' JUSTICE MAMOON RASHID SHEIKH (MEMBER).---This appeal under section 14(5) of the Representation of the People Act, 1976, assails the order dated 7-4-2013 passed by the learned Returning Officer NA-51, Gujar Khan, Rawalpindi, whereby the nomination paper of the appellant to contest the election of the said constituency has been rejected. The learned Returning Officer in view of the decision of the Hon'ble Supreme Court of Pakistan in the judgment reported as Alleged Corruption in Rental Power Plants etc, (in the matter of Human Rights Cases Nos.7734-G of 2009, 1003-G/2010 and 56712 of 2010, decided on 13-3-2012) (2012 SCM R 773) (hereinafter referred to as the RPP's case), the judgment dated 28-3-2013 of the learned Islamabad High Court in Writ Petition No,3387 of 2012 entitled "Messrs M. N. Constructions Company v. Federation of Pakistan and others; and the writing of a secret letter by the appellant to influence the Hon'ble Supreme Court of Pakistan has held that the appellant is not qualified to be chosen or elected as a member of Majlis- e-Shoora (Parliament) by virtue of the provisions of Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973, as he is not sagacious, righteous, up right, trustworthy, honest and Ameen.
2. Mr. Farooq H. Naek, Advocate, the learned counsel for the appellant submits that the impugned order is neither sustainable nor tenable in the eye of the law. The judgment of the Hon'ble Supreme Court in the RPP's case only directed that the persons involved are to be dealt with under the civil laws as also under the provisions of the National Accountability Bureau (NAB) Ordinance, 1999.
There is no declaration against the appellant as has been erroneously held by the learned Returning Officer. Till date no action has been taken in accordance with the law by the NAB against the appellant what to talk of his conviction. Indeed, no final report has been prepared by the NAB in the RPP's case nor any interim or final challan has been submitted. Under the provisions of Article 62(1)(f) of the Constitution a person is presumed to be sagacious, righteous, upright, trustworthy, honest and Ameen unless there is a declaration of a Court of law to the contrary. Article 63(1)(h) envisages that unless a period of five (5) years have elapsed since his release, a person convicted and sentenced for a term not less than two (2) years for any offence involving moral turpitude, shall be disqualified from contesting the election to the Parliament. In the appellant's case no such declaration or conviction is in the field against the appellant.
3. Insofar as the judgment of the learned Single Judge is Chambers of the learned Islamabad High Court in Writ Petition No,3387 of 2012 is concerned submits that the learned High Court has only given a direction to the NAB Authorities. This direction cannot be taken to be a declaration by a Court of law in terms of Article 62(1)(f) of the Constitution. The appellant was not a party in Writ Petition No,3387 of 2012. The appellant has not been given an opportunity of defending himself. He has been condemned unheard and his fundamental right as envisaged by Article 10-A of the Constitution has been infringed. There is no conviction against the appellant. In fact the appellant had only assigned the work. There is no allegation of corruption. Relies on the judgment of the Hon'ble Supreme Court of Pakistan reported as "Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others" (PLD 2009 SC 644) to contend that the right to contest elections is a fundamental right of the appellant. The learned Returning Officer failed to appreciate this aspect of the case and also the law as laid down in Mian Nawaz Sharif's case (Supra) whereby it has been held that High Courts in their exercise of writ jurisdiction cannot give a declaration in respect of Articles 62(1)(f) and Article 63(1)(h) of the Constitution. The principle of due process requires that findings adversely affecting the dignity, liberty, reputation and political rights of a candidate be not given ex parte and that too in the constitutional jurisdiction. The learned Returning Officer did not take into consideration the said principle whilst relying on the judgment of the learned Islamabad High Court.
4. As to the question of initiation of contempt of Court proceedings submits that only a notice has been issued to the appellant, neither a charge has been framed nor has the appellant been convicted. In such circumstances, the appellant cannot be said to be disqualified on the ground that he has committed contempt of Court.
5. Syed Qalb-i-Hassan, Advocate, the learned co-counsel for the appellant whilst adopting the arguments of Mr. Farooq H. Naek, Advocate, has further contended on behalf of the appellant that the learned Returning Officer in disqualifying the appellant has erred in law. The learned Returning Officer has failed to appreciate that in the absence of a conviction the appellant should not have been disqualified as his fundamental right to contest the election has been denied. If the matter comes to trial and the appellant is acquitted then the appellant would have lost a valuable right.
The learned Returning Officer did not take into consideration the irreparable loss which would occur to the appellant. Places reliance on the judgments reported as "Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others" 1986 SCM R 1736 "Illahi Bux Soomro v. Aijaz Hussain Jakhrani and 7 others" (2004 CLC 10601, "Pir Allay Immrawn and another v. Mian Muhammad Nawaz Shari' and another" (1991 CLC 1), "Munir Ahmad and another v.
District Returning Officer/Appellate Authority Sargodha and others" (2004 SCM R 1456), "Sheikh Arsalan Hafeez v. Election Tribunal District Rawalpindi, at Attock and 5 others" (PLD 2003 SC 355), "Rana Aftab Ahmad Khan v. Muhammad Ajmal and another" (PLD 2010 SC 1066) and "Ch. Nisar Ali Khan v. Ghulam Sarwar Khan and 3 others" (2003 CLC 442).
6. Sheikh Zameer Hussain, Advocate, the learned counsel for respondent No,2, controverts the stance of the learned counsel for the appellant. He submits that conviction of a person is not a sine qua non for the person to be disqualified by virtue of the provisions of Articles 62 and 63 of the Constitution. Article 62 enumerates the qualifications subject to the restrictions mentioned therein and Article 63 speaks of the disqualifications. These are not the only provisions whereby a person/candidate can be disqualified from contesting elections. Sections 93 and 99 of the Act, ibid, also apply. Referring to the judgment of the Islamabad High Court submits that what further declaration is required from a Court of law. The learned Single Judge in Chambers has unequivocally given a declaration that the appellant is involved in corrupt practices and is not "Ameen". No formal trial is required. The learned Returning Officer was bound to follow the judgment of the Hon`ble Supreme Court in the RPP's case as also the judgment of the learned Islamabad High Court.
7. We have considered the arguments addressed at the bar and have also gone through the record with the able assistance of the learned counsel for the parties.
8. We shall first of all consider the disqualification of the appellant by the learned Returning Officer on grounds of initiation of contempt of Court proceedings against him by the Hon'ble Supreme Court of Pakistan. We are in agreement with the learned counsel for the appellant that since the proceedings are at the initial stage and neither a charge has been framed nor any conviction has taken place, therefore, mere pendency of contempt of Court proceedings cannot be an impediment to the appellant's candidature.
9. As to the other grounds, upon our query the learned counsel for the appellant have submitted that the appellant had challenged the judgment of the learned Single Judge in Chambers of the learned Islamabad High Court by way of I.C.A. No,616 of 2013, however, the said ICA was dismissed in limine through order dated 8-4-2013. The appellant has now filed C.P.L.A. No,450 of 2013 before the Hon'ble Supreme Court of Pakistan. C.P.L.A. No,450 of 2013 is, however, yet to come up for hearing.
10. The findings of the Hon'ble Supreme Court in the RPP's case are too well known to be reproduced in extenso, however, for the sake of reference a few excerpts are being reproduced hereunder:- "84. Thus, in the light of the above facts and circumstances, we hold as under:-- (i)
(ii)
(iii) The contracts of all the RPPS solicited and unsolicited, signed off or operational, right from BHIKKI & SHARAQPUR upto PIRANGHAIB, NAUDERO-I & NAUDERO-II were entered into in contravention of law/PPRA Rules, which, besides suffering from other irregularities, violated the principle of transparency and fair and open competition, therefore, the same are declared to be non- transparent, illegal and void ab initio. Consequently, the contracts of RPPS are ordered to be rescinded forthwith and all the persons responsible for the same are liable to be dealt with for civil and criminal action in accordance with law;
(iv) _________
(v) _________
(vi) _________
(vii) _________ (viii)__________
(ix) All the government functionaries, including the Ministers for Water and Power holding charge in 2006 and onward and from 2008 to onward, during whose tenure the RPPS were approved/set up and Minister as well as Secretary Finance holding the charge when the down payment was increased from 7% to 14%, prima facie, violated the principle of transparency under Articles 9 and 24 of the Constitution and section 7 of the Act, 1997, therefore, their involvement in getting financial benefits out of the same by indulging in corruption and corrupt practices cannot be overruled in view of the discussion made hereinabove. Consequently, they are liable to be dealt with under the National Accountability Ordinance, 1999 by the NAB;
(x) All the functionaries of PEPCO, GENCOs, PPIB and NEPRA along with sponsors (Successful bidders) who had derived financial benefits from the RPPs contracts are prima facie, involved in corruption and corrupt practices, therefore, they are also liable both for the civil and criminal action; and
(xi) The Chairman NAB is directed to proceed against all the persons referred to in subparagraphs (iii), (ix) and (x) above forthwith in accordance with law and submit fortnightly progress report to Registrar for our perusal in Chambers."
11. The findings of the learned Single Judge in Chambers of the learned Islamabad High Court passed in Writ Petition No,3387 of 2012 are as under:-- "In view of the above discussion, Writ Petition Nos.3387, 3724 of 2012 and 582 of 2013 are allowed. I declare that assigning of work to respondent No,5 i.e, NLC is illegal, unconstitutional, besides the PPRA Ordinance, 2002 and PPRA Rules 2004, dictums laid down by the august Supreme Court, offensive to the universally accepted principle of fairness, honesty, transparency, openness and is result of colourable exercise of authority, irrelevant considerations, a naked corruption, polluted mannerism, offensive to public ex-chequer and an infringement to constitutionally guaranteed fundamental rights. It is also declared that assigning of work to NLC is glaring example of discrimination, favouritism, nepotism, ulterior motives and stinking approach to advance personal agenda.
' The Directive No,4218/M/PSPM/ 2012 dated 2-10-2012 issued by the Principal Secretary to the Prime Minister, Memorandum of Understanding between Secretary, Ministry of Housing and Works and NLC and all subsequent orders passed are hereby set aside, declared void, unprecedented, sham, rarity, based on cheating, deception, fraud and nullity in the eyes of law, therefore, same are set aside.
' The assigning of work to NLC is declared to be cancelled with the direction that NLC shall return all amount received vide Cheques Nos.B836966, B850167 and B853844 for execution of the projects within one week of the receipt of the order.
' The procuring agency i.e, Pak PWD may initiate the procedure afresh strictly in accordance with the PPRA Ordinance, 2002 and PPRA Rules, 2004 and by following the dictums laid down on the point of Public Procurement by the Hon'ble Supreme Court of Pakistan and may complete its process within one month.
' It is further directed that copies of this judgment be sent to Chairman NAB for initiating proceedings against all those persons involved in big scam, including the then Prime Minister, his Principal Secretary, Secretary Ministry of Housing & Works and all the official of Pak PWD who abetted, aided and executed the illegal orders issued on behalf of the then Prime Minister and officials of NLC, who remained involved in obtaining assigning of work of development projects.
' Similarly copy of this judgment may also be sent to the Chief Election Commissioner, District Returning Officer of constituency NA-51, Gujar Khan to appreciate as to whether in the light of the observations made in the judgment, Raja Pervaiz Ashraf can be believed as sagacious, righteous, honest, upright, trustworthy and Ameen."
12. The main thrust of the arguments of the learned counsel for the appellant have been to the effect that since the High Courts in the exercise of their jurisdiction under Article 199 of the Constitution cannot give a declaration against a person in respect of Articles 62(1) (f) and 63(1)(h) of the Constitution, therefore, the judgment of the learned Islamabad High Court against the appellant is not sustainable in the eye of the law. The contentions of the learned counsel for the appellant do not come to their aid as the judgment of the learned Single Judge in Chambers has been upheld by a learned Division Bench of the Islamabad High Court. The learned Returning Officer as also this Tribunal under the law cannot sit in appeal against the declaration and directions given by the learned Islamabad High Court. We, therefore, find force in the arguments of the learned counsel for respondent No,2 that in view of the declaration given by the Hon'ble Supreme Court in the RPP's case as also by the learned Islamabad High Court the appellant is disqualified to contest the election in question by virtue of the provisions of Articles 62 (1)(t) and 63(1)(h) of the Constitution.
We, therefore, find no infirmity, illegality or irregularity in the impugned order except for the disqualification of the appellant on the ground of pendency of contempt of Court proceedings against him before the Hon'ble Supreme Court. This finding is accordingly set aside.
13. Under the circumstances, this E appeal fails and is dismissed accordingly.
14. Copies of this order be sent to the learned District Returning Officer and the Returning Officer concerned for information and necessary action.