1. ' CHIEF ELECTION COMMISSIONER --- This reference has been sent by the Speaker Azad Jammu and Kashmir Legislative Assembly. Under sub-section (2) of Section 25 of Azad Jammu and Kashmir Interim Constitution Act, 1974. The captioned reference arises out of the following facts:--- ' Sardar Mir Akbar Khan, respondent, herein, contested election as nominee of All Jammu and Kashmir Muslim Conference from LA-15 Bagh-Ill and was returned as such. Mst. Mahar-un-Nisar, Secretary General All Jammu and Kashmir Muslim Conference filed a reference against him stating therein that while disassociating All Jammu & Kashmir Muslim Conference he has joined Muslim League (N), therefore, has incurred a disqualification contemplated by section 5(3) of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970. The learned Speaker of the Azad Jammu and Kashmir Legislative Assembly on receiving reference has sent the same under the above-mentioned provision of the Azad Jammu and Kashmir Interim Constitution Act, 1974 for declaring the seat of LA-15 Bagh-Ill vacant on which Sardar Mir Akbar Khan, was returned as nominee of all Azad Jammu and Kashmir Muslim Conference.
2. ' The reference was received in this office on 31.03.2016 which was placed before me on 01.04.2016.
3. Notices were issued Sardar Mir Akbar Khan, Member Legislative Assembly, Mst. Mahar-un-Nisa, Secretary General All Jammu & Kashmir Muslim Conference and Secretary Legislative Assembly for hearing. On 03.05.2016 Sardar Raziq Khan, the learned Advocate appeared for Mahar-un-Nisa whereas Sardar Tariq Masood, Advocate appeared on behalf of Sardar Mir Akbar Khan. Abdul Ghaffar Sabir, Additional Secretary Assembly has represented Speaker Legislative Assembly.
4. ' Arguing on behalf of Mahar-un-Nisa, Sardar Raziq Khan, the learned Advocate contended that Sardar Mir Akbar Khan contested elections as nominee of All Jammu & Kashmir Muslim Conference from LA-15 Bagh-lIl and he was returned as such. The learned Advocate submitted that Sardar Mir Akbar Khan has withdrawn himself from his party and has joined Muslim League (N), hence, has incurred disqualification contemplated by Section 5(3) of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970. The learned Advocate in support of his submission referred to and relied upon statements made by Sardar Mir Akbar Khan appeared in different newspapers.
5. The learned Advocate contended that leaving aside the statement made in the newspapers by Sardar Mir Akbar Khan, he has practically withdrawn from political activities of his party which was his responsibility as nominee/member of All Jammu & Kashmir Muslim Conference, The learned Advocate further contended that show-cause notice was also issued to him by the Secretary General of the party on 26.10 2015 for violation of party discipline on the ground that he, despite nominee/member of All Jammu & Kashmir Muslim Conference on 20/21.10.2015 attended meeting of Muslim League (N) headed by Raja Farooq Haider Khan convened at Kashmir House Islamabad and has joined the said party on the same date. The learned Advocate contended that aforesaid meeting was published in daily newspapers but Sardar Mir. Akbar Khan has not controverted the news items nor joined the party meetings despite information, therefore, by his conduct he has proved the joining to Muslim League (N). The learned Advocate argued that while joining party and accepting the party ticket a worker makes commitment with -the party to remain loyal as such during tenure and afterward. As Sardar Mir Akbar Khan has not honoured his commitment thus, is disqualified within the meaning of section 5(3) of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970, hence, may be declared as such by accepting the reference.
6. The learned Advocate placed reliance on a division bench case of this Court titled Kh. Noor-ul- Amin, Advocate v. Col. Muhammad Nadi Khan (PLD 1990-AJK 42).
7. ' Conversely, Sardar Tariq Masood, the learned Advocate argued that it is incorrect that Sardar Mir Akbar Khan has ever joined Muslim League (N) as is alleged on behalf of Mahar-un-Nisa, Secretary General, All Jammu and Kashmir Muslim Conference on the dates mentioned by her in the show- cause notice or as stated in the reference. The learned Advocate contended that on 21.12.2015 Sardar Mir Akbar Khan sent his resignation to the Party President but the same was not forwarded to the Speaker whereupon on 25.04.2016 an application was also addressed to the Speaker regarding information of resignation. He also replied the show-cause notice. The learned Advocate contended that it was enjoined upon the Speaker to proceed on the resignation received by him on behalf of the MLA. According to the learned Advocate failure of the Speaker is violation of the Constitution as well as law laid down by the superior Courts of Pakistan and Full Court judgment passed by this Court rendered in Writ Petition No, 1100/13 titled Abdul Majid Khan and others v.
8. Speaker Azad Jammu and Kashmir Legislative Assembly Muzaffarabad and others decided on 16.08.2013. The learned Advocate while referring to letter issued by Additional Secretary Legislative Assembly on 24.04.2016 submitted that resignation was in fact in the knowledge of the Speaker and he also sought explanation in this regard from the Secretary General of the All Jammu & Kashmir Muslim Conference ti rough the aforesaid letter therefore, it was Constitutional duty of Speaker to withdraw the reference sent by him to this office on 30.03.2016 or request for postponement of all the proceedings and make an inquiry in this regard and further to proceed in accordance with the Assembly Procedure Rules. The learned Advocate contended that even otherwise, the reference is not tangible for having been sent in a hasty manner without providing the right of hearing to Sardar Mir Akbar Khan because incurring of disqualification and his removal as Member Legislative Assembly on this ground is stigma on his political career. Without providing right of hearing and making definite opinion with regard to the charge, the learned Speaker has acted in a mechanical manner like post office stated by the learned Advocate. He further submitted that he has to hold an inquiry and after framing definite conclusion should have forwarded the reference. In this regard the learned Advocate referred to and relied upon an earlier order passed by my predecessor Mr. Justice Munir Ahmed Chaudhary, Chief Election Commissioner in a reference sent to him by Speaker Legislative Assembly against Muhammad Hussain Sargala sitting MLA. In the order dated 17.01.2014 the learned Chief Election Commissioner while relying upon Abdul Majid Khan's case, supra, referred the matter back to the Speaker for providing the affecttee therein right of hearing.
9. ' After hearing the learned counsel for the parties and perusing the record, for proper appreciation of the matter, I deem it appropriate to reproduce Section 25(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, as well as Section 5(3) of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970, which are as under:-- "25. Seat in Assembly becomes vacant under certain circumstances. (1)
10. (a)
11. (b)
(c) .
12. (d)
(e) ..
13. (1-A) ....................................
(2) If any question arises whether a member of the Assembly has, after his election become disqualified from being a member of the Assembly, the Speaker shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified the member shall cease to be a member and his seat shall become vacant.
14. (3)
15. "5(3). If a -person having been elected to the Azad Jammu and Kashmir Assembly as a candidate or nominee of a political party, withdraws himself from that party, he shall, from the date of such withdrawal, be disqualified from being a member of the Assembly for the un-expired period of his term unless he has been re-elected at a bye-election held after his disqualification."
16. ' It may be stated that in view of the case-law laid down in Abdul Majid Khan's case, supra, and a Full Court Judgment passed by Lahore High Court in case titled Kanwar Intizar Muhammad Khan, Advocate v. Federation of Pakistan and 6 others [1995 M LD 1903], it is not necessary to discuss the merits of the case. Suffice it to observe that as per language envisaged in Section 25(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the learned Speaker has to give as definite opinion on the basis of available record regarding disqualification of a Member of Legislative Assembly. Without giving definite opinion matter cannot be referred to the Chief Election Commissioner for his opinion. The role of Speaker has been highlighted in Abdul Majid Khan's case, supra, and it was opined that Speaker is custodian of the house and he has to supervise things very seriously if he is moved regarding question of disqualification of a member of Assembly. A larger Bench of Lahore High Court in Kanwar Intizar Muhammad Khan's case (1995 M LD 1903) at page 1920 of the report has pleased to observe as under:-
14. "As regards the objection of the learned law officers to the effect that the petition is premature, we agree with said contention, in view of the admitted position that the Speaker of the National Assembly has not, taken any decision in the matter so far and the writ petition had been filed just after about a month's time, after submission of the application. It is an established legal position that the Speaker is not to act merely as post office. If a reference is submitted to him, he is not bound to forward/transmit the same, to the Chief Election Commissioner for decision 'forthwith.
17. The Speaker has to apply his own mind judiciously to the allegations made in the reference after fully taking into consideration the relevant provisions on the subject and then to decide as to whether "any question" in the nature of disqualification has "arisen" which may justify the making of reference to the Chief Election Commissioner, therefore, merely because the petitioner has filed an application, the Speaker was not out rightly bound to forward the reference, of disqualification to the Chief Election Commissioner, which will definitely require proper deliberation and a reasonable time to decide the same. Hence we hold that the petitioner is not possessed of an actionable cause of action in praesenti."
18. (Underlining is mine)
19. ' In the instant case the learned Speaker has not even mentioned that as to whether the question of disqualification of Sardar Mir Akbar Khan has arisen or he is of the view that on the basis of record Sardar Mir Akbar Khan has incurred a disqualification within the ambit of afore-stated provisions of the Constitution and Subordinate law. I am of the view that opinion of the Speaker is also necessary because the resignation of Sardar Mir Akbar Khan, has been received in Assembly Secretariat. As I have made up my mind to send the reference back to the Speaker for his opinion on the question of disqualification of Sardar Mir Akbar Khan, therefore, merits of the reference in light of the arguments of the learned Advocates and record appended therewith needs not to be discussed.
20. However, it may be observed that the question of applicability of rule of law laid down in Kh. Noor- ul-Amin's case referred to and relied upon by Sardar Raziq Khan would be judged only after the opinion of the Speaker.
21. ' In view of above, the reference is sent back to the Speaker for forming his opinion in light of the provisions contained in sub-section (2) of Section 25 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 after hearing the parties. Thereafter, the matter may be sent, if any question of disqualification has arisen in the estimation of the learned Speaker within meaning of above- referred provisions of Interim Constitution Act, 1974, and Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970.