' KAZIM ALI MALIK, J. --- Brief facts giving rise to election petition No, 275/2013 may be given first. Ch. Muhammad Ilyas, petitioner (for short, 'the petitioner') and h. Abid Raza, respondent No, 1 besides others contested the General Elections-2013 for the position of Member, National Assembly from constituency No, NA-107, Gujrat-IV. On close of the poll, Ch. Abid Raza, respondent No, 1 was notified as the returned candidate by the Election Commission of Pakistan. The petitioner/runner up/challenged qualification of the returned candidate to contest the General Elections-2013 on the following grounds:--- That in case FIR No, 137 of 1998 registered with police station Civil Lines, Gujrat, the returned candidate faced trial on the charge of rioting, attempted murder and murder and was convicted and sentenced on the above-said charges by the Trial Court vide judgment dated 01.5.1999 (Ex.P- 2).
II. That at one time the returned candidate was mentioned in the fourth schedule (Category-A) of the Anti-Terrorism Act, 1997 being a member of banned organizations Sipah-e-Sahaba and Lashkar-e-Jhangvi.
2. The returned candidate through his written statement dismissed the grounds of attack against his candidature with the claim that his conviction and sentence in the aforesaid criminal case were set aside by the Hon'ble Lahore, High Court, Lahore on an appeal and he was acquitted of the charges and that the Home Department, Government of the Punjab removed/deleted his name from the fourth schedule of the Anti-Terrorism Act. A few preliminary objections of legal nature were also raised by the returned candidate.
3. In the light of counter versions put forward by the petitioner and the returned candidate, they were put on trial on the following issues:-
(i) Whether the Election petition has not been drawn up in accordance with mandatory provisions of law? OPR 1.
(ii) Whether copy of Election petition and its annexures had not been dispatched to the Contesting Candidates including the Returned Candidate in terms of Section 54(b) of the ROPA, 1976, if so, its effect ? OPR1.
(iii) Whether the petitioner failed to put forward specific instances of corrupt practices and instead made vague allegations, if so, its effect? OPR1:
(iv) Whether the petitioner is estopped to challenge, and assail qualification of the Returned Candidate to contest the Election in question in view of the judgment of Hon'ble Lahore High Court, Lahore, dated 30.01.2008 reported as PLD 2008 Lahore 200? OPR1.
(v) Whether the Returned Candidate was not eligible and qualified to contest the Election in question with reference to Articles 62 and 63 of the Constitution? OPP.
(vi) Whether the Election in question and the Notification issued by the Election Commission of Pakistan declaring respondent No, 1 as Returned Candidate are liable to be declared void as a whole on the basis of irregularities/illegalities/malpractices/ corrupt practices set up in the Election petition if proved and established with evidence? OPP.
(vii) Relief? OP parties.
4 At the commencement of trial, the petitioner supported his cause as PW-1 and brought on record documentary evidence as follows:- I. Copy of judgment dated 01.5.1999, (Ex.P-2).
II. Copy of memorandum of appeal No, 84R/2007 (Ex.P-3) against the order dated 03.12.2007 passed by the Returning Officer.
III. Copy of judgment dated 11 12,2007, Ex.P-3/1 passed in the said appeal. IV. Copy of order by the Returning Officer. Ex.P-4, dated 06.4.2013.
Copy of memorandum of election appeal N0.157-R/2013 with order dated 17.4.2013, Ex. P-5 VI. Order of Hon'ble Lahore High Court, Lahore based on the order of Home Department, Government of the Punjab. Marked-A.
5. Learned counsel for the petitioner has contended that the returned candidate was not qualified to contest the election or to hold the public office of MNA on account of his conviction and sentence on the charge of rioting attempted murder and murder besides his association with the banned organizations as found by the Home Department, Government of the Punjab. On the other hand, learned counsel for the returned candidate has argued that on an appeal before the Hon'ble Lahore High Court, Lahore the conviction and sentence imposed on the returned candidate by the Trial Court were set aside and he was acquitted of all the charges and that the Home Department, Government of the Punjab deleted his name from the fourth schedule of the Anti-Terrorism Act, 1997. Before adverting to the above-said counter claims, I find it convenient to reproduce below Article 62(d)(e)(f)(g) of the Constitution, which have been quoted by the petitioner:- 6[62. Qualification for membership of Majlis-e-Shoora (Parliament).---(1) A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless---
(d) he is of good character and is not commonly known as one who violates Islamic Injunctions;
(e) he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins;
(f) he is sagacious, righteou and non-profligate and honest and Ameen; there being no delcaration to the contrary by a Court of law;
(g) he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan: Learned counsel for the petitioner has placed reliance on Sura An-Nisa, Sura Al-Maida, Sura Sura Sura Ash-Shu'araa and Sayings of the Holy Prophet (P.B.U.H.) with the plea that the sin of Qatl-e- Amd is not discharged unless Almighty Allah pardons the killer and that the question of Divine pardon would arise on the Day of Judgment only. The learned counsel is of the view that the crime of murder, which amounts to major sin, committed by the returned candidate is perpetual and would stand in his way to contest the election in terms of Article 62 of the Constitution till his death.
On the other hand, learned counsel for the returned candidate has repudiated the stance of the petitioner on the ground that acquittal of the returned candidate by the Hon'ble Appellate Court absolved him of the liability of the offence and the sin. Before adverting to the controversy for its determination, I find it advantageous to reproduce below the Quranic Verses and the Sayings of Holy Prophet (P.B.U.H.) quoted and relied upon by the learned counsel for the petitioner, which read as under.-
1. Sura An-Nisa (4:93)
"But whoever kills a believer intentionally - his recompense is Hell, wherein he will abide eternally, and Allah has become angry with him and has cursed him and has prepared for him a great punishment."
II. Sura Al-Maida (5.32)
"That was why We laid down for the Children of Israel that whoever killed a human being, except as a punishment for murder or for sedition in the earth, should be looked upon as though he had killed all mankind, and that whoever saved a human !Ife should be regarded as though he had saved all mankind. Our apostles brought them veritable proofs; yet it was not long before many of them committed great evils in the land."
III. Sura Al-Isra (17:33)
"And do not kill the soul which Allah has forbidden, except by right. And whoever is killed unjustly - We have given his heir authority, but let him not exceed limits in [the matter of] taking life. Indeed, he has been supported [by the law]."
IV. Sura Al Furcian (25:68)
"And those who do not invoke with Allah another deity or kill the soul which Allah has forbidden [to be killed], except by right, and do not commit unlawful sexual intercourse. And whoever should do that will meet a penalty."
V. Sura Ash-Shu'araa, (25:151-2)
"And follow not the command of Al-Musrifun [i,e, their chiefs, leaders who were polytheists, criminals and sinners], Who make mischief in the land, and reform not."
VI. Sahih Bukhari, Chapter Ketabul Addiat at page 651: "A Momin lives always comfortable, unless he commits a murder."
VII. Bukhari Sharif at page 653: " . The two sins are the biggest in all which are (i) Shirk and (ii) taking the life (Qatl)."
VIII. Sunnan Nasai Sharif, Chapter 218, page 380: "The Holy Prophet (P.B.U.H.) while adjudicating in a murder case for Qisas, made reference to Affo without declaring the grant of pardon of Gunah Kabeera" as Wajib and thus it is clear that no one except Almighty Allah can pardon for major sins."
IX. Bukhari Sharif in Chapter 1005 narrates numerous instances of Qatl-e-Khata...In case of any kind of murder, the pardon in the form of Macifirat rests solely and entirely with the Almighty Allah. The compromise between the murderer and legal heirs of the deceased and payment of Diyat or acquittal of a person under the codified law would not absolve him from the responsibility of Gunah Kabeera.
' Learned counsel for the petitioner has interpreted the Quranic Versus, sayings of Holy Prophet (P.B.U.H.) and the principles of Islamic Jurisprudence to the effect that if an offence of murder is compounded by legal heirs of the deceased, the offender/killer shall remain as murderer till the Day of Judgment and his acquittal in terms of compromise shall not absolve him of the offence and sin. Learned counsel for the petitioner also placed reliance on Ch. Sabir Hussain v. Mirza Mushtaq Ahmed besides three others, YLR (LHR) 2454. I have minutely gone through the Quranic Verses and the Sayings of Holy Prophet (P.B.U.H.). Although, I am not a jurist and religious scholar, yet as a student of law I would say that the Quranic Verses and the Sayings of Holy Prophet (P.B.U.H.) reproduced above do not create any bar which may stand in the way of the returned candidate to contest the General Elections despite his acquittal of the charge of murder by the Hon'ble Lahore High Court, Lahore. Although, Almighty Allah and the Holy Prophet (P.B.U.H.) disapproved, deprecated and condemned the killing of human being by means of the Quranic Verses and the Sayings yet the Divine commands reproduced have not laid down that acquittal of the convict of murder charge would not absolve him of his crime and sin till the Day of Judgment. It would not be out of place to mention here that no one including the Election Tribunal is in a position to say as to whether or not Allah Almighty has pardoned the returned candidate after the pardon granted to him by the legal heirs of the deceased. It is a matter between the returned candidate and his Creator, which would be determined on the Day of Judgment. The Election Tribunal cannot take cognizance of the questions of sin and pardon falling within the exclusive domain of Almighty Allah. Here I would say that Almighty Allah would decide the fate of the sin of Ch. Abid Raza, returned candidate, if any, on the Day of Judgment and before that the petitioner is no body to take its cognizance or to agitate it before the Election Tribunal.
6. Learned counsel for the petitioner has attempted to re-agitate the issue already determined and settled by the Hon'ble Lahore High Court, Lahore, in writ petition No, 12034 of 2007 reported as Ch. Abid Raza v. Election Tribunal, Punjab and others. PLD 2008 Lahore 200. Larger Bench of the Hon'ble Lahore High Court, Lahore, dismissed the contention of learned counsel for the petitioner that acquittal of the returned candidate from the charge of murder in terms of compromise with legal heirs of the deceased did not absolve him of his liability. The Hon'ble Larger Bench has held in the precedent case that acquittal of the convict/accused is acquittal, whether it is on the basis of a declaration by Court on conclusion of trial or on the basis of compromise u/s. 345(6), Cr.P.C. The august Supreme Court of Pakistan also held in 1998 SCMR 1993 that all acquittals are certainly hon'ble and there can be no acquittal, which may be said to be dishonourable as the law does not recognize different types of acquittals. Here I must add that Ch. Sabir Hussain's case 2001 YLR 2454 is of no help to the petitioner because it was taken into consideration by the Larger Bench of the Hon'ble Lahore High Court, Lahore, and was distinguished. The verdict by the Larger Bench of Hon'ble Lahore, High Court, Lahore in the case of Ch. Abid Raza, returned candidate qua the charge of murder and acquittal still holds the field and the petitioner cannot be and should not be allowed to reopen the same issue on one pretext or the other.
7. Now I take up the second ground of attack against the candidature of the returned candidate. It has been contended that the name of the returned candidate was included in fourth schedule of the Anti-Terrorism Act 1997 by the Home Department, Government of the Punjab on account of his association with banned organizations involved in terrorism. This is a matter of record and is not in dispute or disputable that the returned candidate invoked Constitutional jurisdiction of the Hon'ble Lahore High Court, Lahore through writ petition No, 1039 of 2008 and called in question the legality of the order passed by the Horne Department, Government of the Punjab whereby he was included in the fourth schedule of the Anti-Terrorism Act, 1997. The writ petition came up for hearing before the Hon'ble Lahore High Court, Lahore on 09.6.2008 when the law officer placed on record order dated 03.6.2008 by the Home Secretary, Government of the Punjab whereby the name of the returned candidate had been deleted from the fourth schedule of the Anti-Terrorism Act, 1997. The Hon'ble Lahore High Court, Lahore disposed of the writ petition with an observation that the above- said development fully redressed the grievance of the returned candidate and that the writ petition had borne fruit. The returned candidate filed nomination papers to contest the General Elections- 2013 held on 11.5.2013. His name stood deleted from the fourth schedule of Anti-Terrorism Act, 1997 on 03.6.2008. I fail to understand as to how and on what basis the qualification of the returned candidate has been challenged with reference to the order, which stood withdrawn much before announcement of the election schedule.
8. At the cost of repetition, I would say that the grounds of attack against qualification of the returned candidate to contest the General Elections-2013 have fallen to the ground. Needless to add that the petitioner cannot be and should not be allowed to re-agitate the issue of acquittal of the returned candidate and its legal effect already determined by the Larger Bench of the Hon'ble Lahore, High Court, Lahore. The returned candidate invoked Constitutional jurisdiction of the Hon'ble Lahore, High Court, Lahore against the decision by the Home Department, Government of the Punjab and the writ petition was disposed of as having borne fruits as the Home Department deleted name of the returned candidate from the fourth schedule Hence, I feel no difficulty in concluding without any fear of contradiction that the petitioner was qualified to contest the General Elections-2013. Resultantly, issue No, 4 is found in favour of the returned candidate whereas issues No, 5 and 6 are answered against the petitioner. Both sides did not utter a single word regarding issues No, 1, 2 and 3 and the same stand disposed of as having not been pressed.
9. Now the last word. The election petition fails and is dismissed with cost as determined and mentioned in the memo. Of cost. Election .