' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, with the leave of the Court, has been directed against the orders passed by the High Court on 26th and 28th of June, 2001 in a Writ Petition No,385 of 2001, filed by the appellant herein which was dismissed.
2. The necessary facts, giving rise to the present appeal, are that the appellant was a candidate for LA-XL, Kashmir Valley VI, Constituency of Azad Jammu and Kashmir Legislative Assembly; the election thereof was held on 5-7-2001. The appellant filed his nomination papers for the said election and on 7-6-2001, i.e, the date fixed for scrutiny of the nomination papers, the Returning Officer of the said Constituency while repelling an objection of respondent No,2, Noor-ul-Bari, regarding disqualification of the appellant to contest the elections, accepted the nomination papers of the appellant. The appellant was thus declared qualified to contest the elections to the Legislative Assembly seat of LA-XL, Kashmir Valley-VI by the Returning Officer vide his order, dated 7-6-2001. An appeal was preferred before respondent No,1, Chief Election Commissioner, by respondent No,2 which was arbitrarily and without any legal cause accepted by him completely at the back of the appellant. Through the order, dated 14-6-2001 the Chief Election Commissioner, without any justifiable cause and without giving the appellant any opportunity of explaining his position, held the appellant as not qualified to contest the elections under clauses (d). And (f) of subsection (1) of section 5 read with clause (xxiii) of subsection (2) of section of the Azad Jammu and Kashmir Legislative Assemb (Elections) Ordinance, 1970 as amended o-date. The order of the Chief Election Commissioner, dated 14-6-2001, through which the nomination papers of the appellant were rejected and his name was ordered to be deleted from the list of validly nominated candidates, was assailed through a Constitutional petition before the High Court on 15-6-2001. The respondents after having been duly served upon did not present any written statement in reply to the averment of the appellant's writ petition. Some comments unaccompanied by any supporting document or counter-affidavit were however filed by one Syed Shakir Shah, Secretary Election Commission, who was not a party to the proceedings. So the comments filed by Syed Shakir Shah were also evasive and by no stretch of any legal or factual imagination be termed as written statement or objections filed on behalf of respondent No,
1. It is to be appreciated that the Additional Advocate-General who was directed by the Law, Justice and Parliamentary Affairs Department to represent the Chief Election Commissioner in the High Court did not file any reply on behalf of respondent No,1 and resultantly all the averments made in the appellant's writ petition remained uncontroverted which amounted to the admission of the assertions of the total writ petition as regards respondent No,
1. Similarly the written statement filed by Raja Khalid Mehmood, Advocate High Court Rawalpindi, being an unauthorized presentation, did not tantamount to a legal written statement on behalf of even respondent No,2. As the said Advocate was not legally empowered to make any prosecution on behalf of respondent No,2, his act of filing written reply was not the valid performance of his functions. This written reply under law and rules was not at all acceptable in the writ proceedings and in view of above legal and factual position, the averments made in the writ petition merited acceptance but the learned Chief Justice of the High Court, to the utter astonishment of the appellant, dismissed the writ petition of the appellant with the following short order:-- "The Constitutional Petition No, 385 of 2001 challenging the order of Chief Election Commissioner, dated 14-6-2001 is dismissed in view of section 5(2)(f) of Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970 which is applicable in the case in view of report of Commission of Inquiry headed by Mr. Justice Khawaja Muhammad Saeed. Detailed order shall be recorded later on.
(Sd/-)
Muzaffarabad (Justice Manzoor Hussain Gilani)
June 26.
2001. Chief Justice."
' A copy of the detailed order of the Court with the aim and intention of its being challenged before the Supreme Court of Azad Jammu and Kashmir was applied for on the same day, but the same could not be provided till 28th of June, forenoon. However, the same is attached. The aforesaid orders of the High Court, dated 26th and 28th of June, 2001 are the subject matter of present appeal.
3. In support of appeal it was vehemently contended by Mr. Mujahid Hussain Naqvi, the learned counsel for the appellant, that the Chief Election Commissioner disqualified the appellant from contesting the elections as envisaged under clauses (d) and (f) of subsection (1) of section 5 and clause (xxiii) of subsection (2) of section 5 of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970, whereas the High Court has dismissed the Constitutional petition filed by the appellant in view of provisions of section 5(2)(f) of the aforesaid Ordinance. The learned counsel contended that subsection (2)(f) of section 5 of the said Ordinance does not disqualify any candidate froth contesting the elections. He contended that the appellant could have been disqualified under the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970 if he had been found guilty of corrupt or illegal practice under any other law for the time being in force unless a period of seven years had elapsed from the date on which that order takes effect, but the High Court has erroneously disqualified the appellant under section 5(2)(f) of the said Ordinance. The learned counsel vehemently contended that before the High Court no written statement was filed by the Chief Election Commissioner and the inquiry report which was produced by respondent No,2 was a photostat copy which was inadmissible in evidence and the same was not signed by Mr. Justice Khawaja Muhammad Saeed and did not originate from any office, as such was not admissible in evidence but despite that on the said report the appellant was disqualified. The learned counsel in support of his contentions relied on cases reported as Muhammad Nazir v. Muhammad Ashraf and others (PLD 1987 SC (AJ&K) 16), Muhammad Subhan v.
Muhammad Ibrahim and others PLD 1994 SC (AJ&K) 41 and Qurban Hussain v. Mst. Bashir Begum and others PLD 1986 SC (AJ&K)
109. Thus, according to the learned counsel for the appellant, the writ petition filed by the appellant merited acceptance on the sole ground and the impugned orders, dated 26-6-2001 and 28-6-2001 are not sustainable in the eye of law and are liable to be quashed by this Court. The learned counsel contended that the photostat copy of the report faxed from Bagh, Azad Kashmir, on June, 6, 2001 from a fictitious telephone number had absolutely no evidentiary value and could neither be relied upon nor utilized or read against the appellant in any proceedings before the High Court or for that matter before the Chief Election Commissioner. In this regard the learned counsel placed reliance on cases titled Muhammad Naseer angiri and others v.
Abdus Sami Khan an , another (1997 PLC (C.S.) 1115), Mehmood Akhter Kiani v. Azad Jammu and Kashmir Government and others (1998 SCR 310), Qazi Liaqat Ali Qureshi v. Hafiz Muhammad Ishaque and others 1998 PLC (C.S.) 153, Iftikhar Ahmad Khiliji v. Azad Government and others 2000 MLD 1640 and Habibullah Ghannaie v. Wajahat Rashid Baig and others 1999 PLC (C.S.) 615. The learned counsel also contended that the appellant is not and could not be declared as disqualified from contesting the elections on the ground that some cases of misappropriation had been inquired into by a Commission of Inquiry headed by a learned Judge of the High Court or that any case is pending adjudication in any Court of law under the Ehtesab Act or any other law. It is to be remembered that everybody is to be presumed innocent until and unless proved otherwise, which is the universal principle of law. Until something stands proved and established against the appellant by a competent Court of law, he shall be presumed to be non-guilty as per consistently prevailing legal norms in the country. The learned counsel strenuously argued that the Chief Election Commissioner as well .As the High Court failed to appreciate the law applicable regarding the qualifications and disqualifications of the candidates in true perspective to the case of the appellant due to which reason also the impugned orders are unsustainable under law. The learned counsel also contended that the assertions of the appellant in his objections were fully substantiated by production of an affidavit in support of contents of writ petition which remained uncontroverted as no counter-affidavit was produced in rebuttal of appellant's affidavit from the other side. In this regard he submitted that the assertions made in the affidavit of the appellant shall be deemed to have been admitted by the opposite side. The learned counsel placed reliance on the cases reported as Muhammad Sharif Khan v. Mirza Fazal Hussain and others (1993 SCR 88), Muhammad Ajaib v. Public Service Commission and others 1997 PLC (C.S.) 222, Muhammad Arshad Khan v. Chairman, M.D.A. And others 1997 MLD 3066 and Mehmood Akhter Kiani v. Azad Jammu and Kashmir Government and others (1998 SCR 310). The learned counsel contended that there could be no `Ilham' upon the appellant so how could he be informed about the filing of appeal by anybody or for that matter by respondent No,2 before the Chief Election Commissioner without being informed in writing in this regard. Therefore, under all the canons of justice and the natural justice, it was the bounden duty of the Chief Election Commissioner to have issued a notice of appearance to the appellant and an opportunity of explaining his position in response to the averments of appeal filed by respondent No,2 should have been given but he failed to do so. Thus, the same has vitiated the proceedings conducted by the Chief Election Commissioner and the High Court. The learned counsel strenuously argued that the rule of natural justice known as audi alteram partem is of universal application and unless the same is specifically barred in a certain statute, it shall be presumed that the same applies in all proceedings. He in support of his contentions relied upon the authorities titled Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak PLD 1959 SC 45, Azad Bin Haider v. Adam Khan PLD 1981 Kar. 225, Sh. Abdur Reitman, Advocate, Bahawalnagar v. The Collector/ Deputy Commissioner, Bahawalnagar and 13 others (PLD 1964 SC 461), Premananda Moher v. Revenue Officer-cum-Additional Tehsildar, Bargarh AIR 1982 Orissa 77 and Abdul Latif Nomani v. Commissioner, Gorakhpur and others (AIR 1968 Allahabad 44).
' In Chief Commissioner Karachi and another v. Mrs. Dina Sohrab Katrak (PLD 1959 SC 45) it was observed by Full Bench of the Supreme Court of Pakistan that the rule of justice embodied in the maxim, audi alteram partem, "No man shall be condemned unheard", is not confined whomsoever held, which may affect the person or property or other right of the parties concerned in the dispute.
As a just decision in such controversies is possible only if the parties are given the opportunity of being heard. There can be, as regards right of hearing, no difference between proceedings which are strictly judicial and those which are in the nature of judicial proceedings though administrative in form.
' In Azad Bin Haider v. Adam Khan PLD 1981 Kar. 225 it was observed that the rule of natural justice is to be presumed as grafted in every law unless expressly barred.
' In Sh. Abdur Rehman, Advocate Bahawalnagar v. The Collector/Deputy Commissioner Bahawalnagar and others (PLD 1964 SC 461) opportunity of being heard was allowed to a member proceeded against for removal. It was observed that Rule 6(4) of the West Pakistan Local Councils (Resignation and Removal of Members) Rules, 1960, uses the word "may" which is not consistent with the principles of natural justice. The Government cannot, by framing a rule, take away the right to show cause which a person has on account of a principle of natural justice and which has to be deemed to be incorporated in every enactment. Rules have to be consistent with the statute under which they are framed and with all that is deemed to be incorporated in the statute.
' In Premananda Moher v. Revenue Officer-cum-Additional Tehsildar, Bargarh (AIR 1982 Orissa 77) it was observed that a cardinal principle of administration of justice is that justice must not only be done but seem manifestly to have been done. Not only should the Judge administer justice according to law but it must also appear that the party or his cause is being dealt with justly and fairly. The principles of natural justice are the bedrock of rule of law to which our democracy is wedded. It behoves all authorities, high or low, to bear the same in mind while dealing with citizens or their right and obligations.
' In Abdul Latif Nomani v. Commissioner Gorakhpur and others (AIR 1968 Allahabad 44) it was observed that section 40(4) is mandatory and before action is taken under section 40(1), the Commissioner is bound to afford opportunity of explanation to member concerned. Denial of rule of natural justice requiring a person to be heard before the action is taken against him results in a null and void order.
4. The learned counsel for the appellant emphasized that even in election matters the rule of audi alteram partem, even though not provided in certain statutes, is a necessary requirement.
' Reliance was placed on a case reported as Ghulam Habib Rana v. District Judge, Rawalpindi and others 1992 CLC 1824 wherein it was observed that the petitioner was entitled to a right of hearing for substantiating his defence on questions of fact and law also. Therefore, an inquiry by the learned Tribunal was necessary and mere hearing of arguments lssuming that those were addressed would not suffice the requirement of law. In another case, though the relevant authority, 1980 All LJ 641, is not available but it has been observed in Quinquennial Digest 1976-1980 Vol. 2, at page 334 that the Registrar set aside the election of petitioner with affording him any opportunity to show cause; order was held violative of principle of natural justice.
5. The learned counsel further contended that it has been observed by the High Court that the election schedule was sufficient in the eye of law to infer that the appellant had the knowledge of any appeal filed against him but the relevant law does not visualize such a situation. The learned counsel submitted that the appellant had no knowledge of intention of respondent No,2 that he would file the appeal against the acceptance of his nomination papers before the Chief Election Commissioner. The appellant had categorically mentioned in ground (b) of paragraph 3 of his writ petition duly supported by an affidavit that the letter sent by Leopard Courier Service to the appellant by respondent No,2 was received by the appellant on 14-6-2001 at 2100 hourc night, therefore, the question of any appearance by the appellant before the Chief Election Commissioner during the day time did not arise in the circumstances of the case. In any case this letter of respondent No, 2 could not be treated as notice of hearing by respondent No,
1. The learned counsel contended that the order, dated 14-6-2001 passed by the Chief Election Commissioner and confirmed by the High Court has been passed totally at the back of the appellant and is being hit by the famous principle of natural justice, audi alteram partem which cannot sustain in the circumstances of the case.
6. Controverting the arguments raised by the learned counsel for the appellant Mr. Muhammad Idrees Mughal and Kh. Attaullah Chak, the learned counsel for the respondents, fully defended the orders recorded by the High Court as well as the Chief Election Commissioner. They contended that the appellant was fully aware of the lodging of appeal as the election schedule had been issued well before the time but the appellant purposely did not contest the appeal, as such his nomination papers were rightly rejected by the Chief Election Commissioner. The learned counsel for the respondents contended that on the basis of report of the Commission of Inquiry headed by the Hon'ble Judge of the High Court, the appellant was found involved in misappropriation and embezzlement of `Jahez' fund, therefore he being not an honest person was rightly disallowed to contest the elections.
7. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record, it may be stated that the High Court has observed in para.5 of its judgment passed on 28-6-2001 that 'as far the contention that appeal was decided without hearing the petitioner (appellant herein) is concerned, it does not merit consideration for the reason that election schedule itself contains the date of hearing of appeals and it was thus for the petitioner (appellant herein) to be in know of the proceedings before the Chief Election Commissioner's. This finding of the learned Judge, in our estimation, keeping in view the relevant law, is not sustainable and is liable to be set aside. In the relevant law although it has been provided that while hearing the election appeals, the notice shall be issued to the respondents to contest the appeal but at the same time it has been provided under section 13(6) of the Azad. Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970 as follows:-- "Announcement of the day and time appointed for the hearing of an appeal under subsection (5) over the radio or by publication in the press shall be deemed to be sufficient notice of the day and time so appointed."
' But it is not the case of the respondents that any such procedure was adopted by the Chief Election Commissioner; rather in the comments filed by the Secretary, Election Commission, in reply to para.3(b) and (c) it was stated that there was no necessity of giving notice to the appellant. Moreover it was also stated that the Election Commission has no concern with the news published in the newspaper. So far as the observation made by the High Court is concerned that the election schedule itself contained the date of hearing of appeals, it was beyond the scope of the Ordinance itself. The High Court in its impugned orders has set aside the order of the Chief Election Commissioner under clause (d) of subsection (1) of section 5 of the aforesaid Ordinance to the extent of "ill-repute" of the appellant as the same is not based on any record and is ill-founded.
However, it was observed by the High Court that as the Commission of Inquiry headed by the Judge of the High Court has unequivocally come to the conclusion that the petitioner (appellant herein) is dishonest who has embezzled the amount of `Jahez' fund amounting to Rs,14,57,000 in view of words 'dishonest' finding place in the report of Commission of Inquiry, provisions of clause
(f) of subsection (1) of section 5 of the Azad Jammu and Kashmir Legislative Assembly (Election)
Ordinance, 1970, are attracted while qualify a person to be elected and to be member if he is "honest" and "ameen
8. After careful consideration of the arguments advanced by the learned counsel for the parties and perusal of the orders of the Chief Election Commissioner as well as the High Court, we are of the opinion that the following are the crucial points which need resolution:--
(i) whether it was essential for the Chief Election Commissioner when the appeal was filed against the appellant for the rejection of his nomination papers to give him a notice to appear and give him a right of hearing;
(ii) whether the procedure prescribed under section 13(6) of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970 was followed by the Chief Election Commissioner particularly so when the comments filed by the. Secretary Election Commission negate the same;
(iii) whether the observation made by the learned Judge in the High Court that the election schedule itself was sufficient in the eye of law and that the petitioner (appellant herein) himself should have known the date of hearing the appeals is supported by any relevant law or by the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970 and how would it affect the writ petition;
(iv) whether the provision contained in the aforesaid Ordinance to the effect that lodging of appeal shall be announced over Radio or by press was essential and that being not the case of respondents, how would it affect the case of the appellant; and
(v) whether the observation of the learned Judge in the High Court at pages 5 and 6 of the impugned judgment, dated 28-6-2001; "However, as the Commissioner of Inquiry headed by the Judge of High Court has unequivocally come to the conclusion that petitioner (appellant herein) is dishonest who has embezzled the amount of Jahez fund amounting to Rs,14,57,000 in view of words `dishonest' finding place in the report of Commission of Inquiry, provisions of clause (f) of subsection (1) of section 5 of Election Ordinance, 1970 are attracted which qualify a person to be elected and to be a member if he is 'honest' and `ameen'," is to be presumed merely on the basis of an unattested report of the Commission of Inquiry placed on the record of the Chief Election Commissioner or the same should have been tendered in evidence or placed on record or an authenticated and attested copy of the same should have been placed on the record as annexure by the relevant respondent or on the basis of the said report some competent Court of law should have given the finding with regard to the petitioner (appellant) to be dishonest in order to attract the relevant provision that in order to be elected as a member if he is honest and ameen.
9. The learned counsel for the appellant also contended that during the pendency of appeal before the Supreme Court the elections were held in consequence of which Mr. Abdul Waheed Khan, respondent No,3 herein, was declared as a returned candidate from the relevant Constituency. The Chief Election Commission issued the notification of his success vide annexure "PC/1" which was also challenged by way of an amendment in the memorandum of appeal. Relying upon the authority of this Court titled Sardar Sikandar Hayat Khan v. Syed Ghulam Mujtaba Bukhari and another (PLD 1991 SC (AJK) 1), the learned counsel contended that it was observed at page 26 of the said authority that it is declared that all the actions commencing from the date of the order of the Chief Election Commissioner and completed thereof are null and void and of no legal effect.
The Chief Election Commissioner and the Returning Officer are directed to commence the election process regarding the Constituency LA-34 Jammu and other 6 afresh from the date of the dismissal of the appeals of the respondents by the Chief Election Commissioner and complete the same according to law. The learned counsel contended that similar relief may be granted to the appellant against Abdul Waheed Khan, respondent No, 3 herein, who is a returned candidate from the relevant Constituency and the notification of his being successful in election may also be declared as null and void.
10. We do not subscribe to the above stated assertion of the learned counsel for the appellant because Abdul Waheed Khan, the returned candidate from " the relevant Constituency, was not a party before the High Court and he could not have been a party as the elections were held during the pendency of appeal before this Court but we are of the view that since we are remanding the case, therefore, the High Court shall provide the appellant an opportunity to amend his writ petition and to array Mr. Abdul Waheed Khan as party and to seek necessary relief against him. We also direct that Mr. Abdul Waheed Khan shall be given full opportunity to defend himself by filing his written statement and the appellant shall also be given the opportunity to file his replication.
11. In the light of what has been stated above, we accept the appeal and set aside the impugned orders passed by the High Court on 26th and 28th of June, 2001 and remand the case to the High Court with the direction that it shall, after doing the necessary formalities as mentioned in the judgment, hear both the parties and decide all the points raised from both sides in general and in particular the points formulated by us from (i) to (v) mentioned at pages 18 to 20 of our judgment.
In the circumstances of the case we pass no order as to costs. accordingly.