' QAZI FAEEZ ISA, C.J.--- Constitution Petitions Nos.280, 281 and 285 of 2013 assail the common judgment dated 17th April, 2013 of the Election Tribunal Balochistan ("Tribunal"), which had allowed Election Appeals Nos.19, 82 and 124 of 2013.
2. The petitioner had sought to contest the General Elections to be held on 11 May, 2013 for the 'Balochistan Assembly constituency of Musakhail (PB-15) and in this regard had submitted his Nomination Form, against which different persons filed objections before the Returning Officer. The objections to the Nomination Form of the petitioner were dismissed vide three separate orders all dated 4th April, 2013, consequently the petitioner's Nomination Form was accepted. However, the Hon'ble Tribunal accepted the appeals and ordered that the name of the petitioner be deleted from the list of contesting candidates.
3. The objections that were taken to the candidature of the petitioner were two-fold. Firstly, that he had participated in the 2008 General Elections on the basis of a forged/fake degree, when the law required a candidate must hold a bachelor's degree or equivalent thereto as minimum educational qualification, Secondly, while serving as a Minister in the Provincial Cabinet he had diverted public funds to his personal use as "Grant-in-Aid as Scholarship" for his two minor sons who, were respectively studying in Class 1 and 3 of an amount of Rs,1,050,000/- (Rupees one million and fifty thousand) each.
4. Mr. Kamran Murtaza, the learned counsel for the petitioner has assailed the judgment of the Hon'ble Tribunal alleging that the judgment as contrary to facts and law and that, every citizen of Pakistan has a right to contest elections, and that the petitioner did not suffer from any disqualification necessitating rejection of his Nomination Form and stopping him from contesting elections. He further submitted that the petitioner's sanad was equivalent to a bachelor's degree.
5. Messrs Mujeeb Ahmed Hashmi, H. Shakil Ahmed, Amanullah Achakzai and Naimatullah, Advocates for the private respondents opposed the petitions. Mr. Muhammad Haroon Kasi, Law Officer of, the Provincial Election Commissioner also opposed the petitions. They stated that the judgment of the Hon'ble Tribunal is well reasoned and does not call for interference by this court, acting in its constitutional jurisdiction.
6. We first attend to the matter of the petitioner's degree. The petitioner contested the 2008 General Elections when the law required that a candidate must either have a bachelor's degree or its equivalent as the minimal educational qualification. The petitioner had placed reliance upon a sanad, which he stated was equivalent to a bachelor's degree, and it was on the basis of such sanad that the petitioner contested the 2008 General Elections. The said sanad was the subject- matter of litigation which culminated in the Hon'ble Supreme Court (Civil Appeal No,78/Q of 2009) and was decided vide judgment dated 14th September, 2010, wherein it was held that the petitioner's sanad was not equivalent to a bachelor's degree, therefore, he was not qualified to contest the elections. Consequently, his election was declared to be void. The petitioner participated in the bye-elections that were to take place in respect of the said constituency and his Nomination Form was accepted. Election Appeal No,01 of 2010 was filed, against the acceptance of his Nomination Form, and the Election Tribunal vide judgment dated 16th October, 2010 rejected the Nomination Form of the petitioner. Against the judgment of the Election Tribunal Civil Petition No,2298 of 2010 (converted into Civil Appeal No,981 of 2010) was preferred by the petitioner before the Hon'ble Supreme Court of Pakistan. The Hon'ble Supreme Court as an interim measure permitted the petitioner to contest the elections. The petitioner was elected and remained as a member of the Provincial Assembly for its tenure where after he withdrew his appeal on 9th April, 2013. The order passed by the Hon'ble Supreme Court on the said date is reproduced hereunder: "Syed Ayaz Zahoor, learned counsel for the appellant stated that as the Provincial Assembly of Balochistan has completed its term, according to Article 112 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, the instant appeal has become infructuous. Dismissed accordingly. "
7. That, when the petitioner withdrew his appeal (Civil Appeal No,981 of 2010) from the Hon'ble Supreme Court he effectively accepted the decision dated 16th October, 2010 about his sanad by the Election Tribunal in Election Appeal No,1 of 2010. The Hon'ble Supreme Court in (Civil Appeal No,78-Q of 2009) vide judgment dated 14th September, 2010 had already determined that the petitioner did not possess a sanad that could be categorized as equivalent to a bachelor's degree.
Since it has already been decided that the petitioner's sanad was not equivalent to a bachelor's degree the question of equivalency thereof can no longer be agitated.
8. We now consider the question of the petitioner availing of funds from the public exchequer for his personal use. Through applications that were subsequently filed (C.M.A. Nos.882, 891 and 902 of 2013) the petitioner brought additional documents on record, including a copy of a letter issued by the Accounts Officer of Sadiq Public School, Bahawalpur ("the School"), which stated that Master Anwaar-ul-Haq and Master Israr-ul-Haq, the sons of the petitioner, were bona fide students of the School and that their dues are being paid by their parents, and "according to our record other agencies or any Government is bearing their educational expenses/dues." The letter concluded by stating that, "this certificate is not valid for any court".
9. That the objectors (private respondents herein) have relied upon a letter (No,SO(Dev)C,H&T,Edn:/1-16/2011, dated 14th January, 2013) of the Government of Balochistan, Higher and Technical Education Department (Dev. Section) reproduced hereunder:- "BUDGET ESTIMATES (DEV.) FOR THE YEAR 2012-2013 BALOCHISTAN ACCOUNT NO.1 NON FOOD (PUBLIC REPRESENTATIVE PROGRAMME PSDP 1429 (MOLVI MUHAMMAD SARWAR MUSAKHAIL--MPA).
' The undersigned is directed to say that a sum of Rs,2,281,000/- (Rupees Two Million Two Hundred Eighty One Thousand Only) as per details shown on the reverse from the Provincial Consolidated Funds under the Major Function-09-Education Affairs and Services, Minor Function-093-Tertiary Education Affairs and Services, Detailed Function 0931-Tertiary Education Affairs and Services Sub- Detail Function-09310 General Universities/Colleges/Institutes, during the current financial year i,e, 2012-2013 are hereby placed at your disposal for onwards transmission to the quarter concerned.
2. It may please be ensured that the expenditure on these Development Schemes during the current financial year 20122013 should in no circumstances exceed the amount now placed at your disposal. All Officers operating the fund may kindly be informed that they. Will be held personally responsible for the excess expenditure, if any."
' The reverse of the letter reads as under:--- "TARGET Major runcrion-09-Education Affairs and Services, Minor Function 093-Tertiary Education Affairs and Services. Detailed Function-0931-Tertiary Education Affairs and Services, Sub Detailed Function-093101- General / Universities /Colleges/ Institutes.
BC12109 Sec/subsector-Education/ Colleges DDO PB 4092Al2470 S. No. NAME OF SCHEME Amount Released BA10000010 Molvi Muhammad Sarwar Musakhail-MPA
1. Grant-in-Aid as Scholarship in favour of Anwarul Haq son of Muhammad Sarwar Student of K-One Sadiq Public School Bahawalpur.Rs. 1,050,000
2. Grant-in-Aid as Scholarship in favour of Mr. Israrullah Haq son of Muhammad Sarwar Student of K- Three Sadiq Public School Bahawalpur.Rs.1,050,000
3. Grant-in-Aid as Scholarship in favour of Mr. Abdul Baqi son of Abdul Salam, Student of Petroleum and Gas Eng: BUITEMS Quetta.Rs.136,000
4. Grant-in-Aid as Scholarship in favour of Mr. Yasir son of Mehmood Shah Student of Electronics Polytechnics College Multan.Rs.45,000 Total Rs.2,281,000/- ' The learned counsel for the respondents state that the above mentioned amount of Rs,2,281,000 was used by the petitioner for his family members and out of it the major portion for his own sons.
They stated that such private use of public money cannot be categorized as a Development Scheme and cannot be utilized from the Provincial Consolidated Fund.
10. The petitioner does not deny that he has two minor sons, who, according to him, are studying in Sadiq Public School, Bahawalpur, but has placed reliance upon the letter of Accounts Officer of the said School to contend that the parents are paying for their children. The letter of the Accounts Officer of Sadiq Public School, Bahawalpur states that it is "not valid for any court". Even if the letter of the School is accepted it merely states that the tuition and lodging for his sons was not paid by the Government directly. The letter does not state, nor can it, that the said amounts were not provided to the petitioner. We have also not been informed by the petitioner about the amounts incurred by him in this regard and the source of such funds. The petitioner being aggrieved by the judgment of the Hon'ble Tribunal was required to rebut the allegations against him in a rational and convincing manner.
11. The referred to letter of the Government of Balochistan was also copied to the Additional Chief Secretary (Dev:), P&D Department, Government of Balochistan, Quetta, "with reference to his release Authority No,P&D.AC.PRP(15)/2012-13/9179 dated 26-12-2012" and to the Secretary Finance with reference to his, "letter No,FD(S-Dev-II) 737/2011-12/5344-50, dated 17-1-2013." In case the said budgetary amount had not been made available there was nothing preventing the petitioner, a Member of the Provincial Cabinet, to call upon the author of the letter, the Additional. Chief Secretary, the Secretary Finance or the Accountant General of Balochistan to issue a clarification, but this was not done. The respondents in support of their allegations against the petitioner have relied upon official Government correspondence, which has not been rebutted logically or with any level of seriousness. We are thus left with the irresistible conclusion that the referred to Government correspondence took place and the said amounts were provided to the petitioner for his personal use from the public exchequer.
12. Section 12 (2) (a) of the Representation of the People Act, 1976 ("the Act") stipulates that every nomination form shall be accompanied by a declaration made on a solemn affirmation by the person seeking to contest elections, that, he/she, "fulfils the qualification specified in Article 62 and is not subject to any of the disqualcations specified in Article 63 or any other law". Section 99 (1) (d) of the Act requires a candidate to be of "good character" and one who does not violate Islamic Injunctions. Section 99(1)(e) requires a candidate to abstain, "from major sins". Section 99(1)(f) requires him to be "sagacious, righteous, non-profligate, honest and ameen". Section 99(1)(d) of the Act is identical to Article 62(1)(d) of the Constitution, and section 99(1)(e) of the Act is identical to Article 62(1)(e) of the Constitution, whereas section 99(1)(t) of the Act is similar to Article 62(1)(f) of the Constitution. Article 62 of the Constitution commences by stating that, "a person shall not be qualified to be elected or chosen" as a Member of Parliament unless he complies with the provisions of Article 62. The framers of the Constitution wanted parliamentarians to possess high moral integrity and prescribed certain pre-conditions for them.
13. A person, who is of good character, does not violate Islamic Injunctions, abstains from major sins, is sagacious; righteous, non-profligate, and honest and ameen may be too high a qualification-bar to surmount. Moreover, sincere and practising Muslims in their humility, as slaves of God, may be reluctant to proclaim their sagacity, C righteousness and honesty ever fearful that they fall short; whilst on the other hand lesser beings boldly swearing theirs. We are also cognizant of the fact that the language of Articles 62(1)(d), (e) and (f) of the Constitution (which is identical/similar to the language of sections 99(1)(d), (e) and (f) of the Act) is very wide and generalized, and may therefore be abused.
14. However, the present case is not one involving any subjective assessment of the stipulated criteria in Article 62 of the Constitution. The Hon'ble Supreme Court has decided that the petitioner was not qualified to contest the 2008 General Elections, but he did so, was elected, and became a Member of the Balochistan Assembly and a Minister in the Cabinet. The petitioner gained an advantage which he was not otherwise entitled to. And as a Member of the Assembly and a Cabinet Minister the petitioner diverted to his personal use funds from the public exchequer. The petitioner used moneys from the Provincial Consolidated Fund and such private use of public money was categorized as a 'development scheme'. Needless to sate money for the schooling of ones own children and family members cannot be dressed up as a 'development scheme' and pocketed.
15. In view of the above mentioned conduct of the petitioner he cannot be stated to be of good character or one who does not violate Islamic Injunctions or who is righteous or honest or ameen.
Articles 62(1)(d), (e) and (f) of the Constitution and sections 99(1)(d), (e) and (f) of the Act forbid such a person to be elected or chosen as a Member of Parliament. The petitioner however audaciously stated on oath that he "fulfils the qualification specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 or any other law". Simply put, the petitioner lied.
16. Lies fall into two different categories, those uttered to deceive and to gain an advantage, in the present case to be able to contest elections, and innocent lies without malice or any intended deception and where no benefit or gain accrues. Almighty Allah states in the Holy Qur'an "... Break not the oaths after you have confirmed them" (Surah 16, An-Nahl, Verse 91). "And be not like her who undoes the thread which she has spun after it has become strong, by taking your oaths a means of deception among yourselves..." (Surah 16, An-Nahl, Verse 92). "And make not your oaths, a means of deception among yourselves, lest a foot may slip after being firmly planted, and you may have to taste the evil of having hindered from the Path of Allah and yours will be a great torment" (Surah 16, An-Nahl, Verse 94). "... Whosoever breaks F his pledge, breaks only to his own harm, and whosoever fulfils what he has covenanted with Allah, He will bestow on him a great reward" (Surah 48, Al-Fath, Verse 10). "Allah will not punish you for what is unintentional in your oaths, but He will punish you for your deliberate oaths" [if false] (Surah 5, Al-Mai'dah, Verse 89). Whilest liars are castigated the doors of Heaven open to the truthful. "And those who keep their trusts and covenants... Shall dwell in Paradise" (Surah 70, AlMa'arij, Verses 32-35). "Those who are faithfully true to their trusts and to their covenants ... Who shall inherit Paradise" (Surah 23, AlMu'minun, Verses 8- 11). "Allah said: 'This is a Day on which the truthful will profit from their truth" (Surah 5, Al-Maidah, Verse 119). "0 you who believe! Be afraid of Allah, and be with those who are true" (Surah 9, At- Taubah, Verse 119).
17. The cited provisions from the Constitution and the Act may however be misused for ulterior motives. For instance, a Muslim may not be saying his/her prayers or fasting and it be alleged that he/she is not qualified to contest elections. The Creator in His Infinite Wisdom and Mercy has created the distinction between those matters which do not adversely affect others and those that do; two separate obligations or huqooq, those that a person owes to others and those which God demands of man, respectively Huqooq-ul-lbad and Huvoq-ul-Allah. In the Huqooq-ul-lbad category are obligations owed to fellow men and women, such as not gaining an advantage on the basis of fraud. The Huvoq-ul-Allah category includes rituals, such as fasting, praying and performing Haiji. The nonobservance of a ritual of the Faith is a matter between the created (abd or slave) and the Creator (Allah Taa'la or Almighty God). Almighty Allah tells us through the Holy Qur'an, "There is no compulsion in religion" (Surah 2, Al-Bakrah, Verse 256). The Messengers of Almighty Allah were given the talk to simply convey the Message (Surah 3, AlImran, Verse 20 and Surah 5, Al-Mai'dah, Verse 99). Whilst the people may or may not abide by the prescriptions of the Faith they do not have the liberty to violate the rights of others. Since, Articles 62(1)(d), (e and (f) of the Constitution and sections 99(1)(d), (e) and (f) of the Ac refer to Islam, therefore, these may be interpreted in the light o Shariah Muslim may or may not be saying his/her prayers and may not be fasting in the month of Ramadan, but these are matters which, I the light of Shariah, cannot be investigated into either by the State or by any individual. Islam does not stipulate punishment in this world for nonobservance of rituals; these are matters within the exclusive domain o Almighty Allah. Therefore, by analogy non-observance of rituals by a man or woman cannot be made a pretext to exclude him/her from Parliament. To hold otherwise would be in negation of Islam, and the Constitution. Article 277(1) of the Constitution requires that, "All existing laws shall be brought in conformity with the Injunctions of Islam." Consequently, if Articles 62(1)(d), (e) and (f) of the Constitution and Sections 99 (1) (d), (e) and (0 of the Act are interpreted on the touchstone of Islamic Shariah there remains no doubt that personal matters of the Faith remain immune from examination or consequence in this world.
18. However, the provisions of the Constitution and the Act must be given full effect to when attending to the rights and obligations due to the people or Huqooq-ul-Ibad. Such an interpretation is in accordance with the language of the Constitution and the Act, and does not conflict with what Almighty Allah states in the Holy Qur'an nor the directions/ teachings of Prophet Muhammad (peace and blessings be upon him). The petitioner, gained entry into the Balochistan Assembly deceitfully; by violating the Act and the Constitution. Islam requires that a person abides by the laws of the place he/she lives. In addition, Islam does not permit encroachment upon the rights of others. By putting himself forward as a candidate, when the petitioner was not qualified, he violated the law, and the rights of those who had abided by the law. The rights of the voters too were violated as they were deceived into believing that he had the requisite educational qualifications. The petitioner also lied on oath, and gained an advantage by his lie, which is yet another contravention of Islam's stipulated rights of the people or Huqo0q-ul-lbad. The petitioner also diverted public funds for his personal use, which neither the law nor Islam permits. The petitioner, therefore, to use the language of the Constitution, cannot be stated to be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament).
19. The Hon'ble Tribunal held that, "the petitioner, does not/did not fulfil the qualifications that are provided in Article 62 of the Constitution of Islamic Republic of Pakistan for a candidate to fulfil while going to contest the elections." The Hon'ble Tribunal further held that, "Similarly, the allegation of payment of more than Rs,2,281,000/- (Rupees Two Million Two Hundred Eighty One Thousand Only) to his two sons and other relatives is again adversely affects the bona fides, militates and offends the claim of respondent No,1 [petitioner herein] being Ameen, sagacious, truthful and non- profligate." We are in complete agreement with the findings of the Hon'ble Tribunal and the judgment of the Hon'ble Tribunal does not suffer from any illegality.
20. The financial procedure in respect of the Provincial Consolidated Fund and withdrawal of moneys therefrom is stipulated in Articles 118 to 125 of the Constitution. The funds for the public exchequer are generated by different types of taxes paid by the people. There is always a great demand on such funds. It must, therefore, be ensured that public moneys are spent for public purposes. No one has an unfettered discretion to utilize the people's money; Islam too does not permit such use. The Holy Quran states, that:--- "And don 't eat (usurp) one another 's property by unjust means nor give it to the authorities (rulers) so that you usurp a portion of it from the property of the people" (Surah 2, Al-Baqara, Verse 188).
"Verily, Allah commands that you should render the trusts to those, to whom they are due..." (Surah 4, An -Nisa, Verse 58).
"It is not for any prophet to take illegally a part of the booty and whosoever deceives his companions as regards the booty, he should bring forth on the Day of Resurrection that which he took (illegally)" (Surah 3, Al-Imran, Verse 161).
' Abu Huraira (Allah be pleased with him) narrated that Prophet Muhammad (peace be upon him) stated, that: "The signs of a hypocrite are three: (1.) Whenever he speaks, he tells a lie. (2) Whenever he promises, he always breaks it. And, (3) If you trust him, he proves to be dishonest. (If you keep something as a trust with him, he will not return it.)" (Reported in Bukhari Book 2, Chapter 25, No,32).
' The decisions of Hazrat Umar (may Allah be pleased with him) contained in the book "Hazrat Umar Kay Faislay" (by Muhammad Abdullah Madni, published by Mushtaq Book Corner) records that the Rightly Guided Caliph was always concerned that those in authority may start to consider the people's money and property as their own and start to give preference to their relatives over the common people (page 162).
21. The oath taken by a Minister before entering office, which is prescribed in the Constitution, after invoking, "the name of Allah, the most Beneficent, the most Merciful", requires him/her to solemnly swear, "That I will not allow my personal interest to influence my official conduct or my official decisions" and, "That, in all circumstances, I will do right to all manner of people, according to law, without fear or favour, affection or ill-will. " It appears that the petitioner lost sight of his oath of office as his personal interest influenced his official conduct and decisions, and he favored his own family.
22. With regard to the, custody and trusteeship of public money the Constitutional scheme fully accords with God's law. "Verily, Allah commends that you should render the trusts (' al-amanati') to those, to whom they are due" (Surah 4, An-Nisa, Verse 58). "0 you who believe! Betray not Allah and His Messenger, nor betray our trusts (amanat)" (Surah 8, Al-Anfal, Verse 27). "Let the one who is entrusted discharge his trust to him (' amanathu') and let him fear Allah, his Lord" (Surah 2, Al- Baqarah, Verse 283). Amongst the signs of the believers in the Chapter of the same name (Surah Al-Muminun) is that they are, `faithfully true to their trusts ('amanatihin') and to their covenants (ahadihim')" (Surah 23, Al-Mu'minun, Verse 8), which is reiterated in the Chapter titled 'The Ways of Ascent' (Surah 70, Al-Ma'arij), "And those who keep their trusts amanatiim) and convenants (ahadihim')" (Surah 70, Al-Ma'arij, Verse 32).
23. The petitioner could not constitutionally and legally divert public funds to his personal use or for the use and benefit of his family. Resultantly, we declare that the diversion of public funds for such private use was without lawful authority, contrary to the Constitution of Pakistan, in derogation of Islamic principles and morally indefensible. We accordingly direct the petitioner to return the above mentioned 'Grant-in-Aid as Scholarship' received by him or his family members within ninety days, failing which the Government of Balochistan is directed to seek recovery of the same in accordance with law.
24. There is yet another aspect to the matter. The then Additional Chief Secretary (Development), Planning and Development Department, Secretary, Finance Department and the Director Colleges and Higher Education, Government of Balochistan apparently facilitated the petitioner in the misuse of public funds. If a bureaucrat permits the flouting of law and does not record his objection in writing on the applicable file or his department's summary he becomes responsible for the transgression. Moreover, bureaucrats are not required to follow illegal orders of Ministers; in fact are mandated by the Rules of Business to stop them. But, unfortunately, the said senior bureaucrats failed in their duty, and thus failed the people. It would therefore be appropriate that a copy of this judgment be placed in the personal files of the officers who at the relevant time were holding the post of Additional Chief Secretary (Development), Planning and Development Department, Secretary, Finance Department and Director Colleges and Higher Education, Government of Balochistan. The Chief Secretary, and Secretary, Services and General Administration, Government of Balochistan are directed to ensure compliance.
25. We had dismissed these three petitions vide a short order dated 19th April, 2013 and the aforesaid are our detailed reasons for their dismissal.