' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---This C.M.A. Has been filed by the Election Commission of Pakistan with the background that this Court had made two types of observations i,e, in one of the case arising out of the Civil Appeal No, 409 of 2010 titled Muhammad Rizwan Gill v. Nadia Aziz and others PLD 2010 SC 828 which was decided on 14th June, 2010, it was directed that the Election Commission of Pakistan to initiate action against all such persons who were accused of commission of corrupt practices, committing forgery and using, as genuine, documents which they knew or at least had reason to believe to be forged. Relevant paragraph from the said judgment reads as under:- "The: Election Commission is, therefore, directed to initiate action against all such persons who are accused of commission of corrupt practices; of committing forgery and of using, as genuine, documents which they knew or at least had reason to believe to be forged. The Election Commission shall ensure that the investigations in these matters are conducted honestly, efficiently and expeditiously and shall depute one of its senior officers to supervise the same. The learned Sessions Judges to whom these trials shall then be entrusted, are also directed to conclude the same without any delay, in consonance with the spirit of the Election laws as displayed, inter alia, by the Provisos namely added to subsection (1-A) of section 67 of the said Act of 1976 through the Amending Act No,IV of 2009 promulgated on 2-11-2009. In any case, it should not take each learned Sessions Judge, who gets seized of the matter, more than three months to conclude the same"
2. Whereas in another judgment announced in Civil Appeal No,191-L of 2010 titled Mian Najeeb-ud- Din Owaisi v. Arnir Yar and others (2011 SCM R 180) observations have been made that matter is required to be dealt with by Chief Election Commissioner in accordance with provision of section 78 of the Representation of the People Act, 1976 (hereinafter referred to as the Act, 1976) and to proceed against respondent No,1 for corrupt practices. Operative para therefrom is reproduced hereinbelow:- "(8) In instant case we are of the opinion, that in view of given facts and circumstances of the case which have been reproduced hereinabove prima facie, it appears that the matter is required to be dealt with by Chief Election Commissioner in accordance with the provision of section 78 of the ROPA, 1976 etc. Details of which have already been mentioned in above judgment. Therefore, in discharge of our constitutional and legal duty, we direct the Chief Election Commissioner to proceed according against respondent No,1 Aamir Yar following the observations already made in the judgment's
3. In the backdrop of above observations directing different authorities i,e, the Election Commission of Pakistan and the Chief Election Commissioner respectively as noted hereinabove, the Election Commission perhaps has experienced difficulty in lodging criminal proceedings against the person who is guilty of corrupt practices in respect of his educational qualifications etc. As has been defined under section 78(3)(d) of the Act, 1976. It would be appropriate to reproduce hereinbelow the definition of 'corrupt practice' relating to the extent of disposal of the case:- "78(3)(d). Corrupt practice.- A person is guilty of corrupt practice if he (1)
(2)
(3) makes or publishes a false statement (or submits false or incorrect declaration in any particular material) -
(a) ..........
(b) ..........
(c) ..........
(d) in respect of his educational qualifications, assets and liabilities, or any liability with regard to payment of loans or adherence to party affiliation specified in subsection (2) of section 12".
4. As per prayer clause of the instant application clarification has been sought that as to whether the Chief Election Commissioner individually and independently could proceed to get the aforesaid judgments of this Court implemented in light of the above mentioned constitutional and legal provisions. It may be noted in this behalf that on the last date of hearing i,e, 29th October, 2010 following order was passed:-- "For want of time and due to non-availability of learned Attorney-General for Pakistan, who is reported to be busy in some meeting, case is adjourned to 5-11-2010. In the meanwhile, learned Attorney-General may inquire from the concerned quarter that as to why Election Commission has not been constituted so far in accordance with the provision of Article 218 of the Constitution because in this matter it would be one of important questions for decision in the light of the observations made by this Court in the judgment, reference of which has been made in the application"
5. Learned Attorney-General for Pakistan in response to the above order has appeared and stated that pending completion/composition of Election Commission as per 18th Amendment in pursuance whereof Article 218 of Constitution of the Islamic Republic of Pakistan, 1973 has been amended, the clarification can be made by making reference to section 94 of the Act, 1976.
According to him, this section defines the category of cognizable offences inclusive of section 82 which provides punishment for offence under section 78(3) noted hereinabove. Learned Attorney- General has stated further that in respect of cognizable offences any one, on behalf of the Commission or the Chief Election Commissioner, is competent to file a case against the persons who were guilty of corruption and corrupt practices and that to achieve the object in terms of section 94, a complaint under section 95 has to be lodged by the Commissioner or by the Election Commission.
7. We have heard learned Attorney General for Pakistan and have also carefully gone through the relevant provisions of the law. It is to be noted that for the purposes of instant case, section 78(3)
(d) of the Act, 1976 which has already been reproduced hereinabove, defines the corrupt practices, whereas section 82 of the Act 1796 prescribes the penalty for the offence of corrupt practices. This offence has been made cognizable under section 94 of the Act, 1976, perusal whereof indicates that for invoking the jurisdiction of the Sessions Judge even an individual can lodge the complaint.
It would be appropriate to reproduce herein below section 94 of the Act:-- "(94) Certain offences cognizable.---(1) Notwithstanding anything contained in the Code of Criminal- Procedure, 1898, an offence punishable under (section 80A) or section 82 (or section 82A) or section 85 or subsection (1) of section 87 shall be cognizable offence.
(2) Notwithstanding anything contained in this Act or any other law for the time being in force, the offence of corrupt practice shall be tried by the Sessions Judge and an appeal against his order shall lie before a Division Bench of the High Court.
(3) Where proceedings against a person for being involved in corrupt practice are initiated on a complaint made by a private individual, and such person is convicted by the court and his conviction is maintained in final appeal, the complainant may be entitled to such reward payable out of the amount of fine as may be imposed by the court.
' Provided that where such complaint proves to be false, mala fide or is made for any ulterior motive to provide benefit to another person, the complainant shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both"
8. The careful perusal of the above provision indicates nothing about lodging the complaint either by an individual person or by the Chief Election Commission or by the Commissioner as is evident from the reading its plain language. It is rather section 95 of the Act, 1976 which contains the provisions about lodging complaint in respect of offences other than those falling under section 78 (3)(d) the Act, 1976 read with section 82 of the Act, 1976. It provides that the Commission or the Commissioner (Chief Election Commissioner) can lodge the complaint in respect of such other offences. For convenience sake section 95 is reproduced as under:-- "(95). Prosecution of offences by public officers.---(1) No Court shall take cognizance of an offence punishable under subsection (2) of section 87, section 89, section 90, section 91 or section 92 except upon a complaint in writing made by order of or under authority from, the Commission or the Commissioner.
(2) The Commission or the Commissioner shall, if it or he has reason to believe that any offence specified in subsection (1) has been committed, cause such enquiries to be made or prosecution to be instituted as it or he may think fit.
(3) An offence specified in subsection (1) shall be exclusively triable by the Court of .Session within the Jurisdiction of which the offence is committed.
[(4) In respect of an offence specified in subsection (1), section 494 of the Code of Criminal Procedure, 1898 (Act V of 1898), shall have effect as if after the word and comma "may," therein, the words "if so directed by the Chief Election Commissioner and" were inserted.]"
9. Thus, a comparative study of both the above-noted sections 94 and 95 of the Act, 1976 would indicate that there is no bar in lodging the complaint either by the Commission or by the Commissioner and by an individual in respect of offences made cognizable under section 82 of the Act. Therefore, in view of the above provisions of law it is clarified that the Chief Election Commissioner (the Commissioner) or the Commission both are competent to lodge the complaint notwithstanding the observation made in the judgments passed by this Court noted .Hereinabove.
Having made the clarification hereinabove, it is further clarified as regards sections 94 and 95 of the Act, 1976 that for the purpose of section 78(3)(d) notwithstanding the Commission or the Election Commissioner or any individual or any other person can lodge the complaint. The application stands disposed of in above terms.