P L D 2003 Lahore 251 (PLP)

RAJA MUHAMMAD SABIR, J.‑‑Through this judgment we intend to dispose of Election Appeal No.39(R) of 2002 (Qayyum Azam Khan v. The Returning Officer etc.) Election Appeal No.40(R) of 2002 (Muhammad Afzal Gill v. The Returning Officer etc.) and Election Appeal No.60(R) of 2002 (Muhammad Akmal Bhatti v. The Returning Officer etc.) as common questions of law and facts are involved in all of them.

2. Brief facts of the case are that Qayyum Azam Khan appellant in Election Appeal No.39(R) of 2002 submitted his nomination papers for the seat of PP‑272, Muhammad Afzal Gill appellant in Election Appeal No.40(R) of 2002 filed nomination papers for the seat of PP‑274, Tehsil Hasilpur, District Bahawalpur and Muhammad Akmal Bhatti appellant in Election Appeal No. 60(R) of 2002, filed his nomination papers for PP‑271‑Bahawalpur‑V. Private respondents submitted objections against their nomination papers. The Returning Officers vide impugned orders rejected their nomination papers on the ground that they were convicted in Criminal Original No.72 of 1997 by a Full Bench of the Lahore High Court for rediculing the judiciary and, as such, are disqualified under section 8D(2)(g) of the Conduct of General Election Order, 2002 (Chief Executive's Order No.7 of 2002) to contest election of Punjab Provincial Assembly.

3. Appellants have challenged the rejection of their nomination papers through appeals in hand. On 4‑9‑2002 we issued notices to respondents Nos.2 to 4 and the Advocate‑General, Punjab in the cases of Qayyum Azam Khan and Muhammad Afzal Gill appellants for today and the notices were ordered to be served telegraphically at the cost of the appellants. Respondents Nos.2 to 4 probably could not be served for lack of time so have not entered appearance. However, Rana Muhammad Zahid, Additional Advocate‑General has appeared for Advocate‑General and supported the impugned orders. Appeal of Muhammad Akmal Bhatti is fixed in motion before us for today. Since in all the three cases impugned order is based on their joint conviction in contempt matter, we have taken up all the three appeals together.

4. Sardar Muhammad Latif Khan Khosa and Salman Mansoor, Advocates learned counsel for appellants contend that the appellants had tendered unconditional apology and threw themselves at the mercy of the Court in contempt proceedings, they purged the contempt by expressing repentance, therefore, the Returning Officers were not justified to reject their nomination papers on the ground of their conviction recorded in Criminal Original No.72 of 1997. They have also vehemently argued that in recent past appellants have not defamed the judiciary or acted in any prejudicial manner and the action taken against them was a past and closed transaction so on this ground, also their nomination papers could not be rejected.

5. Learned Additional Advocate‑General submits that the appellants maligning the Court committed contempt in well‑planned manner of grossest wilful misdemeanour. Their unconditional apology was turned down and was only considered for inflicting lesser punishment. Appellants are disqualified to contest the election under section 99(1A)(g) of the Representation of the People Act, 1976 (Act No. LXXXV of 1976).

6. We have heard the learned counsel for the appellants and the learned Additional Advocate‑General at length. Private respondents have not entered appearance but it does not make any difference for disposal of these appeals in view of the able assistance rendered by the learned Additional Advocate?-General in these cases.

7. Criminal Original No.72 of 1997 originated in the following circumstances:‑‑ "On 29‑8‑1997 appellants alongwith others took out a procession consisting of 100/150 persons, led by two members of Provincial Assembly, namely, Ch. Afzal Gill. (appellant) and Sami Ullah Chaudhry. The remaining two appellants were the members of the said procession. They went to the High Court premises at Bahawalpur Bench and shouted abusive slogans against the Judges of the High Court as well as the Court. Mr. Justice Sh. Amjad Ali (as he then was) immediately brought the matter to the notice of the Hon'ble Chief Justice. Pursuance to that the Hon'ble Chief Justice directed that notice be issued to Sami Ullah Chaudhry and Ch. Afzal Gill, M.P.As. to show cause as to why they should not be punished for contempt of Court. The Commissioner, Bahawalpur Division was also directed to make probe and report the names of other participants of procession. On 1‑9‑1997, a copy of daily Siadat Bahawalpur was placed before the Hon'ble Chief Justice from where it was gathered that apart from aforesaid two Legislators, three other persons namely Muhammad Iqbal Mehr, Divisional President; Muslim League Youth Wing, Mr. Qayyum Mazhar Khan, President, City Muslim League Youth Wing and Tahir Janbaz had also participated in the said procession, which had thereafter gone to, Jamia Masjid, Bahawalpur where Sami Ullah Chaudhry, Muhammad Iqbal Me hr, Qayyum Mazhar Khan delivered disparaging speeches against the Judges of this Court. Notices were issued to the aforesaid persons under section 3 of the Contempt of Court Act, 1976: Mr. Sami Ullah Chaudhry, Ch. Afzal Gill (appellant), Muhammad Iqbal Mehr, Qayyum Mazhar Khan and Tahir Janbaz entered appearance alongwith their counsel. Meanwhile Commissioner, Bahawalpur Division made a report that thirteen other persons, namely, Chacha Rasool, Rana Muhammad Sarwar, Qayyum Azam (appellant), Muhammad Akram Javed, Apa Feroz, Syed Fargham alias Farri, Abdul Khaliq Qureshi, A.D. Raza, Gulzar Ahmad Ghauri, Muhammad Akmal Bhatti/(appellant) Javed Ahmad, Advocate and Tahir Bashir were also the participants of the procession on 29-8‑1997. Accordingly notices were issued to the aforesaid persons too. All of them finally entered appearance and filed affidavits wherein they submitted unconditional apologies and threw themselves at the mercy of the Court. One of the contemner Apa Feroz was not in attendance due to her ailment and the hearing of the criminal original was postponed from one date to another on account of variety of reasons. The case was ultimately fixed for hearing under the orders of the Hon'ble Chief Justice on 22‑10‑1998. Mr. Sami Ullah Chaudhry and Muhammad Afzal Gill appeared alongwith Mr. Muhammad Shehzad Shaukat, Advocate. Due to absence of some of the accused case was postponed to 29‑10‑1998. All the contemners entered appearance did not contest the show‑cause notice and submitted unconditional apologies before the Full Bench of the Lahore High Court but the same was not accepted on the ground that the High Court was maligned and comment committed by the accused was well‑planned and of grossest wilful misdemeanour. It was further observed that they even used the God Almighty for their nefarious purpose for having gathered in the mosque. One of the contemner addressed a Press Conference also. On the strength of aforesaid facts and their conduct, it was held that they tried to mobilize the public opinion against the Judges of the High Court, tried to use the house of God Almighty, therefore, their unconditional apologies were not considered adequate to meet the damage which they had done. On these facts the High Court did not accept their unconditional apologies. However, same was taken into consideration in the matter of inflicting punishment upon them and taking a lenient view lesser sentence till rising of the Court and to pay a fine of Rs.2,000 each or to undergo 7 days' imprisonment in default of payment of fine was awarded to them."

8. The conduct of the appellants in this background and their action in taking of procession to the gate of the Bahawalpur High Court, raising abusive slogans against the Judges clearly amounts to ridicule the judiciary. Section 99(1‑A) (g) provides that a person shall be disqualified from being elected as and from being a‑member of an Assembly; if he is propagating any opinion, or acting in any manner, prejudicial to the Ideology of Pakistan, or the sovereignty integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the Judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan. The case of the appellants is clearly hit by aforesaid disqualification. The Returning Officers have rightly rejected the nomination papers of the appellants.

9. The submission of learned counsel on the strength of Maulana Ghulam Dastgir and 2 others v. Mrs. Benazir Bhutto (1991 CLC 571) that they having not ridiculed or defamed the judiciary in the recent past and their conviction being a past and closed transaction, same cannot be used against them has no force. The case of Maulana Ghulam Dastgir is based entirely on different set of facts. Father of respondent therein was convicted by the High Court and the sentence was maintained by the apex Court and she made certain remarks against the superior judiciary which were produced before the Election Tribunal for declaring her ineligible to contest the election. The statement placed on the record related to the year 1988. Neither the High Court nor the Supreme Court had taken any action against her on those statements. Even a notice was not issued to her. The appellant failed to make out a case for disqualification of respondent therein. It was further observed that it has not been established that she is propagating at present or has propagated in the recent past opinions against the judiciary as an institution, so the appeal against acceptance of her nomination papers was rejected. In the instant case appellants were convicted by the High Court in contempt proceedings for raising abusive slogans against the Judges of the High Court taking out procession and having tried to lower the integrity and independence of judiciary. The facts of the referred case are clearly distinguishable from the facts of the appeals in hand. Mere fact that the appellants have not defamed judiciary in recent past itself is not sufficient to bring their case out from the disqualification referred above. The appeals have no substance and are dismissed. H.B.T./Q‑25/L ??????????????????????????????????????????????????????????????????????????????????? Appeals dismissed.