2000 MLD 709 (PLP)

(Sd.) Qazi M. Anwar, Dy. Secretary General, 19‑9‑1998 at 11‑15 a.m." The same day respondent No.4 the President of ANP moved a reference of disqualification under Article 63‑A of the Constitution against the petitioner to the Speaker of the Provincial Assembly (respondent No.2) who transmitted the same to the learned Chief Election Commissioner (respondent No. l), on the same day i.e., 19‑9‑1998, who was obliged to pass the impugned order, disqualified the petitioner, declared his seat vacant and directed bye‑election, vide order, dated 1‑10‑1998.

8. We have heard the learned counsel for the parties and have gone through the record of the case.

9. The learned counsel for the petitioner (Mr. Muhammad Salim Sehgal) made the following submissions:‑‑‑ That it is plainly clear from the provisions of Article 63‑A of the Constitution that the fact whether the petitioner was or was not a member of the Awami National Party, was a jurisdictional fact which means the fact collateral to the merits of the case, whose existence is the foundation of the jurisdiction of the statutory Tribunal or Authority. According to him it was settled principle that jurisdictional fact must exist objectively before a Tribunal has jurisdiction and that mistakes as to a jurisdictional fact will deprive the Tribunal of its jurisdiction and its decision will be quashed as ultra vires. He relied on Muhammad Jameel Asghar v. Improvement Trust (PLD 1965 SC 698) and Khizar Hayat Khan v. Zainab Begum, (PLD 1967 SC 402). The learned counsel further argued that the case of the petitioner does not attract the provisions of Article 63‑A of the Constitution as according to him the petitioner never joined. the ANP as its basic member in accordance with its constitution and that there wag no evidence available on the record to this effect. Besides after having been elected as member to the Provincial Assembly, there is no evidence available on the record to suggest, that he ever made or signed a declaration in writing in accordance with the provisions of the explanation to the clause (1) of Article 63‑A. That the fact that the petitioner had contested the election as an independent candidate was conclusively established by the Election Commission Report wherein .he has been shown as an (independent) candidate. He further contended that the appeal of the petitioner to the party head against the Disciplinary Committee was not decided by the party President as required by clause (2) of Article 63‑A of the Constitution because the decision was not made by the party President. It was rather conveyed to him through the Deputy Secretary General namely Qazi Muhammad Anwar who had no authority to do so and was in violation of the Constitutional provision. Therefore, the reference made to the Chief Election Commissioner was pre‑mature as the appeal has not finally been signed and the decision had not been made by the party President. The learned counsel contended that there was no breach of discipline within the meaning of paragraph (a) of the explanation to clause (1) of Article 63‑A of the Constitution as interpreted by the Supreme Court in a famous judgment Wukala Mahaz Barai Tahafaz Dastoor and another v. Federation of Pakistan and others (PLD 1998 SC 1263). He further contended that respondent No.2 Speaker of the Assembly had only transmitted the reference to respondent No. l as a post office without applying his independent mind.

10. When questioned about the status of the affiliation or connection of the petitioner with ANP in very close proximity the learned counsel for the petitioner contended that this relationship, can be termed, merely cordial relations, between the two and that the non‑participation of the petitioner, in the walkout in the Budget Speech, by remaining in the House would suggest that as an independent candidate, in the House the petitioner had leaning towards the Chief Minister as an independent coalition partner. With regard to the question that the petitioner has mentioned in his nomination papers that he had affiliation with ANP (MERA TAULUQ ANP SAY HAI) would not make him a nominee for a candidate of ANP. It was further averred by the learned counsel that the petitioner sometime did support certain policies adopted by the ANP so long these were in the public interest. The moment he felt that the policies followed by the said party were against the national interest he withdrew his support in favour of such policies and opted to vote of the sitting Chief Minister. According to him the support of the petitioner to the ANP within or out of the House by participating in some meetings thereof, does not in any way constitute a declaration in writing to show that he had become a member of the parliamentary party. He contended that the proceedings initiated under Article 63‑A against the petitioner were on the basis of incorrect assumption, therefore, the petitioner had neither defected from the party within or outside the House. He was, therefore, of the view that the decisions of the respondents challenged in this petition were illegal and without jurisdiction and were liable to be set aside.

11. Contrary to the claim of the petitioner the petition was vehemently contested by respondents 2, 3 and 4 while respondent No. l vide letter, dated 13‑10‑1998 placed on the file expressed desire not to contest the writ petition. Respondent No.4, however, submitted written statement which is available on the file. In the aforesaid written statement a preliminary objection was raised that the writ petition was incompetent and not entertainable as under Article 63‑A(6) of the Constitution there was a bar on the jurisdiction of all the Courts including the Supreme Court and the High Court to entertain any legal proceedings, exercise jurisdiction, or make any order in relation to any such action taken under Article 63‑A of the Constitution. Besides numerous other points which are available on the file.

12. We have heard Mr. Haroon Bilour for respondent No.2, Mr. Riyaz Ahmad Khan, for respondent No.3 and Qazi Muhammad Anwar, for respondent No.4. Counsel for respondents 2 and 3 adopted the' arguments advanced by Qazi Muhammad Anwar. According to the learned counsel (Qazi Muhammad Anwar) the petitioner was a member of ANP right from his childhood and was one of the top leaders of the Pakhtoon Students Federation and remained as such up to his graduation in the University of Engineering and Technology, Peshawar. He contended that the petitioner was nominated for the election of the minority seat, of the N.‑W.F.P., in the Election held on 3‑2‑1997. In his nomination papers, he declared himself as a nominee of the ANP and by signing the declaration of the nomination papers, he had made a commitment that if elected he would neither change the political party nor defect, nor he would cast vote in the Assembly without the consent of the party and would not accept any office. He contended that the minority constituency of the N.‑W.F.P., was spread over the entire province, as such the ANP supported the petitioner in the campaign of the election and supported the petitioner financially. He urged that having been elected on the support of the party petitioner attended the first parliamentary party meeting of the ANP on 7‑2‑1997 at Peshawar and made the announcement in the Press through daily Nation, Daily Jhang, Daily Nawai Waqat in their publications, dated 8‑2‑1997 that he belonged to ANP. The cuttings of these Newspapers have been annexed with the file as Annexure B,B-1,-2, and B-3 respectively. The learned counsel further contended that the petitioner from the party finally on 4-9-1998 and after taking oath as Minister in the P.M.L. Government, a show‑cause notice was issued to him by the President, and he being the Deputy Secretary General of the party was authorised to initiate action against him, but the petitioner ignored the show‑cause notice and gave irresponsible statements in the Press claiming himself to be an elected member of the Assembly as an independent candidate. This compelled the respondents' party to initiate action against him under Article 63‑A. He was asked to appear before the Disciplinary Committee but he failed to appear and instead on 10‑9‑1998 addressed a Press conference at Peshawar wherein he claimed that he cannot be blackmailed by ANP. This Press conference was reported by Daily Jhang, Daily Frontier Post and various newspapers on 11‑9‑1998. According to the learned counsel the petitioner has not disputed the minutes of ANP meeting, dated 7‑2‑1997 and the Press report, dated 8‑2‑1997 in respect of his joining ANP Parliamentary party declaring that he was in ANP by birth, therefore, no declaration in writing was required as is envisaged by Article 63‑A of the Constitution. He further contended that the petitioner impliedly by his conduct for all purposes, on numerous occasions, had declared himself to be a member of the ANP and its parliamentary party in the Provincial Assembly. According to him, respondent No. 1, the Chief Election Commissioner had sufficient evidence before him which proved that the petitioner was a member of ANP and had violated the discipline of the party and that he had defected by making himself liable for disqualification According to him the petitioner participated in Bacha Khan Markaz Inauguration Ceremony, dated 31‑5‑1998 being exclusive, ANP function, cannot be ignored, besides his speeches in the Provincial Assembly, wherein he described ANP as his party and Begum Nasim Wali Khan as his party leader. This evidence would not reflect jurisdictional mistake. The petitioner has submitted to the jurisdiction of the Chief Election Commissioner without any reservation. He further averred that the petitioner has not come to this Court with clean hands as he has suppressed material facts and has not annexed with the writ petition the necessary documents which were in his possession and were the part of the reference against him before the Chief Election Commissioner. The description of these documents has already been given by him in his written statement. The petitioner had never contradicted his affiliation with the party in his Press statement or Press conferences which amounts to implied admission that he was a member of ANP and was elected on its ticket to the Provincial Assembly. According to the learned counsel the satisfaction of the Chief Election Commissioner on the basis of the material placed before him cannot be substituted by the High Court even if a different view could possibly be taken. He contended that there are concurrent findings of fact by the party as well as by the Chief Election Commissioner which of course, cannot be rendered ineffective by this Court in writ jurisdiction. While concluding his arguments the learned counsel prayed that the petition was incompetent and was barred by Article 63‑A(6) of the Constitution.

13. Having considered the arguments of the learned counsel for the parties we have also gone through the record made available before us. We would like to reproduce the relevant portion of Article 63‑A(6) of the Constitution which reads:‑‑‑ "63‑A Disqualification on lZround of defection etc. Explanation. (1) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (2) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (3) ‑-‑--‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑-‑‑‑‑‑‑‑‑‑‑ (4) ‑‑--‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (5) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (6) Notwithstanding anything contained in the Constitution, no Court including the Supreme Court and a High Court shall entertain any legal proceedings, exercise any jurisdiction, or make any order in relation to any action under this Article. " This Article has been thoroughly examined in the famous judgment Wukala Mahaz Barai Tahafaz Dastoor and another v. Federation of Pakistan and others (PLD 1998 SC 1263). The Honourable Supreme Court has examined the Legislative history relating to the law of defection in Pakistan and based its finding on the following cases namely, Humayun Saifullah Khan v. Federation of Pakistan (PLD 1990 SC 599), Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan (PLD 1992 SC 646), and Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly (PLD 1995 SC 66) and numerous other citations on the subject including the cases Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426), State v. Zia‑ur Rehman (PLD 1973 SC 49) and Federation of Pakistan v. Ghulam Mustafa Khar (PLD 1989 SC 26). The Honourable Supreme Court in the latest pronouncement (PLD 1998 SC 1263) has interpreted Article 63‑A of the Constitution in the following words:‑‑‑ "It will suffice to observe that it has been consistently held by this Court that the question, as to whether a superior Court has jurisdiction in a particular matter or not, is to be decided by the Court itself. No provision of whatsoever amplitude can take away the jurisdiction of the superior Courts to examine the above question as laid down, inter alia, by the dictum in the case of State v. Zia‑ur Rehman (supra). Furthermore, the simpliciter factum that a particular provision of the Constitution contains a non‑obstante clause will not itself be sufficient to deny the jurisdiction of the superior Courts if the impugned action/order is without jurisdiction, coram non judice or mala fide." We have had the opportunity of going through the case of Sardar Fateh Ali Khan Umrani v. The Chief Election Commissioner of Pakistan and others, the facts of which are almost identical to the present case. Sardar Fateh Ali Khan Umrani, a member of Baluchistan Assembly was unseated by the Chief Election Commissioner of Pakistan vide his judgment, dated 9‑3‑1998 on the ground of defection as contained under Article 63‑A(1)(a) of the Constitution. He filed a Constitution Petition No.77 of 1998 against his aggrievement in the Baluchistan High Court which also failed on 27‑7‑1998. The aforesaid appellant filed a petition for leave to appeal in which leave was granted and finally the appeal was taken up by the Honourable Supreme Court of Pakistan decision of which is reported in 1999 SCMR 215, the appeal was allowed and the impugned judgment of the High Court as well as the order of the Chief Election Commissioner was set aside, and the case was remanded back to the Chief Election Commissioner of Pakistan on the ground that the matter be re‑examined on the basis of the judgment of the Honourable Supreme Court reported in PLD 1998 SC page 1263.

14. Evidently, the learned Chief Election Commissioner had not made reference, to the aforesaid judgment, in the present impugned order and it appears that the aforesaid judgment was not brought to his notice when he was deciding the case. Besides, in the instant case the question of jurisdictional error, coram non judice and mala fides have been alleged by the petitioner. Therefore, in the light of the observations of the Supreme Court in the aforementioned case, this Court can proceed with the present petition. There was also a preliminary objection raised by the respondent with regard to the maintainability of the petition as such the aforesaid preliminary objection is ruled out. We would have decided the present case on merits but there are numerous difficulties available on the record. The learned Chief Election Commissioner (respondent No‑1) to our mind has not examined and considered the case in the light of Article 63‑A of the Constitution in its true perspective.

15. It is the case of the petitioner, that he had raised preliminary objection to the reference with regard to the maintainability; besides he was never put to notice by respondents 2, 3 and 4 and was not heard in person and that according to him, the learned Chief Election Commissioner had failed to record evidence, with regard to the allegations brought against him in connection with alleged defection from ANP. We have also observed that the petition in hand consists of matters relating to factual aspect which ought to have been proved by leading primary evidence against the petitioner but this was not done in the instant case. We would, therefore, refrain from making any observation on merits of the case as we feel, that the questions urged in the present proceedings by both the parties are, somewhat the questions of fact which cannot be settled without further probe. We, therefore, propose to formulate the following points which are necessary for the disposal of the case and were omitted from consideration by the learned Chief Election Commissioner (respondent No. l):‑‑‑ (1) The Chief Election Commissioner proceeded on the assumption that the petitioner was not entitled to the protection of Article 4 of the Constitution; (2) The Chief Election Commissioner omitted from his consideration that the provisions Qanun‑e‑Shahadat Order was applicable to the proceedings under Article 63‑A of the Constitution and that the burden of proof was on ANP, which has not been discharged in the present case by any legal standards; (3) That the Chief Election Commissioner did not determine whether or not the jurisdictional fact in terms of Article 63‑A of the Constitution existed in order to disqualify the petitioner. (4) "Article 63‑A of the Constitution prescribes certain facts as sine qua non for its application but none of the facts either existed or were proved against the petitioner by ANP. inasmuch as the petitioner did not contest the election as a candidate or a nominee of A NP nor was he a member of ANP in terms of the requirements prescribed by the Constitution of ANP nor did he join ANP after being elected Member of the Assembly; (5) The Chief Election Commissioner did not determine the duties of the President of ANP while dealing with the appeal filed by the petitioner under Article 63‑A of the Constitution; (6) The Chief Election Commissioner also erred in law in not taking into consideration section 27(a) of the General Clauses Act which required the President of ANP to record his reasons for rejecting the appeal of the petitioner; (7) The Chief Election Commissioner also omitted from consideration that the appeal of the petitioner had not been decided by the President of ANP himself but has been disposed of by someone claiming to be his nominee i.e., Deputy Secretary General of the Party. The appeal of the petitioner could not have been dealt with in this manner and fashion because no such delegation is envisaged under Article 63‑A of the Constitution. Moreover, if law requires something to be done in a particular manner, it can only be done in that manner and in no other manner; (8) The Chief Election Commissioner also interpreted the Press clippings against the petitioner in violation of the latest law pronounced by the Hon'ble Supreme Court in the case of Mr. Rafiq Tarar reported as 1998.. SCMR 1873 at page 1874 more particularly when the petitioner, after the service of show‑cause notice of ANP, had all along denounced through the media the claim of ANP over the petitioner in addition to his reply and appeal etc. (9) The Chief Election Commissioner has not considered in his impugned order the role of the Speaker that he was supposed to perform while forwarding the reference of ANP to the Chief Election Commissioner against the petitioner as post office without applying his independent mind. (10) The Chief Election Commissioner did not ensure that the President of ANP and Speaker of the Assembly had acted justly, fairly, legally and equitably while dealing with the serious matter of the alleged disqualification of the petitioner on the same day. In our view it will be proper to send back the case to the learned Chief Election Commissioner of Pakistan with a direction to hear the case afresh in the light of the points formulated above and in the light of the judgment of Hon'ble Supreme Court reported in PLD 1998 SC page 1263 and afford opportunity to both the parties to adduce evidence in support of their respective claims. We, therefore, allow this petition, set aside the order of the learned Chief Election Commissioner, dated 1‑10‑1998 and remand the case back to him for decision afresh. Stay granted by this Court in C.M. No. 1930 of 1998 on 11‑11‑1998, stands vacated, and so C.Ms. Nos.2069 of 1998 and 2309 of 1998, are disposed of. Q.M.H./492/P Case remanded.