P L D 1960 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.-This is a certified appeal by the Election Commissioner, Pakistan, from a judgment of the High Court of West Pakistan at Lahore granting respondent Nawab Sajjad Ali Khan's application for a declaration that despite his appointment to the office of Lambardar he continued to be a Member of the Provincial Assembly of West Pakistan. The respondent, who was an elected Member of the Provincial Assembly of West Pakistan, was, by an order of the Commissioner, Lahore Division, dated the 19th of December, 1956, appointed as Lambardar of village Kot Sondha in the district of Sheikhupura. During the proceedings of the Assembly a Member objected to respondent being allowed to sit in, or participate in the proceedings of, the Assembly on the ground that he having been appointed to accept an office of profit in the service of Pakistan had become disqualified to be a Member of the Assembly. On this objection, the Speaker of the Assembly referred the matter to the Election Commissioner in accordance with clause (2) of Article 78 of the Constitution. The Commissioner ruled that the office of Lambardar was an office of profit in the service of Pakistan and that the respondent had become disqualified to be a Member under paragraph 4 (1) (c), Part II of the Fourth Schedule to the Constitution. On the strength of this ruling the Speaker, by Notification No. 17, dated the 8th May, 1957, declared that the respondent's seat had become vacant. Thereupon, the respondent made an application to the High Court under Article 170 of the Constitution praying that the ruling of the Election Commissioner be declared to be ineffective and that a direction be issued to the Speaker to the effect that the respondent had not incurred any disqualification and continued to be a Member of the Assembly. The application was granted by the High Court on the 13th September, 1957, and the direction prayed for was issued. The Election Commissioner applied to the High Court for leave to appeal to this Court and obtained such leave because of the important constitutional issued involved. It should be stated that though the declaration was granted and leave to appeal given by the High Court before the Proclamation of 7th October, 1958, on the date of that Proclamation the present appeal was a pending case. The first question that has therefore to be decided is whether by reason of clause 7 of Article 11 of the Laws (Continuance in Force) Order, 1958, this Court can proceed with the appeal. In State v. Dosso (PL D 1958 S C (Pak 533), it has been held by this Court that all applications for writs which were pending on the date of the Proclamation or in which leave to appeal from order passed before the Proclamation had been given by this Court or by the High Court abate if the writ had been issued on the ground that some action taken or law made was repugnant to the abrogated Constitution of the Islamic Republic of Pakistan. This statement of the law was affirmed in the later decision in the case of The Province of East Pakistan v. Muhammad Mehdi Ali Khan and others (P L D 1959 S C (Pak.) 387). In the present case, the writ had been issued on the ground that a ruling given by the Election Commissioner in exercise of the authority conferred on him by a provision of B the Constitution was illegal and not on the ground that the ruling was in contravention of any provision of any of the laws saved by Article 4 of the Laws (Continuance in Force) Order, 1958. Clause 7 of Article 2 is therefore fully applicable to this case and we have no alternative but to hold that the respondent's application for a declaration has abated, together with all proceed ings taken on that application, including the judgment of the High Court. We, therefore, allow this appeal and dismiss the respondent's application and the proceedings taken on it as having abated. In the circumstances, there will be no order as to costs. A. H. Appeal allowed.