1. ' MAQBOOL BAQAR, J.--- By this judgment we propose to dispose of two Constitutional Petitions, bearing No,C.P. No,D-864 of 2004 filed by Shahid Thaheem, Nazim Union Council, Manik Thaheem, Taluka Tando Adam, District Sanghar, and C.P. No,D-891 of 2004, filed by Roshan Din Junejo, Zila Nazim, District Sanghar. Both the above petitions relate to internal recall motion moved on 12-6- 2004 by the petitioner in Petition No,864 of 2004, against the Zila Nazim Sanghar, the petitioner in C.P. No,891 of 2004 and respondent in C.P. No,864 of 2004, and approved by majority of the members of the council on that date.
2. ' The brief facts of the case are that Shahid Thaheem moved, before Zila Council Sanghar, the above motion, under section 24 of the Sindh Local Government Ordinance, 2001 (SLGO, 2001), against Roshandin Junejo, in the first instance on 6-5-2004, which motion was voted upon and approved by majority of the members of the house on 7-5-2004. A Constitution Petition, bearing No,D-591 of 2004, filed by petitioner Roshan Din Junejo, challenging the said motion, was disposed of by a Division Bench of this Court by order, dated 3-6-2004, in the following terms:- "... We are of the view that the petitioner should be given an opportunity to address the house presided over by an independent person nominated by the Chairman Provincial Election Authority who will call session for a single agenda recall motion, within 7 days from the receipt of this order.
3. The Chairman Election Authority will provide ballot-papers for secret balloting and the recall motion should be taken in accordance with section 24 of SLGO-2001 and the petitioner should be given full opportunity to address the house on the allegations in the manner provided under the law and the same recall motion would be tabled. With the above observations/directions, the petition is disposed of..."
4. ' In pursuance of the above order, a meeting of Zila Council, presided over by Nazim Union Council Phulhadion Taluka, District Sanghar was held on 12-6-2004 and the aforesaid internal recall motion placed before the Zila Council was carried by majority of the members of the house.
5. ' The grievance of the petitioner Shahid Thaheem in C.P. No,864 of 2004 is, that although in terms of subsection (4) of section 24 of the SLGO, 2001, in the event a motion of internal recall is approved by Zila Council by majority vote, the Election Authority, respondent No,1, is essentially required to cause a vote to be cast by members of the Union Councils in the District, however, despite approval of the internal recall motion by the Zila Council against Roshandin Junejo as noted above, respondent No,1 has failed/neglected to comply with the above mandate of law, even after lapse of forty-two (42) days of the said approval, which smacks mala fide and ulterior motive on the part of respondent No,1, petitioner, Shahid Thaheem has prayed for a writ against respondent No,1, directing it to cause a vote to be cast by the members of the union councils in the District as envisaged by subsection (4) of section 24 of the SLGO 2001. Whereas through C.P. No,D-891 of 2004, Roshan Din Junejo has challenged the legality of the recall motion in question on the ground that the motion was moved with mala fide intent and for reasons/considerations extraneous to those prescribed by section 24 of the SLGO, 2001 and was a product of a political bargain/deal between Pakistan Peoples Party Parliamentarians (PPPP), and Pakistan Muslim League (Functional) (PML(F)), in pursuance whereof the candidate of PPPP, to which party the proposer and the seconder of the impugned motion belong, withdrew in favour of the candidate of PML(F) from the Bye-Election, for the National Assembly Seat, NA-136 Sanghar-III, held in April-May, 2004, in anticipation of the promised support of PML(F) to PPPP in fetching the office of Zila Nazim, Sanghar. The other grounds urged, are that respondent No,2, the Election Authority Sindh, is not a legally nominated/constituted body, as a retired, Grade-21 Officer has been nominated, Chairman of the Authority, instead of a Judge of this Court, whereas a retired BS-20 Officer, appointed, on contract basis, has been nominated as a member of the authority, instead of a District Judge. The proceeding of the impugned recall have also been assailed on the ground that the same was presided over by a person who was neither independent nor was so appointed under any lawful authority. It is alleged that the allegations contained in the impugned motion are false, fabricated and were politically motivated. It was contended that in view of the fact that the budget presented by the Zila Nazim, subsequent to the approval of the impugned recall motion, was approved by majority in the house, the approval of the impugned motion has lost its force and has become ineffective. The petitioner Roshan Din Junejo has also assailed the Sindh Local Government (Election Authority) Rules, 2004 as having been notified/promulgated illegally, without proper notice and without affording opportunity of hearing to those who filed objection to such rules, and as being violative of sections 150, 164 and 190 of SLGO, 2001 and of Article 2 of Local Government Elections Order-VIII of 2000 and Rule 3(1) and Chapter V of Sindh Local Government Elections Rules, 2000.
6. ' Roshan Din Junejo filed his counter-affidavit in reply to the contents of C.P. No,D-864 of 2004 and Shahid Thaheem filed his counter-affidavit to C.P. No,D-891 of 2004, whereas comments were filed on behalf of the Election Authority, Sindh in both the above petitions.
7. ' Mr. Abdul Mujeeb Pirzada, the learned counsel for the petitioner, Roshan Din Junejo, in, addition to the various grounds urged and contentions raised in the petition as noted above, submitted that since, the Election Authority was not a properly constituted body, all the acts and deeds of the said authority in relation to the impugned recall proceedings were without jurisdiction and void ab initio.
8. The learned counsel contended that the entire exercise/proceedings commencing with the conception of the impugned motion and culminating into its approval, were violative of the provisions of section 24 of SLGO, 2001, as the recall motion was moved for and prompted by consideration extraneous to subsection (2) of section 24 SLGO, 2001, which section prescribes grounds and reasons for moving a recall motion. He claimed that the impugned notice was moved in pursuance of a political deal between two political parties, as mentioned earlier. To substantiate the allegation, the learned counsel referred to and relied upon the reports published in the daily Newspapers, "Koshis" and "Kawish" dated 23-4-2004 and 21-4-2004 respectively, (Annexures "D/1" and "D/2" to Petition No,891 of 2004). The learned counsel further contended that voting on the impugned motion ought to have been allowed only after the allegations contained in the motion were proved through an enquiry, however, even material to substantiate such charges were not produced before the house.
9. ' It was contended that since the District/Zila Council did not constitute the electorate of Zila Nazim, such Council was/is not competent to pass any motion for recall against the Zila Nazim. The learned counsel in support of his case relied on the case of Khawaja Ahmed Hassan v. Government of Punjab and others PLD 2004 SC 694.
10. ' The learned counsel for the respondents supported the impugned recall as being lawful. They submitted that the entire proceedings qua the impugned recall motion were conducted in conformity with the mandate of order, dated 3-6-2004, whereby the Election Authority was directed to nominate an independent person to preside a session of the Zila Council. It is submitted that no appeal was filed against the said order and the order attained finality, which was accordingly acted upon and, therefore, Zila Nazim cannot by any stretch of imagination assail the impugned proceedings on the ground that the Election Authority was not a lawfully constituted body. The learned counsel for the respondent; referred to and relied on the judgments in the cases of Khawaja Ahmad Hassan v. Government of Punjab and others, reported in PLD 2004 SC 694, Ghulam Mustafa Insari and 48 others v. Government of the Punjab and others reported in 2004 SCM R 1903, Mian Muhammad Shahbaz Sharif v. Federation .Of Pakistan, reported in PLD 2004 SC 583 and Zubair Ahmad, and another v. Shahid Mirza and 2 others reported in 2004 M LD 1010.
11. ' We have heard the learned counsel and scrutinized the record of the case minutely.
12. ' The impugned recall motion was placed before the Zila Council in terms of section 24 of SLGO, 2001 which reads as under:-- "24. Internal recall of a Zila Nazim.--- (1) If in the opinion of a member of the Zila Council, there is a reason to believe that the Zila Nazim is acting against the public policy or the interest of the people or is negligent or is responsible for loss of opportunity for improvement in governance and service delivery to the pebple within the ambit of his responsibilities, he may, seconded by another member of the Council, give a notice to move a motion in the Zila Council through Naib Nazim for recall of the Zila Nazim.
(2) On receipt of notice referred to in subsection (1), the Naib Zila Nazim shall summon a session of the Zila Council not earlier than three days but not later than seven days, if the Zila Council is not already in session.
(3) Where the Zila Council is already in session, the motion referred to in subsection (1) shall be taken up for deliberations on the next day from its receipt by Naib Zila Nazim.
(4) If the motion referred to in subsection (1) is approved by majority of the votes of its total membership through a secret ballot of Union Councils in the district.
(5) Where the motion is approved by simple majority of the total number of members of Union Councils in the District, the Zila Nazim shall cease to hold office from the date of notification issued in this behalf by the Election Authority.
(6) Where the motion fails in the Zila Council, the proposer and seconder of such motion shall lose their seats both as Union Nazims and members of Zila Council.
(7) The Zila Nazim shall have the right to appear before the Zila Council and address it in his defence before approval or rejection of motion referred to in subsection (5).
(8) No motion for recall of Zila Nazim shall be moved during the first six months of assumption of office of Zila Nazim nor shall such motion be repeated before the expiry of twelve months from the rejection of previous motion.
13. ' Explanation. For the purpose of this section and other provisions of the Ordinance, the expression 'Election Authority' shall mean the authority nominated by Government for causing voting of the members of Union Councils, Village Councils, Neighbourhood Councils, whenever so required for recall of Zila Nazim, Taluka Nazim, town Nazim or as the case may be, Union Nazim.
14. ' The recall motion in question was, in the first instance moved before the Zila Council. On 7th May, 2004 and was carried by majority votes of the Members of the House. By order, dated 3-6-2004 passed in C.P. No,D-591 of 2004 filed by Roshan Din Junejo, a division Bench of this Court ordered fresh voting on the impugned motion, through secret balloting, in a session of the Zila Council and directed the Chairman, Election Authority Sindh to nominate an independent person to call and preside over such session, providing full opportunity to the Zila Nazim to address the house on the allegations contained in the said recall motion. It was further directed that the Chairman Election Authority shall provide ballot-paper for the secret balloting and that the voting be conducted in accordance with section 24 of SLGO, 2001.
15. ' In pursuance of the aforesaid order, the Chairman Election Authority, vide Notification dated 8-6- 2004, nominated Mr. Amanullah Khan Sher respondent No,4, (a Member of the Panel of Presiding Officers elected in the first sessions of the Zila Council under section 42(5) of SLGA, 2001), to call and preside over a session of the Zila Council for conducting proceedings pertaining to the aforesaid recall motion in accordance with the provisions of section 24 of SLGO, 2001 on 12th June, 2004 with full opportunity to the Zila Nazim to address the house in the manner provided under the law. The respondent No,4 accordingly convened the session of the house and on 9-6-2004 issued notice to the Zila Nazim to attend the session and address the house on 12-6-2004. The session was duly attended by seventy-six out of 83 members of the Zila Council, the proceedings were presided over by respondent No,4, with whose permission Shahid Thaheem read the contents of the impugned motion in presence of Roshan Din Junejo, who in rebuttal addressed the house at length whereafter the Presiding Officer invited the members to express their view but the members requested the Presiding Officer to put the motion to vote, whereupon the members were allowed to cast their votes through secret ballots. Before the voting commence the empty ballot-box was shown to the members and to representative of the press and the media, out of the 68 members who attended the motion 64 voted in favour of the motion and only 5 members voted against the motion, whereas one ballot-paper was found blank. There seems to be no irregularity or illegality in the proceedings of the session in question and we are of the firm view that the session was commenced and conducted in full conformity with this court's order dated 3-6-2004.
16. 'It is true that in terms of subsection (1) of section 24 SLGO, 2001 a member can move a recall motion against the Zila Nazim only where, in the opinion of such member, there are reasons to believe that the Zila Nazim is (i) is acting against the public policy or the interest of the people or
(ii) is being negligent or is responsible for loss of opportunity for improvement in governance and service to the people within the ambit of his responsibilities.
17. ' We have perused the contents of the impugned recall motion which contains as many as 13 allegations and found that the same to be good enough reasons/grounds for initiating a move for recalling a Zila Nazim in conformity with subsection (1) of section 24 SLGO, 2001. In support of the petitioner's claim that the motion was prompted by and was a product of a political deal between the two political parties, as noted earlier, the learned counsel had relied upon two news reports published in daily newspapers, "Kawish" and "Koshish" dated 21st April, 2004 and 23rd April, 2004 respectively (Annexures "D-1" and "D-2" to Petition No,D-891 of 2004, which contain certain alleged statements and purported information attributed to an unnamed reliable source. No other material was placed before us to substantiate the alleged deal. In its recent judgment, in the case of Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583 where the petitioner, in support of his case relied upon certain uncontroverted press statements of the President of Pakistan and of other State functionaries, the Honourable Supreme court, while dealing with the question of evidentiary value of press statements held as follows:-- "24. Basically to believe or disbelieve the press reports is a question of fact and before reaching a positive conclusion such facts need to be examined, keeping in view their intrinsic value. Many such statements are given only for political purposes, but the same cannot straight away be taken as proved nor at their own they create a legal right nor any evidentiary value can be attached to press reports, unless irrefutable evidence is brought on record for establishing their correctness . "
18. 'Following the above dictum we are constrained to hold that in the facts and circumstances of the case, as brought before us, no reliance can be placed on the above purported press reports and the same are of no avail to the petitioner Roshan Din Junejo. Even otherwise the petitioner has not even pleaded that the members of the Zila Council, who voted in favour of the impugned motion, moved by Shahid Thaheem and seconded by Liaquat Ali Shoro, were member of the two political parties or/were otherwise party to the alleged deal. Furthermore, the impugned motion was placed before the house and was voted upon, in pursuance of and in conformity with the order of this court, whereby Roshan Din's petition was disposed of. No appeal was filed against the said order which has attained finality, the propriety or legality of the impugned motion cannot, therefore, be brought into question before us. Even otherwise the determination of such question as to whether the impugned motion was a product of a political deal, or as to whether the allegation contained in the impugned motion were false or incorrect would as held by a Division Bench of Lahore High Court in the case of Zubair Ahmed and others v. Shahid Mirza 2004 M LD 1010, require recording of evidence and that this court while exercising constitutional jurisdiction is not supposed under the law to embark upon such exercise. Reliance in this regard may also be placed on the case of Muhammad Younus Khan and 12 others .v. Government of N.-W.F.P. Through Secretary, Food and Agriculture, Peshawar 1993 SCM R 618.
19. ' As noted above, in response to the impugned motion the Nazim, addressed the house at length and the members after hearing the Nazim, exercised their free will without any coercion or compulsion and in their wisdom found it appropriate to approve the motion which was carried by absolute majority.
20. ' As regards the objection raised by Mr. Abdul Mujeeb Pirzada, to the nomination of reappointed, officer of grade 21 and grade 20, as Chairman and member of the Election Authority, which nomination were made by the Government of Sindh, through Notification, dated 31-1-2004, we may observe that explanation to section 24, SLGO, and rule 3 of the Sindh Local Government (Election Authority) Rules, 2001, which provide for nomination of such Authority, do not require that the E offices of Chairman and Members of the Authority be held by a Judge of this court or by a District Judge. We have found no illegality in the impugned appointments/nominations. Even otherwise since as noted above, the order dated 3-6-2004, in terms whereof the Chairman of the Election Authority was directed to nominate a Presiding Officer to call and conduct the session of the Zila Council for consideration of and the voting on the impugned motion, has attained finality it is not open to the Zila Nazim to now challenge composition of the Authority in his attempt to discredit the impugned proceedings. Furthermore it has not even been alleged by the Zila Nazim as to how and in what manner he has been prejudiced by the impugned appointments.
21. ' Equally frivolous and untenable is the objection to the appointment of respondent No,4 as a Presiding Officer, who was so appointed in pursuance of order dated 3-6-2004, as respondent No,4, was the second most senior member amongst the Panel of the Presiding Officers elected by the Zila Council, and the Senior most Presiding Officer, as reported by the Naib Nazim, vide letter, dated 4-6-2004, was not available and had gone to Punjab. Furthermore, the petitioner has neither alleged that respondent No,4 was partisan in conducting the proceedings nor has it been pointed out as to how and in what manner the Zila Nazim was prejudice by the appointment of respondent No,4 as Presiding Officer.
22. 'The contention raised by Mr. Abdul Mujeeb Pirzada that since, according to him, the Zila Council is not the electorates of Zila Nazim, therefore, such council is not competent to recall the Zila Nazim, is bereft of any force and is based on a fallacious assumption. Contrary to the contention of the learned counsel, The Zila Nazims in Sindh were elected under the Sindh Local Government Election Ordinance, 2000, subsection (2) of section 10 whereof clearly prescribes that the electoral college for the elections of Zila Nazim and Naib Zila Nazim, Town Nazim and Naib Town Nazim or Taluka Nazim or Naib Taluka Nazim, shall be all the members of Union Council in the District, Town and City or a Taluka as the case may be, so it is factually incorrect to say that the Zila Council does not form electoral college for the election of Zila Nazim and/or that the Zila Nazim was not elected through the votes of the Zila Council and Union Councils falling within the Zila. The learned counsel, perhaps being conscious of the fact that a Division Bench of the Lahore High Court in the case of Muhammad Ramzan and 3 others v. Government of Pakistan through Secretary of Law, Justice and Parliamentary Affairs 2004 YLR 1856, has approved the above procedure of recall in case of Union Nazims and Naib Union Nazim, as envisaged by the provisions of sections 85 and 92 of the Punjab Local government Ordinance, 2001, and has declared the said two sections of the Punjab Local Government Ordinance, 2001 to be intra vires of the Constitution, has not challenged the vires of section 24 SLGO, 2001.
23. ' Even otherwise as held by the Honourable Supreme Court in the case of Ghulam. Mustafa Insari and 48 others v. Government of Punjab and others 2004 SCM R 1903. There does not seem to be much force in the contention that the Nazim and Naib Nazim could be impeached only by the electorate by whom, and the manner in which, they were elected and in no other manner and by no other forum or electoral college. There is no principle of universal application that only such forum or authority can remove or impeach an office holder which has appointed or elected him.
24. For instance, the President of Pakistan is elected by the both houses of Parliament and the members of all the four Provincial Assemblies under Article 41 of the Constitution whereas he can be removed or impeached under Article 47 by a resolution passed at the joint sitting of the Parliament by votes not less than 2/3rd of its total membership.
25. ' Similar views have been expressed by a Division Bench of the Lahore High Court in the case of Muhammad Ramzan (Supra) as follows:-- "18. Under general democratic principles, any elected representative loosing confidence of a body of members to whom he leads or where he works, has no right to remain in that office and on this principle and internal recall emanating out of the house of Union Council, has logic and sense behind it. In the case of Mian Mushtaq Ahmad v. Deputy Commissioner Sargodha 1982 SCM R 775 where no confidence motion was carried by 10 members out of 11, attending the meeting and expressing no confidence in the Chairman of the Town Committee, the Honourable Supreme Court refused to interfere on any reason including, as to whether such motion was permissible before the expiry of the 6 months, the time provided by section 31 of the Punjab Local Government Ordinance, 1979. A similar view was expressed by this court in the case of Muhammad Yaseen v. James Masih and 8 others PLD 1982 Lah.
26. 217."
27. ' The case of Khawaja Ahmed (supra) relied upon by the petitioner is clearly distinguishable from the facts and circumstances of the present case as in that case admittedly the proposer of the recall motion did not utter a single word in support of the recall motion, whereas the secondery of the motion not only disowned the motion but categorically stated that the allegations levelled against the Nazim contained in the motion were false and baseless. The seconder of the motion further disclosed before the house the background and circumstances which compelled him to support the motion and stated before the house that he was apprehending danger to his life and further that the recall motion was in fact a device to deprive the house of a nice person through force. The Honourable Supreme Court after perusing the speech of the seconder in the house came to the conclusion that, in fact no opinion was formulated by the proposer and seconder which in fact was based on extraneous circumstances such as inducement, coercion and registration of false and fake cases and further that the speech of the seconder reflects a clear picture of the compelling circumstances, which forced him to support the recall motion. The other fact which weighed with the apex Court in holding that the entire exercise initiated and conducted to recall the Nazim was mala fide was that; after approval of the recall motion by the Town Council and before it could be approved by the Union Council as required by section 63 of Punjab Ordinance. The Election Authority, in complete derogation of law, through a notification restrained the Nazim from exercising any of his functions as Nazim, till the conduct of the voting on the recall motion by the members of the Union Council and as a consequential measure, the provisional Government on the same date, authorized the District Coordination Officer to perform the functions of Nazim till further orders.
28. ' We have already dealt with the various objections, pertaining to the Sindh Local Government (Election Authority) Rules, 2004, as raised by Mr. Mujeeb Pirzada in the present proceedings, in C.P.
29. No,D-733 of 2004, and had repelled all such objections, except those pertaining to rule 19 of said rules, which were declared as ultra vires of SLGO, 2001, which rule hardly has any bearing on the impugned proceedings. We are, for the reasons recorded in the aforesaid case, not persuaded to take a contrary view.
30. ' In consequence of the above discussion, we are of the firm view that the entire proceedings pertaining to the internal recall motion against the Zila Nazim Sanghar, commencing with the conception of the impugned motion and culminating into its approval by the Zila Council in its session held on 12-6-2004, were lawful and were in conformity with provisions of SLGO, 2001 and with the mandate of this Court order dated 3-6-2004, passed in C.P. No,D-591 of 2004. We, therefore, direct the Election Authority Sindh, to cause a vote to be cast by the members of the union councils in District Sanghar as required by subsection (4) of section 24 of SLGO, 2001, without any further delay. The petitions stand disposed of along with the listed applications.