' NASIR-UL-MULK, J.---The petitioner was declared as Returned Candidate in the General Elections of 2008 from Constituency NA-76 (Faisalabad-II). His election was challenged before the Election Tribunal by the losing candidate, Zahid Nazir. The said election petition was withdrawn on 19-3- 2010. Soon thereafter, on 14-4-2010, Chaudhry Muneer Ahmad, respondent No,1 herein, a registered voter in the said Constituency, filed Writ Petition No,7373 of 2010 before the Lahore High Court in the nature of quo warranto questioning the election of the petitioner. It was alleged in the Petition that the petitioner was disqualified to be elected essentially on three grounds; firstly, that he did not possess a B.A. Degree as the one furnished by him to the Election Commission was fake secondly, that he was dismissed from service as a result of Court-martial from the Pakistan Air Force (PAF) in the year 1977 and finally, that he was not an honest person as held by the Election Tribunal of the Lahore High Court, Lahore vide its judgment in Election Appeal No,117 of 1996 dated 6-1-1997, when his nomination papers were rejected on the ground that he had made assets during his tenure as Member of the Provincial Assembly and had not submitted his Wealth Tax Return. The petitioner submitted his reply to the Writ Petition. Thereafter, some other persons also moved applications for impleadment challenging the election of the petitioner. They were impleaded as party.
2. The Writ Petition was dismissed on 10-8-2010 by a Single Judge in Chambers, holding that the amendment by the Eighteenth Amendment Act, 2010 in Article 63(1)(i) of the Constitution had done away with the life time disqualification of a candidate on account of dismissal from service of Pakistan and limited the period of disqualification to five yeaRs, It was held that though the said amendment was made after the election of the petitioner but since on this count he was currently not disqualified to hold the office a writ of quo warranto could not be issued against him. On the question of dishonesty based on the findings of the Election Tribunal, the Court held that the same had been subsequently annulled by three Members Bench on 16-1-1997 in Writ Petition No,669 of 1997, through which the petitioner had challenged the order of the Election Tribunal. As regards B.A.
Degree its genuineness was confirmed by the University of Punjab, Lahore and the Board of Intermediate and Secondary Education, Sargodha and it was found that the petitioner had passed his B.A. Examination in the year 1969.
3. The respondents assailed the judgment of the Single Judge in Chambers in Intra Court Appeal No, 601 of 2010. The Appeal was allowed by a Division Bench through the impugned judgment dated 15-1-2013, declaring that the petitioner was disqualified to contest the election and to hold membership of the Parliament on the ground of his dismissal from the Pakistan Air Force and that the change brought about by the Eighteenth Amendment limiting disqualification period to five years did not have retrospective effect. Further that the petitioner was dishonest in that the three Members Bench of the Lahore High Court did not in so many words allow Writ Petition No, 669 of 1997 filed by the petitioner and the findings of the Election Tribunal of the Lahore High Court dated 6-1-1997 were not annulled. It was further held that the petitioner had also during the current proceedings filed a false affidavit denying his being ever employed in the Air Force or dismissed from service.
4. In order to appreciate the arguments addressed by the learned counsel for the parties, some additional facts need to be stated. The petitioner contested elections between 1988 and 1993 for the Punjab Assembly from PP-44 and was twice elected. It is stated that no objection was raised to his nomination papers in any of the three elections. He also filed nomination papers for the election to the National Assembly in the year 1996 and the same though accepted by the Returning Officers were challenged in Election Appeal No, 117 of 1996 before the Election Tribunal of the Lahore High Court Lahore constituted under section 14 of the Representation of the People Act, 1976. The Tribunal on 6-1-1997 disqualified the petitioner from contesting the election holding as under:-- 'The admitted position is that both the sons are minors and students and wife is also dependant.
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 all this property was made by him as sitting MPA. He being an income tax assessee was under legal obligation to submit Wealth Tax Return. His statement recorded by Returning Officer is sufficient to hold him disqualified to contest the .Election being not honest person.
5. Writ Petition No, 669 of 1997 filed by the petitioner challenging the said order was disposed of by a three Members Bench of the Lahore High Court on 16-1-1997 in the following terms:-- ' Learned counsel for the petitioner says that he would not press the petition as the petitioner does not want to contest the election. The petitioner's grievance is that he has been dubbed as dishonest person by the Tribunal. We see some force in the arguments 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. Disposed of
6. The interpretation of the above two orders has remained the bone of contention between the parties and have also been interpreted differently by the Judge in Chambers and the Division Bench in the present proceedings. The former accepted the contention on behalf of the petitioner that the three Members Bench's order of 16-1-1997 annulled the findings of the Tribunal, whereas the Division Bench agreed with the learned counsel for respondent No, 1 that the said order did not amount to such annulment and thus the order of the Tribunal had become final.
7. We take up one by one the three grounds on which the Division Bench held the petitioner disqualified from holding the elected office of Member of the National Assembly. The Court found that the petitioner was disqualified under Article 63(1)(i) of the Constitution, which imposes a life time ban to contest election on a person who stands dismissed from Service of Pakistan.
Undisputedly the petitioner does not remain disqualified anymore in view of the amendment brought about by the Eighteenth Amendment Act, 2010 in Article 63(1)(i) of the Constitution whereby the disqualification period has been restricted to five years from the date of dismissal. The petitioner was dismissed or discharged from PAF way back in the year 1977. The learned counsel for the petitioner took us to the various pleadings as well as the documents submitted on behalf of - the PAF before the Election Tribunal during the election process and those filed in the present proceedings. It was pointed out that the papers submitted on. Behalf of the PAF before the Tribunal showed that the petitioner was discharged from service on account of absence from duty. The learned counsel questioned the very authenticity, of the documents produced on behalf of the Pakistan Air force before the High Court in the present proceedings which showed that the petitioner was dismissed from service after decision given by the District Court Martial. In the alternative it was submitted that writ of quo warranto could only have been issued had the petitioner been not qualified to hold office at the time the petition was decided. In support of this contentions the learned counsel relied upon LT. COL. FARZAD ALI v. PROVINCE OF WEST PAKISTAN (PLD 1970 SC 98), ABRAR HASSAN v. FEDERATION OF PAKISTAN (PLD 1976 SC 315), SARDAR ASSEFF AHMED ALI v. MUHAMMAD KHAN JUNEJO (PLD 1986 Lah. 310), DR. MUJAHID ALI MANSOORI v . UNIVERSITY OF THE PUNJAB (2005 PLC (C.S.) 694).
8. We pointed out to the learned counsel for the petitioner that the National Assembly by now has completed its tenure and stands dissolved and under the amendment in Article 63(1)(i) of the Constitution the petitioner does not stand disqualified for the forthcoming elections even if he was dismissed from service in the year 1977. In view of this position the learned counsel did not press the petition to the extent of the findings of the Division Bench on the dismissal from service. The learned counsel for respondents, however, tried to argue that at the time of issuance of writ of quo warranto by the Division Bench the petitioner was disqualified and therefore such a writ was properly issued. We need not divulge much on this issue as in our view it would be a mere academic exercise as the petitioner does not presently hold elected office of the member of the National Assembly as the same stands dissolved and thus writ of quo warranto cannot be issued against the petitioner on this score. In view of amendment in Article 63(1)(i) of the Constitution, he no longer remains disqualified on the ground of his dismissal or discharge from service.
9. The next ground that prevailed with the Division Bench of the High Court for disqualifying the petitioner is based on the order of the Election Tribunal dated 6-1-1997 reproduced above. This finding can still be used against the petitioner if he submits his nomination papers in the forthcoming election. By the said order, the Tribunal set aside the order of the Returning Officer regarding the nomination papers for the election of 1997 and held that in view of concealment of income by the petitioner and accumulating assets during his previous tenure as member of the Provincial Assembly he stood disqualified.
10. The High Court considered this order as final by holding that the order in Writ Petition No, 669 of 1997 by which the petitioner had challenged the said order of the Tribunal had not reversed the same. The learned counsel for the respondent reiterated the reasons that prevailed with the Court and submitted that the order in the writ petition cannot be considered as final as the three Members Bench did not adjudicate upon the question of honesty of the petitioner nor did advert to the factors that were taken into consideration by the Tribunal. We however, do not find ourselves in agreement with, the finding of the Division Bench of the High Court. The order of the three Members Bench reproduced in Paragraph No,5 above is a brief order of only eight lines and not a well considered one as the petitioner had decided not to contest the election and was not pressing the petition. The Court, however, found force in the petitioner's grievance against his being declared dishonest by the B Tribunal and thus directed that such remarks shall not be considered derogatory to him. The petition was not dismissed but disposed of. Seen in the overall tenor of the order the phrase "shall not be considered to be derogatory to the petitioner" can only mean that the remarks or the findings of the Tribunal about the dishonesty of the petitioner shall not be treated adverse to his interests. The grievance of the petitioner to that extent was redressed by the Court. However since the petitioner had decided not to contest the election the main relief in the writ petition to allow him to contest the election was not granted. Though one may say that the Court did not carry out proper adjudication of the question of dishonesty or otherwise of the petitioner in the light of the finding of the Tribunal, however, as far as the petitioner is concerned, he rightly felt satisfied with the clear direction given by the Court and thus did not pursue the matter further. Even if the order of 16-1-1997 is amenable to two interpretations, the one favourable to the petitioner, being a returned candidate, is to be adopted and followed.
11. There is another aspect of the order of 6-1-1997. The Tribunal had passed this order in exercise of powers under section 14 of the Representation of the People Act during the process of the election.
Such orders are summary in nature and cannot be considered as final adjudication of the issues raised before and decided by the Tribunal. Reference may be made to the case-law cited by the learned counsel for the petitioner, namely ENGR. IQBAL ZAFAR JHAGRA AND OTHERS v. KHALIL UR- RAHMAN AND 4 OTHERS (2000 SCM R 250), and SYED BACHAL SHAH v. MALIK ASAD SIKANDAR AND 2 OTHERS (PLD 1989 Kar. 53). Apart from placing reliance on the said order of the Tribunal, respondent No,1 did not produce any material or evidence to independently establish that the petitioner had in fact concealed his true income or that he had misused his powers as member of the Provincial Assembly to accumulate the assets. Respondent No,1 in the present proceedings had the opportunity to prove such allegations against the petitioner. He, however, made no endeavour towards that end. The Division Bench of the High Court failed to take note of this aspect and simply relied upon the order of the Tribunal dated 6-1-1997 without making any probe of its own into the allegations. In the case of PAKISTAN TOBACCO BOARD v. TAHIR RAZA (2007 SCM R 97) it was held that in writ of quo warranto the jurisdiction of the Court was primarily inquisitorial and not adversarial and thus the Court could undertake such inquiry as it may deem necessary in the facts and circumstances of the case, including the examination of the entire record and such exercise can even be done suo motu even the intension of the High Court is not drawn by the party concern. The finding of the Court on the said issue therefore cannot be sustained.
12. Next we take up the declaration by the High Court that the petitioner had on affidavit in the present proceedings concealed certain facts. The alleged concealment is with reference to the reply by the petitioner in Paragraph No, 5(b)(iii), which reads:--
(iii) Vehemently denied being incorrect neither the answering respondent served in any unit of the name of SSW-Kallar Kahar nor in Unit No,312 WING PAF. The petitioner was not Court-martialed as alleged in this paragraph hence vehemently denied.
The petitioner made the above response to Paragraph No, 4(b)(iii) to the Writ Petition No,7373 of 2010, which alleges:--
(iii) That last served unit of respondent No,1 known as SSW-Kallar Kahar was established round about nearly in 2006, previously the same was known and named as unit No, 312-WING PAF, which was based at Maleer, Karachi. In this way, he was Court Martialed under Charge of section 39(b) of PAF Act, 1953 at PAF Base, Maleer, Karachi and was awarded punishment for 8 months' R.I. And dismissal from service, but 2 months' R.I. Was remitted (As already undergone during trial).
13. The Division Bench of the High Court found the above response of the petitioner as concealment as the petitioner had even denied his being employed in the PAF. The learned counsel for the petitioner, while referring to the judgments in HAJI SH. MANZOOR ILAHI v. SH. ABU BAKER (1971 PCr.LJ 1021), MESSRS HINA HOUSING PROJECT (P) LTD. v. GOVERNMENT OF SINDH (2001 M LD 59) and ALAM ZAIB KHAN v. MUHAMMAD NAWAZ KHAN (1998 CLC 83) contended that the affidavit filed with the written statement cannot be considered as false as to the contents of the relevant paragraphs.
That in any case seen in the light of the corresponding paragraph of the written petition the petitioner was responding to the specific averments therein. In response the learned counsel for the respondents, relying upon the judgments of this Court in the case of ENG. IQBAL ZAFAR JHAGRA v. KHALILUR REHMAN (2000 SCM R 250) and SYED MEHMOOD AKHTAR NAQVI v. FEDERATION OF PAKISTAN (PLD 2012 SC 1089) submitted that false affidavit by itself would render the petitioner disqualified. Upon careful examination of the above Paragraphs, we found that the Court had not read the said reply in juxtaposition with the corresponding paragraph of the Writ Petition; both were reproduced in the impugned judgment. In an earlier Paragraph No,5(b)(i) of his reply, the petitioner had admitted that G he had joined the PAF as Corporal Technician on 27th December, 1965 having PAK No,77178. What the petitioner was denying in Paragraph No,5(b)(iii) was the averment of Respondent No,1 that the petitioner had served in the units, SSW-Kallar Kahar and No,312 WING PAF, and that he was not Court Martialed 'as 'alleged'. The petitioner was, in fact, denying the averments of respondent No,1 about his posting in particular units and being Court Martialed under a particular provision and consequent punishment and dismissal from service. This he did because the case of the petitioner all along had been that he was simply discharged from service on account of his absence from duty. The petitioner did not conceal on affidavit from the Court anything related to his employment in the PAF. What he had disputed was the specific averments made by respondent No,1 regarding his being Court Martialed, dismissed, sentenced and posted in particular units.
14. The effect of concealment by the petitioner in the pleadings on qualification as member of the Parliament arose during the present proceedings. The same was not adverted to by the Single Judge in Chambers, perhaps it was not raised. The ground had become available to respondent No,1 after the petitioner had filed his reply to the Writ Petition. If the same was to be considered against the petitioner, respondent No,1 ought to have amended his Writ Petition to include the same as an additional ground for disqualification of the petitioner. The petitioner would then have responded to the new allegation. He was never put on notice that he could be de-seated on the ground of his concealment of material facts from the Court.
15. In our view the Division Bench of the High Court was not legally justified to disqualify the petitioner on the ground of such concealment. Even otherwise there is nothing much of discussion in the impugned judgment on this question. After reproducing the relevant paragraphs from the Writ Petition and the reply submitted by the pet:tioner, the Court in Paragraph No,21 of the impugned judgment held as under:--
21. From the reply of respondent No,] it is clear that respondent No,1 denied his conviction and dismissal from public office, his argument is that after order dated 8-12-2007 passed in EA No,70- A-R/2007, the issue of his conviction and dismissal laid to rest forever.
' In Paragraph No, 29 the Court had posed only two questions for determination namely:--
(a) Whether the earlier finding by the Tribunal is that respondent No, .1 not honest is of perpetual nature or ceased to exist after the order of Hon'ble Full Bench?
(b) Whether the judicial pronouncement of Election Tribunal is a finding or remark?
' However in Paragraph No,36 of the judgment it abruptly held:--
36. The respondent No,1 again before the learned single judge has concealed the facts and deposed on oath the wrong fact, hence, it is proved that respondent No,1 does not fulfill the mandatory requirements of Article 62(1) of the Constitution.
16. Though in Paragraph No, 29 of the impugned judgment the Court formulated only two questions for determination, which did not include the question of disqualification of the petitioner on account of concealment in his written statement, yet it went on to hold him guilty of the same.
Further the Court found the petitioner guilty for nonfulfillment of the mandatory requirements of Article 62(1) of the Constitution, which lists a number of qualifications specified in Clauses (a) to (g) to be fulfilled by a person to be elected as Member of the Parliament. The Court failed to mention the particular Clause under which the petitioner stood disqualified. The declaration is thus bad in law for its vagueness. Seen from any angle the findings of the Division Bench of the High Court on the said ground cannot be maintained in law.
17. In view of the above discussion, we concluded that the High Court had erred in issuing a writ of quo warranto holding the petitioner disqualified from being member of the National Assembly on the I ground of his being dishonest and concealing facts on oath. Thus the impugned judgment was set aside by short order dated 25-3-2013, which reads:- "For reasons to be recorded later, this appeal is allowed. The impugned judgment of the High Court dated 15-1-2013 passed in Infra Court Appeal No,601 of 2012 in Writ Petition No,7373 of 2010 is set aside and the judgment of the single Bench dated 10-8-2010 is restored. Consequently, the writ petition filed by the respondent stands dismissed."