' This writ petition relates to scrutiny of nomination papers of respondent No,1 who is a candidate of impending bye-election of the National Assembly scheduled to take place on 26-6-2008. It may also be pointed out that respondent had also filed nomination papers to participate in General Elections from the same constituency which was held on 18-2-2008. The nomination papers of respondent No,1 were rejected by the Returning Officer vide his order dated 3-122-2007. Respondent No,1 did not choose to file an appeal and instead filed an application before the Chief Election Commissioner challenging the order of learned Returning Officer which was rejected by the Chief Election Commissioner on 17-12-2007
2. As noted above, respondent No,1 filed nomination papers to participate in the coming bye- election. An objection was filed by the petitioner contending that respondent No,1 is disqualified as it was already held in the order of Returning Officer dated 3-12-2007 as mentioned above. However, objection of the petitioner was dismissed by the learned Returning Officer vide his order dated 15- 5-2008. Against the said order an appeal was filed before the Tribunal consisting of two learned Judges of this Court. One learned Judge accepted the appeal, but another learned Judge of this Court dismissed the same and upheld the order of the learned Returning Officer vide their order dated 31-5-2008. Our learned brother Hafiz Tariq Naseem, J. Concluded as under:-- "Accordingly, the appeals having no force, are dismissed and the impugned orders passed by the Returning Officers whereby Mian Nawaz Sharif and Mian Shahbaz Shairf were declared qualified to contest election are upheld."
3. In the above background the matter was referred to the learned Election Commissioner of Pakistan. An order was passed by Secretary, of the Election C3mmission, Kanwar Muhammad Dilshad, dated 1-6-2008, which reads as under:-- "The file (Part-1 & part-II) was received in this office today at 10-45 a.m. From the office of the Registrar, Lahore High Court, Lahore vide letter No,887-A.ARJ/ETP, dated 31-5-2008 through Mr. Arif Hussain, Assistant of Election Tribunal Branch of that Court. The matter was examined on file and placed before the Hon'ble Chief Election Commissioner of Pakistan, who has been pleased to observe as under:- "The proposal highlighted in para. 18/ante is approved as it is squarely in line with the mandatory provision of section 14(6) of the Representation of the People Act, 1976 that an appeal not disposed of within the period specified in the Election Schedule shall be deemed to have been rejected. It is scarcely necessary to mention that according to the Election Schedule notified on 7th May, 2008 the last date for deciding appeals against the acceptance or .Rejection of nomination papers by the Appellate Tribunal was 31st May, 2008.".
2. No further action can be taken in the matter in view of the provisions of section 14(6) of the Representation of the People Act, 1976. The original file (Part-I & Part-II) pertaining to the above cited appeal is returned herewith."
4. The learned counsel for the petitioner has alleged the above mentioned three orders in this writ petition i,e, order dated 15-5-2008, order dated 31-5-2008 and order dated 1-6-2008.
5. According to the learned counsel for, the petitioner, respondent No,1 was convicted and sentenced to life imprisonment by a trial Court and his appeal was also dismissed by the learned High Court, Sindh vide its judgment dated 30-10-2000. Respondent No,1 was also convicted and sentenced by anAccountability Court, Attock Fort, vide judgment dated 22-7-2000. Para 54 of the judgment of the learned Accountability Court reads as under:-- "I have already held accused Muhammad Nawaz Sharif guilty under section 9(a)(v) of NAB Ordinance. He is hereby convicted under section 10 read with section 9(a)(v) of the NAB Ordinance is sentenced to R.I. For 14 years and a fine of Rs,20,00,000,000. In default of payment of fine, he shall undergo further R.I. For a period of three years. He stands disqualified for 21 years for seeking or from being elected, chosen, appointed or nominated as member or representative of any public or any statutory or local authority of the Government of Pakistan."
6. The learned counsel for the petitioner also referred to para.111 of PLD 2005 SC 869 (Syed Zafar Ali Shah v. General Pervez. Musharraf etc.) to highlight corruption charges against respondent No,1.
' The learned counsel also contended that respondent No,1 is continuously committing offence of contempt against the judiciary of Pakistan which also reflects in his statements. In this regard he has referred to application of respondent No,1 dated 7-12-2007 addressed to the learned Chief Election Commissioner signed by respondent No,1 himself. The relevant portion reads as under:- "Be that as it may, it is unfortunate that I am being denied my normal remedy to assail the order of rejection of my nomination papers, inasmuch as the Election Tribunal constituted by you and approved by President Musharaff comprises of Judges of the High Court who have taken oath under the PCO and whose status as such is seriously flawed."
7. According to the learned counsel there was an agreement/ undertaking between respondent No,1 and some foreign statesmen which was not honored by respondent No,1. This fact was published in foreign as well as local media. The learned counsel has given the details in Annexure- M, etc. The learned counsel also contended that respondent No,1 is a defaulter and in this connection refers to details in Annexure-N. According to the learned counsel, respondent No,1 had sworn a false declaration attached with nomination papers in view of the above facts.
8. In support of his contentions, the learned counsel referred to the order of the learned. Returning Officer Raja Qamar Zaman dated 3-12-2007, whereby respondent No,1 was declared disqualified and according to the learned counsel that order was never set aside, hence had attained finality.
The learned counsel also referred to the impugned judgment of the learned Tribunal passed by our learned brother Hafiz Tariq Naseem, J. Wherein it had been observed as under:-- "On the face of it, the arguments of the learned counsel for the appellants in this respect seems convincing but this Court/Tribunal while deciding the present controversy should not take it a matter of personal prestige rather, the foremost duty bestowed on the Court/Tribunal is to do justice keeping aside the personal allegations and annoyance and in this respect I am guided by a verse of Para Six, Surah Almaida.
9. According to the learned counsel, the allegation against respondent No,1 is to defame and to cause disrespect and contempt to the judiciary as an Institution. The allegation of causing defame etc. Was not levelled as far as any individual Hon'ble Judge of this Court or any other Judge is concerned. According to the learned counsel the learned Member of the Tribunal himself agreed that apparently arguments of the learned counsel for the appellant seemed convincing as far a allegations to cause contempt against the judiciary is concerned.
10. According to the learned counsel for the petitioner the appeal of the petitioner was not disposed of in terms of subsection (5) of section 14 of the Representation of the People Act, 1976 as it was a split decision, therefore, subsection (6) of section 14 of the Act, 1976 was not attracted. In support of his contention, the learned counsel referred to Articles 219 and 222 of the Constitution of Pakistan.
He also referred to Articles 62, 63 of the Constitution of Pakistan to contend that respondent No,1 was not qualified and still is not qualified to contest the upcoming bye-election. He also referred to section 99(f)(g) of the Representation of the People Act, 1976.
11. Order-sheet of this petition unveils that on 5-6-2008; notices were directed to be issued to all the respondents by all modes of service for 18-6-2008. Notice was also issued in C.M.A. No,2 of 2008.
Order of 18-6-2008, reads as under:-- "As per report of Process Server duly supported by an affidavit which transpired that copy of notice has been received by a Gunman of respondent No,1 after establishing telephonic contact with him in presence of Process Server, which amounts that the service of respondent No,1 has been effected in accordance with law. Even otherwise, Mian Murghoob Ahmad, Secretary General of Muslim League (I4awaz) filed an application (C.M. No,1307 of 2008) and Maher Zafar Iqbal, who is proposer of respondent No,1 also filed an application (C.M. No, 1360 of 2008), which clearly depicts that it is within the knowledge of respondent No,1 about the filing of instant writ petition whereby acceptance of his nomination papers have been challenged, therefore, his service is complete.
Nobody has entered appearance on his behalf therefore, he is proceeded exported.
' In view of the above situation, learned counsel for the petitioner, the learned Advocate-General and learned Attorney General are directed to appear before this. Court and add rets arguments on 20-6-2008."
12. As noted above, despite notices respondent No,1 did not opt to appear or to arrange representation so as to refute the allegations and the contents of the application dated 7-12-2007 submitted by the respondent to the Chief Election Commissioner. Instead a number of civil miscellaneous applications were filed on behalf of different persons i,e, C.M. Nos. 1305, 1306, 1307, 1308 of 2008, 1309 and 1317 o 2008, Order of this Court dated 20-6-2008 reads as under: "In view of our detailed order dated 18-6-2008 (announced on 20-6-2008) passed on C.M. Nos.1260 and 1276 of 2008 in Writ Petition No,6470 of 2008, these applications, filed under Order I, Rule 10, C.P.C., are hereby dismissed."
13. Today upon reconstitution of the Bench the case was fixed before us; no one has entered appearance on behalf of respondent No,1 like the previous dates of hearing. Thus, we have no other alternative except to decide this writ petition considering the arguments of the learned counsel for the petitioner, the learned Deputy Attorney as well as material available on the record.
14. The learned Deputy Attorney General, Raja Abdul Rehman appeared on behalf of Attorney General and supported the impugned order.
15. The relevant portion of the impugned order of the learned Returning Officer NA, 123, Lahore reads as under:-- "The objection petitioner and his learned counsel also remained present today before this office but no document in support of his objection petition has been submitted. Even the earlier order passed by the Returning Officer was not produced. No document regarding conviction of the candidate was produced before this office. Without any documentary evidence or supporting material, I am unable to hold the candidate as disqualified to contest the bye-elections."
16. We are of the view that this finding of the learned Returning Officer is not correct in the presence of the order of Returning Officer dated 3-12-2007 earlier passed at the time of General Election which is , available on the file as Annexure '0'; order of Chief Election Commissioner dated 17-12- 2007 available on record Annexure-`1: and application of respondent No,1 himself dated 7-12-2007 available on the file as Annexure-lc. There was no justification for the Returning Officer to observe that no document regarding conviction of the candidate (respondent No,1) was produced before the learned Returning Officer. The order of conviction passed by Accountability Court, Attock Fort, in reference 2 of 2000 dated 20-7-2007 is available on record as Annexure-T, detail of which has already been given. Our learned brother Muhammad Akram Qureshi, J., the learned Member of the Tribunal, had held that the order of the learned Returning Officer was not in consonance with the provision of the law, thus, his lordship had set aside the orders of the learned Returning Officer and had declared respondent No,1 to be disqualified to contest the bye-election. Our learned brother Hafiz Tariq Naseem, J. Held that:"
"On the face of it, the arguments of the learned counsel for the appellants in this respect seems convincing but this Court/Tribunal while deciding the present controversy should not take it a matter of personal prestige rather, the foremost duty bestowed on the Court/Tribunal is to do justice keeping aside the personal allegations and annoyance and in this respect I am guided by a verse of Para Six, Surah Almaida."
17. So even our learned brother Hafiz Tariq Naseem, J. Was convinced that allegations levelled against respondent No,1, particularly, maligning, defaming and abusing the judiciary, were convincing but he decided to overlook the same by not taking it a matter of. Personal prestige. We agree with the learned counsel for the petitioner that maligning, defaming and abusing of judiciary is not targeted by the respondent against any individual rather it is against the whole Institution which is also obvious from respondent No, l's letter addressed to the Chief Election Commissioner dated 7-12-2007 (Annexure-K). Order of Chief Election Commissioner dated 1-6-2008, does not appear to be an appropriate order in view of provisions of section 14(5) to be read with provisions of section 11(a) of the Representation of the People Act, 1976.
18. We are in agreement with the learned counsel for the petitioner that Presidential Order under Article 45 of the Constitution of the Islamic Republic of Pakistan, 1973 does not exonerate the respondent No,1 from the sentence and conviction recorded by the Court' of competent jurisdiction, particularly, when the respondent has failed to produce the Presidential Order. It has been held in case reported as Naghma Mushtaq v. Election Tribunal Punjab Lahore and two others, PLD 2008 (Full Bench) Lahore 149 that during the process of scrutiny, if any objection is raised against any candidate on the basis of lack of required qualifications to contest elections, burden to prove such qualifications is heavier on the candidate than the objector.
19. In view of the above discussion, we hold that respondent No,1 is a convict in view of the judgment of Accountability Court, in reference No,2 of 2000 dated 22-7-2000, whereby he was convicted under section 10 read with section 9(a)(v) of the NAB Ordinance and sentenced to 14 years' R.I. And a fine of Rs,20,00,000,000 in default of payment of fine he was further directed to undergo R.I. For a period of three years. He was also disqualified for 21 years for seeking or from being elected, chosen, appointed or nominated as member or representative of any public office or any statutory or local authority of Government of Pakistan. We also hold that respondent No,1 has scandalized, abused, disobeyed and ridiculed the judiciary of Pakistan. He has also sworn a false affidavit attached with the nomination papers.
20 In view of our above findings, order of the Returning Officer, dated 15-5-2008, order of the learned Tribunal dated 31-5-2008, and order of the learned Election Commissioner of Pakistan dated 1-6-2008 D are set aside and are declared to be of no legal effect. As a result of above the findings, respondent No,1 is declared as disqualified to contest the upcoming bye-election scheduled to take place on 26-6-2008 in view of the express provisions of Articles 62 and 63 of the Constitution to be read with section 99(t)(g) of the Representation of the People Act, 1976.
21. While we were in process of dictating this order, some civil miscellaneous applications in this writ petition bearing C.M. Nos.1379, 1380, 1382, 1383, 1384 and 1385 of 2008 had been placed before us by the office which had been filed today which in substance seek review of the order of this Court dated 20-6-2008 whereby number of applications under Order I, Rule 10, C.P.C. Had been dismissed. We have minutely examined the said applications and have come to the conclusion that the same have been moved only with a view to delaying and procrastinating proceedings. We find no merit in these petitions as not error apparent on the face of record is identified. Resultantly, we dismiss these C. Ms. Likewise, C.M. No,1381 of 2008 which is an application by one Wali Muhammad seeking to be impleaded as a party that is also dismissed for the reasons as spelled out in the order dated 20-6-2008 passed in C.M. Nos. 1305 to 1309 and 1317 of 2008.