' HASNAT AHMAD KHAN, J:--Through this writ petition the legality and validity of the order dated 11- 12-2007 passed by an Election Tribunal Punjab, Lahore High Court, Lahore, whereby the appeal filed by the petitioner against the rejection of his nomination papers by the Returning Officer, PP-115, Gujrat-VIII was dismissed vide order dated 3-12-2007, has been called into question.
2. Succinctly, the facts giving rise to the instant petition are that the petitioner being an aspirant to become a member of Punjab Provincial Assembly submitted his nomination papers for constituency PP-115, Gujrat-VIII. However, respondent No,3, a rival candidate, who is a real brother of the petitioner, filed objections to the candidature of the petitioner on the ground that the petitioner was convicted and sentenced to death on six counts in case F.I.R. No,137/1998 dated 1-3-1998 registered at Police Station Civil Lines, Gujrat, in respect of offences under sections 302/324/148/149, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997, vide judgment dated 1-5-1999. According to respondent No,3, though the petitioner was acquitted in the said case vide judgment dated 23- 6-2003 passed by this Court, on the basis of a compromise, yet it did not absolve him of the sin committed by him. It was further claimed by the said objector that Abid Raza, petitioner, remained involved in Anti-State activities, which bar him to be elected as a Member of the Parliament under Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan, 1973, read with section 99 of the Representation of the People Act, 1976.
3. After hearing both the parties, respondent No,1, i,e,, the Returning Officer, proceeded to reject the nomination papers of the petitioner vide order dated 3-12-2007. Feeling aggrieved and dissatisfied, the petitioner challenged the said order before the learned Election Tribunal, constituted in terms of section 14(5) of The Representation of the People Act, 1976, vide Elections Appeal No,84-R/2007, which, however, was dismissed vide impugned order dated 11-12-2007. Hence this constitutional petition.
4. The instant petition came up for hearing before this Court on 18-12-2007. On the said date, after hearing the learned counsel for the petitioner, respondent No,3 was noticed. On 21-1-2008 learned counsel for the petitioner while relying on the case titled Ahsanullah Prince etc. v. District Returning Officer, Gujrat etc. (2006 PSC 256) submitted that before giving any weight to the notification under section 11-EE of the Anti-Terrorism Act., 1997, issued by the Home Department, the Returning Officer as well as the learned Election Tribunal should have gone through the relevant record but said exercise was never done. In view of the said contention, we called for the relevant record, which has been produced before us today.
5. In support of this petition learned counsel for the petitioner has contended that the Returning Officer illegally, and unlawfully rejected the nomination papers filed by the petitioner who does not suffer from any disqualification, prescribed under the law, to contest the forthcoming general elections; that the learned Election Tribunal also failed to appreciate the facts and the law in its true perspective; that both the said forums faired to consider that after having been acquitted in a murder case on the basis of a compromise, the petitioner did not carry any stigma disqualifying him to contest the elections; that the acquittal on the basis of a compromise by all means amounts to a clean acquittal for all intents and purposes; that the learned Election Tribunal committed illegality while relying upon the case of Ch. Sabir Hussain v. Mirza Mushtaq Ahmad and 3 others (2001 YLR 2454) which was distinguishable; that while treating the petitioner as a terrorist the learned Election Tribunal failed to examine the record; that the Home Department had initiated the proceedings under Anti-Terrorism Act, 1997 for declaring the petitioner as terrorist in the year 2005 but after joining the ruling party the matter was hushed up by the said Department; that the appeal filed by the petitioner against the notification placing the name of the petitioner in Fourth Schedule under section 11-EE of the Anti-Terrorism Act, 1997 was not decided with the statutory period of thirty days; that after declaring the petitioner as terrorist no coercive measures were initiated against him, as, in the meanwhile, he had joined the ruling party but after deserting the same the matter has mala finely been revived and repaginated to victimize the petitioner; that the latest notice issued to the petitioner under the provisions of the Anti-Terrorism Act, 1997 tantamount to political victimization of the petitioner for deserting P.M L-Q; that the impugned orders are violative of law laid down by the Hon'ble Supreme Court in the case of Ahsanullah Prince etc. v. District Returning Officer, Gujrat etc. (2006 PSC 256). On the dint of said submissions learned counsel has prayed for declaring the impugned orders being illegal and without lawful authority.
6. Conversely, the learned counsel appearing on behalf of respondent No,3 as well as the learned A.A.-G. Have strenuously opposed this petition and supported the impugned orders. According to them, there is sufficient material on the record to show that the petitioner belongs to a militant proscribed outfit Sipa-e-Sahaba/ Lashkar-e-Jhangwi; that he is involved in anti-social activities; that the scope of the writ petition is very limited and while exercising the jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, this Court cannot declare the proceedings initiated against the petitioner under section 11-EE of the Anti-Terrorism Act, 1997 as illegal and without jurisdiction; that though in the murder case the petitioner was acquitted on the basis of compromise but it cannot be assumed that he has been absolved of his responsibility of a sin as heinous as the killing of a human being.
7. After hearing the respective learned counsel for the parties, we have observed that the petitioner has been disqualified and barred from contesting the forthcoming general elections on two fold grounds, firstly, he was disqualified on the ground that though he was acquitted in a murder case on the basis of a compromise with the legal heirs of the deceased but the forgiveness by the legal heirs of the deceased did not provide an excuse that the major sin committed by him had been forgiven by Almighty Allah. Secondly, the petitioner being a member of a proscribed organization, Sipah-e-Sahaba/Lashkar-e-Jhangawi and being a terrorist could not be allowed to contest the elections. As far as the first ground is concerned, the arguments advanced by the learned counsel for the petitioner hold some water. According to us respondent No,1 i,e, the Returning Officer committed an illegality while placing reliance on the case of Ch Sabir Hussain v. Mirza Mushtaq Ahmad and 3 others (2001 YLR 2454), inasmuch as it was not appreciated that in said case the candidate who was disqualified to contest the elections, held under the Punjab Local Government Ordinance, 2000, was not acquitted on the charge of murder rather his conviction from section 302, P.P.C. Was converted into one under section 304 Part-I of P.P.C. And the sentence was reduced to rigorous imprisonment for a period of ten years. While in the case in hand the petitioner was acquitted of the charge on the basis of a compromise. After getting clean acquittal, though on the basis of compromise according to us, the petitioner does not carry any stigma, which may disqualify him from contesting the elections.
8. Besides the word "acquittal" has not been defined in the Criminal Procedure Code. Therefore, it would have its ordinary meaning According to Blacks Law Dictionary (sixth Edition) the term/word "acquittal" in criminal law has been defined as under:- "The legal and formal certificate of the innocence of a person who has been charged with crime; a deliverance or setting free a person from a charge of guilt; finding of not guilty. Also, one legally acquitted by a judgment rendered otherwise than in pursuance of a verdict, as where he is discharged by a Magistrate because of the insufficiency of the evidence, or the B indictment is dismissed by the Court or a No,1 Pros. Entered. Or, it may occur even though the question of guilt or innocence has never been submitted to a jury, as where a defendant having been held under an indictment or information, is discharged because not brought to trial within the time provided by status. Acquittal in fact are those which take place when the jury, upon trial, finds a verdict of not guilty.
' Acquittals in law are those which take place by mere operation of law; as where a man has been charged merely as a accessory, and the principal has been acquitted.
9. To further understand the implication of the acquittal on the basis of compromise, one can advert to section 345(6), Cr. P.C., which reads as under:-- "the composition of an offence under this section shall have the effect of acquittal of the accused with whom the offence has been compounded."
9. In the absence of any other interpretation, the acquittal is acquittal, whether it is on the basis of a declaration by a court on the conclusion of the trial that someone is not guilty of the charge or on the basis of compromise under section 345(6), Cr.P.C. It was so held by this Court in a case titled Glut lam Haider alias Gani v. The State (2003 PCr.LJ 12).
10. The Hon'ble Supreme Court on an occasion of interpretation of the term "acquittal" in case titled Dr. Muhammad Islam v. Government of N.-W.F.P. Through Secretary, Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others (1998 SCMR 1993) held as under:-- "We are inclined to uphold the above view inasmuch as all acquittals even if these are based on benefit of doubt are honourable for the reasons that the prosecution has not succeeded to prove their cases against the accused on the strength of evidence of unimpeachable character. It may be noted that there are cases in which the judgments are recorded on the basis of compromise between the parties and the accused are acquitted in consequence thereof. What shall be the nature of such acquittals? All acquittals are certainly honorable. There can be no acquittals, which may be said to be dishonorable. The law has not drawn any distinction between these types of acquittals." Underlining is ours"
In the said backdrop we are inclined to hold that the petitioner could not have been thrown out of election ring just on the ground that his acquittal in murder case was not on merits rather it was result of a compromise.
12. We have given anxious thoughts to the second prong/ground of the impugned orders whereby the petitioner has been declared disqualified to contest the elections. To satisfy ourselves, as to whether there was sufficient material on the record, maintained by the Home Department, to enlist the petitioner in 4th Schedule under section 11-EE, Anti-Terrorism Act, 1997, we called for the relevant record on the basis of which he was so enlisted/declared. The said record reveals that the proceedings against the petitioner were initiated under the relevant provision of Anti-Terrorism Act, 1997 and his name was included in the 4th Schedule maintained under the said law. Syed Nayyar Abbas Rizvi, the learned A.A.-G. Has placed on the record of this petition, an order dated 13-12-2005 issued by Home Department whereby the name of the petitioner along with some others was given to be notified in the 4th Schedule under section 11-EE.
' It is admitted position that the petitioner was fully aware of the said order/proceedings. It is also admitted that he challenged the same by filing an appeal provided under section 11-EE (4) of Act No, XXVII of 1997. The case of the petitioner is that the said appeal was not decided malafidely within the statutory period of thirty days, therefore, after the lapse of more than two years of said notification, the same could not be legally made a dumping ground for the petitioner.
12. The petitioner has further claimed that the department slept over for more than two years over the matter and recently issued fresh letter/notice dated 27-11-2007 to the petitioner to politically victimize him. While relying on the case of Abdul Rauf v. Chief Commissioner Islamabad and 5 others (PLD 2006 Lahore 111,) learned counsel for the petitioner has contended that this Court after examining the record can set aside the order of enlisting the petitioner in 4th Schedule but we are unable to see eye to eye with the learned counsel for the petitioner inasmuch as in the case relied upon by the learned counsel for the petitioner the order of detention of the writ petitioner there in under section 11-EEE of the Anti-Terrorism Act, 1997 was challenged. Therefore, the High Court could legally enter into the ground on the basis of which said petitioner was proceeded against and detained under the said provision of law but here the order of declaring the petitioner as a terrorist vide order dated 13-12-2005 which has been produced before us today has not been called into question and the matter before us relates to the acceptance or rejection of the nomination papers submitted by the petitioner. Similarly the petitioner cannot legally take advantage of the case of Ahsanullah Prince etc. v. District Returning Officer, Gujrat etc. (2006 PSC 256) as the facts of the said case were quite distinguishable. In said case only a day earlier from the date of scrutiny of nomination papers of the said petitioner who was contesting elections held under the Punjab Local Government Ordinance, 2001 a police officer entered a daily diary and on the basis of the said daily diary he was declared as a member of a banned outfit organization Lashkar-eTayyaba. In the said background the nomination papers of the said candidate were accepted by the Hon'ble Supreme Court but in the case in hand it cannot be said that while declaring the petitioner as terrorist the Home Department exercised jurisdiction in a colorable manner, inasmuch as, the name of the petitioner was included in the aforementioned schedule in December, 2005, i,e, much before the holding of the forthcoming elections. Admittedly, the petitioner did file an appeal against the said order which was not decided within the statutory time, however, that does not mean that the filing of said appeal, without getting operation of said order/notification suspended from any court of law, would automatically result in setting aside the order/notification dated 13-12-2005 issued by the Government of Punjab, Home Department. Subsection 4 of section 11-EE does not provide any consequence for not deciding the appeal filed under the said provision of law within thirty days, therefore, the said provision is not mandatory, rather it is directory in nature. In this regard, we are pinning out faith on the cases of Abdul Sattar and 2 others v. Additional Commissioner, Goraya District Guiranwala and 4 others (PLD 1989 Lahore 384). It is also noteworthy that the petitioner did not agitate against the delinquency/procrastination of the department in deciding his appeal by way of filing constitutional petition. He also remained dormant and did not bother to get himself cleared.
14. We have gone through the relevant record, which, prima facie, does indicate that the action of the Home Department, taken against the petitioner, cannot be regarded as baseless.
15. For what has been stated above, we do not see any illegality, irregularity or jurisdictional error in the impugned orders, therefore, the writ petition is found to be devoid of any force and, accordingly dismissed.