' EJAZ AFZAL: KHAN, J.---Inauguration of Sports Complex at Lakki Marwat by Mr. Anwar Kamal Khan, M.P.A., weighed heavy on the mind of the former Chief Minister. He perhaps wanted to inaugurate it himself. On being informed about the, said inauguration, he directed the D.C.O. To remove the plaque bearing the name of the said M.P.A. It was accordingly removed. People of the area protested against the said removal. They allegedly under the leadership of the petitioner not only took out a procession but also made an effort to reaffix it. This culminated in an action against the petitioner. A commission of two members was constituted by the Chief Minister to submit a detailed report within three days. The Chief Minister on receipt of the report suspended the petitioner. The petitioner filed the instant Writ Petition. He also asked for the issuance of an interim order restraining the respondents from taking any adverse action against him. It was accordingly passed on 8-6-2006 and extended on 13-6-2006. On 26-6-2006 the petition was admitted for regular hearing. Through in response to the request of the learned counsel for the petitioner for extension of the interim order, the Court responded in the affirmative, but did not mention anything of the sort in the order sheet. The respondents by making use of the omission passed the notification removing the petitioner. Civil Miscellaneous NO,39 of 2006 was filed for initiating contempt proceeding against the respondents therein. While Civil Miscellaneous NO,390 of 2006 was filed with an additional prayed catering to the situation emerging in the wake of the order for removal. Civil Miscellaneous NO,391 of 2006 was also moved for seeking annulment of the notification removing the petitioner. After hearing the arguments on that civil miscellaneous the notification removing the petitioner was set at naught. This, case was heard on many occasions but it could not witness conclusion either due to the strike of the lawyers or due to the non- availability of his lordship Mr. Justice Ijaz-ul-Hassan on account of summer vacation. Today, some how or the other, the case was reheard.
2. Learned counsel appearing on behalf of the petitioner by referring to section 2(xxa) of the Local Government Ordnance, 2001 contended that when misconduct means transgression of prescribed Code of Conduct, violation of law or lawful directions or order, gross negligence or an act involving wrongful gain, petitioner could not be held guilty of misconduct without proving any one of them.
The learned counsel by referring to the evidence on the record contended that where none of the witnesses examined before the Commission has stated that the Chief Minister ever desired to inaugurate the Sports Complex himself or communicated any directive in this behalf to the petitioner, inauguration of the Complex by the M.P.A. Would not constitute a misconduct. He next contended that where there is no evidence on the record to show that it was the petitioner who reaffixed the plaque, nothing could be said to have been proved against him. Even if it be otherwise, the learned counsel urged in the alternative, he could not be held guilty when it is not established on the record that directive of the Chief Minister restraining him from reaffixing it was communicated to him.
3. As against that, the learned A.A.-G., appearing on behalf of the respondents, contended that correspondence on the record and finding of the commission leave no doubt that the petitioner maneuvered inauguration of the Sports Complex by Mr. Anwar Kamal Khan, M.P.A. Against the directive of the Chief Minister. It is taken for granted, the learned A.A.-G. Added, that the Sports Complex was to be inaugurated by the Chief Minister, as the project was partially funded by the Provincial Government and partially by the Central Government. The petitioner, the learned A.A.-G.
Further submitted, created law and order situation by exciting the people and leading procession in protest against the removal of the plaque bearing the name of the M.P.A. The petitioner, the learned A.A.-G. Concluded, was rightly found guilty of misconduct by the commission, when it is writ large on the face of the record that he defied the directive of the Chief .Minister by reaffixing the plaque.
4. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
5. The charges levelled against the petitioner found expression in the following issues:- "Whether the Tehsil Nazim, T.M.A. Lakki Marwat,
(1) in flagrant violation of the orders of the Chief Executive and the Provincial Government, forcibly reinstalled the foundation stone of the Sport Complex, District Lakki Marwat, that had earlier been removed by the District Coordination Officer, Lakki Marwat, in the compliance with the directives of the Chief Executive N.-W.F.P,
(2) took out and led the procession against the District Coordination Officer, Lakki Marwat,
(3) ordered the law-enforcing agencies to protect his unlawful act of reinstallation of the foundation stone of the Sports Complex,
(4) created law and order situation in District Lakki Marwat,
(5) unlawfully interfered in the business of the Provincial Government,
(6) is guilty of misconduct within the meaning of clause (xxa) of section 2 of N.-W.F.P. Local Government Ordinance, 2001:"
6. While dealing with issue NO,1 we noticed that inauguration of the Sports Complex by Mr. Anwar Kamal Khan M.P.A., was not in issue before the Commission notwithstanding it was the basic cause of the entire episode. Even removal of the plaque of his name was not in issue before the Commission. It was its re-affixation against the directive of the Chief Minister, which created a storm in the teacup. But how could the petitioner be held guilty of misconduct, when the directive of the Chief Minister restraining him from reaffixing the plaque removed was never communicated to him. Though the D.C.O. Stated in his statement that he communicated the directive to the petitioner through Police Officers but none of them while being examined before the Commission stated anything about it. Violation of the directive of the Chief Minister cannot be said to have been proved against the petitioner where its communication to the latter has not been established on the record.
7. Granted that the people including the petitioner felt excited and even enraged at the removal of the plaque in the name of their MPA and took out a procession to register their protest against it, but it being an integral part of political process is quite natural and spontaneous. Expression of such reaction cannot be brought at par with creation of law and order situation. Especially when it ended peacefully without causing any casualty or carnage. It was a healthy and wholesome activity. It being cathartic tended to given vent to the grievance of the people caused by the uncalled for removal of the plaque. It cannot be termed as unlawful interference with the business of the Provincial Government by any stretch of imagination, that too, when it was stirred by an act unbecoming of the person who is on the top of its pyramid. We do not agree with the learned A.A.- G. That it is taken for granted that the Sports Complex was to be inaugurated by the Chief Minister, as the project was partially founded by the Provincial Government. For, the fact that the project was partially or wholly founded by the Provincial Government would not entitle the Chief Minister, to inaugurate it as of right; order the removal of the plaque if and when it is inaugurated by a lesser being or take action against an inmate or office holder of the area, if and when he registers his protest or takes out a procession to voice his grievance against the act of its removal. The Chief Minister or any other incumbent should not forget that he is at the helm of affairs in the Government of the Province because of democracy--a system advocating equality, tolerance, mutual accommodation and maximum participation of maximum people in running the Government. Therefore, there was hardly an occasion for the Chief Minister to be enrapd on the inauguration of the Complex by a person other than him and create a dust storm on such a peripheral thing, which is non-issue on the face of it from every angle of vision.
8. When seen in this background, the finding of the Commission, which is based on no evidence, cannot be maintained. It is, too, settled to be reiterated that the very condition for the conferment of jurisdiction on a Tribunal or any other forum exercising judicial or quasi juridical authority is that it should decide a lis before it according to law. And it is an essential requirement of law that its finding be based on proper appraisal of evidence. It would not deserve any other fate but quashment, when it is based on misreading or non-reading of evidence, erroneous assumptions of law and facts or no evidence as in this case. In the case of Anisminic Ltd. v. Foreign Compensation Commission Lord Denning who was the pioneer of this principle held as under:--- "I would suggest that this distinction should now be discarded. The High Court has, and should have, jurisdiction to control the proceedings of inferior Courts and Tribunals by way of judicial review. When they go wrong in law, the High Court should have power to put them right. Not only in the instant case to do justice to the complainant. But also so as to secure that all Courts and Tribunals, when faced with the same point of law, should decide it in the same way. It is intolerable that a citizen's rights in point of law should depend on which Judge tries his case, or in what Court it is heard. The way to get things right is to hold thus: No Court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it."
9. In the case of Utility Stores Corporation of Pakistan Limited v.Punjab Labour Appellate Tribunal and others PLD 1987 SC 447, the Honourable Supreme Court held as under:- "It is not right to say that the Tribunal which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it "rightly or wrongly" because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the Tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction."
10. In the case of Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others 2001 SCM R 338, the Honourable Supreme Court after considering a string of its judgments held as under:- "There is no cavil with the proposition that ordinarily the High Court in its Constitutional jurisdiction would not undertake to reappraise the evidence in rent matters to disturb the finding of facts but it would certainly interfere if such findings are found to be based on non-reading or misreading of evidence, erroneous assumptions of facts, misapplication of law, excess or abuse of jurisdiction and arbitrary exercise of powers, In appropriate cases of special jurisdiction, where the District Court is the final Appellate Court, if it reverse the finding of the trial Court on the grounds not supported by material on record, the High Court can interfere with it by issuing writ of certiorari to correct the wrong committed by the Appellate Authority."
11. In the case of Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24, the Honourable Supreme Court while dealing with a similar aspect of the case held as under:- "The scope of interference in the High Court is, therefore, limited to the inquiry whether the Tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the findings recorded by the Tribunal. Cases of no evidence, bad faith, misdirection or failure to follow judicial Procedure, etc. Are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the Tribunal on this ground.
' Where the High Court is of opinion that there is no evidence proper to be considered by the inferior Tribunal in support of some point material to the conviction or order, certiorari will be granted."
12. In the case of Assistant Collector v. Al-Razak Synthetic (Pvt.) Ltd. 1988 SCMR 2514, the Honourable Supreme Court reaffirmed this view in the following words:- "In our view, it was not proper on the part of the learned Judges of the Division Bench of the High Court to have decided the above technical questions without getting first the decision of the Central Board of Revenue on the basis of the material which the parties might have produced before it in support of their claims. The High Court generally does not investigate disputed questions of fact in exercise of its Constitutional jurisdiction. However, it can interfere with a finding of fact, if it is founded on no evidence or is contrary to the evidence on record or the inferences drawn therefrom are not in accordance with law."
13. In the case of Mst. Ulfat Shaheen v. Akram Khan and 2 others 2006 CLC 51 (Peshawar), we while dealing with a similar situation held as under:-- "Now we are to see whether the learned Additional District Judge has based his finding on an evidence as could be looked into under the law. A perusal of the impugned judgment would reveal that the learned Judge while deciding this case was influenced by the prescriptions of psychiatrist and drew inferences therefrom without realizing that the prescriptions were neither produced in original nor their author was examined to prove them in accordance with the provisions of the law of evidence. He could not have taken into account any of those prescriptions without proper proof.
Now the question is whether it is an error of law? We have no doubt in our mind that it is and it is an error of law which will entitle this Court to interfere in the exercise of its constitutional jurisdiction if a finding of fact is based on no evidence or is contrary to evidence on record, or the inferences drawn therefrom are not in accordance with law."
14. Having considered in the light of the foregoing discussion and dicta quoted above, we allow the writ petition along with Civil Miscellaneous NO,390 of 2006, set aside the entire proceeding including the impugned orders and reinstate the petitioner. Civil Miscellaneous NO,39 of 2006 for initiating contempt proceeding is dismissed as not pressed.