MAULVI ANWARUL HAQ, J. - This judgment shall decide W.P. No. 1480/08 and W.P. No. 1479/08 as common questions are involved.
2. The petitioner in W.P. No. 1480/08 is stated to be a voter of the constituency while Petitioner in W.P.
No. 1479/08 was a candidate in the election in question inter alia, the said petitioners and respondent No. 3 in both these cases contested election to the Provincial Assembly from Constituency PP-284, Bahawalnagar. On the close of poll respondent No. 3 was declared returned with 26,888 votes.
3. Learned counsel for the petitioners contend that respondent No. 3 was disqualified from being elected to the said office or to hold the same. According to them he was convicted by Accountability Court for offence of corruption and corrupt practices under Section 10 of National Accountability Bureau Ordinance, 1999 and was sentenced vide judgment dated 9.7.2001. Crl.
Appeal No. 1124-2001 was dismissed by this Court on 24.4.2003, Leave \o appeal has been granted by the Hon'ble Supreme Court on 21.2.2005. Learned counsel further explain that respondent No. 3 suffers from disqualification prescribed in Article 63 (1)(h) of the Constitution as also Section 99(1 )
(g) and Section 99(1 A)(h) of the Representation of the Peoples Act, 1976. It has further been argued with reference to case of Hafiz Hamdullah v. Saifullah Khan and others (PLD 2007 S.C. 52) that upon information so laid quo warranto can be issued. Reliance has also been placed on the case of Lt. Col. Farzand Ali and others v. Province of West Pakistan through Secretary, Department Agriculture, Government of West Pakistan (PLD 1970 SC 98). Respondent No. 3 in these cases had been duly served. He is represented by two learned counsel. No one had turned on his behalf despite repeated calls on 25.5.1999 and he was proceeded against ex parte. The case was heard in Court on 27.5.2009 and on this date as well none turned up on his behalf when the case was called.
4. We have gone through these files. We find that a reference was filed, inter alia, against Muhammad Rauf Khalid, respondent No. 3, who was an MPA during the period 1993 to 1996 in District Bahawalnagar, by the Chainman, NAB. The learned Judge, Accountability Court, Lahore, took cognizance. The said persons were tried. Upon conclusion of trial vide para-54 of judgment dated 9.7.2001 respondent No. 3 was found guilty of offences of corruption and Court practices under Section 10 as also offence of fraud at Serial No; 8 of Schedule of Offences, NAB Ordinance, 1999. He was sentenced to undergo 3 years' R.I. And to pay fine of Rs. 7,00,000/- for offence under Section 10 of the said Ordinance and in default of payment of fine to undergo one year's R.I. He was sentenced to 3 years' R.I under Serial No. .8 of the Schedule to the said Ordinance. Both the sentences were to run concurrently. Benefit Of. Section 382-B, Cr.P.C. Was given Crl. Appeal No. 1124/06 was dismissed by this Court on 24.4.2003. An appeal with leave of the Hon'ble Supreme Court is pending.
5. We also find that the said respondent No. 3 filed nomination papers for contesting election in the same constituency earlier, which were rejected by the learned Returning Officer. He filed an Election Appeal No. 6-R/02 before an Election Tribunal of this Court and the same was dismissed on 13.9.2002 because of said conviction and sentence. The copy of nomination papers filed by the said respondent No. 3 is Annex-D in both these petitions and we find that he did not disclose the factum of said conviction and sentence rather sworn an affidavit that he does not suffer from any disqualification under Article 63 of the Constitution or any other applicable law.
6. Since one of the petitioners was himself a candidate, we confronted the learned counsel as to competency of the writ petition in view of the provisions of Article 225 of the Constitution, they referred us to the said case of Hafiz Hamdullah further that the other petitioner was not such a candidate. Be that as it may, we are satisfied that respondent No. 3 stood convicted of an offence involving corrupt practices as well as moral turpitude and misuse of authority and as such stood disqualified from being elected to the office of MPA or to hold the same in view of the provisions of Article 63(1 )(h) of the Constitution as also Article 99(1 A) (h) of the Representation of the Peoples Act, 1976. We also find the writ petitions to be competent in the tight of following observations of the Hon'ble Supreme Court of Pakistan in the case of Hafiz Hamdullah, in para-13 of the judgment at pages 60 and '61 - of the report:- "13. With regard to the contention that the issue in the Constitution petition filed before the High Court of Balochistan pertained to an election dispute and the High Court would have no jurisdiction to entertain the same as it could be decided only by way of an election petition under Section 5? Of the Act in view of the provision of Article 225 of the Constitution, it may be pointed out that according to Respondent No. 1 appellant was not qualified to contest that election for a seat of Balochistan Provincial Assembly in view of the provision contained in Article 8-D(2)(a) of the Order read with Section 99(1)(a)(k) of the Act. Thus, the appellant was suffering from a pre-election disqualification. As already noted above respondent No. 1 was not a candidate in the general election held for electing'' members of Balochistan Provincial Assembly from Constituency. PB-1.1 Killa Abdullah-I, as such could not have recourse to Sections 14 and 52 of the Act nor there was any other remedy made available to him by any law, rules or regulations to challenge the election of appellant as member of Balochistan Provincial Assembly which he emphatically claimed/described to be absolutely illegal and void. In the circumstance, the only remedy available to respondent No. 1 was by way of institution of a. Constitutional petition praying for a writ of quo warranto requesting the High Court to enquire from the appellant to show that under that authority or law he was entitled toehold the office of member of Balochistan Provincial Assembly.
This Court in the case of Lt. Col. Farzand Ali and others v. Province of West Pakistan, Lahore (PLD 1970 SC 98) was .Faced with a similar issue and after minutely examining the provisions of law pronounced that pre-election disqualification of a person/candidate to contest the election for a seat in the Assembly/legislature could be question in writ jurisdiction. The reasons advanced by this Court for the above pronouncement was that an election dispute raised by a voter or the defeated candidate in his individual capacity while proceedings in the nature of quo warranto could be invoked in pubic interest by any person wherein determination of the title of a returned candidate to hold the office is sought and not the validity of the election."
We may further note that both these writ petitions were filed at a point of time before respondent No. 3 had entered the said office by taking oath and it was ordered that the election of respondent No. 3 and all others process shall be subject to decision to be taken by this Court in these writ petitions. It may also be stated that the respondent No. 3 put in appearance in Court on 13.3.2008 and writ petition was. Admitted to. Hearing on 5.4.2008 in presence of his learned counsel. However, he has not filed a written statement to controvert the contents of writ petitions.
7. Both the writ petitions are allowed and we do hold that respondent. No. 3 suffers from pre- election disqualification and is not qualified to be elected. To the office of MPA from the said constituency or to hold the same. Respondent No. 1 Election Commission of Pakistan shall proceed further in the matter accordingly. No order as to costs.