' SH. AHMAD FAROOQ, J.---Pursuant to the General Elections, held on 18th February, 2008, Malik Nawab Sher/respondent No,1 was declared as a returned candidate from Constituency NA-76, Faisalabad-II, and he is presently holding the office of the Member, National Assembly of Pakistan.
Through the instant petition, under Article 199(1)(b)(ii) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners, who are the registered voters of Constituency No,NA-76, Faisalabad- II, have prayed that the respondent No,1 be called upon to show under what authority of law, he is holding the office of Member, National Assembly of Pakistan from Constituency No,NA-76, Faisalabad-II. The petitioners solicited the issuance of a writ in the nature of quo warranto declaring the holding of the said office by respondent No,1, without lawful authority, and his election from the said constituency as void.
2. Succinctly, the information, laid down by the petitioners before this Court, is that the respondent No,1 has no lawful authority to hold the office of Member National Assembly of Pakistan. The petitioners contended that the respondent No,1 is disqualified to hold the office of M.N.A., if adjudged on the touchstone of the qualification/ disqualification, envisaged in 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. The petitioners challenged the legal authority of respondent No,1 to hold the office of M.N.A on the following three grounds:--
(i) That the respondent No,1 does not hold the requisite educational qualification, as provided in Article 8-A of the Conduct of General Elections Order, 2002, and the B.A. Degree, being relied upon by him, is bogus as having been procured through impersonation and fraudulent means.
(ii) That the respondent No,1, while employed as a Corporal Technician in Pakistan Air-Force was tried for misconduct by a District Court Martial, whereupon, he was convicted and dismissed from service and as such, he suffers from a lifetime disqualification of contest the election to National Assembly or a Provincial Assembly of Pakistan, under Articles 62 and 63(i) of the Constitution of Islamic Republic of Pakistan, 1973 read with section 99 of the Representation of the People Act, 1976.
(iii) that the respondent No, Wiled his nomination papers to contest the election for Constituency No,PP-44 and NA-58, Faisalabad, in the year, 1996 and not only his nomination papers were rejected but also he was declared disqualified to context the election, being not honest person, by Election Tribunal, comprising of two Hon'ble. Judges of Lahore High Court, Lahore, vide judgment, dated 6-1-1997 the petitioners contended that the said judgment has attained finality, thereby respondent No,1 is disqualified to contest the election throughout his life, as envisaged in Article 62(f) of the Constitution of Islamic Republic of Pakistan, 1973.
' The petitioners explained the delay in filing the instant petition as a rival candidate, namely, Zahid Nazir, who lost the elections, earlier filed Election Petition (E.P.No,29/2008), but the same was withdrawn on 19-3-2010, apparently, as a result of some collusion between the parties. The petitioners submitted that a seat of the National Assembly of Pakistan is a "sacred trust" and they have a locus standi, rather, duty bound to lay information before this Court that respondent No,1, who claims to represent Millions of people from Constituency No,76, Faisalabad-II is not qualified to be elected and from being a member of the Parliament.
3. The respondent No,1 was required by this Court to show under what authority of law, he is holding the office of M.N.A. From Constituency No,76, Faisalabad-II, whereupon, he submitted a written reply, wherein, amongst others, he raised preliminary objections regarding the maintainability and the bona fide of the petitioners to file the instant petition after a lapse of more than two years. The respondent No,1 contended that the question of the disqualification of a Member of National Assembly could only be raised before the Speaker of the National Assembly, who could refer the same to the Election Commission for a decision, as provided in Articles 66(2) and (3) of the Constitution of Islamic Republic of Pakistan, 1973. The respondent No,1 further contended that the remarks given by the Appellate Election Tribunal of Lahore High Court, Lahore in Election Appeal No,117 of 1996, vide judgment dated 6-1-1997, have been expunged by a Full Bench of this Court, while deciding Writ Petition No,699 of 1997, vide order dated 16-1-1997. The respondent No,1 asserted that his Intermediate Certificate and B.A. Degree have been declared genuine by the relevant authorities. As far as the matter regarding the dismissal from service is concerned, the respondent No,1 submitted that the same has already been dealt with in Election Appeal No,7/R of 2007, titled "Malik Nawab Sher Wassir v. Additional District and Sessions Judge; Jarawala etc.", by the Election Tribunal, comprising of two Hon'ble Judges of this Court, vide order dated 8-12-2007, whereby the respondent No,1 was allowed to contest the election, held in February, 2008. The respondent No,1 maintained that after 18th Amendment in the Constitution of Islamic Republic of Pakistan, 1973, the lifetime disqualification, as originally provided in Article 63(1), has ceased to exist. The respondent No,1 claimed that the instant petition is hit by the principle of laches and the petitioners are not entitled to any discretionary relief. The respondent No,1 alleged that the instant petition has been preferred in collusion with the candidates, who lost the election, namely, Zahid Nazir, Chaudhry Wassi Zafar and Waciar Wassi. The respondent No,1 vehemently asserted that he fulfilled the qualifications, laid down in Article 62 of the Constitution of Islamic Republic of Pakistan, 1973 and did not suffer from any disqualification, provided in Article 63 of the Constitution of Islamic Republic of Pakistan, 1973 or in section 99 of the Representation of the People Act, 1976. The respondent No,1 claimed that he is holding the office of M.N.A. In accordance with the provisions of the Constitution and law.
4. Respondent No,3/Board of Intermediate and Secondary Education, Sargodha, in its report and parawise comments, confirmed that Nawab Sher/respondent No,1 appeared in Annual Inter Examination, 1969, under Roll No,889, and passed the examination in first attempt by obtaining 391 marks out of total 1000. Similarly, respondent No,2/University of the Punjab, Lahore verified that the respondent No,1 has passed the B.A. Examination, vide Roll No,008663 with Registration No,2002-Z- 26773. Respondent No,2 - denied the allegation of impersonation against the respondent No, 1.
5. Respondents Nos.4 to 7, in their written statements, admitted that Nawab Sher/respondent No,1, who served as Corporal Technician in Pakistan Air Force, was dismissed from service as a result of District Court Martial, vide order dated 19-4-1977, on the charge of overstaying leave, without sufficient cause, granted for the period from 3-6-1976 to 2-2-1977. However, respondents Nos.4 to 7 clarified that the charge of . Overstaying leave, falling under section 39(b) PAF Act, 1953, is a normal service offence, which do not constitute moral turpitude.
6.Respondent No,8, in his parawise comments, contended that the requisite record was snatched by unknown persons from Mr. Imdad Hussain Mirza, Assistant Superintendent, Prison, who was carrying the same to Karachi Airport, for its presentation in this Court. However, respondent No,8 explained that comments have been earlier filed in this Court, vide office letter dated 21-5-2010.
According to the photocopy of the earlier comments of respondent No,8, Nawab Sher/respondent No,1 was convicted by the Officer Commanding, P.A.F., on 19-4-1977, and he remained in Central Prison, Karachi, from 2-6-1976 upto 2-2-1977, and thereafter, transferred to District Jail, Lyalpur on 5-7-1977. Respondent No,9/Superintendent, District Jail, Lyalpur, Faisalabad, regretted his inability to verify the admission/detention of respondent No,1 in District Jail, Faisalabad, due to termite ridden record, which could not be inspected.
7. Mr. Farooq Amjad Mir, Advocate, the learned counsel for the petitioners contended that the respondent No,1 did not hold the requisite educational qualification, as provided in Article 8-A of the Conduct of General Elections Order, 2002 and as such disqualified to hold the office of M.N.A. He further contended that the respondent No,1 was convicted and in consequence thereof, dismissed from service, vide order dated 19-4-1977, and remained in jail for eight months. He maintained that the ground, on which the respondent No,1 was dismissed from service, falls within the mischief of misconduct and he is disqualified from being, a Member of Majlis-e-Shoora (Parliament) in view of Article 63(i) of the Constitution of Islamic Republic of Pakistan, 1973. The next arguments of the learned counsel for the petitioners was that the respondent No,1 is not an honest person and not qualified to be elected or chosen as a Member of Majlis-e-Shoora (Parliament), according to Article 62(t) of the Constitution of Islamic Republic of Pakistan, 1973, as he was declared a dishonest person by the Election Tribunal, comprising of two Hon'ble Judges of this Court, who disqualified him from contesting the elections, held in the year, 1997, vide order dated 6-1-1997. The learned counsel for the petitioners asserted that the disqualifications, enumerated in Articles 62(f) and 63(i) of the Constitution of Islamic Republic of Pakistan, 1973, are lifetime disqualifications.
Meaning thereby that present respondent No,1 was not only disqualified to contest the elections, held in 1997, but also was not eligible to contest the 'election in the year, 2008, and consequently, disqualified from being a Member of Majlis-e-Shoora (Parliament). In support of his contention of getting the respondent No,1 declared as a person, who is not 'honest and `ameen', as provided in Article 62(f) of the Constitution of Islamic Republic of Pakistan, 1973, the learned counsel for the petitioners relied upon the judgments, reported in Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others (1986 SCMR 1736), Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others (PLD 1998 SC 823), Mst. Ghulam Sakina v. Member (J), Board of Revenue, Hyderabad and 4 others (PLD 2004 Karachi 389) and Dr. Mobashir Hassan and others v. Federation of Pakistan and others (PLD 2010 Supreme Court 265). Similarly, in order to substantiate the ground of dismissal from service incurring the disqualification from being a Member of the Parliament, the learned counsel for the petitioners referred to the Judgments, reported in Malik Saleh Muhammad Gunjial v.
Kamran Elahi Bandial and others (2008 SCMR 1) and Imtiaz Ahmed Lali v. Ghulam Muhammad Lali (PLD 2007 Supreme Court 369). Elaborating his arguments that a writ of quo warranto could be filed by any person, who did not fulfil the stringent condition of falling within the meaning of aggrieved person, the learned counsel for the petitioners took the benefit of judgments, reported in Capt.
(Retd.) Muhammad Naseem Hajazi v. Province of Punjab, through Secretary, Housing and Physical Planning and 2 others (2000 SCMR 1720), Khan Bar v. Chief Election Commission Islamabad and others (PLD 2010 Supreme Court 817), Nageb Ullah Khan v. Malik Imran Khan and, 6 others (PLD 2006 Peshawar 21), Hafiz Hamdullah v. Saifullah Khan and others (PLD 2007 SC 52), Faqir Abdul Majeed Khan v. District Returning Officer and others (2006 SCMR 1713) and Mushtaq and 3 others v. The State (PLD 2Q08 SC 1), Responding to the objection of the learned counsel for respondent No, 1, that after the amendments, made in the Constitution through 18th Amendment, vide Notification dated 20-4-2010, whereby Articles 62(0 and 63(i) of the Constitution of Islamic Republic of Pakistan, 1973 have been amended and no person could be declared as dishonest unless there is a declaration by a Court of law and the disqualification due to dismissal from service could not be agitated after a lapse of five years, the learned counsel for the petitioners was of the view that the Constitutional amendments have not been given retrospective effects and the rights of the parties to be decided according to law, which existed when action began and not that existing at the date of judgment or order. In support of his arguments, the learned counsel for the petitioners referred to Article 264 of the Constitution of Islamic Republic of Pakistan, 1973, as well as Section 6-C of the General Clauses Act, 1897, in addition to the judgments, reported in Mian Rafiud-Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others (PLD 1971 Supreme Court 252), Manzoor Ali and 39 others v. United Bank Limited through President (2005 SCMR 1785), Lt.-Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 SC 98),) Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187), Hakim Ali Zardari v. The State and another (PLD 1998 Supreme Court 1) Idrees Ahmad and others v. Hafiz Fida Ahmad Khan and others (PLD 1985 Supreme Court 376). Lastly, the learned counsel for the petitioners argued that notwithstanding the amendments, made in Articles 62(f) and 63(i) of the Constitution of Islamic Republic of Pakistan, 1973, through 18th Amendment, the provisions of section 99(1)(f) and 1-A of the Representation of the People Act, 1976, has not undergone any change, which still envisaged the disqualification of a person for being dishonest and having been dismissed from service on the ground of misconduct. The learned counsel for the petitioners submitted that the observations, made against the present respondent No,1 by the Election Tribunal of Lahore High Court, Lahore in its judgment dated 6-1-1997, have not been expunged, vide judgment dated 16-1-1997 of a Full Bench of this Court, as there is a difference between the words "derogatory" and "expunction". In this regard, he placed reliance, on the State of Assam v. Ranga Muhammad and others (AIR 1967 SC 903), In the matter of 'IC a Judicial Officer (AIR 2001 SC 972), Dr. Muhammad Iqbal and others v. Haji Muhammad Akram (PLD. 1991 Lahore 8) and Muhammad Maqsood Sabir Ansari v. District Returning Officer, Kasur and 3 others (2007 CLC 1113 Lahore). Concluding his arguments, the learned counsel for the petitioners requested for issuance of a writ of quo warranto declaring that the respondent No,1 is not qualified to hold the office of M.N.A. In view of the qualifications/disqualifications, enshrined in Articles 62(t) and 63(i) of the Constitution of Islamic Republic of Pakistan, 1973, as well as section 99 of the Representation of the People Act, 1976.
8. Conversely, the learned counsel for the respondent No,1 submitted that the instant petition is, in fact, a camouflaged election petition because the election petition, earlier filed by Zahid Nazir, has been dismissed as withdrawn on 19-3-2010. He clarified that the petitioner No, 1/Chaudhry Munir Ahmad has filed the instant petition with mala fide intentions after a lapse of more than two years of the General Elections, held in the year, 2008, and not entitled to the discretionary relief, as he is the first cousin of a candidate, namely, Wassi Zafar, who lost the elections against the respondent No,1, in addition to being uncle of another candidate, who contested election from Constituency No,NA-76, Faisalabad-II. In this regard, he referred to judgments, reported in Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others (PLD 1969 SC 42) and Makhdoom Ghulam Ali Shah v. Election Commission of Pakistan, Islamabad through its Secretary and 4 others 2008 CLC 738.
The objection of laches was also raised by the learned counsel for the respondent No,1, while relying upon the judgment, reported in Fateh Muhammad Khan and others v. The Deputy Claims Commissioner, Rawalpindi and others (1987 SCMR 692(1)). The learned counsel for the respondent No,1 further challenged the maintainability of the instant petition in view of an inbuilt mechanism for seeking disqualification of a Member of Parliament, as provided in Article 63(2)(3) of the Constitution of Islamic Republic of Pakistan, 1973, which empowers the Speaker of the National Assembly to decide the question of disqualification of a member himself or refer the same to the Election Commission, within 30 days, and the Election Commission shall decide the .Same, within 90 days from its receipt. In support of his argument, the learned counsel for the respondent No,1 placed reliance on the judgments, reported in Anaytullah Dr. Imran Liaqat Hussain v. Election Commission of Pakistan, Islamabad and another (PLD 2005 SC 52) and Ghulam Abbas v. The Additional Commissioner and Election Tribunal Khairpur Mirs and 3 others (PLD 1965 (W.P.) Karachi 625). The learned counsel for the respondent No,1 controverted the allegation of the learned counsel for the petitioners that the respondent No,1 did not possess the requisite educational qualification. Regarding the issuance of writ of quo warranto the learned counsel for the respondent No,1 argued that it is essential that the person concerned should suffer from any disqualification to hold such office both at the time of institution of a Constitutional petition as well as at the date of decision.
' He argued that the disqualification, if any with which the respondent No,1 allegedly suffers at the time of the institution of the instant petition is no longer in existence, as Articles 62(f) and 63(i) of the Constitution of Islamic Republic of Pakistan, 1973 have been amended through 18th Amendment, notified on 20-4-2010. Explaining his submissions, the learned counsel argued that the crucial date to determine the disqualification of a person to hold an office is not only the date of his election or institution of a writ, but also the date of the issuance of the writ of quo warranto.
He maintained that at this point in time, the respondent No,1 is not disqualified from being a Member of Majlis-eShoora (Parliament) by virtue of amendments, made in the Constitution through 18th Amendment. He asserted that a writ of quo warranto, issued by High Court, would take effect only from the date of the pronouncement of the judgment by the High Court and not from any date anterior thereto. The learned counsel for the respondent No,1 was drawing strength, while arguing this point, from the judgments, reported in Dr. Mujahid Ali Mansoori and others v. University of Punjab and others (2005 PLC (C.S.) 694), M.A. Jabbar and 3 others v. Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad and 5 others (1999 PLC (C.S.) 686), Sardar Asseff Ahmad Ali v. Mr. Muhammad 'Khan Junejo and others (PLD 1986 Lahore 310) and Lt.-Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 Supreme Court 98).
Finally, the learned counsel for the respondent No,1 submitted that similar objections were raised before the Election Tribunal of Lahore High Court, Lahore, but the respondent No,1 was permitted to contest the elections, held in the year, 2Q08, vide judgment dated 18-12-2007, which has attained finality. The learned counsel for the respondent No,1 tried to highlight the distinction between qualifications and disqualifications, as envisaged in Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan, 1973, referring to the judgments, reported in Ghulam Abbas v. The Additional Commissioner and Election Tribunal Khairpur Mirs and 3 other (PLD 1965 (W.P.) Karachi 625) and Kan Shahbaz Sharif V. Choudhary Altaf Hussain, Governor of Punjab, etc. (PLD 1995 Lah. 541). In order to rebut the argument of the learned counsel for the petitioners regarding the applicability of section 99 of the Representation of the People Act, 1976 after the amendment of the Constitution, the learned counsel for respondent No,1, referring to the judgment, reported in Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 635), maintained that it is a settled principle of Constitutional interpretation that the provision, enshrined in the Constitution, shall prevail notwithstanding anything contrary contained in a piece of subordinate legislation. Lastly, the learned counsel for the respondent No,1 argued that Article 264 of the Constitution of Islamic Republic of Pakistan, 1973 and section 6-A of the General Clauses Act could not be pressed into service in the instant petition.
9. I have heard the lengthy arguments, addressed by the learned counsel for the parties. I have also perused and examined the relevant Articles of the Constitution of Islamic Republic of Pakistan, 1973 as well as the provisions of the Representation of the People Act, 1976 with the able assistance of the learned counsel for the parties.
10. First of all, I would like to deal with the question of maintainability of the instant petition.
11. Admittedly, the instant petition is for issuance of a writ of quo warranto, "Quo'Warranto" means "by what authority". The object and scope of a writ of quo warranto has been discussed in detail by the Hon'ble Supreme Court of Pakistan in the case of Pakistan Tobacco Board and another v. Tahir Raza and others (2007 SCMR 97), wherein, it has been declared that a writ of quo warranto is to inquire from a person, the authority of law under which he purports to hold public office and it is primarily, inquisitorial and not adversarial for the reason that a relator need not be a person aggrieved but also that while a person A is holding a public office without any legal warrant, he is taxing public exchequer besides causing injury to others, who may be entitled to that office. Writ of quo warranto could be moved by "any person", who even may not be an aggrieved party, to challenge the unauthorized occupation of a public office. In case of Capt. (Retd.) Muhammad Naseem Hijazi v. Province of Punjab through Secretary, Housing and Physical Planning and 2 others (2000 SCMR 1720), the Hon'ble Supreme Court of Pakistan held that under Article 199(1)(b)(ii) of the Constitution of Islamic Republic of Pakistan, 1973, the High Court in exercise of its constitutional jurisdiction is competent to enquire from any person, holder of a public office to show that under what authority, he is holding the said office. In such like cases, the duty of the petitioner is to lay an information before the Court, who, in fact, acts as an informer and not required to establish his locus standi to invoke the jurisdiction of the Court. Similar dictum was laid down in the case of Hafiz Hamdullah v. Saifullah Khan and others (PLD 2007 SC 52) and it was held that for issuance of a writ of quo warranto, the person, invoking the jurisdiction of the High Court, under Article, 199 of the Constitution, is not required to fulfil the stringent conditions required for bringing himself within the meaning of an aggrieved person. Any person can move High Court to challenge the usurpation or unauthorized occupation of a public office by the incumbent of that office and he is not required to establish his locus standi to invoke constitutional jurisdiction, under Article 199 of the Constitution, in the manner as generally required by this Article.
12. As far as the objection of the learned counsel for the respondent No,1 regarding the availability of an efficacious alternative remedy, as provided under Article 63(2) of the Constitution of Islamic Republic of Pakistan, 1973, is concerned, the same is repelled by the judgment, pronounced in the case of Nacieeb Ullah Khan v. Malik Imran Khan and 6 others (PLD 2006 Peshaivar 21), wherein, it has been held that the jurisdiction of High Court would not be barred where the respondent was disqualified from being elected while filing nomination papers. It has been further held that the bar of jurisdiction, contained in Article 225 of the Constitution, would not attract where a person, having some interest, furnishes information to the High Court and challenges the very holding of public office, on the ground that member was disqualified to hold such public office. Even otherwise, a writ of quo warranto is not barred by alternative efficacious remedy, where the challenge to the holding of the office is thrown on the basis of a continuing disqualification and not only in respect of a disqualification, which existed at the time of election. The election petition, as provided in Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 or a reference, under Article 63(2) of the Constitution of Islamic Republic of Pakistan, 1973, and invoking the jurisdiction of the High Court, under Article 199(1)(b)(ii) of the Constitution of Islamic Republic of Pakistan, 1973, are two distinct and independent remedies for enforcing independent rights because latter seeks to determine the entitlement to hold office and not the validity of the election as the disqualification is still continuing even after the election. The learned counsel for the respondent No,1 also tried to assail the maintainability of the instant petition by making a reference to Clause (3) of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In this regard, it would be advantageous to reproduce the said provision as under:- "An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those forces, in respect of his terms and conditions of services, in respect of any condition action taken in relation to him as member of, the Armed Forces of Pakistan or as a person to such law."
' A careful perusal of aforementioned provision of the Constitution indicates that the same is meant to provide exemption to actions taken by the Armed Forces in relation to the service T5rits members when they are for the time being subject to any law relating to any of those forces, in respect of his terms and conditions and not when their services are terminated or dispensed with.
The said provision of Constitution protects the service matters of an existing member of Armed Forces, which cannot be called in question by invoking extraordinary jurisdiction of this Court. It does not in any manner exempt a person to hold the shield of Article 199(3) of the Constitution, once he has been dismissed from service. If applicability of Article 199(3) is stretched to the extent as pleaded by the learned counsel for respondent No,1, this will mean that a person who is not qualified to hold field as an ordinary member of Armed Forces on ground of misconduct and is not eligible fore service any more in said force, can safely hold office as important and sacred as Member of Parliament and his authority cannot be challenged in the inherent and extraordinary jurisdiction of this Court. Certainly, this is not the object and scope of Article 199(3) of the Constitution and hence, I am of the view that respondent No,1 cannot take benefit of the said provision of Constitution as he is no longer in service of the Armed Forces, rather, he was dismissed from service in 1977.
13. Regarding the objection of respondent No,1 about the delay in filing the instant petition and the applicability of the principle of laches, suffice to observe that the question of limitation or laches does not apply in cases of quo warranto, as Courts cannot allow to perpetuate the usurper to continue in a public office. Unlawful holding of a public office is a continuing wrong, which can be called in question by any party at any time. Furthermore, a Constitutional petition cannot be dismissed on the ground of laches, without examining dictates of justice in claim of each party, in addition to examination of law and jurisdictional point involved in the petition. In this connection, a reference could be made to judgments, reported in Mr. Fazlul Qauder Chowdhry and others v. Mr. Muhammad Abdul Hague (PLD 1963 Supreme Court 486), Syed Ali Raza Asad Abidi v. Ghulam Ishaq Khan, President of Pakistan and another (PLD 1991 Lahore 420) and Muhammad Siddique, Advocate v. Farhat Ali Khan and another (PLD 1994 Lahore 183). Consequently, it is decided that the instant petition is not barred by the principle of laches.
14. Having decided the maintainability of the instant petition, now, I advert to the grounds, advanced by the petitioners for passing an order regarding the holding of the office of M.N.A. By the respondent No,1 as being without legal authority. As far as the objection of the petitioners regarding the educational qualification of respondent No,1 is concerned, the same pales into insignificance after a categorical reply of respondents No4 and 3, i.e, University of the Punjab, Lahore and Board of Intermediate and Secondary Education, Sargodha, respectively, wherein, they have confirmed the passing of the Annual Inter Examination, 1969 and B.A. Examination by the present respondent No, 1.
The respondent No,2 declared in unequivocal terms that respondent No,1 is a graduate, who according to the record of the University of the Punjab, Lahore, qualified B.A. Examination under Roll No,008663 with Registration No,2002-Z-26773. The University of the Punjab, Lahore rebutted the allegation of the petitioners that the respondent No,1 is not qualified to hold the office of M.N.A., as he is not a graduate. Hence, this ground for seeking disqualification of the respondent No,1 is not available to the petitioners.
15. The second ground for seeking the disqualification of the respondent No,1, taken by the petitioners, is his conviction and dismissal from service on the ground of misconduct. In order to substantiate this very ground, the petitioners contended that the respondent No,1, who was employed as a Corporal Technician in Pakistan Air Force, was awarded punishment for eight months' R.I. (two months' R.I. Was remitted as undergone during the trial) and consequently, dismissed from service, vide order dated 19-4-1977. The petitioners further contended that the respondent No,1 remained in Central Prison, Karachi, as well as District Jail, Lyalpur (now Faisalabad) to suffer the sentence, awarded to him. The petitioners claimed that the respondent No,1 suffered lifetime disqualification to contest any election, under Article 63(i) of the Constitution of Islamic Republic of Pakistan, 1973 read with section 99 of the Representation of the People Act, 1976. The respondent No,1 evasively denied the said allegation by claiming that he was only discharged from service for overstaying causal leave without sufficient cause. The respondent No,1 also pleaded that neither the said act could be considered as a misconduct nor an offence involving moral turpitude, as envisaged in Article 63(h)(i) and (j) of the Constitution of Islamic Republic of Pakistan, 1973. The learned counsel for the respondent No,1 contended that the nomination papers of the respondent No,1 were rejected by the Returning Officer on this score alone, vide order dated 1-12-2007, against which the respondent No,1 filed an Appeal No,7/R/2007 before the Appellate Tribunal of Lahore High Court, Lahore, which was allowed, vide order dated 8- 12-2007. The learned counsel for the respondent No,1 argued that the Appellate Tribunal of Lahore High Court, Lahore on the basis of a report, submitted by an officer of PAF, during the proceedings of the said appeal, came to the conclusion that the present respondent No,1 was not dismissed but discharged from service and permitted him to contest the elections, held in the year, 2008. The learned counsel for the respondent No,1 was of the view that this objection, having been decided by the learned Appellate Tribunal of this Court, cannot be agitated afresh through the instant petition.
16. On the contrary, the learned counsel for the petitioners not only vehemently contested the correctness of the findings, recorded by the learned Appellate Tribunal of this Court in its order dated 18-12-2007, regarding the dismissal of the present respondent No,1 from service, but also maintained that this Court, while hearing and deciding a writ, under Article 199(1)(b)(ii) of the Constitution of Islamic Republic of Pakistan, 1973, is not debarred from enquiring and determining the legal authority of holder of a public office and decide that he was holding such office in accordance with law or was unauthorizely occupying a public office. During the proceedings of the instant petition, the respondents Nos.4 to 7 submitted their written statements, wherein, they clearly admitted that Ex-Corporal Technician/Nawab Sher/respondent No,1 was dismissed from service by the Court of competent jurisdiction, i.e, District Court Martial convened under PAF Act, 1953 on a charge of overstaying leave. They also confirmed that Nawab Sher/respondent No,1 was awarded eight months' R.I. (remitted two months' R.I.) and dismissed from service after having been found guilty of the charge of overstaying leave, vide order dated 19-4-1977. Nevertheless, the respondents Nos.4 to 7 explained that the charge of overstaying leave, under section 39(b) PAF Act, 1953, is a normal service offence not involving moral turpitude. Similarly, the respondent No,8/Superintendent, Central Prison (Sabzi Mandi), Karachi admitted in his comments that Nawab Sher/respondent No,1 remained detained in Central Prison, Karachi from 2-6-1976 upto 2-2-1977 and thereafter, was transferred to District Jail, Lyalpur. No doubt, the respondent No,9/Superintendent District Jail, Lyalpur (now Faisalabad) could not give a detailed reply regarding the detention of the respondent No,1 in District Jail, Faisalabad, ostensibly on the ground of the record having been damaged due to termite but there is hardly any reason to draw an inference that the present respondent No,1 did not complete his remaining sentence in District Jail, Faisalabad after having been transferred from Central Prison, Karachi on 5-7-1977. Hence, notwithstanding the observations of the learned Election Tribunal, contained in the order dated 8- 12-2007, it is established beyond any shadow of doubt that the present respondent No,1 was not only convicted and awarded punishment of six months' R.I. But also dismissed from service on the charge of overstaying leave by the District Court Martial, vide order dated 19-4-1977. The next question to be determined by this Court is whether the charge of overstaying leave falls within the mischief of moral turpitude or misconduct, as provided in Article 63(i) and (j) of the Constitution of Islamic Republic of Pakistan, 1973. In this regard, not only the respondents Nos.4 to 7 clarified that the charge of overstaying leave is not an offence involving moral turpitude but also the learned counsel for the petitioners candidly conceded that the conviction of the respondent No,1 was not for an offence involving moral turpitude. Admittedly, the respondent No,1, who was an employee of the Pakistan Air Force, remained absent from duty with effect from 3-6-1976 to 2-2-1977 and he was tried and convicted for an offence, falling under section 39(b), PAF Act, 1953, by a District Court Martial and was awarded eight months' R.I. (two months' R.I. Remitted) along with dismissal from service. Absence from duty without sanctioned leave, particularly, of an employee of Pakistan Air Force, is undoubtedly, a misconduct. In this case, not only the present respondent No,1 was charged for overstaying leave but also tried and convicted for the said offence by a District Court Martial.
Hence, it is held that the respondent No,1 was dismissed from service of Pakistan on the grounds of misconduct, vide order dated 17-4-1977. In arriving at this conclusion, I draw strength from the dictum laid down in the case pf [Malik Saleh Muhammad Gunjial v. Kamran Elahi Bandial and others (2008 SCMR 1), which reads as under:-- "Art. 63(1)(i)---Election petition---Returned candidate having been dismissed from service of Air Force for absence from duty---Effect---Court Martial of returned candidate had not been held, which would not mean that he had not been found guilty of absence from duty---Absence from duty itself would be a misconduct on the part of a person in Government service---Returned candidate was disqualified to contest election of Provincial Assembly---Election petition was accepted in circumstances. "
17. Now, I come to the most crucial ground, advanced by the petitioners for challenging the qualification of respondent No,1 to be elected or chosen as a Member of Majlis-e-Shoora (Parliament), i.e, he is not honest and ameen, as envisaged in Article 62(t) of the Constitution of Islamic Republic of Pakistan, 1973 read with section 99 of the Representation of the People Act, 1976.
The learned counsel for the petitioners submitted that the respondent No,1 filed his nomination papers to contest election for Constituency Nos.PP-44, Faisalabad and NA-58, Faisalabad in the year, 1996, and his nomination papers were rejected and he was not permitted to contest the elections, being not an honest person, by the Election Tribunal of Lahore High Court, Lahore, vide order dated 6-1-1997. The learned counsel for the petitioners maintained that the said judgment, dated 6-1-1997, of the Election Tribunal of Lahore High Court, Lahore has attained finality. He argued that the respondent No,1 was adjudged as being not an honest person and as such, was not qualified to contest the elections throughout his life within the meaning of Article 62(1) of the Constitution of Islamic Republic of Pakistan, 1973. The learned counsel for the petitioners submitted that the remarks were not expunged and the word "derogatory" cannot be equated with the word "expunge". The learned counsel for the petitioners referred to the following dictionary meaning of the , words "derogatory" and "expunge":-- The Law Lexicon: "Derogatory, Detracting: tending to lessen effect or estimation." Black's Law Dictionary:
(1) Derogation, disparagement, depreciation in value or estimation.
(2) Expunge, to erase or destroy.
' Conversely, the learned counsel for the respondent No,1 submitted that the judgment of the learned Appellate Election Tribunal of Lahore High Court, Lahore was challenged in Writ Petition No,669 of 1997, wherein, a grievance was made regarding the dubbing of the present respondent No,1 as not being an honest person by the Tribunal. The learned counsel for the respondent No,1 asserted that not only a Bench, comprising of the three Hon'ble Judges of this Court, acknowledged the force in the grievance, raised in the said writ petition, and arguments, advanced therein, but also directed that the remarks, passed by the Election Tribunal shall not be considered to be derogatory to the petitioner, vide judgment dated 16-1-1997. The learned counsel for the respondent No:1 maintained that no adverse inference can be drawn against the respondent No,1 on the basis of the judgment of the Appellate Election Tribunal of this Court, which has been modified by a larger Bench of this Court, comprising of three Hon'ble Judges, vide order dated 16-1- 1997. The learned counsel for the respondent No,1 claimed that in the presence of the judgment, dated 16-1-1997, the respondent No,1 cannot be considered as a dishonest person.
18. In order to determine the real impact of the remarks, passed by the Election Tribunal/Appellate Authority in judgment, dated 6-1-1997, it is advantageous to reproduce hereunder the relevant paras of the said judgment, dated 6-1-1997, as well as judgment dated 16-1-1997, delivered by a larger Bench, comprising of three Hon'ble Judges of Lahore High Court, Lahore, in Writ Petition No,669 of 1997:-- 6-1-1997 .
"The admitted position is that both the sons are minors and students and wife is also dependent.
Such a person who is avoiding payment of Government dues and concealing his income cannot be called as honest by any stretch of imagination. It is clear from his statement that the all this property was made by him as sitting MPA. He being as income tax assessee was under legal obligation to submit Wealth Tax Return. His statement recorded by the Returning Officer, is sufficient to hold disqualified him to contest the election being not honest person."
16-1-1997.
"The petitioner's grievance is that he has been dubbed as dishonest person by the Tribunal. We see some force in the argument being raised. However, without entering into any further controversy we direct that the remarks passed by the Tribunal shall not be considered to be derogatory to the petitioner." (Underlining is for emphasis)
19. Keeping the aforementioned two judgments of this Court, dated 6-1-1997 and 16-1-1997, in juxtaposition, it is clear that the present respondent No,1 challenged the remarks, passed against him by the learned Appellate Election Tribunal, whereby he was termed as a dishonest person before a larger Bench, comprising of three Hon'ble Judges of this Court, wherein, vide order dated 16-1-1997, it was declared that the remarks, passed by the Tribunal, shall not be considered to be derogatory to the petitioner. As observed above, "derogatory" means "disparagement, detracting, tending to lessen effect of estimation", The word "disparagement" has been defined in Black's Law Dictionary as "To dishonour (something or someone) by comparison and to unjustly discredit or detract from the reputation". Hence, in the light of the above dictionary meanings of the word "derogatory", the present respondent No,1 cannot be estimated, valued or dishonoured or discredited as a dishonest person. Even otherwise, the learned Election Tribunal of Lahore High Court, Lahore, prior to declaring the present respondent No,1 as being not an honest person, did not conduct any enquiry and passed the remarks merely in view of nonpayment of Government dues.
Needless to mention here that the solitary act of the non-payment of Government dues or non- submission of wealth tax return is not a conclusive proof of the dishonesty of a person. It is worth consideration that the terms "Honest" and "Dishonest" are very comprehensive and cover multi- dimensional aspects of the personality, behaviour and character of a person. In this particular case, the remarks/observations, made by the learned Election Tribunal/Appellate Authority in its judgment dated 6-1-1997 were not upheld/approved by a larger Bench, comprising of three Hon'ble Judges of this Court, vide judgment dated 16-1-1997, wherein, it was held that the same shall not be considered to be derogatory to the petitioner. Hence, the present respondent No,1 cannot be considered as a dishonest person, as envisaged in Article 62(f) of the Constitution of Islamic Republic of Pakistan, 1973 read with section 99 of the Representation of the People Act, 1976.
20. The upshot of *the above discussion-and observation is that the petitioners could not succeed in proving that the respondent No,1 did not possess the requisite educational qualification, as envisaged in Article 8-A of the Conduct of General Elections Order, 2002. The petitioners also could not establish that the respondent No,1 is not an D honest person, as envisaged in Article 62(f) of the Constitution of Islamic Republic of Pakistan, 1973 read with section 99 of the Representation of the People Act, 1976. However, the petitioners were able to prove that the respondent No,1 was convicted and dismissed from service on the ground of misconduct, vide order dated 19-4-1977.
21. Before proceedings further in the matter, it is imperative toquote the original and the amendments, made in Article 63(i) of the Constitution on 20-4-2010 through Constitution (Eighteenth Amendment) Act, 2010, which is as under:- Before Amendment: "(63) Disqualifications for membership of Majlis-e-Shoora (Parliament).---(1) A person shall be disqualified from being elected or chosen as and from being, a member of the Majlis-e-Shoora (Parliament), if---
(a) ------------------------------------
(b) ------------------------------------
(c) ------------------------------------
(d) ------------------------------------
(e) ---------------------------------------------
(f) ------------------------------------
(g) ------------------------------------
(h) ---------------------------------------------
(i) He has been dismissed from the service of Pakistan or service of a corporation or. Office set up or controlled by Local Government on the grounds of misconduct or moral turpitude; or After Constitution (Eighteen Amendment) Act, 2010: "63. Disqualifications for membership of Majlis-e-Shoora (Parliament).---(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if-- (a)
(b)
(c)
(d)
(e)
(g)
(h)
(i) He has been dismissed from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct, unless a period of five years has elapsed since his dismissal; or (Underlining is for emphasis)
' After the 18th Amendment in the Constitution of Islamic Republic of Pakistan, 1973, a person shall not be disqualified from being elected or chosen as and from being a Member of Mijlis-e-Shoora (Parliament), if he has been dismissed from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the ground of misconduct unless a period of five years has elapsed since his dismissal, according to Article 63(i) of the Constitution of Islamic Republic of Pakistan, 1973. The present respondent No,1 was dismissed from service on 19-4-1977 and as such, a period of five years has elapsed since his dismissal. Consequently, he is not disqualified from beitig a Member of Mijlis-e-Shoora (Parliament), as provided in Article 63(i) of the Constitution of Islamic Republic of Pakistan, 1973.
22. This brings us to the last question regarding the effect of the 18th Amendment, which was made in the Constitution of Islamic Republic of Pakistan, 1973 during the pendency of the instant writ petition. Admittedly, the instant writ petition was instituted on 13-4-2010 and the Constitution (Eighteen Amendment) Act, 2010 was notified on 20-4-2010. In this regard, the learned counsel for the petitioners argued that the Constitutional Amendment cannot be given retrospective effect and the rights of the parties are to be decided according to the law, which existed at the time of the filing of the instant Constitutional petition. The learned counsel for the petitioners, in order to substantiate his arguments, referred to Article 264 of the Constitution of Islamic Republic of Pakistan, 1973 as well as Section 6-A of the General Clauses Act, 1897. In this regard, it will be advisable to reproduce hereunder Article 264 of the Constitution of Islamic Republic of Pakistan, 1973:-- Effect of repeal of Laws:--
264. Where a Law is repealed, or is deemed to have been repealed, by, under, or by virtue of !Fie Constitution, the repeal shall not, except as otherwise provided in the Constitution,--
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect the previous operation of the law or anything duly done or suffered under the law;
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law;
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability penalty, forfeiture or punishment; or any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed.
' Article 264 of the Constitution of Islamic Republic of Pakistan, 1973 deals with the effect of repeal of laws. Similarly, section 6-A of the General Clauses Act, 1897 is reproduction of Article 264 of the Constitution of Islamic Republic of Pakistan, 1973. No doubt, the repeal of a law shall not affect the legal proceeding existing at the time at which the repeal takes effect. However, there is a difference between "repeal of laws", as envisaged in Article 264 of the Constitution of Islamic Republic of Pakistan, 1973 and amendment of the Constitution, as provided under Articles 238 and 239 of the Constitution of Islamic Republic of Pakistan, 1973. In the instant case, it was not repeal of a law, as provided in Article 264 of the Constitution, rather, amendments, amongst others, in the Article 63(i) and (j) of the Constitution, were made in accordance with Articles 238 and 239 of the Constitution of Islamic Republic of Pakistan, 1973. Therefore, the arguments of the learned' counsel for the petitioners that the Constitution (Eighteenth Amendment) Act, 2010, notified on 20-4-2010, has got no effect on the instant petition, are without any legal force. All the judgments, referred by the learned counsel for the petitioners, deal with the effect of the repeal of a law and not with the amendments in the Constitution, according to Articles 238 and 239 of the Constitution. As observed above, dismissal from service of Pakistan on the ground of misconduct after a period of five years is no longer a disqualification for being a member of Majlis-e-Shoora (Parliament), according to Article 63(i) of the Constitution of Islamic Republic of Pakistan, 1973, after the 18th Amendment. The provisions of section 99 of the Representation of the People Act, 1976 although not amended but cannot override the amended Article 63(i) of the Constitution of Islamic Republic of Pakistan, 1973.
The Hon'ble Supreme Court of Pakistan in a judgment, reported in Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 635), has settled the principle of the interpretation of the statutes by declaring that the provisions, enshrined in the Constitution, shall prevail notwithstanding anything contained in an enactment subordinate legislation, under the Constitution.
23. The instant petition has been filed under Article the Constitution of Islamic Republic of Pakistan, 1973, reproduced hereunder:-- piece of 199(1)(b)(ii) of which is being.
"199. Jurisdiction of High Court. (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law.
(a) -------------------------------- (i)
(ii) -----------------------------------------
(b) on the application of any person, make on order requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; Any order, in the instant petition of the petitioners, under Article 199(1)(b)(ii), is to be made "subject to the Constitution". Article 63(i) of the Constitution of Islamic Republic of Pakistan, 1973, as it stands today, does not provide for disqualification of a person from being Member of Mijlis-e-Shoora (Parliament), if he has been dismissed from service of Pakistan and a period of five years has elapsed since his G dismissal. Admittedly, the present respondent No,1 was dismissed from service on 19-4-1977 and a period of five years has elapsed since his dismissal. Therefore, the respondent No,1 does not suffer from any disqualification to hold the office of M.N.A on the date of issuance of the writ of quo warranto. In case of Sardar Asseff Ahmad Ali v. Mr.Muhammad Khan Junejo and others (PLD 1986 Lahore 310) it has been held as under:-- "Public office-Disqualification-Constitutional jurisdiction---Quo Warranto, writ of---High Court cannot issue writ in the nature of Quo Warranto and order removal of a person from public office where both at time of writ petition and date of its decision, person did not suffer from any disqualification to hold a public office or to warrant removal from such office."
' The said dictum of law was further fortified in the case of M.A. Jabbar and 3 others v. Federation of Pakistan through Secretary, Establishment ' Division, Government of Pakistan (1999 PLC (C.S.) 686) in which it was decided as under:-- "Crucial date to determine the qualification of such person to hold a post is not only the date of appointment but also the date of issuance of writ---Where pending disposal of his Constitutional petition, a person fulfils the qualification to hold such a post, writ of quo warranto is not to be issued."
' This interpretation was also followed in the judgments, reported in the cases of Dr. Mujahid Ali Mansoor and others v. University of the Punjab and others (2005 PLC (C.S.) 694) and Lt.-Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agricultures, Government of West Pakistan, Lahore (PLD 1970 Supreme Court 98).
24. From the perusal of the above quoted judgments, it is clear that the disqualification to hold a public office must exist both at the time of the filing of the Constitutional petition and at the time/date of its decision. In the instant case, after Constitution (Eighteenth Amendment) Act, 2010, which came into force at once on 20-4-2010 (during the pendency of this petition), lifetime disqualification on the ground of dismissal from service due to misconduct, as provided in the original paragraph (i) of Clause (1) of Article 63 of the Constitution of Islamic H Republic of Pakistan, 1973 has ceased to exist and as such, a writ'of quo warranto cannot be issued to declare that the respondent No,1 is disqualified from being a Member of National Assembly of Pakistan. The existence of a similar disqualification in section 99 of the Representation of the People Act, 1976 cannot be pressed in service as the constitutional provision would override any other provision in a statute. Moreover, a writ of quo warranto is to be issued subject to the provisions of the Constitution itself and not any other statutory law.
25. As a sequel to the above discussion, it is proved that respondent No, 1 possessed the qualification to be elected or chosen as a Member of Majlis-e-Shoora (Parliament), as contained in Article 62 of the Constitution of Islamic Republic of Pakistan, 1973. Likewise, the petitioners have not been able to establish that respondent No, 1 is presently suffering from any disqualification from being a Member of Majlis-e-Shoora (Parliament), as laid down in Article 63 of the Constitution of Islamic Republic of Pakistan, 1973. Consequently, respondent No, 1 has succeeded in showing the authority of law under which he is holding the office of M.N.A., and as such, no order, under Paragraph (b)(ii) of Clause (1) of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, in the nature of a writ of quo warranto, could be passed/issued against respondent No, 1 on the instant application of the petitioners.
26. For the foregoing reasons, the instant petition, being devoid of any legal force, is accordingly dismissed.