' The petitioner is aggrieved of an order dated 7-4-2013 passed by the Returning Officer, NA-162, Sahiwal III, whereby the nomination papers of the petitioner were rejected. The appeal filed by the petitioner before the Election Tribunal of this Court was also dismissed vide order dated 17-4-2013.
The petitioner assails both orders through this petition.
2. While this petition was pending, the petitioner, who was facing trial before the Court of Session at Sahiwal for offences of corrupt practices under section 78 of Representation of the People Act, 1976 read with sections 199 and 200, P.P.C. Was convicted and sentenced to imprisonment as well as fine on three different counts. It is contended that without prejudice to the reasons recorded in the impugned orders, the main hurdle in the way of the petitioner is his conviction by a court of competent jurisdiction. Unless the said hurdle is crossed, addressing arguments regarding the impugned orders would be a futile exercise. The learned counsel have, therefore confined their arguments to the question of the legal effect of the petitioner being convicted and sentenced.
3. It appears that pursuant to an appeal filed by the petitioner, a learned Bench of this Court at Multan has suspended the sentence in exercise of powers under section 426 Cr.P.C. Vide order dated 6-5-2013. The learned counsel for the petitioner submits that conviction and sentencing of the petitioner does not furnish basis for disqualification of the petitioner. It is argued that section 430, Cr.P.C. Provides that judgments and orders passed by an Appellate Court upon appeal become final, meaning thereby that where an appeal has been filed and is pending, the judgment of the trial Court is not final till such time that the appeal is decided. Therefore, the adverse effects of conviction by the trial. Court cannot be brought to bear on an accused whose appeal is pending, specially so where the appellate court has suspended his sentence. He relies on a judgment of an Election Tribunal of this Court reported as Sikandar Hayat Khan Bosan v. Syed Yousaf Raza Gillani and another (2008 CLC 240) to argue that the conviction of the petitioner has not attained finality and the Appellate Court has suspended the sentence. Therefore, he does not suffer from any disqualification.
4. The learned counsel for the petitioner further submits that the judgment of the trial Court suffers from a patent illegality. Referring to section 26 of the General Clauses Act, 1897, he submits that where an act or omission constitutes an offence under two or more enactments, the offender is liable to be prosecuted and punished under any one of such enactments and is not liable to be tried and punished under two different enactments because this would impinge upon the constitutional protection against double jeopardy available to the petitioner. The learned counsel argues that the petitioner had allegedly committed only one offence namely signing of a false declaration claiming to be qualified to be elected or chosen as a member of the Majli e Shoora (Parliament) under Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan, 1973.
Therefore, his conviction on three different counts under two different laws namely Representation of the People Act, 1976 and the Pakistan Penal Code is not sustainable. He finally argues that the sentence of the petitioner is less than two years. Therefore, he is not hit by the provisions of Article 63(1)(h) of the Constitution.
5. The learned counsel for respondent No,4 however submits that the petitioner has been convicted by the Court of Session Sahiwal vide judgment dated 25-4-2013 on three counts. The petitioner has been found guilty under section 82 of Representation of the People Act, 1976 and awarded sentence of one year and three months with fine of Rs,5000/- and in default of payment of fine, he is required to undergo one month simple imprisonment. He has also been convicted under section 199, P.P.C. And awarded a sentence of one year and three months with fine of Rs,5000/- in default of payment of which, he is required to undergo one month simple imprisonment. The, petitioner has also been convicted under section 200, P.P.C. And awarded a sentence of one year and three months with fine of Rs,5000/-. In default of payment of fine, he is required to undergo one month simple imprisonment. He submits that the petitioner has been sentenced for imprisonment for 3 years and 3 months and not for 13 months as claimed by the learned counsel for the petitioner.
6. The learned counsel for respondent No,4 further submits that the petitioner has admittedly been convicted for submitting a false declaration. As such, his case is covered by section 99(1)(g)
Representation of the People Act, 1976.
7. The learned counsel points out that in terms of Article 63(1)(p) of the Constitution of Islamic Republic of Pakistan, 1973, since the petitioner has been convicted under the provisions of the Representation of the People Act, 1976, he is disqualified from being elected or chosen or from being member of the Majlis-e-Shoora (Parliament). He argues that the petitioner's conviction also constitutes a declaration by a court of law as envisaged under Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973. He is therefore also hit by the said Article of the Constitution.
8. The learned counsel for respondent No,4 maintains that suspension of sentence does not mean suspension of conviction. He relies upon Abdul Kabir v. The State (PLD 1990 SC 823) in support of this argument. He submits that during pendency of appeal, the Appellate Court may suspend the sentence in exercise of powers under section 426, Cr.P.C. However, the conviction remains operative, till it is set aside by an appellate forum or specifically suspended by such appellate forum. Further, pendency of appeal does not mean that the conviction has been suspended. -
9. The learned counsel for respondent No,4 has also relied upon Pir Mazhar-ul-Haque v. Election Tribunal-I (2003 CLC 300) where in a similar matter despite the fact that the Hon'ble Supreme Court of Pakistan had suspended the sentence of imprisonment of the accused, he was found to be disqualified from being elected as Member of Majlis-eShoora (Parliament) or any Assembly.
10. The learned counsel for the respondent No,4 also submits that in view of the fact that the petitioner has been convicted and sentenced on three counts for an aggregated period of 39 months (3 years and 3 months), he cannot claim to have been convicted for 13 months and thus take the benefit of Article 63(1)(h). Admittedly his conviction has neither been suspended nor set aside. Be finally argues that mere suspension of the sentence does not remove the disqualification envisaged in section 99(1A)(h) read with Article 63(1)(p) of the Constitution of Islamic Republic of Pakistan, 1973.
11. We have heard learned counsel for the parties and gone through the record. Admittedly, the petitioner has been sentenced by a Court of Session on three different counts namely for violation of section 82 of Representation of the People Act, 1976, under sections -199 and 200 of A P.P.C.
Further he has been punished for a period of thirteen months on each count. Therefore, the cumulative effect of the three different convictions is that he has inter alia been sentenced to imprisonment for an aggregate period of 39 months. Although the benefit of running of the sentences concurrently has been granted to the petitioner, the same does I not mean that he has not been sentenced for a period of 39 months. The B concurrent running of sentence is for the purpose of calculating the actual period for which the petitioner will be held in jail, if his appeal does not succeed. However, the same has no effect on the quantum of sentence awarded by the trial Court on each count for the purpose of Article 63(1)(h) of the Constitution read with section 99(1-A)(h) of Representation of the People Act, 1976.
12. The argument of learned counsel for the petitioner that till such time that the appeal is finally decided the conviction of the petitioner will be deemed to be held in abeyance has not impressed us. There is nothing in the language of section 426 or 430 Cr.P.C. That may lend support to this argument. The Hon'ble Supreme Court of Pakistan in Abdul Kabir v. The State (PLD 1990 SC 823) has dealt with the said argument and held that a conviction is complete as soon as the person charged has been found guilty by a Court of competent jurisdiction. Likewise in a judgment of the Sindh High Court reported as Pir Mazhar-ul-Hague v. Election Tribunal-I (2003 CLC 300) an Election Tribunal of the said Court in an identical situation came to the conclusion that nomination papers of the petitioner were liable to be rejected on the ground that only his sentence had been suspended which did not mean that his conviction had also been suspended.
13. The main question requiring determination by this Court is whether an order of suspension of sentence under section 426, Cr.P.C. Also operates as suspension of conviction without a specific order of suspension of conviction. The answer to the said question is clearly in the negative. As discussed above, the August Supreme Court of Pakistan in "Abdul Kabir's case ibid "and an Election Tribunal of the Sindh High Court in "Pir Mazhar ul Haq's case ibid", have already held that suspension of sentence does not mean or include suspension of conviction and despite suspension of sentence, the conviction remains intact.
14. This questions was also examined in the Indian jurisdiction with reference to section 389 of the Indian Code of Criminal Procedure, which is pari materia to our section 426, Cr.P.C. In the case of "Ravi Kant S. Patel v. Sarvabhoma S. Bagali (2007) 1 Supreme Court Cases 673, the Indian Supreme Court came to the following conclusion:--- "Section 374 of the Code of Criminal Procedure (for short "the Code") provides for a remedy of filing appeal by any person convicted for trial by the Sessions Judge. Section 389 of the Code, inter alia, provides that pending any appeal by a convicted person, the appellate court may, for reasons recorded by it in writing, order that the execution of sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail or on his own bond.
' The question whether an order of conviction can be stayed, in the absence of a specific provision for such stay in the Code, came up for consideration before this Court in Rama Narang v. Ramesh Narang. In the said case, the order that had been passed, while admitting the appeal, by the High Court purporting to be one under section 389(1) of the Code was to the following effect: (SCC p.
522 para. 11)
' Accused be released on bail on his furnishing a personal bond in the sum of Rs, 10,000 with one surety in the like amount to the satisfaction of the trial Judge. The operation of the impugned order shall remain stayed."
' One of the questions that was examined in that case was whether the power under section 389
(1) of the Code could be invoked to stay the conviction. This Court held that an order of conviction by itself is not capable of execution under the Code of Criminal Procedure, but in certain situations, the order of conviction can become executable in a limited sense, inasmuch as it may result in incurring of some disqualification under other enactments. And that in such cases, it was permissible to invoke the power under section 389(1) of the Code for staying the conviction also.
(underlining for emphasis) We extract below the reasoning for such a conclusion, given by this Court: (SCC p.527, Para-19)
"That takes us to the question whether the scope of section 389(1) of the Code extends to conferring power on the appellate court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some disqualification of the type mentioned in section 267 of the Companies Act, we see no reason why we should give a narrow meaning to section 389(1) of the Code to debar the court from granting an order to that effect in a fit case.
The appeal under section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred under section 374 of the Code the. Appeal is against both the conviction and sentence and therefore, we see no reason to place a narrow interpretation on section 389(1) of the Code not to extent it to an order of conviction, although that issue in the instant case recedes to the background because High Courts can exercise inherent jurisdiction under section 482 of the Code if the power was not to be found in section 389(1) of the Code."
' This court, however, clarified that the person seeking stay of conviction should specifically draw the attention of the appellate court to the consequences that may arise if the conviction is not stayed; and that unless the attention of the court to the specific consequences that are likely to fall upon conviction, the person convicted cannot obtain an order of stay of conviction. In fact, if such specific consequences are not brought to its notice, the court cannot be expected to grant stay of conviction or assign reasons relevant for staying the conviction itself instead of merely suspending, the execution of the sentence. In that case, it was found on facts that the appellant therein had not specified the disqualification he was likely to incur under section 267 of the Companies Act, if his conviction was not stayed. Therefore, this Court refused to infer that the High Court had applied its mind to this specific aspect of the matter and had thereafter granted stay of conviction or the operation of the impugned judgment. Consequently, the order of stay was not construed as a stay of conviction.
' It deserves to be clarified that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. (underlining for emphasis) An order of stay, of course, does not render the conviction non-existent, but only non- operative. Be that as it may. Insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying the consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction.
15 In the case of KC Sareen v CBI (2001) SCC 584, the Indian Supreme Court held as under:- .. Though the power to suspend an order of conviction, apart from the order of sentence, is not alien to section 389(1) of the Code, its exercise should be limited to very exceptional cases. It was further held that merely because the convicted person files an appeal to challenge his conviction, the court should not suspend the operation of the conviction and the court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance."
16. We have also gone through the judgment in Sikandar Hayat Khan Bosan's case ibid, which has been relied upon by the learned counsel for the petitioner in support of his contentions. We find that the principles of law laid down in the said judgment are not attracted to the facts and circumstances of the present case. In the said case the conviction as well as the sentence of the respondent had been suspended by a Division Bench of this Court. On those facts the Tribunal held that since the conviction as well as the sentence had been suspended, the respondent in the petition was not hit by the bar contained in. Article 63(1)(h) of the Constitution of Islamic Republic of Pakistan, 1973 read with 99(1A)(h) of Representation of the People Act, 1976. In the instant case it is not denied that only the sentence of the petitioner has been suspended. Therefore, it is clear to us that his conviction is still intact. Therefore, the petitioner is covered by the mischief of section 99(1A)(h) of Representation of the People Act, 1976 read with Articles 62(1)(f) and 63(1)(h) and (p) of the Constitution of Islamic Republic of Pakistan, 1973.
17. We, therefore, hold that there is distinction between conviction and sentence. Suspension of sentence does not mean automatic suspension of conviction also. There is however no bar on the power of the Appellate Court under section 426 to suspend sentence and also suspend the conviction in appropriate cases where an application is moved before such court if the adverse consequences of maintaining such conviction are brought to the notice of the Appellate Court and a specific prayer in this regard.
18. We are not persuaded by the argument of the learned counsel for the petitioner with reference to section 26 of the General Clauses Act, 1897 and the plea of double jeopardy raised by him. The vires or legality of the impugned order is not before us in these proceedings. The Appellate Court is already seized of the matter and would doubtlessly consider all pleas raised by the petitioner at the appropriate stage. Therefore, we consider it appropriate to restrain ourselves from commenting on the said plea lest it should prejudice the case of the either party in the appeal. No other ground has been urged by the learned counsel for the petitioner.
19. For the reasons recorded above, we do not find any merit in the instant petition. It is accordingly dismissed.