Professional Documents
Culture Documents
versus
JUDGMENT
(Sd)
Sajjad Ali Shah, CJ
(Sd.)
Zia Mahmood Mirza, J
(Sd.)
Fazal Karim, J
(Sd.)
Muhammad Munir Khan, J
(Sd.)
Mir Hazar Khan Khoso, J
(Sd.)
Irshad Hasan Khan, J,
(Sd.)
Mukhtar Ahmed Junejo, J
???????????????????????????????????????????
???????I -
(5) ????????????????????????????Whether
the respondents have defected from Pakistan Muslim
League
?????????????????(Nawaz Sharif Group), if so,
what is its effect? O.P.P.
(2) ????????????????????????????Whether in
view of the order passed by the Peshawar High Court
on 21st March, 1994, this reference still subsists?"
In the first case the facts were that an appeal with the
leave of this Court was filed against the judgment of
erstwhile High Court of East Pakistan passed in a
Constitution petition impugning certain amendments
made in certain Articles including Articles 103 and
104 of the late Constitution of Pakistan, 1962, in
order to enable the appellants who were the
members of the Central Council of Ministers to give
inter alia the right of speaking in the National
Assembly, who were not otherwise entitled to. Before
this Court inter alia it was contended that the above
Constitution petition which was allowed by the High
Court was not competent, as adequate alternate
remedy in terms of Article 98 of the above
Constitution was available to the
respondents/petitioners. The above contention was
repelled by Cornelius, C.J. and his companion learned
Judges who also recorded their separate opinions.
Cornelius, C.J. in this regard observed as under:--
In my view section 8-B of the Act does not its any way
violate Articles 17 or 19 of the Constitution as was
urged by Mr. Sharifuddin Pirzada and supported by
Mr. Abdul Sattar Najam, learned Advocate .General
Punjab,? but in fact it is intended and designed to
strengthen and reinforce the? parliamentary form of
Government which is the system of Government
adopted by our Constitution as contended by Mr.
Khalid Anwar and supported by Mr. Yakoob K.
Eusufzai, learned Advocate-General, Balochistan.
(a) ... .... ... ... ... .... ... ... ... ... . .. ... ... ... ... ... ... ... ... ...
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(b) ... .... ... ... ... .... ... ... ... ... ... ... ... ... ... ... ... ... ... ..:
.. .... ... ... ... .... ... ...
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(Sd.)
AJMAL MIAN, J,
(Sd.)
SALEEM AKHTAR, J.
I agree with my brother HJ(2).
(Sd.)
FAZAL ILAHI; J.
"Article 63(11:
(1) ??????????A person shall be disqualified from
being elected or chosen as, and
?????????????????from being, a member of the
Majlis-e-Shoora (Parliament), if--
(SD.)
SALEEM AKHTAR, J
"Article 96:
(b) ????????????????????????????"House"
means a House of the Majlis-e-Shoora (Parliament)
and includes a Provincial Assembly;
"2.
????????????????????????????Amendment of
section 8-B. Act III of 1962.--In the Political Parties
?????????????????Act, 1962 (III of 1962), in
section 8-B,--
???????????????????????????????????Brohi,
but this can be said only with regard to field of
legislation as regards the Provincial list and the
concurrent list of subjects as given in the Fifth
Schedule to the late Constitution. But it is evident
that the powers of the Assembly are more extensive,
inasmuch as it was empowered to enact permanent
Acts at all times not subject to any limitations as the
Governor's powers are meant to be by Article 102,
which are to be exercised in emergency and with
temporary effect only, and carry with them the
implication that when a permanent Act is repealed by
an Ordinance, the Act will revive on the expiry of the?
ordinance. In these cases we are only concerned with
the question of the entire repeal of permanent Act by
an Ordinance and we are not called upon to decide
the effect of mere amendment of any text of an Act.
In the view that we have held, subsection (2) of
section 4 of the West Pakistan General Clauses Act,
1956, as amended by West? Pakistan General Clauses
Amendment Act (III of 1957), which. Puts the effects
of repeal of a permanent statute by an Act of the
Provincial Legislature and by Ordinance on the same
footing by extending the application of clause (a) of
subsection (1) of section 4, is to that extent ultra
vires. The Governor having no power of permanent
legislation, the permanent repeal of a perpetual
status by Ordinance is ultra vires, and the repealed
Act revives as soon as an Ordinance `ceases to
operate', irrespective of the fact whether in the
Ordinance the repeal was intended to be permanent
or temporary."
?????????????????The Advocate-Generals of
Punjab, Sindh and N: W.F.P. supported the contention
of Mr. Sharifuddin Pirzada while the learned
Advocate-General of Balochistan took up the position
that the Commission while acting under the
provisions of the Act could not examine the validity of
section 8-B of the Act on the touchstone of the
Constitution of 1973, being a Tribunal of limited
jurisdiction. However, according to the learned
Advocate-General of Balochistan, this Court while
hearing the statutory appeal acts as an apex Court of
the country and therefore, it is entitled to settle the
question of vires of section 8-B of the Act once for all,
both in exercise of its Constitutional jurisdiction as
well as being the apex Court of the country having
jurisdiction to do complete justice between the
parties.
(a) ????????????????????????????has on
appeal reversed an order of acquittal of an accused
person and sentenced him. to death or to
transportation for life; or
(c) ????????????????????????????certifies
that the case is a fit one for appeal to the Supreme
Court; or
(d) ????????????????????????????has
imposed any punishment on any person for contempt
of the High Court:
Provided that where a certificate is issued under
paragraph (c) of this Article an appeal shall lie subject
to such rules as may be made in that behalf under
paragraph 3 of the Third Schedule and to such other
rules, not inconsistent with the aforesaid rules, as
may be made in that behalf by the High Court.
(a) ????????????????????????????he is of
unsound mind and has been so declared by a
competent Court; or
(b) ????????????????????????????he is an
undischarged insolvent; or
(c) ????????????????????????????he ceases to
be a citizen of Pakistan, or acquires the citizenship of
a foreign State; or
(d) ????????????????????????????he holds an
office of profit in the service of Pakistan other than en
office declared by law not to disqualify its holder; or
(e) ??????????he is in the service of any statutory
body of any body which is owned or controlled by the
Government or in which the Government has a
controlling share or interest; or
(f) ?????????????????????????????being a
citizen of Pakistan by virtue of section 14B of the
Pakistan? Citizenship Act, 1951(11 of 1951), he is for
the time being disqualified under any law in force in
Azad Jammu and Kashmir from being elected as a
member of the Legislative Assembly of Azad Jammu
and Kashmir; or
(g) ????????????????????????????he is
propagating any opinion, or acting in any manner,
prejudicial to? the Ideology of Pakistan, or the
sovereignty, integrity of 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; or
he has been, on conviction for any offence which in
the opinion of the Chief Election 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
he has been dismissed from the service of Pakistan on
the ground of misconduct, unless a period of five
years has elapsed since his dismissal; or
he has been removed or compulsorily retired from
the service of Pakistan on the ground of misconduct
unlesss a period of three years has elapsed since his
removal or compulsory retirement; or
(k) ??????????he has been in the service of Pakistan
or of any statutory body or any body which is owned
or controlled by the Government or in which the
Government has a controlling share of interest,
unless a period of two years has elapsed since he
ceased to be such service; or
(1) ??????????he fond guilty of a corrupt or illegal
practice under any law for the time being , force,
unless a period of five years has been elapsed from
the date on which that order takes effect; or
(m) he has been convicted under section's of the
Political Parties Act, 1962 (111 of 1962), unless a
period of five years leas elapsed from the date of
such conviction; or
(n) ??????????he, whether by himself or by any
person or body of persons in trust for him or for his
benefit or on his account or as a member of a Hindu
undivided family, has any share or interest in a
contract, not being a contract between a cooperative
society and Government, for the supply of goods to,
or for the execution of any contract or for the
performance of any service undertaken by,
Government: Provided that the disqualification under
this paragraph shall not apply to a person---
???????????????????????????????????????????
??????????The narration of above Islamic Principles
make it clear that Islam ??????????requires :he
believers to carry out their promises and
commitments whenever made (except where such
promises are made against any express Injunction of?
Islam), and refrain from committing the breach of any
trust. A person who seeks election as a candidate of a
political party on its ticket, holds out to his party and
the electorate his abiding faith on the manifesto of
this party. His defection from the party after election,
therefore, amounts to his refusal to carry out his
promise and commitment besides constituting a
breach of the? trust reposed in him by his electorate.
Such an act of defection cannot be? justified on any
known principle of morality much less on any
recognised Code of Islamic Polity. As pointed out in
the celebrated passage in Khawaja Ahmed? Tariq
Rahim's case (supra), quoted earlier in this judgment,
if a person after his election as a candidate of a
political party finds himself unable to subscribe to the
programme and policy of that party, the only
honourable course for him is to renounce his
representative character, which reflects his abiding
faith to the programme and policies of that party, and
seek a fresh mandate from hiss electorate on the
basis of his changed loyalties. This course will be fully
in accord with the principles of Islamic polity. The
manifest intention behind section 8-B of the Act is to
promote principled politics by rooting out corrupt e
practices embedded in our body politics. A legislation
based on such cherished? objectives cannot be
described as un-Islamic or unconstitutional under
Article 2A of the Constitution of 1973. I, accordingly,
hold that section 8-B of? the Act is neither in conflict
with Article 2-A of the Constitution of 1973 nor it
contravenes any express or known Injunction of
Islam. As a result of the above discussion, all the
preliminary objections fail and case to proceed on
merit.
(Sd.)
SAIDUZZAMAN SIDDIQUI, J.
?????????????????FAZAL KARIM, J.---The
references before the Election Commission out of
which these appeals have arisen, were ones under
subsection (2) of section 8-B of the Political Parties
Act, 1962 (I shall, in this judgment, call it the Act of
1962). They were made by the leader of the
Parliamentary. Party, Pakistan Muslim League (N) (to
be described as PML(N), Sahibzada Syed Sabir Shah,
appellant herein, against Mr. Akhtar. Hussain Shah
and Mr. Shad Muhammad Khan, respondents (they
will be so described in this judgment), the principal
question being whether the respondents had
committed such acts of defection or withdrawal
within the meaning of section 8-B, subsection (1) of
the Act of 1962, as to render them disqualified from
being members of the N.-W.F.P. Provincial Assembly.
???????????????????????????????????????????
??????????" ?????????????it is clear that the
Income-tax Act, 1922 as it stood at the relevant date,
did give the assessee the right effectively to raise in
relation to an ??assessment made upon him the
question whether or not a provision in the Act was
ultra vires. Under section 30, an assessee whose only
ground of complaint was that effect had been given in
the assessment to a provision which he contended
was ultra vires might appeal against the assessment.
If he were dissatisfied with the decision on
??????????appeal the assessee could ask for a
case to be stated on any question of law for the
opinion of the High Court and, if his request were
refused, he? light apply to the High Court for an order
requiring a case to be stated and to be referred to the
High Court ????????????????It cannot be doubted
that included in the questions of law which might be
raised by a case stated is any question as to the
validity of any taxing provision in the Income-tax Act
to which effect has been given in the assessment
under review? Effective and appropriate
machinery is therefore, provided by the Act itself for
the review on grounds of law of any assessment. It is
in that setting that section 67 has to be construed:'
Like any other law, the life of section 8-B of the Act of
1962 has, as Justice Homles has wisely said in "The
Common Law", not been logic; it has been
experience. This is demonstrably clear from its history
so expansively traced by the learned Chief Justice in
his judgment,, which I respectfully adopt. It is
unnecessary to rehearse it; however, it reminds me of
an observation on slavery of an American writer
which with necessary adaptation, applies equally to
the vice of defection. That observation is:
" ... ... ... ...we shall dispose of the writ petitions that
the decision/ruling of the respondents about the
disqualification of the writ petitioners have been
withdrawn and the membership of the writ
petitioners stands restored. The matters/references
filed before the Election Commission/Chief Election
commissioner or further formal or proper references
if any made immediately about the disqualification of
the writ petitioner before:: the Election
Commission/Chief Election Commissioner shall be
attended to by the parties on the basis of day to day
hearing and due to the urgency of the subject-matter
we would request the Honourable Chief Election
Commissioner for the expeditious disposal of the?
differences/matters by day to day hearing...
3. The appellant filed two separate references under
section 8-B of the Political Parties Act, 1962
(hereinafter referred to as the Act) against the
respondents before the Election Commission of
Pakistan. The Speaker, N.-W.F.P. Assembly also filed
two separate references against the respondents
before the Chief Election Commissioner. The
respondents filed their written statements in reply to
these references, whereupon the Election
Commission framed the following issues:--
(Sd.)
SAJJAD ALI SHAH, C. J.
(Sd.)
,SAAD SAOOD JAN, J.
(Sd.)
,AJMAL MIAN, J.
(Sd.)
SALEEM AKHTAR, J
.(Sd)
SAIDUZZAMAN SIDDIQUI, J.
(Sd)
FAZAL ILAHI KHAN, J.
?(Sd.)
ZIA MAHMOOD MIRZA, J.
(Sd.)
FAZAL KARIM, J.
(Sd.)
MUHAMMAD MUNIR KHAN,
(Sd.)
MIR HAZAR KHAN KHOSO, J.
(Sd.)
IRSHAD HASAN KHAN, J.
(Sd.)
MUKHTAR AHMAD JUNEJO, J.
M.B.A./S-920/S
?????????????????????????????????
Order accordingly.