HASNAT AHMED KHAN, J.--- This order shall dispose of the following writ petitions:- W.P.No. 6597 of 2008. [Raja Ashfaq Sarwar v. Shahid Orakzai, etc.]
(ii) W.P.No. 6598 of 2008: [Muhammad Farooq Khattak v. Shahid Orakzai, etc.]
(iii) W.P.No. 6599 of 2008. [Malik Jehangir v. Shahid Orkzai, etc.]
(iv) W.P.No. 6601 of 2008. [Khawaja Noor Ellahi v. Shahid Orakzai, etc.] as in all these writ petitions, the learned Appellate Tribunal, vide impugned order dated 30-5-2008, accepted the Election Appeal No. 21-R of 2008 filed by respondent No. 1 and set aside the order of Returning Officer dated 15-5-2008, whereby nomination papers of respondent No. 1 were rejected.
2. Brief facts of the case are that, Shahid Orakzai-respondent No. 1 submitted . Nomination papers on 12-5-2008 for seat of PP-10, Rawalpindi before respondent No.4 (Returning Officer PP-10). On the day of scrutiny, while arguing before respondent No,4 in the matter of Mian Shahbaz Sharif, a candidate of the same Constituency seeking. Rejection of his nomination papers, respondent No. 1-Shahid Orakzai conceded that, he was convicted and sentenced in a contempt matter by a Larger Bench of apex Supreme Court of Pakistan on 3-3-1983. On the admission of respondent No. 1, Returning Officer, of his own motion, C. L. R. exercising his power under clause (a) of sub-section (3) of Section 14 of the Representation of the People Act, 1976, rejected the nomination papers of respondent No. 1 declaring him to be disqualified under Article 63(i)(h) of the Constitution of Islamic Republic of Pakistan, 1973 and Article 8D(2)(h) of the Conduct of General Elections Order, 2002. Being aggrieved of the same, respondent No. 1 filed Election Appeal No. 21-R of 2008 which was accepted by the Appellate Tribunal vide impugned order dated 30-05-2008 observing that, charges of conviction levelled against respondent No. 1 had been withdrawn by the Honourable Supreme Court of Pakistan and set. Aside the order of Returning Officer dated 15-5-2008, Respondent No. 1 was allowed to contest the election and a direction was given to include his name in the list of contesting candidates.
Being aggrieved of the same, the writ-petitioners have challenged the impugned order.
3. It is argued by the learned counsel for the petitioner that, the learned Appellate Tribunal erred at law by deciding the appeal without issuing proper notice to the petitioners. The petitioners were condemned unheard. The principle of natural justice that, no one should be condemned unheard has been violated. It is argued that, the order passed by the Returning Officer was unexceptional based on sound reasons and the same could not be set aside, The impugned order gives no reason for over ruling the well-reasoned judgment of respondent No. 4-Returning Officer.
Respondent No. 1 failed to produce any order of the Honourable Supreme Court of Pakistan, vide which, the conviction and sentence awarded to respondent No. 1 had been set aside, Respondent No. 1 is imposter. He has sworn a false affidavit, mislead the Returning Officer, as well as, Appellate Tribunal. He is neither SADIQ nor AMEEN as required under the law. He acquires disqualification in terms of Article 63(i)(h) of the Constitution for having persistently obstructing the cause of justice and had committed contempt of Court and remained in jail with effect from 3-3-1993 to 22 3-1993. This fact is certified by a letter No. 112-P, dated 04- 6-2003 issued by the Supeintendent, Central Jail, Rawalpindi to the effect that, Shahid Orakzai-respondent No. 1 was admitted in jail on 3-3-1983 by the order of Honourable Supreme Court of Pakistan under Article 204 of the Constitution of Islamic Republic of Pakistan, 1973 and was released from jail on 22-3-1983 by the order of Honourable Supreme Court of Pakistan, therefore, in view of the findings of apex Court, reported as Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) (2000 SCMR 1969), he was convicted for committing contempt of Court, which is covered by Article 63(i)(h) of the Constitution of Islamic Republic of Pakistan, 1973 and Article 8D(2)(g) of the Conduct of General Elections Order, 2002. Further submits that, he was supposed to declare his educational qualification in the nomination papers, which has not been done. He has not deliberately attached the attested copy of his electoral roll, whereas, Section 14(3)(c) of the Representation of the People Act, 1976 requires rejection of nomination papers for non-fulfilment of mandatory provisions. The document annexed with the nomination papers was a computer print out which does not fulfill the requirement of law.
Reference is made to Akhtar Rasool Chaudhry v. Returning. Officer N.A 122, Lahore-5 and 4 others (PLJ 2002 Tr.0 (Election) 369), Secretary. Ministry of Defence and another v. Zahoor Ahmed Javed (2001 SCMR 1968) and Qauyum Azam Khan v. Returning Officer/Additional District and Sessions Judge, PP-272, District Bahawalpur and 3 others (PLD 2003 Lahore 251).
4. Conversely, respondent. No 1, in person has vehemently opposed this writ petition by arguing that, no objection was raised by any of the contesting candidates of Constituency PP-10 on his nominations papers. In fact, during the scrutiny of nomination papers of Mian Shahbaz Sharif, an objection was raised on the candidature of respondent No. 1 that, he also suffered disqualification being convicted in a contempt matter, which he frankly conceutiu before the Returning Officer- respondent No. 4, During the course of arguments, counter-allegation was levelled against respondent No. 1 that, he is a convict in a contempt matter, to which he candidly conceded before the Returning Officer-respondent No. 4 that, he remained in jail for twenty days under the orders of the Honourable Supreme Court of Pakistan for committing contempt of Court and also informed the Returning Officer that, the order of conviction was withdrawn, but the Returning Officer proceeded to reject his nomination papers. Further submits that, the word used by the Returning Officer that, respondent No. 1 candidly conceded reflects on the good intention, which proves that he is SADIQ and AMEEN and has not concealed any fact from the Returning Officer to gain any benefit. (When asked to produce the order, vide which, he has been exonerated of charge levelled against him has been withdrawn by the Honourable Supreme Court of Pakistan, he stated that, he is not in possession of any such order passed by the Honourable Supreme Court of Pakistan nor he is in a position to produce the same before this Court), Further Submits that, Election Tribunal is not bound and regulated by the High Court Rules and Orders requiring respondent No. 1 to deposit the process fee in accordance with law. The proceedings of the Election Tribunal are regulated by the rules framed by the Chief Election Commissioner where no such provisions of depositing of process fee is provided, thus, he was not obliged to deposit the process fee, Finally submits that, the learned Appellate Tribunal had rightly set aside the order dated 15-05-2008. Passed by the Returning Officer, as the same suffered from material illegality and irregularity.
5. We have heard learned counsel for the petitioner , as well as, respondent No. 1 in person and have given anxious considerations to the arguments raised by them. All objections raised by learned counsel. For the petitioners highlighting the disqualification from which respondent No. 1 suffered, were never raised before the Returning Officer respondent No. 4 at the time of scrutiny of his nomination papers. It was only during the scrutiny of nomination papers of Mian Shahbaz Sharif that, respondent No. 1 admitted before the Returning Officer that, he was convicted by the apex Supreme Court of Pakistan vide order dated 3-3-1993 and on receiving this information, the Returning Officer proceeded to reject the nomination papers of respondent No. 1 by exercising his power under clause (a) of sub-section (3) of Section 14 of the Representation of People Act, 1976, This fact of conviction is not denied by respondent No. 1 before us but he reiterated that, his conviction and sentence was reviewed and set-aside by the Honourable Supreme Court of Pakistan In a later judgment. He failed to produce any such order or judgment of the Honourable Supreme Court of Pakistan reviewing its earlier decision dated 3-3-1993, before the Returning Officer, the Appellate Tribunal or before us. The observation of learned Appellate Tribunal that, conviction order dated 3-3-1993 has been withdrawn, is without any material or basis. The conviction and sentence awarded to respondent No. 1 and undergone by him is covered by a disqualification provided under Article 63(I)(h) of the Constitution of Islamic Republic of Pakistan, 973 and Article 8D(2)(h) of the Conduct of General Elections Order, 2002.
6. The impugned order passed by the learned Appellate Tribunal, from the face of it, is not a speaking order, The learned Appellate Tribunal without following the settled principles of law and procedure, as well as, without conceiving that, valuable rights of parties cannot be decided in cursory manner proceeded to accept the appeal The appeal of respondent No. 1 had been accepted by the learned Appellate Tribunal simply relying upon his oral statement, without any documentary proof. The most important ingredient of an order/judgment is that, it should be a speaking one consisting of statement of grounds of decision, which is missing in the impugned order. It is also admitted by respondent No. 1 that, he did not deposit the process fee as required ..y the office; resultantly, no notice was issued in the narrd of the present petitioners to appear before the learned Appellate Tribunal and to defend their case . ..The learnt Appellate Tribunal while violating the principle of not,,ral justice, proceeded to pass-the impugned order without issuing notice in the name of private contesting respondens or prclorma respondent of AdvocateGeneral, s requ'. Ed under Section 60 of the Representation of the People Act, 1976, which reads as under: - "60. Advocate-General to assist the Tribunal-- The Advocate-General for. a Province shall, if a Tribunal so requires, assist the Tribunal at the hearing of an .Election petition in such manner as it may require".
The impugned order, by itself, shows that, none of the respondent was proceeded against ex pade under the law. The learned Appellate Tribunal should have called upon the ,Advocate-General to assist the Court on the subject.
7. In this case, serious allegation had been levelled against respondent No. 1, who made a statement before the Tribunal that, his conviction had been set aside by the Honourable Supreme Court of Pakistan, but fact was not probed into by the learned Appellate Tribunal nor respondent No. 1 was asked to produce any such document. In such like situation. At the minimum', the Advocate-General should have been asked to appear and assist.
8. The word "moral turpitude" has not been defined in the election laws; however, same has been considered .To be covered by clause (h) of Section 99 (1-A) of the Representation of the People Act, 1976, It .Was held in Akhtar Rasool Chaudhry's case reported as 2003 MLD 939 Lahore that.
Conviction awarded in contempt case duly attracts the mischief provided under clause (h) of Section 99(1-A. Of the Representation of the People Act, 1976 and Article 8D(2)(h) of the Conduct of General Elections Order, 2002. In this respect, reliance is made to lmtiaz. Hussain. Phutto v. Returning Officer (1987 SCMR 468), Muhammad Shabbir Abbasi v. Abdul Rasheed Mughal (1984 CLC 270). Pir Mazhar-ul-Haque v.
Election Tribunal-I (2003 CLC 300 Lahore), Sami Ullah Ch. v. Returning Officer, Bahawalpur and 2 others (PLD 2008 Lahore 128) and Sikandar Hayat Khan Bosan v. Syed Yousaf Raza Gillani and another (2008 CLC 240).
9. In view of the dictum laid down in the above referred case-law, it is observed that, nomination papers of respondent No. 1-Shahid Orakzai were rightly rejected by the Returning Officer- respondent No. 4 holding him to be a convict of a charge of moral turpitude by the Honourable Supreme Court of Pakistan disqualifying him to contest the election under Article 63(I)(h) of the Constitution of Islamic Republic of Pakistan, 1973 and Article 8D(2)(h) of the Conduct of General Elections Order.
10. As far as contention of respondent No. 1 that, none of the petitioners can be termed as an aggrieved person as they have withdrawn their nomination papers, we may observe here that, these writ petitions cannot be dismissed on this technical ground as respondent No. 1 suffers from patent disqualification, especially considering 'provisions of Section 5(a) of the Conduct of General Elections Order, 2002 and Section 14(3)(a) of the Representation of People Act, 1976.
11. In view of above discussion, we observe that, respondent No. 1 has also incurred a disqualification within the ,meanings of Article 63 (1)(g)(h) of the Constitution of Islamic Republic of Pakistan, 1873, which is also reproduced:-
63. Disqualification for membership of Majlis-eShoora (Parliament).
(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis- e-Shoofa (Parliament), if--
(g) he is propagating any opinion, or acting in any manner, prejudicial to the Ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of-the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan"
(h) he has been convicted by a Court of competent jurisdiction on a charge of corrupt practice moral turpitude or misuse of power or authority under any Jaw for the time being in force.
12. Moreover, the observation of the apex Court holding conduct of respondent No. 1 as derogatory and contemptuous given in Civil Review Petitions Nos. 208 to 210 of 2000, is reproduced as under:- "At the commencement of the hearing today when Mr. Sharifuddin Pirzada, learned Senior ASC was asked to address the Court on behalf of the Federation, Shahid Orakzai disturbed the decorum of the Court by coming over to the rostrum uninvited and murmuring that he should be heard. This is not the first time that he has disturbed the decorum of the Court by interrupting the Court proceedings. Earlier too, he was stopped from entering the Court premises for a period of one month by order dated 14-9-2000 passed in Suo Motu Revision Petition (Cr. A. No. 102 of 1999) wherein the following order was passed:--- "The learned Attorney General for Pakistan has concluded his arguments in the titled appeal. In order to give hearing to Mr. Shahid Orakzai, who had moved an application against the impugned order of a three-member Bench of this Court" and which application had been turned into an appeal, he was allowed to dress the Court for ten minutes. He rose from his seat and took the rostrum. He started with irrelevant matters. He was stopped to refer to any such matter which has no nexus with the determination of the point involved. He became enraged and started misbehaving. It is not the first time that he has behaved in this manner. His conduct has always been to brew-beat the Courts in such like matters. He is in the habit of remaining in attendance in all such cases in which he has no interest nor has he ever been a party to. Such proceedings.
2. We have, therefore, decided that Shahid Orakzai should be stopped from entering the Courts premises for a period of one month or till he conclusion of the case, whichever & earlier as to avoid any obstruction in the course of justice. This is part from any action that we may deem proper to take against him. Order accordingly,
3. We direct the learned Attorney General for Pakistan and the Inspector General of Police, Islamabad to take appropriate steps for ensuring compliance of this order.
4. We were not inclined to pas any order of the nature that we have done but we were compelled to do so on account of the offensive conduct of Shahid Orakzai displayed before this Court, which clearly interfered with the functioning of the apex Court. We have done so with reluctance but with the full awareness that it was in the interest of justice and to maintain the dignity and decorum of this Court.
This is only a preventive order so that Shahid Orakzai does not repeat the same offensive conduct in future. No case, in. Which he is a party, shall be fixed during this panel"
2. Shahid Orakzai is not a party in any of the review petitions and therefore he has no right to address the Court muchless disturb the proceedings. When asked why he has disturbed the Court proceedings, he gave no explanation whatsoever. We told him that earlier .Too, he disturbed the Court proceedings, which led us to pass a preventive order so that he may not repeat the same offensive conduct in future, it appears that the above order has no effect on him.
3. Resultantly, through an oral order of even date, in the interest of justice and to maintain the dignity and decorum of this Court, we have decided through this preventive order that Shahid Orakzai shall be stopped from entering the Supreme Court 'premises for a period of six months from today. No Case, in which he is a party, shall be fixed during this period. The Inspector General of Police/Senior Superintendent of Police, Islamabad shall take appropriate steps for ensuring the compliance of this order under intimation to the Registrar of this Court."
13. In this view of the matter, these writ petitions are allowed impugned order dated 30-5-2008 passed by the learned Appellant Tribunal is set aside and that of learned Returning dated 15-5- 2008 is upheld. No order as to costs, Office is directed to immediately transmit a copy of this order to the office of Chief Election Commission of Pakistan, Islamabad for information. .