1. SAYED ZAHID HUSSAIN, J. - On 10.10.2002 as per schedule, elections were to be held in the Province of Punjab as well for hundreds of seats for the Provincial Assembly. PP-80, Jhang-VIII is one of the constituency comprising certain areas of District Jhang. Ghulam Muhammad Lali, the petitioner and Imtiaz Ahmed Lali the respondent were candidates against each other for the membership in the Provincial Assembly. They filed their respective nomination papers. The , candidature of the.
2. Respondent was objected to by the petitioner on the ground that since he had been dismissed from service (Sub- Inspector in the Punjab Police), he was disqualified from being elected as such.
3. The objection was upheld by the Returning Officer vide order dated .31.8.2002, wl\ich prompted the respondent to assail the said order through an election appeal (E.P. No. 162-R/2002)-. The said appeal was accepted by a learned Election Tribunal comprising two learned Judges of the Lahore High Court, Lahore on 12.9.2002/16.9.2002. That order was assailed by the petitioner through W.P. No. 16830/02, which was dismissed by a learned Full Bench of the High Court oh 18,9.2002 alongwith other petitions primarily for the reason that the proper remedy would be the election petition under Article 225 of the Constitution of Islamic Republic of Pakistan, 1973. C.P. No. 3802-L/02 was then filed by the petitioner before the Hon'ble Supreme Court of Pakistan. Since in the meanwhile the election had been held and the respondent as per the poll result was declared elected, the present election petition was filed by the petitioner to declare his election as void and that as a consequence he be declared as unopposed member of Assembly. The election petition was entrusted to . a learned Election Tribunal comprising Pervaiz Ahmad, J., on whose retirement it was entrusted to this Tribunal.
2. After usual proceedings consent issues arising out of the pleadings of the parties were framed which are:- "(1) Does the election petition merit rejection for non-compliance with the statutory provisions of Representation of Peoples Act, 1976? OPR.
(2) What is the effect of earlier judgment rendered by the Division Bench of this Court in W.P. No. 16830/02?
(3) Was respondent No. 1 disqualified from being elected as member? OPP
(4) Is the petitioner entitled to be declared as areturned candidate in, case issue No. 3 is decided in affirmative? .
(5) Relief It may be mentioned that C.P. No. 3802-L/02, which was also then pending before the Hon'ble Supreme Court of Pakistan, was withdrawn by the petitioner on 12.5.2004 due to the pendency of this election petition.
3. Since the onus of proving the vital issues lay upon the petitioner, he appeared himself as. PW-1 and produced documentary evidence such as Ex. P.l (the copy of objection petition filed before the Returning Officer), Ex.P-2 (copy of the order dated 28.10.1990 passed by Superintendent of Police, Faisalabad whereby the' respondent was dismissed from service), Ex.P-3 (the copy of order of the Returning Officer dated 31.8.2002 whereby the objection to the candidature of the respondent upheld), Ex.P- 4 (the copy of order passed by the learned Election Tribunal on 12.9.2002/16.9.2002 in E.A No. 162-R/2002), Ex.P-5 (copy or order passed in W.P. No. 16830/02), Ex.P-6 (copy- of statement of count issued by the Returning Officer on 11.10.2002 (erroneously mentioned as notification issued by the .Election Commission in the statement of the petitioner), Ex. P-7 (copy1 of application dated 12.10.2002 before the Returning Officer for recount). The respondent appeared himself as RW-1 and close not to produce any other evidence.
4. Both sides are represented through their learned counsel, who have been heard extensively.
5. Since admissibility of some of the documents was objected to by the learned counsel for the respondent, I propose to deal with that aspect before embarking upon the. Decision on the issues.
4. The learned counsel for the respondent has particularly objected to the admissibility in evidence of copy of order dated 28.10.199$ (Ex.P-2). According to him since the said document was not arrested . By any departmental official (Police Department) nor was confronted to the respondent it could not be received in evidence. Article 85 and 87 of-the Qanun-e-Shahadat Order, 1984 have been cited by him. He has also made reference to Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others (PLD 1973 S.C. 160), Muhammad Usman v. Lai Muhammad and 12 others (PLD 1975 Karachi 352), Muhammad Khaliq v. Abdullah Khan and 4 others (1987 CLC 1366), Muhammad Khan v. Faqir Hussain Khan and 3 others (1989 SCM R 1164), Mehboob Ali and another v. Mst. Sharif an Bibi and 21 others (1991 CLC 1201), Muhammad Aslam and another v. Senior Civil Judge, Gujrat (Mian Nisar Hussain) and 2 others (2000 M LD 1581) and Gujranwala Development Authority through Director General, <3.D.A. Plaza, Model Town, Gujranwala v. Muhammad Hussain (2001 YLR 1884). Apart from Ex.P-2 the other documents which were admitted in evidence subject to the objection are; Ex.P-1 which is copy of objection petition by the petitioner filed before the Returning Officer, It is an attested copy thereof. Ex. P-3 is the attested copy of the order passed by the Returning Officer on 31.8.2002. Ex.P-4 is the attested copy of order dated 12.9.2002/16.9.2002 passed by the learned Election Tribunal whereas Ex.P-5 is the attested copy of the order of the High Court dated 18.9.2002 passed in W.P. No. 16830/02 and in similar other petitions, In view of Article 85(1)(ii) and.(iii) and Article 85(3) of Qanun-e- Shahadat Order, 1984, the same are to be treated as public documents.
5. These are certified copies issued by the concerned officials .And agencies, production whereof in evidence cannot be objected to in view of Article 87 and Article 88 of the Qanun-e-Shahadat Order, 1984. Ex.P-2 is a copy of order dated 28.10.1990 passed by the Superintendent of Police, Faisalabad (whereby the respondent was dismissed from service being habitual absentee), It was attested by the District Police Officer, Faisalabad which was produced before the Returning Officer on the basis of which the nomination papers of the respondent were rejected by. The Returning Officer on 31.8.2002. It gave rise to the election appeal filed by the respondent (5-A. No. 162-R/02) and order dated 12.9.2002/16.9.2'002 was passed by the learned Election Tribunal accepting his nomination papers, It formed, part of the appeal file, In these proceedings attested copy issued by the Returning Officer, PP-80 Jhang-VIII has been produced. The perusal of the order of the learned Tribunal passed in E.A. No. 162-R/02, shows that the plea of the respondent then was that since there was no involvement of moral turpitude in his dismissal, therefore, he was not disqualified,- which was upheld. But while deposing as RVV-1, he indeed admitted the factum' of his dismissal from service. Suffice it to observe that a fact admitted need no further proof, In such view of the matter also it does not lie in the mouth of the respondent to object to the admissibility in evidence of order dated 28.10.1990. Thus, the precedents cited by the learned counsel are not attracted to the above-mentioned peculiar circumstances of this case. The objection i$ not sustainable and is overruled. The documents were properly admitted in evidence and no exception can be taken thereto.
6. After having considered the matter in the light of the pleadings of the parties, the evidence led by them and the law applicable findings qua respective issues are as follows:- ...
6. ISSUE No.1: "Does the election petition merit rejection for non-compliance with the statutory provisions of Representation of Peoples Act, 1976? OPR."
7. This issue %as proposed in view of the objection taken in the reply filed by the respondent. "That the Election Petition is not competent because it has not -.Been filed properly and legally, as required by law, therefore, it deserves summary dismissal. " As is evident from the tenor of the objection the same is unspecific, shorn of necessary particulars and is rather loosely drafted. Be that as it may be issue was required to be proved and established by the respondent as to how the election petition was not competent. Neither in his statement as RW-1 anything was said by him nor it has been shown from the record that the same was not legally competent. The election petition has been verified on oath, it is attested by the Oath Commissioner. Even the affidavit accompanying the same is duly attested by the Oath Commissioner and the documents mentioned above also find due verification and certification as being true and correct. As the issue has not been proved the petition is found to be legally competent, having fulfilled necessary requirements of law and does not merit rejection. It is decided against the respondent. -7. ISSUE No. 2. "What is the effect of earlier judgment rendered by the Division Bench of this Court in W.P. No. 16830/02?"
8. It has been mentioned above that the candidate of the respondent was objected to by the petitioner at the time of scrutiny of the nomination papers, The precise objection of the petitioner was that since the respondent had been dismissed from service (Sub-Inspector, Police) on the ground of habitual absence from duty, he was disqualified from contesting the election as such a dismissal amounted to misconduct. Copy order dated 28.10.1990 (Ex.P-2) was produced before the Returning Officer in support of such an objection. The objection prevailed and the Returning Officer ordered the rejection of his nomination papers on 31.8.2002. On his election appeal (E.A. No. 162- R/02), the learned Election Tribunal allowed him to contest the election by accepting his nomination papers. The view taken was that "Under Article 8-D(2) (i) of the Conduct of General Election Order, 2002 a person who has been dismissed from service on the ground of misconduct involving moral turpitude is only debarred from taking part in the forthcoming election and by virtue of Article 3 of the ibid Order, the provision of this order shall have effect notwithstanding anything contained in the Constitution or in any other law, for the time being in force relating to the forthcoming Elections of Senate, National Assembly and Provincial Assembly.'' It was observed by the learned Tribunal that "the essential element to be proved is that his dismissal was on the ground of misconduct involving moral turpitude" and the since "the precise allegation against the appellant was that he remained absent from the duty and there is no allegation of moral turpitude of any kind against him" he was not disqualified to contest the election. The tendering of resignation by him was also noted by the learned Tribunal, In the order of the learned Full Bench passed in writ petition (W.P. No. 16830/02) filed by the petitioner, the learned Bench while disposing of number of other petitions reiterated its earlier view that such grounds could be taken before the Election Tribunal through election petition and the grievance "can be redressed by the Election Tribunal by declaring the election as a whole to the void." The matter did not rest at that as the petitioner had agitated, It further before the Hon'ble Supreme Court of Pakistan, It appears that since the flection process had in the meanwhile been completed the present election petition was filed and petitioner from the Hon'ble Supreme Court of Pakistan was withdrawn pursuant to Civil Misc. Application No. 942/04 by means of order dated 12!5.2004, which reads as under:- "Learned counsel for the petitioner states that since the election petition of the petitioner is pending before the election Tribunal, therefore, he withdraws this petition. Dismissed as withdrawn."
9. Though in view of dismissal of the writ petition that the remedy of election petition was open to the petifoner as contemplated by Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 and withdrawal of the petition from the Hon'ble Supreme Court of Pakistan due to the pendency of -the present election petition no bar could be pleaded yet the learned counsel for the petitioner has cited Ch. Altaf Hussain v. Raja Muhammad Afzal (KL.R. 1986 Civil Cases 238), Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others (1986 SCM R 1736), Muhammad Asim Kurd v.
10. Assistant. Commissioner-cum-Returning Officer, Karachi-1 and another (1996 CLC 1772) and judgment of the learned Election Tribunal dated 28.4.2006 in E.P. No. 50/02 to contend that neither the principle of rep judicata can be involved in the matter nor the petitioner can be non-suited on any such ground. At this juncture observations in the context of the controversy made by the apex Court in the case of Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain {supra) are of immense relevance and importance, which are reproduced hereunder:- "Keeping in view these provisions of law, it is clear that a challenge to an election is possible only- through an election petition triable by a Tribunal established for that purpose and that it is within the powers of the Tribunal to determine whether the returned candidate was or was-not on the nomination day qualified for or was disqualified from being elected as a Member, In view of such a scheme of the law, the finality-referred to and made the basis of the argument by the leamed counsel for the appellant could not stand in the way or be a. Bar to the jurisdiction and powers of the Election Tribunal.
11. There is another indicator in sub-section (5) of section 14 of the Act that finality could not be attached qua the election Tribunal to such a decision. The inquiry at the stage of scrutiny of nomination paper and the hearing of the appeal against the acceptance of the nomination paper is summary and the decision is to be within such time as may be notified by the Commission. With these drawbacks in handling the appeal and in disposing it Of when a more elaborate and complete procedure for the trial of the same Issue is provided before the Election Tribunal after the returned candidate has been notified, such a summary inquiry could not bar the more elaborate inquiry provided for the Chapter VII of the Representation of the Peoples Act. "
12. The same principle is discernible also from Saeed Ahmad Shah (Masood Ahmed) PLD 2003 SC 340).
13. In view of such gliding principles laid down by the Hon'ble Supreme Court of Pakistan there remains nothing to be dilated upon as. The issue stand clinched through authoritative pronouncements.
14. Thus judgment in W.P. No. 16830/02 does not in any way operate as res judicata nor it bars the petitioner from filing election petition under the law. The issue is decided-accordingly.
8. ISSUE No. 3. "IA/e respondent No. 1 disqualified from being elected as member? OPP.
15. This is issue of trial importance in this case. The case of the petitioner in a nutshell is that since the respondent was Sub-Inspector in Punjab Police and was dismissed .From service for misconduct, he was disqualified from being effected or chosen as Member. The provisions of Article 63(1 )(i), S. 99(I-A)(i) and Article 8-D(2)(i) as amended have been invoked for this purpose. The respondent on the other hand has pleaded that he had tendered resignation and if any dismissal order was passed he was not aware of the same and that in any case since no moral turpitude was involved he was not disqualified from being elected a member of the Assembly.
16. The entire case of the .Petitioner in seeking thd election of the respondent as void is that he was disqualified as his dismissal from service amounted to "misconduct" whereas the stand of the respondent is that mere dismissal from service not involving moral turpitude is no disqualification.
17. At this juncture the evidence led by the parties may be adverted to./Ex.P-2 is the order dated 28.10.1990 by virtue of which the respondent was dismissed from service, the operative part whereof is that "/'n order to save his skin from the expected disciplinary action, he has tendered his resignation but in light of the above discussion it is crystal clear that the accused Sub-Inspector is a habitual absenee, incorrigible and is not interested in service and such type of officers do not merit retention in the department. He is, therefore, dismissed from service with immediate effect in absentia under the Punjab Police (E&D) Rules, 1975, the period the remained absent shall be considered without pay while the period of his suspension shall be treated as such." The petitioner while appearing as PW-1 has pressed into service his dismissal as disqualification from being Member of the Assembly. He. Categorically denied that any fabricated document was produced about dismissal of respondent before the Returning Officer-. The respondent in his statement as, PW-1, admitted that he had been Sub-Inspector in Police but emphasized that he had tendered resignation from the said post and thereafter had been contesting the elections and even won the election held in the year 1997. He initially chose to deny that he had been dismissed from service.
18. Such as sentence, however, he could not maintain for long. Later he faltered and became shaky during the cross-examination and eventually admitted that despite his resignation, the Department had dismissed him from service, It is thus no more an issue that the respondent had indeed been, dismissed from service. The effect, thereof, however, remain to be seen in the light of the relevant provisions of law. The leamed . Counsel for the petitioner relies upon Secretary, Education, N.W.F.P., Peshawar and 2 others v. Mustamir Khan and another (2005 SGMR 17) to contend that a wilful absence-from duty' amounts to "misconduct". Judgment dated 28.4.2006 in Election Petition No. 50/2002 by a learned Election Tribunal is also relied upon by him. The learned counsel for the respondent has on the other hand laid great stress that it is only dismissal involving moral turpitude which can disqualify a candidate from contesting the election or being Member of the Assembly, For the matter the judgment of the learned Election Tribunal in E.A. No. 162-R/02. Is being relied upon whereby the nomination papers of the respondent were accepted. He has also relied upon an order dated 22.8.2005 passed by the Hon'ble Supreme Court of Pakistan in C.P. No. 1662-L/05.
9. The provisions relating to disqualification in the Constitution and the laws governing the situation, have undergone changes from time to time, which may now be adverted:- As per Article 63( 1)(i)t and (ii) of Constitution of Islamic Republic of Pakistan, 1973 a person shall be disqualified from being elected or chosen as and from being a member of Parliament if:- "(i) he has been dismissed from the service of Pakistan or service of a corporation or office set up or controlled by the -Federal Government, Provincial Govemment or a Local . . . Govemment on the grounds of misconduct or moral turpitude; or
(j) he has been removed or compulsorily retired from the service of Pakistan or service of a corporation or, office set up or controlled by the Federal Govemment, Provincial Government or a Local Government on the grounds of misconduct or moral turpitude; or"
19. According to Section 99 (1A)(i) of the Representation of People Act 1976 (LXXXV of 1976) a person shall be disqualified from being elected as and from being a member of an Assembly, if- "(ii) has been dismissed from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on grounds of misconduct or moral turpitude; or"
20. Article 8D(2)(i) of the Conduct of General Elections Order, 20Q2 (Chief Executive's order No. 7 of 2002) has also got relevancy as it originally was that:- "(i) he has been dismissed from the service of Pakistan or service of a corporation or office set up or controlled .By the Federal Government, Provincial Government or a Local Government on the grounds of misconduct involving moral turpitude; or"
21. It may be noticed that the above-mentioned1 clause 8-D(2)(i) of the Conduct of General Elections, 2002 was amended by Chief Executive Order No. 35 of 2002, dated 6.11.2002 and for the word "involving" the word "or" was substituted, which were to be deemed to have always been so substituted, It may be observed that the judgment of the learned Election Tribunal in E.A. No. 162- R/02 proceeded on the premises that dismissal from service on the ground 'of misconduct involving moral turpitude only would debar a candidate, but in view of the amended clause 8-D(2)
(i) ibid, of the Conduct of General Elections Order, 2002 such a view no longer holds good.
10. Realizing the import and effect of the amended clause the learned counsel for the respondent has endeavouredred to ba upon the use of the word "or" and contends that the same should be read in conjunctive sense as "and". According to him all dismissals do not attract a disqualification nor it is so envisaged by law. He has made reference to Salehon and others v. The State (PLD 1969 S.C. 267) as also Principles of Statutory Interpretation by G.P. Singh, Page-404 and Understanding Statutes-Canons of Construction by S.M. Zafar, lst Edition; Page 829 that the. Governing rule is to carry out the intention of the legislation, It may be observed that through the legislature sometimes uses such expression in the alternative sense yet the governing rule as held in Salehon and others v. The State (supra) is "to carry out the intention of the legislature", In Understanding Statutes- Canons of Construction by. S.M. Zafar at page 825 of the 2nd edition, it is noted by the learned author that "If the disjunctive conjunction 'or' is used, the various members of the sentence are to be taken separately. If 'and' is used they are to be considered jointly. " A passage from page 827 of the same book can usefully be referred according to which "It is the duty of a Court of law to primarily adhere to the strict literal interpretation of the words used, and the substitution of conjunction should not be made without sufficient reason." These are 'salutary principles of interpretation of statutes which cannot be ignored or overlooked while interpreting a provision of law., Iri the present case the intention of the legislature is quite evident and obvious. The undermentioned comparative statutory position of the disqualification of the type would make the intention of the legislature clearer beyond any doubt:- CONSTITUTION OF ISLAMIC CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN; "1973 REPUBLIC OF PAKISTAN, 1973 Article 63(1 )(i) Article 63(1 )(i)
22. BEFORE L.F.O.
23. SUBSTITUTED BY THE LEGAL FRAME WORK ORDER DATED 21.08.2002 "A person shall be disqualified "A person shall be disqualified from being ejected of chosen as, from being elected or chosen as and from being, a member of the and from being, a member of the Majlas-e-Shoora (Parliament) - if - Majlas-e-Shoora (Parliament) if- he has been dismissed from the he has been dismissed from the service of Pakistan on the ground service of Pakistan or service of a of misconduct." Corporation or office set-up or " ' , controlled by Local Government on the ground of misconduct or *' . Moral turpitude."
24. Article 63(1)(i) ' . Article 63(1 V(i)
25. BEFORE L.F.O. SUBSTITUTED BY THE LEGAL FRAME WORK ORDER DATED, 21.08.2002 "A person shall be disqualified "A person shall be disqualified from being elected of chosen as from being elected or chosen as, and from being, a member of the and from being, a member of the Majlas-e-Shoora (Parliament) if - Majlas-e-Shoora (Parliament) if- CONDUCT OF GENERAL ELECTION ORDER 2002.
26. Article 8-D(2)(i)
27. AFTER CHIEF EXECUTIVES ORDER NO. 7 OF 2002 "A person 'shall be disqualified from being elected or chosen as, and from being a member of the Majlis-e-Shoora (Parliament) or a Provincial Assembly if - he has been dismissed from the Service of Pakistan or service of a Corporation or office set-up or controlled by' the Federal #the he has been removed or compulsorily retired from the service of Pakistan on the ground of misconduct unless a period of three years has elapsed since his removal or compulsory retirement; or"
28. REPRESENTATION OF PEOPLE ACT, 1976 Section 99(1-A)(i) . BEFORE AMENDMENT OF 2002 "A person shall disqualified from being elected as, and from being a member of an Assembly, if - he has been dismissed from the service of Pakistan on the grounds of misconduct." he has been removed or compulsorily retired from the service of Pakistan or service of a Corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct or moral retirement, or" to be read as 'moral turpitude'.
29. REPRESENTATION OF .
30. PEOPLES ACT, 1976 Section 99(1-A)(i)
31. AFTER AMENDMENT THROUGH ORDINANCE NO. XXXVI OF 2002 "A person shall be disqualified from being elected as, and from being a member of an Assembly, if - he has been dismissed from the service of Pakistan or service of a Corporation or office set up or controlled by the Federal Government, - Provincial Government or a Local Government on the grounds of misconduct or moral turpitude.''
32. CONDUCT OF GENERAL ELECTION ORDER, 2002.
33. Article 8-D(2)(i)
34. AMENDED BY . CHIEF EXECUTIVE'S ORDER DATED 6TH NOVEMBER, 2002 "A person shall be disqualified from being elected for chosen as, and from being a member of the Majlas-e-Shoora (Parliament) or a Provincial Assembly if - he has been dismissed from the service of Pakistan or service of a Corporation or office set-up or controlled by the Federal Government, Provincial Government, Provincial Government or a Local Government or a Local Government on grounds ' of Government on grounds of misconduct involving moral, misconduct or moral turpitude." turpitude "
35. The amendment brought-about in Article 8-D(2)(i) through Chief Executive Order No. 35 of 2002 dated 6.11.2002, is not without purpose. The intention as reflected from the above provisions is quite clear that dismissal/removal or compulsory retirement from service on the ground of misconduct is also a disqualification which may or may not involve the element of moral turpitude. This is how the governing rule as stated in Selehon (supra) "to carry out the intention of the legislature" can be given effect to.
11. Another aspect touching the amendment of clause 8-D(2)(i) of The Conduct of General Elections Order, 2002 by means of Chief Executive's Order No. 35 of 2002, dated 6.11.2002 is that it "shall be deemed to have always been so substituted". Such a deeming clause by virtue of which the submission' has been made, has received attention of the Courts in the past as well, In Mehreen Zaibun Nisa v. Land Commission Multan and others (PLD 1975 SC 397) it was observed that:- "There is still another aspect of the matter, namely, the true effect of the retrospective inclusion of the subject of land reforms in the Concurrent Legislative List. Could it be the intention of the deeming provisions contained in the two Presidential Orders to invalidate Provincial laws which had "been properly and competently made at the time of their enactment?
36. When a statute contemplates that a stage of affairs Should be deemed to have existed, it clearly proceeds t on the assumption that in fact jt did not exist at the relevant time but by a legal fiction we are to assume as if it did exist. The classic statement as to the effect of a deeming clause is to be found in the observations of Lord Asquith in East End Dwelling Company Ltd. v. Finsbury Borough Council (1) namely: "Where the statute says that you must imagine the . State of affairs it does not say that having done so you , must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
37. This observation has been referred to with approval in a large number of cases decided by the Courts in this sub-continent, as mentioned by the learned Judges in the High Court. (See Commissioner of Income-tax, Bombay Presidency v. Bombay Trust Corporation Ltd. (1) , Agha Shaukat Ali v. Settlement and Rehabilitation Commissioner, Lahore (2), Begum B.H. Sayed v. Mst.
38. Afzal Jahan Begum (3), Begum B.H. Sayed v. Mst. Afzal Jehan Begum (4) and Abdul Hakim Khan v.
39. Mrs. Doreen, Barkat Ram (5).
40. At the same time, it cannot denied that the Court has to determinethe limits, within which and the purposes . For which the Legislature has created the fiction. /\s stated by James, L.J. In Levy Ex parte Walton, (6), a statement approved by this Court in Begum B.H. Sayed v. Mst. Afzal Jahan Begum when a statute enacts that something shall deemed to have been done which in fact and in truth was not done, the Court is entitled and bound 'to ascertain for what purposes and between what persons the statutory fiction is to be restored to."
41. There are few established principles of interpretation of statutes which can appropriately be invoked to the facts and circumstances of this case, such as that:-
(i) No word in the statute is to be rendered nugatory, meaningless or otiose and full effect is to be given to the intention of the legislature expressed through the words employed by it;
(ii) Pari materia laws are kept in view as it is assumed that uniformity of language was intended, In determining the meaning to be attached to the particular expression of statute reference may be made to earlier and later Acts on the same subject and also to enactments pari materia. Statute which relate to the-same subject, the same person of thing, or the same class of persons or things, are deemed to constitute one system of law: they are considered as one statute, subsequent laws and regarded < as supplementary or complementary to the earlier enactments. When enacting a new law the legislature is . Presumed to have had in contemplation the existing statute on the same subject. (For reference see Understanding Statutes- Cannons of Construction of S.M. Zafar, 2nd edition, pages 590, 695, 696 and 697).
(iii) The object and purpose to be achieved by the legislature in introducing such an amendment is to be discovered by the Court.
42. Keeping in view the above principles, the object of amendment in clause (i) of Article. 8-D(2) of Chief Executive's Order No.- 7/2002 by virtue of Chief Executive's Order No. 35/2002 clearly was to bring such a disqualification in conformity with the other provisions of the laws oh the subject i.e. Article 63 of the Constitution of Islamic Republic of Pakistan, 1973 and S: 99 of the Representation of People Act, 1976 (LXXXV of 1976) to harmonize them, to ward off any possible conflict or inconsistency.
43. Thus there remains no doubt that phrase "misconduct involving moral turpitude" was intentionally and purposely substituted ' by "misconduct or moral turpitude" retrospectively. The underlying idea and object appear to be to extend the scope of disqualification to keep the person, dismissed, removed or compulsory retired from service on the ground of misconduct, away from the elected, representative forum, though there may not be the element of moral turpitude involved in his dismissal/removal or compulsory retirement from service.
12. It may be mentioned at this juncture that the disqualifications of the kind in different laws relating to the elected bodies have been different in their import, .Extent and scope. For instance section 152(1 )(h) of the Punjab Local Government Ordinance, 2001 read like this:- S. 152: Qualifications for candidates and elected members:- (1) A person shall qualify to be elected or to hold an elective office or membership of a Local Government, if he;- (a)
44. (a)
45. (d)
46. (e)
47. (f)
48. (9)
(h) has not been dismissed removed or compulsorily retired from public service on the ground of material turpitude; It is this particular law which came up for consideration before the Hon'ble Supreme Court of Pakistan C.P. No. 1662-L/05 and it was observed that "We are of the considered opinion that were removal of a person on the ground of inefficiency would not involve the element of moral turpitude.
49. " This, respectfully stated, is the view of the Hon'ble Supreme Court about a specific provision of law, which has no application to the case in hand, as the law applicable' here is different, In E.P. No. 50/02 my learned brother Mian Hamid Faruq, J. Has also exhaustively dealt with the scope of Article 8-D(2)(i) and I find myself in respectful agreement with the view so expressed on this aspect.
13. The "dismissal" from service on the ground of habitual absence from duty falls within the purview and scope of 'misconduct'. It has been so held by the Hon'ble Supreme Court of Pakistan in Secretary Education, N.W.F.P., Peshawar and 2 others (supra) that "wilful absence amounts to misconduct on the basis whereof, major penalty of dismissal from service can be imposed.
50. Thus in view of the undisputed position that the respondent had been dismissed -from service he is disqualified from being Member of the Assembly. His election is liable to be declared void, The issue is decided accordingly.
14. ISSUES No. 4 & 5: "Is the petitioner entitled to be declared as a returned candidate in case issue No. 3 is decided in affirmative? Relief"
51. Since both these issues have nexus these are being considered jointly. The petitioner has prayed for a declaration that "the candidature and election of the respondent as member of Provincial Assembly Punjab from PP-80 Jhang-VIII was void and the respondent was disqualified from being elected as such an in consequence the petitioner may very graciously be declared as an unopposed elected member of the Provincial Assembly Punjab from the said constituency."
52. Though affirmative findings have ' been recorded that the respondent was disqualified from being a member of the Assembly and his election has been declared void yet it is to be seen whether the petitioner can be given seat in the Assembly in place of the respondent. Quite recently the Hon'ble Supreme Court of Pakistan on consideration of number of precedents on the subject has laid down in Sh. Amjed Aziz v. Haroon Akhtar and 10 others (PLJ 2005 S.C. 226) that "Ratio of above cases on this point is that is the disqualification of a returned' candidate was not notorious at the time of polling, the votes polled in favour of the successful candidate could not be thrown away by giving seat to the candidate with ne>(t highest number of votes, In the instant appeal, it was not known to the voters that the appellant was not a graduate and lacked requisite qualification for contesting the election. No steps were taken by anybody to bring to the knowledge of the electors that the appellant was not a graduate. The nomination papers of the appellant were accepted without any objection. This unequivocally postulates that the voters were unaware of his disqualification, therefore, rule of "throw away votes" could not be invoked." Again in Muhammad Nasim Turali and others v. Ghulam Sarwar Khan and others (PLJ 2005 S.C. 1176) it was held that "When the election of a returned candidate is annulled on account of disqualification the votes caste in his favour could either be treated as thrown away votes or the electorate may be given a fresh choice to elect their representative. The former course can be adopted only when the disqualification of the candidate in question was known to the electorate and they knowingly chose to vote for such a person who was subsequently found disqualified to contest the election. The principle is that, since despite the disqualification being known and notorious the electorate votes in favour of the said candidate, they have thrown away their votes and have no right to seek fresh election. However, if this disqualification was not known to the voters and the question entailed recording of evidence and a judicial pronouncement as in the instant case then the votes cast in favour of such a candidate could not be treated as thrown away votes, In the event of such a disqualification the voters have a right to ask for fresh election. This is in line with this Court's earlier view as given in the following cases:-
(1) Rashid Ahmed v. Barkat AH (PLD 1086 SC 30);
(2) Muhammad Afzal Khan v. Ch. Manzoor Elahi (PLD 1975 SC 1296);
(3) Saeed Hassan v. Asghar Ali (PLD 1976 S.C. 6);
(4) Ahmad Saeed v. Election Tribunal (2003 SCM R 1611).
53. In the case of Ahmad Saeed v. Election Tribunal (supra) this Court at page 1655 held,as under:- "34. The answer to the question "as to whether the votes given to a candidate who was suffering from a disqualification should be treated as being, simple wasted or thrown away the consistent view of this Court is that votes given to the returned candidate without notice of the disqualification which was not notorious cannot be thrown away for the benefit of next candidate at the cost of disfranchising the electors and in such circumstances fresh election is must."
54. In the present case the respondent has in his deposition as RS-1 stated that he had been elected in the election held in the year 1997 as well, which assertion has remained uncontroverted. Even in the present election though his nomination papers were initially rejected by the Returning Officer yet the learned Election Tribunal accepted his appeal on 12/16.9.2002 and allowed him to contest the election and writ petition filed by petitioner thereagainst was dismissed by the High Court on 18.9.2002. In such view of the matter the principle laid down and mentioned above in the precedent cases is fully attracted. The petitioner cannot be declared as unopposed elected member by disenfranchising the thousands of voters who cast votes in favour of the respondent. Thus, in the facts and circumstances the petitioner cannot be granted such a relief.
55. In view of the above election petition is accepted to the extent that election of respondent as Member of Provincial Assembly, Punjab (PP-80 Jhang-VIII) is declared as void and notification to that effect issued by the Election Commission of Pakistan is set aside. Fresh elections to fill in the vacancy occurring in Constituency PP-80, Jhang-VIM to be held in accordance with law. No order as to costs.