' IFTIKHAR MUHAMMAD CHAUDHRY, C J.---Listed appeals have been filed under section 67(3) of the Representation of the People Act, 1976 against the judgment dated 23rd June, 2006 passed by the Election Tribunal, Lahore in Election Petition No,107/2002. As both the appeals are directed against the same judgment of the Election Tribunal, therefore, we intend to dispose them of by means of instant judgment.
2. Facts, in brief, leading to filing of instant appeals are that Imtiaz Ahmed Lali and Ghulam Muhammad Lali, appellant and respondent respectively, filed their nomination papers for contesting the elections scheduled to be held on 10th October, 2002, from the constituency PP-80 Jhang-VIII District Jhang, for the seat of Member Provincial Assembly Punjab. The candidature of the appellant was objected to by the respondent on the ground that since he had been dismissed from service (as Sub-Inspector in the Punjab Police), therefore, he was disqualified from being elected as such. The objection was upheld by the Returning Officer vide order dated 31st August, 2002, prompting appellant to assail the said order through an election appeal, which was accepted by the learned Election Tribunal on 16th September, 2002. Feeling aggrieved from the said order, the respondent filed writ petition, which was dismissed by the full Bench of the High Court on 18th September, 2002, 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. [herein after referred to as the Constitution]. Against the said order, respondent preferred Civil petition for leave to appeal No,3802-L/2002 before this Court. Since in the meantime, the election had been held and the appellant as per the poll result was declared elected, as such the respondent approached the leaned Election Tribunal by way of filing Election Petition with the request to, declare the election of the appellant as void and as a consequence he be declared as unopposed member of Assembly. Due to pendency of this election petition, the respondent withdrew his earlier petition pending before this Court on 12th May, 2004. Learned Election Tribunal, after taking into consideration all attending circumstances of the case, partially accepted the election petition to the extent that the election of the appellant as Member of the Provincial Assembly Punjab (PP-80 Jhang-VIII) is declared as void and notification to that effect issued by the Election Commission of Pakistan was set aside and fresh elections were ordered to be held to fill in the vacancy. Both, the appellant and the respondent, feeling aggrieved from the said judgment of the Election Tribunal, filed instant appeals.
3. It may be noted that Election Tribunal struck down following issues for determination arising out of the pleadings of the parties:--
(1) Does the election petition merit rejection for non-compliance with the statutory provisions of Representation of the People Act 1976? OPR.
(2) What is the effect of earlier judgment rendered by the Division Bench of this Court in W.P.
No,16830/2002?
(3) Was respondent No,1 disqualified from being elected as member? OPP
(4) Is the petitioner entitled to be declared as a returned candidate in case issue No,3 is decided in affirmative?
(5) Relief.
' For the purpose of disposal of Civil Appeal No,1037 of 2006 filed by Imtiaz Ahmed Lali, issue No,3 is one of the most important issues. The election of the appellant has been assailed on the premises that he was disqualified from being elected or chosen as Member of the Assembly in view of his dismissal from Service which amounted to misconduct in terms of Article 8D(2) (i) of the Conduct of General Elections Order, 2002 (Chief Executive's Order No,7 of 2002) [herein after referred to as "Elections Order, 2002"] promulgated on 27th February, 2002, according to which a person shall be disqualified from being elected or chosen as and from being a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly if he has been dismissed from 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. It is an admitted fact that appellant Imtiaz Ahmed Lali was dismissed from service as S.-I. Police by Superintendent of Police Faisalabad on 28th October, 1990. Initially when the appellant submitted his nomination papers the same were rejected by Returning Officer on 31st August, 2002, in view of the objection of his not being qualified to contest the election under the above provision of law, but in appeal the order of rejection of his nomination paper was set aside by the Election Tribunal on 12th September, 2002. It would not be out of context to note that the Election Tribunal accepted the appeal filed by the appellant as his case is not covered by the provisions of Article 8D(2)(i) of the Elections Order, 2002. Relevant para therefrom is reproduced herein below for convenience:--- "5. Under Article 8D(2)(i) of the Conduct of General Elections 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 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. In this view of the mater, to disqualify a person on the ground that he being a servant of Provincial Government was dismissed from service; the essential element to be proved is that his dismissal was on the ground of misconduct involving moral turpitude. In the circumstances of this case as discussed above, 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. The dismissal order of appellant reveals that he also tendered resignation at one stage but the same was not accepted. This conduct of the appellant clearly shows that he was not interested in police service and voluntarily wanted to quit the job but the .Same request was turned down and he was forcibly dismissed from the service. Be that as it may, circumstances of this case show that the ingredients of clause (i) of Article 8D(2) of the Conduct of General Elections Order, 2002 are not attracted thus the impugned order passed by learned Returning Officer for the Constituency PP 80 Jhang VIII is illegal and the same is set aside. Resultantly, the nomination papers filed by the appellant stand accepted."
4. As it has been noted hereinabove that appellant succeeded in polls, as such he was declared successful. In the very premises it is essential to note that in the original Chief Executive's Order No,7 of 2002, promulgated on 27th February 2002, Article 8D(2)(i), referred to hereinbefore was incorporated vide Conduct of General Elections (Fourth Amendment) Order, 2002 (Chief Executive's Order No,21 of 2002), before filing of nomination papers, It so happened that subsequently Chief Executive's Order No, 7 of 2002 was again amended on 6th November, 2002 vide Conduct of General Elections (Ninth Amendment) Order, 2002 (Chief Executive's Order No,35 of 2002), whereby Article 8D was amended as follows:-- "2. Amendment of Article 8D, Chief Executive's Order 7 of 2002.---In the Conduct of General Elections Order, 2002 (Chief Executive's Order 7 of 2002) in Article 8D in clause (2) in sub-clause (i), for the word "involving" the word "or" shall be substituted and shall be deemed to have always been so substituted."
5. In view of above legislative history of Article 8D(2)(i), learned counsel for appellant argued firstly; that word 'or' used in the above amendment of Article 8D(2)(i) should be read 'and' in order to treat the amended provision to be conjunctive instead of injunctive, therefore, simplicity habitual absence from duty would not constitute misconduct involving moral turpitude.
6. In this behalf it may be noted that the Courts, while interpreting a statute, are bound to follow the intention of the legislature and are prohibited to interpret the law in the manner contrary to the intention of the legislature. Although this Court in the case of Khadim Hussain v. Additional District Judge, Faisalabad (PLD 1990 SC 632) and Abdur Rauf Khan v. Land Acquisition Collector/D.C.
Abbottabad (1991 SCM R 2164), has held that the Courts have power to change and will change `and' to 'or' and vice versa, whenever such conversion is required by the context or is necessary to harmonize the provisions of a statute and give effect to all its provisions, or to save it from unconstitutionality or in general to effectuate the obvious intention of the legislature.
[Understanding Statutes (Canons of Construction) 2nd Edition by S.M. Zafar].
' Keeping in View the facts and circumstances of the case in hand, the two principles highlighted hereinbefore are not attracted to accept the arguments of the appellant's counsel because neither conversion is required by the context nor it is necessary to harmonize the provisions of a statute, which are not in conflict with each other and are applicable with its all force. Moreover, there is no question of saving it from unconstitutionality, therefore, the arguments raised by the learned counsel is not attracted.
7. Learned counsel secondly contended that Article 8D(2)(i) of the Elections Order, 2002, incorporated with effect from 6th November, 2002 would have prospective effect in its nature and such provision cannot be applied retrospectively because the appellant had been declared successful vide notification date 20th October, 2002, therefore, it being a past and closed transaction cannot be re-opened.
8. On the other hand Mr. Wasim Sajjad, learned counsel appearing on behalf of respondent contended that amendment in Chief Executive Order, 2002 with effect from 6th November, 2002 has been applied with retrospective effect as it is evident from the contents of the amending order, wherein by employing the words "shall be deemed to have always been substituted" lawmaker has disclosed its intention. According to him this amendment has become necessary to bring it in consonance to the provisions of Article 63 of the Constitution, which was amended vide Legal Framework Order, 2002 (Chief Executive's Order No,24 of 2002) incorporated on 21st August, 2002, effect whereof was to be given on a date when the members elected to the Senate take oath vide S.R.O. No,828(1)/2002 dated 22nd November 2002. He also pointed out that similarly section 99 of the Representation of the People Act, 1976 was amended vide Ordinance XXXVI of 2002, dated 31st July, 2002 by substituting a disqualification of a person, who has been dismissed or compulsory 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 turpitude. He further pointed out that the elections conducted in 2002 shall be deemed to be held under the Constitution and shall have effect accordingly in terms of Article 8G of the Chief Executive's Order No,7 of 2002.
9. Mr. Nasir Saeed Sheikh, learned Deputy Attorney General also adopted the arguments of respondent's counsel.
10. We have examined the amendment in above referred three instruments namely in Article 63 of the Constitution, in view of the Legal Framework Order, 2002 (Chief Executive's Order No,24 of 2002) dated 21st August, 2002, wherein following amendment was introduced:-- "(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 or moral turpitude; or"
In consonance to above constitutional provision, section 99 (la) (i) was also substituted in the Representation of the People Act, 1976 by Ordinance No, XXXVI of 2002 with effect from 31st July, 2002. Although Chief Executive's Order No,7 of 2002 was also amended with effect from 31st July, 2002 but perhaps due to some oversight while introducing clause (i) the grounds of disqualification in respect of person dismissed from service on account of misconduct involving moral turpitude was mentioned, without realizing that the general law on the subject i,e, the Representation of the People Act, 1976 has been amended on the same day, holding a candidate disqualified if he is guilty of misconduct or moral turpitude and later on Article 63 of the Constitution was also amended on the same line. Therefore, the intention of the Legislature becomes abundantly clear that by amending the instrument meant for holding the elections noted herein above, the object was to block passage for those candidates who are involved in misconduct or moral turpitude, as such to make the law in consonance, with the Constitution, amendment in Article 8D(2)(i) of the Elections Order, 2002 was notified with effect from 6th November, 2002 with retrospective effect.
11. There is no cavil with the proposition that Legislature is empowered to promulgate the law with retrospective effect It may be noted that in the case of Pakistan Muslim League (Q) v. Chief Executive of Islamic Republic of Pakistan (PLD 2002 SC 994), this Court was called upon to examine the implications of Article 8A of the Elections Order 2002, which prescribed the educational qualification for member of Majlis-e-Shoora (Parliament) and a Provincial Assembly, being a graduate, inter alia, on the ground that it tends to take away the right of adult franchise and universal suffrage. This Court on having examined the argument, concluded that the provisions of Article 8A are reasonable and not arbitrary or whimsical because firstly being a step towards transformation of the political culture it was founded on reasonable basis and equally applied to all the graduates and did not discriminate any graduate or create a class within the graduate.
12. In the case in hand as well, the intention of promulgating Article 8D(2)(i) of Elections Order, 2002, as amended, is not discriminatory as it would be applicable to all those candidates who are guilty of misconduct or moral turpitude, therefore, intention of the D Legislature seems to be to make it effective retrospectively with the object to produce such representatives, who are not guilty of misconduct or moral turpitude. It may also be noted that vide amendment on 6th November, 2002, the provisions of Article 8D(2)(i) of the Elections Order, 2002 have been brought in consonance with the provisions of the Constitution. Essentially the subordinate Legislature cannot run contrary E to the Constitutional provisions. Emphatically, to give a retrospective effect to a particular law is a phenomena, which is not alien to the power of legislation, as it has been held in Amin Ullah v. Pannu Ram (PLD 1967 SC 289), Muhammad Hussain v. Muhammad (2000 SCM R 367). Thus the provisions of Article 8D2(i) of the Elections Order, 2002 as amended on 6th November 2002 qualified the test laid down in the judgments cited herein above, therefore, we are of the considered opinion that no injustice has been caused either to appellant by amending the said provision of law, notwithstanding the fact that he had been notified to be successful candidate on 20th October 2002.
13. Learned counsel next argued that under the provisions of Punjab Removal from Service (Special Powers) Ordinance 2000, a person absent from duty habitually, would not be guilty of misconduct as per its dictionary meanings and in view of the judgments in Arsalan Hafeez v. Election Tribunal (PLD 2003 SC 355) and Samiullah Khan Marwat v. Government of Pakistan (2003 SCM R 1140).
14. On the other hand, learned counsel appearing for respondents contended that appellants belonged to Police Department which has got its own Efficiency and Discipline Rules, therefore, instead of applying the dictionary meanings of misconduct or from any other law, like the definition of misconduct under the Government Servants (Efficiency and Discipline) Rules, 1973 and Zakat and Ushar Ordinance, 1980 the meaning of the word misconduct as it appears in Punjab Police (Efficiency and Discipline) Rules, 1975, will have to be applied as has been observed in the cases of Sheikh Arsalan Hafeez (ibid) and Samiullah Khan Marawat (ibid).
15. The contention put forward by learned counsel for respondent seems to be reasonable because of the fact that the appellant being employee of the Police Department was subject to disciplinary action under the Punjab Police (Efficiency and Discipline) Rules, 1975, therefore, the definition of 'misconduct' under these rules will be material and will be applied. Reference in this behalf may be made to Rule 2(iii), which defines the misconduct and opens with the words "misconduct means conduct prejudicial to good order or discipline in the Police Force." In this behalf reference may be made to the case of Muhammad Farooq v. I.G. Police (1998 SCM R 477), wherein absence from duty was found to be misconduct by the petitioner and leave to appeal, as prayed for on his behalf to interfere in the judgment of the Service Tribunal, was declined while holding that petitioner was rightly found guilty of unauthorized and willful absence from duty.
16. Learned counsel appearing for appellant was also of the opinion that appellant was dismissed from service in 1990, therefore, he cannot be disqualified for all the time to come to contest election despite a lapse of considerable period of about 16 years.
17. In this context it is to be noted that it is the appellant who himself has earned the permanent disqualification because admittedly he is disqualified even for a petty government service according to law, therefore, for such permanent disqualification, how he can be allowed to become member of a sovereign body of a Parliament or Provincial Assembly. Thus, with this intention Article 63 of the Constitution, section 99 of the Representation of the People Act, 1976 as well as Article 8D of the Elections Order, 2002 were amended in order to block the passage of the persons, who are guilty of misconduct or involved in moral turpitude.
18. Learned counsel stated that when the Elections Order, 2002 (Chief Executive's Order No,7 of 2002) was promulgated on 26th February, 2002, there was no disqualification for the appellant to contest the elections but such disqualification of being guilty of misconduct or involved in moral turpitude was prescribed vide amendment in the Conduct of General Elections Order, 2002 by means of Chief Executive Order No,21 of 2002 on 31st July, 2002, therefore, the appellant for such reason cannot be held disqualified.
' We are not in agreement with the learned counsel firstly for the reason that even on the date of promulgation of Elections Order, 2002 (Chief Executive's Order No,7 of 2002) notified on 27th February, 2002, appellant had a stigma on him being a former Police Officer, who has been dismissed from service, falling within the mischief of misconduct as per the Punjab Police (Efficiency and Discipline) Rules, 1975 dated 4th December, 1975, the law under which he was dealt with while being dismissed from service; secondly Article 8D was promulgated on 31st July, 2002 before filing of nomination paper by him, therefore, the date on which he submitted his nomination papers, he had a basic disqualification on his sleeves to be a person who was dismissed from service on account of misconduct. Similarly if for sake of arguments, the amended provisions of Article 8D(2)(i), with effect from 6th November 2002 vide Conduct of General Elections (Ninth Amendment) Order, 2002 (Chief Executive's Order No,35 of 2002) is kept out of consideration, still there was provision under section 99(1A)(i) of the Representation of the People Act, 1976, which was amended with effect from 31st July, 2002, according to which the candidate would be disqualified on the grounds of misconduct or moral turpitude. Likewise, there is constitutional provision i,e, Article 63(1)(i), though, it was held in abeyance till the taking of the oath by the Senate vide S.R.O.
No,828(1)/2002. Legal Framework Order, 2002 dated 22nd November, 2002 as according to Article 8G of the Elections Order, deemed to have been conducted under the Constitution, therefore, appellant cannot be considered or deemed to be qualified to contest the elections in view of his dismissal from service on the ground of misconduct. It may also be noted that the disqualification attached to the candidature of the appellant is self acquired because his conduct as member of the force was prejudicial to good order or discipline of the Force. Moreso, dismissal from service under Rule 4(2)(a) of the Punjab Police (Efficiency and Discipline) Rules, 1975 disqualify him for future employment. Therefore, life time disqualification in view of above provisions of the Constitution as well as law cannot be removed by afflux of time.
19. Mr. Wasim Sajjad, learned Advocate Supreme Court appearing in Civil Appeal No,1097 of 2006 stated that appellant Ghulam Muhammad Lali secured 34,961 votes, comparing to respondent Imtiaz Ahmed Lali, who obtained 36,411 votes, therefore, being next to him he deserves to be declared as successful returned candidate on account of notorious disqualification of respondent Imtiaz Ahmed Lali, therefore, without applying the doctrine of throwaway votes, appellant Ghulam Muhammad Lali be notified as successful candidate.
20. The argument so raised by the learned counsel is not acceptable mainly for the strong reasons that before the amendment in Article 8D(2)(i) of the Elections Order, 2002 vide Chief Executive's Order No,35 of 2002, dated 6th November 2002, the disqualification of the appellant Imtiaz Ahmed Lali was not notorious, particularly in view of the judgment of the Appellate Election Tribunal (Imtiaz Ahmed Lali v. Salahuddin Siddiqui 2003 YLR 2437), pronounced in his favour, declaring him to be a qualified candidate, relevant para wherefrom has already been reproduced hereinabove, coupled with the observation made by this Court in the case of Amjad Aziz v. Haroon Akhtar Khan (2004 SCM R 1484) and Shaukat Ali v. District Returning Officer (PLD 2006 SC 78), as such the argument so raised by the learned counsel is accordingly repelled.
Thus for the foregoing reasons, both the appeals are dismissed with no order a to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.