K. H. Khurshid, appellant/applicant, a former President of the State of Jammu and Kashmir, who was proceeded against before a Disqualification Tribunal under the provision of the Ordinance called Holders of Representative Offices (Disqualification) Ordinance (hereinafter to be referred as an Ordinance), vide order, dated 22nd June, 1981 was found guilty of misconduct for having abetted the misapplication of public money for making a demand and receiving an amount of Rs.1,500 as daily allowance for the purpose differently stated in the bill. Resul--tantly, he stood disqualified from being elected or chosen as a member of the Assembly or Council or take part in political activities for a period of 7 years.
2. He has moved an appeal before this Court to impeach the said judgment of the Tribunal. The appeal still awaits completion in the Registry.
3. By this application the appellant/applicant seeks the suspension of the order of the learned Tribunal pending disposal of the appeal inter alia' on the grounds-
(i) that the reference was mala fide inasmuch as it was made simply to injure the reputation of the appellant/applicant and damage his political career ;
(ii) that the evidence has not been objectively looked into and there--fore, the order 'is perverse, discriminatory, whimsical and bad in law' ; (i.e) that the finding of the learned Tribunal to the effect that the appellant/applicant 'abetted the misapplication of public money by making a demand' even if believed to be correct is not covered by the word 'misconduct' in the Ordinance ;
(iv) that the evidence lacks proof of abetment of the appellant/ applicant to get the TA/DA bill passed ;
(v) that the orders/ instructions etc. Can be issued by the Government giving or providing for ex post facto sanction, but the learned I Tribunal cared not to look into this aspect of the case;
(vi) that without a principal offender the appellant/applicant could not be held guilty to have abetted the offence of misconduct ; and
(vii) that the appellant/applicant heads a political party, known as Jammu and Kashmir Liberation League, which stands and strives to provide for the people of Jammu & Kashmir State an opportunity to decide the question of the accession of the State, to Pakistan through a free and impartial plebiscite;
4. For the above-stated reasons, it is claimed that as important questions await adjudication in the appeal operation of the order, in all fairness, should be kept suspended pending disposal of the appeal. If the bar on the appellant/applicant's political activities continues even during the pendency of appeal; it would, it is said, not only cause irreparable loss to his party but would also damage the National cause.
5. The learned counsel for the parties were alsoasked to argue about the nature of the proceedings before a Disqualification Tribunal, i.e. Whether they are civil or criminal in character. They are not in agreement on this question. Sh. Abdul Aziz, the learned counsel for the appellant, is of the view that the proceedings are of criminal nature while Sardar Rafique Mahmood, Additional Advocate- General, maintains that proceed--ings are of civil nature. Both the learned counsel have cited various case-- law for and against the proposition. It would be an exercise in futility, at this stage, to discuss all the case-law because this Court has already in three civil miscellaneous petitions captioned Sardar Khan Bahadur Khan v. Chief Secretary (No. 20 of 1979), Ch. Sohbat Ali v. Chief Secretary (No. 21 of 1979) and Ch. Muhammad Ashraf v. Chief Secretary (No. 22 of 1979) treated the proceedings before the Disqualification Tribunal as of civil nature and in this case too, subject of course to the reconsidera--tion of the question at the time of the disposal of the appeal, the proceed--ings are being treated as of civil nature.
6. The appellant/applicant was required to face various allegations under five charges. He was exonerated of all the charges except charge No. 2, which reads- ---(II) that in general elections held in Pakistan in 1977, the respon--dent who was a member of Azad Jammu & Kashmir Legislative Assembly participated in election campaign launched by the P.
P. P. In support of its nominees ; he undertook tours of various places and received a sum of Rs.1,500 as TA/DA for the aforesaid tours pretending that he undertook the said tours for removing doubts with regard to Simla Agreement and as such the said amount, as TA/DA, was received against the rules on the subject;---
7. 1t is not disputed that the appellant/ applicant during the year 1977 toured various places in Pakistan. However, the parties differ. About the purpose of journey. The appellant/applicant's case, is that the tour, under a Government order, was undertaken to remove doubts regarding 'Simla Agreement' and looking into the affairs of the Jammu & Kashmir refugees settled in Pakistan. As against this the case of the Referring Authority is that the appellant/applicant had undertaken tour in Pakistan for campaigning for the candidates of Pakistan Peoples Party and received illegally an amount of Rs.1,500 as D. A. For the afore--mentioned tours.
8. The learned Tribunal found the case partially proved against the appellant. In the estimation of the Tribunal the appellant/applicant had undertaken the tour at Sialkot on 26th January, 1977 whereat a meeting was addressed by him for P. P. P. Candidates; and that he incorrectly entered in the bill that he was not at Sialkot on 26th January, 1977.
9. Both the learned counsel have argued the case at considerable length. During the course of arguments Sheikh Aziz, Advocate, has taken me through the relevant evidence and the judgment passed by the Tribunal with the purpose to make me believe that the judgment of the Tribunal is not based on sound grounds. According to him the Referring Authority has failed to establish a case against the appellant/applicant. Elaborating his point he submits that Ghulam Rasul and Riaz Butt, photographers, witnesses examined by the Referring Authority, refused to support the case of Referring Authority. Khan. Abdul Hamid Khan, . Altaf Kiyani, Abdul Rashid Butt and Khalil Ahmed Qureshi witnesses no doubt support the case of the Refer ride Authority that the appellant/applicant addressed the meeting at Sialkot for Pakistan Peoples Party's candidates but their evidence on the whole vis-a-vis the evidence of Ghulam Rasul and Riaz Butt also needs scrutiny to see as to whether they can be safely depended upon.
10. In view of the above, it is submitted that the case against the appellant requires serious consideration and if the operation of the order of the Tribunal is not suspended it would cause irreparable loss to the appellant/applicant as refusal to take part in political activities would adversely affect not only his party but also the Kashmir Issue which cannot be compensated by costs. He further contends that the appellant/ applicant during the tenure of the present regime has never been proceeded against or even charged for having indulged in anti-State activities; he, therefore, submits that it is but equitable and just that the order should sleep during the pendency of the appeal.
Sardar Rafique Mahmood, Additional Advocate-General, in the first instance opposed the suspension of the order on the ground that if the order is vacated the appellant/applicant . May create trouble for the Government. He has, however, conceded that the appellant/applicant has never, during the days of present Government, been proceeded against or, charged to have indulged in any anti-State activities.
11. A Government Order, dated 11th June 1976, which is the main defence of the appellant, shows that the tour was undertaken to remove doubts about 'Simla Agreement' and affairs of Jammu and Kashmir refugees settled in Pakistan.' This Government Order is ignored by the Tribunal on three fold grounds: firstly, it is said that it has no retrospec--tive operation and secondly, according to the learned. Tribunal, it does not reflect the true purpose of journey. The third reason advanced is that under section 9 of. The Azad Jammu & Kashmir Legislative Assembly (Salaries, Allowances and Privileges of Members) Act, 1975 the official business could only be allocated to the appellant/applicant (a member of Assembly) by a statutory body (Government Department) and not by the Government itself.
12: In view of the above-stated facts it requires consideration as to whether circumstances warrant suspension of the order. It should be remembered that in order to judge whether an order should be suspended or not regard must be had to the facts of each particular case in its circum-- stances. The real point which has to be decided when an application for suspending an order is made is not bow the matter is to be decided but it i6 whether the matter should not be preserved in status quo until the question can be finally disposed of. What is necessary is not to determine the merits of the case one way or the other; all that is required is to find out whether the applicant has made out a prima facie arguable case. In deciding whether there is a prima facie case the Court has to see whether the applicant has a fair question to raise in support of his appeal. However, discretion in doing so should be exercised in accordance with the reasons- and on sound judicial principles.
13. Let me come to determine the issue in the present case. Whether section 9 empowers the Government to allocate official business to art Assembly member and whether the aforementioned Government Order has correctly been understood and interpreted by the learned Tribunal requires thought and consideration. Whether the appellant/applicant has addressed a public meeting at Sialkot in favour of Pakistan Peoples Party's candidates also depends on the appreciation of the evidence which cannot be done at this stage. However, the reading of the evidence on the whole, in my view, makes for the appellant/applicant a prima facie arguable case.
14. Sh. Abdul Aziz also seriously criticizes the approach made by the Tribunal to section 9 of the Azad Jammu and Kashmir Legislative Assembly (Salaries, Allowances and Privileges of Members)
Act, 1975, and the interpretation put forth to the aforesaid Government Order. According to him it is well-established principle that in construing a statute the construction which is most agreeable to justice and reasons is to be preferred, of course, without any violence to the language of the statute. The purpose of interpretation, he proceeded to argue, is to advance the remedy and avoid to reduce the Legislation, as is done in this case, to a futility. Though this is no stage to appreciate the merits of the case, in view of the arguments advanced by the learned counsel; nevertheless the arguments by Sh. Aziz do provide ground for consideration.
15. Sardar Rafique Mahmood also argues that if the order of the Tribunal is suspended it would amount to reversing the order appealed against in its entirety and thus grant complete redress to the appellant; applicant which ordinarily would happen at the final stage to the appeal. Therefore, the operation of the order should not be suspended during the pendency of the appeal. I see no substance in this argument. To accept any such proposition would indeed to whittle down the Court's appellate jurisdiction. If the circumstances of a case eminently justify grant of interim relief by suspending wholly or partially the operation of the order appealed against; it can safely be done and in fact it is reason--ably incidental or ancillary to the main appellate jurisdiction. In the final analysis of the appeal the Court may refuse to interfere with impugned judgment, but this fact per se does not debar the Court to suspend the operation of the order if the circumstances otherwise so warrant.
16. The appreciation of the circumstances of this case make me to believe that balance of convenience leans in favour of suspending the operation of the order of the Tribunal. If order is not suspended it may cause such a loss to the appellant/applicant or his party which may not be compensated in any manner. Besides, no convincing argument has been advanced by the opposite side to establish a case of damage to the Government (Referring Authority), in the event the order is allowed to sleep during the pendency of the appeal. In these circumstances my judicial conscience does not permit me to refuse the. Relief to the appellant) applicant.