P L D 1966 (W.P.) Lah. 34 and Mian Zahid Sarfraz v. Raja Nadir Pervaiz Khan and others 1986 C L C 1464. ' Thirdly that in any case if the conviction under M.L.R simpliciter contains any element of moral turpitude, and it be a disqualification under Article 11 (1)(g) of the Presidential Order 5 of 1977, it would not be enough to disqualify the appellant unless the appellant's case was also covered by the disqualification contained in Article 10(2)(b)(1) when read with Article 11(2) of the Order and lastly, in the alternative that there was no pleading nor any basis were laid down by the election petitioner to show that the disqualification was notorious and that the voters had thrown away their votes, therefore, Zafar Iqbal respondent could not have been declared elected. In this behalf he has relied on Government of West Pakistan v. Haji Muhammad P L D 1976 SC 469, Messrs Choudhary Brothers Limited, Sialkot v. The Jaranwala Central Co‑operative Bank Ltd., Jaran Wala and others 1968 S C M R 804 and Pakistan v. Abdul Ghani P L D 1964 SC

68. Learned counsel for the respondent contestant who has now been declared elected has generally adopted the line of reasoning contained in the impugned judgment and relied on the contents of the F.I.R. the statements made under section 161, Cr.P.C., the four documents showing the conviction and sentence of the appellant already noted as also the so‑called admission of the appellant in his review application in which he stated as to what allegation had been made by the police against him, And this, he argued was enough to show as to what was the accusation and material before the Summary Military Court on the basis of which the appellant was found guilty under M.L.R.5. He also contended, as held by the learned Member of the Tribunal, that conviction under M.L.R.5 per se would constitute moral turpitude, as according to him the procession in which the appellant participated as 'a leader was against the continuance of Martial Law and the procession had also become violent, causing harm to private and public property. Regarding throw‑away votes learned counsel relied on the affidavit of the election petitioner and ground 5 in the review petition filed by the appellant wherein he had asserted that his conviction by the Summary Military Court had harmed his reputation. A criminal case initiated by police passes through various stages. The first one is the allegation or information of offence with the police which ordinarily is contained in the first information report. Next the investigation during which material is collected by police against the accused, statements recorded under section 161, Cr.P.C. and recovery of incriminating articles including documents amongst others, constitute important elements of this stage. The police, if it comes to the conclusion that the case is fit for trial, puts up the accusation in the form of challan in the Court for trial. After the Court takes cognizance another stage commences which in our system of criminal justice is of utmost importance. The evidence led by the police or entertained otherwise against the accused is screened through the rules of relevance, admissibility, cross‑examination and other judicial pruning The accused is not only given opportunity to question the material produced against him but also is entitled to lead his evidence and address arguments to establish his innocence, dispute the nature of offence committed or establish mitigation. Ultimately the stage comes of judicial exercise of sifting the evidence and other material lawfully brought before the Court for discovering the truth in the allegations against the accused and pleas raised and material, put forward by him. It also involves the process of judgment making about the guilt or otherwise and the punishment if necessary. The Court proceedings as distinguished from police proceedings are the most important foundational process of Court action. When the trial ends in conviction (here we are not concerned with acquittal), the proceedings in Court are seen to find out the nature of the accusation in the Court, evidence led there and the findings reached. The first information report and statements recorded under section 161, Cr.P.C. having served a subordinate purpose loses much importance in so far as the material considered for rendering the finding of guilty or otherwise is concerned. They are not treated as substantive evidence against the accused and no finding of guilty can be based on them. Whether it is criminal Court functioning under normal law or is a Summary Military Court under Martial Law, there is no difference in this behalf. In the present case evidence was led before the Tribunal against he appellant to prove the contents of F. I. R. and the statements recorded under section 161, Cr.P.C. No effort was made to establish as to what the material produced before the Summary Military Court in the form of prosecution evidence particularly the depositions made by the witnesses in that Court. There is nothing in the evidence led before the Tribunal to show whether the persons who made the statements before the police did also appear before the Court or not. And more important whether they made same or similar depositions on oath in Court. Without this, Tribunal could not hold as to what was the evidence before the Court as distinguished from what was before the police. As noted earlier our judicial system gives final importance for various purposes to Court proceedings rather than to police action. The election law relevant here also follows the same course. Accordingly it was not possible merely by looking at the F.I.R. and police statements under section 161, Cr.P.C. to hold as to what was the evidence and material before the Summary Military Court. The matter does not end here. Further evidence led before the Tribunal established only this much that the Court convicted the appellant and awarded punishment to him for offences under M.L.R. 5/36 read with M.L.O.

77. No evidence was led to show as to what was the judgment and decision about the accusation levelled against the appellant in the evidence produced in Court. How far any evidence was relied upon and accepted is not known. This would have been necessary in the present case even if it would have been known as to what evidence was led in Court. The reason is obvious. It was the duty of the Tribunal to find out whether the conviction of the appellant involved moral turpitude M.L.Rs. 5 and 36, when stretched to the maximum, spoke of a 'procession' without the permission of the designated authority. They do not disclose it as an ingredient of the offence itself that the procession was for such a purpose so as to involve moral turpitude. Hence, it was from the legal evidence and material usable a; the trial by the Court and from its speaking opinion and judgments decision that the Tribunal could discover whether the nature of the procession and the activities of the appellant therein involved moral turpitude. The same not available to the Tribunal, the finding against the appellant, to say the least, are based on no evidence at all. The reliance by the learned counsel for the respondent on the so‑called admission of the appellant in his review application and similar other material does not advance the case against him. That also at best showed as to what was the original allegation against the appellant and not as to what was evidence at the trial or the judgment at its conclusion. The explanation of the learned counsel for the respondent involving an expression of helplessness on the part of the election petitioner that the evidence led before the Military Court was not available so as to be produced before the Tribunal and further that the said Court does not write any judgment showing its finding regarding individual accusations in Court, has not impressed us. If that is the position, the election petitions in case, like the present one, must fail. There is no law or principle on the basis of which an elected member of an Assembly can be de-seated on mere assumptions including the one in this case that allegations during police proceedings must have also been the accusation in the Court proceedings and further the Court must have accepted them. It is however, observed that the cases where the definition and scope of the offence under which the accused is proved to have been convicted, itself is expressive of the fact whether it involves moral turpitude or not‑‑(we would mention section 354, P.P.C. as an instance) the considerations would be different. It is not necessary to make any further comment on such category of cases, as it is not the case before us. The view of the learned Member of the Tribunal which was reiterated by the learned counsel for the respondent in his arguments that the forming or joining a procession which is not permitted by the designated martial law authority is itself an act involving moral turpitude denied that forming of a procession simpliciter even if an offence (e.g. when it is in contravention of an order under section 144, Cr. P. C. ) cannot be treated as involving moral turpitude, unless the purpose of the procession has some nexus with the same. There was no finding of the Military Court before the Tribunal in that behalf. Therefore, this reasoning is also not acceptable. In the light of the foregoing discussion, due to lack of proof of moral turpitude in the conviction of the appellant under M.L.R.5/36 read with M.L.O. 77, this appeal is allowed and the impugned judgment is set aside with costs. In view of this finding there is no need to deal with the other arguments. S.Q./4429/S ‑‑‑‑‑ Appeal allowed.